The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

Law School Recommended Against Student's Bar Admission, Partly for Alleged "Celebration" of Charlie Kirk Assassination in Law School Clinic

The student sued seeking to undo the reprimand and report to the bar, but a federal court concluded that this particular remedy is barred by state sovereign immunity under the Eleventh Amendment/

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From Judge Brantley Starr (N.D. Tex.) May 12 in Fisher v. Campbell:

This case stems from a Texas Tech University law student allegedly making a celebratory statement {in the clinic program offices} after Charlie Kirk's assassination while she was working at a legal clinic at the school. The school … reprimanded her and reported her to the state bar for acting unprofessionally, in violation of the school's honor code [on the grounds that she had] {"fail[ed] to uphold professional or fiduciary obligations including, but not limited to, performance related to clinical programs"}.

The alleged celebratory statements were said to be:

"I'm in such a good mood."

"That mother fucker got shot."

"I'm in the best mood ever."

"They got him."

"This is great."

The student, Fisher, denied making those statements, and the Honor Council report that initially considered the matter appeared ambivalent. But the Dean concluded that Fisher had made such statements; here's an excerpt from his letter to the bar:

The Dean's Office recommends against Ms. Ellen Fisher's admission to the Bar.

We do so for three related reasons. First, Ms. Fisher, as a clinical student with a supervised practice card, disrupted our clinical spaces with a celebration of a political assassination. Second, she has refused to take responsibility or show any remorse for her unprofessional actions. And, third, she has displayed dishonesty when discussing this incident in our Honor Code proceedings.

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Did Justice Alito Lose The Majority Opinion In Hamm v. Smith?

It seems possible that the Chief Justice assigned the majority to Justice Alito, but something happened along the way, and Justices Kavanaugh and Barrett decided to DIG.

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On Thursday, the Court DIG'd Hamm v. Smith, a messy death penalty case that has been going on for three decades. Several things are unusual about this ham-handed DIG. Indeed, it is possible that Justice Alito lost the majority opinion.

First, more than five months elapsed between oral argument in December and the DIG in May. This is an exceptionally long time for a DIG. Usually when a case presents vehicle problems, there are questions at oral argument about it. But I didn't see any clear signs at OA that a DIG might be in the cards. Moreover, these sorts of long-term DIGs usually are unanimous, or close to it, in which case there are no separate writings. But here, there was a lengthy concurrence from Justice Sotomayor, a dissent by Justice Thomas, and a dissent by Justice Alito, joined by three others.  My guess is that there was a majority to reverse at conference, but that majority fell apart.

Second, Justice Alito's dissent from the DIG was joined by Justice Thomas in whole, but Chief Justice Roberts and Justice Gorsuch did not join Part II. The Chief is almost never in dissent--especially in a case of this magnitude. It seems more likely to me that the Chief would have assigned this majority opinion to Justice Alito after the conference, and then when the majority fell apart, the Chief didn't jump ship. Perhaps Alito had already made changes to his opinion to assuage the Chief.

Third, in the December sitting, there were eight argued cases. So far, opinions have been authored in four of them by Justices Thomas, Kagan, Gorsuch, Jackson. The DIG in Hamm is, as per custom, unsigned. But someone would have had a the majority after conference. There are three remaining cases. I am fairly confident that Chief Justice Roberts will write the majority opinion in Slaughter. The other two cases are NRSC v. FEC and FS Credit Opportunities Corp. v. Saba Capital Master Fund (involves the Investment Company Act). If Justice Alito authors either of these cases, my theory falls apart. But if Justice Kavanaugh, for example, writes the campaign finance case, and Justice Sotomayor gets the (boring) investment case, that keeps my theory viable.

Fourth, parts of Justice Alito's dissent reads like a majority opinion. It is more than twenty pages long, and spend some time walking through the doctrine. There is also a really detailed study of statistics--a topic that usually does not come easily to lawyers. If this was just a dissent from a DIG, I don't think this level of detail was need for what is basically a one-off case.

Fifth, there is some language in Justice Alito's dissent that casts aspersion on the majority--in particular Justices Kagan, Kavanaugh, and Barrett who chose not to write. Alito charge:

The Court nonetheless dismisses this opportunity to provide much-needed guidance to lower courts, even though six Justices stake out a position on whether the decision below is correct. See ante, at 13 (SOTOMAYOR, J., joined by JACKSON, J., concurring).

In other words, if six members of the Court opine on the issue, that ought to be enough to settle the case on the merits. Certainly the other three Justices could have picked a camp. But they didn't. They remained silent.

Justice Alito takes things a step further. In the introductory section, he suggests the majority lacks (trigger warning) courage by shying away from its duties:

I respectfully dissent from the Court's decision to leave this important question unanswered. At the very least, we should reverse the lower courts' erroneous analysis of Smith's scores and remand for a fresh consideration of his Atkins claim using any sound method. Even if our decision went no further, we would provide clarity and coherence to one aspect of our Atkins doctrine. Instead, the Court shies away from its obligation to provide workable rules for capital cases. In doing so, the Court disserves its own death-penalty jurisprudence, States' criminal-justice systems, lower courts, and victims of horrific murders.

