Eugene Volokh's Blog, page 61

[Eugene Volokh] Don't Plead History and Bruen in Cruel and Unusual Punishment Challenge to Long Prison Sentence for Rape, When Rape Was Historically a Capital Crime

From yesterday's decision of the Iowa court of Appeals in Cue v. State, written by Judge Tyler Buller and joined by Judges Julie Schumacher and John Sandy:

Cue's … application for postconviction relief … cited New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), to claim that Iowa's mandatory-minimum-sentencing scheme for certain class "B" felonies (seemingly as applied and on its face) was incompatible with our historical traditions and therefore cruel and unusual punishment. The district court denied relief, finding Cue cited "absolutely no authority to support his proposition that the Bruen test should be profoundly expanded to include sentencing schemes for sex offenses." …

Cue pled guilty in 2019 to four counts of sexual abuse in the second degree, class "B" felonies in violation of Iowa Code section 709.3(1)(b) (2017), for raping and molesting his minor children over the course of years. The sentencing court ran half of the counts concurrent and half consecutive, amounting to two consecutive twenty-five-year prison sentences, each of which has its own 70% mandatory minimum. We affirmed on direct appeal….

[W]e reject any claim grounded in Bruen. We recently disposed of a similar Bruen challenge to the statute of limitations for postconviction relief….

First, we are … aware of no court expanding Bruen beyond the Second Amendment, and Cue … offers no compelling reason we should be the first.

Second, existing Iowa law requires us to reject the claim. See State v. Laffey (Iowa 1999) (rejecting a cruel-and-unusual-punishment challenge to an identical prison sentence for identical convictions, with an even greater mandatory minimum).

And third, history does not favor the leniency Cue seeks: rape was a capital crime when the Eighth Amendment was adopted. Bruen is not a magic talisman reopening litigation of every constitutional right for prison inmates, and it is no basis for relief on Cue's claims….

Louis S. Sloven, Assistant Attorney General, represents the state.

The post Don't Plead History and Bruen in Cruel and Unusual Punishment Challenge to Long Prison Sentence for Rape, When Rape Was Historically a Capital Crime appeared first on Reason.com.

[Eugene Volokh] Georgia Trial Court Cites Likely AI-Hallucinated Cases (Possibly Borrowed from Party's Filing)

[There have likely been hundreds of filings with AI-hallucinated citations in American courts, but this is the first time I've seen a court note that a judge had included such a citation.]

From Monday's decision in Shahid v. Esaam, by Judge Jeffrey Watkins (Ga. Ct. App.), joined by Judges Anne Barnes and Trenton Brown; note that the trial court's order was apparently a proposed order prepared by a lawyer (in many state courts, it's common for judges to rely on lawyers to prepare such orders):

After the trial court entered a final judgment and decree of divorce, Nimat Shahid ("Wife") filed a petition to reopen the case and set aside the final judgment, arguing that service by publication was improper. The trial court denied the motion, using an order that relied upon non-existent case law. For the reasons discussed below, we vacate the order and remand for the trial court to hold a new hearing on Wife's petition. We also levy a frivolous motion penalty against Diana Lynch, the attorney for Appellee Sufyan Esaam ("Husband")….

Wife points out in her brief that the trial court relied on two fictitious cases in its order denying her petition, and she argues that the order is therefore, "void on its face." … In his Appellee's Brief, Husband does not respond to Wife's assertion that the trial court's order relied on bogus case law. Husband's attorney, Diana Lynch, relies on four cases in this division, two of which appear to be fictitious, possibly "hallucinations" made up by generative-artificial intelligence ("AI"), and the other two have nothing to do with the proposition stated in the Brief.

Undeterred by Wife's argument that the order (which appears to have been prepared by Husband's attorney, Diana Lynch) is "void on its face" because it relies on two non-existent cases, Husband cites to 11 additional cites in response that are either hallucinated or have nothing to do with the propositions for which they are cited. Appellee's Brief further adds insult to injury by requesting "Attorney's Fees on Appeal" and supports this "request" with one of the new hallucinated cases.

We are troubled by the citation of bogus cases in the trial court's order. As the reviewing court, we make no findings of fact as to how this impropriety occurred, observing only that the order purports to have been prepared by Husband's attorney, Diana Lynch. We further note that Lynch had cited the two fictitious cases that made it into the trial court's order in Husband's response to the petition to reopen, and she cited additional fake cases both in that Response and in the Appellee's Brief filed in this Court….

