Tag: hit&run

 

In a recent Lawfare article I outlined the case against “packing” the Supreme Court, and explained why the Court’s recent decision in Louisiana v. Callais doesn’t justify such a measure. Court-packing is generally understood as an attempt to alter the Supreme Court’s ideological balance by increasing the number of justices. Thus, most current Democratic proposals would transform the current 6-3 conservative majority on the Court into a 7-6 progressive majority, by adding four justices.

But there are various non-packing rationales for increasing the number of Supreme Court justices. I sometimes see them brought in response to my criticisms of court-packing. In this post, I assess the most common of these arguments. In general, I think they are relatively weak. But, to the extent they have merit, they could potentially be addressed without packing the court, by means that ensure the new – larger court – would have roughly the same ideological balance as the old one. That would prevent the slippery slope escalation caused by court-packing would be likely to lead to destruction of judicial review. If you want to expand the Court, but oppose such compromise measures, that’s a strong sign that court-packing – not these other issues – is your main objective.

If your main reason for wanting to expand the court is to change its ideological balance, the points made in this post are unlikely to sway you (check out my various critiques of court-packing instead!). But if you do care about these other issues, read on.

The most often heard non-packing justification for increasing the size of the Court is the idea that we need to have thirteen justices because we now have thirteen appellate circuit courts. Thus, we should have one Supreme Court justice per circuit, as was the norm throughout much of the nineteenth century. For example, potential 2028 Democratic presidential candidate Pete Buttigieg recently stated that “Nowhere in the Constitution does it say that there have to be nine Supreme Court justices… It just takes a readiness to set up a court that fits this country. We could have 13 seats matching the district structure of the federal judiciary.”

The problem with this argument is that, as Josh Braver documents in an important article, the nineteenth century expansions of the size of the Supreme Court to match the number of circuits was primarily a result of the policy of “circuit riding,” under which Supreme Court justices routinely heard cases as circuit judges on “their” lower court. Circuit riding was a difficult and time-consuming responsibility, and one justice could not readily do it for two circuit at once (especially given relatively slow nineteenth century transportation). But mandatory circuit riding was abolished by Congress in 1891. Today, the supervisory responsibilities of Supreme Court justices with respect to their assigned circuit courts are fairly minimal. Thus, it is not a great imposition for some of the justices to have to oversee two or more circuits rather than just one one.

Currently, two justices – Alito and Kavanaugh – each oversee two circuits, while Chief Justice Roberts handles three. I am skeptical either that this is an excessive burden on these justices or that it gives them way too much power relative to the other six. But if you disagree, there’s a simple solution that does not create opportunities for court-packing: increase the number of justices to 13 (one per circuit), but let the party that does not control the White House select two of them. In that way, both the conservative and liberal blocs on the Court would add the same number of justices.Thus, no packing, and no slippery slope escalation.

There may be some moderately complicated political maneuvering required to do this; the president and his party would have to credibly commit to nominating and confirming two justices chosen by the “out” party. But such political deal-making is common place. One way to do it would be for the president and the opposition party to agree on the four names in advance, and include a provision in the expansion law that ensures it will only go into force if all four of these individuals are nominated and duly confirmed within a certain period of time (say, within one year of the law’s enactment).

A second possible non-packing rationale for court expansion is the idea that we need  more justices so the Supreme Court can hear more cases. Justice Brett Kavanaugh and a number of outside critics of the Court believe it hears way too few cases, and should take many more. Perhaps they are right. I don’t have a strong view about what the optimal total number of Supreme Court cases,  though there are certainly some specific areas where I would like to see the justices do more (e.g. – constitutional property rights cases).

But even if Court should take more cases, it is not clear that it needs more justices to do so. The Court currently hears only about fifty to sixty cases  on the regular docket per year, including just 56 last year (not counting “shadow docket” cases that don’t get full briefing and oral argument). But, as recently as the early 1980s, it was hearing 160 cases per year. And there were only nine justices then, too! Hearing more cases would actually be easier today than it was then, since modern technology (most notably specialized electronic databases and now AI) makes it easier to quickly research  and analyze relevant legal issues.

The reason why the Court hears so few cases is not because we have too few justices, but because the justices have near-total control over their docket, and (with, perhaps, a few exceptions) they don’t want to take more. There is no guarantee this would change merely by increasing the size of the Court. The new justices may be happy hearing relatively few cases, just like the current ones. Fewer cases means more free time and longer summer vacations! Who wouldn’t want that?

If Congress wants the justices to hear more cases, it could more effectively achieve that goal by increasing the scope of the Court’s mandatory jurisdiction. Before the enactment of the Judges Act of 1925, the Supreme Court had a sizable mandatory jurisdiction, and thereby heard more cases. Congress could repeal or modify that legislation, thereby increasing the justices’ workload.

There is some irony here. If, like many left-liberals, you think the Court does a terrible job on most important cases, you may not actually want them to hear more! Perhaps it would be better if they decided even fewer issues, thereby leaving more under the control of lower federal courts (which are, on average, somewhat more liberal than the present Supreme Court majority).

Even if you do want the Court to hear more cases, and you are persuaded that increasing the number of justices is the best way to achieve that result, it can be accomplished without changing the Court’s ideological balance. Simply adopt the ideologically balanced expansion outlined above. If you think 13 justices are not enough, the same approach can be used to increase to 15 or even more (with 15, the president’s party and the opposition party would each get to choose three new justices).

Finally, it is sometimes argued that a larger court would lead to a higher quality of deliberation and perhaps a greater diversity of experience among the justices. I am by no means sure this is true. For example, it does not seem like bigger state supreme courts make better decisions, on average, than smaller ones. The same is true for en banc circuit court rulings in circuits with more judges, as opposed to those on circuits with fewer judges.  At present, the total number of judges in a circuit varies from six in the First Circuit, all the way up to 29 on the Ninth. I see little, if any, correlation between numbers and quality here.

