Eugene Volokh's Blog, page 73

[Jonathan H. Adler] Fourth Circuit Rejects Claim that West Virginia Abortion Law Is Preempted

[A mifepristone manufacturer is unsuccessful in evading West Virginia's prohibition on abortion, even when performed by medication.]

After the Supreme Court's Dobbs decision, West Virginia adopted a law, the Unborn Child Protection Act, that prohibits abortion in most circumstances. As enacted, the prohibition extends to medication abortions, such as those which may be performed with mifepristone.

GenBioPro, a manufacturer of generic mifepristone, challenged the West Virginia law, arguing that the prohibition is preempted by federal law, and the FDA's regulations governing the prescription and administration of mifepristone in particular, insofar as it prevents doctors from prescribing mifepristone for the purposes of terminating a pregnancy.

A federal district court rejected GenBioPro's claim. Today, in GenBioPro v. Raynes, a divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed. Judge Wilkinson wrote for the court, joined by Judge Alston (sitting by designation). Judge Benjamin dissented.

Judge Wilkinson's opinion for the court begins:

After the Supreme Court "return[ed] the issue of abortion to the people's elected representatives" in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, 232 (2022), West Virginia enacted a law prohibiting abortion in most circumstances. The question before us is whether certain federal standards regulating the distribution of the abortion drug mifepristone preempt the West Virginia law as it applies to medication abortions. The district court determined there was no preemption, and we now do the same.

For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance. Appellant GenBioPro finds this clear directive in a maze of provisions in the Food and Drug Administration Amendments Act of 2007. It argues that these provisions vested the FDA with the exclusive authority to regulate access to mifepristone. We disagree. In our view, the Act leaves the states free to adopt or diverge from West Virginia's path. Because the Act falls well short of expressing a clear intention to displace the states' historic and sovereign right to protect the health and safety of their citizens, we affirm.

The body of the opinion briiefly addresses standing (an easy question here), and then applies the existing law of preemption (such as it is) in a rather straight-forward manner (albeit in a typical Wilkinsonian way), implicitly acknowledging that the current Supreme Court does not appear particularly sympathetic to preemption claims. (One of several ways in which the current Court is less "pro-business" than is commonly assumed.)

Given the general presumption against finding preemption of traditional state authority, absent a clear congressional directive, the argument that federal pharmaceutical regulations preempt state abortion laws is hard to make. As in many contexts, the federal regulations provide a "floor" of regulation that states may exceed, as West Virginia has here, placing far greater limitations on the use of mifepristone (a de facto prohibition for its use in abortion) than does the federal government.

Judge Wilkinson's opinion concludes:

Just after the Supreme Court restored the states' traditional authority to regulate abortion, GenBioPro would have us wrest it right back from them. Appellant attempts to assemble a preemption theory out of statutory scraps and fragments that do nothing to hide the fact that the theory is but a fig leaf for an assault on the Dobbs decision. We are asked to infer sweeping field preemption over a broad swath of high-risk drugs in the face of a saving clause indicating that Congress chose nothing of the sort. We are further asked to prevent the states from protecting the health and safety of their citizens whenever their laws touch upon high-risk drugs in any way. Not only that, but we are asked to do all this under what are at best the fuzziest set of federal instructions when the Supreme Court has insisted upon congressional clarity. If Congress wishes to preempt laws like West Virginia's, why hasn't it come right out and said so? For us to sally forth and strike down this statute in the face of all these obstacles invites certain reversal. "Into the valley of Death Rode the six hundred." Alfred Lord Tennyson, The Charge of the Light Brigade (1854).

Our decision, by contrast, is a narrow one. We take no position on the wisdom or folly of West Virginia's abortion law. As Dobbs makes clear, that judgment belongs with the people and their elected representatives. One can of course agree or disagree with the Dobbs decision. But that is not the point. At a time when the rule of law is under blunt assault, disregarding the Supreme Court is not an option. We do not suggest that the FDAAA lacks any preemptive effect. States are certainly not free to dilute federal safety standards where they have been clearly established. Nor do we deny that Congress may preempt state abortion laws if it chooses to do so and acts pursuant to its enumerated powers. We simply hold that it must express that intention with the clarity befitting such a significant alteration to our system of dual sovereignty. Because the FDAAA does not do so, we decline to overturn the West Virginia law.

Judge Benjamin dissented. Her dissent begins:

In a troubling opinion, the majority finds that a West Virginia law, which is a near outright ban on access to mifepristone, is not preempted by federal regulations. Put plainly, this law erects barriers to life-saving healthcare for countless West Virginians in ways not envisioned by Congress. Despite the law's overbreadth and potentially fatal consequences—to say nothing of its dangerous spillover effects on healthcare systems serving vulnerable communities in neighboring states—the majority would allow West Virginia's Unborn Child Protection Act ("UCPA") to stand.

But the twin sensitivities of abortion access and states' rights cannot influence our willingness to recognize the Food and Drug Administration's (FDA) clear authority in this area. And they cannot justify inaction as West Virginia enacts legislation which upsets "the constitutional balance between the National Government and the States." See Maj. Op. at 14 (quoting Bond v. United States, 572 U.S. 844, 857 (2014)). So, while I concur in the majority's finding that GenBioPro has standing to sue, because the UCPA is preempted by federal law, I must respectfully dissent.

In the majority's view, neither field preemption nor conflict preemption thwarts West Virginia's passage of the UCPA. I address and reject each point in turn.

