The Volokh Conspiracy Archive

I blogged last year about the $6K sanctions imposed earlier in this case for AI hallucinations, as well as about the earlier order identifying the hallucinations and the lawyer's response; here's a follow-up, from today's Order on Post-Trial Motions by Judge Nina Wang (D. Colo.):

Before concluding, the Court must address Frankspeech's brief in response to Plaintiff's Motion to Amend Final Judgment. Troublingly, given the background of this case, Frankspeech's response brief misattributes a district court case to the Tenth Circuit. On the first page of its brief, Frankspeech states that "[t]he 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury's determination on this issue is entitled to finality." As the Federal Supplement reporter citation indicates, however, Capital Solutions is not a Tenth Circuit decision. See Cap. Sols., LLC v. Konica Minolta Bus. Sols. U.S.A., Inc., 695 F. Supp. 2d 1149 (D. Kan. 2010). Nor was that decision appealed to the Tenth Circuit. A reasonable review by counsel should have alerted them of the error; it is well-understood to any lawyer that the Federal Supplement is the reporter for district, not circuit, court decisions.

{Although the Court is primarily concerned with counsel's erroneous citation, this description of Capital Solutions's holding is also misleading. Capital Solutions dealt with a Kansas statute that "prescribes a procedure by which the jury first determines whether punitive damages should be allowed, and then the court determines the amount of such damages in a separate proceeding." Before trial, the court held that the Seventh Amendment's "trial by jury" clause—not the Reexamination Clause—entitled a plaintiff "to have the entirety of its claim for punitive damages, including the determination of the amount, decided by the jury." In other words, Capital Solutions dealt with whether a jury should decide the amount of punitive damages in the first instance, as opposed to ruling that an award of punitive damages is "entitled to finality" in the post-trial context.}

The Court has previously sanctioned defense counsel under Rule 11 for, among other things, this exact type of error. At that time, defense counsel both admitted that their previous citation errors were produced by artificial intelligence but then claimed that the errors resulted from a one-off mistaken filing of the wrong draft, not a failure to properly review their citations for accuracy..

Over at Balkinization, my colleague Samuel Moyn and Yale student Pranjal Drall have a new post on the birthright citizenship debate. As a brief history of recent scholarly and constitutional arguments on birthright citizenship, it is helpful. But they seem to ultimately want to make a point about scholarly engagement, and on that the post seems much less helpful.

That history serves a broader point about constitutional politics with which I am in entire agreement -- legal arguments (and scholarly arguments about law) work in a political environment, and they gain traction in that broader environment not just because of their objective merits but because of their pragmatic utility in the moment and the extent to which they resonate with the ideas and interests of a broader audience. My arguments about any given topic are always correct (of course!), but whether anyone else agrees with them or thinks they are even worth reading, let alone discussing, is beyond my control. Being correct (bracket what that means and how one would know) is not a sufficient condition -- and is probably not even a necessary condition -- for being embraced by others, whether those others are academic colleagues, government officials, or members of the general public. Oddly, others do not always recognize my brilliance, or the brilliance of my arguments.

An excerpt from the detailed discussion in State v. Murphy, decided Thursday by the Utah Court of Appeals (Judge David Mortensen, joined by Judges Gregory Orme and Ryan Harris):

… Murphy was charged with aggravated sexual abuse and sodomy on a child for incidents that had occurred many years prior involving the son (Jonathan) of one of Murphy's former close friends (Mother). The magistrate, citing lack of evidence at a preliminary hearing to establish probable cause that Murphy committed the alleged abuse, declined to bind Murphy over for trial….

The allegations of abuse in this case came to light when Jonathan, who was fifteen years old at the time, was taken to an emergency room following a mental health episode. During a subsequent interview at the Children's Justice Center (CJC), Jonathan described being abused when he was younger while being babysat for several hours at night when Mother worked an evening shift….

