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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
A Wall Of Separation Between LGB and T
The Log Cabin Republicans will no longer advocate for transgender issues.
Shortly after Obergefell was decided, it became clear that transgender rights was simply the next stop on the train. But the pairing of LGB and T never made sense to me. Gays and lesbians urged society to accept them as they are. Transgender people compelled society to accept they as they are not. More pressingly, transgender rights advocates focused nearly all of their efforts on children: bathrooms in school; teachers telling students to lie to their parents about secret transitions; medical procedures for minors; biologically male athletes in sports; and so on. For generation, gay men were targeted for grooming young children. Growing up in New York City in the 1990s, I heard nonstop jokes about gay priests and Boy Scout troop leaders abusing kids. Yet the T in LGBT focused on the kids.
The issues for gays and lesbians always seemed quite different. I wondered whether gay rights groups were quietly concerned about this merger of LGB and T, but didn't speak up for fear of being labeled transphobic. I think the other shoe has finally dropped.
The Log Cabin Republicans will no longer advocate on transgender issues. Ross Hemminger, the President of LCR, published an essay in Townhall discussing the issues.
In 2015, the Log Cabin Republicans Board of Directors voted to add the "T" under the umbrella of our mission — out of a belief that all adults should be allowed to pursue their own happiness, free of government interference, as long as it did not impede on the inalienable rights of others.
At the time, we did not believe that we would find ourselves where we are today. The transgender movement has ceased focusing on adults at all — nearly all of their efforts and those of their aligned special interest groups focus on minors. They push schools to teach radical gender ideology; they want biological men in women's sports regardless of the consequences; perhaps most offensively, they support gender reassignment treatments for minors, often without the knowledge or consent of the parents, knowing full well these treatments are mostly irreversible.
And Hemminger recognizes how support for gay marriage is declining because of transgender ideology.
Gay men and women are losing public support across the country, and support for gay marriage and other once-widely accepted rights is eroding. Why? Because many voters today weren't alive or cognizant of the politics of gay marriage winding its way through the courts and gaining ground in public opinion. Their view of the gay community is based on today's radical transgender activists with their unnecessary and discomfiting focus on America's youth.
That is why, after significant discussion with our membership, our Board of Directors voted to refine Log Cabin Republicans' national advocacy focus to concentrate specifically on issues of sexual orientation and conservative values — in other words, we are an LGB advocacy organization, as our founders envisioned and as our moral center calls us to be.
The New York Times quotes Danny Sullivan, who previously served as the President of the Houston Chapter of the Log Cabin Republicans:
Danny Stevens, a former president of the Log Cabin Republicans chapter in Houston, said he thought the national group had made a smart move by abandoning trans rights issues, which it embraced in 2015.
The issue was a nonstarter for many Texas Republicans.
"At some point, I just kept thinking, why are we spending all this time convincing Republicans that we're not crazy while associating ourselves with a movement pushing things most of them are never going to accept?" Mr. Stevens wrote in a text message on Tuesday.
He wishes the national Log Cabin group had abandoned trans issues sooner, he said. "I actually think it was necessary," he said, if the group "wants to keep making progress within the Republican Party."
I spoke at Danny's chapter in Houston last year about Obergefell. I explained that regardless of what one thinks about same-sex marriage, Justice Kennedy's decision was legally indefensible, and a shaky foundation on which to build the institution. The audience was respectful, even if they disagreed. During Q&A, there were a number of questions about transgender rights, and it was clear to me which way the members were trending.
Danny actually stepped down from leadership, largely due to LCR's stance on the transgender issue. I asked Danny if I could publish his letter, and he gladly shared it. I think Danny makes some important points here that are worth considering:
Oklahoma Attorney General Responsible For Two Terrible Supreme Court Decisions Loses Gubernatorial Primary
I'd like to think Drummond lost because of St. Isidore's and Glossip.
It is often said that A.G. is short for "Aspiring Governor." Such was the case in Oklahoma, where Attorney General Gentner Drummond ran for the Republican Gubernatorial Primary. The AP has now called the race, and Drummond lost by less than a percentage point.
I usually do not comment on political races, but Drummond deserves some heat.
First, Drummond argued that his own state's charter school program was unconstitutional. He litigated St. Isidore up to the Supreme Court where the case was affirmed by an equally-divided court. President Trump even mentioned this case in his social media endorsement of Drummond's opponent: "He even SUED to BLOCK a religious based charter school strongly supported by my Administration — Very troubling for Educational Freedom, and an outright attack on Christianity!"
