Yesterday, in Bondi v. VanDerStok, the Supreme Court upheld the federal regulation of so-called "ghost guns." Specifically, the Court upheld a regulation promulgated by the Bureau of Alcohol, Tobacco and Firearms pursuant to the Gun Control Act of 1968 to cover weapon parts kits "designed to or may readily be converted to expel a projectile."
The opinion for the Court by Justice Gorsuch concluded that the regulation was not facially inconsistent with the statute, while leaving aside whether the regulations lawfully reach particular weapons part kits or unfinished gun frames or receivers. (Justices Thomas and Alito dissented.)
One interesting portion of the opinion discussed the extent to which reviewing courts should give deference or respect to agency interpretations of the statutes which they administer. On this point, Justice Gorsuch wrote:
Without question, ATF's new rule seeks to regulate a greater variety of unfinished frames and receivers than the agency has in the past. But it is equally true that, for decades, the agency has consistently interpreted subsection (B) to reach some unfinished frames and receivers, including ones no more finished than Polymer80's product. See, e.g., Are "80%" or "Unfinished" Receivers Illegal?, ATF (Apr. 6, 2020), https://www.atf.gov/firearms/qa/are-"80"-or-"unfinished"-receivers-illegal; App. 117–118 (2013 guidance); id., at 5, 8, 10 (1990–1994 classification letters); id., at 22 (deeming a frame with additional "material left on top" to be a "firearm"). And while "courts must exercise independent judgment in determining the meaning of statutory provisions," the contemporary and consistent views of a coordinate branch of government can provide evidence of the law's meaning. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024).
Of note, in this instance the Court concluded that the rule at issue reflected "the agency's consistent understanding" that the relevant statutory provisions reach at least some incomplete gun frames or receivers.
This reference to Loper Bright Enterprises underscores that the justices are concerned about the sort of dynamic that motivated the major questions decisions--the discovery of latent, previously undiscovered and unheralded sources of agency authority in long extant statutes--and not about disregarding agency interpretations altogether. It also suggests that the Trump Administration can expect resistance if it seeks to adopt new interpretations of old statutes, particularly where there is a long history of consistent agency understanding and application of the law in question.
Prof. Paul Robinson (Penn), a top criminal law scholar, is leading this project, and I think it's an excellent idea. I think we should have more faculty-supervised law journals, though I think there's also merit in student-edited law journals—having a mix of editorial structures may be better than having all be one or all be the other. (Indeed, the structure of this journal looks like it would be different from that of some other faculty-run journals, such as our Journal of Free Speech Law, but there too I think it's good to have different journals experimenting with different models.)
In any event, the Independent Law Journal is still in its planning stages, but if you're a law professor, legal scholar, or judge who supports the ILJ's mission, please get in touch with the ILJ folks. Here's the Journal's announcement, from Prof. Robinson:
Help Us Improve Publishing in Legal Academia
Legal academia is unique among academic fields in that publishing is largely controlled by graduate students through the law review system. While this saves faculty time, it also leads to numerous downsides when third-year law students guide scholarship in topics they barely know. Students on law review tend to be both less knowledgeable and more ideologically extreme than their professors. The result is a system that struggles to recognize good scholarship and penalizes pieces that differ from the current academic mainstream. Nobody benefits when free debate is suppressed, publications are siloed by ideology, and editors making publishing decisions simply don't know enough to determine an article's contribution to the literature.
To help foster high-quality publishing and free and robust debate in legal academia, a number of law professors from top schools are working together to start a new publication—the Independent Law Journal. All articles published in the Journal will be peer-approved by a faculty board, but student staff will still handle most of the Journal's operations and will collaborate with faculty in initial article selection. The Journal's mission statement is as follows:
On Wednesday, Justice Gorsuch wrote the majority opinion in Bondi v. VanDerStock. My prediction that Justice Barrett would write this majority opinion was wrong. I was right that Justice Thomas had Bufkin, the Veterans Claim case, and Alito had San Francisco v. EPA. The only remaining undecided case from the October sitting is Medical Marijuana v. Horn. Justice Barrett has not yet written a majority opinion from the October sitting. Justice Barrett almost certainly has Medical Marijuana, unless she lost the majority opinion in some other case.
A prison guard transfers 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)
Earlier today, the US Court of Appeals for the DC Circuit upheld a district court temporary restraining order blocking the Trump Administration from using the Alien Enemies Act of 1798 to deport Venezuelan migrants it claims are members of the Tren de Aragua drug gang. The Alien Enemies Act is the only one of the notorious Alien and Sedition Acts of 1798 still in force. But the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government."
