An excellent resource from Prof. Ed Lee (Santa Clara). The focus is on tort lawsuits brought against AI companies or otherwise based on defendants' use of AI software; this is separate from Damien Charlotin's AI Hallucination Cases Database.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"Needless Cost Increases" from "Both Counsels' Choices to Follow the Path of Most Resistance"
From Judge April Perry (N.D. Ill.) today in Doe v. Thomas. Some context:
Court Rejects Sealing of Summary-Judgment-Related Filings in Trump Media Libel Suit Against Washington Post
"Highlighting the absurdity of the sealing requests, one of the exhibits TMTG seeks to seal is the Post’s 2023 article, which was widely disseminated to the public when it was published and has been on file in the public docket in this case since July 2023."
From Trump Media & Tech. Group Corp. v. WP Co. LLC, decided today by Judge Tom Barber (M.D. Fla.); seems correct to me (and note that the court leaves room for some "targeted redaction of very limited and specifically identified information"):
Plaintiff Trump Media Technology Group, Inc. ("TMTG") brought this lawsuit for defamation against WP Company LLC (the "Post") arising from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023. The article described events related to a contemplated merger between TMTG and Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.
According to the article, in late 2021, Patrick Orlando, CEO of DWAC, arranged for $8 million in loans to TMTG from an entity known as "ES Family Trust" as part of a deal in which ES Family Trust would acquire an equity interest in the public entity to be formed from the merger. The article reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry.
The article also reported that TMTG paid a finder's fee of $240,000 in connection with the loans to Entoro Securities, a Texas entity of which Orlando was a managing director. The article stated that neither the loan-for-stock deal nor the payment of the finder's fee had been disclosed to shareholders of DWAC or the SEC, and presented the opinion of New York University law professor Michael Ohlrogge that these matters could affect the value of the shares and should have been disclosed.
TMTG filed suit against the Post for defamation and conspiracy …. [T]he case has been narrowed to address only two of the statements in the article: (1) "The companies also have not disclosed to shareholders or the SEC that Trump Media paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust;" and (2) "The recipient of that fee was an outside brokerage associated with Patrick Orlando, then Digital World's CEO." …
Because there is a presumption in favor of public access to court proceedings, Local Rule 1.11(a) expressly limits a party's ability to file information under seal to "compelling" circumstances:
Disbarred Lawyer Can't Pseudonymously Challenge Her Disbarment
From the Tenth Circuit today in Roe v. Colo. Jud. Dep't, decided by Judge Richard Federico and Judges Scott Matheson and Nancy Moritz:
Appellant previously held a Colorado law license. As alleged in her complaint, Colorado attorney regulators first found her disabled from the practice of law and then disbarred her. The Colorado Supreme Court later precluded her from representing herself in Colorado courts. She then filed this pro se federal civil action against the Colorado Judicial Department and officials involved in the disability and disciplinary proceedings, alleging those proceedings were discriminatory and unlawful in numerous ways.
Appellant filed her complaint using the pseudonym Jane Roe instead of her real name…. Nonparties the Colorado Freedom of Information Coalition (CFIC) and Eugene Volokh filed an objection to her motion to restrict….
"… Federal Rule of Civil Procedure 10(a) requires the names of all parties to appear in the caption of a complaint, and the title of all other pleadings must name the first party on each side." … "'[L]awsuits are public events' and 'there is no legal right in parties to be allowed anonymity.'" "'Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.'" …
Lawyers' Bar Journal Article Discussing Their AI-Hallucination Errors Doesn't Entirely Satisfy Judge, but …
the judge declines to issue sanctions, in part because “their expressions of repentance are made in good faith.”
From Doe v. Univ. of N.C. Sys., decided today by Chief Judge Martin Reidlinger (W.D.N.C.):
On November 10, 2025, the Court ordered the Plaintiff's counsel to show cause as to why they should not be sanctioned for the many errors in the documents they submitted to the Court, including: (1) citing two cases that do not appear to exist (i.e., hallucinated citations); (2) quoting material that does not exist in the cases purportedly quoted (i.e., hallucinated quotations); (3) mischaracterizing holdings of cited cases; (4) citing cases that have no bearing on the proposition for which they were cited; and (5) failing to provide pinpoint citations and information identifying the courts from which opinions issued.
