Eugene Volokh's Blog, page 30

[Eugene Volokh] "After a Ten-Minute Bench Trial Held in Her Absence" …

[defendant "was found guilty of criminal mischief and domestic violence"—yet the prosecution "presented no evidence that [she] damaged or destroyed the property of another—an essential element of criminal mischief, which was also the predicate offense for the domestic violence charge."]

From Cedar City v. McCraw, decided last week by the Utah Court of Appeals (Judge Michele M. Christiansen Forster, joined by Judges Gregory K. Orme and David N. Mortensen):

In October 2021, McCraw and her girlfriend, Victoria [a pseudonym], argued inside their shared residence located in Cedar City, Utah. The dispute escalated to the point that McCraw threw and shattered plates on the floor in front of Victoria's young child. The City charged McCraw in the Iron County Justice Court with criminal mischief and domestic violence in the presence of a child; the case was later transferred to the Fifth District Court.

The bench trial was continued once and reset. When the trial was finally convened, McCraw did not appear. Counsel briefly left the courtroom to try to contact her client, returned, and reported that McCraw was unavailable. Counsel explained that McCraw was experiencing homelessness and had relocated out of state to find shelter. Counsel did not argue that McCraw's absence was involuntary or seek to continue the trial, and the trial proceeded without her.

Before any witnesses were called, Counsel agreed the City could proceed entirely by proffer and indicated that she did not intend to cross-examine any of the City's witnesses, even though the witnesses were present. {"When evidence is going to be received substantively by proffer, the proffering party states what the witness would testify to if called …, and if the opposing party consents, a court can accept the proffer."} The prosecutor proffered the testimony of Victoria and two police officers. The City's proffers established that McCraw broke and damaged plates during an argument, that Victoria's minor child witnessed this altercation, and that McCraw confessed to arguing with Victoria and breaking the plates.

No proffer established to whom the plates belonged. After the City rested, the trial court asked Counsel, "[D]o you have anything to offer"? She replied, "No, Judge." Counsel called no witnesses and made no closing argument. The court found McCraw guilty on both counts, and McCraw timely appealed….

McCraw argues that Counsel performed deficiently in failing to argue that McCraw's absence from the trial was involuntary and to request a continuance of the trial, in failing to subject the City's case to any meaningful adversarial testing, in failing to move for a directed verdict, and in failing to challenge the constitutionality of the criminal mischief statute.

{Though there is no claim of trial court error here, we would be remiss if we did not note that because a defendant charged with a crime has a constitutional and statutory right to be present at trial, it is incumbent upon the trial court to ensure that a non-appearing defendant has voluntarily absented herself from the trial. See State v. Wanosik (Utah 2003) ("The right to appear and defend in person is a constitutional one, but may be waived under certain circumstances if the defendant voluntarily absents himself from the trial. However, that voluntariness may not be presumed by the trial court."). "It is impermissible to apply an automatic presumption of voluntariness based on nothing more than non-appearance at a hearing of which a defendant had notice." Moreover, "[n]o one denies the general principle" that "the onus is on the [prosecution] to show voluntariness of absence and lack of consent to a trial in absentia."} …

[T]he City produced no evidence as to who owned the plates. As such, the inference the City advances that Victoria owned the plates because she continued to live in the home after the incident would not have been reasonable. Consequently, Counsel should have sought dismissal of the charges…. "If the [prosecution] presents no competent evidence from which a reasonable [factfinder] could find the elements of the relevant crime, then trial counsel should move for a directed verdict and the failure to do so would likely constitute deficient performance." …

McCraw must also demonstrate that she was prejudiced by Counsel's deficient performance. To do this, she "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." And when assessing such a claim, we may consider the counterfactual scenario of "what would have happened but for the ineffective assistance."

So viewed, had Counsel moved for a directed verdict at the close of the City's case and brought attention to the lack of proof on this element, the trial court would have been obliged to grant the motion. The City never "established a prima facie case against the defendant by producing believable evidence of all the elements of the crime charged." …

True, if Counsel had moved for a directed verdict and brought the gap in the evidence to the attention of the City and the trial court, the court might have let the City reopen its case to allow the presentation of additional evidence. "A motion to reopen to take additional testimony when a case has been submitted to the court, but prior to the entry of judgment, is addressed to the sound discretion of the court." "The word 'discretion' itself imports that the action should be taken with reason and in good conscience, and with an understanding of and consideration for the rights of the parties, for the purpose of serving the always desired objective of doing justice between them." But discretion is not certainty, and reopening is never guaranteed. Given the evidentiary void, there is at least a reasonable probability that had Counsel moved for a directed verdict, the trial court would have dismissed the charges….

Counsel should have recognized that the City rested its case without proving every element of criminal mischief and should have taken some action. And McCraw was prejudiced by Counsel's failure to act. Accordingly, we vacate McCraw's convictions and remand this matter for a new trial….

Dylan T. Carlson (Utah Indigent Appellate Defense) represents McCraw.

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[Jonathan H. Adler] Call for Papers: Rocky Mountain Junior Scholars Forum

[An opportunity out west for junior legal scholars.]

I am pleased to be able to share this call for papers.

The Rocky Mountain Junior Scholars Forum is issuing a call for papers. The Forum welcomes participants from across the United States in an academic position without tenure status as well as those who have not yet held an academic position. Fellows, Visiting Assistant Professors, and those in similar positions are welcome. Papers may be at any stage of development at the time of the Forum, including complete drafts, first drafts, partial drafts, and running outlines. Submissions on any legal topic are due by September 15, 2025 and can be submitted at https://rmjsf.byu.edu/2025-home/. Submissions may be in the form of an abstract or draft at any stage. Authors of selected papers will be notified by the end of September.

The Forum will be hosted this year by BYU Law School on October 16-17, 2025. The Forum will begin at lunch on Thursday, October 16, and end in the afternoon on Friday, October 17. The Forum will host dinner and an activity near the law school on Thursday evening. All meals will be covered by the Forum, but participants must provide for their own lodging and travel to and from the Forum. A block of rooms at a discounted price will be made available at a local hotel.

