The Volokh Conspiracy

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

I have previously written about Donald Trump's threatened tariffs against Canada, using Section 338 of the notorious Smoot-Hawley Tariff Act of 1930. Today, I am pleased to present a guest post on this subject by Georgetown legal scholars Peter Harrell and Jennifer Hillman. Peter is Visiting Scholar at Georgetown's Institute for International Economic Law, an attorney in private practice, and one of the nation's leading experts on trade law. Jennifer Hillman is a professor of practice at the Georgetown University Law Center, a leading expert on international business and international trade, and co-director of the Center for Inclusive Trade and Development. They both played an important role in helping to develop the arguments that ultimately led to the invalidation of the IEEPA tariffs by the Supreme Court, in a case I helped litigate.

What follows was written by Peter Harrell and Jennifer Hillman, not me (Ilya Somin):

Prospective Legal Challenges to Trump's Section 338 Tariffs

On July 20, President Trump became the first President in history to impose tariffs under Section 338 of the Tariff Act of 1930, better known—and memorialized by actor Ben Stein in the movie Ferris Bueller's Day Off—as the Smoot-Hawley Tariff Act. Until Trump's second term, few trade lawyers were aware that Section 338 remained on the books or understood what it did. Trump's three separate Section 338 findings together impose a new 50% tariff on approximately $20 billion in annual U.S. imports from Canada. Trump and Canadian Prime Minister Mark Carney may yet negotiate a détente before the tariffs take effect on August 19, folding them into the ongoing negotiations over the USMCA. If the tariffs do come into force, however, they will face legal challenges that will likely narrow their scope, even if they do not succeed in throwing them out altogether.

Background on Section 338 and Trump's Action

Congress passed Section 338 (19 U.S.C. § 1338) to give the President authority to impose tariffs if a foreign country discriminates against U.S. products relative to how it treats products made by third countries.

Specifically, Section 338 provides that if the President "find[s] as a fact" that a country either (a) imposes on U.S. products "any unreasonable charge, exaction, regulation, or limitation which is not equally enforced upon the like articles of every foreign country," or (b) "discriminates in fact against the commerce of the United States, directly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee, charge, exaction, classification, regulation, condition, restriction, or prohibition, in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country"—and if he further finds that the "public interest will be served" by imposing duties—the President shall "declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per centum ad valorem or its equivalent…."

Although Congress enacted Section 338 in 1930, it was largely a re-adopted and slightly modified provision of the Tariff Act of 1922, Section 317. John Veroneau and Catherine Gibson have traced the history of Section 317 and 338, and the principal purpose of Section 317 was to give the President a tool to encourage U.S. trade partners to grant the U.S. "MFN" status, e.g., that they offered the U.S. trade arrangements on the same terms that they offered other trade partners, and 317 and 338 were used as leverage in negotiations during the 1920s and 1930s. While neither statute was ever used to impose tariffs, State Department records make clear that the government contemplated using it several times in the 1930s and 1940s. In 1932, for example, the State Department indicated it was "seriously considering" using Section 338 against Spain. The last apparent consideration was in 1949, when the State Department considered using it to address potential trade issues with Communist China, while noting that any such use would have to rest on evidence of discrimination or unfair treatment, not merely on a partner's failure to comply with a trade agreement. But the historical record also indicates that no previous administration moved beyond such contemplation to actually impose tariffs under Section 338 in the 96 years since Congress enacted it.

The backdrop to the 338 action is the Trump Administration's frustration that the current negotiations over the USMCA are going better with Mexico than with Canada, and its desire to increase pressure on Ottawa.The stated justifications for the three actions are (a) Canadian tariffs on U.S. cars that do not comply with USMCA rules (which Canada adopted in retaliation for Trump's earlier tariffs last year); (b) a long-running U.S.-Canada dispute over U.S. access to Canada's dairy market; and (c) the fact that Canadian provincial governments, which operate liquor stores in Canada, largely stopped buying U.S. liquor as tensions between the U.S. and Canada escalated in early 2025.

The Arguments Against Section 338

The strongest arguments against Trump's 338 tariff actions are that he misapplied the statute.

