The Cato Institute and I filed an amicus brief explaining why the tariffs violate statutory requirements, and also run afoul of the major questions and nondelegation doctrines.
Yesterday, the Cato Institute and I filed an amicus brief before the US Court of International Trade, in Gellert Global Corp. v. Trump, the first case challenging Donald Trump's massive 50% Section 338 tariffs against Canadian imports. The plaintiff is represented by the Liberty Justice Center, the public interest law firm I worked with on the case challenging the massive tariffs Trump imposed under the International Emergency Economic Powers Act (IEEPA). That case resulted in the tariffs' invalidation by the Supreme Court earlier this year.
I previously wrote about the Section 338 tariffs and why they are harmful and illegal in an article in The Dispatch, and a paper for the Montreal Economic Institute.
We are grateful to Daniel Cannistra and others at Crowell & Moring for their invaluable pro bono assistance in helping draft and submit the brief on very short notice. Here is a summary of our key arguments, which should soon be posted at the Cato website:
This brief explains why Section 338 of the Tariff Act of 1930 cannot be used to impose the tariffs enacted by Defendants, and why doing so violates the major questions and nondelegation doctrines.
The Court should strike down the Section 338 duties for three reasons. First, Section 338 requires that any tariffs imposed be in response to discriminatory trade restrictions enacted by foreign trading partners, and that those tariffs "offset" the barriers imposed by those countries. The Section 338 tariffs imposed by the Trump administration violate both of these requirements. In addition, Section 338 has been superseded by later statutes and is no longer operative.
Second, the major questions doctrine forecloses interpreting Section 338 to permit the President to impose extraordinary import taxes whenever another country imposes any trade restrictions or declines to purchase American goods. to "speak clearly" when it assigns to the executive "decisions of vast 'economic and political significance.'" The sweeping power claimed by the administration in this case undeniably raises a major question, and it is at the very least unclear that Section 338 actually grants such vast authority.
Third, stripping the statute's qualitative conditions of operative force violates the nondelegation doctrine, which constrains delegation of legislative power to the executive. An extremely high rate ceiling of 50 percent cannot substitute for clear legislative limiting how and when tariffs can be imposed.
Cato and I (together with Prof. Michael McConnell) also recently submitted an amicus brief in litigation challenging Trump's massive Section 301 tariffs.
On Thursday, the Cato Institute and I filed an amicus brief in the US Court of Appeals for the First Circuit, in support of California and other states challenging the Trump Administration's imposition of a $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with various specialized skills).
The district court ruling in this case invalidated the $100,000 fee on the grounds that the executive had illegally usurped Congress' power to impose taxes. It relied heavily on the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the tariff case I helped litigate. A second federal district court later invalidated the fee on other grounds.
We are very grateful to Deno Hemonas and Philip Wilkinson of Wilson Sonsini Goodrich Rosati, who worked with me on the brief, pro bono. Stanford Law School Prof. and former federal judge Michael McConnell, also worked with us on the brief. He is one of the nation's leading experts on executive power, a prominent conservative originalist constitutional law scholar, and was our lead counsel in the Supreme Court phase of the IEEPA tariff case.
Here is a summary of our arguments:
As the Supreme Court emphasized in its recent decisions striking down Donald Trump's Massive IEEPA tariffs, "the Framers gave Congress alone access to the pockets of the people." Learning Resources, Inc. v. Trump, 607 U.S. 229, 241 (2026) The tax power was, as Alexander Hamilton explained, "the most important of the authorities proposed to be conferred upon the Union." Just months ago, the Supreme Court in Learning Resources applied those fundamental principles to hold that the President may not use a general grant of authority to "regulate … importation" to impose tariffs, because the power to "regulate" is not the power to tax and Congress did not clearly delegate its taxing power. This case asks whether the same President—by imposing a tax of his own devising on the entry of noncitizens and calling it a "restriction" on entry—may accomplish by a different label what Learning Resources forbade.
