Eugene Volokh's Blog, page 47

[Eugene Volokh] Settlement as to Alleged Suspension for Saying "Illegal Alien" in Class Discussion

[High school student gets correction of school records, $20K, and public apology for "mischaracterization of racial bias." ]

From today's order by Judge Thomas Schroeder (M.D.N.C.) in C.M. v. Davidson County School Dist. Bd. of Ed., approving a settlement:

The proposed revised settlement agreement provides C.M. a public apology from the Davidson County Board of Education for a "mischaracterization of racial bias arising from [C.M.]'s comments," correction of C.M.'s school records, the Board's "acknowledge[ment] [of] the inappropriate response to this matter by a former member," and monetary compensation of $20,000. In exchange, Plaintiff has agreed to release any and all claims against the Defendants, and the parties have agreed to pay their own attorneys' fees and costs. The agreement specifies that its terms "are not to be construed as an admission of liability or wrongdoing" by either party and that the settlement "is entered as a cost-effective alternative to costly legal proceedings."

Here are the factual allegations, from the motion for a preliminary injunction:

C.M. asked his English teacher whether a reference to "aliens" during class discussion referred to "space aliens or illegal aliens who need green cards." C.M.'s question did not substantially disrupt class, nor did his comment interfere with the School's work or collide with other students' rights.

But the School equated C.M.'s question with a vile racial slur pursuant to Board policy and suspended him for three days, out of school, without a hearing or the opportunity to appeal…. The Board upheld C.M.'s School suspension pursuant to its policy equating the word "aliens" with "the n word."

The New York Post (Yaron Steinbuch) reported on the initial controversy as well, as did the Carolina Journal (Briana Kraemer) and Hans Bader (Liberty Unyielding). As I noted when the first hit the news,

If the facts are as described in the press coverage, this would likely be a violation of the First Amendment; and even apart from the First Amendment, it strikes me as an improper attempt to enforce a particular ideological orthodoxy.

Tinker v. Des Moines Indep. Comm. School Dist. (1969), does allow speech to be restricted when it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," and this has in effect been read to allow a "heckler's veto" when enough people threaten the speaker. But I doubt that one such threat should qualify (especially as a basis for a suspension), or else virtually any kind of controversial statement on any topic—abortion, war, affirmative action, the police, or a vast range of other topics—could be punished simply because one person sufficiently dislikes it. (After all, if speech can be punished because someone threatens to fight someone over the official legal term "illegal alien," it could equally be punished whenever someone threats to fight someone over a substantive policy position, e.g., "immigration law should be enforced, by deporting people who are not legally allowed to be in the country.")

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[Eugene Volokh] Hallucinations (and Alleged Lack of Candor About Them) in Federal Appellate Briefing

From McCarthy v. U.S. DEA, decided yesterday by Third Circuit Judge Cindy Chung, joined by Judges Peter Phipps and Jane Roth:

McCarthy is a physician assistant who held a DEA COR [Certificate Of Registration] allowing him to prescribe Schedule II through V controlled substances. McCarthy prescribed controlled substances despite the fact that he was not being supervised by a physician with whom he had a written agreement as required by Pennsylvania law. In response to his conduct, on April 21, 2023, the DEA issued McCarthy an Order to Show Cause why his continued registration was not inconsistent with the public interest. [Factual details omitted. -EV]

McCarthy … argues that the Administrator's decision to revoke his COR was arbitrary and capricious or an abuse of discretion…. To make this point, McCarthy primarily relies on "summaries" of eight DEA adjudications. McCarthy's counsel now acknowledges that seven of these summaries were inaccurate, that the eighth decision does not exist, and that the summaries and non-existent decision were all generated by Artificial Intelligence (AI). McCarthy's counsel further acknowledges that he never took care to confirm the accuracy of the summaries or even that the decisions existed. {We ordered McCarthy's counsel to provide the cases to the Court and explain if and how he verified the accuracy of his summaries. In his response, McCarthy's counsel acknowledged that he knew that he had submitted erroneous summaries and a non-existent case to this Court long before the filing of his response. We are separately ordering McCarthy's counsel to show cause why he should not be sanctioned for his conduct, particularly for his lack of candor to the Court.}

Accordingly, we will not consider this portion of his brief. {McCarthy's counsel also concedes that the Government has successfully rebutted the eight summaries. This provides us with another reason not to consider this portion of the brief.} …

Here's the order to show cause, which requires McCarthy's lawyer "to show cause why he should not be sanctioned for his conduct with respect to the briefing in this case, specifically with regard to his lack of candor to the Court":

See ECF 45-1 (explaining that Counsel "confirmed" that text had been generated by AI in February and that "it first occurred" to Counsel "[i]n mid-February 2025" that certain case descriptions had been generated by AI); id. (first informing this Court of that belief on May 19, 2025 and only after prompting from this Court). In particular, Counsel shall address whether he violated his duty of candor to the Court in filing his Reply Brief where he (1) represented that his Opening Brief was "a good faith effort to chronicle Agency disparities," while never having read said decisions; (2) minimized the inaccurate summaries as "immaterial misstatements about the cited cases' tangential details," while having never read said decisions; and (3) failed to correct his misstatements and to disclose that one case did not exist. Reply Br. 14.

Additionally, Counsel shall address his failure to self-disclose to the Court, prior to the Court's letter, the inaccuracy and non-existence of cases cited. Counsel is advised that the Court is considering imposing discipline in the form of monetary sanctions. Counsel shall file his response within 10 days of the date of this order. Within 10 days of the date of this order, Counsel may file an application requesting to appear before the panel in person. If he does so, the panel will schedule a hearing. This panel may also refer this matter to the Standing Committee on Attorney Discipline.

And from the lawyer's response, also filed yesterday, which seems to me about as effective and professional an apology and response as possible given the circumstances (recognizing of course that there would have been much less to apologize for if the lawyer had promptly acknowledged the error):

At the outset, undersigned counsel recognizes he is subject to discipline under [the] rules set forth in this Court's Order to Show Cause dated July 21, 2025 …. Counsel readily concedes that the aforementioned Rules governing conduct and enforcement are applicable under the circumstances before the Court.

