The Volokh Conspiracy

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

Justice Antonin Scalia, one of the leading originalists and textualists of the modern era ended his career by publishing with Bryan A. Garner a 2012 treatise Reading Law: The Interpretation of Legal Texts. In his treatise, Scalia urges lawyers to go back to using the canons of interpretation, which the legal realists sarcastically scorned. As it happens, there is a canon of interpretation, which is very relevant to what the word "insurrection" means in Section 3 of the Fourteenth Amendment, which Ilya Somin's post today conveniently overlooks: noscitur a sociis -- The meaning of an unclear or ambiguous word in a legal text should be determine by considering the words with which it is associated in context.

The word "insurrection" in Section 3 appears as part of the phrase "insurrection or rebellion" in a text that had as a paradigmatic example the U.S. Civil War in which 620,000 Americans at a minimum died and possibly as many as 850,000 according to more modern estimates. This amounts to about 2.5% of the population, which today would be 7 million people.

In contrast 5 people died in the January 6, 2021 riot at the Capitol. This difference in scale is enormous! More people died in the 1960's race riots and no-one called them an insurrection. Thirty-four people, for example died in the Watts Los Angelos riot in 1965 and more than a thousand were injured.

If the January 6th riot was an insurrection are Black Lives Matters protests also insurrections with the result that those who participate in such protests cannot run for political office? Read More

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

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The attack on the Capitol. January 6, 2021. (NA)

Today is the third anniversary of the January 6, 2021 attack on the Capitol, intended to keep Donald Trump in power after he lost the 2020 election. One of the points at issue in the Supreme Court case considering whether Trump should be disqualified under Section 3 of the Fourteenth Amendment is whether the events of that day qualify as an "insurrection." It should be an easy call. The January 6 attack was an insurrection under any plausible definition of that term.

As legal scholar Mark Graber shows, contemporary definitions of "insurrection" prevalent at the time the Fourteenth Amendment was enacted were quite broad: possibly broad enough to encompass any violent resistance to the enforcement of a federal statute, when that resistance was motivated by a "public purpose." That surely includes the January 6 attack!

I'm not convinced courts should actually adopt such a broad definition. It could set a dangerous precedent. As Graber notes, on that theory people who violently resisted enforcement of the Fugitive Slave Act qualify as insurrectionists, too. But January 6 was an insurrection even under a narrow definition that covers only violent attempts to illegally seize control of the powers of government. After all, the attackers were using force to try to keep the loser of the 2020 election in power, blocking its transfer to the rightful winner. If that isn't a violent attempt to seize government power, it's hard to know what is.

It's true many of those who participated thought they were acting to support the rightful winner of the election, and thus believed they weren't doing anything illegal. But much the same could be said of the ex-Confederates who were the original target of Section 3. Most of them believed their states had a constitutional right to secede, and they had much better grounds for that belief than Trumpists ever had for the utterly indefensible claim that the election was stolen from him (one uniformly rejected in numerous court decisions, including by judges appointed by Trump himself).

It is sometimes claimed that the mob attacking the Capitol was unarmed or not violent enough to qualify as an insurrection. That would be news to the five people who were killed, and the over 140 police officers injured. There could easily have been many more fatalities had the attackers been more successful in carrying out their plans to "hang Mike Pence" and kill members of Congress (Pence and the members managed to escape). And it just isn't true that the mob was unarmed. After extensive consideration of evidence, Colorado courts found otherwise:

[C]ontrary to President Trump's assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—that the mob was armed with a wide array of weapons…. The court also found that many in the mob stole objects from the Capitol's premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers' batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol…. The fact that actual and threatened force was used that day cannot reasonably be denied.

Co-blogger and prominent conservative law professor Steve Calabresi is nonetheless unconvinced January 6 was an insurrection. He relies on a definition of "insurrection" from the 1828 edition of Webster's Dictionary:'

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

The events of January 6 fit this definition to a T! The attack on the Capitol was obviously "A rising against civil or political authority" and even more clearly "the open and active opposition of a number of persons to the execution of a law in a city or state." The mob incited by Trump sought to prevent the "execution" of the laws requiring transfer of power to the winner of the election.

Calabresi suggests that the January 6 attack fits the definition of a "riot." Perhaps so. But "riot" and "insurrection" aren't mutually exclusive concepts. An event can be both at the same time. Indeed, that's a common occurrence in history.

Calabresi and others also argue that the attack wasn't large enough to qualify as an insurrection because, as he puts it, the attack "occurred for three-and-one-half hours in one city only in the United States, Washington D.C., and not as an overall insurgency in multiple cities across the United States." But the definition he himself cites indicates that an insurrection is "the open and active opposition of a number of persons to the execution of a law in a city or state" (emphasis added). That suggests one city is enough.

And there is no historical or modern evidence indicating that an insurrection has to last some minimum length of time. A revolt that is quickly put down can still be an insurrection. The same goes for one that is poorly planned and easily defeated.

