11/22/1963: President Lyndon B. Johnson takes the oath of office. He would appoint two Justices to the Supreme Court: Abe Fortas and Thurgood Marshall. President Johnson appointed Justices Fortas and Marshall The post Today in Supreme Court History: November 22, 1963 appeared first on Reason.com.

What’s on your mind?

What’s on your mind?

What’s on your mind?

Improper analogue to support ban on arms on private property open to the public.

A recent 11th Circuit decision rightly ruled that mandatory Covid beach closures violated the Takings Clause. But the court overlooked the key issue of how to assess the "police power" exception to Takings Clause liability.

Lobstermen surveillance, semiquincentennial squabbling, and socking it to the Scotch Tape People.

  The case is Roe v. Smith, just decided today by the Second District; it's only the third binding California precedent, as I see it, expressly dealing with pseudonymity (the others are DFEH v. Superior Court, from the Sixth District in 2022, and the considerably less detailed Santa Ana Police Officers Ass'n v. City of Santa Ana, from the Fourth District this Spring). For more on the facts and the substantive analysis in the case, see this post, but here are some holdings that might be especially important for California lawyers litigating about pseudonymity: * The court broadly reaffirmed the strong pseudonymity-skeptical language in DFEH, including that "Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" And this happens in a case where the bottom-line result is indeed against pseudonymity (unlike in DFEH itself). "[T]he use of pseudonyms, absent a specific statutory authorization, should be a limited and rare exception to the general rule of public access to courts." * The court made clear that pre-DFEH cases that just allowed pseudonymity without discussion aren't authority in favor of pseudonymity: "While plaintiffs correctly point out that parties have proceeded pseudonymously in many California cases, few appellate cases have addressed the issue. '[C]ases are not authority for issues not raised or decided.'" * The court also concluded that Title IX precedents allowing pseudonymity are generally not relevant outside that area. "[T]his is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context." * On the other hand, the court held that other federal cases that did expressly consider pseudonymity are important precedents. "[I]n evaluating whether a party has adequately shown an overriding interest that overcomes the right of public access guaranteed by the First Amendment, courts may consider both state and federal authorities, depending on the facts presented…. [T]hough not binding, the opinions of lower federal courts on federal issues are persuasive and entitled to great weight …." "In performing the analysis under California Rules of Court, rule 2.550(d), courts may rely upon factors set forth in relevant federal cases for their persuasive value." * The court concluded that pseudonymity is generally unavailable to defamation plaintiffs. "While defamation plaintiffs are not categorically foreclosed from proceeding pseudonymously, they are generally ill suited to do so; courts should require a robust evidentiary showing in such a case." * And the court concluded that fear of professional, economic, or reputational harm generally doesn't suffice to justify pseudonymity. "To the extent the trial court concluded that a reasonable fear of one's employer learning about allegations of a private nature overcame the public's right of access, we disagree." "The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however …." * The court concluded that the "injury litigated against would be incurred as a result of the disclosure of the party's identity" rationale applies only to cases "seeking to enjoin a disclosure of private facts" and not when "plaintiffs are suing for damages based on comments which have already been made." * The court made clear that "Before allowing a party to litigate under a pseudonym, the trial court must expressly find facts establishing an overriding interest that overcomes the right of public access to court records, and find a substantial probability that interest will be prejudiced if a pseudonym is not used," and must find that "use of the pseudonym is narrowly tailored to serve the overriding interest, and there is no less restrictive means of achieving the overriding interest." "In most cases, a party seeking to proceed pseudonymously should provide evidence supporting his or her motion to allow the trial court to make '[e]xpress factual findings' on the matter." * The court held that "to enable the court to conduct a recusal check, the party seeking to use a pseudonym should provide the parties' real names under seal." * The court held that decisions allowing pseudonymity are immediately appealable under the collateral order doctrine (by analogy to the sealing cases). "Orders concerning the sealing of documents are appealable as collateral orders…. While there is no specific case applying this rule in the context of an order allowing a party to proceed under a pseudonym, we conclude the reasoning is the same." * The court reaffirmed that questions of pure application of law (as opposed to findings of historical fact) in a decision to grant pseudonymity are reviewed independently, and not for abuse of discretion. "Our record contains no declarations or other evidence from which the trial court could engage in factfinding. Instead, this appeal concerns a pure application of law, and constitutional law at that. We exercise independent review." Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition, which appealed the decision granting pseudonymity. The post Takeaways for California Lawyers from the Second District's New Pseudonymity Case appeared first on Reason.com.