The ruling was a 2-1 decision. Judge Karen LeCraft Henderson (appointed by George H.W. Bush) and Judge Patricia Millett (appointed by Obama) each issued separate opinions upholding the trial court TRO for somewhat different reasons.
Judge Henderson's opinion primarily emphasizes the point that there is no war, invasion, or predatory incursion going on, and therefore the legal preconditions for invoking the AEA have not been met. She includes an excellent analysis of the meaning of "invasion":
First, the invasion must be "against the territory of the United States by any foreign nation or government." 50 U.S.C. § 21 (emphasis added). The requirement that the "invasion" be conducted by a nation-state and against the United States' "territory" supports that the Congress was using "invasion" in the military sense of the term See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 131 (1807) (describing levying war against the United States as "a military enterprize . . . against any of the territories of the United States"); Wiborg v. United States, 163U.S. 632, 633 (1896) (explaining that a group of seamen were charged with preparing for a "military expedition . . . against the territory and dominions of a foreign prince"). Undesired people do not arrive against the territory. But foreign armies can—and as the 1798 Congress feared might—invade the territory of the United States. Second, the invasion may be actual, "attempted, or threatened." 5 U.S.C. § 21. Again, when used in reference to hostilities among nations, an attempted or threatened invasion of the United States would mark a logical trigger for enhanced presidential authority. Third, and relatedly, the conditional list of triggering events—a declared war, invasion or predatory incursion—must be read against the means the Congress employed to combat the same. The AEA authorizes the President to restrain and remove the nationals of a belligerent foreign power. Such power tracks when invasion is considered in its military sense.
Finally, consider history. The Alien Enemies Act was enacted by the Fifth Congress amid an actual conflict—the Quasi-War—with France, a foreign power. War was front and center in the minds of the enacting legislature. A little over one month before enacting the AEA, the same Congress authorized the President to raise a standing army of 10,000 men to combat any French invasion. But he could do so only "in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion." Act of May 28, 1798, ch. 47, § 1, 1 Stat. 558. This language bears more than a passing resemblance to the language of the AEA, which the Congress enacted a mere thirty-nine days later. In his most famous exposition against the Alien and Sedition Act, Madison explained that an "[i]nvasion is an operation of war." James Madison, Report of 1800 (Jan. 7, 1800), in Founders Online [https://perma.cc/2D3N-N64Z]. In such times, the "law of nations" allowed for the expulsion of alien enemies as "an exercise of the power of war." Id…..
The term "invasion" was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense. For example, the Guarantee Clause provides that "[t]he United States shall . . .protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. Const. art. IV,§ 4. The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection). In describing the clause, the Federalist Papers refer to invasion and domestic violence as "bloody" affairs involving "military talents and experience" and "an appeal to the sword." The Federalist No. 44 (J. Madison). To effectuate the guarantee the Congress has power "[t]o provide for calling forth the Militia to . . . suppress Insurrections and repel Invasions." U.S. Const. art. I, § 8, cl. 15. Again, to use military force against invasion. During these exigent times of hostilities—"in Cases of Rebellion or Invasion"—the Congress may suspend "The Privilege of the Writ of Habeas Corpus . . . when . . . the public Safety may require it." Id. art. I, § 9, cl. 2. Finally, if the federal guarantee fails, a state may exercise its Article I power to "engage in War" but only if "actually invaded, or in such imminent Danger as will not admit of delay." Id. art. I, § 10, cl. 3. When the Constitution repeats a phrase across multiple clauses—and the early Congresses echo that phrase in statute— it is a strong signal that the text should be read inpari materia…. The theme that rings true is that an invasion is a military affair, not one of migration.
I agree on all points, and have made similar arguments in my earlierwritings about this issue. In particular, I have emphasized that the meaning of "invasion" in the AEA tracks the meaning of the same term in the Constitution. If courts accept the Trump argument that illegal migration and drug smuggling qualify as "invasion," that would have dire constitutional implications, such as enabling states to "engage in war" in response and the federal government to suspend the writ habeas corpus (including for US citizens) virtually anytime it wants.
