Eugene Volokh's Blog, page 271

[Eugene Volokh] Seizure of Russian Assets

I've been a bit skeptical about seizure of Russian assets, mostly on pragmatic grounds: Seizing a sovereign's money when one is not yet actually at war with the sovereign strikes me as a perilous matter, not quite as much as seizing the sovereign's territory but still a big deal. I was also unsure that this sort of thing is even allowed under generally accepted international law principles.

I personally don't view such principles as binding, when we're talking about disputes among adversaries. (Among friends or at least generally peaceful trading partners, I think they are extremely important, because there are huge practical benefits from everyone knowing the rules and following them.) But I do think that even when dealing with adversaries, there are practical reasons to at least pay some attention to them.

When this came up in conversation last week with my colleague here at Hoover, Philip Zelikow, he told me that such seizure is indeed consistent with international law, though of course that doesn't resolve the pragmatic question of whether it's wise. There's a report on the subject on which he is one of the authors, "On Proposed Countermeasures Against Russia to Compensate Injured States for Losses Caused by Russia's War of Aggression Against Ukraine" (May 20, 2024), which I thought I'd pass along for those of our readers who are interested; naturally, I'll be glad to post serious arguments on the other side as well. An excerpt:

For the reasons set out below, the authors of this Memorandum – experienced public international lawyers and practitioners from Belgium, France, Germany, Japan, the Netherlands, Nigeria, the United Kingdom, and the United States – having given their most serious consideration to this issue, conclude that it would be lawful, under international law, for States which have frozen Russian State assets to take additional countermeasures against Russia, given its ongoing breach of the most fundamental rules of international law, in the form of transfers of Russian State assets as compensation for the damage resulting directly from Russia's unlawful conduct. Only Russian State assets would be affected. No new measures would be imposed on assets that are genuinely privately owned….

There is no doubt about the illegality of Russia's invasion of Ukraine, occupation of Ukrainian territory or annexation of large parts of it. By these actions, Russia has violated the most fundamental rules of international law, enshrined, inter alia, in the United Nations Charter, Article 2, paragraph 4, which prohibits the use or threat of force against the territorial integrity or political independence of another State. The principle is embodied in UN General Assembly ("UNGA") resolution 2625 (1970), the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, which reflects customary international law and declares unlawful and inadmissible the acquisition of another State's territory by force. These
rules are a cornerstone of the post-World War II international legal order; indeed, they are indispensable to the foundation upon which the entire rules-based order is built….

In the face of [Russia's] blatant violation of a State's international legal obligations, international law permits other States to respond with "countermeasures". Lawful countermeasures are measures that would be unlawful if imposed against an innocent State, that is, one that has not violated its international obligations, but are permitted if they are taken against an offending State and are intended to induce the offending State to cease its unlawful conduct, and comply with its obligation to compensate States that have been injured by that conduct, including to effectuate that compensation with the offending State's assets….

There's much more at the link.

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[Josh Blackman] Today in Supreme Court History: September 6, 1983

9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

The Rehnquist Court (1989)

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[Eugene Volokh] "Secret Lesbian Sex Threesomes" Libel Lawsuit Against Kentucky 2022 Teacher of the Year

Here's the exchange, from defendant's declaration in Hart v. Carver (D. Md.):

And here's the defendant's account of the facts (which is considerably more detail than the account in the plaintiffs' Complaint):

I was a classroom teacher in Kentucky from 2013 through 2022, and was the 2022 Kentucky Teacher of the Year. I am openly gay and left teaching due to the discrimination that I faced in the school system, including ultimately being publicly accused of "grooming" children simply because I advised a student-run LGBTQ+ group, "Open Light."

I now work at the University of Kentucky, where I am finishing a Masters in Fine Arts at the University of Kentucky. I am also an author and have published poetry. My recent book, Gay Poems for Red States, a memoir in narrative poetry, was published by the University Press of Kentucky. Among other awards, it has been named Stonewall Award Winner, a 2024 Rainbow Award Book, and a Book Riot Best Book of 2023….

When I saw [a] message from "Kit Hart, American Girl," I looked at her X profile and saw that she was a chapter chair of the Moms for Liberty group. Based on news reports, I am familiar with that group and its recent controversies.

After I was served a copy of the Complaint in this case in Kentucky, I "locked" my Tweet that is the subject of the claims in this case, so that it is no longer visible to the public. As of today, a total of 134 people in the entire world had viewed the Tweet, according to analytics on the X platform. Only 14 of those people "engaged" with it, which means they were interested enough to see the entire chain and replies.

