The Volokh Conspiracy

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

From Trump v. Dow Jones & Co., decided Wednesday by Judge Darrin Gayles (S.D. Fla.):

On July 18, 2025, President Donald J. Trump filed his Complaint … for defamation based on an article in the Wall Street Journal … linking President Trump to convicted sex offender Jeffrey Epstein. On April 13, 2026, on Defendants' motion, the Court dismissed the Complaint without prejudice based on President Trump's failure to plausibly allege that Defendants acted with actual malice …. [See this post on the dismissal. -EV]

On April 14, 2026, President Trump filed the Motion, requesting leave to conduct limited discovery on (1) "[h]ow each Defendant acted with actual malice"; (2) "[h]ow Defendants purposefully avoided the truth of the statements at issue"; and (3) "[h]ow Defendants allegedly obtained the letter and supposedly verified its contents, including Plaintiff's signature." …

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Yesterday evening, as expected, the Supreme Court granted mifepristone manufacturers' requests for a stay of an order of the U.S. Court of Appeals for the Fifth Circuit blocking a 2023 Food and Drug Administration regulation allowing doctors to prescribe mifepristone as an abortifacient via telemedicine. The order was issued shortly after the expiration of an administrative stay entered, and then extended, by Justice Alito. Justices Thomas and Alito each dissented. There are no other recorded votes.

As is common in such situations, the order in Danco Laboratories v. Louisiana stays that of the lower court pending the disposition of the appeal and any subsequent petition for certiorari. This means the case will find its way back to the Court, perhaps even later next term.

The order was unsurprising because, as I noted here, the Fifth Circuit's order blocked the implementation of a federal regulation on questionable grounds. Louisiana's suit is based upon an aggressive and somewhat speculative theory of standing and the Fifth Circuit's order relies upon faulty reasoning from a prior, since-vacated, opinion from the prior round of mifepristone litigation. Thus there were at least two stay considerations weighing strongly in the manufacturers' favor: The Fifth Circuit had blocked a federal regulation and the manufacturers have a strong argument they are likely to prevail on the merits.

That said, Justices Thomas and Alito make some weighty points in their defense, and the issuance of a stay here was never certain. As I noted last week, while an army of amici filed briefs with the Court, the federal government did not. The federal government neither sought a stay from the Court nor filed a brief supporting the manufacturers' defense of the FDA's rule. So while blocking a regulation may presumptively constitute irreparable harm to the federal government, it is not clear that such concerns should carry much weight if the federal government does not raise them. The federal government is not obligated to defend every agency regulation at every turn, even against questionable judgments. (And, for what is worth, this is not the first time this has happened with the FDA. For example, the agency dropped its appeal to American Association of Pediatrics v. FDA, in which a district court accepted a questionable standing claim and forced the agency to regulate vaping products more aggressively.)

Absent an FDA filing, the manufacturers had to establish irreparable harm on their own, and this is where Justices Thomas and Alito found their stay requests wanting. Neither found the manufacturers' concerns about reduced mifepristone sales particularly compelling. Nor was either moved by concerns that the Fifth Circuit order would make it more difficult to obtain mifepristone in jurisdictions that (unlike Louisiana) allow its use.

As Justice Thomas noted, federal law (the Comstock Act) already prohibits the distribution of abortifacients via the mail. Therefore, he reasoned, the manufacturers were effectively complaining that the Fifth Circuit order would deprive them of "lost profits from their criminal enterprise." I take Justice Thomas' point in the Comstock Act, which remains on the books even if it is never enforced, but the FDA order at issue is not limited to mail-order prescriptions.

Justice Alito made some similar points, while also stressing that mifepristone manufacturers are well aware that the FDA's 2023 order facilitates the provision of mifepristone in jurisdictions where its use to terminate pregnancies is illegal, that the FDA has acknowledged concerns about the analyses upon which the 2023 regulation was based, and that the manufacturers' claim of irreparable harm is undermined by the fact that the FDA has given no indication it would take any enforcement action against manufacturers were the 2023 rule stayed, and it could not be forced to take such actions by federal courts. Prescribing doctors and potential users of mifepristone may be affected, but neither were parties to the case.

Justice Alito's dissent validates Louisiana's concern that it's post-Dobbs ability to enforce its own abortion laws has been undermined by "certain medical providers, private organizations, and States that abhor" its laws. No doubt this is true. If other states and the federal government allow the distribution of something, whether mifepristone or marijuana, other states may have a more difficult time enforcing their own prohibitions. The federal government has the unquestioned power to limit the distribution of mifepristone into states where its use is barred, but it has chosen not to, and the FDA is not required to base its regulations on such concerns. [As for what other states can or cannot do, I recommend Professor Steve Sachs' comments at this Federalist Society panel on abortion law post-Dobbs]

Justice Alito also paused to note that the Court's issuance of an "unreasoned order" granting stays of a lower court action, no doubt to tweak those (both on and off the Court) who routinely complain about "shadow docket" orders issued without explanation (and, in this case, on behalf of private corporations too). He can be forgiven for thinking that many complaints about "shadow docket" orders are driven as much or more by disagreements on the merits as they are concerns about process.

