Eugene Volokh's Blog, page 52

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Willet summarized his opinion this way:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[Eugene Volokh] 7-Day "Cooling-Off" Period for Gun Purchases Struck Down by Tenth Circuit Panel

A short excerpt from today's long Ortega v. Grisham, by Tenth Circuit Judge Timothy Tymkovich, joined by Judge Allison Eid:

New Mexico enacted a law in 2024 that imposes a categorical seven-day "cooling-off" period for nearly all consumer purchases of a firearm. No matter how urgent the need, or how much physical danger a prospective buyer might be in, buyers must wait seven days before New Mexico deems them safe to carry arms. Even buyers with previous firearms background checks or security clearances are not eligible for waivers from the prohibition. In short, the law requires no individualized reason to conclude that a prospective consumer is a danger to himself or the community, nor can anyone be excused from the waiting period because of personal danger….

Cooling-off periods infringe on the Second Amendment by preventing the lawful acquisition of firearms. Cooling-off periods do not fit into any historically grounded exceptions to the right to keep and bear arms, and burden conduct within the Second Amendment's scope. In this preliminary posture, we conclude that New Mexico's Waiting Period Act is likely an unconstitutional burden on the Second Amendment rights of its citizens…. Plaintiffs are entitled to an injunction….

Common sense dictates that the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text. Legal interpretation follows that common sense….

The burden imposed by a cooling-off period is brought into sharper focus when considered in the context of other constitutional rights. A carte blanche one-week cooling-off period to publish news stories? Unconstitutional. Temporary closures of churches during COVID-19? Unconstitutional. Roman Cath. Diocese of Brooklyn v. Cuomo (2020) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." If a criminal defendant had to wait thirty days after his arraignment before he could seek legal counsel so that he would not unduly resist his prosecution? Unconstitutional, of course. See Rothgery v. Gillespie Cnty. ("[C]ounsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial."). The Second Amendment is no different.

As a general matter, the government cannot delay the exercise of a right because it believes that citizens might misuse it without sufficient time to reflect beforehand. {To be fair, this instinct has not always borne out. In some cases, "waiting periods have been found to be constitutionally permissible as to other rights" [such as with regard to] … abortions, assisted suicide and sterilization, as well as notice requirements for marriage licenses, demonstrations, or parade permits …. But those examples do not suggest that waiting periods do not burden those rights. Caselaw consistently looks with skepticism at inescapable delays on the exercise of enumerated rights[, with] … cases suggesting that any waiting period and delay must have exceptions for emergencies or special circumstances ….} …

We recently held that some longstanding prohibitions, such as minimum age limits, not only survive Bruen and Rahimi, they also presumptively do not burden the Second Amendment. Still, courts have only partially fleshed out the boundaries of these commercial conditions and qualifications in other Second Amendment challenges, and we acknowledged the lack of fully fleshed out guidance on these "safe harbor" provisions …. But even in this murky territory, the Waiting Period Act falls far short of a presumptively constitutional law. It is not limited to commercial sales, and it does not fit with other known conditions and qualifications in this category….

Outside the presumptively constitutional exceptions, the validity of laws that fall under the Second Amendment's text is determined by history and tradition…. Because the burden is on the government at this stage, we consider the historical examples provided by New Mexico and its experts.

First, we reject the notion that other waiting period laws themselves carve out a historically grounded principle. They are mostly a modern innovation. New Mexico points out that the Waiting Period Act's historical pedigree stretches back to 1923, but that is an oversimplification. True, California imposed the first (one-day) waiting period in that year, intended to give officials time to conduct a background check. A few states followed suit over the next few decades. But those early examples are easily distinguished from this one because they were explicitly tied to the time it took to conduct a background check. Until the 1990s, no waiting period law required a prospective buyer to wait longer than was necessary to conduct a background check….

Second, New Mexico contends that a variety of firearm restrictions are analogous to the Waiting Period Act: intoxication laws; license and permitting regimes; and targeted group bans on firearm carry or possession. New Mexico argues that all three categories indicate that Founding-era governments could limit access to firearms to ensure that those keeping and bearing arms were "responsible and law abiding citizens." True, shall-issue licensing regimes, background checks, and many other barriers to firearms access serve that purpose. But the only way that the Waiting Period Act fits into that principle is if anyone seeking to purchase a firearm can be presumed irresponsible or non-law-abiding, purely by dint of their intention to purchase a firearm. Constitutionally, they cannot….

New Mexico asks us to accept a principle so broad that it is obviously incorrect…. [T]he district court perceived a historical principle justifying prohibitions on sales to the general populace on the grounds that some among them would harm the public. If that principle were accepted, any regulation could be justified. Any class of people could be the subject of a targeted ban, including any age group, demographic, and any geographic area. Any class could be denied access to firearms if the government feared that some among them would harm the public. It is hard to imagine an exception more likely to swallow the rule….

