The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Environmental Law

Klein and Thompson's Abudance Shows Abundant Lack of Introspection

The authors recognize the need to reconsider policies that make it hard to innovate and build, but do not ask why they and their allies were blind to such concerns for so long.

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Ezra Klein and Derek Thompson's Abundance was one of the most talked about policy books of 2025. In broad strokes, the book makes the case for "a liberalism that builds" and thus becomes the basis for a more affordable and more sustainable--or, they would say, abundant--future.

Abundance

Much of the book provides a useful diagnosis of how existing policies and regulations make it too difficult to build hosing, deploy clean energy, develop innovative technologies, and bring innovations to market. In this respect, it is a useful intervention in policy debates that challenges the contemporary approach to governance to which many of their ideological compatriots are committed. Yet, as I note in my review in Regulation, the book has its blind spots.

Klein and Thompson recognize that many policies long championed by the left have produced unsustainable and undesirable results. Yet they show little interest in understanding why things went wrong. Their analyses of how regulatory policies make it unnecessarily costly and difficult to deploy clean energy and make housing more expensive and less available are sound, but they also are not new. I have been arguing that current approaches to permitting are particularly problematic for clean energy development for decades. Analyses showing how zoning and rent control choke off housing supply are older still.

The question Klein and Thompson do not try to answer is why so many smart policy wonks on the left--themselves included--denied and rejected arguments for abundance before now. In this respect, I do not think their book (or the discussions of it to which I have listened) show much introspection.

From my review:

Klein and Thompson admit they are discovering problems today that they studiously ignored in the past when flagged by market-oriented analysts. The recognition that progressive legal institutions are obstacles to growth, innovation, and solving societal problems is welcome. Yet they show little curiosity as to why they and their fellow-travelers had so many "blind spots" for so long. Other than a brief nod to Mancur Olson, they offer no real explanation for why well-intentioned laws become obstacles to economic and social progress, nor do they show much willingness to second-guess or revisit their own assumptions about the proper role of government in facilitating economic growth, technological innovation, or material abundance. Klein and Thompson may understand what it takes to build political support for supply-side thinking on the political left, but their lack of introspection renders much of their substantive analysis hollow.

They close the book by offering "a new set of questions around which our politics should revolve. What is scarce that should be abundant? What is difficult to build that should be easy? What inventions do we need that we do not yet have?" A more fundamental inquiry would be who decides? And what sorts of institutional arrangements are necessary to answer such questions? In failing to even pose such questions, Abundance does not offer much of an answer to the problems it seeks to solve. Klein and Thompson say they want a "liberalism that builds," but they never really consider how it was that liberalism once built.

New In SCOTUSBlog: The court should hold oral argument outside of the capital

"I am confident there would be a bipartisan groundswell of support to get the justices out of the beltway."

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My latest installment on SCOTUSBlog urges the Justices to get out of the beltway, and hold oral argument across the fruited plane.

The most likely sites would be the courthouses where the federal courts of appeals sit en banc, or all together: the U.S. Court of Appeals for the 1st Circuit sits in Boston, the U.S. Court of Appeals for the 2nd Circuit sits in Manhattan, the U.S. Court of Appeals for the 3rd Circuit sits in Philadelphia, the U.S. Court of Appeals for the 4th Circuit sits in Richmond, the U.S. Court of Appeals for the 5th Circuit sits in New Orleans, the U.S. Court of Appeals for the 6th Circuit sits in Cincinnati, the U.S. Court of Appeals for the 7th Circuit sits in Chicago, the U.S. Court of Appeals for the 8th Circuit sits in St. Louis, the U.S. Court of Appeals for the 9th Circuit primarily sits in San Francisco, the U.S. Court of Appeals for the 10th Circuit sits in Denver, and the U.S. Court of Appeals for the 11th Circuit sits in Atlanta. These cities fully represent the different regions of our glorious republic. (The D.C. Circuit, which is a few blocks from the Supreme Court, does not count.) The justices would see New England, the Mid-Atlantic, the South, the Deep South, the Midwest, the West, and what Justice Antonin Scalia called the "vast expanse in-between." All of these courthouses are equipped with benches to seat the nine members of the Supreme Court. There would also be chambers where the justices and their clerks could work. These federal buildings are already secure, and could provide the appropriate accommodations for the justices.