According to Judge Benjamin, insofar as the Food and Drug Amendments Act creates a "comprehensive framework" for a regulatory regime that mitigates risk while ensuring access, it should be understood to preempt state laws governing relevant drugs. I understand the appeal of this point, but it is hard to argue that Congress, in giving the FDA a way to approve and make available potentially dangerous drugs subject to regulations designed to protect patients, Congress gave the agency authority to preempt laws seeking to prohibit abortion -- laws that, in effect, are focused on a different set of risks or concerns than those with the FDa's purview.

I suspect GenBioPro will seek en banc review before seeking certiorari, in no small part because the makeup of the Fourth Circuit is far more favorable to its position (and concerns about the availability of abortion) than the Supreme Court is likely to be. But even should GenBioPro succeed with en banc review, I cannot imagine the current Supreme Court disagreeing with Judge Wilkinson's bottom line.

 

The post Fourth Circuit Rejects Claim that West Virginia Abortion Law Is Preempted appeared first on Reason.com.

[Natalie Alkiviadou] Hate Speech and the European Court of Human Rights: Hate Speech, Its Effects and the Question of Regulation

In this post I look at my book's key findings on the effects of hate speech and the controversies surrounding its regulation. This analysis lays out the groundwork for understanding both the harms attributed to hate speech and the dangers of over-regulating it in democratic societies. The central question is twofold: Does hate speech cause real-life harm? And if so, should that harm be addressed through legal restrictions on speech? The ECtHR systematically answers "yes," often without the depth of inquiry such a consequential response demands.

Hate speech and harm

One of the key contributions the book's chapter on hate speech, its effects and the questions of regulation is to unpack the multi-level impact of hate speech on individuals (micro), groups (meso), and society (macro). Drawing on work by scholars such as Mari Matsuda, Jeremy Waldron, Alexander Tsesis, and others, I trace how hate speech is said to erode dignity, reinforce systemic inequalities, and, in some contexts, incite violence.

As Matsuda has written, hate speech operates as "a mechanism of subordination reinforcing a historical vertical relationship," and its effects are "real and immediate" for those it targets. Tsesis, likewise, sees hate speech not merely as a personal insult, but as a vehicle for entrenching societal divisions and even fomenting mass violence. He links it to atrocities like the Rwandan genocide, where hate-filled broadcasts on RTLM radio incited mass murder. Quantitative work by Yanagizawa-Drott found that areas with more radio had noticeably higher rates of violence. A more recent example comes from Myanmar. A UN Fact-Finding Mission concluded that Facebook's failure to stem the spread of anti-Rohingya propaganda played a critical role in the 2017 ethnic cleansing campaign. The digital megaphone did not just amplify hate, it normalized it. Yet, despite these sobering examples, the causal chain between speech and harm is rarely straightforward. As Ronald Dworkin reminds us, claims about hate speech's harms are often "inflated and some are absurd." Empirical research remains fragmented and inconclusive. Heinze, for example, has noted that "despite decades of pro-ban law and policy … no empirical evidence has, in any statistically standard way, traced hatred expressed within general public discourse to specifically harmful effects."

Should the law step in?

The regulatory dilemma is as old as liberal democracy itself. Some scholars, Waldron, Matsuda, Tsesis, content that the dignitary and social harms of hate speech justify legal restriction. Waldron argues that hate speech undermines "the social sense of assurance on which members of vulnerable minorities rely," and should therefore be prohibited. For Tsesis, regulation serves as a bulwark against the normalization of dangerous inequality. Joel Feinberg holds that, the law should only intervene in cases of "profound offence" that are unavoidable, menacing, and morally reprehensible. Most hate speech, even if cruel or tasteless, does not meet that bar. To regulate it would, ironically, risk violating the very freedoms liberal democracies are meant to uphold. Nadine Strossen warns that hate speech laws are more likely to suppress the voices of the very people they are meant to protect. Eric Heinze contends that speech regulation undermines "the legitimising expressive conditions of democracy." Jonathan Rauch frames the issue powerfully: "bigoted ideas and hateful speech play an essential part in advancing minority rights. Even if we have every right to boycott Ender's Game, gays are better served by answering people like Card than by trying to squelch or punish them." This line of thinking views counterspeech, not prohibition, as the optimal response to hate. It also raises a practical concern: regulation can backfire. Banning speech often drives it underground, where it becomes more radicalized and less visible. It may also martyrize the speaker, deepening their cause. Another consequence of unavoidably and inherently selective hate speech regulation is what Eugene Volokh has termed "censorship envy." When certain groups receive legal protection against offensive speech, others inevitably ask: Why not us? This logic, if left unchecked, leads to a proliferation of competing claims to censorship. Instead of promoting equality, selective restrictions may generate resentment and deepen polarization.

The marketplace of ideas and its limits

The "marketplace of ideas" remains a foundational justification for robust free speech protections. From Mill to Justice Holmes, the belief has been that truth emerges from open contestation. But critics of this model, including Critical Race Theorists like Matsuda and Lawrence, argue that the marketplace is not neutral. Racial and economic inequalities distort participation, creating a system where dominant voices drown out the marginalized. This critique deserves attention. Lawrence discusses the silencing impact of hate speech on its target, by noting that it triggers an instinctive, defensive psychological reaction, characterised by fear, rage, shock and a tendency to flee, all of which hinder a reasoned response. He adds that many victims may not find words to articulate their experience 'until well after the assault, when the cowardly assaulter has departed.' While cognizant of the appalling psychosocial harm of hate speech, the book argues that the solution to such speech is not necessarily legal regulation. While I make the disclaimer that such solutions are suitable for violent speech, I argue that the problem of hate speech lies in structural conditions, not the speech itself. Regulating content will not address the root causes of exclusion; it may instead paper over them, while expanding the power of the state to police discourse.