Judge Henderson also presents what I think is the first judicial interpretation of the meaning of "predatory incursion":
The government finds no safer refuge in the alternative "predatory incursion." The government defines the term as "(1) an entry into the United States, (2) for purposes contrary to the interests or laws of the United States." Gov't Br. 18. And it explains that illegal immigration and drug trafficking readily qualify under that standard. As before, the government misreads the text, context and history. An incursion is a lesser form of invasion; an "[a]ttack" or "[i]nvasion without conquest." Samuel Johnson, Incursion, senses 1 & 2, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). Its predatory nature includes a "[p]lundering," such as the "predatory war made by Scotland." Id., Predatory, sense 1. Secretary of State Thomas Pickering used the term to describe a lesser form of attack that France could conduct against the U.S. and which, in his view, could be repelled by the militia. See Letter from Thomas Pickering to Alexander Hamilton (June 9, 1798), in Founders Online [https://perma.cc/VD5M-QSNA]. This was raised in contradistinction to a full invasion, which would require an army. Id. Rep. Otis likewise described a predatory incursion as a lesser form of invasion or war. 8 Annals of Cong. 1791 (1798). Early American caselaw sounds a similar theme: incursions referred to violent conflict. Alexander Dallas, appearing before the Marshall Court, described "predatory incursions of the Indians" onto Pennsylvania's frontier, which had led to "an Indian war." Huidekoper's Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 11 (1805). Chief Justice Marshall referred to "incursions of hostile Indians," which involved "constant scenes of killings and scalping," and led to a retaliatory "war of extermination. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831); accord Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 545 (1832) (explaining that Pennsylvania's royal charter included "the power of war" to repel "incursions" by "barbarous nations"). Like its statutory counterparts, predatory incursion referred to a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice.
I think Judge Henderson is also right on this point, though the historical evidence here is not as extensive as in the case of "invasion."
Judge Henderson notes she does not definitively resolve whether Tren de Aragua's actions qualify as an "invasion" or a "predatory incursion," merely concluding that the government isn't likely to prevail on these points (which is enough to uphold the trial court TRO). But I think it's clear the government cannot prevail under her (correct definitions) of these terms.
In this opinion, Judge Henderson does not consider the issue of whether Tren de Aragua is a "foreign nation or government." But I think it's pretty obvious that it isn't, and this is an additional reason to rule against the Trump Administration.
In assessing whether an injunction is justified to block the deportations, Judge Henderson properly highlights the extreme egregiousness of the government's actions, under which the Venezuelan migrants have not simply been deported, but sent to imprisonment in El Salvador, often with little or no evidence that they are actually members of any drug gang or have committed any other crime:
The Executive's burdens are comparatively modest compared to the plaintiffs'. Lifting the injunctions risks exiling plaintiffs to a land that is not their country of origin…. Indeed, at oral argument before this Court, the government in no uncertain terms conveyed that—were the injunction lifted—it would immediately begin deporting plaintiffs without notice. Plaintiffs allege that the government has renditioned innocent foreign nationals in its pursuit against TdA. For example, one plaintiff alleges that he suffered brutal torture with "electric shocks and suffocation" for demonstrating against the Venezuelan regime. Id. (D.D.C. Mar. 19, 2025), ECF No. 44-5 ¶ 2. While awaiting adjudication of his asylum claim, he was expelled to "El Salvador with no notice to counsel or family" based on a misinterpretation of a soccer tattoo. Id. ¶¶ 5–7. To date, his family and counsel have "lost all contact" and "have no information regarding his whereabouts or condition." Id.¶ 10. The government concedes it "lack[s] a complete profile" or even "specific information about each individual" it has targeted for summary removal….
Judge Millett's opinion emphasizes the lack of due process provided to the deportees. They were not given any opportunity to challenge the government's claims (often based on extremely flimsy evidence or none at all) that they are members of Tren de Aragua. Here reasoning is similar to that of the recent district court ruling in the case, which I analyzed here. However, she goes beyond the district court in emphasizing that the right to a hearing here is not simply statutory, but is rooted in the Due Process Clause of the Fourteenth Amendment.
I emphatically agree, and made a similar argument here. As Judge Millett also explains, the right to due process here is not just an abstract issue of legal theory. The government's denial of due process has apparently led to the deportation and cruel imprisonment of many people who are not actually members of any drug gang and haven't committed any crime.
In his dissent Judge Justin Walker (appointed by Trump) does not address any of the substantive issues in the case. Rather, he argues it should have been brought in Texas (where the five named plaintiffs are currently detained by ICE), rather than in Washington, DC.I find the majority judges' analysis on this more persuasive than Walker's. But I am not expert in these types of procedural issues, so will leave them to others.
Overall, this is a significant win for the detained migrants. And it's notable that - so far - not one judge has endorsed the administration's ultra-broad theory of executive power here. But, obviously, this litigation is going to continue.