I also think the Justices should hold goodwill missions that are not part of book tours. They could promote the reputation of the Court without changing any opinions:

When the justices visit a city, they should perform official good will missions. Justices should visit law schools and other educational institutions. Even better, the justices should go in pairs, so the public can see how justices who do not agree with each other can still engage in a civil fashion. Justice Elena Kagan's recent congressional testimony with Justice Amy Coney Barrett provides a model of civility. These events would not be book talks. I find it problematic that justices, or at least their staff, have apparently prodded groups to purchase books when hosting them. The purpose of these events would simply be to speak to the next generation.

But the purpose of these missions is not just to speak. To borrow from Barrett's new book, the justices should also listen. The justices should hold private meetings with local constituencies to hear how the law affects them. Groups could include government officials, police departments, prosecutors, civil rights groups, public defenders, and others. I don't know how often the justices hear from regular folk about the law. The justices largely reside in their own bubbles. These missions would be an effort to pierce those bubbles. Still, these gatherings could become opportunities to grandstand, so all recording devices would be strictly prohibited.

The justices should also meet with the local press. These reporters might have questions that members of the Supreme Court press group do not. On book tours, the justices will sometimes answer pre-approved questions or speak to favorable outlets. Justice Ketanji Brown Jackson pals around on The View while Barrett chats on Fox News. The justices should not be so guarded. If a reporter asks a question that is inappropriate, the justice can decline to answer. But there is always much that can be said. And I think the press would be impressed with how carefully the justices answer questions.

So far, my posts on SCOTUSBlog have generated broad consensus. My next one probably will not.

I Say No To SubStack, And Chief Justice Roberts Says Yes

"Flagging for you a new essay by Chief Justice Roberts on William Howard Taft for In Pursuit..."

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This morning I received an unusual email in my inbox. The subject line was "Chief Justice Roberts publishes essay on William Howard Taft for In Pursuit." For sure, I thought someone was pranking me. But no. It was a press release from DKC, a public affairs company in New York. Obviously, someone compiled a list of people who write about the Court, and paid zero attention to what they wrote. This was almost as tone-deaf as the PR email I received promoting the Federal Circuit's ridiculous AI video.

Here is the message:

Hi Josh,

Hope you're well. Flagging for you a new essay by Chief Justice Roberts on William Howard Taft for In Pursuit, a national initiative in which leading American public figures and scholars share lessons from each American President and select First Ladies.

In the essay, the Chief Justice reflects on how Taft maintained his dignity and principles through his defeat in the 1912 presidential election, thereby leading him to future success as "one of the most consequential Chief Justices in our Nation's history."

I've included a few key sections from the essay below for reference and you can read the full version on In Pursuit's Substack.

I say no to SubStack, and Chief Justice Roberts says yes. Makes sense.

I hadn't heard of the In Pursuit Substack. It seems to be founded by Jim Ambuske, a historian on American history (who I also haven't heard of). The site has been publishing essays since March of 2026. Influential figures wrote written essays on important figures in American history. Barack Obama wrote about Abraham Lincoln. Annette Gordon-Reed wrote about Andrew Johnson. Bill Clinton wrote about Theodore Roosevelt. Jack Rakove wrote about James Madison. Jon Meacham wrote about Andrew Jackson. And now Chief Justice Roberts has written about Taft.

The Chief also recorded an audio version of his essay. There is nothing too insightful here. Roberts does offer praise for Meyers, which the Court vindicated this past term in Slaughter.

At age 63, Taft ascended to the position for which he was most suited by ability and temperament. Chief Justice Taft achieved the success that eluded President Taft. To be sure, Taft opinions are few and far between in modern constitutional law casebooks. A notable exception is Myers v. United States, which upheld a President's power to remove executive branch officials. But as an administrator, Taft made landmark contributions to the Supreme Court and the federal judiciary more generally, escorting it into modern times and ensuring its effectiveness as a co-equal branch under the Constitution.

