The Volokh Conspiracy

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

The Volokh Conspiracy

Democracy

NYU Democracy Project Article on How to "Strengthen Democracy by Empowering People to Vote with their Feet"

It is part of their series of essays addressing issues facing American democracy.

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Today, the NYU Democracy Project published my article "Strengthen Democracy by Empowering People to Vote with their Feet." It is part of their "100 Ideas in 100 Days" series presenting a wide range of viewpoints on how to address challenges facing American democracy. Here are some excerpts:

A specter is haunting American democracy: widespread voter ignorance. The specter is not a new one, by any means. But it is exacerbated by growing political polarization, which has accentuated the tendency of many voters to be highly biased in evaluating the information they do know. The problem of political ignorance is closely linked to another shortcoming of the ballot box: the near-powerlessness of the individual voter, who has only an infinitesimally small chance of affecting policy. There is no easy solution to these interlinked challenges. But they can be mitigated by empowering people to make more decisions by "voting with their feet," instead of at the ballot box.

Decades of survey data…. show that most voters often don't know even basic facts about government and public policy, such as the names of the three branches of government (most polls find less than half of adults can name all three), which officials are responsible for which issues, or the biggest expenditure items in the federal budget. Many studies also show that most voters often do a poor job of evaluating the political information they do learn…. This terrible state of affairs is not the result of stupidity or lack of information, but of generally rational behavior on the part of most voters: a combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation)….

While ignorance and bias have been a particularly severe problem on the right in recent years, they are not limited to any one side of the political spectrum. There is plenty of ignorance and bias among left-wing voters, as well…

There is no simple solution to the twin problems of political ignorance and the powerlessness of individual voters. But one that has great potential is empowering people to "vote with their feet." People can vote with their feet between jurisdictions in a federal system, choosing which government policies they wish to live under. They can also do so through international migration….. Foot voting can also occur in the private sector, when people use it to provide services traditionally associated with state and local governments. When people vote with their feet, they make individually decisive choices, not ones that have almost no chance of making a difference. For that very reason, foot voters generally seek out more information and do a better job of evaluating it than ballot box voters. If you are like most people, you probably spent more time seeking out evidence the last time you decided what television set to buy than the last time you decided who to vote for in any election. That's because the decision about the TV set is one that has a high chance of being decisive, while that at the ballot box has almost no chance…..

There is much that can be done to enhance foot voting opportunities. Decentralizing more functions of government to the state and local level would create more space for policy diversity on a variety of issues and open up more opportunities for foot voting. In recent years, mobility has decreased due to widespread exclusionary zoning, which has made it difficult or impossible to build new housing in response to demand in many places where Americans would like to move – especially the poor and disadvantaged. We can break down that barrier by ending exclusionary zoning, or at least curtailing it through a combination of litigation and political action.

We can also enhance foot voting by leaving more issues to the private sector. Foot voting between private sector organizations – such as private planned communities – can enhance choice and lower moving costs, even as compared to foot voting between jurisdictions in a federal system. Limiting the scope of government can also mitigate political ignorance by reducing the range of issues rationally ignorant voters have to pay attention to, thereby ensuring that their limited knowledge is not so overstressed.

Finally, we can expand foot voting and political freedom by breaking down barriers to international migration, thereby enabling millions more people to escape poverty and oppression…..

I develop many of these ideas in greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom.

The other essays in the 100 ideas series can be found at the Democracy Project website. Contributors include a wide range of experts in various disciplines, and a with a wide range of viewpoints.

Should A Federal Judge Be Remembered For "Champion[ing] the Underdog and the Uncelebrated"?

I would think judges should be remembered for treating all parties equally under the law.

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Do you remember Judge Robert Pratt from the Southern District of Iowa? Probably not. In December 2020, he made headlines by giving an interview with the Associated Press about President Trump's pardons:

"It's not surprising that a criminal like Trump pardons other criminals," senior U.S. District Judge Robert Pratt of the Southern District of Iowa told The Associated Press in a brief phone interview Monday. In a bit of humor, he said: "But apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey."

