In Timbs v. Indiana (2019), the Supreme Court unanimously ruled that the Excessive Fines Clause of the Eighth Amendment is incorporated against state governments. It also ruled that asset forfeitures - confiscation of property that may have been used to facilitate commission of a crime - qualify as fines. But it gave little guidance on what exactly qualifies as "excessive." This lack of clarity stimulated all sorts of uncertainty and disagreement in lower state and federal courts.
Recently, the Court decided to hear the case of Jouppi v. Alaska. Jouppi is an Alaska "bush pilot," flying passengers to remote areas. In 2012, Alaska authorities caught him transporting a passenger who had 72 cans of beer with her, to a "dry" village where importation of alcohol is banned. State law criminalizes transportation of alcoholic beverages there.
For this crime, Jouppi was fined $1500 and sentenced to three days in jail. But the state then used its asset forfeiture law to confiscate Jouppi's plane (worth about $95,000). There is some dispute about whether Jouppi was aware of all 72 cans, or just the one six-pack that was visible. But the Alaska Supreme concluded this issue is irrelevant, because courts must heavily defer to the legislature on the issue of what qualifies as a serious enough offense to justify massive forfeitures, and "[i]t is clear to us that the legislature determined that the harm from even a six-pack of beer knowingly imported into a dry village is severe enough to warrant forfeiture of an aircraft."
I think it is obvious that even the illegal transportation of 72 cans of beer (let alone just six) is nowhere near severe enough an offense to justify forfeiture of a plane worth $95,000. In a previous case, the Supreme indicated that a fine is "excessive" if it is "grossly disproportionate" to the "gravity" of the underlying offense. That's far from a clear standard, and the Court should flesh it out in greater detail. But if the Jouppi forfeiture is not "grossly disproportionate," I do not know what is.
In addition, the Alaska Supreme Court was wrong to rule that courts must give the legislature broad deference on such issues. That defeats the whole point of the Excessive Fines Clause, which is to limit legislative power. By this logic, the legislature could exempt almost any fine from invalidation so long as it claims the underlying offense is really, really bad. You could, for example, justify the forfeiture of a $1 million house because the owner used it to store an illegally purchased cigarette. Indeed, that fact pattern isn't so much worse than what happened in Jouppi!
The Alaska Supreme Court's reasoning is another example of the tendency of many jurists to defer to the legislature on property rights issues in a way they would never accept when it comes to other constitutional rights. The Kelo "public use" takings case is a particularly notorious example of this problem.
There are other problems with the Alaska Supreme Court's decision. It's reasoning about the severity of the crime here is not premised on any notion that illegal transportation of alcohol is itself a grave offense, but that it indirectly contributes to excessive drinking, which in turns leads to crime and social pathology in rural parts of Alaska, where (as the lower court found) law enforcement has limited resources to deal with it.
This whole chain of reasoning is extremely dubious. The experience of the Prohibition era showed that prohibiting alcohol sales is a poor strategy for combating crime, and indeed actually exacerbates it, by facilitating the rise of organized crime and its associated violence. And if the problem is that Alaska law enforcement has too few resources to deal with crimes arising from alcohol abuse, then it shouldn't be wasting those scarce resources on the less effective tactic of enforcing prohibition! Instead, have more cops on the beat actually targeting violent crime.
These last few points might be seen as policy considerations, normally left to the legislature. But courts should scrutinize them if - as in this case - they are part of the government's rationale for arguing that the fine here is not "excessive." In that event, the accuracy of the state's claims is relevant to the court's resolution of the constitutional issue before it.
Jouppi is represented by the Institute for Justice, the libertarian-leaning public interest law firm that also successfully litigated the Timbs case. I am guardedly optimistic they will prevail here, too. If we are lucky, the Court might in the process establish a clearer and more restrictive standard for what qualifies as an "excessive" fine. But, all too often, these kinds of predictions aren't worth much more than what you're not paying for them!
NOTE: As indicated above, Jouppi is represented by the Institute for Justice. I have longstanding connections with IJ, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case. IJ has an informative website devoted to the Jouppi case here.
I apologize for the light blogging of late. Well, light for me at least. Randy and I just submitted the final chapter of the Fifth Edition of our casebook to the publisher. It took us nearly two weeks to figure out how to present Trump v. Barbara. I think we figured out a really innovative and accessible way of presenting the different issues, so students can easily contrast the majority and dissenting opinions. We hope to share an excerpt once the page proofs are ready.
I still have not finished reading all of the opinions from the end of the term. Plus, I have a host of half-finished posts about Slaughter, Cook, Barbara, the TPS case, West Virginia v. B.P.J., and more. I hope to get those done over the next few weeks. (I could not resist dumping on the "Aloha spirit" breaking news.)
Now, as I slowly climb out of the backlog, let me highlight something that I was surprised didn't get much attention: Justice Kagan and Barrett's sartorial choices.
Did no one else notice that Justice Kagan was wearing a bright red suit while Justice Barrett was wearing a dark blue suit? You see, the colors are reversed! I suppose this could have been coincidental. I found a few photos of Kagan wearing red in the past. Still, I'd like to think this was a subliminal attempt at bipartisanship.
I agree with David Lat and others that Kagan and Barrett are the perfect spokespersons for the Court at this moment. I wrote an essay that should be out this summer about why the Justices should hold regular press conferences to help rehabilitate the public's image. Kagan and Barrett should be the first ones to the mic.
This episode features a conversation with Greg Greubel, a senior attorney at the Foundation for Individual Rights and Expression (FIRE) and one of the lead attorneys who argued the case against Florida's Stop W.O.K.E. Act restrictions of faculty speech in public university classrooms. The 11th Circuit just handed down an opinion in that case, Pernell v. Florida Board of Governors. It is one of the most consequential academic freedom cases of recent years.