On November 19, 2025, during a hearing on the show cause order, the Plaintiff's counsel admitted these errors and explained that, in large part, the errors resulted from misuse of artificial intelligence software (including a misunderstanding of how to properly use artificial intelligence) and a failure to verify the outputs of artificial intelligence software, even though the Plaintiff's counsel had signed certifications stating that they had verified every statement and every citation in the documents they submitted to the Court. The Plaintiff's counsel expressed remorse and offered to write an article for the state bar journal explaining their errors and the potential pitfalls of misusing artificial intelligence. The Court agreed that such an article—"an article that essentially says, we really screwed up and we almost got put under the jail, don't fall into the pit that we did"—could help other lawyers wake up to the seriousness of attorney misuse of artificial intelligence. The Court has refrained from discharging the show cause order pending counsel's preparation of the article.
The Plaintiff's counsel submitted their proposed article to the North Carolina State Bar Journal, and it has now been published. Fred W. DeVore III and Rob Wilder, Guarding Against AI Errors: Ethical Risks for NC Attorneys, N.C. State Bar J. 1, 8-12 (Summer 2026) (hereinafter "the Article"). Now before the Court is the issue of whether this Article is sufficient to purge the show cause order and the proposed contempt/sanctions that arose from counsel's errors.
Judge Ross Recuses From Election Interference Case
"[P]erceived support of Willis's position on election integrity could cause an objective observer to significantly doubt the undersigned's impartiality in this case"
On May 29, DOJ asked Judge Ross to recuse in United States v. Raffensperger, a suit to obtain Georgia election records. The motion sat on the docket for more than two weeks. On June 15, DOJ filed a notice of intent to file a petition for a writ of mandamus. That motion apparently got Judge Ross's attention. This morning, she recused from the case.
Judge Ross doesn't quite admit that she is the subject judge. She only presents facts as stated by the United States.
Based on media accounts, the United States asserts that the undersigned attended an event likely hosted by Fani Willis, the now former Fulton County District Attorney. [Doc. 112 at 6]. According to the United States, considering Willis's affiliation with the Democratic Party and her role in prosecuting President Donald J. Trump for election fraud, the undersigned's attendance at an event hosted by the Willis campaign creates an appearance of bias in this proceeding. [Id. at 6–7].
At this point, who is Judge Ross kidding?
To Judge Ross's credit, she does the right thing and steps aside based on her relationship with Fani Willis:
Nevertheless, the Court finds that recusal is appropriate based on the unique facts of this case. Specifically, this case concerns the Trump administration's efforts to obtain Georgia's unredacted voter registration list in furtherance of the administration's objective to uphold election integrity in Georgia, and Willis is known for her role in the prosecution of President Trump over his alleged interference in Georgia's elections. Both the Trump administration's present and Willis's past efforts have become heavily polarized. Thus, the Court cannot discount the potential that the undersigned's attendance at an event sponsored by Willis's campaign, even if that attendance was "only for the purpose of reuniting with former colleagues[,]" Judicial Council Report at 17, would lead an objective observer to perceive that the undersigned supports Willis's position. And perceived support of Willis's position on election integrity could cause an objective observer to significantly doubt the undersigned's impartiality in this case. Therefore, out of an abundance of caution for the potential perception of bias, the undersigned will disqualify herself from further proceedings in this case.
I will assume for present purposes that Judge Ross actually read this order before signing it. This order further suggests Judge Ross has no intent to resign. Impeachment is the only path forward.
Birthright Citizenship, the Common Law, and the 39th Congress
A new paper with Ben Keener on the original meaning of the Citizenship Clause of the Fourteenth Amendment
Ben Keener and I have posted a new paper on the original meaning of the Citizenship Clause of the Fourteenth Amendment. This one provides an extended analysis of the English common law origins of the native birth rule and of the debates in the 39th Congress over the meaning of the Citizenship Clause that they adopted as part of the Fourteenth Amendment. Ben has written about this issue before here, and I have written about it here and here. Although the Court will be ruling on this issue shortly, whatever the Court chooses to say will be unlikely to end the scholarly and political discussion. To do that, one must write a very long law review article.
