The Volokh Conspiracy

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Free Speech

"New York Recognizes No Tort of 'Misgendering'"

The losing party on this had argued, "[The other party's lawyer] gives up the ghost as a transphobe twisting the First Amendment to mean, in effect, 'Intentionally misgendering you is free, not hate, speech,' a hollow, disingenuous notion echoing willfully ignorant, intellectually dishonest predators who weaponize incompetence as our social fabric tears at the seams in this 'Age of Information.'"

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From Justice Gerald Lebovits (Manhattan trial court) in Tuesday's Garlington v. Austin; defendant Burstiner goes by "they/them," but plaintiff had apparently referred to Burstiner as "him":

The branch of defendants' motion to … requir[e] plaintiff to use correct names and pronouns … is denied…. There is … no showing of any actual "misgendering" or any legally cognizable injury arising from it. New York recognizes no tort of "misgendering." …

Burstiner had sought an order "requiring Plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering that has occurred and continues to occur," and argued,

New York Penal Law §240.31 criminalizes aggravated harassment in the first degree when conduct is motivated by bias regarding "gender, gender identity or expression" or other protected characteristics. Each instance of deliberate misgendering constitutes a separate violation under this Class E felony provision.

New York Civil Rights Law §79-n provides civil remedies for "bias-related violence or intimidation" based on gender identity. The statute covers "intimidation" as well as violence, and New York courts have recognized that persistent misgendering can constitute bias-related harassment under this provision.

Garlington's lawyer had responded,

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Politics

Israel's Conduct in Gaza Does Not Resemble Genocide

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Frankly, I find the charge of genocide against Israel to be obviously absurd, one of those claims that true believers insist upon precisely because the claim is so implausible that promoting it is valuable to show you are a true believer. Hence the pressure by anti-Israel activists for everyone who purports to be "pro-Palestinian" to accept the genocide claim, or be excluded from the club.

Nevertheless, because the genocide lie is so common in public discourse over Gaza, I thought it would be useful to write a piece debunking the claim, though I wasn't sure where I would place it. Serendipitously, Skeptic Magazine solicited an article for me, giving me the opportunity to present my case in about four thousand words, with footnotes.

I also wrote a much shorter version for my Times of Israel blog. And an even shorter synopsis follows below:

The accusation that Israel is committing "genocide" in Gaza has become commonplace in protests, university activism, social media campaigns, and international legal rhetoric. But one striking feature of the debate is how little attention is paid to a basic question: what would genocidal behavior actually look like, and does Israel's conduct resemble it?

The answer is plainly no.

Genocide is not simply a war that causes extensive civilian casualties. It is the deliberate attempt to destroy a people as such. Historically recognized genocides share recognizable characteristics: civilians are targeted precisely because of their identity, and the perpetrators seek maximum civilian death rather than military victory.

Israel's conduct in Gaza looks very different.

To begin with, Israel has repeatedly taken steps that are fundamentally inconsistent with exterminatory intent. Before major operations, the Israeli military has issued evacuation warnings through phone calls, text messages, leaflets, and media announcements. It has established humanitarian corridors and periodically paused military activity to facilitate civilian movement and aid delivery. It has employed "roof-knocking" procedures designed to warn civilians before airstrikes. Armies attempting genocide do not warn civilian populations to leave targeted areas in advance.

The broader strategic picture points in the same direction. Israel possesses overwhelming military superiority over Hamas. If Israel's objective were truly the destruction of Palestinians as a people, the death toll could have been vastly higher within a very short time. Instead, Israel has fought a grinding urban campaign focused on Hamas infrastructure, tunnel systems, command centers, rocket launch sites, and militant leadership. The fact that civilian casualties have nevertheless been severe reflects the reality of urban warfare against an armed group deeply embedded in civilian areas, not a campaign aimed at exterminating Palestinians as such.

Indeed, Hamas's military strategy depends heavily on operating within densely populated civilian zones. Weapons are stored in residential neighborhoods, fighters operate from civilian buildings, and command infrastructure has been constructed beneath urban areas. None of this relieves Israel of its obligations under international humanitarian law. But it does provide an obvious military explanation for large-scale civilian casualties,

The genocide accusation also struggles to explain conduct that makes little sense if extermination were the goal. Israel has facilitated substantial humanitarian aid into Gaza despite the obvious military disadvantage that aid creates by potentially benefiting Hamas. Israeli officials have repeatedly coordinated aid deliveries, fuel transfers, field hospitals, and medical evacuations under enormous international pressure and domestic controversy. Again, critics may argue these efforts are inadequate. But inadequate humanitarian precautions are not the same thing as an intent to destroy an entire population.