As to Lynch's request for attorney fees "for the costs incurred in responding to this appeal[,]" that section of Appellee's Brief provides:

OCGA § 9-15-14: This statute authorizes the recovery of attorney's fees if the court finds that an action, including an appeal, lacked substantial justification or was filed to delay or harass.Johnson v. Johnson, 285 Ga. 408 (2009): The court awarded attorney's fees to the prevailing party in a divorce appeal, finding that the appeal was without merit and amounted to frivolous litigation.

We cannot find the cited case, Johnson v. Johnson, either by case name or citation. And, not surprisingly, we could not locate the case by its purported holding, which is a blatant misstatement of the law. More than 30 years ago, this Court held that "OCGA § 9-15-14 does not authorize the imposition of attorney fees and expenses of litigation for proceedings before an appellate court of this state." Since then, our Supreme Court has consistently and clearly reiterated this point multiple times: "attorney's fees incurred in connection with appellate proceedings are not recoverable under OCGA § 9-15-14." Moreover, it is worth pointing out that we granted Wife's application for discretionary review (Case Number A25D0396) which "established as a matter of fact and law that her appeal is not frivolous." …

Under the circumstances and given the indisputably clear state of the law, Husband's attorney, Diana Lynch, cannot reasonably have believed, as the Appellee's Brief "requests," that this Court would "award attorney fees under OCGA § 9-15-14 for the costs incurred in responding to this appeal." Further, Lynch provided no other basis for an award of "attorney's fees to the prevailing party in a divorce appeal," other than a fictitious case, which purported to be a 2009 case from the Supreme Court of Georgia.

To be clear, we make no factual finding as to who (or what) inserted the fictitious cases into the superior court's order. We are deeply troubled, however, that Lynch submitted to this Court an Appellee's Brief, completely ignoring the second of two arguments that Wife raised in her Appellant's Brief and Application for Discretionary Review (wherein Wife pointed out the two fictitious cases in the trial court's order), and provided 11 bogus case citations out of 15 total, one of which was in support of a frivolous request for attorney fees.

Therefore, we impose a $2,500 frivolous motion penalty on Lynch, which is the most the law allows, pursuant to Court of Appeals Rule 7 (e) (2). We have no information regarding why Appellee's Brief repeatedly cites to nonexistent cases and can only speculate that the Brief may have been prepared by AI….

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[Ilya Somin] NIMBYism Stifles Housing Construction in Previous Growth Areas

[In recent years, exclusionary zoning and other regulatory restrictions have begun to block housing construction in areas where it was once relatively easy. ]

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In a recent article in the Atlantic, Rogé Karma, describes how NIMBY ("not in my backyard") forces have been increasingly stifling housing construction many areas - including Sun Belt cities - where it was previously relatively easy:

Something is happening in the housing market that really shouldn't be. Everyone familiar with America's affordability crisis knows that it is most acute in ultra-progressive coastal cities in heavily Democratic states. And yet, home prices have been rising most sharply in the exact places that have long served as a refuge for Americans fed up with the spiraling cost of living. Over the past decade, the median home price has increased by 134 percent in Phoenix, 133 percent in Miami, 129 percent in Atlanta, and 99 percent in Dallas. (Over that same stretch, prices in New York, San Francisco, and Los Angeles have increased by about 75 percent, 76 percent, and 97 percent, respectively).

This trend could prove disastrous. For much of the past half century, suburban sprawl across the Sun Belt was a kind of pressure-release valve for the housing market. People who couldn't afford to live in expensive cities had other, cheaper places to go. Now even the affordable alternatives are on track to become out of reach for a critical mass of Americans.

The trend also presents a mystery. According to expert consensus, anti-growth liberals have imposed excessive regulations that made building enough homes impossible. The housing crisis has thus become synonymous with feckless blue-state governance. So how can prices now be rising so fast in red and purple states known for their loose regulations?

As Karma describes later in the article, the main cause of the problem is the growth of exclusionary zoning and other regulatory restrictions on construction in areas where the were previously relatively lax. He relies in part on an important new  new National Bureau of Economic Research study by leading housing economists Edward Glaeser and Joseph Gyourko, which I analyzed here.

The trend is not entirely uniform, and there are bright spots. As Karma notes, cities like Raleigh, NC have enacted zoning reforms curbing NIMBYism. The same is true of Austin, Texas. The Texas state legislature recently enacted valuable statewide reforms., and California enacted a useful YIMBY law just yesterday.

