Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More
The court orders the litigant to explain why she shouldn't be so barred, and notes that hallucinated citations are "a growing problem in Florida's appellate courts."
From Gouldy v. Chiasson, decided Wednesday by the Florida Court of Appeal (Judge Robert Gross, joined by Judges Melanie May and Spencer Levine):
This appeal arises from a frivolous underlying lawsuit Gouldy brought against Chiasson, an attorney, in connection with Chiasson's actions in representing appellees Amanda Munyan and Michael Peak in a related probate matter involving Gouldy.
We affirm the appeal in all respects and issue a separate order to show cause as to why Gouldy should not be barred from further pro se filings in this court. Gouldy's excessively long pro se brief contains frivolous arguments, misrepresentations of the record, a phantom case, and fake quotes from actual cases….
This case demonstrates a growing problem in Florida's appellate courts. The recent change in jurisdiction has given intermediate appellate courts jurisdiction to hear appeals from county court cases. The result has been that the amount of pro se appeals has significantly increased. Initially, the appellate courts were able to expeditiously handle the county court appeals.
Recently, however, it appears that many pro se litigants, in both county and circuit courts, are using artificial intelligence platforms to generate appellate briefs and motions. While the prose in these filings is generally readable, many AI-generated submissions contain phantom authority, misstatements of the record, and fabricated quotations.
Not a basis for allowing what is in effect a form of pseudonymity, says a district court.
From Davis v. Surefire Hospitality Group, LP, decided Wednesday by Judge Marilyn Horan (W.D. Pa.):
Plaintiff has identified herself as Kimberly Davis in all filings in this case, while Defendant argues that Plaintiff's legal name is Matthew Grinage. As such, Defendant argues that Plaintiff does not comply with Federal Rule of Civil Procedure 10(a). Defendant provides documentation, including her application for employment with Defendant's restaurant, where she used her legal name, Matthew Grinage. The parties do not dispute that Plaintiff has not yet completed a formal legal name change process.
In her brief, Plaintiff argues generic allegations that the use of her legal name causes her "distress, mental anguish, and harm." Plaintiff argues that, if she does not use her chosen name, she will suffer serious and lasting effects to her mental health.
Rule 10 states that the "title of the complaint must name all parties." The core intent of Rule 10(a) is to assure public access, transparency, and accountability in judicial proceedings. Following historical practices of publicness, proper access to litigants' names is important. Rule 10, along with Rule 17, reinforces that court proceedings must remain open and accessible to the public, demands clarity in how parties are identified and ensures the public record accurately reflects the identity of who is before the court and why.
(among other things). A federal Magistrate Judge has recommended that the lawsuit be dismissed.
From yesterday's Report and Recommendation by Magistrate Judge Jeff Armistead in Doe v. Portland Ass'n of Teachers, Doe's allegations:
Doe was born in Israel and takes his Jewish religious faith and ethnic heritage seriously. For Doe, the State of Israel is essential and integral to his devout religious faith. Although Doe immigrated to the United States, he maintains close ties to Israel and his family there. In the 2023-24 school year, Doe worked for PPS [Portland Public Schools] as a high school math teacher.
When he started working for PPS, he chose not to become a dues-paying member of PAT [Portland Association of Teachers], exercising his First Amendment right not to support union political speech and public sector collective bargaining. Nevertheless, because Doe is a PPS teacher, PAT is his exclusive representative by way of Oregon's Public Employee Collective Bargaining Act (PECBA) and the collective bargaining agreement (CBA) PAT has with PPS….
Curricula. Doe alleges that PAT collaborates with Oregon Educators for Palestine (OEP) in its publications, including by co-publishing a guide called "Teach Palestine!" The guide references resources for teaching about Palestine, "encourages teachers to use their classroom to teach anti-Isreal views[,] and includes detailed curricula recommendations for pre-K through high school." Among the recommended resources in the "Teach Palestine!" guide is "Teaching While Muslim," which includes the statement "75 years ago, a lot of decision makers around the world decided to take away Palestinian land to make a country called Israel. Israel would be a country where rules were mostly fair for Jewish people with White skin" and encouragement to make signs that include the slogan "Free Palestine."
The "Teach Palestine!" resource guide also includes "Let's Go to Palestine." That lesson—directed at elementary school—includes the statement "Palestine is currently under a brutal occupation by Israel. We pray for a truly free Palestine so that the Palestinians can prosper and we can all visit freely." Also recommended in the guide is "Handala's Return," which includes the statement: "A group of bullies called Zionists wanted our land so they stole it by force and hurt many people." The "Know Your Rights!" guide, also co-published by PAT and OEP, includes references to CBA provisions that protect teachers in teaching what are, according to Doe, anti-Israel views.
