Eugene Volokh's Blog, page 179

[Josh Blackman] Acting SG Asks SCOTUS To Hold Briefing Schedules For Pending Cases

The Solicitor General has filed briefs in three cases, currently pending on the docket. First, in , SG Sarah Harris asked the Court to hold the briefing in abeyance, with the petitioners opposing the motion. Second, in , Harris asked the Court to hold the briefing in abeyance, with the respondents consenting. Third, in EPA v. Calumet Shreveport Refining, Harris asked the Court to hold the briefing in abeyance, with respondents opposing the motion.

The government's cert petition in Oklahoma v. EPA is pending now. The government asked to hold the briefing in abeyance. Again, the petitions who represent states and industry groups opposed.

I think in the cases where the government is the petitioner, the SG will move to withdraw the cert petition. And they may try to knock the other cases off the docket by seeking to modify rules.

These sorts of presidential reversals happen every time a new administration comes to town. I wrote about this topic in my article, Presidential Maladministration. In , the Obama DOJ withdrew a pending cert petition filed by the Bush Administration in New Jersey v. EPA. The Court granted the motion to dismiss the petition. In 2017, Gloucester County School Board v. Grimm fell off the Court's docket after the Trump Administration changed the Title IX regulations. And in February 2021, the Biden SG withdrew the Trump SG's brief in California v. Texas. And in April 2021, the Biden SG filed an out-of-time brief in Terry v. United States.

The trickier option is for cases already argued, and a decision is pending like Skrmetti and Van Der Stock. The SG can't actually say anything to the Court, at least publicly.

Update: The SG also filed a letter in Louisiana v. Callais, a voting rights case.

Following the change in Administration, the Department of Justice has reconsidered the government's position in these cases. The purpose of this letter is to notify the Court that the previously filed brief no longer represents the position of the United States. In addition, the United States is withdrawing its pending motion to participate in the oral argument.

The post Acting SG Asks SCOTUS To Hold Briefing Schedules For Pending Cases appeared first on Reason.com.

[Eugene Volokh] Friday Open Thread

The post Friday Open Thread appeared first on Reason.com.

[Josh Blackman] SCOTUS Grants Cert In Oklahoma Charter School Case, With Justice Barrett Recused

Today the Court granted review in Oklahoma Charter School Board v. Drummond. This is an important religious liberty case concerning "whether a state violates the First Amendment's free exercise clause by excluding privately run religious schools from the state's charter-school program solely because the schools are religious." The case should be argued in April.

However, Justice Barrett is recused. My best guess is the recusal is somehow related to Notre Dame Law Professor Nicole Garnett, who is Barrett's friend and colleague. Garnett has provided legal representation to the school, but as best as I can tell, her name does not appear on any Supreme Court brief. Justice Barrett did not explain the precise basis for the recusal, so we are left wondering.

I think this rationale matters. Is recusal justified solely based on a close friendship with someone who was represented a party in the case in unrelated matters, even if that friend is not counsel in the case? Or did Barrett have some personal connection with the school during her time?

Critics will seize on this precedent to attack Justices Thomas and Alito, without fail.

Update: I see that the Notre Dame Religious Liberty Clinic is on the brief for the . Barrett is paid by Notre Dame University, but not the clinic. I don't see why this would force her recusal. Regrettably, this recusal may make it very difficult for the clinic to participate in other cases, because clients may fear that Justice Barrett will recuse should the case ever make it to the Supreme Court. And in any religious liberty case, Barrett's vote is likely needed.

The post SCOTUS Grants Cert In Oklahoma Charter School Case, With Justice Barrett Recused appeared first on Reason.com.

[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

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

Friends, Short Circuit is turning 10, and we're having a party! Sláinte! Please come join us, retired judges Diane Wood and Kent Jordan, and a full cast of noteworthies on Thursday, April 3, 2025, at 7pm at the Studio Theatre in Washington, D.C. for lively discussion and a live recording of the Short Circuit podcast. Register here today!