I am also a little skeptical of the claim - advanced in Karma's article - that increases in the proportion of wealthy and highly educated residents in an area necessarily boost NIMBYism. Survey data on attitudes towards NIMBYism and housing construction is equivocal, and much depends on how questions are framed. Moreover, much survey data does not find a significant difference in attitudes between affluent homeowners on the one hand and renters on the other. Economic ignorance is often a bigger driver of support for exclusionary zoning than narrow self-interest by homeowners. Indeed, many current homeowners actually have much to gain from curbing exclusionary zoning and other NIMBY excesses.

That said, it is also true that studies find that local NIMBY activists are disproportionately affluent, white, and relatively older homeowners. Such activists can be quite effective in blocking housing projects even if their views are not representative of a general divide between, say, homeowners and renters. Katherine Levine Einstein and her coauthors demonstrate this in detail in their important book Neighborhood Defenders.

The good news is much can be done to curb NIMBYism. Statewide legislation can abolish or at least limit the zoning rules and other regulatory restrictions NIMBYs rely on. In a 2024 Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning and other similar restrictions that greatly limit housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them.  See also our much shorter non-academic article  in the Atlantic. State-constitutional litigation may be an alternative path to success, along with state constitutional amendments (which in many states are much easier to enact than amendments to the federal Constitution).

The spread of NIMBYism is not inevitable. It can even be reversed in places where it has previously taken root. But we YIMBYs need to do a better job of using the various tools available to us.

 

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[Eugene Volokh] Interesting Rule 11 / Incorrect Allegation Question in One of the Sean Combs Civil Cases

[Can plaintiffs be sanctioned because they "refused to voluntarily dismiss [a defendant] after reviewing the additional information from his cell phone and bank records" that seems to exonerate him?]

From yesterday's notice in Parham v. Combs from Judge Rita Lin (N.D. Cal.):

The Court requests that the parties be prepared to provide their views on the following at the hearing on Defendant Drew Desbordes' motion for sanctions, set for July 8, 2025, at 10:00 a.m., in Courtroom 15 at the San Francisco Courthouse:

Having considered the motion for sanctions and associated evidence, the Court is tentatively of the view that Plaintiffs' allegations pertaining to Desbordes now lack a factual basis. From Desbordes' phone and bank records, it appears virtually certain that he was in Georgia, not in Orinda, California, at the time of the alleged assault in March 2018.

However, when Plaintiffs added Desbordes to this lawsuit, there did appear to be a reasonable factual basis to name him. Before Plaintiffs sued Desbordes, two individuals—Jane Doe and John Doe—contacted Ms. Mitchell, offering to provide information related to the case. The individuals informed Ms. Mitchell that Desbordes was present at the time of the assault. To confirm this fact, Ms. Mitchell 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 other two individuals or communicate with them prior to her identification.

Even if Desbordes' participation is inconsistent with Parham's initial reports concerning the alleged assault, Plaintiffs identify plausible reasons why Parham may have been initially hesitant to name all of her alleged attackers. If the Court were to conclude that a reasonable and competent inquiry occurred prior to including Desbordes in the amended complaint, does Desbordes nonetheless contend that sanctions can still be issued under Rule 11 based on the fact that Plaintiffs refused to voluntarily dismiss Desbordes after reviewing the additional information from his cell phone and bank records? If so, what Ninth Circuit case law supports that view, given that Rule 11 requires only that counsel certify the reasonableness of papers as of the time of the filing and does not impose a continuing obligation to correct previous filings that have since turned out to be incorrect?

After addressing the above questions at the hearing, each side will have an opportunity to present additional argument that they wish the Court to hear. The parties shall not file written responses to this Notice of Questions.

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[David Post] "A Question of Remedy, not Redressability"

[The DC district court issues an important decision in RAICES v Noem - the first in the new post-CASA legal universe]

Proclamation 10888, issued by the President on his first day in office, purported to:

"prevent anyone who crosses the southern border of the United States at any place other than a designated port of entry, as well as anyone who enters anywhere else (including at a designated port of entry) without a visa or without extensive medical information, criminal history records, and other background records, from applying for asylum."

Plaintiffs challenged the Proclamation on statutory grounds, alleging that it violates a number of statutes governing the granting or withholding of asylum, and, "most fundamentally," that the President is not authorized to unilaterally reform the Congressionally-structured asylum system.