First, Section 338 authorizes the President to impose tariffs to "offset such burden or disadvantage, not to exceed 50 per centum ad valorem or its equivalent, on any products of, or on articles imported in a vessel of, such foreign country."

The concept of using tariffs as an "offset" is common in trade law. Antidumping and countervailing duties, for example, are calculated to offset the amount of a foreign subsidy (in the case of a countervailing duty) or the margin of dumping (which occurs when a company sells abroad at less than fair value). The two key criteria of a tariff designed to "offset" a harm are (a) that the tariff apply to the goods that benefit from the practice being offset, and (b) that its amount match or approximate the value of that harm.

Trump's Section 338 tariffs fail to meet either criterion. They target a vast array of products beyond the scope of the purported Canadian discrimination, including hockey sticks and cement, rather than being tailored to cars, dairy products, and alcohol; the motor-vehicle action covers no motor-vehicle tariff lines at all. Moreover, even if Section 338 can be read expansively to authorize tariffs on a broad set of Canadian products, the offsetting requirement should still require the Administration to tailor the value of the tariffs to approximate the harm Canada's discrimination allegedly inflicts. The Administration's fact sheet on the Section 338 tariffs alleges that Canada's discrimination against the U.S. auto sector cost $5.6 billion in lost auto sales. Yet the corresponding proclamation imposes a 50% tariff on roughly $19.3 billion in U.S. imports—on the order of $10 billion in annual duties, or nearly twice the harm the Administration itself alleges.

A second argument against Trump's application of the statute is that Canada's alleged discrimination against U.S. autos, dairy, and alcohol do not fit within the statute's purpose, which as discussed above was [either] to address unreasonable charges or regulations that discriminate against U.S. products compared to the treatment given to the products of all other foreign countries, or to address discrimination in the application of customs duties or practices to American goods compared to others. Here, the alleged discrimination with respect to dairy products, for example, relates to which Canadian entities are permitted to obtain the necessary quota to qualify for duty-free imports. Canada does not permit retail purchasers (as opposed to wholesalers or distributers) to receive duty-free quota allocations to buy American cheese or other dairy products. However, Canada places those same restrictions on purchases from all other trading partners except the European Union, which bargained for better treatment under the recently concluded Canada-EU Comprehensive Economic and Trade Agreement (CETA). As such, Canada's dairy practices do not treat American goods differently than those from "every foreign country." The Trump Administration's expansive interpretation of the statute suggests that any differential treatment by any country against the U.S. compared to other countries would effectively allow the President to impose up to 50% tariffs on imports from any country that had trade agreements with others but not with the United States. Given the more than 380 preferential trade agreements entered into between some combination of all of the United States' trading partners, such an interpretation could open the door to tariffs on almost everything the U.S. imports.

Moreover, Section 338 was designed to give the President a tool to prod countries to accord U.S. MFN trade privileges and reduce other discrimination. Yet the United States's existing agreement with Canada –the USMCA agreement—does just that, giving the U.S. better than MFN treatment for its trade with Canada—no further prodding needed.

A third potential problem with Trump's interpretation of Section 338 is that he does not appear to have relied on the International Trade Commission (ITC) to conduct fact-finding on the alleged discrimination.

Admittedly, the language of Section 338 on its surface appears to authorize the President himself to engage in direct fact-finding, providing that he may impose tariffs "[w]henever the President shall find as a fact" discrimination. Congress placed Section 338, however, in the part of the Smoot-Hawley Tariff Act governing the duties and responsibilities of Tariff Commission, the ITC's predecessor, and subsection (g) states that "it shall be the duty of the commission to ascertain and at all times to be informed whether any of the discriminations against the commerce of the United States…are practiced by any country; and if and when such discriminatory acts are disclosed, it shall be the duty of the commission to bring the matter to the attention of the President, together with recommendations." As Mona Paulsen has argued, and as Veroneau and Gibson point out, from the 1920s through the 1940s both the Executive Branch and the Tariff Commission itself appear to have understood that the Commission would be responsible for initial fact-finding and for recommending factual determinations to the President. There is no evidence that the ITC investigated Canada prior to the President's action.

