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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Trump's Dubious New Section 301 Tariffs
They appear to be yet another illegal power grab, one that should be challenged in court.
Last night, the Trump Administration revealed plans to use Section 301 of the Trade Act of 1974 to impose massive new tariffs on imports from some 60 countries around the world, under the pretext that this is necessary to combat their importation of goods that use forced labor:
The Trump administration has taken a key step toward rebuilding a tariff wall around the U.S. economy, announcing new restrictions on goods from 60 trading partners that U.S. officials say lack sufficient prohibitions on the use of forced labor.
Under the plan, goods from nations that the U.S. says have not banned forced labor, including China, India, Britain and Japan, will face 12.5 percent tariffs. Goods from the European Union, Canada, Mexico and other nations that the U.S. says have failed to enforce bans will face 10 percent levies, the administration said in a late-night announcement Tuesday.
While he's relying on a different statute, the tariffs Trump plans to impose here seem very similar to the 10% Section 122 tariffs recently invalidated by the US Court of International Trade, and the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring. The tariff rates (10-12.5%) are similar and so are the various exemptions outlined by the administration.
In addition, I am extremely skeptical of the claim that all of these sixty countries - including numerous affluent liberal democracies - are actually more lax about importing goods produced by forced labor than the US is. And if forced labor were really the concern, there would be no reason to impose massive tariffs on virtually all imports from those nations, even though the vast majority of those goods have little or no connection to forced labor. It sure looks like the forced labor issue is just a pretext for large-scale protectionism of the same kind courts blocked earlier. This looks like yet another presidential power grab seeking to usurp Congress' authority over tariffs, granted by Article I of the Constitution.
In an analysis on Twitter/X Georgetown University law Prof. Peter Harrell - a leading expert on international trade law - notes that the "proposed tariffs are pretty clearly a straightforward attempt to recreate the IEEPA tariffs, and not the sort of detailed and precise country-by-country actions that 301 has been used for in the past." He adds that "while there is some country-by-country analysis of how individual investigated countries either do not have or do not enforce prohibitions on importers made by forced labor, there is not detailed country-by-country analysis about how those imports harm US commerce [as Section 301 requires]. Instead, USTR relies on the case studies and more general, global macroeconomic studies of forced labor in the global economy to argue harm."
In a recent article on Just Security, legal scholars Gregory Shaffer and Jeremiah May argue that the use of Section 301 to impose sweeping tariffs on many nations and goods at once is vulnerable to the same types of nondelegation and "major questions" challenges as helped bring down the IEEPA tariffs. The major questions doctrine requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance."
I agree with most of their analysis, and would add that three of the six majority justices in the IEEPA Supreme Court case (Chief Justice Roberts, Barrett, and Gorsuch) relied in large part on the major questions doctrine in ruling against the IEEPA tariffs. The same is true of the Federal Circuit ruling against those tariffs; Federal Circuit precedent is binding on the US Court of International Trade, which would review any challenges to the Section 301 tariffs. The imposition of massive tariffs imports from 59 countries, plus all of the European Union, is undeniably a major question, just like the IEEPA tariffs were. And, like those tariffs, they will - if allowed to remain in place - raise prices for consumers and inflict massive damage on the US economy, while further poisoning relationships with our allies and trading partners.
Furthermore, the Supreme Court majority in the IEEPA case emphasized that "the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Chief Justice Roberts went on to note that, while some statutes do grant the president tariff authority (among which they specifically cited Section 301), "[w]hen Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits," including "demanding procedural prerequisites." As Shaffer and May explain, Section 301 targets specific "unfair" trade "policies" and "practices" and is not a general grant of tariff authority to be used whenever the president wants. The proposed Section 301 tariffs, they emphasize, go far beyond anything done under Section 301 in the past.
Ultimately, the new Section 301 tariffs appear to be yet another attempt to give the president a blank check to impose tariffs at will. The same is true of the administration's plans to use Section 301 to target "structural excess capacity," which rely on the absurd premise that it is somehow an unfair trade practice for countries to be able to produce more goods than they can use themselves.
The new Section 301 tariffs cannot go into effect until there is a notice and comment period. Interested groups can submit comments until July 6. Peter Harrell urges stakeholders to submit comments opposing the tariffs, and I agree! They are unlikely to change the administration's position, but could potentially help plaintiffs in future litigation against the tariffs, when and if they are imposed.
Should the administration go ahead with these plans, I urge industry groups, public interest organizations (like the Liberty Justice Center, which I worked with on the IEEPA case), and state governments to bring lawsuits challenging the Section 301 tariffs. The IEEPA and Section 122 cases show that courts are willing to strike down massive tariff power grabs, and will not give unlimited deference to the executive. That doesn't guarantee victory. But it is grounds at least for cautious optimism.
Ninth Circuit Affirms Dismissal of Lighthiser v. Trump Kids' Climate Suit
Yet another federal court opinion dismissing constitutional climate change claims.
Yesterday, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of Lighthiser v. Trump, the latest in a series of lawsuits filed on behalf of youth plaintiffs alleging that the federal government's failure to take meaningful action to mitigate climate change--and, in particular, the Trump Administration's promotion of fossil fuels--violate the U.S. Constitution.