As I noted at the time, Pratt also made a gratuitous comment about the Emoluments Clauses--an issue that was then-pending before the Supreme Court:

He noted that the framers of the U.S. constitution sought to stop U.S. officials from "enriching themselves" while in office by banning gifts and payments from foreign powers. Ongoing lawsuits have accused Trump of illegally profiting off the presidency through his luxury Washington hotel. A White House spokesman declined comment on Pratt's remarks.

I observed:

What is wrong with federal judges? Trump derangement syndrome has permeated Article III. Judge Pratt should follow the lead of Judge Adelman, and apologize before he is sanctioned.

I suppose the one plus side of this incident is that only one judge--so far--was willing to talk to the press. I hope there are not more. Judges should never, ever, talk to reporters.

Well, he would not apologize on his own. Chief Judge Lavenski Smith found there was "cognizable misconduct." Pratt accepted that finding, and apologized for his "inappropriate partisan statements."

I largely forgot about Judge Pratt, until I noticed this story about his obituary.

An obituary for Pratt, who was born May 3, 1947, described him as a man who "championed the underdog and the uncelebrated" throughout his career in public service.

Obituaries are usually written by family and friends who might not be tuned into the nuances of judicial ethics. Then again, Judge Pratt demonstrated through his own comments such a lack of discretion.

Should we celebrate judges for championing underdogs and uncelebrated? Is that their job? I am not a fan of the phrase "equal justice under law," but it at least gets the point across that lady justice wears a blindfold. Everyone should get a fair shake before the court. Still, much of the caselaw from the Warren Court requires putting a thumb on the scale in favor of the "underdog." The entire point of the Footnote 4 dictum from Carolene Products is that courts can reinforce the representation of groups that lack access to the political channels. Yet another reason to get rid of Footnote 4 altogether. I hope the Court does not reaffirm it any further in Hecox, the transgender cases.

I recently re-watched Justice Thurgood Marshall's farewell press conference after he announced his retirement. I included this excerpt in my Civitas column on the SCOTUS NDA:

 In 1991, Justice Thurgood Marshall held an infamous press conference after he announced his retirement. At the time, the conservative Judge Clarence Thomas was viewed as a potential replacement for the liberal Marshall. A reporter asked Marshall if President George H.W. Bush had an obligation to name a minority justice. Marshall replied that "I don't think that should be used as an excuse" for "picking the wrong negro."

Well, that part was a bit cringey. But other parts were light-hearted, and even refrehsing. Another reporter asked if Marshall worried that his replacement would undermine the Justice's civil rights legacy. Marshall's answer (I am paraphrasing) was that when he became a federal judge, he was no longer an advocate, and no longer represented any clients or cause. He simply decided the cases. Therefore, Marshall said, it wasn't his concern what would happen to his legacy. I was touched by Marshall's comments, which I thought were exactly right. Justice Ginsburg took a very different approach with her final words. She said, "My most fervent wish is that I will not be replaced until a new president is installed."

Hallucinating Customer Service Hell

A depressing two-hour call with XFinity Chatbots.

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Ready or not, AI is here. Even when you don't know it. I recently bought a WiFi extender from XFinity. The $125 device was marketed as a way to extend the signal of my wireless network to the upstairs, where the connection sometime drops. I plugged it in, and followed all of the instructions, several times, but it would not connect. I realized I would need help, and braced for an unpleasant experience.

I dialed the XFinity customer service number. After a brief wait (the first sign something as amiss), I was connected with Agent #1, who started asking me for my information, which I provided. Agent #1 sounded cheerful enough, but there was something odd about her voice. She stuttered, stopped mid-sentence, said words that made no sense, and wouldn't answer any of my questions. Agent #1 was a chatbot. Agent #1 then said she had to connect me to another department.

