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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
SCOTUS Modifies Rule 29, Paper Briefs Can Be Filed Three Days After Timely Electronic Submission
This rule change effectively gives parties at least one more day to work on briefs, and make corrections.
This week, the Supreme Court updated its rules. Most attention focused on the new system to check for conflicts of interest. Merits briefs now need to include relevant stock ticker symbols for the parties. This step seems modest, but probably not worth the effort. Only two Justices hold stocks (Roberts and Alito). And they've somehow managed to recuse in all the cases they should have recused in. If any case slipped through, the potential conflict was likely unknown to anyone, which raises the question of whether there was a conflict! If a Justice doesn't actually know that his ruling will help or hurt one of this financial interests, what is the problem? This rule imposes a new burden on litigants, followed by a new administrative burden to the Court, to potentially identify a near-null-set of cases that weren't already flagged. I agree with Gabe Roth and others that Justices should not hold individual stocks. But Alito and Roberts apparently disagree.
The biggest change is one that does not seem to have garnered nearly enough attention. The Court modified Rule 29 to provide a new standard for a timely brief:
2. A document is timely filed: (1) if it is received by the Clerk in paper form within the time specified for filing; or (2) if it is sent to the Clerk through the United States Postal Service by first-class mail (including express or priority mail), postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the document was mailed on or before the last day for filing; or (3) if it is delivered on or before the last day for filing to a third-party commercial carrier for delivery to the Clerk within three calendar days; or (4) if it is properly submitted to the Court's electronic filing system on or before the last day for filing. For a document submitted to the Court's electronic filing system, required paper copies of the filing must be delivered or mailed to the Clerk through one of the methods in subsections (1)-(3) above within three days of the electronic submission….
Woah! I have long been a critic of the Supreme Court's byzantine process for printing briefs. Under Rule 33, there are complex rules that govern the paper size, color, and binding for all briefs. These rules were waived in April 2020 during the pandemic, but were restored in July 2021. Most Courts of Appeals have eliminated the requirement to print copies of briefs, but SCOTUS is wedded to history and tradition.
Despite Rule 33's persistence, the new Rule 29 has some virtue. The paper brief can be filed "three days" after the submission. And the briefs can now be "delivered" by hand or "mailed." I think this change is significant.
First, I think this approach may add at least one more day to the briefing schedule. In the past, when I've worked with a printing company, I've had to submit the final brief to the printer one or even two days before the deadline, so there is enough time to print everything and deliver them before the close of business. Now, that time is eliminated. The electronic file can be sent to the printer closer to the electronic filing deadline. It can be filed electronically right before the deadline, and the printing can begin the next day.
Second, parties will no longer have to hire a courier to hand deliver a brief the same day it is filed. Instead, the brief can be filed electronically at the end of the day, then mailed overnight to the Court. I think this step will be a significant cost-saver. Moreover, printing companies may no longer need to keep agents in the nation's capital.
Third, this step will avoid errors in the printed brief. This has happened to all of us. We scramble to submit a brief, send it to the printer, and as soon as it is filed, we notice an error. Don't lie. This has happened to you. It happened to me. I called the Supreme Court Clerk's office, and they offered to print out a white label, and place it over the error in the brief. That was an easy-enough fix. But in more extreme cases, it may be necessary to reprint the entire brief, at significant cost. Now, after the brief is filed at the deadline, it can be reviewed calmly, and any minor nits or errors can be fixed, before it goes to the printer. And presumably, a corrected electronic brief can be filed as well. Of course, this approach lets the parties change filings for up to three days after it is filed. But on balance, it is a good change.
The Supreme Court is taking some serious, positive actions of late. Dare, I say hail to the Chief?
No First Amendment Right to Force Government to Provide Live Feed of Macaques in Government Lab
From People for Ethical Treatment of Animals, Inc. v. Nat'l Inst. of Mental Health, decided last week by Judge Paula Xinis (D. Md.):
According to PETA, the Elisabeth Murray lab, under the aegis of Defendants, conducts "torturous and useless" experiments on rhesus macaques ("macaques") related to improving human mental health treatments. This suit, however, does not challenge Defendants' treatment of the macaques.
