Eugene Volokh's Blog, page 103

[Ilya Somin] Thoughts on Today's Oral Argument in Our Case Against Trump's IEEPA Tariffs

[Outcomes are hard to predict. But the judges seemed skeptical of the government's claim that Trump has virtually unlimited authority to impose tariffs.]

(NA)

Earlier today, a three-judge panel of the US Court of International Trade heard oral arguments in the case challenging Donald Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf five US businesses harmed by the tariffs. The Administration claims that the President's imposition of 10% or higher tariffs on virtually every nation in the world is authorized by the International Emergency Economic Powers Act of 1977 even though IEEPA doesn't mention tariffs at all, and its invocation requires the existence of a "national emergency" and an "unusual and extraordinary threat" to the United States.

Audio of the oral argument is available at the Court of International Trade website. It's generally difficult to predict the the outcome of a case based on oral argument. Judges will sometimes rule on issues that get little or no play in argument. Still, I was encouraged by the fact that all three judges seemed skeptical of the government's claim that IEEPA gives the president virtually unlimited power to impose tariffs. And, as we have argued from the beginning, the government's position amounts to saying that the president can impose tariffs of any amount, on any nation, at any time, for as long as he wants.

The issue of limits came up again and again during the argument. Judge Restani noted to the government's lawyer that "[t]here's no limit, is what you're saying — there's no limit." She also suggested that the government's position would enable the president to declare that a shortage of peanut butter qualifies as a "national emergency" and an "unusual and extraordinary threat" justifying tariffs. She did not strike me as happy with that state of affairs.

Judge Katzmann suggested that the government's position amounted to "deleting" the role of the judiciary from reviewing the legality of tariffs. Judge Reif - whom some observers believed was the judge least likely to support our case - seemed troubled by the fact that the government's ultra-broad interpretation of IEEPA would allow the president to bypass a number of other statutes that authorize the executive to impose tariffs in narrower circumstances, but only after following mandated procedural rules. If IEEPA grants the kind of sweeping authority Trump claims, there would be little point to these other laws.

In fairness, the judges also had some tough questions for LJC Senior Counsel Jeffrey Schwab, who argued the case for us. In particular, they focused on the issue of whether we have a standard for judging what qualifies as an "emergency" or an "unusual and extraordinary threat."

I think, as Jeff noted in oral argument, the longstanding and entirely normal trade deficits that the administration cites in this case, are so obviously neither an emergency nor unusual and extraordinary that the court could simply say they don't meet any plausible standards. As Jeff put it, an umpire doesn't have to precisely define the strike zone to call a ball on a pitch that's so far from the plate that it goes behind the batter and can be considered a wild pitch.

But if the court wants to articulate a standard, they should, as Jeff later indicated, conclude that, as the House of Representatives report leading to IEEPA put it, "emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems." Trade deficits are pretty obviously neither rare nor brief, and they are clearly "normal ongoing problems." Similarly, as even the government's counsel suggested, an "unusual and extraordinary threat" must be something that is "not usual." Trade deficits are in fact entirely "usual."

I was also struck by the fact that none of the judges asked about remedies or the scope o the injunction that should be imposed against the tariffs if we prevail, including whether the injunction should be nationwide or limited to our clients.

Overall, I am guardedly optimistic, though it's always possible that the judges' statements in oral argument don't fully indicate their thinking. We tentatively expect a ruling from the court within the next few weeks.

I have gone over the legal issues in the case in greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." See also my post on why these sweeping tariffs threaten the rule of law.

There are also several other cases challenging the tariffs, including one filed by twelve states led by Oregon, which will be heard by the same CIT panel on May 21. In addition, there is the aptly named Princess Awesome case filed by the Pacific Legal Foundation on behalf of ten businesses (also before the CIT), a case filed by the state of California in federal district court, one by the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer, filed in district court), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada, filed in district court; that court ruled the case should be transferred to CIT, and the plaintiffs have appealed that ruling).

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[Eugene Volokh] Florida Ban on "Depict[ing] or Simulat[ing] … Lewd Conduct" in Performances Where Children Are Present Struck Down

A short excerpt from the long opinion today in HM Florida-ORL, LLC v. Governor, decided by Judge Robin Rosenbaum, joined by Judge Nancy Abudu:

Justice Potter Stewart famously offered a non-definition of obscenity: "I know it when I see it." Jacobellis v. Ohio (Stewart, J., concurring). Many know Justice Stewart's quip. But it's not, in fact, the law.

The Constitution demands specificity when the state restricts speech. Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech "obscene." An "I know it when I see it" test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.

Yet Florida's Senate Bill 1438 (the "Act") takes an "I know it when I see it" approach to regulating expression. The Act prohibits children's admission to "live performances" that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most. And Florida's history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court's injunction against its enforcement….

Secretary Griffin argues that the Act dutifully observes [the] requirements [in Miller v. California (1973), the leading precedent on obscenity] so it reaches only unprotected speech. The Act, she argues, "specifically defines" the activities that constitute an adult live performance: anything "depict[ing] or simulat[ing] nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in [Section] 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts."

