Eugene Volokh's Blog, page 252

[Ilya Somin] Video of Federalist Society Daniel Webster Series Debate on Border Issues

I recently participated in a debate over border-related law and policy issues with former Arizona Attorney General Mark Brnovich. We particularly focused on the question of whether illegal migration and drug smuggling qualify s an "invasion" under the Constitution, thereby triggering states' power to "engage in war" in response; Texas has argued the answer is "yes" in two cases currently before the courts. The debate was part of the Daniel Webster debate series, sponsored by the Georgetown University Law Center Federalist Society. Unfortunately, I am unable to embed the video in this post, because the producer has blocked that option. But it is available on Youtube here.

I have written more extensively, about why illegal migration and drug smuggling are not "invasion" in this article, and in an amicus brief in one of the cases before the US Court of Appeals for the Fifth Circuit.

 

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[Josh Blackman] Today in Supreme Court History: October 4, 1965

10/4/1965: Justice Abe Fortas takes the oath.

Justice Abe Fortas

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[Eugene Volokh] Thursday Open Thread

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[Stephen Halbrook] Second Amendment Roundup: Follow ATF into a Political Briar Patch?

The Supreme Court will hear oral arguments next week, on October 8, in Garland v. VanDerStok, the challenge to the radical expansion of the regulatory definition of "firearm" in the Gun Control Act (GCA).  Neither Congress nor the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition passed by Congress in 1968. And both left the non-controversial regulatory definition of "firearm frame or receiver" undisturbed since 1968. But suddenly in 2022 ATF promulgated a Final Rule redefining those terms to include materials, tools, and information that a person with knowledge and skill can use to fabricate a firearm or a frame or receiver.

One of the most hard-hitting amici briefs filed in support of the challengers to the regulation is the brief of the States of West Virginia and 26 other States.  ATF, the brief argues, "is a political briar patch because of its rulemaking authority." That characterization is from a law review article with the parodistic title "Almost Heaven, West Virginia?: The Country Road to Take Firearm Regulation Back Home to Congress and the States."  That play on words brings together John Denver's "Take Me Home, Country Roads" with the major question doctrine set forth in West Virginia v. EPA, 142 S. Ct. 2587 (2022).  If that rule of law applies to anything, it applies to ATF's recent the regulatory rampage.

Given the political volatility of the "gun control" issue, Congress has historically been torn between constituents who support the Second Amendment and those who wish to criminalize various forms of acquisition and possession of firearms.  Because that the issue is a "major question," Congress writes gun statutes carefully and narrowly in a manner that leaves nothing to chance.  As the States' Brief says:

Given the sensitivity of this work, one might at least expect ATF to tread carefully before purporting to regulate in unexpected and aggressive new ways. But recently, it hasn't. ATF has instead seemed determined to stretch the words found in statutes like the GCA and NFA [National Firearm Act] to reach conduct never anticipated by the lawmakers who passed them. This case, concerning ATF's efforts to regulate gun kits and other forms of private firearms assembly under the guise of calling them "frames or receivers" subject to the GCA, is just the latest example of that effort.

This is not the first, and it won't be the last, overreach by ATF.  As the States' Brief continues, "many of the Amici States here have been compelled to step in and sue ATF multiple times over the past few years just to return the agency to its actual area of authority."  Thus, "when the Court encounters another ATF regulation offering a purportedly creative solution to a long-standing problem, it should be wary."  The Brief describes "some of the specific machinations ATF has used in the past to get to its desired results—erasing ordinary meaning, stripping words from context, ignoring comments, short-circuiting APA requirements, and blinding itself to the real-world consequences of its own actions."

Succinctly put, "The rule here overreaches. But the Court need not follow ATF into the briar patch."  Instead of addressing just the specific statutory issue before the Court, the Brief demonstrates how this regulation is only one of four recent ones that reveal ATF's pattern and practice of usurping "major questions" that Congress reserved to itself.

The State's Brief goes on to discuss these four pushes of the envelope, each of which I've analyzed in this blog – bump stocks, pistol braces, definition of "engaged in the business," and definition of "firearm."  It argues that ATF has disregarded the limits of its own authority and the requirements of the Administrative Procedure Act.  While possession of firearms in the wrong hands poses danger, only Congress can address the problem: "Neither the ATF nor this Court can impose naked policy preferences, especially so on hot-button issues like these."

"But to understand just why ATF's regulatory work can't really be trusted," the Brief continues, "it helps to travel through the rabbit hole of its fickle regulatory scheme. It's a dizzying ride."

First, as the Court recently addressed in Garland v. Cargill, 602 U.S. 406 (2024), for years ATF classified bump stocks as mere accessories, but then in 2018 abruptly reversed course and redefined them as "machineguns."  The definitions of various types of firearms in the GCA and NFA are in the hands of Congress, and ATF's regulatory definition contradicted the statute.

Second, after finding in seventeen classifications over several years that use of stabilizing braces on pistols is unrestricted, ATF reclassified them as short-barreled rifles under the NFA.  Its proposed regulation included a worksheet to determine if a specific braced pistol is "designed and intended to be fired from the shoulder."  The final regulation, adopted in 2023, scrapped the worksheet and relied on a vague, six-factor test based on subjective criteria under which virtually all pistols with braces would be short-barreled rifles.  The Fifth Circuit in Mock v. Garland, and the Eighth Circuit in Firearms Regulatory Accountability Coalition v. Garland, found the final rule to violate the APA.

