Eugene Volokh's Blog, page 85

[Eugene Volokh] Does the Smoot-Hawley Act Justify the Trump Tariffs? Probably Yes, Says Jed Rubenfeld

[Probably yes, says Jed Rubenfeld; no, says Philip Zelikow.]

Sunday, Prof. Jed Rubenfeld (Yale) published an article called The Judges Got It Wrong: Trump's Tariffs Are Legal in The Free Press; here's an excerpt, though you can read the whole thing—and you can read Philip Zelikow's response here:

Legally speaking, the key holding in both cases is that Trump's tariffs are not authorized by the statute his executive orders invoked—the International Emergency Economic Powers Act (IEEPA). The IEEPA allows the president to "regulate" the "importation" of foreign goods in certain emergency circumstances. According to both courts, the phrase "regulate… importation" is too generic to serve as statutory authority for Trump's tariffs. If Congress had intended to give the president the power to impose tariffs of up to 50 percent on countries all over the world in response to what the president believes is unfair discrimination against U.S. commerce, Congress would have said so explicitly.

That's not a crazy position. But both courts—and, it seems, the administration's lawyers—have overlooked something important.

Congress has expressly and precisely given the president the power to impose worldwide tariffs of up to 50 percent on countries he finds to be discriminating against U.S. commerce. Congress didn't do so in the IEEPA, but it did in the Tariff Act of 1930, also called the Smoot-Hawley Tariff Act.According to a provision in that 1930 statute titled "duties to Offset Commercial Disadvantages":

Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States [through any discrimination in duties or regulations], he shall, when he finds that the public interest will be served thereby, by proclamation specify and declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per cent… on any products of… such foreign country.

Okay, apparently no president has ever invoked this statutory provision and imposed a tariff under it, and admittedly the name "Smoot Hawley" is not exactly covered in glory these days. But the provision quoted above remains in the United States Code, unrepealed and unamended, and appears to fit Trump's trade policy like a glove. In his China tariffs, Trump temporarily exceeded the 50 percent limit, before bringing them down to below that threshold. Everywhere else, he has never exceeded that limit….

The post Does the Smoot-Hawley Act Justify the Trump Tariffs? Probably Yes, Says Jed Rubenfeld appeared first on Reason.com.

[Eugene Volokh] Seventh Circuit Refuses to "Strike" District Court's Accusations of Lawyer's Ethical Violation

Thursday's decision in Dotson v. Faulkner (Judge Frank Easterbrook, joined by Judges Michael Brennan and Doris Pryor) stems from a lawsuit by a woman who was forced into sex (and at one point choked unconscious) by a prison guard. The guard (Faulkner) was sentenced to prison, and the woman (Dotson) sued the guard and prison officials. "The district court granted summary judgment in favor of [the officials], ruling that none of them knew or had reason to suspect that Faulkner posed a danger to prisoners," and Dotson didn't appeal that; but here's what happened with the lawsuit against Faulkner:

Faulkner did not answer the complaint. The district court entered a default and held a hearing to determine damages. Dotson contended that the assaults reduced her expected income and would require long-term medical expenses. She sought damages to cover these losses, plus pain and suffering; she also requested punitive damages. The district judge awarded $1 million for pain and suffering plus $3 million in punitive damages but found the proof of other loss insufficient.

Although represented by counsel (Joseph W. Seifert of Milwaukee), Dotson did not introduce any evidence about her anticipated future income—either how much she would have expected to make in the absence of Faulkner's crimes, or how they affected her earning capacity. Counsel did proffer an expert report estimating the expenses that Dotson would incur for mental-health care, but the expert did not testify and the report was not authenticated. Nor did the report reduce future outlays to present value. The district judge generously gave Seifert 14 days after the hearing to fix those problems.

Instead of having the expert authenticate her report through an affidavit or a declaration under 28 U.S.C. § 1746, Seifert drafted, and the expert signed, a document that did not satisfy either option. It was not sworn before a notary, and it did not meet the statute, which requires language in substantially this form: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date)." The document that Seifert drafted for the expert says that it is "under penalty of perjury" but does not declare that the report's substance "is true and correct". The judge could not fathom why Seifert failed to copy the statutory words or use a notary. The judge concluded that the document did not comply substantially with § 1746.

As for the present-value calculation: Seifert did this himself rather than obtaining the expert's views. He added an annual cost increase of 4.3% while selecting a discount rate of 3%. The result nearly doubled the expert's cost estimate. He did not justify projecting annual cost increases (something the expert had not done) when all the district judge held the record open for was discounting to present value. Nor did Seifert explain how he could be a witness in Dotson's case, or what expertise he had to project medical cost increases or determine appropriate discount rates.

The district judge threw out the additional evidence, observing that Seifert had "failed to comply with basic law on damages and the rules of evidence." The judge added: "Counsel's submission shows a wholesale lack of care for compliance with" § 1746. This left Dotson with a $4 million award.

The Seventh Circuit upheld the district judge's rulings:

The brief's main argument is that the district court erred by not finding that Faulkner committed his wrongs in the course of his employment. The goal could be a judgment against the employer under principles of respondeat superior or a state law providing indemnification for some adverse judgments. Neither option has good prospects. [Details omitted. -EV] …

[But in any event,] the complaint did not name Faulkner's employer as a party. The result, the judge patiently explained, is that scope of employment "is not before the Court…. Plaintiff never sued Faulkner's employer, so this issue was never litigated."  Wisconsin is entitled to contest any assertion that Faulkner's criminal acts were within the scope of his employment, but the posture of this litigation has denied it that opportunity. Any declaration about its obligations, in a proceeding to which it is not a party (and so cannot be bound), would be an advisory opinion. About all of this Seifert's brief on appeal says … not one word.

Lawyers who ignore the ground on which a district court acts doom their clients' chances. You cannot persuade a court of appeals that a district judge erred if you fail to engage with the judge's reasons. At oral argument Dotson's lawyer stated that he believes that naming the employer as a party is unnecessary under Wisconsin's law and asked for a chance to file a supplemental brief to address the subject. That request is denied. Even the reply brief would have been too late. Arguments omitted from an opening appellate brief are forfeited, if not waived.

