7/5/1867: Justice James Wayne dies.
Today in Supreme Court History: July 5, 1867
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
What Is "Speed Dial"?
Justice Sotomayor used a catchy line in her dissent that most law students today will not understand.
On July 3, the Supreme Court granted the government's "motion for clarification" in Department of Homeland Security v. D. V. D. I did a quick search, and I can't seem to find any other instance where the Court granted a similar "motion for clarification." Then again, I highly doubt any district court attempted to play fast and loose with a Supreme Court order. Kudos to Justice Kagan for calling out such inferior court resistance.
I did want to point out one aspect of Justice Sotomayor's dissent. She wrote:
Today's order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.
I thought that was an effective line. But do law students today even know what "speed dial" is? Most youths have never actually dialed a phone number on a touch tone phone, let alone a rotary phone. They all grew up with address books on their smartphones, assuming they even make phone calls. Students today have no idea why you would need a button to dial a particular phone number quickly. There is a risk to using references to technology, as those references pass. Indeed, I think the reference is speed dial is at least a decade past due.
Relatedly, I used the phrase "Rolodex" with students. I got blank stares. I was recently at a hotel with my young kids, who were playing with the phone in the room. I told them to "hang up" the phone. They had no idea what I was asking them to do. Like a clothes hanger? It has been a long time since a phone was hanging on a receiver.
Popular references seldom age well.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Federal enclaves, false alarms, and pseudonymous lawsuits.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
At The Unpopulist, IJ's Anthony Sanders digs into the Supreme Court's inequitable evisceration of universal injunctions.
This week on the Short Circuit podcast: Is yoga speech? And what's a scrivener's error?
On the latest episode of Unpublished Opinions, IJ's roundtable podcast: Things get heated when opening the Bluebook, secrets are dished about dictionaries, and the team ponder what it's all about when it comes to public interest law.
- Man with two Ohio felony convictions from the early 1990s turns his life around, gets a Ph.D., obtains a security clearance, and eventually receives a pardon from the Ohio governor, which allows his conviction to be sealed. He applies for a job with the FDIC, which rejects him when he informs them about his sealed conviction. Dr. John Doe then files a pseudonymous lawsuit against the FDIC, challenging its blanket ban on hiring felons. D.C. Circuit: But he cannot do so anonymously.
- Proxy advisory firms give recommendations to institutional investors on how they should vote on shareholder governance proposals. In 2019, the SEC starts treating these recommendations as "solicitations," subjecting advisory firms to a slew of additional regulations. D.C. Circuit: Which is wrong. If anyone is soliciting here, it's the investors soliciting opinions from the firms, not the firms soliciting votes from the investors. Read More
Friday Open Thread
What's on your mind?
Writings on the Declaration of Independence and the American Revolution
Links to some of my previous writings on these topics, which remain relevant today.
Over the years, I have written various posts and articles on the American Revolution and the ideals of the Declaration of Independence. Some have obvious continuing relevance to such issues as identity politics, nationalism, immigration, the role of slavery in American history, and more.
This post is an expansion of last year's similar compendium.
I hope the links are useful, and stir reflection on the principles of the Declaration. Unless otherwise noted, all of these pieces were published as posts on the Volokh Conspiracy blog. I put them in chronological order:
"The Declaration of Independence and the Case for Non-Ethnic Secession," July 4, 2009.
"The Declaration of Independence and the Case for a Polity Based on Universal Principles," July 4, 2017.
"The Universalist Principles of the Declaration of Independence," July 4, 2019. Why it matters that the Declaration elevates universal liberal principles over racial, ethnic, and cultural particularism.
"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding claims - advanced by critics on both right and left - that the Revolution did more harm than good.
"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. I think Douglass's speech may be the greatest-ever Fourth of July oration.
"Juneteenth and the Universalist Principles of the American Revolution," June 19, 2021. Why there is no inconsistency in celebrating both July 4 and the abolition of slavery. Indeed, the two are mutually reinforcing.
"Immigration and the Principles of the Declaration of Independence," July 4, 2021. This piece explains why the ideals of the Declaration and the Founding require free migration rights.
"Juneteenth Celebrates a Great American Achievement," June 19, 2023. An extension of some of the key points made in my 2021 Juneteenth post, linked above.
"The Declaration of Independence Promotes Individual Liberty More than Collective Self-Determination," July 4, 2023. The "liberty" the Declaration advocates is more about individual freedom than the power of majorities to rule over the rest of society, or the power of ethnic groups to rule "their" territory.