The exaction here is a tax. Its "defining feature" is that it raises revenue. Learning Resources, 607 U.S. at 241. It is neither a mere fee contributing to the costs of operating the program nor a penalty. The power to "restrict" entry is not the power to "tax" entry. To limit or qualify entry says nothing about charging for it, and the Government can identify no statute in which the words "restrict" or "restriction" confer tax authority.
The Immigration and Nationality Act contains express, detailed provisions for fees and payments, setting each amount and specifying how the funds are collected and spent. This confirms the absence of a generalized, unlimited discretionary presidential taxing power. Congress does not "hide elephants in mouseholes," and this case involves a very large elephant. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001). In more than a century, no President has used Section 212(f) or Section 215(a) of the INA to raise revenue, a point the Government does not dispute. As the Supreme Court held in Learning Resources, that absence is "strong evidence" the power does not exist.
In addition, the government's interpretation of the relevant statutes violates the major questions doctrine, which requires Congress to speak clearly when delegating power over a major economic or political issue to the executive. The power to impose unlimited taxes on any visa holders or immigrants entering into the United States is undoubtedly a major one. If, nonetheless, the court concludes that Congress did somehow grant the government the sweeping power it claims, it would violate the constitutional nondelegation doctrine, which constrains delegations of legislative power to the executive.
I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.
[A.] From Ellis v. Wallace, decided today by Chief Magistrate Judge Scott Varholak (D. Colo.):
On January 29, 2025, a Black Hawk Helicopter and American Airlines Flight 5342 collided mid-air near Ronald Reagan Washington National Airport. Hours after the crash, several posts and articles appeared claiming Plaintiff was the helicopter pilot in the midair collision ("the rumor"), including:
On the morning of January 30, 2025, a "well-known podcaster and influencer Luke Ford posted a full video identifying [Plaintiff] as the pilot and discussing the crash as intentional."
On January 30, 2025, at 4:35 p.m., X user @RealNytoMwang posted "Plaintiff's photograph with text falsely identifying her as the transgender Black Hawk pilot who crashed the helicopter."
On January 30, 2025, at 9:22 p.m., X user @FakeGayPolitics published a post "identifying Plaintiff as the pilot, including her photographs and video clips."
On January 30, 2025, at 11:34 p.m., the Santa Monica Observer published an online article titled, "A Transgender Pilot Named Jo Ellis Flew Blackhawk Helicopter Into the American Airlines Jet at Reagan National."
Defendant made his first X post addressing the rumor on January 31, 2025, at 1:00 a.m. Eastern Time. And Plaintiff filed the Complaint in this matter on April 9, 2025, alleging that Defendant's posts were defamatory. Plaintiff then proceeded to appear as a guest on several podcasts. On July 18, 2025, she was interviewed on the Kill Tony podcast. During the interview, the hosts asked Plaintiff about the collision rumor and her pending litigation. Plaintiff explained that Defendant was the "[f]irst one to tie my likeness to the rumor. We don't know if he started the rumor, but he had millions of followers. He did the most what we can determine as damage."
Ten days later, Defendant filed the Special Motion to Dismiss Plaintiff's Complaint, attaching copies of X posts and articles linking Plaintiff to the crash hours before Defendant commented on the rumor. Plaintiff then appeared on a second podcast, the RVA Magazine podcast, on September 30, 2025. Plaintiff was again asked about the rumor and her pending litigation. In response, she stated:
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New news! This month, IJ client Libby Souder asked the South Carolina Supreme Court to let her resume teaching private swim lessons in her backyard pool, which she'd done for years with city approval and without incident. But after a nosy neighbor (whose life is in no way affected by the lessons) complained, officials reinterpreted an ambiguous provision of the zoning code to shut down Libby's business. Click here to learn more.
New on the Short Circuit podcast: Baltimore police can use a "Hailstorm" device to stimulate your cell phone and figure out where you are. Do they need a warrant for that?
President to Voice of America's head: You're fired! VOA head: Only the International Broadcasting Advisory Board can fire me. DOJ: But unitary executive! D.C. Circuit: The president can now sack members of the board at will, and that is enough to satisfy Article II, even if it may cause some delay while the president gets his preferred board members confirmed for them to then sack their subordinates.
