Pro se Plaintiff Joseph Indelicato [III] [a Georgetown-trained lawyer] filed this employment discrimination complaint against Defendant Shipman & Goodwin LLP ("Shipman"), in which he claims both religious and race-based discrimination in connection with the termination of his employment as an attorney at the Shipman law firm. Plaintiff, who is a white Christian, alleges that he was terminated as a result of a manufactured harassment complaint by a co-worker of South Asian national origin.
Plaintiff named as additional defendants the United States of America, the Federal Bureau of Investigation, Christopher Wray (Director of the FBI), Georgetown University, Feng K. An, District Judge Sarala Nagala, Tanya Hughes, Jason Thody, Frank Blando, 30 Arbor Street LLC, Matthew Berger, and the U.S. Equal Employment Opportunity Commission. These defendants are alleged to be co-conspirators with Shipman in a multi-year, overarching conspiracy to destroy Plaintiff's life and the lives of other white Christian people.
The opinion goes on in some detail, but closes thus:
[T]he Court concludes that the SAC [Second Amended Complaint] is subject to dismissal in its entirety because the allegations are, simply put, fantastical and delusional and therefore beyond this Court's ability to adjudicate…. As detailed above, the SAC is replete with such fantastical allegations. In support of his purported gender and religion discrimination claims, Plaintiff invokes numerous antisemitic writings and falsehoods (including by citation to Mein Kampf), to allege that there is a vast, primarily Jewish conspiracy involving federal and state government agencies, the judiciary, private law firms, private universities, national political parties, and various foreign nations, which culminated in his termination.
The article is here, though you can also read the full symposium; the introductory paragraphs (from Lee Bollinger's part of the dialogue):
To set the stage for the excellent essays that make up this volume on the future of free speech, let's begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that "Congress shall make no law … abridging the freedom of speech, or of the press."
Of course, in the United States, "free speech" is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take note of how the meaning and health of "free speech" depend both on judicial interpretations of the First Amendment and on how all citizens and institutions interpret and abide by the general principle. Still, in our highly legalized, and constitutionalized, national culture, it is only natural that the interpretation of the constitutional right drives both the public and the private spheres in which "free speech" operates.
To begin, here are several observations worthy of note for those not fully steeped in the First Amendment. First, the idea of a First Amendment right of free speech, as we understand it today, is a relatively recent invention. The Supreme Court's jurisprudence on the First Amendment dates back to only a little more than a century ago. Although the First Amendment has been part of the Constitution since 1791, the Court did not begin interpreting its meaning until 1919, in cases arising out of World War I. (To mark the centennial of that moment, in 2019, we convened a group of prominent scholars, judges, and lawyers to create a collection of provocative and insightful essays in a book we called The Free Speech Century.)
Since 1919, there have been thousands of judicial decisions about "free speech" and "free press," which together constitute a massive and complex jurisprudence around the subject of the First Amendment. You and I are the professorial byproduct of that development. When we began teaching as law professors in 1973, the First Amendment was merely one part of a conventional course on Constitutional Law. Within a few years, though, the Supreme Court's First Amendment jurisprudence became so dense and complex as it decided ever-more cases on these issues that law schools and constitutional law scholars thought it appropriate to subdivide the field of constitutional law into separate, free-standing courses, one of the most important of which focused exclusively on the First Amendment.
Over the past century, the scope of protections afforded citizens under the First Amendment has ebbed and flowed, although for the most part it has expanded dramatically. At the very beginning, in 1919, in the context of the hysteria surrounding World War I and the Bolshevik Revolution, the U.S. government prosecuted and punished people who merely dissented from the government's prevailing views, especially about the war and the draft. Looking back on that era today, it is surprising that the Supreme Court chose not to use the First Amendment to protect those who challenged the government's policies from often severe censorship. From the standpoint of how our nation now views the First Amendment, this was an inauspicious beginning indeed….
This is the third of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last post, I discussed the rise of executive agreements. In this post, I consider how the United States terminates and withdraws from treaties and executive agreements.
The Constitution specifies a process for making treaties (requiring the advice and consent of two-thirds of the Senate) but it does not mention anything about terminating or withdrawing from them. Yet the United States must have the same ability as other nations to get out of its treaty commitments—for example, when the other party is breaching the treaty or when circumstances have changed such that the treaty relationship no longer makes sense.