What’s on your mind?
The new policy is based on sham investigations, and runs afoul of the major questions and nondelegation doctrine.
Today, the Trump Administration announced massive new tariffs, supposedly authorized by Section 301 of the Trade Act of 1974:
The Trump administration on Thursday finalized new double-digit tariffs on dozens of U.S. trading partners as it seeks to reconstitute sweeping duties struck down by the Supreme Court in February.
The new duties, which range from 10 to 12.5 percent, follow a five-month investigation into trading partners' efforts to root out products made with forced labor from their supply chains and are set to take effect just as a temporary global 10 percent tariff expires.
Starting Friday, 17 trading partners — including Canada, the European Union, Indonesia, the United Kingdom and Mexico — will face a 10 percent duty, along with another 10 countries that agreed to address forced labor through signed trade agreements with the U.S.
Another 43 other countries, including Japan, China, South Korea and Australia, will face a 12.5 percent tariff rate….
The Section 301 tariffs may be meant to replace temporary Section 122 tariffs, which expire today, and which were rightly invalidated by the US Court of International Trade in May (though appellate litigation continues, and Trump may yet hope to use Section 122 again). The new tariffs will predictably raise prices for consumers, reduce economic growth, inflict grave harm on the US economy, and further poison our relationships with allies and trading partners.
As I have previously explained, the planned Section 301 tariffs are illegal for some of the same reasons as the IEEPA tariffs invalidated by the Supreme Court in February, in a case I helped litigate. Georgetown University scholar Peter Harrell outlined some additional reasons why the Section 301 tariffs are illegal, in a guest post here at this site. Unlike IEEPA, Section 301 does authorize some tariffs. But it does not permit a massive power grab like this.
In a Dispatch article published today, my Cato Institute colleague Scott Lincicome - an expert on trade policy - explains in detail why the forced labor "investigations" supposedly justifying the Section 301 tariffs are a sham, and a pretext for a massive presidential power grab. As he notes, the conclusion of the "investigations" was clearly predetermined in advance, the tariffs imposed have no real connection to any genuine forced labor issues, and many of the countries subject to the massive new tariffs actually have tighter restrictions on goods produced by forced labor than the US itself does. He concludes that, if courts uphold these tariffs, the president would have the kind of unlimited tariff authority the Supreme Court denied him in the IEEPA case:
The forced labor action is a clear abuse of the law and a serious departure from past U.S. government practice—even under President Trump. By no reasonable measure can it be considered anything other than a ham-fisted way to reinstall Trump's tariff wall and protect it from another IEEPA-like defeat in federal court. In the latter case, the administration might be successful: Section 301 is more legally durable than the untested IEEPA and, while the forced labor action is obviously flimsy, a court might simply be unwilling to question the president's determinations and actions. We shall see.
If the courts do rubber-stamp these tariffs, their problems will likely extend well beyond just this sham case. Section 301 could become a way for USTR to tariff any country, at any rate, and for any reason and duration, as long as it checks the law's minor procedural boxes. The actual merits of the case, the quality of the agency's findings, or its efforts to consider public input won't really matter. Just say a country doesn't adequately do something you say is harmful and then apply blanket tariffs after meaningless hearings and comments. Voila.
This is precisely the open-ended tariff power grab the courts checked with their IEEPA rulings, just with a little more procedural window-dressing. In such a case, Section 301 would be a broad tariff generator instead of the targeted tool Congress thought it designed, and it'll surely be used by Trump or any future president who wants to tariff trading partners over carbon emissions, labor standards, AI regulation, or anything else. Republicans cheering the forced labor tariffs today should consider how they'll feel when a Democrat holds the tariff pen.
As explained in my and Peter Harrell's earlier posts on the Section 301 tariffs, Trump's policy violates the requirements of Section 301 itself, and also runs afoul of the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." At the very least, Section 301 does not clearly authorize the president to start a massive trade war against almost all our major trading partners on the basis of a sham investigation and dubious pretexts.
If, somehow, Section 301 does authorize this action, it would violate the constitutional nondelegation doctrine, which limits delegation of legislative power to the executive. Tariffs are a specifically enumerated congressional power. While the Supreme Court's nondelegation precedent is far from completely clear, last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes and other financial levies must have a clear "floor" and "ceiling" and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue" [quotation omitted]. There is no meaningful floor or ceiling under the administration's approach to Section 301. And the power claimed is clearly one that massively affects the "entire national economy."
In the IEEPA case, the Supreme Court emphasized that "the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Chief Justice Roberts went on to note that, while some statutes do grant the president tariff authority (among which he specifically cited Section 301), "[w]hen Congress has delegated its tariff powers, it has done so… subject to strict limits."