Some people think that natural gas is a much cleaner and more efficient fuel than many of its alternatives and that it would be good to be able to transport it by rail. Others think that doing so risks unleashing an explosion "equal to that of the atomic bomb that was dropped on Hiroshima." The D.C. Circuit "express[es] no opinion on the wisdom" of either position, but it thinks that no matter who is right it's essential to do a lot more environmental paperwork. After two state chemists in Massachusetts were revealed to have rampantly tampered with drug evidence and falsified test results, the state's high court vacated over 30,000 criminal cases and ordered the repayment of most of the funds collected as a consequence of those convictions. But, said the court, folks were not necessarily entitled to the automatic return of property forfeited in connection with those cases. (Since, simplifying slightly, Massachusetts's forfeiture regime—which has the distinction of earning the only F grade in IJ's nationwide Policing for Profit study—lets the state confiscate your stuff based on mere probable cause.) First Circuit: And the hoary Ex parte Young doctrine means these folks are out of luck in federal court too. Two married Indian nationals have lawfully lived in the United States on employment-based nonimmigrant visas since 2012. After waiting in line almost eight years for a green card, they thought they had reached the front, only to be told two years later that their applications were on hold indefinitely until more immigrant visas became available. The last time this happened, applicants waited eight to nine years for final adjudication. Fed up with the delays, they sue. Third Circuit: Federal law gives USCIS unreviewable discretion on how to manage green card applications and the visa backlog. Whether this particular policy is sound is not for courts to say. Fayetteville, N.C. police approach the front of a house to conduct a "knock and talk," finding two juveniles who say that the owner isn't home. The officers nevertheless walk around the house, enter the backyard, and approach a shed, in which they find the owner and the smell of marijuana. Based on that evidence, police get a warrant and find contraband. The owner argues, inter alia, that he received ineffective assistance because counsel should have moved to suppress evidence due to officers exceeding the "knock and talk" doctrine—a claim that the lower court concluded was "frivolous." Fourth Circuit: It's not knock-and-talk-and-walk-around-the-backyard. We need an evidentiary hearing to determine whether the officers violated the owner's Fourth Amendment rights. Reversed and remanded. Prince William County, Va. court documents are available to anyone who shows up in person and uses a public-access terminal, but if you want to access the documents remotely, you have to be a Virginia-licensed lawyer. Courthouse News Service challenges the restriction as a violation of the First Amendment. Fourth Circuit: But it's a content-neutral time/place/manner restriction, so we're not too bothered by it. Dissent: Actually, it's "listener-based discrimination," a murky concept that has been lurking in our First Amendment jurisprudence and that we should take more seriously. Former member of the Old Guard (a storied U.S. Army unit) takes a phone call in his parked car on road between the Pentagon and Arlington Cemetery. Along with his wild gesticulations, this arouses the suspicion of police, who discover that the car's registration is expired and that the man doesn't have a license on him. They search the car, revealing guns, a smoke grenade, and body armor. They send him on his way and tow his car with the property in it. The next day, police decide that the body armor must be stolen. They arrest him, and he spends seven months in jail until a judge determines that the search violated the Fourth Amendment and the state drops the charges. Fourth Circuit: But the cops have qualified immunity against the man's civil claim of a Fourth Amendment violation. Norfolk, Va. plaintiff: The city declared my property a public nuisance and knocked it down. That's a taking! Fourth Circuit: Either your property was a nuisance, which means it wasn't a taking to knock it down, or it wasn't a nuisance, which means the city knocked it down for no good reason instead of for a public use, and that's not a taking either. New Orleans couple gets into an argument, and police respond. They enter the yard, and one shoots a 22 lb. puppy named Apollo who did not bark, growl, jump, bare his teeth, or lunge. Instead, Apollo wagged his tail—for the last time. Fifth Circuit (unpublished): No qualified immunity. For years, Thetford Twp., Mich. property owners seek license to operate an auto-related business, but in 2015 officials deny their application once again—this time on the ground that it's illegal to have a business and residence on the same property. It turns out that's not quite true, and, after a few more years of litigation, the owners finally get their license. Then they sue, alleging that the township discriminated against them in violation of equal protection, while granting licenses to similar businesses operating in residential areas. Sixth Circuit (unpublished): Although officials' rationales for denying the license "may be concerning," that's fine under rational-basis review, which required the owners to refute "every conceivable basis" for the township's decision. Dissent: The license denials were based on "shifting and demonstrably false rationales." This case should have gone to trial. Madisonville, Ky. plaintiff: The city declared my property a public nuisance and knocked it down. That violates due process! Sixth Circuit: Yeah, we're pretty sure the Constitution requires you to have some way to challenge that nuisance declaration before things get to the knocking-down stage. Concurrence: There is absolutely no way the Framers would have thought you could knock down somebody's house just because you announced it was a nuisance. Arizona law prohibits criminal defendants or their legal defense team from initiating contact with the alleged victim of a crime unless they do so through the prosecutor's office. Defense attorneys challenge the restriction as a violation of the First Amendment. Ninth Circuit: But (1) they brought a facial challenge, which we can only grant if a substantial number of the law's applications are unconstitutional, and (2) they didn't challenge the law's application to victim interviews, which is the vast majority of what the law regulates. Perhaps a narrower challenge would succeed, but this one fails. Butterfly knives are incredibly cool, but are they also "arms" protected by the Second Amendment? Ninth Circuit (2023): Yes; Hawaiʻi's ban on butterfly knives is unconstitutional. Ninth Circuit (2025, en banc): After we granted en banc review and vacated the panel opinion, Hawaiʻi changed the law to moot plaintiffs' claims. So we don't need to decide that. Dissents: Our practice of granting en banc review and vacating panel opinions whenever a Second Amendment plaintiff wins is encouraging states to strategically moot cases and manipulate our jurisdiction to erase unfavorable precedent, and we shouldn't let them get away with that. Unionized HVAC workers and Macy's fail to negotiate a new contract. After striking for three months, the workers unconditionally offer to return to work. Macy's responds by locking them out. The NLRB finds the lockout was an unfair labor practice. It orders backpay and—crucially—"other direct or foreseeable pecuniary harms" such as expenses made in looking for other work. But can the NLRB do that? Ninth Circuit: Sure can, it's for the public good. Dissent: This is like a personal claim for damages, which the NLRB lacks jurisdiction over. Plus, we're splitting with the Third Circuit who just ruled the other way. And in amicus brief news: Two years ago this week, Justice Gorsuch penned a cert-denial dissent (in an IJ case) admonishing lower courts to quit making the "mistake[]" of saying that multi-million-dollar civil penalties are not "fines" under the Excessive Fines Clause. Since then, the DOJ has diligently continued trying to persuade lower courts to keep making precisely that mistake. Enjoy our latest amicus brief, hot off the presses in the Fourth Circuit, sensibly explaining why the DOJ is wrong.