The European Court of Human Rights and the dangers of militant democracy

The European Court of Human Rights (ECtHR) has used Article 17 of the European Convention on Human Rights (ECHR) entitled the "prohibition of abuse of rights" clause to deny protection to hateful or offensive speech. This article provides that "nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." The ECtHR's invocation of militant democracy, originally theorized by Karl Loewenstein, is intended to safeguard democratic institutions from anti-democratic threats. But in practice, the Court's reasoning has drifted far from those original aims. In Kühnen v Germany (1988), the ECtHR upheld a ban on neo-Nazi speech, explicitly invoking democracy's right to self-defense. But in more recent cases, the ECtHR applies vague standards like "the spirit of the Convention" (Pastörs v Germany 2019) or "Convention values" such as "tolerance, social peace and non-discrimination" (Norwood v UK 2004) without fully explaining how such values are defined or applied. This opacity matters. Article 17's expansion from a narrow anti-totalitarian provision to a broad license to ban speech deemed offensive undermines legal certainty and democratic legitimacy. By applying Article 17, the ECtHR does not conduct the legal test set out by Article 10 of ECHR which provides for the freedom of expression and its restrictions.

A call for caution and context

I do not deny that hate speech can cause genuine harm. From incitement to genocide to lasting psychological trauma, its dangers are real and, in some contexts, deeply destructive. Yet, the cost of regulation must not be underestimated. Legal restrictions on speech can give rise to censorship, repression, selective enforcement, and a growing distrust in democratic institutions. Instead of adopting a one-size-fits-all model, responses to hate speech should be sensitive to context. Key factors must be weighed, including the seriousness of the speech in question, the likelihood that it will incite violence, the broader social and political climate in which it is expressed, and the capacity of those targeted to defend themselves through public discourse. As I argue in the book, "not all hate speech is equal, and, therefore, not all responses, if any, should be equal." For that reason, legal regulation should be reserved for instances where speech presents a clear and demonstrable risk of inciting violence. In other cases, the more appropriate and democratic tools lie in counterspeech, societal condemnation, and, where necessary, structural reforms that address the root inequalities that allow such speech to thrive.

Conclusion

The ECtHR's growing willingness to restrict hate speech through a loose application of militant democracy reflects a worrying trend. Instead of grappling with empirical nuance and normative complexity, the ECtHR often defaults to abstract values and unproven assumptions. This does little to protect vulnerable groups, and much to weaken the foundation of free expression. A democracy that cannot tolerate offensive speech is one that cannot tolerate dissent. And a court that restricts speech in the name of vague values does little to safeguard the rights it claims to protect. The answer to hate speech is not always silence, and certainly not censorship. It is reasoned analysis, institutional courage, and a commitment to the messy, essential project of democratic dialogue.

The post Hate Speech and the European Court of Human Rights: Hate Speech, Its Effects and the Question of Regulation appeared first on Reason.com.

[Eugene Volokh] Apparent AI Hallucinations in Briefing From Both Parties

That's a new one on me, from a UK trademark appeal; the plaintiff, who was self-represented, admitted to using generative AI, and the defendant's lawyer was strongly suspected of so doing:

8. At the start of the hearing, I asked Dr Soufian if he had drafted the documents and he said he had drafted it with the assistance of Chat GPT. I pointed out the numerous errors in the citations and problems with the skeleton and he politely apologised and did so unreservedly. Before moving on, it is worth noting that most of the skeleton produced by Chat GPT was made up of arguments purportedly relating to the evidence in the case. However, the factual issues highlighted were largely not relevant to the issues before me and the proposed arguments were not very helpful. In other words, even aside from the fabricated citations, the output of Chat GPT was in fact unhelpful to him.

9. In the case of Mr Caddy, who is a trade mark attorney, his skeleton argument dated 6 June 2025 included three cases which existed and were correctly cited. But it was unclear to me the cases cited stand for the propositions claimed by Mr Caddy.

10. During the Hearing, I asked Mr Caddy to identify the part of the judgments which supported the propositions made. He said, "I cannot actually remember that now, to be honest with you". I gave him time to read the judgments so as to find the relevant paragraphs. He could not do so. He then said he got the references from a "previous edition of Kerly's Law on Trade Marks". I could not find any support for the propositions (or anything similar) in Kerly during the hearing. He then said he could not remember where he got them from, saying maybe it was Wadlow [on the Law of Passing Off] but said he went on to say that did not make much sense. After the hearing, I checked Wadlow and could not find anything matching the propositions.

11. A few hours after the hearing, Mr Caddy sent an email to the Secretariat, he said in the email that he had not been expecting to "make out my own side's case more so than had been done in the skeleton". He then went on to try and show support for the propositions in the three cases cited in the skeleton. In my view, nothing in the email improved Mr Caddy's position and the quotation above clearly makes it worse….

30. I cannot say how Mr Caddy came up with the propositions of law he put forward for the three cases. I emphasise once more that a fabricated citation is not just an entirely made up case, but also includes citing a case for a proposition where there is absolutely no basis in the case for that proposition to be made. As I have already mentioned, even after his clarification I struggle to see how the cases he cites support his propositions more than in the most general and abstract sense.

