The Volokh Conspiracy

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

The Volokh Conspiracy
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AI in Court

"To Certify This Class …, the Court Must Find That the Named Plaintiffs Have Retained Competent Counsel to Represent the Class"

And the court declines to so find when the proposed class counsel filed a brief containing "a wholesale fabrication of quotations and a holding on a material issue" (presumably stemming from using AI and not adequately checking its output).

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An excerpt from a March 10 order by Judge Somnath Raj Chatterjee (Alameda County [Cal.] Superior Court) in Evans v. Execushield, Inc.:

This is a wage and hour putative class and PAGA [Private Attorneys General Act] action regarding employees who worked as security guards for the defendant. Plaintiff filed a motion for class certification on May 31, 2024. The motion in part sought to certify a "Rounding Subclass" for "All members of the Class whose clock-in and clock-out times were rounded from their actual clock-in and clock-out times." The first issue raised in the Opposition was that the plaintiffs "do not assert a 'rounding' claim, nor do they identify any such class in their First Amended Class Action Complaint." They argued that "Denial of class certification for an unplead claim and class is appropriate."

The plaintiffs filed their Reply Brief on November 4, 2024. Their lead argument asserted that the Court should certify their rounding claim even though it was not stated in the complaint. The Reply Brief stated:

While the rounding claim was not explicitly stated in the First Amended Complaint ("FAC"), its certification is not precluded. Courts have routinely held that class certification can be granted for claims that are reasonably related to those in the complaint, especially when they arise from the same set of facts and legal theories. In Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004), the California Supreme Court stated that "courts are not obligated to deny certification where the complaint omits facts that would support class treatment." Furthermore, in Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1537 (2008), the California Court of Appeal held that "the court may consider new claims, constructively adding them to the complaint, so long as their addition does not create prejudice." …

The legal proposition that a court may "constructively" add new claims to a complaint for class certification and thus certify claims not pled was news. It turns out that the quotations in Sav-On and Ghazaryan and the asserted holding in Ghazaryan that counsel represented to be California law simply do not exist. The Court conducted a Westlaw search for the quoted language in those cases but found none in any California or federal case.

Before the hearing on 2/18/25, the Court issued a tentative decision that stated: "The court ORDERS counsel for plaintiff to appear and to be prepared to direct the Court to the relevant pages in Sav-On and Ghazaryan, or to the origin of the phrases if they came from a treatise or some other source."

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Free Speech

Defamation, Emotional Distress, Racism/Sexism Allegations, and Discovery

"[Defendant ex-employer's] request for all of [plaintiff's] communications containing language that is sexist or racist is overbroad."

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First, some backstory, from a decision in March by Judge Jessica Clarke (S.D.N.Y.) in eShares, Inc. v. Talton allowing Talton to proceed on his defamation claim:

According to Talton, in December 2022, he was terminated by Carta [also called eShares] and [Carta's CEO] Ward for opposing Carta and Ward's discrimination toward women …. One week after Talton's termination, Carta initiated a lawsuit against Talton for, among other things, breach of fiduciary duty and misappropriation of trade secrets. Several months after Talton's termination, Ward published and circulated an article on Medium casting Talton as "inappropriate toward women" and a "misogynist and racist." …

Talton specifies several statements made in Ward's Medium Article that could constitute defamation per se. The article states that Talton "was inappropriate with women and abused his position as CTO" and that Talton was "a misogynist and racist." In the context of an article about employee impact on company performance, these qualify as "words that impute a person … lacks integrity in performing … his employment duties" and as "words that … prejudices [a] person in … his profession." Moreover, Talton has alleged the defamatory effect of these statements included lowering his professional standing and extending his period of unemployment….

Carta and Ward also argue that these statements are constitutionally protected opinions. But this is also unavailing. As discussed above, Illinois law categorizes such statements about Talton's lack of integrity at work and statements prejudicing him in employment to be defamation per se….

In a decision Monday, Judge Clarke limited Carta's discovery of Talton's past communications:

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Self-Defense

Conflict and Loathing Among Signature Gatherers + Battery, Slurs, and Self-Defense

"While Mr. Legorreta may have been calling Cobham an 'asshole' and making other comments, and even if he called Cobham the 'N' word these events do not justify or provide a defense of self-defense."

