While propensity evidence is generally inadmissible in criminal cases, an exception for sexual assault cases is both common practice and good public policy.
During the 2026 session, Utah's legislature amended Utah's rules of evidence, adding a new provision (subsection 404(d)). The new provision allows prosecutors to present to juries sexual assault propensity evidence in sexual assault cases. The Federal Rules of Evidence have contained a similar rule (Rule 413) for more than two decades. Numerous states follow comparable approaches—either through rule or caselaw—tracking the common law approach of admitting evidence to prove a "lustful disposition." Utah's rules will now benefit from a provision codifying this approach in Rule 404(d).
Because of the significance of this new rule change, I've written an article with Utah County prosecutor Ryan McBride explaining the rationale behind it and how it will operate in practice. The article makes four arguments in favor of the new rule.
First, because most sex crimes are committed by perpetrators against victims in private places, admitting evidence of similar crimes is often critical to a successful prosecution of those perpetrators. In light of frequently conflicting testimony from victims and defendants in sexual assault cases, admitting similar crimes evidence serves to arm the jury with more information from which to determine the truth and reach an accurate verdict. When the defendant claims to have been unjustly accused, allowing evidence of other acts of misconduct often puts an entirely different light on the matter. Combining direct evidence of guilt with evidence of the defendant's past crimes may thus eliminate reasonable doubt in a case that would otherwise be inconclusive. As Utah Senator Orrin Hatch concluded in co-sponsoring legislation adding Rule 413 to the Federal Rules of Evidence, the public interest in admitting evidence "that will illuminate the credibility of the charge and any denial by the defense is truly compelling." Letter from Sen. Orrin G. Hatch, Rep. Susan Molinari, and Rep. John Kyl to Chief Justice William H. Rehnquist 2 (Oct. 11, 1994).
Second, historically Utah law recognized a similar crimes exception, only for that precedent to be obscured or ignored by what appears to have been sexist assumptions about the unreliability of women reporting sexual assaults. Read More
On December 9, 2025, Plaintiff attended an open meeting of the Tarrant County Commissioners Court ("Commissioners Court"), which is the governing body for Defendant Tarrant County. Plaintiff registered to speak during the public comment period associated with agenda item F1. Defendant Tim O'Hare ("Judge O'Hare"), County Judge of the Commissioners Court, briefly shushed applause from the audience following the previous speaker's remarks on agenda item F1. Plaintiff does not allege that he was clapping or that anyone was reprimanded or removed from the meeting for clapping.
Judge O'Hare called Plaintiff to give his remarks to the Commissioners Court. Plaintiff began by remarking, "Lord, I live in America where people cannot clap. That is insane to me." Judge O'Hare stopped Plaintiff's remarks, telling him, "Your time is done. Sit down. Go. It's not commentary on how we run the court. Your comments are limited to this item. Take a seat, you're not talking on this one." Judge O'Hare then called the next speaker.
In Merriott v. City of Bossier City, decided June 25 by Judge Irma Carrillo Ramirez and joined by Judges Edith Brown Clement and Dana Douglas struck down a City Council public comment policy that
Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the Council shall be forthwith, by the President Pro-tem, barred from further audience before the Council unless permission to continue by [sic] granted by a majority vote of the Council.
The opinion is long, but here's an excerpt of the analysis that holds that the policy is overbroad:
"Personal" is ordinarily understood to mean "of, relating to, or affecting a particular person." And a "remark" is ordinarily understood to mean "the act of remarking," "an expression of opinion or judgment," or "mention of that which deserves attention or notice." To "remark," means "to take notice of" or "to express as an observation or comment."
Based on the ordinary meaning of "personal remarks," the Policy prohibits speakers from uttering an infinite number of protected, relevant statements or questions. For example, a speaker must refrain from: (1) using a councilmember's name for the record; (2) mentioning that a councilmember may have a personal stake in the outcome of a vote; (3) stating that a councilmember engaged in a corrupt act; (4) highlighting that a councilmember had recently been convicted of a crime; (5) claiming that a councilmember lied to the public; (6) suggesting that a councilmember had a conflict of interest; and (7) bringing to public attention that a councilmember had been sued—just to name a few. The Policy forbids a citizen from noting that a councilmember has—even questionably—done anything that may be relevant to the public. The possible applications are unquantifiable, especially when not harnessed by any limiting principle….
