The Volokh Conspiracy

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

Today, the en banc US Court of Appeals for the Federal Circuit hear oral arguments in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf of five small businesses seriously harmed by the tariffs. You can listen to the argument here. Leading appellate litigator and Georgetown law Prof. Neal Katyal argued for us.

The case is consolidated with a similar one brought by twelve state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade, which held that the International Emergency Economic Powers Act of 1977 (IEEPA) does not grant the president anything approaching unlimited tariff authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.

It is difficult to predict case outcomes based on oral arguments, particularly one with eleven judges that have a diversity of views and interests. Still, I can make a few tentative observations.

First, there seems little, if any, support for the idea that IEEPA grants the president unlimited tariff authority of the kind the administration claims. Multiple judges expressed skepticism that the law gives him the authority to rewrite the tariff schedule or to claim "unbounded authority." Several judges emphasized, as Judge Reyna noted, that "IEEPA doesn't even mention the word tariffs." From the beginning of this litigation, we have emphasized that IEEPA delegates authority to "regulate" importation, but regulation is distinct from taxation.

Even if IEEPA does allow some tariff authority, as the predecessor court to Federal Circuit ruled in United States v. Yoshida International Inc. (1975), with respect to the Trading with the Enemy Act (predecessor statute for IEEPA), it doesn't follow that authority is unlimited. Yoshida held it was not endorsing unlimited tariff authority. It emphasized that the Nixon tariffs were linked to the preexisting tariff schedule set by Congress, and that "[t]he declaration of a national emergency is not a talisman enabling the President to rewrite the tariff schedules." It even noted that to "sanction the exercise of an unlimited [executive] power" to impose tariffs "would be to strike a blow to our Constitution." A number of judges noted today that, if Yoshida applies to IEEPA (thereby authorizing some tariffs), so too do its limitations on the scope of permissible tariff authority.

Some judges also suggested that unconstrained tariff authority would run afoul of the major questions doctrine and constitutional constraints on delegation of legislative power to the executive. The CIT based its ruling in part on these considerations.

Even if IEEPA does allow the use of tariffs, the law can only be invoked in the event of an "emergency" that poses an "unusual and extraordinary threat" to the US economy and national security. Those judges who raised this issue seemed skeptical of claims that what qualifies and an "unusual and extraordinary threat" is left to the unreviewable discretion of the president. Otherwise, IEEPA (assuming it allows tariffs at all) would be a blank check for the president, thereby exacerbating major questions and nondelegation problems.

There is nothing unusual or extraordinary about trade deficits, the supposed threat targeted by the Liberation Day tariffs. We have had them for decades, and today's deficits are well in line with historical norms.

A number of judges raised an issue that was given little consideration by the lower court, and in briefing by the parties: even if trade deficits are not an "unusual and extraordinary threat," perhaps some of their supposed consequences do. Those possible effects include damage to US manufacturing, decline of the defense industrial base or the like.

Claims that trade damages US manufacturing and defense industries are - like trade deficits - far from unusual. Protectionists have advanced such arguments for decades. Far from atrophying or "hollowing out," US manufacturing output has actually grown in recent decades, nearly doubling since 1997. While it has declined as a percentage of GDP, that's largely because other industries (such as services) have grown even more. Perhaps we should have still more manufacturing. But there is nothing "unusual and extraordinary" about its current level. Whatever danger trade deficits pose to manufacturing or defense is not an unusual and extraordinary threat, but a normal policy issue that cannot be addressed through a statute limited to emergency situations. Moreover, as the amicus brief by leading economists points out, trade deficits, as such do not cause a decline in manufacturing.

Finally, it is worth noting that IEEPA only authorizes measures that "deal with" the emergency and unusual and extraordinary threat that justifies its invocation. Trump's imposition of 10% or higher tariffs on virtually every nation in the world goes far beyond merely targeting imports that might plausibly be said to undermine manufacturing or defense.

In sum, it is hard to predict what exactly the Federal Circuit will do here. But I am tentatively optimistic that the court will at least reject claims that IEEPA gives the president virtually unlimited, unreviewable tariff authority.

Today, The Dispatch published my article "Not Everything is an Emergency" (gift link; for another paywall-free link, see here). Here is an excerpt:

The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.

Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as "invasion." But they have often been overly deferential to presidential determinations about relevant facts, such as whether an "invasion" (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable "political questions." It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will…..

The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.

Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as "invasion." But they have often been overly deferential to presidential determinations about relevant facts, such as whether an "invasion" (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable "political questions." It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will….

Nondeferential judicial review of invocations of emergency powers is an application of the judiciary's normal role in interpreting the law and applying it to the relevant facts. Moreover, the use of terms denoting extraordinary dangers (such as "invasion," "rebellion," or "emergency") counsels against interpreting them in ways that allow invocation of these powers in normal times. Otherwise, these words become superfluous, and emergency powers turn into blank checks for executive power grabs.

The same point applies to factual deference. Courts routinely assess whether the factual prerequisites for applying a law are present. Emergency powers should not be an exception. Otherwise, the government could get around constitutional and other constraints on its authority simply by engaging in lying and misrepresentation about the facts on the ground.

In litigation over all three of its major invocations of emergency powers—immigration, tariffs, and domestic use of the military—the administration has also invoked the "political questions" doctrine, which holds that some issues are off limits to the judiciary, because they have been left to the political process…. But there is no general principle holding that invocations of emergency powers are exempt from judicial scrutiny….

Some defenders of the administration's position argue that courts should defer to the executive's specialized expertise on emergency power issues. But a genuine emergency does not require much expertise to detect. You don't have to be an expert to understand that Russia's assault on Ukraine is an "invasion" or that the COVID pandemic was an "emergency." The very enormity of true emergencies generally makes detection easy.

In rare cases where specialized knowledge is required, courts can take expert testimony and consider scientific evidence, as they routinely do in other situations. Courts also have procedures for considering classified information, when necessary….