31. Three things about Mr Caddy's conduct concern me greatly. First, he did not know when asked in the hearing where he obtained the propositions of law he included in a skeleton argument, even though the document was dated less than a week before the hearing. Secondly, he appears to think that he is not expected to be ready to expand on points made in his own skeleton argument at the hearing. Thirdly, he appears to think it is acceptable to use out-of-date textbooks. It is necessary for all lawyers to have access to relevant and up-to-date textbooks and relevant case reports whether online or printed and whether within their own firm or using one of the law libraries available to them, which for those who are London-based (like Mr Caddy) include the Intellectual Property Reading Room at the British Library.

32. In the end, I have decided I will not refer Mr Caddy to IPREG on this occasion. I accept that it is possible that he found these references and simply read them (misunderstood them) in a way I cannot follow or understand. However, even if this is the case he needs to seriously reflect on how he conducts his practice in the future, including how he undertakes legal research, how he drafts skeleton arguments, and he must ensure that when he appears before a tribunal he is properly prepared to do so. Advocates should always be prepared to explain to a court or tribunal what they have included in skeleton or other written arguments.

Check out Damien Charlotin's AI Hallucination Cases database, which is now at 210 cases (more than half from the U.S.), as well as Peter Henderson's AI Law Tracker, now at 223 cases.

The post Apparent AI Hallucinations in Briefing From Both Parties appeared first on Reason.com.

[Jonathan H. Adler] Senate Confirms First Judicial Nominee of Trump's Second Term. How Many More Will Follow?

[Indications are that the second Trump Administration will not have as significant an effect on the Courts as the first.]

Yesterday the Senate confirmed Whitney Hermandorfer to a seat on the U.S. Court of Appeals for the Sixth Circuit. A well-qualified nominee who I expect will make an excellent judge, Hermandorfer is the first judicial nominee to win confirmation in Donald Trump's second term.

As various news outlets have noted, judicial nominations are lagging in Trump's second term. The Administration has been slower to make nominations and the Senate has been slower to act than during the first Trump Administration. On top of that, there are fewer vacancies to fill, as many judges eligible for senior status are electing to remain on the bench (and there is speculation as to why that might be).

As of this morning, there are forty-nine current vacancies on the federal bench, and thirteen more future vacancies (which occur when judges announce their intent to retire or take senior status at a date in the future or upon confirmation of a successor). There are only eleven nominees pending before the Senate, however. (Three more nominees have been announced but have not been formerly submitted.) Of these, only five are on the circuit courts of appeals.

As for what could be, by my count there are forty circuit court judges eligible to take senior status, only two have which have announced their intention to create a vacancy. Of those twenty-six were appointed by Republican Presidents. What these judges decide to do could have a substantial effect on President Trump's ability to shape the judiciary during his second term.

The post Senate Confirms First Judicial Nominee of Trump's Second Term. How Many More Will Follow? appeared first on Reason.com.

[Eugene Volokh] Plaintiffs Try to Sue Uber Because Their Father Was Killed by a Passenger Who Used a Lyft Platform

The plaintiffs alleged that Uber knew the passenger had committed two carjackings about a month before, should have warned Lyft about that. (The killer used the same e-mail address for both his Lyft and Uber accounts.) The father drove for both Uber and Lyft, but the killer called him using the Lyft app. No liability, as a matter of law, Judge Stephen Clark (E.D. Mo.) concluded Friday in Newman v. Uber Technologies, Inc., denying plaintiffs leave to amend their complaint on the grounds that such an amendment would be futile:

In Ameer [a previous Missouri case], Rochelle Ameer sued Lyft, a rideshare platform, after a rider "fraudulently and anonymously requested through Lyft's mobile ridesharing application" a ride from Ameer's son and killed him. Ameer asserted, among other claims, a negligence claim based on a wrongful-death theory…. [T]he Missouri Court of Appeals [held the case could go forward].

The complaint in Ameer alleged that two minors, who were "supposed to be ineligible to order rides through the Lyft [a]pp, met and conspired together to use the [a]pp to carjack a Lyft driver." The minors requested a ride through the Lyft app, and Ameer's son accepted the request. After Ameer's son arrived, the minors announced a robbery, pulled guns on Ameer's son, attempted to force him out of the car, and eventually shot and killed him. Ameer alleged that the minors had previously, on multiple occasions, carried out the same carjacking scheme that they carried out on Ameer's son. Ameer also alleged that "Lyft knew or should have known that multiple rideshare drivers had been assaulted, attacked, and carjacked as a result of the same fraudulent scheme."

In addressing the negligence claims, the Missouri Court of Appeals first acknowledged the general rule that "[a] duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable." But the court recognized that, where "a victim is injured at a location other than the defendant's premises," two exceptions to the general rule exist. First, a duty exists where "the defendant 'should realize through special facts within his knowledge…that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.'" Second, a duty exists where "the defendant 'has brought the victim into contact or association with a person or persons whom he knows or should know to be particularly liable to commit criminal acts, and under circumstances [that] afford a peculiar opportunity or temptation for such misconduct.'"