In recent months, I have not had a chance to write many science fiction and fantasy reviews, like I used to do more often, particularly when it comes to the Game of Thrones/Song of Ice and Fire universe based on the works of George R.R. Martin. I have the excuse that I was busy with other things, such as the tariff case. But in the meantime, we have accumulated two seasons of House of the Dragon and the start of a third, plus the first season of A Knight of the Seven Kingdoms. When you play the game of reviewing Game of Thrones, you win or your connection with your audience dies! So in this post, I'm going to begin trying to make up for lost time.
Overall, I like both series, and if you like the GOT universe generally, you are likely to enjoy them, too. But House of the Dragon has a number of shortcomings that arise partly from the source material (Martin's book Fire and Blood), and partly from its own flaws. Both series also raise interesting political issues that extend the treatment of such matters in the GOT universe as a whole.
Before going on, I should note there will be some spoilers for the two series here. Most of the episodes and plotlines covered here have been out for many months, and this material is based on George R.R. Martin's books Fire and Blood and A Knight of the Seven Kingdoms, both published six or more years ago. For those who read on but still dare to complain about spoilers, I have but one word: Dracarys!
House of the Dragon
At the start of this series, the Targaryen dynasty is firmly in control of the Seven Kingdoms of Westeros, and dragons are part of the foundation of their power. The Targaryens have a monopoly over their use, and it is believed that only members of the family can successfully tame and ride them.
A succession crisis arises by virtue of the fact that King Viserys (a relatively weak ruler) has no male heirs. He therefore designates his daughter Princess Rhaenyra, as his successor. But many members of the Westerosi elite are unwilling to accept a female ruler. Viserys later marries Alicent Hightower (a member of one of the other powerful noble houses), and has sons by her. But Viserys persists in retaining Rhaenyra as the designated heir. When Viserys suddenly dies, Alicent and others claim that - at the last moment - he changed his mind and designated her son Aegon II as the new heir. Civil war soon breaks out between the Greens (supporters of Aegon) and the Blacks (those who back Rhaenyra). The war becomes known as the "Dance of the Dragons."
In the show, the conflict begins at the end of the first season. By midway through season 3 (where we are now), the fighting has massively escalated, and both sides have suffered terrible losses, while also committing various atrocities. In addition, both Green and Black leaders make foolish tactical and strategic errors. This happens in the show even more than in books. For example, Princess Rhaenys - one of the few generally competent and admirable leaders of the Black faction - early on misses a chance to wipe out most of the Green leadership, with her dragon. This event does not occur in the book.
When I reviewed the first episode of House of the Dragon, back in 2022, I highlighted a central dilemma of this story: there are virtually no major sympathetic characters in the source material. Aegon and Rhaenyra are both manifestly incompetent rulers who care little for the welfare of the people. Many of the other leaders of the two factions are even worse. Rhaenyra's uncle/husband - Prince Daemon - is a murderous megalomaniac. Aegon's brother Aemond One-Eye (who also has ambitions for the throne) is cruel and vicious. And so on.
As I suggested in the earlier review, the TV series tries to deal with this problem by making relatively sympathetic characters out of Rhaenyra and Alicent. The former is a victim of misogyny, and the series (following the book, in some respects) plays up her grief at the deaths of two of her sons in the fighting. Alicent, for her part, comes off as a relative peace-seeker.
But the sympathy for Rhaenyra is hard to maintain given the many wrongs she herself perpetrates, and her indifference to the harm the war inflicts on the "smallfolk" - the common people of Westeros. In one recent episode, Rhaenyra's forces manage to take Kings Landing, the capital. It seems like she might be trying to turn over a new leaf. But she and her underlings soon begin a reign of terror, persecuting commoners who protest against her.
Rhaenyra at one point confiscates stores of food stockpiled by wealthy merchants and aristocrats in order to alleviate food shortages in the city. But the shortages were caused by the blockade imposed by her own naval forces. And advisers rightly point out that the confiscation program won't actually do much to end the shortage (they might have added it could even exacerbate it in the long run, by deterring production and investment). At best Rhaenyra is only modestly less awful than the even worse leaders on the Green side.
Alicent, for her part, has little influence or competence. And, like Rhaenyra, she has little interest in the welfare of the people.
Ultimately, the series drives home the point that both factions are awful and the real problem plaguing Westeros is a system in which aristocratic elites wield power with little or no concern for the people, and no incentive to take their interests into account. This, of course, builds on the themes of the original Game of Thrones series, which also often highlighted the systemic danger of unconstrained political power.