In the new podcast episode, we discuss the case and its background, break down the First Amendment law surrounding academic freedom issues at public universities, and consider some of the implications of this decision for future cases, including ongoing litigation arising out of "divisive concepts" policies in Alabama and Texas. Give it a listen here.
As someone whose views once fit the description of the Oslo-and-beyond era Israeli security establishment view, I found this analysis, from Nahum Kaplan, compelling:
For much of the period after the 1993 Oslo Accords, a powerful current within Israel's political and security establishment rested upon several interconnected propositions.
The lists includes: that Palestinian institutions could gradually become responsible governing partners, economic prosperity would reduce enthusiasm for violence, technological superiority and superior intelligence could contain threats that could not be eliminated, limited military operations could reduce enemy capabilities while avoiding the political cost of decisive confrontation, and international diplomacy, though frequently frustrating, remained indispensable to long-term security.
None of these ideas was entirely absurd. That is precisely why they were so influential….
Besides breaching the border, Hamas breached an entire conceptual architecture. The massacres, hostage-taking, and temporary collapse of Israel's local defences shattered public faith in the proposition that a genocidal movement could be indefinitely managed through surveillance, economic concessions, and occasional bombardment. A sophisticated intelligence apparatus had produced an unsophisticated conclusion: The enemy did not really mean what it repeatedly said.
This is one of the West's more persistent strategic pathologies. It interprets ideological conviction as theatrical language, then expresses astonishment when zealots proceed to act upon it. Western governments frequently assume that everybody ultimately wants what Western officials want: stability, prosperity, recognition, improved trade, and a favourable paragraph in the communiqué.
Some people want victory, domination, and to kill you for who you are. The inability to comprehend this does not make one humane. It makes one vulnerable.
A public school in Eastern Kentucky issued a series of no trespass bans to Elizabeth Jones, a parent, in response to some of her posts on Facebook. As explained below, these posts were mean and demeaning. Naturally, several parents complained to the school district. The school district responded by banning Jones from all district property….
The First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech, and this speech is protected. For these reasons, the Court GRANTS Jones's motion for a preliminary injunction….
Plaintiff Elizabeth Jones … is a single mother of two minor children who attend school in the Jenkins Independent School District. She regularly attends school-sponsored activities, including athletics events, and donated her time and money to support her children's extracurricular activities.
Jones is also the owner and CEO of Hillbilly Crime, LLC. According to Hillbilly Crime's YouTube profile, Jones is a "Mom and self-proclaimed 'Educated Hillbilly'" who discusses "anything & everything True Crime, follow[s] local criminal trials, and give[s] my personal and best 'Hillbilly' commentary on important issues and current events." Jones monetizes her content through this YouTube channel with over 26,000 subscribers and also through two Facebook pages with over 26,000 followers and 38,000 followers, respectively. In addition to her videos and posts, Jones operates an online store featuring Hillbilly Crime merchandise and also offers supporters the ability to purchase subscription tiers ranging from $2.99 to $24.99 a month to support her reporting.
Jones is a prolific user of Facebook, publishing multiple posts per day on both her "Elizabeth Jones" and "Hillbilly Crime" accounts. The accounts largely overlap in terms of content. When Jones posts on her "Elizabeth Jones" account, she often leaves a comment encouraging her supporters to subscribe and support her work with links to purchase the tiered subscription options. In addition to posting about local crime, Jones also posts about school athletics from her main account.
The Defendants allege that Jones relies on controversy to drive engagement with her channels. On November 26, 2025, Jones posted a comment where she poked fun at a middle school child's appearance and accused an opposing basketball coach of making derogatory gestures to fans and parents. She then responded aggressively to another Facebook user who defended the child.
On December 13, 2025, she made another post criticizing a child's effort in a basketball game and encouraged others to comment on her post. Both posts contained photographs of the minor children at issue, although the parties' attachments did not include the photos as part of their exhibits submitted to the Court. Jones does not contest that the posts contained photographs, so the Court assumes that the posts in fact included photos of the minor children.
Today, Donald Trump announced plans to impose 50% tariffs on a wide range of Canadian imports to the United States:
President Trump is imposing 50% tariffs on a range of Canadian goods, from hockey equipment to alcoholic beverages, escalating the trade dispute between the two countries.
The new tariffs — laid out in a seriesof proclamationssigned by Mr. Trump on Monday — are set to take effect on Aug. 19. The White House accused Canada of "unreasonable, unequal, and discriminatory actions" by imposing tariffs or import restrictions on certain American goods, some of which began after Mr. Trump's initial round of tariffs on Canada last year.
In retaliation for last year's Canadian tariffs on certain U.S. auto imports, the Trump administration slapped tariffs on certain Canadian electronics, hockey equipment, honey, flower bulbs, down feathers, plywood, cowhides, jewelry and other goods. The White House also imposed tariffs on Canadian beer, wine, liquor and milk, in response to Canadian boycotts of U.S. alcohol in response to last year's tariffs and longstanding Canadian quotas on dairy imports.
Goods that flow across the border under the U.S.-Mexico-Canada Agreement, or USMCA — a trade deal inked during Mr. Trump's first term — will not be exempt from the new tariffs, a senior administration official told reporters Monday.
The new tariffs are based on Section 338 of the notorious 1930 Smoot-Hawley tariff legislation, which severely exacerbated the Great Depression. As Philip Zelikow of the conservative Hoover Institution explained in a guest post here at the VC blog, last year, Section 338 was long-ago superseded by new legislation enacted in 1962 and 1974, and is therefore defunct. For that reason, it has not been used since at least the 1940s.
Georgetown University trade policy scholar Peter Harrell summarizes additional useful points about the new tariffs on Twitter, including some additional legal objections to them. Should the new tariffs come into effect, there will likely be legal challenges, and those challenges will richly deserve to prevail.