From today's opinion in Roe v. Smith, decided by Justice Anne Richardson, joined by Justices Elwood Lui and Victoria Chavez: In 2022, plaintiffs [Jane Roe and John Doe] and [defendant] Jenna [Smith] were all students at the same high school in Los Angeles County…. At the time, plaintiffs were in a dating relationship, which continued at least through the date of the complaint…. In March 2023, Jenna began telling other students at the high school that John had sexually assaulted her and Jane. In April 2023, [defendant] Mother [Smith] told parents of other members of the club that John had sexually harassed Jenna…. The school launched an investigation, with which John voluntarily cooperated. While the investigation was ongoing, Jenna continued to tell other students John had engaged in sexual misconduct towards her and Jane. The "school rumor mill [ran] wild" with this information and plaintiffs received "dozens" of harassing and violent comments on their social media accounts. Plaintiffs allege Jenna was behind these comments…. The school's investigation into Jenna's complaint finally concluded in August 2023, finding John was "not responsible for any of the claims [Jenna] launched against him." Plaintiffs sued for defamation and related torts, and "sought damages in excess of $5 million" and "an injunction ordering defendants to remove all defamatory posts from social media and to issue apologies to plaintiffs, and prohibiting defendants from publishing any future statements about plaintiffs whether written or verbal." The court reversed the trial court's decision allowing pseudonymity to the Does (no-one objected to the pseudonymity of the Smiths): The right of public access to court proceedings is implicated when a party is allowed to proceed anonymously.,,, "Public access to court proceedings is essential to a functioning democracy." "[T]he public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases," not merely those in which the public is a party, or which generate public concern. Public access to courtrooms in civil matters serves to: "(i) demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings; (ii) provide a means by which citizens scrutinize and check the use and possible abuse of judicial power; and (iii) enhance the truthfinding function of the proceeding." "If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals." "[W]hen individuals employ the public powers of state courts to accomplish private ends, … they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed [therein] will be open to public inspection." … "[A] trial court is a public governmental institution. Litigants can certainly anticipate, upon submitting their disputes for resolution in a public court … that the proceedings in their case will be adjudicated in public." … "[T]he right to access court proceedings necessarily includes the right to know the identity of the parties." … In Department of Fair Employment & Housing v. Superior Court (Cal. App. 2022), the court recognized the constitutional issues noted above and held that, before authorizing a civil litigant to use a pseudonym, the trial court must apply the "overriding interest test" outlined in NBC Subsidiary and California Rules of Court, rule 2.550(d)…. The court further held that "[i]n deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" … We agree with the Department of Fair Employment & Housing court that trial courts faced with a motion to proceed pseudonymously should apply the "overriding interest test" outlined [as to the sealing of court records] in NBC Subsidiary v. Superior Court (Cal. 1999) and California Rules of Court, rule 2.550(d)…. Courts in California have recognized at least two interests relevant here as potentially sufficient to allow for redaction of names. These are: first, maintaining privacy of highly sensitive and potentially embarrassing personal information [such as] … records revealing gender identity change … [and] medical and psychological records … and second, protecting against the risk of retaliatory harm…. A recurring theme in the caselaw is that a party's possible personal embarrassment, standing alone, does not justify concealing their identity from the public…. "An unsupported claim of reputational harm falls short of a compelling interest sufficient to overcome the strong First Amendment presumptive right of public access." … We agree the allegations in the complaint pertain to highly sensitive and private matters: specifically, John's allegations he was wrongly accused of sexual misconduct while in high school; and Jane's allegations she was wrongly identified as a nonconsensual partner of John's during that time. Allegations concerning sexual conduct do fall into the category of highly sensitive and private matters, the more so because the parties were minors at the time. But that is merely the first step in the overriding interest test. Next, the court must find that the interest of privacy in highly personal and sensitive matters overcomes the public's right of access. We conclude there is insufficient evidence to support the trial court's conclusion that it did. We take plaintiffs' contentions to the contrary one at a time. First, there was no evidence of serious mental or physical harm that would occur to plaintiffs should their identity be revealed. To the extent the trial court concluded that a reasonable fear of one's employer learning about allegations of a private nature overcame the public's right of access, we disagree. To state the obvious, the fear that a future employer might learn about the lawsuit through an Internet search is not the equivalent of a fear of violence to one's family members, deportation and arrest, violence, harassment and discrimination against transgender people, or violence against a witness in a murder case. Rather, the fear argued here is precisely the kind of reputational harm cases have routinely held is insufficient to allow a party to proceed anonymously…. "The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however …." … [F]ear of harm to one's reputation applies to a great number of cases, including virtually any defamation case. By definition, a claim for defamation involves an allegedly harmful falsehood that has been published to third parties. This justification, when (as here) unsupported by more than arguments based on unproven allegations, would swallow the rule and cannot be squared with the judicial refrain that proceeding under a pseudonym should only be allowed in the "rare" case. Second, plaintiffs here were not minors at the time they filed this lawsuit. While they were minors for a portion of the underlying events, they are not anymore…. Third, the trial court's conclusion that knowledge of the events was "confined to a relatively small number of people" is unsupported by the record. [Details omitted. -EV] … Even if the trial court had taken such evidence, this factor is at best neutral…. [P]arties generally lose their reasonable expectations of privacy when they file a civil lawsuit…. Fourth, this is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context. Fifth, there is no basis to proceed anonymously because the injury litigated against would be incurred as a result of the disclosure of the party's identity. The cases that have recognized such an interest are cases seeking to enjoin a disclosure of private facts. Here, by contrast, the plaintiffs are suing for damages based on comments which have already been made. To hold otherwise would effectively permit all defamation plaintiffs to proceed by way of pseudonym. Sixth, that defendants already know plaintiffs' identities is, at best, neutral in this case …. Seventh, we reject plaintiffs' argument that requiring them to use their real names would discourage "similarly situated" litigants from bringing defamation cases…. To accept such a rationale here would equip all defamation plaintiffs with the same argument. To the contrary, courts have expressed a reluctance to allow defamation plaintiffs the option to remain anonymous until they know the outcome of their case…. [P]laintiffs claim to have sued to "disassociate their names" from damaging and untrue allegations. Yet they argue if their true identities became known, any ultimate success in the matter would be negated by disclosure of their names. As other courts have noted, this rationale does not make sense in the context of a plaintiff who has filed a defamation claim. (See Doe v. Doe (4th Cir. 2023) ["we fail to see how [the plaintiff] can clear his name through this lawsuit without identifying himself"].) … The trial court concluded that since the public interest in the identity of the parties is "likely nominal at best," the public interest was overridden by plaintiffs' privacy interests…. [But th]e public has a fundamental interest in knowing the identities of parties to litigation in public fora. Such information is essential to monitoring public proceedings for a host of evils, including corruption, incompetence, inefficiency, prejudice, and favoritism…. "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." … The trial court understandably credited the privacy concerns of plaintiffs, particularly given they were agreeable to having defendants' names kept out of the pleadings as well. But there is a third stakeholder whenever a party seeks to close any portion of a court record, whether or not represented by a group like the [First Amendment Coalition, which brought the appeal]: the public. Just as a court cannot seal documents solely because both parties agree, a court must be vigilant to protect the public's right of access even when the parties themselves agree to proceed pseudonymously. Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition. Thanks to then-Stanford-law-students Benjamin Diamond Wofford, Olivia Morello, and Samuel Himmelfarb, who worked on earlier phases of the case. The post California Appellate Court Generally Rejects Pseudonymity for Defamation Plaintiffs (Including in #TheyLied Sexual Assault Allegation Cases) appeared first on Reason.com.