Alito repeats this charge in the concluding section:

By instead remaining silent, the Court exacerbates the confusion that plagues our jurisprudence in this area. If this Court continues to shy away from opportunities to provide workable doctrine, we should not be surprised if petitions asking us to overrule Atkins, Hall, and Moore arrive at our doorsteps soon.

Alito often makes this charge of "shying away" from difficult issues. This attack has to be directed at Justices Kavanaugh and Barrett in particular. You might think that the Chief Justice joined this barb, but I don't think he did. Roberts only joined Parts I, III, and IV. The "shies away" line appears in the prefatory material before Part I and the concluding material after the three asterisks. We cannot ascribe these claims to the Chief. Still, Roberts did not need to signal his vote here at all, given the DIG, but chose to.

Sixth, it isn't clear what happened here. What spooked out Justices Kavanaugh and Barrett? Perhaps Justice Kagan (who was awfully quiet) found some reason to avoid deciding the case? Maybe they realized this dispute was so unusual--given the multiple IQ tests--and was unlikely to repeat, that they just let it go without setting another precedent? Maybe they just didn't want to decide this case this term? Of the three Trump appointees, Justice Barrett has been the most willing to find for capital defendants. In 2021, Barrett joined the liberals in blocking the execution in Dunn v. Smith. Both Barrett and Kavanaugh ruled for Richard Glossip (who is actually now on bail).

After all of these years of litigation, two trips to the Supreme Court, extended briefing, and oral argument, a DIG is so unsatisfying. Justice Alito stated this point well:

The crux of JUSTICE SOTOMAYOR's stance appears to be that the Court erred by granting certiorari on the question as formulated by the United States. Ante, at 7. But this petition-stage gripe is no reason to dismiss the case a year later. The parties and amici—not to mention Members of this Court—devoted substantial resources to this case and thoroughly addressed the question presented, and that question is dispositive to the judgment below.

Here, the Court really needed to tinker with the machinery of death, but instead, the DIG hands an undeserved victory to the abolitionists.

This year, Greg v. Georgia celebrates its fiftieth anniversary. What a mistake the entire line of cases has become. Let me commend Craig Lerner's excellent essay in Civitas and urge the Court to get out of the micromanagement of the death penalty, a doctrine that has no bearing in the original meaning of the Constitution. The Court has already extricated the judiciary from other terrible Burger Court precedents: RoeLemon, Abood, Bakke, GinglesUnited States v. Nixon, TWA v. HardisonChevronApodacaNevada v. HallWilliamson County, Davis v. Bandemer, and more. Add the "evolving standards of decency" test to that ash heap.  And while they're at it, the Court should overrule Nixon v. GSA, get rid of the bad parts of Buckley v. Valeo, and eliminate the awful Penn Central test, as Richard Epstein reminds us. There is so much work to be done.

Free Trade

Video of my Bruno Leoni Institute (Milan) Talk on the Supreme Court Tariff Decision and its Implications

I gave the talk earlier this week.

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During my recent trip to Italy, I did a talk on "The Legal Battle Against Trump's Tariffs" at the Bruno Leoni Institute in Milan. BLI is a leading Italian libertarian/classical liberal think tank. I covered the legal issues in the case, currently ongoing litigation over Trump's new Section 122 tariffs, and also some broader implications for emergency powers, the rule of law, executive power, and other issues - including some points specifically relevant to European.

The video of the event is available below. The first 3-4 minutes (in which Italian political scientist Alberto Mingardi, Director General of the Bruno Leoni Institute, introduces me), are in Italian. But my talk and the Q&A session are in English.

For a compendium of links to my writings about the tariff case and related issues, see here.

Free Speech

No Pseudonymity for Parent Suing Over School Vaccination Mandate

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From today's Ninth Circuit 2-1 panel decision in Doe v. Ventura Unified School Dist., by Judge Richard Paez and Consuelo Callahan:

[1.] To proceed pseudonymously, a "plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." These are the "two most important factors," id., because a plaintiff must establish "a need for the cloak of anonymity."

The district court's determination that Doe failed to show she reasonably feared severe harm was not an abuse of discretion. Doe's interactions with public officials do not establish that the media or community members would retaliate against her in a severe manner, and Doe failed to identify other probative evidence rendering her fears reasonable. Rather, she expresses concern about what "could" or "probably would" happen. But bare assertions are insufficient to establish a reasonable fear of severe harm. Likewise, the district court did not abuse its discretion in determining that Doe's fear of "social stigma" does not amount to severe harm. The prospect of being publicly linked to an unpopular viewpoint alone does not warrant anonymity absent evidence linking disclosure to a severe injury.

[2.] The district court did not abuse its discretion in evaluating Doe's vulnerability. The district court properly considered the factors suggesting Doe was particularly vulnerable and those suggesting she was not particularly vulnerable, and reasonably concluded that it was appropriate to give "little weight" to her vulnerability.

{The dissent argues that the district court erred by failing to analyze Child 1's vulnerability as a factor supporting her own pseudonymity and Doe's privacy interests…. "[F]ear of severe harm is irrelevant if the plaintiffs do not reasonably fear severe harm." As described, Doe failed to identify probative evidence supporting the reasonableness of her fear of severe retaliation.

