On August 27, I published an article in The Hill, advocating abolishing ICE and giving the money to state and local police. The Boston Globe asked me to adapt the earlier piece into an article for them. That new article was published earlier today. Here is an excerpt:

The Immigration and Customs Enforcement agency has a history of horrific abuses, which have gotten worse under the second Trump administration. They include violations of civil liberties, large-scale racial profiling, and terrible conditions for detainees. Those abuses are of special interest to the Boston area, given the region's large immigrant population and that the administration is apparently planning a surge in ICE activity in Boston.

ICE's cruel actions have made the agency highly unpopular, with recent polls showing large majorities disapprove of it. But most Democrats, including most Massachusetts leaders, still shy away from calling for its abolition, likely for fear of being seen as "soft on crime" or against law enforcement. But there is a way out of this dilemma: Advocate for abolishing ICE and giving the money to state and local police.

In the new article, I took the opportunity to address some objections left-liberals (like, perhaps, many Globe readers) might have, such as this one:

Many studies show that putting more police on the streets can reduce crime. Indeed, diverting law enforcement resources from deportation to ordinary policing can help focus more effort on the violent and property crimes that most harm residents of high-crime areas. Deportation efforts, by contrast, target a population with a lower crime rate than others…..

Some progressives might nonetheless oppose transferring funds to conventional police. The latter, too, sometimes engage in abusive practices, including racial profiling. I share some of these concerns and am a longtime advocate of increased efforts to combat racial profiling. But comparative assessment is vital here. Despite flaws, conventional police are much better in these respects than ICE, with its ingrained culture of brutality and massive profiling. They have stronger incentives to maintain good relations with local communities and don't need to rely on racial profiling nearly as much to find suspects. A shift of law enforcement funds from ICE to conventional police would mean a major overall reduction in racial profiling and other abuses.

Survey data show most Black people (the biggest victims of profiling) actually want to maintain or increase police presence in their neighborhoods, even as they (understandably) abhor racial profiling. Grant money transferred from ICE could potentially be conditioned on stronger efforts to curb racial profiling and related abuses, thereby further reducing the problem. It should also be conditioned on spending it on combatting violent and property crime, and structured in a way that prevents excessive dependence on federal funding.

From Judge Thomas Rice (E.D. Wash.) Aug. 29 in Prepared Food Photos, Inc. v. Pool World, Inc., a copyright case in which the question is whether defendant has to redact certain materials from its summary judgment papers:

Defendant's motion for summary judgment rests on a statute of limitations defense, specifically that the discovery rule [under which the statute of limitations sometimes runs from when defendant discovered the infringement, rather than from when the infringement began -EV] is unavailable to Plaintiff as a matter of law in part due to Plaintiff's pattern of inequitable conduct toward Defendant and past accused infringers. The information Defendant seeks to [file not under seal] pertains to prior subscription fees and infringement settlement payments previously received by Plaintiffs. This information directly relates to the merits of Defendant's dispositive motion, and the "compelling reasons" standard [for determining whether the information should be sealed -EV] is appropriate….

Plaintiff asserts that settlement agreements entered into by Plaintiff and any infringer are subject to confidentiality clauses requiring the contracting terms be kept confidential. Therefore, unsealing documents that identify the infringer subject to the settlement agreement and the amount of the settlement paymhent would constitute a breach by Plaintiff for every respective settlement agreement. Plaintiff argues confidentiality of these terms is needed to protect both the infringer from revealing that it utilized copyrighted material and settled for a specified amount, thus inviting other copyright holders to pursue litigation against it, and Plaintiff from having prior settlements leveraged against it in future infringement claims.

The Court does not find compelling reasons exist to seal the payment terms of the settlement agreements but the payors identifying information may [be] redacted. While the Ninth Circuit has found private confidentiality agreements to satisfy the "good cause" standard for sealing non-dispositive motions and supporting documents, without more, they do not constitute a compelling reason to seal the information…. "That [the parties] agreed among themselves to keep the settlement details private, without more, is no reason to shield the information from … the public at large." ….