The administration may try appeal the DC Circuit ruling to the Supreme Court. If not, or if the justices refuse to take the case at this time, we will see a final ruling on the merits in the district court (which will, I think, almost certainly go against the administration), followed by further appeals.
I posted yesterday about why I wrote my new book, The Digital Fourth Amendment. In this post, I want to give an overview of the book. What's the subject, and what's the argument?
Welcome to 2025. If the government is trying to solve a criminal case these days, they'll often look for digital records. Sometimes those records are collected from a suspect's physical devices like their cell phones. Sometimes those records are collected from network providers such as Google or Meta. In both settings, the way computers work changes what evidence exists and how the government can find it. It often means that there's a lot of evidence out there if the government knows where to look.
So for example, in a murder case, in which the government suspects that the defendant killed his best friend for money, the government might get a warrant to search his cell phone and find stored Google searches including "are you capable of killing your best friend?" and "how does it feel when you kill someone for the first time?" (This happened in a DC case, Burns v. United States.) In a burglary case, in which the suspect was thought to have entered a woman's apartment at night and illuminated his way with his cell phone flashlight, the government might get a warrant to show that the flashlight app's log showed that it was "on" at the time of the burglary. (A Pennsylvania case, Commonwealth v. Ani.) And if the government has a hunch that you committed a crime, investigators might tell your Internet provider to run off a copy of your entire account to store it for the government so you can't practically delete your files. (This happens all the time, so-called Internet preservation.) These are just a few examples.
The big legal question is, what are the legal rules for collecting all of this digital evidence?
Enter the Fourth Amendment. The Fourth Amendment was enacted in 1791 to prohibit unreasonable searches and seizures. It's the primary bulwark of privacy protection against government evidence collection. But what is a "search" of digital evidence? What is a"seizure" of digital evidence? And when is such a search or seizure "reasonable"? Courts are just now trying to answer these questions. And the answers they come to are important, as they determine what powers the government has to collect your digital evidence. And if you think that matters today, think of how important the digital rules will be in 25 or 50 years. The future of government power hinges in no small part on these answers.
And here's the thing: Figuring out the answers is hard! It's hard for a fundamental reason. Rules about government investigations often depend on the facts. Like all rules, they reflect the facts that exist when the rule is created. But technological change tends to destabilize investigative rules. A rule created in one era that had one meaning with the technological facts that existed in that era will have a very different meaning with the technological facts that exist in a later era.
This poses a basic puzzle for courts in the later era: Do you preserve the rule or the role? That is, do you stick with the old formal legal rule, and just accept that it now has all sorts of unintended consequences inconsistent with the broader purposes and goals of the law? Or do you try to preserve the role of the law, maintaining it over time, to make sure that the law's protections don't get outdated?
Are you getting the message yet? Kiss the ring! And throw in some cash while you're at it. Or Our Leader will destroy you. Do not cross him - he has the entirety of the executive power of the United States at his disposal.
Given that the VC is a blog that is heavily focused on the law and the legal profession in all of its various manifestations, I think it is incumbent upon us to at least pay a little bit of attention to the Trump Administration's continuing attacks on lawyers and judges, if only to ensure that our silence is not construed as capitulation. So no, I'm not going to let it go - no one's forcing you to read anything I write.
The punishment that was meted out to Paul Weiss last week for having "hired unethical attorney Mark Pomerantz [who] according to his coworkers, unethically led witnesses in ways designed to implicate President Trump" while at the Manhattan DA's office has been rescinded! The Executive Order has been withdrawn! All it took, apparently, was $40 million in pro bono legal assistance for Trump-endorsed causes - cheap!!
Of course, the money was never the point (though I am surprised Trump couldn't extort a few million more; I bet Paul Weiss would have paid another $50 million for, say, a statue of Trump somewhere, or a nice fat contribution to the DJT Family Foundation). The point is obedience, about sending the message: "I can crush you, big powerful law firm, like a bug, so don't fuck with me." Mission accomplished. Read More
This episode features a conversation with David Cole about the current situation at Columbia University. David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center. He is also the former National Legal Director of the American Civil Liberties Union. He is also a principal author of the recently released "Statement from Constitutional Law Scholars on Columbia."
The Trump administration is currently withholding some $400 million dollars in federal grants from Columbia University until it complies with a list of demands that includes everything from reforming undergraduate and graduate admissions to putting an academic department into receivership.
On the podcast, we discuss the legalities of the administration's actions and its implications for higher education broadly and for academic freedom in the United States.
The court leaves open, though, the possibility that a narrower challenge aimed just at restrooms with closed stalls, where students wouldn't generally be partly or fully undressed where others can see them.