Trump's power grab today respects no such limits. I hope and expect it will be challenged in court. And when that happens, courts should strike it down, just like they did with the IEEPA and Section 122 tariffs.
In recent remarks before the Ninth Circuit Judicial Conference, Justice Kagan rejects the conventional liberal narrative about the Supreme Court.
Some legal and political commentators claim that the Supreme Court has bent over backwards to appease or affirm the Trump Administration. In recent remarks before the Ninth Circuit Judicial Conference, as reported by Politico, Justice Elena Kagan rejected this common narrative.
From Politico:
"I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said to a judicial conference here Thursday. "I think that that is a bad rap." . . .
Kagan, a liberal justice and Obama appointee, said the 6-3 decision scuttling Trump's tariffs was extraordinary.
"Tariffs is probably the key policy issue for this president. I mean, something he campaigned on, he ran on, he cared an enormous amount about," she said. "I don't think that there are all that many decisions in the recent times, where a court strikes down such an important policy to a a sitting president."
That the Court is conservative--and reaches conservative decisions--is not evidence that it is under President Trump's sway.
"You just have to deal with the fact that there's a conservative court doing things that conservative jurists have long thought it appropriate to do, and I can really dislike that. But it has nothing to do, I think, with becoming the arm of this current administration," she said.
Kagan also said that the justices were unaffected by President Trump's decision to attend oral argument in the birthright citizenship case, another case of extreme importance to Trump in which the Court rejected his position, and even dissenting justices raised questions about the breadth of the Trump Administration's position.
"It was sort of like….from the court's point of view, a non-event," Kagan said in her first public remarks on the unusual spectacle. "Honestly, the vibes in the courtroom were the vibes in the courtroom on any other day." . . .
Kagan also noted that Trump left about halfway through the two-hour session. "It was a long argument. You really did kind of think he probably had other things to do," she said.
"So, I don't know. I think he probably won't come back," she added, prompting laughter from the audience.
The Supreme Court's Chevron decision did not cite the Administrative Procedure Act perhaps because it was not an APA case.
In Loper Bright Enterprises v. Raimando, the Supreme Court overturned Chevron U.S.A. v. NRDC's holding that federal courts should defer to reasonable agency interpretations of ambiguous statutory provisions. In Loper Bright, the Court concluded that Chevron deference was incompatible with the Administrative Procedure Act. As Chief Jsutice Roberts explained, Section 706 of the APA provides "'the reviewing court'—not the agency whose action it reviews—is to 'decide all relevant questions of law' and 'interpret . . . statutory provisions.'"
The Chevron opinion made no effort to reconcile its holding with the language of the APA. Indeed, the Chevron decision did not mention the APA at all. But perhaps there was a good reason for that.
In a footnote to his dissent in Hospital Menonita de Guayama v. NLRB--a case in which the D.C. Circuit was instructed by the Supreme Court to reconsider its prior decision deferring to an agency interpretation under Chevron--Judge Ray Randolph addresses this "error" in Loper Bright.
There is an error in the Supreme Court's analysis in Loper Bright. Much of the Court's reasoning (and a part of Justice Gorsuch's concurrence) is devoted to criticizing the Chevron opinion for ignoring section 706 of the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., 603 U.S. at 397-400, 411-12; id. at 428 (Gorsuch, J., concurring). The Court's critique is unfounded. It is unfounded because section 706 of the APA did not apply to judicial review of the EPA rule at issue in Chevron. Section 706 did not apply because Chevron was not an APA review case. The Clean Air Act superseded the APA: "The provisions of section 553 through 557 and section 706 of Title 5 [the APA] shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies." 42 U.S.C. § 7607(d)(1). The problem the Court identified in Loper Bright was not with Chevron itself, but with courts, including the Supreme Court, indiscriminately adopting the Chevron formula in later cases in which section 706 of the APA did apply.
Foreign Law in American Courts
An interesting demonstration of how foreign law—including Islamic law—is sometimes applied (pursuant to American law) in American courts.
From Pennsylvania appellate court in Adewale v. Adewale, decided by Judge Correale Stevens and joined by Judge Anne Lazarus and Jack Panella on June 22, but just posted on Westlaw in the last couple of days:
Wife claims the trial court erred in determining that the parties' marriage was void ab initio based on its finding that Wife was married to another individual at the time of the parties' purported marriage. {Although we affirm the trial court's order finding the parties' marriage to be void, we refer to the parties as "Husband" and "Wife" for ease of review.} …
The parties were married on April 21, 2011 in Lagos, Nigeria in a ceremony under Nigerian statutory law. {As discussed infra, Nigeria has a plural legal system where different legal systems (statutory law, customary law, and Islamic law) apply to different communities in Nigeria. [Similar systems exist in other countries, including, for instance, Israel. -EV]}
As Wife had become a U.S. citizen after receiving a Diversity Visa through the lottery program in 1999, she filed for Husband's entry into the U.S. as her spouse in 2012. In April 2013, Husband joined Wife in the U.S.; both of the parties are now dual citizens of Nigeria and the U.S….