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From a decision by L.A. Superior Court Judge Frederick Shaller in Legorreta v. Cobham, decided Mar. 10 but just posted on Westlaw last week:

[A]s of … the date of the incident, … [Mr. Legorreta] was about 68 years of age. He was working as a "caller" or petitioner for signatures on state petitions for which he and his nephew would obtain income for each approved signature. He and his nephew [Mr. Proo] set up a booth, table, and chairs in a designated Free Speech area near the exit at the Walmart store located at 1827 Walnut Grove Ave, Rosemead, CA. Legorreta would call out to Walmar[t] customers as they left the store and tried to get them to sign a petition. Proo was the primary petitioner and Legorreta worked for him.

Legorreta states that he and nephew Proo arrived at the Walmart Free-Speech zone on the Walmart site early and that during the day he primarily sat around and solicited signatures by calling out to persons exiting the Walmart store. A rival group of petitioners led by Cobham, appeared at the site and commenced competing with Legorreta and Proo for signatures by attempting to solicit signatures from the same group of persons. The Cobham group did not have a booth or table and did not confine themselves to one area but circulated in and around the exit soliciting signatures including the area adjacent to the location of the Proo/Legorreta booth.

During the day-long signature gathering efforts, stress and tensions arose between the different groups of signature gatherers and it significantly increased with Cobham and Trujillo [a member of his crew] arrived. Legorreta, who identifies as gay, was repeatedly verbally assaulted by Cobham and his group with epithets calling him a "fucking faggot" and a "fucking loser." Mr. Proo was engaging in criticism of Cobham's team because of the name calling directed to Legorreta and himself, his perception that the Cobham team was violating the rules of solicitation of signatures by following people into the parking lot, and because Cobham was "stealing signatures."

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Due Process

Supreme Court Issues Terrible Shadow Docket Decision Lifting Injunction Against "Third Country" Deportations of Migrants Without Due Process

The ruling includes no analysis. Justice Sotomayor's dissent has a compelling explanation of why it is wrong.

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In yesterday's decision in Department of Homeland Security v. D.V.D, the Supreme Court stayed a lower-court injunction barring the federal government from deporting migrants slated for deportation to "third countries" without due process - that is, nations other than their countries of origin or ones they had agreed to be sent to. Such deportations risk sending migrants to places where they might be subject to violence or torture, and where they have no connections or ability to support themselves, as, e.g., in the case of Asians and Latin Americans deported to places like South Sudan.

Like many "shadow docket" decisions, this one includes no reasoning justifying the majority's ruling. Justice Sonia Sotomayor's dissent on behalf of the three liberal justices provides a compelling statement of the many reasons why this is decision is a terrible mistake.

Here is a brief excerpt:

Turning to the constitutional claim, this Court has repeatedly affirmed that " 'the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings." J. G. G., 604 U. S., at ___ (slip op., at 3); A. A. R. P., 605 U. S., at ___ (slip op., at 3). Due process includes reasonable notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). Of course the Government cannot avoid its obligation to provide due process "in the context of removal proceedings," J. G. G., 604 U. S., at ___ (slip op., at 3), by skipping such proceedings entirely and simply whisking noncitizens off the street and onto busses or planes out of the country.

It is axiomatic, moreover, that when Congress enacts a statutory entitlement, basic procedural due process protections attach. Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed. See 8 U. S. C. §1231 note. As this Court has explained, the " 'right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.' " Mathews, 424 U. S., at 333
(quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring)). Being deprived of the right not to be deported to a country likely to torture or kill you plainly counts. Thus, plaintiffs have a right to be heard.

This is just one of many good points Sotomayor makes in her dissent. Perhaps the majority has compelling responses to them. But, if so, I wish they would tell us.

I am not one of those commentators who categorically rejects the Supreme Court's greatly increased use of the "shadow docket" in recent years. Sometimes, these quick rulings based on limited briefing, no oral argument, and truncated time for deliberation are necessary to prevent serious injustices from continuing. But they can also lead to badly reasoned or wrongheaded decisions, which I fear is what happened here.