In which the Second Circuit revives a challenge to New York City rules that prohibit people from, among other things, carrying more than one handgun at a time and registering more than two handguns. Read More
We now have Senate Judiciary Committee questionnaires from both Judge Lee Rudofsky and Justice Cody Hiland. If we consider Justice Hiland's remarks to the law school, we can piece together a rough timeline of how this nomination zigged and zagged.
First, here is Judge Rudofsky's summary of the process:
In the Spring of 2026, I communicated to the White House Counsel's Office that, if a vacancy opened on the Eighth Circuit, would be interested in being considered for the vacancy. On or around June 19, 2026, the White House Counsel's Office asked me to interview for an Arkansas seat on the Eighth Circuit in the event of a vacancy. Shortly thereafter, I expressed my interest in the potential position to my home-state Senators. On July 1, 2026, I was interviewed in the Eisenhower Executive Office Building by attorneys from the White House Counsel's Office and from the Department of Justice's Office of Legal Policy. On or around July 20, 2026, Judge Shepherd formally announced his intention to take senior status upon the confirmation of a successor. On August 12, 2026, the President called me to tell me that he was going to announce his intention to nominate me to the Eighth Circuit. Throughout the process, I have communicated with individuals in the White House Counsel's Office and the Office of Legal Policy.
Second, here is Justice Hiland's summary of the process:
On June 17, 2026, I received a phone call from United States Senator John Boozman, who asked whether I would be interested in a potential vacancy on the United States Court of Appeals for the Eighth Circuit. The next morning, I received a call from Senator Tom Cotton to further discuss the opportunity. On June 19, 2026, I received a phone call from White House Counsel's Office, and I interviewed on June 29, 2026, with staff from White House Counsel's Office and the Office of Legal Policy of the Department of Justice. On July 17, 2026, the White House Counsel's Office requested that I undergo a background investigation and prepare paperwork in anticipation of a potential nomination. On August 12, 2026, White House Counsel's Office asked about my interest in a potential district court nomination. [LOL] On November 10, 2026, the White House Counsel's Office informed me that I was to be nominated and shortly after formally transmitted my nomination to the Senate. Throughout the process, I have had periodic communication with the Department of Justice's Office of Legal Policy to assist me in preparation of documents in support of my nomination.
Here is the timeline:
Spring 2026 - Judge Rudofsky communicated to White House that he was interested in a vacancy should it open. (There is no reference to either of Arkansas's senators.)
June 17 - Senator Boozman calls Justice Hiland to ask if he is "interested in a potential vacancy" on the Eighth Circuit. (It isn't clear when the White House called Justice Hiland to interview.)
June 19 - White House Counsel called Judge Rudofksy to ask him to interview for Eighth Circuit seat, should it become vacant.
June 29 - Justice Hiland was interviewed by staff from White House Counsel's Office and the Office of Legal Policy of the Department of Justice. (Hiland later described the room as full of "eight Ivy League attorneys.")
July 1 - Judge Rudofsky was interviewed in the Eisenhower Executive Office Building by attorneys from the White House Counsel's Office and from the Department of Justice's Office of Legal Policy.
July 17 - White House Counsel asked Justice Hiland to undergo an FBI background check and prepare the Senate paperwork. (Hiland later said the FBI check was expedited to take about two weeks.)
July 20 - Judge Shepherd formally announced his intention to take senior status upon the confirmation of a successor
August 12 - President Trump called Judge Rudofsky to tell Rudofsky that Trump was going to announce Trump's intention to nominate Rudofsky to the Eighth Circuit. (Sorry for repeating the names over and over again; pronouns would have made this sentence too hard to follow.)
August 12 - The White House Counsel called Justice Hiland. Hiland relayed the conversation: "The president would like to know if you would be interested in a federal district court position." (This nomination presumably would have been for Rudofsky's vacant district court seat.) At that point, Hiland refused, and insisted the White House Counsel tell Trump about Hiland's refusal.
August 19 - Justice Hiland tells the entire story to law students at the University of Arkansas.
September 14 - Judge Rudofsky's nomination was sent to the Senate.