Agent #2, another cheerful person with a different voice picked up. Yet Agent #2 asked me for my information with the same exact questions as Agent #1. Another chatbot. Agent #2 tried very hard to help me. I think this AI was programmed for obsequiousness. Agent #2 said she was trying to reset my router, or something like that. Every 30 seconds or so, she would come back on the line and say "Joshua, please hold for a few more seconds, I am so thankful for your patience." She would repeat the same message, verbatim, over and over again. No human being would ever communicate in this fashion. I felt like I was in some strange doom loop. Once the reset failed to solve the problem, Agent #2 said she was starting some other process. I asked her what the process was, but she wouldn't tell me. Every minute or so, she would come in and update me on the percentage: 30%, 40%, 50%, 60%, 70%, and 80%. I asked Agent #2 again what she was doing, and she refused to tell me. I think there was some kind of hallucination. She was making up some solution to help me that wasn't real. Then the call disconnected. I was furious.

Miraculously, XFinity called me back. I was stuck with Agent #3, who again asked me for my information with the same script. She connected me with Agent #4. Agent #4 was unable to determine what Agent #2 did, I'm convinced, because the entire experience was a hallucination. Agent #4 asked to reset the modem, and go through the same steps Agent #2 did. At this point I started having fun and asked questions. I asked Agent #4 what her name was. I am fairly certain she gave a different name then when the call began. I asked her when she is calling from. She ignored the question. At that point, the chatbot seemed to sense I wanted to be conversational, so she asked me questions. Agent #4 asked if I had any weekend plans. Then she asked if I have any hobbies. It was like the most awkward date I could imagine. (I cannot fathom how people develop romantic relations with chat bots.) Agent #4 then said that the system would take an hour to fix, and I would receive a text message in an hour to confirm it was fixed. I asked what exactly needed an hour to fix. She couldn't tell me. I think this was another hallucination just to get me off the phone. Does Xfinity actually program these outcomes? The call disconnected.

One hour later, my extender still did not work. I received the text message, and indicated the problem remained. Agent #5 called, and offered to set up a visit from a technician. Hallelujah! I gladly agreed. I was desperate to talk to an actual human being.

A few days later, an XFinity agent arrived during the scheduled window. He quickly determined that the line to my house had a weak signal, and installed a new Gateway (router). But the extender I bought was defective. He told me to return it, and buy a Google mesh extender, which was cheaper and more effective. I immediately followed his advice.

Alas, I had to go back to the Chatbot to return the broken extender. This time I tried the text interface. I could not fathom calling back to AI agent hell. Agent #6 told me told I could bring the device to any XFinity store to return it. I asked Agent #6 if XFinity could provide a prepaid UPS label. The chatbot would provide a UPS label for the Gateway (which I did not want to return) but not for the extender. I asked again about a UPS label. Agent #6 told me (I kid you not) to just bring the box to UPS and they would take it. Of course this wouldn't work. UPS can't just know what to do. Another hallucination. [Update: Two readers wrote in that UPS can scan the bar code on the equipment and know what to do. I am skeptical, but I'll give it a try.]

To hell with it. I will just schlep to the XFinity store. Hopefully, there will be a person who can help me.

I think back to the creepy 1996 comedy, The Cable Guy with Jim Carrey. Cable Guys were notorious for being rude, late, and unhelpful. With the benefit of hindsight, I will take the cable guy over an AI chatbot any day.

Free Speech

Security Clearance Denied for Past Child Porn Downloading; Hearing Officer Unmoved by Claims That Behavior Stemmed from Since-Resolved Gender Dysphoria

"Applicant believed she was pre-adolescent or during adolescence when she was downloading images of children on her computer in 2013 to 2014 even though she was chronologically about 30 years old."

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From a very long security clearance opinion released Jan. 30 by the Defense Office of Hearings and Appeals (DOHA), but just posted on Westlaw (note that the guidelines having to do with denying security clearances based on sexual behavior list as a mitigating factor that "the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature"):

Applicant is a 42-year-old senior principle cyber software engineer systems administrator who has worked for the same defense contractor for about nine years…. She has three children between the ages of 10 and 15 and maintains a friendly relationship with her ex-spouse since their amicable divorce in 2022….