One question that comes to mind is why the Supreme Court majority was willing to torpedo due process here, despite pushing hard to protect it in its three recent Alien Enemies Act deportation rulings. Justice Sotomayor pointedly cites them in the passage quoted above.

I don't know the answer, because the majority didn't tell us. But two possible explanations come to mind. First, maybe the majority believes (correctly) that Trump's invocation of the Alien Enemies Act is illegal, whereas they think the administration does have the authority to deport the migrants at issue in the D.V.D. case. But even if the administration is legally entitled to deport these people somewhere, Justice Sotomayor compellingly demonstrates that serious due process issues arise with deporting them to third countries.

A second possible explanation is that the majority justices don't think it matters much exactly where these people are deported to, so long as deportation to some location outside the US is legal. But, as Sotomayor explains, in many cases the destination matters greatly. I don't think you need to be a legal scholar or an immigration policy expert to see why. Just imagine being deported to a poverty-stricken, violent country, ruled by an oppressive government, where you have no contacts and don't speak the local language.

Perhaps there is some other crucial distinction between the AEA cases and D.V.D. that influenced the majority justices, that I overlooked. If so, I wish they had told us what it is. If nothing else, this case highlights the desirability of including at least some explanation of the reasons for the result when the Supreme Court issues a "shadow docket" ruling on an important issue - as this one surely is.

UPDATE: Quinta Jurecic has a valuable Lawfare article detailing the history of this case, and the government's various attempts to circumvent court orders, verging on outright defiance.

Free Speech

Judge Grants Preliminary Injunction Against Government's Suspending Harvard's Participation in Student Visa Program

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Some short excerpts from Judge Allison Burroughs (D. Mass.) very long decision yesterday in President & Fellows of Harvard College v. U.S. Dep't of Homeland Security:

[A] presidential proclamation entitled "Enhancing National Security by Addressing Risks at Harvard University" … suspends "the entry of any alien into the United States as a nonimmigrant to pursue a course of study at Harvard University … or to participate in an exchange visitor program hosted by Harvard University [under the Student Exchange Visitor Program (SEVP)]."

Harvard sued challenging the proclamation, arguing that it was inconsistent with the relevant statute (for more on that, read the opinion) and in any event violated Harvard's First Amendment rights. First, Harvard argued that it was retaliation based on Harvard's having rejected demands made by the federal government in an April 11 Letter:

[The April 11 Letter] dictated specific conditions required for Harvard to "maintain [its] financial relationship with the federal government." These conditions included, among other things:

  • "reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship";
  • "reform[ing] its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence";
  • "commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse";
  • "[reforming e]very department or field found to lack viewpoint diversity … by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity";
  • "[reforming] every teaching unit found to lack viewpoint diversity … by admitting a critical mass of students who will provide viewpoint diversity";
  • "commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit [certain] programs and departments that most fuel antisemitic harassment or reflect ideological capture";
  • "shutter[ing] all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop[ing] all DEI-based policies, including DEI-based disciplinary or speech control policies, under whatever name [and] demonstrat[ing] that it has done so to the satisfaction of the federal government"; and
  • "end[ing] support and recognition of those student groups or clubs that engaged in anti-Semitic activity since October 7th, 2023, including the Harvard Palestine Solidarity Committee, Harvard Graduates [sic] Students 4 Palestine, Law Students 4 Palestine, Students for Justice in Palestine, and the National Lawyers Guild." …

The court concluded that Harvard was likely to prevail on this retaliation claim:

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Free Speech

Journal of Free Speech Law: A Report on Published Blind Submissions

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Our peer-edited Journal of Free Speech Law publishes a mix of symposia, solicited pieces, and blind-reviewed submissions. Submitters might wonder: Blind though the process might be, can I get my piece published if I'm not a law professor at a top 20 (or even top 50) law school?

I thought I'd answer that by going through all the articles we published via blind submissions. (Recall that we've also published many more articles through other channels, mostly symposia; their authors include tenured faculty at top 10 law schools, tenured faculty at other law schools, faculty in other disciplines, and more.) All the rankings are from the current U.S. News—an imperfect ranking system, to be sure, but one that's adequate for these purposes.

