The Volokh Conspiracy Archive

The thirteenth episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange has us chatting with Midwestern graduate student Lisa (a pseudonym) about all things physical safety.

Lisa shares her experiences with being stalked, owning a gun, conducting background checks before every date, and having to take out restraining orders. Find out how people who lie about their age on dating apps sometimes do so for much more nefarious reasons than you might expect, and listen to Lisa dish about why dating fellow academics might not be all roses! You will walk away with new insights and important safety tips from a guest who has seen it all.

The post about how surviving home invaders may be charged with murder after the victim shot and killed one of them in self-defense led to comments criticizing the "felony murder" rule. To quote the Georgia statute, there are three ways to be found guilty of murder:

(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

(b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

And people have long been troubled by the "irrespective of malice" nature of felony murder; even felons, the theory goes, should be punished just for the crimes that they intended, not for a murder that happens unintentionally and even unexpectedly during that crime.

But I wonder what people think about allowing criminal liability under the "abandoned and malignant heart" theory here. That theory, often called the "depraved heart" theory, essentially extends murder not just to intentional killing deaths, but to grossly reckless killings. To quote one recent case (this one from Maryland, but these principles are generally treated the same throughout the country),

San Francisco is considering authorizing its police department to sometimes use remote-controlled robots to kill: The robot might deliver a bombs or a grenade, or perhaps might even include a remote-controlled firearm (though I'm not sure which options would be available at the outset). This has been reported with headlines such as, "Robots would have license to kill" and "San Francisco police propose allowing robots to kill in 'rare and exceptional' circumstances."

But to my knowledge none of these would involve any autonomy on the robot's part; a human being will push the button, just as today a human being can pull a trigger. My view is much the same as it was when this was done in Dallas in 2016 to stop a mass shooter: If the police reasonably believe that someone poses an imminent danger of death to others, and that killing him is necessary to prevent that danger, they can try to kill him, whether with a rifle or a bomb-carrying robot. A robot is a weapon, albeit one that isn't stymied by corners or walls the way a rifle would be.

Police now believe four people were involved in a shooting in east Atlanta's Gresham Park neighborhood and that it started as an attempted home invasion. One person has since died in connection to the shooting, according to police….

At this time, police said the shooting "appears justified" and no charges are expected to be filed against the the person who fired the shot.

The three surviving subjects are expected to be charged with felony murder because of the death of their alleged accomplice. The two adults will also be charged with home invasion.

What's with the murder charges?, you might ask. Here's the answer, from a very similar story from a 2015 Georgia Supreme Court case, Hill v. State:

I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some opening thoughts, though you can read the whole PDF, if you prefer:

[* * *]

Introduction

The lawyer's job is to persuade people, including people who may disagree with the lawyer. To do this, lawyers must be able to connect with people whose views may be very different from their own.

And this is so even if the lawyer's views are held by the majority: Sometimes, for instance, the lawyer must persuade all members of a jury. Even in a solid blue state, the lawyer may need to persuade some red jurors, and vice versa.[1] Even in a jurisdiction where most judges are liberals, the lawyer may draw a conservative judge, or a majority-conservative panel. A lawyer will also often need to persuade opposing counsel; to build trust with a reluctant witness; and of course to interact productively with the lawyer's own client. All of them may sharply disagree with the lawyer on important matters.

One critical function of law schools is to help students learn the skills that they can use to persuade people with whom they disagree. As importantly, law schools must help students learn the habits and attitudes required for that—and to unlearn the habits and attitudes, which are so much a part of human nature, that tend to undermine such connections.

It is of course human nature to categorize the world into us and them, the good and the bad, the "enlightened" and the "deplorable." It is human nature to let these categorizations leak into our assumptions about people, into our decisions about whether to listen to people, and into our manners when we speak with people. It is human nature to resist being exposed to arguments that challenge our deepest beliefs, or to facts that we may disapprove of or find offensive. That human nature, though, interferes with our effectiveness as lawyers.