From Bisogno v. Libertella, decided two months ago by the New York Appellate Division, Justices Francesca E. Connolly, Paul Wooten, Helen Voutsinas, and James P. McCormack:

On May 9, 2013, the plaintiff and the defendants appeared for a hearing in the Family Court, Richmond County, relating to a child support proceeding between the defendant John Libertella (hereinafter John) and his former wife. The plaintiff, a lawyer, appeared on behalf of his sister-in-law, John's former wife. John was accompanied by his father, the defendant Giovanni Libertella. As the parties left the hearing, they were involved in a verbal altercation, which John video-recorded on his phone. The defendants told a court officer that the plaintiff punched John in the face and that John wanted the police called. The police were called, and the plaintiff was arrested.

In November 2013, the District Attorney's office dismissed the charges against the plaintiff. Multiple news outlets reported on the altercation and the plaintiff's subsequent arrest.

The plaintiff commenced this action against the defendants asserting, inter alia, causes of action sounding in defamation per se, false arrest, and malicious prosecution. After a trial, the jury returned a verdict in favor of the plaintiff and against both defendants on the cause of action alleging defamation per se and against John on the causes of action alleging false arrest and malicious prosecution….

The court upheld the finding of liability:

Free Speech Libel

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From Robinson v. Damphousse, decided Wednesday by Judge Alan Albright (W.D. Tex.):

Plaintiff Dr. Idris Robinson is a non-tenured, but tenure track Assistant Professor of Philosophy at Texas State University. On June 29, 2024, Dr. Robinson delivered a speech in Asheville, North Carolina titled "Strategic Lessons from the Palestinian Resistance" ("Asheville Speech"). Professor Robinson in no way affiliated the talk with Texas State University. During the Asheville Speech, audience members who disagreed with Dr. Robinson's views attempted to livestream the event. A scuffle broke out. The police report documenting the incident does not identify Dr. Robinson as a suspect or witness. Defendants do not contend that Dr. Robinson incited or encouraged the violence.

Dr. Robinson resumed teaching in the fall without incident. After the 2024 fall semester, and again in March 2025, Dr. Robinson received excellent performance reviews. ECF No. 1-3 at 74 ("Dr. Robinson is a fantastic colleague, excellent in all areas of review. Worthy of Merit."); id. at 109 (2024-2025 3rd Year Tenure-Track Reappointment) (noting that the Associate Provost's Action Recommendation is to reappoint Dr. Robinson for one-year and that Dr. Robinson is "making good progress towards tenure").

On June 5, 2025, individuals who disagreed with the content of Dr. Robinson's Asheville Speech began calling for Dr. Robinson's firing on Instagram. That day, due to the posts, Texas State University began receiving complaints about Dr. Robinson. One day later, Dr. Robinson was placed on administrative leave due to "multiple complaints and allegations regarding an incident that occurred in the summer of 2024." In July 2025, Dr. Robinson was informed that "the decision has been reached not to extend your contract beyond the 2025-2026 academic year…." …

Dr. Robinson contends the University's non-renewal decision was due to the content of the Asheville Speech, which Dr. Robinson contends violates his First Amendment Rights. To date, Defendants have not offered any other reason for Dr. Robinson's non-renewal, nor do Defendants refute Dr. Robinson's contention that he was not renewed due to the Asheville Speech….

The court issued a preliminary injunction requiring that Robinson be reinstated; an excerpt from the analysis:

Free Speech Campus Free Speech

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I am happy to pass along a guest post from Professors Bruce A. Green and Rebecca Roiphe, who are experts in the ethical standards for prosecutors. They wrote about a recent case from Santa Clara, California, in which a judge disqualified District Attorney Jeff Rosen from prosecuting pro-Palestinian protestors who occupied the Stanford University.

When New York Attorney General Letitia James was campaigning for office, she called Donald Trump an "illegitimate president" and vowed to investigate him, his family, and anyone in his orbit. New York District Attorney Alvin Bragg was less explicit. While he emphasized his experience investigating Trump's family and promised to continue his predecessor's investigation into Trump, he also stated that he would follow the facts and law. Courts allowed James and Bragg to oversee cases against Trump, despite the fact that Trump himself along with some observers used these statements to claim that they were politically motivated.

In contrast, a California state judge recently concluded that an elected prosecutor went too far in campaigning for office and could no longer be trusted to make prosecutorial decisions free of political bias. On May 7, a Santa Clara County judge disqualified District Attorney Jeff Rosen and his entire office from prosecuting pro-Palestinian protestors who occupied the Stanford University President's office in 2024, citing campaign statements Rosen made the previous December while the case was pending. Specifically, Rosen proclaimed his commitment to the State of Israel and the Jewish people and included a link to information about the prosecution. According to reporting, the judge found it problematic that Rosen had referred to the protests as antisemitic even though the individuals were not charged with hate crimes.

Local prosecutors are often elected, so their political engagement is unavoidable. Although prosecutors are not expected to be as disinterested as judges, they are not supposed to have a political axe to grind when they decide whom to investigate and prosecute. This raises the question of how elected prosecutors can properly campaign for office without jeopardizing public faith in high profile prosecutions. What sort of statements provides appropriate information to the electorate and which cross a line? Which campaign messages warrant disqualification because the prosecutor will appear to have prejudged the case before reviewing all the evidence? The law is unsettled and varies among different jurisdictions. There are, nonetheless, certain principles that ought to guide elected prosecutors, allowing them to communicate their priorities to the public without expressing prejudice. When they come close to the line, courts should use disqualification sparingly, reserving it for cases of clear bias.