Despite the Complaint's broadside attack on animal research generally, PETA brings a narrow claim that Defendants have denied PETA's August 2024 request for installation of a 24-7 audio visual live feed (the "live feed") of the macaques who are currently housed at the laboratory, in violation of PETA's First and Fifth Amendment rights. PETA's August 2024 request demanded that the live feed "contain audio to hear the macaques' vocalizations and clear video sufficient to see the macaques' body postures, gestures, facial expressions, and other observable communications while in their cages, in the presence of laboratory staff, when being collected and prepared for experimentation, and while being experimented on." PETA's singular justification for demanding the live feed is its purported First Amendment right to "listen" to the macaques' "speech" and "communications." …
In addition to a separate administrative law basis, the court also dismissed the claim for lack of standing, reasoning:
Free Speech Unmuted: Student Speech, Threats, and the First Amendment
When can a public university punish a student for speech that includes violent references, and that frightens some people, but is not a clear threat? Jane and I unpack two recent court cases, one that upholds such punishment and another that says it violates the First Amendment: Damsky v. University of Florida and Christensen v. Ohio State University.
You can also see our past episodes:
NYU Democracy Project Article on How to "Strengthen Democracy by Empowering People to Vote with their Feet"
It is part of their series of essays addressing issues facing American democracy.
Today, the NYU Democracy Project published my article "Strengthen Democracy by Empowering People to Vote with their Feet." It is part of their "100 Ideas in 100 Days" series presenting a wide range of viewpoints on how to address challenges facing American democracy. Here are some excerpts:
A specter is haunting American democracy: widespread voter ignorance. The specter is not a new one, by any means. But it is exacerbated by growing political polarization, which has accentuated the tendency of many voters to be highly biased in evaluating the information they do know. The problem of political ignorance is closely linked to another shortcoming of the ballot box: the near-powerlessness of the individual voter, who has only an infinitesimally small chance of affecting policy. There is no easy solution to these interlinked challenges. But they can be mitigated by empowering people to make more decisions by "voting with their feet," instead of at the ballot box.
Decades of survey data…. show that most voters often don't know even basic facts about government and public policy, such as the names of the three branches of government (most polls find less than half of adults can name all three), which officials are responsible for which issues, or the biggest expenditure items in the federal budget. Many studies also show that most voters often do a poor job of evaluating the political information they do learn…. This terrible state of affairs is not the result of stupidity or lack of information, but of generally rational behavior on the part of most voters: a combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation)….
While ignorance and bias have been a particularly severe problem on the right in recent years, they are not limited to any one side of the political spectrum. There is plenty of ignorance and bias among left-wing voters, as well…
There is no simple solution to the twin problems of political ignorance and the powerlessness of individual voters. But one that has great potential is empowering people to "vote with their feet." People can vote with their feet between jurisdictions in a federal system, choosing which government policies they wish to live under. They can also do so through international migration….. Foot voting can also occur in the private sector, when people use it to provide services traditionally associated with state and local governments. When people vote with their feet, they make individually decisive choices, not ones that have almost no chance of making a difference. For that very reason, foot voters generally seek out more information and do a better job of evaluating it than ballot box voters. If you are like most people, you probably spent more time seeking out evidence the last time you decided what television set to buy than the last time you decided who to vote for in any election. That's because the decision about the TV set is one that has a high chance of being decisive, while that at the ballot box has almost no chance…..
There is much that can be done to enhance foot voting opportunities. Decentralizing more functions of government to the state and local level would create more space for policy diversity on a variety of issues and open up more opportunities for foot voting. In recent years, mobility has decreased due to widespread exclusionary zoning, which has made it difficult or impossible to build new housing in response to demand in many places where Americans would like to move – especially the poor and disadvantaged. We can break down that barrier by ending exclusionary zoning, or at least curtailing it through a combination of litigation and political action.