On the other hand, I am also not certain that nine is the optimal number of justices, as opposed to 11, 13, or 15. Once again, however, the number can be increased without changing the ideological balance, by the procedure already described.

As noted in my Lawfare article and other writings, I am far from an uncritical admirer of the current majority on the Court, and I think they get some important issues wrong. I oppose court-packing because it would make things much worse than they are now, not because the status quo is anywhere near ideal. I also favor a number of reforms that do not require changing the number of justices, most notably term limits.

I am not endorsing the status quo here. This post merely shows that we probably don’t need to expand the size of the court to achieve various other improvements in the Court’s work product. And to the extent that expansion is desirable, it can and should be done without creating opportunities for court-packing.

The post Assessing Non-Packing Rationales For Increasing the Size of the Supreme Court appeared first on Reason.com.

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From the long (20K-word) decision of the Washington Supreme Court Thursday in In the Matter of Disciplinary Proceeding Against Feyissa, written by Justice Sheryl Gordon McCloud:

After a 12-day disciplinary hearing, a hearing officer (HO) concluded that Shakespear N. Feyissa committed six counts of misconduct. The presumptive sanction for most of those counts was disbarment…. The Disciplinary Board (Board) of the Washington State Bar Association (Bar) unanimously adopted the HO’s disbarment recommendation. Feyissa appeals….

Attorney Shakespear N. Feyissa was born in Ethiopia. He immigrated to the United States at around age 17….

There’s a lot going on in the case, and you can read it for yourself here. But here’s one brief passage that particularly struck me:

Feyissa claims that the HO refused to consider cultural differences. But the record contradicts that assertion ….

As stated above, Feyissa’s friend testified about cultural differences between Ethiopian and Western cultures relating to norms in negotiations. The witness opined that “in Ethiopia, ‘If you tell a lie but everybody’s happy, then you didn’t do anything wrong.'”

The HO clearly did not refuse to consider this testimony or to evaluate its impact on the case, as evidenced by her conclusion of law on the issue; the HO made the sustainable legal conclusion that this cultural difference “does not exempt Respondent from his professional obligations under the RPCs, and thus cannot be accepted as a reason to mitigate Respondent’s conduct as a lawyer.”

Here are the passages from Feyissa’s counsel’s briefs that raise the argument to which the supreme court was apparently referring:

The complaint also alleged that Mr. Feyissa made false statements in negotiating on his clients’ behalf. As explained below, due to the very different set of norms in Ethiopian culture surrounding negotiations, he did not understand the limits of bluffing and puffery in negotiations, and made the false statements solely to get his clients more money.  Mr. Feyissa admitted the false statements for which he was responsible, stopped engaging in that practice after receiving the grievance; and expressed regret for his conduct during the hearing…..

[T]he Hearing Officer refused to consider evidence that in Mr. Feyissa’s culture, telling lies is accepted as long as it makes other happy and that in negotiations, both sides understand that the other will exaggerate and twist the truth….

The Hearing Officer also erred by refusing to consider Mr. Feyissa’s cultural background in finding that the false statements “seriously adversely reflected on his fitness to practice,” wrongly concluding that because his cultural background did not “exempt Respondent” from the RPCs, it should not be considered at all. Mr. Feyissa never asserted that he was exempt from the RPCs. Instead, the context for the misstatements is critical in evaluating whether the misrepresentations to third parties seriously adversely reflected on his fitness to practice. As discussed above, there was uncontested evidence that false statements are acceptable in negotiations in Ethiopian culture. Mr. Feyissa now understands that the rules governing his conduct in negotiations and agrees that he did not comply with the RPCs, but the reason he thought he was allowed to make such statements needs to be considered when determining the degree to which his conduct reflected on his fitness to practice….

ODC criticizes Mr. Feyissa’s counsel for asking race-related questions and claims that “[t]he Hearing Officer’s explicit rejection of Respondent’s attempt to inject race into the proceeding makes clear that the Hearing Officer had foreclosed any consideration of race as a factor in this case and undercuts the claim that the decision was tainted by racial bias.” That assertion is based on Respondent counsel attempting to impeach Dr. Britton after ODC opened the door by eliciting demonstrably false testimony that he and Mr. Feyissa had a similar skin tone. The Hearing Officer’s refusal to permit impeachment based on race-related testimony on direct is itself a potential instance of implicit racism. As discussed in the Opening Brief …, color-blindness is a contemporary form of racism. That is further reflected in the Hearing Officer’s refusal to consider evidence that falsehoods in negotiations are acceptable in Mr. Feyissa’s culture, which she wrongly viewed as using “cultural background [to] exempt Respondent from his professional obligations under the RPCs.”

Just to be clear, I have no reason to think that Ethiopians are indeed culturally more open to lying than Westerners in negotiations; of course, many Westerners lie about all sorts of things, including during negotiations; and the rules related to honesty in negotiation can be complex—to quote the comments to the Model Rules of Professional Conduct, for instance,

Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact [as to which a duty of honesty applies]. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

But even if Feyissa’s counsel was correct that Ethiopian norms related to honesty in negotiation are different here, I agree with the hearing officer that this shouldn’t be seen as a mitigating factor here.

The post Cultural Difference "Cannot Be Accepted as a Reason to Mitigate" Ethiopian-Born Lawyer's Dishonesty-Related Misconduct appeared first on Reason.com.

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From 2015 to 2021, more than 28 billion pounds (about $37.5 billion) was given to terrorists and hostile states by the British government, according to The Telegraph.

As the outlet reports, a secret government dossier shows more than 28 billion pounds of spending ended up in the hands of terrorist groups and other national security threats. Sources told The Telegraph that an organized crime network linked to Eastern Europe made a “concerted effort to obtain British public funds.”

The document includes details of COVID loans being sent to Islamic State group terrorists, grants given to companies linked to the Russian government, and research spending on companies associated with the Chinese military. The report also outlines instances of human traffickers claiming government benefits and COVID relief grants being channeled to the Islamic State in Syria.

