David Boaz did not write much on immigration. But what he did say on the subject indicates his understanding that breaking down harsh migration restrictions should be a high-priority issue for all who value liberty.
In David's final public speech, "The Rise of Illiberalism in the Shadow of Liberal Triumph," he emphasized the enduring value of "equal rights for people regardless of color, gender, religion, sexuality or language. Equal rights based on our common humanity." He warned that the liberal ideal of "inalienable rights" to a "life, liberty, and the pursuit of happiness" for all people is "incompatible with political ideas based on 'blood and soil' or treating people differently because of race or religion." In our time, there is no greater example of that incompatibility than immigration restrictions, which severely undermine liberty based simply on the fact that would-be migrants were born in the wrong place, to the wrong parents, or are members of the wrong "race or religion." Severe immigration restrictions, of course, are central to the ideology of "blood and soil" nationalists in the US and Europe, the greatest enemies of liberty in the Western world today.
In a 2006 article, David praised the immigration policy of pre-Chinese Exclusion Act America, in which "there were no restrictions on immigration and thus no "illegal immigrants". There were rules governing naturalisation and citizenship, but anyone who could get here could live and work here." That is an ideal we should aspire to return to.
In David's contribution to National Review's 2016 "Against Trump" symposium, he wrote that "From a libertarian point of view…. Trump's greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule." He was right then, and remains right today. Nativism – the main source of support for migration restrictions – is indeed an offense against America's founding principles, and those of liberalism, more generally.
Later in the essay, I describe how immigration restrictions are inimical to the principles of the American Founding and critique libertarian rationales for exempting migration restrictions from our general presumption in favor of liberty and against government intervention.
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
The new technologies will have at least three significant effects on advertising:
First, it will be easier and cheaper to have advertising-free media. Consumers generally don't like commercials on radio and TV, because (unlike in newspapers) the ads interrupt the program content. Some consumers dislike commercials enough that they would be willing to pay extra for advertising-free media, as they now do for some cable movie channels.
Other consumers would prefer to have free (or cheaper) entertainment, and would be willing to sit through the commercials to get it. Still, as the costs of providing services-such as custom-mix cable radio-fall, the amount of advertising on free services will fall, too, as services compete with one another based on how few commercials they have.
Advertisements in newspapers and magazines are less intrusive, so there'll be less pressure to reduce their quantity. Some publications might refuse ads to prove their independence from outside pressure, but this seems unlikely to become common.
Second, newspapers will lose a vast amount of classified ad revenue. This revenue accounted for forty percent of total newspaper ad revenue in the late 1980's; one commentator projects it will reach sixty percent by 2000. But paper classifieds are far inferior, for both buyers and sellers, to electronic classifieds that are untied to any newspaper.
Particularly since our win in the US Court of International Trade, there has been considerable public interest in the case against Donald Trump's "Liberation Day Tariffs" filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by the tariffs. For the benefit of the media, legal commentators, and other interested readers, this post compiles links to all my writings about the case and related issues.
Unless otherwise noted, all links are to pieces originally published right here on the Volokh Conspiracy blog. I omitted posts that simply link to media appearances, or to pieces I published elsewhere. I will likely update the list below, as needed.
UPDATE (February 21, 2026): For at least some time, I will keep adding links to this page in the aftermath of the Supreme Court decision in our favor. Stay tuned!
UPDATE: (July 24, 2026): I will continue to post links here to new writings about the IEEPA case and the Section 122 tariff case. But not necessarily writings about other tariff issues.
"Trump's Tariff Power Grab May not be Over," Feb. 4, 2025. I suggested the suspension of Trump's first set of IEEPA tariffs wouldn't end the tariff power grab. The prediction proved accurate.
"Why Trump's 'Liberation Day' Tariffs are Illegal,"Apr. 3, 2025. In this post, I first outlined the main arguments against the "Liberation Day" tariffs (which were announced by the White House the day before).
"A Victory for Separation of Powers," The Atlantic, May 30, 2025 (non-paywalled version here). My most extensive analysis of the judicial rulings against the IEEPA tariffs, and their broader implications.
