Eugene Volokh's Blog, page 221

[Jonathan H. Adler] Supreme Court DIGs Facebook

Yesterday we got the Supreme Court's first decision in an argued case for this term—well, kinda. The Supreme Court dismissed the writ of certiorari in Facebook v. Amalgamated Bank as improvidently granted. This is what is referred to as a DIG.

For those interested, here is the (lengthy) question presented statement from the petition for certiorari.

This petition presents two important questions that have divided the federal courts of appeals.

First, the circuits have split three ways concerning what public companies must disclose in the "risk factors" section of their 10-K filings. The Sixth Circuit holds that companies need not disclose past instances when a risk has materialized. The First, Second, Third, Fifth, Tenth, and D.C. Circuits hold that companies must disclose that a risk materialized in the past if the company knows that event will harm the business. The Ninth Circuit here adopted a third, outlier position requiring companies to disclose that a risk materialized in the past even if there is no known threat of business harm.

Second, the circuits disagree on the proper pleading standard for the loss causation element of a private securities-fraud claim. The Fourth Circuit holds that loss causation allegations must satisfy Federal Rule 9(b)'s heightened pleading standard for fraud, while the Fifth and Sixth Circuits apply the ordinary Rule 8 standard. The Ninth Circuit here initially applied Rule 8, then substituted citations of Rule 9(b) without changing its analysis.

The questions presented are:

1. Are risk disclosures false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

2. Does Federal Rule 8 or Rule 9(b) supply the proper pleading standard for loss causation in a private securities-fraud action?

The post Supreme Court DIGs Facebook appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: November 23, 1804

11/23/1804: President Franklin Pierce's birthday. He would appoint Justice John Archibald Campbell to the Supreme Court.

President Pierce appointed Justice Campbell to the Supreme Court

The post Today in Supreme Court History: November 23, 1804 appeared first on Reason.com.

[Eugene Volokh] First Amendment Coalition, LaRoe & Volokh v. Chiu

Just filed today, by our lawyers at the Foundation for Individual Rights and Expression (Adam Steinbaugh, JT Morris & Zachary Silver) and the Coalition's David Snyder and David Loy. We are challenging Cal. Penal Code § 851.92(c), which provides,

Unless specifically authorized by this section, a person or entity, other than a criminal justice agency or the person whose arrest was sealed, who disseminates information relating to a sealed arrest is subject to a civil penalty of not less than five hundred dollars ($500) and not more than two thousand five hundred dollars ($2,500) per violation. The civil penalty may be enforced by a city attorney, district attorney, or the Attorney General. This subdivision does not limit any existing private right of action. A civil penalty imposed under this section shall be cumulative to civil remedies or penalties imposed under any other law.

Speaking for myself, I'd like to write about a particular lawsuit and particular government actions that stem from the publication of information relating to a sealed arrest—but any detailed post on these matters would itself end up containing such information, and would thus itself violate the statute. We're trying to block the enforcement of the statute, relying on precedents such as Smith v. Daily Mail Publishing Co. (1979), which struck down a state law barring the publication of the names of juvenile defendants. I hope to be able to blog more about the case as it proceeds, and especially once we get an injunction.

UPDATE: I should add that the S.F. City Attorney's office recently sent demand letters based on the statute to a Substack newsletter author and to Substack itself; that is one thing that I'd like to discuss in much more detail in a future post.

The post First Amendment Coalition, LaRoe & Volokh v. Chiu appeared first on Reason.com.

[Eugene Volokh] Journal of Free Speech Law: "The Press Clause: The Forgotten First Amendment,"

The article is here; the Introduction:

From the earliest days of our nation, there was a shared sense that freedom of the press was an essential precondition for life in a newly liberated country. James Madison's first draft of what ultimately became the First Amendment reflected that sentiment. Introduced to the First Congress on June 8, 1789, it asserted that "[the] people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

The proposition that freedom of the press was an inviolable right was repeated in varying but wholly consistent language in the widest range of state constitutions of that time. Typical articulations were those of the Georgia Constitution of 1777 (declaring that the freedom of the press was to "remain inviolate forever"); the Massachusetts Constitution of 1780 ("the liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth"); and the Pennsylvania Constitution of 1790 ("the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government: And no law shall ever be made to restrain the right thereof").

