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I've blogged a lot recently about limits on pseudonymous litigation, and readers will have gathered that I think such litigation should generally not be allowed. But "generally" isn't "always" (much more on that here), nor do I think that it should be always. (I explained in my post about Doe v. Volokh why I thought the underlying case I wrote about there was rightly depseudonymized, but that had to do with particular features of that case.)
At Slate, Mark Joseph Stern writes that constitutional law professors are "giving up on the Supreme Court:" The problem, it's worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It's that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it's only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.
This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas's social media law than we did last week. We devote the last half of this episode to a structured dialogue between Adam Candeub and Alan Rozenshtein about the decision. Both have written about it, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter's dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that's exactly the problem; he objects to the opinion's grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Oldham to become Justice Oldham in the DeSantis Administration.
The U.S. Supreme Court on Monday begins its 2022-2023 term with a new justice and a list of cases including ones that focus on race, the environment and artist Andy Warhol’s paintings. Justice Ketanji Brown Jackson, the first Black female justice in the court’s history, will join the other...
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Tomorrow is the first Monday in October, which marks the start of the newest term at the Supreme Court. In the past few weeks, I've had various pieces of commentary on the Court that I thought I'd collect here. First, and perhaps best in my book, there are the first...
Fifth Circuit Judge James Ho recently announced that he will be taking on cancel culture through his law clerk hiring practices. Judge Ho believes that the most significant cancel culture problems in legal education today are at Yale Law School. He has therefore decided that, in his capacity as a United States judge, he will no longer hire any Yale Law graduates as law clerks. And he is encouraging other judges to join him.
Several times a week you can hear gunfire echoing from Brandi Joseph's scenic Southern California property. A licensed firearms instructor and dealer, Joseph decided to open Fortune Firearms in December to serve a growing and rapidly changing clientele. "There is a huge uptick in female owners," Joseph said. "Women are...
The Harlan Institute and Ashbrook are pleased to announce the Eleventh Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Students for Fair Admission v. University of North Carolina.
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The general counsel of the University of Idaho issued a guidance memo to university employees regarding the implications of the state's new abortion law for university operations. That memo told professors that they should maintain instructional neutrality in any classroom discussions relating to abortion if they wished to avoid the possibility of criminal prosecution. I wrote about the law and the memo in an earlier post. Eugene Volokh has likewise blogged about it.
On Wednesday I wrote about the case challenging Biden's student loan debt cancellation program filed by the Pacific Legal Foundation (PLF) on behalf of attorney Frank Garrison, who is himself a PLF employee. For details about the case and its novel strategy for getting around the procedural constraint of "standing" see my earlier post.
Of all the dislocations caused by government responses to COVID-19, arguably none were more disruptive to everyday life than the shutting down of in-person education for the country's 50 million public K-12 students and their parents. Teachers unions fought to keep schools online even as evidence piled up that remote...
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. New cert petition: Anthony Novak was jailed for four days and prosecuted for making a fake Facebook page satirizing the Parma, Ohio police dept.—an obvious First Amendment violation! And yet the Sixth Circuit granted qualified immunity to the officers involved, so IJ is asking the Supreme Court to step in and settle a deep split among the circuits on what to do when probable cause rests on speech. Or, better yet, the Court could nuke the doctrine of qualified immunity into the sun. Read all about it at Cleveland.com.
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From U.S. v. Harper, decided Friday by Judge Leonard Strand (N.D. Iowa):. [Harper is being prosecuted for] possession of a firearm by a felon and unlawful drug user in violation of 18 U.S.C. §§ 922(g)(1) and (3) and § 924(a)(2)…. Harper argues that [he is entitled to a religious exemption from these laws because] he is a Muslim who practices "Sharia Law and its adherence to armed self-defense (including the possession of a firearm.)." …
To date, I have not written about President Biden's student loan forgiveness initiative. Why? Because the rule doesn't actually exist! There has been no notice in the Federal Register. Rather, we are left with a series of press releases, fact sheets, and the like. Government by blog post, as I've called it, is not new. The Obama Administration would often modify regulatory regimes, such as the Affordable Care Act, through FAQs and other subregulatory guidance documents. But as best as I can recall, the Obama Administration did not deliberately avoid publishing a new rule to frustrate legal challenges. Yet it seems that the Biden Administration is doing exactly that. Indeed, the Administration appears to be making changes to the policy on the fly for the express purpose of blocking law suits.
Judge Laurence Silberman of the D.C. Circuit Court of Appeals died on Sunday. The Wall Street Journal has full coverage, including an obituary, house editorial, and op-ed by Paul Clement. (Indeed, I suspected something was up when the WSJ published Judge Silberman's Constitution Day address at Dartmouth.) He was a legal giant. Few today could ever scale to his height and influence. Here, I will include a short anecdote about my experiences with Judge Silberman.
At the University of Idaho, administrators can pass out condoms to prevent the spread of STDs but not to prevent pregnancy. Why? The University has adopted an extreme set of policies as part of an overzealous attempt to comply with an Idaho state bill banning the use of public funds for abortion—violating faculty free speech rights in the process.
From Magistrate Judge Phillip Green's Report & Recommendation Tuesday in Trouten v. Ballotpedia (W.D. Mich.):. Plaintiff alleges that Ballotpedia "has withdrew the 'Bryan Trouten for United States House of Representatives Campaign' on their website." Plaintiff alleges that this action constitutes libel and/or defamation under state law. Plaintiff seeks $5,000,000.00 in damages….
I just came across a September 2021 Biden "Executive Order on White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Hispanics." A few thoughts. (1) "Only 40 percent of Latino children participate in preschool education programs as compared to 53 percent of their White peers…. Hispanic and...
Earlier today, six GOP-controlled state governments filed a lawsuit challenging the legality of President Biden's massive student loan forgiveness program. This development is notable because at least some of the states have a very strong argument for "standing," the biggest procedural obstacle to getting legality of the program considered in court.
From One for Israel v. Reuven, decided yesterday by Judge Raag Singhal (S.D. Fla.):. [Plaintiff] One for Israel is a ministry initiative whose mission is to evangelize Israelis and promote Messianic Judaism. [Plaintiffs] Eitan Bar … and Mordechai Vaknin … are missionaries working for the ministry who teach the New Testament and share Gospel of Jesus Christ with youth, soldiers, and students…. The defendant is Yaron Reuven …, an Orthodox Jewish Rabbi who maintains a website, a mobile application, and a YouTube channel to promote Orthodox Judaism….