Many modern treaties in fact have withdrawal provisions, allowing parties to leave the treaty after giving notice, and surely the United States has a right to invoke those provisions.
But how is this to be done? Must the President go back to two-thirds of the Senate and get its permission before withdrawing? The history on this subject is complicated, as I documented in a 2014 article.
When presidents wanted to terminate treaties in the nineteenth century, then generally sought Congress's or the Senate's approval. That started to change in the early twentieth century, and then unilateral presidential terminations started becoming the norm in the Franklin Roosevelt administration in the 1930s and 1940s.
To support the Chiefs, the young fan "wore Native American headdress, painted his face black and red, and donned a Chiefs jersey"; Deadspin said this was "black face" and showed "hate" towards "Black people and the Native Americans."
Deadspin published an image of a child displaying his passionate fandom as a backdrop for its critique of the NFL's diversity efforts and, in its description of the child, crossed the fine line protecting its speech from defamation claims.
On November 26, 2023, the Armenta family, a mother, father, and their minor son, traveled from California to Las Vegas, Nevada to attend an NFL game between the Las Vegas Raiders and the Kansas City Chiefs. To support his favorite team, H.A., the Armentas' minor son, wore Native American headdress, painted his face black and red, and donned a Chiefs jersey. During the game, a television broadcast focused briefly on H.A. Soon afterwards, still images, or "screenshots," of the television broadcast circulated online.
The following day, Deadspin published an article, with an accompanying screenshot, describing the boy as wearing "Black face" in a display of racial animus toward African Americans and "Native headdress" to display his hatred toward the Native American. The article further surmised that Raul and Shannon Armenta, H.A.'s parents, taught H.A. that hatred.
The court allowed the Armentas' defamation claim against Deadspin to go forward:
Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted the state of Ohio's application of an emergency stay of a district court injunction barring enforcement of an Ohio law prohibiting foreign nationals from spending money to support or oppose a ballot initiative. The district court concluded that the plaintiffs were likely to succeed in their challenge to the law. In OPAWL - Building AAPI Feminist Leadership v. Yost, a divided panel of the Sixth Circuit disagreed.
Judge Thapar wrote for the court, joined by Judge McKeague. Judge Davis dissented.
Writing for the panel, Judge Thapar rejected the plaintiffs' arguments that the prohibition is overbroad and that it unconstitutionally restricts the First Amendment rights of lawful permanent residents. While lawful permanent residents have First Amendment rights, Judge Thapar explained, the state also has a compelling interest in preventing foreign money from distorting domestic self-government.
the "exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of selfdefinition." Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982). States can prevent non-citizens from serving as probation officers, see id., or teaching in public schools, see Ambach v. Norwick, 441 U.S. 68 (1979). Why? Because the "distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State." Id. at 75. "It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens." Id. So, excluding non-citizens from certain activities can advance a compelling interest when those activities form part of the "the process of democratic selfgovernment." Bluman, 800 F. Supp. 2d at 287.
Campaign contributions and independent expenditures are part of our process of democratic self-government. Under Supreme Court precedent, the activities of self-government "include functions as unrelated to the electoral process as teaching in public schools and serving as police and probation officers." Id. at 288 (citations omitted). "[S]pending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher." Id. at 288–89. It's thus unsurprising that the dissenters in Citizens United emphasized that the Court has "never cast doubt on laws that place special restrictions on campaign spending by foreign nationals." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 423 (2010) (Stevens, J., concurring in part and dissenting in part). For this very same reason, courts have upheld large-donor disclosure requirements because, in part, they help "ensure that foreign nationals . . . do not seek to influence United States' elections." Indep. Inst. v. Fed. Election Comm'n, 216 F. Supp. 3d 176, 191 (D.D.C. 2016), aff'd, 580 U.S. 1157 (2017); see also SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 698 (D.C. Cir. 2010). . . .
the Supreme Court's approval of excluding foreigners from the process of self-government applies with full force to Ohio's restrictions on lawful permanent residents' political spending. "The statute does not serve a compelling interest in limiting the participation of nonvoters in the activities of democratic self-government; it serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government." Bluman, 800 F. Supp. 2d. at 290 (emphasis in original). By definition, lawful permanent residents are not American citizens. Therefore, we have no trouble concluding that Ohio has a compelling interest in preventing foreign influence in its elections and that Ohio's interest extends to preventing independent expenditures by non-citizens.