Moreover, after oral argument, Plaintiff's counsel informed the court that Plaintiff and her child do not share the same last name, further attenuating Doe's fear that disclosure of her name would yield severe retaliation against Child 1.} {The district court properly acknowledged that Federal Rule of Civil Procedure 5.2(a)(3) presumptively requires pseudonymizing the names of children, like Child 1, with only initials "[u]nless the court orders otherwise." This appeal only pertains to Doe's pseudonymization.}

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Free Speech

$485K Settlement in Government Employee Speech Case Stemming from Comments About Charlie Kirk's Death

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The case, Brown v. Young, just settled; the government employer (the Florida Fish and Wildlife Conservation Commission) agreed to pay plaintiff $275K ($40K in back wages + $235K in compensatory damages) + $210K in attorneys' fees and costs. The Commission also agreed to give plaintiff a neutral reference in any future employment inquiries, and (to quote the ACLU press release), "to permit her to interact with FWC staff and resources on the same basis as any other external partner or volunteer, preserving her ability to continue her conservation work through partner organizations."

In exchange plaintiff resigned, dropped the case, and released her claims, including those related to sanctions that were awarded last week; here's an excerpt from the sanctions (read the whole sanctions decision for more):

This Court concludes that Plaintiff is entitled to attorneys' fees based on Ms. Tucker's and defense counsel's1 objectively unreasonable multiplication of proceedings in continuing to defend the Tucker declaration once it became clear that Ms. Tucker lacked personal knowledge to make the false statements identified above. Fees shall be split between Ms. Tucker and defense counsel and will be assessed at the conclusion of this case. To be clear, there must be a sanction for Ms. Tucker and her prior counsel's continued efforts to ignore the obvious—that Ms. Tucker lacked the personal knowledge necessary to make certain statements in her declaration and that such statements were, in fact, false—and defend the indefensible once that lack of personal knowledge and falsity became clear following Ms. Tucker's deposition.

Here are the details on the First Amendment issue in the case, from my Nov. 2015 post on the court's decision to deny a preliminary injunction to plaintiff:

[* * *]

Brown, who worked at the Florida Fish and Wildlife Conservation Commission reposted this item from an Instagram account that "posts satirical social commentary from the perspective of a whale":

This was apparently a reference to Kirk's comments that part of the price of the Second Amendment is that there would be "some gun deaths":

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Sex Discrimination

Lawsuit Against Virginia Tech Alleging Anti-Male Bias in Title IX Proceedings Can Go Forward in Part

“Johnny has alleged abundant facts that, if true, raise grave concerns about the way VT, through these administrators, conducted the investigations of Pauline’s and Jane’s sexual-assault claims, as well as the ultimate outcomes of those inquiries. Simply put, Johnny has alleged facts that, if true, raise a plausible inference that VT discriminated against him in these investigations because he is male and, in so doing, violated Title IX.”

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An excerpt from today's long decision by Judge Thomas Cullen (W.D. Va.) in Doe v. Va. Polytechnic Inst. & State Univ.:

In the fall of 2024, Plaintiff John Doe ("Johnny"), then a student at Virginia Tech ("VT" or "the university") and member of its Corps of Cadets, was accused by two female students of sexual assault.

Johnny's first accuser, Pauline Poe, with whom he previously had at least two consensual sexual encounters, claimed that Johnny had continued to engage in sexual intercourse with her after she withdrew consent. A couple weeks later, Jane Roe, a fellow member of the Corps of Cadets, complained that Johnny, with whom she had previously been intimate, had sex with her after a night of heavy (underage) drinking. Jane, who claimed to have no memory of this encounter, later alleged that it amounted to sexual assault on Johnny's part because she was incapacitated.

After receiving these two complaints, VT officials sprang into action. The same day that Jane reported Johnny to VT's Title IX office—over five weeks after their allegedly non-consensual encounter—the university issued a campus-wide alert about the purported sexual assault. VT's email did not identify Johnny or Jane by name, but it provided the specific location of the alleged incident and noted that the parties involved knew each other. Although no one from the Title IX office had yet to investigate Jane's claims—let alone get Johnny's side of the story—the campus-wide email characterized him as "the offender" and Jane as "the survivor." The following day, a VT official placed Johnny on interim suspension, which resulted in his being evicted from his dorm room, pending the outcome of separate Title IX and student-conduct investigations.

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Free Speech

Racial Slurs as Actionable Intentional Infliction of Emotional Distress

UPDATE: Link to transcript in the earlier criminal case, and quotes from the transcript, added

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From Allen v. Noble, decided last week by Judge Latonia Williams (Conn. Super. Ct. New Haven), plaintiff's factual allegations (for Noble's side of the story, as to the now-dropped criminal charges against her apparently based on the same incident, see this N.Y. Post op-ed—she denies that she used slurs, and claims that surveillance video footage shows "[n]o confrontation, not even any interaction, with the accuser" [UPDATE: see below for the transcript of the hearing where the prosecutors dropped the charges]):

[P]laintiff alleges the following facts. The plaintiff is an American citizen of African descent, who, during the times alleged in the complaint, was employed as a parking lot attendant for Pro-Park Mobility. The defendant Noble, during the times alleged in the complaint, was the executive director, employee, and agent for service of process of the defendant Buckley Institute. On or about a date prior to July 6, 2023, one or both of the defendants entered into an agreement with the plaintiff's employer to rent parking spaces for one or more of Buckley Institute's employees, including Noble, in the parking lot where the plaintiff works as an attendant (parking lot).

