The Volokh Conspiracy Archive

From Judge Allison Burroughs' Feb. 2 decision in Doe v. President & Fellows of Harvard College:

While it is within the Court's discretion to allow a party to proceed under a pseudonym, "[a]s a general rule, the presumption is that all judicial proceedings remain open to the public." "The presumption against pseudonymous litigation gives way only in 'exceptional cases.'" The analysis is as follows: "1) there is a presumption in favor of disclosure; 2) a party may rebut the presumption by showing that a need for confidentiality exists; 3) the court must balance the need for confidentiality against the public interest in disclosure." Alleged risks of harm that are speculative in nature, generalized, or without corroboration do not justify anonymity.

Having considered Plaintiff's Motion, the Court finds that Plaintiff has not rebutted the presumption in favor of disclosure. Plaintiff states that the litigation involves sensitive personal information regarding Plaintiff's ethnic heritage and academic records, and Plaintiff's identification would risk causing Plaintiff "unusually severe" professional, financial, and physical harm. The alleged risks that Plaintiff sets forth in his motion are without corroboration and do not rise above a level of mere speculation. Further, lawsuits often "implicate substantial amounts of private information," and if warranted going forward, the Court may employ tools such as redacting or sealing documents to manage privacy concerns that arise during the litigation. In light of the foregoing, Plaintiff's Motion, is DENIED.

[1.] From New York trial court judge Dakota Ramseur's opinion in Duncan v. Dick Blick Holdings, Inc., decided Jan. 21 but just posted on Westlaw (for more on the trans dimension, see item 4 below):

In July 2023, plaintiff Dustin Duncan commenced this defamation action against defendants Dick Blick Holdings, Inc. …, and Sawyer Allen, a/k/a Sawyer Quinn … related to various social media posts Allen made while employed by Blick that accused plaintiff of stalking and harassing him….

According to his first amended complaint, plaintiff is a professor of epidemiology at Columbia University whose fields of research focus on the intersectionality of health equity and black gay, bisexual, and other marginalized communities. In April 2023, he visited Harlem Dick Blick Store, a local art supplier near his campus, and placed an order to have certain works of art framed. Plaintiff first met Allen, an employee of Harlem Blick, while placing this order. During their interaction, Allen requested plaintiff's Instagram handle, which he provided, and both communicated with each other through the app for a period of a few weeks.

On or around June 9, 2023, plaintiff returned to the Harlem Dick Blick to pick up the framed artwork, at which time a manager approached him and stated that he would not be able to have additional artwork framed at their store. The manager explained, in front of other customers, that an unnamed employee had made accusations that he had been harassing or stalking them and that he would not be permitted to visit the store as pretext to engage in further harassment. Thereafter, on June 23, 2023, Allen posted the accusations of harassment to his Instagram account next to plaintiff's professional Columbia University photograph. The post's caption reads:

I recently became an adjunct fellow at the Manhattan Institute. The flagship journal of MI is City Journal, where I will contribute on a regular basis. For my inaugural essay, I decided to do something totally different, that is only tangentially about the law.

I have long had problems with how the calendar of holidays is structured. These holidays were not organized in a single plan, but instead were added in a piecemeal fashion over the years. Professionally, I see the difficulties of optimizing the law school academic calendar. I usually teach on Mondays. As a result, there is a gap for both the fall and spring semesters with Labor Day and MLK Day, respectively, which requires making up a class at an irregular time. Some years ago, I tried to move Labor Day till later in the semester to give students another reading day before exam; my motion failed. And, as a parent, I am repeatedly frustrated with how many days my kids have off from school. It is an abomination to hold back-to-back half days--all the frustration of getting kids ready in the morning, only to have to pick them up a few hours later. Anyway, calendars could improve. And one way to start is by realigning the holidays.

My essay is titled, Let's Fix Our Federal Holiday Schedule.