[Note: I'm working on a book chapter with a similar theme, here is an attempt to distill it into blog post-size.] As South Africa hosts its first ever G20 Summit, its continued pursuit of Israel under the false guise of genocide is resulting in growing diplomatic pushback. The United States and Argentina have announced they will not be attending, yet Pretoria continues to weaponize the very term "genocide" to suit its political objectives.   South Africa's pursuit of phony genocide charges forms part of a broader campaign aimed at delegitimizing and constraining Israel as it fights a multi-front war against actors openly committed to its destruction. Some are motivated by hostility to Israel, but others see an opportunity: by capitalizing on intense antagonism toward Israel within academic and NGO circles, they can advance a long-standing project of sharply restricting democracies' ability to fight non-state actors, and particularly terrorist organizations and militias. Israel thus becomes the canary in the coal mine for efforts to effectively outlaw military operations against terrorist groups embedded among civilians. At the heart of these efforts is a misuse of international humanitarian law, a body of rules created not to restrain whichever side one dislikes, but to impose neutral, equal obligations on all parties to a conflict. IHL was never intended as a political weapon or a pacifistic tool, but as a universal framework meant to protect civilians while recognizing the realities of warfare. This neutrality is its core strength: once the framework is selectively wielded against only one side, incentives for compliance collapse. The 1948 Genocide Convention sought to establish clear, objective standards for the crime of genocide—above all the requirement of a specific intent to destroy a protected group. Standards like this were crafted to prevent future atrocities like the Holocaust, not to be repurposed for partisan advocacy, whether rooted in intense anti-Zionism or in a strong presumption against the use of military force by Western democracies. The current effort to redefine these standards is nowhere more visible than in South Africa's case against Israel at the International Court of Justice. The legal theory advanced by South Africa and its supporters drains the term "genocide" of its established meaning, creating dangerous precedents for future conflicts. The Convention requires evidence of special intent — demonstrated through direct proof, or, absent that, inference only when such intent is the only reasonable conclusion. But Israel's decidedly non-genocidal stated goals in the war – to release the hostages and destroy Hamas – are supported by its conduct throughout the war.  Israel's actions, including its acceptance of ceasefire terms, its prior openness to negotiated political arrangements, and its extensive facilitation of humanitarian access to Gaza all support this goal and contradict the notion of genocidal intent. No State that facilitates vital humanitarian corridors and extensive aid entry (to date well over two million tons) or engages in sustained efforts to limit civilian harm could be, as the only reasonable conclusion, pursuing the physical destruction of a population. One element of the Convention that South Africa emphasizes is the alleged deliberate infliction of conditions calculated to destroy the Palestinian population. The humanitarian situation in Gaza is unquestionably tragic—but Hamas, not Israel, bears primary responsibility.  And crucially, contrary to certain claims, international law does not oblige a State to provide goods it knows will be seized by enemy fighters, so long as good-faith efforts are taken to ensure civilians can receive help through alternative channels that actually reach them.  Nevertheless, Israel continued to enable massive flows of aid into Gaza throughout the conflict, even as Hamas repeatedly looted, diverted, or resold that aid, including stealing from UN warehouses. By mid-2025, UN data showed tens of thousands of tons of humanitarian assistance had been intercepted by Hamas. Israel's persistence in facilitating aid despite this pattern of theft and operational risk is fundamentally inconsistent with any claim of genocidal intent and goes well beyond what IHL requires of a state fighting an adversary embedded among civilians. Israel's conduct—warning civilians before military action, adjusting operations to minimize harm, and confronting an enemy that intentionally situates military assets under civilian sites such as hospitals and schools—reflects an approach to urban warfare that many militaries struggle even to approximate.  Its civilian-casualty rate remains among the lowest of any comparable conflict, an especially notable fact given the extreme density of the environment and the absence of any fully safe haven outside the conflict zone. While casualty numbers alone cannot determine legality, sustained efforts to reduce civilian harm cut directly against the charge that Israel seeks the group's destruction. The attempt to stretch the definition of genocide to encompass any high-intensity urban warfare causing civilian suffering would not protect civilians. Instead, it would hand terrorist groups a blueprint: embed deeper within civilian populations, ensure any military response causes significant civilian casualties, and weaponize legal institutions to delegitimize self-defense.  These efforts to rewrite international law to suit a political campaign against Israel would, if allowed, weaken the Genocide Convention itself. A diluted genocide standard does not protect vulnerable groups; it renders the Convention less able to confront real genocidal campaigns when they arise.  The Convention must be preserved as a principled, objective standard—not reshaped on the fly to serve particular political objectives. The post Attempts to Redefine Genocide are Undermining the Concept appeared first on Reason.com.