An important element is Applicant's life is her history of gender dysphoria. She said:

My gender dysphoria is something that I feel like I always struggled with, it's something that I can trace back even into adolescence, and pre-adolescence, an overall incongruity with my sense of self. But it's not something that I ever really had words for prior to about 2015, [which] is when I really started looking into it. And in 2016 I was working with a therapist, and that's when I kind of had a breakthrough, and recognized that I was transgender, and that a lot of what I was dealing with was gender dysphoria, the notion that my sense of [whom] I was disconnected from the body, and the way that I was perceived by society around me. I'm not sure how much deeper we necessarily want to get into that. But I did pursue further treatment, including both psychological therapy, medicine, and eventually surgeries.

[The government] alleges under the sexual behavior guideline that Applicant downloaded and viewed thousands of pornographic images of children from about 2013 to at least about 2014 while working for DOD at a base outside the United States. [The government] alleges under the sexual behavior guideline that she was investigated for these actions and warrants were issued for her electronic devices. She left the job before the investigation could conclude…. [There appears to be no discussion of any criminal prosecution. -EV]

Applicant said her interest in the pictures she downloaded was "an aesthetic interest, [she] pursued as [she was] attempting to resolve [her] gender status as opposed to a prurient interest." She explained why she utilized the dark web as follows:

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Free Speech

Carnegie Mellon Must Provide Discovery About Relationship with Qatar, in Ex-Student's Lawsuit Alleging Anti-Semitism

The student was explaining the concept of an eruv, a feature of certain Jewish neighborhoods, in class to an architecture professor, who allegedly said the time the student had spent on project "would have been better spent if [Ms. Canaan] had instead explored 'what Jews do to make themselves such a hated group.'" …

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Map from Wikipedia.

The case is now in discovery, and in yesterday's Canaan v. Carnegie Mellon University, Judge Scott Hardy (W.D. Pa.) allowed a considerable amount of discovery about CMU's relationship with Qatar, where it has a major campus. [UPDATE: For more on the underlying substantive dispute, see this post and this post.] The court concluded the requested discovery was generally relevant (this is just an excerpt from a very long opinion):

Qatari interests partially fund the position of Elizabeth Rosemeyer, because she serves both CMU's Main Campus and its Doha campus as Assistant Vice Provost for DEI and Title IX Coordinator…. Rosemeyer is an integral participant in Canaan's case. She is referenced repeatedly in the Complaint, notably as one of several CMU officials specifically responsible for enforcing CMU's anti-discrimination policies and protecting students from discrimination and harassment. Importantly, Canaan specifically alleges that Rosemeyer aggressively discouraged her from filing a formal complaint, which would have triggered an investigation of Professor Arscott's purported discriminatory mistreatment of her, as well as of the DEI Office's failure to address the misconduct and of Professor Issaias's purported retaliation.

Although CMU downplays any possible Qatari influence in its partial funding of Rosemeyer's position by averring that she was hired by its then Vice-President of Operations and not by any Qatari donor, entity, or representative, such point merely generates, at most, a potential factual dispute about whether or to what extent Qatari funding of Rosemeyer's position and Qatari "consultation" during CMU's identification, review, and selection of Rosemeyer may have influenced Rosemeyer's handling of Canaan's complaints of discrimination, harassment, and retaliation….

Importantly, another relevant connection between Canaan's Title VI claims and CMU's Doha campus is that at least three CMU DEI-related officials involved in Canaan's complaints of antisemitism had work-related visits to CMU's Doha campus. Wanda Heading-Grant, CMU's Chief Diversity Officer, visited the Doha campus twice, once to provide training and education programs regarding "civility, bias, discrimination" and "belonging and inclusion, leadership [and] listening" along with a "couple of other members from [her] office" and a second time for a "professional development engagement." Mark D'Angelo¸ another senior CMU administrator responsible for antidiscrimination efforts, similarly visited the Doha campus for such training. D'Angelo describes the purpose of his visit as follows:

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Harassment

Does Light Consist of "Object[s]"?

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In HAC v. ER, decided in August by the Michigan Court of Appeals (Judges Sima Patel, Michael Riordan, and Brock Swartzle), petitioner had tried to get personal protection orders against his neighbors; the trial court rejected petitioner's claims, and the court of appeals affirmed.