Elected prosecutors are expected to implement the priorities and values of the community, and so voters are entitled to know where candidates stand on certain issues. For example, D.A. Rosen's statements about fighting antisemitism are not only permissible but also appropriate. If the community wants its elected prosecutor to protect the Jewish community, they know that Rosen is on it. But commitments to prosecute particular cases and pursue particular individuals are problematic because they might reflect actual bias and undermine public faith in the ultimate prosecutions. It was unclear whether the link on Rosen's campaign page or his fundraiser emails crossed this line, and the trial judge had considerable discretion to make that call based on the facts presented by both sides.

Courts rarely find that prosecutors' statements on the campaign trail are such obvious expressions of bias against a particular individual that the prosecutor cannot be trusted to make decisions in the case based on the facts and the law. Unlike other officials, who represent their constituency's policy interests, prosecutors have a duty to seek justice. While this may seem like a vague mandate, it is not meaningless. Prosecutors are required to protect the innocent, prosecute the guilty, treat similar cases similarly, and seek proportionate punishment. Sometimes, this requires resisting, not complying with, popular sentiment. Courts generally assume prosecutors will abide by this obligation even in high-profile or politically charged cases, but they police the outer limits.

Campaign statements that reflect a willingness to cave to public pressure, or to compromise these professional obligations for popularity, are troubling. Even if the prosecutor would act independently once elected, these sorts of statements might well lead the public to lose faith in the elected prosecutor's decision-making. Even if we take Alvin Bragg at his word that he would follow the facts and law, his public statements touting his past cases against Trump and his family might give the public pause. They provided fodder to Trump's sympathizers, including in Congress, who questioned the validity of the charges Bragg's office brought against Trump. The cost to the legitimacy of the system is itself concerning, even if prosecutors live up to their professional obligations.

The question remains whether trial courts can and should do anything to address this problem. As we have previously discussed, courts have varying degrees of discretion to disqualify elected prosecutors based on conflicts of interest. In Texas, a trial judge may disqualify a prosecutor only if the "conflict rises to the level of a due-process violation," whereas California courts take a much broader view of their power. But even in California, courts are hesitant to disqualify an elected prosecutor, thereby depriving the electorate of its chosen representative. All prosecutors have beliefs and personal ambitions, and courts can do little to address these even if they could interfere with impartiality. For example, a court would likely disqualify a prosecutor who obtained a book or movie contract regarding a pending case but can do little about prosecutors' general desire to be associated with a high-profile case and to enter the public spotlight.

If the prosecutor in the Santa Clara case had done nothing more than vow to oppose antisemitism and to protect the Jewish community from criminal attack, there would have been no plausible ground to disqualify him. Prosecutors, like judges, are expected to be able to put aside even strongly felt ideological or personal beliefs to pursue justice in individual cases. The fact that Rosen is personally committed to the state of Israel, that he equates anti-Zionism with antisemitism, or antisemitism with anti-Americanism, are all beside the point. Our system assumes he can be fair in individual cases, even when they touch on these topics.

To the extent that Rosen's campaign material and fundraiser emails addressed the pending case against the protesters and implied that he had some animus toward the defendants in this case or had prejudged how to handle the case before reviewing the evidence, then the judge's decision to disqualify Rosen would make more sense. The trial court in Rosen's case considered an appellate decision from four years earlier, in which the elected prosecutor of San Luis Obispo was disqualified from prosecuting a Black Lives Matter protester after the prosecutor successfully campaigned based on opposition to that movement. The appellate court upheld the disqualification decision, endorsing the trial judge's observation that while defendants are not "entitled to a prosecutor to which they are politically or socially or ideologically aligned," they are "entitled to a prosecution not clouded by political or personal advantage to the prosecutor." This case is an unusual attempt to rein in political bias, but perhaps reflects a growing desire to protect the legitimacy of prosecutions in the face of growing allegations of weaponization.

The lesson is that candidates for office as a prosecutor, like judges, should keep their own counsel if they have views on pending cases. This may not be easy, as the public often focuses disproportionately on high-profile investigations. Aspiring district attorneys can address the policies implicated in these cases but should otherwise confine themselves to discussing their views of criminal law policy and their approach to prosecution in more general terms. Adhering to these guidelines is especially important as the public grows increasingly skeptical of disinterested prosecution.

5/15/2000: U.S. v. Morrison is decided.

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Enough about the merits of Danco. Let's talk about the formatting. Usually when an opinion has one footnote, it is not numbered. Rather, there is simply an asterisk. But when there are two or more footnotes, they are numbered.

Justice Alito's solo dissent has two footnotes. But they are not numbered. The first footnote is an asterisk and the second footnote is a dagger.

What happened? This is a solo dissent, and there is no majority opinion. It's not likely Alito had to reply to some argument raised by another Justice. Maybe Justice Alito wanted to use a dagger note? I'm sure someone will have an answer here. Please email me!

Randy Barnett and I are nearing completion of the Fifth Edition of our Constitutional Law casebook. We are still waiting for the last batch of cases from June to finalize a few chapters. Our last edition was published in 2021. Needless to say, a lot has changed, though much of the book remains the same. Still, this experience has reinforced the difference between how students are taught constitutional law, and how practitioners see it on the ground.

