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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Bernie Sanders' Dangerous and Unconstitutional Plan to Expropriate AI Firms
The plan to seize 50% of AI firms' stock violates the Takings Clause of the Fifth Amendment. It would also create dangerous government control over a vital industry, in ways similar to Trump's policies.
In a recent New York Times article, socialist Sen. Bernie Sanders presented a proposal to have the federal government expropriate 50% of the stock of major AI producers. If enacted by Congress, the plan would violate the Takings Clause of the Fifth Amendment.
Sanders justifies this expropriation by claiming that AI was produced through the "collective knowledge of humanity":
Artificial intelligence was not created out of thin air. The data and language used by generative A.I. tools didn't just pop into Sam Altman's head or Elon Musk's imagination. A.I. is built on our collective intelligence: our books, songs, artwork, journalism, computer code, scientific research, videos, conversations, images and ideas spanning generations. That is not just the opinion of Bernie Sanders.
For the most part, tech oligarchs have fed this knowledge into their A.I. models without permission, without acknowledgment, without compensation. In other words, the creative work of millions of people — writers, artists, musicians, journalists, teachers, scientists and ordinary citizens — has essentially been stolen by some of the wealthiest people in the world. It's time for us to reclaim it.
Since A.I. is built on the collective knowledge of humanity, the wealth it generates must benefit humanity.
The Takings Clause of the Fifth Amendment states that the government may not take "private property" without paying "just compensation."As Richard Epstein and Eduardo Penalver – leading takings scholars with widely divergent views on most political and legal issues – explain in a joint essay on the Takings Clause for the National Constitution Center, "the guarantee of just compensation must apply at the very least to cases in which the government engages in the outright confiscation of property." Stock is private property, and seizing 50% of the stock value of major firms is a pretty obvious case of confiscation.
And it does not matter that Sanders proposes to take "only" 50% of the stock, rather than 100%. If the government seizes half your house or half of your business, that's still a taking. Indeed, the Supreme Court has held that seizing a much smaller proportion of a property is a taking, as in the famous case of Loretto v. Teleprompter, where New York City required the owner of a building to give up a small portion of the roof to put a cable box there. The same principle applies here.
Sanders refers to the seizure as a "one-time 50 percent tax." But that labeling doesn't matter. It's still obviously an expropriation of property, and not simply a tax on the income it generates or even a property tax. One of the key elements of property rights is control over its use. Sanders makes clear that seizing control for the government is a major objective of the proposal. There can be situations where the boundary between a tax and a taking is fuzzy. But this proposal is very obviously on the taking side of the line.
If merely labeling an expropriation like this a tax could immunize the government from takings liability, they could use the same trick to expropriate virtually any property without compensation. Thus, they could take over your house by claiming that it's merely an in-kind tax payable in the form of land-use rights. They could take over any business or charitable organization by claiming that it's a one-time tax payable by turning over the right to control all the organization's activities. And so on.
Sanders could potentially get around Takings Clause constraints by abandoning outright confiscation, and instead having the government pressure firms into giving up control by using regulatory pressure, offering subsidies, or imposing unconstitutional export taxes on those that refuse to comply. Donald Trump has actually used tools like these to acquire stakes in various firms, such as Intel. The Trump administration has recently been considering using such shenanigans to acquire stakes in major AI firms.
The Trump-like approach is, I believe, also subject to a variety of legal objections. But it's less obviously unconstitutional than Sanders' plan for outright confiscation.
In addition to being unconstitutional, the Sanders plan - like Trump's similar policies (which I have forcefully criticized) - is awful on moral and policy grounds. Sanders justifies it on the basis that AI has been "built on the collective knowledge of humanity." That "reasoning" could justify confiscating virtually any property. Pretty much every productive activity relies, in part, on knowledge accumulated by other people previously. Your house, your cellphone, your car, and your refrigerator, are all based on previously developed scientific and other knowledge. Anyone who writes a book or an article is likely building accumulated knowledge, some of it accumulated over many centuries. My writings on democratic theory rely, in part on, ideas that go all the way to the origins of democracy in ancient Greece.
AI producers, like almost everyone else, are building on accumulated knowledge. But they nonetheless make important new contributions, and the government has no right to expropriate them. Consumer choice and competition, not the government, should determine how much value to assign to the AI producers' products, not the state.
To the extent that AI producers may have illegally used others' intellectual property (by using "stolen" creative work, as Sanders puts it), the proper solution is not confiscation by the government, but lawsuits seeking damages. There are, in fact, a number of such cases currently ongoing. Expropriation of AI firms by the federal government would do nothing to compensate people whose intellectual property may have been used without proper authorization. It would just transfer the illegal profit from AI firms to the feds.
Sanders also argues that AI should be under the control of the government because it's an important technology that should not be left to the control of a few billionaires. But a century of experience with socialism shows that government control of major industries leads to horrific results: poverty, oppression, and even mass murder. And for reasons I outlined in detail in this piece, Sanders' brand of "democratic socialism" is unlikely to be much better than the authoritarian kind - nor is it likely to remain democratic for long.