We entertain supplemental briefs on questions that appellate judges introduce into a case or issues that arise after the opening brief was filed. But when the district court decides a case on a particular ground, that subject must be addressed in the appellant's opening brief, if appellant wants it reviewed.

Seifert's work in this litigation falls far short of professional standards. Yet he went on the offensive in his appellate brief. While ignoring the ground on which his client lost the scope-of-employment issue, Seifert asserted that "[t]he [district] Judge's unfounded accusations of Attorney Seifert of ethical violations and attempts to deceive the lower court were slanderous and improper and should be stricken from the Record."

Seifert does not explain just how we are to "strike" language from the district judge's opinions, which are available to the public via the PACER system as well as Westlaw and Lexis. Are we also supposed to enjoin newspapers from publishing judicial language?

The All Writs Act permits a court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." We doubt that a Writ of Erasure is "agreeable to the usages and principles of law." Certainly it lacks provenance. Seifert's brief does not cite authority for the relief he seeks; it simply assumes that courts of appeals can blot unwelcome language from district courts' opinions. That is not within our remit….

I asked Seifert whether he had a statement on the case; I haven't yet heard back from him, so I thought I'd include his argument from his Reply Brief:

Appellees have chosen not to address the issue of the Judge's slanderous accusations against Attorney Seifert, except to state in a footnote that "Appellees take no position on that issue." While opposing counsel will often take adverse positions on every issue presented no matter how benign, certain matters transcend controversy and bid consensus, thereby making a contrary argument unfeasible. Simply put, Appellees took no position on this issue—but they should have. The matter of defaming an attorney affects not only Attorney Seifert but any attorney unfairly accused of attempting to deceive the court and providing substandard service to his client.

Appellant requests that this Court strike from the Record the defamatory comments made by the lower court. Namely as they pertain to the Judge's unfounded accusations of Attorney Seifert acting unethically and/or attempting to deceive the Court in his good faith completion of a present-day valuation.

For reference, Appellant's Counsel had filed an expert report detailing what future medical costs would be for Plaintiff. However, this Report was deliberately created without the inclusion of an inflationary factor; a factor which is critical to ensuring that Plaintiff is afforded the proper and just compensation for over forty (40) years of estimated future medical costs. The Report was designed for the Appellant to provide inflation adjusted figures as needed when calculating compensatory damages. It is uncontested that inflation should be considered when estimating present-day value of future long-term damages.

Attorney Seifert, recognizing that an inflationary factor had not been utilized in the Plan, had properly applied nationally recognized and industry standard formulas to calculate this omitted inflationary impact. Remarkably, Attorney Seifert was given no guidance or instruction by the lower court as to how this inflationary factor was to be included—or not included. Attorney Seifert was simply ordered by the Judge to prepare and submit a present-day valuation of the long-term care costs of the Appellant. No other instructions or limitations were given. Absent such insight, Attorney Seifert utilized the most logical and ethical path by using nationally recognized standards for calculating present value adjusted for inflation. Had Attorney Seifert failed to do so, he would have provided the Court with an inaccurate present-day analysis creating a grossly insufficient compensation award never anticipated by the Care Plan. Ostensibly, submitting such analysis could be viewed, and argued, as actually being in violation of the Judge's Order.

Upon Attorney Seifert's completion of the calculation, and appearing before the lower court, he was severely and grossly chastised. First, the lower court had ridiculed Attorney Seifert, stating that Attorney Seifert had "done little to help [his] client[,]" that he had, presumptively in bad faith, "took the opportunity to nearly double the Plaintiff's request for future medical costs[,]" and that he had done so" in the guise of supplementing the record with a present value for" such costs. These statements, and similar others, essentially amount to the lower court accusing Attorney Seifert of making disingenuous arguments with the intent to deceive the court—a very serious ethical violation.

The lower court made these extreme accusations absent citation to any evidentiary support (beyond the calculation itself, which cannot prove intent) or applicable case law. This was not the intention of Attorney Seifert and such alleged actions never occurred based upon his sound, reasonable, and reliable explanations as to how he had included an inflationary factor into Plaintiff's future medical bills. Attorney Seifert was at all times transparent with the lower court, especially considering it had afforded him no guidance in how it preferred the inflationary factor be included.

Courts have the ability to strike language from judges which are offensive or slanderous of attorneys. In re Williams (1st Cir. 1998). {This case directly reviews whether a judge's defamatory comments are considered a de facto sanction and, in doing so, analyzes the prospective impact such comments may have on an attorney's reputation. "It is trite, but true, that a lawyer's professional reputation is his stock in trade, and blemishes may prove harmful in a myriad of ways."} The court in Williams reviewed whether the chastising of an attorney on the record is considered a constructive sanction, and thus, whether attorneys have the ability to remedy this language and strike it from the record. The court concluded that a chastised attorney is not "remediless[,]" and that they may "request that offending commentary be expunged from the public record. Id.; See, e.g., Bolte v. Home Ins. Co. (7th Cir. 1984). This is typically done by filing a writ of mandamus.

Courts will consider striking certain defamatory language only in "those rare cases in which the issuance (or nonissuance) of an order presents a question anent the limits of judicial power, poses some special risk of irreparable harm to the appellant, and is palpably erroneous." Williams; citing U.S. v. Horn (1st Cir. 1994); accord Blondin v. Winner (10th Cir. 1987).

In Appellee's Reply, they failed to address Appellant's argument for the slanderous language of the lower court to removed, tacitly agreeing with Appellant. Because of such, Appellant's argument is undisputed and should be considered by the Court. The language used by the lower court regarding Attorney Seifert's present-day valuation appears to be made with an intent to lower his estimation in the eyes of the public and his peers. As a public record, and searchable by any future adverse counsel, such statements can have permanent damaging effect. The aforementioned language is both offensive and slanderous to Attorney Seifert and his practice of law and could easily cause irreparable harm. While Appellant's Counsel has not filed a writ of mandamus, they are nonetheless requesting that this Court use its discretionary powers to overturn the Judge's decision against striking this public degradation of Attorney Seifert's reputation.