"The Case Against Nationalism," National Affairs, Winter 2024 (with Alex Nowrasteh). This article is a more general critique of nationalism. But it includes a section explaining why nationalism is inimical to the ideals of the Declaration and the Founding.
"Trump vs. the Declaration of Independence," July 4, 2025. Several items on the Declaration of Independence list of grievances against George III also apply to Trump today, most notably on immigration, trade, and deportation without due process. Like King George, he is "unfit to be the ruler of a free people."
Trump vs. the Declaration of Independence
Several of the items on the Declaration's list of grievances against King George III also apply to Donald Trump today.
Today is July 4, and we appropriately celebrate the Declaration of Independence. The Declaration is best known for its ringing affirmation of the rights to "Life, Liberty and the pursuit of Happiness." But it also contains a long list of grievances against King George III, by which the signers justified their decision to break from Britain. Sadly, many of these are relevant to Donald Trump's abuses of power today:
"He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."
As I describe here, this wasn't just a matter of protecting the American colonies' supposed right to control immigration policy themselves. It was also about the universal human rights of would-be migrants to choose where they want to live. Many of the leaders of the American Revolution saw the new nation as a refuge for the oppressed of the world. In his famous General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated 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."
Trump's policies are utterly at odds with these principles. He has launched a massive assault on nearly every type of legal migration, including trying to bar virtually all refugees (except white South African Afrikaners), closing the door to people fleeing communist oppression, deporting Iranian Christians fleeing radical Islamist persecution, stripping legal status from Afghans who fled the Taliban (including many who aided the US during the war), and more.
For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent
Tariffs are, obviously, a type of tax. Trump is using bogus invocations of emergency powers to impose massive tariffs that exceed anything seen since the Great Depression. And he is doing so without anything approaching proper congressional authorization. His abuses in this regard are reminiscent of the monarchical abuses of King Charles I, which helped lead to the English Civil War, and greatly influenced the Founding Fathers in their efforts to curb executive authority over taxation and trade.
"For transporting us beyond Seas to be tried for pretended offences"
Trump is using the Alien Enemies Act of 1798 to "transport" hundreds of immigrants to imprisonment in El Salvador, with no due process whatsoever. In addition to illegally invoking a wartime power at a time where there is no war or other similar conflict, this is a blatant violation of constitutional due process. Moreover, the vast majority of the men deported to imprisonment have no criminal record at all, and most entered the US legally.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
Modern Americans have largely lost Founding-era suspicion of standing armies, perhaps for good reason. We have had a large standing army in times of peace for many decades, and the legislature has supported it. But Trump has gone further than that, and illegally federalized the National Guard for domestic law enforcement. A trial court rightly struck it down. That decision was overruled by a misguided appellate decision, but only because of excessive deference to the executive's dubious and pretextual factual claims (the appellate court did still reject Trump's claims that he has unreviewable authority). Since then, Trump has gone a step further and illegally used the military for drug enforcement.
"He has excited domestic insurrections amongst us…"
Trump incited the January 6, 2021 attack on the Capitol, which was most definitely an "insurrection" (see also my more detailed discussion in this article). And, by the way, the Supreme Court's decision in Trump v. Anderson did not exonerate Trump on this point. The justices ruled (wrongly) that state governments cannot enforce Section 3 of the Fourteenth Amendment against would-be federal officeholders absent specific congressional legislation authorizing them to do so. They chose not to address the insurrection issue.
This part of the Declaration isn't one of my favorites. The "domestic insurrections" the Declaration complains about include British efforts to enlist black slaves against the American rebels (though it also probably was referring to recruitment of white Loyalists). It was hypocritical of the rebels to condemn the freeing of slaves to engage in "insurrection" against them even as they themselves rebelled against Britain due to lesser injustices than slavery.
That said, the insurrection Trump incited had no justification comparable to the wrongs that precipitated slave revolts or the revolution against Britain. He was inciting violence for a blatantly unjust cause.
Trump hasn't - so far - replicated all the grievances listed in the Declaration of Independence. But he has imitated enough of them to be well worthy of condemnation. The Declaration states the list of grievance against George III proves he is "unfit to be the ruler of a free people." The same is true of Trump.
Open Meeting Law Meets University Encampment Policies
From a June 27 Massachusetts AG opinion:
We find the facts as follows. Like many college campuses, UMass Amherst was the site of demonstrations during the 2023-2024 academic year, stemming from events in the Middle East. On April 29, demonstrators established an encampment, including tents, on campus property and made certain demands of the University. Construction of the encampment violated UMass Amherst Regulations for Use of Property, Trustee Doc. T90-079 (the "Land Use Policy"), which required pre-authorization of any structures.