The historical materials are unambiguous and unsurprising. As Coach Dennis Green once said, "They are who we thought they were." The English rule simply meant that those born on territory governed by the English sovereign and subject to the sovereign's rule were native-born subjects, and the Americans inherited that rule and understood it as such after the Revolution. When the 39th Congress sought to repudiate the Dred Scott decision and entrench a native-birth rule in the Constitution so that future political actors could not shrink or override the common-law rule and decide as a matter of policy which of the native-born they would prefer not to recognize as citizens, they drafted language that communicated the same, longstanding, common-law rule and they understood themselves to be doing so and said so explicitly and repeatedly.
From the conclusion:
The Citizenship Clause of the Fourteenth Amendment is neither mysterious nor indeterminate. It codifies a rule whose substance has been stable across four centuries of Anglo-American law: those born within the territorial reach of the sovereign's actual governing authority are, by that fact alone, natural-born citizens. The twin conditions of native birth and subjection to the jurisdiction of the United States do the same work today that Coke's "ligeance" and "obedience" did in 1608, that Blackstone's "allegiance" and "dominions" did a century and a half later, and that Kent's "jurisdiction" and "allegiance" did on the eve of the Civil War. The drafters of the Fourteenth Amendment did not invent a rule, disguise one, or leave one half-finished. They entrenched a rule already established in American practice and debased only by the aberrant Taney Court decision the Amendment was written to repudiate.
Today in Supreme Court History: June 16, 1960
6/16/1960: The 23rd Amendment is submitted to the states.
Open Thread
What’s on your mind?
SCOTUS To Newman: Drop Dead
The 98-year old life-tenured judge loses her final appeal.
This morning, the Supreme Court denied certiorari in Newman v. Moore. For years, I've thought that Chief Judge Moore is simply waiting for Judge Pauline Newman to die. There is no reason why each suspension has to last a year. The Bush appointee is waiting for the Reagan appointee's life tenure to conclude. She even removed Newman from the ridiculous AI video.
Now, alas, the Supreme Court has declined to intervene. Not a single member noted a dissent. They will just wait for this brilliant and capable jurist to expire.
My immediate thought was the famous Daily News headline. Ford to City: Drop Dead.
SCOTUS to Newman: Drop Dead.
What's left? There is a flag for this situation.
New in Civitas: "Our American Legal Tradition Is Not the Warren Court's Tradition"
"Which tradition prevails: the first 175 years when the people were allowed to govern themselves, or the last 75 years when we lived under judicial rule?"
I've been giving a lot of thought to the Ten Commandments case that should be appealed to the Supreme Court this summer. Very few people alive today can remember a world before the Warren Court established the separation of church and state. Likewise, prior to Dobbs, very few women of reproductive age could remember a time before the Burger Court established a constitutional right to abortion. The Supreme Court often considers how longstanding a legal tradition is. But many of the traditions established by the Warren and Burger Court stretch back five, six, and even seven decades. In a new Civitas Outlook, essay, I explain that the relevant tradition is the tradition the people established, not the tradition the Court imposed.
Here is the introduction:
In recent years, the Supreme Court has followed a tripartite approach to originalism. First, the Court asks whether the plain text of the Constitution neatly resolves the case. Second, if textualism does not provide a clear answer, the Court considers the history that predated the adoption of the relevant text—what did people say and do before ratification. Third, if the dispute remains unresolved based on the text and history, the Court will consider how the people understood and implemented that text after ratification — the so-called tradition.
The third inquiry, however, faces a practical problem: the Warren and Burger Courts. Between the 1950s and 1980s, the Supreme Court actively and brazenly altered nearly every facet of our polity. Longstanding traditions were disregarded, and the justices instead imposed their modern sensibilities on the American people. The examples are legion. The Court completely rewrote how our society approaches speech, religion, sex, and more. Today, we are still living in the shadow of those Platonic guardians. Indeed, court-created "traditions" from those decisions now stretch nearly three-quarters of a century. As America celebrates its 250th birthday, the courts face a conflict. Which tradition prevails: the first 175 years when the people were allowed to govern themselves, or the last 75 years when we lived under judicial rule?
And here is an excerpt on the Ten Commandments case:
The next Establishment Clause case to reach the Supreme Court will afford the justices an opportunity to correct course. Texas, my home state, required all public schools to post copies of the Ten Commandments in classrooms. Teachers are not required to read the decalogue or say anything else about them. It is a passive display that students will simply ignore, as they do most things that are not on their phones. Yet, Texas parents contend that this mere posting violates the Establishment Clause. They argue that students may feel coerced into engaging in religion, or that this religious text may intrude on how parents teach their children their own faith. The Fifth Circuit, sitting en banc, upheld Texas's law. This case will surely be appealed to the Supreme Court in the coming months.