Third, in 2024 ATF adopted a final rule expanding what it means to be "engaged in the business" of dealing in firearms.  As passed in 1968, the GCA had no definition.  A 1982 Senate Judiciary Committee Report found that ATF agents were "anxious to generate an impressive arrest and gun confiscation quota," so they "repeatedly enticed gun collectors into making a small number of sales."  In response, the Firearm Owners' Protection Act of 1986 provided that persons are "engaged in business" only if they: "[1] devote[d] time, attention, and labor to dealing in firearms [2] as a regular course of trade or business [3] with the principal objective of livelihood and profit through [4] the repetitive purchase and resale of firearms."  That was tweaked by the Bipartisan Safer Communities Act of 2022 to insert "predominantly" for "principal objective" and to delete "livelihood."

But ATF's final rule on this subject says that there is no minimum number of transactions required, one may be enough, and the seller need not obtain pecuniary gain.  Indeed, a mere offer to sell could be "engaging in the business," while selling zero firearms.  Since under this new definition almost anyone selling a firearm becomes a "dealer" requiring a license, almost all sales will require a background check, a result that Congress never intended and never enacted into law.  As the States' Brief puts it: "So by making almost everyone a 'dealer' under the GCA, ATF sneaks universal background checks in the back door."

The States' Brief makes a point that applies to all of these regulatory expansions: "the GCA does not give ATF authority to define terms in the first instance."  Section 921(a) of the GCA, which consists of "Definitions," begins "As used in this chapter," after which it states what each term "means."  Congress delegated authority to ATF to expand the meaning of a single term, "collector," which Congress said "means any person who acquires, holds, or disposes of firearms as curios or relics, as the Attorney General shall by regulation define…."  As the Brief observes, Congress thus "instructed ATF to create a definition only for one minor phrase in the GCA…."

That said, § 926(a) also provides that "The Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter…."  As the Brief adds, "even if ATF could define a minor term here or there, there is no world in which it is 'necessary' for ATF to redefine the statute's most crucial terms, thereby eviscerating the definitions Congress created."

Fourth, with that, the Brief clamps down on the Final Rule at issue here.  In each of these rules, to use Justice Gorsuch's observation in one of the bump stock cases, "[t]he law hasn't changed, only [the] agency's interpretation of it." Guedes v. ATF, 140 S. Ct. 789 (2020) (denying cert.).  Congress has not changed its definition of "firearm" since it enacted the GCA in 1968, and ATF did not alter its definition of "frame or receiver" it promulgated in 1968 until it adopted the Final Rule here.

ATF's 1968 definition provided that a "firearm frame or receiver" is "[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel."  Under the proposed rule, a "frame or receiver" was drastically reduced to include any part that could "hold" or "integrate" "one or more fire control components," which was in turn defined as "a component necessary for the firearm to initiate, complete, or continue the firing sequence." As the Brief notes, "that definition would have covered all sorts of firearms parts, which meant modern firearms would then have many different 'frames' or 'receivers.'" ATF conceded that definition to be unworkable and nixed it.

Instead of proposing a new definition for public comment, ATF adopted its Final Rule with quite a different definition focusing on, in its words, the "primary energized component designed to hold back the hammer, striker, bolt, or similar component."  In the words of the Brief: "Put differently, ATF shifted from focusing on every discernible component of a firing sequence (and any housing or structure for it) to fixing on just one specific piece."

So "frame or receiver" began as the complete housing of a firearm's operating parts (1968), changed to potentially multiple housings for the same firearm (proposed rule), and ended with the housing for a single part, excluding the complete housing for all of the parts (final rule).

As the States' Brief argues, this case thus presents a "logical outgrowth" problem—a situation in which the agency "significantly amended the rule between the proposed rule and final versions, making it impossible for people to comment on the rule during the comment period." Ohio v. EPA, 144 S. Ct. 2040 (2024).  In other words, "the agency preferred to skip to the end and reach its desired result. This bait-and-switch is yet another reason not to countenance this rule."

Bringing together the four recent instances in which ATF attempted to extend its regulatory reach to an unprecedented magnitude, the Brief affirms what should be obvious:

Congress has not outlawed weapons parts kits, stabilizing braces, or bump stocks. Nor has it dubbed every person handling a gun a firearms dealer. ATF can't take these actions in Congress's place. The agency's error, here, provides another peek behind the curtains. And looking backstage, it's clear that ATF is a legislative body poorly disguising itself as an executive one—even going so far as to use procedural maneuvers to avoid scrutiny. ATF has a history of ignoring statutory text and APA mandates.

The States' Brief ends with the truism that policy concerns can't trump statutory text.  "Left with little in the way of textual support, many of ATF's amici argue that this Court should depart from the statute's plain meaning because excluding 'ghost guns' from the GCA's scope would purportedly have dire consequences."  But that's a matter for Congress, not the agency or the Court.

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[David Bernstein] Campus Pro-Hamas Events on October 7: What Should be Done?

At various universities around the country, Students for Justice in Palestine and other pro-Hamas groups are holding events on October 7. Some of these events celebrate Palestinian "resistance," while others, throwing in a blood libel for good measure, commemorate a non-existent genocide of Palestinians by Israel since the war in Gaza began.

Let's recall what happened on October 7, 2023. Thousands of Hamas terrorists, followed by "civilian" hangers-on, attacked border towns in southern Israel along with a music festival. The perpetrators recorded themselves gleefully murdering innocent people–peacenik kibbutznik and party-goers, children in front of their parents (there is one harrowing video you can find online of an eight-year-old girl asking, in vain, that the terrorists murder her), not the elderly, just everyone in their path. The murders were often undertaken in the most gruesome ways, including burning people alive. They also undertook an orgy of rape and torture, and kidnaped a few hundred Israelis, from a baby to an eighty-five year-old.