I have a new post at Lawfare making this argument. Here's a summary:

Anthropic just paid $1.5 billion to settle a copyright case that it largely won in district court. Future litigants are likely to hold out for much more. A uniquely punitive provision of copyright law will allow plaintiffs who may not have suffered any damage to seek awards in the trillions. (Indeed, observers estimated that Anthropic dodged $1 trillion in liability by settling.) The avalanche of litigation, already forty lawsuits and counting, doesn't just put the artificial intelligence (AI) industry at risk of spending their investors' money on settlements instead of advances in AI. It raises the prospect that the full bill won't be known for a decade, as different juries and different courts reach varying conclusions.

A decade of massive awards and deep uncertainty poses a major threat to the U.S. industry. The Trump administration saw the risk even before the Anthropic settlement, but its AI action plan offered no solution. That's a mistake; the litigation could easily keep the U.S. from winning its race with China to truly transformational AI.

The litigation stems from AI's insatiable hunger for training data. To meet that need, AI companies ingested digital copies of practically every published work on the planet, without getting the permission of the copyright holders. That was probably the only practical option they had. There was no way to track down and negotiate licenses with millions of publishers and authors. And the AI companies had a reasonable but untested argument that making copies for AI training was a "fair use" of the works. Publishers and authors disagreed; they began filing lawsuits, many of them class actions, against AI companies.

The American public will likely have little sympathy for a well endowed AI industry facing the prospect of hiring more lawyers, or even paying something for the works it copied. The problem is that peculiarities of U.S. law—a combination of statutory damages and class action rules—allow the plaintiffs to demand trillions of dollars in damages, a sum that far exceeds the value of the copied works (and indeed the market value of the companies). That's a liability no company, no matter how rich and no matter how confident in its legal theory, can ignore. The plaintiffs' lawyers pursuing these cases will use their leverage to extract enormous settlements, with a decade-long effect on AI progress. At least in the United States. China isn't likely to tolerate such claims in its courts.

This is a major national security concern. The US military is already building AI into its planning, and the emerging agentic capabilities of advanced AI holds out the prospect that future wars will become contests between armies deploying coordinated masses of autonomous weapons. Even more startling improvements in AI could come in the next five years, with transformative consequences for militaries that capitalize on them as well as those that don't. Not surprisingly, China is also pursuing military applications of AI. Given the US stake in making sure its companies do not fall behind China's, anything that reduces productive investment in AI development has national security implications. As Tim Hwang and Joshua Levine laid out in an earlier Lawfare article, this means the U.S. can't afford to let the threat of enormous copyright liability hang over the AI industry for the decade or more it could take the courts to reach a final ruling.

The Trump administration should cut this Gordian knot by invoking the Defense Production Act (DPA) and essentially ordering copyright holders to grant training licenses to AI companies on reasonable terms to be determined by a single Article I forum. This is the only expeditious way out of the current mess. It is consistent with the purpose and with past uses of the DPA. And it creates a practical solution that copyright holders have long used in similar contexts.

I just joined (this morning) the bar for the U.S. District Court of the District of Columbia, which is to say the federal trial court in D.C. One feature—peculiar in my experience of federal court bars—is that all new members of this particular bar have to appear in person to be sworn in in a collective ceremony, conducted once per month. Fortunately, I had been invited to do a couple of talks in D.C. Saturday and today, so I didn't need to fly in just for the occasion.

Here's what struck me: There were some brief remarks from District Judge Dabney Friedrich, and besides some general points about civility, the need to maintain a reputation for professionalism, the call to do pro bono service, and the like, the judge also included a specific warning about the tendency of AI tools to hallucinate. Looks like the court is taking the matter quite seriously.

From Tuesday's decision in People v. Ramsey, by Justice Frances Rothschild, joined by Justices Helen Bendix and Gregory Weingart (expurgations in original, as are the unexpurgated slurs):

Rashaud Ramsey appeals the judgment of conviction for murder….