Attached as Exhibit B is a true and correct copy of selected Tweets by "Kit Hart, American Girl," that I identified that labeled LGBTQ+ individuals and supporters as "groomers" or similar terms.

The Harts sued for libel and invasion of privacy, and Tuesday's decision by Judge Julie Rubin (D. Md.) in Hart v. Carver … held that the court in Maryland had no jurisdiction over defendant. (Remember, the lawyer's true superpower is the power to make every case a case about procedure.) The case has now been transferred to the Eastern District of Kentucky, where presumably some day it might reach a merits determination.

UPDATE: Commenter JoeFromtheBronx notes that the "lesbian threesome" may be a reference to a real controversy involving a Moms for Liberty cofounder (though not Hart herself). From Newsweek (Thomas Kika) in Dec. 2023:

Moms for Liberty co-founder Bridget Ziegler's admission to having a sexual relationship with the woman accusing her husband of rape has sparked backlash online Saturday, with many labeling the Florida political leader a hypocrite.

Bridget Ziegler's husband, Christian Ziegler, is the head of the Florida Republican Party and is currently embroiled in a sexual assault investigation. On Friday, it was reported that an unnamed woman claiming to be a friend of the Zieglers filed a report with the Sarasota Police in early October claiming that Christian Ziegler had come to her apartment and raped her, after a planned threesome between the victim and the couple fell through after Bridget Ziegler became busy at the last minute….

As revealed in recently released court documents, Bridget Ziegler was interviewed by investigators in early November, confirming that she, her husband, and the victim had been friends and had engaged in a consensual sexual encounter roughly a year prior to the assault that the victim now alleges….

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[Eugene Volokh] Prosecutors Allege $10M Royalty Scam Using AI-Generated Songs

The N.Y. Times (Maia Coleman) reports:

A North Carolina man used artificial intelligence to create hundreds of thousands of fake songs by fake bands, then put them on streaming services where they were enjoyed by an audience of fake listeners, prosecutors said.

From the Indictment:

From approximately 2017, up to and including 2024, MICHAEL SMITH, the defendant, orchestrated a scheme to steal millions of dollars of musical royalties by fraudulently inflating music streams on digital streaming platforms (the "Streaming Platforms"), such as Amazon Music, Apple Music, Spotify, and YouTube Music. SMITH purchased from a coconspirator hundreds of thousands of songs that were created through artificial intelligence ("AI") and then uploaded to the Streaming Platforms.

SMITH then used "bots"—automated programs—to stream the AI-generated songs billions of times. At the height of his fraudulent scheme. SMITH used over a thousand bot accounts simultaneously to artificially boost streams of his music across the Streaming Platforms. By manipulating the streaming data in this manner, SMITH fraudulently obtained more than $10 million in royalty payments to which he was not entitled….

As alleged herein, MICHAEL SMITH, the defendant, made false and misleading statements to the Streaming Platforms, Rights Organizations, and certain companies that facilitate the distribution of artists' music to the Streaming Platforms. As described below, those lies were repeated and varying but all were intended to promote and conceal his massive streaming manipulation fraud. As a result of his false and misleading statements, SMITH fraudulently obtained millions of dollars in royalty payments from the Streaming Platforms, Rights Organizations, and music distribution companies. Those funds ultimately should have been paid to the Songwriters and Artists whose works were streamed legitimately by real consumers….

At certain points. SMITH had as many as 10,000 active Bot Accounts on the Streaming Platforms. Signing up such a voluminous number of Bot Accounts on the Streaming Platforms was labor-intensive, and SMITH paid individuals located abroad as well as coconspirators located in the United States to do the data entry work of signing up for the Bot Accounts. For example, in a May 11, 2017 email to a coconspirator ("CC-1"), SMITH asked CC-1 to create Bot Accounts on a particular Streaming Platform: "Make up names and addresses[.] [J]ust make sure they all are the same for family member and also make sure everyone is over 18." …

Early in the scheme, SMITH used the catalog of a music publicist ("CC-2") to fraudulently generate royalty payments. Later, SMIIB attempted to sell his fraudulent streaming scheme as a service, in which other musicians would pay him for streams he would fraudulently generate or share royalties with him in exchange for fraudulent streams of their music. But neither strategy allowed SMITH to gain access to the massive volume of songs the scheme needed in order to evade detection and succeed on a large scale….

