Eugene Volokh's Blog, page 3

[Josh Blackman] The Coming Storm Over the Comptroller General

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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

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

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

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

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[Eugene Volokh] Partial (Penetrable) Pseudonymity for Libel Defendants?

I wrote earlier today about a Title IX lawsuit against a university by a student who had been accused by a classmate of rape; had been exonerated by the university; but continued to be publicly accused, including by the co-presidents of a student group called "Preventing Sexual Assault." The court allowed the Title IX claim to go forward, on the theory that the continued accusations may themselves have constituted sexual harassment of the student, and that the university may not have done enough to prevent the consequent harm to the student's educational opportunities.

The student, who sued as a John Doe, had also sued the co-presidents of the student group for defamation, and had named them in the Complaint. As a general matter, most (though not all) courts let Title IX plaintiffs who claim to have been falsely accused of sexual assault sue as Does. A common theory is that the underlying Title IX proceedings are supposed to be confidential, so lawsuits over Title IX should be as well. Most courts do not allow defamation plaintiffs to sue pseudonymously, including in cases stemming from campus sexual assault accusations (see Doe v. Doe (4th Cir. 2023)), at least when they sue just for defamation. (Query what the right result is when, as here, the plaintiffs sue both under Title IX and for defamation.)

But here the question was about the naming of the defendant student group co-presidents. The plaintiff originally sued them by name, but three months later the parties agreed to have those defendants pseudonymized, and the court approved that (without any detailed explanation). Here's an excerpt from their motion:

Both Defendants take pride in their work on behalf of men and women victimized by conduct ranging from sexual assault to catcalling. They stand accused in this case of defamation committed with malice against the Plaintiff, a very serious allegation indeed. Both Defendants just graduated from the University of Maryland, College Park. Defendant Two is still job hunting in her field. Defendant Three secured a job in her chosen field of public relations. Defendant Three, who has a less common name than many, was shocked to discover that a Google search of her name yields as the fifth entry, pleadings in this case. For Defendant Two, she shares her name with others with many online entries. Defendant Two is concerned that could change as the case progresses.

For both, however, searches on Google, PACER, Judiciary Case Search, etc. are all standard practices for many employers. They are at the beginning of their professional careers. They are greatly concerned about the potential impact on future employers because of these serious allegations which they absolutely reject. Defendant Two, in point of fact, defends these allegations in that she was simply uninvolved—distinct from Defendant Three who defends these allegations as simply wrong or grossly conflated….

Both these Defendants are young women at the very beginning of their adult and professional lives. Misuse of the allegations against them could have a profound negative impact….

Now the absence of opposition from the plaintiff is indeed relevant here, since part of the problem with pseudonymity is that it may cause unfairness to the opponents (see here for more details). Moreover, here the plaintiff is a Doe, so there may be a strong fairness argument in favor of having two-sided pseudonymity rather than one-sided.

At the same time, the public has a presumptive right to know the identities of the parties in a case (see here for more on the reasons for that), so the parties' consent can't be enough by itself to justify the pseudonymity. And of course a wide range of civil defendants (as well as civil plaintiffs) may well want the pseudonymity the court authorized here: Many people accused of various misbehavior (defamation, sexual assault, nonsexual assault, negligence, even just breach of contract) may worry that future employers will see that and won't want to hire them.

All this having been said, I should note that the parties' names were just partially pseudonymized. They don't appear in the docket for the federal case, or in the filings after the judge's grant of the defendants' motion. But earlier filings in the docket do include their names, so journalists, researchers, and others who are interested in investigating the case more closely can do so. The defendants' motion expressly declined to ask for retroactive sealing of those filings (which many courts are reluctant to provide):

The undersigned discussed with Plaintiff's counsel whether to seek a re-filing of all pleadings to date with the Defendants' new pseudonyms (presuming this motion is granted). That would be accompanied by a request to then seal all pleadings with their actual names. This would be a substantial amount of work for Plaintiff and Defendants. For the moment, Your Defendants will be satisfied with removing further use of their names from the public record. They will reserve the question of seeking a re-filing of pleadings to date and hope it is not needed in the future.

This seems to be a form of the "penetrable pseudonymity" that I had mentioned in my Law of Pseudonymous Litigation article:

Often the pseudonymous party's goal is simply to keep cases from coming up on casual Google searches (by prospective employers, prospective romantic partners, friends, neighbors, or classmates). Even if someone—say, a news reporter—uncovers the party's real name, there's a good chance that the name won't be used in the final story.

Indeed, penetrable pseudonymity might be seen as a reasonable compromise: Those who really want to learn the party's name can find it, but it takes a bit of work and possibly expense, just as in the past going to the courthouse to get court records was allowed but involved work and expense.

This having been said, many defendants would want to enjoy even just the penetrable pseudonymity that these defendants got—and in my experience, most defendants (and plaintiffs) wouldn't get that. And this doesn't seem like the strongest case for penetrable pseudonymity:

The employers may have good reason to look to see what their prospective employees had been accused of. Say you're hiring an employee, including in public relations. That employee will be speaking on your behalf, and you'll often be responsible for things they say. If they have been sued for defamation—including for spreading extremely serious allegations that the university had concluded (whether correctly or not) were unfounded—you might reasonably worry that this might happen again, and you'll be the one left holding the bag. (Of course, it's also possible that the prospective employee was not guilty of defamation, either because she was "uninvolved" or because the allegations against her were "simply wrong or grossly conflated.")In this instance one of the defendants appears to have her role as co-president of the Preventing Sexual Assault group on one of her professional pages. (For both of the co-president defendants, that role can also be seen through Google searches that find positive articles about their work with PSA.) That is a perfectly fair credential to include, of course, and employers may well give her credit because of this role. Those employers might also reasonably want to know about serious accusations that had been made against her in that role.More broadly, the defendants were allegedly involved, via the PSA, with the PSA's and Roe's publicizing the names of accused rapists on campus—even though the university had concluded the accusations had been false. Yet their motion in the lawsuit argued that the court shouldn't (despite the normal legal rules related to openness in litigation) publicize their names as accused defamers in the docket.

Again, perhaps the court got this right, by allowing the removal of the defendants' names from the docket and future filings, but leaving them accessible to those who really want to find them. But in any event I wanted to flag the court's remedy here, which struck me as interesting and important.

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[Eugene Volokh] Brazilian Injunction Ordering Google to Remove Allegedly Libelous YouTube Video Can't Be Enforced as to Display of Video in U.S.

From Judge Beth Labson Freeman (N.D. Cal.) Wednesday in Google LLC v. Latam Airlines Group S.A. Inc.:

On June 28, 2018, Raymond Moreira, a United States citizen residing in Florida, uploaded two videos to the YouTube channel "Ingles Marcos." The videos are titled[, in English translation, roughly] … "Latam Airlines sexual abuse of a child under 6 years old." In these videos, Mr. Moreira interviews his six-year-old son, who describes alleged sexual abuse he experienced at the hands of one of LATAM's employees while traveling as an unaccompanied minor from Brazil to Florida on May 3, 2018, to May 4, 2018.

In July 2018, TAM (LATAM's wholly owned Brazilian subsidiary) sued GBIL ("Google Brasil") (Google's wholly owned Brazilian subsidiary) in Brazil…. [T]he Superior Court of Justice in Brazil [entered a] … "Global Removal Order" … applicable worldwide.

