1/19/1990: Justice Arthur Goldberg dies.
Today in Supreme Court History: January 19, 1990
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
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The Board of Peace Is A Step Away From Failed International Institutions
The details are unclear, but Trump seems to be setting up an institution that could supplant the United Nations Security Council.
Earlier this month, I published an essay titled Eliminating Liberal International Asymmetries. I discussed how President Trump is trying to abolish asymmetries in international law that will necessarily favor progressive views. I wrote about the United Nations, in particular, which has proven to be a failed institution, in large part because it gives stature to all nations.
This much is well known. But less understood is how the United Nations, and other international bodies, have inverted the normal course of international law. In many contexts, a coalition of smaller nations may seek to shape the foreign policy of larger nations that they could not challenge in other contexts. To be sure, the United States and four other superpowers retain a veto on the United Nations Security Council. But in most other contexts, a majority group of minority nations can set the agenda and shape expectations about international authority. It is far more difficult for any nation, including the United States, to withdraw from the United Nations Charter than to withdraw from a bilateral treaty. As a result, great nations have to suffer complaints from weaker nations, all for the sake of faux equality. It has always been a fiction to treat countries with weak influence as having the same stature as countries with strong influence. The United Nations reminds me of a liberal little league: no one keeps score, the best players are benched so weaker players have the same number of at-bats, and all the teams receive the same participation trophy regardless of their record.
Recent developments provide some more data points for my analysis. It seems that Trump's proposed Board of Peace is not limited to the conflict in Gaza. Rather, Trump seems to be establishing something of on alternative to the United Nations. The United States would invite members to join, and they would have to play a $1 billion entrance fee. Only the largest, most-powerful nations will be able to participate.
The New York Times has some details, but much remains unclear:
President Trump's "Board of Peace" is billing itself as a new international peacekeeping body — and permanent membership won't come cheap.
Mr. Trump is inviting countries to join beyond a three-year term, if they're willing to cough up more than a billion dollars in cash within the board's first year, according to a draft of the board's charter reviewed by The New York Times.
And while the board was conceived as part of Mr. Trump's plan to oversee Gaza, there is no mention of Gaza in the charter. That omission added to speculation that the group may have a broader mandate to cover other conflicts and could even be aimed at creating a U.S.-dominated alternative to the United Nations Security Council. . . .
The board's charter was sent out with invitations to potential members over the weekend. A copy reviewed by The Times was verified by an official on the condition of anonymity because of the delicate diplomacy. News of the $1 billion buy-in was previously reported by Bloomberg.
On Friday, the White House announced the board's members would include Secretary of State Marco Rubio, Jared Kushner, Mr. Trump's son-in-law, and Ajay Banga, the head of the World Bank.
Several countries said they had received invitations to join, including Argentina, Canada, Egypt and Turkey. King Abdullah II of Jordan has also been invited, the Jordanian Foreign Ministry announced on Sunday. . . .
The charter appears to outline a much more ambitious role for the board than the one described in Mr. Trump's plan for Gaza, published in October 2025, as well as the subsequent Security Council resolution.
The board's mission, according to the charter, is to seek "to promote stability, restore dependable and lawful governance, and secure enduring peace in areas affected or threatened by conflict" and "to undertake peace-building functions in accordance with international law."
The preamble emphasizes the need for what it calls "a more nimble and effective international peace-building body" and laments that "too many approaches to peace-building foster perpetual dependency and institutionalize crisis rather than leading people beyond it."
According to the charter, the board is expected to meet for voting at least annually, and expenses are to be funded through voluntary contributions from member states or other sources. The charter does not elaborate on the peacekeeping efforts.
For nearly six decades, there has been something called a "peace process" in Israel. Can something that has failed for six decades still be called a process? Indeed, Palestinians are unique in that they can inherit refugee status. And UNRWA, the United Nations relief agency, was Hamas terrorists. There is perpetual dependency on these institutions, that are not actually equipped to ended crises.
Will this Board of Peace supplant the United Nations Security Council? Who knows. But Trump, as usual, is trying to shatter paradigms in nearly every corner of the globe.
Update: The Times published a guest essay by the secretary general of the Council of Europe. It finishes with this choice:
International law is either universal or meaningless. Greenland will show which one we choose.