Under the relevant Michigan law, such orders are generally issued when there's a finding of "stalking," which is defined as "continuing harassment," which in turn covers certain kinds of "continuing unconsented contact." Unconsented conduct is defined to include, among other things, "Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual."

Petitioner alleged various incidents of alleged harassment; the court mostly concluded that he hadn't introduced enough evidence supporting each, but the analysis as to one category of incidents struck me as more legally interesting:

[T]he petition against ER [also] alleged that respondents "installed powerful spot lights that are aimed [at] [petitioner's] house," causing petitioner to "[b]lack out my windows so [he] can [s]leep." In his petition against AR, petitioner alleged that the spot lights "are aimed at [his] house." Petitioner testified that the exterior flood lights have shined on his home for the past five or six months before he filed the petitions. Specifically, the flood lights shine toward the windows of his home during the nighttime, or "[a]ll night, from dark." On at least one occasion, petitioner texted respondents to cease shining the lights toward his home. On another occasion, petitioner asked them in-person to "direct [the lights] away from [his] house."

At an unknown time and date, a "zoning officer" visited petitioner's house after petitioner complained that respondents were violating the lighting ordinance. Petitioner stated that the lights were still shining on his home as of the night of February 22, 2024. Several photographs were admitted into evidence, which showed the lights at respondents' house, how the lights shine on petitioner's home, and poster board and cardboard covering petitioner's windows….

[P]etitioner contends that the light from respondents' flood lights "consist[s] of 'packets of energy' which, while different in kind than a physical object, is no less an 'object' than any other object." However, except for providing one dictionary definition of "light," petitioner offers no other authority or rationale in support of this argument, so we consider it abandoned. In any event, we agree with the trial court that such allegations, if true, might constitute some type of "ordinance violations" but do not necessarily rise to the level of requiring a PPO….

The key here, I think, isn't that light isn't an object as a matter of physics; rather, it's not an object as a matter of law.

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"The Fallacy Fallacy"

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An excerpt from Maarten Boudry (Persuasion):

My doubts [about the value of focusing on logical fallacies] began when I was still in academia, teaching critical thinking to philosophy students and science majors alike. Fallacies are a favorite chapter in such courses. In some ways, they are ideal teaching material: they come in tidy lists and seem easy to apply. Many trace back to Aristotle and still parade under their Latin names—ad hominemad populumad ignorantiamad verecundiam (better known as the argument from authority), the slippery slope, affirming the consequent, and so on.

So I dutifully taught my students the standard laundry list and then challenged them to put theory into practice. Read a newspaper article or watch a political debate—and spot the fallacies!

After a few years, I abandoned the assignment. The problem? My students turned paranoid. They began to see fallacies everywhere. Instead of engaging with the substance of an argument, they hurled labels and considered the job done. Worse, most of the "fallacies" they identified did not survive closer scrutiny.

It would be too easy to blame my students. When I tried the exercise myself, I had to admit that I mostly came away empty-handed. Clear-cut fallacies are surprisingly hard to find in real life. So what do you do if your professor tells you to hunt for fallacies and you can't find any? You lower the bar. To satisfy the assignment, you expand your definition….

In 2015, I published a paper in the journal Argumentation with two colleagues arguing that fallacy theory should be abandoned. Here is its crux: every so-called fallacy closely resembles forms of reasoning that are perfectly legitimate, depending on the context. In formal terms, good and bad arguments are often indistinguishable. Worse, there is almost always a continuum between strong and weak arguments. You cannot capture that gradient in a rigid formal scheme. As my friends Hugo Mercier and Dan Sperber succinctly put it in The Enigma of Reason: "most if not all fallacies on the list are fallacious except when they are not." …

Read the whole thing here.

AI in Court

Defendant's Own AI Legal Research Isn't Protected by Attorney-Client Privilege

"Because Claude is not an attorney, that alone disposes of Heppner's claim of privilege."