Google has restricted access to the videos in Brazil…. [But] Google requests … that LATAM be enjoined from any conduct in the United States or Brazil to enforce the Global Removal Order in the United States….

[A.] The court issued a preliminary injunction, partly because it found Google was "likely to succeed on the merits of its claim under section 230 of the Communications Decency Act because this provision immunizes providers of interactive computer services from liability arising from content created by third parties":

[T]he Global Removal Order would hold Google liable as the "publisher or speaker" of the information provided by Mr. Moreira. In Google LLC v Equustek Solutions, Inc. (N.D. Cal. 2017), the court held that a Canadian order requiring Google to take down websites from its global search results "treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results." The Court finds that the Equustek court's reasoning applies with full force here…. "[R]emoving content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove." ….

[B.] It also rested the preliminary injunction in part on a conclusion that "any enforcement of the Global Removal Order in the United States would violate the [SPEECH] Act":

Under the SPEECH Act, a United States Court "shall not recognize or enforce a foreign judgment for defamation" unless (1) it determines that the law applied by the foreign jurisdiction "provided at least as much protection for freedom of speech" as the First Amendment or (2) that the "party opposing … enforcement of that foreign judgment would have been found liable for defamation" by a United States Court applying the First Amendment. 28 U.S.C. § 4102(a)(1)….

Assuming they relate to matters of public concern, Mr. Moreira's videos cannot support a claim for defamation in the United States unless they were false and made with actual malice. Under Brazilian law, a claim for defamation requires something less. Article 139 of the Brazilian…. Accordingly, Brazil's defamation standard is less protective of speech than is the First Amendment. The Court also finds that Mr. Moreira would likely not be found liable for defamation under United States law…. The Court therefore finds that Google is likely to prevail on the merits of its SPEECH Act claim.

[C.] The preliminary injunction also rested in part on "international comity":

California law provides that foreign judgments should not be recognized where "[t]he judgment or the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state or of the United States."  …

A court in this district has barred enforcement of a foreign injunction that required an internet company to block the access of French users to a website. Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme (N.D. Cal. 2001), rev'd on other grounds (9th Cir. 2006)…. As explained above, the Global Removal Order is likely at odds with section 230 and the SPEECH Act. As a result of these stark differences between foreign and United States law, the Court concludes that Google is likely to prevail on the merits of its international comity claim.

[D.] The district court declined to dismiss Google's intentional interference with contractual relations claim (that was the one claim LATAM sought to dismiss outright):

In California, a claim of intentional interference with contractual relations requires "(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." Where the contract is at-will, a plaintiff must also plead an independently wrongful act…. [T]he Court finds that Google has adequately pled claims under the Communications Decency Act, the SPEECH Act, and international comity. The Court therefore agrees with Google that LATAM's seven-year-long campaign to obtain a global removal order is independently wrongful because, under the facts alleged, the order LATAM has sought violates United States Law…. The Court [also] finds that Google has pled sufficient facts to avoid the [California litigation privilege as to its] allegation that LATAM engaged in a course of conduct in pursuit of an injunction that violates United States law. This issue cannot be settled at this point, however. Additional briefing on a more developed record at summary judgment will be required for the Court to conclusively consider the issue….

[As to disruption of a contractual relationship,] "To state a claim for disruption of a contractual relation, the plaintiff need not show the defendant induced an actual or inevitable breach of the contract. It is sufficient to show the defendant's conduct made the plaintiff's performance, and inferentially enjoyment, under the contract more burdensome or costly." A claim for intentional interference can flow from conduct that renders a contract less valuable…. Google … allege[s] that the Global Removal Order undermines YouTube's "right to host the videos that Mr. Moreira posted" and that Google will suffer harm as a result. Accordingly, the Court finds that Google has sufficiently pled actual disruption and resulting harm….

But it also declined to rest the preliminary injunction on this particular claim:

Google avers that it will be "denied the benefit of its contract with Moreira" absent preliminary relief, which will in turn lead to the chilling of speech, harm to Google's goodwill and reputation, and interference with Google's mission to provide a forum for speech. In support of this argument, Google points to a declaration that states that the Global Removal Order (1) "inhibits YouTube's mission … to give everyone a voice and show them the world," (2) "undermines YouTube's goodwill and reputation as a place for users to speak freely and to freely access information," and (3) has the potential to "allow the least speech-friendly jurisdictions to control global access to content." The Court finds that the harms Google describes are amorphous…. Accordingly, the Court finds that Google has not shown a likelihood of success on the merits with respect to the disruption and harm elements of its intentional interference claim….

[E.] The court concluded that it didn't need to reach Google's claim that enforcing the injunction would violate the First Amendment (a matter the court thought was uncertain because "it is not clear that the First Amendment applies against a foreign private party acting abroad or as to a foreign judicial order").

[F.] The court therefore enjoined Latam and Tam from:

Enforcing or in any way attempting to enforce the orders from the Superior Court of Justice in Brazil dated December 3, 2024; March 21, 2025; and June 23, 2025, or any subsequent orders issued by the Superior Court of Justice in Brazil in this dispute that would affect the availability of the Testimonial Videos in the United States (collectively, the "Global Removal Order"), in any court in or of the United States of America;Enforcing or in any way attempting to enforce or seek penalties for any alleged failure to comply with the Global Removal Order in any court in or of the Federative Republic of Brazil in any manner that would affect the availability of the Testimonial Videos in the United States.

David H. Kramer, Eric Thomas Kohan, Ian Flannigan Sprague, and Steffen N. Johnson (Wilson Sonsini Goodrich & Rosati) represent Google.

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[Ilya Somin] Two Prominent Left-Liberal Thinkers Reconsider Libertarianism

[Legal scholar Cass Sunstein and economic policy commentator Noah Smith haven't become libertarians - but they take a more favorable view of that ideology than before. This evolution might prefigure a potential alliance between libertarians and "abundance" liberals.]

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Two prominent left-liberals who have spent much of their careers critiquing libertarianism recently wrote pieces indicating they now think they have underrated libertarian ideas. Harvard law Prof. Cass Sunstein and economic policy commentator Noah Smith are major figures in their respective fields, and their posts highlight potential points of convergence between libertarians and important elements of the political left.

Here's an excerpt from Sunstein's August substack post:

Once upon a time, I regarded Hayek, Ludwig von Mises, and the Austrians — and also Robert Nozick, Murray Rothbard, and the libertarians — with respect and admiration, but in important ways as adversaries.

They were not (I thought) on my team. I no longer think that. I think that they are on my team, or (much better), that I am on their team. Among other things, they saw something crucial about a foundation of the liberal tradition: freedom from fear…..

I like Hayek a lot less ambivalently than I once did, and von Mises, who once seemed to me a crude and irascible precursor of Hayek, now seems to me to be (mostly) a shining star (and sometimes fun, not least because of his crudeness and irascibility). The reason is simple: They were apostles of freedom. They believed in freedom from fear…

Hayek and the Mont Pelerins (and Posner and Epstein) seemed to be fighting old battles, and in important ways to be wrong. With respect to authoritarianism and tyranny, and the power of the state, of course they were right; but still, those battles seemed old.

But those battles never were old. In important ways, Hayek and the Mont Pelerins (and Posner and Epstein, and Becker and Stigler) were right.