Each of the three actions also suffers from its own deficiencies. The alcohol action targets decisions that Canadian provinces made as purchasers of liquor, not as customs authorities; such commercial decisions, unrelated to customs or import requirements, would seem to fall outside a provision aimed at "customs, tonnage, or port dut[ies]" and comparable regulatory impositions.
The dairy action, as noted above, rests on quota levels and terms that the United States itself negotiated in the USMCA and that Congress approved. Irrespective of the original intent of 338, is incongruous, to say the least, for the United States to denounce as discriminatory the very terms it agreed to.

Stepping back from these issues of statutory construction, as the historian and former State Department official Philip Zelikow has argued, Congress may have implicitly repealed Section 338 in the 1960s and 1970s when it overhauled U.S. trade statutes. In Zelikow's view, Section 252 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974—which Trump is now relying on as the legal basis for his global tariffs—"cover the whole subject" that Section 338(d) formerly addressed, and thus implicitly repealed it. Admittedly, an implied-repeal argument faces a high bar, and other scholars, notably Yale Law Professor Jed Rubenfeld, have argued that Section 338 remains fully in force. The courts will have to resolve this debate.

Conclusion

Trump's use of Section 338 is entirely consistent with his aggressive interpretation and use of a host of U.S. trade statutes. These include the first-ever use of Section 122—his initial round of "fallback" tariffs after the Supreme Court ruled in February that he could not rely on a 1977 emergency powers statute to impose tariffs—his unprecedented recent use of Section 301 to impose tariffs on countries accounting for approximately 99% of U.S. trade, and 17 Section 232 national security investigations, more self-initiated cases than all previous Presidents combined. If the courts uphold Trump's use of Section 338 against Canada, Section 338, too, seems likely to become an oft-used tariff statute. The best structural solution to all these tariffs, and the one consistent with the Constitution's assignment to Congress of the power "[t]o lay and collect Taxes, Duties, Imposts and Excises," would be for Congress to enact a comprehensive overhaul of U.S. trade law. Until that happens, however, there are strong arguments that the courts should, at the very least, narrow the scope of Section 338.

Readers of the blog may recall a certain John Doe who is suing Penn, Dartmouth, Harvard, and Berkeley for alleged discrimination; he argues, among other things, that "in service of their goal to [exterminate] or enslave all non-Jews, the Jewish supremacists discriminate [against] non-Jewish whites," including him. He also seeks to proceed under a pseudonym, partly because he claims a fear of physical harm:

So far, courts have rejected his pseudonymity claim, and he's appealing the decision in his Penn case to the Third Circuit.

But in the meantime, what to do about his other cases? Well, in the Harvard case, he asked Judge Allison Burroughs, who had denied his pseudonymity motion, to stay that case pending appeal. No, the judge held on May 20:

Free Speech Right of Access

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The article is here; the Abstract:

This paper examines how the European Court of Human Rights' (ECtHR or Court) hate speech jurisprudence has been structurally reoriented by the Court's response to an increasing number of applications brought by victims of hate speech. Whereas earlier case law predominantly assessed hate speech under Article 10 of the European Convention on Human Rights, focusing on the permissibility of restrictions on expression, recent victim-initiated claims have directed the ECtHR's analysis towards Articles 8 and 14 and thus towards the question of State responsibility for protection against harm caused by third-party speech.

Through a reading of the ECtHR's case law, this paper shows how the Court's response to this applicant-driven expansion has recalibrated the balance between dignity, equality, and freedom of expression. The paper argues that the resulting framework risks limiting the doctrinal safeguards traditionally associated with Article 10 analysis.

In addition, there has been an increasingly expansive understanding of who qualifies as a "victim" of hate speech, extending this qualification beyond direct targets who are in protected groups to include individuals who are merely associated with such groups. The paper argues that the Court's expanding expectation of positive obligations owed by States to their citizens in relation to the exercise of their rights may incentivize over-intervention by domestic authorities and chill legitimate public debate.