But, in the original GOT, we also had sympathetic, well-intentioned characters like Arya Stark, her sister Sansa, Tyrion, Jon Snow, and (until late in the series) Daenerys Targaryen. There was hope that one or more of them would "break the wheel" (as Daenerys famously put it) and institute a better regime.
There is no such hope in House of the Dragon. That, combined with the lack of sympathetic protagonists, makes the series somewhat dreary and depressing. Also, I'm not sure we need really so many episodes just to drive home the relatively simple point that the Greens and the Blacks are two sides of the same terrible coin. At times, I find myself hoping that the leading characters all die painful deaths - which may well yet happen, especially if it follows the source material!
At the same time, House of the Dragon still features lots of exciting, dramatic moments, great acting, and impressive special effects. That can often divert viewers' attention away from the dismal nature of the characters and the overall situation.
A Knight of the Seven Kingdoms
In some ways, A Knight of the Seven Kingdoms (set about 80-90 years after the Targaryen civil war) is almost the exact opposite of House of the Dragon. The two protagonists are obviously admirable and highly sympathetic. Ser Duncan the Tall (known as "Dunk") is a commoner who spent years serving "hedge knight" Ser Arlan of Pennytree as his squire (hedge knights are poor compared to other members of their class, and must serve as traveling mercenaries to make a living). Just before dying, Ser Arlan grants knighthood to Dunk, taking advantage of the custom that "any knight can make a knight." Because there are no witnesses to the ceremony besides a few birds, when Dunk tries to advance his fortune by taking part in a major tournament wealthier and more aristocratic knights doubt his credentials. Season 1 tells the story of his efforts to establish them.
In the meantime, Dunk meets Aegon (known as "Egg"), a precocious boy who seeks to become his squire. It eventually becomes clear that Egg is actually a member of the Targaryen family, who dislikes life in the royal court, and seeks adventure.
In both the book and the show, it quickly becomes evident that Dunk is a better person - and a better representative of knightly ideals - than the aristocrats who look down on him. He take seriously the knightly vows to be "brave" and "just," and "defend the young and innocent." Most notably, he gets in trouble by defending a common woman against Prince Aerion, a Targaryen who tries to sexually assault her.
Unlike in House of the Dragon, not all the aristocrats we see are venal and uncaring towards the common people. Some actually rally to support Dunk, and several join his cause when Aerion challenges him to a Trial of the Seven (a combat where each side must have seven knights).
Season 1 only recounts the beginning of Dunk and Egg's adventures described in the book. There will be more in Season 2.
Knight of the Seven Kingdoms is more tightly plotted than House of the Dragon, and doesn't rely quite as much on contrivances and inexplicably stupid decisions by the characters to drive the story. There is, however, one small, but very fundamental problem. If "any knight can make a knight," one would expect to see knight inflation! Commoners seeking to become knights should pay poorer knights like Ser Arlan to grant them entry into this higher social class. Instead of scrounging for low-paid mercenary work, he could just sell tickets to knighthood. Paid witnesses to knighthood ceremonies could be used to get around the problem that dogged Dunk. Over time, knight status would end up getting devalued, as more and more people get it. Perhaps this is averted by norms or laws against selling access to knighthood; but one would still expect a black market to emerge. And no such restrictions are mentioned in the book or the TV series. Alternatively, maybe knighthoods granted by obscure hedge knights have little prestige. But, even if so, they are still better than remaining a commoner.
Like House of the Dragon and the original Game of Thrones series, Knight of the Seven Kingdoms highlights the systemic nature of the challenges facing Westeros. Dunk, Egg, and other relatively well-intentioned knights and aristocrats can do some real good at the margin, and viewers naturally root for them.
But the deeper evil is a social and political system in which commoners are largely at the mercy of a small hereditary elite. If a commoner runs afoul of a noble or is just in the wrong place at the wrong time, he or she can easily end up getting robbed, subjected to forced labor, sexually assaulted, or even murdered.
Viewers familiar with the Game of Thrones series or the books it is based on also know that, even if Egg learns valuable lessons from his time with Dunk and eventually becomes king, he fails to make any significant change in this system. By the time the GOT plot begins (about a century after the events of Knight of the Seven Kingdoms), Westeros's political and social system is still just as bad as before.
At the start of GOT, as in the era of House of the Dragon, the royal succession is still sometimes unclear, which in turn leads to civil war when there are rival claimants to the Iron Throne. This, of course, is a systemic weakness of monarchy.