As represented in the Response to the Order to Show Cause, it was in mid-February 2025, that your undersigned came to believe with reasonable certainty that the citations and case descriptions made in the Opening Brief, as supplied by the client, were likely supplied by Artificial Intelligence ("AI").

Even still, undersigned counsel did not submit a corrective filing to address the inaccurate authority.

DUTY OF CANDOR – RECOGNITION AND REMEDIATION

REPRESENTATION MADE IN OPENING BRIEF AND REPLY BRIEF.

In undersigned counsel's Reply Brief it was represented that he was making a good faith effort to chronicle Agency disparities. This Reply Brief was filed on February 06, 2025.

As stated in the Response to the Text Order, Attorney Pallen [the undersigned counsel] did receive content from his client which was generated so rapidly that it caused your undersigned to directly question the client about his use of AI. It was not until a few days later in mid-February 2025, that your undersigned conclusively deduced that the citations and case descriptions made in the Opening Brief, as supplied by the client, were likely supplied by Artificial Intelligence ("AI"). It is also true that from mid-February until this Court's prompting by way of Text Order dated May 15, 2025, that Attorney Pallen did nothing to remediate the problem or to retract the supplied citations and descriptions.

Pennsylvania Rule of Professional Conduct 3.3 provides that "[a] lawyer shall not knowingly … make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."

Undersigned counsel, having a career of seventeen (17) years has deep respect for the duty of candor, and even deeper regrets for falling short in this instance. The only nuance here is whether or not counsel knowingly advanced inaccurate and unverified citations. Between the time of the Opening Brief and the Reply Brief, undersigned counsel included citations that had not been properly verified and were later determined to be inaccurate. Your undersigned failed to cross-reference, research deeply, fully read, or even Shepardize the authority presented to the panel. After it became clear that the authority shared with him by the client and submitted in the brief was AI generated, counsel failed to retract the citations which were presented without sufficient verification. However, when prompted by this Court, your undersigned readily and immediately took ownership and responsibility of the matter. See e.g. (failing to make a reasonable inquiry under the circumstances admitted by Attorney Pallen).

 

Attorney Pallen failed to verify and independently confirm legal authorities that were later discovered to be inaccurate or fictitious due to lack of oversight, diligence, and professionalism. Once it became clear that the citations were fictitious and/or materially inaccurate, Attorney Pallen made no effort to correct the false statement(s) until prompted by this Court.

Counsel understands that attorneys practicing before this Court have a nondelegable responsibility to ensure that all representations—factual and legal— are accurate, sourced, and made with integrity. In this instance, Attorney Pallen failed to verify certain citations that were included in a draft prepared by his client.

Candor means more than just not lying. It also means not saying things "that are literally true but actually misleading." And it means steering clear of "half-truths, inconsistencies, mischaracterizations, exaggerations, omissions, evasions, and failures to correct known misimpressions created by [the lawyers'] own conduct."

While Counsel did not knowingly or intentionally present false authority, the authority was presented negligently which created the risk of misleading the Court. Counsel takes that risk seriously and deeply regrets the lapse in oversight. Counsel especially regrets his failure to file a retraction once he reasonably suspected the

 

inaccuracy. Undersigned counsel recognizes the Court's justified concerns and fully accepts the consequences that will follow from failing to meet this standard.

MINIMIZATION OF THE INNACURATE SUMMARIES.

Again, undersigned counsel does not contend otherwise - the authority supplied was not vetted, read or researched. Yet, undersigned counsel represented to the Court that the inaccurate summaries were either "immaterial misstatements" or "tangential details" in the Reply Brief.

Counsel now recognizes that his prior characterization of those summaries as immaterial or tangential was misguided. While the constitutional issues were the focus of the appeal, counsel acknowledges that any misstatement—regardless of its weight in the broader argument—warrants forthright correction.

The Appellee's Brief roundly dispensed with the Federal Register citations ad seriatim which had been supplied in the Opening Brief. The Appellee's advocacy, however, does not change that fact that the problematic authority was not properly researched and was described in language that, in retrospect, understated its deficiencies.

The only explanation that Counsel has for minimization is: the constitutional issues in the case were the prime mover on appeal for the Court's consideration. The arbitrary and capricious standard arguments made were the least persuasive aspect of the appeal. If the Court were to have granted relief on the basis of the constitutional issues, the third argument would never have been reached.

FAILURE TO CORRECT MISSTATEMENTS.

The standard set forth in Fusari v. Steinberg, requires that counsel advise the court of developments that may conceivably affect the outcome of a case. "Some Courts seem to have narrowed the duty of candor to require an element of materiality. Those courts have invoked the duty when counsel has failed to inform the court (or belatedly informed the court) of a development that could have a material effect on the outcome of the litigation.

As this Court is aware, counsel did not correct the misstatements prior to May 15, 2025, when there was an opportunity to have done so. Even if DEA Counsel dispensed fully with the mis-cites in Appellee Brief, this was not sufficient reason alone to avoid a retraction. Counsel regrets that this opportunity for retraction came and went; but points to the Court that, at no point after May 15, 2025, did Counsel ever continue to "press on" or suggest that the authority was genuine. Cf. Mata v. Avianca, Inc. (S.D.N.Y. 2023) (individual attorneys were

sanctioned $5,000 each as per Fed. R. Civ. P. 11(b)(2) where they submitted non- existent judicial opinions with fake quotes and citations created by an artificial intelligence tool, then continued to stand by the fake opinions after judicial orders called their existence into question). In contrast, undersigned counsel did not persist in reliance on the problematic authority once its accuracy was questioned by the Court, and has fully cooperated at every stage of this proceeding.

FAILURE TO SELF DISCLOSE PRIOR TO MAY 15, 2025.

Counsel did not correct the misstatements prior to May 15, 2025, when there was an opportunity to have done so. Counsel filed a Reply Brief on February 06, 2025, where he minimized the mis-cites and still had failed even then to properly vet and research the material provided to the Court.