Ultimately, the language of the First Amendment was redrafted in its current form, with freedom of the press specifically identified as requiring constitutional protection. The American press has, as a result, received broad protections against prior and subsequent restraints developed through twentieth-century jurisprudence. Cases such as Bridges v. California, New York Times v. Sullivan, and New York Times v. United States provide legal protections for the press that are unheard of in other democratic nations. At the same time, however, the Supreme Court has yet to recognize unique protections for the press needed for journalists to best perform their role in a democratic society. This is particularly troubling at a time when journalism in the United States faces an array of unique and increasingly dire challenges.

These challenges come in various forms. Influential political figures wantonly place the press in their rhetorical crosshairs, decrying it, as a whole, as "enemies of the people." Local governments utilize their powers to undermine newsrooms while the federal government jails journalists for protecting the confidentiality of their sources. Reporters covering political protests in both 2020 and 2024 have been assaulted, arrested, and confined. At a structural level, all but the most financially successful news outlets are hemorrhaging jobs as countless others shutter entirely. Over one-half of U.S. counties have no or limited access to local news, an acute symptom of the news industry's looming economic insolvency. Adding profound insult to these injuries, public trust in news institutions currently sits at record lows.

These trends are troubling for reasons beyond the interests of those directly affected by them. The work that journalists do—most notably gathering and disseminating newsworthy information, acting as a check on the government, and convening the public square—is both reflective of, and integral to, functional self-government. The press matters, not just for those who carry out the work of journalism but for a democratic society that is necessarily reliant upon the press to inform its decision-making and to hold power to account.

In the fall of 2022, the Abrams Institute for Freedom of Expression at Yale Law School commenced an effort, funded by a grant from the Stanton Foundation, to explore whether the Press Clause could and should be read as a more diligent protector of press freedom (the "Project"). Adopting the title The Press Clause: The Forgotten First Amendment, the Project convened five workshops that brought legal scholars and practitioners from around the United States together to discuss topics at the intersection of journalism and the First Amendment.

Together, the workshops explored three major questions. First, what are the strongest constitutional arguments in support of interpreting the Press Clause so as to give it meaning independent of the Speech Clause? Second, what could an invigorated Press Clause actually provide journalists—that is, what rights and protections might it generate? And third, how should "the press" be defined for purposes of allocating those rights?

This Report builds on the ideas generated in the workshops to present the Project's central arguments. It should be of interest to several constituencies, including scholars and policymakers developing related research agendas, media lawyers and other legal practitioners formulating litigation strategies that incorporate press rights, judges responsible for adjudicating such claims, and any person concerned with the decline of the press. From this introduction, the Report proceeds in six additional parts.

Part II details both the press's importance and some of the legal, political, and economic challenges it faces. Part III provides an assessment of the constitutional status quo. While a number of Supreme Court decisions have protected press freedom, the Court has yet to provide the press with unique protection beyond that which all speakers who set forth their views in printed form receive. The Press Clause itself has effectively been treated as having no independent meaning or impact. Part IV presents a series of arguments against this status quo and in favor of an invigorated Press Clause. These arguments are overlapping and mutually reinforcing but, for ease of reference, are grouped into "historical," "functional," "precedential," and "analogical" categories. With these arguments in hand, Part V discusses what a Press Clause jurisprudence could and should provide the press. Part VI addresses the issue of defining the press for purposes of partitioning the rights emanating from an active Press Clause. Part VII provides a brief conclusion.

The post Journal of Free Speech Law: "The Press Clause: The Forgotten First Amendment," appeared first on Reason.com.

[Eugene Volokh] Journal of Free Speech Law: "Defamation, Bankruptcy & the First Amendment," by Christopher D. Hampson

The article is here; the Abstract:

In recent years, a series of high-profile defamation cases has wound up in bankruptcy court, involving such colorful characters as Rudy Giuliani, Alex Jones, and Cardi B. As demands and verdicts swell with the rise of social media in a polarized age, defamation defendants are filing bankruptcy more frequently and at earlier stages of litigation. But that doesn't mean bankruptcy is a magic wand for waving away debt. To the contrary, much defamation debt may be nondischargeable as "willful and malicious" under section 523 of the Bankruptcy Code. Of course, consumer bankruptcy attorneys are all too familiar with bankruptcy's discharge exceptions, but some courts are now starting to apply the exceptions to small businesses attempting to reorganize under subchapter V of the Code—a category that includes Alex Jones's InfoWars.