During the divorce process, "Husband began to question the validity of the parties' marriage as he discovered that Wife may have been married to another person at the time of the parties' marriage," and the trial court explored that:
The trial court recognized that the law of the state in which a marriage is celebrated governs the validity of the marriage. "[I]f a marriage is invalid under the laws of the state wherein it was celebrated it will not be recognized elsewhere, regardless of the laws of the present domiciliary state or of the forum." … "[A] marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state[.]"
The appellate court cited various Pennsylvania authorities on this, which are consistent with how other courts handle the matter; note also that "state" here refers to foreign countries as well as U.S. states. The trial court took extensive evidence related to the subject; here are some excerpts (though the facts are considerably more complex):
From Alobid v. Marin, decided March 9, 2026 by Magistrate Judge Alka Sagar (C.D. Cal.), but just posted on Westlaw in the last couple of days:
Petitioner, an immigration detainee who is proceeding pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and also filed a Motion for Leave to Proceed Under a Pseudonym.
"As a general rule, 'the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity.'" A party's "use of [a] fictitious name[ ] runs afoul of the public's common law right of access to judicial proceedings, and [Fed. R. Civ. P.] 10(a)'s command that the title of every complaint 'include the names of all the parties[.]'"
Nevertheless, the Ninth Circuit has "allowed the use of pseudonyms in exceptional cases where necessary 'to protect a person from harassment, injury, ridicule or personal embarrassment.'" "When a party requests 'Doe' status, the factors to be 'balance[d] … against the general presumption that parties' identities are public information,' are: '(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation.'" The party seeking anonymity has the burden of proving it should be allowed to proceed anonymously.
What’s on your mind?
The Third Circuit takes Second Amendment rights seriously.
On July 17, the Third Circuit declared New Jersey's ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment. The case is Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (ANJRPC), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman. This is the first circuit court decision to invalidate an "assault firearm" and magazine ban.
Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here), but cert was not granted on the magazine issue in those cases, plus no party sought delay. My thought is that another good reason to decide the case is Justice Kavanaugh's statement in the Snope cert denial that further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." All of the other circuit decisions have upheld bans.
The common-use test, which derives itself from the historical tradition of the banning of "dangerous and unusual" weapons, is the focus of ANJRPC. First, "in common use" refers to "common use for lawful purposes at the time of the modern restriction." Second, "lawful purposes" refers not just to self-defense, but to hunting and other lawful uses including mere possession. Third, such use excludes a "dangerous and unusual" weapon.
Criticism of the common-use test as "a popularity poll" disregards that the Supreme Court requires this test, and "the popularity of the restricted weapons bears on [the] question" of common use for a lawful purpose. Moreover, possession – whether keeping or bearing – is protected, not just the active use of pulling a trigger to shoot bullets in self-defense scenarios.
"Bruen's first step is fundamentally a textual inquiry," but the common use inquiry is not located there. It neither appears in the Second Amendment's text nor is it part of the definition of "Arms," which as Wolford noted includes "any weapon customarily used for offensive or defensive purposes." "'Customarily' distinguishes items that can be used, offensively or defensively, as weapons (e.g., bricks) from weapons normally used for offensive or defensive purposes." So common use fits into Bruen's step two (the historical tradition step), as a part of "how" a modern regulation burdens the right in comparison with any relevant historical analogue. Here, as in Heller, the "how" is a "flat ban." Once the plain text of the Second Amendment is implicated, the burden shifts to the state (here, New Jersey) to demonstrate a historical tradition that would warrant its modern-day law. Thus, in this arms ban case, New Jersey bears the burden to demonstrate that the semiautomatic rifles it bans are "dangerous and unusual" and, by necessity, not in common use.
Moving on to New Jersey's ban on its listings of firearm make and models, the ANJRPC court decides that the record encompasses the same result for all semiautomatic rifles, not just the Colt AR-15. For that, "we need not precisely define the quantity or qualities that make a weapon in common use for lawful purposes. Regardless of where those lines may be drawn, the many millions of semi-automatic rifles in circulation for lawful purposes are plainly in common use."
Contrary to the argument that rifles are not commonly "used" in self-defense, "even if a weapon is rarely employed in incidents requiring self-defense, it may still be commonly possessed for that lawful purpose or other lawful purposes, such as hunting." Moreover, "Even if semi-automatic rifles are disproportionately used in some crimes, those may still represent a small fraction of those weapons' overwhelmingly lawful use." Not to mention that interpersonal violence is "a general societal problem that has persisted since the 18th century," where Bruen's second step is "fairly straightforward."