Sunstein doesn't quite spell out here what he means by "freedom from fear." But the freedom from fear the libertarian thinkers he cites espoused is freedom from fear of the powers of overweening government. What has led Sunstein to conclude that this fear is more relevant than he previously thought? He again doesn't explain in any detail. But I think it may be the rise of illiberal right-wing nationalism in the US and Europe, which makes it likely that state power can be used in ways much more dangerous than Sunstein previously thought likely, in Western democracies.

In a 2024 article, Alex Nowrasteh and I explain why right-wing nationalist statism poses many of the same types of dangers as the left-wing socialist variety. Of course, Hayek and von Mises were well aware of this, themselves. They left Austria to escape the rise of fascism there and in Germany (Mises was an opponent of the Nazi regime, and also an Austrian Jew). Hayek's classic essay "Why I am Not a Conservative" highlights the dangers of nationalist statism, dangers he and Mises learned of through painful personal experience.

The rise of right-wing illiberalism may not be the only reason for Sunstein's increased sympathy for libertarianism. In recent years, he has also become more skeptical of the kinds of technocratic government interventions that he previously championed with fewer reservations. For example, his excellent 2020 book Too Much Information: Understanding What You Don't Want to Know is a critique of the dangers of excessive government-mandated warnings and information disclosures (see my review here). His more recent restatement of principles of liberalism contains a lot of points libertarians can readily agree with.

Here's an excerpt from Smith's April essay entitled "I Owe the Libertarians an Apology":

I definitely don't think libertarianism is the best political-economic philosophy possible, or the best one that exists in the world today. I have not become a libertarian, nor do I expect to.

But I feel like I owe libertarians an apology, for severely underrating their ideology. I was so focused on its theoretical flaws that I ignored its political importance. I concentrated only on the marginal benefits that might be achieved by building on our economic system's libertarian foundation, ignoring the inframarginal losses that would happen were that foundation to crumble. I had only a hazy, poor understanding of the historical context in which libertarianism emerged, and of the limitations of libertarianism's most prominent critics.

The most obvious thing that has prompted me to make this apology is Donald Trump's disastrous tariff policy….

The size and breadth of Trump's tariffs came as a shock to me. I never imagined that a U.S. leader would have such a deeply broken view of how trade works, or would willfully inflict such harm on the American people. But I should have known it was possible. I should have studied the historical example of Juan Peron, whose Trump-style policies of protectionism and fiscal profligacy combined to knock Argentina out of the ranks of the rich nations. I should have studied the failure of "import substitution" policies in the 1950s and 1960s. I should have known more about the political context that produced Smoot-Hawley in the U.S.

I should also have realized that as right-leaning ideologies go, American libertarianism was always highly unusual. I had lived in Japan, where the political right is protectionist, industrialist, and sometimes crony-capitalist. I should have realized that this was the norm for right-leaning parties around the world, and that the American right's Reaganite embrace of free markets and free trade was the anomaly. That, in turn, should have given me a warning of what would happen if libertarianism fell in America.

The rise of Trump and similar right-wing statists elsewhere has led Smith to have a greater appreciation of libertarianism's superiority to other non-left ideologies. He may not like libertarianism. But the alternatives are worse.

Smith also now recognizes some merit to libertarian critiques of left-wing economic policy:

I'd be lying if I said that Trump's madness is the only thing that made me feel more sympathy for libertarianism. Over the past decade, I've seen the excesses of progressive economic ideology more clearly than I ever did as a graduate student.

On the crucial issue of housing, I've seen anti-market ideas weaponized to trick people into thinking that allowing new market housing raises rents via "gentrification", when in fact it lowers rents, just as an Econ 101 textbook would predict. I've seen progressives pooh-pooh the idea of supply and demand as "trickle-down", even as cities that build more supply have generally succeeded in reducing rents. I've seen them decry new housing construction because it puts money in the pockets of developers. And I've seen progressives push rent control as an alternative, even though it ultimately reduces supply and creates artificial scarcity…

On macroeconomic policy, I've seen progressives push relentlessly for stimulative policies to push up labor demand, even as inflation brought down Joe Biden's presidency and government infrastructure programs turned into make-work programs that built nothing.

Neither Smith nor Sunstein has become a full-blown libertarian. Far from it. But they both have greater appreciation than before for the need to impose tighter limits on a variety of government powers, including those relevant to economic policy.

I won't go into detail here. But I see similar tendencies among a number of prominent left-liberal intellectuals associated with what many now call "abundance" liberalism. People like Jerusalem Demsas, Matt Yglesias, Kelsey Piper, Catherine Rampell, Derek Thompson, Ezra Klein, and others. Like Sunstein and Smith, these thinkers appreciate the value of Econ 101, prioritize growth over redistribution, understand the threat posed by the statist illiberal right, and recognize that government power - at least in many areas - needs to be more tightly constrained than most modern left-liberals previously acknowledged.

There is also potential agreement between this camp and libertarianism on a range of important specific issues, most notably trade, immigration, civil liberties, nuclear power, and housing deregulation (all or most of these thinkers are big supporters of the cross-ideological YIMBY movement). My work on exclusionary zoning with Josh Braver is a small example of the kind of issue-specific cooperation that might be achieved. We also have obvious common enemies in the form of the nationalist right and the socialist far left.

For their part, libertarians should recognize that, in this era, the biggest threats to liberty in the US and much of the world come not from the "woke" left (though the latter is still problematic), but from the nationalist right. I wrote about this in the Dispatch last year (see also my article on how to update and improve libertarianism). But the second Trump administration has made the case far better than I could have, with its massive trade wars, draconian immigration policies, attacks on free speech, government control of business, and more.

The currently dominant forces on the political right are, to put it mildly, not our friends. We must therefore seek new allies elsewhere. People like Smith, Sunstein, and the  abundance liberals seem like a good place to start.

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[Eugene Volokh] Can Parents Be Liable for Negligently Entrusting Their Adult Children with Internet Service?

An excerpt from the very long Doe 1 v. Lamb, decided Tuesday by the Appellate Court of Connecticut, in an opinion by Judge Nina Elgo, joined by Judges Robert Clark and Dawne Westbrook:

This civil action concerns the criminal conduct of the defendant Christopher Lamb, who, utilizing Internet services and computer devices provided by the defendant [Lamb's mother], hacked into the personal accounts of and harassed and exploited a number of innocent victims….

The record, viewed in the light most favorable to the plaintiffs as the nonmoving parties, reveals the following …. In the winter of 2012, Lamb, then twenty years of age, moved back home to live with the defendant and his stepfather in the town of Brooklyn. Having failed out of college, Lamb was, by his own account, "[r]eally depressed," and he attempted suicide.

Lamb "had way too much time" on his hands and, by some point in 2013, had "figured out" that he could break into people's social media and cloud accounts because it was "exciting …." … Lamb would then harvest any compromising or otherwise explicit photographs, using those images as leverage to convince young women to send him more photographs. He conducted all of these activities through the Internet service provided by the defendant, and using an Internet protocol address (IP address) that, ultimately, was identified by the police as the origination of his criminal activity….