This Texas dispute can be resolved based on tradition. But which tradition? Before the Warren Court intervened, many public schools required students to recite a prayer at the start of every day. Alas, the Warren Court obliterated that practice based on a defunct reading of the Establishment Clause. What is the relevant tradition? Does the Court focus on the judge-imposed separationism of the Warren and Burger Courts in the six decades since Everson? Or is the relevant tradition what the people themselves chose to do before the Supreme Court intervened? I think the answer has to be the latter. The modern day sense and sensibilities of people clinging to the moral code of the Warren Court cannot redefine the Establishment Clause.
The people of New York in the 1960s thought that a prayer in the classroom would be a useful way to promote morality and solemnize the day. The vast majority of people did not object to the law. That a few students, coupled with sympathetic justices, rejected that principle should have no bearing on our constitutional traditions. Indeed, the Texas law is proof that the Warren Court was wrong. Seven decades later, the people are still pushing back against this black-robed rule. The Ten Commandments have governed civilization since time immemorial. It is little wonder that opposition to Everson has persisted in exile for six decades.
This approach does not require the Court to reverse Everson, at least for now. Rather, each case should be decided based on the actual traditions of the people, and not the traditions thrust upon America by elite judges. The people should learn how to govern themselves again. There will be some discomfort with removing the shackles imposed by the Warren and Burger Courts. Fights over abortion after Dobbs illustrate this conflict. I don't doubt that some students will be bothered by the Ten Commandments, but eventually they'll get used to them. Or, if the discontent is strong enough, the political process can correct course.
This piece will serve as a basis for my forthcoming amicus brief in the Ten Commandments case.
Two New Large Libel Models Lawsuits, Though Alleging Mischaracterization Rather Than Outright Hallucination
They are, by my count, the 8th and 9th such claims filed in U.S. courts.
These closely related lawsuits are different, at least in degree, from previous lawsuits over allegedly defamatory AI output: Rather than alleging thoroughgoing hallucination, or (as in Battle v. Microsoft) the merging of two unrelated documents about similarly named people, they involve claims that AI output summarizing published documents overstates the allegations in those documents—a sort of claim that's pretty common in normal libel litigation against newspapers.
1. The SEC charged Sergii Grybniak with violating
[1] the antifraud provisions of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 thereunder, and
[2] the registration provisions of Sections 5(a) and (c) of the Securities Act ….
A federal court granted summary judgment to the SEC as to the registration violation allegations, and denied summary judgment to Grybniak as to the fraud allegations, on the grounds that "genuine disputes of material facts exist as to each category of [alleged] misrepresentations." After that, the parties entered into a consent judgment. The SEC's press release characterized the settlement thus:
In its complaint, the SEC alleged that … Grybniak and Opporty conducted an unregistered and fraudulent securities offering of crypto assets called OPP Tokens via an initial coin offering ("ICO"), raising approximately $600,000 from nearly 200 investors. The complaint also alleged Grybniak and Opporty marketed the ICO by making material misrepresentations and omissions and engaging in other deceptive conduct, including exaggerating the number of users and growth of its online blockchain-based marketplace for small businesses, misrepresenting the nature of Opporty's purported partnership with a major software company, and claiming the ICO was "SEC regulated" and "100% SEC compliant" when it was not….
[T]he Court granted the Commission's motion for partial summary judgment, finding Grybniak and Opporty had conducted an unregistered securities offering without a valid registration exemption in violation of Section 5 of the Securities Act. In addition, the Court rejected Grybniak and Opporty's defenses asserting reliance on counsel and that they lacked fair notice of the application of the federal securities laws to the ICO.
Without admitting or denying the SEC's allegations, Grybniak and Opporty consented to entry of the final judgment, which provides for permanent injunctive relief under Sections 5, 17(a)(2), and 17(a)(3) of the Securities Act. The final judgment also ordered Gryrbniak to pay a civil money penalty of $100,000, imposed a conduct-based injunction against him, and ordered both Grybniak and Opporty to comply with various undertakings.
As best I can tell, then, the SEC thought Grybniak committed fraud, but there was no court finding or admission as to that—though there was a court finding as to failure to register.