First, Appellant's request is certainly within the power of this Court to hear and determine. Second, the comments made by the lower court prejudice Appellant's claims, especially as it pertains to Appellant's calculation of her medical damages. Finally, the comments of the lower court are palpably erroneous considering its' own failure to otherwise instruct Attorney Seifert in regard to its' request that he provide a present-day valuation. Attorney Seifert, who was given no insight as to how the lower court wanted to receive this calculation, had provided in good faith an appropriate and fully transparent valuation.

At all times relevant, Attorney Seifert was acting as he believed necessary, appropriate and as ordered by the Judge. The Judge's unfounded accusations as to Attorney Seifert's alleged attempts to commit egregious ethical violations by deceiving the Court are irreparably damaging to Attorney Seifert's career and standing in the community. When weighed accordingly against the potential chilling effect of a Judge's immunity with respect to making untrue statements from the bench, the long-term effects of slandering an Attorney's reputation should be paramount.

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[Ilya Somin] "David Boaz on Immigration" - My Contribution to the Liberty Fund Symposium on "The Legacy of David Boaz"

[My contribution considers his views on immigration and its role as a vital front in the broader struggle for liberty.]

David Boaz. (Cato Institute)

 

My contribution to the Liberty Fund symposium on "The Legacy of David Boaz" is now available on the symposium website. See here. Here is an excerpt:

David Boaz did not write much on immigration. But what he did say on the subject indicates his understanding that breaking down harsh migration restrictions should be a high-priority issue for all who value liberty.

In David's final public speech, "The Rise of Illiberalism in the Shadow of Liberal Triumph," he emphasized the enduring value of "equal rights for people regardless of color, gender, religion, sexuality or language. Equal rights based on our common humanity." He warned that the liberal ideal of "inalienable rights" to a "life, liberty, and the pursuit of happiness" for all people is "incompatible with political ideas based on 'blood and soil' or treating people differently because of race or religion." In our time, there is no greater example of that incompatibility than immigration restrictions, which severely undermine liberty based simply on the fact that would-be migrants were born in the wrong place, to the wrong parents, or are members of the wrong "race or religion." Severe immigration restrictions, of course, are central to the ideology of "blood and soil" nationalists in the US and Europe, the greatest enemies of liberty in the Western world today.

In a 2006 article, David praised the immigration policy of pre-Chinese Exclusion Act America, in which "there were no restrictions on immigration and thus no "illegal immigrants". There were rules governing naturalisation and citizenship, but anyone who could get here could live and work here." That is an ideal we should aspire to return to.

In David's contribution to National Review's 2016 "Against Trump" symposium, he wrote that "From a libertarian point of view…. Trump's greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule." He was right then, and remains right today. Nativism – the main source of support for migration restrictions – is indeed an offense against America's founding principles, and those of liberalism, more generally.

Later in the essay, I describe how immigration restrictions are inimical to the principles of the American Founding and critique libertarian rationales for exempting migration restrictions from our general presumption in favor of liberty and against government intervention.

The post "David Boaz on Immigration" - My Contribution to the Liberty Fund Symposium on "The Legacy of David Boaz" appeared first on Reason.com.

[Eugene Volokh] Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": What Will Happen to Advertising (Both Commercial and Political)

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]

The new technologies will have at least three significant effects on advertising:

First, it will be easier and cheaper to have advertising-free media. Consumers generally don't like commercials on radio and TV, because (unlike in newspapers) the ads interrupt the program content. Some consumers dislike commercials enough that they would be willing to pay extra for advertising-free media, as they now do for some cable movie channels.

Other consumers would prefer to have free (or cheaper) entertainment, and would be willing to sit through the commercials to get it. Still, as the costs of providing services-such as custom-mix cable radio-fall, the amount of advertising on free services will fall, too, as services compete with one another based on how few commercials they have.

Advertisements in newspapers and magazines are less intrusive, so there'll be less pressure to reduce their quantity. Some publications might refuse ads to prove their independence from outside pressure,  but this seems unlikely to become common.

Second, newspapers will lose a vast amount of classified ad revenue. This revenue accounted for forty percent of total newspaper ad revenue in the late 1980's;  one commentator projects it will reach sixty percent by 2000.  But paper classifieds are far inferior, for both buyers and sellers, to electronic classifieds that are untied to any newspaper.

A database of, say, all apartments for rent in the city would be much easier to search through than a newspaper classified section: From a public-access terminal,  the renter could ask for an instant list of all the one-bedroom apartments renting for less than $850 per month within three miles of UCLA, perhaps plus apartments that are a bit cheaper but a bit further, or more expensive but closer.  The list should be more complete, because the information will be easier and cheaper to post. And the list should be timelier—the information will become available as soon as the landlord posts it, and can be removed as soon as the apartment is rented.

Electronic classifieds are better on all counts than paper ones, and newspapers will have to adjust to a huge revenue loss when the paper classifieds stop coming in. {Newspapers can, of course, enter the classified market themselves. But the newspapers won't have any substantial edge over other service providers in this field. And even if a newspaper comes up with a fabulously profitable electronic classified service, the stockholders will probably be hesitant to use this service to subsidize a money-losing print operation.} The loss of classified revenues, coupled with the cost savings and opportunities for extra profits from electronic distribution, should help push newspaper publishers into going electronic.

Third, individualization of the media will let advertisers target customers better than ever before. Instead of one newspaper with ads aimed at several hundred thousand people, each electronically delivered newspaper will have ads calculated to fit the particular subscriber's profile-age, sex, and whatever other information the newspaper gets at subscription time, or can deduce from the mix of stories he's ordered.  The same would be true for the other media.