In the classroom, we read the landmark decisions that changed the law of the land: Bruen laid down a rigorous test to review gun control laws; Dobbs returned the abortion issue to the states; Students for Fair Admission all-but eliminated affirmative action; and so on. Students who read these decisions from 2022 and 2023 might get the sense that constitutional law changed overnight with respect to guns, abortion, and racial preferences. The reality, however, is far different.

Barely a year after Bruen, Rahimi walked back the "analogue" test. Gun laws have remained virtually unchanged. Blue states have allowed shall-issue carry regimes with many obstructions and burdens. Moreover, the Supreme Court has turned away every single case about the scope of sensitive places and the types of arms covered by the Second Amendment. The two cases argued this term (Hemani and Wolford) present fringe issues that will matter little to gun owners.

Ditto for affirmative action. In the wake of SFFA, the Court turned away Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024). This case cleanly presented a challenge to an affirmative action policy at an elite public school that was evading SFFA. Justices Thomas and Alito would have granted cert . Justices Gorsuch, Kavanaugh, and Barrett were silent. As documented in a new Manhattan Institute report, the rates of racial minorities admitted to elite colleges has remained roughly the same, despite doomsday predictions from Harvard and other groups. Remember Justice Kagan's hypothetical about what would happen if zero black students attended Harvard? To my mind, these numbers suggest that universities developed clever ways to evade SFFA, though the data is not clear. I doubt the Supreme Court will re-enter this fray.

The abortion issues is a bit more complex, but the reality is the same. After Dobbs, doctors began sending mifepristone to red states, and blue states enacted shield laws to immunize these doctors. Dobbs held that abortion would now be an issue for the states to decide, however pro-life states are helpless to stop doctors from flooding their states with abortion pills. Indeed, there are more abortions now in red states than before Dobbs. The shield law issue has not yet reached the Court, but I suspect the Court will stay out of it. And, just this evening, the Court once again copped out on mifepristone.

The court, by an ostensible 7-2 vote, granted a stay of the Fifth Circuit in Danco Laboratories v. Louisiana. There is no explanation at all. I am old enough to remember when the Court's liberals complained that unexplained stays should not be granted. But here, Justices Sotomayor, Kagan, and Jackson dutifully joined the order. As did Justices Gorsuch, Kavanaugh, and Barrett. In 2023, I wrote that Justice Barrett only grants relief on the emergency docket when the Fifth Circuit does something conservative. Well, the trend continues.

Why did the Court grant a stay of the reasoned decision by Judge Duncan? Was it due to a lack of state standing? Did the Court find that Louisiana is not likely to win on the merits? Perhaps the Court found that Danco prevailed on the equities to distribute a product that is illegal? Who knows? The Court said nothing at all.

Of course, this might be a rare case where all three Trump appointees voted in the exact fashion Trump wanted. The President clearly does not want to block the shipment of mifepristone. He has been very clear on this from the outset. There have been no Comstock Act prosecutions. The FDA has refused to revisit the Biden-era REMS. The FDA didn't even file a brief in this case! Trump was hoping that the Supreme Court would bail him out, and they did.

The only Justices willing to say anything about the matter were Justices Thomas and Alito. Thomas made the obvious point: the distribution of mifepristone is illegal. How can Danco and Genbiopro "be irreparably harmed by a court order that makes it more difficult for them to commit crimes"? Imagine a gun manufacturer sought an injunction to allow the shipment of their products into a blue state, where it was illegal. Does anyone think the equities would tip in favor of those shipping firearms? Of course not. And really, no need to imagine. I represented Defense Distributed, which was enjoined from putting files on the internet that might be downloaded by someone in a blue states. Do you think the federal judge in Washington was troubled that Defense Distributed lost profits? Come on. Get real.

Justice Alito, as usual, said what needed to be said. Blue states are flouting Dobbs and the Supreme Court will do nothing to stop it.

The Court's unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women's Health Organization, 597 U. S. 215 (2022), which restored the right of each State to decide how to regulate abortions within its borders. Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. See, e.g., La. Rev. Stat. Ann. §40.1061 et seq. But Louisiana's efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana's and seek to undermine their enforcement.

In the past, Justice Kennedy prevent Louisiana from banning abortions within its borders. Now, the government of New York can impose the same undue burden on state sovereignty. Has anything really changed since Dobbs? Justice Kavanaugh's Dobbs concurrence reached out to decide the issue of whether women could travel from red states to blue states. But he missed the most obvious response: mail order abortions. Why travel when you can get the pills sent through the Postal Service?

As for the equities, Louisiana simply seeks to put Danco in the same position it was before the 2023 REMs. They were profitable under the old regime, and can remain profitable.

I will continue to teach Bruen, SFFA, and Dobbs. But students should know the Justices really didn't mean to enforce any of these rulings.

I think we can soon add Kennedy v. Bremerton to this list. Judge Duncan's opinion for the en banc Fifth Circuit faithfully applied the history and tradition test to the Texas Ten Commandments Law. I think the Chief Justice will write the majority opinion, and hold, "Well, we really didn't mean what we said." As I said above, the casebook changes, but constitutional law remains largely the same.