If international law is meaningless, that change did not happen overnight, or even with Trump's election. It has been a slow, gradual process that was visible for all to see, but those vested in its perpetuation maintained the fiction. I think international law will continue to exist, but not the form erected during the post World War II settlement. In the same way that modern conservatism no longer has much relation to the Goldwater-Reagan coalition (as Ross Douthat explained), international law will no longer have much relation to the United Nations and related institutions. Things are not fixed in stone. Trump, as I noted above, has proven a unique adeptness to finding all of the pre-exisitng cracks in these edifices, and smashing them.
Guest-Blogging on "Religious Employment and the Tensions Between Liberty and Equality"
I'm delighted to report that R. Shawn Gunnarson, James Phillips, and Christopher Bates will be guest-blogging this coming week on this article that they just published in the BYU Law Review; here's the Abstract:
Located in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute's text says otherwise.
This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title VII reveals the statute in a new light. The text reveals Title VII as a complex piece of legislation that preserves areas of employer liberty and autonomy, even as it guarantees greater employee equality.
Viewing the structure of Title VII from the perspective of tensions between liberty and equality—a familiar theme in classical liberal theory—makes sense of Congress's decision to protect liberty for small and tribal-related businesses, bona fide occupational qualifications, and other employers, even while removing barriers to employment opportunity elsewhere. That same perspective explains why Congress adopted an exemption for religious employers to shield them from the consequences of an unqualified egalitarian framework.
A textualist reading of the exemption shows that a religious employer is authorized to make employment decisions based on religious criteria, free from any obligation under Title VII—but not to make employment decisions for non-religious reasons that the statute forbids. By articulating the exemption's best reading, our approach holds the key to resolving a long-running circuit split along with several persistent questions and objections. In sum, this article is the first to demonstrate that a textualist reading of the religious employer exemption reveals Title VII as not merely an equality statute nor a liberty statute.
I'm much looking forward to their posts.
Second Amendment Roundup: Expert Historian Testimony Is Unnecessary in Second Amendment Litigation
Wolford presents a good opportunity for the Supreme Court to explain why.
In Wolford v. Lopez, the Supreme Court has the opportunity to clarify for the lower courts the difference between legislative and adjudicative facts. Lower courts hostile to the Second Amendment routinely confuse legislative and adjudicative facts, seeking to turn Second Amendment litigation into an expensive and time-consuming battle of the academic experts and historians where the "winner's" opinions are insulated from review absent a finding of clear error.
Adjudicative facts refer to evidence about the conduct of the parties within a case, i.e., the answer to the question "did the defendant drive through a red light?" Historical laws and events that do not bear on the conduct of the specific parties are legislative facts, i.e., Founding Father James Madison died in 1836 or the British were marching to seize arms and weapons when the Battle of Lexington and Concord broke out.
Nevertheless, lower courts often hear testimony from so-called "expert" historians on questions of legal interpretations involving Second Amendment issues and historical firearm regulations. Then, those lower courts rely on that testimony to make legal findings about the meaning of the Second Amendment and the constitutionality of modern gun laws. Not only are these courts legislating from the bench, they are signaling a return to interest balancing in defiance of the Court's holding in Bruen.
In the district court in Wolford, Hawaii submitted multiple expert reports that opined on the meaning of the common law and early American firearm restrictions. Historian Clayton Cramer's amicus brief in Wolford explains that in some instances, these experts opined on whether Heller, McDonald, and Bruen are historically accurate. But such determinations are legal conclusions, not factual findings. Legal conclusions cannot be made by expert witnesses, only judges can make legal conclusions. But such expert testimony is unnecessary to determine whether a historical analogue proffered by the government is relevantly similar to a modern gun control law being challenged.
Indeed, the Supreme Court has never required testifying experts to resolve Second Amendment questions. Heller came to the Court on a motion to dismiss, with no factual record developed below. McDonald similarly did not need a trial – the only issue was whether the Second Amendment applied to the States through the Fourteenth Amendment. When New York argued that the Court could not decide Bruen without further fact finding, the Court rejected that assertion and further dismissed as unnecessary Justice Bryer's request for remand, instead ruling directly on the pleadings without any discovery. Rahimi came to the Court on a guilty plea, without any trial. Expert testimony by historians and others addressing the Second Amendment's meaning is unnecessary and should be discouraged by the Supreme Court.