We can also enhance foot voting by leaving more issues to the private sector. Foot voting between private sector organizations – such as private planned communities – can enhance choice and lower moving costs, even as compared to foot voting between jurisdictions in a federal system. Limiting the scope of government can also mitigate political ignorance by reducing the range of issues rationally ignorant voters have to pay attention to, thereby ensuring that their limited knowledge is not so overstressed.
Finally, we can expand foot voting and political freedom by breaking down barriers to international migration, thereby enabling millions more people to escape poverty and oppression…..
I develop many of these ideas in greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom.
The other essays in the 100 ideas series can be found at the Democracy Project website. Contributors include a wide range of experts in various disciplines, and a with a wide range of viewpoints.
Should A Federal Judge Be Remembered For "Champion[ing] the Underdog and the Uncelebrated"?
I would think judges should be remembered for treating all parties equally under the law.
Do you remember Judge Robert Pratt from the Southern District of Iowa? Probably not. In December 2020, he made headlines by giving an interview with the Associated Press about President Trump's pardons:
"It's not surprising that a criminal like Trump pardons other criminals," senior U.S. District Judge Robert Pratt of the Southern District of Iowa told The Associated Press in a brief phone interview Monday. In a bit of humor, he said: "But apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey."
As I noted at the time, Pratt also made a gratuitous comment about the Emoluments Clauses--an issue that was then-pending before the Supreme Court:
He noted that the framers of the U.S. constitution sought to stop U.S. officials from "enriching themselves" while in office by banning gifts and payments from foreign powers. Ongoing lawsuits have accused Trump of illegally profiting off the presidency through his luxury Washington hotel. A White House spokesman declined comment on Pratt's remarks.
I observed:
What is wrong with federal judges? Trump derangement syndrome has permeated Article III. Judge Pratt should follow the lead of Judge Adelman, and apologize before he is sanctioned.
I suppose the one plus side of this incident is that only one judge--so far--was willing to talk to the press. I hope there are not more. Judges should never, ever, talk to reporters.
Well, he would not apologize on his own. Chief Judge Lavenski Smith found there was "cognizable misconduct." Pratt accepted that finding, and apologized for his "inappropriate partisan statements."
I largely forgot about Judge Pratt, until I noticed this story about his obituary.
An obituary for Pratt, who was born May 3, 1947, described him as a man who "championed the underdog and the uncelebrated" throughout his career in public service.
Obituaries are usually written by family and friends who might not be tuned into the nuances of judicial ethics. Then again, Judge Pratt demonstrated through his own comments such a lack of discretion.
Should we celebrate judges for championing underdogs and uncelebrated? Is that their job? I am not a fan of the phrase "equal justice under law," but it at least gets the point across that lady justice wears a blindfold. Everyone should get a fair shake before the court. Still, much of the caselaw from the Warren Court requires putting a thumb on the scale in favor of the "underdog." The entire point of the Footnote 4 dictum from Carolene Products is that courts can reinforce the representation of groups that lack access to the political channels. Yet another reason to get rid of Footnote 4 altogether. I hope the Court does not reaffirm it any further in Hecox, the transgender cases.
I recently re-watched Justice Thurgood Marshall's farewell press conference after he announced his retirement. I included this excerpt in my Civitas column on the SCOTUS NDA:
In 1991, Justice Thurgood Marshall held an infamous press conference after he announced his retirement. At the time, the conservative Judge Clarence Thomas was viewed as a potential replacement for the liberal Marshall. A reporter asked Marshall if President George H.W. Bush had an obligation to name a minority justice. Marshall replied that "I don't think that should be used as an excuse" for "picking the wrong negro."
Well, that part was a bit cringey. But other parts were light-hearted, and even refreshing. Another reporter asked if Marshall worried that his replacement would undermine the Justice's civil rights legacy. Marshall's answer (I am paraphrasing) was that when he became a federal judge, he was no longer an advocate, and no longer represented any clients or cause. He simply decided the cases. Therefore, Marshall said, it wasn't his concern what would happen to his legacy. I was touched by Marshall's comments, which I thought were exactly right. Justice Ginsburg took a very different approach with her final words. She said, "My most fervent wish is that I will not be replaced until a new president is installed."