Elsewhere in the article, I discuss the enormous issues at stake in cases involving dubious invocations of emergency powers:

Advocates of judicial deference claim it is important to give the president discretion to combat threats. But the enormous risks such deference poses easily outweigh any possible advantage of increased executive flexibility. If illegal migration and drug smuggling qualify as an "invasion," the federal government, under the Constitution, could suspend the writ of habeas corpus whenever it wants, thereby gaining the authority to detain people without due process or filing charges. If properly invoked, the AEA allows detention and deportation even of legal immigrants.

In addition, the weak due process protections mean U.S. citizens may get ensnared in the process, as often happens even with ordinary deportations….

Likewise, normalizing domestic use of the military poses obvious dangers to civil liberties and social order. Routine use of the military for such purposes is a grave menace, and a hallmark of authoritarian regimes.

The stakes with Trump's IEEPA tariffs are also very high. If not struck down, they are expected to impose some $1.9 trillion in tax increases on Americans over the next decade, costing the average household some additional $1,000 per year, while also raising prices and greatly diminishing economic growth. In addition, giving one man total control over tariffs undermines the rule of law and the expectations of stability on which the international economy depends.

Speaking at the Eighth Circuit Judicial Conference this week, Justice Brett Kavanaugh addressed concerns about the Supreme Court's failure to issue opinions with "shadow docket" orders. While explanatory opinions could be useful, he explained, rushing out opinions could increase the risk of error.

Bloomberg reports:

Kavanaugh . . . said there can be a "danger" in writing those opinions. He said that if the court has to weigh a party's likelihood of success on the merits at an earlier stage in litigation, that's not the same as reviewing their actual success on the merits if the court takes up the case.

"So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that's not going to reflect the final view," Kavanaugh said.

Kavanaugh said members of the court have differing thoughts on when to issue opinions for those cases on the so-called shadow docket, or when parties petition the justices for emergency relief on rulings made by lower courts. He said those cases will "get back to us soon enough."

Adam Liptak of the New York Times reports further:

Justice Kavanaugh said presidents of both parties were to blame. "Executive branches of both parties over the last 20 years have been increasingly trying to issue executive orders and regulations that achieve the policy objectives of the president in power," he said. Those actions give rise to challenges that can race to the Supreme Court. . . .

Emergency applications present the court with difficult issues, Justice Kavanaugh said.

"What is the status of the new regulation or executive order for the next two years?" he asked. "That itself is a very important question, and that's the question we often have to decide: Will the new regulation be in effect or not be in effect in the next two years?" . . .

In opening remarks, without referring to Mr. Trump's attacks on the federal judiciary, Justice Kavanaugh thanked the assembled judges for their service and urged them "to preserve what I think is the crown jewel of our constitutional democracy, which is the independence of the judiciary."

As Liptak also reports, Justice Elena Kagan made the case for explaining such orders at the Ninth Circuit's judicial conference last week.

In a similar appearance last week at the Ninth Circuit's judicial conference, Justice Elena Kagan, who has often dissented from the court's emergency rulings in favor of President Trump, made the opposite case, saying the majority should do more to explain its reasoning.

"I think as we have done more and more on this emergency docket, there becomes a real responsibility that I think we didn't recognize when we first started down this road, to explain things better," Justice Kagan said. "I think that we should hold ourselves, sort of on both sides, to a standard of explaining why we're doing what we're doing."

[UPDATE 7/31/2025 12:09 pm: The agreement also apparently includes an over $6M payment by UC; according to the N.Y. Times (Anemona Hartocollis), "The settlement, which still has to receive final approval from a judge, would give $50,000 to each of the named plaintiffs, including two law students, one undergraduate and one medical school professor. It would distribute $2.33 million among eight nonprofits, including Hillel at UCLA, the Anti-Defamation League and Chabad House at UCLA; $320,000 to a U.C.L.A. account dedicated to combating antisemitism; and the rest to costs and legal fees."]

From today's proposed stipulated judgment in Frankel v. Regents (C.D. Cal.):

a. The Regents of the University of California, President of the University of California, the Chancellor of UCLA, the Executive Vice Chancellor and Provost of UCLA, the Administrative Vice Chancellor of UCLA, the Vice Chancellor of Student Affairs of UCLA, and the Associate Vice Chancellor for Campus and Community Safety of UCLA—in their official capacities (collectively, the "Enjoined Parties")—are enjoined from offering any of UCLA's ordinarily available programs, activities, or campus areas to students, faculty, and/or staff if the Enjoined Parties know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students, faculty, and/or staff.

b. The Enjoined Parties are prohibited from knowingly allowing or facilitating the exclusion of Jewish students, faculty, and/or staff from ordinarily available portions of UCLA's programs, activities, and/or campus areas, whether as a result of a de-escalation strategy or otherwise.

c. For purposes of this order, all references to the exclusion of Jewish students, faculty, and/or staff shall include exclusion of Jewish students, faculty, and/or staff based on religious beliefs concerning the Jewish state of Israel.

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From Judge John J. Tharp, Jr. (N.D. Ill.) in yesterday's Doe v. Ahrens:

Plaintiff John Doe has filed this suit against defendant Valery J. Ahrens, alleging that after the two engaged in a long-distance, casual relationship, conducted largely online and over the phone, Ahrens began stalking and harassing him. Doe, who describes himself in the Amended Complaint as "a self-made entrepreneur, author, internet personality, [] venture capitalist … [and] a dedicated and loving father," alleges that Ahrens sent him non-stop messages and created various social media accounts for the purpose of publishing false and unflattering information about him, often engaging with his followers to direct them to these accounts.

Further, Doe alleges that Ahrens broadcast certain private, sexual telephone exchanges between the two that, Doe says, he did not know she was recording. Doe claims these actions amount to defamation per se, false light invasion of privacy, public disclosure of private facts, and intentional infliction of emotional distress under state law, and has invoked diversity jurisdiction for his federal suit.