If you have any questions or concerns, please contact Tyler Lindley at lindleyt@law.byu.edu.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] Judge Denies Government's Request to Unseal Epstein Grand Jury Transcripts

Today's decision by Judge Richard Berman (S.D.N.Y.), in U.S. v. Epstein, is here; here's the summary from the docket entry:

The principal ruling in this case is that Federal Rule of Criminal Procedure 6(e) governs and that there is clear precedent and sound purpose for grand jury sealing.The Government concedes that no Rule 6(e)(3) "exceptions" to grand jury secrecy apply in this case. At the same time, the Government fails to demonstrate any "special circumstance[]" which might justify unsealing….

And a brief excerpt from the opinion:

The Government is the party seeking disclosure-however unusual it is for the Government to seek to unseal grand jury material…. A significant and compelling reason to reject the Government's position in this litigation is that the Government has already undertaken a comprehensive investigation into the Epstein case and, not surprisingly, has assembled a "trove" of Epstein documents, interviews, and exhibits. And, the Government committed that it would share its Epstein investigation materials with the public. The Government's 100,000 pages of Epstein files and materials dwarf the 70 odd pages of Epstein grand jury materials….

The Government is the logical party to make comprehensive disclosure to the public of the Epstein Files. By comparison, the instant grand jury motion appears to be a "diversion" from the breadth and scope of the Epstein files in the Government's possession. The grand jury testimony is merely a hearsay snippet of Jeffrey Epstein's
alleged conduct.

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[David Post] Mail-In Ballots

[Another day, another unconstitutional Executive Order on the way?]

Today's Con Law I exam question:

The President issues* an "Executive Order" prohibiting the use of mail-in ballots and automatic voting machines in all federal elections, nationwide.  Discuss the possible constitutional problems that such a move may entail.  10 points.

*  The President has not, actually, issued such an Executive Order; he has indicated, however, that he intends to do so, and the White House has indicated that the E.O. is in the process of being drafted. [see here or here]

Let's do a little exam issue-spotting on this one, shall we? If I'm grading your answers, I expect you to raise two pretty obvious constitutional problems here.

You should start with the relevant Constitutional text (Art. I, Sec. 4):

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

From that, two issues sort of jump right out at you, no?

The State legislatures are expressly given the power, in the first instance, to "prescribe" the "time, place, [or] manner of holding [federal] elections." This E.O. appears to be an attempt to do that; it would certainly affect the "manner" in which elections for federal officers are held, and probably the "time" and "place" of those elections as well (to the extent that millions of people rely on mail-in ballots in order to vote early (time) and when they are out-of-state (place)).  As such, it violates Art I Sec. 4..The federal government is given the power to "make or alter" the States' time/place/manner regulations, but that power is expressly granted to Congress - not to the President.  The President, acting unilaterally via an Executive Order, has no power to compel the States regarding their rules about the time/place/manner of those elections.

I'm only awarding 10 points for this question because it is too damn easy. This EO is close to being laughably unconstitutional. Any first-year law student who doesn't see that is really asleep at the switch. It's the sort of thing that only a law professor would dream up, too ridiculous to contemplate in the real world.  It's a gimme, just setting you up for the more complex interpretive questions to come later in the exam.

What does this say about our President, and about his legal advisers? It says - once again - that they don't give a damn about whether or not what they're doing is, or is not, constitutional. Unless they all flunked Con Law I, which I doubt, anyone the President might conceivably consult for a legal opinion on the constitutionality of what he wants to do -- from the Attorney General, the Solicitor General, the White House Counsel, and the Director of the Office of Legal Counsel, to the lowliest legal intern at the DOJ -- would surely know that he doesn't have the power to do what he wants to do, and that at some point a court, quite possibly the Supreme Court, will issue a final judgment to that effect and the Order will be of no further force and effect.

But in the meantime, . . . In the meantime, he does whatever he wants to do and accomplishes whatever he wants to accomplish. It's very much an "in the meantime" strategy, and it's working very well thus far.  He'll issue the Order, and then he will have his Executive agencies issue regulations designed to scare States into complying with it - cutting off their highway funds, or their Medicaid reimbursements, or their FEMA grants, if they don't comply with the Order. The matter will of course be litigated immediately. But given all of the ways that the government can slow things down - the jurisdictional and standing challenges, the challenges to class certification, the motions to disqualify or dismiss, the requests for stays, the appeals of adverse rulings in any or all of the foregoing - it will be, at a minimum, a year or so before the Supreme Court says, finally, "Of course you're not allowed to do this; there is no other remotely plausible way to read Art. I Sec. 4."

And by that time, if he and his advisers get their timing right, the midterm elections will have come and gone, and millions of people will have had their election rights abridged by unconstitutional executive action. Which is, of course, the intended result.

So that's what it says about Trump and his legal team.

And what does it say about the country? That we now have a President who - I know I'm being repetitive, but if anything bears repetition, it's this - doesn't care whether his actions comply with the Constitution, and it barely merits a mention for a few days in the infosphere and then disappears, a rock dropped in the ocean. I get it: There's no point to keep talking about it, over and over again. But this is a blog about the important legal issues of the day, and failing to talk about this feels a little too close to complicity for my taste.

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[Eugene Volokh] Court Strikes Down W.Va. "Doxing" Law Banning Publishing Home Addresses and Phone Numbers of Certain Officials

From Judge Michael Urbanski (W.D. Va.) Monday in Jackson v. Whitepages, Inc. (N.D. W. Va.) (emphasis added):

Section E of West Virginia's Daniel's Law provides a cause of action for damages and prohibits "disclos[ing], redisclos[ing] or otherwise mak[ing] available the home address or unpublished home or personal telephone number of any active, formerly active, or retired judicial officer, prosecutor, federal or state public defender, federal or state assistant public defender, or law-enforcement officer under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property." …

Section E regulates speech based on its content … [and] cannot survive strict scrutiny because it is not narrowly tailored. Indeed, comparing West Virginia's Daniel's Law to the many other state and federal statutes aimed at the same legislative objective provides a helpful illustration of the ways in which West Virginia's statute is far from the least restrictive means of achieving West Virginia's undeniably compelling interest in protecting its public servants from harassment and violence….