The Missouri Court of Appeals held that the first exception applied to the facts of Ameer. The court explained that Ameer had alleged that "Lyft failed to utilize readily available and known measures" that would have protected Ameer's son. Those alleged omissions included (1) Lyft's failure to train Ameer's son "to identify particularly dangerous situations or people," (2) Lyft's failure to offer Ameer's son "security measures in his vehicle such as a surveillance camera or a physical barrier between the front and backseats," (3) Lyft's failure "to implement basic anti-fraud and identity-verification measures in its [a]pp that Lyft had implemented in other states." Assuming the truth of Ameer's allegations, the court reasoned that her petition established that "Lyft should have realized through special facts within its knowledge that its omissions exposed" Ameer's son "to an unreasonable risk of harm through the conduct of third parties, like [the] perpetrators, who were able to use the Lyft [a]pp to fraudulently and anonymously request a ride." Thus, the court held that the first exception applied.

Relying on the same allegations, the court held that the second exception applied, too. That's because the petition alleged that the Lyft app "brought" Ameer's son "into contact with his perpetrators." And the petition alleged that "Lyft knew or should have known" that the minors were "particularly liable to commit criminal acts" while Lyft could have employed "measures that would have arguably protected" Ameer's son "from harm."

The Court acknowledges that some factual similarities exist between the allegations in Ameer's complaint and the allegations in Plaintiffs' proposed amended complaint. First, like in Ameer, where Ameer alleged that the minors had carried out a similar carjacking scheme "multiple times" before Ameer's son's murder, Plaintiffs here allege that Wilson "committed at least two carjackings" of rideshare drivers before he murdered Newman. And second, Ameer alleged that the minors used Lyft's app "to fraudulently and anonymously request a ride by utilizing a false name, a false email address, and an anonymous form of payment," while Plaintiffs here allege that, when Wilson committed his carjackings, he too used an alias.

But at the end of the day, the distinctions between Ameer and this case carry far more weight on the issue of whether a federal court sitting in diversity should create a heretofore nonexistent duty to the contractors or employees of a competitor. Most notably, in Ameer, the fatal ride took place on the defendant's platform. But here, Newman's murder took place not on Uber's platform, but on Lyft's. That makes the second exception that Ameer applied inapplicable here, because Uber didn't bring Newman "into contact with" Wilson.

The difference-in-platform distinction makes a meaningful difference as to the first exception, too, because the Ameer duty would lack a limiting principle if that duty applied to this case, and the policy implications of extending liability to the contractors of a competitor are on a different plane than imposing liability on one's own contractor or employee. The proposed scope of the duties between the two cases illustrates this. In Ameer, Ameer tried to hold Lyft liable based on Lyft's (1) failure to train Ameer's son "to identify particularly dangerous situations or people," (2) failure to offer Ameer's son "security measures in his vehicle," and (3) failure to require its passengers using "an anonymous form of payment" to provide identification before requesting a ride. That is, Ameer sought to hold Lyft responsible for its failures to police its own rideshare platform. Surely, that duty contains a limiting principle to ensure that the duty doesn't swallow the general no-duty-to-protect-against-third-party-criminal-acts rule: your duty ends where your platform ends, or so it would seem. In any event, it will be up to the Missouri courts to determine whether to extend Ameer beyond its confines, but this Court has no warrant to do so.

But Plaintiffs' proposed duty here contains no such limit. Plaintiffs argue that Uber breached a duty because it "decid[ed] not to share information about…Wilson with Lyft." That duty has no limit. Sure, Uber and Lyft both operate in the rideshare industry. But, under Plaintiffs' theory, why would Uber's duty stop there? If it's foreseeable that "rideshare users who commit violence on one app will commit violence on the other app," then why would it not be just as foreseeable that Wilson would carjack and murder a taxicab driver? Or a limousine driver? Or a bus driver? Or a generous soul who decides to pick up a hitchhiker?

Under Plaintiffs' theory, Uber would have had an obligation to share information about Wilson not just with Lyft, but essentially with anyone, anywhere who might come into contact with Wilson. In sum, "[t]he burden of imposing this ill-defined and undisputedly broad duty is simply too great in this context."

Angela L. Angotti, Clayton J. Callen, Paige Lauren Cheung, and Paul Augusto Alarcon (Bowman and Brooke LLP) represent defendants.

The post Plaintiffs Try to Sue Uber Because Their Father Was Killed by a Passenger Who Used a Lyft Platform appeared first on Reason.com.

[Jonathan H. Adler] What Do Progressives Want for the Courts?

[There's a tension between Progressives' efforts to delegitimize the courts and hopes the judiciary to constrain executive power. ]

Ramesh Ponnuru writing in the Washington Post:

the mood of bitter hostility toward the Supreme Court has been a general feature of Democratic politics for much of the past decade — and especially since its 2022 decision to allow states to prohibit abortion. That critique of the court is heartfelt for many progressives. But it has a flaw that is becoming more and more apparent in Trump's second term: The Democrats can't decide whether they want the institution to be stronger or weaker. . . .

Whatever merit progressive proposals to contract the power and prestige of the Supreme Court might have, they are not a plausible means of restoring it to its former role as the champion of liberal principles. A court with reduced jurisdiction, whose members fear removal by the political branches and whose decisions command little respect from the broader political culture: That's not an institution that can perform what Jackson recently called "the singular function of ensuring compliance with the Constitution" and "protecting people's rights."

A high regard for the court is particularly important now that progressives have (rightly) made it a priority to make Trump follow court orders. They can argue that the court is illegitimate or that Trump has a high duty to obey it. They seem unlikely to persuade the public that Trump has a solemn obligation to comply with an illegitimate court.

The post What Do Progressives Want for the Courts? appeared first on Reason.com.

[Ilya Somin] Life as an Academic Defender of the Intuitively Obvious

[Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.]

AI-generated image.