Similar problems arise when right-wing nationalists like Trump seek to impose government control over major industries. On that point, see my 2024 article "The Case Against Nationalism," coauthored with my Cato Institute colleague Alex Nowrasteh. Indeed, the similarity between Trump's policies and Sanders' ideas is an example of how socialists and nationalists advocate similarly awful ideas. It's "Horseshoe theory" at work!
Sanders' progressive supporters would do well to consider whether they want the AI industry - or any major industry - to be controlled by the likes of Trump. Trump isn't the first right-wing demagogue to win an election, and he's unlikely to be the last. Don't give government powers that you are unwilling to have wielded by your political opponents.
It is not true that the only alternative is a few billionaires dominating everything. The AI market is in fact very competitive. Claude, ChatGPT, Grok, Perplexity, and others are rival products competing in this space, produced by different firms. New firms enter the market on a regular basis. And the firms' owners - including billionaires - know they can only make money by meeting consumer demand better than their rivals or at lower cost. That is, so long as they cannot instead rely on government handouts and cronyism of the kind likely to proliferate with greater state control.
AI does pose some risks, and there are legitimate arguments for constraining some types of uses, particularly when it comes to warfare and government surveillance. But the right approach there is restricting dangerous uses, not wholesale expropriation by the government. To the extent that AI is potentially dangerous, government monopoly control over that industry actually exacerbates that danger, by concentrating power in the hands of politicians and their cronies and henchmen.
In sum, Sanders' plan to expropriate a large part of the AI industry is unconstitutional. And it's terrible policy, to boot. On that score, it has much in common with Trump's economic policy agenda.
Court Dismisses Fraud Claim Against N.Y. Times Over "Young, Old, and Sick Starve to Death in Gaza" Photo
Among other things, plaintiff failed to allege "that the alleged fraudulent conduct induced ... the plaintiff into purchasing merchandise."
An excerpt from the long (and, I think, basically correct) opinion in Hoffman v. N.Y. Times Co., decided yesterday by Judge Evelyn Padin (D.N.J.):
Pro se Plaintiff Harold Hoffman brings this action against Defendant the New York Times Company …. Plaintiff's suit stems from an article published by the New York Times on July 25, 2025, titled "Young, Old, and Sick Starve to Death in Gaza: 'There Is Nothing'" along with the article's accompanying photo:
According to Plaintiff, the New York Times deliberately and misleadingly omitted the fact that the infant in the photo—an 18-month-old baby named Mohammed Zakaria al-Mutawaq (pictured with his mother, Hedaya al-Mutawaq)—was born with cerebral palsy, hypoxemia, and serious genetic disorders in order to advance an untrue narrative about the impact of the war between Hamas and Israel on those living in Gaza. Plaintiff also claims that the New York Times's publication of the Article runs in contravention of its motto "All the News That's Fit to Print." …
Plaintiff brings five claims under the NJCFA [N.J. Consumer Fraud Act] as well as one claim for common law fraud. The NJCFA prohibits:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice….
Here, Plaintiff appears to bring claims based on two affirmative misrepresentations—(1) publishing the Article and Photo knowing they were false/misleading and (2) the New York Times's Motto—as well as two knowing omissions related to the Article—(1) failing to include Mohammad's full health history in the Article and (2) removing his allegedly healthier older brother from the Photo….
Plaintiff Too Small to Challenge President Trump's Practice of Targeting Law Firms He Dislikes
From Judge Nathaniel Gorton (D. Mass.) today in Larrabee v. Trump:
J. Whitfield Larrabee …. alleges that since taking office, President Donald J. Trump … has engaged in a course of unconstitutional conduct (collectively, "the Policy") by issuing executive orders that punish and threaten to punish lawyers and law firms that he dislikes. Larrabee asks the Court to declare the Policy unconstitutional and to enjoin President Trump and other named defendants … from taking any such action against him….
In March, 2025, President Trump issued a memorandum to the Attorney General and the Secretary of Homeland Security titled "Preventing Abuses of the Legal System and Federal Court." That Memo directed the Attorney General to seek sanctions against attorneys and law firms who engage in "frivolous, unreasonable, and vexatious litigation against the United States." It also directed the Attorney General to review conduct of attorneys and their law firms in litigation against the Federal Government over the past eight years and, if any misconduct were to be identified, to recommend additional steps to be taken, including reassessment of security clearances and federal contracts.
Contemporaneously, President Trump began to issue Executive Orders ("EOs") that purported to address the conduct of and risks posed by specific law firms. Plaintiff alleges that such EOs targeted law firms based on their past representation of clients and causes disfavored by President Trump. The EOs restricted the access of those law firms to federal buildings and limited official interactions between federal government personnel and their attorneys. Several law firms agreed to provide substantial pro bono work favored by President Trump in order to avoid being subject to similar EOs….