Hallucinating Customer Service Hell
A depressing two-hour call with XFinity Chatbots.
Ready or not, AI is here. Even when you don't know it. I recently bought a WiFi extender from XFinity. The $125 device was marketed as a way to extend the signal of my wireless network to the upstairs, where the connection sometime drops. I plugged it in, and followed all of the instructions, several times, but it would not connect. I realized I would need help, and braced for an unpleasant experience.
I dialed the XFinity customer service number. After a brief wait (the first sign something as amiss), I was connected with Agent #1, who started asking me for my information, which I provided. Agent #1 sounded cheerful enough, but there was something odd about her voice. She stuttered, stopped mid-sentence, said words that made no sense, and wouldn't answer any of my questions. Agent #1 was a chatbot. Agent #1 then said she had to connect me to another department.
Agent #2, another cheerful person with a different voice picked up. Yet Agent #2 asked me for my information with the same exact questions as Agent #1. Another chatbot. Agent #2 tried very hard to help me. I think this AI was programmed for obsequiousness. Agent #2 said she was trying to reset my router, or something like that. Every 30 seconds or so, she would come back on the line and say "Joshua, please hold for a few more seconds, I am so thankful for your patience." She would repeat the same message, verbatim, over and over again. No human being would ever communicate in this fashion. I felt like I was in some strange doom loop. Once the reset failed to solve the problem, Agent #2 said she was starting some other process. I asked her what the process was, but she wouldn't tell me. Every minute or so, she would come in and update me on the percentage: 30%, 40%, 50%, 60%, 70%, and 80%. I asked Agent #2 again what she was doing, and she refused to tell me. I think there was some kind of hallucination. She was making up some solution to help me that wasn't real. Then the call disconnected. I was furious.
Miraculously, XFinity called me back. I was stuck with Agent #3, who again asked me for my information with the same script. She connected me with Agent #4. Agent #4 was unable to determine what Agent #2 did, I'm convinced, because the entire experience was a hallucination. Agent #4 asked to reset the modem, and go through the same steps Agent #2 did. At this point I started having fun and asked questions. I asked Agent #4 what her name was. I am fairly certain she gave a different name then when the call began. I asked her when she is calling from. She ignored the question. At that point, the chatbot seemed to sense I wanted to be conversational, so she asked me questions. Agent #4 asked if I had any weekend plans. Then she asked if I have any hobbies. It was like the most awkward date I could imagine. (I cannot fathom how people develop romantic relations with chat bots.) Agent #4 then said that the system would take an hour to fix, and I would receive a text message in an hour to confirm it was fixed. I asked what exactly needed an hour to fix. She couldn't tell me. I think this was another hallucination just to get me off the phone. Does Xfinity actually program these outcomes? The call disconnected.
One hour later, my extender still did not work. I received the text message, and indicated the problem remained. Agent #5 called, and offered to set up a visit from a technician. Hallelujah! I gladly agreed. I was desperate to talk to an actual human being.
A few days later, an XFinity agent arrived during the scheduled window. He quickly determined that the line to my house had a weak signal, and installed a new Gateway (router). But the extender I bought was defective. He told me to return it, and buy a Google mesh extender, which was cheaper and more effective. I immediately followed his advice.
Alas, I had to go back to the Chatbot to return the broken extender. This time I tried the text interface. I could not fathom calling back to AI agent hell. Agent #6 told me told I could bring the device to any XFinity store to return it. I asked Agent #6 if XFinity could provide a prepaid UPS label. The chatbot would provide a UPS label for the Gateway (which I did not want to return) but not for the extender. I asked again about a UPS label. Agent #6 told me (I kid you not) to just bring the box to UPS and they would take it. Of course this wouldn't work. UPS can't just know what to do. Another hallucination. [Update: Two readers wrote in that UPS can scan the bar code on the equipment and know what to do. I am skeptical, but I'll give it a try.]