The complaint alleges that on or about July 6, 2023, while the plaintiff was at the parking lot, he informed Noble that the lot was full and he could not provide for her parking needs. The complaint alleges that the plaintiff overheard Noble state, "fucking niggers," and that the plaintiff did not respond to her.

The complaint further alleges that on July 13, 2023, while the plaintiff was on duty within the parking lot, Noble told him she could not find a parking place in the parking lot and the plaintiff said the parking lot was full and could not accommodate her. The complaint alleges that Noble replied: "You's niggers get jobs and don't know how to act!," and that the plaintiff did not respond to her.

The complaint further alleges that on or about July 27, 2023, the plaintiff observed Noble arrive at the parking lot and found that, due to the lot being full, there was no space within the parking lot to park her car. The complaint alleges that at that time, in the presence of, and within the earshot of two individuals and the plaintiff, Noble orally referred to the plaintiff as a "nigger" three times over a parking lot issue.

The complaint states that "[t]he plaintiff, by dint of … Noble's racially odious, racially demeaning, cruel, abhorrent, and racist epithets towards … [the plaintiff] had the capacity to hold him up to public ridicule, public humiliation, and has caused him great annoyance, embarrassment, shame, degradation, and moreover, he has suffered in his reputation and has lost the good will of many persons with which he otherwise would have enjoyed by dint of … Noble's heinous and foul misconduct she directed towards him." …

The court allowed plaintiff's intentional infliction of emotional distress claim to go forward:

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There Is No Equitable Constitutional Cause Of Action To Challenge The Presidential Record Act Policy

The Supreme Court needs to bring clarity to this issue.

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Last month, I wrote about the Office of Legal Counsel's opinion finding that the Presidential Records Act was inconsistent with Trump v. Mazars. Somewhat remarkably, several writers have attacked the opinion, but minimize, or even ignore, Mazars.

The American Historical Association filed suit, arguing that it is injured because at some point in the future, it will not be able to access certain presidential documents. Federal district court Judge Bates has found the new policy is likely unconstitutional. You know things are going south when the first sentence is a quote from 1984.

Again, even more remarkably, the court finds that Mazars has little bearing on the case.

Mazars is even less on point. There, the Supreme Court only concluded that the legislative subpoenas in question implicated the separation of powers, without determining how each factor panned out. And Mazars involved Congress's implied investigative powers; it focused on the lack of authority to issue legislative subpoenas without any discernable legislative purpose. That discussion is not relevant here because Congress has independent, enumerated authority to enact the Records Act under the Property Clause and the Necessary and Proper Clause, without relying on any implied authority.

Mazars was a delicate compromise by the Supreme Court, with a different composition at a different time. I suspect that even the Chief will not be pleased with how his ruling is being cast aside.

Lets put aside the merits for now. The plaintiffs have no equitable constitutional cause of action. Yet Judge Bates finds a cause of action on two grounds.

First, the court invokes Youngstown:

Most importantly here, plaintiffs likely have an equitable constitutional cause of action under Youngstown (Historian-Oversight Count I and Press-CREW Count IV) . . . In other words, and as in Youngstown, this case "involve[s] the conceded absence of any statutory authority, not a claim that the President acted in excess of such authority." Dalton, 511 U.S. at 473. And "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Youngstown, 343 U.S. at 637 (Jackson, J., concurring). "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution." Id. at 638. As icing on the cake, the government itself argues that the President has "conclusive and preclusive" power over presidential records, squarely placing this case within the Youngstown framework.

This analysis completely misunderstands why there was a cause of action in Youngstown. In the Steel Seizure case, the government seized the plaintiffs' property. That control of private property created a traditional cause of action. The court here conflates the merits analysis ("conclusive and preclusive") with the threshold question of whether there is a cause of action that was recognized in 1787. Seth Barrett Tillman and I discuss this issue in our article on causes of action:

In Youngstown, the mill owners did not assert a free-floating equitable cause of action to challenge Secretary Sawyer's illegal seizure. Rather, the mill owners' brief explained that their cause of action was based on resolving "a simple cloud on title" of the mills.307 The cause of action to resolve a cloud on title, the mill owners argued, "has always moved equity to grant relief because no other remedy is complete or adequate."308 The mill owners contended that "[t]he seizure of the properties and business of the plaintiffs, with its host of uncertainties and legal and practical problems arising from the ambiguous position in which the owners are left, should appeal to equity at least as strongly as a cloud on title."309 Youngstown was decided half a century before Grupo Mexicano. Still, the mill owners used a Grupo Mexicano-like framework to establish equitable jurisdic-tion. They demonstrated that their cause of action was "analogous" to an equita-ble cause of action that would have been recognized by the High Court of Chancery in 1789.310 The government seized the mill owners' property. That sei-zure, much like a taking or temporary taking, nullified their property rights. The plaintiffs did not rely on a generalized allegation of ultra vires conduct by the Secretary of Commerce; instead, they relied on a cause of action to quiet title— their title to their property. Here too, Youngstown was in the heartland of histori-cal equity jurisdiction involving disputed property rights.

Youngstown is completely inapposite. The government is not regulating any property the plaintiffs currently have. At most, they are asserting some future interest in property. The Plaintiffs fail to identify any analogous equitable cause of action.