The court further concluded that the law was sufficiently tailored to this interest.
Ohio can take steps to assure its people that foreign interests haven't unduly swayed its elections without abundant "proof by documentary record." Id. at 447. Addressing a widespread perception of foreign interference makes "perfect sense." Nixon, 528 U.S. at 390. "Leave the perception of impropriety unanswered, and the cynical assumption that [foreign] donors call the tune could jeopardize the willingness of voters to take part in democratic governance." Id. Thus, contrary to the district court's finding, Ohio met its burden of linking spending by lawful permanent residents to preventing foreign interference in Ohio's elections.
Similarly, to maintain public confidence in fair elections, the Court has permitted states "to respond to potential deficiencies in the electoral process with foresight rather than reactively." Munro, 479 U.S. at 195. For example, the Supreme Court has recognized that because "[e]lections vary from year to year, and place to place," it can be "difficult to make specific findings about the effects of a voting regulation." Burson v. Freeman, 504 U.S. 191, 209 (1992). As a result, requiring precise proof of those effects "would necessitate that a State's political system sustain some level of damage before the legislature could take corrective action." Munro, 479 U.S. at 195. So too with a campaign finance restriction: quantifying the precise effects of non-citizens' political expenditures is all but impossible.
Judge Thapar's opinion concludes:
The state of Ohio passed a law restricting the ability of foreign nationals to contribute to state campaigns and make independent expenditures related to state ballot initiatives. Concerns about foreign interference in American politics aren't new. And Ohioans and their representatives have a compelling interest in regulating such influence. We can't interfere with their judgment unless the First Amendment demands it. And here, it doesn't.
Judge Davis dissented. Her dissent begins:
Ohio's § 121 is unlikely to pass constitutional muster applying either strict or intermediate scrutiny. The state is therefore unlikely to prevail on the merits and a stay of the district court's grant of injunctive relief is not warranted. For this reason, I disagree with my colleagues and respectfully dissent.
To begin, § 121 distinguishes itself from federal restrictions on campaign contributions and expenditures under the parallel Federal Election Campaign Act ("FECA") in one constitutionally important way: it defines "foreign national" more broadly than the term is defined in identical contexts. Unlike FECA, § 121 includes lawful permanent residents ("LPRs") in its definition of foreign national. Compare 52 U.S.C. § 30121(a)(1) with Ohio Rev. Code Ann. § 3517.121(A)(2)(a). In defining foreign nationals this way, the law directly burdens LPRs's First Amendment rights. And beyond that, the law implicitly burdens United States citizens based on certain affiliations with LPRs as well as advocacy organizations with LPR members in ways that create uneven regulation of speech when compared to corporations.
United States citizens and lawful permanent residents have First Amendment rights. See Bridges v. Wixon, 326 U.S. 135, 148 (1945) ("Freedom of speech and press is accorded aliens residing in this country."). And I agree with my colleagues' observation that Ohio's statutory regulation of independent expenditures and campaign contributions constitutes a restriction on speech. See Buckley v. Valeo, 424 U.S. 1, 16-23 (1976). As such, § 121 necessarily receives First Amendment scrutiny. The questions that remain, then, are what type of scrutiny should apply and whether Ohio has met its burden under the appropriate level of scrutiny. The answer to the latter question is where I respectfully part ways with the majority.
The Court's argument this morning in Lackey v. Stinnie showed some fractures among the justices. My prediction is that there will be a majority in favor of the petitioners, though that is not a totally confident prediction: several justices were clearly in favor of the petitioners, a couple were in favor of the respondents, and the rest asked some questions of each side that did not clearly reveal their thinking.