September 30 - The Senate Judiciary Committee held Judge Rudofsky's confirmation hearing.
November 10 - The President withdraws Judge Rudofsky's nomination.
November 10, 2026 - The White House Counsel's Office (not the President) informed Justice Hiland that he would be nominated to the Eighth Circuit and shortly after formally transmitted my nomination to the Senate.
It is pretty clear that the White House wanted Rudofsky all along, and humored Boozman by giving Hiland an interview. Then, Hiland bombed his interview and the White House selected Rudfosky. But Senator Boozman wants his buddy to have a lifetime commission, and the President folded.
I should note that this morning, someone came up to me in the hallway at the Mayflower and said "I'm from Arkansas." I replied, as I often do, "Am I in trouble?" (I also met a Mississippian who gloated that "the Butler did it"; I don't think conservatives from Mississippi should be boasting about their skill in picking the right protein.) Fortunately, my interaction with the Arkansan went better. The person told me that Justice Hiland's voting record makes him indistinguishable from the Democrat Justices on the court. Here is a smattering of cases that the person shared with me:
Standridge, 2025 Ark. 42 (joined liberals in dissent, applying rule that "the primary rule of statutory interpretation is to give effect to the intent of the legislature)
Hause, 2025 Ark. 156 (wrote for majority, joined by liberals - Bronni's dissent, joined by conservatives, points out majority avoids answering the questions presented; issue in the case was a city ordinance used to block Airbnb-like rentals)
Paschall, 2024 Ark. 155 (Arkansas Supreme Court has a long liberal history; without questioning the precedent, in dissent, joined by liberals, Hiland writes that we must afford ballot titles "liberal construction and interpretation")
Boyle Ventures, 2025 Ark. 71 (writing the lead opinion, which the liberals joined or concurred, Hiland again uses legislative intent language, adding that the court "must look at the legislative history, the language, and the subject matter involved")
Eureka Gun and Pawn, 2026 Ark. 1 (joined liberals in dismissing an appeal over a municipality denying a gun shop a conditional use permit; conservatives concurred to explain there was nothing more to do on remand but grant the gun shop its permit)
Hughes, 2026 Ark. 69 (voted with liberals to dismiss an appeal as improvidently granted in a case that the court of appeals ruled that parents who live 15 minutes apart cannot have joint custody; case number is CV-23-749 and the docket shows the liberals, excluding Hiland, originally voted to deny the petition for review, Arkansas's version of cert petition)
I have reason to have hope for Judge Butler. Let's see what Justice Hiland does.
During the first Trump Administration, the blue slip policy was effectively eliminated for circuit court judges. The goal, of course, was to ensure that states with one or more Democratic senators would not be able to block all circuit court nominees. Still, the blue slip policy remained for district court judges through Trump 1.0, the Biden Administration, and Trump 2.0. Does anyone expect the blue slip policy for district court judges to survive if a Democrat wins the White House in 2028 with 56+ Senators? I am doubtful. Indeed, given how Democrats blocked so many U.S. Attorney nominees, I am doubtful the blue slip endures even for that position.
Let's just assume the blue slip policy is eliminated for district court judges. Should the Republicans ever regain power, I propose a thought experiment: actually eliminate the blue slip for circuit judges. As I've noted, circuit court judges belong to the circuit, not the state. It is a mistake to even think of a "home state senator" for a circuit court seat. Of course seats are affiliated with a state by virtue of custom, but nothing in the statute requires it. If Congress wants to assign a seat to a state, they can easily do so. But a Circuit Court Judge decides cases that affect all of the states in a circuit. Indeed, over time, some seats have "switched" between states.
The President could perhaps facilitate that process by making all circuit court nominees "at large." In other words, the President could solicit nominees from candidates in all states in that circuit. If a Fifth Circuit seat opens up, the Senators from Texas, Louisiana, and Mississippi could all make recommendations, and the President could pick the best candidate all around. Likewise, if an Eighth Circuit seat opens up, the Senators from the states between North Dakota and Arkansas can make recommendations.
There are many obvious objections.