Nothing in the record suggests that the historically understood right to keep and bear arms tolerated universal and indiscriminate burdens on purchasing or acquiring firearms with no way to enjoy the full right. This principle cannot clarify the Second Amendment's scope because the principle itself contradicts the Second Amendment's existence. No meaningful limitation could be placed on the government's power to regulate firearms, disarm the citizenry, or criminalize firearm use if we accepted every regulation that is based on a fear that someone somewhere would likely misuse a gun….

And a short excerpt from Judge Scott Matheson's long dissent:

Under Rocky Mountain Gun Owners v. Polis (10th Cir. 2024), the Waiting Period Act is (1) a presumptively lawful condition or qualification on the commercial sale of arms that (2) is not employed for abusive ends….

[T]he majority says the Act is "not tailored to commercial sales," conceding the Act regulates only the sale and purchase of arms, but noting it also covers certain non-commercial sales while exempting certain commercial sales…. But the Colorado age restriction upheld in RMGO covers and excludes the same types of sales….

RMGO provides a roadmap for the abusive ends analysis…. First, as in RMGO, the Act "sets a narrow, objective, and definite standard that applies uniformly to all potential sellers and buyers, eliminating any possibility for subjective interpretation or exceptions."

Second, the Act seeks to keep guns from those who may act impulsively or illegally, see App., Vol. V at 1031 (explaining the Act's primary purpose is to "prevent[ ] impulsive suicides and homicides"), and is thus "aimed at ensuring guns are held by law-abiding, responsible persons." Consistent with this purpose, the Act exempts from the waiting period concealed handgun license holders, who are required to pass background checks and complete safety training, which belies the majority's criticism that the law "treat[s] all those seeking a firearm as unusually dangerous."

Further, the record "support[s] the legislation's purpose." The district court found that "waiting periods reduce gun homicides by roughly seventeen percent" and "have been shown to decrease suicides." It also found that the Act's waiting period "is likely to save approximately thirty-seven lives per year." Plaintiffs do not challenge these factual findings on appeal.

Third, nearly a dozen states plus the District of Columbia have enacted waiting period laws that apply to some or all firearms.

In short, the law does not serve abusive ends. It does not "meaningfully constrain[ ] the right to keep and bear arms." Like the minimum age requirement upheld in RMGO, the Act "neither prohibits anyone from possessing a gun nor prohibits certain non-purchase gun transfers of ownership," but rather imposes a modest delay on commercial acquisition of arms. And like shall-issue licensing regimes generally, the Act "do[es] not necessarily prevent 'law-abiding, responsible citizens' from exercising their Second Amendment right[s]," but rather is "designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'"

Matthew D. Rowen, Paul D. Clement, Erin E. Murphy, and Kevin Wynosky (Clement & Murphy, PLLC), Michael D. McCoy, D. Sean Nation, and Robert A. Welsh (Mountain States Legal Foundation), Joseph G.S. Greenlee and Erin M. Erhardt (NRA), and Carter B. Harrison IV (Harrison & Hart) represent plaintiffs.

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[Josh Blackman] The ABA Disregards Law School Objections, Mandates 12 Credits of Experiential Learning

[There is absolutely no evidence showing that the ABA's dictates are effective.]

The American Bar Association's Council of the Section on Legal Education is moving forward with a new standard that would require twelve credits of experiential learning for graduation. An earlier version of this proposal was already widely opposed by law school deans. But the ABA only made small modifications to the program. There will now be a forty-five day comment period. But we can see the writing on the wall.

There are many problems with the ABA's approach to accreditation. But perhaps the biggest problem is that the Council adopts standards without any proof these standards will accomplish their stated goal. The ABA demands that law schools demonstrate that they are satisfying certain objectives, but the ABA never imposes such mandates internally.

Dan Rodriguez of Northwestern stated, correctly, that there is no evidence showing these reforms will be effective:

But Northwestern Pritzker School of Law professor Daniel Rodriguez said the revisions are unlikely to win over critics like himself who believe the ABA is going too far in dictating curriculum without providing adequate data to justify the proposed changes.

"There is a conspicuous lack of what we might call evidence-based analysis in the council's work," Rodriguez said.

Brian Leiter of Chicago makes the point more forcefully:

The latter gives law schools an opportunity to organize in opposition to these indefensible changes. Some possibilities: (1) a collective refusal by dozens of law schools to comply with these requirements that will disrupt their programs of legal education without any evidence of their benefit--let's dare the ABA to start stripping accreditation from elite law schools, state flagships, etc. (2) a collective effort to lobby the Education Department to recognize other accreditors of law schools, and perhaps to strip the ABA of its accreditation role entirely given its repeated bad behavior.

Even Gerard Magliocca, one of the most mild-mannered people I've ever met, is outraged:

The decision of the Council on Legal Education on new experiential learning requirements for law schools, summarized here, is just more evidence that the ABA's accreditation role should be curtailed or eliminated. I've been a legal educator for nearly 25 years. I can't think of any positive contribution by that organization in this field.

I couldn't agree more. I remain convinced the ABA's accreditation role is substantially modified, if not eliminated, within a decade. And that wound will be entirely self-inflicted.