Although Lamb did not sell any of the images that he obtained, he did broadly distribute them directly to the parents, friends, employers, schoolteachers, and other contacts of the victims. Lamb estimated that he hacked between seventy and one hundred individuals and obtained sexual images from approximately twenty or twenty-five of them. All of this criminal activity was done through the Internet connection and devices that were provided to Lamb by the defendant, and which were completely under her control.

In August, 2015, Trooper Matthew Pritchard of the Connecticut State Police visited the residence of the defendant while investigating hacking attempts that had originated from her home Internet connection. At that time, Pritchard informed the defendant that there had been an attempt to hack into a young woman's Facebook account, that it "hadn't been accessed," and that the IP address of the hacker had been traced to the defendant's home Internet service…. Initially "scared" by the visit by the state police, Lamb stopped hacking for "a few months …."

Following the visit by the state police, the defendant started "randomly going through the computers in the house" to look for anything "suspicious." She took Lamb's computer "a few times" to "look through it" to make sure he wasn't "doing anything" improper, but the defendant "really didn't know what [she] was supposed to be looking for …."

At some point after this initial contact by the police, Lamb disclosed to the defendant that he was the person who had drawn their attention and that he had hacked "a few others" as well. At that time, Lamb did not inform the defendant that, in addition to hacking into those personal accounts, he had stolen photographs of nude females from those accounts and posted them online….

In September 2017, police officers searched defendant's home; Lamb was prosecuted and ultimately sentenced to serve, in effect, eight years in prison. Some of his victims sued his mother, on the theory that she acted negligently by providing him with Internet service even after she was on notice that he was committing crimes. No, said the court:

[W]e turn to the central question posed by the present appeal, namely, whether a parent who provides an adult child with unfettered access to electronic devices and Internet service, having some knowledge that such access is being used by the adult child for an illicit purpose and having made some assurances to law enforcement that she had taken certain precautions to prevent her family members from using her devices and Internet service for an improper purpose, owes a duty of care to third parties who are harmed by criminal activity perpetrated through the Internet.

In the present case, it is undisputed that the defendant provided a Mac computer and Internet service to her adult son after he moved back into the family home in 2012. It also is undisputed that, sometime in 2015 or 2016, the defendant learned that her son had utilized those instruments to engage in hacking activities but was not aware that he had stolen photographs of nude females or posted them online until after that conduct ceased. The question before us is whether these facts give rise to a duty under our laws. In answering that question, we begin with the issue of foreseeability, followed by an analysis of the various public policy considerations that inform our resolution of the plaintiffs' claims….

In Connecticut, we "impose only a limited duty to take action to prevent injury to a third person. Our point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." "Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." However, "[as] long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre or unforeseeable." …

[T]he [trial] court wrote that "it is not at all foreseeable that allowing a person to use one's Internet services will lead to that individual hacking into another's social media accounts in order to obtain intimate pictures to post on the Internet. The causal connection between those two activities is simply too attenuated for this court to determine that the defendant had a duty to protect [Jane Doe 2] from potential harm." Given the pertinent legal principles, applied to the factual scenario presented by this case, we agree with the court's determination that Lamb's actions were not reasonably foreseeable by the defendant….

The plaintiffs argue that "[c]onsiderations of public policy weigh strongly in favor of recognizing the defendant's duty in these circumstances" because there is a general interest in reporting and preventing criminal activity. Pointing to statutes that criminalize misuse of computers, as well as prohibitions against "cyberbullying," the plaintiffs urge us to expand our common-law framework, adapting it to the modern computer age. The plaintiffs further argue that the four factors we must deploy in analyzing the facts of this case—(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of courts in other jurisdictions—all weigh in favor of recognizing a duty on the part of the defendant in this case. The defendant counters that imposing a duty of care on her would violate public policy by "exposing individuals responsible for maintaining an Internet connection to liability for the intentional criminal conduct of one who uses an electronic device to access that Internet connection."

First, the normal expectations of the parties, under the facts of this case, weigh against establishing a duty of care. There are strong presumptions against imposing liability on a parent for an adult child's acts…. Few adults would likely expect to be held liable for such activity on the part of their adult child. Relatedly, there is a strong public policy interest in maintaining widespread access to the Internet. Requiring that a person who provides Internet service to other adults be held responsible for the criminal misuse of that service does not, it seems to us, fall within the normal expectations of individuals in Connecticut.

Second, any benefit that might accrue from recognizing a public policy of encouraging parents to monitor their adult children's Internet usage under such circumstances cannot be counterbalanced by the practical difficulties inherent in taking on such a task. For example, where a user of the Internet has more knowledge than the owner of the electronic devices or Internet service, hiding criminal activity is likely to be fairly simple, and detection unlikely.

Third, were we to conclude that there is a duty of care owed to the plaintiffs on the facts of this case, there can be little doubt that recognizing a duty under these circumstances would increase litigation…. As the defendant points out, and as we have already stated, the plaintiffs' argument leads to the possibility that anyone who purchases and controls an Internet connection could theoretically become liable for damages to a third party that are caused by the criminal activity of another person who uses that Internet access….

We acknowledge that the harm perpetrated on the plaintiffs in this case was extreme—but the gravity of the harm is not the only factor that we are required to consider. With respect to whether the defendant was aware of Lamb's "past conduct," the plaintiffs argue that, because Lamb had admitted to the defendant that he had engaged in hacking activities following the police visit in 2015, she therefore "easily was aware" that Lamb would have the "temptation [and] opportunity" to engage in the same behavior. Although it is true that Lamb admitted engaging in such conduct to the defendant, there also is no evidence in the materials submitted in connection with the motions for summary judgment that the defendant was aware that Lamb had stolen photographs of nude females from the hacked accounts or posted them online until after that conduct had ceased.

As Lamb stated in his January 3, 2019 statement to the police: "I didn't … go into detail of what I was doing. I don't think [the defendant] … she didn't quite get what I was doing. I think that she thought, you know, I kind of tried to get into someone's account for whatever reason or whatever, and then [she said] don't do it again…. [She was] clearly mad, disappointed at me … but I don't think—because I didn't really explain it very well." Lamb also told the police that, in retrospect, he "could have said more, gone into detail a little bit more of what [he] was doing so [the defendant] had a better understanding that … this wasn't, like, a small thing …." Under those particular facts, which the plaintiffs have provided no evidentiary basis to dispute, we reject the plaintiffs' contention that the defendant possessed knowledge that Lamb would be tempted or provided an opportunity for further misconduct of the kind that ultimately was discovered….

Stephanie M. Javarauckas and Edward W. Gasser represent the mother.

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[Eugene Volokh] Allegedly False Rape Accusations as Sexual Harassment for Title IX Purposes

["[P]ersistent and unfounded branding of a man as a 'rapist' cannot be easily dismissed as anything other than sex-based harassment."]

From Friday's decision by Judge Paula Xinis (D. Md.) in Doe v. Univ. of Md, College Park (for more detail on the factual allegations, see pp. 4-12, and for more on two claims that were dismissed, see pp. 21-23):

In October 2020, University of Maryland student Jane Roe … alleged that John Doe …, the plaintiff here, and another student had sexually assaulted her in separate incidents on the same morning. Following an investigation, the University concluded that Doe was not responsible for any wrongdoing. Nevertheless, Roe and others embarked on a months-long public campaign to brand Doe a rapist and to exclude him from campus activities. Doe now asserts that the University's failure to address this hostile, sex-based campaign violated Title IX….