Yesterday, the DC district court, in RAICES v. Noem,  granted summary judgment to the plaintiffs on all claims, vacated the Proclamation, and entered an injunction "precluding the Agency Defendants from implementing the Proclamation."

It is, I believe, the first decision in a case in the new, post-Casa world, a world in which "universal injunctions" are, basically, no longer available to federal district courts, and it is [one hopes] a harbinger of how these challenges to unlawful Administration action will be handled going forward.

To many people – and I include myself here – the Casa decision seemed, at first glance, to sound the death knell for any hopes that the legal system could provide any serious impediment to Trump's inexorable march to one-man rule.  Without the ability to enjoin federal agencies from acting unlawfully as to anyone other than the plaintiff(s) to the action before the court, how could courts, as a practical matter, keep the Administration inside legal boundaries?

Justice Kavanaugh's concurring opinion took this question head on. The sky, he asserted, is not falling:

"[I]n the wake of the Court's decision, plaintiffs who challenge the legality of a new federal statute or executive action and request preliminary injunctive relief may sometimes seek to proceed by class action under Federal Rule of Civil Procedure 23(b)(2) and ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide."

"And in cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily "set aside" a new agency rule. 5 U. S. C. §706(2); see, e.g., West Virginia v. EPA, 577 U. S. 1126 (2016); see also Corner Post, Inc. v. Board of Governors, 603 U. S. 799, 826–843 (2024) (Kavanaugh, J., concurring)."

Moreover, the Supreme Court will always be available to keep the Executive Branch in line – it is not limited in its declaration of nationwide-binding legal judgments.

"[I]n my view, there often (perhaps not always, but often) should be a nationally uniform answer on whether a major [emph. in original] new federal statute, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided on the merits."

"Second, if one agrees that the years-long interim status of a highly significant new federal statute or executive action should often be uniform throughout the United States, who decides what the interim status is? The answer typically will be this Court, as has been the case both traditionally and recently. . . . In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions—that is, the interim legal status for the several-year period before a final decision on the merits."

Though Judge Moss's opinion in the RAICES case only cites the Casa case once – interestingly enough, to Justice Kavanaugh's concurrence - he follows the framework Kavanaugh outlined pretty closely, first "setting aside" the Proclamation based on the APA, and then by certifying a class under Rule 23 "consisting of all individuals who are or will be subject to the Proclamation and/or its implementation and who are now or will be present in the United States" to solve the "non-party injunction" problem.

The opinion, not incidentally, is something of a tour de force, about as clear and comprehensive as they come.  It does, to my eyes, read as though Judge Moss well understood that his opinion could serve as a signpost for the new trails that challengers will have to navigate.

The Plaintiffs claim that the Proclamation violates (1) "the asylum statute, which gives aliens "physically present in the United States" the right to apply for asylum, "irrespective of such alien's status," 8 U.S.C. § 1158(a)(1); (2) the withholding of removal statute, which prohibits the Secretary of Homeland Security from "remov[ing] an alien to a country if the Attorney General [or the Secretary] decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. § 1231(b)(3); (3) the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), which implements the United Nations Convention against Torture and Other Curel, Inhuman, or Degrading Treatment or Punishment ("Convention Against Torture" or "CAT"), 8 U.S.C. § 1231 note, and the Department of Justice and Department of Homeland Security regulations implementing FARRA, see 8 C.F.R. §§ 208.16, 1208.16, which require immigration officials to process applications for protection under CAT in a prescribed manner; and (4) the Immigration and Naturalization Act generally, which establishes the exclusive procedures for determining whether and how to remove an alien from the United States."   Additionally and "most fundamentally," they assert "that the authorities that Defendants invoke in support of the Proclamation and implementing guidance do not authorize Defendants' actions."

The agencies named as defendants in the suit are the Department of Homeland Security, the Department of State, the DOJ,  and three components of the Department of Homeland Security (Customs and Border Patrol ("CBP"), Immigration and Customs Enforcement ("ICE"), and United States Citizenship and Immigration Services ("USCIS")).