I have written at length about the problems with the ABA's accreditation role. The Supreme Courts of Florida, Texas, and Ohio are now reconsidering whether to require ABA accreditation in their states. I think other states will follow. Moreover, the Trump Administration is closely scrutinizing the ABA's DEI mandates. The ABA is under siege.

You would think that the ABA would realize what time it is, and shore up their support from the political left. No. They did the exact opposite. They raised a large middle finger to elite law schools whose students have no need or interest in twelve hours of experiential learning.

Maybe there is a Baptist and Bootlegger coalition to be hand with the right and left. I'll let you decide who are the Baptists and who are the Bootleggers.

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[Eugene Volokh] Sanctions Decision as to Rape Allegations Against Comedian Druski, in Case Also Involving Sean Combs (P. Diddy)

["After the lawsuit was filed, Desbordes' [Druski's] counsel sent Plaintiffs' counsel evidence, including debit card records and phone records, showing that it was virtually certain that Desbordes was in Georgia at the time of the alleged rape, and thus could not have participated in the assault." "Yet, at the hearing on the motion for sanctions, Plaintiffs' counsel expressly stated Plaintiffs 'have no desire to dismiss Mr. Desbordes' from the lawsuit."]

From today's order by Judge Rita Lin (N.D. Cal.) in Parham v. Combs:

This lawsuit concerns the alleged gang rape of Plaintiff Ashley Parham that occurred on March 23, 2018, in Orinda, California. On March 13, 2025, Plaintiffs amended their complaint to add Defendant Drew Desbordes to the lawsuit, alleging that he participated in the rape.

Desbordes has moved for sanctions against Plaintiffs' counsel under Rule 11 of the Federal Rules of Civil Procedure, which requires attorneys to have a factual basis for allegations made in a complaint and to have conducted a reasonable investigation prior to filing suit. After the lawsuit was filed, Desbordes' counsel sent Plaintiffs' counsel evidence, including debit card records and phone records, showing that it was virtually certain that Desbordes was in Georgia at the time of the alleged rape, and thus could not have participated in the assault.

At the time that Plaintiffs' counsel filed the amended complaint, there did appear to be a reasonable factual basis for naming Desbordes, as further explained below. Therefore, the Court declines to sanction Plaintiffs' counsel for suing Desbordes in the first place and DENIES the motion.

However, even after receiving the new evidence about Desbordes, Plaintiffs' counsel continued to allege at the hearing on July 10, 2025, that the claims against Desbordes are viable and stated that Plaintiffs intend to pursue them. Those continued allegations appear to have no reasonable factual basis. Accordingly, the Court ORDERS Plaintiffs' counsel TO SHOW CAUSE why sanctions should not be issued for the statements made at the July 10, 2025 hearing….

Allegations of the Complaints

On October 15, 2024, Plaintiff Ashley Parham filed this lawsuit against Defendants Sean Combs, Kristina Khorram, Shane Pearce, John Does 1-3, and Jane Doe.   In her complaint, Parham alleges that she met Pearce at a bar in February 2018. While at the bar, Pearce allegedly FaceTimed Combs. Parham alleges that she had a tense exchange with Combs over FaceTime because she accused Combs of being responsible for Tupac Shakur's death.

According to the complaint, Pearce allegedly invited Plaintiff over to his home in Orinda, California on March 23, 2018. After Plaintiff and Pearce allegedly took a ride in his car, they returned to his residence. Approximately ten minutes later, Combs allegedly entered the residence, accompanied by Khorram and other Doe Defendants. At that point, Combs allegedly threatened Parham with a knife. He then allegedly violently raped her. Plaintiff alleges that Pearce and other Doe Defendants, including an individual identified as Doe 1 in the initial complaint, also raped her.

Parham alleges that Pearce set her up to be assaulted by Combs because of the statements she made about Combs over FaceTime. The complaint alleges facts in great detail relating to the lead up to the March 23, 2018 incident, the alleged gang rape, and the aftermath of the incident.

Defendant Desbordes was not named in the initial complaint. However, on March 13, 2025, Plaintiff Parham, in addition to Plaintiffs Jane Doe and John Doe, filed an amended complaint, naming additional Defendants Ruben Valdez, John Pelletier, Odell Beckham Jr., Drew Desbordes, Jacquelyn Wright, Helena Harris-Scott, Matias Gonzalez, Brandi Cunningham, Janice Combs, Keith Lucks, and John and Jane Does 1-10.   Desbordes is one of the Defendants alleged to have participated in the gang rape of Parham, identified as Doe 1 in the initial complaint.

The amended complaint also adds allegations relating to the two additional Doe Plaintiffs, Jane Doe and John Doe. The Doe Plaintiffs allege that, on an earlier date, Defendant Pelletier abducted them at gunpoint as they were walking to their vehicle somewhere in Las Vegas. They were initially allegedly transported to a different location in Las Vegas, and then were allegedly trafficked to various locations in California. Eventually, the Doe Plaintiffs were allegedly transported to the Orinda residence.

At the Orinda residence, the Doe Plaintiffs allegedly witnessed Parham's gang rape.