Defamation law is coming to bankruptcy court, and it's bringing the First Amendment with it. Yet scholars and practitioners have not yet placed these three areas of law—defamation, bankruptcy, and the First Amendment—next to each other. This Article provides both theoretical and practical guidance to litigants and lawyers, showing how bankruptcy's substantive and procedural rules will process defamation debt, including when the First Amendment protections of New York Times v. Sullivan and related cases are triggered. The ensuing mixture is a cocktail of torts, contracts, civil procedure, federal courts, and constitutional law.

When speech injures others, compensation and punishment are in order. Yet forgiveness and a fresh start have their place as well. As to individuals, defamation debt should cause us to reflect on whether our "fresh start" policy in bankruptcy is too anemic. As to business entities, the defamation cases continue to raise the specter of whether chapter 11 makes it too easy for bad actors to shed debt without compensating victims, suffering consequences, or reforming behavior. Either way, attorneys must be prepared to provide forward-thinking legal advice about bankruptcy whenever insolvency is on the horizon.

The post Journal of Free Speech Law: "Defamation, Bankruptcy & the First Amendment," by Christopher D. Hampson 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.

This week, the DOJ announced that the DEA will cease its "cold consent encounters" at airports, during which agents demand to search people's bags while telling them things like, "I don't need your consent." The suspension coincides with an inspector general report condemning the practice. "We welcome DOJ's suspension of this program as a first step," says IJ Senior Attorney Dan Alban, "but policy directives can be changed at any time, under this or future administrations. We call on Congress to pass the FAIR Act to permanently reform federal civil forfeiture laws." In the meantime, IJ is currently suing the DEA and TSA over their airport seizure and forfeiture practices.

New on the Short Circuit podcast: Wisconsin appellate attorney Joseph Diedrich explains the ins-and-outs of the Rooker-Feldman doctrine amidst a most Seventh-Circuity Seventh Circuit en banc decision.