 

Academics are supposed to discover and promote counterintuitive, nonobvious ideas. That should be especially true for me, given that I hold many unpopular views, and am deeply opposed to populism of both the left and right-wing varieties. A Man of the People I am not.

But, especially in recent years, much of my work actually consists of defending intuitive ideas against other experts who reject them. When I describe these issues to laypeople, I often get the reaction that the point in question is just obviously true, and incredulity that any intelligent person might deny it.

Some examples:

1. Widespread voter ignorance is a serious problem for democracy. Academic experts have generated a large literature trying to deny this; I critique it in works like Democracy and Political Ignorance: Why Smaller Government is Smarter. It is ironic that this anti-populist idea is, on average, more readily accepted by ordinary people than by academic experts. But that's been my experience over more than 25 years of writing and speaking about this subject.

2. "Public use" means actual government ownership and/or actual use by the public, not anything that might benefit the public in some way. The Supreme Court and lots of legal scholars disagree! See my book The Grasping Hand: Kelo v. New London and the Limits of Eminent Domain, for why they're wrong. In teaching cases like Kelo v. City of New London, I usually end up spending much of the time explaining why the Court's rulings might be right (even though I oppose them myself). Most students find these decisions intuitively repugnant, and it is my duty - as an instructor - to help them to see the other side.

3. "Invasion" means an organized military attack, not illegal migration or cross-border drug smuggling. The Trump administration, multiple state governments, and a few academics say otherwise. I have written various articles (e.g. here and here) and amicus briefs (see here and here) explaining why they're wrong.

4. The right to private property includes the right to use that property, and significant restrictions on the right to use qualify as takings of private property under the Constitution. The Supreme Court has long said otherwise, and lots of legal scholars agree. For why they're wrong, see my article "The Constitutional Case Against Exclusionary Zoning" (with Joshua Braver). I have a forthcoming book chapter that gets into this issue in greater detail.

5. The power to spend money for the "general welfare" is a power to spend for purposes that benefit virtually everyone or implement other parts of the Constitution, not a power to spend on anything that Congress concludes might benefit someone in some way. The Supreme Court disagrees, and so do most legal scholars.

6. The power to regulate interstate commerce is a power to regulate actual interstate trade, not the power to regulate any activity that might substantially affect the economy. Once again, the Supreme Court, plus most academics, disagree. When I teach cases that interpret the Commerce Clause power super-broadly, such as Wickard v. Filburn and Gonzales v. Raich, I often get the same kind of student reaction, as with Kelo, discussed above: the students intuitively hate these results, and I have to spend most of the allotted time explaining why the Court might be right.

7. Emergency powers should only be used in actual emergencies (defined as sudden crises), and courts should not assume an emergency exists merely because the president or some other government official says so. Instead, the government should bear the burden of proving that an emergency exists before it gets to exercise any emergency powers. A good many experts and judges disagree, at least in some respects, and so too do most presidential administrations.

In some cases, the above premises have counterintuitive implications, even fairly radical ones (this is especially true of points 1, 4, 5, and 6 above). But the premises themselves are intuitive ones that most laypeople readily accept, but many experts and other elites deny.

I do, of course,  have various works where I defend counterintuitive ideas, such as these:

1. Immigration restrictions inflict enormous harm on natives, not just would-be immigrants.

2. Voting in elections does not create meaningful consent to government policies (see, e.g., Ch. 1 of my book Free to Move: Foot Voting, Migration, and Political Freedom).

3. Racial and ethnic groups - including seemingly "indigenous" ones - do not have collective property rights to land that entitle them to exclude others (see Ch. 5 of Free to Move and this article).

4. Organ markets should be legalized, and are no more objectionable then letting people do dangerous work for pay, such as being a lumberjack or an NFL player.

But defending the intuitive and even the seemingly obvious is an outsize part of my publication record.

I certainly do not believe that intuitive ideas are always right, and counterintuitive ones always wrong. Far from it! If intuition were an infallible guide to truth on contentious issues, we wouldn't need expertise.

I am not entirely sure why I have ended up defending so many intuitive positions. One possibility is that I have much less love and patience for legal technicalities than many legal scholars do, and thus am more attracted to arguments based on fundamental first principles (many of which have an intuitive dimension). Also, as a libertarian in a field where most people have widely differing views, there may be an unusually large number of situations where my predispositions diverge from those of other experts, and some of them are also cases where the views of the field diverge from common intuitions.

That said, there is some advantage to defending intuitively appealing arguments in situations where the opposing view is either dominant among experts, or (as in the case of "invasion" above) has the support of a powerful political movement. Having intuition on your side makes persuasion easier.

In some cases where most experts oppose an intuitive view, it's because their superior knowledge proves the intuition wrong. But there are also situations where that pattern arises because of some combination of ideological bias and historical path-dependency. I think that is what happened in the property rights and federal powers examples, discussed above. It can also happen that such biases afflict commentators and government officials on one side of the political spectrum who have incentives to make it easier to implement "their" side's preferred polices (I think that is right now the case with "invasion").

If you can identify situations where a view widely accepted among experts or elites diverges from intuition without good reason, it creates opportunities for especially compelling books and articles. It's probably no accident that works defending intuitive views figure disproportionately among my most widely cited publications.

That said, I am probably not the most objective judge of whether I have identified the right intuitive ideas to defend. That question can't be answered just by relying on intuition! Readers will have to decide for themselves.

The post Life as an Academic Defender of the Intuitively Obvious appeared first on Reason.com.

