Democracy's Challenges: 100 Ideasis a new book published by New York University Press, and edited by Robert Bauer, Samuel Issacharoff, Richard Pildes, and Rosa Po. It includes 100 short chapters on how to improve American democracy, written by experts from a variety of disciplines, and representing a wide range of views. I am one of the contributors. And, thanks to a grant from NYU, it's available for free! You can download it here. The individual chapters are also available separately at the NYU Democracy project website.
Other contributors include prominent scholars and commentators, such as VC co-blogger Jonathan Adler (William and Mary), Randall Kennedy (Harvard), Samuel Moyn (Yale), Andrew McCarthy (National Review), Molly Reynolds (Brookings Institution), Rick Hasen, John McGinnis (Northwestern), Julia Azari, Aziz Huq (Chicago), Robert George (Princeton), and many more.
WHEREAS, Respondent acknowledged to the Court in his written response and oral argument that he used the generative artificial intelligence (AI) tool ChatGPT in the preparation of the brief in chief he filed with the Court;
WHEREAS, Respondent admitted to the Court that the brief in chief contained false testimony from wholly fabricated witnesses—Officer Michelle Amarillo, Officer Sanchez, Manal Al-Jibury, and Teresa Marquez; false testimony from Danny Stanton that he received threats, which he took seriously, from Defendant-Appellant; false testimony from Linda Stanton about the threats her husband received; false testimony from Mariah Chavez and Teresa Marquez (fabricated witness) regarding the shooter's clothing and appearance; and misrepresented legal authority in State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80 and State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P. 2d 280;
WHEREAS, Respondent admitted to the Court that he did not verify the factual claims and legal authority in his AI-generated brief before signing it and filing it with the Court, and that he did not inform his client of this failure or that the brief in chief contained multiple factual and legal misrepresentations;
If you purposefully set out to concoct a government policy guaranteed to be unconstitutional, here is how you would do it. You would impose a restraint that forbids people from expressing viewpoints on contested political issues that dissent from the government's official position. And you would justify the restraint by arguing that, if the citizenry were given the whole truth, they might think less of the government.
This restraint doesn't exist in the fever dream of a constitutional law professor writing a final exam. It's real. It's called a "one board" or "one voice" policy, and it appears to be commonplace at school boards, college trustee boards, and other government policymaking bodies across the United States.
These policies typically provide that members of elected or appointed governing bodies are forbidden from expressing disagreement with the body's majority position once an issue has been voted on. The rationale for them is simple: to create the impression that the board is united—even if the unanimity is feigned.
To cite just one example, school districts across the Flint, Michigan, area reportedly enforce regulations that forbid elected school board members from "publicly sharing their opinions on any school district issues," requiring board members to submit any questions they receive to the district superintendent. At the higher education level, Michigan State University recently demanded that its publicly elected trustees accede, under threat of discipline, to a code of conduct that forbids sharing any information with the public or press without permission, part of a package of restrictions that is overtly intended to dampen dissent within the often-fractious board. Similar constraints have been imposed by elected or appointed governing boards throughout the country.
Plaintiff is Dr. Mahendra Amin, a gynecologist who performed medical services on some patients detained at an immigrant detention center. Defendant is Spiegel & Grau LLC, a publisher. Plaintiff alleges that Defendant published a book containing false and defamatory statements about him and about his work as a doctor at the detention center….
Defendant argued its statements were a "fair report" of documents in a government proceeding, but the court declined to deny the case on these grounds:
As Defendant's counsel conceded on the record at the April 28 Conference, the fair report privilege is contextual and depends on whether a reader would understand that a statement refers to the background or findings of a proceeding. Plaintiff complains of several paragraphs in the book, including the below:
On September 14, 2020, in a footnote to President Donald Trump's unconscionable treatment of migrants, a nurse named Dawn Wooten, who worked at the Irwin County Detention Center in Ocilla, Georgia, filed a whistleblower complaint. She said that Dr. Mahendra Amin—the center's leading doctor who was not even a gynecologist—allegedly told nearly eve1y woman who went to see him that she had to have a hysterectomy. Wooten referred to him as a "uterus collector."