Plaintiff, an attorney and self-described adversary of President Trump, alleges that he has a history of engaging in litigation against President Trump and has represented causes disfavored by him. He says:
[s]o long as Trump is President, [he] intend[s] to make additional legal complaints against Trump's businesses, family members and associates where there are good grounds to do so.
He contends that he faces "a credible threat that the policy will be enforced against [him]" if he follows his intended course of conduct. He further claims that he has been deterred from representing particular clients and has been "engaged in self-censorship" out of fear of such enforcement….
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Bleak House, wellness checks, and forfeiture interrogatories.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Our old friend Brian Morris rejoins the show for exoneration litigation. And Belmont picks.
- Shortly after beginning his second term, President Trump, and later Secretary of Defense Pete Hegseth, announce policy changes barring persons currently or previously afflicted with gender dysphoria from military service. Current and prospective servicemembers challenge the policy change, and the district court issues a preliminary injunction. D.C. Circuit: The injunction is proper for current service members, but improper for prospective applicants. Concurrence: The injunction is proper for both. Dissent: The injunction is proper for neither.
- In 2022, the feds seized the superyacht Amadea in Fiji as part of Task Force KleptoCapture, targeting Russian oligarchs. Second Circuit: Cool.
- Man dies after jumping from a highway overpass. Philadelphia police officer, in violation of department policy, uses his personal cell phone to photograph the dead man lying on the road. Then, in "a poor attempt at 'humor,'" he sends it to several colleagues, one of whom posts it to social media. It is forwarded to the bereaved mother, who sues the officer. Third Circuit (unpublished): Qualified immunity. There is no clearly established right to control dissemination and exploitation of one's close relatives' death scene images. Dissent: Our history and traditions establish that it was so obviously wrong that he was on notice. Read More
Texas Age Verification / Parental Consent Requirements for App Stores Likely Constitutional, Fifth Circuit Holds
From Students Engaged in Advancing Texas v. Paxton, decided yesterday by the Fifth Circuit (Judges Jerry Smith and Andrew Oldham):
The Texas Legislature enacted Senate Bill 2420 …, the App Store Accountability Act, with bipartisan support to help parents direct and supervise children's downloads of apps and in-app purchases. The Act accomplishes those goals by requiring age verification; parental consent; and age rating and content display. {[The law] requires app stores to provide certain information in obtaining parental consent, referring to ratings and content … that are determined by the developer.}
The district court issued universal preliminary injunctions against SB2420 after applying strict scrutiny. The State of Texas seeks a stay pending appeal…. Texas has made a strong showing that it is likely to succeed on the merits of its claim that the district court committed several reversible errors.
First, the district court likely erred in applying strict scrutiny to significant parts, if not all, of the Act. At most, SB2420 regulates speech that "proposes a commercial transaction," which is subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). {SB2420 may not regulate speech at all, given that it does not target any substantive content but instead regulates commercial conduct with an incidental relationship to speech.}
App store transactions are commercial in nature. After all, users browsing an app store can see a catalog of applications, obtain additional information, and download or purchase an application.
App listings propose commercial transactions, regardless of whether any monetary payment is made. In fact, the "payment" for apps that are purportedly "free" is access to user data and private information. Any minor who downloads an app must accept its terms of service, including agreements about how the minor's data is used. Some terms require minors to waive the right to sue by agreeing to "arbitration pr[o]visions that no child can understand." Detailed user data, including that of minors, is the life-blood of the app store monetization ecosystem….
"The TQ+ Threat To LGB Rights"
From Andrew Sullivan (The Weekly Dish):
Governor Kathy Hochul has a decision to make by June 12.
The New York State legislature recently tackled the vital, pressing issue of whether the terms "mother" and "father" are cruel and oppressive. They concluded that these terms are indeed transphobic and need to be replaced in law by "gestating parent" and "non-gestating parent." "Paternity" is also bigoted and axed. Among the Democrats, the vote was, natch, a few shy of unanimous. And let's not kid ourselves: Hochul's signature is inevitable. On all questions gay and trans, the Dems are now entirely controlled by trans and "queer" extremists.
Now take a look at this week's Senate hearings on sex changes for children. Again, the Dems were unanimous, and their position utterly unchanged: the "safety" and "effectiveness" of transing children is beyond any dispute; no one but Republican bigots oppose it; and any problems can be dealt with retroactively by malpractice suits. (The only slight concession to reality was an end to the lie that transing children was the only way to stop them killing themselves. But no apology for the lie, of course. Or for the human wreckage the lie caused.) The Cass Review never happened. Affirmation-only guidelines never existed.
Gays and lesbians and feminists and liberals who oppose transing children and defend the fact of the sex binary? Senators Sanders, Markey, and Baldwin don't seem to know we even exist. Unsurprising. MS NOW, to take one example, has never had a single guest who's been critical of child sex changes. The Cass Review, when it has even been mentioned, has been instantly dismissed. The gay and lesbian press, such as it is, reports on all this as a trans genocide in full swing….
You can read the whole thing here. I haven't followed all these issues closely, especially as to their political effects; but Sullivan certainly has. If readers can recommend sensible contrary views, I'd be glad to add links to them as well.