Second, Drummond hired his lifelong friend to review the capital conviction of Richard Glossip. Drummond then asked the Oklahoma Court of Criminal Appeals to vacate the death sentence. That court refused to revisit the case. Ultimately, the Supreme Court ruled that the OCCA had misinterpreted federal law. There were so many problems with that case. But even more troubling, as my colleague Paul Cassell pointed out, is Drummond's own conduct. Justice Thomas wrote in his dissent that Drummond "collusively excluded . . . highly relevant evidence" from the record.
To add insult to injury, Drummond also seemed to support Justice Gorsuch's disastrous decision in McGirt. Based on the electoral map, Indian country seemed to vote strongly against Drummond.
As the returns stand now, only 2,000 votes separate Drummond and his opponent. I'd like to think that some of those votes are due to the positions Drummond took before the courts.
"Counsel Took Full Responsibility for His Mistakes, Was Not Evasive, and Prioritized Candor to the Court and Opposing Counsel"
From Judge Jennifer Choe-Groves (Ct. of Int'l Trade) Thursday in Disruptive Resources, LLC v. Ballistic Barrier Prods. Inc. (D. Del.):
Before the Court is an action involving claims of patent infringement between Plaintiff Disruptive Resources … and Defendants Ballistic Barrier Products Inc. and Mayday Security Solutions LLC …. After Plaintiff's counsel disclosed to the Court that the previously filed Joint Claim Construction Brief … featured multiple errors due to his use of generative artificial intelligence ("AI"), the Court ordered counsel to show cause in writing as to why the Court should not impose sanctions for counsel's conduct pursuant to Federal Rule of Civil Procedure 11 ….
In counsel's letter to the Court, counsel described the events that led to his disclosure of inaccuracies attributable to generative AI. Portions of counsel's reply brief in support of Plaintiff's claim constructions "included an erroneously proposed construction that deviated from the construction of the terms Plaintiff had advanced through the claim construction process[.]"
Counsel stated that he used the AI system "Strongsuit" to generate an initial outline of Plaintiff's reply brief and to pull statements from a deposition that supported Plaintiff's position on claim construction. Counsel used directed prompts to complete an initial draft of the reply brief that integrated extrinsic evidence mentioned in the deposition.
When editing the draft, counsel "jumped from section to section" and mistakenly "believed [he] had edited the entire brief, when in reality, [he] had missed the 1-page section" that proposed an incorrect construction. Counsel admits that he failed to conduct a final review of the entire brief and "overlooked some of the arguments being made."
Upon discovering the erroneous statements in the brief, counsel notified opposing counsel and proposed amending the Joint Brief to implement footnotes to address the erroneous proposed constructions. The Parties later filed a [Joint Letter] disclosing these issues to the Court. Counsel argues that his actions did not violate Rule 11 or any rules of professional conduct because the reply brief was not presented for an improper purpose, the claims and legal contentions were supported by authentic existing law, and all factual contentions were supported by evidenceCounsel suggests that his errors were "more akin to taking litigation positions that are ultimately borne out to not be adopted by the Court."
"That Fire Burns Is an Inference Nearly as Old as Human History"
A short excerpt from one part of Pudans v. Frank Rieman Music, Inc., decided Wednesday by the Iowa court of Appeals (in an opinion by Judge Sharon Soorholtz Greer):
Pudans and [Defendants] the Donahues are next-door neighbors…. According to Pudans, on the Fourth of July in 2017, fireworks set off from the Donahues' property damaged her swimming pool….
[T]he Donahues … argue Pudans's claim that the Donahues' fireworks burned a hole in her pool liner could not survive summary judgment without expert testimony on causation. In response, Pudans points to her affidavit that detailed her experience as a swimming-pool owner. There, she testified she observed there were no "black spots" and no damage to the liner on July 4, 2017, before the fireworks; she witnessed fireworks from the Donahues later that day; and the next day, she found "black marks" and damage to the pool liner. Spent fireworks were removed from her pool filter.
The gist of the Donahues' argument is that swimming pools are full of water, water usually puts out fires, and therefore you need an expert to prove flaming fireworks debris could burn a pool liner that has water above it. And to their point, the Donahues obtained an expert—one that apparently has a colorful personal history with Pudans—who will testify he does not believe fireworks can burn a pool liner through approximately four feet of water.