Additionally, Jane Doe was allegedly sexually assaulted by Defendant Valdez in another room. The Doe Plaintiffs were allegedly driven to a main road off the freeway and released later that night….

Having evaluated the evidence submitted in connection with the motion for sanctions,

Plaintiffs' allegations pertaining to Desbordes almost certainly lack a factual basis. Desbordes' phone and bank records from March 2018 show that he was almost certainly in the state of Georgia at the time of the alleged rape. For example, on March 23, 2018, the date of the alleged rape, Desbordes' debit card shows a purchase at a gas station in Loganville, Georgia. Desbordes also placed and received 16 calls on that date, each of which originated from Atlanta, Georgia.

All of the charges on Desbordes' debit card between March 15, 2018, and March 26, 2018, were made within the state of Georgia. There are ten charges in total during this time period. In addition to Loganville, Desbordes made purchases that posted from Duluth and Snellville, all three of which are cities within an hour drive of Atlanta. On March 26, 2018, one day after Desbordes started a new job at a Longhorn Steakhouse located in Johns Creek, Desbordes made three purchases at the Kroger in Duluth. Duluth is an approximately 15-minute drive away from Johns Creek. Additionally, between March 19, 2018, and March 30, 2018, every call Desbordes made originated from somewhere within the state of Georgia, either from Atlanta or a city within an hour drive of Atlanta. All of that makes it highly improbable that Desbordes was in California on the date of the alleged gang rape, March 23, 2018.

At the hearing, Plaintiffs' counsel argued that this evidence does not conclusively establish that Desbordes was in Georgia at the time of the alleged rape because the phone number associated with these phone records was registered in the name of Cheryl Desbordes, Desbordes' mother. However, Desbordes submitted current phone records showing that he still uses the phone number associated with the records from March 2018. Given that Desbordes' phone records reflect a pattern of activity that is consistent with his bank records, and that it would be unusual for someone to port over a phone number that was previously not their own, these records indicate that Desbordes was almost certainly in Georgia at the time of the alleged incident.

However, there is no suggestion that Plaintiffs' counsel had access to these records when Plaintiffs added Desbordes as a Defendant in the amended complaint. At the time of filing the amended complaint, there did appear to be a reasonable factual basis to name Desbordes.

According to Plaintiffs' counsel, after the initial complaint was filed, two individuals—Jane Doe and John Doe—contacted Plaintiffs' counsel offering to provide information related to the case. The Doe individuals informed Plaintiffs' counsel that Desbordes was present at the time of the assault. To confirm this fact, Plaintiffs' counsel presented Plaintiff Parham with a "photo

lineup," during which Parham identified Desbordes as one of the individuals who participated in the alleged assault.

Parham did not know the two Doe individuals or communicate with them prior to her identification. Moreover, even if Desbordes' participation is inconsistent with

Parham's initial report from 2018 concerning the alleged assault, Plaintiffs' counsel identifies plausible reasons why Parham may have been initially hesitant to name all of her alleged

attackers. Thus, at the time of filing the amended complaint, Plaintiffs' counsel had conducted a reasonable inquiry and had developed facts to plausibly support the claims against Desbordes. "A claim that has some plausible basis, even a weak one, is sufficient to avoid sanctions under Rule 11."

But, as the court noted, "Rule 11 authorizes sanctions for 'presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it.'" "As the advisory committee notes for the 1993 amendment to Rule 11 explain, the rule 'emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable.'" And this meant that,

Though Plaintiffs' counsel may have had a reasonable basis to name Desbordes as a defendant at the time of filing the amended complaint, Plaintiffs' counsel's continued advocacy of those allegations appears to constitute sanctionable conduct in light of the information now available. There appears to be no objectively reasonable factual basis to continue to accuse him.

Yet, at the hearing on the motion for sanctions, Plaintiffs' counsel expressly stated Plaintiffs "have no desire to dismiss Mr. Desbordes" from the lawsuit. Under Rule 11, courts have the power to issue sanctions on their own initiative, after ordering the "attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)." Accordingly, Plaintiffs' counsel is ORDERED TO SHOW CAUSE by filing a written explanation by September 9, 2025 as to why their representations that there is still a factual basis for naming Desbordes in the amended complaint [do] not warrant sanctions in the form of dismissal or attorneys' fees. Plaintiffs may file a voluntary dismissal of Desbordes before that date in lieu of a response. No reply will be required unless further ordered….

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[Eugene Volokh] Risk of Professional Blacklisting in Hollywood Can't Justify Pseudonymity in Lawsuit Against Production Company

." />Poster for A La Carte on Amazon. (Poster for <a href="https://www.amazon.com/exec/obidos/AS... show on Amazon</a>.)

 

From Thursday's decision by L.A. Superior Court Judge Gary Roberts in Doe v. A La Carte Productions, LLC:

The complaint alleges the following. On October 1, 2021, Plaintiff received an invitation to audition for a role in Dijon Talton's directorial debut, entitled A La Carte. According to the audition notes, A La Carte was to be a "a scripted, dramedy series about the Black millennial dating experience and one girl's … 'liberal' approach to sex and dating." The series was to air on ALLBLK, a subscription entertainment service operated by AMC Networks and dedicated to streaming content featuring Black talent. On October 29, 2021, Defendants extended an offer to Plaintiff for a lead role in the show.