The panel made quick work of the plaintiffs' claims in a brief, unpublished opinion. Despite the impressive roster of amici lined up to support their claims, the plaintiffs could not convince any of the three judges on the panel (Owens, Van Dyke, and Sung) that they had standing, or that the merits of their claims were worth discussing.
A central argument in this appeal was whether the plaintiffs could distinguish their case sufficiently from the Juliana case, which the Ninth Circuit had also dismissed on standing grounds. Unsurprisingly, the court did not find the effort to distinguish the cases convincing.
From the opinion:
1. Plaintiffs have not plausibly alleged that their asserted injuries are "caused by the challenged" Executive Orders. Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020).1 According to the complaint, Plaintiffs will be harmed by numerous agency actions which, Plaintiffs allege, will "implement" the Executive Orders over several years. But Plaintiffs can only speculate that the Executive Orders are the cause of the many agency actions they allege will exacerbate climate change. See G.B. ex rel. G.P. v. EPA, 172 F.4th 1042, 1060 (9th Cir. 2026) ("[A]gencies consider a great number of … factors in determining when, what, and how to regulate or take agency action." (citation modified)); Clapper v. Amnesty Int'l USA, 568 U.S. 398, 412–14 (2013) (rejecting traceability theory premised on speculation that government surveillance would occur, if at all, under challenged authority rather than another). Furthermore, Plaintiffs seek to enjoin any "implementing" agency action, including those not identified in the complaint. But we "cannot presume to predict how governing officials might exercise their discretion." G.B., 172 F.4th at 1059 (citation modified). Whether agencies will rely on the Executive Orders when taking future action "is mere conjecture." Id. at 1061 (citation modified). For these reasons, the link between the Executive Orders and Plaintiffs' alleged injuries is too speculative to support Article III standing. See FDA v. All. for Hippocratic Med., 602 U.S. 367, 383 (2024); G.B., 172 F.4th at 1058–62.
2. Plaintiffs' requested injunctive relief is also neither "substantially likely to redress their injuries" nor "within the district court's power to award." Juliana, 947 F.3d at 1170 (citation omitted).
As to the first redressability prong, Plaintiffs' standing theory suffers from a defect that mirrors their traceability problems. See All. for Hippocratic Med., 602 U.S. at 380–81 (noting that "causation and redressability … are often flip sides of the same coin" (citation modified)). They have not plausibly alleged that enjoining federal agencies from implementing the Executive Orders is substantially likely to prevent agencies from taking similar emissions-inducing actions under other lawful authorities.
Second, as in Juliana, Article III does not give federal courts the power to grant or enforce the injunctive relief Plaintiffs seek. Juliana, 947 F.3d at 1171. The Executive Orders state the President's national security, energy, and economic policy in broad terms, then direct executive branch agencies to pursue these policy goals consistent with applicable law. Plaintiffs' requested injunction, by its terms, would prevent the President from concluding, among other things, that it is "in the national interest to unleash America's affordable and reliable energy and natural resources," Exec. Order No. 14154, 90 Fed. Reg. at 8353; that current energy infrastructure is "far too inadequate to meet our Nation's needs," Exec. Order No. 14156, 90 Fed. Reg. at 8433; and that "coal is essential to our national and economic security," Exec. Order No. 14261, 90 Fed. Reg. at 15517. The requested injunction would likewise bar agencies from effectuating the President's policies—"consistent with applicable law"—by reconsidering prior actions, "encourag[ing] energy exploration and production on Federal lands and waters," and "protect[ing] the United States's economic and national security … by ensuring that an abundant supply of reliable energy is readily accessible in every State and territory of the Nation." Exec. Order No. 14154, 90 Fed. Reg. at 8353–54.
Issuing such an injunction would effectively place one federal district court in charge of executive branch energy policy—"an extraordinary and unprecedented role" for a member of the "unelected and politically unaccountable branch." Juliana, 947 F.3d at 1173 (citation omitted); see also id. at 1171–72 (crafting environmental policy involves "a host of complex policy decisions entrusted … to the wisdom and discretion of the executive and legislative branches" (citation modified)).
Plaintiffs argue that, unlike the Juliana plaintiffs, who sought a courtsupervised "remedial plan" requiring the federal government to "draw down harmful emissions," id. at 1170–72, they seek only "traditional prohibitory injunctive relief." But like the district court, we are not persuaded. Similar to the injunction requested in Juliana, the injunction Plaintiffs seek would require extensive judicial supervision of executive branch actions related to energy policy. Indeed, Plaintiffs explicitly seek to undo everything from staffing reductions, to the revocation of research grants, to anticipated rule changes, to the type of language the current administration has used on government websites. To assign such policy-laden choices to one district court would invert the "common understanding of what activities are appropriate to legislatures, to executives, and to courts." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
Moreover, as the district court recognized, enforcing such an injunction would require a court to determine whether "an untold number" of executive branch actions even "implement" the challenged Executive Orders. That task would present challenging questions that "necessarily would entail a broad range of policymaking." Juliana, 947 F.3d at 1172. For example, would the injunction prohibit agencies from advancing any policies like those expressed in the Executive Orders—promoting coal, oil, natural gas and hydropower; increasing domestic energy production; or expediting permitting and leasing timelines, to name a few? For every energy-policy action, would the court need to scrutinize agency officials' motives in search of any hidden reliance on the enjoined Executive Orders? And what if an agency were to rely on other authorities in addition to the Executive Orders? The district court correctly recognized that disputes over such questions would inevitably result in the court "spending a lot of time together" with the parties and holding hearings "until the expiration of [their] collective lifetimes." These unmanageable consequences, for which there are no judicially manageable standards, confirm that Plaintiffs' requested injunction is beyond Article III power. Juliana, 947 F.3d at 1173–75. After all, an injunction "is only as good as the court's power to enforce it." Id. at 1173.