If actions in multiple cities are required, a great many attempted coups and armed revolts would not count as "insurrections." It is common for attempts to seize power to focus on the capital city where the government is located. If the revolt is put down, it may not spread elsewhere. But that doesn't mean it was not an insurrection.

The Bolshevik seizure of power in Russia in 1917 initially involved just the capital city of St. Petersburg. If the Provisional Government had managed to swiftly crush it, thereby preventing it from spreading to other cities, would that mean it wasn't an insurrection?

Do Steve and others who advance similar reasoning believe Adolf Hitler's 1923 Beer Hall Putsch was as an insurrection? Like the January 6 attack, it lasted only about one day (evening of Nov. 8, 1923 to the evening of the following day), and was limited to a single city (Munich, the capital of the German state of Bavaria). The number of participants (several thousand; 1265 people have been charged with offenses related to the attack on January 6, and many other participants likely got away without being identified or charged) and the number of people injured was also similar to that of January 6.

There were somewhat more fatalities (21) in the Beer Hall Putsch. But 16 of them were participants in the coup (the others were four police officers and a civilian bystander). The Bavarian police and troops who put down the revolt were less restrained in their use of force than US law enforcement officers on January 6 (who only killed one of the attackers). That surely isn't a decisive difference between the two cases. More aggressive law enforcement action cannot by itself transform a mere "riot" into an insurrection.

It seems obvious that both the Beer Hall Putsch and the January 6 attack were insurrections, for the simple reason that both involved the use of force to illegally seize control of government power. It matters not how long they lasted, or that they were poorly planned and quickly put down. And it certainly doesn't matter that they both occurred in just one city.

There is an admittedly more difficult issue over the question of whether Trump "engaged" in the insurrection that occurred. I think the Colorado Supreme Court decision that the US Supreme Court will review dealt with that question persuasively. But Trump has a better argument on that point than on any other. His involvement, while substantial, was less clear and direct than, say, Hitler's in the Beer Hall Putsch or Lenin's in the Bolshevik revolt in Russia. But whatever might be said of Trump's level of involvement, there can be no serious doubt that an insurrection did occur.

UPDATE: I have made minor additions to this post.

UPDATE #2: Steve Calabresi responded to this post here. I have posted a rejoinder here.

The Supreme Court of Israel recently invalidated a controversial law limiting judicial "reasonableness" review of government policies. I previously wrote about the law here. To analyze the decision, we are pleased to publish a guest post by prominent Israeli legal scholar Professor Ronit Levine-Schnur. She is a faculty member at the Law Faculty, and co-head of the Center for Applied Research of Risks to Democracy, at Tel Aviv University. We are grateful to Prof. Levine-Schnur for taking the time to share her insights on this important ruling, especially during this difficult period in Israel's history.

The remainder of this post is by Prof. Levine-Schnur, not me (Ilya Somin):

In the course of one year, Israel—an intense country on a regular basis—has been pushed to its foundational limits. As a Jewish and democratic state, Israel's internal and external conflicts have always been extensive. But 2023 was a year beyond the worst expectations. The October 7 sudden and repulsive attack, massacre, and kidnapping of civilians by Hamas, were horrific which targeted Israel as a Jewish state, and Israelis as Jewish (although not all the victims were). It brought back living memories of the Holocaust. One of many stories to mention is of that Dr. Hayim Katsman, who was shot dead while hiding in a closet at his home in Kibbutz Holit, exactly 80 years after his ancestors in Poland were deported and killed at the Treblinka extermination camp. Unfortunately, the horrendous events of October 7 (and its aftermath) came after 9 demanding months of a wholly different kind of attack on Israel's democracy.

On January 4, 2023, Israel's newly sworn-in government, presented its plan for a "governmentality reform." This plan, for both its supporters and opposers, targeted the democratic nature of the Israeli state. The supporters, primarily represented by the Justice Minister, Yariv Levin, and the Head of the Parliamentary Constitution Committee, MK Simcha Rothman, argued that Israel's democratic character is undermined by the Supreme Court, the Attorney General, and other gatekeepers, who prevent the government from executing the "people's will" by putting restraints on its power. To fix this, and to strengthen Israel's democracy, so they claimed, they advanced 5 central amendments, all of which aim to weaken the grip and independence of the judiciary and the gatekeepers as a means that balance the power of executive.

In the eyes of many, the proposed changes were not democracy-enhancing at all. If approved, they argued, Israel would no longer be considered a democracy, as their adaptation would lead to an unrestrained government. Even before all these changes were to be enacted, the executive branch in Israel already possessed extraordinarily powers compared to most democracies. It effectively controls the parliament and its lawmaking agenda (including the enactment of basic laws, as will be explained below), and it lacks all the constraints and checks and balances that exist in the U.S. and many other constitutional democracies (such as an entrenched constitution, bicameralism, presidential veto, federalism, etc.).