  1. One of the blind-reviewed accepted articles was from a tenured faculty member at a top 10 law school.
  2. Six were from tenured faculty at schools ranked in the 30s or 40s.
  3. Two were from tenured faculty at schools ranked in the second 50.
  4. Two were from a non-tenure-track faculty member, who had written comparatively few academic articles, but who had very substantial practice experience.
  5. Two were from practicing U.S. lawyers.
  6. One was from a recent graduate who was clerking for a judge.
  7. One was from a fellow at a law school, which is to say someone who has recently graduated and has a temporary position with an eye towards getting a future tenure-track job elsewhere.
  8. One was from a law professor at a foreign institution.
  9. Two were from foreign think-tank researchers.

Of course, tenured faculty members tend to be accomplished scholars, and thus tend to produce good work; their jobs also give them time to produce such work. Still, this list shows that excellent articles on free speech law can be written by people who don't have top faculty appointments as well as those who do.

Free Speech

Journal of Free Speech Law: "How American Civil Rights Groups Defeated Hate Speech Laws," by Samantha Barbas

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This new article is here. The Introduction:

In the United States, as is widely known, "hate speech" is generally protected by the First Amendment. Hate speech is considered "free speech" unless it provokes imminent violence or constitutes a "true threat" or "fighting words." No other nation protects the right to express hate so vigorously. Hate speech laws exist in most other countries, where the principles of free speech are said to have no bearing on the expression of racial, ethnic, or religious hatred.

Why are there no hate speech laws in America? There are many possible explanations. Some have suggested that the United States diverged from the rest of the world on hate speech regulation because of deeply ingrained national traits and tendencies, such as Americans' historic fear of government regulation and our individualistic culture. In a book manuscript in progress, I argue that the course that America took on hate speech was not foreordained but was rather the result of contingency and circumstance. Hate speech laws existed in many jurisdictions before the 1950s, and there was a good deal of popular support for hate speech laws.

The reasons why hate speech laws ultimately failed to take root in America are complex. Timing was an important factor. The onset of McCarthyism in the 1950s undercut campaigns during the previous decade to advocate for hate speech laws. Efforts to enact hate speech laws arose during the period of the development of the modern First Amendment, between 1930 and 1960. Hate speech regulations clashed with emerging civil libertarian free speech principles, and free speech ultimately prevailed.

This essay focuses on another significant reason why hate speech laws may have failed to take root in America—the vigorous opposition of minority civil rights organizations to hate speech laws at the time when those laws had their greatest potential for adoption. Minority civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee opposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that any limitations on freedom of speech would hinder minorities' efforts to achieve racial and religious equality.

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Statement From The Dean At The University of Florida College of Law

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Merrit E. McAlister, the Interim Dean at the University of Florida College of Law, released this statement to the UF Law Community:

Dear UF Law Community:

Many of you may have seen the recent New York Times article about a student at the law school.  The article stated that the student—who told the Times it "would not be manifestly wrong" to call him a Nazi—received a recognition through a "book award," which is given to the highest overall grade in a law school class.  The paper he wrote, which counted for 65% of the final grade in the small seminar course, argued for constitutional "nationalism" based on an understanding of the Constitution that excluded non-white people from legal and civil participation in America.  Although the law school is limited by what it can say about these events under federal and state law that protects the privacy of student record information, that student has now disclosed some information publicly.

Let me state unequivocally: the student's views are revolting and do not reflect the values of UF Law, its faculty, or its administration.  We welcome all, we discriminate against none, and we aim to create a community where students feel a sense of belonging and connection—without experiencing fear or threats or hatred.

The paper's views also in no way reflect the views of the professor in this course.  The professor had no knowledge of this student's history at the law school or his deeply held personal views.  The professor took the paper on its face—as a student paper attempting to use originalist methodology to reach a detestable and extreme position.  As abhorrent as the paper's thesis may be, that work still falls within the bounds of academic freedom and the First Amendment, and, as such, was graded consistent with the grading standard for the course.