New cert petition! In 1872, the Supreme Court ruled that when the gov't destroys private property that right there is a "taking" requiring just compensation the same as if the property was taken by eminent domain. There are some caveats and qualifications, but none of them—nor any intervening caselaw in the last 150 years—mean that the gov't is exempted from takings liability when a SWAT team blows up an innocent person's house to capture a fugitive. Nevertheless, lower courts have in recent years invented a variety of ahistorical and unjustifiable exceptions to let the gov't wriggle out of its obligations and to shift the cost of enforcing the law onto a few unlucky individuals rather than the public as a whole. Now we're asking SCOTUS to summarily reverse some woolly reasoning from the Sixth Circuit in light of a statement respecting the denial of cert last month on the same claims (decided on different grounds) by the Fifth Circuit. For a capacious rumination on the relevant precedents, have a listen to this lovingly crafted  podcast episode.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

[Eugene Volokh] Hiring a Research Fellow in Free Speech Law for 1 or 2 Years, at the Hoover Institution (Stanford)

This was announced back in August, but I thought I'd pass it along again; if you're interested, please apply, and if you know people who might be interested, please pass this along to them.

Opportunity for Post-JD Scholars

The Hoover Institution at Stanford University is seeking an outstanding early-career legal scholar interested in researching free speech law, in preparation for seeking an academic position at a law school or elsewhere.

If selected, you would work on your own research with the guidance and supervision of Senior Fellow Eugene Volokh, who has moved to Hoover after 30 years as a Professor of Law at UCLA School of Law. You would be appointed a Research Fellow with the Center for Free Expression, for one year from July 2025 through June 2026. The term may be renewed, if both you and Hoover agree, for one extra year. You would be expected to be physically present at the Institution, working full-time, with no competing major professional commitments.

There is no teaching obligation, so you would have maximum time to research and write. However, you would be expected to help organize and participate in occasional conferences, workshops, and lectures, and to work on occasional projects with Volokh or other Senior Fellows. These tasks would all be related to free speech law and are expected to help promote your own research and future career.