Let's also recall that on October 7, woefully underprepared Israeli forces struggled to repel the invasion. Not a single Israel soldier entered Gaza that day.

This tells us two things. First, those who see October 7 as anything but a day that should be devoted to the memory of the innocents brutally murdered, raped, tortured, and kidnaped that day at the very least are indifferent to that suffering, and at worst applaud the worst violence against Jews since the Holocaust. Unfortunately, many are in the latter category. As Seth Mandel writes, "American universities are full of psychopaths both in the student body and often in the professoriate (and sometimes administration)."

Second, there is no reason for anyone protesting the Israeli response in Gaza to the war Hamas started to use October 7 as a commemorative date, except to intentionally intrude on Jewish memory and commemorations of the atrocities of that day. To again quote Mandel, they choose October 7 "not despite the pain it causes Jews on campus but because of that pain." It's a form of emotional and political warfare, as if on September 11, 2002 students held events about a purported genocide by US forces fighting the Taliban.

So what should be done about morally repugnant university events to be held on October 7? If, as at Wake Forest, such events are sponsored by university academic departments, a university is well within its rights to shut them down, as Wake Forest did. Academic departments are subdivisions of the university, and the university may tell these departments that it refuses to allow its subdivisions, speaking as agents of the university, to sponsor events using October 7 for pro-Hamas propaganda.

For student events, however, the answer is that nothing should be done by university officials. At public universities, students have a First Amendment right to be as openly morally repugnant as they choose. Thus, a Maryland judge was correct in rebuffing the University of Maryland's attempt to stifle a pro-Hamas October 7 event. At private universities, if the university has a policy of not censoring student political events, it should not make an exception for these.

Yes, it's true that at many universities there would be a far stronger administrative reaction to an event celebrating the lynching of black people, or gay-bashing, or atrocities against Native Americans, and so on. And if students can prove that the university treats Jewish students' complaints and concerns differently than other groups', that is valid grounds for a lawsuit or Title VI complaint. And university officials certainly have no excuse not to denounce October 7 celebrations if (and only if) they regularly denounce other student events they find morally repugnant. (And of course, counter-demonstrations must also be permitted.)

Part of me wishes that I could make a principled argument for shutting these events down, but part of me does not. The groups holding these events are quite openly and publicly telling you who they are and what they believe in. To quote Mandel once more, their "leaders don't want to wait a day to hold the rally because while any other day could mark the war, no other day could mark the murder and mayhem of Oct. 7. The day is important to them because the massacre of Jews is important to them." And that's important information to have.

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[Ilya Somin] Upcoming Virtual Panel on Trump v. Anderson [updated]

On October 17, 12-1 PM central time/1-2 PM eastern time, I will be participating in a virtual panel on the Supreme Court's decision in Trump v. Anderson, which held that states cannot disqualify Donald Trump from the 2024 presidential election on the basis that he was ineligible for the presidency under Section 3 of the Fourteenth Amendment. The panel is sponsored by the Loyola University Chicago School of Law.  The other participants will be  Prof. Derek Muller (Notre Dame), a prominent election law scholar, and Prof. Neil Siegel of Duke Law School, a prominent constitutional law scholar. The event will be moderated by Prof. Tyler Valeska (Loyola).

Free registration available here. And here is the official description of the panel:

This panel will examine the Supreme Court's decision earlier this year in Trump v. Anderson. That decision prevented states from barring Donald Trump from their presidential ballots under Section III of the Fourteenth Amendment on the grounds that he engaged in insurrection on January 6, 2021. The panelists will debate the Court's outcome and reasoning, explore the case's implications for our democracy, and consider how Congress and other institutions might respond.

Both Neil Siegel and I have written articles about the case, and both are available on SSRN. Here are the links:

Neil Siegel, "Narrow But Deep: The McCulloch Principle, Collective-Action Theory, and Section Three Enforcement."

Ilya Somin, "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson,"

Part II of my article includes a brief critique of Siegel's.

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[Eugene Volokh] Unethical for Lawyers to Tell Clients Their Judges May Be Biased Based on Race, Sex, Etc.?

That appears to be the assumption behind N.Y. Advisory Committee on Judicial Ethics opinion 24-73, at least when "the attorney's comments are so egregious that they seriously call into question the attorney's honesty, trustworthiness, or fitness to practice law," whatever that might mean in this context; the opinion was released May 9 but just posted on Westlaw:

While the inquiring judge was presiding in a criminal matter, the defendant questioned whether he/she could receive a fair trial before any judge of the court. The judge soon learned that, in a recorded conversation between defense counsel and the defendant, the attorney had referred to the age, race, political affiliation, and gender of the court's judges, and suggested that the court "should look a little bit more like the people that are in front of them."

The attorney also suggested that the defendant would not receive a fair trial from the court's judges, who are a different race and gender from the defendant. Finally, the attorney used a pejorative term, drawing on racial and gender stereotypes, to refer to the complainant. [It appears to me that "complainant" here means the person bringing the matter before the Commission—i.e., the judge—and not the defendant. -EV] The judge found the comments "very troubling" and asks whether he/she must report the attorney.

A judge must uphold the judiciary's integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Further, a judge must always act in a manner that promotes public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[[A]), and must not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment (see 22 NYCRR 100.2[B]).

A judge must "require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses, counsel or others" (22 NYCRR 100.3[B][5]). Additionally, if a judge receives information indicating a "substantial likelihood" that a lawyer committed a "substantial violation" of the Rules of Professional Conduct, that judge must take "appropriate action" (22 NYCRR 100.3[[D][2]).