Here is the introduction:

At present, the United States has 11 federal holidays, accumulated over the course of two and a half centuries. Some of the current dates make sense; others don't. As a whole, these national holidays create complexities for Americans' school, work, and vacation calendars. We should rearrange this lineup.

Three principles guide this endeavor. First, it must be bipartisan. For better or worse, some holidays have become more associated with the Left and others with the Right. Reform will require give and take from both sides.

Second, the holidays should make it easier to establish regular schedules in schools and workplaces. One holiday in close proximity to another disrupts continuity.

Third, under the current calendar, several months have no holidays while other months have several. As any school child will tell you, it's not fair that six holidays are crammed together in the cold months, while only one holiday is in spring. As any school administrator will confide, Labor Day and MLK Day both make scheduling classes difficult. The holidays should be spaced out more evenly.

A few adjustments could create a calendar that garners bipartisan support, simplifies scheduling, and spaces out time for reflection and relaxation.

And here is where I ultimately wind up:

The resultant calendar: New Year's Day on January 1; Martin Luther King Jr. Day on the first Monday in February; President's Day on the first Monday in March; Labor Day on the first Monday in May; Memorial Day on the last Monday in May; Juneteenth on June 19; Independence Day on July 4; Constitution Day on September 17; Veterans Day on the third Monday in October; Thanksgiving on the fourth Thursday in November; and Christmas on December 25.

This plan checks all the boxes.

As is the case with many of my writings, the purpose here is to stimulate discussion. I'm sure there are other, better proposals. If you think of something, please drop me a line!

2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

Jeffrey Toobin had a remarkable column in the New York Times, titled "The Plan for a Radically Different Supreme Court Is Here." What is that plan? Read the article from top to bottom, and you won't find an actual plan. Not even the concept of a plan.

The ostensible purpose was to suggest that the American Constitution Society could be a viable alternative to the Federalist Society. There is glowing praise of ACS's newish President, Phil Breast. This column follows another glowing profile of Brest by Carl Husle in the Times in October. (I don't recall any such similar fanfare for Sheldon Gilbert, who has effortlessly taken the helm of FedSoc.) Yet if you peel a few layers deep off Toobin's lede, you realize precisely why ACS can never rival FedSoc. It is not because of lack of funds or lack of power, but due to a lack of ideas. In short, despite their best efforts, there is no viable alternative to originalism.

Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. "We have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics," he told me. "And it can't just be, 'We're not originalists' in the same way that A.C.S. can't just be, 'We're not the Federalists.' That's not how I view the organization, and that's not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there."

What is that "affirmative" theory? Brest has no clue. The only viable strategy is "antitrumpism."

For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump's record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building "a bulwark against overreach by the Trump administration and the Roberts court." This is understandable, perhaps even wise, because in the view of Mr. Brest's universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.

So much for a ruling for the ages.

How does that approach translate to judicial philosophy? In other words, what would a future Democratic President look for in judges? Brest also doesn't know:

Mr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. "As an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward," he said.

As for what those judges will stand for — as opposed to what they stand against — Mr. Brest has no clear answer. He, along with other Democrats, will need one.

I've lost count of the number of law review articles that attack originalism and textualism. Frankly, I've stopped reading them because they don't matter anymore. There was an ideological battle that was waged and won. And until the left can put forward a viable theory to compete, originalism will remain the dominant jurisprudential force. As Justice Scalia would say, FedSoc doesn't need to outrun the bear, we only need to outrun ACS. After half a century of great debate, the originalists are still not tired of winning.

From a decision last week in Smith v. Solomon, by Judge André Birotte Jr.:

Plaintiff files the [application] in a case voluntarily dismissed on January 28, 2026. Plaintiff now requests an order directing the "immediate redaction and removal of all personal identifying information ("PII")—including Plaintiff's legal name, address, or any identifying data" from PACER, PacerMonitor, CourtListener, any automated third-party docket-aggregation websites, any public-facing pages generated by the Court, or any publicly viewable filings in this matter. Plaintiff argues that the appearance of his full legal name in court documents threatens his safety, privacy, and well-being.