Congress Needs To Investigate Judge Who Lied About Having Sex With Police Officer
[This essay is co-authored with Professor Arthur Hellman and Gabe Roth, Executive Director of Fix the Court. Their biographies are below.]
The Constitution provides only one method to punish federal judges who misbehave: impeachment, which can lead to removal from office. But there is broad consensus that judicial impeachment should be reserved for only the most egregious cases. Instead, Congress crafted a middle ground. A judicial council within the regional circuit can review allegations of misconduct, impose reprimands, and where appropriate, make an impeachment referral to the House of Representatives. Of course, the House retains the power to impeach a judge regardless of what the judicial misconduct process determines.
For the most part, this arrangement works well. But a recent case from the Judicial Council of the Eleventh Circuit, based in Atlanta, represents a complete breakdown of the process. A married judge repeatedly had sex in her chambers with a police officer who worked in her district and then lied in an attempt to cover up her compromising acts. Despite this brazen dishonesty, the judicial council slapped her on the wrist and refused to even publicly name her. Since the judiciary failed to live up to its end of the bargain, Congress needs to open an impeachment inquiry.
Judge Eleanor Ross has served on the federal bench in Atlanta since 2014. As early as 2022, she began an affair with an Atlanta police department officer. Over the course of two years, Judge Ross had sex with the officer at least five times in her judicial chambers. In the abstract, no canon of judicial ethics prohibits adultery. Moreover, a judge could have a relationship with a police officer, so long as she recused from any cases that could create a conflict of interest. But life-tenured judges should avoid any compromising actions that could bring disrepute to the court or place them at risk for blackmail. Yet Judge Ross kept her trysts a secret. The district chief judge learned of her sexual activity only after Judge Ross's law clerk heard "kissing" and "moaning" sounds from chambers and blew the whistle.
The in-chambers sexual conduct, by itself, may perhaps have been enough to warrant impeachment, but what happened next clearly crossed the line. The chief circuit judge, who by law is responsible for investigating allegations of judicial misconduct, asked Judge Ross about the allegations. Judge Ross lied. She insisted that "I have never engaged in sexual intercourse in my office." She denied knowing which police officer visited her chambers, even though he signed his name to enter. She charged that her law clerk was trying to retaliate against her. The judge may have even tried to clean a couch cushion that appeared to have been stained with bodily fluids. In sum, the judge repeatedly made false statements to her colleagues and attempted to obstruct the investigation.
The judicial council that investigated this matter laid out the sordid details and concluded that Judge Ross lacked candor. But in the end, Judge Ross's colleagues gave her only the slightest reprimand. Judge Ross agreed to write vaguely-worded letters of apology to her law clerks. And the judge agreed to skip her turn as chief judge and not to serve on any judiciary-wide committee. Worst of all, the judicial council chose to make her reprimand private, finding that she was extremely apologetic and was unlikely to commit similar conduct in the future. The council report did not even name Judge Ross, although it included so many specific facts that it wasn't hard to figure out who she was.
The council failed in its duty to police judicial misconduct. So did the national appellate committee that reviewed the council's decision. Both bodies did not even acknowledge precedent from a similar case. In 2007, Judge Samuel Kent of the Southern District of Texas sexually assaulted court employees, and lied to obstruct the investigation. The judicial council and the Judicial Conference of the United States, whose presiding officer is the Chief Justice of the United States, recommended that Kent should be impeached. The House agreed and unanimously impeached Kent. Kent resigned his judgeship to avoid a certain conviction in the Senate.
To be sure, Judge Kent's sexual assaults were criminal, while Judge Ross's adultery was lawful. But several members of the House Judiciary Committee stated that lying to the judicial body investigating the misconduct is by itself an impeachable offense. On these grounds, there is strong reason to conclude that Judge Ross has also committed an impeachable offense.
The House of Representatives should pick up the investigation of Judge Ross where the judicial council stopped. And this matter should not be a partisan affair. Much like with the Kent proceedings, members on both sides of the aisle should recognize that a judge who lies about having sex with a police officer within her district, and then attempts to obstruct the investigation, has disqualified herself from judicial service.
This process also should not be rushed. One deliberative approach can be found in the impeachment inquiry of Judge Thomas Porteous in 2008. The House established a twelve-member task force with six Republicans and six Democrats to investigate the matter. This collaboration would allow the process continues regardless of who holds the gavel following the midterm elections.
We continue to believe that judges should be the first line to investigate judicial misconduct. But if judges are unable to fairly sit in judgment of their peers, or worse, are seen as covering up misdeeds, Congress must exercise its constitutional prerogative. Serving as a life-tenured judge is a privilege and not a right. Judges who abuse that privilege must be willing to face public scrutiny, especially where they create conflicts of interest that could require recusals. Judge Ross should resign, but if she fails to, the impeachment process may help her see the light.