Eligibility Criteria:

You must have a JD or its equivalent by June 2025. You must commit to staying for at least one year (July 2025 through June 2026). The date range might be moved back slightly if required because of a judicial clerkship that will keep you occupied until July to September 2025. A judicial clerkship (past or upcoming) is not required, though it is a plus. Work experience as a lawyer is not required, though some such experience is a plus. A PhD in another discipline is not required, though neither is it frowned upon. You must have written a publishable law journal article already while in law school or shortly after. Whether it has already been published or not does not matter, so long as it is essentially complete. That article need not have been on free speech law. You must be planning to work on free speech law, understood broadly. This is not limited to First Amendment law, but includes federal or state statutes, common law rules, state constitutional provisions, transnational or international legal provisions, and rules of important private institutions—so long as they relate to the regulation (or deregulation) of speech, press, expression, assembly, expressive association, petition, and the like. Likewise, it includes doctrinal, historical, theoretical, and empirical scholarship. We prefer projects on important but insufficiently studied topics, rather than on ones that have already been heavily researched by others.

To Apply, Please Submit:

Your resume Your law school transcript Plans for at least two research projects, described in some detail; draft Introductions for what would become journal articles tend to be a good format At least one published or completed and publishable research article Any other articles, whether published or in draft Contact information for three professors or other legal scholars who can speak to your intellect, writing, or research agenda

Requirements:

The Research Fellowship position provides full Stanford benefits with a salary range of $80,000-125,000. Depending on individual circumstances, a housing and relocation allowance may also be provided.

Completed applications must be submitted online by Deadline to Apply: February 1, 2025

Please direct questions to Julie Park at julp@stanford.edu.

About Stanford University's Hoover Institution:

The Hoover Institution on War, Revolution, and Peace is a public policy research center devoted to the advanced study of economics, politics, history, political economy, and law—both domestic and foreign—as well as international affairs. It is located on the Stanford University campus and is an academic unit of the University.

The Hoover Institution is an equal employment opportunity and affirmative action employer. All qualified applicants will receive consideration without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, protected veteran status, or any other characteristic protected by law.

The post Hiring a Research Fellow in Free Speech Law for 1 or 2 Years, at the Hoover Institution (Stanford) appeared first on Reason.com.

[Eugene Volokh] Federal Prosecutors Dropping HIPAA Charges Against Dr. Ethan Haim, Stemming from Youth Gender Medicine Disclosures

From the Justice Department's press release about the charges in June:

A Houston doctor has been indicted for obtaining protected individual health information for patients that were not under his care and without authorization, announced Alamdar S. Hamdani….

The four-count indictment alleges Haim obtained personal information including patient names, treatment codes and the attending physician from Texas Children's Hospital's (TCH) electronic system without authorization. He allegedly obtained this information under false pretenses and with intent to cause malicious harm to TCH.

According to the indictment, Haim was a resident at Baylor College of Medicine and had previous rotations at TCH as part of his residency.

In April 2023, Haim allegedly requested to re-activate his login access at TCH to access pediatric patients not under his care. The indictment alleges he obtained unauthorized access to personal information of pediatric patients under false pretenses and later disclosed it to a media contact.

From the Free Press (Tom Bartlett):

Haim decided to tell the media what was happening at his hospital. He knew taking a public stance on such a divisive issue could undermine his medical career before it really started, so he was determined to remain anonymous. He told me he didn't present his findings to hospital administrators because it was obvious to him that what was happening had the approval of higher-ups.

Eventually, Haim contacted Christopher Rufo, the conservative activist and journalist. Rufo published a story in May 2023, not naming Haim, but calling him a "whistleblower" at Texas Children's. It was illustrated with heavily redacted versions of the patients' records. (Shortly after, the Texas legislature voted to pass its law banning transition treatments for minors.) …

The records Haim disclosed include the ages of patients, some as young as 11 and 12. They also include their diagnoses and brief treatment summaries—most were getting puberty blockers inserted. To conceal the patients' identities, Haim stripped out their names, birth dates, and other identifying information before sending the records to Rufo. (Haim points out the irony that in the indictment against him, the initials of several patients are listed, which means the government published more identifying information than he did.) …

Haim believes he wasn't indicted for violating patient privacy, which he says he would never do. Instead, he thinks the Justice Department intended to silence him and, in so doing, send a message to other would-be whistleblowers.

The joint motion to dismiss the indictment offers no details, other than saying:

The United States … and the defendant, Eithan David Haim, hereby move this Court for an order dismissing the Second Superseding Indictment and all open counts with prejudice.

But presumably the Trump Administration had a different view on the matter than did the Biden Administration.