To hell with it. I will just schlep to the XFinity store. Hopefully, there will be a person who can help me.
I think back to the creepy 1996 comedy, The Cable Guy with Jim Carrey. Cable Guys were notorious for being rude, late, and unhelpful. With the benefit of hindsight, I will take the cable guy over an AI chatbot any day.
Security Clearance Denied for Past Child Porn Downloading; Hearing Officer Unmoved by Claims That Behavior Stemmed from Since-Resolved Gender Dysphoria
"Applicant believed she was pre-adolescent or during adolescence when she was downloading images of children on her computer in 2013 to 2014 even though she was chronologically about 30 years old."
From a very long security clearance opinion released Jan. 30 by the Defense Office of Hearings and Appeals (DOHA), but just posted on Westlaw (note that the guidelines having to do with denying security clearances based on sexual behavior list as a mitigating factor that "the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature"):
Applicant is a 42-year-old senior principle cyber software engineer systems administrator who has worked for the same defense contractor for about nine years…. She has three children between the ages of 10 and 15 and maintains a friendly relationship with her ex-spouse since their amicable divorce in 2022….
An important element is Applicant's life is her history of gender dysphoria. She said:
My gender dysphoria is something that I feel like I always struggled with, it's something that I can trace back even into adolescence, and pre-adolescence, an overall incongruity with my sense of self. But it's not something that I ever really had words for prior to about 2015, [which] is when I really started looking into it. And in 2016 I was working with a therapist, and that's when I kind of had a breakthrough, and recognized that I was transgender, and that a lot of what I was dealing with was gender dysphoria, the notion that my sense of [whom] I was disconnected from the body, and the way that I was perceived by society around me. I'm not sure how much deeper we necessarily want to get into that. But I did pursue further treatment, including both psychological therapy, medicine, and eventually surgeries.
[The government] alleges under the sexual behavior guideline that Applicant downloaded and viewed thousands of pornographic images of children from about 2013 to at least about 2014 while working for DOD at a base outside the United States. [The government] alleges under the sexual behavior guideline that she was investigated for these actions and warrants were issued for her electronic devices. She left the job before the investigation could conclude…. [There appears to be no discussion of any criminal prosecution. -EV]
Applicant said her interest in the pictures she downloaded was "an aesthetic interest, [she] pursued as [she was] attempting to resolve [her] gender status as opposed to a prurient interest." She explained why she utilized the dark web as follows:
Carnegie Mellon Must Provide Discovery About Relationship with Qatar, in Ex-Student's Lawsuit Alleging Anti-Semitism
The student was explaining the concept of an eruv, a feature of certain Jewish neighborhoods, in class to an architecture professor, who allegedly said the time the student had spent on project "would have been better spent if [Ms. Canaan] had instead explored 'what Jews do to make themselves such a hated group.'" …
The case is now in discovery, and in yesterday's Canaan v. Carnegie Mellon University, Judge Scott Hardy (W.D. Pa.) allowed a considerable amount of discovery about CMU's relationship with Qatar, where it has a major campus. [UPDATE: For more on the underlying substantive dispute, see this post and this post.] The court concluded the requested discovery was generally relevant (this is just an excerpt from a very long opinion):
Qatari interests partially fund the position of Elizabeth Rosemeyer, because she serves both CMU's Main Campus and its Doha campus as Assistant Vice Provost for DEI and Title IX Coordinator…. Rosemeyer is an integral participant in Canaan's case. She is referenced repeatedly in the Complaint, notably as one of several CMU officials specifically responsible for enforcing CMU's anti-discrimination policies and protecting students from discrimination and harassment. Importantly, Canaan specifically alleges that Rosemeyer aggressively discouraged her from filing a formal complaint, which would have triggered an investigation of Professor Arscott's purported discriminatory mistreatment of her, as well as of the DEI Office's failure to address the misconduct and of Professor Issaias's purported retaliation.