One must also note the political context. Accusations that Israel is genocidal long predate the current war. Versions of the claim were promoted in Soviet anti-Zionist propaganda after the Six-Day War and later reemerged at the 2001 Durban conference, where activists portrayed Zionism itself as inherently racist and genocidal. In many cases, the conclusion preceded the evidence.

The danger of stretching the term genocide beyond recognition is substantial. If every brutal urban war involving high civilian casualties becomes genocide, then the concept loses the distinctive moral and legal meaning that made it powerful in the first place.

Free Speech

N.Y. Court Blocks Rape Accusers from Repeating Their Allegedly False Accusations

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From Judge Gerald Lebovits (Manhattan trial court) in Tuesday's Garlington v. Austin:

In this action, plaintiff, Erik Garlington, brings claims for defamation … against defendants Nicole Austin (his former spouse) and Mark Burstiner. Plaintiff, a musician [see this Rolling Stone story -EV], alleges that defendants made defamatory statements that accuse plaintiff of criminal conduct, including rape, sexual assault, grooming minors, sex trafficking, serial killing, and felonies.

Plaintiff asserts that defendants created a website titled "Known Rapist Erik Garlington" and posted allegedly defamatory statements on social media platforms like YouTube (a six-hour video). Plaintiff further alleges that defendants repeated the statements to colleagues, employers, and the press. { Plaintiff points to a fake website defendants created, defendant's six-hour YouTube video, social-media posts, and direct emails to festival organizers and industry contacts that have caused ongoing reputational and economic harm.} Plaintiff represents that defendants "posted his home address online and left taunting messages promising violence," causing him to fear for his and his partner's safety. Plaintiff asserts that the statements harmed his reputation and his professional activities as a musician….

Speech may be enjoined when it (1) "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks omitted]); (2) is "considered part and parcel of a course of conduct deliberately carried on to further a fraudulent or unlawful purpose"; or (3) risks harm to recognized personal or business reputation or privacy (see Dennis v Napoli(N.Y. App. Div. 2009) [holding that communications that "cause injury to plaintiff's "reputation, jeopardize her employment, and otherwise unnecessarily intrude upon her right to privacy" are not constitutionally protected]; Bingham v Struve (N.Y. App. Div. 1992))….

Plaintiff is a private figure. His public presence is confined to his artistic work as a singer and guitarist. Nothing before the court suggests that he has sought publicity beyond that narrow music-industry sphere. The challenged statements, however, do not concern his music career. Accusations that he is a rapist, a felon, or a serial killer, or that he groomed minors, sexually trafficked his partner, or engaged in other violent or predatory conduct, bear no demonstrated connection to the subject on which he has sought any public attention.

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Parental Rights

Father Free to Send Children to Church Camp During His Parenting Time, Even When Mother Objects to Church's Views on Women

"[A]bsent a clear showing of substantial harm to the child, the noncustodial parent retains his or her fundamental right to direct the child's religious upbringing during his or her parenting time."

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From Friday's decision of the Nebraska Supreme Court in Munsell v. Munsell (opinion by Justice Derek Vaughn):

Jacob and Libby married in 2010 and had two children, one born in 2016 and the second born in 2018. In February 2024, Libby filed a complaint seeking dissolution of the marriage.

The parties stipulated to the division of their property, and they agreed to share joint physical custody of the children under a rotating parenting schedule that gave each parent equal time. Trial was had on the contested issues of legal custody, the children's involvement in the church attended by Jacob (church), and the children's attendance at the church camp during Jacob's parenting time. Jacob appeals the district court's decision on legal custody and church camp attendance.