But the basic reason for the prediction is that the argument took place on more or less formalist territory--a statute with a term of art, a set of precedents that focus the inquiry for attorneys' fees on final judicial action, the policy decisions to depart from the American Rule being made by Congress not the Court, and the characteristics of the preliminary injunction that distinguish it within the timeline of litigation. The terrain on which the discussion happened was not about how the Court can set optimal incentives for public interest litigation. And in this case the formalist terrain is friendly for the petitioner.
There were two strong points made in favor of the respondents. One is the recently unsplit circuits--the Fourth Circuit had a bright-line rule against fee-shifting after a PI, but now that it just reversed that rule en banc (in the case below), there is no circuit that clearly takes that position. One rejoinder to that is that the various tests used are a mess. But another is that most of the circuits can get it wrong--which is probably a lesson from yesterday's argument in Royal Canin USA. Still, a strong point for respondents is the lack of support in the courts of appeals.
The other point that seemed to carry some weight for the respondents was a hypothetical from Justice Jackson where someone sues today to be able to participate in a parade tomorrow, gets a PI, and then has gotten all the relief needed, because the parade is over. Is that plaintiff a prevailing party? Some of the reasons why the plaintiff might still care about the case came out at oral argument--an annual parade, a request for damages, a declaratory judgment. But several other points are worth making.
First, in the scenario described, the plaintiff would almost certainly not get a PI because of laches in waiting to sue until the day before the parade. So part of what makes it a great hypo--the perfect fit between the PI and all of the relief that is wanted and possible--requires facts that would make a PI unlikely in the real world.
Second, there are lots of older cases saying that a preliminary injunction is never supposed to give you all the relief you want. That traditional principle isn't repeated very much by courts now. But it's a reminder of just how unmoored the PI is becoming from its "hold in place" function.
Third, the answer to the hypo is, as the attorney for the SG's office suggested, that the person who gets the PI for the parade is simply never a prevailing party. There has been no determination of the merits--no judgment of any kind. Even though the compressed timetable of the hypothetical makes it very advantageous to the plaintiff to have the PI, it is still not the relief sought. The complaint could not have been filed asking only for a PI. It would be good in the hypo for the court to consider moving up the decision on the merits to that day before the parade (either summary judgment or trial), but without that, the plaintiff is not a prevailing party.
This morning the Supreme Court will hear argument in Lackey v. Stinnie, a major case about attorneys's fees and preliminary injunctions. The case has so far escaped much attention in the press, but its implications are important. These include implications for litigation funding, for incentives to settle after a preliminary injunction, and for how the preliminary injunction operates in the federal courts.
The preliminary injunction is designed to protect the Court's ultimate remedial options (as explored at length in The Purpose of the Preliminary Injunction). It is an interim measure that does not determine the merits, and instead, to use a felicitous phrase of Professor Bert Huang, it "sets a holding pattern." But there has been a major shift in the federal courts toward merits-dominated decisionmaking. It has become a central front in many of the most important public law cases. It is not designed for that role, and the error costs at the preliminary stage are high. Those costs are exacerbated by heightened judicial polarization and forum-shopping. And these shifts in preliminary injunction practice have contributed to many of the cases that come to the Court in an emergency posture. A win for the respondents would be likely exacerbate these trends still more, moving the preliminary injunction further from its traditional function and towards being a merits determination.
Here is my discussion of the briefs from last week, here at the Volokh Conspiracy.
And here is The Purpose of the Preliminary Injunction, which explores these questions about this interim measure's function and the problems with how it is now being used in the federal courts.
This is the second of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the first post, I addressed some general points about the role of historical gloss in constitutional interpretation, and I explained why gloss has had particular relevance in the foreign affairs area.
In this post, I discuss the phenomenon of executive agreements.
Article II of the Constitution describes how treaties are to be made: by the President with the advice and consent of two-thirds of the Senate. But from early in our history, presidents have sometimes concluded international agreements through other processes.
Agreements concluded with either the ex ante or ex post approval of a majority of Congress are sometimes referred to as "congressional-executive agreements" and those concluded based solely on the President's authority are sometimes referred to as "sole executive agreements." The term "executive agreements" is used in the United States to distinguish them from agreements concluded through the Article II process, but under international law these are all treaties.
