Author: import

Last April, HHS Secretary RFK committed to finding the cause of autism by September. Well, here we are, and the closest he’s come is a claimed link between autism and Tylenol use during pregnancy. That sounds pretty frightening, but it turns out to be unsupported, as explained in this article on the always valuable Science Based Medicine, by Steven Novella, a clinical neurologist at the Yale Medical School.

Here are come excerpts,

RFK has shown, over and over again, that he has no idea how to properly interpret the medical literature. He uses scientific evidence as the proverbial drunk uses a lamppost – for support rather than illumination. As regular readers here know, preliminary evidence is often all over the place, and also tends to favor false positives. You need careful analysis of research methodology, confounding factors, patterns of replication, detection of p-hacking, etc. in order to come to a reliable conclusion. Or – you can just cherry pick the inevitable studies that support your political agenda.

This is a job for a good systematic review, and fortunately we have a recent high quality review to look at. The data came from the Swedish national database, which is extremely useful for such research. The review includes data on 185,909 children. They found a very small increased risk of neurodevelopmental disorders with Tylenol use in pregnancy, however this link disappeared when they did a sibling control analysis.

However, as we have pointed out here often, this also allows for the possibility of confounding factors. For example, what if mothers who have a fever for some reason are both more likely to take Tylenol and to have a child with a neurodevelopmental disorder?

But that, of course, is RFK’s specialty – scaring people away from effective treatments with negligible risks based on his gross misreading of the scientific literature. We can expect more shenanigans to come.

The entire post is well worth reading. And SBM is well worth following.

Posted by Steve Lubet on September 11, 2025 at 02:46 PM

The new Courts Law essay comes from Maureen Carroll (Michigan) reviewing Daniel Wilf-Townsend, Deterring Unenforceable Terms, 111 Va. L. Rev. __ (forthcoming 2025), on the procedural problems and solutions to unenforceable provisions on mass contracts. I learned a lot of stuff that I had not thought about from this one.

Posted by Howard Wasserman on September 11, 2025 at 10:05 AM

We wil discuss the shadow (or emergency or interim or Voldemort*) docket in Fed Courts today, the first time it has been included in the book and the first time I included it as part of the planned class discussion. The timing is fortuitous. Last week, Justice Gorsuch calling out district judges for not giving unexplained orders sufficient deference and district judges pushing back. Yesterday, the Court without explanation (except from Justice Kavanaugh’s ongoing campaign to be liked) greenlit a show-me-your-papers if you speak Spanish and hang out at Home Depot in LA offensive and Justice Roberts issued an administrative stay that (along with Boyle and Wilcox) marks the death knell for Humphrey’s Executor.

[*] This nascent debate hearkens back to the debate, resolved in my favor in CASA FN 1, over the nomenclature for universal/nationwide/whatever injunctions. One commentator tried to move off this by calling them Voldemort Injunctions.

It is hard to avoid the snarky conclusion that district courts’ only move right now is to deny the injunction in every challenge to administration policies and actions. Or immediately stay any injunction. Either way, SCOTUS is signaling that the administration must be allowed to pursue its preferred actions unless and until it–and only it–resolves the lawfulness of those actions.

Specifically on Noem v. Vasquez Pedromo. I believe ICE’s efforts normatively abhorent and violative of the Fourth Amendment. But I initially believed Kavanaugh had a point about Lyons v. Los Angeles, which makes it hard to establish standing to pursue pre-enforcement challenges to law-enforcement stops. Courts must presume the plaintiff will violate some valid law and thus trigger the L/E encounter. I had the same thought about the suit a decade ago challenging stop-and-frisk in New York.

But a commenter on the Con Law Listserv clarified the point in a way I think is right. Lyons’ problem was that he was not likely to break any law or otherwise attract police attention–certainly no more likely than any other person. But these plaintiffs–because of their appearance, language, and where they seek work–do face a higher risk of being stopped. That should be enough to establish standing. And certainly enough to warrant leaving the injunction in place pending full merits review.