Judge Bates invokes a second ground for an equitable cause of action: Armstrong v. Exceptional Child Center.

For similar reasons, plaintiffs likely also have an equitable cause of action under Armstrong v. Exceptional Child Center. There, the Supreme Court observed that the "power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations." 575 U.S. at 327 (quotation omitted). As a result, where a statute implicitly precludes review, plaintiffs cannot circumvent that preclusion by relying on equity. Id . . . Here, in contrast, Armstrong I and Armstrong v. EOP, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (Armstrong II), establish that certain kinds of review involving the Records Act are implicitly precluded by the statutory scheme while others are not.

It is remarkable that civil rights groups have been citing this case for more than a decade, even though the Court found there was no cause of action. Every single case that cites Armstrong has to distinguish the precedent.

In recent years, the Court has clawed back on implied and equitable causes of action. Should this case ever make it to the Supreme Court, I would predict five solid votes to find there is no cause of action, and in the process reject these free-floating claims based on perversions of Youngstown and Armstrong.

Tariffs

US Court of International Trade Refuses to Stay Injunction Against Trump's Section 122 Tariffs

The decision means the injunction blocking collection of the tariffs will not be blocked while litigation continues.

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On May 8, the US Court of International Trade ruled that Donald Trump's massive new Section 122 tariffs are illegal, in cases brought by the Liberty Justice Center (on behalf of two small businesses) and 24 state governments, led by Oregon. Today, the CIT rejected the Trump Administration's motion to stay the injunction blocking further collection of the tariffs until the litigation over the case is done.

This is a potentially very significant ruling. Last year, in the case challenging Trump's IEEPA tariffs, LJC and I secured an injunction against them from the CIT, but that injunction was then stayed until the Supreme Court finally decided the case, almost a year later. That led to the collection of some $166 billion of illegal tariffs, and caused all sorts of harm that cannot be compensated by refunds (which the Trump administration only recently finally began to pay). As I explained at the time the IEEPA stay motion was being litigated:

One factor courts consider in assessing a motion to stay is which side is likely to ultimately prevail on the merits….

Another key factor is which side is likely to suffer "irreparable harm" if they lose on the stay issue. We argue that our clients - and thousands of other businesses - will suffer great irreparable harm if a stay is imposed. They will lose sales due to higher prices, good will can be lost, relationships with suppliers and investors will be disrupted, and more. Those harms can't be made up merely by refunding tariff payments months from now, after the appellate process concludes.

In today's ruling, the CIT recognized the significance of these issues, noting that "[a] stay will compound the losses, such as 'lost profits and damage to business relationships, investments, and innovation' as a result of the Section 122 tariffs."

The immediate effect of this ruling is limited. The administration is likely to appeal it to the US Court of Appeals to the Federal Circuit, and ultimately perhaps even the Supreme Court. Moreover, the CIT injunction in this case is limited to the state of Washington and the two businesses represented by LJC. For procedural reasons, the court decided these are the only plaintiffs who have standing to challenge the tariffs, because they are the only ones who presented sufficient evidence that they directly import goods subject to the tariffs.  But, as noted in my post about the CIT ruling on the merits of the case, many of the other states involved in the litigation likely also import covered goods, and they should be able to move to get a broader injunction, quite possibly one that would apply nationwide.

The CIT seems to have learned from the mistaken decision to stay the injunction against the IEEPA tariffs. Hopefully, the Federal Circuit and (if the issue gets there) the Supreme Court will rule the same way.

Libertarianism

Matt Yglesias on Libertarianism, Abundance Liberalism, and a Possible Alliance Between the Two

Yglesias supports an alliance and has key points of agreement with libertarians, but also criticisms of libertarianism. I welcome former and respond to the latter.

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Image of abundance. (Avid Reader Press)

 

In April, I wrote a post praising "abundance liberalism" (despite some reservations about it) and urging an alliance between abundance liberals and libertarians. Matt Yglesias - one of the most prominent abundance liberal political commentators - has written an insightful piece responding to mine. He supports the idea of an alliance and notes other points of agreement, but also makes various criticisms of libertarianism.

First - and most important - Yglesias endorses the proposal for alliance:

Somin argued that his fellow travelers in the libertarian camp should seek an alliance with the center-left. The traditional Cold War-era "fusionist" alliance between libertarians and cultural conservatives is, he thinks, dead and should be replaced by an effort to build bridges with the abundance camp on the center-left, even if he thinks we don't go far enough.

I am all for this alliance.

Welcome! Yglesias's support - while much more significant than mine (because he has much greater political influence) - may not by itself be sufficient to make this alliance happen. But it's definitely a step in the right direction.

Second, Yglesias seems to at least partly agree with my argument that many liberals are inconsistent in endorsing deregulation in some areas (e.g. - housing and immigration), while refusing to do so in others, without offering any consistent rationale for the distinction:

[T]he concept of abundance ought to mean more than progressives owning up to overregulation of the housing sector being a problem.

Housing is the single largest sector of the economy, so problems there loom unusually large….

But the basic principles about the positive-sum nature of market exchange and the tendency of regulatory systems to become cesspools of rent seeking are quite general.

