Eugene Volokh's Blog, page 297

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

[Venue roulette, a sham affidavit, and uninspected bloomin’ onions.]

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

New on the Short Circuit podcast: Saddle up for a ride into the Tenth Circuit hills with a parking lot full of Broncos fans and a new legal doctrine called Biven's cat.

Army forensic examiner's now-ex-wife files report alleging sexual assault with his employer. Following an investigation, he's told it doesn't look good, so he quits. The next month, he submits an application for a position with the Department of the Treasury that, some might say, obfuscates his reasons for leaving his previous employment. He's hired, but things go from bad (fired) to worse (convicted of wire fraud). D.C. Circuit: Conviction overturned. His lies didn't deprive the Treasury of the benefit of the employment bargain, so he never defrauded the government of money or property within the wire-fraud statute's requirements. Pro se litigants usually get a certain level of pleading leniency. But that doesn't apply to trained lawyers, says the D.C. Circuit, leaving a former Department of Veterans Affairs attorney (with 36 years of legal experience) with a tossed case. Two people stole the president's daughter's journal and sold it to Project Veritas. With search warrants, the feds seized 47 devices from the head of Project Veritas and two of its journalists, with nearly 1,000 documents being responsive to the warrants. Are they entitled to protection under the journalist's privilege? District court: No. Second Circuit (unpublished): Indeed. The devices contained evidence of federal crimes (conspiracy to possess stolen goods), and the documents were responsive to the search warrants. No privilege. There's no earthly way of knowing to which venue we are going! An immigration judge in the Fourth Circuit (Va.) orders that a Mexican citizen detained in the Third Circuit (Pa.) be deported based on a proceeding filed in the Sixth Circuit (Ohio). The deportee files his appeal in the Third Circuit. Appropriate venue? Third Circuit: No, but his confusion is "not unreasonable." Venue lies wherever the immigration judge "completed the proceedings," and these proceedings were completed where they were initiated: Petition transferred to the Sixth Circuit. Officer reports her ex for sexually abusing her daughter; ex then files bogus, now-expunged internal affairs complaint. Philadelphia prosecutors disclose officer's IA complaint to her arrestees and, eventually, bar officer from testifying against arrestees altogether. Officer, and her minor daughter (whose sexual assault was aired in cross-examinations of her mom), file 1983 suit against prosecutors. Third Circuit: Prosecutorial immunity. Yeah, the prosecutors might've erred in disclosing the IA complaint. But they were acting within their official capacity Staffing associations challenge a New Jersey law that imposes, among other things, new record-keeping and wage requirements on staffing firms. They contend the law violates the dormant Commerce Clause, is unconstitutionally vague, and is an unreasonable exercise of the police power. The district court denies the associations' request for a temporary injunction to assist their temporary staffing needs. Third Circuit: And that's because the associations' claims all fail. 40-year-old man accused of robbing a New Jersey bank is offered a plea deal that will result in 15-17 years imprisonment and told that he'll face additional charges for robbing two other banks and three firearms charges if he turns down the offer. His lawyer advises him the firearms charges could land him an additional 21 years. He rolls the dice and goes to trial. Oops! The firearms charges carry a mandatory minimum of 57 years. He says he would have taken the deal had he known. Third Circuit: He'd have been a fool not to! Ineffective assistance of counsel. Though thought to exist only in myth—like Bigfoot and the Loch Ness Monster—the Fourth Circuit claims to have found a real live Bivens claim. Dissent: And like people who claim to have found Bigfoot and the Loch Ness Monster, the majority is making it up. Allegation: Officers deny inmate his medication; altercation ensues, and they throw inmate into a feces-lined rubber room, where they feed him moldy, roach-infested meals and deny him medical care for three months. Man suffers serious health issues as a result and files 1983 suit. He asks for counsel and extra time in discovery given his inmate status, serious mental illnesses, legal inexperience, and low IQ. Fourth Circuit: He is entitled to both, so we reverse the district court's pre-discovery dismissal of the case. Officers in Fairfax County, Va. discover an injured man at a gas station but fail to determine "how, where, when, or why" he was injured. Was he stabbed? They don't know. But if he was, then the suspect could be nearby! Using an infrared-camera-equipped helicopter, officers identify a warm car parked outside a nearby private residence. When they arrive at the car, its occupant ("suspiciously," according to the officers) closes the driver's door. The officers handcuff and frisk him, search the car, and find . . . nothing. Woops! He lives at the residence, and his parents come outside to see what all the fuss is about. District court: No Fourth Amendment violation and the officers get qualified immunity. Fourth Circuit: The officers lacked particularized suspicion to stop and search the occupant. Fourth Amendment violation and no qualified immunity for the officers. Vacated and remanded. You know what probably feels good? Writing a law review article arguing that the FCC's "universal service" tax violates the nondelegation doctrine and then, nearly 20 years later, seeing your article cited on the first page of a Fifth Circuit en banc opinion holding that the FCC's "universal service" tax violates the nondelegation doctrine. That's got to be an above-average Wednesday. It's Juvenal's ago-old question: Who watches the watchmen? Or, as the kids say these days, who watches the watchlist? And do said watchers have statutory authority to do the watching? It's highly relevant to five U.S. citizens who allege that because they're on the list it's difficult or impossible for them to fly. Fifth Circuit: There's oodles of statutory authority for many tentacles of the administrative state to do all kinds of watching and listing. Associates reading this summary on a Friday afternoon while planning to take the partners' files and clients when they're out golfing and then go to work at a new firm on Monday might want to read this cautionary tale of a former associate at a Texas firm who ended up on the wrong end of conversion, breach of fiduciary duty, and tortious interference claims. He's sued in state court, removes to federal, is remanded, and tries to appeal. But can he? Fifth Circuit: Our old precedent says he can't, so no, but *nudge nudge, wink wink* we think that precedent is totally wrong. Concurrence: It's en banc o'clock. The Supreme Court has held that the Eighth Amendment forbids mandatory sentences of life without parole for juveniles—but what if, instead of "life," it's just, oh, "100 years without parole"? Seventh Circuit: We're not saying that's allowed, but it's not sufficiently forbidden to warrant habeas relief. L'esprit d'escalier is the French phrase for thinking of the perfect witty reply only after you've already left a conversation. The "sham-affidavit rule," the Seventh Circuit reminds us, is the American legal phrase for thinking of the perfect helpful facts only after you've already finished your deposition. When a former Illinois immigration lawyer convicted of submitting wildly fraudulent asylum applications contends that his former clients were given undisclosed benefits to induce them to testify, the district court permits broad discovery and holds a seven-day evidentiary hearing—only to decide that everything was totally cool. Seventh Circuit: And that incredibly voluminous record makes it easy for us, too, to say that everything was totally cool. Sentence affirmed! In 2019, the Chicago Sun-Times published a story saying that an Illinois Department of Corrections officer had been posting on Facebook about how "homosexuality is a sin," "Allah is not god," and a "musslamic" member of the U.S. House of Representatives should be arrested. DOC: The officer gets a 10-day suspension. Seventh Circuit: Which did not violate his First Amendment rights. The DOC's interest in efficiency and preventing disruption outweighed the officer's interest in his Facebookery. Onion distributor asks onion seller if it can make sure some onions go via the Port of Long Beach to Honduras. They work out a deal. Except. They forget to say who is responsible for the U.S. Department of Agriculture inspection. With no inspection the ship leaves without any bloomin' onions. The dispute is governed by a very New Deal-era statute, the Perishable Agricultural Commodities Act. The parties both argue they win under the Uniform Commercial Code. Seventh Circuit: Seller wins, but, uh, this is federal law. What's all this about the UCC? Most collective bargaining agreements are governed by Section 9(a) of the National Labor Relations Act, requiring a majority of workers to support union representation. In the construction industry, though, because workers are always coming and going and whatnot, there can be a Section 8(f) CBA, which does not require majority support. The tradeoff is that when an 8(f) expires the employer is under no duty to bargain again. So which did an Iowa seeding company have? The Eighth Circuit says proving a 9(a) requires more than just boilerplate language, but at this stage—like assessing the influence of the French Revolution—it's too soon to tell. "At sentencing, Allahdheen . . . asserted in objecting to the findings of the [Presentence Investigation Report] that he was legally entitled to possess firearms because his Muslim religion permitted him to do so." Unfortunately for your summarist, on appeal, Allahdheen offered the more typical argument that 16.5 years is substantively unreasonable for being a felon in possession of a lot of guns. Eighth Circuit: Tough. In the halls of an Arkansas courthouse, a bizarre argument between a witness and a police officer leads to the witness's arrest for obstruction . . . of tax collection? Eighth Circuit: Being in an argument in front of the county tax office is nowhere near obstructing official business. No immunity for the arresting officer. Officer responding to a reported shoplifting at a Dick's Sporting Goods in Nebraska is told that the suspects are a Black man and Black woman in a silver sedan. He sees a silver sedan driven by a Black man with a passenger and pulls them over. Upon approaching the car, he sees that the passenger is a white woman, but he detains both anyway. Things get heated and he tases the driver in the groin. Shortly thereafter, claiming to have smelled marijuana, he searches the car, finding nothing (though later claiming in his written report to have found "small pieces of marijuana"). After receiving an update that the suspects were actually four women, he releases the driver and passenger. They sue. Eighth Circuit: And at least a few of their claims get past qualified immunity (but not the groin-tasering one). University of Minnesota renovates its student union, resulting in one of the floors having 13 lounges for use by student groups. It grants three to student government groups, one to the commuter-student group, and the remaining nine to various identity-focused student groups, which can keep the lounges forever as long as they satisfy a biennial renewal requirement. Another student group, Viewpoint Neutrality Now!, sues, alleging that the school has impermissibly engaged in viewpoint discrimination. Eighth Circuit: We see nothing wrong here. Concurrence: It sure sounds like the school might have granted a coveted spot to self-styled "activist collective[s]," but the plaintiffs didn't build a good enough record. Falconers challenge California and federal regulations that subject them to unannounced, warrantless inspections as a condition of receiving a falconry license. Ninth Circuit: Their unconstitutional-conditions claim can go forward, but their Fourth Amendment claim fails because they haven't actually been threatened with inspection. Dissent: Neither of their claims should go forward. An immigration judge discounts the testimony of a Chinese national seeking asylum based on a past forced abortion because she waffles when, on cross-examination, the government's attorney points out that Chinese law at the time didn't require the premarital medical exam she says took place. Ninth Circuit: But wait! We find that the government's lawyer was totally wrong about Chinese law, and that legal error entirely irons out her waffles! (Dissent: Maybe we shouldn't make this whole case turn on a question of Chinese law that the parties didn't even raise.) Fun fact from Indian law: In some federal prosecutions, proving that the defendant is a Native American is a jurisdictional element. So the feds may well introduce a "Certificate of Indian Blood," which may well be authenticated not by a live witness but by a "Certificate of Authenticity." And the "Certificate of Indian Blood" (this part isn't settled) might even be something that a tribe creates at the request of prosecutors. Anyway, the point of this 2-1 Tenth Circuit decision is not that this regime is super weird but rather that the government still can't wait to disclose a Certificate of Authenticity until the jury is already going to lunch. Conviction vacated. And in en banc news the Seventh Circuit has denied Cook County's petition to rehear a panel decision about class actions and incentive awards. Judge Easterbrook (joined by Chief Judge Sykes) issued a statement offering some more general views on incentive awards that refers to "wagers of law" and will be quite the read for fans of Easterbrookian prose.