From a decision earlier this month in Byrd v. Middletown Bd. of Ed., by Connecticut trial court Judge Sheila Ozalis; Byrd was a teacher who "was teaching a lesson on 'recognizing racial epithets' as a part of the Cultural Diversity Curriculum at Beman Middle School": The plaintiff alleges that from 1997–2021, she taught eighth grade students about the District's Cultural Diversity Curriculum, along with other units in the eighth grade Health Curriculum, including internet safety, self-esteem, romantic relationships, drug education, and career education. The plaintiff alleges that Equity Training in recent years for the teachers included the idea that teachers should be challenging students about uncomfortable topics because if people stay in their comfort zone, there is no new growth. The plaintiff alleges that while employed by the Middletown School District for over twenty years, she presented the same Cultural Diversity Curriculum at Beman Middle School to eighth graders without complaint. She also alleges that this curriculum has been used by the District for nearly ten years, was posted on its website, approved by the Defendant, and was reviewed by the District in the summer of 2021 without any changes made.  As a part of the Cultural Diversity Curriculum, the Plaintiff spoke to students about the diversity within their own community. "Lesson #3" of the published and approved curriculum describes the concept of the lesson as "recognizing racial epithets" and notes the discussion of racial epithets as part of the lesson plan. The plaintiff alleges that during this lesson, she would introduce vocabulary and examples of attitudes towards distinct groups, including language demonstrating stereotypical thinking and hostility to a specific group or prejudices about particular groups and their alleged predilections and behaviors. She alleges that her open discussion of racial and ethnic stereotypes and slurs had been an established part of the posted Cultural Diversity Curriculum for over ten years and that it was the Plaintiff's practice to verbalize and specifically name the racial slurs that would be discussed during the lesson and ask her students if they had heard that specific slur before. The plaintiff alleges that she would discuss each word's meaning and history and ask students why racial slurs were used to put people down and why people enjoy making jokes about and ridiculing minority groups. The Plaintiff would focus on the group targeted by the words and how the words hurt members of that group to assist in helping students make better decisions in life, including in their use of language, by providing a better understanding of the words, their origins, and society's pernicious use of them. The Plaintiff also alleges that she sought to make the students better citizens in a multicultural world. Some of this language could be offensive and difficult for students to discuss. The Plaintiff alleges that she would tell students that they could use her "emergency pass" if they wished to leave a lesson because of any upset regarding the words to be discussed. If the student wanted to, they could even bring a friend with them when they took the emergency pass. The Plaintiff would then follow up with that student during or at the end of class to see if further resources were needed. The plaintiff alleges that nevertheless, this frank discussion about the realities of prejudice and the language utilized by some members of society at large was meant to assist students in recognizing and grappling with the prejudiced language and hostility that they will confront in life, and to make students more conscious of the prejudice and learned behavior existing in their own environments. On October 29, 2021, the Plaintiff presented the "recognizing racial epithets" lesson to her third class of the day—the first two having occurred without incident—and began her discussion of racial slurs as usual by expressly saying the slurs aloud. The plaintiff alleges that one of the words she identified was "nigger," which she described as one of the most derogatory and offensive slurs that was historically used to depict African Americans as ignorant and uneducated. She alleges that on this day with this particular group, some students objected and said she should not be saying such language aloud, turned around in their chairs out of discomfort, and even videotaped the class discussion….. Plaintiff alleges she was threatened with firing, and accepted a demotion to avoid being fired. She sued, claiming this violated the Connecticut Constitution's free speech clause, which has been interpreted as more protective than the First Amendment as to employees' speech that's part of their jobs (for a case finding no protection under the First Amendment in a similar factual situation involving K-12 teaching, see Brown v. Chicago Bd. of Educ. (7th Cir. 2016)): Departing from the limitations imposed by Garcetti v. Ceballos (2006), in Trusz v. UBS Realty Investors, LLC, our Supreme Court held that employees speaking pursuant to official duties have free speech rights. This decision relies heavily on the express language of the Connecticut Constitution. Article first, § 4, of the Connecticut Constitution which provides that "[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty." "By contrast, the first amendment does not include language protecting free speech on all subjects." …. To narrow the scope of protected employee speech, the Trusz Court adopted a modified Pickering/Connick balancing test such that "only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor when an employee is speaking pursuant to official job duties. Nonetheless, "speech pursuant to an employee's official duties regarding, for example, a mere policy disagreement with the employer would not be protected, even if it pertained to a matter of public concern and had little effect on a legitimate employer interest." "The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education (1968). Thus, "[i]t is only when the employee's speech is on a matter of public concern and implicates an employer's official dishonesty … other serious wrongdoing, or threats to health and safety … that the speech trumps the employer's right to control its own employees and policies." The first step in evaluating employee speech is to determine whether the employee is speaking on a matter of public concern. Connick v. Myers (1983). "An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political, social, or other concern to the community …." … The Appellate Court has held that racial discrimination against a fellow employee is a matter of public concern…. The inflammatory nature of racial slurs has long been recognized. In evaluating a hostile work environment claim based on sex, the Supreme Court explained the "pervasiveness" requirement by analogizing to racial animus and noted that "[t]here must be more than a few isolated incidents of racial enmity …. Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs …." Nowhere have our courts made a stronger rebuke of racial slurs than in State v. Liebenguth (2020). The Supreme Court in that case contextualized fighting words cases by noting at the outset that "there are no per se fighting words …. Consequently, whether words are fighting words necessarily will depend on the particular circumstances of their utterance." The Liebenguth Court recounted that "[w]ith respect to the language at issue in the present case, the defendant, who is white, uttered the words fucking niggers to [parking enforcement officer] McCargo, an African-American person, thereby asserting his own perceived racial dominance and superiority over McCargo with the obvious intent of denigrating and stigmatizing him. When used in that way, [i]t is beyond question that the use of the word nigger is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination." The Supreme Court spoke with disapprobation on the use of the word "nigger" and stated that "[n]ot only is the word 'nigger' undoubtedly the most hateful and inflammatory racial slur in the contemporary American lexicon … but it is probably the single most offensive word in the English language." Ultimately, the Supreme Court held that the defendant's use of the word "nigger" in combination with his conduct and other derogatory language was likely to provoke a violent reaction and, therefore, his speech was unprotected fighting words. Thus, when the word "nigger" is used in certain contexts, it can be a threat to safety. The federal government has also recognized the threat of racism. In 2021, CDC Director Rochelle P. Walensky, a physician and scientist, made a media statement and "declared racism a serious public health threat." … Words evoke racism not because of the letters on the page or their phonetics, but because of the manner in which they are used. Indeed, when divorced from their context, words can be devoid of meaning and lack clarity. Our Supreme Court recognized that context matters in stating that "there are no per se fighting words because words that are likely to provoke an immediate, violent response when uttered under one set of circumstances may not be likely to trigger such a response when spoken in the context of a different factual scenario." Like our Supreme Court, the Garcetti Court also left open the potential for broader speech protection in certain scenarios when it noted that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence." In fact, some courts have held that the utterance of the word "nigger" in the university setting for instructional purposes is protected. See Hardy v. Jefferson Community College (6th Cir. 2001) (where an adjunct instructor's use of the word "nigger" in a lecture on language and social constructivism was protected); Sullivan v. Ohio State University (S.D. Ohio 2025) (professor's use of the word "nigger" in his "Crucial Conversations" course to teach students how to engage productively in racially charged conversations was a matter of public concern). And the court concluded that plaintiff's claim could therefore go on: Plaintiff alleges that she did not direct racial slurs at her students in a derogatory manner, but rather she was saying them aloud to instruct students on how to avoid a potential threat created by using those words in public. During a Health class in the 2021–22 school year, taking place amid the backdrop of the Liebenguth decision and the CDC declaration, the Plaintiff alleges that she was acting within the scope of her employment and pursuant to the Defendant's approval when she taught her students a valuable lesson on a matter of public concern: the presence of racism and racially charged language in society today. Thus, the Plaintiff's speech touched upon a threat to health and safety. Although traditionally a board of education's discretion over the curriculum has trumped the speech rights of public school teachers in primary and secondary education, here, the Plaintiff alleges that she was teaching the Cultural Diversity Curriculum in the manner prescribed by the Defendant. There can be no "mere policy disagreement" when the Defendant itself has adopted the curriculum for the past ten years, including the lesson on "recognizing racial epithets." Like she had in years past, the Plaintiff alleges she simply taught her students to recognize racial epithets and prepared them to confront such words outside the classroom in their communities. She also alleges that by the end of the day, she was placed on administrative leave and threatened with termination. As a result, the Plaintiff has adequately alleged that she was threatened with discharge on account of her constitutionally protected speech …. This isn't part of the legal test, but the court's analysis here tracks the Connecticut Supreme Court's approach in Liebenguth: That court concluded that defendant could be prosecuted on a "fighting words" theory for using the word "nigger" as an epithet, but the court itself quoted the word over 50 times in discussing the subject, and the word was also quoted 6 times in oral argument. Lewis Chimes represents plaintiff. The post Firing Teacher for Mentioning Racial Epithets in "Cultural Diversity" Class May Violate Connecticut Constitution appeared first on Reason.com.

11/21/1926: Justice Joseph McKenna died. Justice Joseph McKenna The post Today in Supreme Court History: November 21, 1926 appeared first on Reason.com.

What’s on your mind?

I coauthored the article with four other legal scholars from across the political spectrum.

Plaintiff "seeks an order requiring President Trump 'to surrender one (1) lung' to him as specific performance 'for the spiritual suffocation caused by the Executive Order'—or, in the alternative, a specifically orchestrated apology delivered by President Trump before international news media."

