"Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so."
Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 145–46 (2011).
Yesterday, I wrote about lawsuits against AI companies claiming that they are knowingly or recklessly publishing, through their software, false and defamatory statements. Today, I'll start on the discussion of similar negligence claims.
[* * *]
[1.] Responsibility for the equipment a company uses
Say that R.R. is a private figure, and can show that the statements about him have caused "actual injury," in the form of "out-of-pocket loss" or emotional distress stemming from damage to reputation.[1] (Perhaps R.R. lost a contract that he was expecting to get, and it eventually came out that the reason was that the other party had looked up his name in ChatGPT.) Or say he can show that the statements about him are on a matter of "private concern" for libel purposes. Can he sue OpenAI, even in the absence of any specific notice to OpenAI that its output was defamatory?
I think so. A business is generally potentially responsible for harms caused by the equipment it uses in the course of business, at least when it negligently fails to take reasonable steps to minimize the risks of those harms. (As I'll turn to shortly, it's also potentially responsible for harms caused by products it sells, though right now AI companies actually directly provide access to the AI software, on their own computers.)
If a company knows that one of its machines sometimes emits sparks that can start fires and damage neighbors' property, the company must take reasonable steps to diminish these risks, even if it didn't deliberately design the machines to emit those sparks. If a company knows that its guard dogs sometimes escape and bite innocent passersby, it must take reasonable steps to diminish these risks (put up better fences, use stronger leashes, train the dogs better).
No, said the Florida Court of Appeal, interpreting the Florida statute; the California Supreme Court, interpreting the California statute, had held otherwise.
Say Paul sues Don, claiming that Don libeled Paul. Don might be in the right, and he might eventually win—but it may take a lot of time and a lot of money. As a result, the Dons of the world will often settle, and agree to take down or retract their statements; the threat even of legally unfounded litigation might silence them.
Because of that, many states have enacted anti-SLAPP statutes, which (generally speaking) make it easier for defendants to quickly dispose of cases brought based on speech on matter of public concern. (The statutes are often raised in response to libel claims, but they also apply to other speech-based claims.) The statutes often have some mix of the following features:
A right to move to get the case promptly dismissed.
A stay of factual discovery while the motion is being considered.
Immediate appeal if the court denies the motion to dismiss.
Payment by plaintiff of the defendant's legal fees if the defendant wins the motion.
The plaintiff can respond to the motion by arguing that he has a legally viable claim. (Generally speaking, at this point, before discovery, the court doesn't consider any factual disputes, but focuses on the legal issue.) But if plaintiff's claim proves not to be legally viable, defendant wins quickly.
These statutes have often raised lots of interesting legal questions of their own, including whether governmental defendants can bring the same anti-SLAPP claims, if they are sued based on their speech. The California Supreme Court, for instance, held that governmental defendants are indeed entitled to bring anti-SLAPP motions (Vargas v. City of Salinas (Cal. 2009)), but today the Florida Court of Appeal interpreted the Florida statute differently (in Crosby v. Town of Indian River Shores, written by Jeffrey Kuntz and joined by Judge Dorian Damoorgian):
There's long been a dispute about whether religious freedom provisions limit the government's power related to religious sites on government land. These are usually American Indian sites, though in principle they might be other religious sites as well.
In Lyng v. Northwest Indian Cemetery Protective Ass'n (1988), the Court held that the Free Exercise Clause doesn't give religious groups the legal right to stop various government activities related to such sites (even though at the time, after Sherbert v. Verner but before Employment Division v. Smith, the Court had read the Free Exercise Clause as securing a presumptive right to religious exemptions from generally applicable government action). But one enduring question has been whether the Religious Freedom Restoration Act of 1993 should be read as perpetuating Lyng, alongside other Sherbert-era precedents, or should be read as superseding it. (See my Intermediate Questions of Religious Exemptions, pp. 652-56 for more on some related matters.)