Defendant argues that the paragraph is covered by the fair report privilege because it either summarizes a whistle blower complaint, which precipitated a congressional investigation, or is corroborated by a congressional investigation. This argument ignores that the whistleblower complaint did not allege either that Plaintiff was "the center's leading doctor" or "was not even a gynecologist," which are among the statements that Plaintiff alleges were false or defamatory. Indeed, the whistleblower complaint reported that the detention center "sen[t] many women to see a particular gynecologist outside the facility," seemingly a reference to Plaintiff. Therefore, the statements that Plaintiff was the center's leading doctor and not a gynecologist cannot be reasonably interpreted as mere reporting on the whistleblower complaint.
The Cato Institute, Michael McConnell, and I filed an amicus brief in litigation challenging Trump's massive Section 301 tariffs, which use "forced labor" as a pretext for sweeping protectionism.
The Cato Institute, Stanford law Prof. Michael McConnell and I recently filed an amicus brief before the US Court of International Trade, in litigation challenging Donald Trump's massive Section 301 tariffs. Michael McConnell is one of the nation's leading experts on executive power, a prominent conservative originalist constitutional law scholar, and was our lead counsel in the Supreme Court phase of the case that led to the invalidation of Trump's IEEPA tariffs. It is an honor to work with him again.
Here's a summary of our brief, which I prepared for the Cato website (which will also post the brief soon):
In February 2026, the Supreme Court invalidated the massive tariffs that President Trump attempted to impose under the International Emergency Economic Powers Act (IEEPA). But that decision did not end Trump's efforts to unilaterally impose onerous tariffs. He has sought to recreate sweeping tariffs using other statutes. Most recently, he has sought to impose massive 10-12.5% tariffs on imports from sixty US trading partners, using Section 301 of the Tariff Act of 1974. The new tariffs were enacted under the pretext of combatting goods produced by "forced labor." Two groups of small businesses and 25 state governments, led by the state of Oregon, have filed lawsuits in the US Court of International Trade challenging the legality of the Section 301 tariffs.
Cato, Professor Michael McConnell, and Professor Ilya Somin, our B. Kenneth Simon Chair in Constitutional Studies, have filed an amicus brief opposing the new Section 301 tariffs. McConnell is a law professor at Stanford University, a former federal appellate judge, and served as lead counsel for the victorious plaintiffs in the Supreme Court phase of the IEEPA tariff case. Somin previously served as co-counsel in the same case. We thank Joshua Claybourn, and Daniel Wolff, Alexander Schaefer and others at Crowell & Moring for assistance in drafting and filing the brief.
Part I of our brief explains that Section 301 grants limited authority to impose tariffs in response to specific "unreasonable or discriminatory" government policies by "a foreign country" that "burden[] or restrict[] United States commerce." It is not a blank check for whatever tariffs the executive branch may want to impose against dozens of countries around the world.
Part II outlines why, if there is any ambiguity about whether Section 301 authorizes these massive tariffs, the major questions doctrine requires that the issue be resolved against Defendants. That doctrine obliges Congress to "speak clearly" when it assigns to the executive "decisions of vast 'economic and political significance.'" The impact of these massive Section 301 tariffs is as large or larger than most policies previously invalidated by the Supreme Court on major questions grounds. And the tariff power is not exempt from major questions scrutiny on the supposed ground that it is a "foreign affairs" power.
Part III shows that if Section 301 did grant the President the power he claims, it would violate the nondelegation doctrine, which constrains transfer of legislative power to the executive. If Defendants' interpretation of Section 301 is correct, the Office of the United States Trade Representative (USTR) can impose unlimited tariffs on virtually any imports from any country at any time. Such a sweeping delegation of a core congressional power would violate the requirements that (1) Congress not make "boundless" delegations of the power to tax, and (2) that "[t]he 'guidance' needed is greater when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue."
