11/23/1804: President Franklin Pierce's birthday. He would appoint Justice John Archibald Campbell to the Supreme Court.
Today in Supreme Court History: November 23, 1804
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Some Thoughts On The Texas Gerrymandering Case
There is so much to say about LULAC v. Abbott, the recent gerrymandering case decided by a three judge panel of the Western District of Texas. Indeed, it has taken me a few days to process everything.
First, this three-judge panel was constituted back in 2021. Due to long-running litigation over Texas's 2021 maps, this panel maintained jurisdiction over the new 2025 maps. The plaintiffs chose to file in the Western District of Texas, El Paso Division, where they were virtually assured of not drawing a conservative judge. And they drew Judge David Guaderrama, an Obama nominee. Then-Chief Judge Priscilla (Owen) Richman, not the current Chief Judge, Jennifer Walker Elrod, appointed the other two members of the panel: District Judge Jeffrey Brown and Circuit Judge Jerry Smith.
Second, virtually every press story about the case has highlighted the fact that Judge Brown was appointed by President Trump. Indeed, Trump nominated Brown to fill a single-judge division on Galveston Island, just outside of Houston. But unlike some of the other judges appointed to single-judge divisions, Brown did not become a go-to forum for strategic litigation during the Biden years. Quite to the contrary, he put up a "Do Not Enter" sign on his courtroom. In 2023, Judge Brown adopted a local rule that required the plaintiffs to demonstrate an "obvious factual nexus to the Galveston Division." In the wake of this order, conservative litigants got the memo loud and clear, and stopped filing there. And Brown's rulings have not always fared well before the Fifth Circuit. His VRA ruling in Petteway v. Galveston County was reversed by the en banc court.
Third, in recent months, several Reagan-appointed judges have come forward as purportedly principled jurists who see Trump as a threat to the rule of law. As I've explained, many of these judges are from Massachusetts, and received blue slips from Senators Kennedy and Kerry. I doubt they were ever very conservative. By contrast, Judge Jerry Smith of the Fifth Circuit is a Reagan appointee to the Fifth Circuit whose conservative bona fides are beyond reproach. He has been on the bench for nearly forty years, and is held in very high regard by Fifth Circuit practitioners. I have seen some suggestions that his dissent in LULAC was an effort to curry favor with Trump. Judge Smith is 79 years old. I do not think he is auditioning for a promotion.
Fourth, I have some thoughts about the preliminary statement to Judge Smith's dissent. I always try to avoid imputing bad faith to those I disagree with. I am a fan of Hanlon's Razor: "Never attribute to malice that which is adequately explained by stupidity." If Judge Brown did exactly as Judge Smith alleged, then the lone judge in Galveston, at best, made a colossal error in judgment. Judge Brown was so concerned about getting an opinion out quickly to avoid a Purcell problem that he cut a member of the panel out of the drafting process. What makes this error even more shocking is that Brown previously served on the Fourteenth Court of Appeals and later the Texas Supreme Court. (Justice Scalia swore in Justice Brown at his investiture in 2013, which I attended.) Judge Brown knows how multi-member appellate courts operate.
Fifth, if this case was urgent as Judge Brown insisted, then it does not seem he approached the drafting process with the requisite sense of urgency. The preliminary injunction hearing concluded on October 10. About forty days later, on November 18, he issued a 160-page opinion. Everyone knew this case was bound for the Supreme Court. If Judge Brown was so concerned about Purcell, he could have issued a far slimmer opinion before the candidate registration began on November 8. Indeed, if he was unwilling to wait for Judge Smith's dissent, the majority could have moved even faster.
However, according to Judge Smith's stated chronology, Judge Brown did not move quickly. Between October 10 and November 5, Judge Smith relates there "there was silence." I can relay that I saw Judge Brown at the U.S. Supreme Court on November 4. Judge Brown was there to attend oral argument in The Hain Celestial Group v. Palmquist, a case in which the Fifth Circuit reversed him. I chatted with Judge Brown briefly after the case finished. Also in attendance was Sixth Circuit Judge David McKeague who wrote the dissent in Coney Island, which was also argued that day. As longtime readers might observe, I have this uncanny tendency to be at the right place at the right time. However, I did not see Judge Brown at the Federalist Society Convention, which started two days later. I've checked Judge Brown's civil docket, and there were other entries added during this time. If LULAC was truly a DEFCON 1 case, then these other activities could have taken a break.