My claim in this Essay will be that creating a culture of free speech and openness to contrary ideas at law schools—including on the most controversial of topics—is vital not just for democratic self-government, the search for truth, self-expression, and the like, but also for effectively training future lawyers. Law schools should do all they can to communicate this point to students, in thought and action.[2]

I. Teaching for Effective Lawyering

To be an effective lawyer requires more than just knowing the legal rules, or even "thinking like a lawyer" in the sense of understanding the structure of legal categories. It requires a particular set of skills, habits, and attitudes that don't come naturally—indeed, that may be contrary to certain facets of human nature.

A. Understanding the Other Side's Best Arguments

11/28/1872: Justice Samuel Nelson resigns.

The Biden Administration's new Uniting for Ukraine program has enabled Ukrainians fleeing Russia's brutal invasion and repression to enter the United States far more quickly and easily than would have been possible through the sclerotic traditional refugee admission system. This success can be expanded on in the future. The Wall Street Journal has a helpful summary of the program and its success (unfortunately paywalled; but there are various legal ways around it):

Mariia Holovan left Ukraine on a bus to Poland, waited for what felt like forever at the border, flew to Chicago, then connected to Charlotte, N.C., and met an American named Grant Jones. Together they went to her new home in the United States…..

Their unlikely meeting was a long time coming…..

But maybe the most unexpected of the many forces that brought Ms. Holovan and Mr. Jones together was a U.S. government program that worked because it barely resembled one.

It was fast. It was efficient. And it bulldozed through the roadblocks of Washington's immigration bureaucracy to clear a pathway for Ukrainians.

Ukrainians who qualified were granted immediate humanitarian parole to live and then work in the U.S. for two years as long as they had sponsors here vowing to support them financially. There were many who wanted to come—and even more Americans who wanted them here. The numbers behind the program called Uniting for Ukraine were staggering: 171,000 applications to be sponsors, 121,000 travel authorizations for Ukrainians and roughly 85,000 arriving since April, said a U.S. Citizenship and Immigration Services spokesman.

By contrast, 25,465 refugees from around the world resettled in the U.S. with a path to citizenship in the government's fiscal 2022, according to State Department data. The prior year, it was 11,411, the fewest in the U.S. refugee program's history….

The war in Ukraine was a crisis that required a nimble policy response, but the immigration system was not the first place anyone would look to find it.

Then the White House's commitment to accept 100,000 Ukrainians after the invasion created an unusual mandate for the Department of Homeland Security: make it easier for people to escape a war. The existing refugee program is supposed to respond to humanitarian emergencies, said Julia Gelatt, a senior analyst at the Migration Policy Institute, but it doesn't serve that urgent role with its slow timeline for vetting and processing…..

The authorities at U.S. Citizenship and Immigration Services found ways to rewrite the rules for this exodus. The concept of temporary parole and model of private sponsorship dramatically streamlined the process. The accelerated program built around electronic applications allowed Ukrainians to seek refuge online and skip the paperwork normally required. The government even collaborated with a nonprofit that matched Americans and Ukrainians. Entering the country took weeks instead of years as a result. This idea of so many displaced people getting to the U.S. so quickly was "completely unheard of," said Matthew La Corte, an immigration policy expert at the Niskanen Center think tank.

I myself am a participating sponsor in the Uniting for Ukraine program, and can thereby testify first-hand to its effectiveness. Like the North Carolina family featured in the Wall Street Journal article, my wife and I created a profile on the Welcome Connect, a free nonprofit website that matches would-be US sponsors with Ukrainian refugees seeking them. Within a few days, we connected with a Ukrainian family, and agreed to sponsor them. I then filled the necessary paperwork at the USCIS website. In sharp contrast to the normal glacial pace of the federal government's immigration bureaucracy, we got a response granting entry authorization within less than ten days after I submitted the forms (a process which you can do entirely online). The family - a couple and their 2.5 year-old-daughter - will be arriving sometime within the next two weeks - less than two months after we started the process of becoming sponsors.

Some parts of the process were still unnecessarily annoying and bureaucratic. Communication with the Ukrainian family was greatly eased by the fact that I am a native speaker of Russian (which most Ukrainians also know). Things would have been tougher if we could only communicate in English, though I know other US sponsors have nonetheless successfully coped with this problem.