The trial court concluded that the parents were in sufficient conflict that joint legal custody wasn't feasible, and therefore awarded legal custody to Libby, and the Nebraska Supreme Court upheld this. But the trial court also concluded that Jacob couldn't have the children attend the church camp even during his own parenting time, and on this the state supreme court disagreed:

Jacob and Libby were raised in the same religion as that of the church Jacob currently attends. Jacob testified the church follows the tenet that women should be "subservient" to men and that the church should be led by men. During their marriage, the parties and the children attended the church. However, Libby testified that she "left the church" about 5 months before filing for divorce, no longer agreed with some of the church's teachings, and did not like that there were "no women leaders and wom[e]n were silenced and subjugated." She also testified that she did not like the "culture of fear and shame that the church brings on, fear of hell and fear of punishment." After the parties separated, the children continued to attend the church with Jacob during his parenting time, and Libby initially supported this practice. At trial, however, the parties disagreed on whether the children should continue to attend the church….

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Birthright Citizenship

Upcoming Cato Institute Event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court"

I will participate, along Prof. Paul Finkelman, and Gabriel Chin.

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Milla74/Dreamstime

On May 20, 2-3 PM eastern time, the Cato Institute will host an online event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court." The event is free and open to the public. Registration information available here. The participants will be prominent immigration law scholar Prof. Gabriel Chin (UC Irvine), leading legal historian Paul Finkelman (Univ. of Toledo), and myself. Dan Greenberg of the Cato Institute will moderate.

The Supreme Court held oral argument in the case on April 1, and I put up a post about some of the issues raised here. In a recent article in Lawfare, I explained why all the Trump Administration's rationales for denying birthright citizenship to children of undocumented immigrants would, if applied consistently, also have had the effect of denying it to large numbers of freed slaves and their children, thereby undermining the central objective of the Citizenship Clause of the Fourteenth Amendment. This alone dooms Trump's position under the original meaning of the Clause, even aside from all the other flaws in his arguments.

The Stunning Plan To Reverse The Supreme Court of Virginia: Lower The Retirement Age to 54, "Retire" The Justices In The Majority, Install Cronies To Uphold New Map

This is not constitutional hardball. It is murderball.

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Last week, the Virginia Supreme Court invalidated the new maps by a 4-3 vote. The Virginia Attorney General has signaled he will seek emergency relief with the United States Supreme Court based on the independent legislature theory. I agree with Rick Hasen that this argument will not work under Moore v. Harper. This case did not "arrogate" the power of the legislature. I am not an expert in this area of law, but the majority opinion seems persuasive, and at a minimum seems well within the bounds of a judicial decision.

Are there any other options remaining for Virginia democrats? I thought the answer was no, but apparently there is a theory floating around.

The New York Times describes one last-ditch effort:

One key to the plan would be having Democrats in Richmond lower the mandatory retirement age for state Supreme Court justices, an idea that began circulating among state lawmakers and members of Congress after a column proposing a version of the idea was published on Friday night in The Downballot, a progressive newsletter.

Ms. Spanberger would have to sign off on any legislation that lowered the judicial retirement age. She has not been briefed on the proposal, the people involved in the discussion or briefed on it said. Her spokeswoman, Libby Wiet, declined to comment.

The first step in the process, as discussed on the delegation's call, would be to invoke a January ruling by a circuit court judge in Tazewell County, Va., that said the 2026 constitutional amendment effort to redraw the maps was invalid because county officials did not post notice of it at courthouses and other public locations three months before a general election.

Democrats would aim to use that ruling to seek to invalidate the earlier constitutional amendment that created the state's independent redistricting commission by arguing that courthouses across the state did not post notice of it at the time. That would give the legislature the authority to enact a map of its choosing.

Ensuring the plan proceeds would involve the General Assembly, which is controlled by Democrats, lowering the mandatory retirement age for Virginia's Supreme Court from 75 to 54, the age of the youngest current justice, or less. Virginia judges are appointed by the General Assembly, where Democrats hold majorities in both chambers and could then fill vacancies on the court with sympathetic Democratic lawyers.

In other words, the legislature would "retire" all of the Justices in the majority, install cronies to the court, have the court invalidate the independent legislation commission due to the lack of notice, then enact a new map. And all of this could be done before the August primary. Simple, right?

Thankfully, several Democrats publicly spoke out against this plan. At least one Democrat went on record supporting the plan:

Representative Suhas Subramanyam, a Democrat who represents Loudoun County, Va., said in an interview that he supported doing whatever was necessary to preserve the map voters approved in last month's referendum — including replacing the state's Supreme Court justices.