Moreover, according to Judge Smith, Brown did not keep to his own self-imposed deadlines. On November 5, Smith received a thirteen-page outline. Then silence for a week. On November 12, Brown announced he would issue the injunction three days later on November 15. At that point, Smith had not even seen a draft. The first draft would be circulated on November 13. On November 16, a new draft with "substantial revisions" was circulated. The plan was to issue it two days later on November 18. Had Judge Brown waited twenty-four hours further, Judge Smith's dissent would have been ready. All of this mess could have been avoided.
Gordon Wood on America as a "Creedal Nation" Open to all Races and Ethnicities
Wood is the leading living historian of the American Founding. He pushes back here against those who claim America should be an ethno-nationalist polity.
Gordon Wood is probably the leading living historian of the American Founding, author of such seminal works as The Creation of the American Republic and The Radicalism of the American Revolution. In a recent speech at the conservative American Enterprise Institute (reprinted in the Wall Street Journal), he pushes back against some on the right who argue that American should be an ethno-nationalist society favoring those with a particular ethnic and cultural background. This idea, he explains, goes against our Founding principles:
I want to say something about the Declaration of Independence and why it is so important to us Americans.
There has been some talk recently that we are not and should not be a credo nation, that beliefs in a creed are too permissive, too weak a basis for citizenship and that we need to realize that citizens who have ancestors that go back several generations have a stronger stake in the country than more recent immigrants.
This is a position that I reject as passionately as I can. We have had these blood-and soil-efforts before, in the 1890s when we also had a crisis over immigration. Some Americans tried to claim that because they had ancestors who fought in the Revolution or who came here on the Mayflower, they were more American than the recent immigrants….
The United States is not a nation like other nations, and it never has been. There is at present no American ethnicity to back up the state called the United States, and there was no such distinctive ethnicity even in 1776 when the United States was created….
Because of extensive immigration, America already had a diverse society. In addition to seven hundred thousand people of African descent and tens of thousands of native Indians, nearly all the peoples of Western Europe were present in the country. In the census of 1790 only sixty percent of the white population of well over three million remained English in ancestry…
When Lincoln declared in 1858 "all honor to Jefferson," he paid homage to the Founder who he knew could explain why the United States was one nation, and why it should remain so. Half the American people, said Lincoln, had no direct blood connection to the revolutionaries of 1776. These German, Irish, French, and Scandinavian citizens either had come from Europe themselves or their ancestors had, and they had settled in America, "finding themselves our equals in all things." Although these immigrants may have had no actual connection in blood with the revolutionary generation that could make them feel part of the rest of the nation, they had, said Lincoln, "that old Declaration of Independence" with its expression of the moral principle of equality to draw upon. This moral principle, which was "applicable to all men and all times," made all these different peoples one with the Founders, "as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration…." This emphasis on liberty and equality, Lincoln said, shifting images, was "the electric cord. . . that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."
In Jefferson's Declaration Lincoln found a solution to the great problem of American identity: how the great variety of individuals in America with all their diverse ethnicities, races, and religions could be brought together into a single nation. As Lincoln grasped better than anyone ever has, the Revolution and its Declaration of Independence offered us a set of beliefs that through the generations has supplied a bond that holds together the most diverse nation that history has ever known.
Since now the whole world is in the United States, nothing but the ideals coming out of the Revolution and their subsequent rich and contentious history can turn such an assortment of different individuals into the "one people" that the Declaration says we are. To be an American is not to be someone, but to believe in something. That is why we are at heart a [creedal] nation, and that is why the 250th anniversary of the Declaration next year is so important.
Wood's emphasis on America's role as a creedal nation bound by universal liberal principles is backed by the Declaration of Independence (with its condemnation of British immigration restrictions), and by many statements by leading Founders. In his famous General Orders to the Continental Army, issued at end of the Revolutionary War in 1783, George Washington emphasized that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions." He expressed similar views on other occasions, including writing to a group of newly arrived Irish immigrants that "[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions."
These are the principles that made America great in the first place, and returning to them is the best way to make it greater still.