Minnesota requires a license to teach someone how to massage a horse but not how to ride one. IJ client Leda Mox shared her passion for our equine friends with fellow humans for years, instructing others on how to relax the animals' muscles and relieve their pain. But then the state stepped in with its restriction on speech. Is it indeed a "content-based restriction," though? Well, this week the District of Minnesota agreed with IJ and Leda and ruled the case can go forward. The court heavily relied on an earlier IJ victory about teaching horseshoeing. When it comes to the First Amendment, governments shouldn't horse around.

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[Ilya Somin] How to Fix the Dark Side of the Olympics

[The Olympics are a great sports event, but one that also often causes great harm. Here are five reforms that can fix that.]

Today is the first day of the 2024 summer Olympic Games, held in Paris. I'm a big sports fan, and I love watching the games. But it's also true that the Olympics have awful dark sides. Past games have featured horrible forcible displacement of residents to make way for stadium construction, saddled taxpayers with huge cost overruns, and served as propaganda showcases for brutal authoritarian regimes, such as those of Russia, China, and Nazi Germany.

This year's games are less bad than many previous ones. France, for all its faults, is not a mass-murdering authoritarian state, like Russia or China. And the Paris organizers have, to some extent, kept costs down by relying on existing facilities. Nonetheless, some migrants and homeless people have been forcibly displaced for the games (researchers estimate that  some 12,500 people were forced out), and I will be very surprised if French taxpayers avoid being burdened with severe cost overruns, even if they are smaller than those for many previous Olympics.

It doesn't have to be that way. In 2022, in the aftermath of the awful Beijing Winter Games, I outlined a series of reforms that can fix the dark side of the Olympics, while preserving their role as a great athletic competition:

1. No public subsidies. Let the games be funded purely by private organizations and sponsors, as was largely the case for the successful 1984 Olympics in Los Angeles. That way, no one has to pay for the games, except those who profit from them and the audience that voluntarily chooses to watch.

2. No forcible displacement of residents, private businesses, or civil society    organizations. We can and should hold sports events without kicking innocent people out of their homes.

3. No hosting rights for authoritarian human rights violators. There are plenty of possible Olympic venues that aren't controlled by likes of Vladimir Putin and Xi Jinping. Denying these types of rulers hosting rights won't fundamentally alter their regimes. But it will at least damage their image and deny them propaganda victories.

4. There must be full freedom of speech in the Olympic Village and all other Olympic venues. At the very least, athletes, journalists, and spectators should be entirely free to criticize the host government and its policies (or any other government for that matter) [freedom of speech has often been violated when authoritarian states host the Games].

5. There must be no "public health" measures blocking normal human interaction between athletes, members of the media, and residents of the host city. Such measures defeat the whole point of having the Games in a particular city in the first place. If the Games are to be held in a "bubble," that can be done almost anywhere. Moreover, scientific evidence increasingly shows that lockdowns and other similar restrictions on freedom of movement do little to stop the spread of Covid, while causing enormous harm. But if a city really is somehow too disease-ridden to allow normal human interaction, it is also too disease-ridden to host the Games.

Point 5 was inspired by the ridiculously oppressive Covid restrictions at the 2022 Beijing Games. It will only occasionally be relevant. But the others have broader applicability.

I also explained how the US and other liberal democracies could force the International Olympic Committee (IOC) to adopt these reforms:

[N]one of these ideas are likely to be adopted by the notoriously corrupt International Olympic Committee. Time and again, the IOC has proven that it is willing to tolerate almost any injustice, so long as the organization and its leaders benefit.

But the United States and other liberal democracies can easily force through these reforms simply by making them a condition of future participation in the games. Without the participation of the US and its allies, IOC revenue would plummet, as the value of broadcast rights massively declines.

The question is whether the US and other Western governments have the political will to do what needs to be done. On that score, I am far from optimistic….

[T]he US and other democracies can make these demands more credible by threatening to host alternative Winter and Summer games of their own. This would undermine the objection that boycotts unfairly deprive athletes of the opportunity to compete at the highest level. I suggested a similar strategy to force the IOC to move the 2022 games out of Beijing.

I remain pessimistic that this strategy will actually be pursued anytime soon. But when and if we have the will, there is a way.