I would add that this is just the latest of a series of efforts by Trump to usurp congressional tariff authority and impose harmful and dangerous trade restrictions that damage the US economy and poison relations with our allies and trading partners, of which Canada is one of the most important. That includes the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring, the Section 122 tariffs invalidated by the US Court of International Trade, his massive planned Section 301 tariffs, and - most recently - his threat to impose tariffs in Canada in response to wildfires there. Courts should continue to reject these dangerous power grabs and affronts to the rule of law.
I may well have more to say about these new tariffs later, especially if they end up getting implemented, as currently planned.
"Democratic socialists" are a growing movement on the political left. And many of them are also prison abolitionists. But there is a deep contradiction between their socialism and their abolitionism. Socialism requires making numerous economic activities illegal, and those laws have to be enforced by some system of punishment. As the history of actual socialist states shows, serious attempts to implement socialism lead to vastly greater incarceration (and other punishment), not less. There are a number of possible ways to try to escape this contradiction. But none of them work. The tension is relevant not only to full prison abolition, but also to any plan to significantly reduce incarceration and punishment without eliminating it completely.
What is Socialism?
Before going into detail, it is worth emphasizing that "socialism" here means government control of all or most of the economy, not simply an increase in welfare spending or a marginal increase in certain discrete types of regulation. This is isn't just my idiosyncratic definition. It's what actual leading socialists say they want. For example, the platform of the Democratic Socialists of America (DSA), America's most prominent socialist organization, states that they seek to establish a system under which "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses; they are common goods." That requires a complete government takeover of these massive parts of the economy. The DSA and other socialists also seek to massively extend government control even over those parts of the economy that they might not socialize outright. For example, they advocate extensive rent control, a massive increase in employment regulation, and so on. Elsewhere, I have described how - in combination - these demands would amount to socialization of the vast bulk of the economy. It is not simply a matter of making the US more like Denmark or Sweden, countries with large welfare states, but also generally market-based economies (in some respects more free market than the US).
Socialist prison abolition isn't just a strawman either. For example, the DSA has an "Abolition Working Group," which, among other things, advocates "Freedom for all incarcerated people." Prominent socialist candidates for political office also have a history of advocating prison abolition.
The Contradiction
There is a blatant but generally ignored contradiction between socialism and prison abolitionism. Socialism requires making a wide range of economic transactions illegal, and those laws have to be enforced by some system of punishment. If, like the DSA, you want to ensure that "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses," but instead make them "common goods," you will have to make it illegal to provide those goods and services for profit, and punish people who violate the relevant laws.
Historically, attempts to do this created vast black markets, especially since government control of these and other industries routinely resulted in shortages and low quality, caused by knowledge problems and poor incentives. I was born in the Soviet Union. Almost all my adult relatives and their friends acquaintances were involved in illegal black market transactions of various kinds. Often, it was the only way to get even minimally decent-quality goods and services, including food, medicine, and transportation. For example, my mother's two cousins operated a black-market auto repair business, which prospered because the official state-owned auto repair shops were predictably terrible and unreliable. If they had gotten caught, they might well have (you guessed it!) ended up in prison. Others illegally produced and sold food, acquired and sold black-market medicine and clothing, and so on.
Socialist governments sought to suppress these activities, usually through massive coercion. If they did not, the extent of black market activity would have been even greater, and socialism would have been even further undermined. Repression and punishment didn't completely eliminate black markets. But it did enable the state to retain control over the "commanding heights" of the economy, and at least somewhat reduce the amount of illicit economic activity overall.
Similar logic applies to severe economic regulations that fall short of complete socialization. For example, if like many socialists, you want to impose severe rent control or very high minimum wages, you will have to punish people who dare rent out housing at higher rates or hire workers at lower wages. And such black market activities are predictable, because high minimum wages price numerous lower-skilled workers out of the market (thereby increasing unemployment) and rent control predictably creates housing shortages.
The bottom line is this: socialism requires making a lot of things illegal, and enforcing that requires punishment. That's why actual socialist states have imprisoned (and often killed) large numbers of people as a natural byproduct of their economic policies. The Soviet Union, China, Cuba, and others routinely imprisoned or killed large numbers of people who engaged in illegal "capitalist" transactions. Consider, for instance, the fate of the "Kulaks" and their counterparts in China, Cuba, and elsewhere.
No Way Out of the Dilemma
There are several theoretically possible ways to escape this contradiction. But none of them actually work - at least not in ways that modern Western socialists are likely to find morally acceptable.
Many late nineteenth and early twentieth century socialists argued that a socialist society wouldn't need much of a carceral apparatus, if any, because socialism would lead to a transformation in human nature. "New Socialist Man" would obey the law without the need for coercion, because he would no longer be violent, selfish, and greedy, as people are under capitalism.
Sadly, though predictably, this never worked. In actuality, "socialist man" was just as violent and greedy as the capitalist version, often even more so. Ask almost anyone who has ever actually lived in a socialist state.
And the same is true of "socialist woman." Women, on average, commit fewer crimes than men. But like, men they don't commit less under socialism. While there is no good data on the subject (in part because socialist states have historically banned transgenderism), the same is likely true of transgender people. Today, most socialists no longer promise a fundamental transformation of human nature. And for good reason!
A second possible solution is to rely on non-prison punishments, such as fines and community service. But what happens when people refuse to pay the fines or do the service? Then, you have to enforce the penalty with the threat of prison, or some other more severe punishment. Ultimately, there can be no effective enforcement system that isn't backed by violent coercion. As liberal Yale Law School Prof. Stephen Carter puts it, people should "never support a law they are not willing to kill to enforce."