Of course, the Third Circuit did not really need to engage in the level of analogical reasoning that it did, given that the Supreme Court in Heller had already engaged in the relevant historical spade work to identify the principle that arms that are "dangerous and unusual" can be banned consistent with the Second Amendment.
That's why antebellum and Reconstruction regulations of Bowie knives, blunt weapons, and pistols as potential analogues do not work: "They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes." No Founding-era analogue exists for such restrictions, giving little weight to later restrictions. Third Circuit precedent, Lara v. Comm'r Pa. State Police (2025), holds that 1791 prevails over 1868 as the location of proper analogues.
The ANJRPC court next moves on to the magazine ban. Magazines are "arms" because they feed ammunition into certain firearms, making them functional. The label "large capacity magazine" (LCM) "is not objective: what is considered an LCM is statutorily defined." It used to be 15 rounds, now it is 10 rounds. "It would defy reason for a label devised by New Jersey's legislature to govern the reach of the Second Amendment's text." As to the argument that a firearm will still operate with a ten-round magazine, "the text of the Second Amendment does not limit 'Arms' to the minimum equipment necessary to operate a weapon."
In Bruen, the Supreme Court included "instruments that facilitate armed self defense" as part of the plain text definition of "arms." Magazines obviously do so by holding ammunition and allowing the lawful gun owner to discharge a firearm in self-defense and to train for self-defense scenarios without having manually to reload over and over.
The banned magazines easily meet the common-use test. "But the 24 million AR-15s and similar sports rifles in circulation—firearms that we have determined are in common use for lawful purposes—typically come standard with twenty- or thirty-round magazines. And there are over 100 million 30-round AR-15 magazines in circulation." (I would suggest there are far more.)
As for analogues, Founding-era gunpowder storage laws miss the mark – they were for fire safety, not crime control. Nor were concealed carry regulations, which were not outright bans, relevant.
The above resolves the unconstitutionality of New Jersey's ban on all of the listed semiautomatic rifles and on magazines. However, the court found the record too sparse about the shotguns and pistols defined as "assault firearms," which requires a remand to the district court for further factfinding.
Judge Paul Matey's concurrence minces no words: "Nothing has changed in the decades since the State launched its battle against the Second Amendment and its ongoing defiance of the law." The terms "LCM" and "assault firearm" have no objective meanings but are "marketing materials recycled into legislation." Although the opinion of the court doesn't mention features, Judge Matey explains, "There is too much evidence that all of the arms at issue—pistol grips, folding stocks, magazines containing eleven or more rounds, and the semiautomatic shotguns and pistols New Jersey lumped into the definition of 'assault weapons' with no real thought—are and have long been in common use for lawful purposes."
Concurring in part, Judge Peter Phipps stresses that proper historical analogues "have the purpose of regulating people who actually or imminently misuse firearms to harm or menace others." However, the New Jersey prohibitions are "based on their potential for misuse, however remote, and that is broader than actual or imminent misuse."
Judge Tamika Montgomery-Reeves concurs, but would have held the case pending the Supreme Court's resolution of Viramontes and Grant. Quoting the laws at issue in those cases, which could resolve ANJRPC, two definitions demonstrate (my observation) the utter irrationality of "assault weapon" bans. Cook County includes the feature of a rifle "without a stock attached," while Connecticut includes a rifle with a "folding or telescoping stock" attached. Which of these contradictory features pray tell make the rifle so dangerous?
Judge Jennifer Lee Mascott concurs in part, agreeing with Judge Matey that it is unnecessary to remand the case to the district court for further factfinding. She warns about misinterpretation of the "dangerous and unusual" concept: "But turning that designation into an antitype risks signaling to assertive State regulators that establishing a Second Amendment basis for regulation can be accomplished simply by labeling a firearm use 'dangerous and unusual' rather than affirmatively demonstrating historical evidence for the regulation as commanded by the Supreme Court."
Judge Cindy Chung concurs in part and dissents in part. She maintains that "common use" is determined at Bruen's step one and does not include "a type of weapon one would expect to be used for modern warfare; nor does the term embrace weapons most commonly used for criminal ends." Instead, common use includes a weapon "an ordinary person would have at home for purposes like protecting oneself against violent interpersonal confrontation, protecting the home, and hunting." At step two, Judge Chung writes that "a weapon not commonly worn in public causes a terror to the people." She opines that a remand is necessary to apply that standard.