Posted by Howard Wasserman on September 9, 2025 at 09:31 AM

Posted by Steve Lubet on September 9, 2025 at 04:42 AM

Steve shared his recent Slate piece called “Amy Coney Barrett Somehow Managed to Get the Law and the Bible Wrong in Her New Book.” (I imagine Prawfsblawg readers know that Justice Barrett is a personal friend and was my longtime colleague.) I realize that authors don’t pick headlines and titles, generally, and understand that this kind of snark is catnip for Slate readers. But, of course, nothing in Steve’s piece identifies any “law” that Justice Barrett “get[s] . . . wrong”. It is not “wrong” for an appellate judge to think that appellate judges should “resolve disputes according to the ground rules that the people have prescribed” and, contrary to Steve’s suggestion, nothing about that statement casts any doubt on the importance of factfinding, testing evidence, etc.

He suggests further that Justice Barrett’s alleged mistakes have something to do with her having been a professor, rather than a trial lawyer, and reports that “Ketanji Brown Jackson, a former public defender, would not have made the same mistake.” It is no criticism of Justice Jackson (with whom I worked for a little while at the Miller,Cassidy firm, where Justice Barrett also worked) to note that (a) Justice Barrett taught evidence for more than a decade and (b) Justice Jackson was an appellate lawyer when she was at the public defender’s office.

As for getting the Bible wrong, well, I’m a Roman Catholic, and so I’m comfortable with the notion that private persons’ readings of Scripture can be mistaken. Whether the mistake is Steve’s or Justice Barrett’s, I’ll leave to the relevant authorities. But, Steve’s conclusion that “Barrett offers a misreading of King Solomon as a strategic foil for her idealized American judge” seems to claim a bit more interpretive authority, and a bit more insight into the justice’s motives, than I would have thought law professors enjoy.

Posted by Rick Garnett on September 8, 2025 at 10:56 AM

I finally had a chance to read the district court opinion granting summary judgment and a permanent injunction to Harvard and its AAUP chapter on First Amendment retaliation, unconstitutional conditions, and Title VI claims. Some thoughts:

• The court rejected the government’s argument that it is acting on its purported interest in stopping antisemitism. The court emphasized: 1) statements by President Trump and administration officials ignoring antisemitism and Jewish students and emphasizing all the ways they disliked how Harvard operated and how it refused to settle; 2) the government’s failure to investigate or acknowledge Harvard’s efforts to correct and change its policies and actions with respect to antisemitism, which should have been part of the government calculus of whether it could strip funding; 3) the timing of the various funding attacks, which followed protected expression such as Harvard’s lawsuit and its adversarial response to earlier letters.

• The opinion should put Columbia and Interim President Claire Shipman to further shame. Recall that Shipman made a big show of insisting that Columbia “did not waver from” its insistence that it retain control over academic and operational decisions and that the federal government “will not dictate what we teach, who teaches, or which students we admit,” a conclusion belied by the numerous provisions of the agreement that surrendered that very control over what they teach, who teaches, and which students learn. In her opinion, Judge Burroughs described everything the Administration demanded of Harvard–much of it identical or substantially similar to what Columbia gave it–and rejected it as an attempt to dictate and control Harvard’s constitutionally protected decisions about its academic decisions.

• The court continues to elide the difference between antisemitism simpliciter and antisemitic harassment or discrimination. This misses an essential piece of the essential dispute about whether Harvard (or any of the targeted schools) has done anything wrong. Title VI precludes the latter and, if proven, could provide a legitimate basis for the government to target university funding. The former may be constitutionally protected, such that using it as a basis for targeting the university would violate the university’s rights (to allow constitutionally protected speech in its expressive space) and may equate to jawboning the university to silence disfavored student speech. Saying “Harvard has been plagued by antisemitism in recent years and could (and should) have done a better job of dealing with the issue” begs the question of whether some of the protests and other activities that Harvard supposedly did not silence were constitutionally protected and thus whether Harvard actually could have “dealt with” the issue and how.