No Pseudonymity in Lawsuit Against Apple for Allegedly Enabling Stalking Via AirTags—Other Courts Had Allowed Pseudonymity
As a reminder of just how badly split courts are on a wide range of questions related to the law of pseudonymous litigation, from Judge Kent Wetherell (N.D. Fla.) Wednesday in Doe v. Apple, Inc.:
This case is before the Court based on Plaintiff's motion to proceed under a pseudonym. No response is needed. {Even if the motion is not opposed by Defendant (as it appears that it will not be), the Court is not required to grant it.}
Plaintiff has asserted multiple claims against Apple, Inc., related to its design, manufacture, and marketing of the Apple AirTag. The claims are based on a former paramour's alleged use of an AirTag to stalk Plaintiff.
Plaintiff seeks leave to proceed anonymously because the litigation will require the disclosure of intimate aspects of Plaintiff's life (e.g., domestic violence, sexual harassment) related to the stalking. She is also concerned that requiring her to disclose her identity could enable her stalker to locate her, thereby creating a safety risk for her and her minor child.
"A party may proceed anonymously in federal court by establishing 'a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.'" …
"[C]ourts have[, however,] often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … [T]he circumstances underlying the complaint have [also] apparently already been aired in a state restraining order proceeding….
5 Years of the Journal of Free Speech Law, 150 Published Articles
I'm pleased to report that it has been 5 years since the Journal of Free Speech Law published its first article, and since then we've published a total of 150. We've published some of the top people in the field from some of the top law schools, such as Geoffrey Stone (Chicago), Genevieve Lakier (Chicago), Jane Ginsburg (Columbia), Philip Hamburger (Columbia), Lee Bollinger (Columbia), Stuart Benjamin (Duke), Joseph Blocher (Duke), Mark Tushnet (Harvard), Andrew Koppelman (Northwestern), Jeremy Waldron (NYU), Cynthia Estlund (NYU), Christopher Yoo (Penn), Mark Lemley (Stanford), Danielle Citron (Virginia), Jack Balkin (Yale), and Robert Post (Yale),
But we've also published professors from other law schools; professors from other disciplines; authors from other countries; and a few law students or fresh law school graduates whose articles have been accepted through our blind review process. The articles have been cited so far in 14 court cases, over 500 articles, and over 140 briefs. And note that all the articles have only had five years or less to attract these citations.
We also publish quickly (by the standards of academic journals), if that's what authors would like. Several of our most recent articles, for instance, were published 3 to 5 months from when we received them, and that includes the time stemming from the authors revising their articles in various ways (which we certainly allow, if the author is willing to take the time). We have published articles as quickly as a month after we received them, when the author has wanted to move fast.
To my knowledge, many top student-edited journals are shut down for the Fall and Winter (or are about to shut down), and won't review manuscripts until February. That means the manuscripts probably wouldn't be published until the end of 2027, or even later. But if you submit to us now, and want to publish quickly, you can have the article out by the end of 2026.
Justice Department Opines That Federal Law Allows Carrying Guns in Post Offices for Self-Defense
A short excerpt from the long Justice Department Office of Legal Counsel Aug. 12 memo to the Attorney General:
You have asked whether 18 U.S.C. § 930(a) … is best read to impose criminal penalties on an otherwise law-abiding individual who carries weapons into a post office for the purpose of self-defense. We would have significant constitutional concerns if Congress had created such a blanket ban on the lawful carrying of constitutionally protected arms into a building frequented by the public since the Founding. But we ultimately need not reach that issue here, as Congress has exempted the "lawful carrying" of firearms or other dangerous weapons "incident to hunting or other lawful purposes." Because carrying arms for self-defense when entering a building held open to the public is a paradigmatic "lawful purpose[]," that exception permits the lawful carrying of constitutionally protected firearms in post offices….
[S]ection 930(d)(3) provides that section 930(a)'s bar against carrying firearms and dangerous weaponry does not apply to "the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes." 18 U.S.C. § 930(d)(3). To fall within this exception with respect to firearms, an individual must satisfy two criteria: (1) the carrying of their firearm must be "lawful"; and (2) the carrying must be "incident to" a "lawful purpose[]," such as "hunting."