With his complaint, Doe filed a motion to proceed under a pseudonym, arguing that given her past behavior, Ahrens is likely to "weaponize" this case and any filings therein to "exacerbate" the harm she has already allegedly inflicted on Doe. Doe argues that given the sensitivity of Ahrens's posts about Doe, and the fact that the "veracity" of those posts will be central to his defamation claims, he should be allowed to pursue his claims without further damaging his reputation.

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7/31/2018: Justice Anthony Kennedy retired.

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From Mississippi Today (Taylor Vance & Devna Bose) on Monday:

A ruling from a federal judge in Mississippi contained factual errors — listing plaintiffs who weren't parties to the suit, including incorrect quotes from a state law and referring to cases that don't appear to exist — raising questions about whether artificial intelligence was involved in drafting the order.

U.S. District Judge Henry T. Wingate issued an error-laden temporary restraining order on July 20, pausing the enforcement of a state law that prohibits diversity, equity and inclusion programs in public schools and universities.

Lawyers from the Mississippi Attorney General's Office asked him to clarify the order on Tuesday, and attorneys for the plaintiffs did not oppose the state's request. On Wednesday, Wingate replaced the order with a corrected version.

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I have written at some length about the problems with ABA accreditation. Alas, some of the most egregious behaviors from the ABA are considered confidential. Thankfully, the Pacific Legal Foundation sent public information requests to 50 public law schools concerning their accreditation process. The ABA routinely encourages schools to engage in unlawful discrimination, and rewards schools that are engaging in unlawful discrimination. The results are at once disappointing, but entirely predictable. The mere fact that the ABA temporarily suspended its DEI mandates does not mean much. They will revert to form as soon as the political pressure is gone.

Here is an excerpt from the report:

On the one hand, 20 law schools received accreditation reports indicating failure to meet the ABA's diversity standards. Common points of failure included not having enough minority faculty, not having enough women faculty, not having enough student diversity, failing to follow through with diversity plans, concerns about the treatment of minority faculty, having limited DEI curriculum integration, not having enough LGBTQ+ support groups, and attrition concerns for minority students. On the other hand, 25 law schools received accreditation reports acknowledging or praising the schools' compliance with the ABA's diversity standards. Common commendations included having a strong commitment to hiring diverse faculty, having diversity-focused scholarships and fellowships, having pipeline programs for minority students, having active DEI committees and task forces, having diversity recruitment strategies, having inclusive classroom initiatives, having a presence of DEI leadership positions, and having faculty diversity training.

Figure 1 displays the number of law schools that received qualitative evaluations of a variety of accreditation diversity standards. Each category aligns with a question in the accreditation report. No more than 15 of the 50 law schools received qualitative evaluations in any particular category.

I asked PLF Senior Legal Fellow Alison Somin (and wife of co-blogger Ilya) to write about the report. Her post follows below.

The American Bar Association has frequently pressured law schools into unlawful race and sex discrimination in faculty hiring and admissions, according to a recently released Pacific Legal Foundation report I co-authored with my colleague Caitlin Styrsky.

PLF's research team sent freedom of information requests to the 50 public law schools ranked highest by U.S. News and World Report. Forty-five schools ultimately responded. Twenty of the forty-five were faulted by the ABA in some way for not adequately meeting the ABA's diversity standards. Schools were criticized, among other things, for not having enough minority faculty, not having enough women faculty, not having enough racial minority students, and failing to follow through with diversity plans.

Concerns about inappropriate accreditor pressure toward discrimination is nothing new. PLF's report cites a number of news stories about the phenomenon dating back to the 1990s, both at law schools and other institutions. A United States Commission on Civil Rights report from 2007 recounts in detail the saga of George Mason University School of law (now Scalia Law School), which spent years skirmishing with the ABA about the racial composition of its student body, until it finally quietly gave up and started offering significant preferences in admissions. But to my knowledge, PLF's report is the first to look systematically at accreditor pressure at a significant number of schools.

The ABA accreditation process doesn't just provide law schools with the academic equivalent of the Good Housekeeping Seal of Approval. In most states, students must graduate from an ABA accredited law school to be able to take the bar exam and eventually become lawyers. Losing accreditation is basically a death sentence for most law schools, and they will be inclined to do anything to avoid it. In this context, the message to law schools is clear: get the ABA the demographic numbers it wants, even if you have to discriminate in violation of the law to get there.

The accreditation process was originally intended to protect students from diploma mills – scams that would take a student's money without actually providing them with much of an education. This basic consumer protection principle became especially important once federal money started to flow into higher education following the enactment of the G.I. Bill. Eventually, in 1965, Congress enacted the Higher Education Act that required federal money to go only to accredited institutions of higher learning.

Accreditation was never supposed to be about social engineering for the sake of social engineering. Yet much of what the ABA's diversity standards demand of institutions are really about nudging institutions toward pursuing the ABA's vision of social justice, not about ensuring that students receive high quality legal education. Indeed, much empirical research actually cuts the other way, suggesting that race preferences in admissions harm their intended beneficiaries.

Two years ago, the Supreme Court's Students for Fair Admissions opinion made clear that race discrimination in admissions is unlawful: "Eliminating race discrimination means eliminating all of it," Chief Justice Roberts wrote for the majority. But that promise will not be fully realized if accreditors are pushing schools to violate the law.

Even before Students for Fair Admissions, some states adopted constitutional provisions stricter than those found in federal law prohibiting the use of race or sex in public employment or education. California's Civil Rights Initiative (Prop 209) from 1996 is perhaps the best-known example, but Florida, Michigan, and a number of other states have since followed suit. For at least some law schools, it would be difficult or outright impossible to meet the ABA's diversity quotas without discriminating in violation of such laws. Yet the ABA took the position that these laws were no defense.

A recent executive order attempts to stop accreditors from pressuring schools into violating the law. The ABA has also recently temporarily suspended enforcement of its diversity standards. But an executive order can be revoked at the stroke of a pen by the next President. And, given the ABA's past enthusiasm for race and sex preferences, it will not be surprising if it decides to revive its diversity standards should the political winds shift.