Politics

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As promised, government services contractor Gordon-Darby Inc. has renewed its attempt to force the state of New Hampshire to revive its vehicle emissions inspection program. On July 22, the firm filed a new lawsuit challenging the state's decision to end the program and seeking a federal court injunction to force the state to re-start it--thus giving Gordon-Darby the opportunity to pursue another lucrative contact providing emission inspection testing. As before, Gordon-Darby's suit betrays a profound misunderstanding of both the Clean Air Act and the constitutional limits on the federal government's ability to compel state action.

The central claim in the suit is that New Hampshire is violating the Clean Air Act because it is required to have a vehicle emissions inspection program as part of its State Implementation Plan. What the suit overlooks, however, is that the Act does not authorize injunctions to compel state implementation of the Act. To the contrary (and as one of the plaintiffs' supporting exhibits makes explicit), if a state is failing to meet its SIP obligations, the remedies are for the EPA to impose sanctions, which can include the imposition of a Federal Implementation Plan (FIP)--implemented and enforced by the federal government--and the loss of federal funds (including, potentially, highway funds). Yet that is not what the plaintiffs want here (which is why they are suing New Hampshire instead of the EPA). Rather, as they make explicit in their complaint, the purpose of the suit is to "compel New Hampshire state officials" to implement the desired program.

The Clean Air Act has never provided for the sort of enforcement that Gordon-Darby seeks, and with good reason. As the Supreme Court has made clear in New York v. United States, Printz v. United States, and NCAA v. Murphy, the federal government lacks the authority to compel a state to adopt, administer, or implement a desired regulatory program. Further, as Murphy made explicit, this anti-commandeering principle applies to attempting to prevent a state from repealing an existing law, as the New Hampshire legislature did here.

As it happens, the theory advanced by the plaintiffs was briefly embraced by the EPA in the early 1970s, as the Clean Air Act was first being implemented. Concerned that states were not doing enough to reduce air pollution, the EPA sought to force states to adopt specific emissions control measures, including the adoption of vehicle emission inspection programs! Three of four federal circuit courts rejected the EPA's arguments, however. The Supreme Court granted certiorari, at the federal government's request, only to dismiss the case after the Department of Justice conceded (in a footnote) that the EPA's regulations could not be lawfully enforced. Even though the Supreme Court would not articulate an anti-commandeering rule for another fifteen years, DOJ recognized the constitutional problem with trying to turn state officials into agents of the federal government. Now that the anti-commandeering doctrine is explicit, there should be even less room to debate Gordon-Darby's audacious legal claim.

This time around Gordon-Darby is joined by an individual plaintiff, Marilyn Jonas, who claims her asthma is exacerbated by air pollution. The addition of an individual plaintiff who can claim tangible harm from air pollution increases that may result from termination of the emissions inspection program may help Gordon-Darby avoid dismissal on standing grounds, but it does not change the statutory or constitutional analysis.

When Gordon-Darby first brought litigation seeking to keep the emissions inspection program in place, New Hampshire failed to raise commandeering arguments in its defense, preferring various procedural and jurisdictional arguments that the district court unpersuasive. As the case has been assigned to the same judge, we will see whether history repeats itself in that respect here.

The article is here; the Abstract:

When the government regulates conduct, it does not always do so directly. Increasingly, the government regulates conduct indirectly—by pressuring some intermediary to do the direct regulatory work for it. This form of indirect regulation has raised considerable concern in the context of speech regulation. Scholars and activists have sounded alarm bells that this form of indirect speech regulation, typically referred to as "jawboning," often violates the First Amendment because it allows the government to censor expression on the cheap. Indeed, during its 2024 term, the Supreme Court heard two different First Amendment jawboning cases. While one case, Murthy v. Missouri, was dismissed on standing grounds, the Court reaffirmed, in NRA v. Vullo, that coercive jawboning of protected expression violates the First Amendment.

Despite jawboning cases taking up a substantial portion of the Court's docket during its 2024 term, little scholarly discussion about jawboning can be found. The scholarly discussion of jawboning that does exist tends to converge on a standard picture—that jawboning is an inherent threat to freedom of expression and that it is, therefore, necessarily normatively undesirable. Thus, while scholars have identified possible perils of jawboning, practically no attention has been paid to the promises.

This Article rejects the standard picture. In a nutshell, this Article argues that we ought to be more ambivalent about jawboning, or, in other words, that whether jawboning is normatively desirable turns on a fine-grained contextual analysis that's glossed over by the standard picture.