She continues, asserting the Act then bars children's admittance to performances that feature such representations and meet all three prongs of the Miller test: appeal to the prurient interest, patent offensiveness, and the lack of serious value. And, Griffin says, the statute adjusts the standards for the second and third prongs of the Miller test to be "for the age of the child present." That is, prohibited performances must lack serious "value for the age of the child present" and be "patently offensive … with respect to what is suitable material or conduct for the age of the child present." …

But the court concluded that the term "lewd conduct" goes beyond the boundaries of Miller, in part because it's not well-defined:

Miller is clear that when a state seeks to punish speech as obscene, it must "specifically define[ ]" the forbidden depictions. One of the Miller Court's example definitions—"patently offensive representations or descriptions of … lewd exhibition of the genitals"—proves the point. "Lewd exhibition of the genitals" obviously belongs to the larger category of "lewd conduct." So if "lewd conduct" were sufficiently specific to meet Miller's test, the Court would have had no reason to provide a more precise description. Instead, Miller shows that states can't define obscenity by taking a broad descriptor like "lewd" and applying it to the entire universe of "conduct." Doing so would eviscerate Miller's "specific definition" requirement and amount to little more than an "I know it when I see it" test for obscenity, which Miller rejects….

[T]he Act's extensively detailed prohibitions—of nudity, sexual conduct, and so on—essentially exhaust the types of "hard core" depictions that Miller described as potentially obscene. That means the Act's bar on "depict[ions of] … lewd conduct" must mean something different than the Miller-prohibited depictions, or it would be "mere surplus-age." And so we assume it does mean something different.

But neither Miller and its progeny nor the Florida materials Griffin presents even suggest a way to interpret "lewd conduct" that is distinct from the other prohibited depictions but accords with Miller's specificity requirement….

[Neither] the Secretary [nor] the dissent … provide a single example of "lewd conduct" that might be constitutionally deemed obscene (at least for minors) but is not already covered by the Act's other terms. Even the Secretary waffles on this point, arguing only that "it is unclear whether" the Act's other terms "extend[ ] to the full reach of what is regulable as obscenity." Yet Florida's determination that performances like Jimbo's are "lewd" suggest the state views that term broadly indeed….

The court also concluded that "The Act's 'age-variable' obscenity standard is overbroad":

Dating back to Ginsberg v. New York (1968), "harmful to minors" statutes have typically defined which content is harmful with reference to minors as a whole. For example, Florida law generally defines "harmful to minors" as that which "is patently offensive … for minors" and "is without serious value … for minors."

Of course, "minors" are not an undifferentiated group. What is "harmful" for a child just learning to read may be very different than what is obscene for an adolescent on the edge of adulthood.

This poses two related challenges for "harmful to minors" statutes. The first is interpretive: when a statute regulates material that lacks serious value and is patently offensive "for minors," which minors are the reference group? The second relates to overbreadth: if the obscenity standard for minors is based on the youngest group of children or the average child across all ages, it will cover much more material, and older minors could lose access to harmless material on account of younger children's sensitivities.

This problem and related overbreadth issues led the Supreme Court in Virginia v. American Booksellers Association, Inc. (1988), to ask Virginia's high court to clarify the state's statute barring the display to juveniles of material "harmful to minors." The Virginia Supreme Court interpreted the state's statute narrowly to mitigate the overbreadth threat. Speech had "serious value" for minors, the court said, if it "has serious value for a legitimate minority of juveniles, … consist[ing] of older, normal (not deviant) adolescents." …

[This] interpretation of typical "harmful to minors" statutes protects older children's rights. But it means that younger children may encounter material suitable for kids a few years older.

Responding to this potential underinclusion, the Act takes a different (and to our knowledge, novel) approach to protecting minors from harmful material. The Act adjusts the Miller standards for what is "patently offensive" and what has "serious value" to be "for the age of the child present." On paper, the Act is the Goldilocks of speech regulation, ensuring each child can access only that speech that is "just right" for their age. Seventeen-year-olds have access to speech that would be obscene as to sixteen-year-olds but not eighteen-year-olds, sixteen-year-olds can see content that would be obscene as to fifteen-year-olds but not seventeen-year-olds, and so on.

But the Act's strategy to avoid overbreadth problems introduces other ones. The age-by-age maturity test is impossibly vague. At oral argument, we asked the Secretary's counsel how to determine what might be acceptable for a twelve-year-old but not an eight-year-old. Even when pressed, he could provide no guidance and instead simply acknowledged that there were "edge cases." Of course, most laws have edge cases, and standard "harmful to minor" statutes are no exception. But as interpreted in Webb, these have only one "edge": the line between minority and adulthood.

In contrast, the Act has, at a minimum, eighteen (and perhaps as many as 6,575). It asks speech purveyors to make judgements about what is appropriate for children year-by-year (or maybe month-by-month, week-by-week, or day-by-day—the Act is not clear). This results in all the usual harms of statutory vagueness. The Act will chill more speech relative to the typical "harmful to minors" statute that Webb contemplated: rather than risking a chill for only speech at the border of adult obscenity, the Act threatens speech that might clearly be appropriate for seventeen-year-olds (so not "harmful to minors" under a statute like the one in Webb) but questionable for children of younger ages. Worse still, the Act's vague standards create ample room for discriminatory enforcement.

Not only that, but which speech is appropriate for children of different ages under the Act is left extraordinarily vague. The Act provides no guidance. That contrasts mightily with other instances when Florida has identified content it deems appropriate for children based on their age: grade-level educational standards. Take Florida's grade-by-grade standards for K–12 education. They're extraordinarily detailed, running to 229 pages—and that's just for math class. But here, the Act does little to teach speakers, performance venues, parents, or anyone else who might "admit" a child to a performance what is acceptable for children of any given age.

