Eugene Volokh's Blog, page 25

[Eugene Volokh] No Pseudonymity for Plaintiff Claiming Bar Exam "Has a Disparate Impact on African Americans"

From Thursday's decision by Magistrate Judge Elizabeth Preston Deavers in Doe v. Ohio Supreme Court:

Plaintiff alleges that the Universal Bar Examination score required by Defendant Ohio Board of Bar Examiners has a disparate impact on African Americans; Defendants'  conduct exhibits a pattern, or practice of intentional discrimination, or a deliberate indifference to the rights of African American Bar Candidates as well as unequal treatment"; Defendant Supreme Court of Ohio's licensing standards for attorneys are not equally applied; Defendants' scoring of Plaintiff's three bar exams was racially discriminatory; Defendant Supreme Court of Ohio's adoption of "Rule I Section 1(E) of the Supreme Court Rules for the Government of the Bar of Ohio" violates the Fourteenth Amendment; Defendant Supreme Court of Ohio permitted "its employees to participate in a pattern, or practice of intentional discrimination, or allowed its employees" to violate the Fourteenth Amendment and federal and state laws; and Defendants behavior regarding Rule I Section 1(E) negligently caused Plaintiff emotional distress….

Plaintiff argues [in support of her request to proceed pseudonymously] that her "suit challenge [sic] governmental activity, [her] claim involves sensitive topics including Bar licensing failures, racial discrimination and Civil Rights violations, and an affirmative ruling does not force the Defendants to proceed with insufficient information to present their arguments against Plaintiff's claim." Plaintiff further asserts that public announcement of her multiple unsuccessful attempts to pass the bar exam "may place Plaintiff at risk of failing to obtain future employment, and it may affect Plaintiff's ability to attract future clients …."

Plaintiff provides nothing more than conclusory statements about her generalized fears of embarrassment, inconvenience, unfairness, humiliation, and failing to obtain employment and attract clients. As Defendants note, "[u]nsubstantiated fears of speculative harm are insufficient to outweigh the presumption of open judicial proceedings." … The Court also notes Plaintiff's failure to cite a single case wherein a litigant was permitted to proceed anonymously under similar circumstances and her failure to distinguish her situation from the multitude of similar cases in which current and former law students litigate under their own names….

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[Eugene Volokh] No Pseudonymity for Police Being Sued or for Inmate Suing Alleging They Identified Him as Informant

From yesterday's order by Seventh Circuit Judges Diane Sykes, Frank Easterbrook & Michael Brennan in Doe v. M.S.:

Plaintiff seeks to hold two detectives liable under 42 U.S.C. § 1983 for making statements, when visiting his cell, that may have allowed other inmates to infer that he has supplied valuable information to law-enforcement personnel. The district court denied defendants' motion for summary judgment, and they have appealed.

The district court entered an order sealing the litigation in large measure, which effectively created anonymity for the litigants and any potential witnesses. A motion to continue the sealing during the appeal led to a one-judge order denying that request but requiring anonymity all around. The result is that the parties have filed public briefs but not identified the persons involved. After hearing oral argument, this court now concludes that anonymity is inappropriate given this court's strong presumption that adult litigants must use their own names. See, e.g., Doe v. Loyola University Chicago, 100 F.4th 910 (7th Cir. 2024); Doe v. Indiana University, 101 F.4th 485, 491–93 (7th Cir. 2024); Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997).

As far as we can see, anonymity for the defendants is utterly inappropriate. Police officers, prison guards, and many other public officials are regularly sued in their own names on account of acts said to be unlawful or even unconstitutional. At oral argument counsel for the defendants consented to the use of their names. Counsel suggested that the district judge may have believed that identifying the defendants would have identified the plaintiff too, but any such belief is unsupported. The defendants are police officers who have dealt with hundreds if not thousands of prisoners over the years. Publication of defendants' identities would not point to any one prisoner.

Plaintiff sought to remain anonymous out of a professed fear that he would be harmed by other inmates.

Once again, however, claims based on potential harm are regularly litigated in the parties' real names. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994); Grieveson v. Anderson, 538 F.3d 763, 775–76 (7th Cir. 2008). Indeed, the table of contents in plaintiff's brief, which runs to three pages, includes many decisions addressing the potential for retaliation against cooperating witnesses, and not even one of those decisions uses pseudonyms.