It may seem like we don't really need these reminders of the systemic nature of political problems. We like to think we have long since left behind aristocratic feudalism and hereditary monarchy of the kind depicted in these series. But it is nonetheless useful to remember the awful nature of these systems, at a time when "postliberals" on the right promote nostalgia for pre-modern society, and some on the far left suggest that medieval peasants were somehow freer and happier than modern workers, and worked less than we do (they didn't).
Moreover, as I have emphasized in previous writings on GOT, even many modern people who have no desire to return to medieval times tend to forget that we need systemic constraints on government power to address our political and economic problems, and cannot rely on bringing supposedly benevolent leaders to power. The GOT universe is a useful - and highly entertaining! - reminder of that vital truth.
His proposal to limit the next-game consequences of yellow cards and red cards deserves serious attention. But his proposals for awarding two points for a run-of-play goal and only one for a PK is flawed, as is his idea for changing soccer's overtime rule.
Today law professor Richard Epstein published an intriguing blog post, entitled "FIFA's Flawed Rulebook." Epstein urges that we should reexamine some of the "rot" in soccer's current rules, which leads to unfair outcomes. He makes three recommendations for improving the great game: (1) revising yellow-card accumulation and automatic suspensions following red cards; (2) awarding two points for a run-of-play goal and only one point for a penalty-kick goal; and (3) changing overtime by gradually reducing the number of players on the field. As an avid soccer fan, I endorse Epstein's call for reviewing the rules and improving them where possible. But on the merits of his particular proposals, I like only the first but not the last two.
Revising the yellow card and red card next-game-consequences rules
Epstein proposes reconsidering how yellow cards and red cards currently operate. They both carry consequences over from one game to the next. A yellow card carries little immediate consequence in the first game where it is given. Indeed, because there is no real penalty, players often resort to "tactical fouls" to stop breakaways and other scoring opportunities. It is only when a player receives a second yellow card—even in the next game—that a serious consequence results: expulsion. Red cards also typically carry over to the next game: almost invariably, the player is suspended.
The problem with these next-game repercussions, as Epstein nicely explains, is that "they violate a fundamental principle of justice … by refusing to keep the pluses and minuses of each game self-contained, which could matter any time a red or yellow card is given." Thus, they carry "the sins of one game over to the next."
Epstein proposes that, instead of the current yellow card accumulation rule, a better approach is to track hockey by making the offending player sit out for a few minutes—an approach that can be further tweaked by extending the time a player is required to sit for a "major" foul. Similarly, for a red card in one game, the issue of a next-game suspension could be carefully reviewed during the several days leading up to the next game, with a focus on the intent of the offending player. For example, Balogun's red card suspension (which I discussed at length here and here) could have been reviewed under a predetermined set of principles and overturned.
Epstein's main point—generally keeping consequences of fouls contained to a single game—makes considerable sense. And, putting in place a more articulated set of principles for reviewing red card suspensions also makes sense, particularly in the wake of the way Balogun's suspension was reviewed under (seemingly) vague principles. Epstein's ideas should be given a test run in organized play to see how they work.
Awarding two points for a run-of-play goal and one point for a penalty kick goal.
Epstein's next proposal is much more controversial. Epstein argues that "it is imperative that scoring rules change so that a penalty shot is worth only one point and a goal from the field is worth two." Read More
My essay on the topic collects the available empirical research. There is support for the theory that, as police across the nation pulled back from some forms of proactive policing after protests surrounding George Floyd's killing in Minneapolis, homicides and gun violence increased as a result.
In 2020, major cities across the country suffered dramatic spikes in homicides and shootings. One hypothesis for explaining these spikes is de-policing: the idea that anti-police protests in the wake of George Floyd's killing in Minneapolis led police across the nation to pull back from some forms of proactive policing. The basic idea is that anti-police protests in the wake of George Floyd's killing in Minneapolis led police across the nation to pull back from some forms of proactive policing. The possible consequence, according to this hypothesis, was an increase in homicides and gun violence. This thesis, which I have called the "Minneapolis Effect," continues to warrant research and investigation. It remains a strong candidate for explaining a significant part of the nation's homicide and shooting spikes in major cities in 2020.