[T]he persistent pattern of publicly identifying [Doe] as Roe's "rapist" which led to his removal from Club Lacrosse, constitutes harassment directed at his sex. "Sexual harassment" includes "sex-specific language that is aimed to humiliate, ridicule, or intimidate." Plainly, a reasonable juror could conclude that persistent public pronouncements that Doe is a "rapist," a "sexual predator" and "dangerous to girls on campus," is language aimed at his sex and his sexual conduct.

{In determining whether Doe had been harassed based on his sex, a reasonable juror could also consider the source of the comments. The PSA [a student-run organization called Preventing Sexual Assault] was the on-campus support group for female victims of sexual violence perpetrated by male community members. For instance, during the on-campus "Slut Walk," PSA members carried signs stating "Tell men not to rape" and "Pussy grabs back." From this, a reasonable juror could infer that the PSA Presidents' public campaign to brand Doe a "rapist" drew on the same sex-specific framing embodied in PSA's slogans and was consistent with the organization's broader sex-based mission.}

Indeed, such language is no less based on sex than the insults that supported the sexual-harassment claim in Feminist Majority Found. v. Hurley (4th Cir. 2018). There, female members of a women's rights organization opposed the authorization of male-only fraternities. In response, the university's all-male rugby team and their supporters "expressed—in offensive terms—strong criticism" of the plaintiffs. This included a drive-by shout of "Fuck the feminists!," chants glorifying the rape of women; and a barrage of on-campus Yik Yak posts referring to female students as "femicunts, feminazis, cunts, bitches, hoes, and dikes." Even though the misconduct in Hurley consisted entirely of speech celebrating sexual violence against women and name-calling aimed at female promiscuity, neither the district court nor the Fourth Circuit hesitated to conclude that this verbal vitriol constituted "conduct on the basis of sex." See Hurley ("Indeed, the Complaint portrays repeated instances of UMW students targeting and harassing Feminists United members with threats and other sex-based hostility. Those harassing activities were reported to the University on multiple occasions over many months.").

The Court reaches the same conclusion. To hold otherwise would defy logic and common sense in light of Hurley. Harassment based on sex is no more or less actionable when men call women "bitches" and "hoes" than when women brand men "rapists" and "sexual predators." Accordingly, whether the conduct amounts to sex-based harassment remains a question for the jury to decide, and on this record a reasonable juror could so conclude. Indeed, even the University classifies "Non-Consensual Sexual Penetration," i.e., rape, as sex-based "Prohibited Conduct." Because rape is inherently sex-based, persistent and unfounded branding of a man as a "rapist" cannot be easily dismissed as anything other than sex-based harassment.

Next, as to the "aim" of the sex-specific language, a reasonable juror could conclude that the harassment was designed to humiliate and ridicule Doe as an alleged "rapist" who had been wrongly exonerated. Roe and the PSA Defendants repeatedly contacted Club Lacrosse presidents and [University Director of Club Sports] Klier to press for Doe's removal from the team, his preferred University community.

And it appears they succeeded. Social events with Doe were canceled; he was placed on "social probation;" and told to "step away from the club for everyone's benefit," all in light of Roe's insistence that he was "guilty" of raping her…. PSA's purpose was to find "a way to really just make [Doe] feel unwelcome enough that he doesn't want to come around anyway" …. Ultimately, the Club expressed concern about the "optics" of keeping an accused rapist on its roster and, according to Doe, cut him from the team. On this record, a reasonable juror could find that the campaign to brand Doe a "rapist" was intended to ridicule and demean him, culminating in his exclusion from Club Lacrosse. Accordingly, sufficient evidence exists to support Doe's claim of sex-based harassment.

In response, the University contends that Balazs v. Liebenthal (4th Cir. 1994), compels a different result. The Court disagrees. Balazs principally addressed whether an employee had exhausted administrative remedies to pursue a Title VII sex-discrimination claim. Nonetheless, the Balazs Court did opine, with limited analysis, that an employee's alleged termination based on a false accusation of sexual misconduct was insufficient to state a sex harassment claim. See Balazs ("An allegation that he was falsely accused of conduct which, if true, might have given rise to a claim of employment discrimination based on sex by someone else in no way states a cause of action that plaintiff himself was a victim of discrimination based on his sex.").

This case is materially different. Doe has produced evidence of far more than a single false accusation. A reasonable juror could find that, like the plaintiffs in Hurley, Doe was publicly ridiculed, shamed, and targeted for months as a "rapist," a "sexual predator," and a "danger to girls" on campus. In this way, Doe's case cleaves more closely to Hurley than Balazs….

On this record, a reasonable jury could conclude that Doe's exclusion and the campaign branding him a "rapist" were driven by sex-based hostility.

The Court next turns to the second element of Doe's claim, whether the harassment was severe and pervasive enough to deprive him of an educational benefit. The University argues that the claim fails because Doe's removal from Club Lacrosse did not amount to an educational deprivation. The Court again parts company with the University. Harassment "effectively bars the victim's access to an educational opportunity or benefit," when it prevents participation in educational programs or activities. That principle extends to harassment that undermines a student's participation in university sports. Organized extracurricular athletics such as Club Lacrosse are squarely among the activities in which exclusion can give rise to liability under Title IX.

To escape Jennings, the University attacks the weight rather than sufficiency of the evidence on Doe's exclusion from Club Lacrosse. It characterizes Doe's evidence as "gossamer thin," and asserts that his testimony is "contradicted by the record." But this is precisely what juries are for: to decide which version of events to believe. On this record, Doe has produced sufficient evidence of the "concrete and negative effect" his ouster had on him … describing emotional injury arising from "having been excluded from the club lacrosse team and by being publicly and repeatedly accused of rape, among other things," and referencing counseling expenses ….

Doe contends that the University had been deliberately indifferent to each of his three complaints of student-based harassment. The Court considers the complaints in turn.

On the first complaint, no reasonable juror could conclude that the University's response was clearly unreasonable. When Doe, through counsel, initially contacted OCRSM, the Office responded within minutes. It also provided a letter of exoneration for Doe to share with Club Lacrosse and any other detractors. The Office also advised Klier that Doe could not be excluded based on allegations for which he had been found not responsible. Given the University's robust response to the first complaint, no reasonable juror could conclude the response amounted to deliberate indifference.

As to the third complaint concerning Roe's outburst at an off-campus bar, OCRSM refused to pursue the matter on the ground that the conduct occurred outside its jurisdiction. Sure, while an argument could be made that the off-campus incident was simply a continuation of her on-campus attacks, no trier of fact could deem the University's jurisdictional determination clearly unreasonable.

The University's non-response to the second complaint tells a different story. Doe submitted the complaint on February 10, 2022, shortly after Club Lacrosse leadership removed him from the team. Unlike the first complaint, OCRSM appears to have done nothing. The record is bereft of any evidence that the University spoke with Doe about the complaint or investigated the circumstances of his ouster. Instead, Doe received a Notice of Mandatory Dismissal that summarily stated the matter was dismissed because, "even if substantiated," his allegations "would not constitute conduct taken by Respondents on the basis of Complainant's sex or because [of] Complainant's prior participation in the University's sexual misconduct adjudication process, rather than because Respondents perceived Complainant as a perpetrator of a sexual offense against Respondent [Roe]."