Although CMU downplays any possible Qatari influence in its partial funding of Rosemeyer's position by averring that she was hired by its then Vice-President of Operations and not by any Qatari donor, entity, or representative, such point merely generates, at most, a potential factual dispute about whether or to what extent Qatari funding of Rosemeyer's position and Qatari "consultation" during CMU's identification, review, and selection of Rosemeyer may have influenced Rosemeyer's handling of Canaan's complaints of discrimination, harassment, and retaliation….
Importantly, another relevant connection between Canaan's Title VI claims and CMU's Doha campus is that at least three CMU DEI-related officials involved in Canaan's complaints of antisemitism had work-related visits to CMU's Doha campus. Wanda Heading-Grant, CMU's Chief Diversity Officer, visited the Doha campus twice, once to provide training and education programs regarding "civility, bias, discrimination" and "belonging and inclusion, leadership [and] listening" along with a "couple of other members from [her] office" and a second time for a "professional development engagement." Mark D'Angelo¸ another senior CMU administrator responsible for antidiscrimination efforts, similarly visited the Doha campus for such training. D'Angelo describes the purpose of his visit as follows:
Today in Supreme Court History: February 18, 1988
2/18/1988: Justice Anthony Kennedy takes judicial oath.
Open Thread
What’s on your mind?
Does Light Consist of "Object[s]"?
In HAC v. ER, decided in August by the Michigan Court of Appeals (Judges Sima Patel, Michael Riordan, and Brock Swartzle), petitioner had tried to get personal protection orders against his neighbors; the trial court rejected petitioner's claims, and the court of appeals affirmed.
Under the relevant Michigan law, such orders are generally issued when there's a finding of "stalking," which is defined as "continuing harassment," which in turn covers certain kinds of "continuing unconsented contact." Unconsented conduct is defined to include, among other things, "Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual."
Petitioner alleged various incidents of alleged harassment; the court mostly concluded that he hadn't introduced enough evidence supporting each, but the analysis as to one category of incidents struck me as more legally interesting:
[T]he petition against ER [also] alleged that respondents "installed powerful spot lights that are aimed [at] [petitioner's] house," causing petitioner to "[b]lack out my windows so [he] can [s]leep." In his petition against AR, petitioner alleged that the spot lights "are aimed at [his] house." Petitioner testified that the exterior flood lights have shined on his home for the past five or six months before he filed the petitions. Specifically, the flood lights shine toward the windows of his home during the nighttime, or "[a]ll night, from dark." On at least one occasion, petitioner texted respondents to cease shining the lights toward his home. On another occasion, petitioner asked them in-person to "direct [the lights] away from [his] house."
At an unknown time and date, a "zoning officer" visited petitioner's house after petitioner complained that respondents were violating the lighting ordinance. Petitioner stated that the lights were still shining on his home as of the night of February 22, 2024. Several photographs were admitted into evidence, which showed the lights at respondents' house, how the lights shine on petitioner's home, and poster board and cardboard covering petitioner's windows….
[P]etitioner contends that the light from respondents' flood lights "consist[s] of 'packets of energy' which, while different in kind than a physical object, is no less an 'object' than any other object." However, except for providing one dictionary definition of "light," petitioner offers no other authority or rationale in support of this argument, so we consider it abandoned. In any event, we agree with the trial court that such allegations, if true, might constitute some type of "ordinance violations" but do not necessarily rise to the level of requiring a PPO….
The key here, I think, isn't that light isn't an object as a matter of physics; rather, it's not an object as a matter of law.
"The Fallacy Fallacy"
An excerpt from Maarten Boudry (Persuasion):
My doubts [about the value of focusing on logical fallacies] began when I was still in academia, teaching critical thinking to philosophy students and science majors alike. Fallacies are a favorite chapter in such courses. In some ways, they are ideal teaching material: they come in tidy lists and seem easy to apply. Many trace back to Aristotle and still parade under their Latin names—ad hominem, ad populum, ad ignorantiam, ad verecundiam (better known as the argument from authority), the slippery slope, affirming the consequent, and so on.
