Eugene Volokh's Blog, page 49

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: 2d Circuit Upholds License Denials by N.Y. Judge

[State Judges who deny gun licenses are held to enjoy absolute judicial immunity.]

On August 18, the Second Circuit decided Kellogg v. Nichols, a suit under 42 U.S.C. § 1983 against a New York state judge who denied applications by two individuals for firearm licenses.  The court affirmed the district court's dismissal of their individual-capacity claims as barred by absolute judicial immunity and then dismissed their official-capacity claims for injunctive and declaratory relief as lacking an Article III case-or-controversy.

As Kellogg explains, the state judge denied applicant Kellogg's permit based on his "criminal arrest history and inadequate explanations for failing to disclose that history."  The reasons for the arrests are not stated. He also "ruled that [applicant] Harmon's criminal history, including a youthful-offender adjudication for first-degree robbery, likewise demonstrated that he lacked the requisite maturity or responsibility to have a license."  The applicants then filed suit in the U.S. district court alleging violation of their Second and Fourteenth Amendment rights.

Unlike some counties, the sitting judge is the licensing officer in Columbia County where the plaintiffs resided.  As plaintiffs pointed out, under New York state law, acting on a gun permit application is an administrative function.  Kellogg mentions none of the state precedents on point, but earlier this year, in In re Guthman, the Appellate Division, 4th Dept., held: "The appropriate procedure for the review of a determination of a County Court Judge, acting in [their] administrative capacity as the firearms licensing officer for the County of [Onondaga] under Penal Law § 400.00 (11) and § 265.00 (10), is not a direct appeal, but the commencement of a CPLR article 78 proceeding in this Court."  (Bracketed items in original.)  For that proposition, the court quoted In re Shuler (A.D., 2d Dept. 2009), which applied that rule to the County Court Judge of Westchester County.  Other New York precedents consistently characterize the proceeding as administrative.

While not mentioned in the Kellogg decision, for some unexplained reason the plaintiffs did not file an article 78 proceeding in the Appellate Division to appeal the denial of the firearm license.  If the ruling there was negative, they could have then filed their constitutional claims in the federal district court.

But Kellogg would recognize no construction of New York state law by New York state courts.  Under prior Second Circuit precedent, New York state court judges act in a judicial capacity when denying gun permits.  Libertarian Party of Erie Cnty. v. Cuomo (2d Cir. 2020), abrogated on other grounds by the Supreme Court's decision in Bruen.  That decision likewise failed to cite any of the New York state court decisions that construe their own law on that point.  Whatever happened to "recognition of the role of state courts as the final expositors of state law," as the U.S. Supreme Court has often reminded us?  E.g., England v. La. State Bd. of Medical Examiners (1964).

According to Kellogg, no Article III case or controversy exists between a judge who decides gun permit applications and a litigant who attacks the constitutionality of the statute.  That is why a litigant "seeking to enjoin the enforcement of a statute on constitutional grounds ordinarily sues the enforcement official authorized to bring suit under the statute," not "the court or judges who are supposed to adjudicate the merits of the suit that the enforcement official may bring."

The court added that the judge acts in a judicial role, not an administrative role, in part because: "New York State, acting through various law enforcement officers, and not the judge who adjudicates a firearms license, is authorized to enforce the licensing regime by prosecuting the unlicensed possession of a concealed firearm."  But the same could be said for the appeals board that hears appeals of license denials from non-judicial licensing officers such as sheriffs.  (See 9 NYCRR 6059.1).  Consisting of officials from state law enforcement agencies whose proceedings are purely administrative, the appeals board also would have no role in prosecuting offenders, yet it could be sued in a § 1983 action.

However, Kellogg did not "decide whether Article III would bar a similar action brought against a New York state police commissioner or county sheriff, say, who denies a firearms license application, … where those officers possess both the authority to adjudicate such applications and the power to enforce violations of New York's firearms licensing laws."  It certainly would not bar such action, as we know from the lead respondent in the caption of a certain familiar Supreme Court decision: "Kevin P. Bruen, in his official capacity as Superintendent of New York State Police."  As that decision notes, "Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State's licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County."

When what became Bruen was in the Second Circuit, styled New York State Rifle & Pistol Ass'n v. Beach, no absolute immunity or Article III impediment was held to preclude resolution on the merits.  That decision summarily affirmed Kachalsky v. County of Westchester (2d Cir. 2012),

which similarly raised no such defenses, instead holding on the merits that the New York "proper cause" requirement for licenses did not violate the Second Amendment.  While not mentioned in the appellate decision, the district court in the case (then styled Kachalsky v. Cacace (S.D. N.Y. 2011)) noted: "The State Defendants are judges on various courts within the New York State Unified Court System and, at the times of Individual Plaintiffs' full-carry permit applications … served as handgun licensing officers under NYPL Section 265.00(10)."  Again, no qualified-immunity or Article III issue there.

It is interesting that Kachalsky was authored by Judge Richard Wesley, who was also on the Kellogg panel.  Another panel member was Senior Judge Reena Raggi, who I encountered as the district judge in Richmond Boro Gun Club v. City of New York (E.D. N.Y. 1995), which upheld the City's "assault weapon" ban (albeit we raised no Second Amendment issue).  Author of Kellogg was Judge Raymond Lohier, who was on the panel that upheld the "assault weapon" bans of Connecticut and New York in New York State Rifle & Pistol Ass'n v. Cuomo (2d Cir. 2015).

It goes without saying that the Second Circuit is a tough place to litigate Second Amendment claims.  One could at least hope for a consistent application of the law by federal and state courts when the same state law is at issue, and in particular for deference to state courts for construction of state law.  The Second Circuit should reconsider whether New York judges assigned to engage in the administrative function of considering applications for gun permits are really engaging in a judicial function, which entails a neutral arbiter who decides cases argued by adversarial parties.