[C]ourts consistently hold that factual disclosures of individuals' personal data, including Social Security Numbers, ages, and dates of birth, constitute speech. See, e.g., Ostergren v. Cuccinelli, 615 F.3d 263, 271 (4th Cir. 2010) (concluding that posting unredacted Virginia land records containing Social Security Numbers on a website was speech); IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020) (treating publication of the ages and dates of birth of entertainment industry professionals as speech). Indeed, lower courts have specifically found that disclosures of public officials' and law enforcement officers' home addresses and phone numbers are speech. See, e.g., Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1012-13 (E.D. Cal. 2017) (finding that a law barring disclosure of "home address or telephone number of any elected or appointed official" regulated "speech"); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1249 (N.D. Fla. 2010) (deciding that posting information on the internet concerning a police officer's name, age, family members, address, phone number, and email address was protected speech); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1141 (W.D. Wash. 2003) (identifying as a regulation of speech a state statute prohibiting selling or publishing the addresses, phone numbers, birthdates, or Social Security Numbers of law enforcement officers). And of most significance here, in Atlas Data Privacy Corp. v. We Inform, LLC (hereinafter, "Atlas"), which concerned New Jersey's Daniel's Law, a district court recently concluded that the disclosures of law enforcement officers' home addresses and phone numbers prohibited by the New Jersey statute were speech. 758 F. Supp. 3d at 334….

More specifically, West Virginia's Daniel's Law regulates speech based on its content…. West Virginia's Daniel's Law … "single[s] out … for differential treatment" the topic of judicial and law enforcement officers' home addresses and phone numbers. Application of West Virginia's Daniel's Law turns on what, for example, a whitepages.com entry says—whether its "communicative content" or "topic" or "subject matter" is the address of a protected person—and not, as with the on-premises/off-premises distinction in City of Austin, simply what is said vis-à-vis where it is said. West Virginia's Daniel's Law thus falls comfortably within the definition of content-based regulation of speech articulated in Reed and City of Austin….

Jackson argues that West Virginia's Daniel's Law pertains to merely commercial speech. Jackson cites the fact that defendants "are driven by an economic motivation." He also compares disclosures of addresses and phone numbers on "people search" websites to advertisements because "[c]ompanies (including some Defendants) will post the home addresses and phone numbers of persons to draw customers to their sites, who in turn will then see advertisements for other goods and services."

Both of these arguments would apply just as well to The New York Times. Because even clearly protected speech often serves economic purposes, the Supreme Court has made clear that economic motivation is not the touchstone of commercial speech analysis. Instead, Supreme Court precedents define commercial speech narrowly as "expression related solely to the economic interests of the speaker and its audience," or "speech that does no more than propose a commercial transaction." …

Finally, Jackson argues that West Virginia's Daniel's Law should receive special consideration as a law protecting privacy. This argument builds on the analysis of New Jersey's Daniel's Law conducted by the district court in Atlas. There, the court determined that New Jersey's Daniel's Law was a "privacy statute" because it concerns judges' and other protected persons' "right to be let alone insofar as their home addresses and unpublished phone numbers are concerned." On this basis, the Atlas court declined to apply Reed and strict scrutiny, despite having concluded that New Jersey's Daniel's Law was indeed a content-based regulation of speech. Instead, the Atlas court applied a specialized privacy analysis drawn from Supreme Court precedents "recogniz[ing] the tension that exists between privacy law and the right of freedom of speech and the press." Specifically, the court cited the Supreme Court's cases analyzing statutes prohibiting the dissemination of truthful information about the identities of rape victims and juvenile offenders, such as Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), and The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Atlas court reasoned that because these privacy-related cases did not use the words "strict scrutiny," the tests they applied must have been more permissive….

The Atlas court's analysis does not sway this court's conclusion that strict scrutiny applies to West Virginia's Daniel's Law. Fourth Circuit precedent requires this court to apply strict scrutiny, regardless of whether precedents like Daily Mail and Florida Star apply….

Section E of West Virginia's Daniel's Law fails strict scrutiny. Even though West Virginia's Daniel's Law serves a compelling state interest, Section E is not narrowly tailored….

The least restrictive means analysis in this case is particularly straightforward because, rather than dealing in hypothetical alternatives, the court has the benefit of comparing West Virginia's Daniel's Law to a variety of analogous state and federal statutes that are more narrowly tailored and burden far less speech in pursuit of the same compelling legislative goal. Section E of West Virginia's Daniel's Law is unique among these laws in lacking speech-protective limitations on liability—most significantly, a notice requirement. In fact, Section E of West Virginia's statute might be the most restrictive of the available means for achieving its compelling interest.

States and the federal government have pursued a variety of measures to shield the home addresses and phone numbers of judicial and law enforcement officers from discovery by individuals wishing to do them harm. Some state statutes limit government disclosure of protected persons' home addresses and phone numbers in the first place, for example, by prohibiting public agencies from disclosing protected persons' home addresses and phone numbers through freedom of information act requests or public land records. Unlike West Virginia's Daniel's Law, these measures do not target private speech, and many are even more limited in that they only restrict speech concerning covered information where a protected person has made a specific request that their information be shielded.

Other states impose heightened criminal penalties on those who publish sensitive information, such as an individual's home address, "with the intent to coerce, intimidate, or harass," while "knowing or having reason to know that person is a law-enforcement officer, … , or an active or retired federal or [state] justice, judge, or magistrate." However, because these criminal statutes require both an intent to harass or otherwise harm and actual knowledge that the information pertains to a protected individual, even these criminal measures limit the risk that they will restrict more speech than necessary.