The greater ease of targeting ads may also change the way political campaigns reach voters. This is already happening: In one political consultant's words, "if you want to talk to women, buy 'Sisters' Saturday night; men, you buy ESPN; seniors, 'Murder She Wrote'; everyone, [the local football team] or '60 Minutes."' Another consultant points out that "yuppies, particularly working mothers … don't watch TV regularly, but do sit in traffic jams-which makes radio a good buy."

When targeting becomes even easier, candidates can speak even more directly to particular voters, with ads specially targeted at those people. This would give voters more information about the issues that matter to them; and voters who want deeper treatment of the issues might get their wish, as campaigns try to avoid alienating them with shallower commercials.

On the other hand, targeted ads might in some ways be worse for the democratic process than mass ads are. The targeted ads might appeal more to parochial interests and prejudices and less to the common good; and candidates might be able to make arguments to small groups that they would rather not make to the public at large. {Of course, the candidate shouldn't create ads that would be too embarrassing if revealed to the public at large. For instance, in the 1990 Minnesota senatorial campaign, a letter was sent to the Jewish community on behalf of then Senator Rudy Boschwitz criticizing his opponent, Paul Wellstone, for marrying a non-Jew and raising his children outside the faith; the strategy appears to have backfired when the ads got a lot of press.}

These are, of course, only tentative guesses; still, it seems likely that the demassification of the mass media will substantially change the way both products and politicians are advertised. To the extent advertising is important to political campaigns, these changes ought to be considered.

The post Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": What Will Happen to Advertising (Both Commercial and Political) appeared first on Reason.com.

[Ilya Somin] Compendium of Writings About the Trump Tariff Case

[Links to my writings about our case against Trump's "Liberation Day" Tariffs and related Issues]

(NA)

Particularly since   our win in the US  Court of International Trade, there has been considerable public interest in the case against Donald Trump's "Liberation Day Tariffs" filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by the tariffs. For the benefit of the media, legal commentators, and other interested readers, this post compiles links to all my writings about the case and related issues.

Unless otherwise noted, all links are to pieces originally published right here on the Volokh Conspiracy blog.  I omitted posts that simply link to media appearances, or to pieces I published elsewhere. The items are in chronological order:

"Challenge Trump's Tariffs Under the Nondelegation and Major Questions Doctrines," Feb. 2, 2025. This is the post that started it all. As a result of it, the Liberty Justice Center contacted me to explore the possibility of bringing a lawsuit against Trump's IEEPA tariffs under the theories I outlined.

"Trump's Tariff Power Grab May not be Over," Feb. 4, 2025. I suggested the suspension of Trump's first set of IEEPA tariffs wouldn't end the tariff power grab. The prediction proved accurate.

"Challenging Trump's Tariffs Under the Major Question Doctrine," Mar. 29, 2025 (analysis of ideas developed by Prof. Jennifer Hillman).

"Looking for Plaintiffs to Challenge Trump's IEEPA Tariffs in Court," April 2, 2025. This post led to the finding of most of our plaintiffs for the eventual case against the "Liberation Day" tariffs, including lead plaintiff VOS Selections, Inc.

"Why Trump's 'Liberation Day' Tariffs are Illegal,"Apr. 3, 2025. In this post, I first outlined the main arguments against the "Liberation Day" tariffs (which were announced by the White House the day before).

"NCLA Files Lawsuit Challenging Trump's IEEPA Tariffs Against China," Apr. 4, 2025. Analysis of a more limited lawsuit challenging Trump's IEEPA tariff.

"Trump Partially Pauses "Liberation Day" Tariffs," Apr. 9, 2025.  Why the partial pause didn't end the tariff threat.

"The Tariff Madness Isn't Over," Apr. 10, 2025.

"Blackfeet Nation Indians File Lawsuit Challenging Trump's Canada Tariffs," Apr. 13, 2025.

"Liberty Justice Center and I File Lawsuit Challenging Trump's 'Liberation Day' Tariffs," Apr. 14, 2025. Post on the day we filed the lawsuit.

"California Files Lawsuit Against Trump's Tariffs," Apr. 16, 2025.

"The Constitutional Case Against Trump's Trade War," Lawfare, Apr. 18, 2025. My most comprehensive statement of the case against the tariffs.

"Twelve States File Lawsuit Challenging Trump's IEEPA Tariffs," Apr. 23, 2025.

"Pacific Legal Foundation Files Case Challenging Trump's IEEPA Tariffs," Apr. 25, 2025.

"How Trump's Tariffs Threaten the Rule of Law," May 2, 2025. I think this is an underappreciated aspect of the tariff issue.

"Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies," May 2, 2025. This is a crucial issue in the major questions aspect of the IEEPA tariff litigation.

"Thoughts on Today's Oral Argument in Our Case Against Trump's IEEPA Tariffs," May 13, 2025. My assessment of the oral argument in our case. I thought the court was skeptical of the administration's assertion of virtually unlimited tariff authority.

"Trump's 'Emergencies' Are Pretexts for Undermining the Constitution," Lawfare, May 15, 2025. This article situates the tariff litigation in the broader context of Trump's abuse of emergency powers.

"Thoughts on the Oral Argument in the Oregon Case Against Trump's IEEPA Tariffs," May 24, 2025. The Oregon oral argument also left me feeling optimistic.

"We Won Our Tariff Case!" May 28, 2025. My immediate reaction to the Court of International Trade ruling in our favor.

"Federal Circuit Issues Brief Administrative Stay in Our Tariff Case," May 29, 2025. Why the administrative stay is only a modest, temporary setback.

"Federal District Court Issues Another Ruling Against Trump's IEEPA Tariffs," May 29, 2025. Analysis of a district court ruling against the IEEPA tariffs.

"A Victory for the Separation of Powers," The Atlantic, May 30, 2025 (non-paywalled version here). My most extensive analysis of the judicial rulings against the IEEPA tariffs, and their broader implications.

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[Eugene Volokh] Federal Court in New York Might Be the Hardest Court to Get Pseudonymity as a Sexual Assault Plaintiff,

[which is to say the court that is the most in favor of public access to court records in such cases.]