"Everyone has got to have a strong stomach right now; this is a complete disaster waiting to happen if people are timid," said Mr. Subramanyam, who was on the Saturday call. "We have Republican states ignoring their constitutions and interrupting early voting and ignoring their Supreme Courts all together. We know based on that, Republicans would explore every single option possible to move this forward."

Here is the proposal in detail from The Down Ballot substack.

Article VI, Section 9, of the Virginia Constitution gives the legislature unlimited authority to set the retirement age for judges. It specifies, "The General Assembly may also provide for the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed."

Current law sets the mandatory retirement age at 73: "Any member who attains 73 years of age shall be retired 20 days after the convening of the next regular session of the General Assembly following his seventy-third birthday."

This number is arbitrary. States around the country with similar laws mandate retirement across a wide range of ages. Virginia lawmakers can simply lower theirs. Make it 54 for Supreme Court justices—the age of the youngest justice, Stephen McCullough, who joined the majority opinion—and make it take effect immediately. . . .

Then, after the bill is approved, the entire court would retire. A new court would then be appointed that could re-hear the case and have the opportunity to issue a different ruling.

Democrats might prefer other solutions, but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options—and none with as good a chance of success as this one.

The genius of the plan: when judges rule against your preferred cause, simply replace them. I realize there has been much debate about whether a federal judge can be impeached on the basis of his decision. But here, judges would clearly be removed for their decision by virtue of lowering the retirement age to 54. Just for reference, Justice Ginsburg was appointed to the Supreme Court at the age of 60. Justice Holmes was 61.

We often talk about constitutional hardball. This would be murderball. Especially in light of this pressure, I do have to offer some praise for Justice Arthur Kelsey, who wrote the majority opinion. My friend Rob Luther, a professor at Scalia Law, offered these remarks:

I think Justice Arthur Kelsey of the Supreme Court of Virginia is the clear winner of "Judge of the Week" this week. He wrote the opinion in the Virginia redistricting case despite being up for reappointment by a D-controlled General Assembly in January. He's 64, but mandatory retirement for Virginia judges is 73. Kelsey is known as a conservative but if he'd have voted with the Democrats he probably would have been reappointed. Many squishes would have tried to save themselves. But not Kelsey. Instead, he willingly signed his own judicial death warrant.

People often ask me to show them an example of "judicial courage"— obviously it's harder for Article III judges—but this is as good an example as I could imagine.

Indeed, this is an act of judicial courage. He will likely lose his position, even if the retirement age is not altered.

WaPo: "Neal Katyal's TED talk spins a remarkable tale."

"The implication that McConnell put me up to writing the piece is simply false."

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Neal Katyal at Burning Man. It is unclear if Harvey AI powered the propeller on his hat.

The fallout from Neal Katyal's TED Talk continues. I have received messages from judges, Supreme Court practitioners, members of the Supreme Court press corps, law professors, law students, and more. The universal consensus is that Katyal's performance was a complete and total embarrassment. Usually my takedowns infuriate half the crowd and enrapture the other half. But for Katyal, the verdict is unanimous.

One of the more bizarre aspects of the talk is that Katyal took a shot at Judge Michael McConnell. Katyal also suggested that McConnell lobbied Jason Willick of the Washington Post to write the column urging the former judge to argue the case before the Supreme Court.

Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case. He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I'm going to read this to you word for word: "Strategic mistake." I read it over breakfast. Look, I don't begrudge the guy. I mean, whatever. (Laughter) I had more important things to do because I wasn't replaced.

I responded:

These are some serious allegations. I have known McConnell for a very long time. He is, if anything, overly charitable, and does not play dirty. I would find this sort of behavior to be entirely out of character for McConnell. Indeed, I would find it far more plausible if Neal Katyal had lobbied the client to argue the case over McConnell. After all, it would have made eminent sense for the conservative former judge to argue before the conservative Supreme Court, even if it made sense for Katyal to argue before the liberal Federal Circuit.

Now, Jason Willick of the Washington Post has responded.

Katyal apparently is still bitter about the column, which is his right, but he used the TED talk as a platform to smear McConnell. "Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case," Katyal said. "He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I'm going to read this to you word for word: 'Strategic mistake.'"

The implication that McConnell put me up to writing the piece is simply false. I covered the tariffs case closely as it wound its way through the courts. I heard through the grapevine about the plans for the Supreme Court argument, which weren't a secret in D.C. legal circles. I decided after discussing with colleagues that it was in the public's interest to know about the legal strategy behind such an important case for America's separation of powers.