Consider this example: Miami is home to an historic, thirty-five-foot-tall billboard for Coppertone sunscreen, which features the brand's historic logo—a girl, perhaps age seven, or so, with a dog pulling at her swimsuit, revealing her pale posterior and its contrast with her tanned skin. Clearly, some have objected to this cheeky logo: Coppertone once removed the "Coppertone girl" from the brand's logo, then reinstated her with partial, then full coverage of her backside. Would a depiction like the Coppertone logo be "patently offensive" for a five-year-old? An eight-year-old? How about a seventeen-year-old? We don't know, and we don't think the burden should be on speakers to find out.

We do not decide today whether minors' First Amendment rights and the speech that may be deemed obscene for them is the same at all ages. Obviously, children mature as they age (at least, their parents hope so). Many laws distinguish between children based on their age. Driving privileges or children's ability to work often phase in gradually over the course of adolescence. Some privileges, like buying alcohol, are age-restricted even among those who are at least eighteen.

But these rules provide very clear guidance as to what they permit, when. The Act doesn't, even as it regulates speech, where "standards of permissible statutory vagueness are strict." The resulting uncertainty as to what is permissible for children of different ages creates an obvious chilling effect that increases the Act's effective breadth.

True, the distinction between seventeen and eighteen—the one we enshrined in Webb—is not inherently less arbitrary or less vague than the distinction between any other two ages. But much of our law and culture are oriented around the singular age of majority. It is one thing to have a line between obscenity for adults and for minors: it's just one line, drawn in parallel to the countless social norms and legal rights that distinguish between adults and children. This rich social context gives meaning and relative clarity to the line between that which is within minors' rights to access and that which is "adults-only." …

Judge Bard Tjoflat dissented; for more details, see pp. 82-127 of this PDF.

Brice Moffatt Timmons and Craig A. Edgington (Watson Burns, PLLC), Gary Steven Israel, (Gary S. Israel, PA), and Melissa Stewart (Donati Law, PLLC) represent plaintiff.

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[Eugene Volokh] Defamation Lawsuit Against Def Con Cybersecurity Conference Dismissed

["[I]t is irrelevant that Defendant Def Con did not know at the time the Transparency Reports were published whether Hadnagy had or had not engaged in sexual misconduct. Rather, if the sexual misconduct implications were in fact true at the time the Transparency Reports were published, Def Con is shielded by the truth defense."]

A short excerpt from today's long decision by Magistrate Judge Brian Tsuchida in Hadnagy v. Moss (W.D. Wash.):

This case involves a defamation claim brought by Plaintiff, a past participant of the Def Con annual cybersecurity and hacking conference, against Defendant, the Def Con conference organizer. Plaintiff Hadnagy hosted a social-engineering village called SEVillage at the Def Con conference. Def Con's Code of Conduct prohibits "harassment," which includes "deliberate intimidation and targeting individuals in a manner that makes them feel uncomfortable, unwelcome, or afraid" and Def Con reserves the right to expel participants for harassment. Def Con permanently bans "repeat offenders and those who commit more egregious offenses."

Based on a report of retaliation by Hadnagy made by a former employee and a Zoom call in which others complained of Hadnagy's conduct, Def Con banned Hadnagy from its conferences and on February 9, 2022, issued the following "Transparency Statement":

We received multiple CoC [Code of Conduct] violation reports about a DEF CON village leader, Chris Hadnagy of the SE Village. After conversations with the reporting parties and Chris, we are confident that the severity of the transgressions merits a ban from Def Con.

Hadnagy alleges in his lawsuit that this statement led to wide-spread speculation the transgressions were sexual in nature.

On July 28, 2022, Def Con posted another Transparency Report clarifying the significance of the lifetime ban by stating: "[i]n the case of the most troubling offenses or those who we feel may represent on ongoing risk to the community, we take the extra step of naming them publicly" so as not "to provide cover for these individuals to quietly find new and unsuspecting victims elsewhere." On January 13, 2023, Def Con posted the following "Transparency Update:" During our investigation we spoke directly with Mr. Hadnagy about claims of his violations of our Code of Conduct. He confirmed his behavior and agreed to stop. Unfortunately, the behavior did not stop.

Hadnagy contends there are factual disputes that Def Con spoke directly with him and whether he "confirmed his behavior and agreed to stop." Hadnagy bears the burden of proving the challenged statements are false or left a false impression by omitted facts and in publishing the statements, Def Con knew or in the exercise of reasonable care, should have known the statements were false….

Def Con has submitted evidence obtained during written and deposition discovery in this lawsuit to confirm a "pattern of retaliation and disparagement" by Hadnagy against others in the infosec community….. Hadnagy has not provided evidence that disputes: (1) his fixation on [his former employee] Maxie [Reynolds'] appearance or his attacks on her as a "awful psycho bitch"; (2) his repeated references to [former employee] Michele Fincher as a "hot Asian," and her discomfort of his sexualized trainings or his repeatedly bullying and screaming; (3) that he threw a phone at [former employee] Cat Murdock, belittled employees, and joked about pulling out a switchblade to stab people; (4) Jess Levine's testimony she saw Hadnagy drunkenly brandish a switchblade, berated her to the point of tears and unlawfully withheld her paycheck; (5) Sam Gambles' testimony Hadnagy regularly commented on her physical appearance in a way that made her uncomfortable, made sexually explicit remarks to her in 2021, and gave her an unwanted kiss on the forehead; (6) Geoffrey Vaughan's 2016 emails regarding Hadnagy's inappropriate behavior in training sessions which included references to pornography; and (7) Hadnagy's own acknowledgment that his conduct was inappropriate or could be perceived as inappropriate….