--
Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston and is an adjunct fellow at the Manhattan Institute. Arthur Hellman is an emeritus professor at the University of Pittsburgh School of Law; he helped to draft the current version of the judicial misconduct statute and testified as an expert witness at the impeachment hearing on Judge Kent. Gabe Roth is executive director of Fix the Court, which advocates for greater openness and accountability in the federal judiciary.
Youth Climate Plaintiffs Challenge Endangerment Repeal on Religious Liberty Grounds
Constitutional climate litigation seems to know no bounds.
I am quite skeptical of the lawfulness of the Environmental Protection Agency's rescission of the endangerment finding upon which EPA regulation of greenhouse gases under the Clean Air Act is based. It is an aggressive move that stretches administrative law norms and challenges Supreme Court precedent.
While I am not convinced the endangerment rescission is lawful, I would hardly argue it is unconstitutional or impinges upon religious liberty. The folks at Our Children's Trust--the group behind the various kids climate suits--feels otherwise. They (along with Public Justice) have filed a challenge to the endangerment finding repeal making such claims.
Last month, in Venner v. EPA, OCT and Public Justice filed a motion to stay the repeal of the endangerment finding alleging the EPA's action violates the youth plaintiffs' "fundamental free exercise rights under the Religious Freedom Restoration Act" and their "rights to life and liberties under the Fifth Amendment."
Longtime readers know that I do not think much of the federal constitutional arguments advanced in the various kids climate cases. Even without recent decisions such as Dobbs I find the claims that the federal government's failure to control greenhouse gases is a constitutional violation to be outlandish. The idea that federal courts should superintend federal energy policy is hard to fathom--and would be quite hard to contain. Thus it should be no surprise that federal courts (with one exception) have consistently concluded that they lack jurisdiction over these efforts to constitutionalize climate policy--most recently on Wednesday in Lighthiser v. Trump.
The latest filing adds a new wrinkle in that it seeks to add religious liberty claims into the mix. Specifically, the claim is that a failure to mitigate climate change will burden the exercise of the plaintiffs' religious faith because rising temperatures will make it more difficult to practice their faiths. [I have posted excerpts from the brief below the jump.]
I find this argument to be quite creative, but I am also quite confident that it will go nowhere. (The petition's claim that the EPA completely failed to respond to comments raising these concerns, on the other hand, does raise a serious administrative law issue, but I have not looked to see if the claim is correct.])
As for the endangerment finding itself, I will have a brief essay in the summer issue of Regulation expanding on some of my concerns about the lawfulness of the EPA's move. Rest assured, neither the Fifth Amendment nor RFRA is not among them.
A Rare Summary Judgment in Favor of Plaintiff in Libel Case
From Judge David Leibowitz (S.D. Fla.) in Mosler v. Wagner; plaintiff Warren Mosler is a hedge fund executive, author on economics, luxury sports car developer, and former unsuccessful political candidate; defendant James Todd Wagner was a former Director of Engineering at Mosler's car company, and had tried to buy the company:
Mosler brings this action against Wagner for defamation per se and unauthorized publication of name or likeness. The facts at summary judgment are as follows:
Prior to the instant case, Wagner filed a twenty-count complaint against Mosler in the Circuit Court for the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida (the "State Court Proceeding"). After the jury returned a verdict for Wagner, the Honorable Luis Delgado set aside the jury's verdict and entered final judgment in Mosler's favor.
During that time, around September 2024, Wagner registered the website domains, titled "JudgeX.org," "warrenmosler.co.," and "ModernMonetaryTheory-Scam.org," all of which form the basis of the current action. Through these publicly available websites, Wagner published various statements claiming that Mosler bribed Judge Delgado when he overturned the jury's verdict. The websites also represent Mosler's name and likeness without Mosler's consent. In addition to the websites, Wagner continued to disparage Mosler through a YouTube channel he created, called "JudgeXO," once again accusing Mosler of bribing Judge Delgado in the State Court Proceeding.
Wagner's basis for this allegation? A statistical analysis (the "Statistical Analysis") based on mathematical probabilities. This analysis concluded that it was 99.999999999% probable that Judge Delgado accepted a bribe from Mosler. It further informed that it would have taken "an honest judge" nearly thirty-seven billion years to make such a remarkable ruling overturning the jury's verdict in the State Court Proceeding.
The Statistical Analysis, however, admits of the possibility that Judge Delgado was not bribed. Wagner, too, admits that possibility. Wagner does not know what Judge Delgado received as part of this alleged bribe nor who made this bribe. In fact, Wagner nor his counsel in the State Court Proceeding ever argue that bribery was the cause of Judge Delgado setting aside the jury verdict. At Wagner's counsel's deposition, counsel admitted that there was no evidence to support that Judge Delgado was bribed.
The court granted plaintiff summary judgment as to defamation:
Plaintiffs Lack Standing to Sue over Notre Dame Law Clinic's Filing Amicus Brief Condemning China's Actions Towards Uyghurs
The plaintiffs had asked for (among other things) "$1.00 as an apology to every Chinese people live in mainland China, total $1.41 billion."