Although plaintiff contends that he is in fear, he does not contend that he has actually been harmed by any other inmate—and this even though the genesis of his suit is the assertion that, several years ago, defendants allowed other inmates to learn his status as a cooperator. When plaintiff commenced litigation based on this unrealized fear, he surrendered his entitlement to anonymity. (Contrast persons protected by the informants' privilege, whose names are protected in criminal trials largely because they did not bring publicity on themselves by initiating litigation.) Plaintiff cannot achieve anonymity by himself making allegations that expose him to risk.

In other cases in which we have held that a district judge erroneously allowed anonymous litigation, we have permitted the plaintiff to withdraw the suit in order to preserve confidentiality. See, e.g., Doe v. Indiana University, 101 F.4th at 493; Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005). The same approach is appropriate here. We therefore put this appeal on hold for 14 days. If within that time plaintiff dismisses his complaint with prejudice, the case will end (and this appeal with it). If plaintiff does not dismiss his complaint, we will put all litigants' names on the public record and proceed to a decision on the merits.

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[Eugene Volokh] "18 Lawyers Caught Using AI Explain Why They Did It"

404 Media (Jason Koebler & Jules Roscoe) has the details.

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[Eugene Volokh] Oysters Aren't Drugs or Cars, Even on Wednesdays: A Very Massachusetts Case

From Commonwealth v. One (1) Check in the Amount of $480.00 for 1,600 Pieces of Wild Oysters (Crassostrea Virginica), decided Friday by Massachusetts Appeals Court Justice Joseph Ditkoff, joined by Justices Kenneth Desmond Jr. and John Englander:

This case involves the civil forfeiture of wild oysters …. The fisherman and claimant, Cheenulka Pocknett, holds a valid commercial shellfishing permit issued by the Division of Marine Fisheries (DMF). He is also a member of the Mashpee Wampanoag Tribe and, as such, has certain rights to fish for sustenance.

On Wednesday, December 4, 2019, Pocknett and a friend took a large number of wild oysters from Green Pond in Falmouth. Green Pond is closed to commercial fishing on Wednesdays (as well as Sundays, Mondays, and Fridays). See Chapter 275, Article II, § 15(D) of the Code of Falmouth. See also [Mass. Gen. Laws]. c. 130, § 52, par. 1 (authorizing municipalities to regulate shellfish fisheries). {The town of Falmouth created the Green Pond oyster fishery through aquaculture, and the restrictions are presumably to prevent overfishing.}

Pocknett kept some oysters for personal consumption; the Commonwealth took no action regarding those oysters and appears to recognize Pocknett's right to take oysters for personal consumption. Pocknett placed 1,600 oysters in containers and affixed the containers with "DMF-required shellfish tags with [his] name[ ], [his] DMF issued permit number, as well as the date, time and location of the harvest." He then sold those oysters to Big Rock Oysters in Harwich, a licensed wholesale shellfish dealer.

The same day, the Falmouth harbormaster contacted the Massachusetts Environmental Police to report unlawful shellfishing in Green Pond. The next day, an environmental police officer went to Big Rock Oysters and inspected the DMF shellfish tags that stated that the oysters were taken by Pocknett from Green Pond on a Wednesday. The officer told Big Rock Oysters that it should not have accepted those oysters. He instructed Big Rock Oysters to sell the oysters but that the state would be seizing the proceeds. The officer then called Pocknett and orally advised him of the seizure and that he would be filing an action in libel (the term used in the statute)….

Three days later, the same officer issued Pocknett a warning citation for possession of shellfish from an area closed to commercial harvest, in violation of 322 Code Mass. Regs. § 16.09(2) (2019). {That regulation makes it unlawful for a "[c]ommercial fisherman to harvest, attempt to harvest, sell, or attempt to sell any shellfish from any growing area, or part thereof, that is not open to commercial harvest by the [DMF] or the municipality that regulates commercial harvest."}

[Not drugs.] On December 16, 2019, the officer filed a complaint in libel in District Court for forfeiture of a check for $480, which appears to be the wholesale proceeds of the oysters….