From Monday's opinion by Justice Frank Menetrez, joined by Justices Richard Fields and Michael Raphael, in Schlichter v. Kennedy: Grotke's approach differs from those taken by the attorneys in Noland and Alvarez [two previous cases involving hallucinated citations]. Grotke has not admitted that the Writ and the AOB [Appellant's Opening Brief] contain hallucinated citations that were produced by generative AI. Grotke admitted that he used AI in some fashion when preparing the AOB and that it was "possible" that he used AI in some fashion when preparing the Writ. But he maintains that the four spurious citations resulted from clerical error and that he intended to cite the actually existing cases for the propositions described in the declaration that he filed in response to our order to show cause. We find that Grotke's claims are not credible. It is difficult to understand how Grotke's four spurious citations could possibly be mere clerical errors, and Grotke has not intelligibly explained how it would be possible. The spurious citations do not involve the mere omission or addition or transposition of one or several digits. Rather, all four spurious citations are completely different from the correct citations for the actually existing cases that have those case names. Grotke's spurious citations bear the hallmarks of hallucinated citations produced by generative AI. "[H]allucinated cases look like real cases. They are identified by a case name, a citation to a reporter, the name of a district or appellate court, and the year of the decision. [Citation.] But, they are not real cases." Grotke's claim that he intended to cite the actually existing cases is similarly lacking in credibility. The actually existing cases do not support the legal propositions for which Grotke provided the spurious citations in the Writ and the AOB. Consequently, it would make no sense for Grotke to claim that he intended to cite the actually existing cases to support those legal propositions. Grotke attempts to avoid that problem by claiming that he cited the four cases for various other legal propositions, which he describes in his declaration. But the attempt fails, because the legal propositions described in his declaration are not the legal propositions in the Writ and the AOB for which the spurious citations were provided as authority. For all of these reasons, we conclude that Grotke's repeated claims that the spurious citations resulted from clerical errors unrelated to the use of generative AI are not credible. Other parts of Grotke's response show a similar lack of candor and credibility. Grotke claimed in his declaration that the spurious citations "resulted from a breakdown in [his] citation-verification process during compilation from vLex." But Grotke admitted at the hearing that before receiving our order of September 19, 2025, he had never signed up for or had a membership on vLex but merely used it "on and off" or "here and there." Insofar as Grotke claims that he did check the four cases—by searching for them either by case name or by volume and page number citation—before filing the Writ and the AOB, the claim is not credible. If Grotke had tried to check the cases by volume and page number citations, then he would have discovered that the cases do not exist. Grotke admits that is what happened when he searched for the cases in response to our order of September 19, 2025. And if Grotke had tried to check the cases by case names, then he would have discovered that the actually existing cases do not stand for the propositions for which he was citing them. We agree with Noland and Alvarez that "attorneys must check every citation to make sure the case exists and the citations are correct. [Citation.] Attorneys should not cite cases for legal propositions different from those contained in the cases cited. [Citation.] And attorneys cannot delegate this responsibility to any form of technology; this is the responsibility of a competent attorney." As explained by Alvarez, "[h]onesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense." For all of the foregoing reasons, we find that Grotke has failed to show cause why he should not be sanctioned for relying on fabricated legal authority in the Writ and the AOB…. [W]e issue a sanction in the amount of $1,750 to be paid by Grotke individually …. We direct the Clerk of this court to notify the State Bar of the sanctions against Grotke. I e-mailed the lawyer to see if he had a response, and he said this: The cases were real, not hallucinations, though I have seen AI hallucinate cases in the past.  The cites were just mistaken as to where they were located, page number, volume, etc. I reviewed the cases and included them because they were relevant. I believed that I had the correct cites because they were relevant, but somewhere along the way, maybe AI being the cause, I obtained the wrong cites. As I explained to the court, if I knew exactly why they were incorrect, they would not have been submitted that way. The post Lawyer's "Repeated Claims That the Spurious Citations Resulted from Clerical Errors Unrelated to the Use of Generative AI Are Not Credible" appeared first on Reason.com.