Police arrested Hassan [Ramsey's alleged coconspirator] on November 10, 2022, more than a year after the Ramsey interrogation and almost two years after the shooting. Detectives placed him in a cell with an undercover law enforcement officer and audio-recorded their conversation. The recording was played at trial.

The officer asked Hassan, "Wassup with you? Why you got your head down [B]lack man?" Hassan responded that he was "messed up" and did not know what to do. The officer told Hassan, "Got to keep your head up. Wassup N***a? I've been through some shit. But what the fuck they talking to you about?"

Hassan told the officer that his cousin and his cousin's friend killed a "boy, and shot his brother and his sister." He admitted he was at the scene of the murder but denied participating in it.

The officer said, "So, so you said your peoples was up in the house? So what happened with their shit n***a?" Hassan responded that "[b]asically, what was supposed to go down was a robbery, and a robbery didn't take place." Hassan explained that his cousin and the friend had asked him to participate in a robbery, and Hassan agreed. While in the car Hassan's cousin and the friend talked "some nonsense" about killing someone. Hassan told them it was not worth it, and they did not need to kill anybody. They appeared to agree, but once they got to the crime scene, Hassan's cousin and the friend "bust[ed] in shootin[g]."

Free Speech

Woman Repeatedly Badmouthed Ex-Lover, Ordered Not to Say Anything Online About Him, Lost Gun Rights

She had admitted that some (though not all) of the speech was false, but the injunction (entered in a restraining order case, not following a full defamation trial) extends to all speech, not just falsehoods: "Even speech otherwise protected by the First Amendment may be enjoined if it disturbs the petitioning party's peace."

Eugene Volokh | 9.8.2025 8:25 AM

Stafford v. Molano, decided Friday by California Court of Appeal Judge Brian Hoffstadt, joined by Judges Carl Moor and Dorothy Kim, upheld a restraining order (which included the provision that "Respondent shall not post about Petitioner online") that was apparently largely based on two sorts of speech:

allegations of sexual assault, which defendant had apparently admitted were false, and
allegations of nonconsensual taking of an intimate photograph, which I think defendant never recanted.

I don't think the decision is correct (see here for my general views on the matter)—especially since the injunction forbids even nondefamatory speech, and was expressly not based on a finding that all the speech was false. But this is indeed the way recent California court decisions have been going.

1. First, as to the apparently retracted allegations of sexual assault:

In my new book Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech, I argue that higher education must adapt to protect its values as a global industry in an unfree world. The excerpts I'll feature in this week's guest posts will detail how universities have faced challenges to their values in the international education space, and how some have failed.

First, I'd like to set the scene for the global environment in which universities operate today.

Millions of students move across borders to pursue their academic careers. Universities operate study abroad programs in nations all over the world. Partnerships and grants tie together universities, corporations, institutions, and governments overseas. In some cases, universities even choose to establish joint institutions and satellite campuses thousands of miles away from their flagship campuses. Often they do so in countries with vastly different legal systems and established speech protections.

No industry—from fashion to tech to sports—is immune to the pressures it operates in, but when it comes to the institutions we rely on to help us accurately understand, research, and debate the world we live in, it matters when they are vulnerable to authoritarian censorship.

As American higher education has become more worldly, what kind of world is it operating in? One that is deeply unwelcoming toward free expression and academic freedom and, in many ways, getting worse.

Here is the state of things, and it isn't pretty.

9/8/1953: Chief Justice Fred Vinson dies.

The Pentagon is planning to divert up to 600 military lawyers (known as "JAGs" - members of the Judge Advocate General's corps) to serve as temporary immigration judges. The idea is to dispose of immigration cases faster. As Samantha Michaels explains in a helpful Mother Jones article, this is illegal, and is likely to lead to poor decisions in immigration cases, given that most JAG lawyers lack relevant expertise:

The Trump administration has decided to get more immigration judges from an unprecedented source: the military.

On Tuesday, the Associated Press reported that the Pentagon plans to send up to 600 military lawyers to the Justice Department to temporarily run immigration courts around the country. Some of them could receive their new assignments as early as next week.