In any event, this issue is now up before the Ninth Circuit en banc, which heard argument last week on it in Apache Stronghold v. U.S. (see, e.g., this Deseret News article [Kelsey Dallas]); the panel had ruled, 2-1, against the religious freedom claims, but the Ninth Circuit agreed to rehear the case en banc. My colleague Gene Schaerr at Schaerr | Jaffe LLP, at which I'm a part-part-part-time Academic Affiliate, represents the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, the Sikh Coalition, and Protect The 1st as amici in the case.
In any event, Gene kindly put together an item on the case and the oral argument, which I'm passing along below; I'd be glad to add contrary views as well (and you can see some in the panel majority opinion):
Last week, the Ninth Circuit held a lively en banc oral argument in Apache Stronghold v. United States—a case raising crucial questions of religious freedom law and, most importantly, statutory interpretation.
The case focuses on an indigenous sacred site called Chi'chil Biłdagoteel, or Oak Flat, which has been sacred to Western Apaches since before European contact and remains the site of key religious ceremonies that, according to Apache belief, can't take place elsewhere. The federal government has proposed transferring Oak Flat to a private company for a copper mine, which would swallow the site in a massive crater, ending the Apaches' religious exercises there forever. The question is whether destroying the sacred site and ending the Apaches' religious practices "substantially burdens" their religious exercise under the Religious Freedom Restoration Act (RFRA).
The answer under RFRA's text seems obvious: ending a religious exercise forever "substantially burdens" it. As then-Judge Gorsuch explained, when the government doesn't just penalize a religious exercise, but "prevents the plaintiff from participating in" it—as by not accommodating the practice in prison—the government "easily" imposes a "substantial burden."
At oral argument, however, several Ninth Circuit judges wrestled with whether this commonsense textual argument should carry the day. Their questions centered on three areas of broad significance to the law of religious freedom and statutory interpretation.
It was almost twenty years ago that Barbra Streisand filed a lawsuit that attempted to block access to a photograph of her oceanfront estate, bringing unwanted attention to the photo and leading to her being enshrined by Techdirt's Mike Masnick in tech/legal terminology as the progenitor of "the Streisand Effect."
Now we have Cooley v. Foreman.
Several police officers executed a search warrant at the home of a musician named Joseph Edward Foreman, who performs under the name "Afroman." Outraged by what he considered rough treatment of his possessions and the lack of justification for the search, he created two songs about the raid and recorded them in music videos, consisting mainly of footage of the search, entitled "Will You Help Me Repair My Door" and "Lemon Pound Cake" (to the tune of "Under the Boardwalk"). He also posted images on social media of the officers who conducted the search and printed Tshirts and other merchandise containing photos of the police officers and of the judge who had signed the search warrant, bitterly complaining about the officers' conduct in searching his house and asking that the judge be voted out of office. He promoted these to his fans who, it appears, responded eagerly.
The Alliance for Hippocratic Medicine's lawsuit seeking to force the Food and Drug Administration to revoke its approval of mifepristone, a widely used abortion medication, has received significant attention. (I've blogged on administrative law issues in the case here and here.) Less attention has been made to a parallel lawsuit filed by Demoratic state attorneys general seeking to force the FDA to move in the opposite direction.
Lawyers representing the FDA are expected in court on Tuesday to defend the agency's authority to place certain restrictions on mifepristone, which is typically used to end a pregnancy during the first 10 weeks. The case before the U.S. District Court for the Eastern District of Washington was brought by more than a dozen Democratic state attorneys general who say the requirements around the drug, including a certification process for anyone prescribing it, place an undue burden on patients and providers. . . .
Oregon Attorney General Ellen Rosenblum is co-leading the lawsuit with Ferguson, and they are joined by the Democratic attorneys general representing Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Rhode Island and Vermont.
The pill restrictions, the group claims, are burdensome for both patients and doctors and the documentation requirements put them at risk for harassment or violence.