In the District Court and the Appellate Division, the Commonwealth repeatedly asserted that the special civil forfeiture provisions relating to drug forfeitures apply to [forfeitures] under G. L. c. 257, thus dramatically lowering the Commonwealth's burden of proof. Under G. L. c. 94C, § 47 (d), the Commonwealth seeking to forfeit proceeds or certain instrumentalities of drug transactions need show only probable cause. The "claimant shall then have the burden of proving that the property is not forfeitable" or that another exception applies.

By its own terms, G. L. c. 94C, § 47, applies only to controlled substances and certain items related to the distribution or manufacture of controlled substances. Its unusual burdens of proof and procedural requirements apply only in that context….

Rather, we repair to the general rule that the [government] bears the burden to prove, by a preponderance of the evidence, that the property is forfeitable. Presumably, the claimant bears the burden of proving any affirmative defense by a preponderance of the evidence….

[Not cars.] Citing G. L. c. 90C, § 2 (the "no-fix" statute), Pocknett argues that the libel was barred by the warning citation issued by the environmental police officer. Under that statute, a police officer must issue a citation for a motor vehicle violation at the time and place of the violation. Failure to do so "shall constitute a defense in any court proceeding for such violation," unless one of several exceptions applies.

Consistent with the theme of this opinion, the unusual citation procedures for motor vehicle violations cannot be imported into the realm of marine fishery regulation. The "no-fix" statute does not reflect a generally applicable concept of law, but rather reflects a particular legislative solution "to replace the old system, where the decision whether to issue a warning was made over a three-day period, because that created the 'opportunity for subsequent maneuvering or pressure' in favor of the well connected." It is a sui generis system, designed to correct a problem particular to the enforcement of motor vehicle violations….

[Wednesdays.] Because it is uncontested that the oysters were taken from Green Pond on a Wednesday, that Green Pond was closed to commercial fishing on Wednesdays, and that the oysters were sold to Big Rock Oysters, the only remaining question is whether Pocknett was acting as a commercial fisherman or instead exercising his rights as a member of the Mashpee Wampanoag Tribe to fish for sustenance.

In this regard, it is important to recall that the Commonwealth did not seize the oysters that Pocknett kept for personal consumption or to share with his friends and family. Rather, the Commonwealth seized only the oysters that Pocknett sold to Big Rock Oysters. Pocknett admits that he personally affixed DMF shellfish tags to these oysters with his DMF commercial fisherman permit number. As a licensed wholesaler, Big Rock Oysters was required to obtain the fisherman's name and DMF number from any person who sold it fish. Furthermore, it could not "accept any species of fish from persons not commercially permitted by DMF."

In short, it was only by acting as a commercial fisherman that Pocknett was able to sell the oysters in question to Big Rock Oysters. Accordingly, there is no genuine issue of material fact and it is established as a matter of law that Pocknett was acting as a licensed commercial fisherman in taking these particular oysters and holding them for sale to Big Rock Oysters….

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[Eugene Volokh] Court Upholds Three-Day Suspension of "Third-Grade Math and Science Teacher" for Maintaining "LGBTQ+"-Themed Books in Classroom

An excerpt from Monday's long decision by Judge Douglas Cole (S.D. Ohio) in Cahall v. Cole New Richmond Exempted Village School Dist. Bd. of Ed.:

Plaintiff Karen Cahall is a third-grade math and science teacher …. The District, acting through one of the other individual Defendants—Superintendent Tracey Miller—imposed a three-day unpaid suspension on Cahall, asserting that she had violated the District's "controversial issues" policy based on certain reading materials she made available to the students in her classroom….

Cahall maintains a collection of books in her classroom that she makes available to students to read during in-class free time, but that she does not otherwise use in connection with instructing the students. The instant controversy arose when a parent complained about some of the books that Cahall included in that collection. In particular, in light of recent events that had occurred at the school (more on that below), Cahall decided to add four books to her collection: Ana on the Edge; The Fabulous Zed Watson; Hazel Bly and the Deep Blue Sea; and Too Bright to See.

As Cahall describes them, these books "each deal with characters who are LGBTQ+ and are coming to terms with feeling different and excluded simply because they are LGBTQ+." According to Cahall, the books "serve to reinforce [her] sincerely held moral and religious beliefs that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are."…

Cahall says her decision to add these books to her classroom collection grew out of what she describes as an earlier "controversy in the New Richmond District." According to Cahall, just before the 2021–22 school year, the District was considering allowing teachers to "wear Rainbow stickers on their name tags, or to display them on laptop cases or desk nameplates to show that [the teachers] were safe for LGBTQ+ students to confide in or to seek advice from." The District was also considering whether to provide students forms on which they could designate their "preferred gender identity preferred pronouns and name."