The arrangement would help the Trump administration tackle a backlog of immigration cases. But military lawyers have little or no experience with immigration law. And some former military lawyers worry the plan isn't even legal. It "should raise all sorts of alarms," Daniel Maurer, a former Army attorney who also taught law at West Point, told me recently.

I spoke with Maurer in July, after President Trump first hinted that he'd be open to the idea of deploying military attorneys—known as Judge Advocate Generals, or JAGs—as immigration judges in Florida. That idea, floated by Gov. Ron DeSantis, hadn't yet come to fruition. "There is no clear precedent for what DeSantis and the president are doing," Mark Nevitt, a law professor at Emory University who served as a Navy JAG, told me at the time.

"This would be unlawful," added Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who was an Air Force JAG.

In particular, VanLandingham said, turning military lawyers into immigration judges would likely violate the Posse Comitatus Act, a federal law that bars US troops from participating in civilian law enforcement or "executing the laws," unless otherwise authorized to do so by the Constitution or Congress. It's "frightening," VanLandingham said of the plan, because "the use of military courts to hear civilian cases is the essential component of martial law."

Current and former JAG lawyers have suggested to me that this move could also undermine military readiness, and impair the military justice system. The 600 JAGs the Pentagon may reassign to this function are a substantial proportion of the armed forces' total of 7300 JAG lawyers. JAGs serving as immigration judges are obviously not performing their regular functions, and those functions may end up getting neglected.

I would add that there is a more fundamental constitutional problem here: migrants threatened with detention or deportation - like others threatened with severe deprivations of liberty by the government - should have their cases adjudicated by impartial, neutral judges, not people subject to removal and other discipline by the very executive branch authority that filed the case against them. I think most military lawyers would strive hard to be fair, and I have great respect for the JAGs I have met over the years, including a number of my former students. But the threat of retaliation for decisions the administration doesn't like creates a dangerous incentive structure.

Sadly, this problem is not limited to JAGs who may potentially act as immigration judges. Even in normal times, many immigration cases are heard to by executive branch "judges" subject to removal by the Justice Department. Earlier this year, Trump fired numerous executive-branch immigration judges who the administration believed were not on board with its draconian deportation agenda.

The Due Process Clause of the Fifth Amendment mandates that government cannot deprive people of life, liberty, or property without due process. Detention and deportation are obvious severe deprivations of liberty. And there is no exemption for immigrants or non-citizens. During the Founding era, it was generally understood that the Due Process Clause applies even to non-US citizen pirates captured in international waters. If so, it also applies to migrants within the US.

Adjudication by an official subject to being fired or disciplined for making decisions the executive doesn't like is obviously inimical to due process - whether the "judge" is a military JAG officer or a civilian executive branch employee. As the Supreme Court put it in Marshall v. Jerrico (1980), "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process." A judge under the control of the executive cannot be genuinely "impartial and disinterested," since he or she has an obvious interest in catering to the preferences of superiors.

Conservatives readily see this problem in areas outside the immigration context, as when executive-branch agencies adjudicate civil penalties for violations of economic regulations. In such cases, they rightly argue there are violations of due process, and of the Seventh Amendment's guarantee of a jury trial in civil cases where significant penalties are at stake. Immigration detention and deportation imperil liberty and property rights at least as much as any economic regulation, and often much more.

Unfortunately, due process is one of a number of areas where the courts have allowed double standards under which immigration restrictions are to a large extent exempt from constitutional restraints that apply to all other government policies. That double standard should be ended. The administration's plan to use military JAGs as immigration judges is a particularly egregious tip of a much larger iceberg.

UPDATE: I have made a few additions to this post.

A hand grabs at a chain link fence with an American flag on the other side, symbolizing the struggle to immigrate to America. — Bradley Greeff | Dreamstime.com

The London Times reports that the Trump Administration has been deporting Russian dissenters who fled Vladimir Putin's authoritarian regime, sending them back to Russia, and even apparently helping Russian authorities persecute them:

On August 27, less than a fortnight after President Trump's summit with Putin in Alaska, dozens of Russians were rounded up and deported. Among them was Artyom Vovchenko, 27, a deserter from the war in Ukraine. He is facing a prison sentence of up to decade or could be sent back to the front line.….