When reviewing the record most favorably to Doe, a jury could find the University's stated ground for disclaiming "jurisdiction" over this complaint to be clearly unreasonable. For the first complaint, OCRSM took immediate action in assuring Doe that Club Lacrosse could not remove him from the team because he had already been cleared of all rape charges. OCRSM also looked into the claim prior to its dismissal. Yet for the second complaint—when Club Lacrosse in fact excluded Doe on account of the harassment—OCRSM did nothing because now the claim was somehow not "sex-based." This study in contrasts can lead a reasonable juror to conclude the University's failure to act was clearly unreasonable such that liability may be imputed to it….

{The University also suggests that even if the Club Presidents removed Doe from the team, that decision could not be imputed to the University because OCRSM had earlier directed the Club not to remove him. But all this really reflects is the Club Presidents' defiance of the directive. This cannot absolve the University of its obligation to take further remedial action. To the contrary, a reasonable juror could conclude that the University's decision to do nothing after students ignored the Office's directive was itself clearly unreasonable, or, put differently, that the University "did not engage in efforts that were 'reasonably calculated to end [the] harassment.'" To the extent the University claims it lacked "control" over the student-run organization, nothing in the record supports that contention.}

A few observations:

[1.] The court's analysis on these facts seems to turn entirely on the university's failure to stop Doe's removal from the lacrosse team; but the logic of Hurley suggests that liability could have also been imposed based on the university's failure to stop the allegedly false public accusations against Doe. Here's the relevant excerpt from Hurley:

The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak's location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University's wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students. See Davis ("Where … the misconduct occurs during school hours and on school grounds[,] … the [educational institution] retains substantial control over the context in which the harassment occurs."); Kowalski v. Berkeley Cty. Sch. (4th Cir. 2011) (observing "that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them [may] in fact [constitute] in-school speech").

Furthermore, to the extent the sexual harassment was communicated through UMW's wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW's network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW's network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Beyond the University's technical capacity to control the means by which the harassing and threatening messages were transmitted, the Complaint demonstrates that UMW could have exercised control in other ways that might have corrected the hostile environment. For instance, UMW administrators could have more clearly communicated to the student body that the University would not tolerate sexually harassing behavior either in person or online. The University also could have conducted mandatory assemblies to explain and discourage cyber bullying and sex discrimination, and it could have provided anti-sexual harassment training to the entire student body and faculty. In these circumstances, we are satisfied that the Complaint sufficiently alleges UMW's substantial control over the context in which the alleged harassment occurred….

Under the Complaint, UMW had the ability to punish those students who posted sexually harassing and threatening messages online. Indeed, the Complaint recounts that UMW had previously disciplined students—members of the men's rugby team—for derogatory off-campus speech. If UMW could punish students for offensive off-campus speech that was not aimed at any particular students, the University also could have disciplined students for harassing and threatening on-campus speech targeted at Feminists United members….

At bottom, in assessing whether UMW—under the Complaint—had sufficient control over the harassers and the context of the harassment, we cannot conclude that UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace. See Kowalski (rejecting student's First Amendment challenge to high school's disciplinary action taken against student who, off campus, created website to bully classmate). Rather, we are satisfied that the Complaint sufficiently alleges that UMW could exert substantial control over the context in which the harassment occurred and could exercise disciplinary authority over those UMW students who sexually harassed and threatened the Feminists United members.

If a university's failing to take disciplinary measures to stop sex-based insults (as in Hurley) and alleged threats is a Title IX violation—even when the statements are made online or off campus—then it would follow from the logic of Hurley plus this case that the university's failing to take disciplinary measures to stop rape accusations (at least once the university concluded they were unfounded) would be as well.

[2.] When Feminist Majority Foundation was decided, I endorsed this criticism of it by Samantha Harris (then at FIRE):

The alarming upshot of the ruling is its suggestion that Title IX may sometimes require colleges to censor or block all students' access to certain internet sites or services based solely on anonymous statements made in an online forum that the university does not control, by people who may not be on campus, or even affiliated with the university at all….

Unfortunately, the opinion does not address one of the most significant issues in the case, which is whether the speech in question even rose to the level of unprotected harassment or true threats in the first place. FIRE strongly believes it did not, and we submitted an amici curiae brief—joined by the Cato Institute, the National Coalition Against Censorship, and law professor (and former ACLU president) Nadine Strossen—on that point, arguing that "[t]his case turns exclusively on the university's response to offensive but constitutionally protected speech." Ultimately, it is almost impossible to conceive of this case being resolved without addressing this enormous elephant in the room; if the speech was constitutionally protected, and was not harassment, then the question of substantial control is irrelevant….

Make no mistake, the majority's novel and unsupported decision will have a profound effect, particularly on institutions of higher education …. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid … Title IX liability ….

I continue to think this criticism is correct, and I'm likewise skeptical of Title IX rules that would require universities to punish students based on their public speech about alleged rapes. This having been said, here at least Doe's allegation was that the speech was constitutionally unprotected, since he claimed that the statements about him were false and defamatory. In principle, the First Amendment would allow public universities to discipline students for speech that they find in their processes to be false, defamatory, and said with recklessness—or perhaps even negligence—as to its falsehood (just as the First Amendment allows imposing civil liability under such circumstances). Likewise, the First Amendment wouldn't preclude the federal government from pressuring universities, public or private, into imposing such liability. And in any event, right or wrong, Feminist Majority Foundation is the binding precedent in the Fourth Circuit, and its logic would, as I noted above, extend at least as much to such false allegations as it did to the speech involved in Feminist Majority Foundation itself.

[3.] Doe had also sued the two co-Presidents of the PSA student group for defamation; that claim settled, and the terms of the settlement have not been disclosed.

Benjamin North and Jason Greaves represent plaintiff.

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[David Bernstein] Does Denying Hamas Committed Sexual Violence on 10/7 Constitute "Criticism of Israel's Treatment of Palestinians?"

[Federal judge Timothy Savage seems to think so. ]

I just read Judge Timothy Savage's opinion dismissing Professor Amy Wax's discrimination counts in her lawsuit against the University of Pennsylvania. One of Professor Wax's arguments was that Penn applied different disciplinary standards to her speech, which the university deemed racist, than to antisemitic speech by other Penn faculty and employees.

Judge Savage rejects this aspect of her claim for a variety of reasons, one of which I found pretty shocking, to wit: Judge Savage argues that the professors and other Penn employees Wax compares herself to "were not antisemitic; they were critical of Israel's treatment of Palestinians."

Put aside the issue of whether these statements were in fact antisemitic in a way comparable to the racism charges leveled against Wax. Most of them had nothing to do with criticism of "Israel's treatment of the Palestinians."

Professor Wax's complaint alleged:

(1) Professor Ann Norton faced no discipline after denying that Hamas committed sexual violence against Israelis on October 7, and also after tweeting that "Young Jews" are persuaded that "they are always already victims."

(2) Professor Huda Fakhreddin endorsed the view that Israelis [civilians] are "legitimate military targets", and brought antisemitic speakers to campus, and not only faced no discipline, but was assigned to teach a class "Resistance from PreIslamic Arabia to Palestine."

(3) Professor Ahmad Almallah, a Palestinian poet and artist in residence and lecturer at Penn, led a rally in Philadelphia where he chanted "There is only one solution: intifada revolution," and faced no discipline.