I previously wrote about the Section 301 tariffs and why they are illegal in this Dispatch article. Cato and I also recently submitted an amicus brief in the related Section 122 tariff case, which is currently before the US Court of Appeals for the Federal Circuit.
Murray v. Alphabet Inc. (D. Utah): Complaint filed, case in progress, no judicial action so far.
Grybniak v. Google LLC (D.P.R.): Complaint filed, case in progress, no judicial action so far.
Grybniak v. X.AI LLC (D.P.R.): Complaint filed, case in progress, no judicial action so far.
For a case that alleges false and reputation-damaging hallucinations but that doesn't include a defamation claim, see Doe v. OpenAI Found. (Cal. Super. Ct.); there also hasn't been judicial action there.
From today's decision by Judge Thomas Durkin (N.D. Ill.) in Keene v. Google LLC:
Keene is an author, television producer, and former FBI operative. In 1997, he pled guilty to conspiracy to distribute drugs and was sentenced to ten years in prison. In exchange for a pardon, Keene agreed to work with the FBI as a prison informant to help gather evidence against suspected serial killer Larry Hall. Hall was ultimately convicted, and Keene's conviction was expunged. Keene published a memoir recounting this experience that was subsequently adapted into an Apple TV miniseries titled "Black Bird."
Keene alleged that, from May 24 to June 27, 2025, at least four Google "AI Overviews" said false things about him:
Keene was "serving a life sentence without parole for multiple convictions."
He was "serving a life sentence without parole for the murders of three women."
He "was convicted of drug trafficking."
He was "serving a life sentence without parole in Butner, North Carolina."
The first three overviews were allegedly responses to a search for "Jimmy Keene net worth," and the fourth to a search for "Is Jimmy Keene still alive."
Each AI Overview cited a Wikipedia page as the source of the information and provided a link to that page. However, the Wikipedia page did not contain the false statements in the AI Overviews. AI Overviews 1 and 2 were seen by various family members, friends, and acquaintances.
Keene complained to Google about the false statements on three occasions: May 27, 2025, May 31, 2025, and after June 27, 2025. Google allegedly apologized to Keene after each complaint and deemed the statements errors made by its Artificial Intelligence.
Keene sued, and the court allowed the case to go forward as to AI Overviews 1, 2, and 4 (with one minor procedural twist as to AI Overview 4 that I'll mention below). The court held that Keene had sufficiently alleged that an ordinary reader would have understood the statements as factual assertions:
"[T]he Department submitted credible evidence that threats, doxxing, and other forms of harassment have been directed toward law enforcement charged with enforcing existing federal immigration laws."
From In the Matter of Darney v. Carroll Township Police Dep't, decided Aug. 31 by the Pennsylvania Office of Open Records, affirming a police department's "redact[ing] officers' names from certain training certificates" released in response to a Right-to-Know Law request for a police department's "287(g) agreement" with ICE:
Section 708(b)(1)(ii) of the RTKL exempts from disclosure a record that "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual." To establish that this exemption applies, an agency must show: (1) a "reasonable likelihood" of (2) "substantial and demonstrable risk" to a person's security. "Reasonably likely" has been interpreted as "requiring more than speculation."
Under the RTKL, one method an agency may use in meeting the burden of proof that a record is exempt is a testimonial affidavit, which if "found to be relevant and credible may provide sufficient evidence in support of a claimed exemption." Such "affidavits must be detailed, nonconclusory, and submitted in good faith." No evidence has been presented to show that the Department acted in bad faith, and therefore the averments in the Department's attestation should be accepted as true.