Although the deportation of Russians to Russia has accelerated under Trump, the policy began under his predecessor Joe Biden. According to Dmitry Valuev, 46, president of Russian America for Democracy in Russia, an organisation that supports political refugees, deportations under Biden were smaller in number.

He said Russian deportees on those flights avoided returning to Russia by begging for their passports during layovers in China and Morocco and buying flights to alternative destinations.

However, the US now appears to have enlisted the help of the Egyptian government to ensure the migrants are delivered back to Moscow.

The first mass deportation this year took place in June when 47 Russians were put on a flight to Egypt and returned to Russia via Cairo.

On August 27, between 30 and 60 people were sent to Russia on the same route. Some tried to get off the plane in Cairo but were restrained by Egyptian officials and forced to board the onward flight to Moscow, according to Valuev. He believes that US immigration authorities are now working with the Russian FSB [Putin's secret police agency].

I think the June deportation and the August deportation were co-ordinated with the Russian authorities," he said. "The middlemen in the US immigration system and the Russian FSB could not talk to each other directly without approval from higher up. Someone gave that approval."

When the dissidents arrived in Russia, the Russian authorities were given documents relating to their asylum applications in the US. Those dossiers, outlining their political beliefs and criticisms of Putin, could be used to prosecute them back home, campaigners believe.

Khodorkovsky said the treatment of Russian dissidents by the US posed the question of "whether the current administration is prepared to act as a leader of the democratic world".

He said the deportations were particularly troubling given the Russians were "accompanied by documents that can help fabricate criminal cases against them, and all of this at the expense of the American taxpayer".

"This is no longer about democratic leadership — it's about the risk of being seen as an ally of dictators," he said.

As the article notes, abusive treatment of Russian dissenters fleeing Putin occurred under Biden, as well. And I condemned it at the time. But Trump's expansion of the deportations and collaboration with the Russian government is worse.

Beginning soon after Russia's full-scale invasion of Ukraine, I have argued the US and other Western nations should open their doors to Russians fleeing Putin's increasingly repressive regime. It's the right thing to do for both moral and strategic reasons. Morally, it's wrong to bar people fleeing brutal repression and, in some cases, seeking to avoid being drafted into an unjust war of aggression. Strategically, we benefit from depriving Putin of valuable manpower and from enabling the Russian refugees to contribute to our economy and scientific innovation (Russian immigrants and refugees are disproportionate contributors to the latter). I have also advocated for Ukrainian refugees, whose interest I cannot easily be accused of neglecting.

Of course, under Trump, policy often seems to be driven by a desire to kowtow to Putin and imitate his authoritarian methods. From that standpoint, deporting dissenters back to the regime that oppresses them makes a kind of sense. Just not the kind that any minimally decent person should ever support.

UPDATE: I suppose this is of a piece with Trump's efforts to deport refugees from other oppressive anti-American regimes, such as those who fled Cuba and Venezuela, Iranian Christians, and Afghans who fled the Taliban.(including many who aided the US during the war). But, in one sense, this is even worse, in that US authorities are directly collaborating with the dictatorship in question.

CBS News published another excerpt of Justice Barrett's book. She describes the difficult decision to move her family from South Bend. Barrett explains the process of selling her old home was like Alexander the Great's adage about "burning the boats."

I really loved my job on the Seventh Circuit and settled into the rhythm of hearing arguments and writing opinions. But after a few years, life took another turn: the White House counsel, who runs the judicial selection process for the president, invited me on behalf of President Trump to interview for a seat on the United States Supreme Court. Though I was deeply honored, I thought hard about whether to go forward. I knew that if I was chosen, both the confirmation process and the work of serving on the Court would require sacrifices, particularly from my family. Unlike my job on the Seventh Circuit, this one would require a move to Washington, D.C. We had a good life, wonderful friends, and close family in South Bend. We were attached to our old Prairie-style home, which was a short walk to campus for tailgates during football season—a fall family high- light. The move would mean changes for Jesse's career and new schools for the children. We knew that public criticism was sure to come. And if I was nominated and confirmed, there would be a long-term loss of privacy for all of us. Public service was appealing, but the changes to our personal life were not. . . .