As a matter of practice at UF Law and most other law schools across the nation, the highest-performing student in any class receives a "book award" during the grading process.  Indeed, the professor believed that recognition was mandatory for the top scoring student.

I understand that these events and this article have caused many in our community pain, disappointment, and fear.  I know that many of you are outraged at the law school for not taking the book award away from the student.  But the administration does not second-guess grading decisions at the law school, except in very narrow circumstances, and those circumstances did not apply here.  Upholding academic freedom and the student's First Amendment right to express even odious ideas is the harder path, but it is the path our principles require.

Rescinding the honor might feel righteous, but it would betray those principles and set a dangerous precedent in a law school that trains students to confront unpopular ideas and represent unpopular clients.  Defending free expression is easiest when we approve of the speech; it is hardest when, as in this instance, the speech tears at the fabric of our community.  But that is precisely when our commitment must hold.

We have protected academic freedom and the student's First Amendment rights while also prioritizing the safety and security of our community.  As soon as the student's conduct became threatening and substantially disruptive, in collaboration with UFPD and UF administration, the student was barred from campus.  We heightened security across the college.  It is important to note that the escalation in the student's conduct that led to his trespass happened three months after the book award had been announced in January.

Sadly, this article has given an extremist provocateur exactly what he wanted: a platform for greater visibility.  And it has caused hurt and pain within our community in the process.  I also regret that this has led an honorable public servant—one who has served his country for decades as a federal public defender and a federal judge—to receive death threats because of an impartial grading decision he made.  No one deserves that treatment for selflessly teaching as a part-time instructor in a law school.

The decisions we've made in this instance reflect the best efforts of dedicated professionals to protect students' First Amendment rights and embody the principles of academic freedom in grading, administering, and guiding a law school.  Not everyone will agree with our judgment, and I respect that.  But I hope we can begin to move forward together recognizing that, collectively, we share commitments to uphold the First Amendment, academic freedom, and our shared sense of humanity.

I think this statement largely strikes the right tone, and makes several important points. First, and most importantly, when the grade was given, the student had not yet made the statements on social media. Second, the grade given was well within the bounds of reasonableness. Third, regrettably, Judge Badalamenti was subjected to death threats. There is so much outrage about pizzas, but here the New York Times unfairly tarred a good judge's reputation to no end. These threats were entirely predictable.

Fourth, the Dean wrote "No one deserves that treatment for selflessly teaching as a part-time instructor in a law school." Selfless is exactly the right word. It is no secret that academia is hostile to conservatives. UF is very fortunate to have originalists on the faculty like Gary Lawson and Judge Badalamenti. Other schools are not nearly as fortunate. The foreseeable consequence of this expose is that other judges may find the risk of teaching simply too high, and they'll sit on the sidelines. Make no mistake, this is a feature, and not a bug about these attacks on originalism.

Let me add some more positivity. I've spoken with several of Judge Badalementi's students, and they sing his praises. One wrote:

Hi Professor. There was absolutely no indication that [NAME] was a white supremacist. In fact, everybody at the school knew the story about a white supremacist student the year below us. I had even read another paper he had authored that was spread by concerned students. Despite this foreknowledge, during the class there was absolutely ZERO indication at any time Mr. [Name] was the one who held those beliefs, and I did not even realize he was the rumored white supremacist and in the same class as me until after the paper story blew up. Whenever I was asked by fellow students about what the class was like and what kind of person the Judge was, I always responded in the same way. "I am beyond certain from my time spent with Judge Badalamenti that he grades papers as impartially as any human possibly could, even if he has to hold his nose at some of the views espoused to recognize a well written, researched, and organized paper, regardless of how abhorrent the argument furthered is. For this reason, due to the criteria on the syllabus, Judge granted the paper an A, the highest in the class, which the school then automatically designated as earning a book award." Judge Badalamenti is one of the most kind, respectful, and judicious people I have ever met, and words cannot properly effectuate how much respect I hold for him both as a human being and a Federal Judge. The attacks on him by this "journalist" are disgusting, unfounded in reality, and highlight the absolute lowest forms of sensational tabloid click bait. Furthermore, I feel it necessary to add that I was particularly disgusted by the author of the article bringing in our co-Professor and using her name. She assisted the class on an administrative level and helped with discussions, but had no knowledge of this situation, nor did she help with grading the paper in any way. Attempting to bring her name into this was disgusting, unfounded, and the author should issue a retraction and an apology.