Further, by effectively challenging hundreds of current and anticipated agency actions in one lawsuit, Plaintiffs seek to circumvent the jurisdictional and procedural rules Congress has established for challenges to agency actions. See, e.g., 5 U.S.C. §§ 702, 704, 706; 42 U.S.C. § 7607(b)(1). Such a sweeping injunction against hundreds of agency actions in one lawsuit is unprecedented. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 892–94 (1990) (explaining that rather than "wholesale" challenges to "flaws in the entire program," a "case-by-case approach … is the traditional, and remains the normal, mode of operation of the courts" (citation modified)); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996) ("Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary.").
This may not be the end of this suit, however. The plaintiffs may well file a petition for rehearing en banc or a petition for certiorari, as they have in prior climate suits. I also suspect they will file additional suits, raising equivalent claims about specific Trump Administration actions. Such suits may overcome the standing hurdle, but I doubt they will be any more successful. The underlying constitutional claims are an example of overreach. Current doctrine cuts against such constitutional claims quite decisively.
Slush Fund, We Hardly Knew Ye
I have bad news for the Acting Attorney General: This shitshow is not going away any time soon.
Blanche: "We are not moving forward with the Fund. Period"
Rep. Meng: "Not moving forward ever?"
Blanche: "Correct."
So there you go. Read More
Ninth Circuit on AI Hallucinations
Some excerpts from today's long opinion in LNU v. Blanche, decided by the Ninth Circuit by Judge Richard Paez, Carlos Bea, and Danielle Forrest:
Attorneys Mike Singh Sethi and William Rounds filed briefs in this Court with multiple nonexistent cases, misattributed quotations, and gross misrepresentations of real cases. Sethi and Rounds claimed that the errors were the product of innocent typographical mistakes. And they repeatedly denied the possibility that generative artificial intelligence ("AI") might have produced the errors.
Having identified other cases in which Sethi or Rounds filed briefs that presented similar problems, we ordered them to show cause why they should not be sanctioned, suspended, or disbarred from practice before this Court. We have considered their response, and we now impose discipline….
We issue this disciplinary order, and explain our reasoning at some length, as a warning to the members of this Court's bar: be aware of the risks of overreliance on generative AI, read everything cited in a court filing—whether drafted by generative AI or not—and disclose quickly and transparently generative AI hallucinations that are inadvertently included in court filings….
There's a lot of factual detail in the opinion, but here are a few general observations from the court:
Two types of [generative AI] mistakes, or "hallucinations," are most relevant: fabrications and inaccuracies. Fabrications are instances in which the generative AI tool provides cases or quotations that do not exist at all.
Inaccuracies are more subtle. The generative AI tool might cite to real authorities but provide an answer that is legally or factually inaccurate or not supported by the citation.
Fabrications are the most notorious hallucinations, but inaccuracies may prove more dangerous to our profession in the long run. Inaccuracies are more likely to go unnoticed by attorneys and judges because they are not always susceptible to facial checks. Rather, "[i]dentifying these misunderstandings often requires close analysis of cited sources." With close analysis, some inaccuracies might be clear—for instance, claiming that a case expressly stands for a proposition about a certain topic when the case does not discuss that topic at all. Others may be difficult to distinguish from poor legal reasoning.
The Supreme Court For The First Time Refers To Our "Colorblind Constitution"
130 years later, Justice Harlan's Plessy dissent is now the "supreme law of the land."
As big as Callais was, I think Allen v. Milligan may prove to be more significant. The Court smacked down the notion that the government "defies" court order when it takes actions designed to be tested before the Supreme Court. The Court also signaled that the presumption of good faith for purposes of Section 2 should apply to other Fourteenth Amendment contexts. (Indeed, I wonder why prosecutors should not get the same presumption of good faith under Batson; this is a topic I am developing.) But the very first sentence of Allen dropped a bomb that most people may have missed:
In Louisiana v. Callais, 608 U. S. ___ (2026), to resolvethe tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by Thornburg v. Gingles, 478 U. S. 30 (1986).
Did you see it? The Court referred to "our colorblind Constitution." Of course, Justice Alito was channelling Justice John Marshall Harlan's dissent in Plessy v. Ferguson (1896).
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.
These powerful words were read and re-read during the worst days of Jim Crow. Yet, the Supreme Court has never actually embraced Justice Harlan's conception of a color-blind constitution, not even in Brown. To the contrary, the Court has often found the Constitution prohibits a color-blind approach to equal protection.