Jesse and I had a very brief time to make one of the biggest decisions in our marriage. His position was full support on one condition: if we did it, we had to "burn the boats." The phrase comes from a military strategy used by Alexander the Great, who, after landing on the shores of enemy territory, ordered his men to burn the ships they had come in. With the option of exit gone, there was no choice but to forge ahead, no matter the challenge. Likewise for us. There would be difficulties in store, some we could anticipate and others we couldn't. Jesse wisely thought that it would be unsustainable to face the difficulties—whether in the confirmation process or beyond—if we gave ourselves the option to look back, wishing that we could unwind what we had done. There would be no second-guessing and no turning back to our comfortable life in South Bend.

Justice Barrett has alluded to this decision in her past speeches. That fact that she so wrestled with this choice, and made it with her family, reinforces how devoted she is to her family.

When President Trump released his original Supreme Court short list, I celebrated the fact that there was no names from Washington, D.C. And when Trump picked Gorsuch for his first seat, and Barrett for his third seat, I was quite pleased we got Justices from what Justice Scalia called "the vast expanse in-between."

There is, of course, a flip side to this dynamic. A person who is acculturated in the swamp understands how it works--no one is truly your friend, and people only use you to the extent that you can advance their agendas. A person who is acculturated outside the swamp, and is then transplanted to the swamp, may not understand how that dynamic works. In other words, a person reared in flyover country is more susceptible to the worst forces of the Capital District.

One way to immunize yourself to those forces, of course, is to spend as little time there as necessary. Due to the unique nature of the Supreme Court's calendar, I don't think it is even necessary to move. If my math is right, a Justice only has to be in Court about 20 weeks or so per year.

The Supreme Court generally has no in-person activities during the months of July, August, and September. At the end of September there is the long conference, and two weeks of oral argument. There are two weeks of oral argument in November and two weeks of argument in early December. Thanksgiving and Christmas break are safe. Arguments resume the second and third weeks in January. Most of February is free, and there are about four weeks of argument in February into March. There are usually two weeks of argument at the end of April. There are no arguments in May, though there are weekly conferences. June also has no arguments, but there are weekly conferences, and hand-downs.

In the abstract, a Justice could easily commute for this job, and still spend the vast majority of the calendar at home with their family. Indeed, members of Congress usually maintain their primary residences at home, and commute on weekends. The Supreme Court calendar is far more conducive to commuting.

There are, of course, objections. First, what about cost? Wouldn't it be expensive to fly back and forth, and maintain a separate residence in the District of Columbia? No. The Justice wouldn't need to buy a large home in the D.C. area. Many members of Congress keep a bedroom in their offices. I don't think it would be hard to convert part of a Supreme Court justice's chambers into a living quarter. Morever, I would wager that a year of direct flights between D.C. and a home city would be far less than the cost of mortgage payments for a home in the Beltway. If a Justice followed this approach, they wouldn't need a multi-million dollar book deal to buy a home.

Second, what about the Justice's absence from the building? My understand is that Justice Stevens lived most of the year at his beach home in Florida, and flew up for oral arguments. He communicated with his law clerks by electronic means. As things stand now, I think some Justices see their law clerks far less than average people might assume. Some of the Justices maintain very busy travel schedules, and may not even be in the building when oral arguments or conferences are not scheduled. Indeed, there might be some value in keeping one or more clerk in remote chambers outside of the District of Columbia. There can be more time to focus and fewer distractions. Maybe some clerks will only want the experience of being at First Street. There are eight other Justices to apply to.

Third, wouldn't a commuting Justice be less able to interact with his or her colleagues? Yes, and I see this as a feature, not a bug. As a general rule, when the Justices make deals and compromises, they invariably move the Court to the left rather than the right. Show me a case where a "deal" led to some more conservative result. At least on the current Court, I think isolationism would help originalism. Cases can be discussed at conference.