The court brushed aside the Administration's argument that Mississippi v. Johnson, holding that the federal courts cannot enjoin Presidential action, foreclosed the relief plaintiffs were seeking:

"Defendants raise one, final redressability argument, which merits only brief discussion. They argue that the Court lacks authority to enjoin the President (citing Mississippi v. Johnson, 71 U.S. 475, 501 (1867)), and that, as a result, setting aside the implementing guidance will not redress the Plaintiffs' asserted injuries. On Defendants' telling, no matter what the Court does, the Proclamation will remain in effect and, even if the implementing guidance is enjoined or vacated, the Proclamation will continue to preclude immigration officials from considering Plaintiffs' requests for asylum or withholding of removal. Justice Scalia spoke directly to this issue in his concurring opinion in Franklin v. Massachusetts. He wrote:

'None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive, see, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 572 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)—just as unlawful legislative action can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see, e.g., Powell v. McCormack, 395 U.S. 486, 503–06 (1969); Dombrowski v. Eastland, 387 U.S. 82 (1967); Kilbourn v. Thompson, 103 U.S. 168 (1881), but by enjoining those congressional (or executive) agents who carry out Congress's directive. Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct the President to take a specified executive act or the Congress to perform particular legislative duties. 505 U.S. at 828–29 (Scalia, J., concurring in part and concurring in the judgment).

D.C. Circuit precedent, moreover, is to the same effect. As the D.C. Circuit observed in Reich: "Even if the Secretary were acting at the behest of the President, this 'does not leave the courts without power to review the legality'" of the action and "'to compel subordinate executive officials to disobey illegal Presidential commands.'" 74 F.3d at 1328 (quoting Soucie v. David, 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971)). Because the President does not personally take "the final step necessary" to reject a request for asylum or withholding of removal, much less to repatriate or to remove an individual from the United States, this is not one of those rare cases in which the courts are powerless to review executive action. Pub. Citizen v. U.S. Trade Rep., 5 F.3d 549, 552 (D.C. Cir. 1993). As a result, the question of how most appropriately to effectuate the Court's decision is a question of remedy and not redressability. (emph. added)

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[Eugene Volokh] Court Rejects Lawsuit Claiming Site Falsely Attributed Allegedly Anti-Muslim Statements to Plaintiff

From Goddard v. Interserver.Net, decided yesterday by Judge Evelyn Padin (D.N.J.):

Plaintiff is a California-based technology professional …. Plaintiff is also Jewish. The crux of Plaintiff's Complaint is that Defendants, through the website spotlighthate.com, "host, maintain, and refuse to remove [information] that falsely portrays Plaintiff as an anti-Muslim bigot and falsely attributes numerous inflammatory statements to him that he never made." In addition to attributing numerous statements concerning the Israeli-Palestinian conflict to Plaintiff, the website labels Plaintiff an "Anti-Muslim Bigot" and "Islamophobe," which has damaged his reputation; Plaintiff alleges he "has never made any of these statements, harbors no such views, and strongly condemns any form of bigotry, hatred, or discrimination." Spotlighthate.com also uses a photograph of Plaintiff without his authorization….

Plaintiff sent a detailed "DMCA takedown notice and defamation complaint" to Defendants in which he requested the immediate removal of the defamatory content and unauthorized use of his photograph. A similar request Plaintiff made to X.com was granted. However, Defendants have not removed the defamatory content or responded to Plaintiff's outreach.

The court rejected plaintiff's claims. It began with the copyright infringement claim, and held that plaintiff hadn't adequately alleged a registered copyright, which is required for a copyright lawsuit to be filed. (Unregistered works are protected from infringement, but they need to be registered before the lawsuit is filed, even if they weren't registered when the alleged infringement happened.) It then went on:

[C.] Right of Publicity/Misappropriation of Likeness …

To establish a claim for misappropriation of likeness under New Jersey common law, a plaintiff "must establish four elements: '(1) the defendant appropriated the plaintiff's likeness, (2) without the plaintiff's consent, (3) for the defendant's use or benefit, and (4) damage.'"

Under New Jersey common law, a plaintiff can prevail only if they show the use of their likeness "was for a predominantly commercial purpose." In other words, a defendant must be "seeking to capitalize" on the plaintiff's "likeness for purposes other than the dissemination of news or information." … [A] media-defendant is not liable for misappropriation of likeness if their use of a person's likeness was incidental….