[Josh Blackman] Federal Courts May Be Able To Receive Filings 24/7, But There Is No Expectation To Review Unanticipated Filings Overnight

[If the Supreme Court wants to rebuke lower courts for not acting promptly enough, the Justices should police their own conduct.]

In Trump v. CASA, Justice Kavanaugh extolled the power of the Supreme Court as a supreme institution. In the process, he took a not-so-subtle shot at the inferior courts:

But district courts and courts of appeals are likewise not perfectly equipped to make expedited preliminary judgments on important matters of this kind. Yet they have to do so, and so do we. By law, federal courts are open and can receive and review applications for relief 24/7/365. See 28 U. S. C. §452 ("All courts of the United States shall be deemed always open for the purpose of filing proper papers . . . and making motions and orders").

When I read this passage, I suspected it was a response to Judge Ho's concurrence in AARP v. Trump. Jon Adler read it the same way.

I first saw this statutory argument made by Adam Unikowsky. But I'm not sure it works.

First, as a threshold matter, the statute is limited to filing papers, not for the court to review or rule on those papers. Congress has established the Civil Justice Reform Act which tracks how many motions are pending for longer than six months. But there is no congressional deadline to actually decide cases.

Second, we should determine the original meaning of the statute when it was enacted. A version of this statute was passed back in 1948 (62 Stat. 907). Another version was passed in 1963 (77 Stat. 248). At either time, it would have been impossible to file papers overnight, unless special arrangements were made to keep the clerk's office open. There were no cell-phones, emails, or faxes. Even to this day, the Supreme Court closes in the evening according to building regulation one. I don't think a pro se litigant can walk up to the Supreme Court a midnight an hand a brief to a Supreme Court police officer.

Thankfully, ECF allows late-night filings. But again, unless there is some way that judges are to be notified that important filings will be made overnight, there can be no expectation that judges can review those filings. Surgeons will keep pagers to alert them about emergency procedures. But Judges do not wear pagers that alert when a TRO is filed.

I will repeat the facts in AARP as many times as needed. The ACLU made a filing after midnight, and there was no notice in advance when the filing would made. There is no reasonable expectation that a judge will sit at his computer all night in anticipation of a possible filing. Judge Hendrix began to resolve the motion the next morning. Yet, the Supreme Court charged him with failing to respond to a motion filed overnight while he was sleeping. Facts are stubborn things.

Third, the Supreme Court has proven that it does not review emergency applications in a timely fashion. Justice Jackson let the emergency application in Libby v. Fectau sit several days without calling for a response.  Eventually she called for a response, and the Court ultimately granted the application. Other justices have taken time to call for responses. Judge Hendrix's prompt attention was admirable. Justice Jackson's dilatory tactics were questionable. Even then, the Court can still sit on emergency petitions for weeks at a time.

Justice Kavanaugh observed:

On top of that, this Court has nine Justices, each of whom can (and does) consult and deliberate with the other eight to help the Court determine the best answer, unlike a smaller three-judge court of appeals panel or one-judge district court.

Whatever the timeline is for a single district court judge with a busy docket to rule, the timeline should be accelerated for nine Supreme Court Justices with a full complement of law clerks to decide.

I realize the thrust of CASA is that different rules apply to lower courts than to the Supreme Court. But if the Supreme Court wants to rebuke lower courts for not acting promptly enough, the Justices should police their own conduct.

The post Federal Courts May Be Able To Receive Filings 24/7, But There Is No Expectation To Review Unanticipated Filings Overnight appeared first on Reason.com.

[Eugene Volokh] Law360 Article About Disciplinary Charges Against Lawyer Was a Fair Report of Official Proceedings

From Mogan v. Portfolio Media, Inc., decided today by Seventh Circuit Judges Michael Brennan, Candace Jackson-Akiwumi, and Joshua Kolar:

Michael Mogan appeals the district court's dismissal of his suit against Portfolio Media, the owner of Law360, for defamation and false light. Because Mogan fails to show that any statement by Law360 falls outside the fair report privilege, we affirm the district court.

Mogan, who is an attorney, sued Airbnb in California state court on behalf of a client named Veronica McCluskey in 2018. After that case went to arbitration, Mogan sued Airbnb on his own behalf, also in California state court, for abuse of process and unfair business practices that he alleged Airbnb committed in the McCluskey case. The state court dismissed the case and imposed sanctions against Mogan for filing a frivolous lawsuit. When he refused to pay the sanctions, the California State Bar filed disciplinary charges against him. Law360, a legal news website, detailed these legal battles in three articles published between 2022 and 2023.

That brings us to the present case. Displeased with the news coverage, Mogan sued Portfolio Media, the owner of Law360, for defamation and false light in federal district court…. The district court … dismissed the complaint …. As the court correctly explained, under Illinois law, statements of official proceedings that are "complete and accurate or a fair abridgement" are protected by the fair report privilege and thus cannot support a defamation or false light claim. The court concluded that Mogan failed to explain how the articles were not a fair abridgment of statements from official proceedings:

[Mogan] has not explained whether and how he contends the Law360 articles misrepresented the official proceedings that are the subjects of those articles. In other words, Mogan has not identified any inconsistencies between the facts as described by Law360 and the facts as described by the court decisions at issue. The availability of the fair report privilege turns on whether the statements accurately recount judicial proceedings, not on the underlying truth of any facts found by the courts in those proceedings.