Officials have reportedly known the scathing details of the dossier—which was commissioned by security officials in 2023 after reports emerged of widespread fraud in the government’s pandemic-era rescue packages—for years. The secret dossier “was never made public to save the government from the political embarrassment of revealing the huge scale of misdirected funds,” according to the sources who spoke to The Telegraph.

This isn’t the first report on government waste during the COVID-19 pandemic. In 2025, the British government published a report to Parliament which found that 10.9 billion pounds (about $14.6 billion) of taxpayer money had been lost to “fraud and error” during the pandemic response. An estimated 324 million pounds ($434 million) of personal protective equipment spending was fraudulent. Meanwhile, the Bounce Back Loan Scheme issued 1.5 million loans worth 46.5 billion pounds ($62.3 billion), with an estimated 2.8 billion pounds ($3.75 billion) lost to fraud and error. That report found that “inadequate checks facilitated significant volumes of fraudulent applications,” and that loans were dished out to businesses, but “no checks were made.”

Officials knew of the risks associated with handing out such large sums of money from the start. That report said that they “lacked the necessary capabilities to effectively manage the fraud and error risks associated with a substantial loan portfolio,” and that they “recognised the high fraud risk.”

The secret dossier was compiled by analyzing government grants awarded between 2015 and 2021, a period in which even billions in misdirected funds represented only a fraction of the British state’s vast aid expenditure. During this period, Britain had one of the highest foreign aid budgets in the world, committing to 0.7 percent of gross national income toward foreign aid. Under the statutory target, foreign aid spending rose from 12.1 billion pounds (about $16.2 billion) in 2015 to 15.2 billion pounds (about $20.4 billion) in 2019, before falling to 11.4 billion pounds (about $15.3 billion) in 2021 after the government reduced the target to 0.5 percent of gross national income. Across the seven-year period, Britain spent roughly 95 billion pounds (about $127.4 billion) on foreign aid.

Indeed, wasteful spending under the guise of foreign aid is not a new phenomenon. As one report from the Institute of Economic Affairs, a British free market think tank, details, the government has spent foreign aid in regions that are wealthier than parts of Britain itself. The richest region that received foreign aid, Ordos in China, was richer than 69 regions in Britain. Projects funded include a temporary cycle lane in Mexico City and an all-female traditional Chinese opera in Shanghai.

However, The Telegraph‘s reporting reveals that the government has now well and truly outdone itself. The government does not just fund frivolous projects but also directly finances fraudsters, gangsters, terrorists, and hostile regimes. Looks like a government big enough to spend billions in the name of saving the world is also foolish enough to hand that money to some of the worst people in it.

The post Terrorists and Criminals Reportedly Got $37.5 Billion From COVID Relief and Other U.K. Aid Programs appeared first on Reason.com.

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From a Justice Department press release Wednesday:

“… In the dead of night, masked and hooded defendants allegedly threw noxious chemicals through the windows of families’ homes and taped demand letters to their front doors….,” said Jennifer Runyan, Special Agent in Charge of the FBI Detroit Field Office.

After the October 7, 2023, Hamas terrorist attacks in Israel, the defendants and unindicted conspirators enacted a series of coordinated “actions” threatening University of Michigan leaders, law enforcement, and businesses. Seemingly prompted by their perception of the University of Michigan’s and other victims’ purported financial support of Israel, the conspirators insisted publicly that they “must escalate, mobilize, and organize to demand divestment by any means necessary.”

According to the indictment, on October 20, 2023, the defendants publicly posted a list of demands on social media directed at University of Michigan leadership. Among the demands, they required the University to make a “full and complete divestment” from Israel and any businesses supporting Israel. Unsatisfied by the University’s response, the defendants “prepared to take action” against the leadership by what they called “autonomous actions,” which included forcibly entering and occupying University of Michigan buildings, defacing buildings, and blocking and disrupting events on campus. They also posted threats on the internet that included photos of their “autonomous actions.”  …

The defendants also allegedly held meetings to identify targets of their “autonomous actions.” They used the internet to research personal addresses, photographs, political and social connections, business ownership, and other personal details of the targets.

They also discussed methods by which to harm the targets and their families, including poison, bombs, and psychological torture. For example, on May 21, 2024, [defendant Paige Elizabeth] Feyock and then-medical student [defendant Ahmet Kerem] Korkaya agreed to “kill,” “torment,” and “terrorize” their targets and families. Referring to one victim, Korkaya stated his “entire family” was on his “hit list” Feyock added that they should “get” the “kids” of two victims.  Korkaya, referring to another victim, stated, “I’m gonna be the dirtiest f——- doctor ever / I’m gonna be [victim’s] doctor / poison her a– slowly.” Feyock agreed, “We need people following [victim] / get into that house then burn it down.”

As part of the conspiracy, the defendants are alleged to have traveled at night to the targeted homes and businesses. They damaged and defaced homes and businesses with spray-painted messages, threats, and symbols, including inverted triangles, which Hamas has used in its military videos to mark targets for death; red handprints, which Hamas has used to symbolize the Ramallah Lynching of 2000 and the murder of two Israeli military reservists during the Second Intifada; and phrases such as “INTIFADA” and “DIVEST NOW.” The defendants also left demand notes containing additional threats, caulked doors shut, bike-locked entryways, broke windows, and threw glass jars filled with butyric acid and dye into the homes. The defendants took photographs of the destruction and posted the photos online with “official statements” and additional warnings and threats, such as “you cannot hide” and “we only come back stronger.”

Below are photos of the alleged threats spray-painted on the Jewish Federation Building on the one-year anniversary of the October 7, 2023, Hamas terrorist attacks in Israel, as well as two other businesses.

The indictment also charges Zainab Aliasgar Hakim and … Feyock with witness intimidation. In July and August 2024, Hakim and Feyock devised a plan to confront the victim, a University of Michigan student whom they believed may have been cooperating with federal authorities. They planned to convince the victim not to provide information about the defendants’ criminal activities.