First, and foremost, requiring this much consultation can gum up the process. Dealing with one set of senators is a lot of work. Multiplying that by many more can become impossible. But it would be just that--a consultation. The White House would only have to interview the judges that clear the bar. Again, no actual blue slip. I suspect if you rank all of the nominees circuit-wide, few would make the cut.
Second, some senators are very good at picking judges. Opening up the process to so many not-so-good senators, can make the process worse. Indeed, Senators are democratically accountable, while people in OLP and the White House Counsel's Office are largely unknown. I think the response is that very few few Senators are actually good at this process. My goodness, the Senators from Mississippi and Arkansas should be permanently disqualified from picking their friends as judges. I think my recommendation would, on balance, get far more strong judges than the status quo. Of course, the President can give more deference to senators with proven track records of picking judges.
Third, Senators are unlikely to go along with this process, and will not give up their customary prerogative. Again, in my hypothetical, the blue slip is gone for district court judges, so it will be a different world. Indeed, given that district court judges can issue universal vacaturs that affect the entire country, I'm not sure why senators should have that much control. The Senate can of course vote down a nominee, but that would have to be a vote they are accountable for. Would Senators Boozman and Cotton have voted down Judge Rudofsky on the floor? Probably not.
This is just a thought experiment. Fodder to consider for the future. That is, unless the Grand Old Party goes the way of the Federalists and the Whigs.
The first day of the 2026 Federalist Society Convention is in the can. There is much to report.
First, it is good to be back at the Mayflower--well at least good for those of us who made it in. Several years ago, FedSoc decided to move from the Mayflower to the Hilton, a much larger venue. The group had simply outgrown the classic hotel. The downside, of course, is that the Hilton is a terrible hotel. There were assassination attempts on two Presidents at the "Hinkley Hilton." There was no common meeting area, and attendees had to traverse a labyrinth of hallways between sessions. Worse, the rooms were a decade overdue for renovation. We hated it. But most of us were able to fit in.
This year, the registration for the national convention filled up almost instantaneously. I had planned to bring many of my students, but they simply never made it off the waiting list. Longtime members were hanging out in the lobby, hoping to make it off the waiting list, with no luck. I heard that the Harvard FedSoc chapter scheduled a conference for students who could not get in--apparently known as the "shadow docket." People complained to me, as if it was my fault we went back to the small Mayflower because of my carping about the Hilton. I get blamed for everything.
FedSoc will have to figure out what to do for next year, the 40th Anniversary of the National Lawyers Convention. We could always try to check out the new East Wing Ballroom, assuming Judge Leon doesn't enjoin it! The Gaylord Hotel in Maryland could fit everyone, but I am still scarred from the gala dinner there in 2016. I have long been a fan of holding the convention outside of D.C. It would send the exact right message. The times where people in D.C. offices can just stop by for a few panels are long gone. (The sold out registration means only those willing to attend the entire program will be there.) And anyone who wants to speak on the program of this platform should be willing to get on a flight. I would have recommended Texas for the venue, but we will soon be in hostile territory. Perhaps the free state of Florida is the last, best hope.
Second, the format of the FedSoc conference is different. I was so accustomed to the usual rhythm, I feel a bit disoriented. There are no breakout panels. Every panel is a "showcase" panel in the Grand Ballroom. The other rooms are overflow rooms with screens to watch the programming. The schedule is all different. The Rosenkranz Debate was on Thursday afternoon rather than Saturday afternoon over lunch. The Bork and Olson Lectures are both on Friday. And the program ends on Saturday at 2:15, about three hours earlier than usual. Also, instead of having lunchtime panels, all of the rooms on the second floor host smaller, intimate lunches. You could sit at a table with a judge and eight others to chat about an interesting topic. I was at Chief Judge Elrod's table to learn about the Lord of the Rings. (Trigger warning for commenters: I have never read any of those books, I fell asleep during the first movie, and never watched the others.) The discussion was fun! There are some judges who treat their judicial sinecures like Gollum treats the ring. How precious.