Interestingly enough, this lawsuit faces some of the same administrative law obstacles as does the AHM suit. As the Justice Department points out in its brief, the state AGs failed to administratively exhaust their remedies before filing suit (such as by filing a petition calling upon the FDA to alter its regulation of mifepristone). Moreover, it is not clear how the state AGs have standing to raise their claims at all. The state AGs' claims that their states are harmed by the maintenance of restricitons on prescribing mifepristone rest on speculative claims about the effect of such restrictions.
Another problem with the state AGs' suit is that it is ostensibly challenging the mifepristone restrictions adopted by the FDA in January 2023, but those restrictions represented a loosening of the FDA's restrictions on mifepristone. Accordingly, vacating the January 2023 policies would result in the reimposition of those restrictions previously in force, which would be more burdensome and thus do more harm to the interests the state AGs purport to represent.
As I understand it, this lawsuit was filed to try and blunt the impact of AHM v. FDA, either by creating a conflicting court order or nationwide injunction that would keep mifepristone on the market or merely by creating a circuit split on the question. Yet whatever the motivation of the suit, it seems to me it should founder on some of the same administrative law grounds that could frustrate the AHM case.
From today's Second Circuit decision in Greer v. Fox News Media, by Judges Barrington Parker, Gerald Lynch, and Raymond Lohier:
Steven Eric Greer, proceeding prose, appeals from a … [judgment] dismissing and denying leave to amend his claims of unfair competition, unjust enrichment, misappropriation of "hot news," defamation, tortious interference with contractual relations and with prospective economic advantage, and intentional infliction of emotional distress against various news organizations and individuals. Greer primarily claims that the defendants used his news tips without compensating or crediting him, and that they also defamed him by "blacklisting" him from the news media industry….
"Section 301 of the Copyright Act expressly preempts a state law claim only if (i) the work at issue 'come[s] within the subject matter of copyright' and (ii) the right being asserted is 'equivalent to any of the exclusive rights within the general scope of copyright.'" … [B]oth unfair competition claims "grounded solely in the copying of a plaintiff's protected expression" and unjust enrichment claims satisfy the general scope requirement.
As to the first requirement, citing Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC (2019), Greer argues that his unfair competition and unjust enrichment claims are not preempted because they concern unprotectable ideas from blogs and emails, rather than reproduced portions of books, and therefore fall outside the subject matter of copyright. We disagree. The subject matter of copyright encompasses ideas expressed in "'any tangible medium,'" including blogs and emails. And although copyright protection "does not extend to an idea," we have explained that where "the ideas that are the subject of the claim were fixed in writing—whether or not the writing itself is at issue—the claim is within the subject matter of copyright" for purposes of preemption. So even if we assume that the "factual content" in Greer's blogs and emails is itself "uncopyrightable," expressing that content in a blog, email, or other tangible medium nonetheless brings it within the subject matter of federal copyright law….
We also affirm the District Court's judgment insofar as it dismissed Greer's misappropriation of "hot news" claim because Greer failed adequately to allege the basic elements for such a claim, namely: (1) that he gathered "time-sensitive" information, (2) that he was in "direct competition" with the defendants, and (3) that the defendants' "free riding" on his efforts to collect information "substantially threaten[s]" the "existence or quality" of his journalism. Nat'l Basketball Ass'n v. Motorola Inc. (2d Cir. 1997).
The Appellate Court of Maryland rules that the rights of the victim's family must be respected in any process that could vacate Mr. Syed's conviction—an important precedent that crime victims' rights are enforceable.
Yesterday the Appellate Court of Maryland enforced crime victims' rights in a high-profile case involving Adnan Syed, the subject of the "Serial" podcast. In a 2-1 decision, that Court ruled that the trial court needed to respect the rights of Young Lee, brother of Hae Min Lee (the victim), to have been notified of and to have attended a hearing last September when the trial judge vacated Mr. Syed's conviction for murdering Ms. Lee. This decision is an important milestone, signaling that crime victims' rights are becoming an enforceable part of our nation's criminal justice architecture.