Here, Plaintiff makes no allegations as to the nature of Defendants' use of his likeness. See Compl. In conclusory fashion, he pleads that Defendants have published false and defamatory statements, which have exposed him to "hatred, contempt, ridicule, and obloquy, and have caused him to be shunned and avoided." But "[u]ntil the value of the name has in some way been appropriated, there is no tort." …

[D.] Intentional Infliction of Emotional Distress ("IIED")

To state an IIED claim, a plaintiff must allege that: (1) defendants' conduct was extreme and outrageous; (2) the conduct caused plaintiff severe emotional distress; and (3) the defendants acted intending to cause such distress or with knowledge that such distress was substantially certain to occur. A plaintiff's claim "will only survive where 'the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" The plaintiff must also allege that he suffered "some type of resulting physical harm due to the defendant's outrageous conduct."

Although Plaintiff alleges that he has suffered "severe emotional distress, including but not limited to anxiety, fear, humiliation, and anguish," the Third Circuit has held that these claims must be supported by competent medical evidence. Plaintiff provides no such documentation to support his claims….

Plaintiff further fails to state an IIED claim because his allegations are conclusory and threadbare. For example, Plaintiff "does not allege that any doctor or other medical or mental health professional indicated that [he] has suffered severe emotional distress," nor does Plaintiff allege in any detail how his physical symptoms have manifested as a result of Defendants' alleged conduct….

[E.] Defamation …

New Jersey "provides enhanced protection to speech touching on matters of public concern and interest." New Jersey courts have applied the actual-malice standard to protect "both media and non-media defendants who make statements involving matters of public concern, regardless of whether the targets of the statements are public figures or private persons." … The alleged defamatory statements in the Complaint concern the Israeli-Palestinian conflict, which the Court considers to fall under the umbrella of discourse on political subjects [and thus to involve matters of public concern]….

At the motion to dismiss stage, a plaintiff cannot rely on "a bare conclusory assertion that [a defendant] 'knew and/or reasonably should have known that the statement was false.'" Instead, a plaintiff must plead facts that show a defendant "actually doubted the veracity' of [their] statements." In other words, a plaintiff must "allege sufficient particularized facts to suggest that … [the statement] was published with knowledge of its falsity or a reckless disregard for the truth or falsity of the reported statement."

Here, Plaintiff alleges in conclusory fashion that "the statements are false and were published with knowledge of their falsity or with reckless disregard for the truth." New Jersey courts routinely dismiss defamation actions where a plaintiff makes threadbare allegations regarding a defendant's knowledge of a statement's veracity. Plaintiff does plead that he notified Defendants that the statements were false and defamatory, and in his view, their failure to remove the statements from spotlighthate.com demonstrates actual malice. However, "'actual malice cannot be inferred from a publisher's failure to retract a statement once it learns it to be false.'" This is because a plaintiff must show actual malice was present at the time of publication….

[F.] Negligence

Plaintiff's negligence claim is predicated on the same facts that underlie his defamation claim. But this is not allowed in New Jersey…. "Where a plaintiff claims that the communication of false information has injured his reputation, the plaintiff is precluded from seeking redress under a theory of negligence. Instead, the proper cause of action is defamation." … Indeed, a plaintiff is precluded "not only from suing in negligence for harm caused by the communication of defamatory statements, but also from suing in negligence for any acts that proximately underlie the communication of defamatory statements." This is because courts seek to preclude plaintiffs from "circumvent[ing] the strictures of the law of defamation … by labeling its action as one for negligence."

{The Court's holding does not preclude Plaintiff from bringing a negligence claim grounded on different facts. However, Plaintiff cannot bring a negligence claim based on the same facts that underlie his defamation claim.}

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[Eugene Volokh] S. Ct. Will Decide: Can States Define Sports Team Eligibility by "Biological Sex Determined at Birth"?

That's the question presented in two companion cases that the Court agreed to hear, Little v. Hecox and West Virginia v. B.P.J. Note an important difference between this case and Skrmetti, which upheld state limits on certain kinds of youth gender medicine: In Skrmetti, the majority held that the state laws didn't discriminate based on sex, but here it's clear that the underlying law does discriminate based on sex, because it provides for separate women's sports teams. The question is whether the state may choose to define sex based on the particular biological criteria that it has selected.

An excerpt from the Ninth Circuit opinion in Little v. Hecox, which the Court will review:

Because the Act subjects only students who wish to participate in female athletic competitions to an intrusive sex verification process and categorically bans transgender girls and women at all levels from competing on "female[ ], women, or girls" teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, we affirm the district court's grant of preliminary injunctive relief to Lindsay Hecox….