Hakim warned that the victim was “going to send us to federal prison.” Feyock explained, “we have to do something about [victim] / [victim] is actually a liability / the fact that [victim] is naming you to [unindicted conspirator] is a major issue.”  Feyock told other conspirators that the victim “has to be neutralized” and that she and Hakim were going to “strip search” the victim “to see if he is wearing a wire / not taking no chances with him.” Hakim and Feyock confronted the victim on August 6, 2024, and afterward, Feyock told another conspirator that the victim “knows not to talk about [the autonomous actions].”

Alexander Matthew Sepulveda is also charged in the indictment with destruction of property to prevent seizure. According to the indictment, Sepulveda and Jonathan Hongru Zou were involved in an “autonomous action” at the home of the University of Michigan’s Provost. Sepulveda and Zou threw two glass jars filled with a blue substance and food compost through a window of the Provost’s home.  They also spray painted the home with inverted red triangles and phrases including “Divest” and “Free Palestine.” …

The post "Eight Conspirators … Threatened University of Michigan Officials, Businesses, and the Jewish Federation" appeared first on Reason.com.

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This story keeps getting weirder. @Jimmy_Esq flags the fact that Judge Ross writes like a toddler. The problem is worse.

Here is her signature on the May 29 letter:

That is fourth grade penmanship.

And here is her signature on the June 11 letter:

That is an adult’s signature.

And here is Ross’s digital signature from the Raffensperger case (an order she certainly didn’t read):

 

The signatures on May 29 and June 11 are totally different. The May 29 signature includes “Judge” as a her first name. Who does that?? In the second letter has initial “E.”

The letters from June 11 are far more angular, and match the type of letter in her standard digital signature. I realize I have some expertise in authenticating the provenance of Alexander Hamilton’s signatures, but this one wasn’t too hard.

I suspect Judge Ross didn’t even sign her first, completely unremorseful letter. She couldn’t even bring herself to put her name on it. It is clear she asked some subordinate to sign it for her, and that person actually signed it “Judge Ross.”

Judge Ross should be ashamed of herself. She materially breached the terms of her private reprimand many times over. Impeach her.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! Art Yatsko wants to build a modest home in North Port, Fla. for his retirement. And though his lot is in a neighborhood comprised entirely of single-family homes, the city recently rezoned the area to promote commercial uses. Art could build a shooting range or a nightclub, or he could seek permission to build a duplex, but he is absolutely downright forbidden from building a single-family home. Which is arbitrary, irrational, and dishonorable, so Art has teamed up with IJ to sue. Click here to learn more.

New on the Short Circuit podcast: Suing a probation officer and moth-eaten precedent.

1. This Third Circuit case has a lot of familiar parts: a pro se litigant squaring off against gov’t lawyers, complaints of constitutionally insufficient notice, and ultimately a finding of civil contempt. Except here it’s the gov’t arguing that the pro se party didn’t provide enough notice, and let’s just say the contempt order doesn’t run against the guy you all thought it would.
2. Federal inmate is beaten to death by other inmates; despite emergency alarm’s being triggered and live video footage of dodgy activity, guards inexplicably fail to spring into action until hours after he died. Third Circuit (unpublished): The Bureau of Prisons has an administrative-remedy program to deal with prisoners’ grievances, which means that we courts shouldn’t imply a right to bring a constitutional claim under Bivens. What? Dead inmates can’t actually use the administrative-remedy program? Because they’re dead? No matter. Case dismissed.
3. Fifth Circuit (2022): The Horseracing Integrity and Safety Act of 2020 violates the nondelegation doctrine! Fifth Circuit (2024): And intervening amendments to the statute have fixed exactly half of the problem! SCOTUS (2025): Maybe give that another look? Fifth Circuit (this week): Nope. Just half!
4. Dallas police respond to couple sleeping in their van with lights, sirens, and shouting commands. The driver reverses slowly and hits a cop car. Police respond by opening fire, killing the driver and injuring the passenger. An officer who shot a dozen times was fired, indicted (the first Dallas cop in more than 40 years); a jury acquitted him. Fifth Circuit (2024, unpublished): Can’t sue the officers, but maybe the city? Fifth Circuit (2026, unpublished): Can’t sue the city, either.
5. We don’t know much about the unsuccessful doggie-daycare plaintiff in this unpublished Fifth Circuit opinion, but if he didn’t want gov’t officials telling him what to do, he probably shouldn’t have opened his business in the City of Bossier City. (We know, the locals don’t pronounce it like that. Let us have our fun.)
6. When a district court denies a defendant’s request for qualified immunity, the defendant gets a special right of interlocutory appeal (which can delay litigation for months). But what if the district court just doesn’t mention the request for qualified immunity at all? That triggers the same appeal right as a denial would, says the Fifth Circuit.
7. A “heckler’s veto” is when the gov’t silences speech because of the hostile reaction of listeners. And, per the Sixth Circuit, it remains as unconstitutional in limited public forums as it is in traditional public forums. Thus, a Xenia, Ohio school board member should not have yoinked the microphone from a speaker who was expressing her views regarding the school district’s alleged teaching of critical race theory.
8. The Kenosha County, Wisc. jail has long contracted with federal agencies to house immigrants who are civilly detained pending hearings or removal. While in custody, the detainees are required to perform unpaid custodial work, on pain of discipline like loss of phone privileges or solitary confinement. A violation of 18 U.S.C. § 1589, which provides a civil damages remedy for people who are forced to provide labor or services by means of physical restraint or threatened abuse of legal process? Jail: Come on, guys. That statute’s meant to deal with human traffickers, not righteous gaolers like us. Seventh Circuit: It’s actually not so limited. Case undismissed.
9. Under Indiana law, members of the public may only attend executions if they are invited by the condemned inmate or are immediate family members of the victim. Reporters sue, arguing that the First Amendment protects their right of access to gov’t proceedings. Seventh Circuit (over a dissent): That applies to trials, not executions, and the law treats members of the press just like everyone else. No First Amendment violation.
10. Allegation: Prison guards at Moberly, Mo. facility are supposed to check on certain inmates every 20 minutes. These guards didn’t, and an inmate committed suicide by hanging. District court: The guards are not shielded from suit by state-law official immunity because the checks are a mandatory, rote task. Eighth Circuit: Reversed. The checks are discretionary because, if they had done them, then they would have had discretion in assessing the inmate’s condition and any steps to take.
11. After 32 years in prison, man is exonerated of murder; the prosecution’s star witness was an accomplice to the actual shooter and, in exchange for full immunity, adopted the story San Francisco investigators fed him. Ninth Circuit: The man’s fabrication-of-evidence and malicious-prosecution claims can proceed. Dissent: Even if his rights were violated, that wasn’t clearly established in 1990.
12. Pro se Kansas prisoner: I was subject to excessive force during a medical emergency. Defendants: Qualified and sovereign immunity, please. District court: Happy to consider it, but please comply with the page limits for your motion. Defendants: No, we’d rather appeal. Tenth Circuit: Guys, official immunities may give gov’t defendants lots of chances for interlocutory appeals, but not just because you don’t want to follow the rules. Appeal dismissed for lack of jurisdiction.
13. This case demonstrates the complexity of trying a criminal case and the many legal fights that happen in the lead up to and during trial. Unfortunately for the crooked federal agent convicted of participating in an oxycodone-trafficking conspiracy, the Eleventh Circuit doesn’t find any of those issues sufficient to disturb his conviction or sentence.
14. Florida man sues, arguing that “any use of city or state tax dollars supporting a public place with a Confederate name—streets, schools, and the like—violates his statutory and constitutional rights.” Eleventh Circuit: “His disgust, no matter how deep and how sincere, is not the kind of injury that can give rise to a lawsuit.”
15. And in en banc news, the Ninth Circuit will reconsider its decision that celebrity tattoo artist Kat Von D is off the hook for copyright infringement for her skillful recreations of Jeff Sedlick’s famous photo of Miles Davis on a friend’s arm. The earlier panel had affirmed a California jury’s ruling that the tattoo was not “substantially similar” to the photo under the Ninth Circuit’s “intrinsic test” for substantial similarity, which looks to the jury’s subjective interpretation of the overall concept and feel.