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[Josh Blackman] Who Was The Fourth Vote For Cert In Chiles v. Salazar?

[In December 2023, only three Justices would have granted in Tingley v. Ferguson, which presented the same issue. ]

In December 2023, the Court denied cert in Tingley v. Ferguson. This case presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Justices Thomas, Alito, and Kavanaugh would have granted cert. There was a square conflict between the Ninth and Eleventh Circuits, as Justice Alito pointed out in his dissent. At the time, I speculated that Justice Gorsuch--a usual First Amendment stalwart--was unwilling to vote to grant cert in his LGBT-related case.

Fast-forward to March 2025. The Court granted cert in Chiles v. Salazar, on appeal from the Tenth Circuit, which presents the same issue as Tingley.

Who was the fourth vote in Chiles? Did Justice Gorsuch change his mind on the issue? Was Justice Barrett satisfied that sufficient percolation had occurred after another split with the Tenth Circuit? Perhaps Barrett or Gorsuch wanted to take this case only after Skrmetti was settled? Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable? Who knows?

Chiles will be argued on October 7, the second day of the term.

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[Eugene Volokh] Fraud and Breach of Contract Claim Over Elon Musk's $1 Million Petition Signature Lottery from 2024 Can Go Forward

From McAferty v. Musk, decided Wednesday by Judge Robert Pitman (W.D. Tex.); the factual summary is based on the allegations in plaintiff's complaint:

Plaintiff brings this putative class action to challenge the actions of Defendants in the lead up to the 2024 election. Musk founded America PAC, an independent expenditure only political action committee created to support "Secure Borders, Safe Cities, Free Speech, Sensible Spending, Fair Justice System and Self-Protection" and help elect Donald Trump as president. In October 2024, America PAC launched a "Petition in Favor of Free Speech and the Right to Bear Arms" (the "Petition") on their website. Visitors to America PAC's website could sign the Petition, which stated "The First and Second Amendments guarantee freedom of speech and the right to bear arms. By signing below, I am pledging my support for the First and Second Amendments." …

At an October 19, 2024 town hall, Musk announced another effort to promote the Petition. He said, "I have a surprise for you. Which is that we're going to be awarding $1 million dollars, randomly, to people who have signed the [P]etition. Every day from now until the election." Musk said they were launching this initiative because "I figured, 'How do we get people to know about [the Petition]?'" Musk then called an audience member, John Dreher ("Dreher"), to the stage as the first $1 million recipient, and said, "By the way, John had no idea." When Dreher came onto the stage to accept an oversized check, Musk told Dreher, "The only thing we ask for the million dollars is that you be a spokesperson for the [P]etition." [This was further promoted via various X posts. -EV] …

Another America PAC town hall was held on October 20, 2024, at which Musk announced a second $1 million recipient, Kristine Fiskell, who was in the audience that day. In total, America PAC awarded $1 million to nine individuals in October 2024, and Plaintiff alleges that each $1 million recipient "is featured on America PAC's website and X handle." As of the filing of Plaintiff's complaint, over 1 million people had signed the Petition.

In late October 2024, the District Attorney of Philadelphia filed a civil suit on behalf of the Commonwealth of Pennsylvania against Defendants alleging that the Petition was an illegal lottery and a violation of the Pennsylvania Consumer Protection Act. The Philadelphia Court of Common Pleas held a hearing on the case on November 4, 2024, where the court heard sworn testimony from, among others, America PAC's representative Chris Young ("Young"), the organization's director and treasurer.

Young testified that those selected to earn $ 1 million were not chosen by random chance but instead America PAC looked for individuals who signed the Petition that it thought would be a good fit to represent the organization as spokespeople. Based on this testimony, the complaint alleges that recipients were not chosen by chance but instead chosen based on their personal stories and thereafter signed a contract with America PAC to be their spokesperson….

Plaintiff alleges that she signed the Petition "in reliance on statements by [Defendants] that in doing so she had a chance of receiving $1,000,000." She asserts that had "she been aware that she had no chance of receiving $1,000,000, she would not have signed or supported the [Petition] and would not have provided her PII [personally identifiable information] to Defendants." She states that her signature and her PII "were given as valuable consideration for a chance to receive the $1,000,000" and that Defendants profited off her PII….

Plaintiff sued, and the court allowed her common law fraud and breach of contract claims to go forward; an excerpt:

To prevail on her fraud claim, Plaintiff must prove:

(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.

Plaintiff has adequately alleged all six elements. First, she alleges that Defendants' representations—that by signing the Petition, Plaintiff and others were eligible to randomly win $1 million—were material because "a reasonable person would attach importance to such a representation" given the "large sums of money involved." Second, she alleges that "Defendants' representations were false because [Defendants] have since admitted that the winners were pre-determined."

Third, she alleges that Defendants knew the representations were false when they were made, and fourth, that Defendants intended that Plaintiff and others would sign the Petition based on the representations. Fifth, Plaintiff states that she signed the Petition and gave Defendants her PII in reliance on Defendants' statements and asserts that she would not have done so if she had known that she did not have a chance to win the $1 million. Last, she asserts that she suffered damages by giving her PII to Defendants.

Defendants argue that Plaintiff has not properly alleged three of those elements. They first contend that Plaintiff has not pled a plausible false representation because, in Defendants' view, the PAC's decision to "pre-determine" recipients is consistent with the notion that the recipients were selected "randomly." Defendants' argument on this ground is wholly unpersuasive. As Defendants themselves point out, a common definition for "randomly" is "lacking a definite plan, purpose, or pattern." If Defendants pre-determined the $1 million recipients based on their personal stories rather than chance, as Plaintiff has alleged, then the recipients were obviously not chosen in a way that "lack[ed] a definite plan, purpose, or pattern." Whether Musk's statement falsely or accurately described the way the $1 million recipients were selected will be elucidated through discovery. For now, Plaintiff has plausibly alleged a false representation.