Many courts are quite willing to allow plaintiffs to proceed as Jane or John Does in sexual assault cases, see pp. 1430-34 of The Law of Pseudonymous Litigation. But for reasons that I can't explain (and that might just be path-dependent, based on the outcomes of a few early precedents), the U.S. District Court for the Southern District of New York appears to be much more skeptical of that. The many cases against Sean Combs have turned in that direction, with a few early decisions tentatively allowing pseudonymity being later reconsidered; see this May 13 decision by Judge Valerie Caproni, which is the ninth S.D.N.Y. lawsuit against Combs saying no to pseudonymity.
The same has been true of many still other cases. Here, for instance, is Judge Colleen McMahon's decision May 14 in A.P. v. Weinstein(S.D.N.Y.); it turns out that A.P. is Crystal McKinney, who has alsosued Sean Combs (P. Diddy) for sexual assault:
A.P. brings the latest in a series of "Me Too" lawsuits against the notorious Harvey Weinstein, his former company Miramax, and the Walt Disney Company, which owned Miramax between 1993-2009, the period during which the incidents underlying this lawsuit allegedly took place. She has filed her one count complaint pursuant to the New York City Victims of Gender Motivated Violence Protection Action, alleging that Weinstein sexually assaulted her and a friend in 2003. She seeks leave to proceed anonymously.
That motion is denied.
There is a strong presumption against allowing a plaintiff to proceed anonymously, even in a lawsuit where the events in suit are unsavory—as the events in suit here surely are. Federal court proceedings and records are presumptively public absent a showing of exceptional circumstances. Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008); Rapp v. Fowler (S.D.N.Y. 2021). There follows an analysis of the ten factors identified by the Second Circuit's as matters to consider when deciding an application for leave to file suit anonymously:
From a Minnesota Tax Court decision Thursday, Delano Crossing 2016 v. County of Wright (Chief Judge Jane N. Bowman and Judges Bradford S. Delapena and Beverly J. Luther Quast):
In support of a motion for summary judgment, which the court denies in a concurrent order, the County submitted a brief that included five case citations generated by Artificial Intelligence (AI); none of the five citations referred to an actual judicial decision. Indeed, much of the County's brief appeared to be written by AI. We subsequently ordered Wright County to show cause why it should not be sanctioned and why Ms. Pence, who signed and filed the brief, should not be reported to the Minnesota Lawyers Professional Responsibility Board. For the reasons below, although we believe Ms. Pence's conduct violated Rule 11, we decline to order sanctions. Additionally, we refer this matter to the Minnesota Lawyers Professional Responsibility Board for further review….
[When asked to explain the situation,] Ms. Pence generally characterized her filing of a brief containing AI-hallucinated case citations as a mistake, stating: "I believe I inadvertently filed a draft Motion that was never intended to be the final product. I did not intend to file an AI-generated pleading; however, I have been unable to locate any other documents containing my research."
Ms. Pence further averred that she did not realize her brief contained fake case citations until approximately 6:48 p.m. the night before the motion hearing, prompting Ms. Pence to conclude that the best time to deal with the situation was at the impending hearing. Ms. Pence further attested that although the case citations in her brief were fake, "the legal contentions in the motion are warranted by existing law as cited [orally during the hearing]." Ms. Pence generally attested, in other words, that although she "erroneously filed a document with hallucinated cases," the County's arguments were otherwise legally sound. Ms. Pence added that she has taken several remedial measures to ensure this does not happen again, and she understands "the seriousness of [her] mistake."
Rule 11.02 states that, "by presenting to the court … a pleading, written motion, or other document," an attorney certifies "to the best of [their] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" that "the claims, defenses, and other legal contentions therein are warranted by existing law…." "Thus, rule 11 prescribes an affirmative duty on counsel to investigate the factual and legal underpinnings of a pleading." …
From Saturday's Washington Post story; the subhead is,
[Title:] It's Called the Library of Congress. But Trump Claims It's His
[Subtitle:] The case is the latest example of efforts by the Trump administration to erase the traditional lines that separate the branches of government.
[First two paragraphs:] The Trump White House has a new target in its campaign to expand executive power: the Library of Congress. Never mind the name—administration lawyers are now arguing that the main research library of the legislative branch doesn't actually belong to Congress at all.