Shortly after the Reply Brief was filed, counsel questioned the client about the content's origin and grew increasingly concerned that AI may have been involved. Although the client maintained that the citations were real, counsel's independent search—including one clearly nonexistent case—deepened his concerns. In hindsight, counsel recognizes that a prompt corrective filing should have been made regardless of that uncertainty.

Attorney Pallen had an opportunity from mid-February to mid-May, 2025 to issue a correction or retraction but did neither. Counsel acknowledges that DEA's Brief highlighted the deficiencies, but this was not a substitute for an affirmative retraction. The Appellee Brief made clear that the authority provided was inaccurate. During that span of time, counsel looked for the one case that did not exist.

 

Meanwhile his client assured him it was an existent case. After that fruitless search and before May 15, 2025, it should have been apparent to undersigned counsel that a written retraction was necessary.

REMEDIAL MEASURES AND ASSURANCE TO THE COURT.

Undersigned counsel has taken this experience as a sobering professional inflection point. This experience has been professionally humbling and has prompted immediate and lasting reforms to Counsel's practice.

Changes have been required to eliminate the possibility of a future scenario where counsel simply accepts draft material as valid. Accordingly, Counsel has now implemented strict protocols requiring full-source validation of every case citation used in any filing, regardless of origin. Every single written submission to this Court or any other will be cross-checked for citations on Lexis-Nexis (counsel's in-house research platform). Any client-prepared, draft material will now be confined to factual chronology or personal narrative only subject to a signed client verification. This means that all legal assertions will be independently sourced and confirmed. Counsel humbly assures the Court that this lapse—while serious and regrettable— will not be repeated here or in any other court or jurisdiction where undersigned practices.

Counsel respectfully requests that the Court consider his prompt response, candor in responding, and remedial actions in determining whether sanctions are necessary. If so, Counsel requests that they may be limited in scope to reaffirm the importance of diligence without impairing his ongoing ability to serve clients and the public.

Counsel is deeply grateful for the Court's attention to this matter and remains committed to honoring the ethical and professional standards required of all attorneys who appear before it. Counsel remains committed to ensuring that this Court and all others can place full confidence in the accuracy and integrity of every filing submitted under his name.

APPLICATION REQUESTING TO APPEAR IN PERSON.

The Order to Show Cause dated July 21, 2025 permits undersigned counsel to file an application requesting to appear before the panel in person. Counsel desires to appear in person and will file the appropriate application by way of separate filing and docket entry….

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[Eugene Volokh] Chief Judge Boasberg on Politico's Request for Grand Jury Records Related to FBI Director Kash Patel's 2023 Appearance

A short excerpt from yesterday's longish decision by Chief Judge James Boasberg (D.D.C.) in In re Application of Politico LLC for Access to Judicial Records Ancillary to Certain Grand Jury Proceedings Concerning Kashyap Patel:

In 2023, a grand jury in this district indicted then-former President Donald J. Trump and an associate for mishandling classified documents and impeding the ensuing investigation. In the course of its investigation leading up to the indictment, the grand jury subpoenaed Kashyap Patel, who now serves as Director of the Federal Bureau of Investigation. As both the Government and Patel himself later revealed, he resisted the subpoena before this Court's predecessor ordered him to testify—which he eventually did under a grant of immunity.

Earlier this year, the news organization Politico filed an Application seeking access to the court records generated by Patel's unsuccessful efforts to contest the subpoena. The Government subsequently released redacted versions of these records, but Politico now seeks further unsealing. Contrary to Politico's contentions, the Government has correctly articulated the categories of information related to Patel's testimony that can—and cannot—be disclosed. Even by those terms, however, the Government's proposed redactions appear to the Court to be overbroad. It will therefore order the Government to propose a new set of redactions that map onto the categories it acknowledges can be divulged or justify why the existing redactions are appropriately narrow….

In general, "the grand jury context presents an unusual setting where privacy and secrecy are the norm." Witnesses "enter the grand jury room alone …. No judge presides and none is present." Access to grand-jury materials turns on Federal Rule of Criminal Procedure 6(e)(2), which dictates that "[o]ther than witnesses, each person present … is forbidden from disclosing 'matters occurring before the grand jury.'" This arrangement "safeguards vital interests," including "(1) preserving the willingness and candor of witnesses called before the grand jury; (2) not alerting the target of an investigation who might otherwise flee or interfere with the grand jury; and (3) preserving the rights of a suspect who might later be exonerated."

Through Federal Rule of Criminal Procedure 6(e), Congress "codifie[d] the traditional rule of grand jury secrecy." In this Circuit, a court lacks any "inherent," freestanding "authority" to release matters occurring before the grand jury beyond what Rule 6(e) permits….

The grand jury's business occasionally calls for "judicial proceedings relating to," but "at arm's length" from, the grand jury itself, including to resolve a witness's "motion to … quash [a] subpoena." Records of such proceedings ancillary to the grand jury's work are not themselves subject to grand-jury secrecy but are instead governed by Rule 6(e)(6), which requires that "[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury." Although Rule 6(e)(6) displaces any First Amendment or common-law right of access to documents in ancillary proceedings, the Rule allows for their release once sealing them is no longer "necessary" to protect grand-jury secrets.

In assessing the extent of such necessity, the Circuit has explained that Rule 6(e)(6)'s protection of "a matter occurring before a grand jury" encompasses "not only what has occurred and what is occurring, but also what is likely to occur" before that body. The Rule therefore protects information in ancillary documents that reveals "'the identities of witnesses or jurors, the substance of testimony' as well as actual transcripts, 'the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'"Although Rule 6(e)(6) protection "does not create a type of secrecy which is waived" as soon as "public disclosure occurs," once "information is sufficiently widely known[,] … it has lost its character as Rule 6(e) material." The Rule's secrecy requirements therefore yield only "when there is no secrecy left to protect." …

This Court's Local Criminal Rules set out a mechanism for releasing documents in ancillary proceedings. Rule 6.1 provides that "[p]apers, orders and transcripts of hearings" in proceedings ancillary to the grand jury "or portions thereof[ ] may be made public by the Court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury." …

[T]he Government has already disclosed redacted versions of the opinions and orders concerning Patel's efforts to contest the grand-jury subpoena issued to him. Politico nonetheless presses two points. First, it argues that the redactions exceed what is necessary to protect grand-jury secrecy under Rule 6(e) because disclosures here should not be limited—as the Government maintains—to what has already been revealed by the Special Counsel or by Patel in his congressional testimony. Second, the news organization contends that, in any event, it has a standalone First Amendment right to access those documents that supersedes any secrecy strictures imposed by Rule 6(e).