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[Eugene Volokh] Accused Salman Rushdie Stabber Also Charged with Support for Hezbollah

From a Justice Department press release; Matar is also awaiting trial for attempted murder in New York state court:

A grand jury returned a three-count indictment charging Hadi Matar, 26, of Fairview, New Jersey, with attempting to provide material support to Hizbollah, a designated foreign terrorist organization, engaging in an act of terrorism transcending national boundaries and providing material support to terrorists.

"We allege that in attempting to murder Salman Rushdie in New York in 2022, Hadi Matar committed an act of terrorism in the name of Hizbollah, a designated terrorist organization aligned with the Iranian regime," said Attorney General Merrick B. Garland. "The Justice Department will prosecute those who perpetrate violence in the name of terrorist groups and undermine the basic freedoms enshrined in our Constitution." …

According to the court documents and statements made by the government in court, between September 2020 and August 2022, Matar, attempted to provide material support and resources to Hizbollah, a designated foreign terrorist organization. Matar did this by attempting to carry out a fatwa calling for the execution of Salman Rushdie, which Matar understood was endorsed by Hizbollah.

The indictment further alleges that Matar attempted to kill and did in fact assault Rushdie. Matar was motivated, in part, by a 2006 speech given by Hizbollah Secretary General Hassan Nasrallah, in which Nasrallah endorsed the fatwa calling for Rushdie's death, which was originally issued in 1989….

An indictment is merely an allegation. All defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

The indictment itself is here.

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[Eugene Volokh] "The Facts Alleged … Tell a Remarkable Story of Resilience and Duplicity" Related to Adoption of Afghan Orphan

From Doe v. Mast, decided Wednesday by Judge Norman Moon (W.D. Va.) (for more on the recent Virginia Court of Appeals decision voiding the adoption, see this AP story [Martha Mendoza, Juliet Linderman & Claire Galofaro]):

The facts alleged in Plaintiffs' complaint tell a remarkable story of resilience and duplicity. In the aftermath of a September 2019 joint operation by the United States and Afghan militaries conducted in rural Afghanistan, "Baby Doe" was found in the rubble of her family's home. Her parents and siblings lay dead. She was seriously injured, and was, as a result, taken to a U.S. military hospital for emergency treatment. A short time later, the International Committee of the Red Cross ("ICRC") and the United States and Afghan governments began trying to find, and reunite Baby Doe with, her biological family in Afghanistan.

In February 2020, their efforts paid off. Baby Doe and her family were reunited. Plaintiffs John Doe (Baby Doe's cousin) and his wife Jane Doe are a young, married Afghan couple who became Baby Doe's guardians. They raised Baby Doe as their own daughter for a year and a half. But, at the same time, an American couple's efforts to remove Baby Doe from their care were well underway.

Defendant Joshua Mast—a Marine Corps Major and Judge Advocate—was stationed in Afghanistan in the fall of 2019 where he became familiar with Baby Doe and her case. Joshua knew that the ICRC was searching for Baby Doe's family. Yet in October 2019, Joshua and his wife Defendant Stephanie Mast asked a Virginia family court for temporary custody of Baby Doe, claiming that she was "stateless," and that the Afghan government would soon waive its authority (also called "jurisdiction") over her. At the time, Baby Doe had never been to Virginia. Or the United States. Stephanie had never met her. But based on their representations, the Virginia family court awarded temporary custody to the Masts. Days later, Stephanie secured an interlocutory order of adoption from the Virginia Circuit Court, designating Joshua and Stephanie Mast as Baby Doe's father and mother.

Then, the day before Baby Doe was to be reunited with her biological family in Afghanistan, the Masts came to this Court and sued the government, asking for an emergency order stopping the transfer. Joshua's brother, Defendant Richard Mast, represented them in all these proceedings. When this Court asked Richard why Joshua and Stephanie wished to stop Baby Doe's return to her relatives in Afghanistan, he responded falsely that they did not seek to adopt Baby Doe—only to get her medical care in the United States. This Court denied the motion.

The Masts, however, were undeterred by Baby Doe's reunification with her own family. Indeed, mere days later, Richard secured the Masts a final adoption order from the Virginia Circuit Court for Baby Doe. Moreover, Joshua Mast proceeded with a new plan to contact the Does directly to convince them to bring Baby Doe to the United States. To do so, Joshua utilized his connection with Defendant Kimberly Motley—a lawyer who worked in Afghanistan. Joshua had told Motley that he and his wife wanted to adopt Baby Doe and raise her in the United States. Motley knew about the custody order. She also knew that Afghanistan hadn't waived jurisdiction over Baby Doe, voiding the order. And she knew that the ICRC reunited Baby Doe with her Afghan family. Yet still, Motley agreed to help the Masts take Baby Doe from John and Jane Doe so the Masts could raise her. On behalf of the Masts, Motley directly connected with John and Jane Doe. Over the next year, Motley ingratiated herself to John and Jane Doe, telling them repeatedly that a U.S. family (the Masts) wanted to help Baby Doe get needed, specialized medical care in the United States. She even introduced John and Jane Doe to the Masts directly. Joshua Mast paid Motley several thousand dollars for her assistance.