In a saner, better world, the Trumpian turn away from liberalism inside the Republican Party coalition should have meant a process of reconciliation between Democrats and at least some of the market liberals of the center right. Instead, a large share of the Democratic Party has reacted to the Republicans' abandonment of markets by simply embracing alternative zero-sum accounts of the economy like greedflation.

The point here is indeed "quite general" and Yglesias and other abundance liberals have done valuable work in making that clear, including, for example, in his recent article condemning efforts to bar institutional investors from owning housing. They don't generalize this insight as much as they should. But the recognition that it is indeed a general insight that applies to most, if not all, policy areas is significant.

Third, Yglesias is right to note that which parties and groups libertarians (and other free market advocates) end up aligned with is a matter of historical contingency. Whether the most logical coalition for them is with the conservatives, left-liberals, or some other group will vary depending on the salient issues of the day, the structure of the political system, and other factors.

Yglesias nonetheless offers several criticisms of libertarianism, which I will now address. Even if we continue to differ on these points, they don't preclude an alliance. But they are worth considering, regardless.

First, Yglesias argues libertarians have a tendency towards "extremism":

Normal ideologies have a directional valence relative to the status quo without committing their adherents to the most extreme possible version of the ideology. But the concept of a "moderate libertarian" doesn't seem to exist.

Most libertarians are indeed extreme relative to the status quo. But, as I have argued elsewhere, extreme ideas are often right. Whether a position is moderate or extreme relative to the current distribution of opinion, or relative to status quo public policy, says little about its correctness:

[E]xtremist defenses of liberty often turn out to be right. Before the Civil War, abolitionists who wanted to immediately free all the slaves and grant equal rights to blacks were extremists. The moderate position was either to maintain the status quo or seek gradual abolition, perhaps coupled with relegating blacks to second-class citizenship or deporting them to Africa.

For most of human history, only extremists favored giving women the same liberties as those enjoyed by men…..

We would be much worse off if not for these and other examples of extremism in defense of liberty. Some of the greatest historical triumphs of liberty were set in motion by people who were extremists relative to the mainstream views of their day.

None of this proves that extreme views are always right, and moderate ones always misguided. The point is not that we should always adopt the most extreme possible positions, but that there is often little or no relationship between the validity of a position and its distance from mainstream opinion. Mainstream public opinion is heavily influenced by ignorance and irrational thinking, and therefore is at best a very weak barometer of truth. Extremism isn't always a virtue, but neither is it necessarily a vice, either.

I think extreme libertarian views are largely correct. Yglesias thinks otherwise. But such disagreements should be resolved by logic and evidence, not appeals to "moderation." Whether a view is extreme or not says little about its truth.

Extreme views are often politically more difficult to push through for political reasons than more moderate ones. But, as noted in my earlier post on extremism, there is still often value in advocating them. In addition to the reasons I gave before, I would note that promoting true-but-extreme ideas can help expand the "Overton Window" of what is politically feasible in the long run.

Yglesias also argues that libertarians too often claim that "the worries [cited by advocates of regulation] are overblown — because if they're not overblown, there is a reasonable argument for regulation, and a libertarian is never going to say there's a reasonable argument for regulation." For example, he cites libertarians who he believes downplay the risks of smoking.

There is some truth to this point. When people advocate regulation to solve some problem, many libertarians do indeed tend to dismiss evidence that there is a problem at all. And sometimes this dismissal overlooks strong empirical evidence to the contrary. Notable examples include global warming and the Covid pandemic (in both of which cases libertarians were overrepresented among those wrongly claiming there is little or no problem at all).

Libertarian economist Bryan Caplan once outlined "six stages of libertarian denial" that government regulation to address some issue is justified (I commented on Caplan's theory here). Stage 1 is "Deny the problem exists." Often, that denial is warranted, as many restrictions on liberty really are enacted in response to bogus or vastly overstated problems. But not always.

But it's also important to remember that there are a range of other libertarian criticisms of government intervention, which apply even if there is some genuine problem out there. As Caplan summarizes, they include 1) arguments that government is the cause of the problem, 2) arguments that intervention will make the problem worse rather than better, 3) arguments that the the government solution isn't worth the cost, and 4) appeals to non-consequentialist principles of liberty and autonomy. Caplan also notes the possibility of 5) "Yield on libertarian principle, but try to minimize the deviation."

More sophisticated libertarian thinkers recognize that we often have to rely on points 1-4, and that rare cases of 5 also exist. Thus, on smoking, gambling and other similar issues, which Yglesias raises, most libertarians recognize that there are risks to health and financial well-being. But we argue that 1) people still have a right to decide for themselves whether the risks are worth the benefits (a person can rationally decide that the enjoyment they get from smoking or gambling outweighs the risk), 2) government systematically does a poor job of such balancing, worse than individuals deciding for themselves, and 3) enormous harm is caused by creating large black markets for risky goods that many people want to consume (the harm caused by alcohol Prohibition and the War on Drugs are notable examples). Escaping Paternalism: Rationality, Behavioral Economics, and Public Policy, by libertarian economists Mario Rizzo and Glen Whitman (which I reviewed here), is a great overview of these sorts of flaws in paternalistic policies. And most of their points apply even in cases where the behavior in question really is risky.