The first requirement is relatively straightforward. It excludes, for example, a person who is not legally allowed to carry a gun anywhere…. Under federal law, this exemption would not cover, for example, a person who has been convicted of a felony or a misdemeanor crime of domestic violence, a person who has been committed to a mental institution, or a person who is in the United States illegally. It may also exclude an individual who is forbidden from carrying a firearm in the relevant state because he is not licensed—so long as the licensing regime itself is not constitutionally infirm…
The second requirement is less clear but is best read to cover an individual entering a post office that is open to the public while lawfully carrying a firearm for self-defense. "Incident," used as an adjective, means "occurring or likely to occur esp[ecially] as a minor consequence or accompaniment." In the legal context, "incident" means "depends upon, appertains to, or follows another."
New in SCOTUSBlog: The justices should regularly sit on the lower courts
The chief justice should ask each circuit justice to preside over one en banc oral argument of his or her circuit.
My latest installment in SCOTUSBlog calls for the return of circuit riding, with a twist:
Each term the circuit justices would be drawn at random to sit on the lower courts. The justices can pull a number out of a hat. No longer would the same justice preside over the same circuit year-after-year. Let the justices and the lower courts mix and mingle, to get the greatest flavor of how the judicial system works nationwide. Indeed, justices should rotate among the circuits every year to see the widest range of courts, across the fruited plain, with flyover country in the middle.
A more important part of this proposal is that the chief justice will ask each circuit justice to preside over one en banc oral argument of his or her circuit. These sessions could be timed when the justices do not have oral argument at the Supreme Court to minimize possible disruptions.
I also propose that the Justices should keep their home chambers outside of the swamp, and only commute when the Court is in session:
It would be quite feasible for a justice to commute to the Supreme Court for the session days. Indeed, Justice John Paul Stevens spent two weeks of each month from November through April in his Florida home. For all other times, the justice could work in a local chamber at a federal courthouse. Federal law requires circuit judges to reside in the circuit they are assigned to, but there is no similar statute requiring Supreme Court justices to live in Washington, D.C. I think Congress would gladly pay for some travel costs for the justices to spend less time in the capital.
I don't even think a justice would need to purchase an expensive home in Washington, D.C. A justice could also follow the lead of many members of Congress, and use their chambers as sleeping quarters. If it is good enough for Article I, it should be good enough for Article III. (Indeed, on the Marshall court, all of the justices would stay at the same boarding house.)
I'll add that their law clerks should join the justices on the road. There is value in keeping the law clerk's feet planted on the ground. Working in a marble palace can distort any sense of reality. Perhaps law clerks could spend part of the year in the home chambers and part of the year at the Supreme Court. Or some law clerks could spend all of their time in either location. Or perhaps a justice could go to D.C. without any law clerks. In any event, it would serve the justices well to get out of D.C. and see how justice is dispensed across the nation.
If we take the Justices and clerks away from Mount Olympus, they will spend less time with their heads in the cloud.
New in Civitas Outlook: "SCOTUS's Immigration Rulings Chastise Trump on Morality"
"Mullin v. Doe should have been resolved on legal grounds without the need to virtue signal about immigration."
At the end of the term, there were so many blockbusters that two significant immigration decisions largely flew under the radar. Justice Alito wrote the majority opinions in Mullin v. Doe and Mullin v. Al Otro Lado. While I think both cases got the law right, I was troubled by some of the rhetoric that Alito used in Doe. My new essay in Civitas Outlook is titled, "SCOTUS's Immigration Rulings Chastise Trump on Morality."
Here is the introduction:
Last term, the Supreme Court ruled that the judiciary could not review the Secretary of Homeland Security's "determination" to suspend Temporary Protected Status (TPS) for Haitian and Syrian aliens. Mullin v. Doe was split by a right-left 6-3 vote. I think the majority had the better reading of the statute and the Constitution. Yet the Court didn't limit itself to the legal issues presented. Rather, Justice Alito's majority opinion regrettably chastised President Trump's rhetoric and his administration's immigration policies. Indeed, Justice Alito expressed something like remorse for ruling against the immigrants, perhaps in response to the dissent's fear-mongering claims. The Court reached the right result but was wrong to moralize to the President about how to conduct foreign affairs. This straightforward case should have been resolved on legal grounds without the need to virtue signal about immigration.