My chapter in a forthcoming book on violent crime argues that more research should be conducted to specifically examine the relationship between de-policing and firearms offenses. As I explain in the chapter, it is well known that, in 2020, many major cities across the country suffered from dramatic spikes in homicides and shootings. According to the National Center for Health Statistics, the homicide rate in the U.S. increased from 6.0 homicides in 2019 to 7.8 per 100,000 in 2020. This was the largest one-year increase in homicide rates ever recorded. Similarly, a major analysis of a sample of 34 cities by Professor Richard Rosenfeld et al. for the Council on Criminal Justice reported that homicides in 2020 were 30% higher than in 2019. The study also found that a structural break occurred in the homicide trends in June of that year, indicating large, statistically significant increases in homicide rates after adjusting for seasonality and long-term trends. Nationally, nearly 5,000 more Americans died that year due to the increase in homicides. And much of the increase in homicides was concentrated in the nation's major cities, apparently in impoverished areas.
While explaining trends in homicide rates in general is a long-debated topic, explaining why thousands of additional victims were killed in a recent year remains a discrete issue that would seem to be within the ken of modern social science. Read More
"'Yeah, I had no idea it was false. Yeah, that's right. Yeah,' then demand summary judgment because no one possesses contrary evidence from inside his head. That may be the ticket for comedy. It is not the ticket for summary judgment."
When we last looked at the brilliant Trump/Blanche plan to steal $1.776 billion from US taxpayers and to put that money into the pockets of Trump's hardline supporters, I noted that the case was not going to disappear just because Acting AG Blanche has promised that the DOJ isn't "moving forward" with setting up the Slush Fund. District Judge Williams, you will recall, re-opened the Trump v. IRS case (the one the parties ostensibly "settled") in order to investigate "grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement."
Judge Williams has now issued her opinion and order in the case, and it's as damning an indictment of Executive Branch lawlessness as one can imagine. Particularly interesting is the manner in which the "unitary executive theory" ends up biting Trump in the ass.
In ordinary times, of course, this would all be cause for impeachment - another example, as Judge Williams puts it, of "Mr. Trump's pattern of misusing the courts to serve political purposes." Today, however, it barely registers a blip on the legal radar-scope. That is not good news for the country as it celebrates its 250th birthday.
The judicial power conferred by the Constitution grants the federal judiciary the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. Adverseness is essential to a federal court's ability to adjudicate the merits of a case where federal courts are restricted to questions presented in an adversary context.
[A]dverseness between litigants is a constitutional minimum that must be satisfied in every federal case seeking judicial determination. There is no Art. III case or controversy when the parties desire precisely the same result. Moreover, the adverseness requirement subsists through all stages of a federal judicial proceeding. With this principle in mind, a court must consider whether one party is actually and formally in control of the other party, and if so, adjudication may be refused….
From Cash v. Cash, decided Thursday by the Texas Court of Appeals, in an opinion by Justice Tonya McLaughlin, joined by Justices Kevin Jewell and Maritza Antú:
After their divorce, Kimberly [Cash] asserts that Sammica [Cash] began posting personal, confidential, or humiliating information about Kimberly on her social media platforms to intimidate and harass Kimberly. Kimberly also alleges that Sammica revealed personal photos, sensitive personal information, and Kimberly's location information on social media….
[T]he trial court issued a protective order restricting Sammica from contact with Kimberly for five years and prohibiting Sammica from engaging in harassing or threatening conduct towards Kimberly….
In relevant part, the Code of Criminal Procedure authorizes the trial court to issue a protective order when the court finds reasonable grounds to believe that the respondent … "on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct" that, as relevant here:
constitutes the offense of harassment;
causes the other person … to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
would cause a reasonable person to … feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
A person commits the offense of harassment "if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another" that person "publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern[.]" The offense of harassment also includes the repeated sending of electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another….
Kimberly testified that she has received therapy for the domestic violence she says she experienced during her marriage with Sammica. During the relationship, Kimberly contends that Sammica tracked her Apple Watch data, mocked her on Facebook Live, and deployed third parties to locate her. She introduced a report from her therapist to establish Sammica's pattern of behavior.
From yesterday's Illinois Appellate Court decision in Grasso v. Mottl, decided by Justice Matthew Bertani, joined by Justices Linda Davenport and John Anderson:
Plaintiff, Gary Grasso, mayor of Burr Ridge [sued, alleging] … [opposing candidate Zachary Mottl and his campaign team] published three defamatory political mailers during a political campaign that stated he had defrauded the government in the amount of $36,000 in real estate tax exemptions.