Despite these caveats, Uniting for Ukraine is a massive improvement over traditional refugee admissions policy. In a July Washington Post article, coauthored with Canadian refugee policy specialist Sabine El-Chidiac, we describe how the US can build on the program and expand it into a more general system of private refugee sponsorship for refugees fleeing war and oppression around the world. As we explain, we can also adapt elements of Canada's generally successful private refugee sponsorship system. Such a system would enable the US to take in many more refugees at little or no added expense to taxpayers. And any expenses would be easily outweighed by the economic contributions the migrants make after they get settled.

The Biden Administration has already created a similar program for migrants fleeing Venezuela's brutally repressive socialist government, though unlike Uniting for Ukraine it it has a numerical cap of only 24,000 participants. The Venezuelan refugee crisis has not attracted as much attention as the Ukrainian one. But it is in fact of comparable magnitude, with some 6 million people fleeing the regime's socialist oppression over the last few years. Next year, the Administration plans to create a more general private refugee sponsorship pilot program, though its parameters are still unclear.

Despite its virtues, Uniting for Ukraine still has at least two significant limitations. One is that the residency and work permits received by participants currently last for only two years. Experience with past conflicts shows that many refugees will need permanent homes, not just temporary ones. Permanence also enables them to make greater economic and social contributions to American society. The second is that the program currently rests largely on the discretion of the executive. If the political winds shift and President Biden (or a successor) decides to terminate it, participants will be left out in the cold, and potentially subject to deportation. Congress should act to fix these flaws.

Finally, critics can legitimately argue that, even with the creation of a limited similar program for Venezuelans, it is unjust that that private refugee sponsorship is available to Ukrainian refugees, but not those fleeing comparable horrors elsewhere in the world. This critique has some merit. But, as I have argued previously, the solution is not to bar Ukrainians (or Venezuelans) but to "level up" by making private refugee sponsorship available to others, as well. Hopefully, the success of Uniting for Ukraine can help make that possible.

11/27/1964: WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of the "Christian Crusade" series. This broadcast gave rise to Red Lion Broadcasting Co. v. Federal Communications Commission (1969).

For those of you who may be interested in doing the very idiosyncratic Latin Duolingo course, I've posted a word list on Memrise.

Because of the World Cup, people who haven't much focused on Qatar have been talking about, and there's been a cottage industry of articles about how to pronounce it—and about how people are pronouncing it "wrong" or "incorrectly."

Here's my modest contribution: There is no one transnationally correct way of pronouncing "Qatar," just as there is no one correct way of pronouncing "France," or for that matter of pronouncing the name of the countries we call "Germany," "Greece," or "Russia." Rather, each language has its own norms, which stem both from the sounds common in that language, and from the history of how a name has been adapted into the language. The "correct" way to call a country in a language is just a matter of what is customary in that language.

Thus, "France" is pronounced one way in French (with an "ah") and another in English (with the more familiar English "a"). In Russian, it's pronounced "Frahntsiya"; and that's even apart from the fact that the "r" sounds are different in the three languages. I imagine many other languages have their own pronunciations.

11/26/1829: Justice Bushrod Washington dies. He was President George Washington's nephew.

Mastodon of course lets you interact with people from any other Mastodon servers; but it also has features that make it easier for you to interact with people from the same server. If you use Mastodon, do you find that you take advantage of these local-interaction features? Or do you mostly just interact with your followers and the people you follow, regardless of what server they're on?

Now that the U.S. has played England to a draw in the World Cup, it's a good opportunity to use FIFA rules to calculate how many games there have to be in a World Cup.

1. The group stage

First, we have a group stage, where the 32 qualifying teams are placed in 8 groups 4, and in each group, the 4 teams play each other round-robin (i.e., each team plays each other team); each team gets points that way (e.g., 3 for a win, 1 for a draw), and the two teams with the highest number of points in each group advance to the knockout stage. (Because teams can be tied on points, this relies on a number of tiebreaker rules.)

In a round-robin tournament, the number of ways of populating "X plays against Y" when there are n teams is n × (n–1), because you can put n teams in the first spot and n–1 teams in the second spot (because "England plays England" isn't a thing). But when you do that, you're double-counting, because "England plays the U.S." is counted differently than "The U.S. plays England". So we'll just divide by 2, and get n(n–1)/2.