Ultimately, Justice Thomas was willing to say what the others were not:
Ultimately, something about the majority opinion in Mullin v. Doe is unsatisfying. The Court finds that the administration's decision to terminate TPS status was not subject to judicial review, and that Trump's comments about Haitians eating pets were not "overtly racial." I think the better approach can be found in Justice Thomas's solo concurrence. He observed that if "equal protection principles applied to immigration decisions, much of even our current immigration law would conflict with this Court's modern equal protection doctrine." Why? Because "our immigration laws have distinguished among aliens based on their national origin from the beginning." The government has long favored immigrants from some nations over others, without transgressing the Constitution. This policy should be constitutional.
The Court would have been much better off letting the federal government set its foreign policy with regard to immigration and not moralizing about how Americans—the President in particular—should view migrants. This decision, compounded with the birthright citizenship ruling, reflects a gap between the judiciary and the pressing issue of immigration that continues to divide the country. Hope springs eternal that the Supreme Court can correct course for next term.
To echo Senator Cruz's new book, Justice Thomas is always willing to go further. And as Judge Ho explains in a book review in National Review, going further invariably means standing alone, especially when Thomas takes the unpopular position.
Should Deadly Self-Defense Be Tortious if Need for It Could Have Been Avoided "by Relinquishing the Exercise of [a] Right"?
The Restatements are influential works by the American Law Institute—an organization of lawyers, judges, and academics—that aimed to provide a guide for future lawyers and judges (usually by summarizing the existing law, but sometimes by going beyond existing law). Many courts have indeed adopted the Restatement formulations in various areas.
Back in 1934, the first Restatement of Torts, set forth a limitation on the common-law privilege of self-defense against battery and similar lawsuits (emphasis added):
The intentional infliction upon another of bodily harm by a means which is intended or likely to cause death or serious bodily harm is not privileged [as self-defense], if the actor reasonably believes that he can with complete safety avoid the necessity of so defending himself
(a) by retreating, if attacked in any place other than his dwelling place, or
(b) by relinquishing the exercise of any right or privilege other than his privilege to exclude intruders from his dwelling place or to prevent himself from being dispossessed thereof or to effect a lawful arrest.
The 1965 Restatement (Second) of Torts continued this. But I'm pleased to say that, while the 2026 Restatement (Third) of Torts: Intentional Torts to Persons § 24 preserves a "duty to retreat" (which does fit with quite a few precedents), it rejects any "duty to relinquish":
Comment i. No duty to relinquish other rights
Restatement Second of Torts § 65(3)(b) broadly stated that an actor lost the right to use deadly force in self-defense, not only when the actor could safely retreat, but also when the actor could safely avoid the need to use deadly force by "relinquishing the exercise of any right or privilege other than his privilege to prevent intrusions upon or dispossession of his dwelling place or to effect a lawful arrest." However, research has disclosed no cases that apply that "any right or privilege" provision, and the provision is unduly broad. Accordingly, this Restatement no longer includes the provision….
Today in Supreme Court History: August 25, 1998
8/25/1998: Justice Lewis Powell dies.
Open Thread
What’s on your mind?
How Long Did Justice Jackson's "Kafkaesque Nightmare" Dissent Hold Up Trump v. California?
In a future writing, I propose a mechanism whereby six Justices can force the release of any pending case.
On July 27, 2026, the Solicitor General submitted an emergency application in Trump v. California. This case concerns proposed regulations for mail-in ballots. The government filed its reply brief on August 12. After a flurry of litigation in the lower court, and new action by the government, the Supreme Court finally decided the case on August 24. This emergency case took nearly a month.
The majority opinion, at a brisk ten pages, finds the District Court lacked jurisdiction because the case was not yet ripe. Moreover, any alleged injuries were speculative under Clapper. The per curiam opinion reads a lot of Justice Kavanaugh's voice. I do like the word "concretize." Justice Kavanuagh has taken the lead in writing some of the Court's more significant jurisdictional cases. One would think that a former federal courts professor in the majority would get these cases, but apparently not.
Justice Sotomayor's pithy dissent covers all the bases in only four pages.
Then there is Justice Jackson. She wrote a solo twenty-page dissent that discusses the merits of the case, even though the majority only addressed the jurisdictional issues. She also warns that the Court's precedents are creating a "Kafkaesque nightmare." The only nightmare here is the fact that the Court let KBJ take nearly a month from the date of the application to write this dissent.
It seems that all of the Justices were ready to go shortly after the briefing concluded. But Jackson dragged out the process so long that the posture in the lower court changed. Some critics have faulted the Court for not addressing the recent developments. But how could they? Any change by the majority might trigger another two week delay from Justice Jackson.