Def Con argues Hadnagy has not and cannot dispute that before Def Con issued its first Transparency Report, Hadnagy actually had engaged in misconduct involving fixating on the bodies of females, violent temper outbursts, berating and insulting employees, sexual fetishization of Asian women, holding inappropriate sexualized trainings, and brandishing a switchblade at the Def Con conference and in the workplace….

Hadnagy's challenge focuses upon what evidence Def Con actually knew about at the time it issued its Transparency Reports. Hadnagy contends, when Def Con issued the Transparency Report and Transparency Updates, they lacked information of any impropriety of a sexual nature. Hadnagy argues while Def Con's Transparency Report "does not explicitly state the ban was related to sexual misconduct, Defendants knew of should have known the context in which it was made was 'capable of' that defamatory meaning." … Essentially, Hadnagy reasons that absent … knowledge [of sexual misconduct], Def Con's Transparency Reports were false and defamatory when issued, even though subsequent discovery establishes the sexual misconduct implications are in fact true….

The court rejected the claim, relying on the Restatement (Second) of Torts § 518(h), which provides, "if the defamatory matter is true, it is immaterial that the person who publishes it believes it to be false; it is enough that it turns out to be true."

[I]t is irrelevant that Defendant Def Con did not know at the time the Transparency Reports were published whether Hadnagy had or had not engaged in sexual misconduct. Rather, if the sexual misconduct implications were in fact true at the time the Transparency Reports were published, Def Con is shielded by the truth defense. The restatement's language "if the reports ultimately are true," further suggests that evidence discovered after Def Con's Transparency Reports were published may be used in a truth defense, if that evidence sets forth acts committed by Hadnagy before the Transparency Reports were published….

Hadnagy's argument that Def Con cannot rely upon information discovered after the Transparency Reports were issued to prove the statements contained in the publications are true is also critical as to whether the Transparency Reports proximately caused the harm Hadnagy alleges. There is no dispute the language of the Transparency Reports do not state Hadnagy engaged in sexual misconduct, which is the focus of Hadnagy's claim. Hence the language of the Transparency Reports alone did not proximately harm Hadnagy.

The harm Hadnagy alleges flows from the implication he was banned from Def Con due to sexual misconduct. However, even assuming Def Con should have known the potential defamatory impact of the Transparency Reports, the fact the allegations of Hadnagy's sexual misconduct have ultimately been shown to be true is a complete defense as true statements are not defamatory and thus cannot proximately cause harm….

David Perez and Matthew Joseph Mertens (Perkins Coie LLP) and John S. Stapleton and Jonathan L. Cochran (LeVan Stapleton Segal Cochran LLC) represent defendant.

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[Eugene Volokh] AI Hallucination in Filings Involving 14th-Largest U.S. Law Firm Lead to $31K in Sanctions

[The judge finds "a collective debacle"—possibly caused, I think, by two firms working together and the communications problems this can cause—though "conclude[s] that additional financial or disciplinary sanctions against the individual attorneys are not warranted."]

I should note up front that both of the firms involved (the massive 1700-lawyer national one and the smaller 45-lawyer predominantly California one) have, to my knowledge, excellent reputations, and the error is not at all characteristic of their work. As to the lawyer whose outline apparently started this, the court notes that he "candidly admitted … what happened, and is unreservedly remorseful about it." Likewise, the court adds, "In their declarations and during our recent hearing, [the lawyers'] admissions of responsibility have been full, fair, and sincere. I also accept their real and profuse apologies."

But that I think just shows that all firms, however large and respected, need to be extra careful about having all their submissions thoroughly checked.

From Special Master Michael Wilner's order last week in Lacey v. State Farm Gen. Ins. Co. (C.D. Cal.):

The attorneys representing Plaintiff in this civil action submitted briefs to the Special Master that contained bogus AI-generated research. After additional proceedings and considerable thought, I conclude that an award combining litigation sanctions against Plaintiff and financial payments from the lawyers and law firms is appropriate to address this misconduct.

I also conclude that additional financial or disciplinary sanctions against the individual attorneys are not warranted. This was a collective debacle, and is properly resolved without further jeopardy.

RELEVANT PROCEDURAL AND FACTUAL BACKGROUND

Discovery Proceedings Before the Special Master

In January 2025, the Court appointed me as Special Master in this insurance-related civil action. Central to the reason for my appointment was an ongoing dispute between the parties regarding the insurer's assertion of various privileges in discovery.

After handling intervening legal issues, I met with the parties in early April to discuss the insurer's privilege invocations. The parties provided me with detailed letter briefs regarding the discovery issue in advance of the meeting. When we met, the parties agreed to provide supplemental briefing on a discrete issue regarding the propriety of in camera review of some of the disputed documents.