That still leaves open the possibility of using non-prison punishments that are as much or more severe than imprisonment. Pre-modern societies had few prisons, but made extensive use of corporal punishment and the death penalty. We could potentially bring back flogging, and the rack, and greatly increase the use of the death penalty. That would show those greedy capitalists! As an extra bonus, corporal punishment and the death penalty save money on incarceration costs. You don't have to pay room and board for people you flog or execute. Socialist dictators like Lenin, Stalin, Mao, Castro, and Pol Pot, have in fact made extensive use of mass executions.
Obviously, however, modern socialists who want to abolish prisons are unlikely to support replacing them with even more cruel forms of punishment. Or so I hope!
Finally, there is the option of having prisons, but calling them something else. The USSR, China, and other socialist states had a long history of establishing mass incarceration facilities that, at least in theory, were distinct from ordinary prisons, Gulags, "reeducation camps," and so on. Currently, the Chinese has state has forcibly detained over 1 million members of the Uyghur minority. But these detention centers aren't called prisons, but "vocational education and training centers." So that makes it OK!
Obviously, conditions in these facilities are just as bad as those in conventional prisons, and often much worse. Serious prison abolitionists should not take refuge in this kind of ridiculous hypocrisy.
How to Actually Reduce Incarceration
Prison abolitionists - not all of them socialists - aren't entirely wrong about the need to cut back on incarceration. They're just wrong about how to do it. And, at least so long as we don't have a fundamental transformation in human nature, they are wrong about how far it can go.
Prison abolitionists are right to point out that imprisonment is a severe infringement on liberty, and that conditions in prison are often terrible. Ironically, that's true precisely because of the kinds of economic incentives socialists otherwise tend to ignore.
For-profit businesses have strong incentives to keep quality up and prices down because, otherwise, consumers can reject their products in favor of competitors. A business that loses out to competitors will have reduced profits, and often has to close. By contrast, prison inmates have little or no choice about where to serve their sentences, and administrators and guards are not going to lose profit or suffer reductions in pay if the inmates aren't satisfied with their "services."
Moreover, prisons contain a lot of violent and dangerous people. And guards and administrators often have only weak incentives to keep them from preying on fellow inmates. Often, the guards themselves might be safer if they just look the other way! Thus, we often get awful prison conditions, and widespread inmate-on-inmate abuses, including such things as ubiquitous sexual assault.
In theory, voters can monitor prison conditions and vote out politicians who allow abuses to persist. But, in practice, most voters are "rationally ignorant" about public policy and have little sympathy for prisoners even when they do hear about the bad conditions. Thus, bad prison conditions are a very difficult-to-fix structural problem.
For those reasons, it is important to reduce the extent of imprisonment. And the way to do that is to reduce the number of activities that are illegal, not increase them! One of the few issues the DSA platform gets right is their call to abolish ICE. I agree, and have long advocated the same idea, myself. But, unless we just want to replace ICE with another agency likely to engage in similar abuses, the plan can only we work if we either legalize much currently illegal immigration, or at least cut back on mass deportation (thereby necessarily reducing immigration enforcement). If we want to keep out and deport large numbers of immigrants, there is no way to do that without an extensive system of detention and expulsion that is prone to grave abuses.
Socialist prison abolitionists recognize this truth when it comes to immigration enforcement. But it also applies to their own proposals to make a vast range of "capitalist" economic activity illegal. In both cases, we end up with large black markets that require massive coercion to even partially suppress.
Ultimately, imprisonment should be reserved for those activities that are so bad that perpetrators deserve to be incarcerated under bad conditions, if that is the only way to achieve retribution and deterrence. Such crimes as murder, rape, assault, theft, and so on, qualify. Illegal migration does not. And the same goes for virtually all the "capitalist acts between consenting adults" (as Robert Nozick famously called them) that socialists want to ban. I would add that this problem is an additional reason to get rid of the War on Drugs, which accounts for much our current mass incarceration. About 43% of federal prison inmates and 20% of total inmates (including state and local) are incarcerated for nonviolent drug offenses.
If we want to cut back on imprisonment, abolishing - or at least severely cutting back on - immigration restrictions and the War on Drugs would be a great way to start. Socialism, on the other hand, is likely to make the problem worse, by necessitating a far more extensive carceral state than we have already.
We cannot completely abolish imprisonment and other similar punishment. At least not so long as there are at least somewhat common human activities that we want to suppress. But we can greatly reduce its use.
In fairness, the statist economic policies advocated by right-wing nationalists have many of the same flaws, and I have written about that, at length. But the flaws of the nationalists don't justify those of the socialists, and vice versa. Indeed, socialists would do well to keep in mind that they coercive apparatus they establish to enforce their economic policies could, at some point, fall into the hands of their ideological adversaries. Even if they trust their ideological comrades to exercise that kind of power, do they have similar confidence in the likes of Donald Trump?
The issues addressed here do not definitively resolve the issue of the appropriate role of government in the economy. If the benefits of a given interventionist policy are large enough and cannot be achieved in any other way, they could potentially justify even a substantial increase in imprisonment and other coercion. But it is essential to keep in mind the tradeoff between making more activities illegal and cutting back on the carceral state. That's especially true when making an activity illegal predictably incentivizes the creation of a large black market. You can't have socialism without a massive apparatus of state coercion. And that, at the very least, strengthens the case against it.
UPDATE: I originally accidentally linked the 2025-26 DSA platform, rather than the more recent version, which contains the language I quoted. I apologize for this oversight, which has since been corrected.
Over the Summer, the Supreme Court will grant miscellaneous orders as needed for individual cases. And usually, towards the end of July and the end of August, the Court issues a formal orders list. Most of the entries are denials of rehearing or orders in pending cases. But today's order list had a surprise entry: a cert grant!
25-246 JOUPPI, KENNETH J. V. ALASKA The petition for a writ of certiorari is granted.