Many courts are quite willing to allow plaintiffs to proceed as Jane or John Does in sexual assault cases, see pp. 1430-34 of The Law of Pseudonymous Litigation. But for reasons that I can't explain (and that might just be path-dependent, based on the outcomes of a few early precedents), the U.S. District Court for the Southern District of New York appears to be much more skeptical of that. The many cases against Sean Combs have turned in that direction, with a few early decisions tentatively allowing pseudonymity being later reconsidered; see this May 13 decision by Judge Valerie Caproni, which is the ninth S.D.N.Y. lawsuit against Combs saying no to pseudonymity.

The same has been true of many still other cases. Here, for instance, is Judge Colleen McMahon's decision May 14 in A.P. v. Weinstein (S.D.N.Y.); it turns out that A.P. is Crystal McKinney, who has also sued Sean Combs (P. Diddy) for sexual assault:

A.P. brings the latest in a series of "Me Too" lawsuits against the notorious Harvey Weinstein, his former company Miramax, and the Walt Disney Company, which owned Miramax between 1993-2009, the period during which the incidents underlying this lawsuit allegedly took place. She has filed her one count complaint pursuant to the New York City Victims of Gender Motivated Violence Protection Action, alleging that Weinstein sexually assaulted her and a friend in 2003. She seeks leave to proceed anonymously.

That motion is denied.

There is a strong presumption against allowing a plaintiff to proceed anonymously, even in a lawsuit where the events in suit are unsavory—as the events in suit here surely are. Federal court proceedings and records are presumptively public absent a showing of exceptional circumstances. Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008); Rapp v. Fowler (S.D.N.Y. 2021). There follows an analysis of the ten factors identified by the Second Circuit's as matters to consider when deciding an application for leave to file suit anonymously:

[1.] Does the litigation involve matters that are highly sensitive and of a personal nature? Yes, it does. But that is not dispositive; many courts in this district have denied requests to allow plaintiffs to proceed pseudonymously in suits of this nature.

[2.] Does identification of the plaintiff pose a risk of retaliatory physical or mental harm to the party or to innocent non-parties? Here, the answer is no. First of all, Plaintiff admits that the defendants are aware of who she is, so keeping her name confidential would not protect her from retaliation if defendants were of a retaliatory bent. Second, Mr. Weinstein is presently serving a lengthy jail sentence pursuant to a California conviction, while undergoing retrial here in New York City on equally serious criminal charges. He is disgraced, incapacitated, and in no position to cause Plaintiff any further harm or to retaliate against her for commencing or maintaining this lawsuit. Indeed, over 80 women have sued Mr. Weinstein over the past eight years—many under their own names—but plaintiff has pointed to not a single instance since the "Me Too" era began in 2017 when a plaintiff who sued Mr. Weinstein was the victim of physical or mental retaliation at his hand. Third, plaintiff suggests no basis for inferring that either of the corporate defendants would retaliate against her.

Plaintiff asserts that she will suffer mental anguish if required to proceed under her own name, but she offers no corroborating evidence from a medical professional, and her own bare assertion is insufficient. Doe v. Combs (S.D.N.Y. 2024); reconsideration denied. As for plaintiff's friend and former roommate "Jane Doe"—who was allegedly assaulted along with the plaintiff—plaintiff fails to convince the court that requiring A.P. to bring suit in her own name would "out" Jane Doe, let alone that Doe would suffer any adverse consequences as a result.

Furthermore, the person who is responsible for any damage to Jane Doe is plaintiff herself. Plaintiff chose to include allegations about Doe—an individual who has not commenced a lawsuit and who is not seeking any relief against Weinstein—in her complaint. Those allegations were and are completely unnecessary to plead plaintiff's purely individual claim.

One suspects that the Jane Doe allegations were included in order to manufacture a reason why plaintiff should be allowed to proceed anonymously, since including them was not necessary to pleading an actionable claim. If Plaintiff really cares about her friend, she is in a position to keep her name out of this matter, by the simple expedient of amending her complaint to strike the extraneous matter. And if at some point Jane Doe's situation comes up during discovery and Jane Doe feels that her identity requires protecting, she is free to petition the court for a protective order in her own right.

[6.] Are the defendants prejudiced by allowing the Plaintiff to proceed anonymously, and if so, can that prejudice be mitigated by the court? Yes, the defendants would be prejudiced. It is fundamentally unfair to require defendants—most especially the corporate defendants—to defend themselves publicly from accusations made by an anonymous plaintiff. Doe v. Delta Airlines, Inc. (S.D.N.Y. 2015).

The asymmetry in fact-gathering that results from allowing a plaintiff to proceed anonymously both prejudices defendants and hinders accurate fact-finding, because information about only one side may come to light. Doe v. Del Rio (S.D.N.Y. 2006); Doe v. Weinstein (S.D.N.Y. 2020); Rapp. The moving corporate defendants no less than Plaintiff face the possibility of significant reputational damage as well, given her allegation that they enabled Weinstein to commit crimes of violence. Allowing plaintiff to proceed anonymously could impact their efforts to mitigate that damage….

[8.] Is the public interest furthered by requiring Plaintiff to disclose her identity? Yes, it is—and of equal importance, the public interest is not compromised by requiring Plaintiff to disclose her identity. The generalized public interest in open proceedings is strong, and at least one of my colleagues concluded long ago that the public has a particularized interest in knowing who accuses Weinstein of abusing his position to obtain sexual gratification. Weinstein.

I acknowledge that, if Plaintiff is not herself a public figure (and I have no idea whether she is or not, because I do not know who she is), the public interest in knowing her name is perhaps less compelling than it would be if she were someone like Gwyneth Paltrow, Cate Blanchett, Rose McGowan or Asia Argento—women who, like many of Weinstein's accusers, are public figures in their own right. But that does not mean there is no public interest in having her put her name to her accusations.

Were the case to go to a public trial, there is no way Plaintiff would be allowed to remain anonymous. That augurs against allowing her to proceeding anonymously during pretrial proceedings.