The basis for the fraud claim originated from a research report of a third-party political research firm [America Rising] retained by defendants that indicated plaintiff had improperly received an annual $6,000 homestead exemption for a Du Page County residence while simultaneously receiving a homestead exemption for a Cook County residence. Accordingly, the $36,000 figure suggested plaintiff defrauded the government for a period of six years. However, the research report only supported a two-year overlap in homestead exemptions.
On appeal, plaintiff asserts the court erred in granting summary judgment for the defendants in that genuine questions of material fact exist regarding whether defendants were aware the mailers contained false information and whether defendants subjectively doubted the truth of that information. We hold that a triable issue exists as to whether defendants recklessly disregarded the truth in publishing the mailers, reverse the grant of summary judgment in their favor, and remand for further proceedings….
The narrow question presented in this appeal is whether the evidence of record supports that plaintiff has shown with convincing clarity that a reasonable jury might find defendants published the mailers with actual malice. In the light most favorable to plaintiff, we hold that such a triable issue exists.
[Defendant political strategist Collin] Corbett testified at deposition that defendants relied on the America Rising research report for the information they featured within the mailers. He and/or COR [Corbett's corporation] vetted that information by examining governmental records that corroborated the research report's findings concerning simultaneous homestead exemptions. In turn, defendants crafted and published the mailers. Corbett testified to his direct involvement in drafting [a mailer that included allegations] … that plaintiff had committed fraud in the amount of $36,000.
The research report indicates that plaintiff had an overlapping homeowner's exemption on his properties for a two-year period. A colorable argument may be made from the report that plaintiff received a total of $12,000 in improper homestead exemptions on his Burr Ridge residence. Corbett was unable to recall how defendants converted that information into a claim of fraud in the sum of $36,000. The research report in no way supports the notion that plaintiff received an improper exemption beyond the years 2016 and 2017. Corbett was unable to explain the "math" defendants used to formulate the $36,000 figure ….
Every Supreme Court opinion begins with a caption. In most cases, the caption is mundane. But in some cases, the caption makes an important point. Sometimes, the court of appeals will style a case in one fashion while the petitioner styles the case in a different fashion. What is the rule? Does the Supreme Court defer to the lower court's styling of the case or to the Petitioner's styling of the case or to the Respondent's styling?
In July 2024, West Virginia filed a cert petition in a case styled, STATE OF WEST VIRGINIA, ET AL., Petitioners, V. B.P.J., BY NEXT FRIEND AND MOTHER, HEATHER JACKSON, Respondent. There was no female pronoun in the caption. It was "by next friend," not "by her next friend."
B.P.J.'s brief in opposition to cert, filed by the ACLU in October 2024, used the same caption, and did not include a female pronoun.
The Supreme Court's docket page included the female pronoun "her." The Internet Archive captured the page in early November, shortly after the BIO was filed. Again, this caption was set before the case before the case was conferenced.
Here, at least, the Court followed the Fourth Circuit's decision, which used the pronoun "her."
But both parties chose a caption that omitted the pronoun. And the Court disregarded that choice. Indeed, this choice truly matters. West Virginia's entire argument was that B.P.J. is not a she/her, but is a he/him.
The ultimate decision included the female pronoun.
Justice Kavanaugh's majority opinion avoided any female pronoun to refer to B.P.J. Likewise, Justice Gorsuch's concurrence avoided any female pronoun to refer to B.P.J. By contrast, Justices Sotomayor and Jackson in dissent repeatedly used female pronouns.
There is some history here. Back in 2017, the Supreme Court's clerk's office chastised litigants who refused to use the male pronoun in amicus briefs in Gloucester County School Board v. G.G. Ed Whelan described the controversy in a three-partseries. At the time, the Clerk stated that parties were required to follow the name of the case as docketed.
Under that rule, the parties In B.P.J., were obligated to follow that proposed caption. But the parties did not follow that caption.
West Virginia's merits brief did not include a female pronoun.
And the ACLU's merits brief likewise did not include the female pronoun. I wonder if any of the lawyers noticed, or if they just copied the template from the earlier briefing.
In short, only the Supreme Court, and not the parties, included a female pronoun for B.P.J.
I emailed the Court's public information office, and received this response:
The Clerk's Office followed it's standard practice of using the caption language of the court of appeals.
I can think of at least one contrary example, Sossamon v. Texas.