The question presented is "whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant's wrongdoing."
This case has an unusual posture. The cert petition was filed in August 2025. On November 25, the case was distributed for the December 12 conference. No action was taken on the petition for some time. It appears the Justice may have been holding the case pending the resolution of Pung v. Isabella County, which was decided on June 23. On June 25, the Petitioner filed a supplemental brief arguing that Pung "proved largely irrelevant to this case, plenary review continues to be warranted" and "casts no doubt on the cert-worthiness of the petition here." Respondent did not file anything. The case was then conferenced for the June 29 cleanup conference. But there was no grant on June 30, along with the other cases.
Now, nearly three weeks later, there is a grant.
What happened here? Did the Justices tentatively decide to grant on June 29, pending some further internal deliberations? Maybe a Justice wanted to take one more look before granting? Did the Justices (gasp!) talk about the case over the summer break? Maybe they just wanted to get the case on the docket to fill up the fall calendar?
This process is very unusual.
SCOTUSBlog identified a few other instances where the Court granted a case over the summer. For example, in August 2012, cert was granted in Chafin v. Chafin. But this was a case distributed for the long conference that was granted earlier. Did the Justices find time amidst the Obamacare summer to talk about the case?
SCOTUSBlog identified two other cases granted in August 2021, Johnson v. Arteaga-Martinez and Garland v. Gonzalez. Both cases were conferenced at the July 1 conference and granted about a month later.
Somewhat relatedly, next week I will have a essay published arguing that the Court should eliminate the summer recess, in part, to avoid cert petitions piling up over the summer. Today's orders list is a useful data point!
Tyler Austin Harper of the Atlantic has a recent X thread in which he challenges progressives to recognize that academia is often closed to people with perspectives that diverge from progressive orthodoxy:
Here's the brass tacks question progressive academics seem to want to avoid answering: does anyone seriously believe that a geographer critical of immigration would be likely to be hired by an elite American university? Or would those views put them at a profound disadvantage?
What about a pro-life ethicist whose work argues that abortion is murder, and who believes that bodily autonomy arguments do not override moral duties to the fetus? Would they be hirable in any Gender Studies department at any elite (non-religious) university in America? ….
Even in recognizing the problems, however, Harper adds in some common tropes that serves to understate it. Here's the first one: "And of course conservative views are well-represented at certain places (e.g. George Mason) and in certain law schools and business schools."
Conservative views are not "well-represented" at my university. If we include libertarian/free market views within the scope of "conservative," they are well-represented at the law school and the economics department. But these two units are together a tiny (albeit publicly prominent) part of a university that serves forty thousand students. And to the extent the faculty's views are salient, the rest of the university's faculty is overwhelmingly left-wing, just as one would expect at a typical state university in the suburbs of a major left-leaning metro area. And if anything, administrators even moreso, as again is typical.
So one can't properly use my university as the exception that proves the rule; it's rather an example of a university that has two small enclaves of non-progressive-dominated thought. Don't expect to find even one analogue to Todd Zywicki or Tyler Cowen in the History, Anthropology, Cultural Studies, Sociology, and other departments.
Harper also writes: "Universities and departments have to be more open to a wider spectrum of worldviews. (That includes viewpoint diversity in departments like economics!)"
This implies that Harper believes the myth, which I encounter all the time, that economics departments are bastions of free market, "right-wing" thought. It's true that economics departments are more ideologically balanced that other university departments. But various studies conducted from 2003 to 2016 showed that the ration of Democrats to Republicans ranges from somewhere between 3 and 4.5 to 1. There is no reason to believe it's become more balanced since.
Nor is it the case that economics professors are libertarian on economics, but progressive on everything else. As a study published in 2007 found:
People often suppose or imply that free-market economists constitute a significant portion of all economists. We surveyed American Economic Association members and asked their views on 18 specific forms of government activism. We find that about 8 percent of AEA members can be considered supporters of free-market principles, and that less than 3 percent may be called strong supporters. The data are broken down by voting behavior (Democratic or Republican). Even the average Republican AEA member is "middle-of-the-road," not free-market.
So kudos to Harper for stating and acknowledging the problem. But the ideological imbalance is even worse than he suggests. And contrary to what some apologists would have you believe, this is not simply the product of progressive ideas outcompeting non-progressive ones; at this point, a right-leaning college senior would have to be career-suicidal to contemplate pursuing an academic career in fields like anthropology or history, unless he wanted to keep his views to himself, in both his scholarship and personal interactions, indefinitely.
Last week, in Rutledge v. Walgreen Co., the Second Circuit revived failure-to-warn claims under state law relating to maternal use of Tylenol during pregnancy and its alleged links to autism in children. The district court had rejected the plaintiffs' expert testimony in a careful, extensive Rule 702 opinion, and the Second Circuit reversed that ruling.
I am hardly an expert on the underlying subject matter in general, or how it was presented to the district court in particular, and have no desire to become one, so I can't claim to know whether the district court was correct as an initial matter.
Nevertheless, in reading the opinion, I saw three errors in the Second Circuit's legal analysis.
First, the Court leads off its analysis by quoting the text of Rule 702, but then proceeds to cite Daubert v. Merrell Dow Pharmaceuticals and other cases from before the 2000 and 2023 amendments to the Rule. It also refers to its the analysis it is undertaking as a "Daubert inquiry."
That doesn't inherently mean that the court is going to undertake an incorrect legal inquiry, but it does suggest that the court has not fully absorbed the fact that "Daubert" is no longer the operative standard, and any caselaw or analysis that conflicts with the 2000 and 2023 amendments (the latter intended to admonish wayward judges who were declining to enforce the 2000 amendment) is void.