"A defendant may be bound over for trial only if the prosecution produces evidence sufficient to demonstrate probable cause that the charged crimes were committed." This requirement "is aimed at ferreting out groundless and improvident prosecutions, relieving the accused from the substantial degradation and expense incident to a modern criminal trial when the charges against him are unwarranted or the evidence insufficient." … Accordingly, a magistrate may deny bindover "when the evidence, considered under the totality of the circumstances, is wholly lacking and incapable of reasonable inference to prove some issue which supports the prosecution's claim." …

Here, the magistrate struggled to find sufficient evidence that Murphy was the one who perpetrated the abuse of Jonathan. In the magistrate's words, "[T]he element in question is identity…. The evidence here is so wholly inconsistent as to the when and the who as to render the testimony regarding identity just simply incredible and as wholly lacking and incapable of supporting a reasonable inference that the defendant is the person that [Jonathan] is talking about."

From People v. Superior Court (Taylor), decided two weeks ago by the California Court of Appeal (Justice Frances Rothschild, joined by Justices Helen Bendix and Michelle Kim):

Penal Code section 1001.36 authorizes a court to grant pretrial diversion to a defendant with a qualifying mental disorder who agrees to comply with mental health treatment and will not pose an unreasonable risk of danger to public safety "if treated in the community." … Impliedly finding Taylor would not pose an unreasonable risk of danger to public safety if treated in a community facility, the trial court granted diversion….

The People allege that on the morning of March 3, 2023, [Job Uriah] Taylor, age 25, went on a violent, racially motivated rampage targeting multiple victims in Santa Monica. Taylor approached Christian Hornburg, who is Black, from behind and clubbed him over the head with a metal pipe and then stomped his head while he was on the ground, helpless. Duane Ziegler, a witness who attempted to protect Hornburg, heard Taylor say he was there to "kill that nigger."

When Jade Carter, who is also Black, tried to intervene, Taylor attacked her with the pipe and hurled racial slurs.

Footage from a police body camera showed Taylor continued his racist rant until he was arrested. Both Hornburg and Carter were transported to the hospital. Hornburg sustained life-altering injuries.

Police learned that earlier that morning, Taylor threatened Michael Okyere, who is Black, with the metal pipe and shouted racial slurs at him. Nearby firefighters intervened and chased him away….

3/25/2014: Burwell v. Hobby Lobby Stores argued.

Town of Greece v. Galloway (2014) presaged the Court's turn towards history and tradition in the Establishment Clause context. The case concerned whether religious prayers could be offered before a town council meeting began. Some of the prayers were fairly "generic." They referred to general concepts like "Lord," "Our father," and so on. Other prayers were explicitly Christian and referenced Jesus, crucifixion, and resurrection. During oral argument, Justice Kagan read from one of the more sectarian prayers: "We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. . . . Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn and put us by His side." Justice Kennedy's majority opinion rejected the argument that Greece's prayer policy "falls outside of our traditions because it was not generic or non-sectarian." Stated differently, the Establishment Clause does not permit the Court to block the prayer because it is sectarian.

The word "sectarian" has always given me difficulty. Where exactly is the line between "sectarian" and "non-sectarian"? Justice Kagan thought watered-down liturgy was fine but actual liturgy was not. Of course, to an Atheist or a Satanist, even a bland reference to "God" would be sectarian. So what is the actual meaning of "sectarian"?

A recent dissental from the Ninth Circuit in Woolard v. Thurmond speaks to this issue. The author, of course, is the judge who forever will be known as Swinging Dick VanDyke.

The case concerns California's Blaine Amendment, which prohibits the teaching of "sectarian or denominational doctrine" in California's public schools. But what does "sectarian" mean? The majority ruled that "sectarian" simply means religious. But Judge VanDyke offers a different answer:

The defendants, the district court, and the panel simply took for granted that "sectarian" means "religious." But linguistics and history show something else. The push for "nonsectarian" education did not represent a nineteenth-century attempt to secularize the first public schools—it instead represented a compromise among the Protestant Christian majority to educate public-school children in Christian teaching without wading into areas of denominational disagreement. The word "sectarian" thus deliberately encompassed some religious beliefs (such as beliefs peculiar to Catholics or Mormons, or even denominational doctrinal divides between Protestants), but not all religious beliefs (such as teaching from the King James Bible and the Apostles' Creed). California's Blaine Amendment thus presents a clear-cut case of attempted facial discrimination between competing religious beliefs. On its face, the law expressly allows the teaching of nonsectarian, generic Christian doctrine in public schools, but not the teaching of any sectarian doctrine. That discrimination between religions plainly runs afoul of the First Amendment's Religion Clauses, as the unanimous Supreme Court clarified once again just last term. See Cath. Charities Bureau, Inc. v. Wisc. Lab. & Indus. Rev. Comm'n, 605 U.S. 238, 247 (2025) (noting that "[a] law that differentiates between religions along theological lines" violates the Establishment Clause and the Free Exercise Clause).

Judge VanDyke relies on Robert Natelson's 2018 article, Why Nineteenth Century Bans on "Sectarian" Aid Are Facially Unconstitutional: New Evidence on Plain Meaning.

Judge VanDyke writes further:

Most nineteenth-century Americans considered Catholics and Mormons to be "sectarian," and some contemporaneous writers thought that Muslims and some Jews could be "sectarian" too, while Christians such as Unitarians, Quakers, Methodists, Baptists, Episcopalians, and even Orthodox Christians were spared the label. Id. at 104–05. But either way, saying that "sectarian" means "religious" is like saying that "dime" means "coin." All sectarian materials are religious, but not all religious materials are sectarian. . . . The takeaway is clear enough: both before and after California's Blaine Amendment went into effect, explicitly religious Christian doctrine was commonplace in California public schools. So we should stop pretending that California's Blaine Amendment was ever meant or originally applied to ban all "religious" content from public education. It was meant to ban only some religious content—that deemed too "sectarian" or "denominational"—while welcoming other more generic, "nonsectarian" Christian content. In short, California's Blaine Amendment was meant and applied to discriminate based on religion—not between the religious and the secular, as California and the panel have wrongly assumed, but instead between some religious content and other religious content.

If Judge VanDyke is right, then Blaine Amendments are facially unconstitutional. Like in Town of Greece, it cannot be the rule that "generic" religion can be taught but teachings of a particular faith cannot be taught. To use an example, the law cannot permit teaching doctrines from the Unitarian Church but not the Catholic Church.

I will note that Judge VanDyke favorably cited Noah Feldman. Feldman called the "swinging dicks" dissent "a contender for the most vulgar piece of judicial writing in the 300-plus-year history of recorded judicial decisions in the English language." I think Buck v. Bell should win that category. If only Holmes began the opinion, "This case is about cutting tubes."

From the Consent Decree filed today in Missouri v. Biden (W.D. La.):

As President Trump stated upon taking office on January 20, 2025, "[o]ver the last 4 years, the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve." "Under the guise of combatting 'misinformation,' 'disinformation,' and 'malinformation,' the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government's preferred narrative about significant matters of public debate." To prevent such censorship from recurring, Plaintiffs and Defendants agree to the terms set forth below, to be enforced upon approval by the Court, for a period of 10 years.

Individual Plaintiffs, Dr. Aaron Kheriaty, Ms. Jill Hines, and Mr. Jim Hoft, joined by the States of Missouri and Louisiana, alleged … that federal government Defendants unlawfully pressured, coerced, induced, and encouraged major social media platforms to censor their posts about Covid-19, the Hunter Biden laptop report, and the 2020 Presidential election….

The Parties … agree that government, politicians, media, academics, or anyone else applying labels such as "misinformation," "disinformation," or "malinformation" to speech does not render it constitutionally unprotected. See United States v. Alvarez (2012) (plurality op.) ("Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.")….

[T]he Government [therefore] cannot take actions, formal or informal, directly or indirectly—except as authorized by law—to threaten Social-Media Companies with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech….