The Masts also worked with Defendant Ahmad Osmani—an Afghan with family in Afghanistan. Osmani met Joshua Mast in a WhatsApp Bible study group, and he agreed to help the Masts bring Baby Doe to the United States so they could raise her as their daughter. Osmani served as a translator between the Masts and John and Jane Doe. He told the Does the same story as Motley. Yet neither Motley nor Osmani in their outreach to John and Jane Doe told them about the Masts' custody or adoption orders; or efforts to stop Baby Doe's reunification with them. Joshua Mast wired Osmani over a thousand dollars. He used the funds to get the Masts a fake Afghan passport for Baby Doe, with an Americanized name and the Masts' last name.

In August 2021, with the Taliban approaching Kabul, John and Jane Doe felt it could be their last chance to get Baby Doe medical care in the United States. Though Jane Doe was in the third trimester of her pregnancy, they agreed to bring Baby Doe to the United States to get medical care only after Joshua assured them that they would be able to return to Afghanistan afterward. While en route, Joshua and Stephanie Mast pressed them three times to let Baby Doe travel with them to the United States, claiming it would make her entry into the United States easier. The Does refused. Joshua Mast also falsely told the Does that he was acting as their attorney and could help get them through customs. When they finally arrived in the United States, Joshua Mast gave the immigration officer the fake Afghan passport for Baby Doe—which the Does had never seen before. He told them it was merely a means to facilitate her easy travel to the United States.

In September 2021, once John, Jane and Baby Doe were in the United States and housed at Fort Pickett in Virginia, Joshua Mast devised a plan to remove Baby Doe from their care once and for all. Under the guise of a transfer of housing, a woman in a transport vehicle placed Baby Doe in a car seat while the Does were in the vehicle; when it stopped, the woman picked up Baby Doe and held her. A social worker "then informed John and Jane Doe that they were not Baby Doe's lawful guardians and that Joshua Mast had adopted the child." Initially they did not understand. When Joshua Mast entered the room, however, the Does understood that he would be taking Baby Doe. The woman handed Baby Doe to Stephanie Mast over John and Jane Doe's objections. Jane Doe—more than eight months pregnant at the time—fell to the ground crying, and begged Joshua Mast not to take Baby Doe. Joshua and Stephanie Mast abducted Baby Doe, and John and Jane Doe have not seen Baby Doe since that day.

John and Jane Doe have been doggedly pursuing avenues to challenge the Masts' custody and adoption orders over Baby Doe in the Virginia courts. This month, they achieved some success, as the Virginia Court of Appeals held that the Masts' custody and adoption orders were void from the outset. This federal case does not involve adoption or custody. It involves John and Jane Doe's claim that the Masts, Motley and Osmani conspired to abduct Baby Doe, committing fraud and several torts in the process. They seek millions in compensatory and punitive damages.

This matter is before the Court on Defendants' motions to dismiss Plaintiffs' amended complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and for failure to state a claim. For the following reasons, the Court holds that it has subject matter jurisdiction over the bulk of this case—though two of Plaintiffs' claims, their request for declaratory relief, and any claims brought on behalf of Baby Doe will be dismissed without prejudice at this time as falling within the domestic relations exception to federal diversity jurisdiction. Notwithstanding those claims, the Court will not abstain from resolving John and Jane Doe's three remaining tort claims under the Burford or Colorado River abstention doctrines. The Court further concludes that it has personal jurisdiction over Defendants Kimberly Motley and Ahmad Osmani. Finally, Plaintiffs have stated more-than-plausible state-law claims of fraud, conspiracy and intentional infliction of emotional distress against the Defendants….

There's much more in the opinion.

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[Josh Blackman] Today in Supreme Court History: July 26, 1892

7/26/1892: Justice George Shiras Jr. takes oath.

Justice George Shiras

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[Jonathan H. Adler] "Wall Slammer" Kagan Seems to Endorse Ethics Code Enforcement at Supreme Court

[Candid end of term comments from one of the Court's progressive justices.]

Justice Elena Kagan did not write many opinions this term—eleven total including her concurrences and dissents—but she had quite a bit to say in remarks to the Ninth CIrcuit Judicial Conference earlier today, including how she handles her frustration with decisions that don't go her way.

Earlier this year, Justice Sotomayor acknowledged occasionally crying over decisions behind closed doors, Kagan confessed to a different response: "I get where the frustration comes from. I'm more of a wall-slammer."

The most headline-grabbing aspects of Justice Kagan's remarks concern the potential of an enforceable ethics code for the Supreme Court. From Politico's report,

"The thing that can be criticized is: Rules usually have enforcement mechanisms attached to them, and this set of rules does not," Kagan told a meeting of federal judges and lawyers.

Kagan said she welcomed the code the court announced last November but that the absence of any means of enforcing it was a glaring omission.

"It's a hard thing to do to figure out who exactly should be doing this and what kinds of sanctions would be appropriate for violations of the rules, but I feel as though we, however hard it is, that we could and should try to figure out some mechanism for doing this," . . .

"I think it would be quite bad … for us to do it to each other," she told the Ninth Circuit Judicial Conference.

One alternative she suggested was some sort of committee of lower court judges who could consider ethics complaints against sitting justices. She also suggested that creating such an enforcement mechanism could benefit justices falsely accused of unethical conduct.

"It would provide a sort of safe harbor. … Sometimes people accuse us of misconduct where we haven't engaged in misconduct. And, so, I think both in terms of enforcing the rules against people who have violated them, but also in protecting people who haven't violated them, I think a system like that would make sense," she said.