Burning man, pants on fire?

Willick writes further how Michael McConnell played a pivotal role in the briefing, which Katyal entirely ignored:

Why the Liberty Justice Center — the donor-funded nonprofit that sponsored the tariff litigation — decided to pass over McConnell for Katyal remains a mystery. But after the Supreme Court's decision came down, Sara Albrecht, the group's CEO, emailed to me that my piece had "overlooked the central role Michael [McConnell] played as Counsel of Record directing the brief and shaping the arguments presented to the Court."

McConnell's "central role" is apparently lost on Katyal.

I still think it far more likely that Katyal persuaded LJC to take the argument away from McConnell, without McConnell's knowledge. This sort of thing happens all the time with the Supreme Court bar.

What next? At some point clients could decide that Katyal hurts their case more than he helps.

In any case, Katyal's TED Talk performance highlights the very concerns I raised in the column. The plaintiffs won despite Katyal, not because of him. Supreme Court lawyers aren't a humble bunch, but this level of self-aggrandizement is a bad look. So is publicly disparaging a co-counsel.

The Liberty Justice Center also challenged Trump's second wave of tariffs, and the question could come back before the justices. Supreme Court litigants might need to start considering whether their interests are best served by a runaway ego.

Chief Justice Roberts famously said, "If I'm going to have heart-bypass surgery, I wouldn't go to the surgeon who calls me up." Likewise, sophisticated clients should not pick a Supreme Court advocate based on an AI-enabled TED Talk.

AI in Court

$5K Sanctions for Repeated Mis-Citation in Coomer v. Lindell / My Pillow Election-Related Libel Suit

“Mr. Kachouroff's statements to the Court in this case do not inspire confidence.”

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From Thursday's decision by Judge Nina Wang (D. Colo.) in Coomer v. Lindell:

This is a defamation case brought by Plaintiff Eric Coomer ("Plaintiff" or "Dr. Coomer") over accusations that he used his position at Dominion Voting Systems to interfere with the results of the 2020 presidential election. The case went to trial, and the jury delivered a partial verdict for Plaintiff. The verdict included a punitive damages award against Frankspeech.

[A.] The First Order to Show Cause and Sanctions Order

Before trial, Plaintiff filed a motion in limine. Defendants then filed a response brief that included "nearly thirty defective citations." … After questioning from the Court at the Final Pretrial/Trial Preparation Conference ("Pretrial Conference"), Mr. Kachouroff eventually admitted that he had used artificial intelligence ("AI") in drafting the response brief. He also represented that he had delegated citation checking for the brief to his co-counsel, Jennifer DeMaster ("Ms. DeMaster")…. The Court concluded that a $3,000 sanction on Mr. Kachouroff and his law firm and a $3,000 sanction on Ms. DeMaster was the "least severe sanction adequate to deter and punish defense counsel in this instance." The Court declined to extend the sanction to Defendants themselves.

[B.] The Second Order to Show Cause

After trial, and after the Court's first sanctions order, the Parties submitted their post-trial motions. Plaintiff moved to increase the punitive damages award against Frankspeech, pursuant to Colorado law. In relevant part, Frankspeech's response brief ("Response") argued that such an award would violate the Reexamination Clause of the Seventh Amendment. The brief stated, "The 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury's determination on this issue [i.e., the amount of punitive damages] is entitled to finality."

In its Order on Post-Trial Motions, the Court observed that the Capital Solutions citation is defective for two reasons. First, Capital Solutions is a district court decision, even though Frankspeech erroneously referred to it as a Tenth Circuit case. Second, Capital Solutions does not support the proposition that a jury's determination of the amount of punitive damages is "entitled to finality" under the Reexamination Clause. The Court explained that a reasonable review should have alerted defense counsel to this mistake. And given that counsel had already been sanctioned for "this exact type of error," the Court ordered Mr. Kachouroff, Ms. DeMaster, and Frankspeech to show cause why they should not be sanctioned again under Rule 11….

[C.] Violation of Rule 11

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Three Investitures in Two Days

Congratulations to Justices Sullivan and Hawkins of the Supreme Court of Texas and Judge Taibleson of the Seventh Circuit.

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The past few days have been fun.