All in all, legislation is necessary as a more permanent solution to the problem. PLF's report contains model language that Congress could use. Legislation on this topic has also recently been introduced by Senator Jim Banks (R-Indiana).

Some state supreme courts, including Texas, Florida, and Ohio, are considering whether they should continue to rely on the ABA as an accreditation authority. During their deliberations, they should consider the ABA's history of exerting unlawful pressure toward discrimination on law schools, as documented in PLF's recent report.

7/30/1956: Congress enacted a resolution, declaring that the motto of the United States is "In God we Trust." The Supreme Court declined to grant review in Newdow v.Congress, which considered the constitutionality of that motto.

Over the last several days, Steve Calabresi and I have been posting about the President's authority to appoint acting and interim U.S. Attorneys. See posts here, here, and here. We both generally believe the President's appointment (through his Attorney General) of Alina Habba to be Acting U.S. Attorney for the District of New Jersey is valid.

As I mentioned in my post earlier today, a criminal defendant in New Jersey has challenged Habba's appointment. And late this afternoon, the Justice Department filed its strong response. Here is the Department's introduction explaining why Habba is validly appointed and, in any event, the defendant is not entitled to attack the prosecution:

First, Ms. Habba is validly serving as the Acting United States Attorney. The Attorney General properly appointed her as the First Assistant United States Attorney; the First Assistant can serve as the Acting United States Attorney under the Federal Vacancies Reform Act when that office is vacant; and the President properly removed as United States Attorney an individual whom the District Court for the District of New Jersey purported to appoint.

Second, and in any event, even were Ms. Habba not eligible to serve as the Acting U.S. Attorney, there would be no basis for dismissing this indictment or prohibiting everyone in the U.S. Attorney's Office for the District of New Jersey (USAO-NJ) from participating in this prosecution. At minimum, Ms. Habba has been properly appointed as a Special Attorney to the Attorney General of the United States and directed to supervise the USAO-NJ. Pursuant to that appointment alone, she could still supervise this case—which was initiated by a validly empaneled grand jury and a Senate-confirmed U.S. Attorney—and the Assistant U.S. Attorneys assigned to it can continue prosecuting it under their own delegated authority from the Attorney General, subject to supervision by both Ms. Habba and Senate-confirmed officials in Main Justice, including the Attorney General and the Deputy Attorney General.

Unsurprisingly given my defense of her appointment, I find this brief to be highly persuasive. I did want to highlight the detailed response in the brief to the New Jersey defendant's claim (endorsed by some law professors) that the fact that Ms. Habba had previously been nominated to serve as the U.S. Attorney blocked her appointment. This specific statutory argument about the Federal Vacancies Reform Act (FVRA) is based on 5 U.S.C. § 3345(b)(1). The Department's response this point seems particularly powerful:

Although Ms. Habba did not previously serve as the First Assistant, she is not subject to § 3345(b)(1)'s bar because she is not presently nominated to serve as United States Attorney in a permanent capacity (and was not even so nominated at the time of her appointment as First Assistant).

The purpose of subsection (b)(1) is to prevent the President from circumventing the Senate's advice-and-consent function by installing a pending nominee for an office on an acting basis before the Senate can act on the nomination. See NLRB v. SW General, Inc., 580 U.S. 288, 295–96 (2017) (tracing history of provision). Accordingly, "if a first assistant is serving as an acting officer under [subsection (a)(1)], he must cease that service if the President nominates him to fill the vacant [Presidentially-appointed, Senate confirmed] office," or else withdraw from nomination. Id. at 301; see Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 558 (9th Cir. 2016) ("Subsection (b)(1) thus precludes someone from continuing to serve as an acting officer after being nominated to the permanent position, unless he or she had been the first assistant for ninety days of the prior year.").

Subsection (b)(1) therefore presupposes a current nomination to an office that is pending before the Senate. Nothing in the FVRA, however, suggests that the mere fact of a past nomination for an office—withdrawn by the President and never considered or acted upon by the Senate—forever bars an individual from serving in that capacity on an acting basis. The statute precludes a person from serving as an acting officer once "the President submits a nomination of such person to the Senate for appointment to such office," 5 U.S.C. 3345(b)(1)(B) (emphasis added); it does not say that the person is barred from such service if the President ever submitted a nomination in the past, or continues to be barred once a nomination is withdrawn. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (explaining that a statutory provision "expressed in the present tense" requires consideration of status at the time of the regulated action, not before); Nichols v. United States, 578 U.S. 104, 110 (2016) (same). Indeed, a lifetime ban of that sort would have no logical relationship to the distinct separation-of-powers problem that Congress sought to address in subsection (b)(1): Congress's desire to protect its ability to consider and act upon a pending nomination for an office can hardly be served if no nomination is pending.

In light of this strong response, the defendant's specific and narrow statutory challenge to Ms. Habba's authority should be—and likely will be—quickly dismissed. A quick dismissal will be helpful to the administration of justice, because the challenge to Habba's authority is reportedly leading to some other cases being put on hold.

Of course, there are other broader issues at play in the appointment of interim and acting U.S. Attorneys, as my earlier posts discuss.

It was revealed a few days ago that the Tea app that allows women to rate male daters and run them through a "Catfish Finder AI" got hacked. Over 72,000 selfies, ID pictures, and other user images were apparently exposed in the process. Then it turned out that users' direct messages about sensitive topics such as abortions or cheating were revealed as well.

It's easy to dismiss this incident as another instance of a private company failing to safeguard user data properly. But it's worth asking first how we got here. Safety apps such as Tea and social media groups that seek to protect people from dating app abuse have been labeled "vigilante justice." Why do we have this highly imperfect system of reporting abusive dating app behavior, however, along with tenuous frameworks of data storage?