Defendants next argue that Plaintiff cannot allege justifiable reliance because "a person may not justifiably rely on a representation if there are red flags indicating such reliance is unwarranted." Defendants list several "red flags" that they claim Plaintiff should have interpreted as proof that the Petition program was not a random lottery: (1) in the same video where Musk uses the word "randomly" to describe the selection process, he also states two minutes later that the payment was conditioned on the requirement that the recipient "be a spokesperson for the [P]etition"; (2) as of October 20, when Plaintiff signed the Petition, the only two recipients who had been declared were present at the town halls where they were announced; and (3) in America PAC's X post sharing the Musk townhall announcement, it stated that the $1 million recipients were being "selected to earn" the money. Defendants ask the Court to conclude that "no reasonable person could have relied upon the (undisputed) assertions" in Musk's announcement and the subsequent X posts. The Court cannot do so.

While these supposed "red flags" are relevant to an ultimate determination of whether Plaintiff justifiably relied upon Musk's assertion that recipients would be chosen randomly, it would be inappropriate to conclusively decide this issue on a motion to dismiss. All that the Court is tasked with now is determining whether Plaintiff has plausibly alleged justifiable reliance, construing all facts in her favor. Doing so, the Court finds it is plausible that she would rely on Musk's assertion that $1 million would be given out randomly notwithstanding his or America PAC's later statements. Plaintiff's justifiable reliance is further plausible in light of other possibly misleading words Defendants used to describe the Petition program: (1) Defendants would be "awarding $1 million" to those who signed the Petition); (2) John Dreher had "won $1 million for signing the [Petition]"; (3) every day, America PAC would be "giving away" $1 million to someone who signed the Petition; and (4) "All you need to do is sign the [Petition] … to have a daily chance of winning $1,000,000." For these reasons, the Court is satisfied that Plaintiff has plausibly alleged justifiable reliance….

For more on the breach of contract claim, the rejection of the Texas Deceptive Trade Practices Act, and the standing analysis, see the full opinion.

Alexander G. Kykta, Jarrett Lee Ellzey, and Leigh S. Montgomery (Ellzey & Associates, PLLC) and Josh Sanford (Sanford Law Firm) represent plaintiffs.

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[Eugene Volokh] AI-Generated Porn … Litigation Filings (from a Prominent Plaintiffs' Class Action Firm in Lawsuit Against OnlyFans)

From Skadden Arps filing in N.Z. v. Fenix Int'l Ltd. last week, involving a class action against OnlyFans:

Plaintiffs' Opposition … cites 18 cases in attempting to argue that the Court should decline to partially reconsider its FNC [forum non conveniens] Order, or certify an interlocutory appeal, in response to the California Supreme Court's recent decision in EpicentRx, Inc. v. Superior Court (Cal. 2025). As discussed in detail below and in the accompanying Declaration of Or-el S. Vaknin, Plaintiffs attributed false, AI-hallucinated quotations or holdings to at least 11 of those cases. This is the third distinct filing over a monthlong period in which Plaintiffs have used non-existent quotations to attempt to defeat Fenix's requests for relief. This pattern of submitting false, AI-generated law is an "abuse of the judicial system" that harasses Fenix and wastes the Court's time and resources. It must be stopped. The Court should disregard Plaintiffs' latest tainted efforts and grant the Motion.

And another filing:

Although Plaintiffs had two months to craft their 11,515-word brief, they were evidently unable to find legitimate legal authorities supporting their arguments. On at least 20 occasions, Plaintiffs' Opposition cites imaginary caselaw, quotes invented language in real cases, summarizes non-existent court holdings and analysis, or responds to arguments Fenix did not make. (See Declaration of Or-el Vaknin (compiling examples).) For example, Plaintiffs ….

Law.com / The Recorder (Kat Black) passes along this statement from "Robert Carey, a Hagens Berman partner based … who is representing the plaintiffs," who "said that the briefs contained 'sections drafted by co-counsel outside our firm.'"

In those sections, quotation marks were improperly placed on the holdings of real cases, and inaccurate statements and citations appeared, including one citation to a case that did not exist. Our review did not catch those errors, and we take responsibility for that oversight. It should not have happened.

Law.com goes on to say:

The co-counsel, according to the statement, was a "Yale Law School graduate and trusted colleague who has provided excellent work for over a decade"—and was navigating an "intense family crisis" with her father, who had entered hospice earlier this summer after a long-term battle with Parkinson's disease and other medical conditions.

And it quotes more from the Carey statement:

While managing his care from afar, she did not share with us how overwhelming the situation had become. Under that strain, she turned to an AI tool to help polish her drafts, not realizing that in doing so, the tool had introduced or altered citations and text. Because she did not alert us to her situation, and her material arrived late in the process, our usual review protocols could not be fully applied. She will demonstrate to the court that the flawed content was preceded by careful and responsible research, writing and development of arguments.

Law.com also quotes more from a separate statement by Carey in a phone interview, in which Carey also said "the plaintiffs' legal team will request to file corrective briefs that remove inappropriate quotations and statements and explain what happened to the court":

It's a mistake. It shouldn't have happened. It's our responsibility to make sure briefs are right no matter who puts the sections together. But it was a little difficult when it's a person we've had a longstanding relationship with, and she's a high-level lawyer and brief writer, and she is helping us finalize the briefs that we just didn't think we needed to check her work….

And so, lesson learned. We apologize to our opposing counsel … and we're going to apologize to the court and see what we need to do to make it right. But our firm has filed thousands and thousands of high-level briefs, and this is not our practice. If we knew what was going on, we would've stopped it—but again, a lesson learned.