We have advised that a judge need not investigate alleged misconduct and may discharge his/her disciplinary responsibilities, if any, "based on those facts already known to the judge without further inquiry" (Opinion 22-64; see also Opinion 23-239).

Here, it appears that the inquiring judge has already concluded that he/she has received information indicating a substantial likelihood that the attorney has committed a substantial violation of the Rules of Professional Conduct. If so, the judge is obligated to take "appropriate action" and the sole question presented for us is what action is "appropriate" under the circumstances. This determination is ordinarily left to the judge's discretion in all but the clearest cases, even when the judge is satisfied that the attorney's comments inappropriately touched on the categories set forth in Section 100.3(B)(5) [age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses, counsel or others]. For example, in Opinion 22-49, we advised that "[a]fter a judge admonished an attorney on the record for an inappropriate attempt at humor referencing the client's ethnicity or national origin, the judge has discretion to take further action, but is not required to do so."

By contrast, we did require reporting in Opinion 23-113, where the judge concluded there was a substantial likelihood that an attorney made "multiple offensive remarks" to nonjudicial court personnel and opposing counsel. In that instance, however, some of the extensive remarks described in the inquiry appeared to "qualify as sexual harassment" while others "reflect[ed] ethnic and/or religious bias" (id.).

We note that the racist and sexist remarks described here were apparently made during an out-of-court conversation between an attorney and a client, in which the attorney also provided advice about venue and expressed a view on the need for increased diversity in the judiciary. On the facts presented, we cannot determine for the judge whether the attorney's comments are so egregious that they seriously call into question the attorney's honesty, trustworthiness, or fitness to practice law. That determination must therefore remain in the judge's sole discretion.

If the judge concludes that the alleged misconduct is so egregious that it seriously calls into question the attorney's honesty, trustworthiness, or fitness to practice law, then the judge must report him/her to the attorney grievance committee (see Opinion 22-49). Otherwise, the judge may take some lesser action, exercising his/her discretion to "determine what constitutes "appropriate action' upon the judge's own evaluation of all relevant and known circumstances" (id. [admonishment on the record]; Opinion 15-54 [noting examples such as "addressing the prosecutors' conduct in a decision" or ""counseling, reprimanding, admonishing, sanctioning, [or] reporting the attorneys to their superiors"]).

As a reminder, if the judge chooses to report the attorney, he/she must thereafter disqualify in all cases involving that attorney during the pendency of the disciplinary complaint and for two years after its resolution (see e.g. Opinions 20-151; 20-67).  This disqualification is not subject to remittal unless the attorney grievance committee imposes public discipline, or the reported attorney waives confidentiality (id.).

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[Eugene Volokh] University Doctor's Financial/Sexual/Mentoring Arrangement with Non-Student Leads to Title IX Claim

In Doe v. Univ. of Michigan, decided last Thursday by Judge Shalina Kumar (E.D. Mich.), Doe claimed that, when she was a "a nineteen-year-old student at Michigan State University," she met Dr. Schoenfeld, "a forty-nine-year-old gastroenterologist at the University" of Michigan "through an online website where they each sought a personal relationship." (Michiganders of all institutional loyalties will appreciate that the two universities are not the same.) According to Schoenfeld's filing in a related defamation suit he filed against Doe in California, the site was SeekingArrangement.com, and "Seeking Arrangement's advertised purpose was facilitating relationships between younger 'sugar babies' and more established 'sugar daddies.'"

From the Court's summary of the facts and alleged facts,

Doe hoped to attend medical school. Doe and Schoenfeld entered a "mentoring relationship with intimacy," in which Schoenfeld would pay Doe $1250 per month and help her attain her goal of attending medical school, and Doe would have sex with Schoenfeld and "maintain her appearance." Over the course of this relationship, Doe alleges Schoenfeld subjected her to sexual violence and abused her. Their sexual relationship lasted a few months, from February 2013 to May 2013. But Schoenfeld continued mentoring Doe so that she could one day gain admission to the University's medical school.

There appears to be no dispute that the financial and sexual arrangement existed (Schoenfeld seems to have acknowledged it the California defamation lawsuit). The allegations of sexual violence and abuse, however, are very much disputed: As a result of the California litigation, Doe entered into a judgment retracting the allegations, as part of a settlement in which Schoenfeld promised to pay her and her then-lawyer $150K, though she is trying to recant the retraction—a bit more on that at the end of the post. Back to the court's statements of the allegations in Doe's Complaint (which the court assumed for purposes of deciding the motion to dismiss):

In 2015, Schoenfeld offered Doe an internship at the University's Taubman Center …. Doe accepted and began the internship without submitting any type of application, providing any identification, undergoing a background check, or completing HIPAA compliance training. Indeed, Doe did not receive any communications or acknowledgement from the University about an internship or shadowing opportunity, nor did she sign any code-of-conduct attestations as typically required.

Doe did not explore whether she needed to take any such steps to formalize the internship, and she did not receive an ID or visitor badge from the University for use whenever she was on the premises. Schoenfeld did not notify anyone within the University that he planned to have Doe shadowing him, and University administration and leadership did not approve of any shadowing arrangement for Doe.

Without the University's knowledge or preapproval, Doe shadowed Schoenfeld in the Taubman Center on more than one occasion, although it is disputed exactly how many times. Doe estimates that she shadowed Schoenfeld at least once a week through the winter and summer of 2015. Schoenfeld states that Doe shadowed him fewer than 10 times. These shadowing visits consisted of Schoenfeld "asking individual patients if they would allow Ms. Doe to passively observe [their] interactions. If the patient granted verbal approval, then [he] allowed Ms. Doe to observe."