Justice Kagan also expressed concern about the proliferation of concurrences that attempt to spin or reframe majority opinions (something Justice Kagan did very little of this term, authoring only two concurrences).

"Everybody sort of tries to spin it one way or another," Kagan said. "Often people use separate opinions to pre-decide issues that aren't properly before the court and that may come before the court in a year or two and try to give signals as to how lower courts should decide that, which I don't think is right." . . .

"I don't know how lower courts are supposed to deal with it really. Mostly, I think they should deal with it by ignoring it, basically," she said.

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[Jonathan H. Adler] Should Consumers Expect to Find Bones in "Boneless Wings"?

["Boneless wings" aren't wings, so does that mean they don't have to be boneless either? The Ohio Supreme Court weighs in.]

If a restaurant customer finds a bone in an order of "boneless wings" can they sue? What if the bone causes them an injury?

Today, in Berkheimer v. REKM L.L.C., the Ohio Supreme Court affirmed a lower court judgment concluding that a customer could not sue a restaurant for negligence over an injury allegedly sustained by a chicken bone found in an order of "boneless wings."

Here is how Justice Deters opens his opinion for the four-justice majority:

Michael Berkheimer sued a restaurant, its food supplier, and a chicken farm after he suffered serious medical problems resulting from getting a chicken bone lodged in his throat while he was eating a "boneless wing" served by the restaurant. The trial court determined that as a matter of law, the defendants were not negligent in serving or supplying the boneless wing, and the Twelfth District Court of Appeals affirmed that judgment.

Berkheimer contends that the court of appeals focused on the wrong question—whether the bone that injured him was natural to the boneless wing—in incorrectly determining that the restaurant did not breach a duty of care in serving him the boneless wing. Berkheimer maintains that the relevant question is whether he could have reasonably expected to find a bone in a boneless wing. And he argues that the resolution of that question should be left to a jury.

We conclude that the court of appeals got it right. In a negligence case involving an injurious substance in food, it is true—as Berkheimer argues—that whether there was a breach of a duty of care by a supplier of the food depends on whether the consumer could have reasonably expected the presence of the injurious substance in the food and thus could have guarded against it. But that consideration is informed by whether the injurious substance is foreign to or natural to the food. The court of appeals correctly applied this blended analysis in determining that there was no material question of fact about whether Berkheimer could have reasonably expected a bone to be in the boneless wing and thus could have guarded against it. We therefore affirm the judgment of the Twelfth District.

And from the part of the opinion discussing what one should expect from an order of "boneless wings":

Berkheimer protests that the court of appeals did not give due consideration to the fact that the food item was advertised as a "boneless wing" and that there was no warning given that a bone might be in the boneless wing. Regarding the latter argument, a supplier of food is not its insurer. And regarding the food item's being called a "boneless wing," it is common sense that that label was merely a description of the cooking style. A diner reading "boneless wings" on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating "chicken fingers" would know that he had not been served fingers. The food item's label on the menu described a cooking style; it was not a guarantee.

The dissent wonders what would happen in cases involving food that was advertised as lactose-free or gluten-free. Obviously, such cases are not before us. But unlike the presence of the bone in this case, the presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.

Justice Donnelly wrote the three-justice dissent. It begins:

The result in this case is another nail in the coffin of the American jury system. The majority has taken it upon itself to decide the facts of this case and has determined that there is no set of facts under which appellant, Michael Berkheimer, the plaintiff in the underlying negligence action, can establish the defendants' negligence. Today, the majority declares as a matter of law that no reasonable person could consider the facts of this case and reach a conclusion contrary to the one it reaches. This is, of course, patently untrue given that I and two other justices of this court dissent from the  majority's judgment.

And from the portion of the dissent on what "boneless" means with regard to "boneless wings":

The absurdity of this result is accentuated by some of the majority's explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that "it is common sense that [the label 'boneless wing'] was merely a description of the cooking style." Majority opinion at ¶ 23. Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that "[a] diner reading 'boneless wings' on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating 'chicken fingers' would know that he had not been served fingers." Id. at ¶ 23. More utter jabberwocky. Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.

The majority's burst of common sense was short-lived, however, because its opinion also says that no person would conclude that a restaurant's use of the word "boneless" on a menu was the equivalent of the restaurant's "warranting the absence of bones." Id. Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say. "Boneless" means "without a bone." . . .

The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don't. When they read the word "boneless," they think that it means "without bones," as do all sensible people. That is among the reasons why they feed such items to young children. The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it. . . . Instead of applying the reasonable expectation test to a simple word—"boneless"—that needs no explanation, the majority has chosen to squint at that word until the majority's "sense of the colloquial use of language is sufficiently dulled," In re Ohio Edison Co., 2019-Ohio-2401, ¶ 67 (DeWine, J., concurring), concluding instead that "boneless" means "you should expect bones."

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[Jonathan H. Adler] The Supreme Court's "Scholar Justice"

[John McGinnis on Justice Amy Coney Barrett]

A substantial amount of Supreme Court commentary after this past term has focused on Justice Amy Coney Barrett. See examples here, here, and here. Much of the commentary highlights cases in which she wrote separately or broke with other conservative justices. One commentator even referred to her as the "loneliest justice." Relatively little of the commentary has dug very deep into her emerging jurisprudence.