Second, my read of the opinion is that as a practical matter it undertakes de novo review, though the court does give very brief lip service to the correct standard of review, abuse of discretion. Abuse of discretion means that the district court's opinion may only be reversed if its reasoning was "manifestly erroneous," not if the Second Circuit simply disagreed with its conclusions, as seems to be the case here.
Third, and I think most important, the court explains its grossly incorrect understanding of how the district court was supposed to approach its Rule 702 review: "The gatekeeping role of the district court is to shield the jury from testimony by even qualified experts that is outside the boundaries of ordinary scientific discourse and thus constitutes 'junk science.'"
That is simply wrong. There is nothing in the text or history of Rule 702 that suggests that courts may only exclude testimony from qualified experts if it's so outside that the boundaries of science that it can reasonably be deemed "junk science."
Recall the wording of the text. Expert testimony is admissible if:
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
That is not a "let-it-all-in unless it's junk science" standard. That, instead, is a "carefully scrutinize the testimony for reliability" standard. Much unreliable scientific testimony falls far short of "junk science," but still fails to meet the underlying standard.
Overall, the trend in federal courts since 2023 regarding Rule 702 seems positive. But the Second Circuit in general, and Judge Guido Calabresi--who, I should say, I love and respect from his time as the dean when I attended Yale Law School--in particular, have been generally recalcitrant about applying first Daubert/Joiner and then amended Rule 702 to uphold the exclusion of plaintiffs' evidence in major tort litigation. Hopefully, this backsliding will not start a trend.
In an update to my post on the Hawaii Supreme Court's lawlessness, I pointed out that the Hawaii legislature actually imposed a duty on all state officials to abide by the "Aloha Spirit."
§ 5-7.5 "Aloha Spirit". (a) "Aloha Spirit" is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, "Aloha", the following unuhi laulā loa may be used:
"Akahai", meaning kindness to be expressed with tenderness;
"Lōkahi", meaning unity, to be expressed with harmony;
"ʻOluʻolu" meaning agreeable, to be expressed with pleasantness;
"Haʻahaʻa", meaning humility, to be expressed with modesty;
"Ahonui", meaning patience, to be expressed with perseverance.
These are traits of character that express the charm, warmth and sincerity of Hawaii's people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. "Aloha" is more than a word of greeting or farewell or a salutation. "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return. "Aloha" is the essence of relationships in which each person is important to every other person for collective existence. "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.
(b) In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit". [L 1986, c 202, § 1]
In my post, I joked that Texas should just instruct all of its officials to contemplate and reside with the life force and give consideration to "Christ's Spirit." Of course the response is that such a law would violate the Establishment Clause. But why should the Hawaiian statute fare any differently?
This statement has all the hallmarks of a traditional religion. I realize Hawaii used the word "spirit" in a secular sense, but a key attribute of many religions is the notion of a "spirit" that is imbued in people from some higher power.
The statute states that the Aloha Spirit "was presented as a gift to the people of Hawaiʻi." Presented by whom? That certainly suggests there is some power, apart from the Hawaiian people, who granted this spirit. That sounds quite a bit like many faiths. One might say that Hawaiians were endowed by their creator with an inalienable spirit.
The statute also imposes a near-complete moral code, requiring people to be kind and understanding to others. Sounds a lot like the Golden Rule. Indeed, I applaud the Hawaiian legislature for distilling an entire nondeist religion into a few paragraphs. Rabbi Hillel would be proud that the entire faith could be recited while standing on one foot.
The brain is hardwired to believe in a higher power. Even people who reject formalized religion still seek some sort of spirituality, even in nondeist terms. Perhaps they believe in "Mother Nature" or something else. For Hawaii, the higher power is the "Aloha spirit."
The obvious question, then, is whether the "Aloha Spirit" violates both the Guarantee Clause and the Establishment Clause? Hawaii may argue that the "Aloha Spirit" is not an actual religion. That is an argument I would gladly receive. I've been arguing for some time that the courts need to be more diligent about determining what is, and is not a religion. If the courts afford "most favored" status to religions, and grant exemptions to self-professed believers, the perverse incentive for people to manufacture false faiths becomes too strong.
From Quinteros v. Innogames, decided Friday by Ninth Circuit Judges Jacqueline Nguyen, Eric Miller, and Daniel Collins:
Penny Quinteros appeals the district court's dismissal of her third amended complaint asserting various claims based on harassment Quinteros says she suffered while playing defendants' online video game, Forge of Empires….
First, a bit of the factual backstory from the district court decision, by Judge Ricardo Martinez (W.D. Wash.) (some record links added):
For purposes of this Motion, the Court will accept all facts in the latest Amended Complaint as true. The Court will briefly summarize the relevant facts….
Plaintiff, using the moniker "TwoCents," played Forge of Empires "almost every day without interruption from 2016–2019 for over 10,000 hours of game play."
Plaintiff maintains that the game is psychologically addictive and that she became psychologically dependent or addicted. Plaintiff alleges that instead of warning players of the addictive nature of the game, InnoGames exploited players with "micro-transactions." Relying on representations made by InnoGames that the game was fair, Plaintiff sought to excel at the game. Her dependence on the game and/or desire to progress resulted in her spending over $9,000 on micro-transactions.
Around July of 2016, Plaintiff began experiencing gender-based harassment from other players, including some she alleges "were secretly InnoGames moderators, senior moderators, and community managers." These players and/or "staff members" accused Plaintiff of being a man and started to solicit Plaintiff's online friends and co-players to no longer engage with her socially or for game activities. Plaintiff pleads:
These other players, and secret InnoGames staff moderators, told the plaintiff that she had to prove she was a woman by sending a photograph of her breasts to them. They told her this was the only way they would stop harassing her. The plaintiff fell victim to this manipulation, and relying on statements from InnoGames and Julie Blan that the game was fun, fair, and the rules were enforced equally, sent a picture of her breasts (in a somewhat see-thru bra) to what she considered a friend and neutral third-party player, known as Gensmoky, via a screenshot link.