Chancellor Reyes decided on April 29 that the encampment would not be allowed to remain on University property; protesters who refused to remove encampment structures after several explicit warnings would be subject to arrest for criminal trespass. Among the reasons for Chancellor Reyes's decision was his concern that tolerance of an encampment established in violation of the Land Use Policy would set an undesirable precedent in the event of future protests. Following discussions with University administration, demonstrators voluntarily removed the encampment on April 30.
At noon on May 7, demonstrators were observed unloading pallets onto the South Lawn of the UMass Amherst campus, again in violation of the University's Land Use Policy, to construct a second encampment. After the demonstrators ignored a notification that structures and tents were not allowed on the South Lawn, staff of the Demonstration Response and Safety Team ("DRST") entered the newly established encampment and asked them to disassemble a wooden barrier being constructed. DRST issued two additional warnings that day. As part of the third warning, demonstrators were advised of steps the University was taking in response to their demands and were further told that although they had the right to express their views, "you do not have a right to place structures outside the limits of the Land Use Policy. You can demonstrate in this space but you must dismantle and remove your tents and structures now."
The demonstrators, which included individuals who were not students or staff of UMass, did not remove the tents and structures following this third and final warning. That night, and into the early morning hours of May 8, the UMass Police Department, assisted by the Massachusetts State Police and other agencies, cleared the encampment and arrested 132 people, including 70 UMass Amherst students and six members of the UMass Amherst faculty.
Judge Denies Pseudonymity, Because Plaintiff's Sensitive Personal Information Wouldn't Likely Emerge in the Case—But then Disclosed That Information In Its Order
"[T]he heart of the district court's analysis in denying Brooks's initial motion was its conclusion that the litigation would not require Brooks to disclose the information that he had filed under seal. But, in some respects, the district court's order did just that—it put the information that Brooks had filed under seal on the public docket."
From Eleventh Circuit Judge Andrew Brasher, joined by Judges Kevin Newsom and Ed Carnes, in Wednesday's Brooks v. City of Southside:
Brooks [a pseudonym] alleged violations of the United States Constitution and Alabama state law related to his arrest and prosecution…. The district court allowed Brooks to file a motion under seal to explain why he should be allowed to proceed anonymously. Brooks did so, and he revealed sensitive, personal information that he thought would come up during the litigation.
The district court discussed the sensitive information in Brooks's filing in a public order and then gave him the choice of filing a non-anonymous complaint or dropping his suit. Brooks asked the district court to reconsider its order and to seal it, arguing that the district court's public order undermined its conclusion that the information he filed under seal would not be disclosed in the litigation. The district court declined to reconsider its order, but it granted Brooks's request to seal it.
The district court did not abuse its discretion in denying Brooks's initial request to proceed anonymously. The district court properly invoked our presumption against anonymous pleading, and it applied the right test from our precedents. The district court reasonably concluded that the litigation would not require Brooks to disclose information of the utmost intimacy or admit that he intended to engage in illegal conduct.
But we believe the district court abused its direction in denying Brooks's reconsideration motion without explaining how the disclosure of his allegedly sensitive information affected its analysis. The district court's ruling on Brooks's initial anonymity motion was based, in large part, on the premise that Brooks would not be compelled to disclose in the litigation the sensitive information that he had filed under seal. But, after inviting Brooks to file that same information under seal, the district court's public order did disclose that sensitive information on the public docket. The district court did not explain how that change in circumstances played into its decision, and we cannot conduct that analysis in the first instance. Accordingly, we vacate the district court's order and remand for further proceedings….
Today in Supreme Court History: July 4, 1776
7/4/1776: Declaration of Independence is signed.
What the Declaration of Independence Said and Meant
It officially adopted the American Theory of Government: First Come Rights; Then Comes Government to Secure These Rights.
[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government. It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation's Founding.]
The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.
The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted—as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:
All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.
Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:
The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that "all men are endowed by their Creator with certain unalienable rights—and that among these are life, liberty, and the pursuit of happiness.
The Declaration was much relied upon by Abraham Lincoln and many others before him:
Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech
From the Eleventh Circuit, a reminder that First Amendment protections against government employer action are much weaker than the protections against the government as sovereign (especially, but not only, when the speech is also "disrespectful, demeaning, rude, and insulting").