From Judge Gretchen Lund (N.D. Ind.) Monday in Chen v. Univ. of Notre Dame; the plaintiffs' Complaint focuses on a Notre Dame Law School Religious Liberty Clinic amicus brief in an Argentina court that included allegedly false "website content and related activities accusing China of genocide and crimes against the human rights of Uyghurs in Xinjiang."
Plaintiffs' Complaint contains very few allegations involving Plaintiffs themselves; largely, the Complaint references alleged harms to "mainland China" and Chinese people generally. There are only six paragraphs in which Plaintiffs identify harm they have suffered. Each are discussed below.
Paragraph 71 alleges that "defendants deliberately fabricated or spread false information and spread lies that slander and demonise China and the Chinese people, The plaintiff is also deeply harmed by this." This appears to be more of a "wrong suffered by the public at large," rather than an actual harm to Plaintiff. This is especially true where Plaintiffs have not identified how they have been demonized, or how the slander has personally caused harm to them. This is not an injury sufficient to satisfy the requirements of standing under Article III.
Paragraph 92 alleges that the defendant "made false statements that were believed by some Chinese children in the USA, causing them serious emotional distress and undermining their connection to their Chinese heritage. The plaintiffs encountered this problem."
Today in Supreme Court History: June 5, 1916
6/5/1916: Justice Louis Brandeis takes the oath.
Open Thread
What’s on your mind?
Sam Bray's VC Post Cited by Justice Thomas's Opinion Today in Sripetch v. SEC
Congratulations to Sam, for having a total of six of his works cited in the same opinion.
Counting all American courts, posts on the blog have been cited by over 80 court opinions, including once before by Justice Thomas.
Second Annual Aspiring Free Speech Scholars Workshop
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.
We have funds to pay for transportation and lodging for the selected authors' trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.
CJ Roberts Agrees with AT&T and Verizon, But Rules For FCC
The SG flipped positions on appeal, and the Chief Justice whips up a blue plate special to deny the carriers a refund.
I often describe Chief Justice Roberts's decisions as "blue plate specials." If you read the bottom line, it seems like the liberal side win, but the mechanics of the decision helps the conservatives in the long run. In other words, the right might lose the battle, but they win the war. After more than two decades, the Chief Justice has made this balanced approach to jurisprudence into an art form.
Today's decision in FCC v. AT&T is the latest example.
The FCC alleged that AT&T and Verizon violated federal law, and assessed a forfeiture order of $57 million and $47 million, respectively. The order stated in capitalized bold letters the forfeiture was mandatory:
"IT IS ORDERED that, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 of the Commission's rules, 47 CFR §1.80, AT&T, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of [$57,265,625] for willfully and repeatedly violating section 222 of the Act and section 64.2010 of the Commission's rules." App. to Pet. for Cert. in No. 25–406, at 131a.
The carriers argued that the government could not impose that fine without first providing a de novo trial in an Article III court under Jarkesy. But, following longstanding precedent, the carriers paid under protest, and brought suit to get their money back. The Fifth Circuit held that this regime, which required the mandatory payment of a fine before an Article III proceeding, violated the Seventh Amendment and Jarkesy.
As the case was litigated below, the question presented was whether the requirement to pay the fine before the proceedings is an Article III problem. But then the government, as it often does, changed the case on appeal. It turns out all along that the forfeiture was voluntary. These sophisticated firms were just too stupid to read a statute, and they mistakenly paid $100 million under protest.
On appeal, the Chief Justice whipped together a blue plate special. He agreed with AT&T and Verizon on the law, but ruled for the FCC. The Court stated, "The orders at issue . . . did not create an obligation to pay." Who knew? If only all lawyers were as smart as John Roberts.
This case split 8-1. Only Justice Thomas in dissent was willing to say the quiet part out loud:
The Court agrees with AT&T and Verizon that they were entitled to a jury trial de novo before an Article III court before they could be forced to pay. It agrees that they did not in fact receive such a jury trial de novo. But, it rules in favor of the Commission. The Court does so because the Commission, after AT&T and Verizon paid it over $100 million, took the position that its orders were not really binding after all. The Commission now agrees that AT&T and Verizon would have been entitled to a jury trial de novo in an Article III court had they declined to pay. Because its orders were not binding until after that jury trial, the Commission says, AT&T and Verizon in reality paid the Commission voluntarily. The Court accepts that account and does not grant the carriers any relief. Because I would give the parties an opportunity to proceed under a correct understanding of the law, I respectfully dissent.
Justice Thomas would have decided the case that was actually presented to the Court.
But as a court, we must resolve the cases before us. Regardless of what the Commission will do in the future, or what the Court believes it should have done all along, we granted certiorari in cases arising from two orders that theCommission addressed to AT&T and Verizon in 2024. At that time, neither the Commission nor the courts complied with the limits that the Court describes today.
Whenever you see statistics about how often the Fifth Circuit is reversed, ignore those statistics. It happens all the time that the government switches position on appeals from the Fifth Circuit. You cannot fault lower court judges who decide a case on one grounds, and the Supreme Court reverses on entirely new arguments. I made this same point in 2024 about the mifepristone case, which was radically altered on appeal.