Judge Patty Schwartz, joined by three other judges, dissents. The thrust of her opinion is that "the objective features of AR-15s and LCMs render them disproportionate to 'ordinary self-defense needs' and thus outside the scope of the Second Amendment's protection." Her opinion fails to articulate what exactly those "objective features" are. While no government in the world issues it as a standard service weapon, she asserts that the AR-15 is "an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense."
Judge Cheryl Ann Krause dissents, complaining that the majority disregards "the democratic will of the People of New Jersey" based on "the novel theory that these weapons are 'in common use' because modern-day manufacturers have pumped a sufficient (yet undefined) number of them into nationwide circulation and some (again, undefined) percentage of gunowners assert their subjective intent to use them only for lawful purposes." Apparently, consumers buy AR-15s because manufacturers make them do so, not because such rifles and magazines are superior to the inferior ones New Jersey foists upon them. And gunowners can't be trusted when they explain why they purchase them.
Finally, Judge D. Brooks Smith dissents, agreeing with two other dissents and "the persuasive reasoning of Judge Wilkinson" in the Bianchi case from the Fourth Circuit. That "persuasive reasoning" flouts the Supreme Court's common-use test and exaggerates the power of AR-15s, without regard to the caliber of any specific rifle.
It's been a long time coming. The New Jersey ban was originally enacted in 1990. I litigated a pre-Bruen challenge based on vagueness and equal protection, Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999), aff'd (3d Cir. 2001) (no reported opinion). We demonstrated that several "assault firearm" listings like "Avtomat Kalashnikov" (which means a full automatic in Russian) are machine gun names. And the catchall "substantially identical" firearms alerted the public about like "other stuff like that" would. I recall one of the judges on the Third Circuit panel asserting that "everyone knows what an assault firearm is, it's a submachinegun with a silencer."
The Third Circuit has now taken Second Amendment rights seriously, and the tables appear to be turning.
The legal arguments put forward by the EPA are weak and unpersuasive, and could undermine the Administration's position in other climate litigation.
In February, the Environmental Protection Agency finalized a regulation rescinding the so-called "endangerment finding"--the finding that the emission of greenhouse gases from mobile sources cause or contribute to air pollution that can be reasonably anticipated to endanger public health or welfare. As expected, environmental groups and blue states have already filed suit challenging the rescission. Some of the suits raise fanciful arguments, while others advance more traditional administrative law claims. The question is now in the courts.
Rescission of the endangerment finding was one of the Trump Administration's top environmental priorities, but some of us have been skeptical that endangerment repeal does much to advance the administration's deregulatory priorities (let alone a rational climate policy).
Reviewing the EPA's final rule and it justification, I believe my skepticism was justified. As I explain in the summer issue of Regulation, the EPA's move is "a costly, symbolic gesture that will divert administration resources from more meaningful deregulatory initiatives and does nothing to advance a rational climate change policy."
From the article:
The EPA's current position is that under the "best reading" of the CAA, Section 202 "does not authorize the Agency to prescribe emission standards in response to global climate change concerns." I have sympathy for this view, having drafted an amicus brief for the Cato Institute making just this argument. The problem is that the Supreme Court concluded otherwise in Massachusetts v. EPA (2007). The EPA offers other arguments to circumvent this holding, but they are wholly unpersuasive.
Contrary to the EPA's protestations, the Supreme Court in Massachusetts held squarely that the "EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles." Rejecting the George W. Bush administration's arguments that Congress had not authorized the EPA to address climate change, the Court declared it had "little trouble concluding" that Section 202 "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." So much for the agency's claim that the statute can be read to preclude EPA regulation "based on global climate change concerns." . . .
It does not matter if the EPA (again) believes the Massachusetts decision was wrong and the CAA was never meant to apply to greenhouse gases. The Court has given the act a definitive interpretation to the contrary, and the Court rarely reconsiders its own prior statutory interpretations. If the Court got a statute wrong, that is a mistake for Congress to fix.
The EPA tries to claim that intervening Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo (2024) and West Virginia v. EPA (2022), call for a new interpretation of the CAA, but those arguments also fall flat. In Massachusetts the Court found that the statutory text was clear and rejected the argument that it should pause before concluding Congress authorized the agency to regulate the most ubiquitous byproduct of modern civilization (what we would now call a "major question"). Were that not enough, in Loper Bright Chief Justice John Roberts, writing the majority opinion, went out of his way to make clear that the Court's decision did not "call into question" statutory interpretations reached in prior cases. Rather, he explained, the holdings of such cases, and the conclusions reached about what statutes require or what agency actions are lawful, "are still subject to statutory stare decisis."
The EPA puts forward some alternative arguments, but I do not find them any more persuasive.
Reading the EPA's rule, one might conclude that the agency understands its legal arguments are weak so long as Massachusetts v. EPA remains good law, and is hoping the Supreme Court will conclude this decision was wrongly decided and reverse it. I doubt this will happen, but would also suggest that the EPA and endangerment-finding-repeal supporters might not like what overturning Massachusetts could unleash..