We recognize that, after decades of women being denied opportunities to meaningfully participate in athletics in this country, many cisgender women athletes reasonably fear being shut out of competition because of transgender athletes who "retain an insurmountable athletic advantage over cisgender women." We also recognize that athletic participation confers on students not just an opportunity to win championships and scholarships, but also the benefits of shared community, teamwork, leadership, and discipline. Excluding transgender youth from sports necessarily means that some transgender youth will be denied those educational benefits.

However, we need not and do not decide the larger question of whether any restriction on transgender participation in sports violates equal protection. Heightened scrutiny analysis is an extraordinarily fact-bound test, and today we simply decide the narrow question of whether the district court, on the record before it, abused its discretion in finding that Lindsay was likely to succeed on the merits of her equal protection claim. Because it did not, we affirm the district court's order granting preliminary injunctive relief as applied to Lindsay, vacate the injunction as applied to non-parties, and remand to the district court to address the scope and clarity of the injunction.

Likewise, here's the introduction to the Fourth Circuit opinion in West Virginia v. B.P.J.:

A West Virginia law originally introduced as the "Save Women's Sports Act" provides that "[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex," while defining "male" as "an individual whose biological sex determined at birth is male." Because West Virginia law and practice have long provided for sex-differentiated sports teams, the Act's sole purpose—and its sole effect—is to prevent transgender girls from playing on girls teams. The question before us is whether the Act may lawfully be applied to prevent a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school's cross country and track teams. We hold it cannot.

On the other side, here's an excerpt from the Question Presented from Idaho's petition in Little v. Hecox:

Women and girls have overcome decades of discrimination to achieve a more equal  playing field in many arenas of American life—including sports. Yet in some competitions, female athletes have become bystanders in their own sports as male athletes who identify as female have taken the place of their female competitors—on the field and on the winners' podium.

The Idaho Legislature addressed that injustice by enacting the Fairness in Women's Sports Act, which ensures that women and girls do not have to compete against men and boys no matter how those men and boys identify. The Act—one of 25 such state laws around the country—is consistent with longstanding government policies preserving women's and girls' sports due to the "average real differences" between the sexes….

The question presented is: Whether laws that seek to protect women's and girls' sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.

And from West Virginia's petition:

Like everywhere else, West Virginia schools offer separate sports teams for boys and girls. The West Virginia Legislature concluded that biological boys should compete on boys' and co-ed teams but not girls' teams. This separation made sense, the Legislature found, because of the "inherent physical differences between biological males and biological females." …

The questions presented are:

1. Whether Title IX prevents a state from consistently designating girls' and boys' sports teams based on biological sex determined at birth.

2. Whether the Equal Protection Clause prevents a state from offering separate boys' and girls' sports teams based on biological sex determined at birth.

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[Josh Blackman] The Chutzpah of Justice Kennedy Lecturing Us About Democracy on June 26

["Those who founded our country would not recognize [Justice Kennedy's] conception of the judicial role."]

June 26 is a very significant day in Supreme Court history. On, 6/26/2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas. On 6/26/2013, Justice Kennedy wrote the majority opinion in U.S. v. Windsor. And on 6/26/2015: Justice Kennedy wrote the majority opinion in Obergefell v. Hodges.

The last of these opinions was the most significant. June 26, 2015 fell on a Friday. At the time, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But wouldn't you know it, Pride weekend would begin the next day. At the time, David Lat wondered if Joshua Matz, one of Kennedy's clerks "pointed out to his boss . . . that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community." And so it came to pass.

It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell. What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass. In 2013, the 538 Blog offered this forecast for support for same-sex marriage. In the brief period between Windsor and Obergefell, I would share this chart with my students. In hindsight, it seems so quaint.

 

Alas, this process would never be completed. Chief Justice Roberts stated the issue plainly in one of his greatest dissents:

Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

This windup brings me to remarks that Justice Kennedy made--on all days--June 26, 2025.

"Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be," Kennedy said during an online forum about threats to the rule of law. "If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk."

I suspect that Justice Kennedy sees President Trump as a threat to Democracy--a threat heightened because Kennedy chose to retire under Trump. I think back to that moment at the White House where Kennedy wagged his finger at Trump over something, and Trump just walked away. How will Justice Kennedy discuss that incident in his memoir?

Justice Kennedy should look at how his own decisions subverted democracy without even the faintest patina of law.

On this eve of Independence Day, we should not lose sight of the most important freedom--the right of self-governance. Here I quote from Justice Scalia's Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

I still miss Justice Scalia. No one on the Court can come close to his prose. Alas, as evidenced by Skrmetti, we are still living in Justice Kennedy's shadow.