From Judge Kevin Newsom's opinion today in Labriola v. Miami-Dade County, joined by Judges Robin Rosenbaum and Stanley Marcus:
John Labriola was a media aide for the Miami-Dade Board of County Commissioners. In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity.
In his piece, Labriola used inflammatory language to describe the LGBT people whom the bill sought to protect. He warned small-business owners "who resist surrendering their consciences to the new 'tranny tyranny'" that, if the bill was passed, "[i]t's going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." So too, Labriola warned local governments of what was to come: "No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns."
Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola's views represented the County's. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a "slur-laden tirade against transgender people." At that point, the County received a barrage of phone calls from concerned residents.
Don't Plead History and Bruen in Cruel and Unusual Punishment Challenge to Long Prison Sentence for Rape, When Rape Was Historically a Capital Crime
From yesterday's decision of the Iowa court of Appeals in Cue v. State, written by Judge Tyler Buller and joined by Judges Julie Schumacher and John Sandy:
Cue's … application for postconviction relief … cited New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), to claim that Iowa's mandatory-minimum-sentencing scheme for certain class "B" felonies (seemingly as applied and on its face) was incompatible with our historical traditions and therefore cruel and unusual punishment. The district court denied relief, finding Cue cited "absolutely no authority to support his proposition that the Bruen test should be profoundly expanded to include sentencing schemes for sex offenses." …
Cue pled guilty in 2019 to four counts of sexual abuse in the second degree, class "B" felonies in violation of Iowa Code section 709.3(1)(b) (2017), for raping and molesting his minor children over the course of years. The sentencing court ran half of the counts concurrent and half consecutive, amounting to two consecutive twenty-five-year prison sentences, each of which has its own 70% mandatory minimum. We affirmed on direct appeal….
Georgia Trial Court Cites Likely AI-Hallucinated Cases (Possibly Borrowed from Party's Filing)
There have likely been hundreds of filings with AI-hallucinated citations in American courts, but this is the first time I've seen a court note that a judge had included such a citation.
From Monday's decision in Shahid v. Esaam, by Judge Jeffrey Watkins (Ga. Ct. App.), joined by Judges Anne Barnes and Trenton Brown; note that the trial court's order was apparently a proposed order prepared by a lawyer (in many state courts, it's common for judges to rely on lawyers to prepare such orders):
After the trial court entered a final judgment and decree of divorce, Nimat Shahid ("Wife") filed a petition to reopen the case and set aside the final judgment, arguing that service by publication was improper. The trial court denied the motion, using an order that relied upon non-existent case law. For the reasons discussed below, we vacate the order and remand for the trial court to hold a new hearing on Wife's petition. We also levy a frivolous motion penalty against Diana Lynch, the attorney for Appellee Sufyan Esaam ("Husband")….
Wife points out in her brief that the trial court relied on two fictitious cases in its order denying her petition, and she argues that the order is therefore, "void on its face." … In his Appellee's Brief, Husband does not respond to Wife's assertion that the trial court's order relied on bogus case law. Husband's attorney, Diana Lynch, relies on four cases in this division, two of which appear to be fictitious, possibly "hallucinations" made up by generative-artificial intelligence ("AI"), and the other two have nothing to do with the proposition stated in the Brief.
Undeterred by Wife's argument that the order (which appears to have been prepared by Husband's attorney, Diana Lynch) is "void on its face" because it relies on two non-existent cases, Husband cites to 11 additional cites in response that are either hallucinated or have nothing to do with the propositions for which they are cited. Appellee's Brief further adds insult to injury by requesting "Attorney's Fees on Appeal" and supports this "request" with one of the new hallucinated cases.
We are troubled by the citation of bogus cases in the trial court's order. As the reviewing court, we make no findings of fact as to how this impropriety occurred, observing only that the order purports to have been prepared by Husband's attorney, Diana Lynch. We further note that Lynch had cited the two fictitious cases that made it into the trial court's order in Husband's response to the petition to reopen, and she cited additional fake cases both in that Response and in the Appellee's Brief filed in this Court….
NIMBYism Stifles Housing Construction in Previous Growth Areas
In recent years, exclusionary zoning and other regulatory restrictions have begun to block housing construction in areas where it was once relatively easy.