During the first Trump Administration, the federal courts got a crash course in the Emoluments Clauses. Shortly after Trump was sworn in, progressive groups brought suit in New York, Maryland, and the District of Columbia. They argued that foreign and state governments that patronized Trump properties were giving unconstitutional emoluments to President Trump. Seth Barrett Tillman and I filed a host of amicus briefs at the District Court, Circuit Court, and Supreme Court level. However, the plaintiffs never sought a preliminary injunction or any sort of expedited relief. Indeed, despite the fact that they claimed these cases were urgent and the fate of the Republic turned on stoping this foreign influence, the plaintiffs repeatedly requested extensions and continuances. At the end of the day, the clock ran out. By the time the case made it to the Supreme Court's merits docket, Trump was out of office, and the cases ended with a whimper.

Since Trump's second term began, I have waited with bated breath for suits based on the Emoluments Clause, as well as Section 3 of the Fourteenth Amendment, our other scholarly interest. But nothing came. Zero. Zip. Nada. I suppose the legal resistance has bigger fish to fry with all the strategic litigation in the First Circuit.

Well, the Emoluments Clause is back. The Constitutional Accountability Center, which brought litigation during Trump 1.0, has sued President Trump for violating the Domestic Emoluments Clause. This case, however, does not concern businesses patronizing any current Trump property. Instead, the complaint alleges that the Miami-Dade Community College and the state of Florida granted Trump an unconstitutional emolument by gifting land in Downtown to be used for the Trump Presidential library. President Trump is the defendant, as well as the Trump Presidential Library, Governor DeSantis, Attorney General Uthmeier, and a host of other state officials.

In 2017, the Constitutional Accountability Center filed suit on behalf of Senator Blumenthal and other members of Congress. That theory of standing was doomed to fail. Nine years later, the Constitutional Accountability Center invoke another theory of standing that is doomed to fail.

Who are the plaintiffs in this case? There are two individuals who live near the planned location of the library in downtown Miami. They complain that the tower will block their view of Biscayne Bay, increase traffic, diminish their "quality of life," and reduce the value of their property.

Another plaintiff is Sistrunk Seeds, also known as Dunn's Farm, which wants to operate an "urban farm" in downtown Miami. Dunn claims that it had worked with Miami Dade College in the past, and wanted to build a farm across the street from Biscayne Bay, but can't because the land was given to the library. There does not appear to be any contract or binding agreement--simply an expectation to have future discussions. The complaint admits as much: "The longstanding partnership between MDC and Dr. Dunn demonstrates that, at a minimum, MDC would have seriously considered Dunn's Farm's request for the land." The farm also claims a "diversion of resources" theory of standing.

Finally, there is a student at Miami Dade College who wants to work on the non-existent farm. The complaint states, "The emolument at issue has quashed Ms. Salcedo's opportunity to learn urban farming and nonprofit management skills on campus for academic credit." Maybe she can claim standing based on some magical beans that could grow into a beanstalk as tall as the new Trump library?

On January 22, 2017, I wrote an early blog post critical of the theory of standing in CREW v. Trump. I was met with a swift reply by Laurence Tribe. Let's see if anyone jumps on board this case.

Apart from standing, the Plaintiffs have a host of other jurisdictional hurdles. There is no cause of action. They are not within the zone of interest of the Domestic Emoluments Clause. They sued the President in his official capacity. And more. Plus the transfer of land is not an emolument. Seth and I have written on this topic.

As of yet, the plaintiffs have not sought a preliminary injunction. As they say, the process is the punishment.

These claims will not succeed, but there is a cost of losing, should this case ever make it upstairs. I can see six votes on the Supreme Court to kill diversion of resource standing, hold there is no implied cause of action for alleged violations of the Constitution, and eliminate any sort of "offended observer" standing based on seeing things that bother you. The plaintiffs here can radically set back civil rights law, all in a case that is doomed from the start. Wouldn't it be better to never bring this case in the first place? Plus, the plaintiffs filed in unfamiliar territory. They will not be protected by jurists like Peter Messitte and Emmet Sullivan, with appeals to the friendly Fourth and D.C. Circuits. I question the wisdom of this suit.

Earlier this week, I did a talk at Unitelma Sapienza University in Rome on "Threats to Liberal Democracy in the United States - And How to Counter Them." The talk was followed by commentary from three Italian scholars: Prof. Carla Bassu (University of Sassari), Prof. Giovanna Tieghi (University of Padua), and Prof. Andrea Fiorentino (Unitelma Sapienza), and my response. Prof. Pier Luigi Petrillo (Unitelma Sapienza) moderated. I also did an interview on related topics for Unitelma Sapienza's "Leaders' Talk" program. The interview was conducted by Prof. Petrillo and Prof. Fiorentino.

The talk and the interview covered a lot of ground, including what we mean by "liberal democracy," abuse of emergency powers, the perils of nationalism, threats to freedom of speech, immigration, tariffs, and more. I also discussed the relevance of many of these issues to European nations, as well as the US. Below are links to the videos for both events. First the talk:

And now the interview:

Many thanks to Prof. Petrillo and others at Unitelma Sapienza for organizing these two events!

I'm very happy to post a draft of a new article, "Popular Conceptions of Fourth Amendment Curtilage," written together with my co-author Matthew Kugler, forthcoming in the Michigan Law Review.