New case! North Dakota is one of only two states that require every private school teacher to get a license. And then on top of that, N.D. officials dictate which courses and grade levels teachers are allowed to teach. Obtaining a license is onerous, time consuming, and expensive. And it means that private schools like IJ client Capstone Classical Academy can’t hire teachers they know to be perfectly well qualified. “Private schools across the state are turning away Ph.D.s, working professionals, and accomplished educators from other states because none of them happen to hold North Dakota’s particular paper credential,” says IJ Senior Attorney Michael Bindas. “That isn’t a recipe for quality—it’s a barrier to it, especially in a state that is already finding it hard to attract and keep great teachers.” Click here to learn more.

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Elon Musk, the world’s richest man, extended his lead by becoming the first trillionaire in world history. Many progressives have bemoaned this result for years, but is there really anything to fear?

The space exploration company SpaceX went public this week, announcing on Thursday an initial price of $135 per share. Musk, the founder, CEO, chief technology officer, and chairman of the board, “holds roughly half of the company’s stock, including shares that he might earn far in the future tied to accomplishments such as shooting computer data centers into space and creating a human settlement on Mars,” Shira Ovide and Faiz Siddiqui report at The Washington Post. “Those Musk shares in SpaceX are worth about $867 billion at Thursday’s IPO price. Combined with the chunk of the automaker Tesla that also belongs to Musk, his stock in the two companies is valued at more than $1.1 trillion combined.”

The company’s stock opened at $150 and hit $170 after trading began, putting Musk comfortably above the trillion-dollar mark even without the bonus shares tied to space colonization.

The news was hardly a surprise. Musk even referred to himself as a trillionaire in March, in a cheeky reply to Rep. Alexandria Ocasio-Cortez (D–N.Y.) on X—the platform formerly known as Twitter before Musk bought it outright in 2022.

Of course, Musk does not actually have $1 trillion in checking and savings—he is a trillionaire on paper, and he will only remain one as long as both SpaceX and Tesla maintain healthy stock prices.

Still, it represents a significant milestone in the history of human achievement.

In fact, this has been a long time coming, for Musk or anyone. As Chase Peterson-Withorn notes at Forbes, it took more than a century after the world’s first millionaire to crown its first billionaire, with the first trillionaire coming just over 100 years after that.

There was speculation in 2020 that Amazon founder Jeff Bezos could become the first trillionaire when COVID-19 lockdowns sparked a massive uptick in online ordering. Online commenters were unenthused at the prospect, though one wonders how many of them spent the early days of the pandemic stocking up on toilet paper and generic Robitussin.

Ultimately, Bezos’ gains leveled off, and his wealth currently sits at a paltry-only-by-comparison $262 billion.

At least as far back as 2021, analysts at Morgan Stanley suggested not only that Musk could become the first trillionaire, but that it would come from SpaceX.

Of course, progressives have blanched at the idea of a single person controlling that much wealth.

“This is not only grossly immoral. It is insane economics,” Sen. Bernie Sanders (I–Vt.) wrote in September, when reports suggested Musk’s Tesla compensation package could push him above billionaire status. “No society can survive when one man becomes a trillionaire while the working class struggles to survive. This cannot stand.”

Earlier this year, Sanders proposed an annual 5 percent wealth tax on U.S. billionaires.

Last month, Ocasio-Cortez declared that no billionaire becomes one honorably: “You can get market power, you can break rules, you can abuse labor laws, you can pay people less than what they’re worth, but you can’t earn that.”