An excerpt from the long Roe v. Critchfield, decided last week by Ninth Circuit Judge Morgan Christen, joined by Judges Kim McLane Wardlaw and Mark J. Bennett:
Before the summer of 2023, public school districts in Idaho were free to adopt their own policies regarding students' access to [multi-occupancy] restrooms, locker rooms, and shower rooms. Approximately one quarter of Idaho's public schools had policies specifically permitting students to use the facilities corresponding to their gender identity. The Idaho Legislature altered that status quo by enacting Senate Bill 1100 (S.B. 1100), which now requires all public-school students in Idaho to use only the restroom and changing facility corresponding to their "biological sex." …
S.B. 1100 also requires that public schools provide a single-occupancy facility as a reasonable accommodation to a student who, for "any reason, is unwilling or unable to use a multi-occupancy restroom or changing facility designated for the person's sex and located within a public school building, or multi-occupancy sleeping quarters while attending a public school-sponsored activity." In order to access such a single-occupancy facility, the student must provide "a written request for reasonable accommodation to the public school." This accommodation does not allow students to access covered facilities designated for use by students of the opposite sex while opposite-sex students could be present. Finally, S.B. 1100 creates a civil cause of action for any student who encounters a student of the opposite sex in a covered facility. The statute entitles students to recover $5,000 from the public school for each such encounter….
The policy was challenged as violating the rights of transgender students, but the appellate court upheld the trial court's decision not to issue a preliminary injunction. As to the Equal Protection Clause, the court reasoned:
Boeing has no defense to the charged crime of defrauding the FAA. Rather than go through a pointless trial with a preordained result, it should plead guilty straightaway.
Yesterday Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas set a trial date (June 23rd) in United State v. Boeing. The case concerns a long-pending federal criminal charge filed against Boeing for conspiring to defraud the FAA. Boeing has reportedly been dragging its heels about pleading guilty. Boeing has no defense. It should do the right thing and plead guilty as soon as possible.
As I've blogged about previously (see here, here, here, and here), the criminal charge pending against Boeing arises out of two deadly crashes of Boeing 737 MAX aircraft in 2018 and 2019. A Justice Department investigation uncovered the fact that Boeing had lied to the FAA about the safety of the aircraft—lies that led directly and proximately to the crashes killing 346 passengers and crew. On January 7, 2021, the Justice Department filed a criminal information with a one-count conspiracy charge against Boeing, alleging that
From at least in or around November 2016 through at least in or around December 2018, in the Northern District of Texas and elsewhere, the Defendant, THE BOEING COMPANY, knowingly and willfully, and with the intent to defraud, conspired and agreed together with others to defraud the United States by impairing, obstructing, defeating, and interfering with, by dishonest means, the lawful function of a United States government agency, to wit, the Federal Aviation Administration Aircraft Evaluation Group ("FAA AEG") within the United States Department of Transportation, in connection with the FAA AEG's evaluation of the Boeing 737 MAX airplane's Maneuvering Characteristics Augmentation System ….
A few minutes after filing the charges, the Justice Department then filed a deferred prosecution agreement (DPA), deferring prosecution on the condition that Boeing take certain anti-fraud and other safety measures over the next three years. Judge O'Connor approved the DPA.
But later that year, I filed a Crime Victims' Rights Act (CVRA) challenge to the "sweetheart" DPA, arguing that the Justice Department had failed to confer with the victims' families about the deal. Following several evidentiary hearings, Judge O'Connor agreed that the Department had violated the CVRA in failing to confer with the victims' families in what can properly be described as "the deadliest corporate crime in U.S. history." But after further litigation—and an intermediate ruling from the Fifth Circuit that further victims' rights challenges were "premature"—the DPA's three-year term expired on January 7, 2024. The Justice Department then reviewed whether Boeing had lived up to its DPA obligations. Noting the blowout of a doorplug on a Boeing 737 MAX on January 5, 2024 (two days before the DPA expired), the Department concluded that Boeing had failed. On May 14, 2024, the Department filed its notice that Boeing had breached its safety obligations under the DPA. In July 2024, the Justice Department and Boeing reached a plea deal, under which Boeing would plead guilty, pay a $455 million fine, but would not admit to causing the 346 deaths. On behalf of my victims' families, I objected. And following a hearing, on December 5, 2024, Judge O'Connor rejected the proposed plea agreement, citing a constitutionally dubious DEI provision and lack of judicial involvement in monitoring Boeing. He gave the parties (DOJ and Boeing) thirty-days to advise how they wanted to proceed.