Justice O'Connor made this point expressly in Shaw v. Reno:
Despite their invocation of the ideal of a "color-blind" Constitution, see Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious redistricting is not always unconstitutional. See Tr. of Oral Arg. 16–19. That concession is wise: This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances.
Shaw v. Reno, 509 U.S. 630, 642, 113 S. Ct. 2816, 2824, 125 L. Ed. 2d 511 (1993).
Query if Callais and now Allen have abrogated Shaw.
Justice Thomas, for his part, routinely cites Harlan's dissent, but always in separate writings, including Adarand Constructors, Holder v. Hall, and other cases. Justice Thomas addressed the issue squarely in Parents Involved:
Most of the dissent's criticisms of today's result can be traced to its rejection of the colorblind Constitution. The dissent attempts to marginalize the notion of a colorblind Constitution by consigning it to me and Members of today's plurality.[F19] But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O.T.1953, p. 65 ("That the Constitution is color blind is our dedicated belief"); Brief for Appellants in Brown v. Board of Education, O.T.1952, No. 8, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone");20 see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley) ("Marshall had a 'Bible' to which he turned during his most depressed moments. The 'Bible' would be known in the legal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). I do not know of any opinion which buoyed Marshall more in his pre-Brown days …").
[FN19] The dissent halfheartedly attacks the historical underpinnings of the colorblind Constitution. Post, at 2815 – 2816. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 2815 (citing Slaughter–House Cases, 16 Wall. 36, 71–72, 21 L.Ed. 394 (1873)). What the dissent fails to understand, however, is that the colorblind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860's and 1870's to remedy state-enforced slavery were therefore not inconsistent with the colorblind Constitution.
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 772–73, 127 S. Ct. 2738, 2782–83, 168 L. Ed. 2d 508 (2007).
Does the Supreme Court now agree with Justice Thomas's invocation of Parents Involved? Did the other Justices, rushed on the emergency docket, miss this line? Who knows? 130 years later, Justice Harlan's Plessy dissent is now the "supreme law of the land."
Influencer's Nondefamatory Service Review Could Be Aiding and Abetting of Defamatory Comments
From Auto Junction Inc v. Kaluzhin, 2024 WL 7050639, decided Oct. 8, 2024 by Arizona Superior Court (Maricopa County) Judge Melissa Iyer Julian, but just posted on Westlaw several days ago—I'm skeptical about the aiding and abetting analysis, but wanted to flag the case in any event:
In this case, the only alleged defamatory statements Defendant made were included in his YouTube video where he stated that Auto Junction "don't give me my money," "they don't give me my bucks." As Defendant's reply brief points out, these statements are not defamatory because they are not substantially false. Indeed, Plaintiff's First Amended Complaint admits that the contract between Plaintiff and Defendant provided for a delivery price of $1,150.00. Because the vehicle was delivered late and with only one set of keys, Auto Junction paid what it considered to be the "reasonable value" of the delivery, but did not pay the full contract amount. Accordingly, Plaintiff's defamation claim fails as a matter of law.
The crux of Plaintiff's Complaint, however, is not that Defendant made defamatory statements himself. Instead, the Complaint asserts that Plaintiff encouraged his many followers to post false, negative reviews about Plaintiff's business. The damage to Plaintiff's business was accomplished by those false negative reviews posted by Defendant's Youtube followers. As a result, Plaintiff also asserts a claim against Defendant for "aiding and abetting" defamation.
In order for a plaintiff to prevail on an aiding and abetting claim, proof of the following elements is required: "(1) the primary tortfeasor must commit a tort causing injury to the plaintiff; (2) the defendant must know the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in achieving the breach." "Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance." Restatement (Second) of Torts § 876, cmt. d (1979). An illustration to section 876 of the Restatement (which Arizona follows) elucidates the kind of encouragement necessary to create aiding and abetting liability under Illustration 4: "A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C."
The Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion establishes that Defendant's conduct was intended to encourage his followers to attack Plaintiff's business publicly. Plaintiff presented evidence that these third-party reviews were false and defamatory and are therefore unprotected speech.
No Sealing of Expired Harassment Restraining Order
From the May 26 decision in Hayne v. Akoto, by Minnesota Court of Appeals Judge Elizabeth G. Bentley, joined by Judges Keala Ede and Lisa Beane:
On July 2, 2025, over a year after [a 2022 harassment restraining order against her] expired, Akoto moved to have the record of the case sealed under Rule 4, subdivision 1(e), of the Minnesota Rules of Public Access. In that motion, Akoto asserted that the public accessibility of the HRO records "continue[d] to cause significant harm to [her] personal and professional life," and that it had negatively impacted her "ability to obtain housing, employment, and to rebuild [her] reputation and relationships." … The district court denied Akoto's motion [and a follow-up filing that] attached exhibits purporting to show that she is underemployed and has had to live in poor conditions because of the public accessibility of the HRO records….
More on Birthright Citizenship and Intellectual Diversity Mandates
Final articles now in "print"
I have two articles just released in their final form.