Treating legislative facts as adjudicative facts subjects rights' claimants to long, expensive trials, and binds appellate courts to incorrect factual findings. If the historical record was a matter of adjudicative fact, plaintiffs and the government would have to submit expert testimony, file and adjudicate Daubert motions, examine and cross-examine these witnesses, and then let a jury or judge make findings of fact about what the Founding generation intended over 200 years ago. This is unfair to Second Amendment rights claimants when confronted with the largely infinite resources of the government and the gun control-supporting handmaidens in universities and public health schools full of anti-gun Progressives. Further, findings of fact can only be reversed by an appellate court if they are "clearly erroneous," which is a very high bar to satisfy. Credibility determinations at the trial level also come into play further complicating the issue.
Amusingly, or maybe not so much, one district court found that Massad Ayoob could not be credited as an expert in firearms given his pro-Second Amendment leanings despite being recognized as a world-class expert firearm and self-defense expert for decades. Instead, the court deferred to Lucy Allen, an economist, who "has been conducting statistical analyses related to crime and gun use for twenty-five years" – hardly a qualification as a self-defense expert – and who serves as an "expert" in other gun cases for $900 per hour.
Or consider historian Saul Cornell, who wrote in Slate that "the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history." In one of his many declarations filed thereafter, he purports to explain: "Following the mandates set out … in Bruen, history provides essential guideposts in evaluating the scope of permissible regulation under the Second Amendment."
However, if courts treat history as legislative facts, as they should (and as the Supreme Court instructs by its decisions in Heller, Bruen, McDonald, Caetano, and Rahimi), then appellate courts may review a district court's findings de novo, go beyond the record to find more legislative facts, and consider facts introduced by the parties in the appellate court but not the district court. This further lessens the burden on rights' claimants who should not be required to spend exorbitant sums preparing and defending expert testimony.
When the Supreme Court decides Wolford, it should seize upon the opportunity to instruct the lower courts that Second Amendment cases turn on legislative and not adjudicative facts. Legislative facts cannot be converted into adjudicative facts by judicial fiat, and expert testimony interpreting historical firearm laws is not necessary or encouraged. Appellate review of Second Amendment challenges should be de novo and not subject to a clearly erroneous standard on appeal.
For more detail on the use of biased "experts" in Second Amendment cases, see my post "Should Courts Appoint Historians as Experts in Second Amendment Cases?"
Trump's Plan to Seize Greenland is Simultaneously Evil, Illegal, and Counterproductive
It would alienate allies, impose US rule on an unwilling population, and blatantly violate both US and international law.The plan to impose tariffs on nations opposing the seizure is also illegal and harmful.
Donald Trump's plan to seize Greenland has the rare distinction of simultaneously combining grave injustice, massive illegality, and extreme counterproductive stupidity. The same is true of his more recent effort to impose tariffs on eight European countries opposing the plan.
Let's start with first principles. As the Declaration of Independence states, government should be based on the "consent of the governed." No real-world government is fully consensual. But a US conquest would make the government of Greenland less consensual than it is now. Polls indicate some 85% of Greenlanders oppose annexation by the US, while only 6% support it. In the 2025 Greenland election, the overwhelming majority of them voted for parties that support either independence or continued rule by Denmark.
Forcible annexation could perhaps be justified if it were the only way to stop some kind of severe oppression. But there is nothing like that in Greenland. Nor is there any reason think that US rule would be significantly better in terms of protecting various human rights than the current combination of Danish rule and extensive regional autonomy.
In addition to being unjust, US conquest would also obviously be illegal. It would, in fact, be a war of aggression similar to Russia's assault on Ukraine. The Nuremberg tribunal ruled that starting a war of aggression is "the supreme international crime," and this was one of the main charges on which many of the Nazi defendants were convicted. Denmark has owned Greenland for centuries and its sovereignty over that territory is universally recognized, including by the US in a 1917 agreement, in which the US accepted the "extension" of Danish control over all of Greenland.
The initiation of war - perhaps even an illegal war - can sometimes be justified for the purpose of removing a brutally oppressive regime. But, again, Danish rule in Greenland is nothing like that.