Over at Law & Liberty, Professor John McGinnis offers an insightful analysis of Justice Barrett's early jurisprudence. While he does not agree with everything she has written, he offers a sympathetic take. Her differences with other justices are not a consequence of her moderating or succumbing to the "Greenhouse effect," but rather reflect a sincere effort to get things right.

Liberal hopes and conservative fears about Barrett, however, are misplaced. It is true that she is becoming increasingly confident as she enters her fourth year on the Court. But her decisions are not dictated by ideology but rather by intellect. She is the only former law professor among the originalist-oriented judges and spent much of her time as an academic working on interpretive theory—originalism in constitutional law and textualism in constitutional law. She sees it as part of her judicial duty to make the decisions following these theories as principled and rigorous as possible. In trying to work the law pure, she will naturally depart from some of the rationales and results of her colleagues. Justice Barrett deserves praise for charting her own course.

After surveying and assessing Justice Barrett's approach to originalism, textualism, and the "passive virtues" of judging, he concludes:

This approach should remind us that any legal movement like originalism cannot be sustained only by judges but depends on a larger legal culture. Through both her theorizing and incrementalism, Barrett is helping to summon that culture into being. Commentators are correct that Barrett is forging her own path. But her actions do not signal an ideological shift but rather an effort to make the law more coherent and legitimate. She is embracing the role of the scholar-judge, a position that great justices like Joseph Story and Antonin Scalia also once occupied to the great benefit of legal stability and coherence.

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[Josh Blackman] Jarkesy Should Not Have Been So Easy For Justice Barrett

[There are tensions between Jarkesy, CFPB, and Vidal.]

Justice Barrett has explained that she writes separately when she has the need to articulate some differences with the majority opinion. I previously wrote that Justice Barrett should have written separately in Loper Bright, to explain her views on stare decisis and tradition. Chevron has been on the books for nearly half a century, and has become a settled practice in Congress, in the Executive Branch, and in the lower courts–basically everywhere except the Supreme Court. This would seem to to be the sort of thing Justice Barrett would have concerns about jettisoning, rather than Kisorizing, but she remained mum.

I have similar thoughts about Jarkesy. This case was screaming for a Barrett concurrence. Why? There are tensions between Jarksey and some of Barrett's prior writings and joins about "tradition" or settled practice. 

In Jarkesy, Justice Sotomayor's dissent observes that there is nearly a century of practice in which agencies have adjudicated civil penalties "in house," rather than in federal court. This longstanding practice should be entitled to some weight, no? And Sotomayor cites Justice Barrett's Vidal concurrence, as well as Justice Kagan's CFPB concurrence, which Justice Barrett joined:

This Court's longstanding precedent and established government practice uniformly support the constitutionality of administrative schemes like the SEC's: agency adjudications of statutory claims for civil penalties brought by the Government in its sovereign capacity. In assessing the constitutionality of such adjudications, the political branches' "'[l]ong settled and established practice,'" which this Court has upheld and reaffirmed timeand again, is entitled to "'great weight.'" Chiafalo v. Washington (2020) (quoting The Pocket Veto Case (1929)); accord, Vidal v. Elster (2024) (BARRETT, J., concurring in part); id., at 330 (SOTOMAYOR, J., concurring in judgment); Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (2024) (KAGAN, J., concurring).

Sotomayor repeats this theme later in her Jarkesy dissent:

The practice of assigning the Government's right to civil penalties for statutory violations to non-Article III adjudication had been so settled that it become an undisputable reality of how "our Government has actually worked." Consumer Financial Protection Bureau, 601 U. S., at 445 (KAGAN, J., concurring). That is why the Court has had no cause to address this kind of constitutional challenge since its unanimous decision in Atlas Roofing. The majority takes a wrecking ball to this settled law and stable government practice. To do so, it misreads this Court's precedents, ignores those that do not suit its thesis, and advances distinctions created from whole cloth

Where is Justice Barrett, and perhaps Justice Kavanaugh, on practice and tradition? Sotomayor lobbed a missile right at the majority, which was not returned. Of course Justice Barrett is under no obligation to respond, but when she fails to, it calls into question how seriously she defends the lines she drew in Vidal and CFPB.

Justice Sotomayor takes another shot at Justice Barrett, concerning Brackeen:

Even accepting the majority's public-rights-are-confusing defense, its "strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law," but to provide an incomplete and unprincipled account of the doctrine. Haaland v. Brackeen (2023).

In Brackeen, and other cases, Justice Barrett has demanded that litigants put forward a "theory" of how to rationalize some new position with an entire body of law. And Barrett declines to move forward when there are too many uncertainties. Some praise this caution. I've criticized this approach as being far too fastidious. Indeed, I've questioned whether Barrett would have joined the Lopez majority, given the uncertainty that decision created. But Chief Justice Roberts's Jarksey decision threw caution to the wind. He basically hurled a grenade at in-house adjudication at many administrative agencies, just waiting for defendants to pull the pin. Having a theory of where this decision leads would seem to useful. Is this ruling limited to the SEC, since it only changed practice in 2010? Or would this decision extend to OSHA and the NLRA. But the majority sees no need to offer any. Indeed, it leaves Atlas Roofing hanging off a shingle.

Again, where is Justice Barrett on the "theory"? Does she have a response? She is under no obligation to write separately, but her failure to write separately suggests she is not really committed to the ironclad "theory" principle she asserted in Brackeen and other cases. And if she doesn't really care about those principles, then maybe the lawyers in Brackeen should not have been faulted for failing to anticipate all of the questions Justice Barrett had.