A legal push to claim the Library as executive turf isn't a one-off. It's the latest move in a broader effort by President Donald Trump and his administration to erase the traditional lines that separate the branches of government….
Later paragraphs likewise give the Administration's actions with regard to the Library as part of "the Trump administration's disregard for the separation of powers."
But this material seems to entirely ignore (with one exception I'll note below) what courts have actually said about this legal question. Those precedents have routinely recognized that the Library of Congress, despite its name, is indeed part of the Executive Branch and subject to Presidential control—and that the President's power to remove the Librarian is a feature of the traditional separation of the branches, not a violation. The U.S. Court of Appeals for the D.C. Circuit held last year,
And the Intercollegiate Broad. Sys. D.C. Circuit decision said (emphasis added),
To be sure, [the Library of Congress] performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But … the Librarian is appointed by the President with advice and consent of the Senate, and is subject to unrestricted removal by the President. Further, the powers in the Library and the [Copyright Royalty] Board [which is part of the Library -EV] to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a "component of the Executive Branch."
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
When I say the new technologies will shift power to listeners, I mean of course listeners who can afford the new technologies. But what about consumers who can't buy a computer, a digital recorder, a printer, a cbook, and an infobahn hookup?
Music: Poor consumers should benefit from electronic music delivery. Even if they can't afford the hardware, they should be able to buy their music from public vending machines. While it may cost more to buy from these machines than it would to buy from home, it should still cost less than it does now. Of course consumers will still need devices that play these recordings, but there's no reason to think they'll end up costing more than about what CD players do now.
Short Opinion Articles: Opinion articles may be different. Home delivery of selected opinion articles will work because subscribing to the articles and getting them each morning is easy. If your favorite columns are there on your printer when you wake up, you'll read them. But if you must go every day (or even every week) to a public terminal, select what you want, and wait for it to print, the result will be much less useful to you. And the cost of such public access may be a good deal higher as a proportion of the normal price than it would be for music.
On the other hand, this system might not be much worse for poor people than the existing one. People who can't afford the needed computer hardware might also be unable to afford a $200-per-year subscription to The Los Angeles Times. And with over eighty percent of all U.S. households owning VCRs, the affordability of home electronics to even the not-so-rich shouldn't be underestimated.
After fifteen re-listings, on June 2 the Supreme Court denied cert in Snope v. Brown, which concerns Maryland's ban on semiautomatic rifles, and Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban. I previously discussed these cases here.
Cert denial in Ocean State was more predictable, even though Justices Thomas, Alito, and Gorsuch would have granted the petition, as it sought review of denial of a preliminary injunction. But in Snope (styled Bianchi v. Brown in the 4th Circuit) – which has a final judgment based on a full record –Justices Alito and Gorsuch are listed as having been in the "would have granted" category, with Justice Thomas writing a dissent from denial. The big news is that Justice Kavanaugh issued a statement in Snope concluding that "this Court should and presumably will address the AR–15 issue soon, in the next Term or two."
According to Justice Kavanaugh, "Americans today possess an estimated 20 to 30 million AR–15s," which are "legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR–15s are something of an outlier." That suggests that AR–15s meet Heller's "common use" test, as then-D.C. Circuit Judge Kavanaugh opined in Heller 2. "If so, then the Fourth Circuit would have erred by holding that Maryland's ban on AR–15s complies with the Second Amendment."
Moreover, Justice Kavanaugh continues, "it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller." Most handguns are semiautomatic, as is the AR–15 rifle, and law-abiding citizens use both for lawful purposes such as self-defense in the home.
Several circuits are considering the issue, including the 1st, 2nd, 3rd, 7th, and 9th, and more cert petitions will likely come before the Court. Further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." That's the basis for Justice Kavanaugh's prediction that the Court will decide the issue in the near future.