The Court disagrees on both scores and concludes that the Government is correct that the scope of releases here must hew only to what has already been publicly disclosed by the Special Counsel and by Patel. The Court finds, however, that those redactions appear to be overbroad in certain places. It will therefore order the Government to submit a new set of proposed redactions consistent with this Opinion or explain why it believes that the current redactions are still somehow justified.

In the sections below, the Court first addresses to what degree any issues relating to Patel's grand-jury testimony have been disclosed such that they lose their secrecy protection. It then turns to whether the Government's redactions are sufficiently narrow….

Read the full decision for more details.

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[David Bernstein] Hamas Depravity Feeds Antizionist Intellectual Depravity

[For those of a certain ideological bent, Hamas atrocities show just how evil *Israel* is.]

A couple of weeks ago, I attended the traveling Nova exhibit in DC, memorializing the torture, rape, murders and kidnappings of hundreds of peaceful young Israelis by Hamas terrorists at the Nova music festival on October 7, 2023. The exhibit brought back the emotions I felt in July 2024, visiting the site of Nova, Kibbutz Nir Oz, and other sites where Hamas gleefully committed the worst imaginable atrocities against any civilians they encountered: Hamas, like the Nazis, represents a sort of depraved evil that is almost impossible to fathom.

Yesterday, I had a long thread on X explaining why the antizionist ideology of people like Peter Beinart inevitably leads them to support genocidal policies toward Israeli Jews. I noted that Beinart had a brief period of soul-searching immediately after 10/7, and then went back to business as usual.

Shany Mor then pointed out that Beinart and others similarly-situated ended their brief period of soul-searching when Israel was alleged to have killed five hundred civilians in a direct attack on a hospital in Gaza. It turned out that the alleged attack never happened; rather, an Islamic Jihad missile aimed at Israel fell short, hit the hospital parking lot, and killed or wounded several dozen people. All the details implicating Israel were fabricated. Nevertheless, the initial attack provided Beinart et al. with an opportunity for a Two Minute Hate, and thereafter they snapped out of their October 7 funk and resumed their prior role as Hamas apologists and Israel-haters.

Shany then reminded me of a post he had written before the hospital-massacre-that-never-happened: "In the suicide bombing years it was precisely at the moment of a Palestinian atrocity that the rhetorical demonization of Israel would escalate. It's transparent cognitive dissonance reduction: if Palestinians just did THAT to them, then the Israelis must be even more evil."

So let's roll with that. Hamas has been a remarkably evil, depraved terrorist group at least since the 1990s, when it blew up school buses and the like to undermine the Oslo Accords and present itself to the Palestinian public as a "resistance" alternative to Fatah. But even with that as background, even five minutes of reading about or watching videos from the 10/7 atrocities, proudly filmed by Hamas terrorists themselves, gives you a window into a level of depraved evil that is hard to fathom.

As a rule, even the Nazis didn't proudly film themselves committing atrocities against children, but instead generally tried to cover it up. The natural reaction of normies to such depravity is to conclude that Hamas is, like the Nazis, an evil that must simply be eradicated. There is no possibility of it reforming, of living alongside it, of excusing it, or of justifying it.

That's normies. But if you are of a particular ideological bent, you assume the people you designate "brown" (regardless of actual hue) and "colonized" are inherently innocent. But since you reasonably can't deny Hamas's crimes (especially since they themselves filmed and uploaded them), you have to explain them. And since Hamas's terrorists' are inherently the good guys, being brown and all, the only explanation was that they were driven to madness by their oppression, by Israel. It *has* to be Israel--the putative "white" "colonizer" that's at fault, so it has to be that.

Islamist ideology? Antisemitism? Constant dehumanization of Jews in Hamas media and education? Feh! It can't be that, that would make it Hamas's fault.

So, in an amazingly daft intellectual slight of hand, Hamas's atrocities don't show how evil Hamas is, they show how evil Israel is. This is why you then must tear down posters of hostages, lest they create cognitive dissonance by portraying Israelis as victims.

And this is why they not only believe Hamas's lies and exaggerations of about Israeli conduct of the war, they actually emotionally *want* Israel to be massacring and starving Palestinians, because this then confirms their view that the entire thing, including Hamas's atrocities on 10/7, is Israel's fault.

Hamas is shrewd enough to understand this dynamic, and affirmatively welcomes civilian casualties, because it plays into the narrative that the "antizionists" want to believe, indeed must believe to sustain their ideology.

If you think this is implausible, consider the intellectual knots that Stalinists in the West from the 1930s to the 1950s (and sometimes beyond) tied themselves into, to excuse or justify Stalin's crimes. The leftist antizionists today are their intellectual, and not uncommonly literal genetic, descendants.

[Cross-posted at the Times of Israel]

UPDATE: For related thoughts, see this post by Andrew Fox, The Gaza War and the West's Reckoning:

The erosion of moral clarity within Western institutions, as revealed by the Gaza war, is deeply rooted in the intellectual decline caused by postmodern thinking. At the core of this crisis is a shift from objective truth to subjective ideology, where facts become subordinate to feelings, and moral judgment is replaced by a hierarchy of perceived victimhood.

As they say, read the whole thing.