At present, the Substack about 27,000 subscribers. That number does not strike me as particularly high for the caliber of authors they've gotten. Indeed, that was roughly my estimate of how many unpaid subscribers I could earn by myself. Perhaps this is proof that SubStack is not what I thought it might be.

Free Speech

Defamation Claim Against Academic from Stalking Allegations Against Another Academic, with a Trans Angle

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From Judge Kelley Hodge (E.D. Pa.) Friday in Duncan v. Lett (see also this February post that discusses a related New York case stemming from the same incident):

Both Plaintiff [Dustin Duncan] and Defendant [Elle Lett] work in academia on transgender health issues. Specifically, during the events leading up to this lawsuit and at the time this action was filed, Plaintiff was an Associate Professor of Epidemiology at Columbia University who conducted "predominantly … intersectional and health equity-based research focusing on Black gay, bisexual and other sexual minority men and transgender women of color using a social and spatial epidemiologic lens." [Plaintiff is now a full professor at Columbia. -EV]

Defendant is a Black transgender woman, medical student, doctoral recipient, researcher at the University of Pennsylvania, and Clinical Assistant Professor at the University of Washington whose research "applies the theory and principles of Black feminism to understanding the health impacts of systemic racism, transphobia, and other forms of discrimination on oppressed populations in the United States." Both Plaintiff and Defendant were participants in a professional organization called the Interdisciplinary Association for Population Health Science ("IAPHS")….

In April 2023, Plaintiff met Sawyer Allen …, a transgender man, at the Blick Art Store in Harlem …. Plaintiff and Allen exchanged several messages after they met. Thereafter, Allen began falsely accusing Plaintiff of serious crimes and directed these accusations at Plaintiff's employer, Columbia University. [Lett has, in this lawsuit, agreed that Allen's statements had turned out to be false. -EV]

For example, in an Instagram post created on June 23, 2023, Allen posted a screenshot of Plaintiff's Columbia University photo and stated "[t]his man has been stalking & harassing me for nearly three weeks." Allen also included in his social media posts messages of a threatening nature that were purportedly from Plaintiff, such as one that stated "I hope now you're really scared because once I find you. Trust me, you would have wanted to pick just talking to me." Multiple people tagged @columbia and @columbiapublichealth on Allen's posts to bring the matter to the University's attention. Allen also posted a GoFundMe page requesting financial help because Plaintiff's actions had made him feel "unsafe to leave [his] house" and had "taken a huge toll on [him] finically [sic]."

This led to a massive controversy (see the opinion for more), in which Lett publicly took Allen's side. Duncan sued, and the court allowed the case to go forward based on public statements that Lett posted on X together with a link to Allen's GoFundMe page, including:

Found out that a trusted colleague who studies trans people has done horrible things and victimized a vulnerable trans person and I'm really struggling on what Justice and courage looks like here. Like amplifying would put me at risk but not feels dirty. I know it to be true ….

I'm rarely pulled to post for mutual aid people I am not directly linked to. I am two trans people removed from this person. I will not share details for other reasons but if you believe in mutual aid and want to support someone who has been harmed by the power assembled in our wheelhouse of a [sic] academic privilege, please donate to this gofundme by [Allen]….

First, the court found plaintiff is a private figure:

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Free Speech

$200K Libel Award for Cybersecurity Expert Accused by Substacker of Being "Israeli Spy"

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A short excerpt from the long opinion Friday by Judge Michael S. Nachmanoff (E.D. Va.) in Apelbaum v. Bloom:

Plaintiffs Yaacov Apelbaum and XRVision Ltd., a cybersecurity and facial recognition technology expert and his company, filed suit against Defendant Jordan Arthur Bloom, a blogger and journalist, on January 28, 2025. In the original complaint, Plaintiffs alleged that Defendant had made certain defamatory statements about them in a January 29, 2024, Substack blog post (the "First Article") regarding Plaintiff Apelbaum being an "Israeli spy." The First Article was purportedly republished in a November 23, 2024, Substack post (the "Second Article") by Defendant responding to Plaintiffs' cease and desist letter….. {The statements [presented to the jury] were: (1) "Yaacov Apelbaum is an Israeli spy, and the sort of Israeli spy who would have good reasons to smear American facial recognition technology, because his company, XRVision, is a competitor;" (2) "So this is an Israeli spy who's deeply involved in shaping the Hunter Biden story[]" ….}