The state and federal statutes to which West Virginia's Daniel's Law bears the closest resemblance are those imposing civil liability on private entities for disclosing home addresses and phone numbers belonging to judicial and law enforcement officers. However, Section E of West Virginia's Daniel's Law stands out even amongst these laws due to Section E's lack of a notice requirement as a prerequisite to a suit for damages. The federal Daniel Anderl Judicial Security and Privacy Act and the laws of at least nine states, including New Jersey's Daniel's Law, create a private right of action that is only available after a judge, law enforcement officer, or other potential plaintiff has provided notice (usually written notice) to the disclosing entity that they wish to have their information removed from where it is being displayed. Two of these state statutes make damages available immediately upon the disclosing entity's failure to take the requested action within a statutorily designated period, but the remainder of these statutes limit liability still further by providing only injunctive or declaratory relief as an initial matter and permitting damages to be recovered only upon the disclosing entity's failure to comply with an injunction or declaratory judgment.

By contrast, Section E of West Virginia's Daniel's Law creates a private right of action for a plaintiff to seek actual damages—indeed, liquidated damages "not less than $1000 for each violation"—and even punitive damages under certain circumstances, as well as appropriate preliminary or equitable relief, without ever providing a potential defendant with notice that posting that plaintiff's information violates the law…. West Virginia's law thus places the burden on the would-be speaker to overcome the impediment to speech, rather than placing the burden on those who would like to advance a countervailing interest in safety. This is constitutionally problematic because the free flow of speech ought to be presumptively favored, in light of the enumeration of freedom of speech in the First Amendment as an interest that ordinarily trumps competing unenumerated governmental interests.

{Section H of West Virginia's Daniel's Law contains a procedure by which judicial and law enforcement officers and their immediate family members can request that a disclosing entity remove their home address or phone number from where it is being displayed. That portion of West Virginia's Daniel's Law is civilly enforceable through injunctive or declaratory relief and attendant attorney's fees and litigation costs, but not damages. Accordingly, Jackson did not rely upon Section H in this suit, which is seeking damages, and Section H is not at issue in this case.

Indeed, nothing in this opinion and accompanying order limits Jackson's ability to invoke the protection of Section H of West Virginia's Daniel's Law by requesting that defendants remove his address and phone number from their websites. But that issue is not before the court.

In any event, because the two provisions set out distinct enforcement schemes, the constitutionality of one need not affect the constitutionality of the other. On the one hand, Section H might be constitutional, even if Section E is not, because it is more narrowly tailored both due to its notice requirement and its less extensive remedies. On the other hand, even if Section H were deemed constitutional, that would not save Section E, because Section E imposes civil liability without notice, and the notice provisions of Section H are not somehow transferrable to Section E. Nevertheless, one might rely on Section H as further evidence that Section E is not narrowly tailored because Section H demonstrates that even West Virginia's statute itself contains a less restrictive means of achieving the statute's overall compelling objective.}

Section E's lack of a notice requirement also renders the provision overinclusive in that it burdens more speech than necessary to protect the safety of judicial and law enforcement officers because it risks chilling even speech unrelated to judicial and law enforcement officers…. Defendants' websites, for example, display vast amounts of data pertaining to individuals throughout the country. Although receipt of a request to take down a given individual's information would alert even a high-volume speaker like defendants to the fact that that a potential West Virginia's Daniel's Law plaintiff's data is among the data points they display, it is difficult to imagine a mechanism by which they could preemptively sift through the data they display to identify every individual who might have served as a law enforcement officer in West Virginia at some point in their career. W. Va. Code § 5A-8-24(c)(4) (defining "law-enforcement officer" broadly)….

This is not to say that a notice requirement is the only conceivable way of narrowly tailoring statutory protections for the home addresses and phone numbers of judicial and law enforcement officers and other public servants. The First Amendment sharply curtails the ability of legislators to impose content-based restrictions on speech, but to the extent it permits any such restrictions to survive strict scrutiny, the First Amendment requires narrow tailoring, not a particular means of narrow tailoring, which ultimately remains a legislative judgment. However, even beyond its lack of a notice requirement, Section E of West Virginia's Daniel's Law lacks another important, albeit related, speech-protective limit on liability[:] … a knowledge requirement. The Supreme Court has specifically recognized the tendency of statutes restricting speech without a knowledge requirement to exert a chilling effect. [Details omitted. -EV]

Here's what the court had to say about Kratovil v. City of New Brunswick (N.J. 2025), which upheld the similar (but not identical) New Jersey law:

The facts of Kratovil were far more analogous to those of Daily Mail and Florida Star than are those at issue here. The Kratovil plaintiff was a journalist who learned through a lawful records request that the voting address of the New Brunswick, New Jersey Police Director was in the Borough of Cape May—a two-hour drive from New Brunswick. The journalist filed a complaint seeking declaratory and injunctive relief from application of New Jersey's Daniel's Law, hoping to eventually publish a story on the issue of whether the Police Director was adequately performing his duties—a topic of public concern. Because Daily Mail and Florida Star specifically concerned newspaper publication of truthful, lawfully obtained information of public concern, the test they articulated fits the journalistic interests at issue in Kratovil. By contrast, West Virginia's Daniel's Law has no particular focus on journalism.

Furthermore, Kratovil declined to consider whether Daily Mail and Florida Star were equivalent to the strict scrutiny called for by Reed v. Town of Gilbert (2015). The Supreme Court of New Jersey applied Daily Mail and Florida Star "alone," as the complaint and briefs were premised on the standard set in the Daily Mail line of cases.

Finally, the Kratovil court's application of Daily Mail and Florida Star was not equivalent to the privacy balancing test deployed in Atlas. The Kratovil court used the finding that the Police Director's home address was truthful, lawfully obtained information related to a story on a matter of public significance as a trigger for applying the "second inquiry in the test prescribed in Daily Mail and Florida Star" as to "whether the challenged law serves a need to further a state interest of the highest order." In practice, this "second inquiry" was strict scrutiny, as the Kratovil court considered both the magnitude of the state's interest and narrow tailoring. By contrast, the Atlas court used its finding that the home addresses and unpublished home telephone numbers shielded by New Jersey's Daniel's Law generally "are not matters of public significance," not as a threshold guide as to which test to apply, but as a factor weighing against First Amendment protection. Kratovil is thus less like Atlas and more like the cases that use Florida Star and Daily Mail as a basis for applying strict scrutiny distinct from a law's content-based or content-neutral status.