It’s simply impossible, per Ocasio-Cortez, that any person could make something—a product, a service, an experience—that creates billions of dollars of value for consumers, without somebody else being worse off as a result.

But SpaceX has pioneered innovations in space travel that very recently seemed like science fiction. “SpaceX’s ability to lower launch costs by roughly 90 percent—through reusable first-stage boosters, but also a vertically integrated manufacturing process and a high-cadence flight rate—is mega innovation equal to any of the past quarter century,” writes James Pethokoukis of the American Enterprise Institute. “That massive cost decline, with another 90 percent or more potentially on the way through full reusability, has fundamentally altered the economics of space and finally made possible the dreams of the original Space Age: orbital cities, deep-space habitats, space-based solar, asteroid mining.”

Besides, economics is not zero-sum. Musk’s balance sheet growing to a trillion dollars does not mean other people lose money; it means the economy as a whole is growing.

And growing economies are good for everybody, not just the uberwealthy: Between 1990 and 2025, the global share of people living in “extreme poverty” declined by nearly two-thirds, from 2.31 billion to 808 million, even as the global population increased by nearly 3 billion—an accomplishment J.D. Tuccille called “nothing short of miraculous.” It’s not a coincidence that over that same period of time, global gross domestic product (GDP) roughly quadrupled, boosting countless thousandaires into millionaires and millionaires into billionaires in the process.

This is not to say Musk and his wealth are completely beyond criticism. After all, despite talking a big game about the government butting out of business affairs, his companies have benefited from tens of billions of dollars in government contracts. Just last month, SpaceX won a $4 billion contract with the Space Force.

But it remains the case that many companies, including SpaceX, contribute to the economy by creating a product that others are willing to pay for, and there’s nothing exploitative about that.

Even some of the cynics currently naysaying about Musk have shown a bit of hypocrisy on the subject.

Sanders long railed against “millionaires and billionaires,” making them a target of his 2016 presidential campaign. But when he ran again in 2020, Sanders suddenly cut the phrase in half, to just “billionaires.”

Perhaps not unrelated is the fact that in the intervening years, Sanders himself became a millionaire.

The post Elon Musk Becomes the World's First Trillionaire. Is That Such a Bad Thing? appeared first on Reason.com.

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Some excerpts from Judge Lewis Liman (S.D.N.Y.) long opinion today in Wayfarer Studios LLC v. Lively:

[Blake] Lively filed a complaint with the California Civil Rights Department (“CRD”) against [Justin] Baldoni and his co-defendants, the Wayfarer Parties, alleging, among other things, that Baldoni and others sexually harassed her on the set of the Film {It Ends With Us} and that the Wayfarer Parties retaliated against her for raising complaints about that harassment by launching a smear campaign to tarnish her reputation….

Lively then sued over that alleged behavior, and the Wayfarer Parties “counter-sued, asserting claims, including defamation, against Lively and others for making statements that the Wayfarer Parties” engaged in or tolerated “sexually inappropriate conduct” or retaliation. The Court rejected that counterclaim, on the grounds that

1. “the fair report privilege … precluded the Wayfarer Parties from bringing a defamation claim against Lively for providing a copy of her CRD complaint to the New York Times,”
2. “the Wayfarer Parties had insufficiently alleged that text messages Lively may have provided to the Times were defamatory,” and that
3. they hadn’t adequately alleged “that Lively was responsible for any statements made by her husband Ryan Reynolds” “or publicist Leslie Sloane.”

In May, the parties settled all their claims, but expressly left open whether Lively can recover attorney fees and damages under Cal. Civil Code § 47.1. (They also waived their right to appeal from any such determination.)

Section 47.1 … [seeks] to shield “survivors of sexual assault, harassment, and discrimination from defamation lawsuits”—and, in particular, the burdensome and invasive discovery process those lawsuits often entail—”by clarifying that claims made in good faith are a form of protected speech.” [It also seeks] to compensate survivors for successfully defending themselves against meritless and retaliatory defamation suits by permitting them to recover attorneys’ fees and damages incurred as a result of the suits.

To accomplish these goals, the law establishes that “[a] communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination is privileged under Section 47.” (Section 47 provides for a number of other defamation privileges, including the fair report privilege.)

Section 47.1 provides that prevailing defendants in such defamation cases (and recall that Lively was in effect a defendant as to the counterclaims) are entitled to reasonable attorney’s fees as well as treble and punitive damages.

The court held that, given Lively’s choosing to bring the motion under Federal Rule of Civil Procedure 54(d), the “treble and punitive damages” aspect of § 47.1 is unavailable in this case:

Rule 54(d) is titled “Costs; Attorney’s Fees,” and it discusses certain procedures for the award of those two categories of expenses. It does not mention “damages”—compensatory, treble, punitive, or otherwise….

That treble and punitive damages cannot be sought through the procedural vehicle of a Rule 54(d) motion finds further support from a reading of the Federal Rules of Civil Procedure “as a whole.” The Federal Rules of Civil Procedure establish that “[t]here is one form of action—the civil action.” … “A civil action is commenced by filing a complaint with the court.” That formal filing “trigger[s] the full array of legal, procedural, and evidentiary rules governing the process by which a court adjudicates the merits of a dispute.”…

By seeking damages through Rule 54(d), Lively circumvents this web of procedures and processes designed for the orderly, just, and fair determination of civil claims in federal court. In essence, she seeks to pursue a kind of malicious prosecution or abuse of process claim … and to hold the Wayfarer Parties liable not only for actual damages, but to triple those damages and to impose additional punitive damages, all without the benefit of formal pleading, discovery, and dispositive motion practice in line with Rules 12(b) and 56.

Also lurking in the background is a potential conflict with the Seventh Amendment, which guarantees in federal court the right to a jury trial “in Suits at common law.” To the extent a claim for damages under Section 47.1 resembles a kind of abuse of process or malicious prosecution claim, courts have held that “[a]n action for malicious prosecution falls well within the recognized forms of action at common law” for Seventh Amendment purposes….