From Mizzou Students for Justice in Palestine v. Choi, decided earlier this month by Judge Stephen Bough (W.D. Mo.): Plaintiff Mizzou Students for Justice in Palestine ("MSJP") is a registered student organization at the University of Missouri ("the University" or "MU"). MSJP is dedicated to advocating for Palestinian rights by raising "awareness on campus of the historical and ongoing injustices committed against Palestinians." MSJP has hosted dozens of events, including "marches, lectures, and panel discussions." The University hosts an annual Homecoming Parade. In the fall of 2024, MSJP applied to be part of the Homecoming Parade for the first time. MSJP planned to perform a traditional Palestinian dance and pass out Palestinian sweets. It also planned on displaying signs that read "Ceasefire Now" and "Stop the Genocide." Dr. Choi is the Chancellor of MU. Although MSJP initially believed that its application to participate in the 2024 Homecoming Parade had been approved, Dr. Choi ultimately denied the application, citing concerns related to safety…. The Free Speech Clause restricts the government's regulation of private speech, but does not regulate government speech…. In determining whether "the government intends to speak for itself or to regulate private expression[,]" [this Court] … is driven by a case's context rather than the rote application of rigid factors [and looks to] … the history of expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." Shurtleff v. City of Boston (2022)…. [a.] History of Expression Under the history of the expression at issue factor, the Court looks to both the specific history of the MU Homecoming Parade and homecoming parades in general. The Complaint alleges that "[t]he University of Missouri has hosted an annual homecoming celebration for over 100 years. The University's Homecoming Parade is one of the oldest homecoming traditions in the country, with some even touting it as the very first homecoming tradition by an American university" and that "[t]he Homecoming Parade has long been a place for the expression of political and social messages, including ones widely considered controversial or offensive." The Complaint further alleges that "[t]he Homecoming Parade has welcomed political campaigns and activist groups of all kinds, including many that people would find controversial or offensive." Finally, the Complaint alleges that "[e]ntities across the spectrum—from local businesses to student organizations—participated in the [2024] Homecoming Parade." These allegations are sufficient to tilt the history of expression factor in MSJP's favor. The allegations of diverse participation stand in contrast with government-sponsored military parades, for example, which have a long tradition of communicating a more singular message to "celebrate [a nation's] militaries." Here, there does not appear to be a singular message as the Homecoming Parade has "long been a place for the expression of political and social messages[.]" Ultimately, the allegations do not show that the Homecoming Parade has "long conveyed important messages about the government." … [Some more details from an earlier decision in the case: —ed.] {[T]he MU Homecoming Parade … has a history of welcoming a diverse group of parade entries …, the Legion of Black Collegians led a march against racial injustices during the Homecoming Parade. In 2023, a Columbia resident described the Homecoming Parade participants to include a former city councilwoman in a suffragette costume, an LGBTQ group with dance music and a drag queen, and then lieutenant-governor, Republican Mike Kehoe, with "a crew politicking for his run for governor." In 2024, parade-walkers held signs advocating for a "yes" vote on Amendment 3 (a ballot measure to protect the right to abortion) and for national political candidates. At the hearing, Dr. Choi and McCubbin stated that MU's Homecoming Parade has historically had campaigners for public office, student political organizations with opposing viewpoints, for-profit sponsors, non-profit organizations, and student affinity groups. Further, when the Court asked McCubbin whether the University had endorsed past political floats, he answered "no."} [ii.] Public's Likely Perception Under the public-perception factor, the Court considers whether, taking the alleged facts as true, the public would perceive the Homecoming Parade as an expression of governmental speech. As provided above, the Complaint provides that the Homecoming Parade has traditionally accepted a wide variety of participants including those with conflicting political views. For example, in the 2024 Homecoming Parade, examples of participants included "pro-choice and pro-life groups[,]" "a fraternity riding a truck while waiving 'TRUMP' and 'MAKE AMERICA GREAT AGAIN' flags[,]" "the Mid-Missouri Pride Fest[,]" and "the league of Women Voters[.]" [Some more details from an earlier decision in the case, which discussed the slightly different 2025 policy, rather than the 2024 policy that is being challenged in the broader excerpt I quote:—ed.] {While the Parade Policy prohibits active campaigning this year, it still features a diverse mix of "invited participants" such as the Oscar Mayer Wienermobile and elected officials, neither of which are explicitly listed on the Parade Policy. The parade will also feature "paid sponsors" such as "HotBox Cookies," and community organizations such as "Columbia Christian Academy" and "Columbia Youth Lacrosse." The public does not tend to view MU as endorsing a sitting congressman, the Oscar Mayer Weinermobile, or a private Christian school just because they appear in its Homecoming Parade.} Based on the allegations in the Complaint, the Court finds that the public would not "tend to view" the Homecoming Parade as the government speaking because the public seems unlikely to view the parade as "conveying some message" on the government's behalf. These allegations are sufficient to show that MU is not expressing a coherent governmental message. Indeed, if MU was expressing a message, given the variety of participants, it would be one that is "babbling prodigiously and incoherently." Matal v. Tam (2017) (concluding that if trademarks registered by the Patent and Trademark Office were government speech, the government would be "unashamedly endorsing a vast array of commercial products and services"). Finally, contrary to Dr. Choi's argument that "[a] reasonable observer at the parade would naturally conclude that the University is the speaker, since the University obtains the permit, funds the event, sets the theme, and orchestrates the proceedings[,]" those administrative acts, standing alone, do not transform private speech into government speech…. [iii.] The Extent to which the University has Shaped or Controlled the Expression In assessing the extent to which the government has shaped or controlled the expression of the Homecoming Parade, the Court considers the role Dr. Choi plays in the 2024 Homecoming Parade. The Complaint alleges that "[a] University of Missouri official told MSJP leadership that its application would be subjected to a unique review process. Unlike every other student organization, Chancellor Choi had the final say on whether MSJP would be allowed to participate in the [2024] Homecoming Parade." These allegations are insufficient to tilt this factor in favor of MU as "the mere existence of a review process with approval authority is insufficient by itself to transform private speech into government speech." Moreover, the Complaint's assertion that Dr. Choi had final authority over MSJP's participation—"unlike every other student organization"—suggests that he did not exercise such control over any other organization's message. Consequently, Dr. Choi has not "actively exercised" any authority to shape the message of the Homecoming Parade. Walker v. Sons of Confederate Veterans (2015) (noting that the Texas Department of Motor Vehicles Board had "rejected at least a dozen proposed [license plate] designs.")…. The court therefore concluded that the Parade was either a limited or unlimited designated public forum, that viewpoint discrimination was forbidden in either forum, and that the plaintiffs had adequately alleged such viewpoint discrimination: The 2024 Homecoming Parade featured a wide array of participants expressing diverse and sometimes conflicting viewpoints, yet MSJP was the only group excluded from participation. Accordingly, the Court agrees with MSJP that the Complaint plausibly alleges that "MSJP's exclusion was not content-neutral," as "the only viewpoint barred from expression was one in support of Palestinians." … The Complaint alleges that Dr. Choi "required of MSJP what [he] did not require of other student organizations—to explain in painstaking detail all of their plans for the [2024] Homecoming Parade." Dr. Choi also allegedly requested that MSJP "refrain from displaying [a] 'Stop the Genocide' [sign.]" Finally, after denying MSJP's application, another student group allegedly agreed to carry the Palestinian flag, but Dr. Choi "forbade them from holding the Palestinian flag unless the group also held the Israeli flag." These allegations demonstrate that Dr. Choi subjected MSJP to a "unique scrutiny" and are sufficient to show that the exclusion was motivated by MSJP's viewpoint on Palestine and Israel…. And the court concluded that plaintiff's allegations, if shown, would show a violation of a clearly established constitutional right, so defendants couldn't claim qualified immunity. An earlier decision granting a preliminary injunction concluded that plaintiffs had not only adequately alleged a First Amendment violation as to the 2024 parade denial, but that they were also likely to succeed on the merits as to the planned exclusion of the group from the 2025 parade. Ahmad Kaki, Gadeir Abbas, and Lena F. Masri (CAIR Legal Defense Fund), C. Kevin Baldwin, Eric E. Vernon, and Sylvia Alejandra Hernandez (Baldwin & Vernon), and Benjamin J. Wilson and Lisa S. Hoppenjans (Washington University School of Law, First Amendment Clinic) represent plaintiff.   The post Exclusion of Students for Justice in Palestine from U Missouri Homecoming Parade May Have Violated First Amendment appeared first on Reason.com.

11/20/1910: Justice William Henry Moody retired. Justice William Henry Moody The post Today in Supreme Court History: November 20, 1910 appeared first on Reason.com.

What’s on your mind?

A guest post from Professor Seth Barrett Tillman.

From Doe v. Albemarle County School Bd., decided yesterday by Judge Jasmine Yoon (W.D. Va.): This matter is before the court on Plaintiff J. Doe's motion for a temporary restraining order, and motion for a preliminary injunction, both filed on November 17, 2025. Doe requests that the court prohibit Defendant Albemarle County School Board ("the School Board") from allowing the Western Albemarle High School's Turning Point USA club ("TPUSA club") to host Victoria Cobb as a guest speaker for an event titled "Two Genders: One Truth." The event is scheduled for November 19, 2025, at 12:00 p.m. The court held a hearing on the motion for a temporary restraining order on November 18, 2025. The court finds that Doe has not made a clear showing that they are likely to succeed on the merits of the "deliberate indifference" element of the Title IX claim. Accordingly, the court will deny Doe's motions for a temporary restraining order and preliminary injunction…. While the court recognizes and sympathizes with Doe and their anxiety and distress surrounding the event, … Doe is not able to make a "clear showing that [they are] likely to succeed at trial" on their Title IX claim. A Title IX claim premised on sexual harassment, as here, requires the plaintiff to prove that: "(1) the educational institution receives federal funds; (2) the plaintiff was subjected to harassment based on her sex; (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity; and (4) there is a basis for imputing liability to the institution." Under the fourth prong, liability may only be imputed to the institution in cases of deliberate indifference. Specifically, the Supreme Court has held that an institution may be liable for third-party harassment "only where [its] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis v. Monroe Cnty. Bd. of Educ. (1999). The Davis standard "sets the bar high for deliberate indifference." Specifically, the Davis Court held that "it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims." Here, the School Board was exposed to both statutory and constitutional claims after Principal Jennifer Sublette announced her decision to move the original event from lunch to evening. The demand letter—sent from Michael B. Sylvester on behalf of the TPUSA club, sponsoring teacher, and Cobb—delineated these potential claims, which included First Amendment viewpoint discrimination and federal Equal Access Act violations. The letter asked the Board to correct the "unlawful act" "immediately." While a demand letter with frivolous or empty claims would not suffice to show the School Board's exposure to liability, the First Amendment and Equal Access Act claims raised in this demand letter involve nuanced and sometimes unsettled questions of law. First Amendment protections for school settings established in cases like Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) … as well as the prohibition on viewpoint discrimination expounded in cases like Good News Club v. Milford Cent. Sch. (2001), cast doubt on Doe's assertion that permitting the event to proceed was clearly unreasonable…. Although the court does not rule on the merits of any First Amendment or Equal Access Act issues, it recognizes that the School Board weighed the issues arising from this complex area of law while facing potential legal claims from a range of entities. The continued debate among School Board leadership, advocacy groups, and members of the public in the weeks before and after the October 9 board meeting further underscores the thorniness and obscurity of applying federal law to this dispute. Accordingly, the court finds the Board's response based on their understanding of the law was not "clearly unreasonable." The School Board also promptly responded to the complaints and community backlash it received. Within about a week of its decision to reinstate the lunchtime event, the Board issued a Community Message recognizing "that these discussions have left many feeling angry, frustrated, or invalidated," and affirming that "[the Board's] policies require us to ensure students' constitutional rights to assemble and hear diverse perspectives, just as we expect respectful conduct and nondiscrimination in all schools." … [T]he School Board also consulted its legal counsel and laid out parameters for the event to ensure that it could proceed behind closed doors without disrupting the school or violating any laws…. The post No Restraining Order Blocking High School Turning Point USA Event, "Two Genders: One Truth" appeared first on Reason.com.