One, with James Heilpern, examines how "subject to the jurisdiction" was used in legal texts in the United States through the adoption of the Fourteenth Amendment. Making use of treaties, statutes, congressional debates, and judicial opinions, the article considers whether that language, which was used in the Fourteenth Amendment's citizenship clause, had an established legal meaning that would have been known to the legal community in 1868. If so, what might that meaning be?
From the conclusion of that article:
The task of this Article is a narrow one. We do not investigate the specific intentions of the drafters of the Fourteenth Amendment or examine their specific purposes in including the Citizenship Clause. We simply ask to what degree did the drafters of that Clause use familiar legal terms and what would have been the ordinary meaning of those terms as used in a legal text. The evidence is overwhelming that the phrase "subject to the jurisdiction" would have had a natural and obvious meaning to mid-nineteenth century American lawyers. These were ordinary legal terms that regularly appeared in legal discourse.
Moreover, the evidence is overwhelming as well as to what the substantive content of that language would have been in 1866. In the legal language of the mid-nineteenth century, "subject to the jurisdiction" of the United States simply meant governed by the United States. That governing authority might have been exclusive or shared, and those subject to that governing authority might have owed a duty of allegiance or they might merely have owed a duty of obedience. Those governed by the United States might be subject to American jurisdiction on a more permanent basis or they might only be subject to that governing authority on a contingent and temporary basis. Those governed by the United States might only be subject to its authority for limited purposes or they might be governed by it more comprehensively. When lawyers wanted to restrict the scope of jurisdiction, they used appropriate modifiers to do so. Using the language of the Fourteenth Amendment to express any idea other than "within the governing authority" would have been creative to the point of absurdity.
That article is now available from the Harvard Journal of Law and Public Policy here.
The second examines Indiana's statutory intellectual diversity mandate, known as Senate Bill 202. The law requires that professors teaching in state universities in Indiana demonstrate, among other things, that their courses include an intellectually diverse set of materials in order to retain their jobs. It charges the board of regents to use the tenure process to enforce this requirement. As written, the statute poses a multitude of difficulties for academic freedom and the intellectual enterprise of university teaching.
SB 202 might identify a real concern about American higher education, but the solution it offers is not only ineffective but problematic. SB 202 creates a vague set of tenure criteria that can easily be misused to target politically controversial professors. The result is unlikely to improve the quality of classroom teaching or genuinely foster a climate of free inquiry on university campuses, but it might lead professors to cater to the loudest cavilers in an effort to insulate themselves from capricious reprisals.
That article is based on the Addison C. Harris Lecture at the Maurer School of Law and is now available in the Indiana Law Journal here.
Pre-Judgment Attachment in Libel Cases
An interesting remedy that I've seen a few cases; here is the most recent one, Hussain v. Quraishi, decided May 20 by Judge Matthew T. Wax-Krell (Conn. Super. Ct. Tolland Jud. Dist.) (plaintiffs Hussain and Garcia are the owner and practice manager of plaintiff VCare Family Practice LLC, which owns the medical office Shifa Clinic):
… Quraishi worked as an independent contractor at the Clinic doing IT work. In 2017, the plaintiffs began having issues with Quraishi, which ultimately led to Hussain applying for a civil protection order against Quraishi, which the Court granted on October 12, 2018.
After that, Quraishi stopped harassing the plaintiffs, but in July of 2025, for reasons unknown to the plaintiffs, Quraishi began posting on Facebook repeatedly about them.
In the Facebook posts, he accused them of various crimes and fraudulent actions, including, among other claims, fraud and identity theft, Medicare and Medicaid fraud, and using a deceased doctor as their medical director.
As a result, on July 7, 2025, Hussain applied for a civil protection order against Quraishi, which the Court granted on July 21, 2025. On that same date, Garcia applied for a restraining order against Quraishi (they had briefly dated in 2015), which the Court granted on July 16, Quraishi was ultimately arrested for violating the restraining order.
Despite the entry of the civil protection order and the restraining order, Quraishi continued posting about the plaintiffs throughout July of 2025 and then from November of 2025 through April of 2026. These posts included more allegations of perjury, witchcraft, identify theft, Medicare and Medicaid fraud, theft of intellectual property, counterfeiting of documents, filing false statements to the police and the courts, and fraudulent billing.
The plaintiffs deny all of the allegations made by the plaintiff [presumably intended to say "defendant" -EV] in his Facebook posts….
For purposes of obtaining a prejudgment remedy, the plaintiffs do not have to establish that they will prevail, only that there is probable cause to sustain the validity of their claims. Under this standard, the court concludes on the evidence presented that there is probable cause to sustain the validity of the plaintiffs' claim against the defendant.
Today in Supreme Court History: June 3, 1918
6/3/1918: Hammer v. Dagenhart decided.
Open Thread
What’s on your mind?
The Supreme Court Reverses Inferior Court Supremacy In Alabama
Alabama has no obligation to follow a vacated order, and had every right to challenge a district court's order until it is settled by the Supreme Court.