Ultimately, the only meaningful divergence between Kratovil's analysis of New Jersey's Daniel's Law and this court's analysis of West Virginia's Daniel's Law is in the conclusion reached as to narrow tailoring. As explained elsewhere in this memorandum opinion, that divergence is simply a result of differences between the two statutes. New Jersey's Daniel's Law is indeed more narrowly tailored than Section E of West Virginia's Daniel's Law, principally because New Jersey's statute contains a notice requirement. In short, while New Jersey's Daniel's Law is narrowly tailored, West Virginia's Daniel's Law is not.

Natalie C. Schaefer and Caleb B. David (Shuman McCuskey Slicer PLLC) represent defendants.

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[Eric Claeys] Natural Property Rights: A VC Preview

I'm blogging this week about my new book Natural Property Rights, published with Cambridge University Press and available for purchase now digitally and in hardbound version, at a variety of bookstores. On Monday,, I summarized the book's normative theory. Yesterday, I explained how the theory applies to acquisition law and policy, and what happens when a community chooses to ignore the moral constraints associated with natural law.

Today, I'll explain how the theory applies to ownership, leases, … and the arcane estates and future interests used in American and "Anglo-sphere" legal systems. Along the way, I'll also consider some familiar critiques of property, by scholars who think that property threatens social and political equality.

Let me start with ownership. Ownership constitutes a relatively specialized form of property. Ownership supplies the model for property in land. Land owners are entitled to sue trespassers for trespassing whether or not they damage the premises and whether or not the owners are actually using the land. But ownership does not supply the model for property in water rights (rights to the use of river water and its flow). Water-rights holders cannot complain that others are interfering tortiously with their rights unless those others interfere with ongoing water uses. The rights to alienate or assign property come automatically with ownership; they don't attach automatically to usufructs.

But even though ownership is only one form of property, it is probably the most familiar form. Most people associate "property" with their personal possessions, their real estate, and their wealth. All of those resources can be owned.

And ownership makes property controversial. How is it just for one person to exclude everyone else from resources everyone could use? As I've explained in my earlier posts, a natural property right is qualified by a sufficiency proviso. How is it fair for an owner to exclude others who have rights corresponding to the sufficiency proviso? Questions like these have been  asked by many writers and scholars— Pierre-Joseph Proudhon 200 years ago, and Joe Singer and Jeremy Waldron relatively recently.

But those questions assume a mistaken premise—that property doctrines need to track moral rights in every detail. Speed limits can secure rights to travel and to be safe even though they stop some drivers from driving fast when they can do so safely. So too for ownership. Even if, on paper, the sufficiency proviso seems violated by trespass and other doctrines that give owners managerial authority far beyond what they need to use what they own.

The case for ownership goes like this. In principle, all the people in a community are entitled to acquire and use reasonable shares of the resources the community controls. In principle, though, those natural rights are mere usufructs. So every person who started foraging land could keep foraging it, subject to others' claims under the sufficiency proviso. And no one would have very secure rights to assign away or receive others' usufructs. Even though ownership excludes everyone but the owner from the resource owned, it gives everyone opportunities to hold and use other resources much more securely. And, more secure freedom to acquire or assign away those resources.

So ownership can be justified if, after it's instituted, people get more opportunities in practice to use the possessions they own productively, or to acquire new resources that they didn't own. Although the case for ownership is implicitly empirical, it is understandable and superficially plausible. The main driver in the case is Locke's argument: Ownership gives owners broad managerial authority. That authority encourages them to labor productively, and that productivity "over-ballance[s] the Community" of goods that would exist in a regime of open access and usufructs. The sufficiency proviso can be satisfied in substance. If enough owners produce new resources for people who don't have them. And if people who don't own shares of some resource can acquire the shares they need by work, saving, and purchase.

Property law can respect the sufficiency proviso even more. Some doctrines limit ownership to respect sufficiency interests—common law common carrier principles, or doctrines that recognize public rights of way to traverse private land. But property law respects the sufficiency proviso most in two ways.

First, ownership creates clear, secure rights to assign and receive property. And second, property law expands the options owners have to subdivide their property. When an owner builds an apartment building with 100 units, 100 renters get housing satisfying their interests under the sufficiency proviso. When a landowner passes on a present estate and several future interests, the recipients of all the various interests get secure rights to acquire and use the land consistent with their sufficiency interests.

In current scholarship, though, there isn't any satisfying normative theory why property law should recognize proprietary rights more limited than ownership rights. (In what follows, I'll call all of those limited rights "component rights"; a life estate and a reversion "compose" a fee simple when they're put back together.) What scholarship there is relies on rough utilitarian interest-balancing. Natural rights account for the relevant concerns better, because they focus more on the rights of the people threatened most by different property rights.

Any new component right affects the rights of three distinct classes of people. The first class consists of owners. Clearly, component rights give owners ways to exercise their property rights more effectively and productively. When apartment owners make money off of rentals, if they use the rent productively they use the leaseholds productively, too. When someone passes land along to relatives through a life estate and future interests, property law helps her derive productive use from it—the sociable uses she'll get from helping her relatives survive and thrive.

Any new component right must also respect the rights of the people who stand to receive leaseholds, present possessory estates, and other component rights (here, "assignees"). But component rights obviously respect the rights of assignees. The more property rights there are to go around, the more the sufficiency proviso is satisfied.

When a legal system recognizes a new component right, though, it also threatens the rights of people who don't stand to receive the right. Here, I'll call such people "third parties." And a lot the doctrines in a 1L Property course protect the rights of third parties.