Plaintiff's talent agents negotiated on her behalf that she was to be dressed in either non­see-through lingerie or non-see-through bra and underwear when shooting simulated sex scenes, and that she would not be filmed in any way that would show full frontal or rear nudity.

On November 3, 2021, ALC Productions' attorney emailed Plaintiffs representatives "the agreement for [Plaintiffs] employment in the series A La Carte." In the months to follow, this document, the "Talent Agreement," would undergo various edits and revisions. However, the key provisions regarding nudity, simulated sex scenes, and compensation remained virtually untouched from the November 3 original version.

On the second day of filming, Plaintiffs partner for the simulated sex scenes had been replaced overnight with an actor whom she had never met and Plaintiff met the on-set intimacy coordinator for the first time, who. supervises and choreographs simulated sex scenes, ensures closed sets, remains on hand to robe actors after filming, and serves as the set medic. Immediately after meeting the intimacy coordinator, Plaintiff filmed her first simulated sex scene for A La Carte. She was scripted to "have sex" on a bar with her new scene partner. The intimacy coordinator did not run through any choreography prior to the filming of this scene, nor did she ensure that Plaintiffs new scene partner had undergone a physical examination to prevent against the transmission of venereal disease. She also did not ensure the set was closed.

Later in the day on November 10, 2021—after Plaintiff's complaint had been communicated to the intimacy coordinator—Plaintiff filmed two more simulated sex scenes. The first scene's script directed Plaintiff to "lie naked, soaked and sated" in a bed. Per the oral and written agreements, Plaintiff requested underwear to cover her body during filming. The crew handed her a thong, which exposed her buttocks to the camera, and which violated both Plaintiffs oral and written agreements regarding nudity.

Then, Plaintiff was directed to act out a "shower sex" scene. Plaintiffs scene partner was completely nude except for a prosthetic covering his genitals. Plaintiff was once again given a lace thong, and this time she was given "pasties," which covered only a minimal portion of her breasts to conceal her nipples. The intimacy coordinator did not close the set, and Plaintiff could see several people whom she had never witnessed standing around the monitor, watching her simulate sex in a shower.

Plaintiffs sixth and final simulated sex scene was filmed later that night, on November 24, 2024. Again, the intimacy coordinator was not present. Again, the set was not closed. As the camera began to roll, Plaintiff endured increasing discomfort as she performed this simulated sex scene in a highly exposed setting, once again clad in a revealing thong and pasties.

Plaintiff sued, and sought to proceed under a pseudonym, but the court said no, applying California law but viewing many federal precedents as persuasive as well:

A court may permit plaintiffs to use pseudonyms in three situations: "(1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary 'to preserve privacy in a matter of sensitive and highly personal nature'; and (3) when the anonymous party is 'compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.'" Where the request for anonymity is based on the purported need "to preserve privacy in a matter of sensitive and highly personal nature," the proper test is whether "the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." "Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'"

Plaintiff contends that she has an overriding interest that overcomes the right of public access to the record and supports sealing the record because, as alleged, Plaintiff Jane Doe is a practicing actor, and thus, Plaintiffs' career prospects and reputation will be harmed by public disclosure of the harms they have allegedly suffered….

However, Plaintiff has not provided any direct admissible evidence in support-of her contentions. Plaintiff does not provide any declaration or any competent evidence that demonstrates any "retaliatory physical or mental harm" that Plaintiff specifically would suffer if her identity became known. Speculative claims of harm to Plaintiffs career, unsubstantiated by any evidence, does not suffice. (See Nat'l Commodity & Barter Ass'n v. Gibbs (10th Cir. 1989) [explaining that anonymity "has not been permitted when only the plaintiff's economic or professional concerns are involved"]; Doe v. Bergstrom (9th Cir. 2009) ["difficulties finding employment" insufficient to compel leave to proceed anonymous]; Doe v. Georgia-Pacific, LLC (C.D. Cal. 2012) ["fear of loss of employment does not constitute a severe harm warranting anonymity"]; Exotic Dancers v. Spearmint Rhino (C.D. Cal. 2009) [holding that "threats of termination and blacklisting" against plaintiffs filing under their true names are not unusual circumstances meriting pseudonymity].)

Thus, Plaintiffs claim of potentially "being blacklisted in the entertainment industry for suing her former production company and its powerful parent television network" falls short. "[T]he Court does not doubt that [Plaintiffs] fears of economic retaliation are objectively reasonable and that [she is] vulnerable to such retaliation." "But that does not alter the conclusion that pseudonymity is not necessary given that the feared injury is not extraordinary." … "This type of economic retaliation is not sufficiently severe to warrant pseudonymity." …

However, the Court does agree that the Complaint alleges repeated sexual misconduct, which contains highly sensitive details about Plaintiffs experiences on the set of the show. But, again, there is no evidentiary support for any allegation that might take this case out of the general rule favoring open courts. Indeed, much of what makes the show of a sensitive nature is inherent in the sexual nature of the show, and that the show remains publicly available for viewing, Plaintiffs true name is attached to her performance in the show, and her performance is still currently listed in her filmography on the popular film and television industry website IMDB.com. H.B. Fuller Co. v. Doe (2007) ["[T]here is no justification for sealing records that contain only facts already known or available to the public."].