Late Tuesday evening, the Supreme Court granted Alabama's emergency motion to revise its legislative maps following Callais. The per curiam opinion offers a handy summary of Callais and expressly extends that doctrine to the vote dilution context. The merits analysis stretches one paragraph, but here I want to focus on a single critical sentence:
As to intentional vote dilution, the District Court did not heed the presumption of legislative good faith, see Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1, 10 (2024), because it interpreted the State's legal disagreement with the court's earlier remedial order as proof of discriminatory animus. Cf. Abbott v. Perez, 585 U. S. 579, 608–609 (2018).
When I read the Alabama district court's order, I had the same reaction: not following a court's order that was vacated cannot be used to demonstrate a discriminatory intent. The Supreme Court's decision to vacate the district court's order rendered that order null and void, as if it had never existed. The district court cannot then turn around and claim that the failure to follow its non-existent order is proof of animus. I meant to write on this point, but I didn't get a chance. (Thanks Judge Betsy.) Now is a good time.
I've written about inferior court supremacy, the notion that a single district court can settle the meaning of the Constitution. CASA v. Trump went a long way to rebutting this presumption by firmly establishing the principle of Supreme Court judicial supremacy. I have problems with this aspect of CASA, but that is now the supreme law of the land. Now, the Supreme Court's emergency docket order in Allen v. Milligan further clarifies how unsuperior the inferior courts are.
Litigants, including state governments, should not violate a binding court order. Doing so would lead to contempt of court, which did not happen here. Instead, the district court ordered Alabama to adopt a new map. Alabama chose to adopt a map that the state found consistent with Supreme Court precedent. The District Court disagreed. The state had the right to adopt that new map, knowing it would be challenged in court, and the Supreme Court would ultimately resolve the matter on its mandatory jurisdiction docket. This is more-or-less what Justice Alito discussed on the cited pages of Abbott v. Perez.
There was no defiance of any binding court order. However, Justice Sotomayor's dissent, repeatedly charges the state with defying and flouting the district court's order:
"Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court"
"It also corrodes the rule of law by rewarding Alabama's gamesmanship and outright defiance of court orders."
"Second, the Court should not have rewarded Alabama's defiance of court orders and blatant gamesmanship throughout this litigation."
"Alabama's hands, however, are far from clean. Instead, it defied the District Court's order in these cases even after this Court affirmed it. . . ."
"First, Alabama intentionally chose to flout a preliminary injunction that this Court affirmed in Allen."
Justice Sotomayor explains that Alabama hoped the Supreme Court would agree with the state on appeal:
Of course, Alabama had every right to raise its "legal disagreement," ante, at 3, with the District Court's original preliminary injunction through the appellate process orotherwise. The course of action the State chose here, however, was not the proper way of doing so. Had Alabama complied with the preliminary injunction and drawn a map with a second opportunity district, it could have relitigated the merits in the ordinary course: first at a trial on the merits, and then on appeal. At either stage, it could have raised the arguments that the litigants in Callais raised and prevailed on, or advanced challenges to the District Court's remedial order. Instead, Alabama willfully drew a map that flouted the District Court's preliminary injunction and hoped that this Court would eventually see things its way. After today, it is hard to call Alabama's cynical gambit anything other than a success, and the Court's rewarding of Alabama's behavior anything other than a blow to the rule of law.
Sotomayor also quotes from the Speaker of the Alabama House:
The record is bereft of evidence suggesting that Alabama took seriously this Court's finding of discriminatory vote dilution in Allen. Speaker of the Alabama House of Representatives Nathaniel Ledbetter put it bluntly: "'If you think about where we were, the Supreme Court ruling [in Allen] was five to four. So there's just one judge that needed to see something different.'"
This action is only improper if you accept the notion that district courts can settle these constitutional cases. But if you agree with CASA that the Supreme Court is supreme, then Alabama's actions are the only way to test the validity of a new maps. And litigants are well within their rights to hope a 5-4 decision at one stage of the litigation goes 5-4 the other way. Dobbs got to the Supreme Court because Mississippi wanted to test Roe. Callais got to the Supreme Court because Louisiana wanted to test Gingles. And Allen made several trips to the Supreme Court for similar reasons. Justice Sotomayor is wrong on this point.
Where Have All the Good Lawyers Gone?
How did an immunity for Trump sneak into Slushfundgate?
I continue to find one small detail of the Slush Fund affair (Slushfundgate?) of particular interest.
As you may recall, our President's suit against the IRS was voluntarily dismissed on May 16.
Two days later, on May 18, the parties executed a "Settlement Agreement." In that Agreement, the DOJ* agrees to issue "a formal apology" to our President, and "the Attorney General of the United States agrees to create the [$1.776 billion] Anti-Weaponization Fund, subject to the terms and conditions described herein."
*The "Settlement Agreement" was signed "for the United States" by Associate Attorney General Stanley Woodward. The DOJ was, presumably, acting in its capacity as counsel to the defendant (I.R.S.).
Daniel Z. Epstein, counsel to the Plaintiffs (our President, his two sons, and the Trump Organization), is the other signatory.
In exchange for all that (the apology and the Fund), Trump and the other Plaintiffs agree to:
RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE Defendants [the I.R.S.] and the United States from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney's fees, expenses, and/or interest, that - as of the Effective Date - have been or could have been asserted by Plaintiffs in the Case or the Pending Agency Claims, by reason of, with respect to, in connection with, or which arise out of, matters in the Case or the Pending Agency Claims. [Emphasis added]
Curious, no? On several grounds.