I don't agree with every point Wood makes in his speech. For example, he claims that "Because assimilation is not easy, no nation should allow the percentage of foreign born to exceed about 15 percent of its population." There is no basis for this arbitrary limitation. Nations such as Australia, Canada, and Switzerland, have done well with much higher percentages of foreign-born people. In Chapter 6 of my book my book Free to Move: Foot Voting, Migration, and Political Freedom, I describe how issues of assimilation and potential "swamping" of institutions are best addressed by "keyhole" solutions, rather than by excluding large numbers of people. Such exclusion based on morally arbitrary circumstances of ancestry and place of birth is at odds with the universalist principles of the American Founding that Gordon Wood has done so much to document and illuminate.
Wood is right to suggest that America's greater success in assimilating migrants compared to many European countries is in part due to our creedal identity and ideology. But, as noted in my book, an additional factor is open labor markets, which make it easier for immigrants to assimilate and learn the language by entering the workforce. Switzerland's relative success compared to most other European states is in part due to its similarly low level of labor restrictions.
Despite such quibbles, Wood's speech is a great summary of the principles of the Founding, and their continuing relevance today.
Today in Supreme Court History: November 22, 1963
11/22/1963: President Lyndon B. Johnson takes the oath of office. He would appoint two Justices to the Supreme Court: Abe Fortas and Thurgood Marshall.
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Second Amendment Roundup: In Wolford, Hawaii relies on the Black Codes
Improper analogue to support ban on arms on private property open to the public.
I have filed an amicus curiae brief in Wolford v. Lopez, which is pending in the Supreme Court, on behalf of the National African American Gun Association. As explained in my previous post, the issue is whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission.
Hawaii enacted this ban in defiance of the Supreme Court's ruling in Bruen that the Second Amendment protects the right to bear arms in public. The Ninth Circuit upheld the ban under Bruen based on the existence of two purported historical analogues, one of which was an 1865 Louisiana law. I've written extensively on the black codes in Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the "Constitutional Right to Bear Arms," which both Heller and McDonald cite as authority. Thus, I focused on the Louisiana law in the amicus brief. The following summarizes the argument.
Hawaii's ban on a licensee carrying a firearm on another's property that is open to the public without express authorization is covered within the plain text of the Second Amendment and is presumptively protected. To demonstrate that the restriction is "consistent with this Nation's historical tradition of firearm regulation," New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Ninth Circuit relies on two supposed analogues, a 1771 New Jersey law made it an offense to carry a gun on another's lands without a license or written permission, and an 1865 Louisiana law prohibiting the carrying of firearms on the premises or plantation of another without consent.
The existence of merely two such outlier laws almost a century apart, neither of which was subjected to judicial scrutiny, fails to establish a historical tradition. This brief focuses solely on the 1865 Louisiana law, which was enacted during a tumultuous period in the aftermath of the abolition of slavery. It goes without saying that this period is too far removed from the Founding to give information on the original meaning of the Second Amendment.
In the immediate post-war period, Louisiana jurisdictions adopted "regulations applying exclusively to the Negro." Senate Ex. Doc. No. 2, 39th Cong., 1st Sess., 23 (Dec. 19, 1865). The town of Opelousas exemplified the trend with its ordinance providing that "No freedman … shall be allowed to carry firearms" within the town limits "without the special permission of his employer, in writing, and approved by the mayor or president of the board of police." Id. at 23 & 89.
The Freedmen's Bureau overruled such restrictions when they came to its attention. It became clear that prohibitions on freedom of movement and the right to bear arms could no longer explicitly limit their applicability to the "freedmen." Laws of general applicability would be enacted that were intended and functioned to apply to the freed slaves.
The 1865 law making it unlawful to carry a firearm on another's premises or plantations without consent was part of several enactments signed by Governor Madison Wells that deleted explicit references to the "freedmen" while continuing the policies of the black codes. The gun carry ban could be enforced to prevent freedmen from carrying firearms on premises and on plantations without no-trespassing signage. Another law made it a crime to enter upon a plantation without permission, without any requirement that the land be posted, which limited the freedom of movement of freedmen.
Another law provided for the conscription of "vagrants" who could be detained and hired out to an employer or made to do hard labor on public works for as much as a year. Still another prohibited enticing a person to leave his employer, which kept the freedmen in a condition of servitude.
These laws received national attention in publications like the New York Tribune, March 7, 1866, which recited the law making it unlawful to "carry firearms on the premises or plantations of any citizen" without consent and concluded: "For the blacks we find a code of laws establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact."