For some backstory, see this DoJ press release ("Murder For Hire Convict Sentenced To Ten Years In Prison" / "Allen Gessen Was Convicted Of Soliciting an Undercover Agent to Murder the Estranged Mother of His Children") and the N.Y. Times introduction of the podcast. From Allen Gessen v. Masha Gessen, decided today by Judge Leo Sorokin (D. Mass.); note that Allen Gessen is a lawyer, albeit unsurprisingly now a disbarred one:

This action began with a flurry of simultaneous filings by [Allen] Gessen. He filed a complaint naming himself and his children, O.G. and E.G., as plaintiffs and bringing claims against a journalist who is his cousin, The New York Times, and Serial Productions. The claims seek to prevent the publication of a podcast the defendants are producing about Gessen and his family. The complaint was accompanied by motions to proceed anonymously and to seal Gessen's submissions to the Court.

Lawyers who aren't members of a court's bar can still usually represent clients in that court, so long as they ask for admission "pro hac vice" (for this occasion only) and engage a local counsel who is a member of the bar. Unsurprisingly, this means local counsel will be responsible for the pro hac counsel, as an opinion from Magistrate Judge Mark Clarke (D. Ore.) yesterday in Couvrette v. Wisnovsky illustrates:

The Court ORDERS [local counsel] Mr. Murphy to pay [$14,205.66, which is] 15% of Defendants' Amended Bill of Costs and Reasonable Attorney Fees. Mr. Murphy is also ORDERED to attach this Opinion and Order with any future motions for leave to appear pro hac vice in which he seeks to associate as local counsel in the District of Oregon….

Ms. Couvrette … [had] asked Mr. Murphy to serve as local counsel for Mr. Brigandi's pro hac vice admission. Mr. Murphy signed Mr. Birgandi's pro hac vice application and personally attested that he read and understood the requirements of serving as local counsel under LR 83-3….

Mr. Brigandi's son was dating Ms. Couvrette's daughter, and Mr. Brigandi had agreed to represent Plaintiffs for free. According to Mr. Murphy, Mr. Brigandi was primarily responsible for the litigation strategy and for all dispositive motions practice. Mr. Murphy explained, "[m]y role mostly involved strategizing with Mr. Brigandi and Ms. Couvrette on how to fashion a settlement in connection to the commercial property…. I believed that my expertise in landlord tenant law would be helpful." …

At issue before the Court is whether Mr. Murphy willfully violated [Local Rule] 83-3 by failing to meaningfully participate in the case. Mr. Murphy argues that the Court should not impose a sanction because he did not participate in the summary judgment briefing and he was unaware that the Local Rules required him to review his associated pro hac vice counsel's filings prior to submission.

From Judge Emmet G. Sullivan (D.D.C.) today in Bobulinski v. Hutchinson:

The following facts are taken from the allegations in the Complaint, which the Court assumes are true for the purposes of deciding this motion and construes in Mr. Bobulinski's favor. Mr. Bobulinski is a "decorated Navy veteran and successful businessman." After his military service, Mr. Bobulinski joined Hunter Biden in or around 2017 as a business partner serving as CEO of SinoHawk Holdings, "a company designed to find investments in the United States." Mr. Bobulinski subsequently "confirmed to the United States Senate the veracity of [] emails [indicating] that Joe Biden was involved with his son's business dealings with foreign nations, and that the Biden family accepted money from foreign nations."

"On November 1, 2020, Mr. Bobulinski attended one of President Trump['s] campaign rallies in Rome, Georgia, and briefly met with Mark Meadows, President Trump's Chief of Staff, during the rally." Ms. Hutchinson served as principal assistant to Mr. Meadows; and in September 2023 published a book entitled, Enough. In the book, Ms. Hutchinson describes the meeting between Mr. Bobulinski and Mr. Meadows at the campaign rally as follows:

In the shadows of the bleachers, I observed Mark and Tony Bobulinski's interaction through a gap in the vehicles. When they said their goodbyes, I saw Mark hand Tony what appeared to be a folded sheet of paper or a small envelope.

Bobulinski alleges that Ms. Cassidy's statement is false: "at no point did Mr. Meadows hand Mr. Bobulinski any sheet of paper or envelope."