This passage from Justice Sotomayor is directed right at Justice Barrett, and perhaps Justice Kavanaugh:

Against this backdrop, our coequal branches will be surprised to learn that the rule they thought long settled, and which remained unchallenged for half a century, is one that, according to the majority and the concurrence, my dissent just announced today. Unfortunately, that mistaken view means that the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.

But once again, silence from Justice Barrett.

Like with Loper Bright, I think Barrett's Jarkesy join was very difficult. It stands in tension with some of the musings from her recent decisions. And rather than trying to reconcile things, she remained silent.

***

I realize I am one of Justice Barrett's most vocal critics on the right, but I think most people do not understand why I do what I do. My purpose here is not simply to criticize the Justice for the sake of criticism, or to be mean. Rather, my commentary has a clear purpose, which I am quite transparent about: by pointing out mistakes of the past, perhaps they will not recur.

I'll use a simple example. This term, the Court decided Jarkesy, CFPB, and Vidal. It should have been obvious to Justice Barrett that joining Justice Kagan's CFPB concurrence, and causing such a fragmentation in Vidal, would put her in a tough spot with Jarkesy. Justice Barrett could have (1) written a concurrence in Jarksey to reconcile these threads or (2) not joined Justice Kagan's CFPB concurrence or (3) dissented in Jarkesy. Instead, she took actions that were internally inconsistent: she joined the CFPB concurrence, joined the Jarkesy majority, and did not write separately in Jarkesy. She continues to reinforce my impression that she is figuring things out as she goes along. Each case is a new day–even for three significant cases decided about a month apart. 

With Justice Barrett I see a person whose jurisprudence is still a work-in-progress. No one, not even Justice Barrett, knows where it is headed. It is a fascinating thing to watch her think things through out-loud. If this was some sort of reality show, I'd tune in! But the thought that President Trump nominated to the Supreme Court someone with so many uncertainties proves we learned nothing from "No more Souters." The "architects" admitted as such that Barrett didn't have the record on paper.

The other two Trump judges are different. What you see is what you get. With Justice Gorsuch, I don't think I've ever seen a Justice more confident that he is correct. He knows exactly what he is going to do, and that is the only possible course of action. That approach is solid 90% of the time, unless we get an issue like Bostock or McGirt. And Justice Kavanaugh also knows what he wants to accomplish, though he signals some open-mindedness with questions at oral argument and preening concurrences (though we had fewer of these missives this term, thankfully). But with Barrett, her limited tenure on the Seventh Circuit, and her limited productivity in the academy, has left gaping holes in what could be called a jurisprudence. She is learning on the job.

Given this state of things, Justice Barrett will be influenced by one side or the other. People on the right, fearful of criticizing their own, bite their tongue on Justice Barrett. Look at how the conservative house organs tiptoe around Barrett's surprising moves. And right-of-center law professors, who tend as a whole to be quite moderate, praise Justice Barrett's moderation. Those on the left, from Justice Kagan to liberal podcast hosts, see Justice Barrett as an asset–someone who can be shaped and formed to serve their goals. To continue the reality show theme–and we know Justice Jackson is a Survivor "superfan"–the Justices are not here to "make friends." Every entreaty from Justices Sotomayor and Kagan should be viewed with a jaundiced lens as a means to gather another vote. I realize the Justices have to parrot the "we are collegial" line to the press, but they have to know that the goal of SCOTUS, like Survivor, is to outwit, outplay, outlast.

If all Justice Barrett is hearing is praise from liberals, her trajectory will slope leftward. I see myself, however unpopular, as the counter. And I think I speak for something of a silent majority of conservatives. Trust me, they're starting to get nervous, and are experiencing buyer's remorse. It's not just about Murthy. Her votes across the board are being noticed–especially the cert denials where she would be the fourth vote. Did anyone else notice there were zero religious liberty cases on the docket this year?

My hope, however naïve, is that these sorts of posts point out the risks for Justice Barrett of joining Justice Kagan's writings. While it may seem convenient at the moment, it will not be helpful down the road. 

I'm sure Justice Barrett would insist that she is not susceptible to influence from anyone. If so, she would be the first person in the history of Article III to have such impermeability. Human nature is a permanent state of being. People like to be liked, and necessarily seek affection from one group or the other. Everyone is subject to different types of influences. We know what makes Roberts, Thomas, Alito, Gorsuch, and Kavanaugh tick. We're still figuring what makes Justice Barrett tick, as she figures herself out.

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[Josh Blackman] Kamala Harris Failed The California Bar On Her First Try

[In July 1989, UC Hastings Had A 81.4% Pass Rate.]

Vice President Kamala Harris graduated from UC Hastings Law School in 1989, and sat for the July 1989 California Bar. She did not pass on her first try. (Brett Stephens flagged this issue in his column.) According to Politico, Harris spent her 2L summer at the San Francisco District Attorney's Office, which offered her a job as a deputy DA after she passed the bar. Harris was admitted one year later in June 1990.

In July 1989, the pass rate for Hastings was 81.4%. The Hastings Law News had this report.

Harris is in good company with other famous people who failed the bar.

And in a coincidence, then-Senator Biden spoke at Hastings in February 1989 during Harris's 3L year.

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