Testimony before the Joint Committee on Reconstruction established that such laws would have been selectively enforced against the freedmen. Governor Wells, a former slave owner, appointed sheriffs, judges, district attorneys, mayors, and other officers who were recently in the Confederate army. One witness testified that in the courts, "as far as justice to a freedman is concerned, it is a pretence and a mockery." Report of the Joint Committee on Reconstruction, pt. iv, 81 (1866). Another quoted Governor Wells as saying that "the government must pay for the slaves that had been emancipated…." Id. at 116.
Louisiana's ban on carrying a firearm on premises or plantations without consent was the type of law that Congress sought to render void in the Freedmen's Bureau Act, S. 60, and the Civil Rights Act, S. 61, which were enacted in 1866. It was also the kind of law sought to be prohibited by the Fourteenth Amendment.
In Congress, former Louisiana governor Michael Hahn was quoted as stating: "It is necessary … to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom…. 'The right of the people to keep and bear arms' must be so understood as not to exclude the colored man from the term 'people.'" Cong. Globe, 39th Cong., 1st Sess. 217 (1866). Representative Thomas D. Eliot quoted the above Opelousas ban on freedmen carrying firearms as an example of the restoration of slavery in fact. Id. at 517.
Supporters of S. 61 praised the order by General Sickles in South Carolina recognizing the constitutional right to bear arms, which did not "authorize any person to enter with arms on the premises of another against his consent." Id. at 908 (emphasis added). That was the normal rule, in contrast the Louisiana's law requirement that one could not go on another's premises "without the consent" of the owner.
The Civil Rights Act provided that all citizens "shall have the same right … to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…." 14 Stat. 27. The Freedmen's Bureau Act expanded that language to protect the right "to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms…." 14 Stat. 173.
The reference to "the constitutional right to bear arms" was originally proposed by Representative Nathaniel P. Banks, who as a major general had formed the Union government in Louisiana in 1864. Cong. Globe at 585. It was agreed that the expanded language did not change the meaning, implying that the Civil Rights Act also protected the right to bear arms.
In 1867, Congress declared that "no legal State governments" existed in Louisiana and nine other States, which were subjected to military authority. 14 Stat. 428.
Given that Louisiana was not even considered a legitimate state from its secession in 1861 and when it passed the 1865 Act making it unlawful "to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor," it cannot be said that this law was "consistent with the Nation's historical tradition of firearm regulation," Bruen, 597 U.S. at 24 (emphasis added).
* * *
The Court did not grant cert on petitioners' issue number two, of whether the Ninth Circuit erred in also relying on supposed analogues from the post-Reconstruction Era and later. My amicus brief does not cover that issue, although it is sure to be debated in other briefs. While there is much more to be said, petitioners' merits brief clinches the issue with a single sentence from Rahimi: "A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'"
Covid Beach Closures, the Takings Clause, and the Police Power Exception
A recent 11th Circuit decision rightly ruled that mandatory Covid beach closures violated the Takings Clause. But the court overlooked the key issue of how to assess the "police power" exception to Takings Clause liability.
Co-blogger Jonathan Adler recently posted about Alford v. Walton County, an important new 11th Circuit ruling holding that a local ordinance barring property owners from accessing their beachfront property during the Covid pandemic violated the Takings Clause of the Fifth Amendment.
I think the court was right to conclude there was a taking here, and that the County is therefore required to pay compensation, as required by the Takings Clause. But the court elided the difficult issue of the "police power" exception to takings liability.
The relevant ordinance completely barred property owners from accessing or using their beach front property for several weeks during the early part of the Covid pandemic, in March-April 2020. As the court explained, this is an obvious severe restriction on property rights, and therefore part of the right to "private property" protected by the Takings Clause.
Unlike Jonathan Adler, I think the court was also right to conclude this is a "physical taking" that qualifies as a "per se" (automatic) violation of the Takings Clause, as opposed to a mere restriction on "use" subject to the Penn Central balancing test (a vague standard that usually ends up favoring the government). As the court put it, "Ordinance 2020-09 prohibited the Landowners from physically accessing their beachfront property under any circumstances. That is different from a restriction on how the Landowners could use property they otherwise physically possessed."
But the court avoided what, to my mind, is the most difficult issue posed by this case: the question of the applicability of the "police power" exception to takings liability. For decades, the Supreme Court and various lower courts have held that government actions that would otherwise qualify as takings are exempt from liability if enacted under the police power, which gives government the authority to protect health and safety.