The worst part of the majority opinion is Footnote 5. What happens to the $100 million that the carriers already paid. Do they get a refund? The Chief Justice refuses to answer the most obvious question that was necessitated by this "newfound account."
The carriers also argue that the specific forfeiture orders in this case misled them into paying, and that a refund is therefore appropriate. See Reply Brief 17–19; Tr. of Oral Arg. 75 (Government acknowledging thatit "cannot mislead someone into waiving his jury trial rights"); see also post, at 3, 6–7 (opinion of THOMAS, J.). We express no view on the merits of this argument, what relief may be available to the carriers, or in what proceeding.
The emperor has no clothes.
Now the case goes back to the lower court to determine if a refund is appropriate.
Still, I don't think Verizon and AT&T will be too upset. The Supreme Court agreed with the SG, and effectively neutered this statutory scheme:
And as explained above, the Commission is powerless to visit any adverse consequences on a regulated party who receives a forfeiture order.
If the FCC issues a forfeiture order, carriers will simply decline to pay and wait to be sued. The FCC does not have the resources to bring all of these cases in federal court. The government may have won the battle but lost this war. I'm sure the career people at the FCC were infuriated by SG's position, but here we are.
Will the Supreme Court Review Judge Newman's Stealth Impeachment?
The Court should grant cert on the important separation of powers issue raised by her long-running, allegedly "temporary suspension" from case assignments.
Judge Newman has been "temporarily" suspended from case assignments in the Federal Circuit by her fellow judges. She has filed a cert petition with the Supreme Court. Her "stealth impeachment" raises significant issues worthy of Supreme Court review. Since all the briefing on her cert petition is now completed -- and a decision on the petition is imminent -- this post will briefly recap the issues, with the most important briefs linked.
As I've blogged about previously, recall that Judge Newman has challenged her suspension from new case assignments. (Fellow bloggers Josh Blackman and Jonathan Adler have also followed the case closely.) But in the latest ruling, the D.C. Circuit held that the Judicial Council's Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this suspension.
In March, Judge Newman filed a cert petition presenting the important constitutional question of whether she is entitled to her day in court to challenge the lengthy suspension, which has no end in sight. Her petition begins with this powerful introduction:
This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its "Great Dissenter") from the bench.
The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("the Disability Act") bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.
Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.
Since then, significant amicus briefs have been filed supporting Judge Newman. Last month, I filed one such supporting amicus brief, joined by former federal judges Janice Roger Brown, Paul R. Michel, Kent A. Jordan, Randall R. Rader, Thomas I. Vanaski, and Susan G Braden. Our brief argues that federal courts must be able to review constitutional claims of the type presented by Judge Newman:
In its decision below, the D.C. Circuit reaffirmed a 25-year-old precedent that prevents federal judges from seeking federal-court redress from Judicial Council actions that de facto remove them from the federal bench. That bar applies without regard to whether—as alleged here—the Judicial Council has acted in violation of the judge's rights under the U.S. Constitution. Particularly in light of the threat to judicial independence posed by the many recent attacks on the authority of federal judges, the Court should grant review to reaffirm the authority of federal courts to intervene to hear claims raising constitutional claims of the sort at issue here.
If Judge Ross's "Improper Sexual Activity" "Greatly Damage[s] [Her] Credibility as a Judge," Does That Satisfy the Standard for Impeachment?
Another guest post from Professor Arthur Hellman.
The Eleventh Circuit Judicial Council may have thought Judge Eleanor Ross's apology was sufficient to keep the reprimand private, but those not wearing a robe continue to see a problem. Representative Jordan of the House Judiciary Committee is starting to discuss an investigation.
The House Judiciary Committee's top Republican said his staff is looking at possible congressional action after a Georgia federal judge had an affair in her chambers, in earshot of clerks, and lied to judiciary officials about it.
Judiciary Chairman Jim Jordan (R-Ohio) said Wednesday that his staff has "already put together a memo" on the facts involved in the misconduct findings against Judge Eleanor Ross of the Atlanta-based US District Court for the Northern District of Georgia.
The "key fact," he said in a brief interview, was that Ross lied to the judges investigating her misconduct. A judicial special committee report, released publicly in May, found the judge made "false statements" to the chief judges of her district and of the US Court of Appeals for the Eleventh Circuit, which oversees federal courts in Georgia, Florida, and Alabama.
"We're looking at it. We're going to run it by our members and see," Jordan said.
Jordan also wouldn't rule out impeachment as a possible response, a rare process for judges historically.
"Everything's on the table," Jordan said. "We don't take anything off the table."
To keep this discourse going, I am happy to pass along another guest post from Professor Arthur Hellman about Judge Eleanor Ross's situation.
If Judge Ross's "Improper Sexual Activity" "Greatly Damage[s] [Her] Credibility as a Judge," Does That Satisfy the Standard for Impeachment?