[Smith] eventually turned to artificial intelligence to expand his fraudulent scheme, and in tum, his illicit proceeds. In or about 2018, SMITH began working with the Chief Executive Officer of an Al music company ("CC-3") and a music promoter ("CG-4") to create hundreds of thousands of songs using artificial intelligence that SMITH could then fraudulently stream….

CC-3 ultimately provided MICHAEL SMITH, the defendant, with hundreds of
thousands of Al songs for which he could manipulate the streams. CC-J's songs were typically given file names that were a randomized list of letters and numbers, such as "n_7a2b2d74-1621-4385-895d-bl e4af'78d860.mp3." SMITH then created randomly generated song and artist names for audio files so that they would appear to have been created by real artists rather than artificial
intelligence. For example:

a. An alphabetically consecutive selection of25 of the names of the AI songs SMITH used is as follows: "Zygophyceae," "Zygophyllaceae," "Zygophyllum." "Zygopteraceae," "Zygopteris," "Zygopteron," "Zygopterous," "Zygosporic," "Zygotenes," "Zygotes," "Zygotic," "Zygotic Lanie," "Zygotic Washstands," "Zyme Bedewing," "Zymes," "Zymite," "Zymo Phyte," "Zymogenes," "Zymogenic," "Zymologies," "Zymoplastic," "Zymopure," "Zymotechnical,"
"Zymotechny," and "Zyzomys."

b. An alphabetically consecutive selection of 25 of the names of the "artists" of the AI songs SMITH used is as follows: "Calliope Bloom," "Calliope Erratum," "Callous," "Callous Humane," "Callous Post," "Callousness," '·Calm Baseball," "Calm Connected," "Calm Force," "Calm Identity," "Calm Innovation," "Calm Knuckles," "Calm Market," "Calm The Super," "'Calm Weary," "Calms Scorching," "Calorie Event," "Calorie Screams," "Calvin Mann," "Calvinistic Dust," "Calypso Xored," "Camalus Disen," "Camaxtli Minerva," "Cambists Cagelings," and "Camel Edible." …

The Al technology that CC-3 used to generate AI songs for MICHAEL SMITH, the defendant, improved over time, making it less likely that the Streaming Platforms would detect the scheme….

MICHAEL SMITH, the defendant, made numerous misrepresentations to the Streaming Platforms in furtherance of the fraud scheme. For example, SMITH repeatedly lied to the Streaming Platforms when he used false information to create the Bot Accounts and when he agreed to abide by terms and conditions that prohibited streaming manipulation. SMITH also deceived the Streaming Platforms by making it appear as if legitimate users were in control of the Bot Accounts and streaming music when, in fact, the Bot Accounts were hard-coded to stream SMITH's music billions of times. SMITH also caused the Streaming Platforms to falsely report billions of streams of his music, even though SMITH knew that those streams were in fact caused by the Bot Accounts rather than real human listeners….

I could totally imagine those as band names.

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[Eugene Volokh] Prof. Michael McConnell (Stanford): Amicus Wrong to Call for Judge Cannon's Removal

I'm delighted to pass along this item from my Stanford colleague Prof. Michael McConnell (who also served for several years on the Tenth Circuit):

The National Law Journal reports that retired district court judge Nancy Gertner, joined by ethics experts Stephen Gillers and James Sample, have filed an amicus brief in the Eleventh Circuit asking that the court reassign the Trump Classified Documents case to a judge other than Judge Aileen Cannon on remand (assuming that the court does not affirm dismissal of the case).

The only reason the brief gives for reassigning the case is that the writers think "[a] reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon's many efforts to undermine and derail the prosecution of this case." The brief points to decisions by Judge Cannon that the writers think were overly sympathetic to Trump, such as her 2022 ruling (reversed by the Eleventh Circuit) appointing a special master to review the documents, as well as what the writers call a "pattern of delay." Obviously they also think Judge Cannon's dismissal of the case on the ground that the special prosecutor's appointment was constitutionally invalid was incorrect. The brief offers no evidence of biased statements, extrajudicial conduct, political contributions, or anything else that is ordinarily the basis for a charge of judicial bias.

This is an unsound and dangerous suggestion. It is hardly unusual for "reasonable members of the public to conclude" that judges' rulings are wrong, unfair, and biased. They often are right. Especially in politically charged cases, it is easy for one side to think the judge is biased; ask Trump supporters how they feel about Judges Marchan and Chutkan. But ethics complaints must be based on something more than disagreement with the legal merits of the judge's rulings. If not, judicial ethics complaints would become yet another weapon in our culture of lawfare. If appellate courts start to reassign cases whenever they suspect the rulings were the product of political bias, there will be no end of it. The job of appellate courts is to review rulings of law, not to pick and choose trial court judges.