(4) Penn declined to sanction employee Dwayne Booth, an employee of Penn for posting cartoons depicting Jews as Nazis drinking the blood of Palestinians.

(5) A Penn librarian received no discipline for posting "I love Hamas."

(6) Penn Health employee Ibrahim Kobeissi faced no discipline after denying sexual assault by Hamas on October 7, suggesting Netanyahu orchestrated October 7, and referring to members of Congress as "retards" for supporting Israel.

Federal judges are not in an especially good position to be referees as to whether such sentiments reflect antisemitism or not, though, like the comments that led to Wax's discipline, they certainly are offensive to a large body of Penn constituents. On the other hand, they did not directly concern internal Penn matters or Penn students, as Wax's comments did.

But my point is not whether the parallels alleged by Wax are valid in a legal sense in a discrimination claim.

Rather, I want to emphasize the oddity of Judge Savage's blanket description of these comments as merely "critical of Israel's treatment of the Palestinians." That's just wrong.

I suppose of few of the items above could, interpreted generously, be seen in that light, even if, e.g.,  depicting Israelis as drinking Palestinian blood isn't exactly either contributing to rational debate nor showing concern for reusing traditional antisemitic imagery.

But saying that young Jews are brainwashed into thinking they are victims, denying  undeniable (!) sexual violence by Hamas on October 7, expressing support for Hamas, expressing approval of targeting Israeli civilians… none of those constitute criticism of Israel's actions vis a vis Palestinians.

I find this particularly interesting, because it reflects something I see on social media all the time.

Person A: Malevolent Jews, playing their traditional role of undermining all humane values, are supporting the modern child-sacrificing Moloch, the State of Israel.

Person B: That's well-beyond the realm of reasonable debate and into blatant antisemitism.

Person C: Stop trying to censor Person A for criticizing Israeli treatment of Palestinians.

In other words, it's not that much criticism of Israel is not antisemitic, it's that any claim that a statement that is in any way related to Israel is antisemitic is immediately dismissed, i.e., that no statement that is at least indirectly targeted at Israel can be antisemitic.

So it's not that Judge Savage's bizarre dismissal of Wax's allegations as only being about Israel's treatment of Palestinians, despite in some cases neither Israel nor Palestinians being mentioned, is unusual, it's that I expect more from a federal judge than from Twitter trolls.

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[Josh Blackman] The Law No Longer Listens To Justice Kennedy

[Justice Kennedy's new book reminds me how grateful I am the law no longer listens to him.]

Justice Kennedy has been off the Court for about seven years. His new memoir will be released on October 14. Last year it was reported that the memoir would be a two-volume set, but now it seems to have been whittled down to a single 352-page tome. I imagine the publisher took this step to recoup whatever advance they paid some years ago.

I have very mixed feelings about this book. One the one hand, I am truly curious how Justice Kennedy--long the center of the Court--decided cases. On the other hand, I truly don't care. Nothing he says will have any bearing on the direction of constitutional law, and for that I am grateful. Justice Barrett wrote a pithy book called Listening to the Law, which explains how she tries to figure out the objective meaning of the Constitution. Justice Kennedy's book may as well be called The Law Listened To Me, as his personal proclivities determined what code governed us all.

Nina Totenberg interviewed Kennedy. She wrote that the book was "very interesting," unlike many other books by Justices that are "sigh, pretty boring." (I think Totenberg would place Justice Barrett's new book in that category.) What makes the book interesting is that it is not really about "law" in the formal sense. Those niceties were never very important for Justice Kennedy. From what I can tell, the book describes a philosopher king who tried to grapple with very difficult conceptual issues, and came to settlements that he thought were best. That sounds like a fascinating book, if it wasn't so horrifying that one person wielded this power for decades, and apparently still lacks the self-awareness to see why that arrangement is problematic.

So far, the press has focused mostly on Justice Kennedy's treatment of the same-sex marriage case, Obergefell v. Hodges. But I don't think you can separate Obergefell from the two decades of cases that came before: Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. By the time 2015 rolled around, Justice Kennedy had laid all the foundation that was necessary to recognize a right of same-sex marriage in the Constitution.

All along, Justice Scalia warned that this outcome was near-inevitable. In Lawrence, Justice O'Connor insisted the case was not about same-sex marriage. Justice Kennedy offered a similar, weaker warning in Windsor, but no one actually believed him. Almost immediately after Windsor, lower courts began to invalidate marriage laws.

This history is well-known. But to hear the events from the mind of Justice Kennedy, he was simply a free-thinking spirit who saw what the Framers of the Fourteenth Amendment could not: that because children of gay parents were being demeaned, the Constitution must protect a right of same-sex marriage.

Or as he puts in in the book, "In my view the framers of the constitution were not so self assured as to think they knew what the spacious term 'liberty' should mean in all its reach. If they had been certain, they would have written a more detailed explanation" but the Framers were "cautious enough and modest enough" that they "intentionally chose capacious terms that would inspire and protect freedom."

. . .

Kennedy says that perhaps the most persuasive argument for gay marriage came with his realization that many states barred gay couples from adoptions, so that only one could be the legal parent, and the other had no legal right to make decisions for the child, sign school papers for the child, in some cases could not visit the child in the hospital, and the children could not say they had two parents, which was "terribly demeaning for the children of gay parents."

That was the situation faced by "hundreds of thousands of children of gay parents," he observed in our interview. "That was eye-opening for me, and it was very important in influencing me for the result."

Look how he describes the process: he saw something that made him sad, and that influenced the "result." The reasoning was simply not important. The outcome mattered. Why couldn't he have waited a case that challenged the bar on gay parents from adopting? Texas, for example, allowed gay parents to adopt. (During oral argument in Lawrence v. Texas, the Harris County District Attorney infamously did not know this fact.) That sort of ruling would have been a more narrowly tailored way to remedy this problem, but Justice Kennedy did not want to wait longer. There had been enough discussion, and it was time to decide.

USA Today offers further excerpts of the book. Kennedy explains why he wrote Obergefell the way he did: so it would pass the "refrigerator test."

One of his top goals in Obergefell v. Hodges, the gay-marriage decision, was "not to dilute the meaning and significance of marriage by adopting the tone of: 'Oh, we might as well allow same-sex marriage, since it does not hurt conventional marriages,'" he wrote.

Instead, Kennedy wanted to elevate both heterosexual and same-sex marriages to reaffirm "the respect and love which all of us seek."

He also wanted the opinion to be short and clear enough that Americans could easily understand the reasoning.

Kennedy felt that he achieved that after someone told him the opinion had passed the "refrigerator test" because people were taping key passages to their refrigerator doors.

And the letter writers − both gay and straight − who've told Kennedy they've read from the decision at their weddings reassured him "that our opinion gave dignity to their decision to spend their lives together."

Kennedy celebrates that his opinion was used in this fashion. What a bizarre conception of the judicial role With good reason, Justice Scalia's dissent compared Obergefell to the "mystical aphorisms of a fortune cookie." After Scalia's death, people left fortune cookies, paper bags, and apple sauce outside the Supreme Court.