In short, because current dating app use, in a largely unregulated environment, is dangerous yet often unavoidable if one wants to find a romantic partner. Some data suggests that one in three women who have used dating apps have experienced sexual assault as a result. As I discuss in my scholarship (such as in my forthcoming article "Tinder Backgrounds" here), the law currently does little to address or prevent this and other related forms of abuse. Read More

Separation of Powers

The Attorney General Can Put Her Own Legal Team in Place—through U.S. Attorneys in New Jersey and Elsewhere

Acting through through Section 546, or temporarily through the Federal Vacancies Reform Act, the Attorney General is entitled to appoint U.S. Attorneys for the District of New Jersey and all other federal judicial districts. If done properly, such appointments preempt any need for judges to appoint U.S. Attorneys. But it is important that the President submit a nominee for the position for Senate confirmation.

Paul Cassell | 7.29.2025 3:05 PM

Recently questions have swirled around how the Attorney General can appoint an "interim" U.S. Attorney before the Senate has acted to permanently fill the position, with a focus on the New Jersey position that has been filled temporarily by Alina Habba. A statute (28 U.S.C. 546) allows the Attorney General to make an interim appointment for 120-days, but then provides that the district judges in the district can step in to make a further appointment. On Saturday, VC co-blogger Steve Calabresi questioned the constitutionality of this statute, contending that such cross-branch appointments by the Judiciary of an Executive Branch officer violates separation of powers principles. Yesterday, I rebutted his argument, explaining why the Constitution's Appointments Clause allows Congress to set up this approach to interim appointments. And, if my constitutional analysis of § 546 is correct, then only statutory questions remain about how an interim U.S. Attorney can be appointed.

But Ms. Habba very recently resigned her position as "interim" U.S. Attorney to become "acting" U.S. Attorney. Is this permissible? Over the last 24 hours, this seemingly technical academic issue has suddenly assumed tremendous practical importance. As the New York Times is reporting in a lead story, "New Jersey Criminal Cases Screech to a Halt as [N.J. U.S. Attorney] Habba's Authority is Challenged." In this post, I address the current controversy surrounding the authority of the New Jersey U.S. Attorney. And, more broadly, I also attempt to set out the relevant statutory framework and policy issues surrounding appointments to the important U.S. Attorney positions.

To make a long story short, in my view, Ms. Habba is lawfully the acting U.S. Attorney in the District of New Jersey, at least for a short period of time, via the somewhat circuitous route of having been appointed by the Attorney General to be the First Assistant in the Office, and then being elevated to the Acting U.S. Attorney via the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. But one problem with this approach is that, while seemingly authorized by statute, it appears to have the potential to deprive the Senate of its opportunity to vote on the U.S. Attorney selection for a lengthy period of time. Rather than relying on the FVRA, a more straightforward path for the Attorney General is to simply appoint an "interim" U.S. Attorney every 120 days, under § 546—while the President simultaneously nominates that person to be the permanent U.S. Attorney. Indeed, Ms. Habba could now be reappointed as the interim U.S. Attorney and, simultaneously, her nomination resubmitted to the Senate. Under this approach, the Senate has an opportunity to speak to nomination, while at the same time the Attorney General is entitled to put her own legal team in place in the important U.S. Attorney positions around the country.

To set the stage for this question, it is useful to recount that the U.S. Attorneys for each of the 94 federal judicial districts (such as the District of New Jersey) are the top federal prosecutors. The U.S. Attorneys are political appointees, acting under the direction of the Attorney General (currently, of course, Attorney General Pam Bondi). Because of the importance of U.S. Attorneys, they are nominated for their positions by the President and then must be confirmed (or disapproved) by the Senate.

In recent years, following the election of a new President, it has become common for existing U.S. Attorneys to quickly resign and be replaced, particularly where (as happened in the last election) the new President is from a different political party than his predecessor. That replacement process can take time, as the new President must identify an appropriate replacement, and then nominate the replacement for the Senatorial advice and consent process.

In New Jersey, following the election of President Trump, in December the Biden-appointed U.S. Attorney for New Jersey (Philip R. Sellinger) resigned. As the Trump Administration transitioned into office and after Attorney General Bondi was confirmed, on March 24, 2025, Alina Habba was appointed as the "interim" U.S. Attorney for New Jersey. And President Trump submitted her nomination to become the permanent U.S. Attorney.

As I have discussed, the statute governing interim U.S. Attorneys (28 U.S.C. § 546) contains a 120-day time limit on Attorney General appointments. Since March 24, Alina Habba had been serving in that interim position, while her nomination to become the permanent U.S. Attorney was pending before the Senate. In the past, it has been common for interim U.S. Attorneys to remain in their positions until the Senate has acted, one way or the other, on their nominations. But over the last week or so, as Ms. Habba's interim, 120-day term was drawing to a close, the district judges for the District of Jersey entered a brief order declining to extend her term. Instead, citing their authority under § 546(d), the judges appointed Ms. Habba's First Assistant (Desiree Leigh Grace) to the interim U.S. Attorney position.

The Trump Administration quickly responded to keep Ms. Habba in the position. First, the President withdrew Ms. Habba's nomination to be the U.S. Attorney, a step apparently designed to clear the path for using the FVRA. And then Attorney General Bondi appointed Ms. Habba to be the First Assistant in that U.S. Attorney's Office. This appointment meant that automatically, by operation of law, Ms. Habba became the Acting U.S. Attorney for the District for up to the next 210 days, pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. The Attorney General also removed the First Assistant (Ms. Grace) from her (potential) court-appointed interim U.S. Attorney position.

After reading this complex procedural history, some might wonder whether this case is some sort of New Jersey machination, unlikely to recur elsewhere. But as Calabresi recounted in his original post, this issue is not confined to The Garden State. Senate Democrats are reportedly slow-walking the President's U.S. Attorney nominees, with negotiations on-going to break the impasse. As of a few days ago, only a dozen nominees have moved past a preliminary committee vote and not a single nominee has received a confirmation vote on the Senate floor—even though the Presidential election was more than eight months ago. So issues regarding the appointment process for the 93 U.S. Attorneys, whether it be on an "interim," "acting," or permanent basis, have tremendous practical importance. (For an excellent recent article differentiating among the three categories, see James A. Heilpern, Interim United States Attorneys, 28 George Mason L. Rev. 187 (2020) (calling the current situation "a mess").)