Plaintiff is correct that there is a public interest in having victims of sexual abuse come forward …. But it is not at all clear that anonymity leads to that salutary result—at least, not where Harvey Weinstein is concerned. Literally dozens of women have publicly accused Harvey Weinstein of sexual assault; as of the date of this opinion, Wikipedia lists 109 separate names.

Not nearly all of these women are well known persons; some of them are undoubtedly very private people. This being so, one simply cannot conclude that Weinstein's victims have been or will be deterred from coming forward if their names were to become public. Rather, the fact that so many women have been willing to lend their names to their claims against this man may well have emboldened other victims to bring their own allegations to light. The public interest in achieving a wholesale reckoning of Weinstein's wrongful activity is very great indeed; disclosure rather than anonymity would appear to advance that interest.

[9.] Is there an atypically weak public interest in knowing the identity of the litigants because the issues in the case are purely legal? The answer is a resounding no. This case involves allegations of fact, not legal challenges to public policy; ergo, the public interest in knowing the identity of the litigants is not atypically weak….

[I]f Plaintiff wishes to bring suit, she should put her name on the complaint. In this I agree with my many colleagues who have denied similar motions in lawsuits against Weinstein, Sean Combs, and others. Plaintiff has not demonstrated that exceptional circumstances should allow her to proceed anonymously in contravention of the usual rule….

There are arguments for and against pseudonymity in sexual assault cases. But my sense is that the decisions tend to turn more on what judge you draw, or what district you're in (not even what circuit you're in), than on real distinctions between the facts of each case.

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[Eugene Volokh] Hallucinated Citations in Brief Filed by Assistant County Attorney

From a Minnesota Tax Court decision Thursday, Delano Crossing 2016 v. County of Wright (Chief Judge Jane N. Bowman and Judges Bradford S. Delapena and Beverly J. Luther Quast):

In support of a motion for summary judgment, which the court denies in a concurrent order, the County submitted a brief that included five case citations generated by Artificial Intelligence (AI); none of the five citations referred to an actual judicial decision. Indeed, much of the County's brief appeared to be written by AI. We subsequently ordered Wright County to show cause why it should not be sanctioned and why Ms. Pence, who signed and filed the brief, should not be reported to the Minnesota Lawyers Professional Responsibility Board. For the reasons below, although we believe Ms. Pence's conduct violated Rule 11, we decline to order sanctions. Additionally, we refer this matter to the Minnesota Lawyers Professional Responsibility Board for further review….

[When asked to explain the situation,] Ms. Pence generally characterized her filing of a brief containing AI-hallucinated case citations as a mistake, stating: "I believe I inadvertently filed a draft Motion that was never intended to be the final product. I did not intend to file an AI-generated pleading; however, I have been unable to locate any other documents containing my research."

Ms. Pence further averred that she did not realize her brief contained fake case citations until approximately 6:48 p.m. the night before the motion hearing, prompting Ms. Pence to conclude that the best time to deal with the situation was at the impending hearing. Ms. Pence further attested that although the case citations in her brief were fake, "the legal contentions in the motion are warranted by existing law as cited [orally during the hearing]." Ms. Pence generally attested, in other words, that although she "erroneously filed a document with hallucinated cases," the County's arguments were otherwise legally sound. Ms. Pence added that she has taken several remedial measures to ensure this does not happen again, and she understands "the seriousness of [her] mistake."

Rule 11.02 states that, "by presenting to the court … a pleading, written motion, or other document," an attorney certifies "to the best of [their] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" that "the claims, defenses, and other legal contentions therein are warranted by existing law…." "Thus, rule 11 prescribes an affirmative duty on counsel to investigate the factual and legal underpinnings of a pleading." …

We conclude that the inclusion of citations to non-existing cases (or other legal authorities) is a violation of Rule 11.02(b), as fake case citations cannot support any legal claim. Further, using fake case citations is inherently misleading, as the signing attorney induces readers to believe that their legal contentions are supported by existing law….

We find no merit in Ms. Pence's defense that all of the County's legal claims can be supported by genuine controlling precedent (that Ms. Pence orally offered to the court during the hearing). As an initial matter, we conclude that using fake case citations, particularly while knowing that AI can generate fictitious citations, is a Rule 11 violation, because the rule imposes an affirmative duty to investigate the "legal underpinnings of a pleading." In any event, the County's substitute cases do not support the legal contentions asserted in its brief….

Calling the inclusion of fake case citations a "mistake" in this matter is not objectively reasonable….

We believe one appropriate sanction here would be to summarily deny the County's motion. If an attorney submits to this court legal arguments using fake legal authority, we generally will deny the motion without expending the time and resources necessary to analyze those arguments. As described in our concurrent Order denying the County's motion, however, we concluded that the County's arguments were so clearly incorrect that it was preferable to deny them on the merits. In lieu of summarily denying the County's motion as a sanction, we believe that this Order … sufficiently deters Ms. Pence from relying solely on AI for case citations or legal conclusions in the future. Thus, we decline to order any further sanctions in this matter….

"Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Minn. Rules of Pro. Conduct r. 1.1. In addition, a lawyer "shall not knowingly … make a false statement of fact or law to a tribunal …" Wright County's brief in this matter raises questions of truthfulness and candor to the court.

We are mindful of our responsibility as judges. "A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority."

We believe the submission of an AI-generated brief, apparently unreviewed, as evidenced by inclusion of entirely fake case citations, reasonably raises questions as to a lawyer's honesty, trustworthiness, and/or fitness as a lawyer. Thus, as we are obligated to inform the authority under our governing rule, we will send to the Minnesota Lawyer's Professional Responsibility Board [the relevant documents in the case -EV] …. The Board will respond as it sees fit.

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[Eugene Volokh] Washington Post Article Stresses the Library of Congress's Name, but Largely Ignores Judicial Precedent …

[that treats the Library of Congress as an Executive Branch department as to Presidential removal of the Librarian.]

From Saturday's Washington Post story; the subhead is,

[Title:] It's Called the Library of Congress. But Trump Claims It's His

[Subtitle:] The case is the latest example of efforts by the Trump administration to erase the traditional lines that separate the branches of government.