The jury returned a unanimous verdict against Defendant after about one and a half hours. As indicated on the special verdict form the jury found that Defendant had made the First Article statements with actual malice and awarded $75,000 compensatory damages and $125,000 punitive damages, as to each Plaintiff on each statement.

Defendant moved to vacate the judgment, but the court said no:

[1. Defamatory meaning:] [T]he First Article statements ultimately presented to the jury were actionable as defamation per se because "allegations of close ties to a foreign intelligence agency could prejudice a cybersecurity professional and his firm." …

[2. Falsity:] [T]he evidence presented at trial was sufficient to permit a jury to conclude that the 2024 First Article statements that Plaintiff Apelbaum "is an Israeli spy" were, in fact, false. Plaintiff Apelbaum testified that he was conscripted into the Israeli Defense Forces ("IDF") for seven years, served in a combat reconnaissance company in the paratrooper brigade collecting field information on troops, performed a mixture of operational and intelligence related assignments, was not an intelligence officer, finished his service in 1987, and has not had contacts with the Israeli government since that time….

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Politics

How Many More Jason Ardays Are There?

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I am intrigued by the story of Jason Arday, who recently resigned his professorship at Cambridge. Most of the press accounts focus on his serious fabulism. He boasted about feats of physical strength—like running six hundred miles in six days—that are nearly-physically impossible. Worse, these are stories that can easily be refuted. Apparently, no one in the ultra-marathon circles knew who he was. It is almost comical that a major publisher gave him a seven-figure book advance.

The lies Arday told about his personal story are problematic, but the far more pressing issue is his academic record. For years, he faced significant charges of plagiarism and dishonesty in his dissertation and his thin scholarship record. Those who raised these charges were predictably dismissed as racists. Cambridge performed an investigation that now appears to have been a sham. Only now, when the entire story has fallen apart, people are comfortable speaking the truth.

Arday resigned, but he is not alone. He can't be. If he was able to get away with flagrant violations of academic integrity for years, others have as well. And to the extent that fears of being called racist shielded Arday from rigorous scrutiny, other academics are in a similar position. Indeed, how many Ardays have been hired and promoted, in the face of doubts, as part of DEI initiatives? Arday was hired in 2023 at peak-wokeness.

The UK Telegraph has a deep dive titled, "The Cambridge diversity scramble that led to Arday fiasco." Read the entire thing, but here is an excerpt:

Put simply, did Cambridge University lower its own standards to hire a man of questionable merit simply because of his skin colour? And having done so, did one of the cornerstones of Britain's world-renowned education system prioritise its diversity, equity and inclusion (DEI) credentials over its hard-earned reputation? . . .

The Telegraph has spoken to someone with first-hand knowledge of the interview process that Mr Arday passed through, who believes the university only "went through the motions" with other candidates because he was already the preferred choice.

We have also spoken to students who complained about inadequate supervision by Mr Arday, only to be told they were being racist.

John Preston, emeritus professor of sociology at the University of Essex, said: "The appointment of Prof Arday certainly raised eyebrows at the time with people who work in this area because his publication record appeared rather thin. It raises questions about whether he was appointed for other parts of his CV.

"There were a lot more qualified people who would have been more suitable… they probably wanted to address their own failures in DEI in the past."

When the job of professor of sociology of education was advertised, Cambridge told candidates that: "The following groups are currently under-represented in our community: women, those with a Black, Asian and Minority Ethnic background and those with disabilities."

Mr Arday, who had spoken many times about his childhood autism and learning difficulties, ticked two of those three boxes. . . .

But the Arday affair will not quickly be forgotten, and the questions of whether Cambridge cherishes DEI more than its own reputation will persist.