Justice Thomas dissented from the denial of certiorari. Contrary to the Fourth Circuit, AR–15s are "arms" under the plain text of the Second Amendment, shifting the burden to Maryland to show that banning them is "consistent with this Nation's historical tradition of firearm regulation." The lower court's "reasoning is dubious at least twice over" by placing too high a burden to show that the Amendment presumptively protects the conduct and by claiming that AR–15s are "dangerous and unusual." In more detail:
The Fourth Circuit erred by requiring the challengers to prove that the Second Amendment protects their right to own AR–15s—or, in the terms of our Second Amendment jurisprudence, that their conduct falls outside the historical exceptions to the right to keep and bear arms. A challenger need only show that "the plain text" of the Second Amendment covers his conduct. Bruen, 597 U. S., at 32. This burden is met if the law at issue "regulates" Americans' "arms-bearing conduct." Rahimi, 602 U. S., at 691. Once the challenger makes this initial showing, it is the government's burden to show that a historic limit on the right to bear arms nevertheless justifies its regulation. The Fourth Circuit placed the burden of producing historical evidence on the wrong party.
Further, the Fourth Circuit "eschewed any inquiry into the commonality of AR–15s and the purposes for which they are used, which it dismissed as an 'ill-conceived popularity test.'" Instead, it invented its own tests of "utility for self-defense," "military origin," "firepower," and "muzzle velocity." But the American people, not the government, decides which arms to use for self-defense. Contrary to the lower court, that does not lead to absurd results, such as individual use of a nuclear warhead, which would never come into common use for self-defense. "To fend off the fantastical threat of Americans lobbing nuclear warheads at one another, the Fourth Circuit has allowed the very real threat of the government depriving Americans of the rifle that they most favor for protecting themselves and their families."
Justice Thomas would not wait to decide the issue, which the Court has now avoided for a decade. "And, further percolation is of little value when lower courts in the jurisdictions that ban AR–15s appear bent on distorting this Court's Second Amendment precedents…. I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right."
* * *
In resisting Heller's common-use test, the Fourth Circuit in Bianchi repeated the myth that "approximately 740,000 machineguns [were] registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives as of May 2021." Not even close. By letter dated May 29, 2025, ATF responded to a Freedom of Information Act request from attorney George L. Lyon showing "the number of MGs [machineguns] added to the NFRTR [National Firearms Registration and Transfer Record]" from the enactment of the National Firearms Act through 1986, when new machineguns were banned from private hands by 18 U.S.C. § 922(o). Excluding machineguns held by government agencies or which are otherwise non-transferable, the total comes to 169,100. The actual number is lower, as the ATF report states that some of these would have been double counted.
A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)
Today, in the Fifth Circuit case of W.M.M. v. Trump, we submitted an amicus brief opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself. I coauthored it with Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, with the aid of valuable advice from Elizabeth Goitein (Brennan Center), and Prof. Dehn. Katherine is a leading expert on the AEA and its history, and Liza one of the nation' leading experts on emergency powers.
The fact that this brief is backed by organizations as ideologically diverse as Cato and the Brennan Center is a testament to the egregious nature of Trump's invocation of the AEA.
Here is a summary of the brief I prepared for the Cato Institute website:
The Alien Enemies Act of 1798 (AEA) is a wartime authority. Congress enacted the AEA under its constitutional war powers as an implementation of the law of war, which in 1798 allowed the government to detain or expel supposed "alien enemies." The AEA may be invoked only in the event of a declared war or "invasion" or "predatory incursion" by a foreign nation or government against U.S. territory. It has no peacetime applicability and has never previously been used outside of a major conflict. Before now, the only time the AEA was invoked absent a declared war was after Japan's attack on Pearl Harbor on December 7, 1941, just days before Congress declared war.
The Trump Administration's current invocation of the AEA, "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua," falls well outside the law's scope. By its text, the President's Proclamation addresses unlawful migration, narcotics trafficking, and gang violence, none of which constitute an "invasion" or "predatory incursion." Under no interpretation of the law of war could these civil and criminal matters trigger the AEA's exceptional powers. The designation of the Venezuelan drug gang Tren de Aragua as a foreign terrorist organization (FTO) does not transform its activities into acts of war.
This case does not present a political question exempted from judicial review. But even if it did, established exceptions to that doctrine would apply. Courts may always check obvious mistakes and manifestly unauthorized exercises of power. And the judiciary's ability to act is at its apex when civil liberties are at stake. Courts have the power to correct the president's misappropriation of the AEA in peacetime — and can rely on the judicially manageable standards historically used to identify acts of war.