Schoenfeld allegedly assured Doe that he obtained permission from the University before offering her the internship. However, during the internship, Schoenfeld instructed Doe that if anyone asked why she was on the premises, she should tell the person that she was a family friend of Schoenfeld, which she later realized was to avoid raising their suspicions. He also instructed Doe to wear blue scrubs for the same purpose.

Doe ended her internship in August 2015 because Schoenfeld's actions made her feel increasingly uncomfortable. For example, instead of using a public elevator, Schoenfeld would only walk her up to the Taubman Center's restricted access floor through a private stairwell, where he would touch her inappropriately. Doe also felt progressively uncomfortable by Schoenfeld's written communications to her. Doe told Schoenfeld that she was done with the internship because she needed time to focus on her MCAT examination. But she left primarily because she felt sexually and verbally harassed by Schoenfeld. [Again, all these appear to just be Doe's allegations. -EV]

After Doe had ended their relationship, Schoenfeld allegedly stalked her and approached her at an off-campus Walgreens in August 2017.

In January 2018, Doe contacted the University's Title IX office to report Schoenfeld for rape and "predatory behavior." … [D]efendants Baum and Seney, the University's Title IX Coordinator and Assistant Coordinator … informed Doe that they could not conduct a formal investigation because Doe was not an active University student or employee but they would conduct an informal investigation into her report….

In September 2019, Doe learned through a public social media post that Schoenfeld was interviewing for a position at Stanford University that would involve both practicing medicine and teaching. Out of concern that Schoenfeld would use this role to target Stanford students in the way he targeted Doe, Doe contacted Stanford's Title IX office and reported her experience with him.

After Doe began making allegations against him, Schoenfeld brought a defamation suit against her in California. In order to settle that case, Doe eventually sent written statements to several private parties retracting some of her allegations against Schoenfeld. Doe then filed this suit.

The court dismissed Doe's Title IX claim:

As a threshold matter, Doe must have standing to bring a Title IX claim. As a nonstudent, Doe establishes such standing if she shows she experienced discrimination "while participating in, or at least attempting to participate in," a University education program or activity. According to Snyder-Hill v. Ohio State Univ. (6th Cir. 2022), even if the so-called internship was not a bona fide education activity because it was merely a guise for Schoenfeld's exploitation, Doe could be deemed as "attempting to participate in an education program"—and thereby establish factual standing—if she "believed that [s]he was receiving a bona fide" internship with the University's Taubman Center.

Defendants argue that the limited discovery completed by the parties establishes that Doe could not have believed that she was attempting to participate in a bona fide internship. They point to evidence that shows (1) she engaged in lies and deception with Schoenfeld regarding her presence at the Taubman Center; (2) she failed to investigate or comply with University policy or complete any required application, training, or background screening; and (3) the University did not provide acknowledgement, let alone any express or implied authorization of her presence at the Taubman Center.

Doe fails to counter defendants' argument and evidence. She argues that defendants did not follow their policies and procedures in connection to her internship with Schoenfeld. But she does not dispute the evidence that shows she engaged in lies and deception during her internship, overlooked any steps typically required to establish a real University internship—such as submitting an application—and received no administrative authorization for her internship.

Moreover, she offers no other evidence to show she believed that she was attempting to participate in a legitimate University internship. Because the evidence demonstrates that Doe did not believe that shadowing Schoenfeld at Taubman Center was a bona fide internship offered by the University, the Court … dismisses her Title IX claim against the University … for lack of standing.

Doe is now trying to set aside the judgment that contains the retractions, alleging that she signed it because of duress from her then-lawyer and that it violates a California statute restricting nondisclosure agreements in sexual harassment and assault claims; the California trial court declined to set aside the judgment, and Doe has appealed. I hope to blog separately about that interesting legal issue, and also about Doe's retroactive pseudonymization in that California case (as well as her pseudonymization in the federal case).

Thomas L. Kent represents the university defendants in the Title IX case.

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[Eugene Volokh] Foreign Islamic Unilateral Divorce (Created by Saying "Talaq" Three Times) Not Recognized in U.S. Court

An excerpt from Khan v. Azeez, decided yesterday by the Louisiana Court of Appeal, in an opinion by Judge Shannon J. Gremillion, joined by Judges D. Kent Savoie and Candyce G. Perret:

Khan and Azeez are citizens of India and were married there in 2003 but have resided in the United States since 2007. They first lived in Maryland, then moved to Quincy, Illinois in 2017. They are the parents of two teenaged children, one born in 2005 and the other in 2008. Khan and Azeez traveled to India in November 2018, whereupon Khan deserted his wife taking her passport with him.

He was then unilaterally granted a divorce under Islamic law by uttering of the word "talaq" (divorce) three times, a practice which India declared illegal and unconstitutional on July 31, 2019, retroactive to September 19, 2018, under the Muslim Women (Protection of Rights on Marriage) Act. It states that a declaration of triple talaq is void and illegal and "any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal" and subjects the husband to a three year prison term and a fine. Upon her eventual return to the United States in March 2019, Azeez immediately filed a petition for dissolution of marriage in an Adams County, Illinois court on March 13, 2019.

Khan objected to the Illinois court's jurisdiction arguing he had been divorced via the talaq method [and that there had been an Indian court judgment acknowledging the divorce -EV] …. [T]he Illinois trial court denied Khan's exception finding that the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) and basic principles of human rights required a finding that the divorce by talaq and any subsequent child custody determinations were invalid….