In ordinary circumstances, we would assume this First Circuit opinion's description of the Lizzie Borden story as "grizzly" was just a typo. But since this is a Judge Selya opinion, we expect it was instead a deliberate word choice meant to convey that the age-old story has gone a bit gray. (Bonus vocabulary words include "pellucid," "exigible," and "rescript.") Caldwell County, Tex. has a policy of categorically excluding the press and the public from observing criminal pretrial proceedings commonly referred to as magistrations, at which the accused is informed of the charges against him and the rights to which he is entitled. Does this violate the First Amendment right of access to judicial proceedings? Fifth Circuit: Applying the "experience and logic" test, it sure seems to. Preliminary injunction affirmed. Texan meth and fentanyl importer pleads guilty in 2022 and receives a "career-offender enhancement" at sentencing. He objects because his prior marijuana convictions wouldn't have been "controlled substance offenses" after 2018 reforms. Fifth Circuit: We agree, and thus also agree with three other circuits. We won't go too deep into this half-decade, four-Fifth-Circuit-opinion death march of a lawsuit over whether the City of Jackson or the State of Mississippi gets to control the governance of the Jackson-Medgar Wiley Evers International Airport. But we do wonder whether the Article III standing issue that finally put the kibosh on the case this past week could quite easily have been addressed in the first appeal—five years ago—with a little assist from 28 U.S.C. § 1653. If that piques your interest, we won't deprive you of the joy of going down that rabbit hole yourself. If it doesn't, well, just keep swimming. Ohio woman seeks approval to collect signatures for a ballot proposal to amend the Ohio Constitution to eliminate gov't immunities in certain state-law causes of action. The Ohio Attorney general refuses—eight times—to approve the summary of the proposal on the grounds that it is not "fair and truthful." So the woman turns to federal court. The district court denies a motion for preliminary injunction, the Sixth Circuit reverses, and then the en banc Sixth Circuit grants rehearing, vacating the panel ruling. Sixth Circuit (en banc): And now all that work is wasted because the election has passed and the request for a preliminary injunction is moot. But the case can move forward on the merits. Dissent: That's silly; we can grant an injunction for the next election. Ohio prison guard is fired, and her union refuses to seek arbitration on her behalf. So you know she must have done something pretty, pretty terrible. Sixth Circuit (unpublished): Yup. What do you get when you combine a routine traffic stop with the driver's criminal history, several air fresheners in the car, driving from a job interview, and the driver's movements while looking for proof of insurance? Knoxville, Tenn. drug interdiction officer: Reasonable suspicion of drugs that justifies prolonging the stop to request a drug dog? (Which reveals an illegal gun but no drugs.) Sixth Circuit: No! And no good-faith exception. Evidence of the illegal gun should have been suppressed. Reversed and remanded. An indigent criminal defendant has a right to a public defender for many aspects of the criminal process, but not necessarily for all aspects. For example, what about an appeal of a denial of the reduction of a sentence based on certain retroactive amendments to the U.S. Sentencing Guidelines? Seventh Circuit Judge #1: Is this an advisory opinion? Judge #2: I think we can appoint one, I mean we've done it before. Judge #3: The text says no. Allegation: Missouri inmate fills out form saying he feels threatened by another inmate, which means he's not supposed to be left alone with that inmate. Nevertheless, a week later, a guard puts that inmate in a cell with him while he's sleeping. The inmate attacks him. Can he sue the guard under state law? District court: Quite possibly. Eighth Circuit: Reversed. The guard enjoys official immunity, and while he may have had a duty to check those forms that doesn't mean he had a duty to do it. Minnesota landlord can't evict terrible tenants during the COVID-19 pandemic due to a moratorium, so he sues the responsible state officials with various constitutional claims. The district court dismisses them all. Eighth Circuit (2022): Actually, you've pled Contract Clause and Takings Clause claims! Here's some careful analysis with lots of citations. Good luck on remand! District court: I'll allow another motion to throw out the claims, and this time you lose on Eleventh Amendment immunity. Eighth Circuit (2024) (unpublished): Affirmed. Detainee at Davis County, Utah jail is withdrawing from meth, falls from top bunk. A nurse wheelchairs her to another cell and leaves her there unmonitored without checking her vitals. She has another fall and ruptures her spleen. She dies. Turns out the jail has no protocols or training for nurses—for anything. Tenth Circuit: No need to disturb the jury's $3.85 mil verdict against the county for violating the U.S. Constitution nor its additional $3.85 mil and $2 mil verdicts for violating the Utah Constitution. Thirteen-year-old boy picks up a neighbor's ball that's in a ditch across the street from her house and plays with it; she angrily demands it back. He curses at her, flips her off, and flips the ball to her. The neighbor calls the police. A Martin County, Fla. officer finds the boy nearby. The boy declines to give his name or remove his hand from a pocket. (Turns out he has a pocketknife.) The officer tries to handcuff him, but he pulls away. The officer (250 lbs.) picks him (120 lbs.) up and body slams him, fracturing his skull, shoulder blade, collar bone, and ribs, and also causing permanent brain injury. Officers then ask an underage witness to lie and say the teen was menacing the officer with the knife. (The teen is prosecuted but acquitted.) Teen: It's clearly established that you don't body slam a suspected nonviolent misdemeanant in these circumstances. Eleventh Circuit (unpublished): Qualified immunity. And in state supreme court news, Oregon considers whether there is a double-jeopardy problem if prosecutors convict a woman of a crime and obtain a $50k criminal forfeiture from her, and then file a civil-forfeiture suit to try to take her house, too, based on the same underlying crime. Oregon Court of Appeals: Yes, especially because Oregon has reformed its civil-forfeiture laws to generally require a conviction, making clear that civil forfeiture here is punitive. Oregon Supreme Court: Wrong, that double-dipping is totally fine. (IJ wrote an amicus brief urging a different course.)

New case! After two Escambia County, Ala. school board members criticized the superintendent, the district attorney and county sheriff (political allies of the superintendent) retaliated, seizing their phones and opening a bogus investigation. And then, after a local journalist wrote about the investigation, the sheriff and DA arrested four innocent people (the two board members, the journalist, and the school board's bookkeeper) on bogus felony charges. (The charges were immediately dropped with prejudice after the DA admitted he had personal and professional conflicts and turned the case over to the state.) This is unconstitutional, and we look forward to punching back (against prosecutorial immunity, qualified immunity, and municipal immunity). Click here to learn more.