UPDATE 1/24/2025, 4:51 pm: The court has signed off on the dismissal, so the charges have been dismissed with prejudice.

The post Federal Prosecutors Dropping HIPAA Charges Against Dr. Ethan Haim, Stemming from Youth Gender Medicine Disclosures appeared first on Reason.com.

[Eugene Volokh] AI Hallucinations in a Self-Represented Litigant's Brief in the Colorado Court of Appeals

Even lawyers have at times filed briefs containing AI-hallucinated citations; but the danger is likely especially great for the many self-represented litigants. Here, for instance, is a passage from the Dec. 26 decision of the Colorado Court of Appeals in Al-Hamim v. Star Hearthstone, LLC, written by Colorado Court of Appeals Judges Lino Lipinsky, joined by Judges Jerry Jones and Grant Sullivan; the underlying case was a landlord-tenant dispute, but I'm focusing here on the discussion of the AI hallucinations:

Al-Hamim's opening brief in this appeal contained hallucinations, as well as bona fide legal citations. This case provides the first opportunity for a Colorado appellate court to address the appropriate sanction when a self-represented litigant files a brief peppered with GAI-produced hallucinations…. We affirm the court's judgment against Al-Hamim and put him, the bar, and self-represented litigants on notice that we may impose sanctions if a future filing in this court cites "non-existent judicial opinions with fake quotes and citations." …

Al-Hamim's opening brief contains citations to [eight] fake cases …. After we attempted, without success, to locate these cases, we ordered Al-Hamim to provide complete and unedited copies of the cases, or if the citations were GAI hallucinations, to show cause why he should not be sanctioned for citing fake cases. In his response to our show cause order, Al-Hamim admitted that he relied on AI "to assist his preparation" of his opening brief, confirmed that the citations were hallucinations, and that he "failed to inspect the brief." He did not address why he should not be sanctioned….

A GAI system "can generate citations to totally fabricated court decisions bearing seemingly real party names, with seemingly real reporter, volume, and page references, and seemingly real dates of decision[ ]." These hallucinations "can relate, in whole or in part, to the case name, case citation, and/or the content or holding of a fake case or a real judicial decision." …

Accordingly, using a GAI tool to draft a legal document can pose serious risks if the user does not thoroughly review the tool's output. Reliance on a GAI tool not trained with legal authorities can "lead both unwitting lawyers and nonlawyers astray." A self-represented litigant may not understand that a GAI tool may confidently respond to a query regarding a legal topic "even if the answer contains errors, hallucinations, falsehoods, or biases." (In 2023 and 2024, various companies introduced GAI tools trained using legal authorities. Those legal GAI tools are not implicated in this appeal, and we offer no opinion on their ability to provide accurate responses to queries concerning legal issues.) …

Even if Al-Hamim lacked actual knowledge that GAI tools can produce fake citations, "[a] pro se litigant who chooses to rely upon his own understanding of legal principles and procedures is required to follow the same procedural rules as those who are qualified to practice law and must be prepared to accept the consequences of his mistakes and errors." (We note that Al-Hamim filed his opening brief on June 24, 2024 — more than one year after media outlets throughout the country [citing the N.Y. Times and the AP] reported on the attorneys' submission of a brief filled with ChatGPT-generated hallucinations in Mata v. Avianca, Inc. (S.D.N.Y. 2023)….

The court, however, declined to impose sanctions on this particular litigant:

While we conclude that Al-Hamim's submission of a brief containing hallucinations violated C.A.R. 28(a)(7)(B), this deviation from the Appellate Rules was not as serious as the self-represented appellant's misconduct in [a previous case where sanctions were imposed in part because] {[t]he appellant's violations included his failure "to file an Appendix," to provide "an [ ]adequate Statement of Facts," and to include a "Points Relied On" section in her brief}. Further, in his response to our show cause order, Al-Hamim acknowledged his use of AI, apologized for his mistake, and accepted responsibility for including hallucinations in his opening brief. (We rejected his request to submit an amended opening brief that only cited real cases, however. While we do not impose sanctions against Al-Hamim, his inclusion of hallucinations in his original brief does not entitle him to a second opportunity to file an opening brief.)