To begin with, people who don't hold property in a resource have rights of notice—to know who does have rights in the resource, and what they need to do to avoid violating those rights. These notice rights are the flip sides of the claim-communication requirement.

To provide that notice, a state needs to establish reliable rules confirming that owners have created and assigned leases or other component rights. Statutes of Frauds do that. A state also needs to make it reasonably easy for neighbors and other third parties to know who has what rights in an owned piece of property. Recordation statutes do that. A state also needs to stop owners from creating property rights that are so specialized and strange that no one else will be able to understand or obey them. An obscure doctrine, called "the numerus clausus principle" (Latin for "the number is closed") takes care of that.

Separately, when an owner assigns component rights to a group of assignees, the assignments threatens rights that arise out of the sufficiency proviso. It is far easier to acquire property from one person who owns it than from several people who hold different fractionated rights in it.

As with claim-communication concerns, property law addresses sufficiency concerns in many different ways. Assume that an owner assigns away present estates and future interests but insists that anyone who takes the premises must use it for a few specific uses. The use-restriction may be declared illegal and void as against public policy. That doctrine tries to protect the sufficiency interests of the people who might acquire the land later.

Separately, the Rule Against Perpetuities purges out of a property system future interests that won't clearly vest or fail within 21 years after everyone alive at the conveyance dies. The Rule is a formalistic and blunt tool, and it may be an ineffective tool. But it has a reasonable goal, to get rid of conveyances that seem likely to cloud title in a lot in the future. Whether the Rule advances that goal well, it is at least trying to satisfy rights associated with the sufficiency proviso.

Today, I've discussed the legal rights of possession and disposition that usually run with ownership. But the right to use a resource also runs with ownership. Tomorrow, I'll discuss use rights—in nuisance, and in servitudes. And since nuisance examples loom large in law and economic scholarship, tomorrow I'll contrast natural rights and economic analyses of nuisance as I contrasted rights-based and egalitarian accounts of ownership today.

The post Natural Property Rights: A VC Preview appeared first on Reason.com.

[Josh Blackman] Did the Texas Tribune Hallucinate About Judge Ho's Dissent?

[The article misattributed two quotations to Judge Ho. And variants of those quotes appeared in the majority, but there were inexplicable alterations.]

On August 18, a divided Fifth Circuit panel decided the case of Spectrum WT v. Wendler. This case presented a challenge to West Texas A&M University's decision to cancel a drag show on campus. The majority opinion by Judge Southwick, joined by Judge Dennis, found that the cancellation of the drag show violated the First Amendment. Specifically, the panel found the drag show was expressive. And, the majority ruled, "a message in support of LGBT+ rights was intended, which is a far clearer message than some of the examples of art identified in Hurley as protected by the First Amendment." The majority found that Christian Legal Society v. Martinez was not relevant because "expressive association" was not at issue in that case.

Judge Ho dissented. In short, Judge Ho found that if U.C. Hastings was able to exclude the Christian Legal Society, then West Texas A&M could exclude the drag show. His dissent begins:

Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez, 561 U.S. 661 (2010). I disagree with the Supreme Court's decision in CLS. But I'm bound to follow it. And I will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.

This is a common theme in Judge Ho's decision. What is good for the goose is good for the gander. Whatever rules apply to one side must apply to the other side. There is a ruthless fairness to his cases, which I admire--especially when it involves a terrible precedent like CLS v. Martinez. If I could pick five decisions from the last two decades to reverse, Martinez would make the cut. Justice Ginsburg gerrymandered the facts of the case so gruesomely, for the reasons Justice Alito pointed out in dissent. I'm not even sure it is necessary to overrule CLS. That case could easily be confined to the facts about the "stipulations." Indeed, the West Texas A&M Case might be the perfect vehicle to do it. Imagine the headlines: Chief Justice Roberts writes majority opinion in favor of Texas drag show, with Justice Jackson in dissent. Heads will explode.

But that's not why I'm writing this post. I'm writing about the media.

The original version of the Texas Tribune (PDF link) included these three paragraphs about Judge Ho's dissent.

Judge James C. Ho dissented in the West Texas A&M case.

"Drag is not inherently expressive," wrote Ho, who was appointed to the 5th Circuit by Trump and is the former Solicitor General of Texas.

He argued that whether a particular performance conveys a protected message depends on the specific show, performers and audience. He said Spectrum WT had not shown it was entitled to such an "extraordinary remedy" as a court order blocking the drag show ban.

I read these sentences and was perplexed. Judge Ho did not say a word about whether drag is expressive. Seriously. The word "expressive" does not appear in the dissent. He didn't need to. He found this issue was decided by CLS v. Martinez, and under that precedent, the University receives deference. Full stop. Judge Ho said nothing at all about whether a "protected message depends on the specific show, performers and audience." He said nothing at all about whether an "extraordinary remedy" was justified. The word "remedy" does not appear in the dissent. Because again, he would have deferred under CLS v. Martinez.

I seriously wondered if the person who wrote this even bothered to read any of Judge Ho's dissent. Judge Ho didn't make any of these points.

I emailed the author, and inquired about just one of these items. I wrote that the quote "Drag is not inherently expressive" does not appear anywhere in Judge Ho's dissent. But I didn't mention other problems with the story. She wrote back promptly, and said a correction would be forthcoming.

A few hours later, the relevant paragraphs were revised and a "correction" was added to the bottom of the article (PDF link):

Judge James C. Ho dissented in the West Texas A&M case. Ho, who was appointed to the 5th Circuit by Trump and is the former Solicitor General of Texas, wrote that Spectrum WT had not shown it was entitled to such an "extraordinary remedy" as a court order blocking the drag show ban.

Correction, Aug. 19, 2025 at 6:38 p.m.: An earlier version of this story incorrectly attributed the statement "drag is not inherently expressive" to Judge James C. Ho in his dissent to the 5th U.S. Circuit Court of Appeals' ruling that blocks West Texas A&M University's ban on drag shows. The phrase appears in the majority opinion's overview of the arguments made by university President Walter Wendler in support of the ban.