From Doe v. Doe, decided today by Judge F. Kay Behm (E.D. Mich.): Plaintiff [John Doe] and Defendant [Jane Doe] are half-siblings and have known each other for over forty years. Plaintiff owns a law firm that operates nationwide, with a primary business address in Oakland County, Michigan. The relationship between Plaintiff and Defendant deteriorated when Defendant allegedly failed to perform on a contract to work for Plaintiff, and defaulted on a personal loan. A few days after Plaintiff terminated the contract for Defendant to work for Plaintiff, Defendant called Plaintiff's former spouse and told her that 30 years ago Plaintiff got Defendant drunk and sexually assaulted her. Plaintiff says this statement by Defendant is false and defamatory…. Generally, there is a presumption of open judicial proceedings in the federal courts; proceeding pseudonymously is the exception rather than the rule. Rule 10 of the Federal Rules of Civil Procedure requires that the complaint state the names of all parties. In order to circumvent this requirement, it must be shown that the need for anonymity substantially outweighs the presumption that parties' identities are public information and the risk of unfairness to the opposing parties…. [Plaintiff argues that] "[c]ourts generally allow a plaintiff to litigate under a pseudonym in cases containing allegations of sexual assault because they concern highly sensitive and personal subjects." And because Defendant is his half-sibling, the disclosure of either party would lead to the inevitable disclosure of the other. The court is cognizant that the accusation of sexual misconduct can itself invite harassment and ridicule. But the public has an interest in the openness of judicial proceedings; "if courts were to allow mutual pseudonymity in sexual assault-related libel or slander suits, then 'whole areas of the law could become difficult for the media and the public to monitor, outside the constrained accounts of the facts offered up by judges and lawyers.'" Although Plaintiff credibly asserts that disclosure of the parties' names may mean that internet search results will associate them with this lawsuit and its potentially sensitive facts, that is not a factor unique to this particular Plaintiff justifying a departure from Rule 10. Other than the implied, and speculative, reputational damage to his law firm, Plaintiff does not assert a specific, individualized claim of potential retaliation or harassment. See Doe v. Megless (3d Cir. 2011) ("That a plaintiff may suffer embarrassment or economic harm is not enough."). The court finds it telling that Plaintiff failed to cite a single case in which a plaintiff in a defamation or libel action was allowed to proceed pseudonymously against an alleged victim of sexual assault. See Roe v. Doe 1-11 (E.D.N.Y. 2020) ("The Court finds it highly persuasive that Plaintiff fails to and is unable to cite a single case in which a plaintiff, suing for defamation and alleging he was falsely accused of sexual assault, was allowed to proceed anonymously against the victim of the purported assault."); DL v. JS (W.D. 2023)…. Seems correct to me; for more on this, see this post. The post No Pseudonymity in #TheyLied Defamation Case Over Sexual Assault Allegations appeared first on Reason.com.

If so, consider nominating them for this award, by Dec. 15; note that the award is limited to relatively junior faculty members: The AALS Section on Law and Religion seeks nominations for the 2025 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that has made an outstanding scholarly contribution to the field of law and religion. To be eligible, a paper must have been published between July 15, 2024, and November 15, 2025. The author must be a faculty member at an AALS Member School (with no more than 10 years' experience as a faculty member) or a full-time fellow or VAP at an AALS member school. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Self-nominations are accepted. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by December 15, 2025. The post Any 2024-25 Journal Articles on Law and Religion That You Particularly Liked? appeared first on Reason.com.

Stanford Political Science Prof. Andy Hall, a colleague of mine at Hoover, has this very interesting post at his new Free Systems Substack. An excerpt: I've studied political prediction markets for years, and their early history is full of clever designs and unrealized promise. But what's happening now is fundamentally different. The scale, the liquidity, and the attention these markets are attracting represent a break from efforts of the past. My broader project is to understand how we preserve liberty in an increasingly algorithmic world. Prediction markets are a fascinating case where individuals, freely pursuing their own incentives and acting on their own information, can generate a public good for the digital era: a clearer shared picture of a highly complex political environment. At the same time, they can also create strange feedback loops that require careful governance. So they're well worth studying. To learn more, I decided to see them up close. Two weeks ago, I flew to New York City for election night and joined a group of academics, technologists, and prediction-market traders to run a real-time experiment betting on actual elections. Over the course of the night, I witnessed a technology that has incredible potential to make us smarter and more informed about politics and the world—and which raises profound questions about what politics looks like in a world of live probability feeds where truth is often contested and frictionless information overwhelms our narrow attention spans…. Three questions that will make or break prediction markets for politics Question 1: When markets become narrative, how do we think about manipulation and unintended consequences? … Question 2: When we have markets for everything, how do we find the right ones at the right time and make sure they resolve correctly? … Question 3: When markets are a source of truth, how do we define truth for the most contentious issues? … Back home after my experiment in New York, I've developed a new habit. When I watch NFL games, I have the Kalshi and Polymarket prices open on the computer next to me. When I see them spike, I know to pay attention to the game in anticipation of a big play, because the markets move several seconds before my TV feed does. Traders are literally outrunning my "live" TV. The growth and speed of these prediction markets is truly extraordinary. Real-time prices from political prediction markets can cut through noise, quantify uncertainty, and help us see the world more clearly, if they are designed with care. That means solving at least three linked governance challenges that I've explored here: manipulation, discovery, and resolution. There are good reasons to be optimistic about all of them, but they all require careful thought and learning from mistakes as we go. I'll be sharing more in-depth ideas on each in the coming months. Read the whole thing; if you find it interesting, you can subscribe to the Substack here. The post "Inside the Markets Aggregating Political Reality" appeared first on Reason.com.