Mogan appealed, and the Seventh Circuit affirmed the district court:

[W]e consider whether Mogan shows that any statement is not a fair abridgement of official proceedings ….

First, Mogan argues that Law360's coverage "falsely stated" that he was facing sanctions for a baseless and frivolous lawsuit. But that description accurately reflects the sanctions order, which described Mogan's suit as "baseless," and quoted a prior court order "admonish[ing] Mogan personally for his 'baseless and unprofessional' accusations." He also takes issue with Law360 reporting on a court hearing instead of waiting for a final court order. But the fair report privilege applies equally to court hearings.

Mogan next argues that Law360 gave an erroneous impression to readers by not covering certain information, including his allegations that Airbnb lied to the court and the California State Bar discriminated against him. But his argument—effectively that Law360 should have provided additional background—does not address how Law360's statements inaccurately summarized the court proceedings it chose to cover.

Finally, Mogan points out that Law360 inaccurately described his legal theory. But the inaccuracy—that Law360 said he requested the sanctions be lifted instead of declared invalid—carries the same "gist or sting of the alleged defamation" and so is still protected by the fair report privilege….

Elizabeth A. McNamara (Davis Wright Tremaine LLP) and William E. Walsh (Benesch Friedlander Coplan & Aronoff LLP) represent defendant.

The post Law360 Article About Disciplinary Charges Against Lawyer Was a Fair Report of Official Proceedings appeared first on Reason.com.

[Eugene Volokh] Publishing Private Phone Number May Be Tortious, Says Court in Case Brought by Shark Tank's Mr. Wonderful (Kevin O'Leary)

[Defendant had 100K X followers, and as a result O'Leary "was flooded with unwanted communications."]

From Judge Beth Bloom's order today granting default judgment in O'Leary v. Armstrong:

Defendant posted on X Plaintiff's private cell phone number and encouraged the public to harass Plaintiff, stating "[h]ave you ever wanted to call a real life murderer?! You can NOW! @kevinoleartyv is waiting for your call."

Following the post, Plaintiff began receiving communications from strangers who had obtained his number directly from Defendant's post. On March 20, 2025 at 11:32 a.m., Defendant stated he "was forced to delete the murderer @kevinolearytv's phone number by X. I was in X jail for 12 hours." As of March 19, 2025, the post had been viewed over 18,000 times.

{To state a claim for public disclosure of private facts under Florida law, "a plaintiff must allege (1) the publication, (2) of private facts, (3) that are offensive, and (4) are not of public concern."} By posting Plaintiff's private phone number to a social media platform on which Defendant had one million followers, Defendant published Plaintiff's private facts. The fact was offensive because, as a result, Plaintiff "was flooded with unwanted communications[.]" Although Plaintiff is a public figure, his personal contact information is not of legitimate public concern. Therefore, Plaintiff's well-pleaded factual allegations are sufficient [under the disclosure tort -EV].

{The Complaint states that Defendant "currently has one million followers" on "his former X/Twitter account," but also states "[t]oday" Defendant "has about 100,000 followers on X/Twitter[.] It is therefore unclear whether Defendant posted Plaintiff's phone number to an account that had approximately one million followers or 100,000 followers. Regardless, by publicly posting Plaintiff's phone number on X, leading to the post garnering 18,000 views, Defendant's actions made it "substantially certain" that Plaintiff's phone number would become public.}

Note that some other court decisions (see also here) had generally concluded that the disclosure tort didn't apply to phone numbers and similar information, and was limited to embarrassing or highly personal information such as sexual, medical, or financial information might be. The matter thus doesn't seem to be settled, but this new decision struck me as an interesting contribution. (Query whether the better legal theory here might be that publicizing a personal phone number with specific instructions to call someone might be better seen as fitting within a different privacy tort, intrusion upon seclusion.)

The court also granted O'Leary default judgment as to his defamation claims, stemming from the "murderer" accusations. According to the court, this all seems to have stemmed from a fatal accident involving O'Leary's wife:

The following facts are deemed admitted by Defendant [because the defendant failed to defend the case -EV]. On August 24, 2019, while Plaintiff's wife, Linda O'Leary ("Ms. O'Leary"), was driving the O'Learys' boat, they collided with another vessel, resulting in the death of two people. Ms. O'Leary was not impaired, and at the time of the incident, she was a highly experienced boater operating the vessel cautiously and with due care and attention. The collision occurred with a completely unlit vessel, operating in violation of basic safety standards on a moonless night—making it virtually invisible.

Following the collision, Ms. O'Leary was charged with a regulatory offense: careless operation of a vessel under the Small Vessel Regulations of the Canada Shipping Act. She was not charged with impaired driving or any other alcohol-related offense. Plaintiff was not charged with any crime or infraction arising from the accident. After a 13-day trial in which a Canadian court heard extensive testimony, Ms. O'Leary was acquitted of the regulatory charge. The publicly available evidence made clear that Plaintiff was not operating the boat, was never charged, and that Ms. O'Leary was acquitted of 2 all charges….

On March 17, 2025 at 8:49 a.m., Defendant published a post on his X2 account, stating "[y]ou guys think I'm kidding about all this stuff and all these claims. There is a reason my life is actually in danger. Kevin O'Leary has already verifiably murdered one couple in Toronto."

For more on the proceedings involving Ms. O'Leary's boat crash, see this Canadian Press story.

The post Publishing Private Phone Number May Be Tortious, Says Court in Case Brought by Shark Tank's Mr. Wonderful (Kevin O'Leary) appeared first on Reason.com.