[First two paragraphs:] The Trump White House has a new target in its campaign to expand executive power: the Library of Congress. Never mind the name—administration lawyers are now arguing that the main research library of the legislative branch doesn't actually belong to Congress at all.

A legal push to claim the Library as executive turf isn't a one-off. It's the latest move in a broader effort by President Donald Trump and his administration to erase the traditional lines that separate the branches of government….

Later paragraphs likewise give the Administration's actions with regard to the Library as part of "the Trump administration's disregard for the separation of powers."

But this material seems to entirely ignore (with one exception I'll note below) what courts have actually said about this legal question. Those precedents have routinely recognized that the Library of Congress, despite its name, is indeed part of the Executive Branch and subject to Presidential control—and that the President's power to remove the Librarian is a feature of the traditional separation of the branches, not a violation. The U.S. Court of Appeals for the D.C. Circuit held last year,

As we have recognized, the Librarian is a "Head of Department" within the Executive Branch. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C. Cir. 2012).

And the Intercollegiate Broad. Sys. D.C. Circuit decision said (emphasis added),

To be sure, [the Library of Congress] performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But … the Librarian is appointed by the President with advice and consent of the Senate, and is subject to unrestricted removal by the President. Further, the powers in the Library and the [Copyright Royalty] Board [which is part of the Library -EV] to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a "component of the Executive Branch."

Indeed, because the Library exercises such executive powers, the Librarian of Congress has to be an executive officer rather than a legislative one. See, e.g., Buckley v. Valeo (1976); Eltra Corp. v. Ringer (4th Cir. 1978). (After 2012, Congress provided that the Librarian serves 10-year terms, but "fixed terms do not confer removal protection": "The Supreme Court [has] rejected [the argument] "that the existence of a term of office implicitly carries with it a prohibition on removal without cause during that term." NLRB v. Aakash, Inc. (9th Cir. 2023) (upholding President Biden's dismissal of the NLRB General Counsel, who was subject to a similar fixed-term statute).)

The Washington Post article does mention, in paragraph 18, that "Anne Joseph O'Connell, an administrative law professor at Stanford Law School, said that the president has authority to fire the librarian based on a past D.C. Circuit ruling." But that strikes me as doing little to correct the implication at the beginning of the article that the Library of Congress "actually belong[s] to Congress" under the "traditional lines that separate the branches of government" that were recognized before Trump's "campaign to expand executive power."

Now, as the article notes, there's a pending lawsuit considering whether the President could fire the Register of Copyrights, who works under the Librarian, and whether the President can assign an interim Librarian under the Federal Vacancies Reform Act. (The President can certainly appoint a new Librarian, but that would require Senatorial confirmation, and a temporary Vacancies Act appointment wouldn't require such confirmation.) That lawsuit raises the question whether the Library of Congress is an "executive agency" for purposes of that Act—a question of statutory interpretation, which the article touches on, but which it doesn't recognize as separate from whether the Library is an executive agency for broader constitutional purposes (e.g., as to the President's removal power).

The article is also correct to point out the possible problems with the President exercising close control over the Library of Congress, given its role doing research in support of Congress (which, as Eltra Corp. noted, "might be regarded as legislative in character"). An Executive Branch agency can provide such support for Congress (though a legislatively appointed agency can't exercise executive powers), but maybe that's not a good idea. It might thus potentially make sense to have a different structure for the Library, in which those legislative research functions are performed entitled within the Legislative Branch under Congressional supervision, and the Register of Copyrights and any other executive operations are put into a separate executive agency. But that just isn't the way the Library is structured under current law.

So there definitely could have been an interesting and balanced article here, which might have gone something like this:

It's Called the Library of Congress. But It's Actually Under Control of the President

A new court case offers an example of how the Trump administration is asserting its executive power.

Despite its name, the Library of Congress is actually seen as an Executive Branch agency for constitutional purposes. By law, the President appoints the Librarian with the Senate's advice and consent, just as he appoints other executive agency heads. And a federal appellate court has recognized that the President also has the power to remove the Librarian.

Yet the Library is also the main research library of the legislative branch, so this Presidential power raises concerns about possible intrusion into the confidentiality of lawmakers' research requests. This leads to the question whether the Library's research office should be split into a purely legislative agency, while the U.S. Copyright Office—long part of the Library—remains an executive agency.

And, it turns out, that though the Library is an executive agency for constitutional purposes, it might not be one under the text of the Federal Vacancies Reform Act, which lets the President to appoint interim directors for some executive agencies even without Senatorial advice and consent. That very issue is being litigated now in federal court….

Or of course the article could have been written in many other ways. But I don't think it was proper to frame it the way it was framed, with virtually no acknowledgment that, "[n]ever mind the name," precedents make clear that the Library of Congress indeed "doesn't actually belong to Congress" but is rather—for constitutional purposes—an Executive Branch agency.

The post appeared first on Reason.com.

[Stephen Halbrook] Second Amendment Roundup: Cert denied in rifle and magazine ban cases.

[Justice Kavanaugh: “this Court should and presumably will address the AR–15 issue soon.”]

After fifteen re-listings, on June 2 the Supreme Court denied cert in v. Brown, which concerns Maryland's ban on semiautomatic rifles, and Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban.  I previously discussed these cases here.

Cert denial in Ocean State was more predictable, even though Justices Thomas, Alito, and Gorsuch would have granted the petition, as it sought review of denial of a preliminary injunction.  But in Snope (styled Bianchi v. Brown in the 4th Circuit) – which has a final judgment based on a full record –Justices Alito and Gorsuch are listed as having been in the "would have granted" category, with Justice Thomas writing a dissent from denial.  The big news is that Justice Kavanaugh issued a statement in Snope concluding that "this Court should and presumably will address the AR–15 issue soon, in the next Term or two."