First: Trump releases all his claims against the IRS? That doesn't sound like Trump. Given that the whole undertaking is patently a sham - Trump "settling" with Trump -- why would Trump give away anything at all? Just to make it look like there's an actual "exchange" taking place?
And while it might look as though Trump is giving the "other side" something of value, he isn't. Two days before the "Settlement Agreement" was executed, his claim was dismissed, at his request, with prejudice. So when he sits down to "negotiate" his "Settlement Agreement" on May 18th, sitting across the table from his reflection in the mirror, he's already barred from ever raising those claims again. So his "waiver" is entirely redundant and meaningless.
And notice: the "Settlement Agreement" doesn't make any reference at all to the dismissal of Trump's claims. That's also a little odd. Ordinarily, when parties agree to settle ongoing litigation, their Settlement Agreement will say something like:
"Plaintiff promises to voluntarily dismiss his claims against the Defendant, in exhange for the Defendant's promise to [do something, or pay something]."
The withdrawal of Plaintiff's claim is a big part of the consideration flowing between the parties, which is what makes the Settlement Agreement an enforceable contract; the parties are exchanging things of value.
Not so, here. Trump can't promise to drop his claims against the IRS, because he's already dropped them.
And notice: in the "Settlement Agreement," Trump waives any claims he might have against the IRS. It does not say that the IRS waives any claims it may have against Trump.
But the very next day (May 19th), this curious document appeared on the DOJ website. It simply states, with absolutely no additional explanation, that
The United States RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs from, and is hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney's fees, expenses, and/or interest, that - as of the Effective Date - have been or could have been asserted by the Defendants (i.e., the IRS) against any of the Plaintiffs or related or affiliated individuals . . . [Emphasis added].
This document - untitled, and with nothing at all of substance other than this waiver - was signed by (a presumably shame-faced and embarrassed) Acting Attorney General Todd Blanche.
Did Blanche just forget to have this clause included in the "Settlement Agreement"?! There's no additional consideration coming from the Plaintiffs in exchange for this waiver of the potential United States claims; so its either just a little gift ("From the People of the United States, in Recognition of Your Brilliant Leadership!!!!"), or it was supposed to be included in the Settlement Agreement but was inexplicably left out.
And that would constitute incompetence of truly monumental proportions. Did the Acting Attorney General not read the (two-page!) Settlement Agreement between the sitting President (for whom he works) and the IRS? Or he did read it over, and fail to notice that the immunity he thought was going to be in there for the President was missing? Is it really possible?
Sure looks that way, doesn't it?
Here's how I think it all went down. During the negotiation sessions over the "Settlement Agreement," where the hard bargaining between Trump and Trump was taking place, Trump turned to Todd Blanche, who was there as counsel to the IRS and to the President, and said:
"Draft up a Settlement Agreement - and don't forget to put in that waiver!!"
Blanche turns to his deputy, Stanley Woodward - remember, it was Woodward who actually signed the "Settlement Agreement" on behalf of the United States - and said:
"Woodward, draft up the Settlement Agreement. And don't forget to put in that waiver!!"
And Woodward thinks to himself:
"What waiver?"
He figures they must be referring to a waiver by Trump for all claims that Trump may have against the IRS. After all, one would expect a Settlement Agreement to contain a waiver running in that direction, one where Plaintiffs promise to drop their claims and not to sue the Defendants as part of the overall settlementy deal. He inserts such a clause into the Settlement Agreement.
Astonishingly, nobody notices the omission until the day after the Settlement Agreement is signed.
Keystone Kops lawyering at its best, or worst.
Today's NY Times happens to have an article about the exodus of lawyers from the federal government. ["Trump Administration Sees Striking Exodus of Legal Talent"] DOJ has lost 21 percent of its lawyers in a little over a year. AbovetheLaw.com has been reporting on this for a while, and the evidence is indeed starting to accumulate that the quality of lawyering out on the front lines is declining.
Not to worry, though. Our President reassures us:
The New York Times wrote a story today entitled, 'Trump Administration Sees Striking Exodus of Legal Talent,' as though that's a bad thing, when actually, it's very good. The people that are leaving are Radical Left Deep State Lunatics, who are destroying our Country, and Weaponizing Government. Many of them didn't leave, but were fired! The Failing New York Times writes this, but makes it sound like it's a terrible thing when actually, it's just the opposite. We want people that will, MAKE AMERICA GREAT AGAIN, not people that are trying to destroy our Country, that were put in by Obama and Biden and, in many cases, they shouldn't have been representing the U.S.A. in the first place."
Free Speech Unmuted: The First Amendment and Privacy Rights
Jane Bambauer and I explore the uneasy collision between free speech and privacy law—from anonymous pamphlets and wiretaps to revenge porn, hidden cameras, Hulk Hogan, and whether anyone truly owns their own name or life story.
For past Free Speech Unmuted videos, see:
Court Issues Temporary Restraining Order Protecting Group Flying "8647" Flag
The flag, in context, likely doesn't fit within the First Amendment exception for true threats of illegal conduct or incitement of illegal conduct. [UPDATE: I had originally called this a preliminary injunction, but it is technically a temporary restraining order.]