Word got out, though, and the District received "numerous complaints from community members" opposing those policies. As a result, the Board elected not to move forward with either plan. That in turn led still other members of the New Richmond community, this time those who supported LGBTQ+ rights, to register their disapproval of that decision at a public Board meeting on September 21, 2021. But that did not change the Board's decision.

After the debate and concerned about how societal prejudice might impact LGBTQ+ students, Cahall conducted research in an effort to "educate herself regarding the emotional support needed by LGBTQ+ youth." Those efforts convinced her that these students had higher rates of "anxiety and depression," were more likely to consider or attempt suicide, and had "higher rates of alcohol and/or drug use." She also discovered that they often "experience[] difficulty and delay in obtaining mental health care."

In an effort to address those concerns and provide LGBTQ+ youth access to "safe spaces" and "safe people," Cahall added the four books mentioned above to her classroom collection. The collection itself consists of nearly 100 books, which are stored in bins. Students are free to grab books from the bins to read during free time, but, as noted above, Cahall does not assign, or teach from, the books….

Cahall claimed that the suspension was based on an unconstitutionally vague policy, but the court disagreed:

The Board adopted the policy in 2009. It governs the school's approach to the "consideration of controversial issues" in the classroom, and in particular imposes limitations on "the introduction and proper educational use of controversial issues." The policy goes on to define a "controversial issue" as "a topic on which opposing points of view have been promulgated by responsible opinion or likely to arouse both support and opposition in the community." As for the limitations relating to controversial issues, the policy provides that they "may not be initiated by a source outside the schools unless prior approval has been given by the principal." And the policy goes on to say that "[w]hen controversial issues have not been specified in the course of study, the Board will permit the instructional use of only those issues which may have been approved by the principal." According to Cahall (and confirmed by the discipline letter she attaches to her Complaint), the Superintendent concluded she had violated this policy.

[T]he Supreme Court has expressly … [held that] "'[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'" …

That requirement imposes an insurmountable hurdle for Cahall. She argues that the terms "controversial issue" and "instructional program" in the policies are too vague. And in some abstract sense, that might be true. The exact contours of each phrase may be difficult for a "person of ordinary intelligence" to discern. But there is no question that, on the facts here, Cahall knew that the LGBTQ+-themed books that she placed in the classroom related to a "controversial issue." The policy defined "controversial issue" as including "a topic … likely to arouse both support and opposition in the community."

Indeed, Cahall was aware that LGBTQ+ issues had done just that. In response to the District's stated intention to consider being more receptive and open to such issues, parents had complained. And in response to the District's subsequent decision to retract from that position (based on those parents' complaints), other parents complained. In short, the topic was not merely "likely to arouse both support and opposition in the community," it in fact had done so.

And Cahall knew that. Indeed, in her Complaint, she specifically notes that she added the books to her collection because of a "controversy" surrounding LGBTQ+ topics, and she did so precisely because she thought that controversy damaging to the emotional health of LGBTQ+ students in her third-grade class. A teacher's desire to protect her students' emotional health is a laudable sentiment. But against this backdrop, she, or any other reasonable person of ordinary intelligence, should have known that whatever the precise contours of a "controversial issue," there was no question that it extended to the books at issue here.

Nor is there any meaningful doubt that, under the District's controversial topics policies, she should have known that making the books available to students in her classroom might subject her to discipline. As noted, both the formal policy … and the administrative guidance … make clear that books about controversial topics require pre-approval from the Principal before a teacher includes the books in her classroom supplies and makes them available to students.

Indeed, the guideline seems even broader than the policy. It covers the "selection of resource materials" for the District generally, and it provides that "[n]o print … materials which are not part of the District's basic or supplementary materials are to be used with students without prior review and approval." Certainly, the books (i.e., resource materials) that Cahall unilaterally selected to add to her in-class library were not "part of the District's basic or supplementary materials," so she perforce should have known that "prior review and approval" was necessary before they were "used with students." That the books also addressed what she knew to be "controversial topics" only heightened the prospect that discipline might be forthcoming.