Should courts adopt the government's unfounded interpretation of the AEA or hold that the executive's pronouncements are unreviewable, there would be dire consequences. The president could leverage the law's power against any group of immigrants, including legal ones, the federal government could suspend the writ of habeas corpus at will, and states could "engage in War" at any time.
We plan to file similar briefs in other AEA cases working their way through the courts.
I have previously criticized Trump's invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.
UPDATE: The link to the brief in original version of this post was broken. I have now updated with a workable link.
David Boaz (August 29, 1953–June 7, 2024) was one of the most influential libertarians of the 20th century, and a driving force behind The Cato Institute for many decades. The breadth of his interests and his consistent application of his principles to real world challenges were obvious and inspiring to those who knew him. The authors in this series are connected by their work with Boaz and inspired by his demonstrated careful and courageous thought and action. Authors were asked to respond to one of two prompts: "What is an issue that you think David would want to bring forward today and what do you think he would have said about it?" or "What is an issue about which David's influence helped you see the importance, and how does what he taught you shape your thought about it?" On the one year anniversary of his death, we hope to show the continuing relevance of his legacy.
When David passed away last June, I posted an obituary, and a transcript of his final speech, "The Rise of Illiberalism in the Shadow of Liberal Triumph." The speech is, if anything, even more relevant today than it was a year ago.
In 2005, in Gonzales v.Raich, the Supreme Court rejected a constitutional challenge to the federal prohibition of the cultivation, distribution, and possession of marijuana, even where legal under state law for medicinal purposes. Many did not like this decision (including me), in no small part because it embraced an unnecessarily capacious understanding of Congress's power to reach intrastate conduct through the Necessary and Proper Clause. While the Court's enumerated powers holdings in NFIB v. Sebelius may have constrained some potential applications of Raich, the underlying decision remains good law.
With Raich on the books, it should be no surprise that the U.S. Court of Appeals for the First Circuit rejected newly filed constitutional challenges to federal marijuana prohibition in Canna Provisions v. Bondi. Specifically, the Court rejected both the claim that federal marijuana prohibition exceeds the scope of Congress's powers under the Interstate Commerce and Necessary & Proper Clauses, as well as a claim that federal marijuana prohibition violates the Due Process Clause of the Fifth Amendment.
The challengers had sought to argue that intervening events, including the widescale legalization of marijuana for medicinal or recreational purposes under state law and Congress's failure to fund and support more aggressive drug enforcement, meant that Raich's holding no longer controlled, but the First Circuit did not buy it.
The reality remains that if federal marijuana prohibition is to end, so as to allow real marijuana federalism, it will take an act of Congress. Federal drug policy will not be made in the federal courts.
though the court found the plaintiffs had standing to bring the claim, and gave them one last chance to amend their complaint to plausibly allege enough to allow the case to go forward.
Plaintiffs, Jewish students attending the University of Pennsylvania ("Penn"), allege it engaged in antisemitic conduct that warrants a federal lawsuit. Plaintiffs' 111-page amended complaint sets out a wide variety of general allegations, complaints, historical and current events, and alleged antisemitic incidents that allegedly took place not just on Penn's campus, but elsewhere in the United States and the world. The amended complaint also includes sweeping allegations of ideological, philosophical, religious, and political concerns and grievances, that have nothing to do with a federal lawsuit.
It is unclear why Plaintiffs' counsel deemed it necessary to allege so many unrelated facts when doing so is directly contrary to federal pleading requirements. Indeed, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain only a "short and plain statement of the claim showing that the pleader is entitled to relief."
Penn has filed a Motion to Dismiss and Strike the Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12. After review of Plaintiffs' amended complaint, I find that it fails to sufficiently allege the facts necessary to plausibly state viable claims under Title VI, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and for breach of contract. Consequently, I will grant Penn's motion. I will, however, provide Plaintiffs one last opportunity to amend its complaint, but only as to the Title VI and breach of contract claims….
Plaintiffs Eyal Yakoby, Jordan Davis, and Noah Rubin are Jewish undergraduate students attending the University of Pennsylvania. All three are members of Students Against Antisemitism ("SAA"), "a not-for-profit corporation organized under the laws of the State of Delaware, formed to defend human and civil rights, including the right of individuals to equal protection and to be free from antisemitism in higher education, through litigation and other means."