Since then, the Justice Department and Boeing have asked for—and received—three extensions of time to report back to Judge O'Connor. The extensions were to February 16, 2025; to March 14, 2025; and, most recently, to April 11, 2025. With regard to the last extension, I filed a notice for my victims' families that, if further extensions beyond April 11 were sought, then the families would object. Under the Crime Victims' Rights Act (CVRA), they have a right to proceedings free from unreasonable delay.
But before the April 11 deadline arrived, Judge O'Connor acted to speed things along. Two days ago (late on March 24), the Wall Street Journal (and other media) reported that Boeing was pushing to withdraw from any plea agreement that would require it to plead guilty. And then, less than 24 hours later, Judge O'Connor sua sponte set a trial date in the case:
The Court hereby VACATES its April 11, 2025, deadline in its previous Order and instead sets this case for trial on Monday, June 23, 2025, at 9:00 am in the Second Floor Courtroom, 501 W. 10th Street, Fort Worth, Texas. A separate Scheduling Order shall issue.
Judge O'Connor's order is good news, not only for the victims' families but also for the fair administration of justice. The families have now waited for years for justice in this case. Judge O'Connor's order means that they will either have a resolution by June 23—or a chance to see Boeing stand trial for its crime. Boeing has clearly used its expansive legal team to delay the proceedings. At some point, enough is enough. That point appears to have arrived yesterday.
Since yesterday's order, I've also seen some speculation that Boeing might just decide to go to trial and take its chances with a jury. This speculation does not full appreciate where things stand. Boeing has no defense. Read More
The Satanic Temple, Inc. … [sued] Newsweek Magazine LLC … [for alleged defamation] in the article titled "Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit" published by Newsweek. After this Court's [earlier] Opinion and Order on Defendant's motion to dismiss, only one statement, "Accounts of sexual abuse being covered up in ways that were more than anecdotal" (the "Article Statement"), remains at issue….
The court grants Newsweek summary judgment as to that last statement. The court concludes that there's a material factual dispute as to what the statement would mean to a reasonable reader (and whether it's false):
The relevant portion of the Article, with the Article Statement emphasized here (but not in the Article), reads:
He hadn't been involved long when he came to feel that TST 'appeared to be an inept, rudderless organization that had accidentally risen to prominence through something of a disingenuous prank,' referring to the 2013 filming event in Florida.
He soon left the group, then was leaked material about 'leaders posing happily with major alt-right media figures,' he wrote. 'Accounts of sexual abuse being covered up in ways that were more than anecdotal. Dozens of people kicked out for asking for financial records from this alleged-non-profit organization.'
A federal court, however, has now largely blocked this restriction; the court rejected the argument that the parent violated the school's "bullying" policy.
From Chief Judge Eric Melgren's opinion yesterday in Schmidt v. Huff (D. Kan.):
Gardner Edgerton High School is a part of USD 231 and is located in Johnson County, Kansas. USD 231's Superintendent is Defendant Brian Huff. Plaintiff Carrie Schmidt is the mother of two students, a sophomore and a senior, who attend Gardner Edgerton High School.
Plaintiff's son, a high school senior, is on the Gardner Edgerton wrestling team. Plaintiff volunteered to help make "snack bags" for the wrestlers on the days they have wrestling matches. With permission, Plaintiff uses the teacher's lounge on the first floor to put together the snack bags. Once the snack bags are made, they are placed in the wrestling team's coolers. Plaintiff often takes pictures of the completed snack bags and sends them to the coaches and Athletic Secretary, so they know where everything is located. This system was already in place before Plaintiff volunteered. Plaintiff has helped make snack bags for the wrestling team since at least 2023.
On May 4, 2023, Plaintiff became a member of the USD 231 Educational Services Advisory Committee. The Committee investigates and reviews USD 231 curriculum, instruction, and assessment topics as well as reviews the accreditation process, progress, curriculum standards, and Federal Programs. The Committee makes recommendations to the School Board and Superintendent Huff about these matters.
On January 29, 2025, President Trump issued Executive Order 14190, entitled "Ending Radical Indoctrination in K-12 Schooling." Based on the advertisements, posters, and stickers placed on the walls and windows of USD 231, Plaintiff believed that the school was in violation of the President's Executive Order by endorsing and otherwise advocating for gender ideology and discriminatory equity ideology.
Are state bar licensing requirements just a barrier to entry that reduces the quantity and increases the cost of legal services? Do they also improve the quality of legal services and protect consumers?