The Briefs with AI Research

As recounted in detail in orders I issued on April 15 and 20 (attached to the Appendix to this order), Plaintiff's supplemental brief contained numerous false, inaccurate, and misleading legal citations and quotations. According to my after-the-fact review—and supported by the candid declarations of Plaintiff's lawyers—approximately nine of the 27 legal citations in the ten-page brief were incorrect in some way. At least two of the authorities cited do not exist at all. Additionally, several quotations attributed to the cited judicial opinions were phony and did not accurately represent those materials. {Some "pincites" were not correctly reported. While this could certainly impede research and review, I consider those errors to be at the mild end of the AI hallucination spectrum.} The lawyers' declarations ultimately made clear that the source of this problem was the inappropriate use of, and reliance on, AI tools.

Here's an abbreviated summary of the events. Plaintiff is represented by a large team of attorneys at two law firms (a lawyer moved from the Ellis George firm to K&L Gates during the course of the state court litigation underlying the insurance coverage action; the representation in the present case is shared between the two firms). {Although it's necessary to identify some parties involved here, I decline to name-and-shame all of the lawyers in this order. They know who they are, and don't need further notoriety here.} The lawyers admit that Mr. Copeland, an attorney at Ellis George, used various AI tools to generate an "outline" for the supplemental brief. That document contained the problematic legal research.

Mr. Copeland sent the outline to lawyers at K&L Gates. They incorporated the material into the brief. No attorney or staff member at either firm apparently cite-checked or otherwise reviewed that research before filing the brief with the Special Master. Based on the sworn statements of all involved (which I have no reason to doubt), the attorneys at K&L Gates didn't know that Mr. Copeland used AI to prepare the outline; nor did they ask him.

A further wrinkle. During my initial review of Plaintiff's brief, I was unable to confirm the accuracy of two of the authorities that the lawyers cited. I emailed the lawyers shortly after receiving the brief to have them address this anomaly. Later that day, K&L Gates re-submitted the brief without the two incorrect citations—but with the remaining AI-generated problems in the body of the text. An associate attorney sent me an innocuous e-mail thanking me for catching the two errors that were "inadvertently included" in the brief, and confirming that the citations in the Revised Brief had been "addressed and updated."

I didn't discover that Plaintiff's lawyers used AI—and re-submitted the brief with considerably more made-up citations and quotations beyond the two initial errors—until I issued a later OSC soliciting a more detailed explanation. The lawyers' sworn statements and subsequent submission of the actual AI-generated "outline" made clear the series of events that led to the false filings. The declarations also included profuse apologies and honest admissions of fault….

RELEVANT LEGAL AUTHORITY …

Rule 11(b) states, in relevant part, that when an attorney presents "a pleading, written motion, or other paper" to a court, the attorney "certifies that to the best of that person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances [that the] legal contentions are warranted by existing law." Rule 11(c)(3-4) states that a court may impose a sanction "limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." That may include "nonmonetary directives" or "an order directing payment [ ] of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation."

Rule 37(a)(5)(B) states that a court "must, after giving an opportunity to be heard, require [ ] the attorney filing [an unsuccessful discovery] motion [ ] to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees." Litigation-related sanctions (for disobeying a court's discovery order, but generally applicable to other circumstances) may include prohibiting a party from "supporting or opposing designated claims or defenses" or "striking pleadings in whole or in part." Fed. R. Civ. 37(b)(2)(A)(ii-iii).

Separate and apart from sanctions based on these rules, a court has the inherent authority to levy sanctions against a party or attorney for, inter alia, acting in "bad faith" or for otherwise "willfully abus[ing] judicial processes." Sanctions based on a federal court's inherent authority are "both broader and narrower than other means of imposing sanctions" because they encompass "a full range of litigation abuses."

The Ninth Circuit has concluded that such sanctions "are available if the court specifically finds bad faith or conduct tantamount to bad faith" by an attorney. The "tantamount to bad faith" standard includes "a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose."

With greater frequency, courts are now regularly evaluating the conduct of lawyers and pro se litigants who improperly use AI in submissions to judges….

ANALYSIS

I conclude that the lawyers involved in filing the Original and Revised Briefs collectively acted in a manner that was tantamount to bad faith. The initial, undisclosed use of AI products to generate the first draft of the brief was flat-out wrong. Even with recent advances, no reasonably competent attorney should out-source research and writing to this technology—particularly without any attempt to verify the accuracy of that material. And sending that material to other lawyers without disclosing its sketchy AI origins realistically put those professionals in harm's way. Mr. Copeland candidly admitted that this is what happened, and is unreservedly remorseful about it.

Yet, the conduct of the lawyers at K&L Gates is also deeply troubling. They failed to check the validity of the research sent to them. As a result, the fake information found its way into the Original Brief that I read. That's bad.

But, when I contacted them and let them know about my concerns regarding a portion of their research, the lawyers' solution was to excise the phony material and submit the Revised Brief—still containing a half-dozen AI errors. Further, even though the lawyers were on notice of a significant problem with the legal research (as flagged by the brief's recipient: the Special Master), there was no disclosure to me about the use of AI. Instead, the e-mail transmitting the new brief merely suggested an inadvertent production error, not improper reliance on technology. Translation: they had the information and the chance to fix this problem, but didn't take it.

I therefore conclude that (a) the initial undisclosed use of AI, (b) the failure to cite-check the Original Brief, and (perhaps most egregiously), (c) the re-submission of the defective Revised Brief without adequate disclosure of the use of AI, taken together, demonstrate reckless conduct with the improper purpose of trying to influence my analysis of the disputed privilege issues. The Ellis George and K&L Gates firms had adequate opportunities—before and after their error had been brought to their attention—to stop this from happening. Their failure to do so justifies measured sanctions under these circumstances.