The government's plan for reform was supposed to be implemented as statutory amendments to Israel's Basic Laws. The term "Basic Law" has no formal meaning under Israeli legislation. Israel has no written constitution, and in particular, there is currently no law that sets the rules for legislating and amending constitutional norms. There is no formal norm that differentiate the legislative procedure of ordinary laws and constitutional ones. This lack of formality is the result of a 75 year-long tradition of legislating portions of the emerging constitution as basic law, without this tradition itself being properly legislated. While for many years basic laws were enacted on broad consensus and were rarely amended, in the past decade there has been an ongoing deterioration of this practice, where the pace of amendments lost control and the custom of broad consensus was abandoned. Basic laws were now often used to solve concrete political issues.

As an illustration, the average rate of amendments between 2014 and 2022 stood at 4.75 changes a year, compare with less than 0.15 changes a year on average in the USA (since 1789). Moreover, basic laws were now enacted or amended based solely on the vote of ruling coalition members, hence, without a consensus which crosses the coalition-opposition lines. As Justice Amit commented: "the Israeli constitution is extremely flexible, almost spineless, in a way that allows it to win the floor gymnastics world championship for constitutions." Thus, if a presiding government utilizes its legislative powers it can, almost overnight, enact any basic law it aims, ostensibly, even if it leads to a severe harm to Israel's nature as a Jewish and Democratic state.

The five components of the government's plan included: 1. Granting the government an absolute control over the appointment of judges and justices to all courts. 2. Preventing judicial review of basic laws. 3. Preventing or severely limiting judicial review of regular Knesset legislation, and allowing the ruling coalition to "override" the effect of judicial review with its guaranteed majority in the Knesset. 4. Significantly diminishing the role of the Attorney General and government legal advisors as gatekeepers. 5. Preventing judicial review of the executive power of the government and its ministers based on unreasonableness grounds.

During the first 9 months of 2023, the government—who under the Israeli system controls the unicameral legislature (the Knesset)—pushed as hard as it could to legislate its reform. It faced, however, an unprecedented resistance, were for over 39 weeks, Israelis protested and disrupted as much as they could to the government's plan.

On July 24, despite the mass public protests, the objection of many legal, economic, military and other experts and former senior officials, and the decision of reservists in the air force and other units not to continue their voluntary military service if the law is amended, the "Unreasonableness Amendment" passed the second and third readings in the Knesset and became law. The law takes the form of an amendment to Section 15 of the Basic Law: The Judiciary. This section defines the jurisdiction of the Supreme Court sitting as a High Court of Justice to review governmental acts and decisions. According to the Amendment, no court of law, including the High Court of Justice, may consider and/or pass judgment on the reasonableness of any "decision" of the Cabinet, the prime minister, or any other minister; nor may a court give an order on the said matter based on its purported unreasonableness. The Amendment defines a "decision" as "any decision – including in matters relating to appointments, or a decision to avoid exercising any authority."

As the Israeli Law Professors' Forum for Democracy analyzed, the immediate danger of the Amendment is in the field of corruption, both in the use (or rather misuse) of public funds and in the field of government appointments and removal of officials from office. The principal immediate threat could be a government decision to dismiss the Attorney General who heads the state public prosecution, and to replace her with a lawyer who will be favourable to halting the prosecution of PM Netanyahu on charges of corruption. Another fear is that the Court will not be able to intervene in the refusal of the Minister of Justice to convene the Committee for the Selection of Judges. The more general danger, moreover, is that obliterating reasonableness as a legal standard would be seen by the government and its ministers as a general license to act unreasonably. The Amendment will weaken the power of legal advisers at all government levels to curb illegal, corrupt, and politically-motivated decisions. A principal tool for curbing such decisions and acts at the departmental level are legal advisors' warnings that such acts would likely be struck down by administrative courts on grounds of manifest unreasonableness. This crucial process of nipping institutional (as well as personal) corruption at the bud has now been eliminated, with no alternative mitigating measure instated in its place.

Indeed, the constitutionality of the Amendment was immediately put to test, and as the new year begun, the Supreme Court delivered its monumental decision, a first of its kind en banc case decided by all its 15 justices.

The Supreme Court faced the following questions:

Is the Knesset, as a constituent authority, limited in its powers to enact basic laws.
Assuming that the answer to the above question is affirmative, the following question is whether the court is authorized to conduct judicial review on basic laws, and whether it can determine that the Knesset exceeded its authority in enacting a basic law.
Assuming that the answer to the previous question is positive, the third question arises - did the Knesset deviate from its authority as a constituent authority in amending the "Unreasonableness Amendment," in a way that requires a declaration of the invalidity of the amendment. This question requires first to determine the correct interpretation of the amendment.

Of 15 justices, a majority of 13 ruled in the affirmative on the first two questions. Two other justices denied both the existence of limitations on the constituent power and the court's authority to review basic laws. Among the majority, there is some variation between the justices concerning the kind of limitations imposed on the constituent power, but they all agree that they are essentially concerned with Israel's nature as a Jewish and Democratic state. There is also some variation concerning the source of legitimacy for the court's power to conduct judicial review, but it essentially rests on either the "constitutional existentialist facts" or the Declaration of Independence, or on existing basic laws. Of the 13 justices, a few were more cautious than others in crafting the scope of review.