We study how state occupational licensing requirements shape labor mobility across U.S. legal markets. Drawing on newly collected data, we link variation in state bar exam waiver policies to lawyers' license acquisitions, professional disciplinary records, and educational histories. We find that bar exam waivers increase the number of experienced lawyers obtaining a new license by 38 percent, but that the additional lawyers are subject to more professional discipline and tend to have graduated from less selective law schools. Our results suggest that state-level occupational licensing regimes can create a trade-off between the supply and quality of professionals in an industry.
And from their conclusion:
In this paper, we investigated the impact of occupational licensing requirements on the labor market mobility of lawyers and on the quality of lawyers offering legal services in a state. We specifically studied the impact of bar exam waivers for experienced lawyers on their likelihood of obtaining a license to practice law in another state and on whether the lawyers induced to move by a bar exam waiver differ in quality. To do so, we assembled novel datasets on bar exam waiver policies, license acquisitions of a sample of 1.7 million lawyers, and the professional disciplinary actions imposed on lawyers in 37 states. By exploiting more than one thousand changes in bar exam waivers between pairs of origin and destination states, we found that bar exam waivers increase labor market mobility by 38 percent. However, we also found that lawyers who are induced to obtain an additional license by a bar exam waiver are of lower quality than lawyers who would have obtained an additional license without the waiver. Taken together, these results imply that, in the legal context, occupational licensing requirements create a trade-off between the supply of labor and the quality of professionals.
Given this trade-off, future research is needed to further understand the welfare implications of occupational licensing in the legal profession. Our research specifically points toward two related topics that would benefit from additional investigation. First, because occupational licensing rules appear to impact both the quantity and quality of lawyers, future research should directly investigate the welfare implications that come from expanded access to legal services relative to potential costs associated with having a higher share of lower quality lawyers. The welfare benefits of increasing the supply of lawyers may far outweigh the costs of additional lower-quality lawyers, but more research is needed to directly explore this possibility. Second, future research should explore whether bar exam waivers create lower-quality lawyers or simply redistribute them. For instance, exam waivers may produce lower-quality lawyers if they lead to experienced lawyers not learning information that could directly improve the quality of legal services they provide; alternatively, exam waivers may simply allow existing lower-quality lawyers to expand their practices to new markets without producing any new lower quality lawyers. These two possibilities have different welfare implications and suggest different strategies for trying to protect the public.
A prison guard transfers 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)
Yesterday, US district Judge James Boasberg ruled that migrants have a right to a hearing to challenge their deportation under the Alien Enemies Act of 1798. The Alien Enemies Act is one of the notorious Alien and Sedition Acts of 1798, the only one still in force. Trump is trying to use it to deport alleged members of Tren de Aragua, a Venezuelan drug gang. But the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." As explained in my earlierwritings about this issue, illegal migration and cross-border drug smuggling do not qualify as an "invasion" or "predatory incursion." Even if they did, they aren't being perpetrated by a "foreign nation or government." Tren de Aragua is a criminal organization, but it is pretty obviously not a "nation or government."
Much of the debate over Trump's invocation of the AEA focuses on whether he can use it all, given the absence of the requisite war, invasion, or predatory incursion. But Judge Boasberg chose not to address that issue (at least not yet), and instead focused on a different point.
The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all. As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, "alien enemies." And the Supreme Court and this Circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge. Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.
Judge Boasberg cites extensive precedent showing that noncitizens targeted for detention or deportation under the AEA are entitled to a hearing to determine if they really are "enemy aliens" as defined by the statute and the presidential proclamation invoking it. That was true in every previous use of the AEA (always during actual declared wars: the War of 1812, World War I, and World War II). For example, in United States ex rel. Schwarzkopf v. Uhl, 137 F.2d 898 (2d Cir. 1943), a detainee was able to show he was not actually a German citizen, and thus could not be detained under the AEA as an alien enemy.
Georgetown law Prof. Steve Vladeck covers a variety of similar precedents going all the way back to the War of 1812 in a 2007 article.
The need for due process here is more than just a matter of abstract legal theory. Evidence increasingly indicates that many of the people deported under the AEA by Trump are not members of Tren de Aragua at all, and haven't committed any crimes. The government actually admits that "many" of the deportees do not have any criminal record at all.
While Judge Boasberg chose not to resolve the issue of whether the AEA can be invoked at this time at all, he notes that "this Court is confident that it can — and therefore must, at the appropriate time — construe the terms 'nation,' 'government,' 'invasion,' and 'predatory incursion….' While doing so may be no light undertaking, it is a judicial one."