Here, [Chief of Police Thomas] Wargo Attests that the Department provided nine responsive training certificates. Further:
The judge, Lawrence Wheeler of the District Court of Stephens County, told an investigator with the Oklahoma State Bureau of Investigation that he used OpenAI's ChatGPT for research, and that an order he drafted contained two citations to cases that do not exist, according to an August 17 letter from a prosecutor to the state attorney general's office….
According to the August 17 letter, [DA Jason] Hicks recused himself from investigating Wheeler and asked Oklahoma State Attorney General Gentner Drummond to review the Oklahoma State Bureau of Investigation's report or reassign the inquiry.
Drummond's office in its statement on Wednesday said its criminal division "thoroughly reviewed" the claims and was not pursuing them further.
The OSBI also looked into allegations "that Judge Wheeler offered to amend the order in exchange for a dismissal of a writ seeking relief from the Oklahoma Supreme Court" and that he "eavesdropped on jury deliberations," the DA disclosed in the letter.
I have previously written about Trump's harmful and illegal imposition of Section 338 tariffs against various Canadian imports, and his recent expansion of those actions to include categorical bans on some Canadian products. In this post, I will explain how the legal case against these actions is bolstered by the major questions and nondelegation doctrines.
Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. There is a strong case that Trump's Section 338 tariffs are illegal both because Section 338 (which has never been used previously) was superseded by later legislation, and because Trump's tariffs do not meet the textual requirements of Section 338. On the former point, see this 2025 Volokh Conspiracy guest post by Philip Zelikow of the conservative Hoover Institution. On the latter, see this excellent guest post by Georgetown University trade policy experts Peter Harrell and Jennifer Hillman.
But assume it is unclear whether Section 338 has been superseded and whether the Trump tariffs on Canadian imports meet the requirements emphasized by Harrell and Hillman: that Section 338 tariffs must be in response to foreign trade polices that "discriminate" against US goods, and must "offset" those discriminatory policies. In that event, the major questions doctrine (MQD) weighs against Trump's position.
MQD requires Congress to "speak clearly" when authorizing the executive to make decisions of "vast economic and political significance." It played a major role in litigation against Trump's massive International Emergency Economic Powers Act (IEEPA) tariffs. Bot the US Court of Appeals for the Federal Circuit (which has jurisdiction over all US tariff cases), and three Supreme Court justices struck down those tariffs in large part based on MQD.
Under the administration's interpretation of Section 338, it can be used to impose virtually unlimited tariffs against goods from almost any trading partner, so long as that government imposes any restrictions at all on American imports. They would not have to be meaningfully discriminatory, and the Section 338 tariffs would not have to be "offsetting" in the sense of closely calibrated to the trading-partner restrictions they are supposed to be countering. That kind of sweeping discretion over tariffs creates an obvious major question, inasmuch as it gives the president vast power over the US and world economies. And that power would not be limited to just US-Canada trade, though even the latter is extremely important, given that Canada is one of our biggest trading partners and the two economies are closely intertwined in many ways.
Trump's recent expansion of Section 338 restrictions further accentuates the "major" nature of the issues at stake. He has now used Section 338 to ban some imports entirely, as opposed to "merely" imposing tariffs. Under the administration's interpretation of Section 338, the power to embargo goods would also be nearly unlimited, so long as the trading partner in question imposes at least some constraints on US imports, and doesn't lift them in response to initial Section 338 actions. And, as the analyses by Zelikow and Harrell and Hillman show, it is at the very least far from clear that Section 338 is still in force, and that it gives Trump the sweeping power he claims.
If courts conclude that Section 338 does somehow authorize Trump's actions, even in spite of MQD, they should strike it down under the nondelegation doctrine, which limits delegation of legislative power to the executive. As the Supreme Court emphasized in the IEEPA case, tariffs are a congressional power, not an executive one. Thus, they are, subject to nondelegation restrictions. The power to ban imports entirely is also a congressional power, part of the authority to regulate international commerce.