In general, this is the combinatorics concept called "n choose k", where (n,k) = n!/[(n–k)!k!]; here, we're using "n choose 2", which is just equal to n(n–1)/2.

Anyway, that means each group of 4 has 4×3/2 = 6 games, and since there are 8 groups, that makes 8×6 = 48 games.

2. The knockout stage

Next, we have a knockout stage, where the 16 teams are reduced to 1. This is a single-elimination tournament, where the loser in any game is immediately eliminated. (Unlike in the group stage, you can't have ties in individual games, so this requires a way of producing a winner in each individual game, e.g., sudden death overtimes and penalty kicks.)

When the number of teams is a power of 2, then it's easy to produce brackets -- and it's easy to check that with 16 teams, you get a winner with 15 games (i.e., 8 games in the round of 16, plus 4 games in the quarter-final, plus 2 games in the semi-final, plus 1 final game, and 8 + 4 + 2 + 1 = 15). But you can always produce a bracket with a non-power of 2 by using some number of byes.

So, you can ask, how many games would you need in general in a single-elimination tournament if there are n games, where n isn't guaranteed to be a power of 2? You can try creating a sample bracket and counting up the number of games, but how do you know that's the best bracket design? Could you do better? Now what if I gave you a very large number of teams, like 693? Are you going to test out various brackets?

This has long been one of my father Vladimir's favorite logic puzzles. You can cut this particular Gordian knot by observing that, when you have n games, eliminating down to 1 necessarily requires eliminating n–1 participants, and in a single-elimination tournament, playing 1 game necessarily eliminates exactly 1 participant. So the number of games is exactly n–1. If you start with 693 teams, you'll always play exactly 692 games to get a winner.

(There might still be better and worse designs of brackets: for example, the design "A plays B, and then the winner of that game plays every single other team sequentially" is probably not the best design, because then you'll be expecting the best team to play 692 games while every other team only plays 1… and if the worst team happens to play on the last day while the best team is having a bad day, you might get a perverse result. Better to approximate the power-of-2-type brackets, where every team plays up to approximately the log-base-2 of the number of teams (rounding up), and nobody wins unless they've played approximately that number of games (rounding down). But still, as far as the total number of games is concerned… the best bracket and the worst bracket will have exactly the same number of games.)

Anyway, to eliminate 16 teams down to 1, just apply the n–1 rule, and you get 15 games.

3. The third-place contest

But wait a minute, we still have one more game to play. FIFA happens to have a "third-place playoff" game: while the winners of the two semifinal games advance to the final (and are defined as first-place and second-place), the losers of those two semifinal games play one additional game (and are defined as third-place and fourth-place).

Thus, in the 2018 World Cup (which was played in seven different Russian cities), the semifinals involved France vs. Belgium (won by France) and Croatia vs. England (won by Croatia). In the final, France played Croatia (France won), but before that game, Belgium played England (Belgium won).

Now, strictly speaking, this isn't really an accurate ranking, because how do we know that Croatia is #2 while Belgium is #3? What if France and Belgium were the top 2 teams, while Belgium and England would have been ranked #9 and #10 out of the 16 teams in the knockout stage (but the brackets were arranged in such a way that the good teams were all on top but the bad teams were all on the bottom)? There's a sloppiness in defining the final-loser as #2 and the winner-of-semifinal-losers as #3. But hey, everyone likes rankings, even if they're inaccurate.

4. Putting it together?

Putting it all together, we get 48 games in the group stage, plus 15 games in the knockout stage, plus an extra game to determine third place, which makes 64.

Why not just play round-robins, which irons out the effects of having bad days and gives you a more scientific estimate of who's the better team? (Neither system is perfect: single-elimination puts a lot of emphasis on not having bad days, while round-robin involves arbitrary win-to-draw point ratios, e.g., 3:1 for FIFA and 1:0.5 for chess.)

Turns out that, because the round-robin rule is n(n–1)/2, the number of round-robin games you'd have to play increases as the square of the number of teams. With 32 teams, you'd have 32×31/2 = 496 games. That's a lot more than 64!