This suggests he is - rightly - skeptical of the notion that all such issues are "political questions" that courts are not allowed to address. Courts are likely to have deal with these questions as the AEA litigation continues.
I have previously why these issues should not be considered unreviewable political questions here, and here. Here's an excerpt:
There is no good reason to hold that the definition of "invasion" is a political question, especially if doing so would give the president a blank check to usurp power over… Congress and suspend the writ of habeas corpus anytime he wants. Such a vast concentration of power would surely go against the original meaning [of the Constitution], as it would enable the president to engage in arbitrary detention at will – exactly the kind of abuse early Americans had experienced at the hands of the British and sought to prevent in the future. "Invasion" has a clear definition readily susceptible to judicial interpretation…
Meanwhile, also yesterday, the US Court of Appeals for the DC Circuit held oral arguments on the government's appeal seeking a reversal of Judge Boasberg's earlier temporary restraining order blocking AEA deportations. The judges seemed to share at least some of Boasberg's concerns about the lack of due process:
"There were plane loads of people. There were no procedures in place to notify people," Judge Patricia Millett said. "Nazis got better treatment under the Alien Enemies Act."
Judge Millett noted that alleged Nazis were given hearing boards and were subject to established regulations, while the alleged members of Tren De Aragua were given no such rights.
"There's no regulations, and nothing was adopted by the agency officials that were administering this. They people weren't given notice. They weren't told where they were going. They were given those people on those planes on that Saturday and had no opportunity to file habeas or any type of action to challenge the removal under the AEA," Judge Millett said.
Judge Millett is absolutely right on these points. And they should trouble anyone who cares about civil liberties, or just simply opposes imprisoning people with no due process at all.
Both "doxing" and "doxxing" are in use, but I want to argue in favor of the one-x spelling, for a simple reason: It's more consistent with the norms of standard English.
To my knowledge, no other standard English words (not counting brand names such as Exxon, or English renderings of Roman numerals) have an "xx" in them. And while the last letter of a verb is sometimes doubled before "-ing" (e.g., "popping," "hitting," and "tanning"), that isn't done for verbs that end with an "x": We write "boxing," "mixing," and "taxing," not "boxxing," "mixxing," and "taxxing."
I appreciate that this is an aesthetic preference, not some rigid law. If enough fellow English speakers come to prefer "doxxing," that will become the standard spelling. But at this early stage, I want to urge people to go with normal English practice.
My first book, The Digital Fourth Amendment, came out last month. I wanted to write some posts on the book over the next week. And I figured I should start with the most fundamental question: Why on earth did I write this book?
The thing is, I don't really believe in law professor books. I mean, I know they exist. But I've usually thought of most law professor books as a waste of time. First, most law professor books are too long and too dense. People might buy them and put them on the shelf, but does anyone actually read them?
And second, why hide away your writing in a book, when you could much more easily just write an article and put it on SSRN for anyone to read? If you're trying to reach an audience, wouldn't you want to make the ideas as accessible as possible for them rather than require readers to pay for the privilege? In academic fields where books are the coin of the realm, fine, write a book. But in legal academia, law review articles are still the base currency. Why not stick with that?
For these reasons, I've been a law professor for almost 25 years, but I have never written a book.
But wait, this post is about my new book, The Digital Fourth Amendment. If I don't really believe in law professor books, why did I write one?
To answer that, I need to give you some background. I'd guess that I've written something like forty articles on the Fourth Amendment over the years, more than half of which focus on questions of new technology. The big issue those articles take on is how to interpret the Fourth Amendment in the context of digital evidence. Most cover what is, at least on the surface, pretty narrow topics. I like to write quite narrowly, focusing on a very specific problem that the courts are confronting in the field and offering thoughts on how courts should resolve it.
As a strategy, this has pros and cons. No small number of elite academics think it is weird. We live in an academic world of grand theorizing. To a lot of academics, writing a narrow article about a specific new problem courts are starting to confront comes off as small-minded. It's—gasp!— doctrinal. Ew. But my ultimate goal has been to influence a body of emerging law, and you do that by writing in ways that those who will determine the body of law understand and appreciate. Writing in ways that judges and lawyers can use means writing narrowly.
I decided to write the book because I came to think that although the narrow articles were effective in that way, there could be a lot of value in presenting the big picture. A book would let me start from the beginning, explain what the Fourth Amendment is about, explain the challenge of digital evidence, and run through a bunch of the main problems that the courts are currently confronting—and what they're doing so far, and should be doing. In other words, a book would let me put all of these papers in context. It would give the 30,000 foot perspective for the general reader of the big ideas.
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