The underlying allegations, by the way, also related to alleged falsehoods:

OnlyFans, a social media platform known almost exclusively for hosting sexually oriented content, has hundreds of millions of users (called "Fans") who pay for the privilege of communicating directly with specific people who post content on the platform (called "Creators") on a personal (indeed, often an intimate and/or romantic) level. But instead of interacting with a specific Creator, Fans end up—unknowingly and without their consent—communicating with professional "chatters" hired to impersonate that Creator in order to convince Fans to spend even more money on the platform.

Chatters are often hired by self-styled "management agencies" operating OnlyFans accounts on behalf of multiple Creators, at the request of and with the consent of the Creators. These agencies hire veritable fleets of Chatters—often from countries like the Philippines and Venezuela, where they can get low-cost, yet well-educated, workers who can convince Fans they are engaged in "authentic" communication with a particular Creator.

In addition to the blatant deception and fraud, the "Chatter Scams" involve massive breaches of confidentiality and privacy violations in which intimate communications and private and/or personal information about Fans—including photos and videos—are distributed and/or accessible to numerous unauthorized parties.

OnlyFans knows about the agencies perpetrating the Chatter Scams; indeed, it has co-hosted events with at least one agency named as a defendant in this Complaint….

 

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[Eugene Volokh] University of Oregon Concludes Law Review "Discriminat[ed] Based on Perceived National Origin" Against Israeli Author

From the University of Oregon School of Law's dean Friday:

Dear law community,

In February 2025, a civil rights complaint was filed against the Oregon Law Review (OLR) student organization, based on events that occurred in the 2024 spring semester. In August 2025, the university's Office of Investigations and Civil Rights Compliance completed its investigation and issued a report.

Because of FERPA, this report cannot be shared publicly. That said, we can provide these details: In April 2024, while selecting articles for the 2024-25 Volume 103, the OLR chose not to offer publication to an author who indicated they were faculty at Tel Aviv University. No law school administrators or faculty were involved in this decision. The following month, OLR board members asked a law school administrator to have a conversation with members who were concerned about the process.

After receiving the complaint in February, the university investigated both the OLR and the law school administrator who had the conversation. In early August, the university completed its investigation, finding the law school administrator not responsible for any policy violation. The university did, however, find the OLR responsible for violating University of Oregon policy and the Student Conduct Code. The investigation found that OLR engaged in conduct that, on its face, was discrimination based on perceived national origin. No findings were made about the intent that motivated the conduct.

Because of this finding, the university imposed an Action Plan on the OLR that must be completed by September 19, 2025. The Action Plan consists of the following four Action Items:

All OLR's student staff, instructors of record, faculty advisors, journal coordinator, and any other member of law school administration who works with OLR, are required to complete an annual discrimination and bias training that is approved by the Office of Investigations and Civil Rights Compliance.OLR is required to develop a written procedure about (1) the mechanics of how OLR selects articles for publication, and (2) by what criteria articles are selected for publication, for review and approval by the Director of Student Conduct and Community Standards.OLR must invite the author whose article was not offered publication to resubmit the article for publication in the OLR's next volume.OLR has been put on a two-year probation during which any subsequent violations will result in progressively more severe outcomes.

As of today (8/22/25), Action Items (2), (3), and (4) have been completed. The training described in Action Item (1) will take place at the end of August. The training will become an annual part of the OLR orientation.

Along with these Action Items, the OLR has decided to add two additional safeguards. First, the OLR will create position descriptions that delineate the responsibilities of law school staff and faculty who work with the OLR, so that support and expectations are more clearly defined. Second, the OLR is putting a more formal process in place for managing disputes that have the possibility of implicating prohibited behavior, such as discrimination or harassment.

Although the current OLR editorial staff had no role in the situation, they are taking the matter seriously and are seeking to make changes that will better the journal, serve our communities, and reflect our shared values. We support their efforts to improve the institutional knowledge and culture of the journal so that future student boards do not take similar actions to those taken in this situation.

Prof. Ofer Raban, who has posted here about the matter before had these reactions (which he sent to the dean and faculty):

Thank you for sending this information.

As someone who is intimately familiar with the facts in this case, and as the person who actually filed the complaint, I find it surprising that the law school administrator involved in the episode was found "not responsible for any policy violation." The conclusion seems irreconcilable with the information I have.

Given that FERPA poses no bar for such disclosure, would you be willing to release that part of the investigative report? Any confidential personnel information could be redacted before the release.This discrimination violated a number of laws and regulations—including the university's students' code of conduct. Moreover, it was perpetrated by students who were on full notice that their actions were probably in violation of the law. Nevertheless, they went ahead with it. Did the law school update these students' files in accordance with the investigation's official conclusions?

Needless to say, it is a serious matter when a pedagogic legal institution experiences lawlessness from within. I urge you to deal with this matter firmly and with all the transparency allowed under the law. A contrary approach would send the wrong message to our students, and would only prolong interest in the case.

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[Ilya Somin] Trump's Acquisition of Stake in Intel Highlights Similiarities Between Right-Wing Nationalist and Left-Wing Socialist Economic Policies

[Both are prone to promoting government planning and control of the economy, and both have common flaws.]

NA

Donald Trump's acquisition of a 10% federal government stake in Intel, a major electronics firm, is an example of the dangerous similarities between right-wing nationalist and left-wing socialist economic policies. Both favor extensive government control, direction, and - as in this case - even ownership of industry. As Reason's Eric Boehm points out, the idea of US government ownership of major computer chip manufacturers was previously advanced by socialist Senator Bernie Sanders. More generally, Steven Greenhut notes, "MAGA's 'right-wing' policies sometimes seem indistinguishable from left-wing ones." Government control of the economy is central to Trump's massive imposition of new tariffs, his immigration restrictions, and more.