At bottom, the Court agrees with Cahall that the policies here could have been drafted more clearly. And the Court even acknowledges that other teachers in other situations may lack adequate notice that the conduct in which they are engaged may subject them to disciplinary consequences under these policies. But, on the facts as alleged here, Cahall reasonably should have known that she faced the prospect of discipline. And that means that her void-for-vagueness challenge fails as a matter of law. Moreover, in light of the facts pleaded in her Complaint, there is no way that Cahall could address this shortcoming, so the Court dismisses this claim with prejudice.

The court also added,

Cahall does not base her vagueness challenge here on her First Amendment rights to free expression. And that is probably a wise choice in light of (1) case law holding that teachers do not have a First Amendment right to make "curricular and pedagogical choices" of their own liking, as well as (2) case law more generally limiting the scope of First Amendment protection in connection with public-employee work-related speech.

Tabitha Justice and Brian L. Wildermuth (Subashi, Wildermuth & Justice) represent defendants.

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[Eugene Volokh] Addiction to Speech and Press: Content-Neutral vs. Content-Based Restrictions

I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my earlier posts, I argued that concerns about psychological addiction can't justify restrictions that interfere with behavior presumptively protected by the Free Exercise Clause. In my post yesterday, I argued that these concerns likewise generally can't justify restrictions with behavior presumptively protected by the Free Speech or Press Clause, which includes most aspects of social media and video game interface design. Today, I turn to the question whether some of the restrictions may be upheld on the grounds that they are content-neutral.

[* * *]

For the reasons given above, content-based restrictions aimed at preventing "addiction" are very likely unconstitutional: They would be judged under strict scrutiny, which "as a practical matter, it is fatal in fact absent truly extraordinary circumstances."

For instance, restrictions on "[d]isplay[ing] personal interactive metrics that indicate the number of times other users have clicked a button to indicate their reaction to content or have shared or reposted the content" target the communication of particular facts, and restrictions on communicating particular facts are content-based. The same is likely true of restrictions on speech that favorably reports the amount of time the user has remained on a site—e.g., "'badges,' 'streaks,' 'trophies,' and 'emojis' given to frequent users"—or that more broadly notifies users about content created by the social media platforms or video games.

Likewise, laws that are justified by a desire to prevent the amplification of "extremist" viewpoints are content-based as well. Same, I think, for laws justified by a concern that excessive use of social media leads to body image problems by exposing one to too many idealized and possibly edited photos of beautiful people.

On the other hand, restrictions on infinite scrolling, autoplay video, or live-streaming are likely content-neutral, so long as they aren't justified by a desire to diminish the spread of certain views: They focus solely on the manner of presenting information, not on what information is presented. The question, then, would be whether the relevant law—whether a statute or applications of common-law tort law—

advances a "significant government interest,"is "narrowly tailored" to that interest, and"leave[s] open ample alternative channels."

This sort of "intermediate scrutiny" is a pretty mushy test, and its outcome is hard to predict. But let me offer a few observations.

First, the alternative channels prong is likely to be satisfied for many of the content-neutral restrictions. For instance, if infinite scrolling has to be turned off, viewers will still be able to get access to all the material they want, just with an extra keystroke every several pages. Creators will still be able to reach pretty much the same audience, even if they may lose a few people who stop scrolling earlier than they otherwise would have.

Likewise, the social media platform will still be able to communicate to its users, again even if a few users end up stopping earlier than they otherwise would have. The alternative channels prong doesn't require that the alternative forms of communication be exactly as effective as the restricted ones.

Second, when it comes to narrow tailoring to a substantial government interest, one key question will be whether the government is allowed to try to protect some viewers by restricting (even slightly) the speech options available to others. The Court has generally frowned on what it has seen as "paternalistic" justification for restricting speech. This has been especially explicit for restrictions on commercial speech. Even though the Court has held that "commercial speech can be subject to greater governmental regulation than noncommercial speech," it has concluded that even there the government may not regulate based on a "paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely."

To be sure, perhaps courts might distinguish paternalistic rationales under the intermediate scrutiny applicable to content-neutral restrictions from such rationales under the intermediate scrutiny applicable to commercial speech restrictions. But it seems to me that the argument that publishers shouldn't be able to give readers what many of the readers want (more speech, more easily accessible), because some of the readers will consume too much speech and suffer as a result, is hard to reconcile with the general protection offered to speech and press.