It is understandable that Lively might attempt to shoehorn her damages claim into a Rule 54(d) motion. Litigation is costly, time consuming, and risky, and to the extent Section 47.1 is intended to remedy harms to defamation defendants as quickly, efficiently, and easily as possible, Rule 54(d)’s procedures—which permit fee liability and award determinations based upon mere motion and evidentiary hearing, present an alluring alternative to the normal arc of litigation. But those benefits cannot come at the expense of the rights of the defamation plaintiff….

But the court held Lively “is entitled to attorneys’ fees and costs.” It explained why that’s consistent with federal procedures and with § 47.1, and also adds this about Wayfarer’s First Amendment defense:

The First Amendment protects the rights of citizens to petition the Government for a redress of grievances. This includes petitioning courts for redress. The Noerr-Pennington doctrine stems from this principle. It stands for the proposition that “efforts to influence governmental action through litigation, lobbying, and the like” are “immunized from antitrust liability,” “provided the activities are more than a mere ‘sham.'” Courts have held that the doctrine is “relevant outside the context of antitrust actions.” …

[But] “fee shifting is not civil liability within the meaning of the Noerr-Pennington doctrine.” “[B]eing charged with the costs of a suit is not the same thing as being civilly liable for having filed the suit.” “Fee shifting simply requires the party that creates the costs to bear them.” At least with respect to fees, then, the Court finds the Wayfarer Parties’ First Amendment concerns unfounded.

And the court had this to say on the merits of the § 47.1 claim:

[A] defamation defendant is entitled to recover fees and damages under Section 47.1 where: (1) they prevail in the action; (2) the communications at issue in the action conveyed factual information related to an incident of sexual assault, harassment, or discrimination that the individual personally experienced, including workplace harassment under FEHA; (3) the communications were made without malice; and (4) there is or was a reasonable basis to file a complaint regarding the assault, harassment, or discrimination….

[Section 47.1(c) requires that defendants] show that the information contained within the allegedly defamatory statement be the kind for which it would be reasonable to file a complaint. Put differently, Section 47.1(c) serves a gatekeeping function, ensuring that defendants do not unreasonably attempt to stretch the substance of the contested statements to fall within the purview of the statute.

It would be unreasonable, for example, to file a complaint of sexual harassment based on a single instance of vulgar language in the context of a comedy writer’s room for an adult show with adult themes. Cf. Lyle v. Warner Bros. Television Prods. (Cal. 2006). A defamation defendant’s statements about that experience therefore likely would not benefit from the Section 47.1 privilege. It would also be unreasonable to characterize a supervisor’s comments about “bringing his ‘guys’ into the company” and his rejection of a single travel and expensive reimbursement request as “conduct based on sex or of a sexual nature.” See Haberman v. Cengage Learning, Inc. (Cal. Ct. App. 2009). A defamation defendant’s attempts to invoke Section 47.1 in that circumstance also likely would be rejected.

The Court need not explore the boundaries of the privilege and all the circumstances in which it might not apply, as it is clear here that the allegations contained with Lively’s statements are the kinds for which it would be reasonable to file a complaint. To reiterate, the Wayfarer Parties do not dispute that the statements at issue are ones regarding sexual harassment or discrimination. Of course, they do so indirectly insofar as they dispute the truth of Lively’s allegations. But they do not contest the categorical subject-matter match between the substance of her statements and Section 47.1….

The burden accordingly shifts to Wayfarer Parties to demonstrate that the statements were made with malice. {“The malice necessary to defeat a qualified privilege is ‘actual malice[,]’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.”} … And the Wayfarer Parties have provided little evidence in connection with the motion, and none establishing that Lively acted with malice….

The only evidence that the Wayfarer Parties have submitted in connection with the Section 47.1 motion which might arguably bear on Lively’s malice comes from [Danny] Greenberg’s deposition, in which he was questioned about a single message he sent in which he used the word “extortion” to “referenc[e] just cumulative behavior that both the studio and Wayfarer and Justin was having to manage.” This evidence falls far short of satisfying the Wayfarer Parties’ burden.

The testimony excerpts make only vague reference to “behavior” issues without specifying what exactly those issues were or the background surrounding them. There is no indication that Greenberg—who was Baldoni’s talent agent at the time and who was proposing language for Baldoni to use in a letter to Sony Pictures Entertainment—was referring to Lively’s complaints of sexual harassment, as opposed to something else. Indeed, the Wayfarer Parties’ own briefing asserts that these comments were made in connection with Lively’s “threats that she would not return to the set unless she was given control over the script and editing”—not that they were made in connection with false and malicious complaints of sexual harassment. Greenberg further added at his deposition that he did not “remember [his] state of mind when [he] wrote” the comment.

Without more, the Wayfarer Parties cannot carry their burden of defeating the Section 47.1 privilege. Lively is entitled to fees and costs.

The amount of fees will be determined later.

The post Blake Lively Entitled to Attorney Fees (But Not Punitive Damages) in Justin Baldoni et al.'s Libel Lawsuit Against Her appeared first on Reason.com.

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It’s strange behavior to throw a party and turn away guests at the door. The joint bid by the United States, Canada, and Mexico to host the FIFA World Cup—backed by President Donald Trump during his first term—had bragged about the ease of travel, calling North America “one of the top destinations in the world for international visitors.”

But now that the soccer tournament is underway across North American cities, fans from the 48 participating countries have found themselves hassled or barred from coming by strict U.S. border policies. Even some of the participants themselves had trouble getting in.

U.S. Customs and Border Protection interrogated Iraqi soccer star Aymen Hussein for seven hours on his arrival at the airport in Chicago before letting him in. His official photographer wasn’t allowed in with him. “Why is America hosting the World Cup if it is so hostile to foreign nationals?” Hussein said, according to Al Jazeera.