A war of aggression to conquer Greenland would violate US law, as well as international law. The US and Denmark are both signatories to the North Atlantic Treaty, which established NATO. Article V of that treaty requires the parties to come to each other's defense in the event of an "armed attack" against any of them, in Europe or North America. If the US is required to help defend Denmark against attack, it is obvious that it also has an obligation not to attack Denmark's territory itself.
Under Article VI of the Constitution, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Thus, Trump and other US officials are required to obey both the North Atlantic Treaty and the 1917 treaty recognizing Denmark's sovereignty over Greenland.
These points all still apply if Trump's plan is "merely" to use the threat of force to coerce Denmark into selling Greenland. Using the threat of an unjust and illegal war to take another nation's land is itself unjust and illegal. It's a kind of international extortion scheme.
In addition to being unjust and illegal, the plan to seize Greenland is also incredibly stupid and counterproductive. The main official rationale is the supposed need to protect Greenland from seizure by Russia and China. But those countries have no forces in the region that could possibly take it. Moreover, in the unlikely event that a genuine threat were to materialize, an existing agreement with Denmark already allows the US to station as many troops in Greenland as it needs for defense. In the event of attack, the two nations could also call on the assistance of the other NATO states.
If Trump really wanted to counter Russia, he would join with other NATO allies in backing Ukraine. If Russia is defeated in Ukraine, or even just remains bogged down there, it cannot pose much of a threat to Greenland or any other NATO territory. Instead, Trump has been betraying Ukraine and undermining NATO by threatening an ally's territory. Such moves actually help Russia and our other enemies, rather than hinder them.
An attack on Greenland would predictably alienate the allies, and severely undermine the alliance, if not destroy it completely. The loss of our most important allies would weaken the US and strengthen our enemies far more than owning Greenland could possibly benefit us. Denmark itself is a longtime steadfast ally, and sent some 10,000 troops to support us in Afghanistan. If we betray a close, longstanding ally in such an egregious way, other allies will see they cannot count on us, and will draw the obvious conclusions.
Another possible rationale for Trump's move is obtaining Greenland's mineral wealth. But we can far more easily obtain access to it through the simple mechanisms of trade and investment, to which Denmark and Greenland are open. In any event, any economic or strategic gain here is far outweighed by the immense harm of alienating all our allies.
What is true of Trump's plan to conquer Greenland is also true of his more recent plan to impose 10% tariffs (slated to increase to 25% on June 1) on eight European nations opposing his effort. Using such economic coercion to promote an unjust goal is an additional injustice. In addition to unjustly punishing the European allies, it will also harm numerous US businesses and consumers, much as Trump's previous tariff increases are doing.
This use of tariffs is also illegal. The likely mechanism Trump intends to use is International Emergency Economic Powers Act of 1977 (IEEPA). As I have pointed out before, IEEPA doesn't authorize tariffs at all (the word isn't even mentioned in the statute). In addition, IEEPA can only be used to counter an "unusual and extraordinary threat" to America's economy, national security, and foreign policy.
There is nothing unusual and extraordinary about Danish rule over Greenland. It has existed for centuries! Nor, for reasons noted above, does it pose any kind of threat to the US. The utter ridiculousness of claims to the contrary is yet another example of why courts should not defer to executive invocations of extraordinary emergency powers, but rather should require the executive to prove the claimed emergency triggering the use of extraordinary authority actually exists. Otherwise, emergency powers would become blank checks the president can use whenever he feels like it, which is the exact opposite of how emergency powers are supposed to work.
In the event there is uncertainty about what IEEPA means, the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance," mandates a narrow interpretation here. Tariffs imposed for the purpose of facilitating a war of conquest that would have the effect of undermining America's most important alliance are pretty obviously an issue vast economic and political significance.
Furthermore, if IEEPA really is a blank check for the president to impose tariffs in any situation he wants, the law would become unconstitutional. It would violate the nondelegation doctrine, which limits the extent to which Congress can transfer its powers to the executive.
These and other issues related to IEEPA are among the questions currently being considered the Supreme Court in the tariff case in which I am one of the attorneys for the plaintiffs. If we prevail, it may prevent Trump from using IEEPA to try to help him seize Greenland, as well.