Free Speech

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This morning I filed an amicus brief in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County. In this case, likely to be argued in October, the Supreme Court will consider, among other things, whether the Clean Air Act or the Constitution preempt state-law claims seeking relief for injuries allegedly caused by climate change.

As my prior blogging on the subject has indicated, I find the preemption claims to be without merit. (I have no opinion on the procedural jurisdictional issue, but recommend the briefs by Profs. Derek Muller and Ben Johnson for an idea of the issues there.) Accordingly, my amicus brief focuses on the preemption claims. Here is the summary of my argument:

From last Monday's decision by Magistrate Judge Mark Dinsmore (S.D. Ind.) in Kimberlin v. Metro. School Dist. of Wash. Township Schools refusing to allow Brett Kimberlin to add an extra claim to his pending lawsuit (see here for more on the original claims):

[Plaintiff] claims Defendants failed to adequately respond to a letter he sent Dr. Woodson in 2024 accusing a now-deceased schoolteacher of sexually abusing him while he was a middle school student in the 1960s. The teacher's employment with the school ended in 1969, and Plaintiff left the state of Indiana in 1978. Plaintiff currently resides in the state of Maryland, and he does not allege to have any present affiliation with the School District, aside from sending his letter to Dr. Woodson in 2024.

The complaint alleges that rather than investigate his claims, as is required by the School District's own policies, Dr. Woodson and others engaged in an effort to dismiss and cover up his allegations. Based on these allegations, the complaint asserts claims against Defendants under Title IX and the Fourteenth Amendment Due Process Clause and Equal Protection Clause….

[T]he proposed amended complaint asserts an additional claim against Dr. Woodson for negligence. The negligence claim alleges that Dr. Woodson failed to comply with Indiana's mandatory reporting statutes, which require school officials and others to immediately report allegations of child abuse to law enforcement. It also alleges that Dr. Woodson failed to follow the School District's own policies with respect to allegations of child abuse and that she tried to cover up Plaintiff's allegations….

Torts Education

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Law students around the country will be starting classes over the next few weeks. Back in 2018, I wrote a post offering advice to entering students, which I updated in 2019, 2022, 2023, 2024, and last year. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think my original suggestions remain relevant today. So I reprint my advice from earlier posts largely unaltered, with the addition of incremental edits and updates:

1. Think carefully about what kind of law you want to practice.

Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.

There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like. Internet resources - including AI - are also a good way to start looking at options in a range of different fields, though it's important to remember this online information isn't always accurate.

This advice applies not just to what you do in school, narrowly defined, but what you do in the summer, as well. Law students typically get summer jobs at firms or other potential future employers. Apply widely, and look for organizations that might be good employers, or at least introduce you to areas of law that might be crucial for your future career.

The summer clerk job I took at the Institute for Justice after my first year in law school, was a key step towards becoming a property scholar, and helped lead me to write two books and numerous articles about takings. I even got to work on an eminent domain case where Donald Trump had lobbied Atlantic City to condemn an elderly women's home so he could use it as a parking lot for one of his casinoes. Spending a summer at a public interest firm might change your life, too!

Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to pursue. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.

2. Get to know as many of your classmates and professors as you reasonably can.

Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk - even with the help of AI and other modern tech. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts.

The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.

Even in an age of widespread social media and other online connections, in-person interaction is essential, and often difficult to fully replicate in other ways. Try it and see!

This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I still suggest you do as I say, not as I actually did. You will be better off if you learn from my mistakes than if you repeat them.

3. Think about whether what you plan to do is right and just.

Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of most of the great injustices in our history, as well.

Robert Cover's classic book Justice Accused - a work that made a big impression on me when I was a law student - describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression. The present administration is coming up with even more dubious rationales for doing things like using the Alien Enemies Act of 1798 (previously used only in wartime) to deport people who have not broken any laws to imprisonment, without any due process. The latter is just one of several dramatic examples of how we are now engaged in a struggle over the future of justice and the rule of law in this country. And, yes, left-wing government policies perpetrate plenty of injustices, as well.

Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late - both for you and (even more importantly) for the people who may be harmed.

4. Legal knowledge isn't as different from other kinds of knowledge as you might think.

Students often ask me how best to study for law school classes. My answer is that there isn't one way that's best for everyone. You probably know what works for you far better than I do.

In law school, you are likely to be bombarded with all sorts of complex methods of studying and outlining cases. Advocates of each will often tell you theirs is the One True Path to law school success. Some students really do find these methods useful.

But I would urge you to consider the possibility that you can study for law school classes by using…. much the same methods as you used to study other subjects in the past. If you were successful in social science and humanities classes as an undergraduate, the methods that worked there are likely to carry over.

I know because that's largely what I did as a law student myself. I did the reading, identified key points, and didn't bother with complicated outlines or spend money on study guides. If I did badly in a class, it wasn't for lack of more complex study methods (usually, I either got lazy or just had a bad day on the final exam). And I've seen plenty of other people succeed with similar approaches. You can save a lot of time and aggravation (and some money) that way. And that time, energy, and money can be better devoted to other purposes - including advancing your studies and your career in other ways!

Ultimately, when reading a legal decision (or any assignment), you need to 1) identify the key issues, and 2) understand why they are important. With rare exceptions, the case in question was likely included in the reading because it highlights some rule, standard, or issue that has a broader significance. If you know what that is and why it matters, much of your work is done. The same goes for most other kinds of assigned reading: they are probably there because the professor thinks they elucidate some broadly important point. Figure out what it is, and you will be in good shape.

These days, there is much discussion about the extent to which students should rely on AI to help them study. I don't have any definitive answer to that question. But, ideally, AI can augment your reading, writing, and analytical skills, but doesn't fully replace them. You should also be wary of its tendencies to hallucinate information. In addition to outright hallucinations, I often find that AI descriptions of legal and political issues feature more subtle, but still significant, distortions and errors. Use its output, but verify for accuracy. And, as with other study aids, the use of AI to study law need not be much different than its proper use for other subjects.

I don't think I need to dwell on how recent events have reinforced the significance of Point 3 above. Suffice to say there are many recent examples of lawyers facilitating both good and evil. Even if you don't maximize the former, you should at least avoid contributing to the latter.

From Thursday's opinion by Judge John Tuchi (D. Ariz.) in Campos v. Ariz. Bd. of Regents:

On April 26, 2024, Plaintiffs participated in a pro-Palestine student protest. As relevant here, in the days leading up to the protest, "Defendants engaged in extensive communication and preparation … externally with … affiliates of political organizations such as the Anti-Defamation League [("ADL")] … all with the goal of preventing or squashing any public demonstrations against the use of public assets to fund the genocide in Gaza or affiliation with pro-Zionist entities that might take place at [Arizona State University ("ASU")] or any other public Arizona university." One such communication took place four days before the protest on April 22, [2024], wherein the CEO of the ADL, Jonathan Greenblatt, "explicitly called for ASU to prepare and coordinate with law enforcement in order to impose clear and immediate consequences on students protesting Zionism and its murderous effects in Gaza."

Several hours into the protest, some of the Plaintiffs were forcibly removed, some were arrested, and some were injured. The next day, Plaintiffs were suspended, banned from ASU property, and prohibited from communicating with ASU faculty. Plaintiffs are now suing Defendants for violating their First Amendment right to free speech and discovery efforts are underway.

As relevant here, [ASU President] Dr. Crow has produced 662 pages of communications between ASU and ADL, including emails between Mr. Greenblatt and Dr. Crow. Plaintiffs detail some of those communications in their response brief including, for example, an April 11, 2024 email predating the protests in which Mr. Greenblatt announced the ADL's implementation of "Campus Antisemitism Report Cards" and informed Dr. Crow that ASU earned a "C" grade.

Free Speech Civil Procedure

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From Woodcock v. Van Tatenhove (E.D. Ky.), decided Friday by Judge Benjamin Beaton (W.D. Ky.):

Professor Ramsi Woodcock, currently suspended from his teaching duties at the University of Kentucky School of Law, has sued to block former U.S. District Judge Greg Van Tatenhove from serving as the law school's dean.