2. Grybniak then sued Google and X over AI outputs that, according to federal court rulings, Grybniak was "legally held responsible for making material misrepresentations and engaging in deceptive conduct" and that "according to … a federal court ruling, … Grybniak committed securities fraud and related violations." Grybniak's claim is that
Today in Supreme Court History: June 15, 1804
6/15/1804: The 12th Amendment is ratified.
Second Amendment Roundup: Arms and Accoutrements
The Ninth Circuit illogically excludes firearm parts from the text of “arms.”
United States v. DeBorba, decided on June 3, is the latest Ninth Circuit decision that seeks to exclude firearm parts from protection in the reference to the "arms" that the people have a right to keep and bear. The court held that "'optional accessories' to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment's plain text because they are 'accoutrements' and not arms." The test for whether an object is included in "arms" is supposedly based on whether it "is necessary to the ordinary operation of the weapon." "Ordinary" means anything you want it to mean.
That conclusion derives from the Ninth Circuit's 2025 en banc decision in Duncan v. Becerra, which claimed that a ten (or fewer) round magazine is necessary to operate a semiautomatic firearm and is thus protected, but a magazine that holds over ten is not necessary and therefore has no protection. For the basis for this illogic, see my post here.
It's no surprise that the DeBorba court applied that "test" to the much-derided suppressors, but gun slings and scopes? Perhaps the court is laying the groundwork for the California legislature to ban "assault slings" and "assassin scopes." After all, slings may be used in the standing (off-hand) position to shoot more accurately, as they often are at shooting matches. But that could make spray firing more accurate as well. And despite their use in hunting, scopes are inherently "military-style" as depicted in the movie American Sniper, making them adaptable to political assassinations.
Absurdities aside, slings and scopes should be considered within the term "arms" as they are very much part of the arms on which they are used. Bruen held that the "general definition [of 'arms'] covers modern instruments that facilitate armed self-defense." The Court said "facilitate," not just barely essential for a shot to go off. That necessarily includes instruments equipped with various features, whether characterized as so-called "accoutrements" or not, that enhance or otherwise affect the functionality of a firearm.
Under the Militia Act of May 8, 1792, a citizen was required to "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges." Reference was made to "the arms, ammunition and accoutrements, required as aforesaid." Taken together, these items constituted "arms." A musket would not fire without a flint, even though Duncan listed flints as accoutrements, not arms. And ammunition was necessary to fire a shot. There was nothing about use of the term "accoutrements" that excluded items from Second Amendment protection.
That brings us to the facts in DeBorba, which involved an unregistered suppressor. It is noteworthy that the Gun Control Act itself defines "firearm" to include a "firearm silencer or firearm muffler." And in DeBorba, "When the ATF attached DeBorba's device to a portable firearm and fired the gun, the device 'reduced sound reporting by at least twelve decibels.'" That certainly made it, to use Bruen's terms, an instrument that could "facilitate" armed self-defense.
The Ninth Circuit's test is that anything that the legislature may ban that is not absolutely necessary for a gun to go bang is a mere accessory excluded from the term "arms." If that includes a scope, it also includes just regular sights. Indeed, that's been the antigun argument all along, that features (like a pistol grip or adjustable stock) that make a firearm more accurate and comfortable to fire make it "unusually dangerous" and thus subject to prohibition. Under that logic, a firearm could be stripped of every feature other than the barrel and firing mechanism, and since it would still go bang, that's all that is protected by the Second Amendment.
Even if suppressors have Second Amendment protection, DeBorba continues, footnote 9 in Bruen creates a presumption of constitutionality for permitting processes that "do not require applicants to show an atypical need for armed self-defense" and for which "'narrow, objective, and definite standards' guid[e] licensing officials." The NFA is a "shall-issue" scheme under which one need only file a written application with fingerprints and photograph and await ATF to register the suppressor.
But that overlooks that footnote 9 concerns permits to carry firearms, not authorization merely to possess a firearm as does the NFA. Licensing involves checking whether a person is disqualified from possessing arms, while registration involves the government tracking who possesses what guns. No national consensus has ever existed that mere possession of a firearm warrants permanent registration with the government, including the persons' fingerprints, photograph, and address. Carrying firearms in public has always been distinguished by law from possession of firearms in the home. Whatever the historical justification for the "shall-issue" permitting schemes, no historical analogues exist for NFA-type restrictions as applied to the private keeping of arms.