If you have T = nk teams and you divide those teams into k groups of n, you get kn(n–1)/2 games, but since k = T/n, you can express that as T(n–1)/2 games. With T = 32 and n = 4, that's another way of getting to 32×3/2 = 48 games for the group stage. So, holding the number of teams constant, we're basically linear in the number-of-teams-per-group. We could minimize the number of games by making n = 2, i.e., 16 games (32 games total when you add in the knockout stage and third-place game), i.e., just making it single-elimination all the way back. Or we could maximize the number of games by making n = 32 and actually playing those 496 games.

FIFA has chosen an arbitrary number of groups and then an arbitrary place to start the knockout stage, which gives us 64, a nice compromise between 32 games and 496.

I recently helped put together a panel, that you can watch below, on an important question of Fourth Amendment history and law: What is the original public meaning of "searches" of "persons, houses, papers, and effects" in the Fourth Amendment? And how is the Katz reasonable-expectation-of-privacy test different? I've been very interested in this question for a few years now, and wrote my recent article Katz as Originalism about the topic (which was in turn inspired by a few blog posts I wrote here at the Volokh Conspiracy). I was joined by the elusive Fourth Amendment historian William J. Cuddihy, author of the massive tome The Fourth Amendment: Origins and Original Meaning 602-1791, and my colleague Andrea Roth.

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

Friends, the feds are proposing a new, clear-as-mud rule requiring new corporate entities to identify all owners who exercise "substantial influence over important decisions." It is believed that this will help the gov't catch out drug dealers and money launderers using shell companies to hide their misdeeds, but—we promise you—the bad guys will just shift their tactics. The actual effect of the rule will be to require law-abiding small business owners to file millions of unnecessary reports, creating a honeypot of sensitive information that hackers can exploit. IJ Senior Attorney Robert Everett Johnson has more at USA Today.