This caution is reflected in that of the 13 justices mentioned, eight found the Amendment unconstitutional and void, in that it cannot be reconciled with the principles of separation of powers and the rule of law, "which are two of the most important characteristics of our democratic system. Such an infringement to the very heart of our founding narrative cannot stand" (Ret. Chief Justice Hayut). Justice Amit clarified that the Amendment should be assessed given "the democratic deficit in which the country is, which lacks 'engines of democracy' that exist in many countries in the world and which contribute to the strengthening of the democratic foundation." Thus, the Amendment "steps in the opposite direction and further strengthens the power of the executive authority… such a blanket denial of unreasonableness as a ground for judicial review has a much higher specific gravity than in other countries."

Three other justices found that the Amendment could be interpreted in such a way that makes its effect on Israel's democratic character below the unconstitutionality threshold. Here the interpretation adopted by the justices—which limits the unreasonableness doctrine denied by the Amendment to a strictly limited component of it (the balancing test)— is tricky. Both during the legislative process and in oral testimony before the Court, MK Rothman clearly explained that the subjective intention of the legislator is to deny the doctrine all together. For the three justices, who are usually considered as conservative ones, it was extremely important to avoid the more drastic step of annulling a basic law. Adopting the narrow interpretation, contra to the explicit intention of the legislator, seems to contradict their (especially one of them – Justice Alex Stein) commitment to a more originalist mode of interpretation.

To conclude, in its decision, the Israeli Supreme Court declared the first component of the judicial reform as an unconstitutional constitutional amendment. More importantly, in this landslide decision, the Supreme Court not only announced the limits of the Knesset as a constituent assembly, but also effectuated these limits by clearly positing it can announce basic laws as unconstitutional and void. The decision raises, of course, many questions and dilemmas. It will inspire endless accounts and analyses. The only hope is that instead of leading to a further divide among Israelis it would do the opposite. After this annus horribilis, many conceptions should be rethought. A good starting point in strengthening Israel's democracy, is in creating a joint mechanism involving members of both coalition and opposition, that would prepare a basic law which determines how constitutional norms are to be enacted. This would allow us to put the current Court's decision in proper perspective: it was the unavoidable outcome of a longstanding failure to properly establish the institutions that hold Israel's democracy intact.

1/6/1964: New York Times Co. v. Sullivan argued.

Maria Kartasheva, a Russian migrant in Canada may be denied citizenship and potentially be deported because she was convicted of a "crime" back in Russia. What was her heinous offense? She wrote blog posts condemning Putin's invasion of Ukraine and war crimes committed by Russian troops there:

Federal officials are blocking a pro-democracy activist from Canadian citizenship because a Russian court convicted her for blog posts opposing Moscow's invasion of Ukraine.

Maria Kartasheva is appealing the decision by Immigration, Refugees and Citizenship Canada, and says she fears being deported to a Russian prison.

Kartasheva left Russia in 2019 because of rising authoritarianism, and is now a tech worker in Ottawa who co-founded a grassroots activist group for democracy in Russia….

Kartasheva, 30, learned via her family that in late 2022 she was charged by Russian authorities with a wartime offence of disseminating "deliberately false information" about Russia forces. The charges related to two blog posts she wrote while living in Canada.

Kartasheva notified Immigration, Refugees and Citizenship Canada about the charges and uploaded translated court documents last May. Days later the department gave her an invitation to her citizenship ceremony.

On June 7, 2023, she logged into the ceremony alongside her husband. In the pre-interview that takes place before someone is allowed into the ceremony room, they were asked if anyone had been criminally charged, as part of a list of standard questions.

When she explained what had happened, an official pulled her out of the ceremony, though her husband went ahead and was given his citizenship…..

Last month, the department sent her a letter, saying that her conviction in Russia aligns with a Criminal Code offence in Canada relating to false information.

Kartasheva's blog posts condemning the invasion of Ukraine and atrocities committed by Russian forces ran afoul of new draconian Russian laws criminalizing dissent on the war. A Russian court convicted her in absentia, and sentenced her to an eight-year prison sentence. Ironically, Elena Lenskaya - the judge who sentenced Kartasheva - is under sanctions by Canada, for her role in perpetrating human rights violations. Yet Canadian immigration authorities are relying on her decision in this case as a reason to deny citizenship.

There is much stupidity and downright evil in US immigration law and policy. But if Canadian authorities don't reverse this decision, it would be up there with some of the worst of ours.

If anything, Kartasheva's conviction for speaking out against the war should help her cause, not hurt it. Like the US, Canada has a law granting refugee or asylum status to people who have a "well-founded fear of persecution" for their political views. If anyone has such a "well-founded fear," it's a person who faces a lengthy prison sentence for speaking out against her government's war of aggression and atrocities.

Last year, Canada granted refugee status to a young Russian fleeing conscription into Putin's war. Kartasheva's case is at least equally worthy. And the idea that her conviction is a crime meriting denial of citizenship in a liberal democratic society is absurd.