Even the New York Times can state the obvious:

In 2023, The Times of London paraphrased comments from the head of Mr. Arday's academic department, writing that his hiring "was proof of the university's commitment to tackling existing inequalities." "To any students or prospective colleagues who are wondering if Cambridge is a place where they can belong, the answer is, emphatically, yes," she told the paper.

If Mr. Arday isn't just a scholar, but a symbol of his university's commitment to social justice, perhaps that made it more difficult for Cambridge to examine its own role in his ascent—and to delay, by several damaging years, the full investigation Mr. Arday's case so obviously warranted.

Cambridge is an institution that dates back to 1209—before Magna Carta! Yet somehow, the DEI madness of the post-George Floyd era allowed them to look past all of the red flags. And if Cambridge succumbed to this mania, then far-less prestigious institutions likely made even worse errors.

The academy cannot perform its function of pursuing truth and knowledge if certain groups are afforded preferential treatment at every stage of their careers, and then are shielded from criticism for fear of undermining the entire DEI process. Arday was caught. There are likely others who should be caught.

Update: John McWhorter has more at City Journal:

Arday merely reinforced long-established and simplistic pieties. He became the equivalent of a full professor at Cambridge based on doing interviews with acquaintances about the racism they experienced, and then largely just presenting what they said. At its highest level, this could be good (but not great) journalism; it could not be academic work. On the level Arday worked, my 14-year-old could best him after some quick training in Latinate, Judith Butler-esque prose. . . .

Even worse than Arday's work displaying no actual excellence is the consequence that characters like him wind up passing the torch to the next generation of black scholars. In a career spent in and around academia, I've seen this happen too many times. I refer to nothing like all black academics. But this is a vortex that young black scholars are sadly vulnerable to being pulled into, aided and abetted by white fellow travelers. . . .

Arday had no original ideas. He can't teach someone how to write because his writing consists of, well, "mimicry." (Even his resignation letter seems likely to have been generated by AI.) There are reports that—big surprise—Arday had no idea what actual teaching was and couldn't be bothered with supervising students' work, probably because he had never done any himself. People taught by versions of this type end up occupying an alternative academic universe, where cultural fellowship and advocacy are the North Star, and learning and curiosity get lip service but are beside the point. . . .

The mentees, evangelized in the conviction that their blackness is what makes them matter rather than hard mental work, do not learn how to reason closely and clearly. And again, white academics make sure that they never have to. An eminent white academic once contacted me while on a committee evaluating a black scholar for a prestigious award, asking me what I thought of the person's work. The truth was that the scholar's writings and presentations were earnest but unstructured and unoriginal. From acquaintance, I knew that she could have done much better than this but simply had never been taught how. She was on the shortlist transparently because she was black. Many like her get the award nevertheless—and the torch passes on. . . .

But if Stephen Hawking's work were mediocre, no one would have celebrated it. The intelligent take would be to pity that his physical misfortune had prevented him from achieving something on a meaningful level. Let us imagine a white version of Arday with long blond hair (not dreadlocks, because I suspect those would have a sirenic effect on many as signaling an allegiance to social justice). Even with the same claimed experiences as Arday, this man with long blonde locks would not be celebrated as brilliant—but as someone sadly denied the chance for brilliant achievement. . . .

The only reason people would believe all this damnable foolishness—and remember, across the pond they're not wowed by his lovely accent the way Americans are—is that they see Arday as a Magic Negro. The kindly, antiracist white academics think suspending their judgment when it comes to a black man makes them good people. . . .

The youngest-ever black professor at Cambridge properly should have been a physical education teacher who did some after-hours tutoring. A make-believe academic who misspelled paltry as poultry in the title slide of a keynote address instead scaled the heights of Britain's Harvard because of his skin color and his exceptionally long dreadlocks.

Free Speech

"Litigation Often Takes a Toll on a Party's Mental Health on Both Sides of the 'v'"

"But the mental-health effects of litigation are, in a sense, the cost of doing business."