Mr. Bobulinski alleges that Ms. Hutchinson "made this accusation to imply that Mr. Bobulinski was involved with some sort of shady business dealing with Mr. Meadows," and that her commentary and juxtaposition of other facts creates a "defamatory implication." In support, he quotes the following text:

From Friday's Executive Order, "Preserving America's Game":

Section 1. Purpose. For over a century, the Army-Navy Game, known as "America's Game," has stood as a symbol of excellence and the American spirit. Now, the recent and potentially ongoing expansion of the College Football Playoffs (CFP) and other postseason college football games threatens to encroach upon the second Saturday in December—a date traditionally reserved exclusively for "America's Game." Such scheduling conflicts weaken the national focus on our Military Service Academies and detract from a morale-building event of vital interest to the Department of War. Accordingly, it is the policy of the United States that no college football game, specifically college football's CFP or other postseason games, be broadcast in a manner that directly conflicts with the Army‑Navy Game….

Sec. 2. Implementation. (a) The Secretary of Commerce and the Chairman of the Federal Communications Commission (FCC) shall coordinate with the CFP Committee, the National Collegiate Athletic Association, related organizations, other appropriate Government agencies, and the playoffs' broadcast and media rights partners with the goal of establishing an exclusive window for the Army-Navy Game, during which no other college football game is broadcast.

(b) The Chairman of the FCC shall consider reviewing the public interest obligations of broadcast licensees to determine whether those obligations would require that the Army-Navy Game remain a national service event.

Sec. 3. General Provisions.… (b) This order shall be implemented consistent with applicable law ….

A few thoughts on why this strikes me as an attempt to unconstitutionally pressure broadcasters:

In U.S. v. Williamson, Fifth Circuit Judges Jacques Wiener, Don Willett, and Cory Wilson followed Fifth Circuit precedent in holding that the federal ban on gun possession by a felon was constitutional. But Judge Willett, joined by Judge Wilson, added this concurrence:

I remain doubtful that our precedent rejecting enumerated-powers challenges to § 922(g)(1) was correctly decided. As a threshold matter, "Congress has no power to enact a comprehensive criminal code, … § 922[(g)], like every other federal statute, must be based on one or more of Congress's powers enumerated in the Constitution." The Interstate Commerce Clause is a "natural first place to look." But the Clause's original meaning—adherence to which is "[t]he first and most important rule in constitutional interpretation" —does not support § 922(g)(1).

Consider the ratification debates. How could the Federalists have assured skeptics that Congress lacked power to infringe individual rights —including the right to "keep … Arms"—if the mere exercise of that right were itself enough to trigger federal power? If mere possession sufficed, the Commerce Clause would quietly—but completely—confer the very general police power the Constitution withholds from Congress.

To be sure, the Supreme Court has embraced an "expansive interpretation of the commerce power." But even that understanding extends only to "three general categories of regulation"—none of which includes "[m]ere possession of a firearm." [The concurrence cited Gonzales v. Raich (2005), which listed the "three general categories" as "regulat[ing] the channels of interstate commerce," "regulat[ing] and protect[ing] the instrumentalities of interstate commerce, and persons or things in interstate commerce," and "regulat[ing] activities that substantially affect interstate commerce. -EV] For that reason, I remain open to reconsidering our precedent insulating § 922(g)(1) from enumerated-powers challenges.

The article is here; some excerpts from the Introduction:

Starting in the 1980s under President Reagan, the FCC curtailed or abandoned most of the content regulations of broadcasting that it had earlier promulgated. That pattern continued through the Biden Administration: Such regulation was largely dormant. Statutes regulating content existed (although, with the episodic exception of indecency, they were interpreted narrowly). But regulations created by the FCC were either repealed (notably the fairness doctrine), never applied (e.g., the broadcast hoax rule), or applied so rarely and weakly as to be toothless (e.g., the broadcast news distortion policy).

Broadcast television may seem like a relic of the past to some readers of this Article. But it garners more than 20% of all television viewing, and the legal issues it raises are important. The developments presented in this Article highlight important questions about the desirability of regulation and tell an instructive story about roads taken and not taken.