Environmental groups sue the EPA in 2014 for failing to consider whether a pesticide it approved complies with the Endangered Species Act. The EPA concedes it did not do so. D.C. Circuit: (2017): You guys had better get on that. EPA: Yeah, we'll get around to it. D.C. Circuit: 2022: MANDAMUSED! Finish it by next September and give us updates on your progress every 60 days.
In October 2018 and again in March 2019, two Boeing 737 MAX 8 aircraft crashed, killing all aboard and revealing fatal defects that lead to the planes being grounded worldwide. A class of plaintiffs sue. Oh, not about those crashes—they sue about having flown on Boeing 737 MAX 8 aircraft that brought them safely to their destinations. But if they had known about the planes' alleged deficiencies, they definitely would not have paid so much for their tickets. Fifth Circuit: Airlines don't offer customers discounts for flying on riskier aircraft; if the defects had been public knowledge, the airlines would have operated no flights on the 737 MAX 8, reducing the number of available seats and increasing ticket prices. No economic injury, no case.
What do you do if you want to regulate, but you don't want to actually … regulate? Maybe you give a group of private people the power to regulate their peers. That's the approach Congress took in a 2020 law that gave a private association power to regulate the horseracing industry, including the power to promulgate rules, investigate violations, and impose penalties. Fifth Circuit: And that violated the cardinal rule that private parties cannot wield gov't power.
Man caught entering U.S. from Mexico convicted of unlawful reentry (having been deported twice before). District court: Though its predecessor, the Undesirable Aliens Act of 1929, violated equal protection, Congress's deliberation and enactment of more recent versions of the statute cured the prior discriminatory taint. You're sentenced to 30 months in prison and three years of supervised release, the latter of which allows you time to appeal the conviction. Fifth Circuit: Can't base the term of supervised release on the timing for an appeal.
To mitigate the economic effects of COVID-19, Congress throws a boatload of cash at the states but says they can't use the money to "directly or indirectly offset a reduction" in taxes. Ohio (in one lawsuit) and Kentucky and Tennessee (in another) claim the "offset" is unconstitutional. In response, Treasury says most tax cuts are OK as long as the total amount of spending doesn't decrease. Sixth Circuit: And because of this "credible" clarification, Ohio's suit is moot. Sixth Circuit: And so (over a dissent) is Kentucky's. But Tennessee's isn't because it will have more paperwork. And that means we can say Congress was unconstitutionally vague. (The Sixth thus splits with the Eighth Circuit, which found that Missouri lacked standing.)
Allegation: Weeks after Columbus, Ohio officers say man fled from traffic stop, he's arrested at his home (on Thanksgiving) and jailed for five days. Yikes! The man's roommate, who doesn't look anything like him, had borrowed his car on the night in question. The officers just looked up the car owner's photo and put his description in their report. Sixth Circuit (unpublished): "Officers lying about the basis for probable cause is the kind of 'obvious' rights violation that does not demand a catalog of factually similar cases." Moreover, "[a]n officer does not need to be on notice of a specific kind of lie he is prohibited from telling." That said, there is a case on point. No qualified immunity.
Plaintiffs: These Michigan counties illegally retain the surplus value of homes sold to enforce tax liens, so we sue them! Insurance company (for one of the counties): Our policy doesn't require us to cover these claims, so we sue you right back! Sixth Circuit: You can't sue somebody who hasn't asked you to do anything just because you want a declaration that you won't have to pay for a judgment they might someday perhaps obtain against a third party.
Illinois subscriber to Good Housekeeping finds her personal information has been sold to data miners without her permission. She sues Hearst Communications for violating the Illinois Right of Publicity Act. Seventh Circuit: The Act doesn't ban selling the personal information ("Here's everything we know about Elizabeth"), it bans using the personal information to sell things ("Elizabeth from Illinois thinks our subscriber data is the best!"). No claim.
Younger-abstention aficionados will know that the federal courts' overreliance on the so-called "Middlesex factors" has aged like fine milk in the decade since the Supreme Court's decision in Sprint Communications, Inc. v. Jacobs. Eighth Circuit: So why are the parties' briefs in this Younger-abstention appeal "focused almost entirely on the Middlesex factors"? Pish posh. No Younger abstention. The case—a challenge to Stone County, Mo.'s vacation rental rules—may proceed.
Citizen of El Salvador illegally came to the U.S. when a minor and over the next few years "accumulated a fairly lengthy criminal record." After an arrest in 2018, he's placed in removal proceedings. He asks to be let out on bond; is denied. Fourteen months later, and still in removal proceedings, he asks for another bond hearing. Does he have a due process right to the second hearing because his proceedings have been "prolonged"? Ninth Circuit: Not under the standard balancing test. Concurrence: This guy might have won if James Madison's views of immigrants had prevailed. Too bad John Marshall's did instead. Dissent: The test says yes.
Plaintiffs who allege they are the heirs to owners of beachfront Cuban properties that were nationalized after the 1959 revolution sue … U.S. travel websites? Indeed! The sites allow one to secure lodging at resorts the Cuban gov't built on the stolen land, and in 1996 Congress created a private cause of action allowing suits against folks who knowingly traffic in expropriated property. (The cause of action had been suspended by successive presidential decrees until 2019.) Eleventh Circuit: The district court has jurisdiction over the defendants and the plaintiffs have standing. Case undismissed.
And yet, says the Eleventh Circuit, a man suing cruise lines that use commercial waterfront property in Cuba that was confiscated from plaintiff's cousin's brother in 1960 cannot recover because he inherited his interest in the property in 2000, which is after 1996. Concurrence: Which is indeed the outcome the statute requires, but it sure looks like a case of sloppy drafting.
And in en banc news, the Ninth Circuit will not reconsider its decision upholding the Mandatory Repatriation Tax of the Tax Cuts and Jobs Act of 2017, which requires investors in foreign companies to pay taxes on unrealized investment gains. Four judges dissent, arguing that the tax is an unapportioned direct tax that exceeds Congress' power under the 16th Amendment, which applies only to realized income.
And in amicus brief news, IJ is asking the Second Circuit to rule that an officer pointing a gun at someone who is compliant and nonthreatening is by itself a clearly established Fourth Amendment violation. Earlier this year, a federal district court granted qualified immunity to an NYPD officer who pointed his gun at a school teacher (at a traffic stop) because the officer did not also make verbal threats or physical contact.
And in more amicus brief news, IJ is asking an Indiana state trial court put a stop to a troubling new trend: the state—acting through a private prosecutor—conducting civil forfeitures in virtual secrecy by redacting basic information (including the names of the defendants, descriptions of the property being forfeited, and nearly all of the probable-cause affidavit required by state law) on court documents. That violates Indiana Supreme Court rules requiring openness in judicial proceedings and also the state's civil forfeiture statute, which requires prosecutors to publicly report the very data that's being withheld.