Viewing their amended complaint as a whole, Plaintiffs essentially allege that since the October 7, 2023 attack on Israel, Penn has permitted, tolerated and/or facilitated multiple antisemitic incidents on its campus that have created a hostile educational environment for Jewish students….
The court concluded plaintiffs had standing to bring their claims:
For all practical purposes, the American Bar Association has a monopoly on law school accreditation. There is, at present, no other entity approved to accredit law schools, and the vast majority of states require graduation from an ABA-approved school in order to take the bar exam.
The ABA's de facto monopoly may explain why the organization has been able to impose ever-increasing (and often quite costly) requirements on law schools without ever really demonstrating that these requirements enhance educational outcomes, benefit students, or create better lawyers. It has also enabled the ABA to impose pressure on law schools to embrace progressive priorities, race-conscious admissions in particular (not that most law schools would resist).
There is increasing unhappiness with the ABA, and other accrediting institutions. Storm clouds are brewing at both the state and federal level. But will this pressure produce any change? I explore these issues, and possible reforms, in my latest column for Civitas Outlook. Here's a taste:
As the cost of legal education continues to rise and technological changes threaten to transform the delivery of legal services, the ABA's de facto monopoly on legal accreditation is under siege. Texas and Florida, the states with the third and fourth-most lawyers in the country, are both considering whether to stop requiring bar applicants to have attended an ABA-accredited school. At the same time, the Trump Administration is pushing to expand accreditation options. An April Executive Order directed the Department of Education to step up scrutiny of existing accrediting institutions while simultaneously expediting approval of new accreditors so as "to increase competition and accountability in promoting high-quality, high-value academic programs focused on student outcomes." . . .
In theory, accreditation could serve as a means of consumer protection, helping ensure students do not waste money on fly-by-night operations and graduate capable of passing the bar and serving clients. Yet it is not clear that ABA accreditation has ever actually served that purpose. Just as the medical profession has sought to limit the number of medical school spots to constrain the supply of doctors, the history of legal accreditation suggests that the ABA became involved to advance the financial interests of existing lawyers.
Whether the ABA sees itself as a cartel today, much of its accreditation behavior aligns with what a self-interested cartel would do. Accordingly, many of the ABA's accreditation requirements focus on costly inputs, such as the number of books in the library or the number of full-time, tenured faculty, that have no demonstrated relationship to a student's ability to pass the bar or become an effective lawyer. These requirements, however, have helped inflate the cost of obtaining a law degree and stifled innovation in legal education. . . .
If the ABA's accreditation standards serve their purposes of ensuring quality legal education and protecting consumers, it should welcome competition. If current accreditation standards produce better lawyers, the organization should have nothing to fear. But if, as many suspect, the ABA's standards have served the interests and ideological leanings of the organization, at the expense of the public and prospective students, then some degree of competitive pressure could foster a needed course correction. The ABA did not always accredit law schools, and there is no reason it should continue to do so forever.
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
While American government agencies generally don't regulate speech, private parties do. Publishers sometimes refuse to publish material they disagree with. Private groups sometimes pressure publishers to drop certain material. And even the viewpoint-neutral reluctance of publishers to accept work that appeals to too few consumers has the effect of shutting out political fringe groups on all sides of the spectrum.
The shift of control from publishers to speakers will greatly weaken these private speech regulations. When speech comes straight from the speaker to the listener, there's no one in between to regulate the speech, and no one for various groups to pressure if they think the speech is reprehensible. Threats of boycotts may work against diversified companies that sell information to many markets-someone can tell, say, Time Warner Records "If you carry Ice-T's Cop Killer, I won't buy other Time Warner material." But telling Ice-T "If you keep singing Cop Killer, I won't buy your other material" probably won't work; people who say this probably wouldn't buy his music anyway.
There's no consensus today about whether such private regulations are proper. Some consider them almost as dangerous as government censorship; others argue that private pressure on speakers is legitimate, sometimes even laudable. But regardless of one's normative judgment on this, the new information media will make it much harder for such private speech regulation, good or bad, to take place.