And another student wrote:

[The student] presented a thesis that critically examined originalism. It demonstrated how the doctrine when weaponized or applied in bad faith, can lead to deeply harmful and unjust consequences. You may also find it relevant that I emigrated to the United States at the age of 7 and am a first-generation law school graduate. Judge B always seemed to value that aspect of my background and fostered an environment that encouraged intellectual independence and a deep respect for diversity.

My earlier posts on this topic can be found here and here.

Update: The student posted on X that he received three other book prizes from the Spring 2025 semester in "Advanced Legal Thought," "Criminal Procedure-Adversary System," and "Mental Health Law." All of these grades were given after the student's incendiary social media postings. This history suggests that Judge Badalamenti's grade was entirely consistent with how other professors at the University of Florida graded the student. The New York Times's story was truly a non-story. It is regrettable that so many hours were wasted on a mistake.

Gun Control

Big Business as Gun Control

Partly from coercion and partly by choice, many banks and social media businesses impose severe gun controls

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On July 6, 1775, the great Pennsylvania lawyer John Dickinson coauthored the Continental Congress' Declaration of Causes and Necessity of Taking Up Arms. Among the grievances in the Declaration were the British government's gun control program, namely having "murdered" people in attempting to confiscate arms and gunpowder at Lexington and Concord, and the disarmament of the people of Boston. Known as the "Penman of the Revolution," Dickinson is the namesake of Penn State Dickinson Law school. Fittingly for the 250th anniversary of John Dickinson's immortal declaration, the Dickinson Law Review has published a symposium issue on arms rights and arms controls.

My article, coauthored with George Mocsary and Bhav Ninder Singh, addresses a form of constriction on the right to arms that was unknown to John Dickinson: Big Business as Gun Control. Here's the abstract:

Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of "reputational risk," to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.

Social media platforms compound these problems by removing or limiting firearms-related content under opaque or inconsistently applied standards. Although they occasionally frame their policies as safeguards against violence, enforcement often removes instruction, historical discussion, and other legitimate forms of speech. The censorship distorts public debate about firearms, stifling conversations on safety, training, and responsible ownership.

This Article describes the significant shift toward privatized gun control, in which government entities and large corporations converge to limit access to banking, insurance, and information platforms. The outcome is a new type of regulatory regime that can subvert constitutional checks, undermine lawful enterprise, and chill lawful speech. Curbing abuses requires a combination of targeted legislation, judicial oversight, and self-restraint by private institutions to ensure that neither lawful commerce nor individual liberty are sacrificed to hidden agendas.

Part I of the Article examines debanking and other financial blacklisting, and explains how the financial regulatory environment enables abuse. When a regulator illegally says "jump," many banks and insurance companies tend to believe that the only response that will save their business from being destroyed is to respond "Yes, sir!" A case in point is the Obama administration's Operation Choke Point, which was an effort to debank the entire firearms industry. While that particular program was thwarted by its exposition in congressional hearings, debanking continues to be a growing problem. Abuses have been particularly severe in New York State. There, the Governor, the head of the Department of Financial Services, and the Attorney General engaged in egregious misconduct to attempt to destroy the National Rifle Association (NRA) for political reasons.

Part II turns to forced disclosure of private banking information. Section A briefly surveys the widespread problem of administrative subpoenas, including for banking data relating to firearms purchases. Section B addresses legislation to create separate merchant category codes for firearms business.

Social media censorship of firearms-related content is the subject of Part III. Based on examination of the policies and practices of six leading social media businesses, the worst offenders are Meta and YouTube. While these companies have published detailed policies, the companies' censors act arbitrarily, capriciously, and contrary to the published policies.

In each of Parts I–III, a final section examines potential solutions for the problems described in the relevant part. There are multiple ways to deal with debanking and other financial blacklisting, but many suffer from the penchant of some financial regulators to act as a law unto themselves, regardless of their statutory or regulatory authority. Financial privacy is the easiest issue to address, using the model of several states that have already enacted legislation against turning credit card transactions into gun registries. As for social media, the problem may be unsolvable by legislation, lawsuits, or antitrust.