There are many problems with this correction that raise more questions than answers.

First, the quote "drag is not inherently expressive" does not actually appear in the majority opinion. A variant of that quote does appear in the majority decision:

President Wendler also argues that drag shows require explanation before any meaning may be discerned, and this need for explanation demonstrates "that drag shows are not inherently expressive conduct."

There is a difference between "drag shows are not inherently expressive conduct" and "drag is not inherently expressive." The word "shows" is dropped, "are" is changed to "is," and "conduct" is dropped. I have to imagine a reporter would probably copy and paste such a complex sentence from a readable PDF. Maybe reporters still take notes by hand, but then such a mistranscription reflects sloppy reporting.

But even if I indulge the assumption that the reporter mistranscribed the quote, how was this mistake made? President Wendler's statement appears on page 7 in the fact section of the majority opinion. It was made briefly, and in passing. I doubt a reporter skimming a case would even come across this quote.

Second, even though the Tribune deleted the quotation about "expressive conduct," there is no explanation for this sentence: "He [Judge Ho] argued that whether a particular performance conveys a protected message depends on the specific show, performers and audience." This sentence was disappeared from the article without any explanation. Even if you unintentionally quoted a fact from the majority as if it came from the dissent, there would still have to be a volitional act to summarize (incorrectly) the dissent's analysis. Why did the author even think this was Judge Ho's position? Ho didn't make any of these points. Simply reading the first two paragraphs of the dissent would easily summarize the dissent.

Third, even after the correction, this sentence remains: "Spectrum WT had not shown it was entitled to such an 'extraordinary remedy' as a court order blocking the drag show ban." I did not mention this error in my email. Maybe the reporter could figure it out on her own. She didn't. And I think I figured out what happened here as well. The majority opinion includes this sentence when describing the standard for a preliminary injunction:

Because a preliminary injunction is an "extraordinary and drastic remedy," a court should not grant one "unless the movant clearly carries the burden of persuasion."

There is no reason for a reporter to even read this sort of boilerplate standard of review section.

You see what happened? Another sentence from the majority opinion was attributed to the dissent, but with a modification: "extraordinary and drastic remedy" was changed to "extraordinary remedy." If one quote from the majority was erroneously attributed to the dissent with alterations, I might buy it. But two? This is all very suspicious.

We've seen hallucinations in briefs from lawyers. We've seen hallucinations in decisions from judges. Courts are using AI to summarize their own opinions. We know journalists are using AI. Is it possible this discussion of Judge Ho's dissent was a hallucination? Is it possible the author asked ChatGPT to summarize Judge Ho's dissent?

I can imagine what AI might have done here. The majority said that drag was "expressive," and the "extraordinary" remedy of an injunction was warranted. So of course the dissent said the opposite: drag was not "expressive," and an "extraordinary" injunction was not warranted. And AI plucked some quotes from the opinion that supported such a holding. Those quotes couldn't come from the dissent, because he did't write that, so AI filled in the gaps. Or maybe the AI just assumed that of course Judge Ho, the right wing Trump appointee, would find that a drag show is not protected by the First Amendment, and work from there. Or maybe something else. We still don't really understand how AI does what it does.

I recently included this sentence in my syllabus for my Supreme Court simulation class:

The use of Generative AI is not permitted in this class on any assignment or to prepare for oral argument. Please do your own work. To understand why, read this post: https://adamunikowsky.substack.com/p/automating-oral-argument

I sent an email to the Tribune to inquire further. I'll be happy to post their response.

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[Jonathan H. Adler] Fifth Circuit Upholds Injunction Against NLRB Proceedings, Distinguishing Humphrey's Executor

[The Court concludes that limitations on the removal of NLRB Board members and NLRB administrative law judges are both unconstitutional.]

Today, in Space Exploration Technologies Corp. v. NLRB, the U.S. Court of Appeals for the Fifth Circuit concluded that the structure of the National Labor Relations Board (NLRB) is unconstitutional in (at least) two ways. First, the NLRB's administrative law judges are insulated by a double-for-cause removal protection of the sort invalidated in Free Enterprise Fund v. PCAOB (and which the Fifth Circuit had previously declared unconstitutional in Jarkesy).  Second, the court concluded that for-cause removal protection for NLRB Board members is also unconstitutional because the NLRB exercises significant executive power and is not sufficiently like the Federal Trade Commission to be protected by Humphrey's Executor.

Judge Willett wrote for the court, joined by Judge Duncan. Judge Wiener concurred in part and dissented in part. Judge Wiener agreed with the majority on the merits, but disagreed on whether the companies challenging the NLRB were entitled to a preliminary injunction against being subject to Board proceedings. In Judge Wiener's view, the companies did not demonstrate that they would suffer irreparable harm.

Judge Willet summarized his opinion this way:

Congress created the National Labor Relations Board in 1935 to administer and enforce the National Labor Relations Act, the cornerstone of American labor law. Like many independent federal agencies, the NLRB relies heavily on "administrative adjudication." Its administrative law judges (ALJs) preside over claims of NLRA violations and issue initial decisions, which are subject to review by the agency's five-member Board—a quasi-judicial body of presidential appointees that sits atop the NLRB's hierarchy.

Board Members may be removed by the President only "for neglect of duty or malfeasance in office[.]"1 And ALJs may be removed only "for good cause," as determined by the Merit Systems Protection Board (MSPB)—itself an independent, quasi-judicial agency that adjudicates "[f]ederal employee appeals from agency personnel actions."

In this consolidated appeal, SpaceX, Energy Transfer, and Findhelp (together, the Employers) each faced unfair-labor-practice complaints. Before administrative proceedings began, each filed suit in a different federal district court, challenging the constitutionality of the NLRB's structure—specifically, the dual for-cause removal protections shielding both Board Members and ALJs. Each court granted a preliminary injunction, halting the agency's proceedings.