In a recent guest post, I explained why one of the findings of judicial misconduct by Atlanta Federal District Judge Eleanor Ross – making false statements to investigating judges – corresponds closely to conduct that was one basis for impeaching Federal District Judge Samuel B. Kent in 2009. A second finding of misconduct by Judge Ross – labelled "Improper Sexual Activity in Chambers with a Law Enforcement Officer" in the Special Committee report – has no counterpart in any judicial impeachment proceeding that I'm aware of. But that does not mean that it could not be a possible basis for impeachment.
My purpose here is not to develop the point in detail, but rather to call attention to a statement in the Special Committee report that bears on the question. The Eleventh Circuit Judicial Council unanimously adopted the "findings and recommendations" of that report. To provide complete context, I will copy a little more of the paragraph than is probably necessary. Here is what the Special Committee wrote (pp. 15-16):
"For two years, the Subject Judge was a federal district judge who routinely heard criminal cases [and who] engaged in a secret extramarital relationship with a prominent officer of a large law enforcement agency in the judge's district—with the affair consisting of sexual intercourse in the Subject Judge's chambers during working hours. Moreover, during this period, the Subject Judge's spouse was not aware of the affair. Undoubtedly, a bad actor could have used these facts to try to blackmail the Subject Judge. Even absent a blackmail attempt, the publication of these facts would have greatly damaged the Subject Judge's credibility as a judge and brought disrepute to the federal judiciary."
The first quoted sentence summarizes the judge's conduct. The last sentence states that "the publication of these facts" – i.e., the facts stated in the first quoted sentence – "would have greatly damaged the Subject Judge's credibility as a judge and brought disrepute to the federal judiciary."
Preliminarily, it seems odd to state that "publication of [the] facts" would "greatly damage[] [Judge Ross's] credibility as a judge," etc. If that is so, it must be because public knowledge of the underlying conduct would have that result. In any event, the facts have now been published, and (notwithstanding the Judicial Council's efforts), the identity of the judge is also public knowledge. (The Council apparently acted as it did because it believed, as stated on the last page of the Special Committee report, that Judge Ross had provided "otherwise exemplary service to the court" and that she should be allowed to continue that service.)
Now let us consider the standard for judicial impeachment. Under the Constitution, an Article III judge like Judge Ross can be impeached and removed from office for "high crimes and misdemeanors." In my testimony at the House Judiciary Committee Task Force hearing on the proposed impeachment of Judge Kent, I sought to ascertain the meaning of that term as applied to judges. There were (and are) no judicial decisions to consult, because impeachment is not subject to judicial review. Instead, I looked to Founding Generation sources and to early commentators whose writings have been relied on by the Supreme Court to determine the meaning of other constitutional provisions.
Two of the commentaries are particularly relevant here. (For background and citations, see the hearing statement linked above.) William Rawle, writing about the "system" of impeachment, stated: "We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it." (Emphasis added.) The House Judiciary Committee, in its report recommending impeachment of Judge Kent, quoted this language from Rawle's treatise (p. 18).
Justice Joseph Story, in his widely cited treatise on the Constitution, discussed the question whether impeachment is limited to "official acts." Story asked: "Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe?" (Emphasis added.) I cited this statement in response to a question from then-Rep. Adam Schiff, the chairman of the Task Force, at the Kent hearing. See pp. 215-16 of the hearing record.
Judge Story's premise seems to be that a judge or other officer warrants impeachment and removal if she has engaged in behavior that results in a loss of "public confidence" in her ability to perform the functions of her office. (And that behavior is not limited to "official acts.") This is not quite the same thing as saying that the officer is not worthy to fill the office, but there is substantial overlap, and both formulations suggest a similar forward-looking perspective.
It seems to me that the Special Committee's statement about Judge Ross's "improper sexual activity" corresponds closely to both delineations of the impeachment standard. The Committee said that public knowledge of Judge Ross's conduct would "greatly damage[] [her] credibility as a judge." If her credibility is greatly damaged, isn't that strong evidence that she is "unworthy to fill' the judicial position that she holds? And would she still be entitled to "any public confidence?"
None of this is definitive; each case is different. But these views of the impeachment standard – one of which was explicitly endorsed in the House Judiciary Committee report recommending the impeachment of Judge Kent – are sufficient to warrant the House in opening an inquiry into the possible impeachment of Judge Ross, independent of her false statements to investigating judges.
There is one aspect of the Eleventh Circuit's memorandum that I can't quite pin down. I agree that Judge Ross's sexual misconduct "damaged the Subject Judge's credibility." That is almost always true--a judge that engages in misconduct has diminished credibility. But did the Council seek to avoid further diminishing the judge's credibility by making the reprimand private? In other words, was the private reprimand an effort to ensure that Judge Ross could continue doing her job. She is already facing at least one recusal motion, and more will follow. Stated differently, once the Council determined that no meaningful punishment would be given, and that even the apology letters could be vague, the judges determined that the best path forward for Judge Ross's continued judicial service was to make the reprimand private. There is definitely some sort of coupling between the "diminished credibility" risk and the private reprimand, but I can't quite tease it out.