Even if there are five votes to revisit Massachusetts v. EPA, those cheering endangerment rescission should be careful of what they wish for. Like it or not, it was the Supreme Court's conclusion that greenhouse gases are subject to regulation under the CAA that dictated the outcome in American Electric Power v. Connecticut (2011), in which the Court held that federal common law nuisance suits against fossil fuel emitters are displaced by federal statute. As the Court explained in American Electric Power, existing doctrine requires the displacement of federal common law causes of action where Congress has entered the field by enacting a relevant statute. Should the Massachusetts holding be undone, however, placing greenhouse gases and climate change concerns beyond the scope of the law, there would no longer be any basis to bar such suits from federal court. And were Massachusetts to be undone in this manner, it is possible that federal preemption of state greenhouse gas emission standards—such as those sought by California—would be cast aside as well. Congress may have put an end to CAA waivers for California greenhouse gas emission standards for new motor vehicles through the Congressional Review Act, but if greenhouse gas emissions from motor vehicles are no longer subject to CAA regulation, it is not clear why any such waiver would be required, or why such standards could only be adopted by California—though other statutes may still preclude state standards that operate as de facto fuel efficiency requirements.
I conclude:
The legal risks of rescinding the endangerment finding might be justified if there was no other way to scale back federal regulation of greenhouse gas emissions. Yet that is not the case. The endangerment finding itself is no obstacle to the relaxation or rescission of existing greenhouse gas emission regulations, including those imposed on motor vehicles. The relevant statutory text provides ample basis for ending regulation of such emissions from stationary sources, and there are strong legal arguments having nothing to do with endangerment that the EPA lacks the statutory authority to push automakers toward the production and promotion of electric cars. Such deregulatory moves would be quite straightforward, but they do not have the symbolic appeal of rescinding endangerment.
Administrator Zeldin called the endangerment finding "the holy grail of the climate change religion." It may be more accurate to describe it as the great white whale of the second Trump administration's EPA.
The death of Humphrey's Executor was foretold, but some of the consequences may not have been anticipated.
Members of the Federal Trade Commission are no longer protected from presidential removal without cause. Humphrey's Executor--or whatever was left of it--is dead. Congress may not limit the President's authority to remove principal officers who exercise executive power (save for members of the Federal Reserve, apparently). This is the consequence of Trump v. Slaughter.
The practical effects of Slaughter may not be immediately apparent, or so I suggest in my latest Civitas Outlook column. So-called "independent agencies," such as the Federal Trade Commission, have not been meaningfully independent for some time. For years, most such agencies have aligned their agendas with that of the President. But the Slaughter decision may have some other effects on the operation of such agencies that have been under-appreciated (or so I suggest). From my column:
Just as legislative leaders have exercised less independence from presidents of their own party, members of independent agencies have divided more clearly and consistently into reliable voting blocs. Here, as elsewhere, the separation of powers has become more the separation of parties. Combined with the increased centralization of power and control by the Chairs of some agencies, as appears to have occurred at the FTC during Lina Kahn's tenure as Chair, the composition of multi-member agencies has become far less important than who holds the Chair position. At the same time, it has become common practice for agency Chairs to step aside when a new President is inaugurated, as Kahn did once Trump began his second term, even though their terms often extend well beyond a four-year presidential term.
There are exceptions here, some of which are important. Slaughter would seem to indicate that the President can remove FEC commissioners at will, but this will not enable a president to control what the FEC does. Removing members of the FEC the President does not like will not ensure the FEC aligns with the President's agenda. But it appears to allow the President to disable the FEC from acting. In the wake of Slaughter, the President removed all remaining members of the Election Assistance Commission, potentially leaving it unable to assist states with election administration or to establish rules governing mail voter registration applications.
Many of the affected boards and commissions also have quorum requirements that prevent them from taking certain actions without enough commissioners or board members in place. Removing members of such agencies may prevent them from acting contrary to the President's wishes, but it could also prevent the agency from acting at all, particularly if the Senate does not cooperate by quickly confirming a President's replacement nominees. Unlike traditional executive-branch agencies, vacancies on multi-member commissions cannot be filled with interim or acting appointments under the Federal Vacancies Reform Act. So while a President may wish to remove members of the National Labor Relations Board (NLRB) deemed too solicitous of unfair labor practice complaints filed by unions, if removing board members leaves the NLRB without a quorum, it could bar the Board from ruling in favor of complaints brought by employers as well, and prevent the revision or rejection of disfavored agency precedent.
You can read the whole thing here.
A Magistrate Judge recommended today that the injunction be denied on First Amendment prior restraint grounds.