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[Josh Blackman] The Heritage Foundation Is Hiring A Legal Fellow And A Senior Legal Fellow

I am happy to pass along these announcements from my friends at the Heritage Foundation:

Legal Fellow job description and link to apply here: Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies - The Heritage Foundation - Career Page

Job Summary:  The Legal Fellow is responsible for establishing a national reputation in law and judicial studies, conducting original legal research and analysis to advance Heritage's priorities, and providing counsel to Heritage staff, policymakers, and the legal community. The Legal Fellow engages with the highest degree of professionalism in independent research, publication, education programs, and other work concerning a broad array of issues. The Legal Fellow is also responsible for participating in Heritage's legal conferences and events and responding to media and other inquiries. The Legal Fellow should have deep knowledge, experience, or scholarship in the following areas of law and legal policy:

Constitutional law, particularly structural constitutionalism, including separation of powers and federalism principles.Administrative law, including a strong background on separation of powers, the non-delegation and major questions doctrines, various deference doctrines, the Administrative Procedure Act, related substantive areas of law, and efforts to reform or curb the administrative state and misuses of emergency powers.

Job Duties:

Research and write original and high-quality papers, opinion pieces, legal memoranda, and law review articles.Research state legislation and provide monthly updates on key developments in legislative initiatives and court cases at both the federal and state levels pertaining to election integrity.Represent Heritage in many settings within and outside Heritage, including public functions, professional conferences, in the media, and at legislative hearings and meetings.Work with others across Heritage, Heritage Action, other organizations, news media, and, as appropriate, Federal, State, local, and foreign officials, to achieve Heritage objectives.Draft, prepare, and provide congressional testimony.Organize and participate in meetings and events to promote Meese Center research and projects.Supervise researchers and interns regarding legal research and other projects as needed and at the direction of the Director.

Qualifications:
Education:                  J.D. required
Experience:                Six of more years' experience in a policy or legal field; a judicial clerkship is preferred
Communication:     Outstanding written and oral communication skills

 

Senior Legal Fellow job description and link to apply here: Senior Legal Fellow, Edwin III Meese Center for Legal and Judicial Studies - The Heritage Foundation - Career Page

 

Job Summary: The Senior Legal Fellow (SLF) is responsible for establishing a national reputation in law and judicial studies, conducting original legal research and analysis to advance Heritage's priorities, and providing leadership and counsel to Heritage staff, policymakers, and the legal community. A recognized expert, the SLF will lead by producing unique authoritative work with minimal supervision, building coalitions across political and ideological spectrums, and acting as a public spokesperson through nationally televised media appearances, radio and print interviews, public speeches and debates, and legislative testimony. The SLF should have extensive knowledge, experience, or scholarship in two, and preferably all, of the following areas of law and legal policy:

Constitutional law, particularly structural constitutionalism including separation of powers and federalism principles, and issues surrounding D.C Statehood, and Originalism.Criminal law, including a strong background in all areas of the U.S. criminal justice system and efforts to adopt reforms, as well as highlighting the "rogue prosecutor" movement and how it contributes to rising crime rates.Civil rights law, including a firm understanding of the importance of the even-handed application of laws, the unconstitutionality of racial preferences, and the harms of Critical Race Theory and Diversity, Equity, and Inclusion initiatives and the policies that promote them.First Amendment, including significant familiarity with current legal challenges and policy debates in the area of free speech.Election Integrity, including familiarity with the legal framework for the conduct of elections and redistricting, as well as the arguments in support of robust election integrity measures.Administrative law, including significant familiarity with the regulatory process and rule-making, structural constitutional flaws with federal agencies, delegation debates, the role of federal guidance, etc.

Job Duties:

Conduct advanced and scholarly legal research.Research and write original and high-quality papers, opinion pieces, legal memoranda, law review articles, and books.Build the relationships and conduct the thought leadership necessary to have Heritage's policy prescriptions implemented by Congress and state legislatures, administrative agencies, and rules and standards organizations.Speak authoritatively at major public functions and at professional conferences within area(s) of law.Testify regularly before Congress and important commissions, agencies, etc.Develop and maintain high-profile media contacts and visibility and a leadership position in the legal and public policy community.Advise management on programs and legal policy which help maintain Heritage's leadership position on priority issues.Manage projects as assigned by senior management and the director.Within an approved budget, be able to responsibly commit resources.

Qualifications:
Education:                  J.D. required
Experience:                Ten or more years of legal experience (depending on the type of experience) in private practice, teaching, and/or government service; extensive scholarly publications or other public legal writing (such as appellate briefs or legal opinions); a judicial clerkship is preferred.
Communication:      Excellent public speaker and writer; able to persuade and change minds, both internally and with target audiences.

Achievement:      Demonstrated ability to achieve decisive changes in the law and public policy

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] #TheyLied Lawsuits Alleging False Title IX Complaints: Defamation and Malicious Prosecution

["Malicious prosecution," which covers the bringing of civil and administrative quasi-judicial complaints and not just criminal complaints, becomes especially relevant given a recent Colorado Supreme Court decision limiting defamation claims.]

Say Devon goes to some government body and accuses Pat of committing a crime: maybe rape, or theft, or fraud, or whatever else. Pat wants to sue Devon, claiming these allegations are factually false.

It turns out there are two possible tort theories for Pat to use, each with its own constraints. The most well-known is defamation, the theory being that Devon said something about Pat that was false.

But the other is "malicious prosecution," the theory being that Devon brought about a government action against Pat, based on something false. Confusingly, the term extends both to bringing about criminal proceedings (what we normally view as "prosecution") and bringing about civil proceedings. (Sometimes, the latter is called wrongful use of civil proceedings or some such, but often it's just called malicious prosecution.)

In some ways, malicious prosecution claims are harder to bring. But in another important way, they are available even when defamation claims aren't. That's becoming potentially quite important for lawsuits that stem from Title IX proceedings, as we'll see below.

Defamation: To begin with, defamation generally consists of (to oversimplify)

making a false statement of fact,that one knew or should have known was false,that isn't privileged,and that tends to cause reputational harm.

To give a classic example, say Devon publicly accuses Pat of a crime and Pat sues for defamation. If Pat can prove the statement is knowingly or negligently false, then Pat would generally be able to prevail.

But say that Devon brought the accusation not in public, but to the police, to a prosecutor, to a court, or to an administrative agency. That sort of accusation may well be privileged, and thus potentially protected from defamation liability. Such privileges comes in two varieties:

qualified privilege, which protects Devon from liability from honest mistakes (even unreasonable mistakes) but not deliberate lies, andabsolute privilege, which protects Devon from all liability, even if Pat can persuade a jury that Devon deliberately lied.

Which sort of privilege depends on the context, and on the jurisdiction. In particular,

If Devon made the initial allegations as a litigant, in a complaint filed in court or before an administrative agency, those allegations would be absolutely privileged from defamation liability.If Devon made the initial allegations by a statement to the police or prosecutors or civil enforcers, most states would view those allegations as covered by qualified privilege but some states would view them as covered by absolute privilege.

Malicious prosecution: Yet even when a defamation claim is unavailable because of absolute privilege, Pat can still sue Devon for "malicious prosecution." To oversimplify somewhat, Pat can prevail in a malicious prosecution claim if Pat can show that

Devon's allegations brought about a legal action (criminal, civil, or administrative) against Pat,that action terminated in Pat's favor (whether through a verdict, a judicial dismissal of the original action, or the prosecutor's or plaintiff's dropping the original action), andDevon's allegations lacked probable cause, and were actuated by "malice."

In practice, element 3 is generally satisfied if Devon knew the factual allegations were false; this is the scenario on which we'll focus in this discussion.

Elements 1 and 2 are extra requirements for Pat beyond what's required in a defamation claim. But, unlike with defamation, malicious prosecution may be available even when a defamation claim is blocked by absolute privilege. As you might gather, the law is trying to reconcile two concerns here:

On one hand, we don't want to unduly deter people in Devon's shoes from making such allegations. Many allegations of crime are, after all, true; we want to encourage people with knowledge of crime—or even suspicions of crime—to bring those allegations forward. And it might not be enough for the law to simply say "you're fine if you make correct allegations, but you're liable if you make incorrect ones": Reasonable people may be deterred even from making correct allegations by the fear that a jury will conclude that the allegations were actually false.On the other hand, we want the legal system to give Pat a remedy if the allegations are indeed false. Allegations of crime are especially damaging to reputation. And we want to deter false allegations of crime, like we want to deter other defamation.

Thus, for instance, the California Supreme Court has recognized an absolute privilege in defamation cases involving complaints to police or prosecutors:

We have explained that the absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to "'assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.'"

But the court continued to allow a malicious prosecution theory in such cases; to quote an earlier precedent on which it relied,

Malicious prosecution actions are permitted because "[t]he policy of encouraging free access to the courts … is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied."

Title IX complaints, defamation: Now say that Devon accuses Pat of sexual misconduct, in a Title IX proceeding at a public university. Pat claims this accusation was false, and sues Devon for defamation.

In pretty much all jurisdictions, Devon will be immune from liability for an honest complaint, even if it turns out Devon was wrong (and even if Devon was acting unreasonably). But say that Pat claims that Devon was outright lying. Here too the question would be whether there's only a qualified privilege against defamation liability (i.e., only for honest mistakes) or an absolute privilege (i.e., covering even allegedly knowing falsehoods).

In 2023, the Connecticut Supreme Court held (Khan v. Yale Univ. (2023)) that statements made by accusers in Title IX proceedings are protected only by qualified privilege. Statements made by witnesses in "quasi-judicial" proceedings, the court concluded, would be absolutely privileged, but Title IX proceedings didn't count as quasi-judicial proceedings:

A proceeding is quasi-judicial for the purpose of affording its participants absolute immunity when the proceeding is specifically authorized by law, the entity conducting the proceeding applies law to fact in an adjudicatory manner, the proceeding contains adequate procedural safeguards, and there is a public policy justification for encouraging absolute immunity for proceeding participants…. The disciplinary proceeding at issue was not quasi-judicial for the purpose of affording absolute immunity to D's statements because it lacked sufficient procedural safeguards necessary to ensure the reliability of the information presented: …

D did not testify under oath or certify to the truth of her statements, she could not have been disciplined for failing to testify truthfully because she had graduated from Yale before the hearing, and those shortcomings undermined the reliability of D's statements in view of how fundamental the oath requirement is to the reliability of the information presented.

The committee's procedures, which vested the hearing panel with discretion to ask the questions submitted by the plaintiff, did not afford the plaintiff or his counsel a meaningful opportunity to cross-examine or otherwise to confront D in real time …. Likewise, the committee's procedures did not afford the parties a reasonable opportunity to call witnesses …. Moreover, … [plaintiff's] counsel was effectively rendered irrelevant ….

On the other hand, last month, the Colorado Supreme Court held (in Hushen v. Gonzales) that such a proceeding was indeed "quasi-judicial" and thus subject to absolute privilege in a defamation case brought based on testimony in the proceeding:

Because this proceeding involved consideration of the rights and obligations of a specific individual through the application of preexisting policies to present and past facts, the proceeding was quasi-judicial [even though] {it looked very little like a judicial process held in a court system}. That is the end of our quasi-judicial inquiry. Therefore, any statements made during the District's Title IX proceeding are protected by absolute privilege and cannot be used as the basis for a civil lawsuit against the participant who made those statements….

Title IX complaints, malicious prosecution: Yet as with the question of complaints to police and prosecutors, and of civil court filings, this immunity from defamation liability for statements within the proceeding may be a separate matter from malicious prosecution liability for initiating the proceeding by bringing the Title IX complaint in the first place. Consider, by analogy, Wolf v. Brenneman (Colo. App. 2024):

We hold that all witnesses who testify before a grand jury, including complaining witnesses, enjoy absolute immunity from civil liability based on that testimony. Consequently, the district court properly dismissed Wolf's claims to the extent they are based on testimony Brenneman and Selby gave to the grand jury….

[But it was error for the court to have] also granted absolute immunity to [the same defendants] for statements they made to the DA in reporting Wolf's alleged criminal activity. "Immunity regarding testimony , however, does not 'relate backwards' to events that transpired prior to testifying, even if they are related to subsequent testimony." … If the rule were otherwise, little, if anything, would be left of a tort like malicious prosecution.

Malicious prosecution claims are indeed available not just as to complaints to the police or to courts, but also as to complaints prompting an "administrative proceeding" that is "quasi-judicial in nature" (as the Colorado Supreme Court just held that Title IX proceedings were). And if a court in another state concludes that Title IX proceedings aren't quasi-judicial enough to count for malicious prosecution purposes, then presumably the court will conclude that they aren't quasi-judicial enough to yield an absolute privilege in defamation cases, so a defamation claim would be available even if a malicious prosecution claim isn't.

To be sure, the Colorado Supreme Court's Hushen decision spoke in broad terms about absolute privilege:

Absolute privilege allows individuals to participate in fact-finding processes—like Title IX investigations, attorney regulation proceedings, or employee discipline proceedings—without fear that their participation will serve as the basis for lawsuits against them. See Stepanek, 940 P.2d at 368 ("The purpose behind a grant of absolute immunity is to preserve the independent decision-making and truthfulness of critical judicial participants without subjecting them to the fear and apprehension that may result from a threat of personal liability." (emphases added)). The underlying defamation and intentional infliction of emotional distress claims subject Ashley and Alexandra to the threat of civil tort liability in a way that could discourage victimized students from reporting harassment out of fear that they, too, would be subject to personal tort liability. The possibility that a student who reported harassment or even an assault might then face civil tort litigation—and possibly liability—for statements made during the reporting procedure is very likely to deter use of that reporting system.

This might be read broadly, as precluding even malicious prosecution liability, since the risk of malicious prosecution liability could deter reporting as well as the risk of defamation liability. But Hushen didn't even mention malicious prosecution, presumably because no such claim was brought in that case. And as cases such as Wolf (a Colorado case) and the California case cited above show, absolute immunity in defamation cases generally does not extend to malicious prosecution cases.

In any event, the malicious prosecution theory is likely at least potentially available in these sorts of scenarios, and it will be interesting to see whether such Title IX plaintiffs will indeed start bringing malicious prosecution claims.

Title IX and private institutions: Finally, when the Title IX proceeding is within a private school, there would be no malicious prosecution claim, I think, since malicious prosecutions claims generally require the bringing about of governmental actions (whether criminal, civil, or administrative). But at the same time, I think there would be the possibility of defamation liability, even under Colorado law, because the Hushen absolute privilege for "quasi-judicial proceedings" seemed to extend just to "governmental decision[s]." (A qualified privilege would still be available, under the logic of Khan.)

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[David Bernstein] The Worst Libertarian Argument for Large-Scale Immigration to the US

[If immigration reduces social trust, that's a bad thing, even if it leads to smaller government. ]

Some opponents of liberal immigration fear that immigrants will cause the US to have a bigger welfare state. This would occur because the immigrants would be more likely to be on government assistance, would bring political attitudes from less libertarian societies, or both.

Libertarian proponents of immigration have several responses to this fear. One such response is that large immigrant populations tend to reduce the size of the welfare state. Immigrants, after all, are different in a variety of ways--appearance, culture, religion, etc-- from the native-born. Given natural in-group preferences, the native-born therefore tend to be suspicious of newcomers.

This suspicion manifests itself as a decline in social trust. A lack of social trust, in turn, makes people less likely to want to vote for big spending programs as a matter of social solidarity. In other words, you are less likely to vote in line with social solidarity if there is less social solidarity, and immigration leads to less social solidarity.

To my mind, this is a terrible argument. There was a time when I was younger and more of a single-minded libertarian that it likely would have appealed to me; anything that reduces the size of the state, I would have thought, is a good thing.

But now I'm older, not necessarily wiser, but perhaps a bit more conservative in a non-ideological sense. I'm also less enamored of "libertarianism uber alles" and more of a milquetoast classical liberal and concerned with living in a good society, not just one that has less government.

In a good society, people have social trust that manifests itself in behavior. They volunteer, they help their neighbors, they care about their communities. And if they think big government is a manifestation of social trust/solidarity, they will vote for big government.

I think big government tends to be corrosive of community and pits people who might otherwise get along against each other in a scramble for political rents. I also think that many government programs are wasteful and often counter-productive, and I'm sympathetic to the notion that they often are rights-violative as well.

I wish I could persuade my fellow citizens that this were true; that live and let live, voluntary and charitable associations, and so on, are the true mark of social cohesion and caring about your neighbor. But if I and others can't, I'd rather live in a society where there is a strong degree of social solidarity and a large government than in a society where people oppose government programs out of nativisim, suspicion, and hostility to their neighbors. So if mass immigration actually reduces social trust, that's a mark against, not for, mass immigration, even if it also reduces the size and scope of government.

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[Eugene Volokh] "Protecting Reputation Is Not Enough to Overcome Public Access" to Court Records

[A lawyer tried to seal a copy of an earlier judge's order that had made certain claims about the lawyer.]

From the July 11 decision in Lask v. Fallon, by Magistrate Judge James Wicks (E.D.N.Y.):

Following resolution of this case, Plaintiff now seeks to seal a docket entry of an otherwise public record—a court decision issued by the Hon. Loretta Preska in an unrelated case that was filed in this case in support of an earlier motion to dismiss…. [T]his is [the third] attempt to remove or seal this document from the court record…. And in this case, three times is not a charm and must be denied (again).

In this latest motion, Plaintiff moved for the identical relief that was before the Hon. Judge Rachel P. Kovner, which was denied. In relevant part, Judge Kovner wrote:

The challenged order, submitted as an exhibit in support of defendant Fallon's motion to dismiss, easily qualifies as a judicial document…. '[T]he general and deeply rooted rule is that the presumptive right of access is afforded strong weight when applied to documents that play a central role in determining litigants' substantive rights—conduct at the heart of Article III.' … And … to the extent plaintiff asserts a privacy interest, '[t]he fact that a document has been publicly available weighs against restricting public access to it.'

But that's not all. That first application to seal was filed only after Judge Kovner denied Plaintiff's motion to strike the document from the docket. Since those two rulings, only two circumstances changed, namely, the parties consented to the undersigned [Magistrate Judge] for all purposes … and the case settled. Plaintiff argues now that the case is resolved and that the documents requested to be sealed are "not part of the adjudicative process in this case" and so, the motion to seal should now be granted. For the reasons that follow, Plaintiff's Motion to Seal is DENIED….