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From U.S. v. Heppner, handed down today by Judge Jed Rakoff (S.D.N.Y.):

At a pretrial conference in this matter held on February 10, 2026, the Court … granted from the bench the Government's motion for a ruling that certain written exchanges that defendant Benjamin Heppner had with a generative artificial intelligence ("AI") platform were not protected from Government inspection by either the attorney-client privilege or the work product doctrine. This Memorandum sets forth the reasons for the Court's ruling….

[T]he indictment charges that Heppner defrauded [GWG Holdings'] investors out of more than $150 million by making false representations about, and causing GWG to enter into undisclosed self-serving transactions concerning, two privately held companies that Heppner controlled, Beneficient Company Group, L.P. and Highland Consolidated L.P.

In connection with Heppner's arrest on November 4, 2025, agents with the Federal Bureau of Investigation executed a search warrant at Heppner's home and seized numerous documents and electronic devices. Heppner's counsel later represented to the Government that among the seized materials were approximately thirty-one documents that memorialize communications that Heppner had with the generative AI platform "Claude," which is operated by the private company Anthropic.

According to Heppner's counsel, the documents represent communications between Heppner and Claude that took place "in 2025, after Mr. Heppner had received a grand jury subpoena [and] after it was clear with discussions with the government that Mr. Heppner was the target of this investigation." Without any suggestion from counsel that he do so, Heppner "prepared reports that outlined defense strategy, that outlined what he might argue with respect to the facts and the law that we anticipated that the government might be charging." Thus, counsel asserted, Heppner "was preparing these reports in anticipation of a potential indictment."

In exchanges with the Government, Heppner, through his counsel, asserted privilege over these documents (the "AI Documents"), arguing that (1) Heppner had inputted into Claude, among other things, information that Heppner had learned from counsel; (2) Heppner had created the AI Documents for the purpose of speaking with counsel to obtain legal advice; and (3) Heppner had subsequently shared the contents of the AI Documents with counsel. Heppner's counsel conceded, however, that counsel "did not direct [Heppner] to run Claude searches." …

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Free Speech

No Pseudonymity for Man Suing Harvard Alleging Jews Aim "to Exterminate or Enslave All Non-Jews"

The plaintiff claims he was denied admission to Harvard Business School, apparently because he is a "non-veteran, non-queer, non-Jewish White male applicant[]."

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From Judge Allison Burroughs' Feb. 2 decision in Doe v. President & Fellows of Harvard College:

While it is within the Court's discretion to allow a party to proceed under a pseudonym, "[a]s a general rule, the presumption is that all judicial proceedings remain open to the public." "The presumption against pseudonymous litigation gives way only in 'exceptional cases.'" The analysis is as follows: "1) there is a presumption in favor of disclosure; 2) a party may rebut the presumption by showing that a need for confidentiality exists; 3) the court must balance the need for confidentiality against the public interest in disclosure." Alleged risks of harm that are speculative in nature, generalized, or without corroboration do not justify anonymity.

Having considered Plaintiff's Motion, the Court finds that Plaintiff has not rebutted the presumption in favor of disclosure. Plaintiff states that the litigation involves sensitive personal information regarding Plaintiff's ethnic heritage and academic records, and Plaintiff's identification would risk causing Plaintiff "unusually severe" professional, financial, and physical harm. The alleged risks that Plaintiff sets forth in his motion are without corroboration and do not rise above a level of mere speculation. Further, lawsuits often "implicate substantial amounts of private information," and if warranted going forward, the Court may employ tools such as redacting or sealing documents to manage privacy concerns that arise during the litigation. In light of the foregoing, Plaintiff's Motion, is DENIED.

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Politics

New in City Journal: Let's Fix Our Federal Holiday Schedule

How I would rearrange the current calendar, which makes no sense.

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I recently became an adjunct fellow at the Manhattan Institute. The flagship journal of MI is City Journal, where I will contribute on a regular basis. For my inaugural essay, I decided to do something totally different, that is only tangentially about the law.