Trump could potentially instead rely on Section 232 of the Trade Expansion Act of 1962, which allows imposition of tariffs against imports that the Department of Commerce investigates and concludes "threaten to impair" national security. But, as with IEEPA, the claim that national security is threatened by imports here is absurd. If it were to be accepted by courts, Section 232 would also become a blank check for unlimited executive imposition of tariffs. Here, too, the major questions and nondelegation doctrines would weigh against the administration's position. The supposed threat is here is not actually the imports themselves, but Denmark's refusal to transfer Greenland to the US. And the claim that that is a threat is also ridiculous.
Finally, imposing massive tariffs on NATO allies in order to pressure them to abandon Denmark is yet another stupid and counterproductive move. It, too, alienates allies and undermines US national security far more than it could possibly benefit it. Having numerous European states as allies is infinitely more valuable than anything we could get from owning Greenland.
Today in Supreme Court History: January 18, 1873
1/18/1873: Bradwell v. Illinois argued.
Today in Supreme Court History: January 18, 1873
1/18/1873: Bradwell v. Illinois argued.
Open Thread
What’s on your mind?
How to Abolish ICE
Recent events in Minnesota bolster the already strong case for abolishing ICE - and for the plan of doing so by transferring its funds to ordinary state and local police.
Recent Immigration and Customs Enforcement (ICE) depredations in Minnesota further strengthen the already compelling case for abolishing the agency. A recent federal district court ruling outlines in detail ICE's extensive use of force against peaceful protestors, violations of a variety of constitutional rights, and other cruel, unjust and illegal actions. Moreover, it is clear that these wrongs are not just the fault of a few rogue agents, but structural defects in the agency and its mission, exacerbated by the Trump administration's enormous expansion of it, and hiring of numerous dubious new recruits. The agency doesn't even follow its own supposed safety guidelines, which neglect was one of the reasons for the indefensible killing of Renee Good.
These widespread abuses have turned already skeptical public opinion further against ICE, to the point where a substantial majority of Americans disapprove of the agency, and - for the first time - a narrow plurality want to see it abolished.
Abolition is indeed the right approach. In an August 2025 article in The Hill, I outlined how to do it: by shutting down the agency and transferring its funds to state and local police. This strategy would have the virtue of simultaneously further expanding political support for abolition, reducing crime, and ending ICE abuses. Here is a brief excerpt:
The Immigration and Customs Enforcement agency has become notorious for its cruelty, abuses of civil liberties and racial profiling. As a result, the agency and the Trump administration's deportation policies generally have become increasingly unpopular…..
[M]ost Democrats have hesitated to call for the agency's abolition, probably for fear of seeming to be soft on crime…. But opponents can avoid such accusations by combining abolition of ICE with reallocation of its funds to ordinary police, which would undercut accusations of being pro-criminal or anti-law enforcement. This could greatly expand support for abolition….
In my 2022 book "Free to Move," I proposed dismantling ICE and giving the money to ordinary police, perhaps in the form of federal grants to state and local law enforcement. Recipient agencies should be required to use the funds to target violent and property crime, and abjure ICE-style abuses.
Putting more ordinary police on the streets is an effective way to reduce crime rates, according to a long line of studies….
Focusing on undocumented immigrants is a poor use of law enforcement resources…. Transferring ICE funds to state and local police would allow a greater focus on violent and property crime, regardless of the perpetrators' background….
Abolishing ICE would not end all deportations. State and local authorities could still, in many cases, turn illegal migrants over to the federal government for removal… But abolishing ICE would make deportation much more dependent on state and local cooperation and would empower jurisdictions to make their own choices.
This strategy is even more viable today than might have been the case a few months ago. Events in Minnesota have further turned public opinion against ICE, and the idea of transferring its funds to real cops can provide an additional boost for abolition, by neutralizing fears that doing so would somehow increase crime. In addition, transferring the money to state and local cops could draw support from law enforcement interest groups that would stand to benefit.
In the August article, I also outlined how ICE abuses - including illegal violence, racial profiling, and horrific detention conditions - were already ubiquitous, even before the outrages in Minnesota. Recent events are an expansion of these evils, not a singular aberration. In that article, and a follow-up piece for the Boston Globe, (non-paywalled version here), I addressed a number of possible objections, such as concerns that local police also engage in various abuses. Here is an excerpt from that second article:
Many studies show that putting more police on the streets can reduce crime. Indeed, diverting law enforcement resources from deportation to ordinary policing can help focus more effort on the violent and property crimes that most harm residents of high-crime areas. Deportation efforts, by contrast, target a population with a lower crime rate than others…..