Justice Jackson has proven that she sees no need for urgency when the Trump Administration submits an emergency application, especially when the case comes from the First Circuit. She slow-walked the petition in Libby v. Fectau. My nickname, the Laborious KBJ, still fits.
I will give you a preview of a future installment from my SCOTUSBlog series on Court Reform. I call it the "Release-6."
For any matter, six Justices can force the release of an opinion immediately. This rule would apply on both the merits and emergency dockets. The majority opinion could be published right away, with a notation that a dissent is forthcoming. A super-majority of the Court can bring a pending matter to an immediate conclusion. If a Justice wishes, he or she can publish the dissent at a later date, but the business of the Court will move forward.
There are some emergency matters where an immediate resolution is essential for the government or the private parties. It may also not be viable to keep an administrative stay in effect for an extended period of time. With the Release-6, six members of the Court can issue their judgment, and the dissent can come later, or not at all.
Trump v. California was a prime case. There were six clear votes to grant a stay, and a single dissenter held the matter up for weeks. Release-6. The Supreme Court forced out a ruling in A.A.R.P. v. Trump before Justices Alito and Thomas could write their dissent. Cooper v. Aaron was decided before Justice Frankfurter could finish his concurrence. In an emergency case, the Court can act before the separate writings are ready. Justice Jackson should receive the same treatment.
No Preliminary Injunction Against Applying Birth Sex Policy to Intersex Plaintiff's Global Entry Card …
when plaintiff has passport that won't expire until 2032.
From today's decision by Judge Loren AliKhan (D.D.C.) in Jansen v. Trump:
On the first day of his second term, President Donald J. Trump issued an Executive Order declaring it "the policy of the United States to recognize two sexes, male and female," which "are not changeable." The Executive Order requires that government-issued identification documents, including passports and Global Entry cards, "accurately reflect the holder's sex" based on the individual's reproductive system "at conception." Pursuant to the Executive Order, the U.S. Department of State and U.S. Customs and Border Protection ("CBP"), a component of the U.S. Department of Homeland Security ("DHS"), now require that sex markers on passports and Global Entry cards reflect an individual's sex assigned at birth.
Ms. Jansen is an intersex, post-operative transgender woman in her fifties. She was born with sex chromosome mosaicism, an intersex condition where each of her cells has a different combination of sex chromosomes, such as XX, XY, and XXXY. When Ms. Jansen was born, her sex was assigned as male on her birth certificate even though she was born with underdeveloped external male reproductive organs and testes that do not produce sperm.
Ms. Jansen learned that she had mosaicism as a teenager, after which she "began living all aspects of her life as a woman." In the 1990s, Ms. Jansen successfully petitioned to change the sex on her birth certificate and in her Social Security records to female. Her state of residence also changed the sex designation on her driver's license from male to female "in the belief that the male designation was a clerical error." Also in the 1990s, Ms. Jansen underwent surgery in the United Kingdom to align her physical anatomy with her female sex. She has been on hormone therapy since around that time. Ms. Jansen has lived as a woman for over thirty years, and while people close to her are aware that she is intersex and transgender, "people in her community are not." …
AI Hallucinations in State Farm Insurance Outside Lawyers' Filings
From L.A. Times (Rebecca Ellis) Wednesday:
As part of an insurance dispute over a fire-damaged Carson home, attorneys for State Farm cited several cases in court filings this month that they later acknowledged don't exist….
"State Farm expects its external counsel to conform to the highest level of ethical standards and professionalism, including in their use of AI and confirming the accuracy of all legal filings," [State Farm spokesman Tom Hartmann] said.
From the State Farm lawyer's declaration, in Meni-Siliga v. A's Contractor, Inc. (Cal. Super. Ct. L.A. County):
I submit this declaration to, first and foremost, express my deepest apologies and regret to the Court, Ms. Siliga and her attorneys. I also submit this declaration to outline the steps our office has taken to determine the scope of these issues within State Farm's Motions in Limine or other filings. As set forth below, I have reviewed all of State Farm's Motions in Limine and supporting reply briefs, State Farm's Oppositions to Plaintiff's Motions in Limine, and, as a precaution, all pleadings in connection with State Farm's Motion for Summary Judgment/Adjudication and Plaintiff's Motion for Reconsideration. Based on that review, I can represent that there are no AI hallucinations within any of State Farm's Oppositions, Replies or the MSJ documents.