[* * *]

Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291, 2310 (2025).

See supra text accompanying note 66; see also Lawrence, supra note 12, at 332, 347, 356, 359 (likewise noting that some proposed regulations, such as of "dangerous 'challenges,'" are content-based and likely unconstitutional); Kyle Langvardt, Regulating Habit-Forming Technology, 88 Fordham L. Rev. 129, 181 (2019).

See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552 (2011); Florida Star v. B.J.F., 491 U.S. 524 (1989). They are not viewpoint-based, but strict scrutiny under the First Amendment is required for content-based restrictions even when they are viewpoint-neutral. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015).

See supra text accompanying note 69.

Even In re Soc. Media Adolescent Addiction/‌Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809 (N.D. Cal. 2023), which was open to addictive design claims based on other features, acknowledged this, id. at 837 (cleaned up):‌‌ "Third, the timing and clustering of notifications of defendants' content to increase addictive use is entitled to First Amendment protection. There is no dispute that the content of the notifications themselves, such as awards, are speech. The Court conceives of no way to interpret plaintiffs' claim with respect to the frequency of the notifications that would not require defendants to change when and how much they publish speech. This is barred by the First Amendment."

"Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech:‌‌ laws that cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message the speech conveys. Those laws, like those that are content based on their face, must also satisfy strict scrutiny." Reed, 576 U.S. at 164.

See, e.g., First Amended Complaint, Stoudemire v. Meta Platforms, Inc., No. 4:‌‌22-md-03047-YGR, ¶¶ 82–90 (M.D. Ala. Nov. 17, 2022).

See Lawrence, supra note 12, at 338–42; Soc. Media Cases, No. JCCP 5255, Lead Case No. 22STCV21355, 2023 WL 6847378, *35–39 (Cal. Super. Ct. L.A. County Oct. 13, 2023).

Common-law negligence and product defect cases that seek to impose liability on speech or press activities are of course subject to First Amendment scrutiny as much as statutory speech or press restrictions would be. See, e.g., Olivia N. v. NBC, 126 Cal. App. 3d 488 (1981); Zamora v. CBS, 480 F. Supp. 199 (S.D. Fla. 1979); Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1036–37 (9th Cir. 1991).

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (cleaned up).

See Ward, 491 U.S. at 802.

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 (1996) (plurality opin.) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)). The majority opinion in Thompson v. W. States Med. Ctr., 535 U.S. 357, 375 (2002), basically adopted the 44 Liquormart plurality's view.

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[Josh Blackman] The Heritage Guide to the Constitution: Essay Nos. 101–125

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 101–125.

Essay No. 101: The Presidential Oath Of Office Clause —Judge Gregory G. Katsas & Seanhenry VandykeEssay No. 102: The Commander In Chief Clause —John C. YooEssay No. 103: The Commander Of The Militia Clause —Judge Gregory E. Maggs & Robert LeiderEssay No. 104: The Opinion Clause —Todd F. GazianoEssay No. 105: The Pardon Clause —Paul J. LarkinEssay No. 106: The Treaty Clause —Michael D. RamseyEssay No. 107: The Appointments Clause —John O. McginnisEssay No. 108: The Inferior Officers Appointments Clause —Jeffrey B. WallEssay No. 109: The Recess Appointments Clause —Robert G. NatelsonEssay No. 110: The State Of The Union Clause —Chad SquitieriEssay No. 111: The Recommendation Clause —Chad SquitieriEssay No. 112: The Presidential Convening Clause —Seth Barrett TillmanEssay No. 113: The Presidential Adjournment Clause —James Burnham & Louis J. Capozzi IiiEssay No. 114: The Ambassadors Clause —Christopher T. Landau & Chase T. HarringtonEssay No. 115: The Take Care Clause —John C. YooEssay No. 116: The Commissions Clause —Robert Luther IIIEssay No. 117: The Impeachment Clause —Michael J. GerhardtEssay No. 118: The Judicial Vesting Clause —Judge Britt C. Grant & John ActonEssay No. 119: The Supreme Court Vesting Clause —Judge John K. Bush, Brennan Mancil, & Erica ShulerEssay No. 120: The Inferior Courts Clause —Judge David R. Stras & Andy HessickEssay No. 121: The Good Behavior Clause —Judge David R. Stras & Ryan ScottEssay No. 122: The Judicial Compensation Clause —Chief Judge Jennifer Walker Elrod, Jack Buckley Disorbo, & J. Andrew MackenzieEssay No. 123: The Judicial Power—Law & Equity Clause —Judge Andrew S. Oldham & Adam I. SteeneEssay No. 124: The Judicial Power—Arising Under Clause —Arthur D. HellmanEssay No. 125: The Judicial Power—Treaties Clause —Judge Carlos T. Bea & Mitchell K. Pallaki