Since the start of the conflict, I have been making the case that Western nations should open their doors to Russians fleeing Putin's regime, on both moral and strategic grounds. For some of my writings on this topic, see here, here, here, and here. But even those unwilling to go as far in this direction as I advocate should at least be open to accepting Russians who face persecution and imprisonment for speaking out against the war.

I consider myself to be a libertarian conservative with a Reaganite view of foreign policy. The Iowa Caucuses are now only ten days away, and it is appropriate to evaluate the merits of some of the Republican presidential primary contenders at this time given my viewpoints. I will comment on what I think are the strengths and weaknesses of each candidate given my own political philosophical perspective.

Donald Trump. Donald Trump was in many ways a very successful President, but the economic boom experienced during his presidency was significantly fueled by massive deficit spending and over-borrowing. Trump has a history as a businessman of driving his companies into bankruptcy and of being rescued by loans from the Deutsche-Bank that may well have come from his good buddy Vladimir Putin. A re-elected President Trump might very well drive the federal government into bankruptcy and that is something all voters should worry about. Vladimir Putin will not, and cannot afford to, bail out a bankrupt U.S. federal government.

I happen to think that Donald Trump should not be barred from 2024 election ballots. I also think the Jack Smith prosecution of Trump is unconstitutional. But, I do not think Trump should be re-elected President because of the way he behaved between Election Day 2020 and January 6, 2021.

The President has the high duty to take care that the laws be faithfully executed, and Trump failed to do this after he lost the 2020 presidential election. Trump badgered his own loyal Vice President Mike Pence to violate federal election law by denying the validity of electoral votes cast for Joe Biden in Pennsylvania, Wisconsin, Nevada, Arizona, and Georgia. Instead of taking care that the federal election laws be faithfully executed, Trump tried to bludgeon his own Vice President into violating them. When that did not work, Trump assembled a mob in front of the Ellipse at the White House and urged them to march on Capitol Hill and to "fight" to take our country back. As a direct result of the riot, which Donald Trump incited, five people died and more than one hundred were injured. For the first time in 234 years of American history, there was not a peaceful transfer of power following a presidential election.

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This afternoon the Supreme Court agreed to review the Colorado Supreme Court decision disqualifying Trump from appearing on the state's ballot in the 2024 presidential election, under Section 3 of the Fourteenth Amendment. The case will be heard on an expedited schedule, with oral arguments scheduled for February 8, a little over one month from now. The justices likely chose to hear the case quickly so as to make sure it gets resolved before we go too much further into the 2024 election cycle.

Significantly, the Court has not limited the questions presented. That means the justices could potentially consider the full range of issues raised by the case, including whether the January 6 attack on the Capitol qualifies as an "insurrection," whether Trump's actions amount to "engaging" in insurrection, whether the president is an "officer of the United States" covered by Section 3, whether Section 3 is "self-executing," whether it is a "political question," and whether Trump got adequate due process in the state court. There may be some additional procedural questions, as well. But perhaps the Court will issue narrowing questions presented before briefs are due.

Most observers expect the Court to overturn the Colorado decision. That might well happen; it may even be the most likely outcome. But I think many are underrating the likelihood that the justices will affirm the Colorado ruling. The latter is based on strong reasoning, including from an originalist point of view. And to the extent the justices may be motivated by reputational considerations, disqualifying Trump is the perfect opportunity for them to show once and for all that they are not adjuncts of the GOP and especially not the "MAGA Court." In my view, much of the left-wing criticism of the Court is wrong or over overblown; but my opinion is not what's decisive for the Court's public and elite standing.

Of course, I'm far from a perfect prognosticator of what the justices will do. We'll likely get a better sense of where they stand during the oral argument.

I assessed the Colorado decision (which I think is largely correct) here. I went over the issues at stake in the Section 3 litigation in more detail in this article (written before the Colorado decision). In a September Lawfare article, I addressed various pragmatic and moral concerns raised by disqualification, such as claims that it would be anti-democratic and might create a dangerous slippery slope.

From today's order in Trump v. Anderson:

The petition for a writ of certiorari is granted. The case is set for oral argument on Thursday, February 8, 2024. Petitioner's brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024. Respondents' briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, February 5, 2024.

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The case caption promises a mix of Bill & Ted's Excellent Adventure and Harold & Kumar Go to White Castle: The plaintiff styles himself "The Excellent Raj K. Patel, the Excellent from All Capacities" and the defendants are Patel and Kumar. But Wednesday's opinion in Patel v. Patel by Judge Laura Taylor Swain (S.D.N.Y.) reads like life in a household with two boys, with 15 extra years of age but not of development (to be fair, all we know about the defendant brother's actions are what the plaintiff brother alleges):

Plaintiff … filed this complaint against his brother … and his brother's wife, … and sets forth the following factual allegations.

Since watching Gangubai Kathiawadi, a 2022 Bollywood movie, Neal [defendant] has called Raj [plaintiff] "gangu" and "ganglia" a name of a child prostitute who become the madame of the facility, starting from existing the movie theater.