Most readers are aware of the "Serial" podcast, which cast doubt on the reliability of Mr. Syed's convictions in 2000 for (among other things) the 1999 murder of 17-year-old Hae Min Lee. In 2003, the Maryland Court of Special Appeals affirmed his conviction. In 2010, Mr. Syed filed a petition for for post-conviction release, arguing ineffective assistance of counsel. Ultimately, after extended evidentiary and other hearings, the Maryland Court of Appeals affirmed Mr. Syed's conviction. The U.S. Supreme Court denied certioari. At the time, Maryland Attorney General Brian Frosh responded to news of the high court's decision by saying the evidence linking Mr. Syed to Ms. Lee's death was "overwhelming."
Then, several years later, in September 2022, Baltimore State's Attorney Marilyn Mosby filed a motion to vacate Mr. Syed's convictions under Maryland's vacatur statute. The motion argued that prosecutors had failed to disclose evidence to the defendant that other suspects might have been responsible for the murder. That motion was questioned by many observers, who noted that Mosby acted precipitously as she was about to face trial on federal fraud and perjury charges. (The federal charges against Mosby remain pending; recently her defense attorneys were permitted to withdraw from the case after being accused of violating court rules.) The judge who presided over Mr. Syed's trial also provided an affidavit stating that substantial evidence supported Mr. Syed's conviction. But because the State was moving to set aside Mr. Syed's convictions--and Mr. Syed obvious agreed—it was not clear who was defending the conviction. After a hearing, the Circuit Court for Baltimore City granted the motion.
Ms. Lee's brother, Young Lee, appealed the vacatur, arguing that he (a crime victim's representative) had not been given adequate notice of the vacatur hearing or a meaningful opportunity to be heard on the merits of the vacatur motion. The prosecutor had provided only one business day's notice, via email, to Mr. Lee. Mr. Lee, through counsel, requested a postponement of seven days so that he could arrange to take leave from work and fly from California to be present in the courtroom. The trial court denied the requested postponement but permitted him to give a statement on Zoom—with only thirty minutes to prepare. The Appellate Court concluded this was not adequate notice:
Clearly, notice to a victim in California that there would be a hearing in Baltimore a minute later would not be sufficient to comply with the statutory objectives, a point which Mr. Syed's counsel conceded, appropriately, at oral argument. Similarly, the State's notice here, an email [on Friday] one business day before the hearing on Monday, September 19, 2022, was not sufficient to reasonably allow Mr. Lee, who lived in California, to attend the proceedings, as was his right.
The inadequate notice also interfered with Mr. Lee's right to attend the proceeding, even though he was allowed to participate via Zoom:
We hold that in the circumstance where, as here, a crime victim or victim's representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim's right to attend the proceeding. Allowing a victim entitled to attend a court proceeding to attend in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect.
The Court then considered the appropriate remedy for these violations of crime victims' rights. Read More
I thought this would be a good fit with Motherland, by Zemfira, which I blogged two weeks ago. It was originally written by Yevgeniy Kliachkin, about the 1970s Jewish emigration; but this cover is by Boris Grebenshchikov, one of the founding fathers of Russian rock and a major Russian musical figure. Grebenshchikov, a critic of the war, himself recently left Russia, which makes the song especially resonant, I think. Here's a doubtless imperfect translation of the lyrics:
Farewell I say to the country, where
I lived a life, I can't figure out whose
And for the last time, while I'm still here
I drink this air like wine.
But I carry no blame, my land
I'm not the worst of your sons
If you say you must be the center of our love
Let me decide for myself what should be the center
Several countries use the currency "dinar." Almost all are majority Muslim (e.g., Algeria and Jordan). One is not majority Muslim; what is that country?