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From Doe v. Simons, decided July 29 by Judge Nicholas Ranjan (W.D. Pa.):

Plaintiff John Doe has moved to proceed under a pseudonym. Doe advances three main bases for anonymity: his mental illness; that requiring him to litigate under his own name would deter him, and similarly situated individuals, from pursuing litigation; and that his HIPAA-protected medical records would become public….

Doe has not shown that he faces a reasonable fear of severe harm. Doe's case appears to be a straightforward employment-discrimination case. And where plaintiffs allege a fear of severe harm (namely heightened mental illness symptoms and stigma) in ordinary employment-discrimination cases, like this case, courts have denied motions to proceed under a pseudonym. See Doe v. Coll. of New Jersey (3d Cir. 2021) (affirming district court's denial of plaintiff's motion to proceed pseudonymously where the district court … "observed that, with regard to a need for anonymity, [plaintiff's] case was not meaningfully different from other employment disputes"). This Court has seen many cases like this one, and recognizes that litigation often takes a toll on a party's mental health on both sides of the "v."

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Reminder: Second Annual Aspiring Free Speech Scholars Workshop

We've already received several submissions, but you can submit until August 16. Don't worry if the article draft isn't fully polished, or even if some portions are incomplete; we're reviewing drafts, not finished products.

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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.) Don't worry if the article draft isn't fully polished, or even if some portions are incomplete; we're reviewing drafts, not finished products.

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.

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Free Speech

Suspending College Student for Saying Man Who Insulted Her "Needa Get Blasted" + Having Posted Shooting Range Video (Year Before) Violated First Amendment

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Some excerpts from today's long opinion by Judge Joseph Dawson, III (D.S.C.) in Lemoine v. Horry Georgetown Tech. Coll.:

On September 5, 2024, while off campus, Lemoine [a cosmetology student at HGTC] sent a message in a Snapchat group that included some HGTC students. The message concerned an off-campus interaction involving Lemoine's boyfriend's roommate, who was not an HGTC student or employee. Lemoine wrote: "But naw I was trying to be nice but f[**]k that some random ugly ass in bread looking f[**]k dude called me a bitch he needa get blasted." [Expurgation in the court decision. -EV] …

[In a meeting with school officials on September 11, 2024,] Lemoine denied that "blasted" referred to physical harm and explained that she meant the roommate should be called out or held accountable for his behavior. Lemoine also stated that neither she nor her parents owned guns.

Defendants contend that Lemoine's statements suggested a broader disassociation from firearms. Plaintiff disputes that characterization and contends she did not state that she had never fired a gun, had no experience with guns, or had no association with anyone who possessed firearms.

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Free Speech

No Pseudonymity for Autistic Ex-Judge-Candidate, Alleging Failure to Accommodate Disability in Bar Investigation

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From a decision last Tuesday in Doe v. Florida Bar by Magistrate Judge Robert Norway (M.D. Fla.):

Plaintiff argues that because this lawsuit challenges the actions of an "official arm of the Supreme Court of Florida," Plaintiff should be allowed to proceed under a pseudonym. Plaintiff further argues that he should be permitted to utilize a pseudonym because his medical and psychological information would be disclosed publicly, and his personal safety would be at risk….

For more details, here's an excerpt from Doe's argument for pseudonymity:

This is a civil rights action against The Florida Bar and its officials, and against a sworn law enforcement deputy individually, arising in part from a disability accommodation request and denial, and in part from facts surrounding a domestic incident in which Plaintiff sought police assistance regarding a former intimate partner. Both categories of fact involve information the Eleventh Circuit has recognized as warranting protection through pseudonymous litigation….

Plaintiff's claim under Title II of the Americans with Disabilities Act, Count IV, necessarily requires alleging that Plaintiff has autism, together with the medical and personal circumstances underlying Plaintiff's accommodation request. Courts have consistently recognized medical and psychological information as information of the utmost intimacy supporting pseudonymity….