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

[Eugene Volokh] Court Refuses to Set Aside Discipline of Student for Submitting AI-Generated Assignment (with Hallucinations)

From Harris v. Adams, decided Wednesday by Magistrate Judge Paul G. Levenson (D. Mass.):

In December 2023, school officials at Hingham High School ("HHS") determined that RNH and another student, both of whom were juniors at the time, had cheated on an AP U.S. History project by attempting to pass off, as their own work, material that they had taken from a generative artificial intelligence ("AI") application. Although students were permitted to use AI to brainstorm topics and identify sources, in this instance the students had indiscriminately copied and pasted text from the AI application, including citations to nonexistent books (i.e., AI hallucinations).

The students received failing grades on two parts of the multi-part project, but they were permitted to start from scratch, each working separately, to complete and submit the final project. By way of discipline, RNH was required to attend a Saturday detention, and in the spring of 2024, he was rejected from the school's National Honor Society, although he was ultimately permitted to reapply and has since been admitted. {RNH, a current senior at HHS, is described in the Complaint as a "three-sport varsity student-athlete with a high [GPA]" who is "in the top of his class." In addition to having a high GPA, RNH received a 1520 on the SAT and a perfect score on the ACT, putting him "in the top 1/4 of 1% of students taking the [ACT]." Plaintiffs report that RNH intends to apply early decision or early action to elite colleges and universities, such as Stanford University.}

Plaintiffs, RNH's parents, have sued HHS teachers and school officials, also naming the Hingham school committee as a defendant. Invoking the Due Process Clause …, they ask this Court to undo the consequences that school officials imposed. Plaintiffs contend that HHS failed adequately to inform RNH about its standards for academic honesty as they apply to the use of AI, that Defendants were unfair in concluding that RNH had violated the school's academic integrity policies, and that HHS imposed unduly harsh consequences. Plaintiffs ask the Court to expunge RNH's disciplinary record (i.e., the Saturday detention) and to raise his grade in AP U.S. History from a C-plus to a B.

Defendants, in response, point out that RNH was repeatedly taught the fundamentals of academic integrity, including how to use and cite AI. Defendants argue that HHS officials reasonably concluded that this case did not implicate subtle questions of acceptable practices in deploying a new technology, but rather was a straightforward case of academic dishonesty. Defendants emphasize that, in any event, the Constitution does not empower judges to substitute their judgments for those of teachers and school officials, who are afforded broad discretion when it comes to grading and discipline.

Plaintiffs have moved for a preliminary injunction. Given that RNH is a senior, and that many colleges and universities have already begun accepting early decision or early action applications, Plaintiffs argue that RNH will suffer irreparable harm if the relief he seeks is not granted on an expedited basis (i.e., before he needs to submit college applications)….

The court denied the preliminary injunction, concluding that plaintiffs "Defendants have the better of the argument on both the facts and the law." The opinion is over 16,000 words long, but here's a key excerpt:

On the facts, there is nothing in the preliminary factual record to suggest that HHS officials were hasty in concluding that RNH had cheated. Nor were the consequences Defendants imposed so heavy-handed as to exceed Defendants' considerable discretion in such matters.

As detailed below, school officials could reasonably conclude that RNH's use of AI was in violation of the school's academic integrity rules and that any student in RNH's position would have understood as much. The work in question was a script for a short documentary film, which RNH and his partner submitted for an AP U.S. History project assigned in conjunction with the National History Day organization. The evidence reflects that the pair did not simply use AI to help formulate research topics or identify sources to review. Instead, it seems they indiscriminately copied and pasted text that had been generated by Grammarly.com ("Grammarly"), a publicly available AI tool, into their draft script.