There are two key elements of the legal landscape for broadcasting. First, every license is for a term of years and then is subject to renewal under the statutory "public interest, convenience, and necessity" standard. The same public interest standard applies to any application to transfer a license from one entity to another, which means that any corporate merger or acquisition involving licenses requires the FCC finding that the transfer is consistent with the public interest. And, as judicial opinions and Commission practice make clear, the public interest standard extends well beyond concerns about competition.

How can the FCC exercise such pervasive control over a means of communication? That implicates the second key element of the legal landscape—Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.

From Woolard v. Thurmond, written by Judge Andrew Hurwitz and joined by Judges Eric Miller and Jennifer Sung, and released in slightly amended form yesterday:

California provides free public education through its common schools. It long did so through brick-and-mortar schools owned and operated by public school districts. In 1992, California authorized the establishment of charter schools, "public schools funded with public money but run by private individuals or entities rather than traditional public school districts."

Like traditional public schools, charter schools can provide non-classroom-based instruction, including "independent study" programs, in which parents provide home-based direct instruction approved by the school and coordinated, evaluated, and supervised by state-certified teachers. To participate in these programs, parents must enter into a contract with the school specifying the objectives, methods of study, and methods used for evaluating student work. The school is then required to provide appropriate materials and services necessary to achieve the agreement's objectives.

The plaintiffs … are parents and guardians of students enrolled in independent study programs at two California charter schools who requested that the schools purchase and permit the use of sectarian curricular materials for instruction in the programs. The schools rejected those requests because California law provides that "sectarian or denominational doctrine" shall not "be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State," Cal. Const. art. IX, § 8, and that "a charter school shall be nonsectarian in its programs." The plaintiffs claim that the rejection of their request pursuant to those laws violates the Free Exercise and Free Speech Clauses ….

3/24/2009: Citizens United v. FEC argued for the first time.

This week is a busy travel period. Sunday evening, I flew from Houston to Phoenix. Monday afternoon, I spoke at the Arizona State FedSoc chapter on a panel about antisemitism. Tomorrow, I have a FedSoc double-header in North Carolina: UNC Law at lunchtime and Duke Law in the evening. And Wednesday I am speaking to the Triangle Lawyer's Chapter in Raleigh. I fly back to Houston on Wednesday.

As you may have heard, airports are a bit of a mess now. Fortunately, so far I have avoided the mess.

On Sunday, I was closely tracking the wait times at various check points at IAH. For a brief period, the Pre-Check line was open at Terminal A with a short wait. Even though my flight was out of Terminal C, I could easily connect via the Skyway. My Uber driver took me to Terminal A. But there was so much traffic we couldn't make it up the ramp. (The backup was due to people spilling out of the terminal onto the street.) So I hopped out of the car, got my suitcase from the trunk, and walked into the garage. On the ground floor of the airport there was this massive queue. A signed indicated the wait from that point was more than two hours. I did not get on that line, knowing the Pre-Check line was shorter. I walked around baggage claim, and up a different escalator that took me to the departures area. Because I had TSA Touchless ID, I had no wait at all. I was through security in about a minute, even as posted wait times stretched three hours.

Monday presented different travel challenges. The problem today had nothing to do with TSA. Here, I can blame American Airlines. My talk was from 12:15-1:15. My flight from PHX to RDU (Raleigh-Durham) was scheduled to depart at 4:15. That gave me a leisurely gap. As is my practice, early in the morning, I checked the inbound flight (coming from Denver), and the inbound flight to the Denver flight (coming from Charlotte). Early on, I saw that the Charlotte leg was delayed by about 3 hours and in turn the Denver leg was delayed by 3 hours. My own flight was not yet delayed, but I knew it was coming. Around 11:30, American sent an alert with the delay, and allowed me to cancel my ticket with a refund to the original form of payment. That's all I needed to hear. American was anticipating a potential cancellation. Shortly before I had to walk over to ASU, I researched other options. I was in an American hub, so I figured flights to Charlotte would be more frequent. Charlotte is a 2.5 hour drive from Chapel Hill. Close enough. I could pre-order an Uber from CLT to Chapel Hill.