In a recent article in the Atlantic, Rogé Karma, describes how NIMBY ("not in my backyard") forces have been increasingly stifling housing construction many areas - including Sun Belt cities - where it was previously relatively easy:
Something is happening in the housing market that really shouldn't be. Everyone familiar with America's affordability crisis knows that it is most acute in ultra-progressive coastal cities in heavily Democratic states. And yet, home prices have been rising most sharply in the exact places that have long served as a refuge for Americans fed up with the spiraling cost of living. Over the past decade, the median home price has increased by 134 percent in Phoenix, 133 percent in Miami, 129 percent in Atlanta, and 99 percent in Dallas. (Over that same stretch, prices in New York, San Francisco, and Los Angeles have increased by about 75 percent, 76 percent, and 97 percent, respectively).
This trend could prove disastrous. For much of the past half century, suburban sprawl across the Sun Belt was a kind of pressure-release valve for the housing market. People who couldn't afford to live in expensive cities had other, cheaper places to go. Now even the affordable alternatives are on track to become out of reach for a critical mass of Americans.
The trend also presents a mystery. According to expert consensus, anti-growth liberals have imposed excessive regulations that made building enough homes impossible. The housing crisis has thus become synonymous with feckless blue-state governance. So how can prices now be rising so fast in red and purple states known for their loose regulations?
As Karma describes later in the article, the main cause of the problem is the growth of exclusionary zoning and other regulatory restrictions on construction in areas where the were previously relatively lax. He relies in part on an important new new National Bureau of Economic Research study by leading housing economists Edward Glaeser and Joseph Gyourko, which I analyzed here.
The trend is not entirely uniform, and there are bright spots. As Karma notes, cities like Raleigh, NC have enacted zoning reforms curbing NIMBYism. The same is true of Austin, Texas. The Texas state legislature recently enacted valuable statewide reforms., and California enacted a useful YIMBY law just yesterday.
I am also a little skeptical of the claim - advanced in Karma's article - that increases in the proportion of wealthy and highly educated residents in an area necessarily boost NIMBYism. Survey data on attitudes towards NIMBYism and housing construction is equivocal, and much depends on how questions are framed. Moreover, much survey data does not find a significant difference in attitudes between affluent homeowners on the one hand and renters on the other. Economic ignorance is often a bigger driver of support for exclusionary zoning than narrow self-interest by homeowners. Indeed, many current homeowners actually have much to gain from curbing exclusionary zoning and other NIMBY excesses.
That said, it is also true that studies find that local NIMBY activists are disproportionately affluent, white, and relatively older homeowners. Such activists can be quite effective in blocking housing projects even if their views are not representative of a general divide between, say, homeowners and renters. Katherine Levine Einstein and her coauthors demonstrate this in detail in their important book Neighborhood Defenders.
The good news is much can be done to curb NIMBYism. Statewide legislation can abolish or at least limit the zoning rules and other regulatory restrictions NIMBYs rely on. In a 2024 Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning and other similar restrictions that greatly limit housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them. See also our much shorter non-academic article in the Atlantic. State-constitutional litigation may be an alternative path to success, along with state constitutional amendments (which in many states are much easier to enact than amendments to the federal Constitution).
The spread of NIMBYism is not inevitable. It can even be reversed in places where it has previously taken root. But we YIMBYs need to do a better job of using the various tools available to us.
Interesting Rule 11 / Incorrect Allegation Question in One of the Sean Combs Civil Cases
Can plaintiffs be sanctioned because they "refused to voluntarily dismiss [a defendant] after reviewing the additional information from his cell phone and bank records" that seems to exonerate him?
From yesterday's notice in Parham v. Combs from Judge Rita Lin (N.D. Cal.):
The Court requests that the parties be prepared to provide their views on the following at the hearing on Defendant Drew Desbordes' motion for sanctions, set for July 8, 2025, at 10:00 a.m., in Courtroom 15 at the San Francisco Courthouse:
Having considered the motion for sanctions and associated evidence, the Court is tentatively of the view that Plaintiffs' allegations pertaining to Desbordes now lack a factual basis. From Desbordes' phone and bank records, it appears virtually certain that he was in Georgia, not in Orinda, California, at the time of the alleged assault in March 2018.
However, when Plaintiffs added Desbordes to this lawsuit, there did appear to be a reasonable factual basis to name him. Before Plaintiffs sued Desbordes, two individuals—Jane Doe and John Doe—contacted Ms. Mitchell, offering to provide information related to the case. The individuals informed Ms. Mitchell that Desbordes was present at the time of the assault. To confirm this fact, Ms. Mitchell presented Plaintiff Parham with a "photo lineup," during which Parham identified Desbordes as one of the individuals who participated in the alleged assault. Parham did not know the other two individuals or communicate with them prior to her identification.