From yesterday's decision (which strikes me as correct) in Accountability Now USA v. Griess, by Judge Randolph Moss (D.D.C.):
Plaintiff, an unincorporated association that maintains a 24/7 demonstration calling for the impeachment and removal of President Donald Trump on National Park Service ("NPS") land, moves for an emergency order temporarily restraining the Superintendent of the National Mall and Memorial Parks Kevin Griess and the Secretary of the Interior Doug Burgum or their delegees "from taking enforcement action against them because of their display of a flag with the legend '8647.'" For the reasons that follow, the Court will grant Plaintiff's motion….
The parties' disagreement … turns on whether Plaintiff's display of the "8647" flag constitutes protected speech, as Plaintiff asserts, or a "true threat" to the life or safety of the President (or an incitement to violence), as Defendants maintain. At oral argument, both sides agreed that context is dispositive. Not every use of the slang phrase "86" constitutes a threat of violence; to the contrary, it is most often used to mean that an item is no longer available or that someone or something should be removed, ejected, or thrown out. But it can, in some contexts, mean "to kill." …
"True threats of violence, everyone agrees, lie outside the bounds of the First Amendment's protection." "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "The 'true' in that term distinguishes what is at issue from jests, 'hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow." …
The Court starts with the premise that the word "86" is a slang term with no single meaning. According to Merriam-Webster, "Eighty-six is slang meaning 'to throw out,' 'to get rid of,' or 'to refuse service to.'" The phrase "comes from 1930s soda-counter slang meaning that an item was sold out[,]" and may have been used because it rhymes with "nix." It was first used as a noun to refer "to an item … that had been sold out," but by the 1950s, the term was used as a verb, at first meaning " 'to refuse to serve a customer,' … later meaning " 'to get rid of; to throw out,' " and still later coming to mean " 'shut out' or 'rejected.'" Merriam-Webster further notes that a recent extension of these meanings has included "'to kill,'" although the dictionary declines to endorse that meaning "due to its relative recency and sparseness of use." According to Merriam-Webster, "[t]he most common meaning of eighty-six encountered today is the one that is closer to its service industry roots." …
Eventually, the Steam Drill Always Wins: "Law Professors Prefer AI Over Peer Answers"
From a draft by Stanford law professor Julian Nyarko and others:
We conducted a blinded evaluation of short-answer tutoring in contracts courses with sixteen U.S. law professors. Participants created 40 representative questions, wrote answers, and judged 2,918 anonymized comparisons between human and LLM responses. Professors rated LLMs far higher than their peers (average win rate = 75.33%), with models performing similarly to the best instructor. LLM responses were also rarely flagged as harmful (3.53%, vs 12.06% for professors). Preferences for LLM answers were consistent across evaluators and reflected shared professional standards….
Sixteen contracts professors from fourteen U.S. law schools—who all use the same casebook to teach the material—authored questions representative of those asked during office hours. From this pool we curated 40 representative questions spanning four instructional categories (Recall: Case or Code, Recall: Doctrine, Hypotheticals, Policy).
Recall questions—whether relating to a case, code or doctrine—tend to be amenable to answers which can be evaluated against a ground truth, and where argumentative strength is of little importance. In contrast, hypotheticals present a short set of facts and ask how the law should be applied. Together with policy questions, which often center on legal or policy design under heterogeneous preferences, providing a strong answer in this category often relies on displaying careful reasoning, weighing competing arguments and other latent, professional standards of quality—even if the relevant doctrine is now settled.
Upcoming Speaking Engagements - Summer 2026 [Updated]
Ilya Somin's upcoming speaking engagements for the summer of 2026. Most are free and open to the public.
Below is my list of speaking engagements for the summer of 2026. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I normally post lists of speaking engagements only during the academic year. But this summer, I have an unusually large number of them. So I decided to do a post.
I may add additional events and information to this post, as they are scheduled, and update details on existing ones. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!
June 12, 12-1 PM, Southwest Florida Federalist Society, Lawyers Division Chapter, Bruno's (restaurant), 2149 First St., Fort Myers, FL: "Immigration is Not Invasion." Note: I accidentally listed the wrong date for this event (June 10). June 12 is the correct date.
June 17, 3-4 PM, Housing Working Group, American Institute for Economic Research (online event): "The Constitutional Case Against Exclusionary Zoning." This event is, I believe, limited to members of the AIER housing working group, and possibly other AIER affiliates.
June 17, 6-9 PM, Institute for Humane Studies, National Press Club, Washington, DC: "IEEPA and the Limits of Executive Power." This event features a live podcast recording, followed by a Q&A session, and a reception. Registration and other information available here.
July 7, 6-7:30 PM, Annual Supreme Court Review, National Constitution Center, Philadelphia, PA: "Tariffs and the Limits of Executive Power" (tentative title). Panel on "The Supreme Court and Executive Power."
July 15, time TBA, Brennan Center for Justice, New York University, NYU DC 1307 L Street NW, Washington, DC: "Assessing the Tariff Decision" (tentative title), conference on "Congress and the Court.