My personal and professional view is that Judge Cannon's rulings have been within the legitimate range of disagreement, even if some of them may have been wrong. That makes this amicus brief especially unpersuasive. But even if I thought Judge Cannon's ruling were off the charts—which some judicial rulings are—it would not be a proper basis for removing a judge from the case.

On rare occasions, an appellate court will reassign a case, but this occurs only when the district judge has failed to comply with remand instructions in good faith (usually after multiple remands) or has openly expressed hostility to parties or lawyers. Judge Cannon has done nothing like this. Yes, she was reversed on the matter of the special master, but she complied with the terms of remand.

Ordinarily I would not write about an errant amicus brief, which are a dime a dozen. But the authors of this brief rightly command attention and respect. Nancy Gertner was an outstanding district judge, and I have joined with her on occasion to take positions regarding sentencing and other issues of criminal procedure. Gillers and Sample are among the nation's leading experts on legal ethics. I am surprised and disappointed that these distinguished individuals would file a brief suggesting that a district judge be removed from a case just because of disagreements with the merits of her rulings.

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[Eugene Volokh] Contraction Contraction

Sounds like the author wanted to write "breach-of-contract action," but inadvertently contracted it. A search finds about ten other opinions that speak of "breach of contraction," usually just for "breach of contract" but in one instance likewise seeming to refer to a breach of contract action.

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[Josh Blackman] Today in Supreme Court History: September 5, 1922

9/5/1922: Justice George Sutherland takes the oath.

Justice George Sutherland

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[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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[Josh Blackman] The Latest ProPublica Story About Ginni Thomas

ProPublica obtained a recording of a call that the First Liberty Institute held with donors. [For full disclosure, I have spoken at several First Liberty events.] As readers of this blog likely know, First Liberty has litigated landmark religious liberty cases before the Supreme Court, including Kennedy v. Bremerton School District, Groff v. DeJoy, and Carson v. Makin.

The biggest reveal is that Kelly Shackelford, the organization's longtime leader, read over the call an email he received from Ginni Thomas. Thomas praised First Liberty's efforts to oppose so-called Court "reform." And here is the quote that has generated the most attention:

"YOU GUYS HAVE FILLED THE SAILS OF MANY JUDGES. CAN I JUST TELL YOU, THANK YOU SO, SO, SO MUCH."

In the Washington Post, Ruth Marcus calls on Justice Thomas to recuse himself from any case involving First Liberty:

There isn't merely an ethics code to which the justices have voluntarily subjected themselves, albeit under duress. There's a federal law that requires justices, like all other judges, to recuse themselves in situations in which their impartiality might reasonably be questioned.

Clarence Thomas, apparently, didn't think matters rose to that level when it came to election-related cases. But how can he justify continuing to sit on cases involving First Liberty now that we know Ginni Thomas's is "SO, SO, SO" beholden to the group?

Nothing about the remark suggests that Justice Thomas is "beholden" to First Liberty. But even assuming there was merit to the claim, Marcus's charge misses the mark, wildly. Let's review some history.

First, during the New Deal, Chief Justice Charles Evans Hughes wrote a letter to Congress to oppose the Court Packing bill. Yes, the presiding officer of the Supreme Court actively lobbied against the President's plan. At least until recently, Hughes's role was celebrated. If Hughes could oppose legislation, it seems far more attenuated to say a Justice's spouse cannot express an opinion in a private correspondence to a group opposing Court "reform" legislation.

Second, federal judges have lobbied Congress for pay increases. More recently, some judges have lobbied Congress for legislation to protect a judge's identity. Judges generally cannot engage in politics, except, it seems, when the politics concerns the judiciary. There are many such examples. This overt lobbying is far more serious than the spouse of a judge thanking an organization for defending the judiciary.

Third, since I am in the spirit of talking about RBG today, in June 2008 Justice Ginsburg spoke at an ACLU event and praised the organization, even as ACLU cases were pending. No recusal.

Fourth, I can tell you from experience that judges routinely express both gratitude and dismay with what people write and say about them. I've been raked over the coals by some federal judges over my writings. I've also been praised by federal judges for my writings. It goes with the territory. There was a time where the American Bar Association and other groups spoke out against efforts to "impeach Earl Warren." Do we really think Earl Warren never said "thank you"?