There were executive agreements even in the early days of the nation, but the practice grew over time. According to one widely cited calculation, in the first fifty years after the adoption of the Constitution, the federal government concluded 60 Article II treaties and only 27 executive agreements. The executive agreements concerned matters such the international exchange of mail and the settlement of American claims against foreign governments.
By contrast, in the fifty-year period from 1939 to 1989, there were, according to a State Department calculation, 702 Article II treaties and 11,698 executive agreements. In other words, executive agreements constituted almost 95% of the overall international agreements during that period.
New National Bureau of Economic Research study shows this notorious law not only harmed would-be immigrants, but also damaged the US economy and reduced employment opportunities for native-born whites.
The Chinese Exclusion Act of 1882, which barred most Chinese immigration, was one of the most important immigration restrictions in American history. It barred large numbers of Chinese immigrants, condemning them to a life of poverty and oppression. It also set the stage for later immigration restrictions. Perhaps even more significantly, it led to the Supreme Court's awful ruling in the 1889 Chinese Exclusion Case, which ruled that the federal government had a general power to restrict migration, despite the absence of any textual or originalist basis for it. That, of course helped make future immigration restrictions possible. Elsewhere, I have argued the Chinese Exclusion Case should be added to the "anti-canon" of constitutional law.
A new study for the National Bureau of Economic Research, authored by economists Joe Long, Carlo Medici, Nancy Qian and Marco Tabellini assesses the economic impact of the Act. One of the main rationales for its passage was to benefit white workers, who were supposedly victimized by competition from the Chinese. Did it achieve that goal? Turns out not. Here is the abstract of the new NBER study:
This paper investigates the economic consequences of the 1882 Chinese Exclusion Act, which banned immigration from China to the United States. The Act reduced the number of Chinese workers of all skill levels residing in the U.S. It also reduced the labor supply and the quality of jobs held by white and U.S.-born workers, the intended beneficiaries of the Act, and reduced manufacturing output. The results suggest that the Chinese Exclusion Act slowed economic growth in western states until at least 1940.
The study does not prove that no white workers were ever displaced by Chinese immigrants. Some almost certainly were. The authors of the NBER study point this out, and note that the Exclusion Act benefited "local" white miners competing with Chinese miners. But such effects were outweighed by the much larger number of white workers who benefited from Chinese migration, including the associated job opportunities it created. The economy is not a zero-sum game, and the interests of workers from different ethnic and racial groups are more mutually reinforcing than conflicting. I explained this dynamic in a bit more detail here.
Today is the one year anniversary of the horrific October 7, 2023 Hamas terrorist attack on Israel. The resulting war continues. I wish there was something I could say to ease the pain of the victims of the attack and their families. But that task is far beyond my very limited eloquence.
Still, over the past year I have written pieces on various aspects of the conflict and the reaction to it in the West, that may be of interest. This post is a compilation of them. I haven't written as much about this conflict as the Russia-Ukraine War. But there is enough to be worth compiling.
I hold a somewhat unusual combination of views on the conflict. I am no great fan of the present Israeli government, or of the ideology of Zionism (the latter because of my general opposition to ethno-nationalism). Yet I nonetheless hope Israel wipes out Hamas and deals a decisive defeat to its other adversaries, as well. For all its serious flaws from the standpoint of liberal values, Israel is incomparably superior to its enemies.
A small anecdote can help illustrate the point. In December, I am scheduled to be a visiting professor at Uriel Reichman University in Israel. One of the meetings tentatively planned for my trip is one with Arab Israeli legal academic Mohammed Wattad; since we last met in 2016, he has become the president of one of the country's major universities.
Can you imagine a Jew leading any major institution under the rule of Hamas, Hezbollah, Iran, or even the Palestinian Authority? The question answers itself. Indeed, a Jew probably could not even remain alive for long under most of these regimes. Hamas and Hezbollah are severely repressive even towards Arab Muslims who dare dissent from the rulers' quasi-medieval theocracy. Iran represses Muslim dissenters, as well.
As Wattad will likely remind me, Arabs still face considerable discrimination in Israel. That is wrong, and deserves condemnation. But the rule of Hamas, Hezbollah and the PA is vastly worse. Arabs under Israeli rule not only have more rights than ethnic and religious minorities under the control of Israel's enemies; they even have more rights than do Arab (or Iranian) Muslims under the latter regimes. Things are worse for West Bank Palestinians than Arab Israelis. But even they are unlikely to be better off with a Hamas victory that would put them under the rule of a brutal theocratic dictatorship.