In our 2024 article "The Case Against Nationalism," my Cato Institute colleague Alex Nowrasteh outline a wide range of similarities between nationalist and socialist economic policies, and also explained how they have common flaws:

Nationalists in the United States and elsewhere advocate wide-ranging government control of the economy, most notably in the form of industrial policy, protectionism, and immigration restrictionism. In this respect, the nationalism of the right has much in common with the socialism of the left. It's no accident that the more extreme early 20th-century nationalists, such as the Nazis and Italian fascists, explicitly sought to appropriate socialist economic policies for purposes of helping their preferred ethnic groups, as opposed to the more expressly universalist objectives of left-wing socialists. It should not, therefore, be surprising that nationalist economic policies have many of the same flaws as their socialist counterparts…

Given the overlap between nationalism and socialism, it should not be surprising that their economic policies have many of the same pitfalls. The most significant are knowledge problems and perverse incentives arising from dangerous concentrations of power.

During the mid-20th century, Nobel Prize-winning economist Friedrich Hayek famously argued that socialism cannot work because central planners lack the knowledge needed to determine which goods to produce and in what quantities — a concept commonly referred to as the "knowledge problem." Market prices, he argued, enable producers to know the relative value of different goods and services, and to determine how much consumers value their products.

Nationalist economic planners, like their socialist counterparts, have no way of knowing this information. They also have no good way of determining which industries government should promote and how much it should promote them….

For these reasons, nationalist economic planning has produced poverty and stagnation — much like its socialist counterpart. Such were the results in nations like Argentina (where nationalism wrecked one of Latin America's most successful economies), Spain, and Portugal under their nationalist regimes.

As for the incentive problem, nationalist economic policy — like socialism — requires concentrated government power. Only thus can politicians and bureaucrats promote their favored industries, exclude foreign goods and workers, and so on. Yet government actors are not disciplined by market prices, nor are they incentivized to seek profit by satisfying consumers like firms in the private sector. They are instead guided by the demands of political leaders and direct their energies toward pleasing state authorities, who increasingly control the purse strings….

Nationalism does not resolve the knowledge or incentive problems that undermine socialism; government-dominated economies have the same deficiencies regardless of whether the state swears allegiance to a mythical international proletariat, an ethno-cultural group, or a leader who supposedly embodies its culture and virtues… Depending on the degree of state control of the economy, the results may include mismanagement, cronyism, and economic ossification. Nationalism is no substitute for market prices and incentives.

As Alex likes to put it, nationalism is socialism with different flags, and more ethnic chauvinism.

Obviously, we are not the first to point out the similarities between nationalism and socialism. The great libertarian economist F.A. Hayek warned about the same tendency in his 1960 essay "Why I am Not a Conservative":

[T]his nationalistic bias… frequently provides the bridge from conservatism to
collectivism: to think in terms of "our" industry or resource is only a short step away
from demanding that these national assets be directed in the national interest.

Not all conservatives are nationalistic in this way. Those who are not would do well to condemn right-wing central planning of the economy no less than the left-wing version. Both are harmful and dangerous, for many of the same reasons.

In addition to it similarities with socialism, nationalist ideology also poses some distinct dangers of its own, such as promoting ethnic bigotry and xenophobia and undermining democratic institutions in ways somewhat different from those characteristic of socialism. Nowrasteh and I cover them in some detail in other parts of our article.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Remote quorums, jetway robberies, and the beauty of our constitutional republic. ]

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

New case: IJ client Khalilah Few invested her life savings trying to open a hair salon in Clayton County, Ga., but last month officials denied her a permit, saying the area is saturated with salons and that finally getting a business into the long-empty storefront that Khalilah rented and renovated is not "smart growth." Pshaw.

New on the Short Circuit podcast: Kangaroo courts and fugitive Russian jet-setters.