AI programs' output should be as protected by the First Amendment as the output of the New York Times. To be sure, the AI programs aren't engaged in "self-expression"; as best we can tell, they have no self to express. But the programs' output is, indirectly, the AI company's attempt to produce the most reliable answers to user queries, just as a publisher may found a newspaper to produce the most reliable reporting on current events.[1] That this is done through writing algorithms rather than hiring reporters or creating workplace procedures shouldn't affect the analysis.
And in any event, regardless of whether any speaker interests are involved in an AI program's output, certainly readers can gain at least as much from what the program communicates as they do from commercial advertising, corporate speech, and speech by foreign propagandists. Those three kinds of speech have been held to be protected in large part because of listener interests;[2] AI-mediated output should be as well. (Commercial advertising is less protected than other speech, especially when it is false or misleading, but this stems from other features of commercial advertising, not from the fact that it's justified by listener interests.[3])
Nonetheless, even if an AI program's output is like a newspaper's output, the AI company would still be potentially exposed to libel liability:
The company could be liable if it knows certain statements the program is communicating are false and defamatory (or if it knows they are likely to be so but recklessly disregards that possibility).[4]
If the program communicates something false and defamatory about a private figure on a matter of public concern, and the company is negligent about this, then it could be liable for proven harm to the private figure.[5]
If the program communicates something on a matter of private concern, then the company could potentially be strictly liable, though practically speaking almost all states require a showing of negligence even in private-concern cases.[6]
In this post, let me turn to a knowing-or-reckless-falsehood theory, under category 1; I'll deal with negligence claims in a later post.
Apparently jealous of all the attention that Yale and Stanford law students have gotten for acting like imperious children, Columbia law students, represented by BALSA, LALSA, NALSA, EWOC, OutLaws, QTPOC, IfWhenHow, APALSA, and SALSA (no, I'm not familiar with all of these acronyms), have been throwing a collective hissy fit. The act that stirred such emotion? Columbia's Instagram account noted that a group of law students affiliated with the Federalist Society met with Justice Brett Kavanaugh in DC. You can read the details at the Daily Wire.
The students' only tangible complaint, at least judging by the article, is that Kavanaugh was "credibly accused" of sexual assault. It's been over four-and-a-half years since the allegation of misbehavior over 30 years earlier surfaced. Since then, no one, including those who were present at the time, has corroborated the initial allegation, nor, despite the best efforts of ambitious journalists, has anyone been able to substantiate any similar behavior by Kavanaugh in the ensuing almost-forty-years. It's time to give up on the word "credibly" in this context. (And, fwiw, I'm pretty sure that the students would react differently to news of a meeting with a particular former president who is truly "credibly accused" of sexual coercion. Hint: his initials are WJC.)
The majority view in the states is that "One who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to liability to the other although no special harm results from the publication."[1] To have a case, then, a plaintiff need not prove any particular financial loss. The First Amendment limits this doctrine in private figure/public concern cases that are premised on a showing of mere negligent falsehood (as opposed to reckless or knowing falsehood): In such cases, some showing of damage to reputation, and consequent financial loss or emotional distress, is required.[2] But in cases brought based on speech on matters of private concern, or in cases where reckless or knowing falsehood is shown (more on that below), damages need not be shown.
An unusual coalition of liberal and conservative justices rules that property owners have right to use Quiet Title Act to contest federal intrusion on their land, even in some cases where the statute of limitations may have passed.
Wil Wilkins, one of the plaintiffs in Wilkins v. United States (courtesy of Pacific Legal Foundation).
Today, the Supreme Court issued its opinion in Wilkins v. United States, a highly technical procedural case that may turn out to be a significant victory for property owners, particularly those in Western states where the federal government owns large amounts of land. The ruling is a 6-3 decision featuring an unusual coalition of justices in the majority: the three liberals joined conservatives Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh. Clarence Thomas wrote a dissent joined by Chief Justice John Roberts and Samuel Alito.