The article picks up an idea I first pondered here at the Volokh Conspiracy back in 2018. The Supreme Court interprets the Fourth Amendment to extend the privacy of the home beyond the home's walls to an outside space it calls "curtilage," and it insists that what counts as curtilage, and the implied license to enter it, is intuitive and widely known. But is it? What do ordinary people really think about curtilage and implied license?

Here's the abstract of our new article:

Fourth Amendment protections outside depend on a legal concept called "curtilage." Entering the curtilage of a property normally requires a warrant unless the entry is within an implied license. According to the Supreme Court, the boundaries of curtilage and implied license are found largely in prevailing social norms—what the Court calls "the habits of the country." Judges tasked with applying curtilage doctrine are supposed to intuit these shared attitudes to determine what the police can and cannot do. But there is something missing: No one has ever asked the public what they think.

This Article presents the results of three empirical studies, involving 600 participants each, in which members of the public were asked what places count as curtilage and what visits to homes are covered by implied license. In the first two studies, survey participants were shown a series of images of various properties with an officer present and answered whether the officer was inside or outside the curtilage. In the third study, participants were given a set of home-visit scenarios and answered whether each visit was within or outside the implied license. The surveys covered the facts of both Supreme Court cases and prominent lower court decisions to see if the courts have it right.

We found that the courts have curtilage wrong but implied license right. In the doctrine, curtilage is limited to the area immediately around the home. But the public disagrees. To most people, privacy in the home extends to the entire property. If it's part of the property, it's private. In short, the public has a far more expansive conception of home privacy than courts allow. On the other hand, public perceptions of implied license very closely align with the caselaw. Courts have misunderstood curtilage, but they have accurately described the implied license. Going forward, Fourth Amendment law should change: Courts should either justify current curtilage protection on different rationales or else expand the curtilage line to match public opinion.

This is just a draft, so comments are very welcome.

A very interesting article by my Hoover Institution colleague Andy Hall (who is also at the Stanford Graduate School of Business); here's the Introduction, though the whole thing is much worth reading:

There has never been an economic shock in modern American history like the one the leaders of the AI industry are telling us is coming. Dario Amodei has warned of "unusually painful" labor impacts "bigger than any before," predicting that AI could eliminate half of all entry-level white-collar jobs and push unemployment to 10–20 percent within five years. He is hardly alone. Both OpenAI and Anthropic have begun laying out, in expansive policy memos, the kind of social contract they say the post-AGI economy will demand, with proposals for shorter working weeks, public wealth funds, and a completely modernized taxation system. The abundance is coming, they tell us, and they would like to help us figure out how to share it.

Can the tech industry successfully pre-empt American populism, sketching the post-AGI social contract before the public has even decided it wants one, and before we even know if speculator growth and job displacement is actually coming? My answer, after months working with my coding agents to pore over polling data, policy proposals, and historical parallels, is that it cannot.

In the scenario the labs are sketching, the politics of AGI will be the politics of jobless prosperity. And this makes it hard to forecast well. The economy will be growing rapidly even as jobs disappear, more like the Industrial Revolution or the China Shock than a normal recession, with mass disruption alongside the explosive enrichment of a small class of elites at the top.

Voters in this world will not be anxious about a shrinking economy but furious about being shut out of a booming one, and they may well stop the boom from arriving at all. Jasmine Sun has documented how this anxiety is already curdling into nascent political anger, observing that "the anti-elite and nihilistic attitudes that have dominated US political culture in the last few years are transmuting into anger at AI billionaires." Alex Imas, in "What will be scarce?", has made the most careful economic case for taking the underlying disruption seriously, even while laying out why both the short and long-term doomers may be wrong about mass unemployment.

Artificial Intelligence Employment

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The Food and Drug Administration opened an investigation of medical facilities that prescribe "off label" drugs to minors with gender dysphoria. The FDA has not determined if the use of these drugs for these purposes is safe or effective to treat gender dysphoria. The investigation began before the U.S. District Court for the Northern District of Texas. In July 2025, the Assistant Attorney General issued a HIPAA subpoena on Rhode Island Hospital (which includes Brown University Health) to determine if patients received misbranded drugs. The hospital, however, refused to comply with the subpoena.

On April 30, 2026, DOJ filed a petition to enforce the subpoena with the District Court in NDTX. That same day, Chief Judge O'Connor granted the government's petition. He ordered Rhode Island Hospital to provide all records within fourteen days.

On May 6, Rhode Island Hospital filed a notice of appeal to the Fifth Circuit, and the next day filed an emergency motion to stay. Among other arguments, Rhode Island argued that venue was not proper in NDTX. The government countered that venue was proper because there is an active investigation being carried out in NDTX. On May 10, Judge O'Connor denied the motion for an emergency stay. He found that venue was proper:

Second, RIH argues that this Court is not the proper venue to adjudicate the Government's petition.7 Title 18 U.S.C. § 3486(c) permits enforcement of an administrative subpoena in "any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may be found." According to the Declaration from the Acting Director of the Enforcement and Affirmative Litigation Branch there is substantial operational and decision-making control of the investigation being exercised at the U.S. Attorney's Office in the Northern District of Texas, along with several subjects and potential targets of the investigation located therein.8 The record therefore reflects that the investigation is being carried on in the Northern District of Texas and the Government's enforcement petition was properly brought in this Court. Accordingly, RIH has failed to show a likelihood of success on the merits as to its venue challenge.