Yglesias's next critique of libertarians is that "[t]hey rightly sing the praises of capitalism as a driver of growth, prosperity, and progress. But they tend to ignore the extent to which actual modern industrial economies were built with a large state role in transportation, electrical utilities, banking and monetary policy, and other commanding heights of the economy." Serious libertarian thinkers recognize there has been a large governmental role on many of these issues. But they argue that all or most of them would be better handled by the private sector.

Elsewhere, I have summarized how libertarian scholars have done extensive work showing that the private sector is superior to government at providing a wide range of local and regional public goods, but are not as strong on issues involving nationwide and worldwide public goods. But even if we need government intervention to deal with some of the latter, that's only a small portion of the activity of the modern state.

Yglesias claims libertarians don't sufficiently appreciate the value of democracy:

From Nozick's "demoktesis" thought experiment, where he analogized voting to slavery, to Peter Thiel's 2009 proclamation that "I no longer believe that freedom and democracy are compatible," there have always been those who resolve the contradiction between property rights and democracy in favor of property.

I believe this resolution breaks faith with the fundamental classical liberal commitment in the Declaration of Independence and elsewhere to equal rights under law. Democratic self-governance has many well-known flaws, but Winston Churchill's famous turn of phrase "the worst form of government except for all those other forms that have been tried" holds true today.

Most libertarians would agree that democracy is superior to other forms of government. Nozick's "demoktesis" parable from his classic book Anarchy, the State and Utopia, is not to the contrary. He wasn't trying to show that authoritarianism is superior to democracy, but that unjust policies that violate human rights cannot be justified merely because they are enacted through a democratic process. As for Peter Thiel, the man is not a libertarian and has not been for a long time.

But, even if democracy is better than dictatorship or oligarchy, it still has severe flaws, such as tyranny of the majority, and widespread voter ignorance and bias.  Thus, it needs to be subjected to tight constitutional constraints. Many left-liberals readily recognize this when it comes to noneconomic "personal" liberties, and discrimination on the basis of race, sex, sexual orientation, and other such categories. Libertarians' distinctive contribution is to emphasize that these concerns also arise when it comes to the economic powers of the state, and that the distinction between "economic" and "personal" freedoms is largely fallacious, or at least misleading. Abundance liberals may not be willing to go so far. But their appreciation for the importance of economic liberty and property rights in many spheres should lead them to at least recognize that the economic powers of government should be subject to at least some significant constraints.

Lastly, Yglesias notes that "the abusive aspects of Trumpian governance have relatively little to do with the specific state functions — infrastructure spending, the welfare state, paternalistic regulation — that divide progressive liberals from right-libertarians." At least as to paternalistic regulation, this isn't true. The War on Drugs is a form of paternalistic regulation, and it is a key rationale for some of Trump's worst abuses, such as the murderous Caribbean boat strikes, and efforts to claim there is an ongoing "invasion" of the United States justifying invocation of sweeping emergency powers. In addition, Trump's assault on free speech relies heavily on the FCC - the type of regulatory agency libertarians have long warned against and argued for abolishing.

In sum, I am largely unpersuaded by Yglesias's critiques of libertarianism. He, perhaps, will not be persuaded by my response. But he is right that libertarians and abundance liberals have much in common, and have much to gain from an alliance. As noted in my original post on abundance liberalism, that alliance can be based on extensive agreement on multiple key issues (housing, immigration, free trade, nuclear power, and perhaps others), and some important broader principles (individualism, understanding of Econ 101), even if there are persistent differences on other points.

Free Speech

"Plaintiff Was Enticed by an Attractive, Busty Jewess, and Wet His Mouth with a Drink of Partially Unknown Provenance"

"Plaintiff suspects he was poisoned by Jews."

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That's from plaintiff's follow-up arguments for pseudonymity filed Saturday in Doe v. Trustees of Univ. of Pa. (E.D. Pa.). Judging by the address listed in the filings, as well as the rhetoric (e.g., "The Jews are a racial supremacist organization whose stated goal is to exterminate and enslave all non-Jews"), this seems to be the same John Doe who was denied pseudonymity in a case I wrote about in February, see No Pseudonymity for Man Suing Harvard Alleging Jews Aim "to Exterminate or Enslave All Non-Jews".

I expect the same ruling on pseudonymity in this case as in that one (despite the addition of the busty Jewess, who did not seem present in that case); to quote Judge Allison Burroughs' decision in that case, 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

Imposing Imposter Syndrome

DEI creates, and exacerbates, the very problem DEI is designed to eradicate.

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I often hear people describing "imposter syndrome." At a high level, imposter syndrome is a self-doubt that you are able to accomplish the role you have been chosen for. I think virtually everyone has self doubts about their own abilities. Indeed, it should happen to all of us. Under the so-called Peter Principle, employees are promoted based on their success until they reach a level at which they can no longer be successful. This principle afflicts almost all lawyers, professors (present company included), and judges.

Imposter syndrome takes on a different meaning in the DEI context: a non-white person feels like they do not belong in a predominantly white environment. In other words, they have to act as an imposter in that space. A primary goal of DEI is to reduce imposter system, and make everyone feel welcome and included (that is the "inclusion" in DEI). But in many regards, DEI creates, and exacerbates the very problem of imposter syndrome.