First, Plaintiff asks the Court to redact certain documents pursuant to Federal Rule of Civil Procedure 5.2. As an initial matter, it is not clear to the Court that any of the information Plaintiff seeks to have redacted falls within the scope of information that may be redacted under Federal Rule of Civil Procedure 5.2. Moreover, as stated in the Local Rules, "[i]t is the responsibility of the filer to ensure full compliance with the redaction requirements of Federal Rule of Civil Procedure 5.2." Plaintiff himself filed the information at issue without redactions. Thus, the Court cannot retroactively redact any information.

Next, Plaintiff argues the Court has the authority to protect litigants that file cases under pseudonyms. While the Court does have authority to permit a party to file under a pseudonym, the Court will exercise that authority only once a moving party has met their burden pursuant to a motion to use a pseudonym. The "normal presumption in litigation is that parties must use their real names." To overcome this presumption, a moving party must demonstrate that the "party's need for anonymity" outweighs the "prejudice to the opposing party and the public's interest in knowing the party's identity." Again, Plaintiff has not filed any motion to file the case under pseudonym nor has he made any argument overcoming the presumption against anonymity in his [application]….

Plaintiff's [further] argument that his information should be redacted pursuant to the California Safe at Home confidentiality program is also not persuasive. The California Safe at Home program is administered by the California Secretary of State's Office and offers a substitute mailing address for certain individuals who are in fear for their safety. While the Court recognizes the value of this program and Plaintiff's membership, he has not provided any explanation as to why this program requires or merits retroactive redaction of documents filed by Plaintiff himself.

From Thursday's Report and Recommendation in Virgil v. Experian Info. Solutions Inc. by Judge Mark Dinsmore (S.D. Ind.):

[T]his is the third time in the last year that the Undersigned has faced a similar issue. We live in a world of rapid technological advancement. A world in which many individuals have concerns that their jobs may be replaced by increasingly educated machines.

The practice of law is not just a job, it is a profession; a profession with standards and ethical responsibilities. One of the most troubling aspects of these situations is the lack of respect for the profession, and the lack of respect by the offending attorneys for their own personal capabilities, that these situations represent.

One would expect that, when individuals choose this profession, they do so in part because they believe they have some talent for the work. One would expect that, after several years of law school, and more years of practice, those attorneys believe they bring some level of value to their clients beyond that of a machine. Yet these situations represent an abdication of those personal and professional responsibilities to those very machines, which to date have not proven themselves up to the task.

While the Undersigned has long recognized the value of the proper and efficient use of technology, my confidence in the profession and the generations of lawyers who have shaped it prevents me from believing that it can ever be replaced by a machine, no matter how advanced. However, the preservation of that profession requires ever increasing levels of diligence and vigilance from each and every attorney and judge involved in the process. Absent that, someday clients may well be better off accepting advice from a machine as opposed to a careless and inattentive attorney. That is a day the profession of law must not allow to come to pass….

Some more details on the particular transgressions in the case:

2/16/1833: Barron v. City of Baltimore decided.

2/15/1790: Justice John Rutledge takes oath.

A passage from one of counsel's filings, particularly noted by the court.

Some excerpts from the long discussion in Parker v. Costco Wholesale Corp., decided in November by Magistrate Judge S. Kate Vaughan (W.D. Wash.), but only recently posted on Westlaw:

The Court identified material misstatements and misrepresentations in those filings, which contained hallucinated case and record citations and legal errors consistent with unverified generative artificial intelligence ("AI") use and ordered Counsel to show cause as to why sanctions should not issue. The Court outlines its observations before turning to Counsel's explanations….

Review of Plaintiff's Response to Defendant's Motion for Summary Judgment ("MSJ Response") indicated the filing relied on inapplicable law, misrepresented and misquoted the law and the record, and included a wide array of idiosyncratic citation errors. For brevity, the Court summarizes the most egregious examples….