On Thursday, I attended a double investiture at the Supreme Court of Texas for the two newest members. Justice James P. Sullivan was sworn in by (Retired) Judge Tom Griffith. Judge Griffith gave a fascinating discussion on the value of the oath. We should all focus on the meaning of "help" in "So help me God." We are wiser for his insights.

Justice Kyle Hawkins was sworn in by Justice Samuel A. Alito. The Justice relayed a funny story from Kyle's term. Justice Alito circulated an opinion in a non-controversial case that he thought would quickly garner nine joins. No such luck. Justice Alito received a number of letters asking to remove this part, add that part, and rewrite another part. The task fell to Kyle to help manage the revisions, and ultimately, the opinion satisfied everyone. (No he did not mention which case it was, but I would love to know.)

Investitures for the Texas Supreme Court are held in the chamber of the Texas House of Representatives. Every seat was filled. There were also tributes given to Chief Justice Nathan Hecht and Justice Jeff Boyd, who recently retired from the court.

Dare I say that the Texas Supreme Court is the greatest state supreme court in the nation? The intellectual firepower of that Court is staggering. I can't wait to see what Justices Sullivan and Hawkins bring for years to come.

After a brief stay in Austin, I flew to Chicago O'Hare and drove to Milwaukee to attend the investiture of Judge Rebecca Taibleson to the Seventh Circuit. Over the years, I have written about my close bond with Professor Michael Krauss at George Mason University. Professor Krauss gave remarks about his daughter that brought everyone to tears. Justice Kavanaugh also spoke about his former law clerk. He remembers the exact moment he met Judge Taibleson in the hallway at Yale Law School. She made that much of an impact on him. This was a ceremony with so much warmth and joy--it was especially cathartic after the unnecessarily difficult confirmation process. But, as one commenter observed, this was a rare instance where the meritocracy prevailed. And Judge Taibleson will make everyone proud.

I am proud to say that three of my former students will be clerking for these three jurists next term.

The week was even funner. On Wednesday, I attended a legal retreated at my new think tank, the Manhattan Institute, followed by the Hamilton Dinner at Cipriani. Senator Ben Sasse was the honoree of the night. What an inspiration he is.

And on Monday and Tuesday, I attended the Fifth Circuit Judicial Conference, which, blessedly was in Houston. If you want to figure out how I was in so many places at once, the answer is several early-morning flights.

Somehow, amidst all of those travels, I wrote what may be my most popular blog post of all time. It has been the talk of the town. I've lost count of the number of phone calls, texts, and emails I've received thanking me for saying what needed to be said. You are all welcome for that public service. Maybe I should give a TED Talk about the experience of writing a viral post without AI.

Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

A late-night knock at the door, unregistered silencers, and a prison-drone conspiracy.

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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.

This week on the Short Circuit podcast: Live from Michigan Law, it's our Administrative Law-apalooza. With Professors Chris Walker & Nicholas Bagley and top admin law lawyer Zach Larsen.

  1. In 2006, the City of Baltimore agreed to use eminent domain to acquire a huge chunk of land and turn it over to a private developer. But then, in a turn of events that will surprise everyone except those who have ever read anything at all about eminent domain, the planned development is a flop, leaving most of the area vacant, rat-infested, and generally an annoyance to its neighbors. Which stinks, says the Fourth Circuit, but doesn't mean those neighbors have a claim under the Takings Clause to challenge the condemnation of their erstwhile neighbors' land. Read More
More

Recent Volokh Posts

1

"New York Recognizes No Tort of 'Misgendering'"

2

Israel's Conduct in Gaza Does Not Resemble Genocide

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N.Y. Court Blocks Rape Accusers from Repeating Their Allegedly False Accusations

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Dan Bongino Wins Defamation Case Brought by Parler Ex-CEO

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Father Free to Send Children to Church Camp During His Parenting Time, Even When Mother Objects to Church's Views on Women

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Today in Supreme Court History: May 11, 1942

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Open Thread

8

Upcoming Cato Institute Event on "Trump v. Barbara: Birthright Citizenship at the Supreme Court"

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The Stunning Plan To Reverse The Supreme Court of Virginia: Lower The Retirement Age to 54, "Retire" The Justices In The Majority, Install Cronies To Uphold New Map

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WaPo: "Neal Katyal's TED talk spins a remarkable tale."

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