In any conflict, I prefer the victory of the side that better approximates liberal democratic values - at least in situations where there is a meaningful difference between the two. In this case, there is no question that side is Israel.
Without further ado, here are links to my writings on the post-October 7 conflict. For convenience, I have put them in chronological order, and divided them into one section on the war itself and one on the Western reaction, including resulting protest movements. All of these writings are posts published here on the Volokh Conspiracy blog:
Writings on the War and Related Policy Issues
"Those Who Support Israel Against Hamas Should also Back Ukraine Against Russia," Oct. 12, 2023. There are many parallels between the two conflicts. The post is primarily directed at right-wingers who back Israel, but not Ukraine. But most of the points it makes apply equally to leftists who hold the exact opposite combination of views.
"Hamas Attack Should Teach Us the Folly of Hostage Deals with Terrorists,"Oct. 17, 2023. This may be one of my most unpopular takes. It may seem like only a cruel and heartless person could possibly oppose deals that release hostages. But, as I point out in the piece, such deals incentivize further terrorism and hostage taking. The October 7 attack itself was masterminded by Yahya Sinwar, a Hamas leader released in the 2011 Shalit deal, in which the Israelis released some 1200 terrorists in exchange for one soldier captured by Hamas. I was one of the few critics of the Shalit deal at the time it happened. Things turned out much worse than even I expected.
"The Moral and Strategic Case for Opening Doors to Gaza Refugees," Oct. 24, 2023. Granting refuge to Palestinian civilians who wish to flee the war and Hamas's repressive rule is both a moral imperative, and a way to make it easier for Israel to crush Hamas. For somewhat different reasons, this view is fiercely opposed by a combination of Western right-wingers, far leftists, and supporters of Palestinian nationalism. This combination of opponents actually increases my confidence that it is right. Interestingly, this is an issue where I find myself largely in agreement with my much more conservative colleague and co-blogger Eugene Kontorovich.
"Why I Don't Buy the Idea that You Can't Kill an Idea," Feb. 24, 2024. It's often said you can't defeat movements like Hamas and Hezbollah by military means, because "you can't kill an idea." This post explains why that ubiquitous claim is wrong. Though I also emphasize that doesn't mean the Israelis should rely on force alone, or that they need not observe any moral constraints on their military measures.
Writings on Western Reactions to the War and Protest Movements
"Some Cancellations are Justified," Oct. 15, 2023. Why employers and others are often justified in refusing to hire people who express support for Hamas terrorism. As noted in the post, this is not a new position adopted in response to controversies arising from the October 7 war. It builds on arguments I advanced years before.
"Far-Left Support for Hamas is not an Aberration,"Oct. 30, 2023. Western far-leftists have a long history of supporting repression and mass murder. Thus, we should not be surprised that many of them now support Hamas. As noted in the post, "far left" is not a pejorative term for anyone to the left of me. As used here, it has a far more specific and narrower meaning.
"Student Movements Are Often Wrong," April 26, 2024. The idea that causes espoused by student-led movements are always or almost always right is a myth. Today's student anti-Israel movement is just the most recent of many counterexamples. Obviously, movements led by older people are often misguided, as well.
The Harlan Institute is pleased to announce the Thirteenth Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Free Speech Coalition v. Paxton.
The Virtual Supreme Court Competition helps students gain the skills they need to understand, synthesize, and advocate for reasoned legal positions on timely and relevant constitutional issues, and in doing so deepens their commitment to the rule of law. The program directly supports the highest goals of the Center for Civic Education to develop enlightened and responsible members of our society, and it is a privilege to be a part of this important work. Christopher R. Riano President, The Center for Civic Education Member Board of Advisors, The Harlan Institute
Tournament Instructions
Teams of two high-school students will write an appellate brief, and present oral arguments, addressing the following question:
Whether Texas House Bill 1181 should be reviewed with rational-basis review scrutiny or strict scrutiny?
Petitioners will argue that Texas House Bill 1181 should be reviewed with strict scrutiny.