[Among other things,] Counsel included hallucinated and inaccurate quotes to the record. This was particularly egregious given that he sought to demonstrate a question of material fact precluded summary judgment and attempted to do so by relying on mischaracterized evidence….

Viewed collectively, these legal, citation, and factual errors bore the hallmarks of unreviewed AI-generated work product or exceedingly negligent drafting….

The quality of Counsel's filings further deteriorated….

Plaintiff's Reply was otherwise notable in two respects. First, the text appeared to have been copy-pasted from a generative AI program without any quality control. Straight, as opposed to curly, apostrophes and quotation marks remained throughout, indicating the content was likely not typed into a word processor. At some point, the program apparently experienced, and documented, an "[ ]artificial error[.]"

2/14/1845: Justice Samuel Nelson takes judicial oath.

So Judge Beth Bloom (S.D. Fla.) decided in today's O'Leary v. Armstrong, The defendant had earlier failed to defend himself, and had default judgment entered against him as to the falsity of his allegations. The findings of fact:

[Kevin] O'Leary is an internationally renowned entrepreneur, investor, and television commentator. He was the founder of The Learning Company, a company that sold software programs for math and reading. He sold The Learning Company to Mattel in the early 2000s and has been investing in hundreds of businesses since then in all 11 sectors of the economy. O'Leary later became widely known for his role on the television show, Shark Tank, where he and the other "Sharks" evaluate and invest in a range of emerging and start-up businesses. Around that same time, he started appearing on American television networks as a frequent contributor on "business affairs, policy, and technology." In addition to his investing activities and television work, O'Leary also serves as a keynote speaker for major financial institutions. O'Leary's social media presence spans 11.1 million followers, a substantial portion of whom are entrepreneurs.

O'Leary filed this action against Defendant Ben Armstrong—known publicly as "Bitboy Crypto"—for maliciously publishing defamatory falsehoods calling O'Leary a murderer and claiming O'Leary "paid millions to cover" up his role in a murder….

In 2019, O'Leary and his wife were involved in a boating accident in which their vessel struck another boat, resulting in two fatalities. O'Leary was not operating the boat at the time and was never charged with any violation of law. His wife, Linda O'Leary, was charged with careless operation of a vehicle. After a 13-day trial, she was exonerated after the court found the other vessel had been operating without its lights on.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

As Steven Calabresi notes, this is the tenth anniversary of Justice Antonin Scalia's death. The American Enterprise Institute hosted a two-day conference on his work and his legacy featuring scholars, judges, former clerks, and family members. On the second day, I participated in a panel focused on originalism and textualism. Other panels focused on such topics as the separation of powers, religious liberty, and administrative law.

The video of the first day can be found here.

The second day can be found here.

The overall agenda is here. The event was co-hosted by the Ethics and Public Policy Center.

The Volokh Conspiracy

No Pseudonymity for Man Suing Harvard Alleging Jews Aim "to Exterminate or Enslave All Non-Jews"

Stalking Allegations, Defamation and Malicious Prosecution Claims, and Professors, with a Trans Angle

New in City Journal: Let's Fix Our Federal Holiday Schedule

Today in Supreme Court History: February 17, 1801

Open Thread

The American Constitution Society Still Does Not Have A Competing Theory Other Than "Antitrumpism"

No Retroactive Pseudonymization in Federal Court Under California "Safe at Home" Program

"One Would Expect … Attorneys Believe They Bring Some Level of Value to Their Clients Beyond That of a Machine"

Today in Supreme Court History: February 16, 1833

Open Thread

Today in Supreme Court History: February 15, 1790

Open Thread

"The Quality of Counsel's Filings Further Deteriorated"

Today in Supreme Court History: February 14, 1845

Open Thread

Mr. Wonderful v. BitBoy Crypto: Shark Tank's Kevin O'Leary Awarded $2.8M in Defamation Suit

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

AEI's Conference on Scalia's Legacy

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