FN8: 8 See generally Hsiao Declaration (Sealed) Ex. 1, ECF No. 10-1. The Government has presented the Court with ex parte information that supports its choice to enforce the subpoena in this Court and due to the sensitive nature of that information, it was provided ex parte. See In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) (finding no abuse of discretion where the district court relied on the government's ex parte submission in reaching its decision).

That was the litigation in Texas. But there was a parallel track on the other side of the country. On May 4, even before Rhode Island Hospital filed an emergency motion before Judge O'Connor, the Child Advocate for the State of Rhode Island (a non-profit) filed an emergency motion in the District of Rhode Island to quash the subpoena. On May 7, the United States filed a motion to stay or transfer venue. The court immediately denied that motion with a text order. On May 11, the District Court granted Rhode Island Hospital's motion to intervene. The group then filed an emergency motion to quash the subpoena. Judge McElroy ordered the United States to submit the sealed Hsiao declaration.

Back in Texas, on May 11, the United States informed Judge O'Connor that the government intended to comply and provide the sealed Hsiao Declaration. On May 12, Judge O'Connor ordered that the government could not release the sealed information to the parties:

However, the Government now seeks to disclose sensitive information to a party here—but in a seemingly parallel litigation—without having shown why the sealed or protected matters should be provided to it nor how that information would be protected. In fact, the Government's representation that it does not know what protections the information related to the grand jury proceedings or sealed information in the matter pending here will receive in the Rhode Island court cuts against disclosing it. In light of grand jury proceedings' dependency on heightened secrecy, the basis for sealing declarations, and the Government's failure to show that the information that it requests leave to disclose would be protected, the Court would be derelict in its obligation to hew strictly to Rule 6(e)'s exception, and undermine the reasons given for sealing, by granting the Motion as requested. Accordingly, it is ORDERED that the Government is prohibited from revealing any further sealed information or information concerning the grand jury investigation until it can show that "a particularized need" exists for the materials that outweighs the basis for and policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)). The Government shall immediately distribute this Order to all members within or connected to this investigation, notifying them of the prohibitions set out herein and their obligation to comply with them. The Government may distribute a copy of this Order to the Rhode Island court.

But Judge O'Connor allowed the government to share the declaration with Judge McElroy in chambers.

The Court granted the Government's previous motion to disclose information related to the grand jury's existence because the Government specified that such information would be confined to in camera review by the Rhode Island court. That disclosure permitted the Government to disclose to the Rhode Island court that there is a legitimate investigation pending in this district, and responsive documents are due. Indeed, the Court has concluded as such, granted the Government's motion to enforce an administrative subpoena, and is superintending this matter.2 Were Rhode Island Hospital entitled to further sealed or secret information it may always move this Court for such access upon a proper showing.

On May 13, Judge McElroy issued a 24-page opinion granted the motion to quash the subpoena from NDTX and enjoined DOJ from seeking or receiving any documents pursuant to the subpoena. Judge McElroy was apparently shown the materials, but was not persuaded. She did not reference the sealed declaration. Judge McElroy acknowledged her order was completely unprecedented:

The Court is unaware of any similar case where a party has petitioned a court to quash an administrative subpoena that another court ordered enforced without prior notice or opportunity to be heard.

But she did it anyway. Indeed, Judge McElrod took a shot at Judge O'Connor:

The United States Department of Justice ("DOJ") possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the "Texas court"). It did so in an obvious effort to shield it's recent investigative tactics—previously rejected by every other court to review them—from this Court's review, in favor of a distant forum that DOJ deems friendly to its political positions.1

FN1: 1 The presiding judge in the Texas court has branded "the Department of Justice, the world's largest law firm" a "frequent forum shopper." Opening Remarks from Judge Reed O'Connor [2024 TX Chapters Conference], The Federalist Society (Oct. 22, 2024), https://www.youtube.com/watch?v=HMTt9pxWBhA [https://perma.cc/GR7A-H6N8]. It is clear that the DOJ has done so here.

I attended Judge O'Connor's speech in 2024. The purpose of his remarks was to show that all litigants engage in forum shopping, including the Biden DOJ. This snippet takes Judge O'Connor's comments out of context. Here are the full remarks:

Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.

Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.

Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.

It takes some cheek for a District Judge in Rhode Island to accuse others of engaging in forum shopping. I've lost count of the number of anti-Trump actions filed in Boston, Rhode Island, and other places, that have no actual connection to New England, other than the fact that the First Circuit is a very friendly venue. Did Judge McElroy blink twice about why a case called California v. Department of Education was filed in Boston? Or when Judge Boasberg ordered a plane taking off from Texas to turn around? For whatever it is worth, it is far more likely for a nexus to be found in the Northern District of Texas than in Rhode Island. You could fit the entire state of Rhode Island in the DFW Metroplex, and you could fit the city of Providence inside the bounds of the DFW airport.

On May 14, today, Judge O'Connor unsealed his March 12 order, which indicated the materials could be shared with Judge McElroy.

So here we are. A District Court judge in Texas ordered that a subpoena must be complied with. A District Judge in Rhode Island quashed that subpoena. We now have a conflict that cuts to the heart of federal power. Perhaps not since the Dorr Rebellion, which gave rise to Luther v. Borden, has a Rhode Islander thrown such a wrench into our federal system of government. During the first Trump administration, I wrote about the prospect of dueling nationwide injunctions. Now, we have dueling transdistrict fights over transgender subpoenas.