The plaintiffs, Wil Wilkins and Jane Stanton, own homes near the Bitterroot National Forest in Montana. The National Park Service owns a longstanding easement over the land which allows it to grant access to private parties engaged in logging on the National Forest. In 2006, the Forest Service put up a sign stating that the road through the plaintiffs' land is open to general "public access." This greatly increased traffic through the area, and disturbed Wilkins and Stanton. They filed an action against the federal government under the Quiet Title Act, which authorizes landowners to make claims protecting their property rights against federal intrusion. But the government claims they failed to do so within the 12 year statute of limitations under the Act.
The lower court ruling concluded that the time limit is an absolute "jurisdictional" rule, and therefore isn't subject to constraints or limitations. Today, the Supreme Court reversed that ruling, and instead concluded that the time-bar is a just a " a nonjurisdictional claims-processing rule," which the plaintiffs might be able to get around (possibly on the ground that the government failed to properly raise the issue) or prove they didn't really violate.
Here's a key excerpt from Justice Sonia Sotomayor's majority opinion:
"For purposes of efficiency and fairness, our legal system is replete with rules" like forfeiture, which require parties to raise arguments themselves and to do so at certain times….Jurisdictional bars, however, "may be raised at any time" and courts have a duty to consider them sua sponte.… When such eleventh-hour jurisdictional objections prevail post-trial or on appeal, "many months of work on the part of the attorneys and the court may be wasted…"Similarly, doctrines like waiver and estoppel ensure efficiency and fairness by precluding parties from raising arguments they had previously disavowed.
Because these doctrines do not apply to jurisdictional objections, parties can disclaim such an objection, only to resurrect it when things go poorly for them on the merits.…
Given this risk of disruption and waste that accompanies the jurisdictional label, courts will not lightly apply it to proceduresCongressenactedtokeepthingsrunning smoothly and efficiently…..
Under this clear statement rule, the analysis of §2409a(g) is straightforward."[I]n applying th[e] clear statement rule, we have made plain that most time bars are nonjurisdictional…." Nothing about §2409a(g)'s text or context gives reason to depart from this beaten path. Section 2409a(g) states that an action "shall be barred unless it is commenced within twelve years of the date upon which it accrued." This "text speaks only to a claim's timeliness," and its "mundane statute-of-limitations language say[s] only what every time bar, by definition, must: that after a certain time a claim is barred…" Further, "[t]his Court has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional."
In his dissent, Justice Thomas applies a presumption directly opposite to the one the majority relies on. Because federal sovereign immunity is at stake, he argues there should be a presumption in favor interpreting the time-bar as jurisdictional, because otherwise federal sovereign immunity would be waived:
The doctrine of sovereign immunity bars suits against the United States. But, in the Quiet Title Act of 1972, Congress waived this immunity and consented to suits against the United States in order to determine the status of disputed property.28 U. S. C. §2409a.Congress conditioned this consent on, among other things, a 12-year statute of limitations: "Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued."§2409a(g).This Court has long construed such conditions on waivers of sovereign immunity as jurisdictional.And, it has acknowledged the jurisdictional nature of the Quiet Title Act's statute of limitations in several precedents. In holding that §2409a(g) is not jurisdictional, the majority commits two critical errors.First, it applies the same interpretive approach to a condition on a waiver of sovereign immunity that it would apply to any run-of-the-mill procedural rule. Second, by reading the Court's prior Quiet Title Act precedents in this way, the Court disregards their express recognition of the jurisdictional character of the Act's time bar.
Both majority and dissent makes some good points. Because of the technical nature of many of them, this is one of those situations where you have to read the opinions in full to really understand the issues.
Ultimately, where you come down on this may depend in large part on how much priority should be assigned to preserving sovereign immunity versus protecting property owners' rights. I am highly skeptical that sovereign immunity is a legitimate constitutional principle at all. By contrast, I think it is extremely important for courts to enforce constitutional property rights on par with other constitutional rights.