"A judicial document is not simply a document filed with the court, but one that is 'relevant to the performance of the judicial function and useful in the judicial process.'" … Generally, motions to dismiss have been deemed a judicial document…. Here, Plaintiff seeks to seal an exhibit to Defendants['] … Motion to Dismiss and redact paragraph 21 of Defendants' Declaration in Support of the Motion to Dismiss. Thus, these documents submitted in connection with their Motion to Dismiss, clearly [are judicial documents]. {"Because a Motion to Dismiss is potentially dispositive of a party's claims, a strong presumption of public access attaches to these documents."} …

[W]ithdrawal of a motion {does not} change the nature of the original document(s) filed…. Indeed, if a case settles or otherwise is resolved prior to a Court's ruling on the merits of the motion, the condition of the filings remains that of a "judicial record." See Bernstein v. Bernstein Litowitz Berger & Grossmann (2d Cir. 2016)….

Plaintiff … discusses the reputational harm that will occur if this motion is denied. Notably, Courts have held that protecting reputation is not enough to overcome public access.

Finally, "once '[t]he genie is out of the bottle,' the Court does 'not [have] the means to put the genie back.'" As previously noted, these documents were filed on November 12, 2024. Failure to take prompt action in requesting that public documents be sealed may, alone, be a justifiable reason to deny a motion to seal. This is Plaintiff's second request to move to seal the same documents. The first request came three months after the filing and now, this request nearly eight months later.

Accordingly, Plaintiff has not overcome the presumption of public access, and the Motion to Seal is denied.

Looking at Judge Rachel Kovner's earlier decision, which this decision refers back to, plaintiff seemed to be trying to seal a copy of this order by Judge Loretta Preska, which also seems to be excerpted in Magistrate Judge Robert Lehrburger's decision last week in Rhee-Karn v. Lask (S.D.N.Y.) (a malpractice case against Ms. Lask):

Lask's stalking of Judge Preska, on the other hand, has ample support in the record. In an order dated August 1, 2019, Judge Preska described Lask's shocking behavior directed at a federal judge, her family, and her judicial clerks:

[I]n the Court's view, Ms. Lask has stalked the Court and chambers staff. She has alleged that she has been "informed that [the Court's] husband owned stock in [a] company" that Ms. Lask sued 17 years ago. Ms. Lask also purports to have investigated chambers IP addresses and monitored certain sites visited. Because of these actions, the matter has been referred to the United States Marshal.

Ms. Lask has telegraphed additional delay and aggravation—she has threatened to seek "a hearing with" … two former law clerks of the Court (neither of whom has the remotest possible connection to any fact in the underlying action). Ms. Lask purports to have called them after she had an interchange with the Court that she deemed unsatisfactory. (Ms. Lask does not explain how she just happened to contact one of the Court's former law clerks immediately after the call.) She also purports to have recorded one or both of her calls to [the former law clerks]—possibly an illegal and/or unethical act for a lawyer.

Due to the referral of the matter to the United States Marshal, Judge Preska recused herself from the matter. Although Lask's outrageous conduct was unquestionably effectuated in bad faith and without legal color, Rhee-Karn has not demonstrated that she is entitled to attorney's fees or costs under either § 1927 or the Court's inherent authority.

Here's Ms. Lask's response to the July 11 decision rejecting her motion to seal:

I respectfully submit this letter to preserve my objection to the Court's July 11, 2025 Order (ECF 81) denying a motion to seal Defendant Fallon's filing, which he has since withdrawn and disavowed. I understand from the decision that the Court does not wish to entertain further briefing on this issue. For clarity, this letter does not seek reconsideration and should not be converted to such. It is submitted solely to preserve the record for appeal. SerVaas Inc. v. Mills, 661 F. App'x 7, 9 (2d Cir. 2016). Please note that I appreciate that while denying the motion to seal, Your Honor exercised commendable restraint by declining to recite, quote, or describe the contents of the prejudicial document.

As the Court may recall, the June 25, 2025 conference was held for me and Mr. Fallon to inform that a joint motion to seal his filing was sought. Your Honor acknowledged that Judge Kovner previously ruled on a related request. I responded that new facts exist, Fallon joined in the motion to seal and Your Honor informed to file the motion and to note that Fallon did not oppose it.

I respectfully object to the Order's characterization of the motion as a reconsideration. It was based on materially new facts not before Judge Kovner, including post-Kovner facts of Fallon's deposition testimony that a third party encouraged the filing unrelated to this case, Fallon withdrew the motion he attached the document at issue to before any consideration, and he expressly agreed in his letter on the docket that the document was immaterial and joined in the sealing - supporting the document is not part of the adjudicative process and fails the first prong of Lu[g]osch. Further, I believe the Order misapplied controlling precedent under Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) and Nixon v. Warner Commc'ns, 435 U.S. 589 (1978) - both prohibiting court dockets from being used to "gratify private spite or promote public scandal."

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[Stephen E. Sachs] "Yes, The Founders Were Originalists"

[A critical review of a new book on history and originalism.]

Does history defeat originalism? A recent book by Jonathan Gienapp, Against Constitutional Originalism, argues that it does. Will Baude and I have a critical review of the book, forthcoming in the Yale Journal of Law & the Humanities, that's now available on SSRN.

From the abstract:

Jonathan Gienapp's Against Constitutional Originalism accuses originalism of a kind of self-defeat, arguing that the Founders weren't really originalists. But like Jefferson Powell's similar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp's work may only help along a similar shift, this time from original meaning to our original law.

Gienapp makes four main claims: that the Founders' Constitution wasn't conventional law; that the Founders couldn't agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we argue, the first claim is bunk; the second overstated; the third true, but no problem for originalism; and the fourth a theoretical claim that the book's history utterly fails to defend. The Constitution was indeed law, understood as such by its contemporaries, and coexisting with other bodies of law in ways that originalists routinely respect. Far from proving the case against originalism, Against Constitutional Originalism only strengthens the case for originalism, done well.

As they say, read the whole thing!

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