Respondents will argue that Texas House Bill 1181 should be reviewed with rational basis scrutiny.
Phase 1 - Research and Write Your Brief
Coaches can register their teams at the Institute for Competition Sciences (ICS). ICS will generate a number for each team. Odd-numbered teams will represent the Petitioners and even-numbered teams will represent the Respondents.
Teams will research and write their briefs. Carefully review the lesson plan. The brief must be a minimum of 2,000 words. Please download this template. The brief should have the following sections:
Table of Cited Authorities: List all of the original sources, and other documents you cite in your brief.
Summary of Argument: State your position succinctly in 250 words or less.
Argument: Structure your argument based on at least five Supreme Court precedents. The more authorities you cite, the stronger your argument will be–and the more likely your team will advance.
Conclusion: Summarize your argument, and argue how the Supreme Court should decide this issue.
Be sure to proofread your work. The work must be yours, and you may not seek help from anyone else–including attorneys or law students. Students who submit plagiarized briefs will be disqualified.
Please review the winning submissions from previous years:
Teams that register before November 4, 2024 will be invited to participate in a virtual mentoring session. These sessions will be hosted during the week of December 2, 2024. The Harlan Institute will match each class with a mentor from our network. These sessions will be helpful to finalize your briefs and prepare your preliminary round arguments.
Phase 3 - Preliminary Round
For the preliminary round, each team must prepare a YouTube video. The argument must be at least 15 minutes in length. Coaches will ask their students ten questions from the lesson plan.
Teams will upload a PDF of their brief, as well as a link to their YouTube video to the Institute of Competition Sciences. The deadline for the preliminary round will be December 16, 2024. The brief and preliminary round video will be scored based on this rubric.
Phase 4 - Virtual Rounds
We will hold the Virtual Rounds over Zoom: Read More
I am honored to open up the 16th Season of FantasySCOTUS. I launched the site back in 2009 when I was still clerking. Now, more than decade later, thousands of Court watchers have made their predictions. Sign up today at FantasySCOTUS.net to predict the outcome of all the blockbusters this term.
From the government's supporting affidavit in U.S. v. Mahdawi(D.D.C.); Mahdawi's actions were part of a broader demonstration at which some "individuals … pulled down flags affixed to the flagpoles; burned flags and objects; interfered with law enforcement's ability to place individuals under arrest; and sprayed graffiti on multiple statutes and structures," causing total cleanup costs of $11K:
In a series of five posts this week, I will describe my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press 2024). This first post discusses the phenomenon of "historical gloss" and explains why it has played an especially significant role in the foreign affairs area.
The core question addressed in the book is how foreign affairs authority is distributed between Congress and the President. The first thing that you might want to do in answering this question would be to consult the text of the Constitution. You would immediately encounter a problem, however, which is that the text is silent about many key issues of foreign affairs authority. For example, there is no mention in the text of the powers to declare neutrality, issue passports, recognize foreign governments, extradite criminal suspects, enter into executive agreements, terminate treaties, regulate the exclusion and deportation of non-citizens, or wage undeclared wars. As Louis Henkin noted long ago in his treatise on foreign relations law, there are a host of what appear to be "missing" foreign affairs powers that "were clearly intended for, and have always been exercised by, the federal government."
These omissions would be less of a problem if it were easy to amend the Constitution, but it is not. Amendments normally require a two-thirds vote in both the House and the Senate and an approval by three-fourths of the states. In part because of this difficulty, none of the foreign affairs provisions of the Constitution have ever been amended in the more than 230 years since the Constitution took effect.
Yet, to state the obvious, we live in a world that is very different from that of the Founding. The country has grown from a small group of former colonies along the eastern seaboard to fifty states including Alaska and Hawaii. The United States was a party to seven international agreements at the Founding and is now a party to many thousands. The country was extremely weak militarily at the Founding, with only about 700 people in the army and no navy, and it is now a global superpower with bases around the world and nuclear weapons. The State Department at the Founding was Thomas Jefferson and a couple of clerks, but it now has over 70,000 employees. From the perspective of the constitutional text, we are managing foreign affairs with a horse-and-buggy constitution.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
I am honored to open up the 16th Season of 