It should also be noted that allowing Plaintiff to proceed by pseudonym will substantially complicate Defendant's ability to mount an effective defense. It will make it much more difficult to conduct discovery and to manage witnesses at trial if the identity of Plaintiff must be held in confidence. Likewise, Plaintiffs allegations, if proven, give rise to substantial public interest questions; prioritizing protecting her identity over all other interests runs a real risk of avoiding full public understanding of and accountability for any wrongdoing.

Finally, in making this order, the Court gives great weight to the fifth and final factor of the Rule of Court: whether less restrictive means are available to protect the legitimate interests of the party seeking to proceed pseudonymously. It may be the case that, in the course of this proceeding, facts come to light where the Court might make a different determination as to that particular matter. In that event, the Court will not hesitate to protect Plaintiffs privacy concerns as to any such matter by use of appropriate protective orders.

To reiterate, "there is a general presumption that parties' identities are public information." That is because "[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts."

Michael Karikomi (Katchko, Vitiello & Karikomi, PC) and Matthew Morris represent defendants.

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[Eugene Volokh] Plaintiff Had Alleged He Was Called a "Haitian N****"

From an opinion by Judge Steve Jones (N.D. Ga.) in Lenord v. Racetrac, Inc., decided a year ago but just recently posted on Westlaw:

To support his discrimination complaint, Plaintiff referred specifically to a white teammate who, in his words, had called him a "Haitian N****" several times the year before, in 2019. At his deposition, however, Plaintiff admitted that his teammate had called him "Haitian Ninja," not "Haitian Nigger," as his email stated. A text message produced during discovery provides some context—after completing a work task, the white teammate texted Plaintiff: "Excellent. Just the way I like it. Flying under the radar. Just call me a Haitian Ninja in training."

Notably, in an unsent email draft, Plaintiff had originally used the word "Ninja" rather than the elliptical term "N****." But for some reason he changed the wording in the email sent to Fitzhugh and Campbell. Fitzhugh expressed frustration with Plaintiff's portrayal of events but confided to HR that "it really might just be a foundational language barrier." …

Here's the unsent email draft, as uncovered in discovery (see PDF p. 33 of this filing):

And here's the email draft he sent (see PDF p. 36):

Plaintiff also made other allegations of workplace harassment:

In February 2019, Plaintiff complained that another Black teammate had used offensive language during a team meeting. In his email to management, Plaintiff alleged that the teammate had "used a racial slur 'f*** that N****['] towards me. [sic]." At his deposition, Plaintiff clarified that rather than directing profanity at him, as his email had suggested, the teammate instead had described his own impressions after he believed Plaintiff had ignored his phone call. Plaintiff explained:

The phrase was—[the teammate] said he called me. I didn't answer my phone. This is after I left work and [the teammate] said [at the meeting], "It's like Fab [Plaintiff] said, 'Fuck this nigger.'"

In other words, the teammate was not using a slur to describe Plaintiff, but was referring to himself in the third person while recounting an incident.

In any event, Sprayberry investigated the complaint and determined that the allegation was unfounded. According to Sprayberry, the teammate denied making the statement and three others present at the meeting corroborated that account. After speaking with Plaintiff, Sprayberry summarized the conversation in an email, pointing out to him that "there is a prevailing perception amongst your teammates that you look for conflict, that you do not want to work with them and that you want to keep to yourself as much as you can." Sprayberry concluded his communication by underscoring that Plaintiff must "figure out a way to work better with [his teammates] and that a drastic improvement is needed immediately."

In October and November 2019, Plaintiff met with HR to again report frustrations with Oliver and his NOC teammates. He complained about several issues, including work assignments, teammates sleeping on the job, the just-described February 2019 incident, and past comments and jokes about his national origin. For instance, according to Plaintiff, before Oliver became NOC manager, he remarked that "Haitians love to work." He added that teammates occasionally made fun of his Haitian accent, once referred to the catastrophic 2010 earthquake in Haiti, and introduced him to a Dominican vendor for no apparent reason (even though, Plaintiff explained, Haiti and the Dominican Republic have had a violent relationship).

Someone even joked one time about placing a Dominican flag on his desk. By Plaintiff's admission, however, only the flag comment had occurred after 2016.

HR investigated the allegations, interviewing nine individuals including Plaintiff, Oliver, Fitzhugh, and several other NOC technicians. HR found no evidence that he had been discriminated against….