Evidently, the pair did not even review the "sources" that Grammarly provided before lifting them. The very first footnote in the submission consists of a citation to a nonexistent book: "Lee, Robert. Hoop Dreams: A Century of Basketball. Los Angeles: Courtside Publications, 2018." Docket No. 23-4, at 1. The third footnote also appears wholly factitious: "Doe, Jane. Muslim Pioneers: The Spiritual Journey of American Icons. Chicago: Windy City Publishers, 2017." Significantly, even though the script contained citations to various sources—some of which were real—there was no citation to Grammarly, and no acknowledgement that AI of any kind had been used.

On the law, it is doubtful that the Court has any role in second-guessing the judgments of teachers and school officials who are responsible for grading and disciplinary decisions, particularly discipline short of suspension. There is no dispute that RNH, as well as his parents, were afforded prompt notice of the school's findings and were given an opportunity to be heard. This is the kind of process that the Supreme Court has deemed sufficient for more substantial punishments than what RNH received. Moreover, Plaintiffs have not shown any misconduct by school authorities, let alone misconduct so egregious as to satisfy the applicable "shocks the conscience" standard….

Defendants could reasonably consider that RNH had been taught that all sources—including AI sources—must, at a minimum, be cited. See Docket No. 24-8 (instructing students to "give credit to AI tools whenever used, even if only to generate ideas or edit a small section of student work"); Docket No. 24-9, at 16 (instructing that AI "must be cited" if used by students). In these circumstances, Defendants could also have inferred that, if RNH had sincerely believed that he was permitted to use AI tools like Grammarly to generate text and include that text as his own, he would have cited the AI tool he used.

The manner in which RNH used Grammarly—wholesale copying and pasting of language directly into the draft script that he submitted—powerfully supports Defendants' conclusion that RNH knew that he was using AI in an impermissible fashion. The purpose of the Assignment, plainly, was to give students practice in researching and writing, as well as to provide students an opportunity to demonstrate, and the teacher an opportunity to assess, the students' skills.

Considering the training provided to HHS students regarding the importance of citing sources generally, Defendants could conclude that RNH understood that it is dishonest to claim credit for work that is not your own. Although, as discussed below, the emergence of generative AI may present some nuanced challenges for educators, the issue here is not particularly nuanced, as there is no discernible pedagogical purpose in prompting Grammarly (or any other AI tool) to generate a script, regurgitating the output without citation, and claiming it as one's own work. See Docket No. 24-8 (noting that AI tools should not be used to "replac[e] [the students'] own critical thinking") (emphasis in original).

At the preliminary injunction hearing, RNH testified that he was "confused" about the rules regarding use of AI, both generally and on the Assignment. He testified, for example, that he did not understand at the time that the instruction he received in ELA class with respect to use and citation of AI applied to his other classes, such as AP U.S. History. In his testimony, RNH also suggested, albeit somewhat equivocally, that an additional source of confusion was that he had been unable to access the National History Day rules through the link provided in the Assignment.

There is, however, nothing in the record to suggest that RNH told his teacher that he was confused or that he had been unable to use the link for the National History Day rules. Defendants could reasonably infer that a high school student who was genuinely confused about the rules governing an assignment would be capable of asking his teacher for clarification, particularly when the student had been unequivocally instructed (albeit in a different class) that "[i]f there is a question about when, where, and how to use [AI] tools, the student must communicate with their instructor in advance of use." See Docket No. 24-8 (emphasis in original).

In light of the evidence developed to date, RNH's testimony that he was "confused" smacks of after-the-fact rationalization. As noted above, in June 2024—six months after the Assignment, but prior to the commencement of this lawsuit—RNH described his understanding as follows:

"When she (Ms. Petrie) assigned the project, AI was not specified. In our English class, they talk about it. If you're going to use it, say why and how. Use your own intuition about right and wrong. If you are to use it, you need to identify that you're using it. It was an academic honesty point. Be honest and transparent with how you're using it."

These words reflect that RNH was capable of understanding, and did understand, that his training on the use and citation of AI was not simply a technical requirement for a particular class. In his own words, "[i]t was an academic honesty point." Some matters covered in ELA class were undoubtedly specific to that class. For instance, RNH expressed uncertainty during his testimony as to whether the Assignment required citations in conformity with the Chicago Manual of Style, as opposed to MLA format. But he plainly understood that fundamental principles of "right and wrong"—which would not vary from class to class—were involved as well.