Some progressives might nonetheless oppose transferring funds to conventional police. The latter, too, sometimes engage in abusive practices, including racial profiling. I share some of these concerns and am a longtime advocate of increased efforts to combat racial profiling. But comparative assessment is vital here. Despite flaws, conventional police are much better in these respects than ICE, with its ingrained culture of brutality and massive profiling. They have stronger incentives to maintain good relations with local communities and don't need to rely on racial profiling nearly as much to find suspects. A shift of law enforcement funds from ICE to conventional police would mean a major overall reduction in racial profiling and other abuses.
Survey data show most Black people (the biggest victims of profiling) actually want to maintain or increase police presence in their neighborhoods, even as they (understandably) abhor racial profiling. Grant money transferred from ICE could potentially be conditioned on stronger efforts to curb racial profiling and related abuses, thereby further reducing the problem. It should also be conditioned on spending it on combatting violent and property crime, and structured in a way that prevents excessive dependence on federal funding.
If ICE can be abolished without transferring the funds to local and state police, I would still support doing so. But the strategy I outline offers the most likely pathway to political success, and could simultaneously reduce criminality in high-crime neighborhoods.
I first outlined this general approach to immigration and crime issues in Chapter 6 of my 2022 book "Free to Move: Foot Voting, Migration, and Political Freedom," where I also make other points on why crime control is a poor justification for deportation and immigration restrictions. See also my more recent discussion of these broader issues here.
Today in Supreme Court History: January 17, 1973 and January 17, 1996
Frontiero v. Richardson (1973) and United States v. Virginia (1996) were argued on the same day, twenty-three years apart. Ruth Bader Ginsburg argued the former case, and wrote the majority opinion in the latter case.
Open Thread
What’s on your mind?
Arkansas Case on Zoning Laws Being Used to Exclude Gun Shops
In yesterday's Arkansas Supreme Court decision in Eureka Gun & Pawn, LLC v. City of Eureka Springs, the majority dismissed Eureka Gun & Pawn's appeal on procedural grounds. But three of the seven Justices opined on the substantive issue; from Justice Shawn Womack's concurrence, joined by Justices Barbara Webb and Nicholas Bronni:
[H]ad the matter proceeded in its proper posture, Eureka Gun should have prevailed on the merits…. Eureka Gun presented substantial evidence—including from the City's own planning-commission members and nearby commercial owners—that its application satisfied the ordinance's factors and that the proposed use was compatible with the surrounding district. And, other than testimony from City officials that they would not approve a CUP [Conditional Use Permit] for any business to sell firearms anywhere in the city, there was no real evidence identifying an ordinance factor that weighed against the CUP….
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Bad aim, conjugal visits, and a cavalier gun dealer.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Hot dang! Today, the Michigan Supreme Court agreed to hear an IJ case of keen interest to state constitutional mavens: whether there's an implied cause of action to bring constitutional-tort claims against local governments and local officials who behave very, very poorly. (We say yes.)
And speaking of state constitutions, if you're a fan of courts interpreting them as something other than carbon copies of the federal Constitution, IJ's Rob Peccola has a heartening tale about Pennsylvania's search-and-seizure provision for you over at the Brennan Center's State Court Report.
New on the Short Circuit podcast: If someone bails you out make sure you get a receipt.
- In which the Second Circuit finds that Cavalier Knight has standing to challenge New York's gun-dealer licensing law but somehow spends 14 pages on legal analysis instead of just acknowledging that a guy named "Cavalier Knight" really has no choice but to become a gun dealer.
- Federal officials arrest lawful permanent resident to avert "potentially serious adverse foreign policy consequences." Permanent resident: That's bogus, this is all retaliation for my pro-Palestinian speech. D.N.J.: Release him. Third Circuit (over a dissent): Vacated. He can pursue his claims later in the removal process, and if he's wrongfully imprisoned in the meantime, well, that happens all the time.