According to Justice Kavanaugh, "Americans today possess an estimated 20 to 30 million AR–15s," which are "legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR–15s are something of an outlier."  That suggests that AR–15s meet Heller's "common use" test, as then-D.C. Circuit Judge Kavanaugh opined in Heller 2.  "If so, then the Fourth Circuit would have erred by holding that Maryland's ban on AR–15s complies with the Second Amendment."

Moreover, Justice Kavanaugh continues, "it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller."  Most handguns are semiautomatic, as is the AR–15 rifle, and law-abiding citizens use both for lawful purposes such as self-defense in the home.

Several circuits are considering the issue, including the 1st, 2nd, 3rd, 7th, and 9th, and more cert petitions will likely come before the Court.  Further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue."  That's the basis for Justice Kavanaugh's prediction that the Court will decide the issue in the near future.

Justice Thomas dissented from the denial of certiorari.  Contrary to the Fourth Circuit, AR–15s are "arms" under the plain text of the Second Amendment, shifting the burden to Maryland to show that banning them is "consistent with this Nation's historical tradition of firearm regulation."  The lower court's "reasoning is dubious at least twice over" by placing too high a burden to show that the Amendment presumptively protects the conduct and by claiming that AR–15s are "dangerous and unusual."  In more detail:

The Fourth Circuit erred by requiring the challengers to prove that the Second Amendment protects their right to own AR–15s—or, in the terms of our Second Amendment jurisprudence, that their conduct falls outside the historical exceptions to the right to keep and bear arms. A challenger need only show that "the plain text" of the Second Amendment covers his conduct. Bruen, 597 U. S., at 32. This burden is met if the law at issue "regulates" Americans' "arms-bearing conduct." Rahimi, 602 U. S., at 691. Once the challenger makes this initial showing, it is the government's burden to show that a historic limit on the right to bear arms nevertheless justifies its regulation. The Fourth Circuit placed the burden of producing historical evidence on the wrong party.

Further, the Fourth Circuit "eschewed any inquiry into the commonality of AR–15s and the purposes for which they are used, which it dismissed as an 'ill-conceived popularity test.'" Instead, it invented its own tests of "utility for self-defense," "military origin," "firepower," and "muzzle velocity."  But the American people, not the government, decides which arms to use for self-defense.  Contrary to the lower court, that does not lead to absurd results, such as individual use of a nuclear warhead, which would never come into common use for self-defense.  "To fend off the fantastical threat of Americans lobbing nuclear warheads at one another, the Fourth Circuit has allowed the very real threat of the government depriving Americans of the rifle that they most favor for protecting themselves and their families."

Justice Thomas would not wait to decide the issue, which the Court has now avoided for a decade.  "And, further percolation is of little value when lower courts in the jurisdictions that ban AR–15s appear bent on distorting this Court's Second Amendment precedents…. I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right."

* * *

In resisting Heller's common-use test, the Fourth Circuit in Bianchi repeated the myth that "approximately 740,000 machineguns [were] registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives as of May 2021."  Not even close.  By letter dated May 29, 2025, ATF responded to a Freedom of Information Act request from attorney George L. Lyon showing "the number of MGs [machineguns] added to the NFRTR [National Firearms Registration and Transfer Record]" from the enactment of the National Firearms Act through 1986, when new machineguns were banned from private hands by 18 U.S.C. § 922(o).  Excluding machineguns held by government agencies or which are otherwise non-transferable, the total comes to 169,100.  The actual number is lower, as the ATF report states that some of these would have been double counted.

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[Ilya Somin] Our Fifth Circuit Alien Enemies Act Amicus Brief [Updated With Working Link to the Brief]

[The brief was filed on behalf of the Brennan Center, the Cato Institute, law-of-war scholar Prof. John Dehn, and myself.]

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Today, in the Fifth Circuit case of W.M.M. v. Trump, we submitted an amicus brief opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself. I coauthored it with Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, with the aid of valuable advice from Elizabeth Goitein (Brennan Center), and Prof. Dehn. Katherine is a leading expert on the AEA and its history, and Liza one of the nation' leading experts on emergency powers.

The fact that this brief is backed by organizations as ideologically diverse as Cato and the Brennan Center is a testament to the egregious nature of Trump's invocation of the AEA.

The brief is posted here.

Here is a summary of the brief I prepared for the Cato Institute website:

The Alien Enemies Act of 1798 (AEA) is a wartime authority. Congress enacted the AEA under its constitutional war powers as an implementation of the law of war, which in 1798 allowed the government to detain or expel supposed "alien enemies." The AEA may be invoked only in the event of a declared war or "invasion" or "predatory incursion" by a foreign nation or government against U.S. territory. It has no peacetime applicability and has never previously been used outside of a major conflict. Before now, the only time the AEA was invoked absent a declared war was after Japan's attack on Pearl Harbor on December 7, 1941, just days before Congress declared war.

The Trump Administration's current invocation of the AEA, "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua," falls well outside the law's scope. By its text, the President's Proclamation addresses unlawful migration, narcotics trafficking, and gang violence, none of which constitute an "invasion" or "predatory incursion." Under no interpretation of the law of war could these civil and criminal matters trigger the AEA's exceptional powers. The designation of the Venezuelan drug gang Tren de Aragua as a foreign terrorist organization (FTO) does not transform its activities into acts of war.

This case does not present a political question exempted from judicial review. But even if it did, established exceptions to that doctrine would apply. Courts may always check obvious mistakes and manifestly unauthorized exercises of power. And the judiciary's ability to act is at its apex when civil liberties are at stake. Courts have the power to correct the president's misappropriation of the AEA in peacetime — and can rely on the judicially manageable standards historically used to identify acts of war.

Should courts adopt the government's unfounded interpretation of the AEA or hold that the executive's pronouncements are unreviewable, there would be dire consequences. The president could leverage the law's power against any group of immigrants, including legal ones, the federal government could suspend the writ of habeas corpus at will, and states could "engage in War" at any time.

We plan to file similar briefs in other AEA cases working their way through the courts.

I have previously criticized Trump's invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.

UPDATE: The link to the brief in original version of this post was broken. I have now updated with a workable link.

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