The recent use of the Federal Vacancies Reform Act to fill the New Jersey slot might serve as a roadmap for the Trump Administration to follow in other districts. But the FVRA's scope is debated. And, more important, the Act's constitutionality has also been seriously questioned. For example, Justice Thomas has concluded that "[c]ourts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation." N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 318 (2017).

In the last few days, these seemingly arcane appointment issues have come to a head in New Jersey. A federal criminal defendant in New Jersey has already challenged Habba's appointment under the FVRA, arguing that the statute explicitly prohibits individuals whose nomination have been submitted to the Senate from serving in an acting capacity for the same office. Let's consider this narrow statutory argument.

The relevant provisions in the FVRA provide:

(a) If an officer of an Executive agency … whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

(1) the first assistant of the office such officer shall perform the functions of the duties of the office temporarily in an acting capacity …

(b)(1) … a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.

5 U.S.C. § 3345 (emphasis added).

According to this defendant, this last (highlighted) provision "explicitly prohibits" Habba from serving as the Acting U.S. Attorney for the District of New Jersey because the President had months earlier submitted her nomination to the Senate for that same position—even though the President has now withdrawn her nomination. The defendant's argument is joined by Georgetown law professor Steve Vladeck, who argues on social media that the "President can't appoint the 'first assistant' to be the acting officer if her nomination was 'submitted,' not just if it's 'pending.' Withdrawing the nomination doesn't change the fact that it was submitted."

I believe Habba is properly serving as the Acting U.S. Attorney for the District of New Jersey, by operation of the FVRA, at least for a short period of time. The key question being litigated in her case is whether a person is permanently barred from serving as an acting U.S. Attorney after the President "submits a nomination of such person" to the Senate. But the statute's plain language does not create a disability after a nomination "was submitted," as Vladeck suggests. Instead, the statute uses the present tense: a disability exists when the President "submits a nomination." Under standard, recommended principles of legislative drafting, the present tense is used "to express all facts and conditions required to be concurrent with the operation of the legal action," as Bryan Garner explains in his excellent treatise, Garner's Dictionary of Legal Usage 536 (3d edition 2011) (emphasis added). Now that the President has withdrawn Habba's nomination—i.e., is no longer submitting her nomination—the condition of her nomination being submitted to the Senate is no longer concurrent with the legal actions she is taking as the U.S. Attorney.

This interpretation of the statute makes common sense. Presumably Congress did not want a person to serve as the "acting" U.S. Attorney while that same person's nomination had been submitted to the Senate. Before that person can act as the U.S. Attorney, that person should go through the normal Senate confirmation process. But the fact that the President had earlier submitted a nomination should not create a disability for temporary service as the acting U.S. Attorney—months, years, or even decades after an earlier nomination that the Senate never acted upon.

Moreover, it makes no difference to Ms. Habba's ability to serve as the "acting" U.S. Attorney that she had previously served as the "interim" U.S. Attorney under § 546. The Justice Department's Office of Legal Counsel (OLC) has opined that the two statutes (the FVRA general provisions on "acting" officials and § 546's specific provisions on "interim" U.S. Attorneys) "can operate in sequence," with an official first being appointed under one statute and then later under the other.

Nor does it make any difference how the vacancy that Ms. Habba is filling arose. The FVRA drafters apparently intended to allow the filling of even self-created vacancies. During a floor debate, both Senators Thomas and Byrd stated that vacancies created by terminations were examples of § 3345(a)'s "otherwise unable to perform the functions and duties of [such] office" language. See Guidance on Application of Federal Vacancies Reform Act of 1998, at 61 (1999) (noting that during a floor debate Senators Thomas and Byrd stated that firing was an example of not being able to perform one's duties under 5 U.S.C. § 3345(a) (discussed in Note, Justin C. Van Orsdol, Reforming Federal Vacancies, 54 Georgia L. Rev. 297, 309 (2019)). In fact, this broad language was specifically chosen to "make the law cover all situations" because, under Doolin Security Savings Bank v. Office of Thrift Supervision, the original Vacancies Act's language did not apply to officers who were fired. See 139 F.3d 203, 207 (D.C. Cir. 1998) ("[I]t becomes clear that the [original Vacancies Act] contemplates only the death, resignation, illness or absence of someone appointed to the position by the President." (emphasis added)), superseded by statute, Federal Vacancies Reform Act of 1998, Pub. L. No. 105–277, discussed in 144 Cong. Rec. S12810, S12823 (daily ed. Oct. 21, 1998) (statement of Sen. Thompson), as summarized in Note, supra, at 308 & nn.69-71.

For all these reasons, I believe that Habba is properly serving today as the acting U.S. Attorney for the District of New Jersey, at least temporarily for a short time until the Attorney General decides who should be nominated to fill that spot permanently. And any question will be resolved relatively quickly. The statutory issue is already being reviewed by the courts and is simply a question of reading several sentences in the FVRA. Nonetheless, the ramifications are significant, as the likely remedies for a determination that Habba has been improperly appointed is new trials and proceedings. See Heilpern, supra, at 210-11 (citing Lucia v. SEC, 585 U.S. 237 (2018)).

But a broader issue is that the FVRA maneuver has forced the President to withdraw Habba's nomination, not only depriving the President of the chance to have his selected nominee considered but also the Senate of an opportunity to vote on her confirmation. This absence of a possible Senate confirmation vote raises the constitutional question identified by Justice Thomas above—i.e., whether the FVRA is an impermissible abrogation by the Senate of its advice and consent function. There are also other statutory questions about the FVRA that this (already lengthy) blog post does not consider, such as whether the FVRA's general provisions for all Executive Branch positions effectively cross-references and makes applicable § 546's more specific provisions for filing vacant U.S. Attorney's positions in particular. See 5 U.S.C. § 3347(a)(1)(A). Indeed, it is interesting to observe that the FVRA was intended to limit Executive Branch power, and is now apparently being used as an expansion of the Attorney General's power. Cf. Ross E. Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 Minn. L. Rev. 363, 439 n.352 (2001).