From a Report and Recommendations today by Magistrate Judge Jill McCook (E.D. Tenn.) in Ross v. Lambert:
According to the allegations in the Complaint, Plaintiff is a former collegiate track and field champion, 2004 Olympian, and the current Head Coach and Director of Track & Field at the University of Tennessee." In August 2022, Plaintiff hired Defendant "to serve as the track and field Recruiting Coordinator—which was a non-coaching, administrative position." Plaintiff alleges that less than a year later, in May 2023, he "advised [Defendant] that he was being terminated from his position as Recruiting Coordinator at the University of Tennessee." He claims that he "gave [Defendant] the option of 'voluntarily resigning' from his position in lieu of being fired for cause[,]" which Defendant accepted.
Plaintiff contends that on May 30, 2024, Defendant sent the Office of General Counsel at the University of Tennessee ("University") a demand letter ("May 30 Letter"), "threatening to sue the University and [Plaintiff] for 'wrongful termination and discrimination' if he did not receive payment of $150,000 from the University." According to Plaintiff, "Defendant … made a series of patently false and inflammatory allegations against [Plaintiff] in the [May 30] Letter and warned that he would go to the media with his allegations if the University did not settle." Specifically, the Complaint asserts that "[Defendant] made … knowingly false and derogatory statements[,]" including:
- "Past Misconduct: Duane Ross has a documented history of questionable behavior. He received a two-year suspension from the U.S. Anti-Doping Agency for using performance-enhancing drugs, disqualifying all his results since November 2, 2001. His involvement in the BALCO steroid case further underscores his troubled past."
- "Family Issues: His son, Randolph Ross Jr., has also been suspended for doping violations. Randolph Ross Jr.'s suspension through June 30, 2025, for whereabouts failures and tampering with an email raises questions about the environment and influence under Duane Ross's watch. Where do you think he learned that from?"
- "Athlete Violations. Under His Watch: Under Duane Ross's leadership, North Carolina A&T faced multiple suspensions of top athletes for doping violations. Grace Nwokocha was suspended right before the World Championships for doping. Additionally, Ross used an athlete who was not cleared by the NCAA, resulting in the forfeiture of team titles and performances. These incidents, though they occurred before his tenure at Tennessee, are closely tied to him and paint a picture of ongoing integrity issues."
- "Mr. Ross is not representing your brand appropriately, nor did he follow your procedures or policies, and I'm sure you provided him with all the tools to succeed and comply with your standards. This lack of competence raises serious questions about his ability to lead a program as esteemed as the University of Tennessee. At this point, he has proven to be a liability rather than an asset to the University."
The University rejected Defendant's demand.
But I wouldn't recommend it.
From State v. Conrad, decided Monday by the Ohio Court of Appeals, in an opinion by Judge Eugene Lucci, joined by Judges Matt Lynch and Scott Ylnch:
In 2025, Conrad was living with his girlfriend and their ten-month-old son in Conrad's home in Wickliffe, Ohio. In April 2025, Conrad and his girlfriend were involved in a verbal altercation. After the girlfriend allegedly damaged Conrad's PlayStation console in the basement, Conrad called 911. He informed the dispatcher that he would be armed "because the cops are coming in here." The dispatcher responded, "Do not pick it up with your hands, okay?" Conrad stated, "Absolutely." After ending the 911 call, Conrad armed himself by holstering a handgun on his right hip and then went upstairs to await law enforcement.
When the first officer arrived, Conrad observed him approaching the front door on foot, at which point Conrad opened the door for the officer and informed him that he was armed. The officer responded by stating "pardon me" or "excuse me," and Conrad responded again that he was armed. The officer saw the firearm on Conrad's hip and informed him that he was going to relieve him of the gun. Conrad initially refused, stating, "No you're not," and he changed his stance by turning his right hip away from the officer. Conrad then motioned to or placed his hand on his gun, at which point the officer drew his own firearm. After loudly arguing as to whether Conrad was permitted to be armed, Conrad raised his hands and told the officer to take his gun. Approximately 23 seconds elapsed between the officer entering the home and the officer disarming Conrad.
After disarming Conrad, the officer spoke with him for several minutes regarding his decision to arm himself. During this conversation, Conrad indicated he had armed himself because he believed men were typically arrested when police were called for domestic matters, and he wanted to "eve[n] the playing field" because he was unsure how officers would respond and did not trust them. After speaking with Conrad, the first responding officer joined other officers who had arrived and were speaking to Conrad's girlfriend in the basement. The girlfriend indicated that Conrad had pushed her, and she fell back, bumping her hip against a table, during their dispute.
Conrad was acquitted of domestic violence, but convicted of violating R.C. 2921.31(A), which provides:
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