Any divorce action that results in a judgment, that includes child custody, based simply on a pronouncement of divorce by a husband violates fundamental principles of the wife's rights to dispute the divorce action and be heard with regard to division of assets and debts as well as custody of the parties' minor children. According to the testimony of Dr. Khan, the only right afforded under this pronouncement of divorce is the right of the wife to make efforts of reconciliation. As such, the Court declines to give international application to the "Talak" as it applies to parental responsibility/custody of the parties' minor children. Only an Illinois court—not an Indian court—can grant complete relief to the parties, since only Illinois has the jurisdiction to decide parenting and custody matters. Under the UCCJEA, Illinois is the children's home state.

The Illinois court rendered a judgment on November 6, 2019, finding the India judgment invalid, dissolving the marriage, setting forth child custody, and awarding spousal and child support in accordance with Illinois laws….

Khan then tried to relitigate the matter in Louisiana courts, and the Louisiana trial and appellate court said no:

Khan argues that every foreign judgment afforded full faith and credit by this state must first have a full evidentiary hearing in order to make the judgment "executory" [and thus enforceable -EV]. We disagree….

Khan is the party who sought full faith and credit of his India divorce judgment in Louisiana, despite the Illinois judgment invalidating it and setting forth child custody determinations in accordance with the UCCJEA. He did not appeal the valid Illinois judgment. Moreover, as the moving party, he bore the burden of proving the validity of the India judgment…. Thus, the only question before us is whether the trial court's finding that the Illinois judgment was entitled to full faith and credit was erroneous.

The Illinois court exercised its jurisdiction over the parties pursuant to 750 ILCS 36/201, which authorizes a court in the state of Illinois to make an initial child custody determination if Illinois is the home state of the children, or was the home state of the children in the six months prior to the commencement of the action and the parent continues to live in Illinois. This article specifically provides for the exclusive, continuing jurisdiction of the court relating to child-custody matters. It is undisputed that Illinois was the home state of the children and Azeez. Khan challenged the jurisdiction of the Illinois court over him in Illinois, asserted the validity of the India judgment, and did not appeal the trial court's judgment. Khan's second attempt to validate his India judgment in Louisiana amounts to nothing more than forum shopping….

The State of Illinois referred the Illinois judgment to the State of Louisiana, Support Enforcement Services (LASES) to register and enforce the judgment in Louisiana…. At that time Khan owed arrearages of $162,716.15. A hearing followed on March 22, 2023. Azeez was unaware of these proceedings and had not received notice of any kind. The trial court found that Illinois did not have jurisdiction over Khan; however, because Azeez had received no notice of the LASES hearing, she was unable to defend Khan's claims, and the State had no evidence to dispute Khan's claims that he did not receive notice relating to the Illinois hearings. Thus, the trial court rendered a judgment in Khan's favor prohibiting the Department of Children and Family Services from enforcing the LASES order. The Department of Children and Family Services filed a motion for new trial or to annul an order denying and vacating registration in June 2023. In the motion, DCFS noted that the exhibits show that Khan:

testified falsely in this matter, at the very least, with regard to his supposed lack of notice in the Illinois proceedings….

In the current matter, the trial court took notice of its error in the LASES matter (which is not consolidated with this matter) stating that it was clear that it did not know at the time it ruled that Khan had been fully aware of and participated in the Illinois judgment. The trial court noted its erroneous ruling in the LASES case at the hearing on the exception of res judicata:

[A]ctually the basis upon which this Court denied enforcement of the Illinois Order, was based upon information that this Court had at that time indicating that Javeed Khan did not have notice of the November 5, 2019, Hearing. However, not only did Javeed Khan have notice of this Hearing, he also wrote an apology letter in advance of the Hearing, dated November 1, 2019, wherein he apologizes for not showing up for the November 5, 2019, Hearing…. The information supplied to the Court at the Hearing in the LASES case clearly was incomplete. As a result, the Ruling of the Court's finding that Javeed Khan did not have notice of the November 5, 2019 Hearing was clearly wrong.

… We note that Khan's actions relating to this matter approach an abuse of judicial process, and we will find him in contempt of court for frivolous appeal should he assert another false claim that he did not have notice of the Illinois hearings that he clearly participated in….

The trial court's judgment granting Azeez's exception of res judicata is
affirmed as Louisiana must give full faith and credit to the Illinois judgment
dissolving the marriage and setting forth custody and support awards.

Douglas L. Bryan (The Bryan Law Firm, LLC) represents Azeez; Derek P. Manuel represents Louisiana.

The post Foreign Islamic Unilateral Divorce (Created by Saying "Talaq" Three Times) Not Recognized in U.S. Court appeared first on Reason.com.

[Paul Cassell] Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part III)

The past two days, I have blogged (here and here) about Glossip v. Oklahoma, a death penalty case that the Supreme Court will hear next Wednesday. I explained in my two earlier posts how Glossip and Oklahoma (through Attorney General Gertner Drummond) have concocted a phantom Brady violation where none exists.  Simply put, Glossip's prosecutors never withheld evidence. In this third and last post in the series, I discuss how courts should respond to confessions of "error" by prosecutors in possibly politically motivated circumstances. The Glossip case is a cautionary tale suggesting that courts should not blindly accept such confessions but rather should independently review the underlying record to determine the truth.

The Glossip case revolves around Glossip's claim that prosecutors' notes reveal evidence withheld from the defense team concerning a prosecution witness (Justin Sneed). The State of Oklahoma, through Attorney General Gertner Drummond, has confessed "error" and agrees with Glossip's claim.