In sum, there is nothing to suggest that Defendants unreasonably jumped to conclusions when they determined that RNH had attempted to pass off AI-generated language as his own and, in so doing, had violated the school's standards for academic integrity. "Defendants' decision that some discipline was warranted," therefore, "cannot fairly be characterized as an arbitrary exercise of authority." As for the discipline itself, it is not the role of this Court to second-guess the determinations of teachers and administrators about the academic and disciplinary consequences that should be imposed for violations of a school's academic integrity policies….

Plaintiffs contend that RNH's conduct did not constitute plagiarism because text generated by AI is not attributable to any particular human author. They contend, in other words, that AI is not an "author" whose work can be stolen; it simply "generates and synthesizes new information." Plaintiffs buttress this argument by emphasizing that various industries—including "academia and … the legal profession"—are "still grappling with how to address [AI's] use" and that "there is much dispute as to whether the use of generative AI constitutes plagiarism."

Despite Plaintiffs' strenuous efforts to frame this case as one of "first impression in the Commonwealth" about how to deal with an emerging technology, the Court need not parse the terms of the Handbook as if it were a criminal statute to decide whether Grammarly can reasonably be considered an "author" as the term is used in the Handbook. The Supreme Court has expressly eschewed such an approach…. "Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions." …

In any event, the Handbook defines plagiarism as "the unauthorized use or close imitation of the language and thoughts of another author and the representation of them as one's own work." Even if I were to credit RNH's testimony that he was "confused" about what uses of AI were permitted, it strains credulity to suppose that RNH actually believed that copying and pasting, without attribution, text that had been generated by Grammarly was consistent with any standard of academic honesty.

Since long before the advent of AI, and even before the advent of the printing press, there have been plenty of works whose origins are sufficiently obscure as to raise serious doubts about whether they can be considered the work of any "author" at all, or whether they simply reflect a syntheses of multiple strands of text and information that have been merged, by processes only partially knowable, into individual "works." The Bible, Beowolf, and the works of "Homer" come to mind. The Handbook definition of plagiarism seems adequate to alert students that they may not copy such works without attribution and pass them off as their own.

If more were needed, it could be mentioned that Defendants found that RNH's AI use violated the Handbook in three separate respects: (1) he used it in an effort to gain an unfair advantage over other students who did not use AI; (2) "he cheated by using unauthorized technology"; and (3) he committed plagiarism by "the unauthorized use or close imitation of the language and thoughts of another author and the[n] represented them as his own work." Even if there were any legs to Plaintiffs' argument that AI should not be considered an "author" whose "language and thoughts" may not be copied without proper attribution, there remain two additional violations of the Handbook.

Gareth W. Notis (Morrison Mahoney LLP) represents defendants.

The post Court Refuses to Set Aside Discipline of Student for Submitting AI-Generated Assignment (with Hallucinations) appeared first on Reason.com.

[Josh Blackman] Part XV: Taking Private Property for Public Use

What Is a Taking? Pennsylvania Coal Co. v. Mahon (1922) Penn Central Transportation Company v. New York (1978)

Kelo v. City of New London (2005)

The post Part XV: Taking Private Property for Public Use appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: November 22, 1963

11/22/1963: President Lyndon B. Johnson takes the oath of office. He would appoint two Justices to the Supreme Court: Abe Fortas and Thurgood Marshall.

President Johnson appointed Justices Fortas and Marshall

The post Today in Supreme Court History: November 22, 1963 appeared first on Reason.com.

[Josh Blackman] Keep Calm About The Adjournment Clause and Read Tillman

Donald Trump makes obscure constitutional law great again. It is easy to rattle off the provisions: the Foreign and Domestic Emoluments Clauses, Section 3 of the Fourteenth Amendment, and now the Adjournment Clause. Time and again, Trump does something that implicates one of these seldom-litigated provisions, and almost immediately, people on both sides of the issue, who have never written about the clause before, become experts.

But rest assured, there is one person who wrote about these issues before anyone cared: Seth Barrett Tillman. And what makes Seth's scholarship so important, is that he addressed these issues outside the context of the current controversy. He argued that the President was not subject to the Foreign Emoluments Clause before a President Trump was even a remote possibility. Most scholars and advocates made up their minds on this issue with full knowledge of how it would affect Trump's case. It should count for something when a scholar has already written on a subject, and has done so behind the Rawlsian veil of ignorance.