Those sanctions are as follows. I have struck, and decline to consider, any of the supplemental briefs that Plaintiff submitted on the privilege issue. From this, I decline to award any of the discovery relief (augmenting a privilege log, ordering production of materials, or requiring in camera review of items) that Plaintiff sought in the proceedings that led up to the bogus briefs. I conclude that these non-monetary sanctions will suffice to "deter repetition of the conduct or comparable conduct by others similarly situated." If the undisclosed use of AI and the submission of fake law causes a client to lose a motion or case, lawyers will undoubtedly be deterred from going down that pointless route.

{At our recent hearing, Mr. Copeland movingly asserted that neither he nor his colleagues would engage in similar conduct in the future; exposure of these events was therefore sufficient to deter them from doing this again. I completely agree. But under the Rule, I also have to consider the goal of deterring other members of the legal community. In my estimation, more is required.}

The district judge's order appointing me initially required Defendant to pay the costs of the Special Master. However, that order expressly authorized me to shift fees when I deemed appropriate. It's certainly appropriate here. I've calculated that the fees for dealing with this issue (reviewing the various iterations of the defective briefs, issuing various orders and reviewing the responses, conducting the OSC hearing, and issuing this sanctions order) were approximately $26,100 (including service fees from the provider). Because Defendant advanced those fees to JAMS, Ellis George and K&L Gates are jointly and severally directed to pay that sum to the defense in reimbursement within 30 days.

I also gave serious consideration to ordering Plaintiff's lawyers to compensate the defense for time that Defendant's lawyers spent on their supplemental brief. A shift of fees to the winning party in a discovery motion is authorized and commonplace under Federal Rule of Civil Procedure 37(a)(5), and falls well within the inherent authority of the court to deter this conduct by others in the future. I also easily conclude that Plaintiff's lawyers were not "substantially justified" in using false information in advancing their legal positions on the privilege issue.

However, the amount of fees that the defense attested to (at my request, not theirs) for preparing the brief and attending the recent hearing approached $25,000. I don't have any reason to dispute that sum, but I don't believe that full compensation for the briefing process—one that the defense somewhat eagerly agreed to—isn't necessary for deterrence purposes. In an exercise of discretion, I direct Plaintiff's lawyers to pay the defense a total of $5,000 for fees incurred here.

{I note, but don't ascribe any weight to, Plaintiff's argument that Defendant wasn't prejudiced by the AI debacle because the parties submitted their briefs at the same time. Given the deterrence-based motivation of this sanction order, the serendipity of simultaneous v. sequential briefing is of limited relevance to my consideration of this point.

I'm also not swayed by the observation (in my original OSC, and echoed in Plaintiff's response brief) that, as it turned out, the AI hallucinations weren't too far off the mark in their recitations of the substantive law. That's a pretty weak no-harm, no-foul defense of the conduct here.}

My sanction notice informed the parties that I planned to order the lawyers to inform Plaintiff personally about the substance and outcome of this issue. The lawyers told me at the hearing that they already disclosed this information to their client; that's sufficient for me. I recognize that Mrs. Lacey is clearly not at fault for the AI debacle, but will bear this outcome as a consequence of her lawyers' actions. She will not, however, be financially responsible for the monetary awards described in this order. Those will fall solely on the lawyers and their firms.

In a further exercise of discretion, I decline to order any sanction or penalty against any of the individual lawyers involved here. In their declarations and during our recent hearing, their admissions of responsibility have been full, fair, and sincere. I also accept their real and profuse apologies. Justice would not be served by piling on them for their mistakes.

CONCLUSION

A final note. Directly put, Plaintiff's use of AI affirmatively misled me. I read their brief, was persuaded (or at least intrigued) by the authorities that they cited, and looked up the decisions to learn more about them—only to find that they didn't exist. That's scary. It almost led to the scarier outcome (from my perspective) of including those bogus materials in a judicial order. Strong deterrence is needed to make sure that attorneys don't succumb to this easy shortcut.

For these reasons, Plaintiff's supplemental briefs are struck, and no further discovery relief will be granted on the disputed privilege issue. Additionally, Plaintiff's law firms are ordered (jointly and severally) to pay compensation to the defense in the aggregate amount of $31,100.

The post AI Hallucination in Filings Involving 14th-Largest U.S. Law Firm Lead to $31K in Sanctions appeared first on Reason.com.

[Jonathan H. Adler] Amy Coney Barrett's "Suspension and Delegation" Revisited

[One of the justices wrote extensively about when and whether the writ of habeas corpus may be suspended.]

Last week, President Trump and Stephen Miller commented that the Administration is "looking" at whether the privilege of the writ of habeas corpus may be suspended. Insofar as Administration officials are actually looking at this question, they may want to revisit "Suspension and Delegation," an article from the Notre Dame Law Review written by then-Professor Amy Coney Barrett. (I blogged about this article in 2020 when then-Judge Barrett was nominated to the Supreme Court.)

In "Suspension and Delegation," Barrett concurred with the conventional understanding that only Congress has authority to suspend the writ of habeas corpus. More provocatively, she also suggested that there are limits on the extent to which Congress can delegate suspension authority to the President, and that some such prior suspensions were unconstitutional.