I have long had problems with how the calendar of holidays is structured. These holidays were not organized in a single plan, but instead were added in a piecemeal fashion over the years. Professionally, I see the difficulties of optimizing the law school academic calendar. I usually teach on Mondays. As a result, there is a gap for both the fall and spring semesters with Labor Day and MLK Day, respectively, which requires making up a class at an irregular time. Some years ago, I tried to move Labor Day till later in the semester to give students another reading day before exam; my motion failed. And, as a parent, I am repeatedly frustrated with how many days my kids have off from school. It is an abomination to hold back-to-back half days--all the frustration of getting kids ready in the morning, only to have to pick them up a few hours later. Anyway, calendars could improve. And one way to start is by realigning the holidays.

My essay is titled, Let's Fix Our Federal Holiday Schedule.

Here is the introduction:

At present, the United States has 11 federal holidays, accumulated over the course of two and a half centuries. Some of the current dates make sense; others don't. As a whole, these national holidays create complexities for Americans' school, work, and vacation calendars. We should rearrange this lineup.

Three principles guide this endeavor. First, it must be bipartisan. For better or worse, some holidays have become more associated with the Left and others with the Right. Reform will require give and take from both sides.

Second, the holidays should make it easier to establish regular schedules in schools and workplaces. One holiday in close proximity to another disrupts continuity.

Third, under the current calendar, several months have no holidays while other months have several. As any school child will tell you, it's not fair that six holidays are crammed together in the cold months, while only one holiday is in spring. As any school administrator will confide, Labor Day and MLK Day both make scheduling classes difficult. The holidays should be spaced out more evenly.

A few adjustments could create a calendar that garners bipartisan support, simplifies scheduling, and spaces out time for reflection and relaxation.

And here is where I ultimately wind up:

The resultant calendar: New Year's Day on January 1; Martin Luther King Jr. Day on the first Monday in February; President's Day on the first Monday in March; Labor Day on the first Monday in May; Memorial Day on the last Monday in May; Juneteenth on June 19; Independence Day on July 4; Constitution Day on September 17; Veterans Day on the third Monday in October; Thanksgiving on the fourth Thursday in November; and Christmas on December 25.

This plan checks all the boxes.

As is the case with many of my writings, the purpose here is to stimulate discussion. I'm sure there are other, better proposals. If you think of something, please drop me a line!

The American Constitution Society Still Does Not Have A Competing Theory Other Than "Antitrumpism"

After half a century of great debate, the originalists are still not tired of winning.

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Jeffrey Toobin had a remarkable column in the New York Times, titled "The Plan for a Radically Different Supreme Court Is Here." What is that plan? Read the article from top to bottom, and you won't find an actual plan. Not even the concept of a plan.

The ostensible purpose was to suggest that the American Constitution Society could be a viable alternative to the Federalist Society. There is glowing praise of ACS's newish President, Phil Breast. This column follows another glowing profile of Brest by Carl Husle in the Times in October. (I don't recall any such similar fanfare for Sheldon Gilbert, who has effortlessly taken the helm of FedSoc.) Yet if you peel a few layers deep off Toobin's lede, you realize precisely why ACS can never rival FedSoc. It is not because of lack of funds or lack of power, but due to a lack of ideas. In short, despite their best efforts, there is no viable alternative to originalism.

Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. "We have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics," he told me. "And it can't just be, 'We're not originalists' in the same way that A.C.S. can't just be, 'We're not the Federalists.' That's not how I view the organization, and that's not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there."

What is that "affirmative" theory? Brest has no clue. The only viable strategy is "antitrumpism."

For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump's record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building "a bulwark against overreach by the Trump administration and the Roberts court." This is understandable, perhaps even wise, because in the view of Mr. Brest's universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.

So much for a ruling for the ages.

How does that approach translate to judicial philosophy? In other words, what would a future Democratic President look for in judges? Brest also doesn't know:

Mr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. "As an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward," he said.

As for what those judges will stand for — as opposed to what they stand against — Mr. Brest has no clear answer. He, along with other Democrats, will need one.

I've lost count of the number of law review articles that attack originalism and textualism. Frankly, I've stopped reading them because they don't matter anymore. There was an ideological battle that was waged and won. And until the left can put forward a viable theory to compete, originalism will remain the dominant jurisprudential force. As Justice Scalia would say, FedSoc doesn't need to outrun the bear, we only need to outrun ACS. After half a century of great debate, the originalists are still not tired of winning.