Burroughs seemed to be headed in this direction in the final two paragraphs–she brings up Brandeis and more speech and says “combatting antisemitism cannot be accomplished on the back of the First Amendment.” The line fits the concern–combatting antisemitism cannot ignore that the First Amendment protects some antisemitic speech, however distasteful, and thus prevents the university from taking certain steps. But that is not what she meant. She argued that the government cannot use its desire to combat antisemitism as a figleaf to attack Harvard’s academic freedom, when Harvard was trying to combat antisemitism (albeit belatedly). She never acknowledges the limits on what steps Harvard could take.

This is a great outcome and and important opinion that–as several people have said–may be Calvinballed away, especially on the jurisdictional issues. And it recognizes and calls out how the government has used “antisemitism” as a false cudgel to retaliate against an institution for its protected speech.

Posted by Howard Wasserman on September 8, 2025 at 09:31 AM

Includes all of my favorites: Northwestern, Wesleyan President Michael Roth, and calling out Columbia’s cravenness.

Posted by Howard Wasserman on September 8, 2025 at 09:01 AM

On Tuesday, Judge Breyer issued an opinion concluding that the National Guard deployment to LA violated the Posse Comitatus Act. Breyer’s analysis used Justice Jackson’s Youngstown concurrence in a novel way. Let me explain.

When we think of the principle that civil power must be superior to military power, the concern that comes to mind is that generals will take decisions that elected leaders should take. This is a problem (General Andrew Jackson, General Grant, and General MacArthur, for example). But in Youngstown, Justice Jackson focused on the risk that the President would use his military authority to subvert other civil institutions, most notably Congress. There is plenty of language in the opinion to that effect in explaining why Truman’s role as Commander-in-Chief did not authorize his seizure of the steel mills.

In that section of the opinion, Jackson said: “Congress has forbidden him [the President] to use the army for the purpose of executing general laws except when expressly authorized by the Constitution or by Act of Congress.” Judge Breyer emphasized the word “expressly” in this sentence. Categories One and Three of the concurrence refer to “express or implied” authorizations or prohibitions. Here, though, Breyer was suggesting, the authorization must be express because of the constitutional issues that would arise if the President used the military for law enforcement at home. (Granted, you can distinguish the Army from the National Guard in this context, though Jackson also talked about the militia in his opinion.)

If there are further Guard deployments at home for law enforcement purposes, this point may receive more attention.

Posted by Gerard Magliocca on September 8, 2025 at 08:39 AM

My new essay on Slate explains Justice Amy Coney Barrett’s misunderstanding of the wisdom of King Solomon. Here is the gist:

Amy Coney Barrett Somehow Managed to Get the Law and the Bible Wrong in Her New Book

By Steven Lubet

Sept 05, 202511:24 AM

Supreme Court Justice Amy Coney Barrett’s new book, Listening to the Law, excerpted in the Free Press on Wednesday, features a discussion of King Solomon. Barrett believes that the biblical king’s ruling about two mothers fighting for custody of a child can explain the difference between “doing justice” and applying the law, with the latter being the proper role of an American judge, according to Barrett. Remarkably, the justice manages to get both the Bible and the legal system wrong.

To Barrett, “Solomon’s wisdom came from within,” rather than from “sources like laws passed by a legislature or precedents set by other judges.” His authority was “bounded by nothing more than his own judgment.” In contrast, Barrett says, American judges, including Supreme Court justices, must apply the rules found “in the Constitution and legislation,” without consideration of their personal values, no matter how Solomonic they may seem.

That is a serious misinterpretation of the story. Solomon was neither making a moral judgment nor applying his own understanding of right and wrong. Instead, he was reaching a purely factual determination while carefully adhering to the background law.

You can read the full column on Slate.