Civil Procedure

Court Dismisses Vexatious Litigant's Sexual Assault Lawsuit, Noting Inconsistencies with Evidence, Claims in Other Cases

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When plaintiffs file enough cases that courts view as frivolous, the courts can generally declare the plaintiffs to be "vexatious litigants," and thus limit their ability to litigate future cases unless there's a preliminary showing that the cases are likely to be meritorious. The rules vary from state to state, but California has a pretty well worked out system for dealing with such matters, and a list of thousands of vexatious litigants.

The March 6, 2025 decision by Judge Sarah Heidel in Doe v. Suarez (appeal pending) illustrates how this system can work in getting vexatious litigants' cases dismissed. And the case also shows the value to opposing parties of being able to find a vexatious litigant's past cases—and therefore one reason to forbid pseudonymous litigation by litigants who appear likely to be potentially vexatious. (Disclosure: The Jane Doe in this case had unsuccessfully sued me for having identified some of her past pseudonymous lawsuits.) Here's an excerpt from the case:

This case arises from an allegation of sexual assault. According to the complaint, plaintiff Jane Doe met defendant online and the two arranged to meet for dinner. Following dinner, and after an evening of heavy drinking, plaintiff alleges defendant raped her. After that encounter the two exchanged texts for another month and a half. Plaintiff alleges that during this time she came to believe that defendant had supplied her with alcohol at their first date "with the intention of raping her.["] …

[Plaintiff] had been placed on the list of vexatious litiga[nts] by the Judicial Coun[cil] …. A vexatious litigant is "a person who has, while acting in propria persona, initiated or prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters previously determined against him or her, repeatedly pursued unmeritorious or frivolous tactics in litigation, or who has previously been declared a vexatious litigant in a related action." …

{"In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation …. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant."}

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Free Speech

No Pseudonymity for Vexatious Litigant, Even When She Is Alleging Sexual Assault

"[A]llowing plaintiff to proceed under a pseudonym could enable her to evade judicial oversight under the vexatious litigant rules by obscuring her litigation history and identity across multiple cases."

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From the decision last month in Doe v. Suarez by L.A. Superior Court Judge Sarah Heide (appeal pending):

This case arises from an allegation of sexual assault. According to the complaint, plaintiff Jane Doe met defendant online and the two arranged to meet for dinner. Following dinner, and after an evening of heavy drinking, plaintiff alleges defendant raped her…. On April 10, 2024, plaintiff was placed on the Judicial Council's list of Vexatious Litigants [based on her previous, unrelated lawsuits -EV] ….

Plaintiff requests a protective order granting her leave to proceed under a pseudonym in this action on the grounds that plaintiff's need for anonymity outweighs any prejudice to defendant and the public's interest is served by protecting plaintiff's identity…. Plaintiff argues that the sensitive and personal nature of her claims justify the protection of her privacy and psychological well-being. She maintains that disclosure of her identity could not only embarrass her but cause her more emotional harm, affect her job prospects, and bring unwanted attention to herself.

Plaintiff states that in July 2022, her identity was involuntarily disclosed in connection with sexual assault which led to death threats and harassment; she has felt compelled to change her place of residence and her phone number out of concern for safety.  She argues that defendant will not be prejudiced if plaintiff proceeds under a pseudonym because plaintiff's identity is already known to defendant, as he filed his answer including her true name; therefore, his ability to mount a defense would not be obstructed by her identity being shielded from the public.

Defendant argues that plaintiff's true name is already a matter of public record in several matters. For example, in the Doe v. Newsom complaint, plaintiff references the sexual assault allegations against defendant, and in the matter of Doe v. County of Los Angeles, plaintiff is identified as the same plaintiff from Doe v. Newsom. In professor Volokh's article, The Law of Pseudonymous Litigation (2022) 73 Hastings L.J. 1353, plaintiff's name was included as an example of a litigant whose use of pseudonymity impedes investigation into her trustworthiness and past litigation. After that, plaintiff sued professor Volokh. (Luo v. Volokh (2024) 102 Cal.App.4th 1312.)