I found a flight from PHX to CLT leaving at 2:50. My event would finish at 1:15, so I would need to hustle. And if there was a long line at the airport, I would be even more squeezed. For a last minute fare, the rates were high, but not crazy. The difference between the coach fare and the business class fare was only $300, which I purchased. There were only a handful of middle seats in the back of the plane, which I would struggle with. Plus I knew I would need every minute. A business class ticket relieves the pressure, as I can board later and still have overhead space for my bag.

I was nervous about long waits at the airport. I compulsively checked the wait times for PHX at various junctures and noticed that the lines never exceeded 20 minutes or so. As I would later find out, the ICE Police were taking on many of the duties. At my checkpoint, ICE was helping people put their items in bins and ushering them through medical detectors. No, they were not asking for papers. I know some people had nefarious thoughts, but the assistance smoothed the process. I made it through security in a few minutes. I even had time to get some food for the four-hour flight.

I would use that four-hour flight productively. I read the entire Watson transcript and wrote a post about the case. At present (around 11:15 ET), I am in the Uber on my way to Chapel Hill. I should be there shortly after midnight. My original flight took off about 40 minutes ago, and will land around 3:00 AM. So yes, all this work to get to the hotel about three hours early. But I avoided the angst of waiting by a gate for four hours. That flight could just as well have been cancelled, and I would have been stuck in Phoenix for one more night.

I do not anticipate the shutdown will be resolved in the next 48 hours, so I I've already made provisions for Wednesday when I fly home. Clear lets you book a "concierge" experience where they will meet you at the curb and escort you through security. In most cases, paying $99 for this service seems like an absolute waste of money, but if it saves a two-hour wait, it is well worth it. Alas, IAH has no available concierge slots left for the foreseeable future. Either they are all booked, or the service has been disabled. I have one event next week, and already told the chapter that if there are four hour waits at the airport, I will have to switch to Zoom. Indeed, I worry that I could not even make my return flight given the finish time of the event and potential delays.

In sum, the first rule of traveling (as Gary Leff often says) is to never stop moving. Always be proactive, and never reactive. Keep an eye on all options, have backup plans, and don't be afraid to change travel plans on short notice. And never try to fit a tight connection. It's not worth it. In all my years of traveling, I have unexpectedly gotten stuck in a city overnight once. It was, fittingly enough, in Phoenix more than a decade ago.

The Volokh Conspiracy

Possible $5K Sanctions for Repeated Mis-Citation in Coomer v. Lindell / My Pillow Election-Related Libel Suit

On Scholarly Engagement

Utah Court of Appeals Upholds Dismissal of Child Sexual Abuse Accusations

Grant of Mental Health Pretrial Diversion for Man Accused of Attempted Murder Reversed

Today in Supreme Court History: March 25, 2014

Open Thread

What Is The Original Meaning of "Sectarian"?

Trump Administration Agrees to Consent Decree in Missouri v. Biden Social Media Case

Court Dismisses Suit Against N.Y. Times & Serial Productions over The Idiot Podcast

$14K Sanction for Local Counsel's Not Meaningfully Supervising Out-of-Jurisdiction Counsel

Court Dismisses Libel Claim by Ex-Hunter-Biden Business Partner Tony Bobulinski Against Ex-Trump-White-House-Aide Cassidy Hutchinson

Trump Administration Trying to Pressure Broadcasters Not to Schedule Football Game Broadcasts for Same Time as Army-Navy Game

Felon Gun Possession Bans, the Commerce Clause, and the Second Amendment

Journal of Free Speech Law: "Making Broadcast Content Regulation Aggressive Again," by Stuart Minor Benjamin

Divided Ninth Circuit Upholds California Exclusion of Religious Curricula from Parent-Designed Charter School "Independent Study Programs"

Today in Supreme Court History: March 24, 2009

Open Thread

The First Rule Of Traveling Is Never Stop Moving

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76