On appeal, the NLRB argues that the district courts (1) lacked jurisdiction to enjoin ongoing Board proceedings, and (2) abused their discretion in doing so, because the Employers are unlikely to prevail on the merits and have not shown irreparable harm.

We disagree on both counts. First, nothing in federal law strips federal courts of jurisdiction to hear these claims—or to enjoin unconstitutional agency proceedings. Second, the district courts acted well within their discretion in granting preliminary relief.

ALJs are inferior officers insulated by two layers of for-cause removal protection—an arrangement the Supreme Court and this circuit have both held unconstitutional. As for the Board Members, precedent is less definitive. But the Supreme Court and this court have both cautioned against extending Humphrey's Executor to agencies that are not a "mirror image" of the Federal Trade Commission.

The Employers have made their case and should not have to choose between compliance and constitutionality. When an agency's structure violates the separation of powers, the harm is immediate—and the remedy must be, too.

On how the NLRB is sufficiently different from the FTC to get around Humphrey's Executor, Judge Willett writes:

Humphrey's Executor carved out an "'exception' to the general 'rule' that lets a president remove subordinates at will." There, the Supreme Court upheld removal restrictions—"for inefficiency, neglect of duty, or malfeasance in office"—for the Federal Trade Commission's multi-member body of experts, reasoning that its commissioners exercised "quasi legislative and quasi judicial" functions and did not, at the time, wield "executive power in the constitutional sense."

In the 90 years since, courts have been reluctant to extend Humphrey's Executor beyond its facts. The Supreme Court has recognized it as a narrow exception, limited to "multimember expert agencies that do not wield substantial executive power."

Unlike the FTC commissioners in 1935, NLRB Board Members today "wield substantial executive power." They determine bargaining units, direct representation elections, adjudicate unfair-labor-practice charges, and seek enforcement of their orders in federal court. They also appoint inferior officers, including the executive secretary, attorneys, regional directors, and ALJs. And the NLRA empowers the Board to petition federal district courts for injunctive relief against alleged unfair labor practices. In short, Board Members execute the NLRA through "administrative, policymaking, and prosecutorial authority."81 That they may be removed only "for neglect of duty or malfeasance in office, but for no other cause" renders the removal provision constitutionally suspect under modern separation-of-powers doctrine.

Recent Supreme Court precedent points the same way. In staying an injunction that barred President Trump from removing NLRB Board Members Gwynne Wilcox and Cathy Harris, the Court observed that "the Government is likely to show that both the NLRB and MSPB exercise considerable executive power." While the Justices were careful to say that they "d[id] not ultimately decide" the issue, their stay order reinforces our conclusion that Board Members' insulation from presidential removal likely violates Article II.

The NLRB insists its removal protections survive because its structure mirrors that of the Consumer Product Safety Commission (CPSC) in Consumers' Research v. CPSC. There, we reaffirmed that Humphrey's Executor "still protects any 'traditional independent agency headed by a multimember board.'" The CPSC, like the FTC in Humphrey's Executor, has five members, and no more than three from the same political party—reflecting Congress's intent that the agency remain "non-partisan" and "act with entire impartiality." Although the CPSC "exercises substantial executive power (in the modern sense)," its structure mirrors that of the FTC: a multimember board whose staggered appointment schedule "means that each President does 'have an[] opportunity to shape [the Commission's] leadership and thereby influence its activities.'" Additionally, the CPSC does not receive funds outside the appropriations process—so "the President can 'influence' the Commission's activities via the budgetary process." Those characteristics led us to uphold the CPSC's removal protections.

Our precedent therefore requires looking not only at whether officers "wield substantial executive power," but also at whether the agency shares the FTC's structural hallmarks and whether for-cause removal "'combine[s]' with 'other independence-promoting mechanisms' that 'work[] together' to 'excessively insulate' an agency from presidential control." As we observed in Consumers' Research, "[t]he contours of the Humphrey's Executor exception depend upon the characteristics of the agency before the Court." And there, the CPSC was the "mirror image" of the FTC.

Here, the NLRB departs in critical respects. Both the Board Members and the General Counsel wield prosecutorial power. But while the General Counsel is politically accountable, the Board Members are not. In Exela Enterprise Solutions v. NLRB, we held that Humphrey's Executor did not justify insulating the General Counsel's "quintessentially prosecutorial functions" from presidential control. If that exception does not extend to the politically accountable General Counsel, it cannot reach the even-less-accountable Board members.

Moreover, unlike the FTC and the CPSC, the NLRB has no statutory party-balancing requirement. The Supreme Court has cabined Humphrey's Executor as "permit[ting] Congress to give for-cause removal protections to a multimember body of experts" where that body is statutorily "balanced along partisan lines." That is not true of the NLRB. A President may fill four of its five seats with members of his own party, and the Board's work is widely acknowledged as politically charged. This absence of structural balancing undermines the "independence" rationale underlying Humphrey's Executor.

Admittedly, the merits question for Board Members' removal protections is a closer call than for ALJs. But both the Supreme Court and this circuit have declined to extend Humphrey's Executor to agencies that are not a "mirror image" of the FTC. The NLRB's structure and powers take it outside that narrow exception.

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[Eugene Volokh] $2M Recommended Compensatory Damages + $7.5M Punitives for Inmate Raped by Guard

[So a Magistrate Judge concludes in recommending a default judgment in favor of the inmate.]

From today's Report and Recommendation by Magistrate Judge Ronald Griffin (W.D. Tex.) in Doe v. Serna-Venegas; the lawsuit is just against the guard (the County had been dismissed earlier, as had some other individual defendants), so it seems unlikely the plaintiff will recover much money from this particular award. Some extra appalling dollops in an already appalling case:

In her Complaint, Plaintiff alleges Defendant had a commercial web page on "OnlyFans.com," where he was paid to have sex with females, including inmates, and post it on his page. Investigators later reviewing videos on Defendant's phone found at least seven different videos of Defendant having sex with inmates at the Midland County Jail. Defendant was ultimately prosecuted and convicted of six felony counts of improper sexual activity with a person in custody.

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