Raj left Neal at the restaurant they were eating at after the movie because Neal could not stop calling him the name. Raj and Neal's parents picked Neal up.

On May 17, Neal called me that, and I told him not to call me that again in writing.

On Thursday, June 8th when Neal arrived from New York to Indianapolis, as soon as he entered into my motel room he said "sup, gangu" or "sup, ganglia."

Patel has been suffering from stress, markedly since December 2017.

I demanded an apology from Neal which he has failed to give….

I had initially sent Neal a demand with a draft complaint to stop calling me this on June 12.

Neal visited Indianapolis after June 12th …, and he walked into my room earnestly and said, "what's up, ganga."

Free Speech Libel

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An excerpt from a long report and recommendation released Wednesday by Magistrate Judge Ona Wang (S.D.N.Y.) in Cassava Sciences, Inc. v. Bredt; for more details, read the whole opinion:

At various dates in 2021, the Neuroscientist Defendants filed a Citizen Petition and sent publicly available letters to the Food and Drug Administration ("FDA") expressing "grave concerns about the quality and integrity of the laboratory-based studies surrounding" simufilam {a [Cassava-developed] drug intended to treat Alzheimer's disease} and claims about its efficacy. The Neuroscientist Defendants accuse Drs. Burns {Cassava's Vice President of Neuroscience} and Wang {Associate Medical Professor at the City University of New York … and Cassava's "academic collaborator"} (and others) of intentional data manipulation and misrepresentation in Cassava's preclinical and clinical studies, and request that the FDA halt the ongoing trials of simufilam pending an audit of these issues….

The inference the Neuroscientist Defendants draw after examining the data and empirical research is not that "Cassava is a fraud" or even that "simufilam is not effective," which would have been analogous to the statements [given as examples in a past Second Circuit precedent -EV]. Rather, the Neuroscientist Defendants drew a more measured and nuanced series of inferences from Cassava's own underlying research, on which Cassava relies to support clinical testing of simufilam in humans: namely, that the research may be unreliable, based on certain irregularities in the reporting of data in the research.

Numerous press releases and basic science papers are attached and incorporated into the [Complaint], as if all of these statements, taken together, could be sufficient to "prove" Cassava's scientific conclusions to be true (or not). This is part of the "ongoing discourse" referenced in [the precedent] that courts should avoid. Indeed, the parties' repeated filings concerning CUNY's subsequent investigation (and its results) are irrelevant to this analysis. Rather, the fact of the investigation, conducted well after the Neuroscientist Defendants raised their concerns, shows that these statements are also not yet verifiable.

Free Speech Libel Science

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case: In North Carolina, it is illegal for state-certified paralegals to provide advice to residents on how to fill out standard, court-created forms to resolve common legal problems, leaving low- and moderate-income residents to navigate the legal system on their own. But legal advice (both free and paid) is speech. And if the state wants to ban speech, it has to show it has a good reason—one that doesn't pale in comparison to the crisis in unmet legal needs.

1/5/1931: O'Gorman & Young, Inc. v. Hartford Fire Insurance Co. decided.

Earlier today, the Federalist Society held a "Seat at the Sitting" online forum covering several cases the Supreme Court is about to hear. I participated, discussing two important takings cases: Devillier v. Texas (in which I have submitted an amicus brief) and Sheetz v. County of El Dorado. A full list of the participants and the cases covered is available here.

The panel featured several perspectives you might not expect at a Fed Soc event. Prof. Christopher Walker (U of Michigan) argued that the Supreme Court should decline to abolish Chevron deference to administrative agencies in Loper Bright Enterprises v. Raimondo. Mark Rienzi (Becket Fund for Religious Liberty) argued the government should not get deference in a case challenging the placement on the "No Fly List" of a Muslim suspected of ties to a radical mosque. And Grover Joseph Rees, III, former General Counsel of the U.S. Immigration and Naturalization Service in a GOP administration, argued the pro-immigration side likely deserves to prevail in Campos-Chaves v. Garland, case addressing the question of whether migrants received adequate notice of deportation proceedings.

I have embedded the video below. My presentation begins around 55:20:

Politics

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Given my background and views, I should be highly sympathetic to the positions laid out in economist Bryan Caplan's new book You Will Not Stampede Me: Essays on Non-Conformism (he summarizes the main themes of the book here). I'm a fan of Bryan's previous books on voter ignorance, immigration, and education (despite a few reservations about the latter). In addition, I'm a libertarian (a somewhat less radical one than Bryan, but more so than about 95% of Americans), an atheist (also like Bryan), author of a book on why majority views on political issues are often wrong because of systematic ignorance and bias, and an advocate of many unpopular views. People who know me well will tell you that I'm more likely than the average person to violate various social norms.

If anyone is a receptive audience for Bryan's new book, it would be someone like me! And I do indeed agree with a lot of it. For example, he gives excellent explanations of why many commonly held views are likely to be wrong. Bryan also effectively explains how you can often get away with non-conformism while suffering few or no social or economic penalties. On many issues, most conformists are unwilling to devote great time and effort to enforcing conformity! Indeed, doing so might get them branded as annoying fanatics, which is itself a kind of non-conformism that true conformists generally try to avoid.