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[Eugene Volokh] How Congress Is Structurally Weaker than the President and the Judiciary

People commonly complain that Congress is doing too little, being too passive while the other branches are doing much more (for better or worse). There's a lot to this complaint, I think.

But I think it's also worth recognizing that this might stem in part from one weakness that Congress has relative to the other branches (without denying that it's also stronger in various ways than the other branches): Congress is the only branch that has to operate as a supermajority.

The President is one person, and can make his own decisions. To be sure, the bureaucracy can stymie him, but he is at least formally in charge of the Executive Branch, and practically has a lot of authority over it.

The Supreme Court can make decisions by simple majority vote.

But Congress requires majorities in both the House and the Senate (and of course 2/3 majorities if it needs to override a Presidential veto). Even when they are controlled by the same party, having a majority in one for some proposal needn't mean that there's a majority in the other.

Add to that the filibuster, which isn't constitutionally required but which is an important part of the system, and the supermajority requirement to get things done (except in those situations where the filibuster doesn't apply) can be a very serious barrier. I'm not saying this to condemn the filibuster—perhaps it on balance does more good than harm—but just to observe its effects. To be sure, there have been times in the past when Congress has been quite active despite these internal checks, but when there is sharp disagreement between the parties, that disagreement can weaken Congress much more than it weakens the Presidency or the judiciary.

Given this, we shouldn't be surprised that there's much more risk of gridlock in Congress than in the other branches. But beyond that, the laws that past, active Congresses have done often give more room for activity by today's judiciary (which can interpret those laws in creative ways) and by today's executive (which can enforce those laws in creative ways, and issue various executive orders within the scope of discretion that those laws leave). The majority vote judiciary and executive chug right along, and may indeed accrete extra power for the future, even when the supermajority-required legislature is internally blocked.

Again, this doesn't tell us what to do about this problem; and there's a lot to be said for supermajority requirements for various things. But we ought to realize that the asymmetric passivity of today's Congress may stem from this structural asymmetry.

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[Ilya Somin] California Passes Important New YIMBY Housing Law

[The new legislation exempts most new urban housing construction from the previously often stifling CEQA law. YIMBY ("yes in my backyard") advocates are cheering.]

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On Monday, California enacted an important new law breaking down a key regulatory barrier to new housing construction. The CalMatters website has a helpful summary:

A decade-spanning political battle between housing developers and defenders of California's preeminent environmental law likely came to an end this afternoon with only a smattering of "no" votes.

The forces of housing won.

With the passage of a state budget-related housing bill, the California Environmental Quality Act will be a non-issue for a decisive swath of urban residential development in California.

In practice, that means most new apartment buildings will no longer face the open threat of environmental litigation.

It also means most urban developers will no longer have to study, predict and mitigate the ways that new housing might affect local traffic, air pollution, flora and fauna, noise levels, groundwater quality and objects of historic or archeological significance.

And it means that when housing advocates argue that the state isn't doing enough to build more homes amid crippling rents and stratospheric prices, they won't — with a few exceptions — have CEQA to blame anymore.

"Saying 'no' to housing in my community will no longer be state sanctioned," said Assemblymember Buffy Wicks, an Oakland Democrat who introduced the CEQA law as a separate bill in March. "This isn't going to solve all of our housing problems in the state, but it is going to remove the single biggest impediment to building environmentally friendly housing…."

[F]or years, the building industry and "Yes in my backyard" activists have identified the law as a key culprit behind California's housing shortage. That's because the law allows any individual or group to sue if they argue that a required environmental study isn't accurate, expansive or detailed enough. Such lawsuits — and even the mere threat of them —add a degree of delay, cost and uncertainty that make it impossible for the state to build its way to affordability, CEQA's critics argue.

California's regulatory barriers to housing construction are what has put the state at the epicenter of the nation's housing crisis, and CEQA is a big part of the reason why. Exclusionary zoning will remain a serious problem in much of the state, blocking full realization of the gains from CEQA reform. But curtailing CEQA is still a major step in the right direction. The statute was long a powerful tool for "NIMBY" ("not in my backyard") opponents of new housing construction. California NIMBYs have not been totally defanged. But they are much less potent than before.

In a recent Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning and other similar restrictions that greatly limit housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat them.  See also our much shorter non-academic article on the same topic, in the Atlantic.

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