From yesterday's decision by Judge Gerald Pappert (E.D. Pa.) in D.F. v. DNC Servs. Corp.: D.F. was a [16-year-old] high school student in the summer of 2012 when she volunteered with Organizing for America, an arm of the Democratic National Committee, to work on the presidential campaign. Killackey, a 38-year-old field organizer in the office, "allegedly 'groomed' D.F., leading to a sexual relationship between the two, which D.F. contends was unwanted and abusive": He allegedly "took an immediate and unusual interest" in D.F. and openly flirted with her, referred to her as "precocious," and gave her gifts. D.F. alleges that Killackey was "groom[ing]" her "for sexual exploitation and abuse." In June of 2012, D.F. asked staff at the Bristol office for a ride home from work, and Killackey agreed to give her one. D.F. alleges that Killackey flirted with her in his car and that she told him "she may have a crush on him." Killackey allegedly pulled the car over and, without D.F.'s consent, touched and spoke to her in a sexual manner. D.F. alleges that later that summer, Killackey "brought [her] to his apartment" and "proceeded to initiate sexual intercourse," after which a "sexually abusive relationship" continued throughout the summer and into the school year. The alleged sexual abuse happened in Killackey's car, at his apartment or in public parks. D.F. did not reveal the relationship or the abuse to the DNC or to any staff in the Bristol office. D.F. sued the DNC for, among other things, negligent supervision, but the court threw that claim out: [A] claim for negligent supervision must allege that an employer "knew or should have known of a need to supervise the employee, and that, by failing to do so, exposed the plaintiff to the employee's misbehavior." … To state such a claim, D.F. must allege facts sufficient to satisfy two separate inquiries. First, that Killackey harmed her on DNC premises or on premises to which Killackey gained access via his employment, and second, that the DNC could have foreseen the need to control Killackey and that the harm he allegedly caused was reasonably foreseeable…. None of Killackey's alleged misconduct took place at the Bristol Campaign office. D.F. claims Killackey exhibited unprofessional conduct on DNC's premises: he flirted with her, sang a suggestive song about her, called her "precocious," gave her gifts, and made business calls that D.F. joined from his office with the door closed. D.F. also alleges that she and Killackey "openly held each other" and "behave[ed] like boyfriend and girlfriend" at a post-election celebration in Washington, D.C. But D.F. claims the alleged sexual conduct—the abuse—took place in Killackey's apartment, his car or in public parks. The DNC does not have a duty to supervise its employees at their homes, in their cars or in public parks. D.F. characterizes Killackey's conduct on DNC's premises as "grooming," but none of his alleged on-premises actions were tortious. To state a claim for negligent supervision, D.F. must allege that Killackey committed an intentional tort on DNC's premises or on premises to which he was privileged to access via his employment. She does not…. I doubt that all courts would require, as a condition of negligent supervision claims, that the intentional tort was committed on the employer's "premises or on premises to which he was privileged to access via his employment"; some would allow liability so long as the intentional tort was made possible by behavior within the employment relationship (and there is other evidence of negligent supervision). But Pennsylvania law does appear to impose such an intentional-tort-on-the-premises requirement. In addition to the premises requirement, negligent supervision claims must satisfy two foreseeability requirements. First, the employer may be liable if "it knew or should have known the necessity" for controlling their employee based on "dangerous propensities that might cause harm to a third party." Second, the harm that the "improperly supervised employee caused" must be reasonably foreseeable. Here, the foreseeability inquiry focuses on Killackey's alleged unwanted sexual acts which are the source of D.F.'s alleged harm. The DNC could not, based on the amended complaint's allegations, have known Killackey had a propensity to commit sexual abuse…. D.F. concedes that no one with the DNC had actual knowledge of Killackey's propensity to commit harm. She alleges that she told no one with the DNC about the nature of their relationship, and that the DNC never discovered it. D.F. claims only the DNC should have known Killackey had a propensity to sexually abuse her because DNC staff was aware that: * Killackey was flirtatious with D.F. and called her "precocious"; * Killackey agreed to give D.F. a ride home; * D.F. and Killackey went canvassing together; * Killackey gave D.F. a book and other unidentified gifts; * Killackey exchanged text messages with D.F. on his personal phone; * Killackey sang a suggestive song from a movie after D.F. made a reference to the film; * D.F. and Killackey sat in his office with the door closed while he made calls; * D.F. joined DNC staff to watch election results at a bar, where she and Killackey sat next to each other; * At an inaugural ball in Washington, DC, the two "held each other" and "openly behav[ed] like boyfriend and girlfriend." … The prior conduct need not be an exact match for the tortious conduct, but the employee "must have committed prior acts of the same general nature as the one for which the plaintiff brings suit—acts that show the employee is 'vicious or dangerous and … intended to inflict injury upon others.'" While D.F.'s allegations could allow the inference that DNC staff witnessed unprofessional conduct in the workplace, they do not establish that the staff should have foreseen Killackey might sexually abuse her outside the workplace. And the harm Killackey allegedly caused was not reasonably foreseeable for the same reasons the DNC could not have known of Killackey's propensity to commit sexual abuse. "A harm is foreseeable if it is part of a general type of injury that has a reasonable likelihood of occurring." D.F. has not alleged facts to plausibly establish that the harm—Killackey's alleged sexual abuse—was reasonably foreseeable…. The claim of negligent failure to report child abuse fails for the same reason: D.F. insufficiently alleges the DNC had reason to suspect Killackey's alleged abuse…. [A]t most, D.F. alleges DNC staff were aware of Killackey's unprofessional conduct—not that they were aware of the alleged abuse, which took place away from the workplace and which D.F. never mentioned or alluded to…. The plaintiff's conspiracy and aiding and abetting claims were also thrown out, since to show that one needs to show even more than negligence—agreement "to perform an unlawful act" for conspiracy, and "'actual knowledge' of the tort, which knowledge may be inferred by 'willful blindness'" for aiding and abetting. And plaintiff's vicarious liability claim were thrown out as well: An employer may be vicariously liable for its employees' tortious acts committed during the scope of their employment. But if "an assault is committed for personal reasons or in an outrageous manner, it … is not done within the scope of employment." Pennsylvania courts "have consistently held that sexual abuse of minors falls outside an employee's scope of employment." D.F. fails to allege that Killackey's conduct was "actuated by any purpose of serving" his employer and she therefore fails to state a claim for the DNC's vicarious liability…. The assault, battery, and intentional infliction of emotional distress claims against Killackey are pending. Note that the general age of consent for sex in Pennsylvania is 16, but plaintiff alleges that much of the behavior was actually nonconsensual. The post Democratic National Committee Not Liable for Field Organizer's Alleged "Grooming" of 16-Year-Old Campaign Volunteer, Which Led to Sex appeared first on Reason.com.