Appeals will be mounted to the Fifth and First Circuits at the same time. I know a bit about this sort of conflict. For some time, I've been involved with litigation concerning Defense Distributed. Since 2018, we have been stuck in a quagmire: the District Court in Austin transferred the case to New Jersey, the Fifth Circuit asked the New Jersey court to return the case, the New Jersey court said no, and the en banc Third Circuit declined to interfere. (Stay tuned on what comes next in this case.)

I suspect the Supreme Court will have to settle this subpoena fight at some point.

Update: I updated the passages concerning the unsealing of materials.

The Roberts Court is often derided as a pro-corporation Court. I've lost count of how many stories measure the Chamber of Commerce's success rate before the Supreme Court. The reality, however, is different. The Court often leans in a jurisprudential directions that corporations do not like. One leading example is preemption. As a general rule, corporate defendants favor broad preemption to avoid liability from state suits, while plaintiffs favor narrow preemption so they can bring state tort suits. But on the Supreme Court, things do not line up so neatly. Justice Thomas, a federalist, has long been a skeptic of broad preemption. I think Justice Gorsuch is in the same camp. Justice Kavanaugh, and to a lesser extent, Justice Alito, are the strongest votes to find broad preemption. That leaves (as usual) Chief Justice Roberts and Justice Barrett as the decision-makers. Unlike in most cases that are important to conservatives, there is not an automatic conservative majority to find preemption, and indeed, it may be hard to count to five.

I think we have something of an Antipreemption Court.

Consider three preemption cases argued this term.

First, Hencely v. Fluor Corp reversed the Fourth Circuit, and found that federal law did not preempt the state-law tort claim. Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. As I noted at the time, these votes lined up with how the justices view preemption more generally.

Second, today the Court decided Montgomery v. Caribe Transport II, LLC. Here, the Court unanimously found that federal law did not preempt a state-law tort claim against transportation brokers. Justice Barrett wrote a delightful majority opinion. In only a few pages, she briskly walked through all the statutory arguments. She was confronted with an anomaly raised by the government, and responded: "The text of subsection (c)(2)(A) controls. Better to live with the mystery than to rewrite the statute." Amen.

Justice Kavanaugh wrote a concurrence joined by Justice Alito, finding that the preemption analysis is harder than the majority suggests. Ultimately Kavanaugh writes that Congress and the President can fix any problems.

The brokers and their amici raise serious concerns about the repercussions of state tort liability against brokers, and they may of course (among other possibilities) ask Congress and the President to change federal law.

That worked for Lilly Ledbetter! Still, the case was unanimous. ~~Paul Clement, who argued Montgomery, usually does not lose 9-0. But the GOAT didn't get a single vote here.~~ [Update: Clement represented the Petitioner, and not the Respondent in this case. I got it completely backwards. He won 9-0. My apologies to the GOAT.]

The third preemption case, Monsanto Company v. Durnell, was also argued by Paul Clement. And if Hencely and Montgomery are any indication, I think Clement may lose this one. It won't be unanimous, but it may be 5-4 or even 6-3 for the plaintiffs. I wrote about Monsanto here and here. The Justices, even the conservative ones, are not going to engage in any creative reading of statutes to preempt federal law--even if the consequences are catastrophic. The answer will be, as Justice Kavanaugh suggested, for Congress to address the situation.

From a decision last year in Ali v. Osman, from Judge Stephanie Hayden (N.D. Cass County Dist. Ct.); I just learned about it because it's on appeal to the N.D. Supreme Court:

Sara and Mojahid were married on February 5, 2001 in Sudan.

Under Islamic law, a husband has the right to initiate a divorce ("talaq") against his wife. All that is required to achieve talaq is for a husband to pronounce his intent to divorce his wife on three separate occasions, either verbally or in writing. The husband does not need to communicate his three pronouncements to his wife. She need not be present for them or even aware of them. A wife cannot object to a talaq.

Unbeknownst to Sara, Mojahid pronounced talaq three times prior to December 11, 2022. On or about December 11, 2022, Mojahid obtained a Certificate of Divorce from Sara in Sudan (the "Divorce Certificate") based on his pronouncement of talaq. When he obtained the Divorce Certificate, neither Mojahid nor Sara lived in Sudan. They lived in the United Arab Emirates ("UAE") at the time, which had been their residence since 2015. Additionally, Sara was not present when Mojahid obtained the Divorce Certificate. Mojahid emailed Sara the Divorce Certificate on December 19, 2022.

Islamic Law Foreign Law in American Courts

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From a Complaint in Murray v. Alphabet, Inc., just removed yesterday to federal court, one of the sets of screenshots that the plaintiff says were hallucinated by Google's AI Overview:

As usual for such libel-by-AI lawsuits, the claim isn't "Garbage In, Garbage Out," in the sense that Google is creating a summary from inaccurate online allegations and is thus parroting the inaccuracies. Rather, plaintiff claims that the allegations appear only in the AI Overview, and that the AI algorithm composed the allegations itself.

The Complaint also alleges that,

Free Speech Libel Large Libel Models

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5/14/1973: Frontiero v. Richardson decided.

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