First, imposter syndrome may often be a byproduct of mismatch theory. If a person is admitted to a university, or promoted to a higher position, based on their race, and has objectively lower credentials, that person very well may feel the doubt of imposter syndrome. It may objectively be true that a person admitted through racial preferences does not belong, but for the misguided intentions of social architects. Justice Thomas has written eloquently about how his degree from Yale was worthless because of the perception that affirmative action created. And Thomas has likely explained that would-be beneficiaries of affirmative action would not suffer from affirmative action at an institution where they are matched.

Second, DEI attempts to mitigate imposter syndrome by establishing racial "affinity" groups within organizations. Many workplaces held retreats and offer other mentoring events solely for people based on their race. Universities had separate graduation ceremonies for black and hispanic students. Some colleges even arranged separate housing for minority students. Again, these are efforts intended to make people feel more included and less like an imposter. But in reality, these groups serve to balkanize people based on the very barriers that led to the imposter syndrome in the first place. Moreover, these groups raise doubts among those outside the affinity groups about how inclusive the organization actually is.

Third, speaking of people outside the affinity groups, DEI mandates cultural re-education to eliminate these doubts. Separate graduation ceremonies and racial housing are described as the most normal thing possible, and opposition to them is anti-anti-racist. People are taught to believe, simultaneously, that everyone is welcome but programs are needed to provide a greater welcome to certain people. To paraphrase George Orwell, all workers are equal, but some workers are more equal than others.

At some point, I hope there is a true and complete reckoning about the harms caused by DEI. We have come so far from the days of intentional racial discrimination that an entire industry was concocted to make people feel racial resentment. First, there was a shift from disparate treatment (actual discrimination) to disparate impact (well, there's no actual discrimination, but let's make up some statistics). Second, there was the concept of political correctness ("PC"), where even if you were not being racist, you still could not talk about certain topics that would offend people. Third, there was the concept of microagressions--racism so subtle that you need a microscope to even see it. Fourth, there was implicit bias--people needed to take a completely debunked test to identify non-existent latent racism in their subconscious. Imposter syndrome is in keeping with all of these tests. The Supreme Court's decision in Callais was a long-time coming, and a reflection of how far we've come as a society: actual racial discrimination violates the Constitution, but all of these other attempts to find "razzle dazzle" racism should be discarded.

My advice to young law students and lawyers facing these sorts of self-doubts that you do not belong or lack the ability to succeed? Do what I did: fake it till you make it. Figure out what the successful people in your field do and do that, or even better, do more than that. And if you suffer defeat (we all do), don't wallow in it. Don't hang onto that defeat. Don't blame other people for your defeat. Don't blame society for your defeat. Don't latch onto abstractions like imposter syndrome or white privilege. Figure out how others have overcome that sort of setback, and do that, or even better, do more than that.

Free Speech

Use This One Weird Trick to Keep Your Name Out of an Upcoming Sexual Assault Lawsuit Against You

Or at least try: A court considered it, but ultimately said no.

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Here's the story, somewhat simplified, from a case now labeled Breskin v. Blattberg (D. Mass.) (I had filed an amicus brief opposing pseudonymity, as part of my general opposition to pseudonymity in defamation cases, see, e.g., Roe v. Smith):

  1. Son v. mother federal lawsuit threatened: Blattberg accuses his mother, Breskin (a psychologist), of having sexually abused him 30 years ago, when he was 4 to 7 years old. The son claims he "did not remember the abuse until 2024." The son's lawyer sends a demand letter to the mother, threatening to sue, with a draft Complaint attached. They apparently agree that the son's lawsuit won't be filed until the end of February. (Again, remember that these are just the son's claims; nothing has been proved.)
  1. Mother v. son state lawsuit filed first, pseudonymously, and under seal: In late February, the mother gets to the courthouse first, by suing the son in Massachusetts state court for defamation over his sexual assault allegations, which the mother says the son had made to third parties (including her mother and other relatives). She claims the son is trying to extort her, and has long "suffered from serious and severe mental illness." The case is filed as Doe v. Doe. The same day, the mother asks that the Complaint be sealed (impounded, in Massachusetts terminology), and the Massachusetts court agrees immediately:

After review, the court treats the current motion as an ex parte motion to impound under MA R Impound P Rule 3. The court finds that immediate and irreparable injury may result if the motion is not allowed. See MA R Impound P Rule 3(a). Nevertheless, under the Rule, an interested party must have an opportunity to be heard in opposition within ten days of this order. MA R Impound P Rule 3(a).

  1. Son v. mother federal lawsuit filed, mother v. son removed to federal court: The next day after the mother sues, the son sues the mother in federal court (there's apparently diversity jurisdiction), using the caption Blattberg v. Breskin. The day after, he removes the mother's Doe v. Doe case to federal court, as he's entitled to do because he and his mother are citizens of different states.
  1. Mother's motion to dismiss and seal son v. mother lawsuit, and to proceed pseudonymously on the strength of the pseudonymous mother v. son lawsuit: Four days after the son sues, the mother moves to dismiss the son's federal case, on the grounds that she "previously filed a prior pending action against the Plaintiff arising from the same alleged facts and causes of action." She also moves to seal the son's federal case, and seeks a protective order "against any additional disclosure of the parties' identities." Judge Richard Stearns (D. Mass.) shows at least temporary openness to this; he declines to dismiss the case, but consolidates the mother's and son's now-federal cases, and rules,

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