My amicus brief for the family of Barry Van Treese, the murder victim, responds to these claims. In my first post, I explained that Glossip and General Drummond misinterpret the prosecutors' notes and fail to provide the Supreme Court with important context about the notes' meaning. In my second post, I discussed Glossip's and Drummond's failure to address these concerns in their reply briefs. Today, I review the issue of what weight the Supreme Court should give to General Drummond confession of "error" in resolving the case. As with my two earlier posts, today's post draws on and summarizes my more detailed amicus brief and its incorporated appendix.

The issue of what weight to give to a confession of error is important in Glossip. Ultimately, lacking anything meaningful in the text of the prosecutors' notes, the parties' joint argument for overturning Glossip's conviction rests on Attorney General Drummond's confession of error. But the Supreme Court should give that confession no weight.

First, General Drummond is not confessing his own error. Instead, he "confessing" (if that is the right term) that the experienced local prosecutors suppressed evidence. But General Drummond can no more validly opine that the prosecutors agreed to hide evidence than he could that they conspired to rob a liquor store. Without supporting evidence, his unfounded opinion is entitled to little weight.

Second, it is not really clear that General Drummond is offering his own opinion. He has essentially outsourced the project of evaluating a potential error. Drumond released the prosecutors' notes to Rex Duncan, his lifelong friend and political supporter, as part of a purported "independent" investigation. Then, Duncan borrowed from a report from an anti-death penalty law firm (Reed Smith) and use it to draft a report with unsupported conclusions about what the notes meant. Next, General Drummond accepted those conclusions about the notes and confessed "error." And then, armed with the confession of error, Glossip parroted these dubious "facts" to the lower courts and, ultimately, to the Supreme Court—cloaked in the claim that they represented the "considered judgment of the State officer chiefly responsible for enforcing Oklahoma's laws …."

This bizarre sequence cannot launder the fact that no credible evidence of prosecutorial misconduct exists. The so-called "independent" report of Rex Duncan is not reliable evidence. On the key points (e.g., what happened when prosecutors Smothermon and Ackley interviewed Sneed), Duncan has not carefully examined the prosecutor's notes. Indeed, Duncan's acclamatory tone reveals the true, political nature of his project. He writes in his report to Drummond that "[y]our decision to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I've ever witnessed." Cert. Pet., App. 66a

Third, potential political motivations might underlie confessions of error like the one in this case. In speaking to a possible motivation, I want to be cautious. Of course, I do not have first-hand knowledge of what motivated Drummond to ask for the conviction to be overturnned. Nor do I know why (as I have explained in my previous posts) Drummond is remaining willfully blind to the facts of the case. But I do know that politics surrounding his position are much more complicated than some have suggested.

For example, Malika (a VC commentor to my post yesterday) asked whether it could be politically advantagous for a Republican A.G. in Oklahoma to block an execution. That answer is, "yes." Glossip has become something of a cause célèbre in Oklahoma. In 2022, Republican legislators asked for the anti-death penalty law firm, Reed Smith, to examine the Glossip case because they were concerned about the case—and were rethinking their position supporting the death penalty. Multiple celebrities have also taken up Glossip's cause, including socialite Kim Kardashian, Catholic Nun Helen Prejean, and television personality Phil McGraw.

General Drummond's press release announcing his Supreme Court brief paints him (perhaps unsurprisingly) as someone who is "seeking answers" to a "case long mired in controversy." Drummond has not said that Glossip is innocent. Instead, in his briefing and elsewhere, Drummond has said only that the case needs a "fresh review."

More broadly, death penalty cases and other high-profile criminal prosecutions can evoke strong feelings and even a tendency to distort the factual record. Cf. Stephen J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988) (discussing false claims of "innocent" persons being executed used to support abolition of the death penalty). It would hardly be surprising to find that one politically elected official views the facts of a case one way, while another goes in a different direction. If public officials who disagree with a case's outcome are free to change that outcome simply by confessing a dubious procedural "error," then trust in the criminal justice system becomes the casualty.

In Glossip, the Supreme Court need not determine General Drummond's motive. Instead, it should simply take a position against the possibility of politically calculated maneuvering. The Court has long held that "the proper administration of the criminal law cannot be left merely to the stipulation of parties." Young v. United States, 315 U. S. 257, 259 (1942). And "it is the uniform practice of [the] Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained." Sibron v. New York, 392 U.S. 40, 58 (1968). The rationale underlying these long-settled holdings is that the outcome in a criminal case must ultimately reflect not the transient views of one individual but rather the underlying facts—in short, the truth. The truth here is that no evidence was suppressed … and Glossip commissioned the death of Barry Van Treese.

Closely examining confessions of error is particularly important in violent crime cases, where victims (and, in homicide cases, their families) have vital interests at stake. In this case, the Van Treese family has waited patiently for justice for more 10,000 days. And yet they are now witnessing the spectacle of their case being stalled by the Attorney General for their home state confessing an error where none exists.

The Third Circuit recently confronted a similar situation, where an anti-death penalty prosecutor attempted to undo a capital sentence by confessing "error." I helped represent the victim's family there and blogged about that case here. The Third Circuit explained why a heightened duty of candor must apply when both sides of a legal issue are not being presented:

Candor is especially critical when proceedings are non-adversarial. … Courts must rely on the lawyers because their submissions are one-sided. But that leaves courts vulnerable to being misled, whether by affirmative misrepresentation or by half-truths that deceive[] through their incompleteness. So lawyers must be particularly candid in cases like this one, where both sides agree.

Wharton v. Superintendent Graterford SCI, 95 F.4th 140, 149 (3d Cir. 2024) (rejecting confession of error in death penalty case) (citation omitted). The Third Circuit then affirmed sanctions against the prosecutor for misleading the trial court.