Because until now, no Colorado appellate court has considered appropriate sanctions for a self-represented litigant's submission of a brief containing GAI-derived hallucinations, and because the record does not show that Al-Hamim previously filed court documents containing fake citations, we conclude that imposing monetary sanctions or dismissing this appeal would be disproportionate to Al-Hamim's violation of the Appellate Rules. Further, in their answer brief, the landlords failed to alert this court to the hallucinations in Al-Hamim's opening brief and did not request an award of attorney fees against Al-Hamim. Under the circumstances, we exercise our discretion not to order Al-Hamim to pay the landlords' attorney fees or to impose another form of sanction against him.

However, we warn Al-Hamim, as well as lawyers and self-represented parties who appear in this court, that we will not "look kindly on similar infractions in the future." A lawyer's or a self-represented party's future filing in this court containing GAI-generated hallucinations may result in sanctions….

 

The post AI Hallucinations in a Self-Represented Litigant's Brief in the Colorado Court of Appeals appeared first on Reason.com.

[Josh Blackman] Members of the International Criminal Court Need To Relearn The Lesson of Marbury v. Madison

Another semester, another section of constitutional law. This week I taught Marbury v. Madison for the umpteenth time. Beyond teaching the mechanics of the Original Jurisdiction clause and the Judiciary Act of 1789, I always try to convey to my students why Marshall wrote the opinion backwards: Why decide the merits question about the commission before the jurisdictional question? The answer, as all know, was that Marshall was trying to establish the principle of judicial review for federal legislation. (And no, he did not create judicial review; read Hamilton in Federalist No. 78.)

Yet, lurking in the background was a fear. If Marshall had in fact ordered Secretary of State James Madison, an appointee of President Thomas Jefferson, to deliver Marbury's commission, it is likely the order would have been disregarded. It is not a certainty, but there was definitely that risk. If so, Marshall recognized what would happen if his court issued an order that was ignored: the court, as an institution, would be diminished.

At this point in class, I always ask students why do people follow court orders. The usual answer is that if you ignore the court, you will go to jail. That's fine, but it is the executive branch that will actually arrest a person and incarcerate them. Judges do not get off their benches and place handcuffs on a person. As Hamilton explained in Federalist No. 78, courts have neither force nor will, only judgment. Courts depend on the executive branch to enforce their judgments.

I then ask why does the executive branch enforce a court's judgments. The usual answer is that without that sort of enforcement, there would be anarchy and chaos in society. Maybe that's right. But at bottom, the answer is that the executive branch enforces the court's judgments because the executive branch thinks the court plays a valid role in society, even if any particular decision might be right or wrong.

I then ask whether the President should enforce a blatantly unconstitutional ruling (you can think of what that would be). At that point, students get a bit queasy. Some judicial supremacists (even if they do not know the term yet) say that court judgments should be enforced no matter what. Other departmentalists (even if they do not know the term yet) say that the President can decide for himself whether the order is constitutional, and enforce accordingly. Most students are in the middle, and don't quite know what to think, at least during the first week of class.

This class helped me bring into context the International Criminal Court (ICC). This judicial body sits in the Hague. (I wrote about its jurisdiction here.) The ICC has asserted the power to issue arrest warrants for war criminals, including heads of state. The ICC has no actual power to command people to the Hague. Rather, signatories to the Rome Convention have a legal obligation to arrest anyone in their jurisdiction that is subject to an ICC warrant. So are member states actually enforcing these arrest warrants? No. Consider three examples.

Example #1. Russian President Vladimir Putin is subject to an arrest warrant. Yet he was welcomed with a state visit to Mongolia, a signatory to the Rome Convention. The ICC Pre-Trial Chamber (whatever that is) found that Mongolia failed to cooperate with the arrest warrant. But so what? Will there be any actual consequences? Putin has also visited China, and President Trump has announced that he will visit with Putin. The ICC's ruling are less than parchment barriers.

Example #2. The ICC issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu. Netanyahu was invited to Poland for the 80th anniversary of the liberation of the Auschwitz Concentration Camp. Poland is a signatory to the Rome Convention, but signaled that it would not arrest Netanyahu. Can you imagine the Poles putting handcuffs on the Israeli prime minister at the site of an actual genocide? Maybe they could have loaded him on a railcar--there are still tracks at the camp--through Germany onto the Netherlands? And what will the consequences of Poland's refusal to enforce the warrant be? Absolutely nothing. Other European nations like France and Italy said Netanyahu could visit, citing the fact that he is a current head of state and has diplomatic immunity. Legalistic distinctions without a difference. What is going on here? These nations have determined that their own diplomatic interests with Israel dwarf whatever manufactured claims of genocide have been brought forward.