Here is the abstract:

A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of "rebellion or invasion" and when "the public Safety may require it. " Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the President, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the President to suspend the writ in Guantanamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the President some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred and in some instances, before one was even on the horizon.

Assuming that Justice Barrett still adheres to these views, she is unlikely to embrace Administration arguments in favor of suspending the writ or limiting its use by individuals alleged to be unlawfully present in the country or otherwise subject to deportation.

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[Josh Blackman] Solicitor General Is Still Waiting For An Actual Ruling In A.A.R.P. v. Trump

[Nearly a month has elapsed since the ACLU's very good Friday.]

On Friday, April 18, the Supreme Court issued an administrative stay of the alien's removal in the case formerly known as A.A.R.P. v. Trump.

There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See 28 U. S. C. §1651(a).

The Court ruled mere moments before the Fifth Circuit issued its order. Now, nearly a month later, the matter remains pending before the Court.

It is obvious to me that the Supreme Court was not really interested in waiting for the Fifth Circuit. Indeed, the Court probably thought it better to issue this interim ruling that created the impression that the bad judges in Texas were dragging their feet. No one in the media would pay attention to the case in the day and weeks after. All that matters is the initial headline.

But in reality, the government is stuck. The Supreme Court provisionally certified a class, which the District Court declined to certify. Many of the aliens in Texas are clearly removable under other authorities, but the Court's blunderbuss injunction blocks their removal on any grounds. And the Supreme Court has shown not even the slightest interest in resolving this dispute.

The Solicitor General has now come back to the Court with a supplemental memorandum regarding the emergency application, that has been pending for nearly a month.

The brief explains that the plaintiffs no longer need the Court's emergency ruling, since they have pursued further judicial relief:

Intervening developments make clear that neither interim nor permanent relief is warranted; that the equities now weigh particularly heavily against relief; and that, at a minimum, this Court should modify the temporary injunction to allow the government to remove these unlawfully present aliens pursuant to non-AEA authorities, which applicants have conceded the government should be able to do. . . .

Other developments also bear out the lack of grounds for relief. It has now been more than three weeks since this Court entered an order precluding the removal of all members of the putative class. That three-week time frame constitutes more than adequate opportunity to pursue judicial relief under any standard. Thus, no putative class member now has any plausible claim to denial of notice or opportunity to be heard. See Trump v. J.G.G., 145 S. Ct. 1003 (2025).

Moreover, many of the aliens in the "putative class" can be removed under other authorities. Yet the government is still handcuffed because of John Roberts's late night blue plate special:

Meanwhile, the equities have also swung further against relief. The Department of Homeland Security (DHS) estimates that there are some 176 putative class members. App., infra, 50a. Because this Court's order categorically prohibited removing those 176 putative class members even under non-AEA authorities, the government has been detaining these aliens instead of removing the many putative class members who may be otherwise removable under non-AEA authorities, such as Title 8 of the United States Code. Unsurprisingly, given that the putative class members were detained based on their membership in a designated foreign terrorist organization, they have proven to be especially dangerous to maintain in prolonged detention. Some 23 putative class members recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm ICE officers, as described in the appended Declaration of Joshua D. Johnson, Acting Field Office Director for the Dallas Field Office of U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security.

I remain baffled why the Court is willing to move heaven and earth to provide assistance to criminal aliens, but does nothing when other litigants come to the Court seeking emergency relief.

The government offers an easy way out of this morass:

Especially given those developments, the government requests that the Court lift its administrative injunction and deny further relief. The putative class members are not proper parties and have received adequate notice and opportunity to pursue habeas petitions. And the named petitioners have filed habeas petitions and have not shown an imminent risk of removal while those petitions are pending. At a minimum, the Court should modify the administrative injunction to permit the removal of any aliens eligible for removal under non-AEA immigration authorities.

I would hope that over the past month, Justices Gorsuch, Kavanaugh, and Barrett have seen how flawed the process was. Perhaps they joined the Chief's opinion based on less-than-perfect information about what the Fifth Circuit would do. Justice Alito and Thomas's dissent has improved by the day. This time for reflection may alter the relief offered.

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[Josh Blackman] The Chief's Blue Plate Special On Birthright Citizenship: A Second Helping Of DACA Reliance Interests

[If the Court's can't coalesce on a single rationale, we might see a redux of Department of Regents.]

On Sunday, I predicted that the Supreme Court will avoid resolving the various nationwide injunction issues in the birthright citizenship cases. Instead, the Court would issue a merits ruling based on the Fourteenth Amendment to make the case go away.

A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.

Another colleague suggested that the Court will find the national injunctions are improper, but suggest that the lower courts could certify nationwide classes under Rule 23. I suppose that option is preferable, since we would avoid the murky equitable power to issue nationwide injunctions. Rule 23 at least has the imprimatur of Congress (assuming the Rules Enabling Act is constitutional). But as a practical matter, courts are already certifying national classes in ex parte TRO hearings. I am skeptical there would be much of a practical difference if the Court goes down that road. The emergency docket will still remain active.

What will the Court do? I was pondering this question today, and I think I figured out the Chief's play. We will get a second helping of his blue plate special from the DACA case. The Court will simply find that the executive branch failed to adequately consider the reliance issues with suspending birthright citizenship. Specifically, the order did not explain how the policy would affect parents and their unborn children. Roberts can even cite Dobbs!