"A Question of Remedy, not Redressability"
The DC district court issues an important decision in RAICES v Noem - the first in the new post-CASA legal universe
Proclamation 10888, issued by the President on his first day in office, purported to:
"prevent anyone who crosses the southern border of the United States at any place other than a designated port of entry, as well as anyone who enters anywhere else (including at a designated port of entry) without a visa or without extensive medical information, criminal history records, and other background records, from applying for asylum."
Plaintiffs challenged the Proclamation on statutory grounds, alleging that it violates a number of statutes governing the granting or withholding of asylum, and, "most fundamentally," that the President is not authorized to unilaterally reform the Congressionally-structured asylum system.[1]
Yesterday, the DC district court, in RAICES v. Noem, granted summary judgment to the plaintiffs on all claims, vacated the Proclamation, and entered an injunction "precluding the Agency Defendants[2] from implementing the Proclamation."[3] Read More
Court Rejects Lawsuit Claiming Site Falsely Attributed Allegedly Anti-Muslim Statements to Plaintiff
From Goddard v. Interserver.Net, decided yesterday by Judge Evelyn Padin (D.N.J.):
Plaintiff is a California-based technology professional …. Plaintiff is also Jewish. The crux of Plaintiff's Complaint is that Defendants, through the website spotlighthate.com, "host, maintain, and refuse to remove [information] that falsely portrays Plaintiff as an anti-Muslim bigot and falsely attributes numerous inflammatory statements to him that he never made." In addition to attributing numerous statements concerning the Israeli-Palestinian conflict to Plaintiff, the website labels Plaintiff an "Anti-Muslim Bigot" and "Islamophobe," which has damaged his reputation; Plaintiff alleges he "has never made any of these statements, harbors no such views, and strongly condemns any form of bigotry, hatred, or discrimination." Spotlighthate.com also uses a photograph of Plaintiff without his authorization….
Plaintiff sent a detailed "DMCA takedown notice and defamation complaint" to Defendants in which he requested the immediate removal of the defamatory content and unauthorized use of his photograph. A similar request Plaintiff made to X.com was granted. However, Defendants have not removed the defamatory content or responded to Plaintiff's outreach.
The court rejected plaintiff's claims. It began with the copyright infringement claim, and held that plaintiff hadn't adequately alleged a registered copyright, which is required for a copyright lawsuit to be filed. (Unregistered works are protected from infringement, but they need to be registered before the lawsuit is filed, even if they weren't registered when the alleged infringement happened.) It then went on:
S. Ct. Will Decide: Can States Define Sports Team Eligibility by "Biological Sex Determined at Birth"?
That's the question presented in two companion cases that the Court agreed to hear, Little v. Hecox and West Virginia v. B.P.J. Note an important difference between this case and Skrmetti, which upheld state limits on certain kinds of youth gender medicine: In Skrmetti, the majority held that the state laws didn't discriminate based on sex, but here it's clear that the underlying law does discriminate based on sex, because it provides for separate women's sports teams. The question is whether the state may choose to define sex based on the particular biological criteria that it has selected.
An excerpt from the Ninth Circuit opinion in Little v. Hecox, which the Court will review:
Because the Act subjects only students who wish to participate in female athletic competitions to an intrusive sex verification process and categorically bans transgender girls and women at all levels from competing on "female[ ], women, or girls" teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, we affirm the district court's grant of preliminary injunctive relief to Lindsay Hecox….
We recognize that, after decades of women being denied opportunities to meaningfully participate in athletics in this country, many cisgender women athletes reasonably fear being shut out of competition because of transgender athletes who "retain an insurmountable athletic advantage over cisgender women." We also recognize that athletic participation confers on students not just an opportunity to win championships and scholarships, but also the benefits of shared community, teamwork, leadership, and discipline. Excluding transgender youth from sports necessarily means that some transgender youth will be denied those educational benefits.
However, we need not and do not decide the larger question of whether any restriction on transgender participation in sports violates equal protection. Heightened scrutiny analysis is an extraordinarily fact-bound test, and today we simply decide the narrow question of whether the district court, on the record before it, abused its discretion in finding that Lindsay was likely to succeed on the merits of her equal protection claim. Because it did not, we affirm the district court's order granting preliminary injunctive relief as applied to Lindsay, vacate the injunction as applied to non-parties, and remand to the district court to address the scope and clarity of the injunction.
Likewise, here's the introduction to the Fourth Circuit opinion in West Virginia v. B.P.J.:
