Eugene Volokh's Blog, page 48

[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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[Eugene Volokh] "Plaintiff Simply Wants to Erase Any Evidence That He Initiated a Case," but "Plaintiff Cannot Unring a Bell"

["Furthermore, the Court is not in the business of scouring and removing data from GovInfo.gov, PACERMonitor, CaseText, and Justia" (which is what the Plaintiff had requested).]

From Magistrate Judge Anthony Patti (E.D. Mich.) Report and Recommendation in Lopez v. Chase, just adopted Thursday by Judge Shalina Kumar (quite correctly, I think):

Seven months [after filing this pro se case], Plaintiff filed three successive motions, all aiming to erase his case from the court docket in some fashion…. [A]ll three of Plaintiff's motions seek to seal this case, and order third parties to cease any publication or dissemination thereof. The Court should deny all three motions.

Unlike information merely exchanged between the parties, "[t]he public has a strong interest in obtaining the information contained in the court record." There is a "strong presumption" in favor of open court records. The party seeking to seal records before the court has the burden of overcoming that presumption and "[t]he burden is a heavier one than for a protective order [as]: 'Only the most compelling reasons can justify non-disclosure of judicial records.'" …

Here, Plaintiff does not overcome the strong presumption against sealing records in civil cases. He requests sealing the case "due to concerns about privacy, security, and the potential for misuse of sensitive information." He further states that the risk of harm includes potential for identify theft, fraudulent use of personal details, reputational damage, and "physical security risks if sensitive information is misused." There is simply not enough information provided to meet Plaintiff's burden. This case has been closed for almost a year, and the documents which are apparently of concern to Plaintiff have been in the public record since that time. Moreover, it is Plaintiff himself who filed the documents in the public record, so this is not a situation where Plaintiff is timely objecting to private information being filed by an adversary.

Finally, and most importantly, Plaintiff fails to identify what precisely is private or sensitive in his 227-page, case-initiating document. Even if a party can demonstrate a compelling reason for sealing a document, or portions of a document, "the seal itself must be narrowly tailored to serve that reason." A "brief, perfunctory, and patently inadequate" explanation for the purported need to seal a document will not suffice. It is not the Court's responsibility to comb through his expansive filing to potentially guess at what Plaintiff contends is of concern. It seems to the Court that Plaintiff simply wants to erase any evidence that he initiated a case that was subsequently dismissed. But Plaintiff cannot unring a bell.

A party's fear of embarrassment or harm to reputation, or a fear of a negative impact on future employment, does not provide grounds for sealing a public record. Put succinctly, "a record may not be sealed 'merely because it could lead to a litigant's embarrassment.'" In a case of civil litigation, only information covered by a recognized privilege (attorney-client), information required by statute, and trade secrets are typically found to be enough to overcome the presumption of access. Thus, the Court should deny Plaintiff's requests to seal his court records, and the attendant request to somehow direct third parties to prevent their dissemination, which the Court is likely without authority to order in any event….

Furthermore, the Court is not in the business of scouring and removing data from GovInfo.gov, PACERMonitor, CaseText, and Justia [as the Plaintiff had requested]. When Plaintiff chose to file a lawsuit, he placed himself at risk that the information would be picked up by various legal databases, as courthouses and court records are, with few and narrow exceptions, an inherently public space. As such, "Plaintiff is trying to slam the door of the barn after the horses are long gone." …

The post "Plaintiff Simply Wants to Erase Any Evidence That He Initiated a Case," but "Plaintiff Cannot Unring a Bell" appeared first on Reason.com.

[Josh Blackman] The Three Real Questions That Come After Overruling Employment Division v. Smith

[What is a "religion"? When is a religious belief "sincere"? When is a burden on religion "substantial"?]

Fulton v. City of Philadelphia is about four years old. Yet, the Court seems no closer to deciding whether to overrule Employment Division v. Smith. Of course, three Justices were ready to do so in Fulton. But Justices Barrett and Kavanaugh had some questions about what would replace Smith. I honestly can't even remember what those questions were. And I'm not sure how much they even matter. I think those questions were mostly filler--Barrett and Kavanaugh had to say something because they were unwilling to overrule Smith. If those questions were really so important, there should have been some subsequent writings to address the point. There haven't been. Indeed Mahmoud went out of its way to avoid talking about Smith. I suspect that Barrett and Kavanaugh are content with Tandon, and now Mahmoud, which make it very unlikely that Smith will need to be revisited.

But, a lot of people still care about Smith. Religious liberty groups bring a steady stream of "Overrule Smith" cert petitions. So far, they've been denied. Sooner or later one of these cases may get a fourth vote for cert. And there is some hard work ahead for the Court.

Here, I will sketch three significant questions that would come after overruling Smith. Each of these questions is premised on a completely predictable outcome: once people realize that the Free Exercise Clause allows them to obtain exemptions from neutral laws, they will suddenly discover that their free exercise of religion is being substantially burdened.

To make things simpler, presume that the answers to each of these three questions will require the Court to change pre-existing doctrine. In other words, by overruling Smith, the Court can establish a new test for strict scrutiny. The Court would not simply restore Sherbert v. Verner or adopt the RFRA standard. This test can give the government a bit more leeway. In my view, many--but not all--of these views can be reconciled with existing doctrine. But this presumption will make the thought experiment simpler.

Many of these issues are discussed in my co-authored article on abortion and religious liberty. I think the moment for these sorts of free exercise claims under state RFRAs have largely petered out. The ability to obtain abortion drugs through the mails has made it unnecessary to raise these sorts of time-consuming and difficult free exercise claims.

Here are the three questions.

Question #1 : What is a "religion"?

In Smith, Justice Scalia worried that the Sherbert test allowed every person to become a law unto himself. In other words, a person could gain an exemption from the law by dressing up his political, philosophical, or moral views in the garb of religion. Smith had a religious claim to using a controlled substance, but other people who like to use the same substance may not have the same religious bona fides. For the Free Exercise Clause to be triggered, there has to be religion. What, then, is religion? In most cases, this issue is fairly straightforward. Well-established faiths that have been around for a long time--especially those in existence when the First Amendment was framed--would be religions.

The harder cases would involve new, or recent, faiths. This inquiry blends into the sincerity inquiry. Is this religion an actual religion, established for religious reasons? Or was this religion manufactured for the purpose of gaining exemptions from the law? For example, what if a drug dealer establishes the Church of the Holy Marijuana Leaf, and ordained all of his dealers as ministers?

There is an even harder question lurking under the surface: what about a group that calls itself religious, but rejects all of the traditional indicias of religion. For example, the organization rejects the idea of any higher power, has no rituals, imposes no actual obligations, and so on. Perhaps the organization professes some sort of moral code, but that code has no grounding in anything that traditionally would be understood as religious. If you can tell, I keep using the word tradition. Is there a "history and tradition" approach to deciding what is a religion? Would we consider how the Framers of the First Amendment would have understood a religion? I don't have an answer to these questions here, I am simply raising them.

Question #2: When is a religious belief "sincere"?

It is something of a myth that courts will not probe sincerity. They do. Courts will not determine what the articles of a particular faith are. But they will determine whether a person sincerely adheres to those articles. Historically, these sorts of inquiries are rare. Most people who bring Free Exercise claims in court are presumed sincere. But there are some extreme cases. For example, what happens when a person who is drafted suddenly becomes a Quaker? Or, more commonly, what about prisoners who suddenly discover their Jewish faith as a way to obtain (healthier) Kosher food?

I suppose it is possible to simply measure how long a person has held a particular belief. Or perhaps you can discount a religious belief that was born at a convenient time, such as following the draft or incarceration. But I'm not a fan of these standards. People can find faith during difficult times--there are no atheists in the foxhole, as the saying goes. Why should a person be punished for reaching out to a higher power during difficult times?