The court adopted the Magistrate Judge's Report and Recommendations, which reasoned in relevant part:

Here, Plaintiff has presented only two examples of arguably race-related harassment. He first says that in February 2019, a Black teammate used the word "nigger" when referring to himself in the third person. The teammate did not, to underscore the point, direct the term at Plaintiff. See Yelling, 82 F.4th at 1336 ("[O]verhearing offensive comments is less severe or humiliating than being the intended target of direct harassment."); Weatherly, 2024 WL 2698023, at *9 (observing that objectionable comments are less severe when made neither to nor about the plaintiff).

Next, he says that in 2019, a White teammate several times referred to him as a "Haitian Ninja." On its face, that phrase isn't racist. In Plaintiff's view, however, "ninja" oftentimes serves as a euphemism for the word "nigger." The undersigned observes that the context of the remarks runs against his interpretation. But even crediting Plaintiff's account, these collected incidents—amounting to just a handful of arguably offensive remarks—don't come close to the requisite level of severity. There is no shortage of decisions demonstrating as much. [Citations omitted. -EV]

As the Magistrate Judge's Report notes, plaintiff's lawyer argued that "ninja" was just a sanitized way of saying "nigger," and depending on the circumstances that might be so. But simply sending an e-mail with "n****" instead of "ninja"—as opposed to an e-mail saying that the word was "ninja" but explaining what one thought was the real meaning—seems less than candid. And the incident is a reminder that if one sees such redactions, one ought to investigate to make sure one knows what the actual unredacted word was (see, e.g., n. 73, PDF pp. 19-20 of Quoting Epithets).

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[Eric Claeys] Natural Property Rights: A VC Preview

[Foxes, whales, and injustice toward the property claims of aboriginal tribes.]

I'm blogging this week about my new book Natural Property Rights, published with Cambridge University Press and available for purchase now digitally and in hardbound version, at a variety of bookstores. Yesterday, I summarized the book's normative theory. I also promised readers that, for the rest of this week, I would explain how that theory applies to property through the prism of a 1L property course.

Before starting, let me explain in a little more detail two points I made yesterday. First, in a natural law framework, a natural property right isn't a sweeping right of autonomy. When people want to establish rights in relation to particular ownable resources, they need to satisfy two requirements: They must put the resources to morally-productive uses, and they need to communicate to their neighbors their property claims reasonably clearly. Even then, the rights are subject to two provisos: one for cases of necessity, and another when proprietors' claims leave neighbors with insufficient access to resources like the ones covered by those claims.

Second, that right supplies some but not complete guidance to legislators, judges, and other public officials, for evaluating how just particular property laws are. Rights focus the discretion lawmakers exercise when they set laws—somewhat, but not completely. Many natural lawyers describe that discretion as "determination" (a term associated with St. Thomas Aquinas). Legal philosophers like to illustrate that discretion with speed limits. Although legislators exercise a lot of discretion when they set speed limits, in all of those exercises they're trying to coordinate the rights of drivers to travel where they want, with the rights of drivers, cyclists, and pedestrians to be secure in their persons and property. A natural property right supplies about the same guidance for conventional property laws.

Start first with ordinary acquisition doctrines. Acquisition doctrines raise two basic policy questions. Assume an ownable resource isn't yet owned. Should it be converted by law into an ownable resource? If so, who should get to own it? The first question doesn't have any single answer. Some resources are hard to break up into discrete units of property (light, or airspaces) and some (big bodies of water) lend themselves to concurrent and common uses. Resources like those are bad fits for private property thanks (respectively) to problems highlighted by the claim-communication and the productive-use requirements.

But consider the fox at issue in Pierson v. Post (N.Y. 1805), the case in which Pierson killed and took away the fox Post was pursuing closely on a hunt with hounds. A fox is a good candidate for private property. After all, it is easy to demarcate property in a single fox, dead or alive. And animals can be put to many valuable individual human uses—in Pierson, all the uses to which a pelt might be put. And a capture rule is a sensible way to answer the question who should get to own an unowned fox. When someone captures a fox, he broadcasts reasonably clearly to everyone else that he means to use it for his own private purposes.

Now, Pierson's capture doctrine tracks one of the elements of a natural property right but not all four. A legal capture rule doesn't require fox-capturers to put foxes to beneficial uses. Nor does it recognize exceptions corresponding to the necessity and sufficiency provisos. But those omissions seem reasonable adaptations to practice (i.e., reasonable determinations). A legal system can address different policy concerns in different doctrines—as the necessity defense does for the necessity proviso. And as for productive use, it's reasonable for law to rely on a generalization. Other things being equal, the first person to catch an animal is probably the most likely person to put it to uses that help people survive or thrive.

Obviously, though, an "other things being equal" generalization doesn't always hold, and bright-line capture doctrines may not always seem reasonable adaptations to practice. 1Ls often consider the limits of such doctrines with Ghen v. Rich (U.S. District Court, Mass., 1881), Ghen sued Rich to recover the value of a whale carcass. One of Ghen's whaling boats harpooned a whale off of Cape Cod, Massachusetts and left in the whale a lance with Ghen's company lance-mark. But the whale escaped, died later, and washed to shore on a private beach owned by Ellis, who then sold the carcass to Rich. Rich argued that Ellis had captured the whale when he claimed it on his beach; Ghen insisted that his whalers had captured it when they harpooned it.