Judge: The only way to remove an Article III judge is for Congress to impeach, and yet I have been effectively impeached by a judicial council that includes my accusers and witnesses. D.C. Circuit: It does seem like a constitutional problem that there doesn't seem to be a judicial forum to raise some of these constitutional claims. But we'd have to go en banc about it.In 2017, after student reports being sexually assaulted at D.C. high school, the principal says that the report is "bullshit" and that she will "go the extra mile" to "embarrass [the student's] ass." After security footage corroborates the student's account, the principal lies to the superintendent about what it shows. D.C. Circuit: A jury might think that's outrageous. Grant of SJ to the now-former principal is partially reversed.First Circuit: Sure, saving the gov't money is a legitimate interest, and, yes, denying someone a level of benefits to which they'd otherwise be entitled saves money, but even under the rational basis test you probably have to say a little more than that.District court: Bivens is dead, and it has been dead since 1988, when Congress created a formal mechanism to complain about federal law-enforcement. First Circuit (over a dissent): If Congress had eliminated Bivens remedies in 1988, we're pretty sure somebody would have noticed. The doctrine is only mostly dead.Ferdinand Marcos stole billions while dictator of the Philippines. He deposited $2 mil of that in a New York account; it's now worth $40 mil, and the feds seek to forfeit it and return it to the Philippines. But wait—victims of his human rights abuses and the owner of the legendary Yamashita Treasure that he stole (booty plundered by Japanese troops during WW2 and buried in the Philippines to keep out of American hands) say the money should go to them instead. Second Circuit: Though entitled to money, they cannot stop the forfeiture to get this money.Philadelphia driver with a long rap sheet, and lacking a valid driver's license, registration, or insurance, is found to have an illegal gun and "136 packets of fentanyl and heroin." Will the Third Circuit let him off the hook because the officers who pulled him over complimented his watch and politely asked him about his job? To ask the question is to answer it, though readers will surely enjoy the panel's distillation of case law into practical guidance.Fourth Circuit: The beauty of our federal republic is that Maryland is free to levy a tax on internet advertising. The beauty of our constitutional republic is that Maryland cannot forbid the taxed businesses from telling their customers about it.A woman convicted of murder in Maryland won a new trial after showing her lawyer was ineffective. But it proved a Pyrrhic victory: during her motion for a new trial, the court made her hand over privileged files and let the same prosecutors "scour" them. At the retrial, the state leaned heavily on new evidence revealed in those files, and she declined to testify because the court left open whether her prior testimony could be used to impeach her. The state appeals court assumed error but found no prejudice, concluding the new evidence didn't hurt her and she hadn't properly proffered her testimony. Fourth Circuit: Both determinations were objectively unreasonable; the case is remanded for de novo review of whether her Sixth Amendment rights were violated. Vacated and remanded.Clemency traces back to eighth century England and has been widely available in the States since they came into existence. Virginia's Constitution strips people convicted of felonies of the right to vote and vests the power to restore that right in the governor's exclusive, unfettered discretion as a matter of executive grace. Man: The First Amendment requires the discretion to be fettered. Fourth Circuit: It does notDuring the COVID-19 pandemic, the U.S. House of Representatives enacted a resolution to allow absent members to vote by proxy. One of the things they voted on was the Consolidated Appropriations Act of 2023, which was passed by the votes of 205 members present and 226 by proxy. Texas: The Quorum Clause requires that members be physically present to establish a quorum; the Act (or more specifically, two of the appropriations we don't like) is invalid. Fifth Circuit: Text and history support establishing a quorum by proxy. Dissent: Text and history support the opposite of that.President of West Texas A&M University bans a drag show intended to raise funds for the Trevor Project. The student organizers of the show sue. District court: Drag shows aren't protected by the First Amendment because they don't convey a particular message and aren't fine art. Fifth Circuit (over a dissent): This show certainly had a specific message, and we aren't in the business of determining what constitutes "fine art."Allegation: Texas school principal hears repeated statements from faculty that a pre-K teacher is being sexually inappropriate with students. She admonishes them that "we can't be picky." The teacher is eventually arrested and sentenced to a minimum of 60 years in prison. One of the victims sues the principal, who argues for qualified immunity. Fifth Circuit: Absolutely f'ing not.Man dies in Tarrant County, Tex. jail in August 2019. His wife files a (second) lawsuit in November 2023. Fifth Circuit: It's barred by the two-year statute of limitations, and no exceptions apply given lack of diligence in investigating claim. Concurrence: Following the rules consistently honors the rule of law, even for a guy who's executed after filing his cert petition a day late. Dissent: Husband "suffocated to death because he was repeatedly pepper-sprayed while he was in restraints, then abandoned on a jail cell floor," and the prison covered it up, thus extending the limitations.Three Texas companies, including SpaceX, run to court to prevent unfair labor practice hearings before the NLRB. They claim both NLRB ALJs and NLRB board members are unconstitutionally protected from removal by the President. Fifth Circuit: Indeed. The ALJs can only be removed if another board finds cause, and the members of that board are themselves protected from removal without cause. Plus, NLRB members kind of obviously wield some important powers. That makes for-cause protections pretty sus.In 2017, ICE agents allegedly seize Louisville, Ky. DACA recipient (who would frequently post bond for ICE detainees) without reason and shuttle her around the Midwest for eight days before release. She sues them under Bivens. Sixth Circuit: These allegations are chilling, but Bivens.Muscatine County, Iowa jail supervisor posts fresh takes online about Muslims ("pawns of the devil") and the gay lifestyle ("an abomination … that defiles the land"). He's fired after several other jurisdictions, who pay millions to warehouse their detainees in the county, express concern. Unlawful discrimination against his Christian faith? Eighth Circuit: To a jury this must go. Grant of SJ to the county is reversed.Operator of a private, for-profit facility in Washington State that confines noncitizen civil detainees challenges a state law requiring private detention facilities to meet certain sanitary conditions, submit to inspections, etc. The company challenges the law and seeks a preliminary injunction, which the district court largely grants. Ninth Circuit: Some of that is wrong and some of it needs a closer look. Injunction vacated.In what was definitely yesterday's most covered judicial decision concerning grant terminations, the Ninth Circuit denies the federal gov't's request to stay a preliminary injunction ordering the EPA and the National Endowment for the Humanities to reinstate various research grants.In 2024, New Mexico places a blanket seven-day waiting period on all firearms sales. But can a restriction on sales of arms violate the Second Amendment, as it just protects the right to "keep" and "bear" arms? District court: Good point. Tenth Circuit (over a dissent): Yeah, it doesn't work that way. Law preliminarily enjoined.Plaintiffs (who are, as it happens, bona fide celebrities): Clayton County, Ga.'s police dept. has a policy of stopping (mostly Black) travelers on jet bridges at Atlanta airport, demanding to search their bags. A Fourth Amendment violation? Eleventh Circuit: Case undismissed. Defendants' contention that people feel free to leave while officers are holding their IDs and boarding passes is bananas. (IJ filed an amicus brief urging this result.)DEA agents take $8.5k cash from (Black) traveler at Atlanta airport. It takes over a year, and $15k in legal fees, but ultimately the feds give the money back and dismiss the forfeiture case with prejudice. District court: But no attorney's fees since there was no judicial decision on the merits. Eleventh Circuit (unpublished, per curiam): Vacated. He "substantially prevailed" and is entitled to fees. (This is an IJ case.)Come for the University of Florida professor disciplined for protesting the return to in-person instruction with the pithy e-mail sign-off, "Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of loser Studies, Pharmakonology, and Cosmic Criticism." Stay for the Eleventh Circuit's hewing to a conspicuously wrong interpretation of Federal Rule of Appellate Procedure 4 and dismissing Herr Doktor's appeal.Three Floridians challenge the federal law making it a crime for them to keep arms while consuming medical marijuana. District court: Case dismissed. If you're not "law abiding" there's no Second Amendment for you. Eleventh Circuit: But they're mostly law abiding and this is an as-applied claim. Case undismissed.Eleventh Circuit (unpublished): It is a clearly established constitutional violation for police to punch a pinned down, nonresisting—but not yet handcuffed—suspect 34 to 37 times in the face. Even if he's a murder suspect (who's since pled guilty). Grant of QI to this Clay County, Fla. deputy is vacated.The 16th century saw French and Spanish forces battling over control of the New World. Jean Ribault, a storied seafarer, led French naval expeditions to Florida, culminating in a final foray in 1565 with seven heavily armed ships that got caught in a hurricane and sank off the coast of Cape Canaveral. One of the ships, la Trinité, was discovered some 450 years later by an underwater exploration company. France: Thanks for finding it; everything is ours, go away. Finder: Then pay us for finding it. Eleventh Circuit (2022): No sovereign immunity bar here. Eleventh Circuit (2025): But the Sunken Military Craft Act bars the finder's claim, as la Trinité was on military noncommercial service when it sank. Concurrence: And the Act is constitutional, contrary to amici's arguments.And in en banc news, the Ninth Circuit will not reconsider a panel decision holding that Kari Lake's lawyers should be sanctioned for filing her failed lawsuit challenging Arizona's voting system. Six judges dissent from denial, arguing that although the case involved a "Hail Mary legal theory," most Hail Mary legal theories aren't sanctionable.New en banc petition: Friends, federal appeals courts usually can't hear appeals of district court orders unless and until they are final and put an end to a case. And while there is an exception for "interlocutory" appeals of what would otherwise be considered non-final, non-appealable orders, the Supreme Court has repeatedly emphasized that it's a "narrow and selective" class of orders that is excepted—and a class that is only to be enlarged by the Supreme Court itself. And yet! Several circuits have taken it upon themselves to permit interlocutory appeals of denials of state-law immunity. Indeed, the Fifth Circuit recently applied Texas "official immunity" to ding malicious-prosecution claims against a Dallas detective, claims that were chugging along below. Which is bad and wrong and can't stand because, in the words of Judge Oldham, there is "no basis for saying that the denial of a state-law immunity justifies immediate appeal under the Supreme Court's current doctrine." Hear, hear.