In Heller II (D.C. Cir. 2011), D.C.'s witnesses admitted that no crimes were ever solved with the District's registration scheme. As then-Judge Brett Kavanaugh wrote in his dissent:
D.C.'s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right.
The Ninth Circuit's devotion to excluding various firearm features from being included in protected "arms" recalls the pre-Heller days when some federal courts were only too happy to exclude actual people from "the people" in the Second Amendment, when it would have sufficed to hold that some people, like violent felons, lose their rights under the Amendment. João Ricardo DeBorba's real crimes included repeated violations of restraining orders, being an illegal alien, and lying on firearm forms, all the while being in unlawful possession of firearms based on such status. Nothing in the court's coverage of those issues raise any red flags for purposes of the Second Amendment. Inventing "tests" that infringe on the rights of law-abiding citizens does a disservice to the Constitution.
Open Thread
What’s on your mind?
An Unconstitutional War Results in a Bad Deal
Trump's failure to secure constitutionally required congressional authorization for his war with Iran helped ensure the US lacked the staying power necessary to prevail.
Today, the US and Iran announced an agreement to end the war between them. The agreement may also lead to a ceasefire between Israel and Iran and its allies, such as Hezbollah. To put it mildly, this is not the "unconditional surrender" Trump promised us, and that defenders of the legality and wisdom of the war, such as co-blogger Steve Calabresi, expected. Hopes that the war would result in regime change - an objective endorsed by Trump early in the conflict - have evaporated. Indeed, it looks like we haven't gained much of value than we had before the war, and may even have lost some key ground.
The new agreement (whose terms have not yet been fully released) apparently includes the reopening of the Strait of Hormuz (though which much of the world's oil supply passes), and an end to the US blockade of Iran. There is also likely to be sanctions relief for Iran, and some kind of Iranian commitment not to pursue nuclear weapons. But, of course, the Strait was open before the War. And Iran has promised to forego nuclear weapons before, including in the Obama-era JCPOA agreement, which Trump repudiated during his first term, because it favored Iran too much. If Iran's regime could be trusted on these kinds of points, there would have been no need for conflict with them in the first place.
Moreover, international relations scholar-turned conservative political commentator Richard Hanania has explained in an insightful piece, Iran made one important gain in this conflict. They showed they can shut down the Strait of Hormuz, and that the US lacked either the ability or the will to force them to stop. That's leverage they can use in any future conflict, too, and perhaps to deter the US from taking action against them in the future at all.
In a Dispatch article written soon after the war began and a later post at this site, I explained why the war is illegal, because it lacks constitutionally required congressional authorization, and also violates the 1973 War Powers Act. In the Dispatch article, I also warned that this illegality made it more likely that the war will end in failure:
This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
This dynamic of weak US will arising from low public support for the war is pretty much exactly what has happened. US and Israeli forces scored some impressive tactical successes. But Trump's failure to build up political support for the war ensured it was unpopular from the beginning, and got even more so over time. Once Iran closed the Strait of Hormuz and oil prices went up, the war's popularity fell still further, and Trump began seeking an easy way out.
Had Trump built up sufficient public support to get congressional authorization, the US would have had greater staying power, and would not have caved so easily. Alternatively, if he tried to get that support and failed, we could at least have avoided the war, and all the attendant expense and loss of life.
As noted in the Dispatch article, I am far from a categorical opponent of military intervention, and I would be happy to see regime change in Iran. But, as the saying goes, "war is a contest of wills." The constitutional requirement of congressional authorization helps ensure we don't start a major conflict without having a commitment strong enough to prevail. When the president forgets that and ignores the Constitution, he not only acts lawlessly, but also greatly increases the risk of defeat.
Justice Barrett v. Justice Jackson On Textualism
Textualists cannot rest on Justice Scalia’s laurels. They need to address modern criticisms.
Anyone who went to law school over the past three decades should be familiar with the arguments for and against the use of legislative history. Justice Scalia made it his mission to remind everyone, at every opportunity, why legislative history should not be cited. Justice Scalia would often dissent from any part of an opinion that cited legislative history. To this day, Justices who cite legislative history will say something to the effect of "For those who find legislative history useful," as if they are ashamed to rely on it.
Yet, on the present Court, Justice Jackson seems most intent on reinvigorating the reliance on legislative history. The latest skirmish in the textualism battle came in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. The case concerned whether the Court should imply a cause of action under the Investment Company Act. I haven't studied this statute in any depth, so I'll pass on the merits. Instead, I want to highlight the duel between Justice Barrett's majority opinion and Justice Jackson's dissent.