{Plaintiff alleges she registered a copyright for this photo of "her breasts in a somewhat see-thru bra" three years later, on September 3, 2019. The photo has been filed as an exhibit by Defendants. The Court denied a motion to seal this exhibit. That Order described the image as "a photograph depicting Plaintiff Ms. Quinteros' upper torso in an opaque, teal sports bra covering her entire chest." Where a sports bra would naturally dip down in front, Plaintiff tucked in a note covering all exposed skin. The note reads, "fuck off [unintelligible] Macy, DD, and the [unintelligible] Love, TwoC[ents]."}
From Barnes v. Scola, decided Thursday by Judge Richard Seeborg (N.D. Cal.):
Selena Scola is an actress, entertainer, and influencer. Scola began performing under the name Lexi Love in 2004 in adult films. Between 2004 and 2010, she starred in over 600 such films. During this time, she also worked as a featured dancer at night clubs across the country and was hired to help promote companies at industry expositions. She appeared at red carpet events, award shows, and conventions and guest-starred on radio talk shows.
In 2009, she became an advocate for safe sex in the adult entertainment industry and began speaking out about conditions under which she would not work on an adult film. Then, in 2010, Scola shifted from acting in adult films. She worked as a consultant on adult films and continued to attend industry events and appeared on radio shows but began expanding her work, again under the name Lexi Love, into independent films, television shows, commercials, video games, music videos, musical recordings and tours, film and podcast production, and other entertainment and influencer roles. Scola also grew and maintained a strong, monetized social media presence. She holds U.S. Trademark Registration No. 7,727,806 for LEXI LOVE in International Class 41, covering talent agency and management services, as well as entertainment performance services.
Cody Barnes is a professional drag performer who alleges she began using the name Lexi Love in 2009. Barnes also performed under the names Alexstacy Love, Lexi DVV Love, and Lexi V. Love—the latter of which she used as recently as 2021. Then in 2025, Barnes' fame grew with her participation in Season 17 of the popular show RuPaul's Drag Race. Barnes' casting was announced in December 2024, and the season aired between January and April 2025. Barnes, as Lexi Love, appeared in every episode. WOW produced Season 17, and Paramount aired it on MTV.
In December 2024, with the announcement of Barnes' participation in RuPaul's Drag Race, Scola learned of Barnes' use of the name and contacted Paramount's MTV and Barnes to inform them of her trademark rights. Yet, Barnes' use of the name continued. In August 2025, Scola sent cease and desist letters to Paramount, WOW, and Barnes. Barnes again continued to use the name and encouraged her fans to do the same, and Paramount and WOW continued to post content featuring Barnes as Lexi Love. Throughout this time, Scola sent takedown requests to social media platforms and third parties regarding Barnes' use of the LEXI LOVE mark.
Barnes's fame has diluted Scola's online presence. Scola has been tagged repeatedly on social media by users intending to tag Barnes, searches for Lexi Love return content about Barnes, and, as a result of Barnes' fame, Scola has lost business opportunities. Scola has sent numerous takedown requests regarding Barnes' content and accounts using the Lexi Love name.
Litigation ensued, Scola claimed that Barnes infringed her trademark, and the court allowed the claim to go forward:
This case was argued and deliberated nine months before the Supreme Court granted cert in the Cook County case, but was decided two weeks after the cert grant.
The majority opinion was written by Judge Arianna Freeman, a Biden appointee. I concur with Ed Whelan that Freeman deserves some credit for taking this strong stand, and disqualifying herself from any future Supreme Court vacancy.
Ed also praises Judge Tamika Montgomery-Reeves, another Biden appointee, who joined the majority opinion. She too has taken her name off the SCOTUS short list. Yet, she joined the majority despite a reservation. Judge Montgomery-Reeves wrote a short concurrence that raises an important question of timing. She observes that on June 30, the Supreme Court granted certiorari to review AR-15 ban cases from Illinois and Connecticut. Judge Montgomery-Reeves writes, "the Supreme Court has granted certiorari in two cases considering constitutional challenges to statutes nearly identical to the one now before us." Judge Montgomery-Reeves could have voted to hold the cases pending the Supreme Court's resolution. But she didn't. Judge Montgomery-Reeves explained:
I see little reason to decide this case now and get out in front of the Supreme Court. But because the majority has decided to do so, I respectfully concur.
I am perplexed by these two sentences. If Judge Montgomery-Reeves thought there was no reason to decide the case now, she could have simply dissented from the court's judgment, without taking any position on the constitutional analysis. Indeed, Judge Krause's dissent faults her colleagues, including Judge Montgomery-Reeves, for "jumping ahead of the Supreme Court."
It seems just about every term, a circuit court decides an issue that is pending before the Supreme Court. In some cases, the resolution happens after oral argument. There is no hard-and-fast rule. I wrote about this issue in December 2025.
What happened in the Third Circuit? It is useful to look at the chronology.
The New Jersey case was argued before the three-judge panel on July 1, 2025, argued en banc on October 15, 2025, and decided on July 17, 2026. During the entire pendency of the en banc proceedings, Viramontes was stuck in docket purgatory. As I noted, the Court granted the AR-15 case after twenty-one relists over the course of six months. I am fairly certain that the judges Third Circuit expected these relists to result in a denial of certiorari, accompanied by a dissental. As a result, the judges of that court likely proceeded to write the majority and dissenting opinions, and waited until Viramontes would finally be resolved. Judge Montgomery-Reeves was likely prepared to join the majority opinion without reservation. She was "locked in," to use Justice Barrett's phrasing.