For example, polls show that we atheists are an unpopular group. But, as Bryan explains, in most middle to upper-middle-class circles in the modern US, there are few or no costs to being an open atheist. That is similar to my own experience, as well. Though admittedly things would be different if I were running for political office, and possibly if I lived in a highly socially conservative Bible Belt area.

There are many other good points in Bryan's book, as well. But I think he and some other advocates of non-conformism may underrate some key arguments for - limited, but still substantial - conformity.

One is that conformism often makes good sense on questions you don't care much about. For example, I'm skeptical that moving towards gender-neutral language is a good idea, or that it does much to reduce sexism. But I don't actually care much about the terminology in question, and therefore usually go along with majority intellectual trends on these matters. I figure it's better to conform and thereby avoid unnecessarily alienating people, than to make a stand on a hill I don't care much about. Situations like this come up often. Bryan implicitly recognizes this when he recommends conformity in a few situations where the cost of non-conformity is high, and the benefit low. But he doesn't generalize the point - at least not clearly.

A more substantial problem is the possibility that some widely held norms and traditions might embody valuable wisdom, even if modern non-conformists don't understand why. This, of course, is the longstanding "Burkean conservative" argument for adhering to tradition.

The standard critique of Burkean conservatism is that history shows many longstanding, widely accepted traditions were horrifically wrong: slavery, serfdom, the subordination of women, persecution of religious dissenters, and more. This litany undermines the case for unthinking adherence to tradition, as a general rule. But there might be some categories of norms and traditions that deserve more deference than others. Back in 2008, I argued that Burkean conservatism is a poor rule when it comes to coercively imposed norms, including many of the familiar examples of awful traditions, such as slavery. The same can be said for many that are the result of the imposition of majority public opinion in a democracy. The work of many scholars -including both Caplan and myself - shows that majority opinion on political issues is often heavily influenced by ignorance and bias, and that voters have little incentive to seek the truth and correct wrong opinions.

That doesn't prove democracy is worse than dictatorship or oligarchy. But it does mean we should give little credence to the idea that political views are likely to be right merely because they are supported by a majority of voters and embraced by candidates who win elections.

On the other hand, however, social norms that emerge from market processes or civil society are more likely to be well-founded. In such situations, people "vote with their feet" and thereby have more incentive to get things right. That's no guarantee of infallibility. Far from it! But it does suggest a stronger case for deferring to rules and social norms that emerged in this way. If your workplace, your church, or your social circle has certain norms of behavior and civility, there's at least a substantial likelihood they make good sense, even if you may not understand why. Otherwise, these institutions would lose members, workers, and customers to rivals with better rules and traditions.

That's far from a guarantee of infallibility. But it does justify giving at least some substantial deference to norms in these situations. That's especially the case if you're new to the institution and have little knowledge of how it works, and what purposes its rules and norms might serve. The relevant comparison is not between the norm and perfection, but between the quality of the decision-making process that led to the norm, and the quality of your own judgment on the issue in question.

Finally, sometimes it makes sense to conform to the views of experts - at least in cases where there is a relatively broad consensus among the relevant experts, and they have relatively good incentives to seek the truth. I summarized the justification - and limits - of this kind of deference here, and more fully in a book chapter on "Trust and Political Ignorance."

Experts are far from infallible, and we should keep in mind biases and poor incentives that make them unreliable in some situations (as well as the tendency of many of them to opine on issues that are actually beyond their expertise). But we should also remember there are important issues on which experts' views are more likely to be reliable than those of laypeople. In those situations, a degree of conformist deference makes sense.

Even in situations where it makes sense to defer to tradition, norms, or experts, such deference should not be absolute. The case for deference could be outweighed by a large amount of contrary evidence, or moral considerations. But the burden of justification for going against "the herd" in such cases is higher than in areas where there is little reason to think that herd has any special wisdom or insight.

Some of these points are likely compatible with Bryan Caplan's views, laid out in his book. But he doesn't systematically incorporate them as limitations on his general (and often justified!) opposition to conformism.

They are also worth keeping in mind if you are the kind of person who views norms and traditions with suspicion. I am like that myself. Whereas the average person may tend towards excessive conformism, intellectuals - especially those who hold many unpopular views - may have the opposite bias. Such people are likely overrepresented among academics, political commentators, and possibly even readers of this blog.

[This post is co-authored with Seth Barrett Tillman]

Recently, James Heilpern and Michael T. Worley (the "Authors") posted an article to SSRN titled Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment. The Authors conclude that our position is incorrect. Their Article cites an "undeniable urgency" to answer this question. As often happens in anticipation of, and during fast-paced litigation, people who have no prior expertise in an area profess an immediate expertise, and make bold conclusions with the intent of influencing that litigation. This may be one such paper. For reasons we discuss below, Justices and judges, lawyers, scholars, and the press should exercise caution before citing this paper.