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Free Speech

No Preliminary Injunctions Against Penn's Sanctions on Prof. Amy Wax

"[W]hatever harm she claims, it is not imminent, irreparable harm. Her damages, if any, are monetary damages."

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From today's decision by Judge Timothy Savage (E.D. Pa.) in Wax v. Univ. of Pa.:

After a lengthy disciplinary process, the University of Pennsylvania ("Penn") found that longtime law professor Amy Wax had engaged in "flagrant unprofessional conduct." It imposed sanctions of a one-year suspension at half pay, loss of summer pay in perpetuity, loss of her named chair, and a public reprimand.

Wax brought this action asserting breach of contract (failure to adhere to the disciplinary process prescribed in the Faculty Handbook); racial discrimination under Title VI, Title VII, and 42 U.S.C. § 1981; and false light invasion of privacy. She seeks a preliminary injunction enjoining Penn from implementing the sanctions….

Wax joined the faculty of Penn Carey Law School as a tenured professor on July 1, 2001. Five years later, she was named the Robert Mundheim Professor of Law. On March 2, 2022, Dean Theodore W. Ruger sent Wax a letter charging that she had "shown a callous and flagrant disregard for [the] University community" and inviting an informal resolution. The letter cited the following instances of Wax's conduct:

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Senate

Senate Parliamentarian Rejects Dangerous Provision of "Big Beautiful Bill" that Undermines Judicial Protection for Constitutional Rights

The parliamentarian ruled it cannot be enacted as part of a reconciliation bill not subject to the filibuster.

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The U.S. Capitol
Photo 27165352 © Valentin M Armianu | Dreamstime.com

In two previous posts, I critiqued a dangerous provision of the Senate version of Trump's "Big Beautiful Bill," which - if enacted - would severely undermine judicial protection against unconstitutional federal government actions (see here and here). In the process, I highlighted critiques by Arizona Supreme Court Justice Clint Bolick, and a coalition of conservative and libertarian public interest groups, led by the Firearms Policy Coalition. The provision would require litigants seeking preliminary injunctions against illegal federal government actions to post potentially enormous bonds.

Fortunately, the Senate parliamentarian has now ruled that this provision cannot be enacted as part of a reconciliation bill exempt from Senate filibuster rules:

A U.S. Senate official has concluded that a Republican-drafted provision in President Donald Trump's massive tax and spending bill that would restrict the ability of judges to block government policies violates budgetary rules.

The Senate's parliamentarian, Elizabeth MacDonough, advised over the weekend that the provision ran afoul of a Senate rule governing what can be included in budget reconciliation legislation that can be passed with a simple-majority vote and would instead need to be subject to a 60-vote threshold if it remained in the bill.

Republicans, who control the Senate 53-47, intend to use complex budget rules to pass the so-called "One Big Beautiful Bill Act" with a simple majority vote.

The parliamentarian is a nonpartisan referee. Her decision could spell doom for the provision's inclusion in the ultimate legislation Congress passes because it would allow Democrats to challenge the vote on the floor and require Republicans to muster 60 votes to pass it. Congressional leaders hope to enact the overall bill in the coming days so Trump can sign it into law before July 4.

The GOP-controlled Senate could potentially override the parliamentarian on a majority vote. But, at least at this point, they do not seem to have any plans to do so. If they don't, that spells the end of this dangerous proposal - at least for now. There is virtually no chance it could secure the 60 votes needed to enact it as stand-alone ordinary legislation.

 

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Recent Volokh Posts

1

Today in Supreme Court History: November 8, 1994

2

Open Thread

3

Court Allows Discovery as to Vindictive Prosecution Defense by Smartmatic's Parent Company

4

Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward

5

Arkansas Bar Official Allegedly Transferred Points from Some Bar Examinees to Others

6

Attorney Fee Award Cut from $100K to $50K, Partly as Sanction for Hallucinated Citations

7

November 7 as Victims of Communism Day - 2026

8

Today in Supreme Court History: November 7, 1922

9

Open Thread

10

Short Circuit: A roundup of recent federal court decisions

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