Plaintiff anticipates that Defendants may argue that Plaintiff waived any privacy interest in this information because Plaintiff voluntarily referenced his autism in a campaign social media post explaining his candidacy. That argument should be rejected. Disclosure in one limited context does not waive a privacy interest against disclosure in a different context to a different audience for a different purpose. See Doe v. Shawnee State Univ. (S.D. Ohio 2019) (rejecting argument that a transgender plaintiff could not claim a privacy interest in her transgender status because she had already disclosed it to her employer and coworkers, since the general public remained unaware).

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"A Tale of Two Chiefs"

"This tale of two chiefs depends entirely on whether Roberts determines the decision will lead to the best of times or the worst of times. If the Chief fears rough roads ahead, less will be decided."

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I have some thoughts on Slaughter and Cook. In this new essay for Law & Liberty, titled A Tale of Two Chiefs, I was feeling Dickensian.

Here is the introduction:

Chief Justice John Roberts's twentieth year on the Supreme Court demonstrates the contradictions of his career. There is Chief Justice Roberts, the institutionalist, who strategically guides the Supreme Court by not deciding more than is necessary to decide. Then there is Chief Justice Roberts, the institutionalist, who strategically guides the Supreme Court by deciding more than is necessary to decide. Which Roberts do we get in each case? This tale of two chiefs depends entirely on whether Roberts determines the decision will lead to the best of times or the worst of times. If the Chief fears rough roads ahead, less will be decided. If the Chief sees smooth sailing, more will be decided. No more, no less.

This tale can be told in two cases decided simultaneously on the final day of the Supreme Court's term, each involving President Trump and Chief Justice Roberts. First, in Trump v. Slaughter, Roberts overturned a nine-decade-old precedent that protected "independent" agencies, allowing Trump to fire a commissioner. Second, in Trump v. Cook, Roberts reaffirmed the independence of the Federal Reserve, and blocked the president's removal of the board governor. Each case represented what could only be called judicial maximalism. The Court reached out to issue sweeping rulings on issues that did not need to be decided. This duo of decisions from the chief justice is confounding, and conflicts with every fiber of Roberts's purported institutionalism and minimalism over the course of two decades.

I also explain that the 3-3-3 Court is largely dead.

Back in June 2022, I was the first scholar to write about the so-called 3-3-3 Court, though others have since picked that term up. The thinking went that the Court had three coalitions of three justices: the progressives (Sotomayor, Kagan, and Jackson), the conservatives (Thomas, Alito, and Gorsuch), and the center-right members (Roberts, Kavanaugh, and Barrett). That tripartite alignment largely ran its course as Justices Kavanaugh and Barrett have settled in. Now, in the cases that count, there are two predominant splits. There is the 6-3 super-conservative Court, with the chief justice squarely in control. Or, there is the Roberts +1 Court: the three progressives sign onto whatever the chief justice is serving, and they are joined by either Justice Barrett or Kavanaugh.

In Cook, Justice Kavanaugh was Roberts's +1. Kavanaugh was also worried about the potential consequences for monetary policy from weakening the Federal Reserve's independence. Still, Kavanaugh suggested that Trump could remove Cook if he followed certain processes. In another landmark case, Trump v. Barbara, Justice Barrett provided the +1 for birthright citizenship. Barrett did not write separately, so we do not know for sure what her thinking is. But she did not join Justice Kavanaugh's concurrence, which found that Trump's reading of the Citizenship Clause of the Fourteenth Amendment was correct, even though his order conflicted with statutory law. Both Cook and Barbara reached out to decide far more constitutional questions than were necessary. And those rulings only set precedents because Justices Kavanaugh and Barrett signed on in full.

My recommendation, to channel a classic 1990s PSA.

My humble suggestion for the future: friends don't let friends be the chief justice's fifth vote. Whenever the chief justice writes a majority opinion that has only four votes, the other conservatives should concur only in judgment to deny his situational jurisprudence precedential authority. In Cook, even if Justice Kavanaugh agreed that the Federal Reserve must remain independent, he should have only joined parts of the chief's opinion that did not reach out to settle novel questions. And in Barbara, Justice Barrett could have concluded that even if the best reading of the Fourteenth Amendment is to guarantee birthright citizenship, there is no reason to definitively set a constitutional rule, as the statute simply incorporates the constitutional standard. Both cases would have turned out exactly the same way, but no new risky precedents would have been set. Like Oliver Twist, the chief justice can keep asking for one more vote—and his colleagues should just say no.