In July, ICE agents arrested IJ client George Retes, a U.S. citizen and Iraq War vet, when he was on his way to work at a farm in Southern California. Though he did nothing wrong (and was not participating in a protest near the farm), George was pepper-sprayed, dragged out of his car, and pinned down with a knee to his neck (which has several herniated discs from his time in the service). Then he was held incommunicado for three days and three nights at a federal detention center—no phone call, no lawyer, no judge—while his family panicked. Ultimately, he was released without charges, after missing his daughter's third birthday. This week, as a necessary first step to filing a lawsuit under the Federal Tort Claims Act, he submitted claims to ICE and other agencies involved. "I'm calling out the federal government not just for what they did to me, but for what they are doing to others," said George. "I'm continuing to fight for this country, now as a civilian." Click here for more.

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[Paul Cassell] Judge Newman Loses Her Effort to Undo the "Temporary" Bar on Receiving Cases

[The D.C. Circuit declines to reach the merits of many of the serious underlying constitutional questions.]

I have previously blogged about the "stealth impeachment" of Judge Pauline Newman of the Federal Circuit. Judge Newman presented serious constitutional questions to the D.C. Circuit about her supposedly "temporary" suspension from active service on her court. Today, the D.C. Circuit rejected Judge Newman's challenges. The panel ruled that, under earlier Circuit precedent, it was barred from reviewing her constitutional arguments. The panel essentially remitted Judge Newman to the Judicial Conference to pursue the issues, while also suggesting some possible new judicial avenues Judge Newman might consider.

Some quick background: Judge Newman has been "temporarily" suspended by the Federal Circuit's Judicial Council due to her alleged failure to cooperate with a Special Committee of the Circuit. The Committee was investigating Judge Newman's alleged declining mental capacities. Judge Newman sought federal judicial review of whether her indefinite suspension violated her constitutional rights. But a judge on the D.C. District Court dismissed many of her claims as not subject to judicial review and rejected her facial constitutional challenges to the Judicial Conduct and Disability Act. She appealed to the D.C. Circuit.

In December, I joined former judges Janice Rogers Brown, Paul R. Michel, Randall R. Rader, Thomas L. Vanaskie, and Susan G. Braden in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits. And Judge Newman herself weighed in with a powerful reply to the Judicial Council's position that it can simply suspend her from her judicial duties under the Judicial Conduct and Disability Act.

Today's panel decision concluded it was unable to review Judge Newman's most substantial constitutional claims on their merits:

As the district court recognized, our ability to review Judge Newman's statutory and constitutional claims is largely foreclosed by binding precedent. In McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 2001), this court held that Congress precluded our jurisdiction over statutory and as-applied constitutional challenges to judicial council orders. Id. at 58–63. Instead, McBryde concluded, Congress intended for those claims to be considered exclusively by the Judicial Conference. Id. This panel has no authority to depart from McBryde.

As a result, we have jurisdiction to consider only Judge Newman's facial constitutional challenge to the Act's case-suspension provision. Under well-settled standards for such claims, that facial challenge fails because—irrespective of whether the provision's application to Judge Newman is constitutional—Judge Newman agrees that the provision has many other constitutional applications.

The panel emphasized the narrowness of its decision:

We therefore affirm the district court's judgment. As just explained, however, our reasons for affirming are unrelated to the strength of Judge Newman's statutory claim or as-applied constitutional claims. Nor does our decision reflect our views of the underlying dispute or of Judge Newman's suspension. Under McBryde, any recourse for Judge Newman must come from a judicial council or from the Judicial Conference, the entity statutorily empowered to review council decisions.