In his view, hiring a judge rather than a tenured professor to lead the school precludes the law faculty from expressing to the outside world that their scholarship is the product of a peer-reviewed search for truth. This abridges the faculty's collective right to associate around a shared message, Woodcock maintains, even though the University has not barred him or his colleagues from speaking out about the appointment or its effect on their work. Nor do Woodcock's allegations (as clarified during a TRO hearing) suggest that the University has prevented the faculty from writing, submitting, or publishing articles or other scholarship—or indeed from imposing or threatening any sort of sanction if they do. Yet to avoid sending a message the faculty disapproves of, Woodcock has asked the federal court to override the University's appointment, bar Van Tatenhove from serving, and "appoint the Faculty Executive Committee … to the position of dean." …

[T]he Court held a hearing on Monday, July 20, denying the request for a temporary restraining order on three principal grounds:

Woodcock hadn't established his right to bring a freedom-of-association claim based on the putative message of the entire law-school faculty.

Assuming the law faculty is an expressive association properly represented by Woodcock, he failed to show that the faculty had collectively articulated any message associated with its scholarship that has been skewed by the hiring of a new dean.

Assuming such a collective message existed, Woodcock hadn't shown a likelihood that the appointment of a new dean had abridged the faculty's ability to express any such message regarding its scholarship or membership.

Free Speech Campus Free Speech

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From the 36K-word decision in Laffery v. Pertl, by Wisconsin Court of Appeals Judge Maria Lazar, joined in part by Judges Lisa Neubauer and Mark Gundrum:

Appellants and foster parents, Brian and Katie Lafferty appeal the circuit court's order on cross-motions for summary judgment executed in favor of respondents Jeff Pertl and Julie Driscoll as well as the court's decision and order denying the Laffertys' motion for a protective order. The Laffertys have been seeking to exercise their state and federal constitutional rights for five years while the Wisconsin Department of Children and Families (DCF) and Washington County Human Services Department (the County) have dithered, moved the goal posts, and changed the rules of the game every step along the way.

The Laffertys' current appeal challenges several regulations … regarding the renewal of their foster home license, which they contend are facially unconstitutional. In 2020, Washington County began to require compliance with additional restrictions before a license could be renewed, including: (1) a storage requirement that mandated firearms be stored, in a location not readily accessible to children, locked and unloaded in the home and in a separate location from ammunition; (2) a carry ban that prohibited a foster parent with a conceal carry license from carrying a weapon in the presence of foster children; and (3) a disclosure requirement that mandated foster parents must list all firearms currently (and some formerly) owned, and to identify their locations and the separate location of ammunition. The Laffertys assert that the circuit court erroneously granted summary judgment against them on procedural grounds, and that the various rules and regulations imposed upon them by the County and/or the DCF violate their federal and state constitutional Second Amendment rights.

Guns Children's Rights

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Karim Khan, the Chief Prosecutor of the International Criminal Court from 2021 until his removal in 2026, ultimately lost his position after an investigation concluded that he had engaged in serious sexual misconduct toward a female subordinate. Khan denied the allegations, insisting they were false and politically motivated. Nevertheless, following an extensive investigation by the ICC's oversight bodies, he was first suspended and then dismissed by an overwhelming vote of the Court's member states—the first sitting ICC prosecutor ever removed from office.

The scandal also cast a cloud over Khan's handling of the ICC's investigation into Israel. According to The Wall Street Journal, after learning in May 2024 that the allegations against him were about to become public, Khan, stunning his own staff, abruptly canceled plans to continue gathering evidence in Israel and Gaza and instead quickly announced that he would seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, along with Hamas leaders. Whether or not the timing reflected an effort to divert attention from his personal scandal, it undeniably deprived the investigation of additional fact-finding that Khan himself had apparently considered necessary only days earlier. The warrants were later issued by the ICC and remain in effect despite Khan's removal because they are orders of the Court, not of the individual prosecutor.

Anti-Israel activists such as Zohran Mamdani will no doubt continue to invoke those warrants as proof that Netanyahu is a "wanted war criminal." But even putting aside the troubling circumstances surrounding Khan's decision to seek them, the warrants suffer from a separate and fundamental legitimacy problem.