If the federal government illegally appropriates private property, it perpetrates an uncompensated taking in in violation of the Fifth Amendment (which requires "just compensation" for government seizure of private property rights). The Quiet Title Act is a tool for preventing such violations of constitutional rights. If we are going to have judicially created presumptions respecting its application, courts should pick ones that make it easier to vindicate constitutional rights over ones that provide extra protection for the dubious principle of sovereign immunity. But I can certainly understand why those who assign greater value to sovereign immunity or lesser value to property rights might reach a different conclusion.
Despite its hypertechnical nature, Wilkins may turn out be an important precedent. In Montana and other western states, the federal government owns many millions of acres of land that abut or cut through private property. Various federal agencies often do things that impinge on landowners' rights or authorize various private parties to do so. The Quiet Title Act is an important tool for combating such intrusions on private land, one that may be of use to large numbers of people. And there may be a wide range of cases where there are statute of limitations issues that come up in these situations (e.g. - when land changes hands, or when it is unclear exactly when the intrusion started).
The unusual alignment of justices in this case is worth noting. The three liberal justices are not generally known for their solicitude for property rights. Yet they voted for the property owner in this case, with Justice Sotomayor writing the majority opinion. Justice Thomas, author of the dissenting opinion, is sometimes considered the most property-protective justice. Alito and Roberts (who joined the dissent) also have generally pro-property rights records.
It's hard to say for sure. But I suspect that attitudes towards sovereign immunity may have trumped attitudes towards property rights for many of the justices here. While the liberal justices may not be big champions of property rights, they are also generally more skeptical of sovereign immunity than conservatives. By contrast, Justice Thomas is a particularly forceful advocate of broad sovereign immunity. The three conservative justices in the majority may be a bit less committed to immunity than he is.
Obviously this is just conjecture. There may be other explanations for the breakdown of votes here.
The Supreme Court's decision is not the end of this litigation. The case has been remanded to the lower courts, which will now have to reconsider the statute of limitations issue, and (if the plaintiffs win on that) determine who should prevail on the merits.
NOTE: The plaintiffs in this case were represented by the Pacific Legal Foundation, which is also my wife's employer, though she herself did not work on Wilkins. PLF has more material about the case here.
From Doe v. HireRight LLC, decided yesterday by Judge Stephen McNamee (D. Ariz.):
Four years ago, Plaintiff was charged with two felonies. As part of a plea agreement, he pled guilty to both charges in exchange for one of the charges being downgraded to a misdemeanor. Thus, he was convicted of one felony and one misdemeanor.
In January 2023, Plaintiff applied for a position at CloudKitchens. During the interview process, Plaintiff disclosed that he had been convicted of a felony but was told that this would not prohibits his hiring. Toward the end of the application process, CloudKitchens hired Defendant HireRight to perform an employment-purposed consumer report on Plaintiff, which included a criminal background check. This report ultimately stated, inaccurately, that Plaintiff had been convicted of two felonies—not the single felony that Plaintiff had previously reported to CloudKitchens. As a result of this report, CloudKitchens rescinded its job offer….
Doe sued under the Fair Credit Reporting Act, but the court refused to allow him to proceed pseudonymously:
On March 15, a federal district court in Texas heard arguments in Alliance for Hippocratic Medicine v. Food & Drug Administration, in which AHM is seeking to force the FDA to revoke its approval of mifepristone, a widely use abortion medication. While most commentary on the case has focused on the substance of the suit, the administrative law questions are more likely to control the outcome.
As I noted in this post on the case, there are substantial obstacles to a court properly reaching the merits of the case, including Article III standing and the statute of limitations for suits of this kind. Drawing on an analysis by Adam Unikowsky, I explained why these issues should spell the end of the case. AHM's case relies upon a very aggressive theory of standing and stretching the reopening doctrine to overcome the statute of limitations.
Erin Hawley of the Alliance Defense Fund is one of the attorneys representing AHM in the case. Below the fold I reproduce her response to my post, which largely focuses on the question of standing, and my reply.