As the case was litigated in the lower court, the defendant was styled as "The Lone Star State of Texas."
The cert petition, however, only listed the respondent as "Texas."
The Supreme Court's docket, and the ultimate decision, did not defer to the Fifth Circuit's ruling. Rather, the Supreme Court adopted the Petitioner's styling.
Fast-forward about fourteen years. The Fourth Circuit decides a case titled Planned Parenthood S. Atlantic v. Kerr. A cert petition was filed by ADF in a case styled as Kerr v. Edwards. ADF chose to name the case after Edwards, one of the Medicaid clients of Planned Parenthood. (One can imagine there were strategic reasons for doing so.) The brief in opposition filed by Planned Parenthood was styled as Kerr v. Planned Parenthood South Atlantic. Before the case was conferenced, the Court chose the style of the Fourth Circuit, and included Planned Parenthood as the lead respondent.
I welcome emails pointing out any other relevant examples.
U.S. v. Baxter, decided today by the Eighth Circuit, upheld a conviction for "possessing a firearm as an unlawful drug user in violation of 18 U.S.C. § 922(g)(3). The Supreme Court's recent U.S. v. Hemani decision held that unlawful drug user (at least when the drug is marijuana) doesn't inherently strip away the user's Second Amendment rights, and thus concluded that some applications of § 922(g)(3) are unconstitutional. But it left open the question of what other applications might be constitutional:
We do not … address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
Quoting that language, the Eighth Circuit concluded that Hemani didn't dispose of the case. And it held that Baxter's conviction was indeed consistent with Second Amendment. First, from the facts:
On May 21, 2023, gang members from two gangs—Strap and C-Block— began fighting in downtown Des Moines, Iowa. Baxter, a Strap gang member, was involved in this fight. When law enforcement attempted to break up the fight, the gang members ran in opposite directions, but resumed fighting 30 minutes later. The officers again approached, and Baxter and other Strap members chased the C-Block gang. As the officers were pursuing the chase, a bystander told them that Baxter had a gun.
The officers then confronted Baxter and asked what was in his pocket. Baxter responded, "nothing" and ran from the officers. He was apprehended shortly thereafter. The officers searched Baxter and found a loaded pistol and a baggie of marijuana on his person. The officers then obtained a search warrant to test Baxter's urine for the presence of controlled substances; the test confirmed the presence of THC or marijuana metabolites….
And from the legal analysis, by Judge Bobby Shepherd, joined by Judges James Loken:
Second Annual Aspiring Free Speech Scholars Workshop jointly sponsored by the Sandra Day O'Connor College of Law (ASU)
and the Hoover Institution (Stanford University)
Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars
Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?
If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that's already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O'Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.
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Important progress has been made on repaying illegally collected tariffs. But serious problems remain, including some caused by the Trump Administration's efforts to keep some of the illegally collected loot.
My Cato Institute colleagues Scott Lincicome, Alfredo Carrillo Obregon, and Chad Smitson have a helpful post updating the situation on refunds for Trump's illegally imposed IEEPA tariffs. In February, the IEEPA tariffs were invalidated by the Supreme Court, in a case I helped bring and litigate (along with the Liberty Justice Center, and others). But before that happened, the Trump administration collected some $166 billion in illegally collected tariffs. As Lincicome, Obregon, and Smitson (LOS) explain, there has been important progress getting refunds for the importers who were illegally forced to pay, but serious problems remain:
Here's where things stand.
On February 20, 2026, the Supreme Court invalidated the tariffs that President Trump implemented last year under the International Emergency Economic Powers Act (IEEPA). As of June 29 (more than four months after the ruling), CBP has authorized $104.29 billion in refunds and paid out $71.06 billion (including interest). Based on our calculations of the total amount owed by the government as of June 29 (taking into account interest and payouts), the government still owes importers about $100.65 billion—more than half of the total owed…
CBP deserves credit for giving most eligible importers the opportunity to receive refunds—even if the process was not automatic. It's also good that CBP has now rolled out Phase 2 of its refund (CAPE) system, covering entriesflagged for reconciliation. Refunds could eventually climb to $130 billion of the $166 billion in IEEPA duties paid by importers (before interest).
Eventually.
Indeed, that only $71.06 billion of the approved $104.29 billion has actually been paid suggests that frictions built into the CAPE process are creating obstacles for importers seeking refunds. For example, CBP claims that refunds for 8,384 approved declarations have not been issued because the eligible importers lack proper automated clearinghouse or banking information.