In concluding its decision, the panel seemed to invite further review of the serious constitutional issues at stake, but by the en banc Court (which could overrule McBryde) (some citations omitted):

[A]s a panel of this court, we are unable to overrule McBryde, and so do not resolve whether McBryde was rightly decided. To be sure, there are substantial arguments that—if judicial councils and the Conference are properly regarded as administrative bodies—the McBryde majority misapplied the clear-and-convincing-evidence test when interpreting Section 357(c)…. It relied on a potentially strained reading of the relevant legislative history. And its holding could be taken to suggest that certain constitutional  questions might be heard in no forum (if the Judicial Conference does not consider those challenges) and that, regardless, the Judicial Conference—not the Supreme Court—would be the last word on major questions of constitutional law.

The seeming absence of a judicial forum to address Newman's as-applied  constitutional claims itself raises constitutional concerns. Judge Newman presents  substantial arguments that her suspension—which has now lasted nearly two years, with a third year recommended—threatens the principle of judicial independence and may violate the separation of powers. She further contends that the refusal to transfer her case to a different circuit deprived her of an impartial tribunal, which if correct would raise due process concerns.

Those doubts, however, would at most suggest that McBryde was wrong the day it was decided, not that it does not bind us now.

Panel op. at 20-21 (some citations omitted).

The panel also dropped an intriguing footnote about the possibility of mandamus review in the U.S. Supreme Court:

[The Judicial Council et al.] suggested at oral argument that the Supreme Court may be able to review Judicial Conference orders via mandamus. We express no opinion on that possibility.

All Judge Newman asked of the panel was for a judicial forum to hear her claims on the merits. The panel decision suggests several possibilities that Judge Newman might consider for obtaining such review. And the panel also explained that, because its decision might mean that Judge Newman "cannot raise her as-applied constitutional arguments in any Article III forum ….," it is "up to the Judicial Council and the Judicial Conference to genuinely engage with those arguments." Next month, the Judicial Council will apparently decide whether to renew Judge Newman's "temporary" suspension for yet another year.

No doubt, today's ruling will not the last word on all these issues. At some point, some court or tribunal somewhere will hopefully recognize what should be obvious: Judge Newman is subject to stealth impeachment by unelected judges. That is not the process the Framers intended.

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[David Bernstein] Affirmative Action and the Dangers of Motivated Legal Reasoning

National Review reports that the Justice Department announced that it found my university, George Mason, in violation of Title VI:

At the center of the scandal is Gregory Washington, the university's first black president, whom faculty allege spearheaded the Northern Virginia school's diversity practices. In April 2021, for example, Washington penned a letter to the school's faculty and staff about how to promote "inclusive excellence" in hiring. "While a majority of our students are non-white," he wrote, "just 30 percent of our faculty are from ethnic minority, multi-ethnic, or international communities." And to achieve the university's vision, he continued, "we first have to adopt a broader, shared understanding of what 'best' means when recruiting faculty and staff at Mason."

"If you have two candidates who are both 'above the bar' in terms of requirements for a position, but one adds to your diversity and the other does not," Washington continued, "then why couldn't that candidate be better, even if that candidate may not have better credentials than the other candidate?"

I first learned of this plan early on: the new university administration's explicit goal was to use preferential hiring make the faculty and student body mirror the demographics of Northern Virginia. I objected, pointing out that regardless of one's policy preferences, using affirmative action in faculty hiring to achieve demographic "balance" was plainly illegal. I even offered to explain why.

The administration showed no interest. I was told that President Washington had already consulted a prominent law school dean, who assured him the plan was lawful.

Now, I can imagine legal advice along the lines of: "This is almost certainly illegal, but the chances of anyone suing or the university facing legal consequences are slim." That would have been accurate. Hundreds of universities maintained unlawful affirmative action programs for years, with little risk of challenge.

For instance, "minority-only" scholarships and fellowships—essentially 100% quotas—were common. No Supreme Court opinion, nor even a single Justice, has ever endorsed such quotas as lawful. Yet these programs continued largely unimpeded until 2025.

But there is a critical difference between telling clients, "You will probably get away with this," and telling them, "This is legal." And in my experience, academics often blur that line, twisting themselves into knots to argue that obviously unlawful racial preference programs were somehow permissible.

Why? There are two plausible explanations.

The simple explanation is that their belief in the justice of such programs, and their conviction that the courts have misinterpreted the law, clouds their judgment.

The more "academic" explanation is that they don't think the law "as written" is the real law. Instead, they implicitly distinguish between the law on the books and the law as actually applied.

By the text of the law, many common racial preference practices in higher education were blatantly illegal. But in practice, enforcement was rare. The government seldom acted, private complaints were uncommon, and when cases reached the Supreme Court, the Court often upheld policies that seemed plainly unlawful by ignoring on its own precedents and reasoning.

A good example is Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action policy. Year after year, the school admitted nearly identical percentages of minority students, suggesting an implicit (and illegal) quota. Gaps in LSAT and GPA scores were vast, undermining the claim of individualized review and showing that race was a large, general (and thus illegal) "plus" factor. As Justice Thomas noted in dissent, the state's supposed "compelling interest" was preserving the law school's elite status while admitting "enough" minority students. But that elite status primarily benefited out-of-state job markets, since 90% of graduates left Michigan—a far cry from a compelling Michigan state interest.

By the law as written, Michigan's policy was plainly unlawful. The Court, however, declined to apply the law as written.

Which brings me back to motivated reasoning. Even if we distinguish between law on the books and law in practice, responsible legal counsel should explain that distinction and warn clients that the written law could be enforced in the future. Indeed, one might argue that professionals are obligated to advise compliance with the law as written, regardless of lax enforcement.

Instead, what I have seen repeatedly is law professors engaging in highly tendentious reasoning—arguing that the law means the opposite of what any objective observer would conclude. That kind of advice doesn't just encourage clients to ignore the law; it emboldens them to flout it openly. And as we are now seeing, this can carry real legal consequences.

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