Free Speech

No Retroactive Pseudonymization in Federal Court Under California "Safe at Home" Program

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From a decision last week in Smith v. Solomon, by Judge André Birotte Jr.:

Plaintiff files the [application] in a case voluntarily dismissed on January 28, 2026. Plaintiff now requests an order directing the "immediate redaction and removal of all personal identifying information ("PII")—including Plaintiff's legal name, address, or any identifying data" from PACER, PacerMonitor, CourtListener, any automated third-party docket-aggregation websites, any public-facing pages generated by the Court, or any publicly viewable filings in this matter. Plaintiff argues that the appearance of his full legal name in court documents threatens his safety, privacy, and well-being.

First, Plaintiff asks the Court to redact certain documents pursuant to Federal Rule of Civil Procedure 5.2. As an initial matter, it is not clear to the Court that any of the information Plaintiff seeks to have redacted falls within the scope of information that may be redacted under Federal Rule of Civil Procedure 5.2. Moreover, as stated in the Local Rules, "[i]t is the responsibility of the filer to ensure full compliance with the redaction requirements of Federal Rule of Civil Procedure 5.2." Plaintiff himself filed the information at issue without redactions. Thus, the Court cannot retroactively redact any information.

Next, Plaintiff argues the Court has the authority to protect litigants that file cases under pseudonyms. While the Court does have authority to permit a party to file under a pseudonym, the Court will exercise that authority only once a moving party has met their burden pursuant to a motion to use a pseudonym. The "normal presumption in litigation is that parties must use their real names." To overcome this presumption, a moving party must demonstrate that the "party's need for anonymity" outweighs the "prejudice to the opposing party and the public's interest in knowing the party's identity." Again, Plaintiff has not filed any motion to file the case under pseudonym nor has he made any argument overcoming the presumption against anonymity in his [application]….

Plaintiff's [further] argument that his information should be redacted pursuant to the California Safe at Home confidentiality program is also not persuasive. The California Safe at Home program is administered by the California Secretary of State's Office and offers a substitute mailing address for certain individuals who are in fear for their safety. While the Court recognizes the value of this program and Plaintiff's membership, he has not provided any explanation as to why this program requires or merits retroactive redaction of documents filed by Plaintiff himself.

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AI in Court

"One Would Expect … Attorneys Believe They Bring Some Level of Value to Their Clients Beyond That of a Machine"

A magistrate judge recommends a $10K sanction for a lawyer's repeated incorrect citations, and has some things to say about the pattern he has been seeing in his own court.

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From Thursday's Report and Recommendation in Virgil v. Experian Info. Solutions Inc. by Judge Mark Dinsmore (S.D. Ind.):

[T]his is the third time in the last year that the Undersigned has faced a similar issue. We live in a world of rapid technological advancement. A world in which many individuals have concerns that their jobs may be replaced by increasingly educated machines.

The practice of law is not just a job, it is a profession; a profession with standards and ethical responsibilities. One of the most troubling aspects of these situations is the lack of respect for the profession, and the lack of respect by the offending attorneys for their own personal capabilities, that these situations represent.

One would expect that, when individuals choose this profession, they do so in part because they believe they have some talent for the work. One would expect that, after several years of law school, and more years of practice, those attorneys believe they bring some level of value to their clients beyond that of a machine. Yet these situations represent an abdication of those personal and professional responsibilities to those very machines, which to date have not proven themselves up to the task.

While the Undersigned has long recognized the value of the proper and efficient use of technology, my confidence in the profession and the generations of lawyers who have shaped it prevents me from believing that it can ever be replaced by a machine, no matter how advanced. However, the preservation of that profession requires ever increasing levels of diligence and vigilance from each and every attorney and judge involved in the process. Absent that, someday clients may well be better off accepting advice from a machine as opposed to a careless and inattentive attorney. That is a day the profession of law must not allow to come to pass….

Some more details on the particular transgressions in the case:

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