Nearly two decades ago, Seth wrote about the interaction between the Recess Appointments Clause, the Adjournment Clause, and the Convening Clause. Seth had a four-part exchange with Professor Brian Kalt (another gem of the legal academy) in the Northwestern Law Review Colloquy (now Northwestern Law Review Online) on recess appointments. This exchange occurred several years before Noel Canning.

In the first installment, Seth explains that the Senate could terminate a recess appointment simply by terminating its session. Seth lays out the mechanics:

I suggest that, after the President makes a valid recess appointment, the Senate could convene, immediately terminate its session, and then reconvene instantly.

Even if the President were to adjourn Congress and make a recess appointment, the Senate could terminate its session and terminate that recess appointment. Last week, I flagged the issue of whether a presidential adjournment creates an intrasession recess or an intersession recess. I still don't know the answer. But Seth (of course) addressed both possibilities, and did so without the benefit of Noel Canning:

This strategy will only work for an intersession recess appointment. An intrasession recess appointment, i.e., an appointment made during an adjournment within a given session, lasts the remainder of that session and additionally for the life of the next session. Thus, if the President has made an intrasession recess appointment, then the Senate will have to convene and terminate two "sessions" back-to-back in order to terminate the President's intrasession appointment.

I'm not sure I saw anyone making this point about terminating recess appointments in the recent debates over the Adjournment Clause. So much for a dictatorial power that could not be checked.

In the second installment, Brian Kalt raises some problems with the "Tillman adjournment" He argues that the Senate cannot unilaterally adjourn a session. Rather, Kalt writes, "The Constitution provides, and uniform historical practice confirms, that a regular session ends when the Senate and House agree that it ends." And if they cannot agree, the President has the power to adjourn Congress.

Tillman replied in the third installment. He directly addressed the President's power to convene Congress:

Moreover, although Kalt states that the President has an "unquestioned power to convene (and reconvene, and re-reconvene) the Senate," the Constitution's text expressly limits this power to "extraordinary Occasions." Does Kalt seriously contend that a mere interbranch dispute over a mundane recess appointment is an "extraordinary Occasion"? Even after the Senate has rejected the appointment by going into recess and reconvening? . . .

Is Article II, Section 3, which states that the President "may convene both Houses, or either of them," counter-authority? Kalt seems to read this as an exclusive power of the President. I suggest the opposite: our sys-tem of separation of powers rejected executive prerogative over the legisla-tive houses. For the President to have any authority over legislative proceedings, an express grant was necessary. Such grants, standing alone, do not oust the houses of control over their own proceedings, including the timing of their sessions.

Much of the recent debates focused on the President's power to adjourn Congress. But the President also has the power to convene Congress. And it is argued that and supported by some authorities that doing so creates a new session. Based on the controversial Theodore Roosevelt precedent, the President could then make recess appointments in the infinitesimal intersession recess between the old session and the new one that is convened.

Kalt has the final word in the fourth installment.

Tillman also tries to make hay of the confusion surrounding the definitions of a "session," "recess," and "adjournment." To my textual evidence against a unilateral power of the Senate to terminate a regular session, Tillman retorts that my clauses mention adjournments, not Senate recesses or sessions. He follows this with an attempt to distinguish adjournments from recesses, citing Jefferson's Manual and a note on Australian practice. But the only relevant question for terminating recess appointments is what constitutes a session. Tillman's own go-to source, Jefferson's Manual, asks of Congress, "What then constitutes a session with them?" Jefferson's answer is similar to mine. Sessions begin by direction of either the Constitution, by law, or by the President. They can end either by the beginning of one of these new sessions, "by the efflux of their time" (i.e., the expiration of the term), or by an adjournment by "joint vote" of the two chambers. [FN15]

FN15: Jefferson does not mention the possibility of the President adjourning Congress in the case of a disagreement between the chambers, but Article II, Section 3 makes clear that this is the alternative to a "joint vote."

I appreciate this thoughtful exchange because it was made nearly two decades ago, when the consequences of the theories remained unknowable.

The post Keep Calm About The Adjournment Clause and Read Tillman appeared first on Reason.com.