- In the days following 9/11, co-founder of Falls Church, Va. Islamic Center tells followers they should repent, leave the U.S., join the mujahideen, go to Pakistan for combat training, and otherwise help Muslims defend Afghanistan. He's convicted of a slew of offenses in 2005, including soliciting others to levy war against the U.S. (It's on direct appeal some two decades later following a series of intervening appeals about the man's access to relevant documents.) Fourth Circuit: As inflammatory, disturbing, and deeply offensive as his words may have been, they did not urge a concrete criminal plan or provide operational assistance for the commission of any particular offense. Thus, his speech was protected by the First Amendment and his convictions vacated. Read More
Business Is Apparently Selling AI-Hallucination-Filled Documents to Unwary Litigants, Court Says
From Judge Michael Liburdi (D. Ariz.) last Friday in Gardner v. Nationstar Mortgage LLC:
Through these proceedings, brought by Plaintiff to halt a foreclosure of her home, the Court learned of non-party document preparers seeming to hold themselves out as attorneys and using undisclosed artificial intelligence platforms ("AI") to draft documents used in this litigation on Plaintiff's behalf. By all appearances, these document preparers purported to help her prevent foreclosure of her home while diverting funds she could have used towards the mortgage payment it and preparing claims without legal basis for Plaintiff to file.
Thus, the Court brings the matter to the attention of the State Bar of Arizona and the Attorney General of Arizona. The Court instructs the Clerk of Court to provide a copy of this order to each for investigation, if appropriate, and such further action as these entities deem necessary….
After the death of her husband, Plaintiff took over the financial responsibilities of her household; as a result, she faced foreclosure and initiated this action. A recognized title company referred Plaintiff to Clearpoint. Fearful of losing her home, Plaintiff hired Clearpoint to prepare her legal documents.
Plaintiff did not understand any of the legal documents she submitted to the Court and followed instructions from Clearpoint throughout the litigation process because her contacts called themselves the "Litigation Team." … After removing the case [to federal court], Nationstar filed responsive pleadings, in which it highlighted over sixty instances of inapplicable law, nonexistent cases or legal principles, and misconstrued holdings and quotations in Plaintiff's Complaint and Amended Motion for Preliminary Injunction.
Year in Prison for Role in Hate Crime Hoax
So Judge Regina M. Rodriguez (D. Colo.) decided yesterday in U.S. v. Blackcloud; for more on the case, see this November 2024 press release by the U.S. Attorney's office in Colorado:
The United States Attorney's Office for the District of Colorado announces that Derrick Bernard Jr., 35, [Ashley] Blackcloud, 40, and Deanna West, 38, were indicted by a federal grand jury for maliciously conveying false information about a threat made by means of fire: a burning cross in front of a campaign sign defaced with a racial slur.
According to the indictment, the three defendants were charged for their alleged roles in a conspiracy to spread disinformation about the threat. The 2023 Colorado Springs mayoral run-off election involved Candidate 1, who was Black, and Candidate 2, who was white. After the initial election but before the run-off, Bernard sent a message to the other defendants in which he explained he was "mobilizing my squad in defense. Black ops style big brother." He also sent messages referencing a desire to prevent "the klan" from gaining political control of the city. Bernard then worked with Blackcloud and West to stage, at an intersection in the City of Colorado Springs in the early hours of April 23, 2023, a cross burning in front of a campaign sign for Candidate 1 defaced with a racial slur. The three then allegedly spread false information about the event through an email from an anonymous source to various news and civic organizations.
And from the indictment:
During the election, supporters of CANDIDATE 1 placed a campaign sign encouraging others to vote for CANDIDATE 1 in a grassy area on the northwest corner of the intersection of North Union Boulevard and East Fillmore Street, two of Colorado Springs's major traffic arteries. On or about April 23, 2023, between approximately 2:30 a.m. and 3:30 a.m. BERNARD, BLACKCLOUD, and WEST worked together to place a wooden cross in front of that campaign sign. Red spray paint, similar in kind to a can later found in the passenger compartment of BLACKCLOUD's car, was used to write the word "nigger" on the sign. The wooden cross was then set on fire….
"The Waning of Racial Preferences at American Law Schools, 2021-2025," by My UCLA Colleague Rick Sander
From this new draft, cowritten by Prof. Sander and Henry Kim:
In June 2023, the Supreme Court broadly held that colleges and universities could not confer an admissions advantage to an applicant on the basis of the applicant's race. The ruling was fairly clear, but its likely effects were not. There were two major uncertainties. Would the institutions that had been using large racial preferences for decades actually change their practices in a substantive way? And if they did, would Black and Hispanic enrollments at elite colleges and professional schools crash?