Example #3. The ICC issued an arrest warrant for Osama Elmasry Njeem, a Libyan charged with war crimes. The Italian police actually arrested Njeem, but the government did not transport him to the Hague. Rather, two days later Italy escorted Njeem back to Libya. The Prime Minister of Italy cited "procedural" reasons for returning him. But there may be another reason. Italy needs Libya's cooperation to handle the migrant situation. Returning Njeem likely helped Italy's diplomatic relations with Italy. By contrast, sending Njeem to the Hague would have harmed those relations. Which did Italy choose? Which option would any sane country choose? The arrest warrant was disregarded.

The ICC is John Marshall's worst nightmare: a court issues orders that are routinely flouted. This is not really a court. It is a body of progressive human rights lawyers who wear powdered whigs and robes. They are cosplaying as judges, but have no actual sovereign authority of their own. It's as if the Harvard Law Review editorial board ordered that certain scholars should be arrested for writing the wrong type of scholarship. (Maybe these are the sorts of "consequences" Seth Barrett Tillman worried about.)

The ICC is emblematic of my general view about international law. International law is designed to allow smaller, weaker countries to exert power over larger, stronger countries. In the normal course of things, larger, stronger counters can use their diplomatic or military clout to achieve their ends. Smaller, weaker countries do not have either diplomatic or military clout, so they have to dress up their demands in the fancy garb of "international human rights law" and other such abstract legalisms. But at bottom, any "court" decision must be backed up by political will. And absent that political will, ICC opinions are little more than window dressing for human rights lawyers without any actual mandate.

Every action has an equal and opposite reaction. In 2002, Congress enacted the American Service-Members' Protection Act, known informally as The Hague Invasion Act. The law gives the president the power to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court." This is effectively a declaration of war against the Hague if any American servicemember is detained.

In 2020, the ICC began an investigation of American troops in Afghanistan, and Congress imposed sanctions on the Chief Prosecutor and her aide. This month, the House voted to impose sanctions on the entire ICC, and the Senate likely will agree. The ICC is already preparing for the crushing financial consequences. Microsoft, for example, would likely have to stop working with the ICC.

The members of this court need to relearn the lesson from Marbury. If you issue orders that will be ignore, you will no longer be a court.

The post Members of the International Criminal Court Need To Relearn The Lesson of Marbury v. Madison appeared first on Reason.com.

[Samuel Bray] Three Notes on National Injunctions

Three notes on national injunctions. First, today the Court issued a stay of another universal injunction, this time in McHenry v. Texas Top Cop Shop, Inc. The Solicitor General had suggested that the Court could construe the stay request as a petition for certiorari before judgment, allowing the Court to directly address the universal injunction question. One reason that matters is that it would be good for the Court to tackle the universal-relief question directly, without the additional complexities that come from the context of the Administrative Procedure Act.

The Court did not grant certoriari before judgment, and Justice Gorsuch wrote a brief concurrence in the stay:

I agree with the Court that the government is entitled to a stay of the district court's universal injunction. I would, however, go a step further and, as the government suggests, take this case now to resolve definitively the question whether a district court may issue universal injunctive relief. See Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (GORSUCH, J., concurring in grant of stay) (slip op., at 4–5, 11–13); Department of Homeland Security v. New York, 589 U. S. ___, ___–___ (2020) (GORSUCH, J., concurring in grant of stay) (slip op., at 1–5).

Second, I recently ran across a Supreme Court decision that has not featured in the debate over the national injunction, but it has language that is directly on point. The case is United States v. National Treasury Employees Union:

For three reasons, we agree with the Government's first suggestion—that the relief should be limited to the parties before the Court. First, although the occasional case requires us to entertain a facial challenge in order to vindicate a party's right not to be bound by an unconstitutional statute, see, e.g., Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 965–967, and n. 13, 104 S.Ct. 2839, 2851–2852, and n. 13, 81 L.Ed.2d 786 (1984), we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484–485, 109 S.Ct. 3028, 3037–3038, 106 L.Ed.2d 388 (1989). In this case, granting full relief to respondents—who include all Executive Branch employees below grade GS–16—does not require passing on the applicability of § 501(b) to Executive Branch employees above grade GS–15, including those high-level employees who received a 25% salary increase that offsets the honoraria ban's disincentive to speak and write.

United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995).