I see pros and cons to the new format. On the plus side, this format was far less overwhelming. I routinely felt drained by all of the content. Also, I always felt like I was missing something when I committed to a panel. As a result, I would often bounce between different panels, ensuring that I missed stuff. On the negative side, I enjoyed the ability to pick different panels that may be of interest. I thought the practice groups put on a wide arrange of topical panels. Moreover, there are far fewer speaking slots available with only a few panels each day. These are prime opportunities for up-and-coming members. Still, for this America 250 celebration, I liked the theme in which each panel was framed around a few words from the Declaration. This is an area I have studied for years, and I still learned quite a lot. I don't think we could have kept the Declaration theme going with breakouts.
Third, there is a much stronger focus on students--the lifeblood of Fedsoc. I appreciated that each panel was introduced by a student, rather than the chair of the practice group. During the Scalia dinner, the winners of the Feddie student chapter awards were asked to stand up. I am so proud of the South Texas Chapter, and my students Ryan Lanier and Makayla Arthur, for winning the Hamilton Award for "Most Improved Chapter." Matthew Weinberg, the President of the UCLA chapter during the Percival protest, was given a courage award. And each of the Soc! lunchtime tables was hosted by a student chapter leader.
We can never forget that FedSoc was founded by a bunch of law students. Old people (present company included) need to always give the youth these sorts of opportunities. It wasn't that long ago that I met Will Scharf at the Mayflower, and now he is White House Counsel. I can say the same for so many current judges and other officials that I met when I was student. Indeed, some of the current judges hosted me as a Professor at their chapters! (In 2033, I'll be 49.) Everything that rises must converge.
Fourth, the decoration of the Mayflower and the Marriott Marquis ballroom was top-notch. There is red, white, and blue bunting all over the Grand Ballroom. The backdrop of the Scalia dinner was expertly done, topped off with George Washington's bible! (No, we couldn't touch it.) The Marine Corp band played during the processional. The Madison Club reception was no longer crammed into a tiny, dark, and noisy tent. It was held in a spacious atrium at the Marquis. Moreover, Madison Club members have access to Edgar's as a lounge to get food and snacks during the day. What a really, really smart idea. This sort of attention to detail matters, at least to me.
Fifth the security is intense. Registration is now available on the lower level. No one is allowed into the hallway without showing credentials and passing through a body scanner. Large bags are banned and smaller bags are searched. The busses from the Mayflower to the Marquis were swept for security, and there was a National Guardsman on board. It is a sad commentary that we have to take these precautions. But with an actual assassination attempt against Justice Kavanaugh, I think we have to accept these costs. (During the Scalia Dinner, Justice Alito praised the courage of Justices Kavanaugh and Barrett for joining the Dobbs decision, knowing what risks that could bring.)
Sixth, I was sort of expecting the vibe at the Mayflower to be grim in light of last week's election. I remember how the 2008 convention felt something like a funeral. I think the mood was mostly one of shock. There are efforts in play to figure out how to deal with the loss of Attorneys General in Texas, Ohio, Iowa, and Kansas. Other states will have to pick up the heavy lifting. Lawyers in Austin can find safe refuge in Baton Rouge, Jackson, St. Louis, Nashville, Tallahassee, Montgomery, and other cities. I am currently researching the laws of intervention on both the plaintiff and defendant side, confessions of error in criminal cases, as well as standing for state legislators and the state senate. The agenda has shifted.
Seventh, one thing I love about the National Convention is that business is conducted right in the hallways. There is a strong sentiment to do everything we can to confirm the remaining judges. These aren't quite the midnight judges of the outgoing Federalist Party, but we are in a similar mindset. There is a universal agreement that Judge Rudofsky was screwed. I second everything my friend Rob Luther wrote in this op-ed in the Arkansas newspaper. And there is a concerted effort to help Elliot Gaiser get across the finish line. What a complete waste if this seat is left for James Talarico to fill. Talk about cutting off your nose to spite your six-gendered face. And then there's Todd Butler. Had the election turned out differently, things may have gone differently. But he is on the path to confirmation. I hope Butler proves me wrong--and he will have a quick opportunity to do so. The January en banc siting has a huge 922(g) case and a challenge to Texas's social media law. As for the new Eighth Circuit nominee, Cody Hiland, he have to prove a lot of people wrong.