Perhaps the biggest insight Kennedy offered is how the Scalia dissent caused a significant rupture on the Court. Totenberg writes:

It was the gay marriage cases, however, that for almost a year led to a rupture with his colleague, Justice Antonin Scalia. The break came over Scalia's dissenting opinion in the same-sex marriage case in which he wrote that if ever he were to join an opinion like Kennedy's "I would hide my head in a bag." According to Kennedy, the other conservatives thought the dissent "offensive" and "intemperate" and tried to get Scalia to modify it. But they failed, prompting Chief Justice John Roberts to write the lead dissent.

This last bit is fascinating. In Obergefell, Roberts's dissent was joined by Scalia and Thomas. Scalia's dissent was only joined by Thomas. Thomas's dissent was joined only by Scalia. Alito's dissent was joined by Scalia and Thomas. No dissent had more than three votes. Had Roberts and Alito joined the Scalia dissent, then Scalia would have had four votes, and would have been considered the "principal" dissent. But Roberts and Alito did not. Is Kennedy suggesting that Roberts and Alito dropped off Scalia's dissent due to Nino's sharp prose? This is a fascinating look at the behind-the-scene machinations.

Kennedy continues to explain that Scalia became alienated from the Court. And remember, this was only three years after the rupture caused by NFIB v. Sebelius, where Scalia was furious at Roberts.

Kennedy says that while he was able to "shrug off" the Scalia dissent, his children and their spouses "were devastated" by its tone." And by the beginning of the next term Scalia, known to all as Nino, "rarely came to lunch" with his colleagues and no longer stopped by Kennedy's chambers to chat.

Months went by and then one day in February of 2016 Scalia "came down the long corridor of the court to my chambers to talk." Once there, "he turned to the subject on both our minds: our own relationship. Nino said he had come to regret deeply his Obergefell dissent" and he apologized for being intemperate. "The visit became a pleasure, even a landmark for us," writes Kennedy. "Neither of us was big on hugging but we hugged, both of us smiling."

It is fascinating that Kennedy would relay that Scalia regretted the tone of his dissent. In the past, I have used sharp language and later regretted it. Supreme Court Justices are no different.

The excerpt from USA Today explains exactly what bothered Kenned the most:

What had bothered Kennedy the most was Scalia's assertion that the Supreme Court justices – whom he said were deciding the gay marriage issue in place of the voters − were not representative of the nation in their backgrounds and didn't even include a genuine Westerner because "California does not count."

Kennedy took great pride in his California roots and wrote that his worldview was defined by the West.

"He apologized for being intemperate," Kennedy wrote. "We both smiled, and the matter was resolved."

California does not count. I don't think you can compare Colorado or Utah or Wyoming to Sacramento. Likewise, there is a very good argument that Texas is not part of the "south." (I got into a serious argument with a Georgian on this point.)

Finally, I always wondered why Justice Kennedy never bothered responding to Justice Scalia's dissents. Kennedy explains why:

Scalia's attack [in Obergefell] "weakened his opinion, enabling me to shrug it off," Kennedy wrote in "Life, Law and Liberty," being published Oct. 14 by Simon & Schuster. But Kennedy's family was "devastated by the tone of the dissent."

Kennedy thought that because Scalia's prose was so harsh, the opinion was weakened, it could be shrugged off.

The reconciliation between Kennedy and Scalia came in February 2016, about eight months after Obergefell, but shortly before Scalia would die:

Scalia was leaving shortly for a hunting trip in Texas, but the two men pledged that when he returned, they and their wives would get together again. Kennedy recalls that he told Scalia not to overschedule himself, and Scalia promised that this would be his last long trip.

Those parting words were the last they ever spoke to each other. About a week later, Scalia died in his sleep while on that hunting trip. "If friendships are slipping away, we must renew them soon, lest time does not permit us to celebrate them for long," Kennedy writes.

This passage brought me back to a very sad time. I remember very clearly the day that Justice Scalia died. I felt this overwhelming sadness for the loss of someone I had only met a handful of times. His death created so much uncertainty for the future of the Court, the presidential election, and indeed the Constitution. But what made me so sad was the recognition that there would be no more Scalia opinions. No one can write like him. As the editor of the casebook, I would never again have the joy of editing a new Scalia decision for new law students to read.

Justice Kennedy had made the point about Scalia's travels before. Scalia's hunting trip to Texas came shortly after a trip to Singapore and Hong Kong. I relayed that journey in my 2016 book, Unraveled:

During that recess, the Court's greatest globetrotter was the Justice least concerned about international law.3 Fittingly, Justice Scalia was spreading American law abroad. At the Ninth Circuit Judicial Conference in July 2016, Justice Kennedy recalled that Scalia told him, "Tony, this is my last big trip." On January 24, Scalia traveled to Singapore with his friend and coauthor Bryan A. Garner. A law professor at Southern Methodist University, Garner is the preeminent American lexicographer. On January 28, Scalia gave the Lee Kuan Yew Distinguished Lecture at the University of Singapore on judicial interpretation of legal texts.4 On February 1, Justice Scalia and Justice Kemal Bokhary of Hong Kong's Court of Final Appeal hosted a dialogue on judges and democracy.5 The next day, Scalia and Garner discussed their second coauthored book, Reading Law, at the Chinese University of Hong Kong.6

Garner reminisced that during their busy trip, his colleague was "unbelievably energetic and always on the go," even after working fourteen-hour days.7 On February 3, their final day in Hong Kong, Garner and his wife Karolyne had their palms read by a soothsayer at a Taoist temple. "Nino, you ought to get your palm read," Garner said. Scalia replied, "No. I don't want to know when I'll die." Garner nudged him, "Come on!" Scalia dissented, "No."

After his worldwide tour, Scalia traveled from the Far East to West Texas. On the afternoon of Friday, February 12, Scalia checked into the "El Presidente" suite at the Cibolo Creek Ranch, a 30,000-acre resort outside of Marfa.8 That evening, Scalia attended a private dinner with forty other guests.9 Toward the end of the meal, he retired to bed. The next morning, when he did not arrive for breakfast, an employee of the ranch checked in his room.

Scalia was found dead in his bed. A priest was called to administer last rites. Scalia was seventy-nine years old. He was survived by his wife Maureen, nine children, and thirty-six grandchildren. The justice was seven months short of his third decade on the Supreme Court.

At the time, I though it was remarkable that Scalia was still traveling around the globe with such a heavy schedule. (I had visited Singapore in December 2016, and had emailed Garner about my trip.) I've since heard that there was a lot of dissatisfaction with Scalia's travels as his health was not in the best shape. This would turn out to be Scalia's last long trip.

Kennedy offered this warm exchange with Maureen Scalia after Nino's passing:

When Scalia's wife called to tell Kennedy her husband had died, she told him how much their reconciliation had meant to Scalia.

"We sometimes agreed and sometimes disagreed," Kennedy wrote, "but I respected him and miss him very much."

Justice Kennedy seems to have been a generous colleague. But as a jurist, well, I take satisfaction with everyone of his decisions that is obviated. Totenberg relays:

When he retired from the court in 2018, Kennedy told a small group of journalists that he was confident that the court's major decisions would remain intact. But when I asked him if he still thinks that is true, he demurred.

In the same sense that I had sadness that I can no longer teach students new Scalia opinions, I am joyful that I no longer have to teach students old Kennedy opinions.

The post The Law No Longer Listens To Justice Kennedy appeared first on Reason.com.