Some of the slowness here is likely due to ordinary bureaucratic inefficiency. The federal government has never had to issue tariff refunds on such an enormous scale before. But some is also due to the Trump administration's efforts to try to keep some of the illegally collected loot. AS LOS note, the administration has appealed the injunction issued by Judge Eaton of the US Court of International Trade ordering payment of refunds to all importers who were forced to pay the illegal tariffs. At least when it comes to "finally liquidated" tariff entries, the administration claims they only have to pay refunds to those businesses that filed individual lawsuits seeking them.
In previous posts about the refund issue (see here and here), I explained why Judge Eaton was right to issue a universal injunction, even in the aftermath of the Supreme Court's ill-advised strictures against such injunctions in Trump v. CASA, Inc. (decided last year). Among other things, Trump v. CASA only applies to cases brought under the Judiciary Act of 1789 and its successors. The CIT's jurisdiction comes from a separate statute enacted in 1980.
As LOS also note, the refund process may be stacked against smaller importers, often making it difficult or impossible for them to get what they are owed.
Overall, it's good that many victims of the illegal tariffs are getting refunds. But it's a travesty that almost 60% of the money [now about 50%; see update below] still hasn't been repaid almost five months after the Supreme Court decision. Meanwhile, interest accrues on those illegal tariffs that haven't been repaid yet, and taxpayers will be on the hook for that additional money.
LOS go on to point out that my former colleagues on the IEEPA case, the Liberty Justice Center and Georgetown law Prof. Neal Katyal (who argued our case before the Supreme Court), have filed a class certification motion to initiate a class action seeking refunds for all those importers who paid IEEPA tariffs but are not currently eligible to get refunds under the system set up by the CBP.
I am not a class action expert. But I think such a class certification makes good sense. The proposed class seems to clearly meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, which include, 1) "numerosity" (the class is large enough to make joinder of all individual plaintiffs impracticable, 2) "commonality" (common questions of law and fact), 3) typicality (the claims of the class representatives litigating the case are typical of the class as a whole), and 4) "adequacy" (the representatives can adequately defend the interests of the class in court).
It is obvious the class is large enough, as it includes many thousands of businesses who paid the tariffs but cannot currently get refunds. The potential class members also have common legal issues (they all were forced to pay the tariffs, but cannot currently get refunds for similar reasons). The claims of those of my former clients who cannot get refunds are typical of others in the same situation. And, though I may be biased in favor of my former co-counsel, more objective observers cannot deny they are capable of litigating the issues more than adequately! LJC successfully litigated the IEEPA case from start to finish, and Neal Katyal is one of the nation's leading appellate litigators.
As a practical matter, it makes little sense to require each of many thousands of importers file individual lawsuits. It would be a huge waste of time and resources, and some claimants may not be able to afford it or figure out how to do it. But the government is opposing the class action certification, and we will have to see what appellate judges decide.
I've said it before and I will say it again here: the administration's recalcitrance in paying and the various bureaucratic difficulties in getting refunds even to those the administration admits should get them, are a reason why courts should not stay injunctions against illegal tariffs while litigation continues. That's what happened in our IEEPA case, and is how we ended up with over $166 billion in illegally collected tariffs (an amount that has since grown, given accumulated interest). In addition, even full repayment of illegally collected tariffs cannot make up for all the harm they caused, as there is no compensation for higher prices paid by consumers, lost sales caused by price increases, and a number of other harms to importers, consumers, and the US economy as a whole. Sadly, the US Court of Appeals for the Federal Circuit failed to learn these lessons when it comes to the current litigation over Trump's illegal Section 122 tariffs.
Thus, the tariff refund saga seems likely to continue, perhaps for many months to come. I tentatively expect that a large majority of the illegally collected tariffs will eventually be repaid, with interest. But some of the harm they caused cannot and will not ever be addressed.
NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of this litigation.
UPDATE: Today, after I wrote this post, CBP submitted a new declaration to Judge Eaton of the US Court of International Trade, updating the refund data. They report that, as of July 10, $86.3 billion has been repaid and a total of $121.75 billion has been accepted for procession, up from about $71 billion and $104 billion, respectively, two weeks earlier. This is notable additional progress. But it still means that only about 50% of the total owed has been repaid. And additional interest accumulates every day. Moreover, as noted above, the administration continues to claim it should be able to keep at least some of the money.
UPDATE 2: I have made minor additions to this post.