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[Josh Blackman] The Coming Storm Over the Comptroller General

[If the Comptroller General is an Executive Branch Officer, he could be removed at will, and his suit against the President would not be justiciable.]

Department of State v. AIDS Vaccine Advocacy Coalition strongly suggested that private litigants cannot bring suit under the APA to enforce the Impoundment Control Act. If that (interim) ruling is correct, how can the Impoundment Control Act be enforced?

Justice Kagan, in dissent, explained that the Comptroller General can enforce the law through a lawsuit:

Second, the Act gives the Comptroller General (a legislative officer) a way to sue over presidential impoundments. If he believes the President is unlawfully withholding funds, he is to send a report to Congress saying so. See § 686. And after a specified time, he may bring a civil action under the Act to compel the Executive to obligate the funds at issue. See § 687. According to the Executive's application for a stay, that statutory scheme "impliedly preclude[s]" the plaintiff organizations from bringing an APA suit to similarly enforce appropriations laws. Application 18. That suit, the Executive argues, would "supplant[ ] interbranch negotiations" and "leapfrog[ ] the Comptroller General" if allowed to go forward. Id., at 20

There is a lot to unpack here. As a threshold matter, Kagan stresses that the Comptroller General is a "legislative officer." No matter how hard Justice Kagan tries, she can never get away from more "officer stuff."

The Supreme Court, per Chief Justice Burger, discussed the status of the Comptroller General in Bowsher v. Synar (1986). This decision, which was decided on Burger's last day on the bench, ruled that Congress could not play a role in the Comptroller General's removal. Here is a snippet of the decision:

Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical, so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law.

Kagan briefly asserting that the Comptroller General is a "legislative officer" doesn't do much work. Exactly in what regard the Comptroller General is a "legislative officer" is a question that has lingered for nearly four decades. There is an argument that the Comptroller General exercises executive powers, and accordingly, would be viewed as an executive officer. And if Slaughter goes the way we all think it will go, the President might be able to remove the Comptroller General at will.

More importantly, if the Comptroller General is a member of the executive branch, there will be a justiciability question of whether the CG could sue the President. Wouldn't this simply be an intrabranch dispute that does not belong in Court? United States v. Nixon held that the Special Prosecutor could issue the subpoena to President Nixon because there was a binding regulation in effect that allowed him to do so. This was an application of the so-called Accardi principle.

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. [] So long as this regulation remains in force, the Executive Branch is bound by it, and indeed the United States, as the sovereign composed of the three branches, is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress.  8, supra.

The emphasized portion is extremely problematic. Under Bowsher, which was decided a decade after Nixon, members of Congress cannot play any role in the removal of executive officers. We raised this argument in the Special Counsel litigation before the Eleventh Circuit, and earlier before Judge Cannon:

Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal. Apart from those compromises, this insulation would be inconsistent with Bowsher v. Synar. 478 U.S. 714 (1986). Whether the Nixon analysis is holding or dicta, it is not controlling, and it should not be extended to today's context under today's statutory and regulatory framework.

The Impoundment Control Act expressly authorizes the Comptroller General to bring suit against the President. But is that statute even constitutional, if the CG exercises executive power? Under Spokeo and related cases, Congress cannot create an injury in fact or justiciable controversy merely by passing statute. Still,  I remain convinced the justiciability holding of United States v. Nixon is wrong, especially in light of the fact that Bowsher abrogated a core component of Nixon. I've called on that venerable precedent to be reconsidered. At some point, I'll write the article titled The Irrepressible Myth of United States v. Nixon.