Covid-era restrictions arguably fall within the exception, because they were meant to constrain the spread of a deadly contagious disease, one that ended up killing some 1 million Americans. During the pandemic, a number of state courts upheld Covid shutdown orders against takings challenges based on the police power rationale. I wrote about one such case here.
However, it is far from clear how great a threat to health or safety there must be before the police power exception kicks in. If forestalling even a small risk qualifies, then virtually any restriction on private property rights is exempted from takings liability. After all, just about any use of property poses at least some small risk of spreading disease or causing injury.
In my recent article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver), we argue the police power exception only applies in cases where the government policy in question is preventing a particularly severe danger. For reasons outlined in the article (pp. 25-31), that approach is consistent with original meaning, and with relevant Supreme Court precedent.
By that standard, the Walton County beach restriction and similar measures in other jurisdictions do not qualify for the police power exception. It quickly became clear that outdoor transmission of Covid does not pose much risk. Moreover, it was particularly absurd to ban even the owners from using their own property. If one of them was infected, they could much more likely spread the infection to each other while at home indoors, where the law did not prevent them from interacting with each other.
Thus, I think the court ultimately got this case right. But they should have addressed the police power exception and how it might or might not apply here. The court rightly noted that "there is no COVID exception to the Takings Clause" and that "the government must respect constitutional rights during public emergencies, lest the tools of our security become the means of our undoing." I agree completely! There must be strong judicial review of government invocations of emergency powers. But, though there is no "Covid exception" or "emergency exception" to the Takings Clause, there is a police power exception. And courts should deal with it, when it is potentially relevant.
The Supreme Court, in recent years, has shown little interest in clarifying the scope of the police power exception. But it has - rightly - decided a number of cases strengthening protection for property rights under the Takings Clause generally. This makes it more likely that Takings Clause protections will run into the police power exception, as there are fewer situations where restrictions on property rights avoid takings liability for other reasons.
Thus, the Supreme Court may well have to clarify the police power exception sooner or later. Unless and until they do so, lower courts will continue to struggle with this doctrine.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Lobstermen surveillance, semiquincentennial squabbling, and socking it to the Scotch Tape People.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Webinar: In thousands of communities across the country, automatic license plate readers are surveilling people's movements on a massive scale. A sensible law-enforcement tool? Or an insane violation of personal privacy? We've put together a crack team of policymakers and advocates to weigh in, including the Montana senator who authored that state's landmark legislation on the topic. Please tune in on Tues., Dec. 9 at 2 p.m. EST.
Or head over to the Associated Press, which has a longform look at the Border Patrol's (until now) secret practice of using ALPRs to identify "suspicious" driving patterns and tipping off local law enforcement, a practice that is resulting in a lot of innocent people, like IJ client Alek Schott (featured in the story), getting pulled over on a pretext and harassed.
This week on the Short Circuit podcast: Anya Bidwell interviews Matteo Godi of USC Law about his new article "Section 1983: A Strict Liability Statutory Tort."
- Does it violate the Fourth Amendment for Maine to require that all lobstermen who hold federal lobster fishing permits install an electronic tracking device on their vessels? First Circuit: Well, first things first, let's be clear that "lobstermen" is a gender-neutral term. And as for the Fourth Amendment issue, the lobstermen plaintiffs conceded in the district court that lobstering is a closely regulated industry—meaning the Fourth Amendment has fewer claws—and we're not going to let them renege on that concession now. Dismissal affirmed. Read More
Takeaways for California Lawyers from the Second District's New Pseudonymity Case
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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."
Trump's Shameful Attempt to Reprise the Munich Agreement With Ukraine - and What to do About it
Trump's 28-point "peace" plan for the Russia-Ukraine War is a reprise of the 1938 Munich agreement, which dismembered Czechoslovakia for the benefit of Nazi Germany. But US and European supporters of Ukraine can do much to resist it.
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.
California Appellate Court Generally Rejects Pseudonymity for Defamation Plaintiffs (Including in #TheyLied Sexual Assault Allegation Cases)
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):
Attempts to Redefine Genocide are Undermining the Concept
[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.
Firing Teacher for Mentioning Racial Epithets in "Cultural Diversity" Class May Violate Connecticut Constitution
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.