Posted by Steve Lubet on September 8, 2025 at 04:29 AM

A spreadsheet for candidates to track information about VAPs or similar fellowships (for example, the Climenko and Bigelow) for the 2025-2026 hiring cycle is now available. In the spreadsheet, you can enter information regarding screeners, callbacks, offers, and so forth. You can also write more general comments.

The tabs on the spreadsheet marked “Comments” and “Q&A” will, I hope, serve as substitutes for comment threads. If people have questions about the process, please post them on the Q&A tab, and everyone — including current professors and fellows — please chime in and answer!

Anyone can edit the spreadsheet; I will not be generally editing it or monitoring it.

Here is last year’s spreadsheet.

Posted by Sarah Lawsky on September 7, 2025 at 03:50 PM

President Trump will attend the US Open Men’s Final Sunday afternoon, reportedly as the guest of sponsor Rolex. The USTA issued an order to ESPN and other broadcasters “to refrain from showcasing any disruptions or reactions in response to the President’s attendance in any capacity, including ENG [Electronic News Gathering] coverage.”

First, no one should be taken seriously in saying sports are not political or that we need to get politics out of sports. When the President appears becomes a featured part of a sporting event, that makes it political. With Trump, his presence is nakedly partisan. At the very least, it becomes expressive. Wherever the President goes and is highlighted, people must be free to cheer or jeer or protest (within the rules of the space).

Second, shame on the USTA for issuing that order and shame on ESPN and other media outlets for following it (whatever that might look like). Trump will be shown during the anthem, which will be loud and unlikely to draw many jeers. But fan jeering will be more obvious if they show Trump during changeover or a break between points. More likely, fans know he is present, even if not shown on screen, and will begin jeering or chanting at random times. Again, of course, consistent with the rules of a tennis venue, which is not like a baseball or football game in terms of crowd speech. But the Open is famous (or infamous) for its raucous-for-tennis crowds and the USTA has long promoted and encouraged that. To restrict that now–and only for one subject–is to command the media to intentionally ignore or alter reality.

Third, note the command–do not showcase “any disruptions or reactions in response to the President’s attendance.” On one hand, producers ignore genuine disruptions (a fan running on the field or causing a scene in the stands) so as not to encourage the behavior. On the other hand, the USTA is not barring coverage of all such disruptions, only those “in response to” Trump’s attendance. The bar of showing “reactions” raises more problems for the reasons described above. Not sure what ESPN can or will do–cut to commercial? Cut the sound? Dub fake audio? Play “Swan Lake?” Again, anything is a command to a media organization to present its audience with distorted reality.

Fourth, why bother? Everyone in the building will have a phone with a video camera and will record and post to the world all the reactions. Perhaps it lessens the effect–the millions watching live will not see or hear it on ESPN, even if smaller numbers do sometime later in a different media outlet. It encapsulates everything illustrates Trump’s thin skin, the willingness of everyone to kowtow to his wishes, and the willingness of the media to play along, at the expense of reality.

Update: Various reporting seems to have settled: The crowd reacted to Trump three times–when he entered the stadium, when he was shown on the scoreboard during the anthem, and when he was shown on the scoreboard during a changeover; the response was a few cheers (especially when he entered to a still-mostly empty stadium) and mostly boos, especially the last one. According to one report, the ABC/ESPN telecast allowed the boos to be heard. So good (if surprising) for them.

Posted by Howard Wasserman on September 7, 2025 at 08:53 AM

Suppose Congress enacted a statute that delegated certain powers to the Vice President. The President doesn’t like how the Vice President is exercising those powers. The Vice President tells the President to pound sand, adding “You can’t fire me.”

How are we supposed to think about this in the context of the unitary executive theory? On the one hand, the Vice President is elected. This is not some agency or unaccountable civil servant making decisions. On the other hand, the Vice President is not legally accountable to the President. To be sure, the President can make the Vice President’s life really unpleasant, but that’s a far cry from the President’s control over the Cabinet. Worse still, a rogue Vice-President could plot to use the 25th Amendment to oust the President.

Posted by Gerard Magliocca on September 6, 2025 at 10:24 AM