From yesterday's decision in Killebrew v. Gardner (opinion by Judge James Gardner Colins, joined by Judges Judith Ference Olson and Victor P. Stabile):

Father and Mother were married for a period of less than two years and had separated prior to Child's birth. On March 6, 2014, Father filed an initial custody complaint seeking shared legal and physical custody. On April 7, 2014, the trial court entered an order providing that the parties would share legal custody and Father would have partial physical custody on Tuesday and Thursday evenings and every other Sunday. Father's custody periods were expanded in orders dated October 17, 2014, and January 29, 2015, allowing Father to have Child overnight every other Thursday and one Saturday night per month. Father's partial custody was expanded again on December 9, 2015, to alternating two or four nights per week, and this allocation of custody continued, in substantially similar form, through a series of orders entered prior to 2020.

On January 27, 2020, Mother filed a petition for modification of custody order, alleging that Child was involved in two automobile crashes while being driven by Father's wife …. At a February 25, 2020 hearing on this petition before a hearing officer, Father presented evidence that Mother had posted sexually explicit photographs of herself on the "OnlyFans" website {"a subscription-based website that allows content creators to share sexually explicit materials with their fans, after engaging in direct messages and other interactions, for a fee"}. Father also informed the hearing officer that he had made a ChildLine [suspected child abuse] report concerning Mother's behavior.

On February 26, 2020, the trial court issued an order, upon the recommendation of the hearing officer, providing that Mother would have no contact with Child pending a scheduled forensic interview with Child. In the event that the forensic interview revealed that Child had no awareness of Mother's OnlyFans activity, the order authorized supervised telephone communication with Mother and Child but no in-person contact pending a future court order. Alternatively, if Child did indicate awareness of such activity, then Mother would be permitted no contact with Child at all. The order further provided that Mother was required to delete her OnlyFans account and submit to a psychological evaluation and follow any recommendations provided to her in that evaluation.

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From Levy v. Shuster (né Doe v. Roe), handed down Nov. 28 but just unsealed yesterday, following the expiration of plaintiff's time to appeal:

Background. According to the allegations in the First Amended Complaint and Jury Demand …, Plaintiff and Defendant dated for nearly a year while enrolled at Tulane University … in New Orleans, Louisiana. After their relationship ended in October 2021, Defendant complained about Plaintiff's behavior to Tulane, which issued mutual no-contact orders the next month. Defendant also sought a protective order in Louisiana state court, claiming that Plaintiff stalked, harassed, shoved, and threatened her. In both proceedings, Defendant did not claim that Plaintiff sexually assaulted her. Plaintiff and Defendant agreed to a state court order, pursuant to which Tulane's no-contact order became permanent, and Plaintiff agreed to withdraw from Tulane and cease all contact with Defendant. Plaintiff alleges that he never sexually assaulted Defendant, and that he left Tulane voluntarily.

In August 2022, following a "period of reflection," Plaintiff enrolled in Front Range Community College in Boulder, Colorado, although he planned to transfer to the University of Colorado ("CU Boulder") after his first year there. At CU Boulder, Plaintiff rushed and sought to pledge an unspecified fraternity, and paid its dues. Shortly after the fraternity received his bid in September 2022, Defendant sent text messages to the fraternity's social chairs claiming, among other things, that Plaintiff transferred schools "not through his own choice, but because he was kicked out of Tulane for rape and stalking"; "sexually assaulted and raped [Ms. Shuster] countless times"; "forced [Ms. Shuster] into very uncomfortable sexual situations, forcing [her] to do painful things which [she] objected to"; "was abusive in every way"; "ha[d] been physically violent with [Defendant]"; "threatened [Defendant's] friends and family and attempted to cut [her] off from every person in [her] life"; and was "a threat to every woman's safety on [CU Boulder's] campus."

The fraternity "terminated" Plaintiff immediately, based on Defendant's allegedly defamatory claims, and refused to refund a deposit he paid. Plaintiff's college friends "cancelled him." Additionally, fraternity members "spread Ms. Shuster's malicious lies to numerous other students on campus, who proceeded to bully and ostracize Mr. Levy." Plaintiff was ultimately "forced to withdraw" from CU Boulder "and return home to California." Meanwhile, Defendant has returned to Tulane, where she continues to "publish[] her false and malicious lies to numerous students there." Seeking damages, Plaintiff has brought three claims arising out of these allegations: defamation, intrusion on seclusion, and unreasonable disclosure of private facts. Ms. Shuster has filed counterclaims for sexual assault, rape, battery, assault, stalking, cyberstalking, intentional infliction of emotional distress, and statutory violations under state and federal law..

The Court denied Mr. Levy's initial motion to prosecute this action pseudonymously on July 17, 2023, reasoning that, as Ms. Shuster and Professor Volokh [who had filed an objection to the motion] contended, no exceptional circumstances supported pseudonymity.

I wrote about that July 17 decision here. Plaintiff then sought reconsideration, but the court said no:

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