The Supreme Court's nondelegation precedent is far from a model of clarity. But last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes (including, presumably, tariffs) must have a clear floor and ceiling and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue." There is no meaningful floor or ceiling to Trump's interpretation of Section 338. And the authority claimed by the administration is obviously one that affects the "entire national economy."
As the Supreme Court emphasized in the IEEPA case, the president is not supposed to have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Trump's approach to Section 338 would give him exactly that. Since the Supreme Court issued that decision, Trump has repeatedly tried to use other legislation to achieve the same sweeping power: Section 122 of the Trade Act of 1974 (invalidated by the US Court of International Trade, though the case is on appeal), Section 301 of that same act (the issue is now being litigated), and now Section 338. Courts should continue to reject these power grabs.
So far, there have not been any cases filed challenging the Section 338 tariffs. I hope that will soon change. And, when it does, the plaintiffs should make sure to make major questions and nondelegation arguments, in addition to other points.
The lecture drew upon some of Judge Sutton's scholarship and writing on the significance of state constitutional law, and how that can influence federal constitutional law.
During his remarks, Judge Sutton also discussed the Supreme Court's most recent term, and its handling of challenges to Trump Administration policies. This portion of his remarks were covered by Bloomberg:
The US Supreme Court's record on cases involving Donald Trump shows the conservative supermajority isn't in lockstep with the Republican president, the Sixth Circuit's outgoing chief judge said. . . .
Sutton . . . called the court's last term "so remarkable" in the face of a president exercising a "fairly aggressive" amount of power.
He noted the administration lost several times at the court. . . .
It "makes me proud to be a lawyer and proud to be a judge," Sutton said, because he can "guarantee" the administration would've won the cases it lost if those matters were put to the Republican-controlled Congress.
"The insight is, well, whatever these Republican appointees are doing, you can't call it pure politics, because if it was pure politics, they would act just like the Republican Congress," the judge said.
"There's something judges are doing, even in this moment where we're skeptical of the Supreme Court, skeptical of federal judges, maybe state judges. They're still doing something that you have to call different from party and elected politics," Sutton added.
As longtime readers know, I was a member of the CWRU law faculty for twenty-five years and, during much of that time (2008-2025), I curated the Canary lecture series. It is good to see the tradition continues. Prior Canary lectures are indexed here.
San Francisco Bay Area Rapid Transit District seeks to overturn a jury verdict of $7,824,580 to six former employees for Title VII violations for failure to accommodate their sincere religious objections to a COVID-19 vaccine mandate. Because sufficient evidence supports the jury's verdict, we affirm….
Title VII requires employers to "reasonably accommodate" religious objectors' sincere requests for exemptions from neutral job requirements that conflict with the objectors' religion, unless the employer can show that the exemption would create "undue hardship." That's Congress's choice, made in 1972, and in my view there are good arguments against mandating such religious exemptions from neutral rules, but Congress did indeed so mandate. And here, the court held, the jury was entitled to reject the employer's undue hardship argument:
It is undisputed that the Six Former Employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The propriety of [setting aside the verdict as inconsistent with the law] therefore turns on whether BART carried its burden of showing that Plaintiffs' religious objections could not be accommodated without undue hardship.
BART's argument … proceeds in two steps. First, BART argues that unrebutted testimony established that (1) public health guidance at the time advised that vaccination was the most effective measure for preventing the spread of COVID-19, (2) BART relied on this guidance in determining that it would be unacceptable from a safety and operational standpoint for unvaccinated employees to perform in-person work, and (3) its reliance on such guidance is dispositive for purposes of the undue-hardship determination because a religious accommodation that imposes an increased safety risk for others constitutes an undue hardship as a matter of law. Second, BART argues that remote work and unpaid leave—the only accommodations as safe as vaccination—were not reasonable accommodations as a matter of law because the only rational conclusion based on the evidence introduced at trial was that Plaintiffs could not perform the essential duties of their jobs remotely and any unpaid leave would have been indefinite….