The biggest benefit, by far, is that the Justice would spend less time in the awful environment that is Washington, D.C. You can't attend a cocktail party in Georgetown if you are attending a potluck dinner. Your children will not have to be exposed to all the types of protestors and other negative influences. Perhaps most importantly, you will never forget what matters in the real world.

As I've often said, an Article III commission is life tenure, not a life sentence. One doesn't have to burn the boats.

I have considered this thought experiment before Barrett's burning boat point. Maybe the next Supreme Court justice will publicly vow to keep his or her family parked at home, and he commute only when necessary.

9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.

9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

Earlier this week, the Trump administration filed a petition for certiorari urging the Supreme Court to review the Federal Circuit decision in the case challenging the president's massive "Liberation Day" tariffs, brought by the Liberty Justice Center and myself on behalf of five small businesses harmed by the tariffs (we were later joined by leading constitutional law scholars and Supreme Court litigators Neal Katyal and Michael McConnell). The government also submitted a motion for expedited review.

Today, we submitted a response to the petition, in which we agree the Supreme Court should hear the case and resolve it quickly, so as to put an end to the harm caused by the illegal tariffs as quickly as possible. We previously prevailed in the Court of International Trade, and on appeal in the Federal Circuit, and I hope the Supreme Court - should it take the case - will rule the same way.

Our case is consolidated with one filed by twelve state governments, led by the state of Oregon. Both challenge massive tariffs Trump has imposed under his supposed authority under the International Emergency Economic Powers Act of 1977 (IEEPA).

By now, this litigation has generated thousands of pages of briefs and other filings, and 176 pages of judicial opinions (if I have the count right). But underneath all the legalese, the central issue at stake is actually a simple one: Does our constitutional system give one man - the president - the power to impose any tariffs he wants, in any amount, on any nation, at any time, for any reason? If the answer is "no," then the IEEPA tariffs are illegal.

And the answer should indeed be "no," because the Framers of the Constitution carefully avoided giving the executive the kind of unbridled tax authority claimed by power-grabbing English monarchs, like Charles I. The president cannot wield monarchical power, and letting him do so is an affront to the rule of law.

We have presented an assortment of more detailed reasons why "no" is the right answer to the central question raised by this case: the fact that IEEPA doesn't even mention tariffs and has never previously been used to impose them, that there is no "unusual and extraordinary threat" of the kind required to invoke IEEPA, the major questions doctrine, the constitutional nondelegation doctrine, and more. These points are covered in much greater detail in our various legal filings (see the Liberty Justice Center site for a compilation), and in some of my earlier writings about the litigation.

If the Supreme Court takes the case, there may well be many additional briefs, and other filings. Such materials are important. But it is also essential to remember the deeper principle underlying all the details: the president is not a king, and our Constitution does not grant him monarchical power.

I'm delighted to report that Sarah McLaughlin (of the Foundation for Individual Rights and Expression) will be guest-blogging this coming week about her new book. From the publisher's summary:

A revealing exposé on how foreign authoritarian influence is undermining freedom and integrity within American higher education institutions.

In an era of globalized education, where ideals of freedom and inquiry should thrive, an alarming trend has emerged: foreign authoritarian regimes infiltrating American academia. In Authoritarians in the Academy, Sarah McLaughlin exposes how higher education institutions, long considered bastions of free thought, are compromising their values for financial gain and global partnerships.

This groundbreaking investigation reveals the subtle yet sweeping influence of authoritarian governments. University leaders are allowing censorship to flourish on campus, putting pressure on faculty, and silencing international student voices, all in the name of appeasing foreign powers. McLaughlin exposes the troubling reality where university leaders prioritize expansion and profit over the principles of free expression. The book describes incidents in classrooms where professors hesitate to discuss controversial topics and in boardrooms where administrators weigh the costs of offending oppressive regimes. McLaughlin offers a sobering look at how the compromises made in American academia reflect broader societal patterns seen in industries like tech, sports, and entertainment….