To be clear, the Solicitor General has not conceded that the Comptroller General could actually bring this suit. The emergency application states:

The Executive Branch has long raised concerns about the lawfulness of limits on impoundment. See, e.g., Stanton, supra, 6-7. The Office of Legal Counsel has previously reasoned that, should Congress direct spending so as to "interfere with the President's authority in an area confided by the Constitution to his substantive direction and control, such as his authority as Commander in Chief of the Armed Forces and his authority over foreign affairs," that direction may violate Article II. Memo-randum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, 1 Supp. Op. O.L.C. 303, 310-311 (Dec. 1, 1969). See App., infra, 35a n. 16. Those contentions, however, are not at issue in this application. Nor does this case raise any issue about whether suits by the Comptroller General against the Executive Branch are cognizable under Article III.

Again, I do not think this conflict would be justiciable, but the Court would have to take another look at United States v. Nixon.

If the Comptroller General cannot bring suit against the President, what role does he play? He could notify Congress that there was a potentially illegal impoundment. Congress could then choose to bring an impeachment proceeding. What is the impeachable offense? We've been there before. In 2020, Trump was impeached for "abuse of power" for (allegedly) withholding funding to Ukraine. I think the government would say that if there was actual illegal impoundment, there could be an impeachable offense. This conflict should be resolved in the political process, rather than in the courts.

Finally, I would point to a profile in the New York Times about White House Budget Director Russ Vought. He seems to be gunning to have the ICA's enforcement provision declared unconstitutional.

During Mr. Trump's first term, Mr. Vought argued that the president had the power to block federal spending Congress had approved. He was part of a group of White House officials who froze military spending for Ukraine in defiance of Congress, paving a path to the president's impeachment.

To that end, Mr. Vought is laying the groundwork for a legal battle over the Impoundment Control Act of 1974, enacted by Congress in the wake of President Richard Nixon's moves to block agency spending he opposed.

Mr. Vought, who says the law is unconstitutional, would like to see it overturned.

That goal has driven him to his current "pocket rescissions" package.

Mr. Vought's friends say that his actions are designed to provoke a lawsuit from the Government Accountability Office, the congressional watchdog, which has said the pocket rescission is illegal and "would cede Congress's power of the purse."

"Russ absolutely believes he is on sound legal footing and that he will be vindicated at the Supreme Court," Mr. Grogan said.

Edda Emmanuelli Perez, the general counsel of the Government Accountability Office, disagreed, saying in an interview: "In order to not spend the money, the laws would have to be changed. And the president does not have the unilateral power to change the laws."

Rob Fairweather, who spent 42 years at the Office of Management and Budget and wrote a book about how it operates, said there is reason for Mr. Vought to have confidence in a legal victory.

"What he's doing is radical, but it's well thought out," Mr. Fairweather said. "He's had all these years to plan. He's looked clearly at the authorities and boundaries that are there, and is pushing past them on the assumption that at least some of it will hold up in the courts."

Mr. Vought is already looking forward to that outcome, declaring on Glenn Beck's show this spring: "We will have a much smaller bureaucracy as a result of it."

There is a coming storm over the Comptroller General. Get ready for more "officer stuff."

I will have more on this issue in a Civitas column that should be published in a few hours.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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

[Eugene Volokh] Have You Used Generative AI to Represent Yourself in Court Filings? Tell Me Your Story

I know many nonlawyers are using generative AI to represent themselves in litigation. Some of them I learn about because courts spot hallucinated citations in their filings; but I expect that many others are much more careful, and that some may have actually been relatively successful. I doubt that generative AI is good enough right now to match a competent trained lawyer's written work all by itself. But for many self-represented litigants, the question is how AI—with the litigant's checking and editing—compares to just their own untrained selves, not how AI compares to a competent but unaffordable lawyer.

I'd like to learn more about this; if you or someone you know has litigated as a layperson with AI help, I'd love to hear the details. (If I write about it, I will not publish your name or other identifying details, unless you want me to.) What did you find the AI did well? What did you find it did badly? What did you do to try to improve the AI drafts, and do you think that worked out well? I'd like to know all this whether you won or lost.

Please e-mail me at volokh at stanford.edu if you have something you'd like to pass along. Thanks!

The post Have You Used Generative AI to Represent Yourself in Court Filings? Tell Me Your Story appeared first on Reason.com.