Like Calabresi, I believe that the President (and his Attorney General) need not resort to the complexities of the general provisions of the FVRA to put his chosen U.S. Attorneys into place. Instead, I believe that the Attorney General posses more straightforward authority under § 546 (specifically governing appointment of U.S. Attorneys) to make, first, an "interim," 120-day appointment while a Senate confirmation is pending. And then, if the Senate has failed to Act to make the interim appointment a permanent one, the Attorney General can make successive interim appointments until the Senate makes its decision. If the Attorney General is able to use that specific statute to appoint the President's nominees as "interim" U.S. Attorneys, there is no need for the Attorney General to resort to the FVRA to put in place "acting" U.S. Attorneys. And the Senate's role is respected if the interim U.S. Attorney's nomination is simultaneously provided to the Senate for its decision. Read More

Two weeks ago, I wrote about a leaked memorandum from the Judicial Conference, which was published by Margot Cleveland at the Federalist. At the time, the Federalist did not publish the entire memorandum, but only included excerpts.

In a thread, Margot explained that she didn't publish the "lengthy" memorandum because it had "nearly 20 pages of internal discussions, none of which had ANYTHING to do with Boasberg's comments." Margot added that "Those discussions provided neither content or context to Boasberg's comments and were either held no news value or in my judgment and that of my editor . . ."

Margot also provides the entire relevant paragraph concerning Judge Boasberg's comments:

District of the District of Columbia Chief Judge James Boasberg next raised his colleagues' concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis. Chief Justice Roberts expressed hope that would not happen and in turn no constitutional crisis would materialize. The Chief Justice talked about how his interactions with the President have been civil and respectful, such as the President thanking him at the state of the union address for administering the oath.

Cleveland is not the only person who has this memorandum. The Department of Justice filed a misconduct complaint against Judge Boasberg. Footnote 2 references the memorandum.

On March 11, 2025, at one of the Conference's semiannual meetings, Judge Boasberg disregarded its history, tradition, and purpose to push a wholly unsolicited discussion about "concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis." [FN2] By singling out a sitting President who was (and remains) a party to dozens of active cases, Judge Boasberg attempted to transform a routine housekeeping agenda into a forum to persuade the Chief Justice and other federal judges of his preconceived belief that the Trump Administration would violate court orders.

[FN2] Attachment A at 16.

The complaint is directed to Chief Judge Srinivasan. As Margot points out, it is not clear whether Chief Judge Srinivasan was present at the meeting where Boasberg made these comments:

9/9 And memo indicates that not all members of Judicial Conference attended the breakfast. Bottom line: Judge Boasberg's comments revealed colleagues on D.C. District Court had bias against a litigant. That was and is extremely newsworthy. Judge Srinivasan can take it from here.

— Margot Cleveland (@ProfMJCleveland) July 29, 2025

If Srinivasan was present, and has personal knowledge beyond the cursory discussion in the memorandum, recusal might be on the table. In any event, I would hope Judge Srinivasan gives this matter at least as much scrutiny as he gave the ill-fated smear attack against Judge Griffith.

Earlier this month I participated in a Supreme Court term wrap-up event at the National Constitution Center (co-sponsored by Texas A&M's Center for the Structural Constitution). On a separate panel, Georgetown law professor Steve Vladeck suggested the Supreme Court's failure to confront and constrain the Trump Administration amounted to appeasement, and to be sure no one missed the point, he compared Chief Justice Roberts to Neville Chamberlain. According to Professor Vladeck, the best defense that could be made of the Supreme Court's repeated grants of emergency relief to the Trump Administration was that the Court was avoiding a messy confrontation between Article III and Article II -- a confrontation that the judiciary would likely lose.

Some may well ascribe the Court's actions to prudential judgments about when and whether to assert judicial authority to constrain the executive branch. I think a better explanation for the Court's behavior is that a majority of the Court is keenly aware of the limits on federal court jurisdiction and remedial authority, and is properly concerned that lower courts have been too quick to transgress such constraints. Put another way, a majority of the Court largely accepts formalist constraints on judicial power and rejects the proposition that the proper response to executive branch overreach is for the judiciary to respond in kind.

I expand on this point in my latest Civitas Outlook column, "Mistaking Principle for Appeasement." Here's a taste:

A much simpler explanation for the Court's decisions is that the justices are doing their level best to resolve the legal questions before them in accordance with the law, cognizant of the limits of their own authority. While the justices have been stingy in offering explanations for decisions made on an expedited basis on the "shadow docket," the rationales behind their actions are not hard to discern. Much as in Trump v. CASA, where the Court's conservative majority held that district courts lack the equitable power to impose universal injunctions, the justices are resolving specific questions in the context of specific cases, rather than seeking to pronounce on the ultimate legality or wisdom of the executive branch's initiatives.

The Court has not been asked to determine whether the Trump Administration is drawing within the lines and complying with federal law in every instance—and in many instances is clear that it is not. Rather, the Court has been asked to rule on specific questions raised in specific cases, such as whether a district court correctly concluded that a particular action was unlawful, was properly before the court, or is even the sort of question that the judiciary can resolve. As Justice Barrett reminded us in her Trump v. CASA opinion, "federal courts do not exercise general oversight of the Executive Branch."

It has been black-letter law since the Founding that not every unlawful act has a remedy in federal court. (Just ask William Marbury.) Some cases present nonjusticiable political questions. In other cases, no plaintiff can satisfy the requirements of Article III standing. In still others, Congress may have channeled litigation to particular courts or required legal challenges to be considered at a particular time. And even when litigation against the executive branch is permissible, courts may be constrained in the remedies they may provide.

Judicial resolution of specific cases or controversies may constrain executive action, but it is not the duty of the courts to police all executive branch conduct. Not all executive branch overreach may be remedied by the judicial power.