Jackson may see herself as keeping Justice Breyer's mantle alive. But I think her approach goes deeper. She views the rejection of legislative history as a yet another form of "contempt" that the conservative evince towards Congress. KBJ cites Professor Victoria Nourse:
The majority's failure—or refusal—to accept this might stem from what commentators have called a prevailing "academic contempt for Congress." V. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L. J. 70, 142 (2012). Academics may think what they wish of Congress; this Court's jurisprudence ought not be grounded in such contempt.
This model is consistent with Jackson's broader framing of judicial restraint. Jackson purports to not strike down an act of Congress, or a regulation, unless there is a clear reason to do so. She writes:
[Legislative history] is a worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people. . . written"). Using legislative history helps prevent judges who are duty bound to interpret Congress's laws from making them instead. . . . But when a statute's text needs clarification, discarding legislative history turns the Court's assessment of Congress's intent into a transparently empty gesture. Even worse, it inappropriately elevates the Justices' own power by promoting our views about the "best" policy call.
Jackson is a Thayerian--unless the the First Circuit blocked something Trump did. I'm still disappointed she didn't write separately in Trump v. Anderson. She was ready to, but just couldn't pull the trigger.
It makes sense that Chief Justice Roberts assigned this opinion about statutory interpretation to Justice Barrett. The Scalia clerk and former law professor is in her element with these sorts of academic debates. Yet, Justice Jackson made a few points that Justice Barrett did not respond to. I get the sense that Justice Barrett thinks that The Boss won this debate decades ago, so there is little sense in arguing further. But there are some new developments that affect the analysis. Textualists cannot just rest on Justice Scalia's laurels forever. To borrow a phrase, textualism is not frozen in amber. Or to borrow another phrase, we cannot simply declare victory and move on. The Court's conservatives need to address modern criticisms of textualism, lest the other side regains ground.
First, Jackson cites Professors Abbe Gluck and Lisa Bressman, who have done some serious empirical work about how members of Congress view textualism.
The reports therefore serve as the final sales pitch for a bill, and "there is evidence that lawmakers themselves pay more attention to these reports than a statute's text to understand the statute's purpose and meaning." Learning Resources, Inc., 607 U. S., at ___ (JACKSON, J., concurring in part and concurring in judgment) (slip op., at 2) (citing A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 965–966, 968–969 (2013)); see
I don't recall that Justice Scalia ever had occasion to address textualism in practice. Justice Barrett cites Gluck and Bressman for an ancillary point, but ignores the important bottom line of how important legislative history is for members of Congress and staffer. That citation is problematic. This point can't simply go unaddressed.
Second, the major question doctrine has forced the Court to embark on atextual inquires about legislative intent.
"American Diabetes Association Ejects Researchers from Conference for Sharing Editorial from Its Own Journal"
Aaron Terr (FIRE) reports, based on accounts from various publications. Some excerpts:
The incident occurred outside a conference hall where Jay Bhattacharya, director of the National Institutes of Health, was scheduled to deliver a keynote address. The Washington Post reports that a small group of researchers quietly handed out printouts of a recent editorial in Diabetes Care criticizing Trump administration policies affecting biomedical research. One of the researchers is the journal's editor and co-authored the piece. Security staff and police escorted them out of the conference at the request of event organizers. Video captured the confrontation.
{The ADA is a private organization, so this isn't a First Amendment issue. But it does raise questions about why an organization that claims to "welcome scientific inquiry, respectful dialogue, and diverse perspectives" responded so harshly to conference attendees peacefully distributing an article from one of its own publications.}
Some of the ousted researchers said they believed they were removed partly because the ADA feared repercussions from the Trump administration. Let's hope that's not true. But all the organization has offered are weak and shifting justifications that seem to be inconsistent with its stated commitments to open dialogue and viewpoint diversity.
For example, in a statement to the Post, the ADA said the researchers were ejected for "violating the conference code of conduct," under which participants are expected to "conduct themselves in a professional and respectful manner." Those terms are highly subjective, but it's worth noting that, on the reported facts, there is no claim or evidence the ejected researchers chanted, blocked access, disrupted an event, or otherwise interfered with the conference. They simply handed out pieces of paper.