Under a rule of capture as strict and literal as Pierson's, Rich should have won. Along the New England coast, though, a custom departed from a bright-line capture rule. Under the custom, if a whaler harpooned a whale, and if the harpoon had on it a mark associated with the whaler's company, the whaler captured the whale. The Ghen court concluded that the custom superseded the common law rule as stated in Pierson, and that Ghen had appropriated the whale before Ellis tried to take it.

The high-level imperatives are the same for foxes and whales—to assign a right in a resource that isn't yet owned to the first person to use it and claim it. But it takes a lot more investment, effort, and risk to reduce a whale to complete control than it does to catch a fox. Those activities all affect the whaler's claim of right, and the productive use requirement explains why. But although the whaling custom relaxed the strictness of the capture rule, it didn't eliminate that rule. The custom still required the whaler to communicate his claims—by whaling with company marks on his harpoons.

Now, in acquisition disputes as in most other property disputes, the focus is on securing the rights of all the parties. A resource that could be owned isn't yet owned, and officials are looking for signs that one person has done more than anyone else to start using that resource in human society. When officials are conducting those inquiries, they aren't looking at the races, backgrounds, or political statuses of the parties before them. Unfortunately, however, officials aren't always that dispassionate. And when officials are really determined to be unjust, natural law and rights can exert little influence on positive law.

That is one of several unhappy lessons from Johnson v. M'Intosh (1823). In Johnson the U.S. Supreme Court settled a dispute over title to lands in what's now Illinois. M'Intosh purchased the land in dispute from the U.S. government. Johnson and Graham argued that the U.S. government hadn't had title to sell, because Native American tribes had held the relevant land and sold title to their predecessors in interest.

The Supreme Court sided with M'Intosh. The Court concluded that title to the relevant lands was governed by a "first European discoverer" rule followed consistently in the U.S. and among European colonial powers. Under that rule, Native American tribes and tribal members could hold limited rights to use land, but no legal authority to alienate their rights.

I'm passing over a few complications in Johnson. The United States and different Native American tribes constituted distinct political communities, the stakeholders in any one community don't need to do as much to respect the natural rights of people from other communities as they should for members of their own community. Still, political communities shouldn't violate the rights of nonmembers, and the U.S. did violate the rights of Native Americans through its land laws and policies. Chief Justice John Marshall hinted as much. The first European discoverer rule went against "principles of abstract justice," he suggested, and it constituted an "extravagant … pretension" and was "opposed to natural right." But the rule was "indispensable" to American legal practice and the secure title of land in the United States, and that being so it could "not be rejected by Courts of justice" in the U.S.

Johnson is often interpreted to show that property law is a creature of positive law and not natural law. Is that so? For the most part, yes.
Natural rights give positive law goals or points, ideals for officials to pursue if they are conscientious. But the natural law and natural rights require also that there be some bare minimum of law in a society. And if a majority of citizens and the leaders in a society are not conscientious, if they are dead set on denying the rights of others, they can reduce their unjust desires into positive law. In those situations, officials have no freedom to consult natural rights as they administer and shape law. (Think of the concession in Federalist essay 78, that the "judgment" of the judiciary is far weaker than the "sword" wielded by the executive.) Then, natural rights can only serve as standards for criticizing existing laws, as they did during antebellum debates over slavery and post-World War II debates over Jim Crow.

Tomorrow, I'll cover two other topics. Can use-based natural property rights justify the broad autonomy conferred in law by ownership? And, can the natural rights justify doctrines that divide up ownership rights … as Anglo-American law does via estates and future interests?

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[Josh Blackman] WSJ Publishes Leak from the New York Supreme Court Appellate Division, First Department

[WSJ got some inside information about the pending Trump civil-fraud case.]

The Wall Street Journal published an article, titled "Court Split Leaves Trump's Civil Fraud Appeal Stuck in Slow Lane."

The story begins:

The New York court weighing President Trump's appeal of a roughly $500 million civil-fraud judgment typically acts swiftly and unanimously, with many of its decisions coming within weeks after hearing arguments.

Trump's experience stands out as an unusual exception.

A five-justice panel has yet to render a decision nearly a year after taking up the case, leaving him and his business in limbo. Behind the scenes, members of the panel have been divided, and three of them have been writing opinions, according to people familiar with the matter. It couldn't be determined how they are split. Justices do occasionally shift their positions, and the number of opinions could change, the people said.

A spokesman for the New York state court system said it doesn't comment on pending litigation. A spokesman for Trump's legal team said, "It is time for the New York Courts to step in and end this witch hunt once and for all."

…

The panel hearing the Trump appeal includes four judges appointed by Democratic governors and one Republican appointee, David Friedman, who is regarded as among the most conservative of the court's 21 members. The court's presiding justice, Renwick, also on the panel, is viewed as a stalwart liberal who has an institutional interest in seeking consensus and guarding the court's reputation.

The United States Supreme Court has taken measures to prevent leaks. But what about the New York intermediate state appellate court?

There is obviously only one remedy for this leak. But I repeat myself.

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