Judges can authorize a search of your home. But they aren't supposed to personally supervise the search themselves. Indeed, that's what a federal district court ruled recently, denying absolute judicial immunity to a Raleigh County, WV family court judge who forced her way into IJ client Matthew Gibson's home under threat of arrest so that his ex-wife could remove some disputed property, including DVDs and an umbrella stand. (The judge forbade Matthew from filming the search, which she conducted barefoot.) Now, IJ is asking the Fourth Circuit to uphold the district court's ruling. Click here to learn more. Or click here for a lovingly crafted podcast episode on the history of judicial immunity.

From Justice Brian Hofstadt's opinion Wednesday in Kaplan v. Gimelstob, joined by Justices Victoria Chavez and Patricia Benke:

In a display that a trial court characterized as "junior high and high school" conduct, two wealthy, middle-aged men—one [Gimelstob] a former professional [tennis player, and later a coach and "broadcaster, producer, talent representative, and brand ambassador"] and the other [Kaplan] a venture capitalist—got into a fistfight while trick or treating with their families on Halloween night 2018. The men have now moved their spat into the court system….

Gimelstob and Kaplan were friends for a while, but their relationship soured when Kaplan got upset because Gimelstob did not show up to his birthday party….

{Consistent with the applicable standard of review governing anti-SLAPP motions, we set forth [the following] facts in the light most favorable to Kaplan, as the nonmoving party.} On Halloween night in 2018, both Gimelstob and Kaplan were out trick or treating in Brentwood, which is an upscale neighborhood on the west side of Los Angeles, California. Kaplan was with his wife and their two-year-old daughter; Gimelstob, with his girlfriend and his five-year-old son. Gimelstob was dressed up as "Maverick" from Top Gun.

As Kaplan's wife and child were watching, Gimelstob "ambushed" Kaplan from behind and—"unprovoked and entirely without warning"—knocked Kaplan to the ground. Gimelstob mounted Kaplan's prone body, and proceeded to punch him 50 to 100 times. The attack lasted three minutes and ended only when a passerby pulled Gimelstob off of Kaplan….

The Los Angeles County District Attorney charged Gimelstob with committing a battery inflicting serious bodily injury, which is a crime that can be charged as a felony or a misdemeanor. The District Attorney charged it as a felony.

11/25/1757: Henry Brockholst Livingston's birthday. He dissented in the property law classic, Pierson v. Post (NY 1805).

It's easy to take for granted all the good things we have—in our family lives, in our professional lives, in our nation, in the world—and focus on the bad. I hope that today all of you have much to be thankful for, as I very much do myself, and enjoy celebrating it.

The Volokh Conspiracy

"Strangers on the Internet" Podcast Episode 13: A False Sense of Safety

Felony Murder, "Malignant Heart" (Grossly Reckless) Murder, and Victim's Killing of Accomplice

Robots Don't Kill People (at Least Not Yet); People Use Robots to Kill People

Surviving Home Invaders May Be Charged with Murder After Resident Shot and Killed One of Them in Self-Defense

Free Speech Rules, Free Speech Culture, and Legal Education: Some Opening Thoughts

Today in Supreme Court History: November 28, 1872

Uniting for Ukraine Private Refugee Sponsorship Program Breaks Through Bureaucratic Red Tape

Today in Supreme Court History: November 27, 1964

Latin word list based on Duolingo course

What's the Correct Way to Pronounce "Qatar"? Well, What's the Correct Way to Pronounce "France"?

Today in Supreme Court History: November 26, 1829

Question for Mastodon Users

Teaching math through World Cup soccer

What's the Original Public Meaning of "Searches" in the 4th Amendment?

Short Circuit: A Roundup of Recent Federal Court Decisions

Slander Suit After "Two Wealthy … Men … Got Into a Fistfight While Trick or Treating with Their Families"

Today in Supreme Court History: November 25, 1757

Happy Thanksgiving!

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