So I dutifully taught my students the standard laundry list and then challenged them to put theory into practice. Read a newspaper article or watch a political debate—and spot the fallacies!
After a few years, I abandoned the assignment. The problem? My students turned paranoid. They began to see fallacies everywhere. Instead of engaging with the substance of an argument, they hurled labels and considered the job done. Worse, most of the "fallacies" they identified did not survive closer scrutiny.
It would be too easy to blame my students. When I tried the exercise myself, I had to admit that I mostly came away empty-handed. Clear-cut fallacies are surprisingly hard to find in real life. So what do you do if your professor tells you to hunt for fallacies and you can't find any? You lower the bar. To satisfy the assignment, you expand your definition….
In 2015, I published a paper in the journal Argumentation with two colleagues arguing that fallacy theory should be abandoned. Here is its crux: every so-called fallacy closely resembles forms of reasoning that are perfectly legitimate, depending on the context. In formal terms, good and bad arguments are often indistinguishable. Worse, there is almost always a continuum between strong and weak arguments. You cannot capture that gradient in a rigid formal scheme. As my friends Hugo Mercier and Dan Sperber succinctly put it in The Enigma of Reason: "most if not all fallacies on the list are fallacious except when they are not." …
Read the whole thing here.
Defendant's Own AI Legal Research Isn't Protected by Attorney-Client Privilege
"Because Claude is not an attorney, that alone disposes of Heppner's claim of privilege."
From U.S. v. Heppner, handed down today by Judge Jed Rakoff (S.D.N.Y.):
At a pretrial conference in this matter held on February 10, 2026, the Court … granted from the bench the Government's motion for a ruling that certain written exchanges that defendant Benjamin Heppner had with a generative artificial intelligence ("AI") platform were not protected from Government inspection by either the attorney-client privilege or the work product doctrine. This Memorandum sets forth the reasons for the Court's ruling….
[T]he indictment charges that Heppner defrauded [GWG Holdings'] investors out of more than $150 million by making false representations about, and causing GWG to enter into undisclosed self-serving transactions concerning, two privately held companies that Heppner controlled, Beneficient Company Group, L.P. and Highland Consolidated L.P.
In connection with Heppner's arrest on November 4, 2025, agents with the Federal Bureau of Investigation executed a search warrant at Heppner's home and seized numerous documents and electronic devices. Heppner's counsel later represented to the Government that among the seized materials were approximately thirty-one documents that memorialize communications that Heppner had with the generative AI platform "Claude," which is operated by the private company Anthropic.
According to Heppner's counsel, the documents represent communications between Heppner and Claude that took place "in 2025, after Mr. Heppner had received a grand jury subpoena [and] after it was clear with discussions with the government that Mr. Heppner was the target of this investigation." Without any suggestion from counsel that he do so, Heppner "prepared reports that outlined defense strategy, that outlined what he might argue with respect to the facts and the law that we anticipated that the government might be charging." Thus, counsel asserted, Heppner "was preparing these reports in anticipation of a potential indictment."
In exchanges with the Government, Heppner, through his counsel, asserted privilege over these documents (the "AI Documents"), arguing that (1) Heppner had inputted into Claude, among other things, information that Heppner had learned from counsel; (2) Heppner had created the AI Documents for the purpose of speaking with counsel to obtain legal advice; and (3) Heppner had subsequently shared the contents of the AI Documents with counsel. Heppner's counsel conceded, however, that counsel "did not direct [Heppner] to run Claude searches." …
No Pseudonymity for Man Suing Harvard Alleging Jews Aim "to Exterminate or Enslave All Non-Jews"
The plaintiff claims he was denied admission to Harvard Business School, apparently because he is a "non-veteran, non-queer, non-Jewish White male applicant[]."
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.
Stalking Allegations, Defamation and Malicious Prosecution Claims, and Professors, with a Trans Angle
[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:
New in City Journal: Let's Fix Our Federal Holiday Schedule
How I would rearrange the current calendar, which makes no sense.
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!
Today in Supreme Court History: February 17, 1801
2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.