Of course, there'll still be some intermediaries. Though the power of publishers will wane, the equivalents of the music stores and bookstores—the music databases, and the computer systems that people access to subscribe to opinion columns, to buy books, or to get video-on-demand—will remain. They could refuse to carry certain kinds of speech, and various groups could pressure them into doing this.
"Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two."
On December 1, 2020, the Maryland ban on AR-15s was challenged. The plaintiffs lost in the District Court and before the Fourth Circuit. In August 2024, a cert petition was filed in Snope v. Brown. The petition sat in purgatory for nearly a year with fourteen relists.
Today, the Supreme Court finally put the petition out of its misery and denied cert. Justices Thomas, Alito, and Gorsuch would have granted. Justice Barrett, as usual said nothing. Justice Kavanaugh wrote a very unusual statement respecting the denial of the petition. The first two paragraphs explain why the Maryland decision was "questionable." If you read these parts, you would expect a grant. Indeed, Kavanaugh as circuit judge had found that the District of Columbia's ban on AR-15s was unconstitutional. But then, we get to the last paragraph:
In short, under this Court's precedents, the Fourth Circuit's decision is questionable. Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review. The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. See Capen v. Campbell, 134 F. 4th 660 (CA1 2025); see also, e.g., National Assn. for Gun Rights v. Lamont, 685 F. Supp. 3d 63 (Conn. 2023), appeal pending, No. 23–1162 (CA2); Association of N. J. Rifle & Pistol Clubs, Inc. v. Platkin, 742 F. Supp. 3d 421 (NJ 2024), appeal pending, No. 24–2415 (CA3); Viramontes v. County of Cook, No. 1:21–cv–4595 (NDIll., Mar. 1, 2024), appeal pending, No. 24–1437 (CA7); Miller v. Bonta, 699 F. Supp. 3d 956 (SD Cal. 2023), appeal pending, No. 23–2979 (CA9). Opinions from other Courts of Appeals should assist this Court's ultimate decision making on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.
My mouth nearly hit the floor when I read this. Kavanaugh all-but signals that he will be a fourth vote to grant cert. He does not identify any vehicle problems, or reasons why the Maryland petition should not be granted. Does he really think that rulings from the Ninth Circuit will help much in the deliberations? These courts will all rule against the Second Amendment. Nothing is in doubt. The upshot is that the Court is really busy with other stuff right now, and you all should just come back later. The Second Amendment could take a sabbatical for a year or two until the docket lightens up. Indeed, this case has been pending for nearly four years. Maryland gun owners will just have to chill.
Of late I've been praiseworthy of some of Kavanaugh's actions, but this is the sort of Kavanaugh opinion that infuriates me. And where is Justice Barrett on these issues? A decade ago in 2015, Justice Scalia dissented from denial of cert in Friedman v. Highland Park, a challenge to an assault weapon ban. This issue isn't new. I think this term will be remembered as the term in which Justice Barrett's slide became indisputable. I started tracking it years ago, but it is hard to ignore now.
Generated by ChatGPT; not a real Normal Rockwell image!
A short excerpt from the long and interesting Elam v. Early, decided Friday by Fourth Circuit Marvin Judge Quattlebaum, joined by Judge Pamela Harris:
Our story begins during the Franklin D. Roosevelt administration. In 1943, famed artist Norman Rockwell drew four panels capturing various visitors in the West Wing waiting for an audience with FDR. That same year, Rockwell gifted the four original illustrations—entitled So You Want to See the President—to FDR's Press Secretary, Stephen T. Early…. Early was the longest-serving press secretary in our nation's history, holding the role for twelve years under President Franklin D. Roosevelt. Roughly eight decades later, his relatives are fighting over this art….
It all turns on a claim that Early had given the prints (appraised in 1979 for $80K, and doubtless worth much more now) as a gift to his daughter (plaintiff Elam's mother) in 1949—and the fact that Helen had possession of them for a considerable amount of time. An excerpt from the legal discussion:
Virginia generally presumes that possession indicates ownership…. The importance Virginia law places on the possession of property in determining ownership is nothing new. In fact, it dates all the way back to Roman law…. By Justinian's time (482–565 A.D.), this doctrine was extended to chattels….