Degradation (started 9:53 AM Nov 12, 2026)
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The court reverses its precedent, dating back to 1846, that held such revival unconstitutionally restricted the defendant's "vested rights" not to be sued, which had been created by the earlier statute of limitations.
From H.C. v. Nesmith, decided last week by the Arkansas Supreme Court, in an opinion by Justice Nicholas Bronni, joined by Justices Courtney Rae Hudson, Cody Hiland, and Rhonda Wood (note that other state courts are split on this question, see, e.g., this post and this one):
This case presents a particularly important question: Can the General Assembly extend the statute of limitations in cases where it has already run and afford child-sex-abuse victims an opportunity to hold their abusers accountable? … [T]his court's vested-rights precedent … categorically bars "expand[ing] a limitation period so as to revive a claim already barred." …
Revisiting our vested-rights precedent, we conclude that it lacks any constitutional basis and, as such, cannot stand. We therefore overrule our prior cases prohibiting the legislature from expanding a limitations period and thereby reviving time-barred claims [and] uphold the Vulnerable Victims of Sex Abuse Act against Nesmith's constitutional challenge ….
[Under] our vested-rights precedent …, "the legislature cannot expand a statute of limitation so as to revive a cause of action already barred." That doctrine rests on the assumption that when a civil statute of limitations runs, a tortfeasor has a vested right to the property that could have been the subject of a potential claim….
[But] our cases do not cite any constitutional basis for that doctrine. Far from it, when we first employed that principle to strike down legislation in 1933, we instead relied on a single legal encyclopedia published in 1915 assuring us that—at that sole moment in time—most jurisdictions held that legislatures could not revive a claim after a statute-of-limitations defense had run. Or, perhaps more generously, we relied on that legal encyclopedia plus an unreasoned extension of this court's prior case law suggesting that to retroactively alter an applicable statute of limitations, the legislature needed to speak clearly and show it had considered the consequences. That approach, unbound by actual text or constitutional history, is not consistent with our constitutional role….
To be sure, some later cases—perhaps recognizing that our earlier cases do not cite any constitutional language supporting our vested-rights precedent—suggest that precedent rests on due-process principles…. [But] that label does not work because the expiration of a statute-of-limitations period does not confer a property right—or any other right for that matter.
From Hinckley v. Univ. of Wyoming, decided Aug. 28 by Judge Scott Skavdahl (D. Wyo.), but just recently posted on Westlaw (appeal pending):
{Unless otherwise noted, these facts are uncontested.} Plaintiff … alleges that she was wrongfully terminated from her employment as a Marketing and Communications Specialist I at University of Wyoming because of her gender and in retaliation for protected workplace conduct….
Shortly after starting in her new role, Plaintiff began to display job performance issues, including being late to work, treating others poorly, and making mistakes. Some of these performance issues may have been due to the lack of oversight and direction supplied by [Marketing Manager] Cattelan, but Cattelan was not Plaintiff's supervisor. Nevertheless, Plaintiff made numerous mistakes that were not a result of Cattelan's lack of guidance or oversight.
From Commonwealth v. Ashford, decided two weeks ago by a Pennsylvania appellate court, in an opinion by Judge Mary Murray, joined by Judges Timika Lane and Kate Ford Elliott:
The trial court summarized the evidence adduced at Appellant's jury trial …
On February 11, 2023, … [(Ms. South)] was carjacked in Reading City, Berks County, Pennsylvania, by three men in black balaclavas[, one of whom] brandish[ed a] handgun[ ] with blue laser sights….
The evening prior, on February 10, 2023, a video [("the video" or "the YouTube video")] was uploaded to the online video sharing platform[,] YouTube[,] depicting Appellant and [two] other men in black balaclavas handling and displaying various firearms with blue laser sights, including a purple Glock handgun. [The video was admitted into evidence and played for the jury at trial, albeit without sound.] The video itself is undated, though Appellant appears to be around the same age [in the video and at the time of the offense,] and is depicted wearing the same sweatshirt in which he was apprehended ten days later.
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