But in a surprise to me and others, the twenty-one relists yielded a grant. This shift created an opportunity for the dissenters to argue the case should be held. I'm sure there were some internal deliberations to flip enough members of the majority to put the case on ice until July 2027. For reasons only Justice Montgomery-Reeves knows, she decided to join the majority opinion, so it could be released right away. No one would have ever known if she took the path of minimalism, and simply dissented. Indeed, her vote was not necessary to form an en banc majority.
Perhaps the answer can be found in a footnote from the majority opinion. Judge Freeman wrote, "no party to these long-pending cases has asked us to hold our decision pending the Supreme Court's decision." But the en banc court never needs a request to hold a case indefinitely. En banc courts routinely sit on petitions forever. (Jon Adler recently noted that a case has been pending before the en banc D.C. Circuit for nearly two years.)
Finally, I'd like to commend Judge Paul Matey's scholarly concurrence. He is an extremely meticulous judge, and his opinion reads like a law review article. Take some time to read. It is a complete antidote to the lawlessness from the Hawaii Supreme Court. I'll take Matey's "Garden State Spirit" any day.
A colleague on an academic list asked if I agreed that the Holocaust wasn't unique, but just one of a series of modern genocides. Here is how I responded:
On the contrary, I'd say that
(a) the Holocaust was not unique only in that genocide is not unique;
(b) all genocides are unique, as each has its own causes and trajectory; and
(c) that there are unique aspects of the Holocaust that differntiate in ways that make it worth studying, for example (some of these are more important than others, but all are interesting):
(1) Unlike the typical genocide, it involved multiple countries, governments, and the participation of dozens of different cultural, religious, ethnic, and linguistic groups as perpetrators;
(2) it had the basis in almost 2k years of religion-based hatred, though its ultimate ideology was ironically explicitly anti-religious;
(3) it involved the active, enthusiastic participation of scientists and medical professions in what had been considred the single most advanced scientific nation in the world;
(4) it involved the active acquiescence of the judiciary in the country that led the charge against notions of inherent natural rights in favor of a pragmatic sociological jurisprudence.
And the factor that I think makes the Holocaust most interesting is that the standard genocide involves a longstanding real conflict between different national/religious/ethnic groups. The various Ottoman massacres of Christian minority groups, for example, culminating in the Armenian genocide, while obviously horrific and inexcusable, had their roots in non-imaginary Ottoman concern that its Christian subjects would, if given the opportunity, break free of Muslim/Turkish rule, violently if necessary (as of course happened after WWI, see Greece in particular).
In contrast, the conflict between Germans ("Aryans") and Jews ("Judeo-Bolsheviks") was almost entirely in the Nazi imagination. Sure, Jews were overrepresented among Communists. That's the grain of truth.
But (a) the vast majority of Jews, and especially German Jews, weren't Communists, and (b) even Communists didn't see Germans, as such, as an enemy, this only existed in the Nazi mind.
So while all nationalist conflcts are based to some degree in irrational mythos, the irrationality of the Nazi war on the Jews was off the charts. The Nazis inveneted a world in which "the Jews" writ large were plotting to undermine Aryan civilizaton in general, and German civilization in particular, so that they could run the world and turn it into a Judeo-Bolshevist empire.
The insanity of this worldview is best captured in the poignant Jewish joke: Nazi brownshirt approaches an old Jewish man in the street in Berlin in 1934, and demands, "Old man, who is responsible for Germany's humiliation in WWI? Who is responsible for the inflation that bankrupted the German middle class? Who is responsible for starving German children in the countryside?" The old man replies, "The Jews. And the bicyclists." The Nazi responds, "Old man, why the bicyclists?" To which the old man shrugs and says, "Why the Jews?"
The Jews, in short, were not a typical ethno-religious group threatening to seize power from the governing group, and in turn were ruthlessly suppressed via genocide. They were a historically oppressed group whose generally successful integration into mainstream society led to a crazy, irrational backlash born of nonsensical conspiracy theory that led to the murder of 6 million people based on pure fantasy. (And also weirdly led to massive denial that this ever occurred, an additional layer of irrationality, only made more irrational by those who take the position "it didn't happen and anyway the Jews deserved it.")
I'm again not saying that other genocides, with which I am less familiar, may not also have their own fascinating idiosyncracies. But true delusion coming more from much of the top of society and spreading even before the genocide through a significant part of mainstream societies throughout Western civilization is rather different than the standard ethnic conflict over territory or resources, or the standard brutal conquests of Genghis Khan or Aztec warriors, or even the greed-and-power-driven massacres accompanying colonization.
From Liu v. Augustine Fellowship SLAA Felowship-Wide Services Inc., decided July 11 by N.Y. trial court judge Judy Kim:
The gravamen of plaintiff's complaint is that in March 2024 her former romantic partner began attending "sex and/or love addiction" meetings organized by defendant Greater NY Intergroup, Inc. … and reading publications by defendant The Augustine Fellowship SLAA Fellowship-Wide Services Inc … promoting "no contact" recovery from sex addiction. Three months later, plaintiff's former partner told her that he had "sex and/or love addiction," for which she was a trigger, and that other Intergroup members and the Augustine Fellowship's literature recommended that he go "no contact"—i.e., cut off all communication with her. He then cut off all interaction with her.
Plaintiff asserts, in the course of her 126-page complaint, that the Augustine Fellowship's publications are deceptive because they "present[] unrecognized psychological concepts as real medical diseases, promote[] recovery and self-diagnosis without scientific substantiation, redefine[] recognized medical terminology, and promote[] "No Contact" without disclosing foreseeable risks." Plaintiff further alleges that she experienced severe emotional distress as a result of her former partner's actions, and sought psychotherapy and psychiatric treatment, at which time she was diagnosed with Major Depressive Disorder, and Generalized Anxiety Disorder….
I 