The Third Circuit's heightened-standard-of-candor approach is a good one that the Supreme Court should adopt in non-adversarial cases. Also, as a prophylactic safeguard, in future cases involving prosecutorial confessions of "error," courts should require prosecutors to "marshal the evidence" on the other side so that all evidence is available. Such a general rule would have the benefit of ensuring that courts make fully informed decisions in evaluating allegedly defective criminal convictions.

The State of Texas has filed an amicus brief in Glossip, echoing the need for careful judicial review of prosecutors' confessions of error. Texas explains:

The Texas Court of Criminal Appeals (CCA), Texas's highest criminal court, does not grant habeas relief just because a party asks for it—regardless of whether the request comes from the convicted person, the State, or the two combined. Instead, the CCA conducts an independent review to determine whether relief from a judgment is warranted. Such review safeguards the independence of the judiciary and prevents parties from colluding to nullify court decisions.

Nor is Texas alone in this. Other state courts also refuse to "rubber stamp[]" a prosecutor's confession of error. Commonwealth v. Brown, 196 A.3d 130, 149 (Pa. 2018). After all, "if the 'power' of a court amounts to nothing more than the power to do exactly what the parties tell it to do, simply because they said so and without any actual merits review, it is not judicial power at all." Id. (quotation marks omitted). A contrary rule would also "impinge" on a State's exclusive decision of where to place the State's "power over executive clemency." Copeland v. Commonwealth, 664 S.E.2d 528, 530 (Va. Ct. App. 2008).

One last point: In considering how to resolve the Glossip case, the Supreme Court should consider the effects of further delay on Barry Van Treese's family. The academic literature confirms what the experiences of families like the Van Treeses make painfully clear: long after the immediate loss is over, crime victims and their loved ones continue to suffer from psychological wounds that refuse to heal. It is well known that violent crime inflicts various immediate psychological traumas on victims and those close to them. For example, Post-Traumatic Stress Disorder (PTSD) is commonly documented among violent crime victims. See Otano, Victimizing the Victim Again: Weaponizing Continuances in Criminal Cases, 18 Ave Maria L. Rev. 110, 122 (2020); Parsons & Bergin, The Impact of Criminal Justice Involvement on Victims' Mental Health, 23 J. Trauma. Stress 182, 182 (2010); Kilpatrick & Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, 16 J. Trauma. Stress 119, 119 (2003).

The harm caused by drawn-out criminal justice proceedings is especially acute in capital cases. Death cases often involve decades of false stops and starts. Delay in death penalty cases means that "[c]hildren who were infants when their loved ones were murdered are now, as adults, still dealing with the complexities of the criminal justice system." Levey, Balancing the Scales of Justice, 89 Judicature 289, 290 (2006). "The automatic appeals, and often repeated appeals," in death penalty cases "are continually brutal on victim family members." Id. "Year after year, survivors summon the strength to go to court, schedule time off work, and relive the murder of their loved ones over and over again …. The years of delay exact an enormous physical, emotional, and financial toll." Id. at 290-91.The delays also keep family members from experiencing a sense of "closure"—the hope that they will be able to put the murder behind them. See Cook, Stepping into the Gap: Violent Crime Victims, the Right to Closure, and A Discursive Shift Away from Zero Sum Resolutions, 101 Ky. L. J. 671, 679 (2013). After a close study of the problem of delay in capital cases, former Supreme Court Justice Lewis F. Powell, Jr., wrote: "[O]ur present system of multi-layered state and federal appeal and collateral review has led to piecemeal and repetitious litigation, and years of delay between sentencing and a judicial resolution as to whether the sentence was permissible under the law. The resulting lack of finality undermines public confidence in our criminal justice system." Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal (1989). In Glossip, the Supreme Court should bring finality—by affirming Glossip's justly imposed death sentence.

In suffering the harm from delay, the Van Treese family does not stand alone. Across the Nation, victims' families suffer immeasurable injury from decades-long delays in executing sentences. U.S. Dept. of Justice, Office of Justice Programs, Capital Punishment, 2020–Statistical Tables (2021) (Table 12) (as of 2020, the average elapsed time from sentence to execution is 227 months). Here, due to the frivolous litigation that Glossip and Drummond have concocted, the Van Treese family is suffering immeasurably injury.

In closing this series of blog posts, I can't improve on the words Derek Van Treese (Barry's son) about the harm to victims' families from decades of delay:

How does a victim's family prepare for yet another hearing in a decades-long legal battle?  Unlike the structured legal framework surrounding the case, there's no manual or step-by-step guide to help navigate through this complicated journey.  How do you prepare?  We have endured years of heartache and frustration, striving to continue to forge ahead and find strength in the process.

We had hoped for continued support from our elected state officials, but the reality has been disappointing. Much like during the clemency hearing in April 2023, we find ourselves having to seek out resources that should have been provided by the Oklahoma Attorney General's office.

The outcome of this case will not only affect our family, but also other victims' families navigating this difficult process in the State of Oklahoma. Our hearts go out to those victims and their loved ones, and we can only hope that no one else has to endure the added pain and frustration we've faced throughout this long journey.

We continue to trust the judicial system to perform its duties in the pursuit of justice.  We are hopeful that the United States Supreme Court will find that the appropriate process was followed by the Oklahoma Court of Criminal Appeals—as the Court is revisiting issues that were already fully addressed by the Oklahoma courts. Those court decisions should be respected and upheld by the elected officials of our state—and the Supreme Court.

I hope that Supreme Court considers victims' families' interests as it reviews the Glossip case and others like it.

The post Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part III) appeared first on Reason.com.