In the past, I've written about another way to test sincerity. And this inquiry blurs into the first question about what is a religion. Historically, religions have mandated certain actions, while prohibiting other actions. And a member of that religion should follow at least some of those mandates and prohibitions, because of that religion. Stated differently, is there something you will do because of religion, even if you would otherwise abstain from doing; and is there something you abstain from doing because of religion, even if you would otherwise do it? In my view, if you can identify at least one regular act that fits under either rubric, you have cleared the sincerity threshold. And I say regular to avoid opportunistic claims. You can't simply do something once or for a limited duration. Moreover, if the person stops acting based his beliefs, the exemption should be rescinded.

This bar is not a particularly high. But if a professed religion does not in any way affect how you would otherwise behave, it is more difficult to test whether a religious belief is sincere. In other words, if your religion is merely a facsimile of your personal beliefs, and there is no delta between your religion and your own philosophy, it is harder to establish that there is a religious belief at all--at least a religious exercise that would be cognizable under the Free Exercise Clause.

I freely admit there is a risk with probing sincerity. This sort of inquiry can be weaponized, and exclude worthy claims from protection. That is why I would make the bar very low.

Question #3: When is a burden on religion "substantial"?

In free speech law, the courts will routinely measure the burden on expression. Larger burdens on speech require more more narrow tailoring. But in the context of religion, I'm not sure how much work the word "substantial" plays. Banning a practice seems substantial, but what about making the practice more difficult? What if a state banned ritual Kosher slaughter by requiring that animals must be stunned? This law would certainly make it harder to obtain kosher food, but the food could still be imported from other jurisdictions at a higher cost. Is this burden substantial? Consider anther example. I do not weak a yarmulka in public, though I wear one in synagogue. What if the government passed a law that prohibited wearing religious symbols in government buildings. Could a person who would not otherwise wear a yarmulka in a government building claim a burden that is substantial? I suppose the burden could be described at a high level of abstraction, but is it really substantial?

This third inquiry blurs with the first two questions. Even if a person has a sincerely held belief in certain aspects of a religion, I think the claimant would have to show that the law in question is in fact substantially burdening that particular facet of religion.

It is also worthwhile to consider the facts from Hobby Lobby. Under the ACA, the failure to cover all of the forms of emergency contraception would result in an annual penalty of $2,000 per employee. If we apply the logic of NFIB, there is no actual mandate, but instead a penalty for not purchasing insurance. Justice Alito's majority opinion found that paying the $2,000 penalty was not a viable alternative, as the plaintiffs had "religious reasons for providing health-insurance coverage for their employees." In other words, the employers would still have their religious exercise burdened. But one can imagine a different set of facts where a person of faith could pay a nominal penalty to avoid a mandate that violates their religious exercise. Let's say the penalty in Hobby Lobby was $2 per employee. Would that burden be substantial?

***

I think these are the sorts of difficult questions that the Court would have to wrestle with if Smith were overruled. These are not pleasant questions, because they would likely result in certain people not being able to claim protection under strict scrutiny. People do not like their religion being called not a religion, do not like having their religious beliefs being called insincere, and do not wish to measure how much their religion is being burdened.

I remember well the outrage my posts from 2022 occasioned. Maybe that is reason enough why Justices Barrett and Kavanaugh will leave things as they are. But I do not favor such reasoning based on outcomes. If Smith is wrong as an originalist matter, it should not stand. RFRA has proven that strict scrutiny is a viable method of deciding cases. And the Court could always use a slightly-less-strict scrutiny--based on some of the considerations above--to weed out invalid claims.

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[Josh Blackman] Today in Supreme Court History: July 21, 1824

7/21/1824: Justice Stanley Matthews's birthday.

Justice Stanley Matthews

The post Today in Supreme Court History: July 21, 1824 appeared first on Reason.com.