Third, The Purpose of the Preliminary Injunction addresses trends in preliminary injunctions, especially the collapse of the four-factor test into the merits. It is not just about national injunctions. But it sheds light on a broader set of intersecting trends—the dominance of the merits, the rise of universal relief, and heightened judicial polarization and forum-shopping.

The post Three Notes on National Injunctions appeared first on Reason.com.

[Eugene Volokh] Harassment Restraining Order Not Justified by Defendant's Facebook Post Calling Ex-Fiancée a "Crumbum"

From S.L. v. D.D., decided yesterday by N.J. Appellate Division Judges Berdote, Byrne, and Jacobs:

D.D. ("Darryl" [a pseudonym]) appeals the June 19, 2023 final restraining order ("FRO") granted by the Family Part to S.L. ("Sydney") against him…. Sydney [had] presented two … occurrences she alleged were the predicate acts of harassment and stalking: a note Darryl left at [Sydney's current boyfriend] Teddy's house ("Beer Note") and a Facebook message Darryl had posted, presumably referring to Sydney as his "crumbum ex" ("Crumbum Post")…. [The judge] concluded the Beer Note and the Crumbum Post amounted to predicate acts of harassment and stalking and granted Sydney an FRO against Darryl….

Sydney testified she was returning from a vacation with Teddy on April 24, 2023, when she and Teddy found the Beer Note left at the house Teddy owned with his ex-girlfriend, R.T. ("Racquel"). The Beer Note was handwritten and said "Throw this away for me Bud! signed [Darryl]. Thanks for the warm beer and grill." Sydney testified neither she nor Teddy gave Darryl permission to enter Teddy's home. {Racquel appeared as a defense witness.  She testified she invited Darryl into her home and sold him the grill when he left the Beer Note.} {[T]he … judge found Darryl "kn[ew] that [Teddy was] going to come into [his home] and [was] going to find [the Beer Note]," Darryl knew Teddy and Sydney would "know that he got into the house in some fashion," and Darryl left the Beer Note on purpose aware of the fact that Sydney was going to see it.} …

[T]he trial court also considered the Crumbum Post made by Darryl after the April 10, 2023 hearing, which states, in pertinent part, "[f]inally after months of courts and attorneys, [m]y crumbum cheating ex had to hand the ring back over. … Now it's for sale before I take it to my jeweler for consignment." … [T]he … judge disapproved of Darryl's use of social media to "badmouth [Sydney]" on a public post "[t]o the entire world" ….

N.J.S.A. 2C:25-19 provides several enumerated offenses that may amount to predicate acts of domestic violence. Included in this enumerated list are harassment and stalking, defined in N.J.S.A. 2C:33-4 and N.J.S.A. 2C:12-10, respectively. Harassment occurs whenever one "[m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm"; "[s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so"; or "[e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Conduct "would only qualify as a predicate act [of harassment] if it were both committed with a purpose to harass and if the act was 'likely to cause annoyance or alarm.'" Most importantly, "[h]arassment requires the defendant act with the purpose of harassing the victim." …

Sydney argues the trial court correctly issued an FRO because the Beer Note and Crumbum Post amounted to predicate acts of harassment and stalking. We disagree. The Crumbum Post does not expressly identify Sydney. Moreover, Sydney would see the post only if she were actively looking at Darryl's Facebook page. Therefore, pursuant to the specific facts in this record, the act of posting the Crumbum Post could not have had the intent to harass Sydney.

Similarly, the Beer Note was intended for Teddy. There is no indication that Sydney was a resident in Teddy's home or would have seen the Beer Note. As such, the Beer Note did not purposefully target Sydney. Teddy had other legal avenues to pursue if he felt threatened by the note.

The Supreme Court has commented on how conduct directed towards a third party affects whether the alleged victim has been harassed, requiring "the victim … be the target of the harassing intent" when it concluded "[a] defendant's snide remarks to the [plaintiff's] new beau" made when "plaintiff was not even present" did not amount to harassment….

There's a lot more going on in the 20-page opinion, but I wanted to focus here on the Crumbum Post, because it's related to my broader interest in harassment injunctions based on offensive speech about plaintiff (as opposed to unwanted speech to the plaintiff).

Peter J. McNamara represents Darryl.

The post Harassment Restraining Order Not Justified by Defendant's Facebook Post Calling Ex-Fiancée a "Crumbum" appeared first on Reason.com.