From the Report and Recommendation in Davis v. Marion County Superior Court Juvenile Detention Center, filed Tuesday by Magistrate Judge Mark Dinsmore (S.D. Ind.):

In [a] brief, Mr. Sture included two citations that he concedes do not exist….Mr. Sture acknowledged that he was responsible for the errors in the brief that he signed and filed. However, he took the position that the main reason for the errors in his brief was the short deadline (three days) he was given to file it. He explained that, due to the short timeframe and his busy schedule, he asked his paralegal (who once was, but is not currently, a licensed attorney) to draft the brief, and Mr. Sture did not have time to carefully review the paralegal's draft before filing it.

[The Magistrate Judge briefly explained the reason for the unusually short deadline, and noted that, "while Mr. Sture did only have three days to file his response after the motion to compel was filed, he had much more time than that to consider and research the issues that were ultimately addressed in the response brief"; for more on that, read the full opinion. -EV]

Further, while Mr. Sture made much at the hearing about the fact that he filed his response brief literally at the eleventh hour (the brief was, in fact, filed at 11:00 p.m. on the due date), he further represented that he subscribes to LEXIS. It would have taken only a few minutes to check the validity of the citations in the brief using LEXIS before filing it.

Mr. Sture failed to take even that most basic of actions, and therefore did not catch the fact that the brief contained citations that did not exist. The most logical explanation for the citation to non-existent authority is, of course, the use of generative AI to conduct legal research and/or draft the brief. The issue of "hallucinated case[s] created by generative artificial intelligence (AI) tools such as ChatGPT and Google Bard" has been "widely discussed by courts grappling with fictitious legal citations and reported by national news outlets."

The Volokh Conspiracy

My New Boston Globe Article Making Case for Abolishing ICE and Giving the Money to State and Local Police

It builds on an earlier piece in The Hill

Past Copyright Settlement Agreements Needn't Be Sealed When Directly Related to Merits of Current Claim

The U.S. Can't Afford AI Copyright Lawsuits

It's time for President Trump to invoke the Defense Production Act and resolve the crisis.

Warning About AI Hallucination During D.C. Federal District Court Bar Admission Ceremony

California Racial Justice Act and Racially Themed Language in Undercover Questioning

"Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs ... and introducing and admitting into evidence a recording from the undercover operation violates [the Act]."

Woman Repeatedly Badmouthed Ex-Lover, Ordered Not to Say Anything Online About Him, Lost Gun Rights

"Authoritarians in the Academy": The Free Speech Recession

When universities are global institutions, the global speech environment matters.

Today in Supreme Court History: September 8, 1953

Monday Open Thread

What's on your mind?

Perils of the Pentagon's Plan to Use Military Lawyers to Adjudicate Immigration Cases

The plan is illegal for multiple reasons, is likely to lead to poor decisions, and could undermine military readiness.

Trump Forcibly Returns Russian Dissenters who Fled Putin

It's a new low in US refugee/asylum policy; simultaneouly unjust and counterproductive.

Does A Supreme Court Justice Have To Move To The Swamp And "Burn The Boats"?

I've long thought it would be positive if Justices maintained their primary residences outside of D.C.

Today in Supreme Court History: September 7, 1958

Sunday Open Thread

What's on your mind?

Today in Supreme Court History: September 6, 1983

The Government's Cert Petition to the Supreme Court in Our Tariff Case - and Our Response

We agree the Court should take the case and resolve it as quickly as possible, to minimize the harm caused by the illegal tariffs.

Sarah McLaughlin (FIRE) on "Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech,"

$7500 Sanctions for Nonexistent Citations in Brief; Magistrate Judge Stresses Cite-Checking Isn't a New Obligation

"Whether a case cite is obtained from a law review article, a hornbook, or through independent legal research, the duty to ensure that any case cited to a court is "good law" is nearly as old as the practice of law."

Login Form

Recent Volokh Posts

Volokh Conspiracy Daily E-mail