At the close of the most recent Final Status Conference on Friday, August 7, 2026, counsel for Plaintiff – Eric M. Khodadian, Esq. with Cummins & White LLP and Michael Shaolian, Esq. with The Shaolian Law Firm P.C. – informed the Court that they had discovered several citations in State Farm's motion in limine filings that were "fabricated" and possibly "hallucinations." This was the first time I became aware of the issue with prior filings, particularly as it relates to State Farm's first five motions in limine which our office filed and served on March 31, 2026. The issues had not been raised with us prior to or after the first two [Final Status Conferences] or before the end of the August 7th hearing….
Because of the seriousness of the allegations and the importance to [my colleague and State Farm's lead counsel], myself, our firm and State Farm of ensuring the integrity of any of our filings submitted to the Court in this matter and others, I began an investigation of the matter immediately upon my return from the August 7, 2026, Final Status Conference. With sincerest regret, I unfortunately discovered that Mr. Khodadian and Mr. Shaolian were correct, and that there were seven (7) case citations across State Farm's eight (8) motions in limine that simply did not exist. These include the following citations [details omitted -EV]….
"Signs of AI Authorship in Federal Appellate Opinions"
"Dozens of published circuit opinions show signs of AI writing. If courts are using AI, that's promising—and worth getting right."
I'm delighted to pass along this extremely interesting piece, from Josh Morrow, a partner at Lehotsky Cohn LLP:
I was intrigued to see what struck me as indicia of AI writing in a recent, published opinion from an Article III appellate court. So I took the opinion to Pangram, an AI-detection tool. Pangram's results backed my intuition, identifying multiple passages, some stretching for pages, as AI-generated.
Then I ran the full set of this year's published opinions from the regional courts of appeals through Pangram—about 2,250 opinions in all. Dozens show signs of AI writing.
No, I'm not going to name the judges who wrote or joined the opinions. Used well, AI can sharpen both thinking and prose, and I am heartened that some courts appear to be using it. For now, I just want to survey my findings, explain what they mean, and offer a few thoughts about how courts can make the most of AI without ceding human judgment.
Background
AI writing can leave "tells," but the full set resists reduction to a checklist. Sometimes you just get the feeling a passage is AI. That feeling struck recently as I was reading an opinion from one of the regional courts of appeals. (Like the other opinions I discuss, this one has no connection to my practice.)
I uploaded the opinion to Pangram, which is a cutting-edge AI-detection tool trained to distinguish human writing from AI. There is a lingering perception that AI writing is invulnerable to detection. Earlier tools touting this ability were faltering and gave that view some basis. But no more. Some AI developers are working toward offering their own proprietary detectors. Meanwhile, third-party detectors have improved considerably. Pangram, for example, claims a "false positive" rate "of just 0.0041%, or roughly one false positive for every 24,000 documents." My experience is in accord.
Jacob Mchangama on Frederick Douglass's Views on Free Speech During the Civil War
An extremely interesting post (Mchangama, as many of you know, is a historian of free speech, among other things):
[I]t's not surprising that a man in Douglass' position would appeal to free speech given the draconian censorship of abolitionist ideas in the South, the hostile mobs he often had to confront and more generally his membership of an unpopular minority that suffered pervasive stigma and discrimination. In such a vulnerable situation it's not hard to see how the right of free speech can be invoked as a shield against majoritarian intolerance and a precondition for speaking truth to power.
But as everyone who cares deeply about free speech knows all too well, the real test for free speech defenders is not whether you advocate free speech for yourself and the ideas you want to advance. The real test is whether you also defend the rights of those you most vehemently disagree with and are willing to take a stand for the right to express deeply unpopular ideas no matter how massive and vocal the public backlash.
A great topic to test Douglass' free speech philosophy and consistency is wartime restrictions. National security is and remains one of the essential drivers of censorship. As witnessed by World War I and the subsequent First Red Scare, such wartime restrictions can often extend beyond and outlive any genuine and pressing requirements, and end up targeting dissent and opposition alleged to threaten national unity.
Douglass lived through the American Civil War; a war fundamentally fought over the very question of slavery, which also animated Douglass' personal struggle. He therefore had a deeply personal stake in the outcome of the war and in supporting one side against the other, both when they faced off on the battlefield and when they clashed in the public square. So what does the record say? …