As my colleague and co-blogger Eugene Kontorovich observed in 2024, Khan's decision-making process was compromised by his reliance on a handpicked group of advisers and outside experts who had already spent years publicly accusing Israel of war crimes and advocating legal action against it. Rather than assembling a balanced panel representing a range of views on the difficult legal questions presented by the conflict, Khan chose individuals whose public records left little doubt where they stood. To say the least, this was hardly a process designed to inspire confidence in the ICC's impartiality.

As Kontorovich notes, the most striking example was Kevin Jon Heller of the University of Copenhagen, whom Khan publicly thanked for his assistance when announcing the charges. Heller had endorsed the anti-Israel BDS movement, described Israel as systematically denying Palestinians basic rights, called Israel "the Donald Trump of repressive states," and in 2020 referred to Benjamin Netanyahu and Donald Trump as "two criminals conspiring to commit criminal acts against Palestine." He frequently relied on anti-Israel NGOs while dismissing pro-Israel organizations as traffickers in "fake law and propaganda." Nor were these isolated remarks. For example, in 2015, Heller declared that "my political sympathies are very much with Palestine" and said that he did not doubt Israel had committed various war crimes.

Kontorovich shows that the broader panel reflected the same pattern. Baroness Helena Kennedy had long urged ICC investigations of Israel, accused Israel of violating international law in Gaza, and publicly demanded that "enough is enough." Danny Friedman had already argued that Israel's pre-10/7 siege operations amounted to war crimes. Amal Clooney likewise had a well-established record of criticizing Israeli policy, while even the panel's Israeli member, former judge Theodor Meron, was better known for criticizing Israel's conduct than for defending it.

Missing entirely was anyone who had publicly questioned the ICC's jurisdiction over the conflict, challenged the legal theories underlying the proposed charges, or expressed skepticism that Israeli officials had committed international crimes. A panel assembled in that fashion could scarcely be expected to provide the independent, objective review that the gravity of seeking arrest warrants against the leaders of a democratic country at war.

An excerpt from Thursday's decision in Fayetteville Public Library v. Crawford County, by Judge Eighth Circuit Steven Grasz, joined by Judge Ralph Erickson:

To "protect children from obscenity," [Arkansas] Act 372's first section criminalizes "furnishing a harmful item to a minor …." A person commits this offense "if, knowing the character of the item involved, the person knowingly … [f]urnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors." Section 1 defines "[h]armful to minors" as

that quality of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when the material or performance, taken as a whole, has the following characteristics:

(A) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors;

(B) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and

(C) The material or performance lacks serious literary, scientific, medical, artistic, or political value for minors.

Arkansas can punish violations of § 1 with up to a year of imprisonment.

To "increase accountability for public-library curation decisions," § 5 requires county and municipal libraries to adopt two written, publicly available policies. The first policy must "establish guidelines for the selection, relocation, and retention of physical materials that are available to the public." And the second policy must allow people who are "affected by the material" to "challenge the appropriateness of material available in the county or municipal library" and must lay out certain procedures the library will follow, "at a minimum," when someone lodges such a challenge….

Free Speech

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8/3/1994: Justice Stephen Breyer takes oath.

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8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

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Rhode Island property targeted for condemnation to prevent construction of affordable housing on the site. (PLF).

Last year, I wrote about SCLS Realty v. Town of Johnston, a case where property owners challenged a Rhode Island town's plan to use eminent domain as a tool for blocking a housing project opposed by local NIMBYs. A few days, ago a federal district court invalidated the use of eminent domain there. But not on the "public use" grounds discussed in my 2025 post. Rather, the Court ruled that the Town was never delegated the authority to use eminent domain for this kind of purpose in the first place. In Rhode Island (as in other states) eminent domain is a power of the state government, and localities can only wield it in so far as the state legislature authorizes them to do so.

Robert Thomas of the Pacific Legal Foundation (the public interest law firm that represented the property owners) has a helpful and more detailed summary of the court's ruling at the Inverse Condemnation blog.

NOTE: PLF is also my wife's employer. But she has no involvement in this case and does not work on property rights issues.

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