In case it is not clear, my argument is not that every action the Trump Administration is lawful. Quite to the contrary, I believe the Trump Administration has exceeded the scope of executive power and engaged in unlawful acts and omissions, ranging from its vindictive assaults on law firms for representing the wrong people and its claimed authority to dispense with the TikTok ban. But the Court is not called upon to make universal pronouncements about the Trump Administration. It is called upon to resolve specific cases in accordance with the law. And even if we think the Court as erred in some cases, we should not be so quick to ascribe political or prudential motives, when principled explanations suffice.

UPDATE: I agree with those who argue that the Court should endeavor to offer more fulsome explanations of its various "shadow docket" orders. This would not require drafting full opinions, let alone hearing argument (steps which would, in many of these cases, keep the improperly entered district court injunctions in place), and rushed opinions may not always be preferable to no opinion. But providing even a cursory explanation for why the majority believes the government's claims would be likely to succeed on the merits would provide greater guidance for lower courts and help insulate the Court from much criticism, even in those cases in which the reasons for the Court's actions should be relatively clear.

George Mason University, where I teach, is embroiled in federal civil rights investigations over how it has handled campus antisemitism, and over racial preferences in hiring and admissions.

Various members of the faculty and faculty institutions, notably the local chapter of the AAUP and the Faculty Senate, have risen in defense of President Gregory Washington. The latter organization voted on a hastily-drafted resolution that praised Washington for using racial preferences to try to match the ethnic composition of the faculty with that of the student body. Given that this is blatantly illegal, and was even before the 2023 SFFA decision cracked down on racial preferences more broadly, the resolution not surprisingly attracted additional federal attention.

In any event, I was, as the young people say, "triggered" by a particular paragraph written by professors Tim Gibson, Bethany Letiecq, and James H. Finkelstein in an opinion piece in the Chronicle of Higher Education (paywalled):

The most confusing aspect of this multipronged MAGA-movement attack on Washington is that he has already given his conservative critics everything they wanted. First, far from ignoring antisemitism on campus, Washington and his team have been aggressive — sometimes excessively so — in responding to allegations of antisemitic speech following Hamas's attack on Israel in October 2023. Over all, George Mason has taken stringent policing measures to prevent violence, including implementing an anti-mask policy transparently aimed at students wearing keffiyehs.

This is at best disingenuous, and borders on fabrication. Virginia has a state law that forbids masking for the purposes of concealing identity.

It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.

Virginia statutes § 18.2-422.

The law is unambiguous, and has been upheld in state court against a First Amendment challenge. Almost all egregious misbehavior on college campuses, include at least two assaults on Jewish students at George Mason, has been undertaken by masked students.

Shortly after the Hamas massacre on October 7, 2023 was greeted with masked hate mobs at George Mason praising Hamas, I urged university officials to enforce the law. I was ignored, but I heard from other sources that the university was refusing to enforce the law on the grounds that the local (leftist) Commonwealth's Attorney informed the university that she would not prosecute anyone for violating the law unless they also committed another crime while masked.

I pointed out to university officials that (a) university police (who are official county police) are still responsible for enforcing the law, and if the CA refuses to prosecute, that's her issue; and (b) putting law enforcement aside, the university could have an internal ban on masking because it's illegal, and just use internal disciplinary processes instead of the legal system.

I also eventually learned that the university student handbook already required students to comply with state law, so the university did not have have to implement any new policy to punish violating the statute. (And of course, the point was not to punish students who wear masks, but to stop them from wearing them to begin with, by informing them that they will be punished if they do.)

Anyway, none of my entreaties, or those of anyone else concerned with the issues, went anywhere until Virginia Attorney General Jason Miyares sent a letter to all state universities reminding them of the anti-masking law and their obligation to enforce it.

Even that, however, did not get the university to enforce the anti-masking law. Rather, the university implemented a policy that allows students to wear masks to conceal their identity, but requires them to identify themselves if asked. That's a marginal improvement, but it's quite obviously not what the law says.

I assume the university believes that it's balancing the free speech rights of the students with public safety, but I'm at a loss to figure out where the university gets the notion that it can pick and choose which laws to enforce based on its own assessment of the equities involved.

Beyond the (relatively minor, as I understand it) assaults noted previously, the threat of anti-Jewish violence from George Mason students is not merely hypothetical. One student has been arrested for a plot to attack the Israeli consulate in New York. Two students, sisters and leaders of the university's SJP chapter, were arrested for vandalizing university property. Their home was found to contain vile antisemitic literature, a collection of weapons, and terrorist flags.

Especially in light of that information, the notion that George Mason University has been "overly aggressive" in trying to prevent antisemitic violence because it has implemented a policy that falls far short of its pre-existing legal obligations is risible.

The plaintiff in Schoene v. Rice Univ. filed the complaint (alleging sexual orientation discrimination, disability discrimination, breach of contract, and constructive discharge) under his own name, but then moved to retroactively pseudonymize it five days later. The problem is that longstanding Fifth Circuit precedent is quite clear that employment discrimination plaintiffs generally must sue under their own names, notwithstanding the argument that this can cause them professional harm. And while plaintiff claims that he's facing not just "professional harm" and "stigmatization," but also unspecified "privacy, safety, and serious health consequences as case implicated medical diagnosis, as well as personal issues of both sexuality and disability," that too is generally not enough for pseudonymity.

Plus retroactive pseudonymity is generally even harder to get. And even when courts are potentially open to pseudonymity claims, for instance when there's real evidence of risk of physical or mental harm, or unusually strong privacy claims, they generally require some pretty specific, concrete evidence: General claims of "discrimination related to positionality across multiple marginalized and vulnerable communities" usually don't cut it.

The court unsurprisingly denied the motion to proceed under a pseudonym, though without a detailed opinion. Note that plaintiff, a humanities professor, is pro se; but his faculty web site says he studied law at a leading Canadian university, he was the editor-in-chief of his law school's journal, his teaching and scholarly interests include some law-related subjects (such as "Queer Ecojustice" and "Law and Literature").

Free Speech Right of Access

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