Here, Ginni was expressing a sentiment that is widely held, but is not commonly expressed. Where all the "Democracy" people on the Court packing plan? Has Mike Luttig said a word about jurisdiction stripping, which Kamala Harris has endorsed? There are far too few people willing to defend the Court. And I'm not surprised that Ginni expresses her gratitude.

Finally, I presume that every word I write or speak, whether in an email, text message, or class, will one day wind up in ProPublica. Privacy, like the Constitution, is dead. And I choose my words accordingly.

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[Josh Blackman] KBJ Veers Into RBG Territory With "Hope" Comment About Harris

[There was some cross-talk on The View, but Jackson seems to have said that Kamala Harris's nomination "‘gives a lot of people hope."]

Last night I wrote that Court watchers could safely skip Justice Jackson's new book tour. My comments were premature. Today, Justice Jackson appeared on The View. If you haven't watched The View (and you would have good reason not to), this program features five female hosts who interview guests. There is often a lot of cross-talk, and it is not always possible to track a clear thread. But there was one colloquy that could be problematic, though I'm not sure that Justice Jackson so intended.

At the 27:45 mark, the segment resumes with a question about Vice President's Harris's nomination.

Sarah Haines: Politics aside, the upcoming election marks another significant milestone for women of color with Vice President Harris at the top of the ticket. One, what do you make of her historic candidacy and as far as potential redos of 2020 go, are you confident our courts will faithfully uphold the votes if contested.

Jackson begins by not actually answering the question asked about the Court, and deftly reframes it to another question that is completely anodyne:

Jackson: I am confident that the Courts will faithfully uphold the law because that is our duty, what we do.

You see what she did? Haines asked about upholding the votes, and Jackson said she would uphold the law. Very crafty. I wonder if that messaging was rehearsed, or done on the fly. I've done a lot of media training, and these sorts of question-reframings are generally practiced.

But then Jackson answered the question about Harris.

Jackson: And I know a little bit about being a first. I think a lot of people were very happy about my appointment in part because they saw it as progress for the country. That there was a time in which black women wouldn't have had this opportunity. And so I am not only so honored but whenever we someone moving into a position where no one has ever been, it gives a lot of people hope.

Was Jackson only talking about herself? Or was she also talking about Harris? If Harris loses, would that be bad for hope?

At that point, Joy Behar, another host jumps in.

Behar: Like Obama is the perfect example.

Jackson: It gives a lot of people hope.

It isn't clear if Jackson was repeating her "hope" line about Obama or about her own "first" or about herself and Harris. I've watched the video a few times, and I can't tell for sure.

Given that this was a fast-moving interview, I would give Justice Jackson the benefit of the doubt. But I think a reasonable person watching this interview could see Justice Jackson as saying that the "first" nominations of Barack Obama and Kamala Harris, like her own nomination, gave a lot of people hope. Hope was a huge theme of Obama's 2008 campaign. Indeed, you might recall the iconic Obama "Hope" poster.

Jackson's comments brings to mind remarks that Justice Ginsburg made in 2016. No, not calling Trump a "faker" and saying she would move to New Zealand if he won. Instead, this was a comment about the other candidate in the race, Hillary Clinton. She told Mark Sherman of the AP:

"It's likely that the next president, whoever she will be, will have a few appointments to make," Ginsburg said, smiling.

Three things jump out. First, pronouns matter. Ginsburg said "she," a clear reference to Clinton. She may have been trying to be coy, but she clearly signaled her preferred candidate. Second, Ginsburg also clearly signaled that she would step down if Clinton was President. Slate aptly observed that Ginsburg "hints she wants Clinton to name her successor." In hindsight, that plan didn't work out. Third, Ginsburg was smiling. Dare I say, she joyful about a Clinton victory? Dare I say, hopeful?

Justice Ginsburg smiled when asked about the prospect of Hillary Clinton becoming President. And Justice Jackson seems to have said the prospect of Kamala Harris becoming President brings a lot of people "hope." And Jackson was beaming widely when she said it.

I'll let others judge how they read this interview. I think the better answer for Justice Ginsburg, and Justice Jackson, would have been "I cannot comment on a political race." This interview was far more problematic than any flag Martha-Ann Alito ever flew. Perhaps Justice Jackson should be grateful there is no enforceable ethics code that could compel her to recuse from all election-related cases.

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