Let's see how the votes shake out this term.

Guns

Design Defect Claim That Sig Sauer Fired Without Trigger Pull Not Necessarily Blocked by Second Amendment

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From Judge Thomas Thrash (N.D. Ga.) Friday in Harvard v. Sig Sauer, Inc.; note that Harvard is just plaintiff's last name:

This is a firearm design defect case. The Sig Sauer P365X pistol is a striker-fired pistol, which uses an internal, spring-loaded firing pin to hit the primer and fire the cartridge instead of an external hammer like a traditional gun. When the slide is racked back and released forward to chamber a round, the firing pin remains back and under spring tension, making it ready to fire. The firearm did not feature a manual safety. Nonetheless, the Defendant designed, manufactured, and sold the firearm and advertised it as a firearm that was equipped with the necessary features to prevent unintentional discharges.

The Plaintiff is an individual who purchased a Sig Sauer P365X on November 18, 2023. A month later, the Plaintiff was at the Rock Bottom Hunting Club in Roberta, Georgia with the firearm in his possession. The firearm was fully seated and properly secured in a holster, which was attached to the Plaintiff's belt on his waistband. At some point, the Plaintiff proceeded to remove the holster, with the firearm inside it from his waistband, using his left hand to relieve the tension from the holster clip. The Plaintiff held the holster with his right hand, with his hand positioned over the muzzle end of the holster.

After the holster was removed and while the Plaintiff was holding it, the firearm suddenly discharged without the Plaintiff touching the trigger or taking any action to cause it to discharge. The firearm remained fully seated inside the holster at the time of discharge. Additionally, the shell casing did not eject from the firearm during the time of discharge, remaining in the chamber. The discharge caused severe and permanent injury to the Plaintiff's right index finger near the middle joint. Despite having knowledge of incidents like the one suffered by the Plaintiff at the time of the injury, the Defendant continued to make the firearm available for purchase without a manual safety and never issued a mandatory recall of the firearm.

Plaintiff sued for design defect product liability, failure to warn, and negligence, and the court allowed the case to go forward, rejecting Sig Sauer's Second Amendment defense, at least at this stage (a motion to dismiss):

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Free Speech

Federal Court Refuses to Dismiss Case Against Southern Poverty Law Center

The court rejects the argument that the prosecution should be dismissed on the grounds that it's "vindictive."

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Some excerpts from a long opinion by Judge Emily Marks (M.D. Ala.) Friday in U.S. v. Southern Poverty Law Center, Inc.:

This dispute concerns the Government's—specifically, the United States Attorney for the Middle District of Alabama's—decision to indict the Southern Poverty Law Center. The parties present diametrically opposed accounts of that decision. The SPLC contends that it is being vindictively prosecuted at the behest of various political actors—including the President of the United States—for engaging in speech protected under the First Amendment.

To remedy this alleged constitutional wrong, the SPLC moves for dismissal of the indictment or, in the alternative, discovery into the Government's prosecutorial motives. The Government opposes the SPLC's motion in its entirety, asserting that "this indictment was secured based on the law and the facts uncovered during a federal investigation." The parties' briefing is, like much of our modern political discourse, heavy on heated rhetoric, better suited for cable news, or a podcast. It emphasizes noise over substance.

After filtering out the noise, the Court is left to decide only whether the Government's decision to prosecute the SPLC was constitutionally impermissible. On this record, the SPLC is not entitled to discovery or dismissal of the indictment. The SPLC has failed to offer some evidence tending to show animus on the part of the prosecutors involved in bringing this case and that such animus resulted in the prosecution, the showing required for discovery. Because it cannot satisfy that standard, it necessarily fails to satisfy the higher standard that would entitle it to dismissal of the indictment. Accordingly, the SPLC's motion is due to be denied….

A quick summary of the allegations against the SPLC (see here for more):

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