The schools themselves were not forthcoming about their plans, aside from generally expressing a determination to preserve diversity. Higher education leaders had long maintained two conflicting precepts: first, that their admissions officers took account of race to only a modest degree, but second, that prohibiting these modest preferences would have a catastrophic effect on minority enrollments. They did not willingly share any data on actual admissions processes that would demonstrate whether either of these claims were true.
Journalists and education scholars thus watched closely when colleges and professional schools began to release enrollment data in the fall of 2024. The picture remained muddy: some schools, such as MIT and Amherst, reported large drops in undergraduate minority (especially in Black) enrollment; other schools, such as Yale and Princeton, reported either small drops or actual increases. Among professional schools, few reported large drops in minority enrollment. So, what was happening? Were elite colleges and universities generally ignoring the law? Had they found some way around the Court's decisions? No small part of the Trump Administration's offensive against many schools in 2025 seemed motivated by this perception. But pretty much everyone, including higher education leaders themselves, has had few real clues about how much actual practices were changing.
This article provides the first systematic analysis of how, in an important realm of higher education, the use of race in admissions has changed over the past few years. We focus on the two hundred accredited law schools in the United States, partly because the past patterns of racial preferences in law schools are particularly well understood. We make use of a new data source—a website on which applicants themselves report the outcomes of their law school applications—that allows us to draw credible conclusions about the operation of law school admissions in each of the past five admissions cycles. Over twenty thousand applicants have used the website "lsd.law" over the past five years to self-report their academic credentials, their race, and the outcomes of their law school applications.
This data is subject to a few caveats, and it is noisier—that is, it has more inaccuracies—than data directly reported by law schools, but we find that it nonetheless provides highly credible estimates of law school admissions practices. (See Section 2 for a more detailed assessment of the data.) In particular, we have enough observations to estimate accurately the average size of racial preferences across each of six "tiers" of law school, ranked by admissions selectivity, for each of the five admissions cycles from 2020-21 through 2024-25.
We find that racial preferences at elite law schools were much the same in 2021 and 2022 as they had been for decades—that is to say, very large and very widespread for Black applicants; about half as large, and less consistently applied, for Hispanic applicants. By the 2024-25 admissions cycle, however, the size of racial preferences for Black applicants had fallen by about half, and preferences for Hispanic students had similarly fallen by half in some tiers, and in others had fallen to levels too small to be detected in our data. Presumably because of the decline in preferences, longstanding credential disparities between Black students and their white and Asian classmates fell as well—indeed, perhaps fell even more sharply. But despite the diminished use of preferences (and possibly, because of the diminished use of preferences) Black and Hispanic applications to law schools rose in 2023-24 and 2024-25, and, minority enrollments in law schools as a whole rose in absolute numbers while falling only modestly in relative terms.
Six Key Findings
Zen and the Art of Persuasive Writing, Abstract to Concrete: Analogies and Metaphors.
Make the important interesting. —James Fallows
We have plumbed the depths of abstract words, but what about abstract ideas? Abstractions are a fact of professional life. The law is littered with them. Think of the legislative process, intellectual property and apportionment of congressional seats. These concepts or ideas are hard to understand because readers cannot see, touch, taste, hear or smell them. Readers cannot grasp or shape them in the mind's eye.
Concrete renditions of abstract material give respite to weary readers who must hurdle abstraction after abstraction like it's a track and field event. A visual image or concrete example anchors your ideas in the physical world. Research and my experience show the elixir for abstractions is analogies, pictures, charts and rhetorical figures.
A. Analogies, Metaphors and Similes
First is analogies, metaphors, and similes, each a figurative device. They broadcast a high-definition picture straight to the human brain. Readers can practically see and touch your point because these devices appeal to physical senses. And again, this is particularly important in persuasive writing because the writer has room to develop the point.
Persuasive writers use analogies, metaphors, and similes to revive a reader's flagging attention and increase the likelihood of comprehension. Words and images are processed on parallel pathways of the brain, and readers can better process and recall new points when presented both verbally and visually.