I know that the President's executive order is not subject to the APA, and Department of Regents is not directly on point. Details. The Chief can fashion some equitable principle based on reliance interests and hardships, and BAM! The Court then will never need to decide the meaning of the Citizenship Clause. Indeed, this punt would likely eliminate the issue for the foreseeable future.

My predictions are not very accurate, so please take this post with a heaping of salt.

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[Mark Movsesian] Remembering David Souter

[Recollections of a true gentleman]

Justice David Souter passed away last week. I clerked for him early in his tenure on the Court, in October Term 1992, and ever since the news, I've been thinking about him—talking with friends, family, and former colleagues who've reached out to share memories and condolences. 

To be honest, I hadn't planned to write anything about my time with him. He never cared much for public tributes, and I have always felt awkward telling stories about him, even good ones. I wasn't a close friend or confidant, just one of his former law clerks, and I didn't want to presume on my association with him. But I've come to feel that sharing a few memories, especially those that highlight what kind of person he was, might be helpful. Someday, historians will write about him. Maybe personal recollections like mine will add something. 

Justice Souter was a remarkable person and a true gentleman. He never had his head turned by Washington. That's an astonishing virtue. Washington is full of people with relatively unimportant jobs—chief assistant to the assistant chief—who nonetheless lord it over others. Justice Souter, who held one of the most powerful positions in the country, never made an issue of it. He simply did his job as he saw best. His rulings disappointed conservatives, but it's wrong to maintain, as some do, that he changed his views because of praise from Washington insiders. He didn't pay attention to those things. His fundamental convictions, in which he had great confidence—those of an old-fashioned, Yankee Republican—were always his own.  

When I clerked for him, he was in his early 50s. I remember him once casually remarking in chambers, "I'll do this job until I'm 70, and then I'll go home"—meaning, of course, New Hampshire. At the time, I doubted him. Supreme Court Justices rarely resign. It's too good a job, and besides, most come to identify so completely with the role that they have a hard time giving it up. But he did what he said, retiring at the age of 69. I have read that he timed his retirement to coincide with a Democratic president, and maybe that's true. But I know it wasn't the sole reason. He had talked about it long before.   

His relationships were not transactional. He treated everyone courteously, including those who could do nothing for him in return. Years after my clerkship ended, he maintained a warm correspondence with my family, who had met him once or twice during my time at the Court. "What a gentleman," my mother would say, after reading one of his charming, handwritten notes, always signed, "David." My brother proudly framed a witty, self-deprecating letter that the Justice once wrote to him about long-distance running. Now that my brother has passed away, I have it in my own home. 

Justice Souter could easily have asked someone to type and autopen those letters for him or not written them at all. But I'm sure it never occurred to him. And it wasn't only my family members who received such letters. He did the same for the families of other clerks.  

One memory from that year stands out for me especially. As a clerk, one of my responsibilities was proofreading final drafts of opinions. It was a routine thing, but on one such occasion, when Justice Souter was writing the opinion for the Court, I accidentally inserted the word "not" into a sentence, reversing its meaning. By the time I discovered my mistake, Justice Souter was already on the bench announcing the ruling, and the clerk's office had already released the opinion to the press. There was no way to fix it. 

I was mortified. I had messed up a Supreme Court opinion, and in my head, I was already becoming a cautionary tale: "Remember the law clerk who did that?" My co-clerks commiserated with me and agreed that the only thing to do was wait for the Justice to return to chambers and tell him what had happened. It was a long couple of hours. I walked around the block a few times and then, when the Court broke for lunch, knocked on the boss's door. I half expected to be fired.  

When I told him what I had done, he shook his head and chuckled. He said to let the clerk's office know so they could issue a corrected opinion. "Listen," he said, and he told me the perhaps apocryphal story of the young New York lawyer who had cost his client millions of dollars by accidentally including too many zeros in a bond debenture. "That's the sort of mistake you worry about, not this," he consoled. "Just take care of it." Greatly relieved, I followed his advice, and the clerk's office quietly issued a revised opinion. As far as I know, no one on the outside has ever been the wiser—until now, that is.  

The Justice joked with me about the episode once or twice that week and then seemed to forget about it. But I never have. More than 30 years later, I remember his kindness and generosity to me at that moment. In Washington, many in much lesser positions would have reacted differently. I have known a few of them, myself. But Justice Souter was a man of warmth, humor, understanding, and loyalty to all those fortunate enough to work for him. I will always feel grateful for that, and loyal to his memory, in return.   

May he rest in peace. 

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[Orin S. Kerr] Revised Version of "Data Scanning and the Fourth Amendment"

[Now up to date.]

I have posted a revised version of my draft paper, Data Scanning and the Fourth Amendment.  It adds a bunch of new cases, including the various opinions from the Fourth Circuit's en banc ruling in United States v. Chatrie.  It also updates the tech section.  Abstract below.

A crucial question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a "search" occurs? The issue pops up in contexts ranging from geofence warrants and reverse keyword searches to the installation of Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of the search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no Fourth Amendment oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan?

This essay argues that that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. Data that passes through a filter is searched or not searched depending on whether the filter is set to expose that specific information. The proper question is what information is expressly or implicitly exposed, not what raw data passes through the filter or the raw data output. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, tower dumps, and Internet pen registers.

This is just a draft, and it won't be submitted to journals until August or so. As always, comments are very welcome.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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