Swiss player Breel Embolo had his U.S. travel clearance granted, yanked when the U.S. government discovered he had been fined over a 2018 bar fight, and then granted again at the last minute. 

Hussein and Embolo were luckier than Somali referee Omar Artan, who was turned away in Miami after 11 hours of interrogation. Andrew Giuliani, the executive director of the White House Task Force on the World Cup, said border officers found some “derog” (derogatory information) on Artan and refused to explain further.

So it went for other invited guests. In addition to selling tickets on the open market, FIFA allocates each national team 8 percent of their games’ tickets to distribute to invited fans. And for the first time ever, Senegal was unable to bring an official fan delegation to the World Cup due to the U.S. immigration restrictions. The Ivory Coast also had to cancel its fan delegation.

“The supporters have cancelled the trip because the U.S. government does not want to see supporters from certain countries, including Ivory Coast, on its soil. The United States has been clear with us, saying they do not want to see our supporters,” Julien Kouadio Adonis, president of the Ivorian national fan committee, told Agence France-Presse.

Senegal and the Ivory Coast are on the Trump administration’s travel ban list. So are Haiti and Iran, two other countries playing in the World Cup. But the trouble was not restricted to officially banned countries. When 150 Ghanaian fans applied to travel as a group, only three received visas. Abu Kass, the head of the Jordanian fans’ association, told the BBC that only one Jordanian fan received a visa. He himself was rejected.

For the first time in World Cup history, the host country is also at war with one of the participating countries. The Iranian team, which has its training camp in Mexico, is scheduled to play its first matches in Los Angeles and Seattle. The U.S. Embassy in Turkey waited until less than a week before the World Cup to issue the players’ visas, and denied visas to more than a dozen team staff. Iran also had its fan ticket allocation yanked at the last minute.

“Sports transcends borders, and we look forward to welcoming competitors and fans from around the world,” Ambassador Tom Barrack, the U.S. envoy to Turkey and Syria, said in a statement about the Iranian team.

Unlike the U.S. government, the American people seem to be getting along well with our foreign guests. When the Algerian national team set up their training camp in the small college town of Lawrence, Kansas, locals turned out to welcome their guests. The University of Kansas band learned the Algerian anthem and a local banjo player went viral for his rendition of an Algerian folk song. Algerian stars played soccer with American little leaguers and basketball with the Kansas Jayhawks.

“I want to say thank you to Algeria for choosing our hometown of Lawrence, Kansas to come here. So welcome to the United States, and welcome to Kansas,” a local man told Algerian television. “We don’t know too much, but we want to welcome you here.”

The post 'Why Is America Hosting the World Cup If It Is So Hostile?': Trump's Border Crackdown Spoils Soccer Tournament appeared first on Reason.com.

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From today’s decision by Judge Steven McAuliffe (D.N.H.) in Doe v. Trustees of Dartmouth College (for an earlier similar decision related to Doe’s lawsuit against Penn, see here):

“Litigation by pseudonym should occur only in exceptional cases.” Indeed, a “strong presumption” exists against proceeding by pseudonym, which “dims the public’s perception of the matter and frustrates its oversight of judicial performance.” That presumption, however, is rebuttable….

Doe alleges that he was denied admission to Dartmouth’s business school because of his “non-Jewish White ethnic heritage.” He says that despite his “outstanding qualifications,” his application was rejected. He further asserts that Dartmouth excludes nearly all “non-Jewish Whites” from admission, unless the applicant is female, “queer” or a “veteran[] of the U.S. armed forces,” because those applicants “pose no threat to the Jewish Supremacists.” According to Doe, Dartmouth’s admissions decisions are part of a greater plan “drafted by the Jewish Supremacists with the express goal of exterminating non-Jewish Whites.”

Doe claims that he will be subject to a “significant risk of professional retaliation and social stigma within his academic and professional community, causing irreparable harm to his career and personal well-being” should his identity be publicly disclosed (presumably due to his application’s rejection, but perhaps due to his litigation theories). He goes on to argue that “[p]ublic identification in a high-profile discrimination suit against a major institution like [Dartmouth] carries a significant risk of ‘blacklisting’ from potential future employers and professional collaborators.”

And, because his complaint alleges that defendant’s admission practices “unfairly favor Jews,” Doe argues that, if his identity is disclosed, he could be subjected to financial harm such as “debanking,” physical harm, or murder by Mossad agents. {Doe alleges President John F. Kennedy was murdered by Israeli intelligence agents in an effort to thwart Kennedy’s attempts to obstruct Israeli military efforts.} That is because, he says, “Jews commonly harm or murder their opposers and the families of the opposers.” Finally, he argues that anonymity is warranted because his case relies on his academic records, which are confidential and protected under federal law….

To warrant anonymity here, Doe must establish that he “reasonably fears that coming out of the shadows will cause him unusually severe harm (either physical or psychological).” Doe alleges only that disclosure of his identity will result in injury to his reputation, employment prospects, and financial status. Courts have regularly held, however, that “[o]rdinary reputational injury, embarrassment, or economic loss do not meet that standard.”

Doe does assert that his physical safety will be threatened if he is not allowed to proceed pseudonymously because “Jews commonly harm or murder their opposers.” But, those allegations, unsupported by any particularized evidentiary showing, are, to put it charitably, not credible. That is, Doe fails to plausibly allege with any degree of specificity a legitimate threat to his physical safety. And, finally, … plaintiff’s concerns regarding the confidentiality of his academic record can be easily addressed using tools “such as redacting or sealing documents to manage privacy concerns that arise during the litigation.” … “FERPA permits limited disclosures in litigation and does not by itself mandate anonymity for a plaintiff who has chosen to bring a public lawsuit.” …

I expect Doe will be appealing (as well as continuing to be unappealing), since he is now appealing the no-pseudonymity decision in the Penn case.

The post Our Friend with the "Attractive, Busty Jewess" Problem Denied Pseudonymity Again, in Case Against Dartmouth appeared first on Reason.com.

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