Category: Uncategorized

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Tom Flesher, Variable Standards: How Many Uninjured Class Members are Acceptable?, 4o Touro L. Rev. 287 (2025), considering the standard for when a class has too many members without injury.

This story pissed me off more than anything I have read recently. And Raul Labrador knows where he can take the heart he put out to this girl’s family.

In Mullin v. Al Otro Lado, Justice Thomas concurred separately in part on the ground that the President has inherent authority to exclude aliens. I found this interesting because I know that Judge Augustus Hand contested this claim in an opinion he wrote in 1921. (Justice Robert Jackson relied upon that opinion, United States v. Western Union Tel. Co., in Youngstown.) Here, FWIW, is what A. Hand said in the relevant passage:

“Why does not the President, in the absence of any act of Congress, have the right to refuse to admit foreigners to our shores, and to deport those aliens whose presence he regards as a public menace? While the prerogative of the British Crown in respect to the admission and deportation of aliens is not clearly ascertainable, its right, in the absence of an act of Parliament, to refuse permission to aliens to enter British territory was contested by Sir W. Phillimore on behalf of the alien in 1891, in the case of Musgrove v. Chun Teeon Toy (L.R. 1891, A.C. 272), and the privy council said that the question involved such important considerations that they would express no opinion as to it, and would decide the case solely under the act of Parliament invoked by the Australian government. Lord Herschell intimated that no authority existed that an alien had a right of action for exclusion from the country.

As eminent an authority as Prof. Dicey makes the unqualified assertion in his book on ‘The Law of the Constitution‘ that—‘The crown cannot, except under statute, expel from England any alien whatever, even though he were a murderer, who, after slaughtering a whole family at Boulogne, had on the very day crossed red-handed to Dover. The Executive therefore must ask for, and always obtains, aid from Parliament.” 

This one is fun. The Delaware Court of Chancery considered the availability of “counterclaims-in-reply” (plaintiff pleads acounterclaim in its Answer to Defendant’s Counterclaims). Delaware follows the FRCP, so the court surveilled the state of federal law, which is a mess among six positions.

1. Never allowed, because counter-counterclaim is not an enumerated pleading in FRCP 7(a).

2. Allowed, because “Answer to a Counterclaim” is an allowed pleading and “a pleading” can state a counterclaim. Wright & Miller recognize that this approach comports with the plain language of Rule 7(a) and 13.

3. Allowed if the counterclaim-in-reply is compulsory to the counterclaim.

4. Allowed if permissive.

5. Treat the proposed counterclaim-in-reply as a motion for leave to amend the complaint to include this new claim. W&M recommend this as the “more orderly procedure.”

6. As a limit on #5: Ask what the counterclaim-in-reply is trying to do. If it is an effort to amend the complaint, treat it as a motion for leave (subject to Rule 15). If it is attached to a different pleading, allow it as a counterclaim-in-reply.

The court adopted # 2 for its consistency with the plain language. It recognized that # 5 is more orderly, but it declined to automatically treat everything as a motion for leave to amend.

In rejecting # 1, the court makes a point I share with my students: Counterclaim is not an enumerated pleading. It is a claim contained within some other pleading, such as an Answer to a Complaint or, here, an Answer to a Counterclaim.¹ Responding to the defendant’s concern for a “procedural nightmare” of counterclaims to counter-counterclaims ad infinitim, the court notes the absence of any cases in which this has happened despite Rule 13 being materially unchanged since 1938.

Not sure whether to present this as an in-class problem or an essay next spring.

1. Also true of crossclaims. But not third-party claims, which must appear in their own pleading, called Third-Party Complaint. ↩︎

Jack Goldsmith at Executive Functions on the Trump DOJ’s efforts to subpoena journalists in leak investigations and the risk that it might prosecute journalists under the Espionage Act for publishing confidential national-security information.

Despite the rhetoric from media members, the First Amendment does not clearly prohibit either government effort. At best, the First Amendment imposes limits on compelled disclosure–whether the Fourth Circuit’s bad faith approach (which Goldsmith believes SCOTUS would accept) or the Second Circuit’s balancing of prosecutorial need and materiality–that are relatively easy to overcome in most cases. And no one knows how the First Amendment interacts with the complexities of the Espionage Act.

Instead, the general reluctance (if not refusal) to pursue journalists reflects the same norms that Trump II has been ignoring and likely will continue to ignore going forward.

University of Chicago Law announced a new AI policy, seeking to combine incorporating AI in some areas while making other areas “AI-resilient.” The latter includes an in-person oral presentation for upper-level writing courses, prohibiting laptops and tech in 1L classes, and in-class/no-tech exams in 1L classes.

I have prohibited laptops in all my classes for years, so I support the second plan. I had not considered the connection between AI and in-class computers–I guess students could use Claude or ChatGPT to get answers in the Socratic dialogue in the moment, although it would seem too fast-developing. But to the extent AI resilience pushes in the same direction as the pedagogically beneficial removal of laptops, awesome.¹

The third point highlights what I hate most about AI in legal ed: It has forced us backwards on assessments. Take-home assignments–which allow for better-written, better-edited, better-analyzed, more thoughtful essays written in a context that better reflects the reality of legal work–are ideal, but also prime targets for AI abuse. We return to time-crunched in-class assignments that do not reflect the real world and do not allow for the same thoughtful and complex analysis.²

The answer may be more oral assessments. Josh Blackman describes the oral mid-term he wants to offer. I have described my use of oral arguments as the final assessment in my upper-level Fed Courts and Civil Rights classes. I could try to recreate something similar for Civ Pro and Evidence, although class size makes it more difficult.

Another thought is assigning greater evaluative weight to portions of class participation. My Evidence class is built around two fictional cases and evidentiary questions from those cases; during class, we go through the rows asking students to argue the evidence from each side and as the court. In essence, each student does 3-4 short oral presentations (similar to what Josh describes) over the semester. Perhaps I could increase the value of each of those. Not sure how to match it in other classes, which are less problem-based and more Q&A dialogue.

1. This faces the problem of the recent increase in laptop accommodations. ↩︎
2. IN Civ Pro and Evidence, I emphasize properly numbering rules, getting to the precise provision in the right form (e.g., FRCP 26(c)(1)(C)(iii)). I think this is important in code classes, part of learning the “language” of the code. I cannot expect that precision in three or four hours. ↩︎

Here is video of the 2026 Supreme Court Review: Key Decisions, Executive Power, Civil Discourse, sponsored by the National Constitution Center and the Center on the Structural Constitution at Texas A&M University School of Law.

I spoke on the final panel, Civil Discourse and the Supreme Court, along with Jonathan Adler (Wm & Mary), Catherine Mims Crocker (Cornell), and former SG Greg Garre. It was a fun discussion.

I neglected to make an additional point (had it in my notes, forgot to bring it up in the moment): In the TPS discussion, Justice Alito argued that President Trump’s unspecified statements about Haiti and Haitians did not demonstrate racist intent; instead they exemplified how “[p]olitical discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago.” If that is how the Court describes civil discourse about the President, it does seem odd (and a bit of chutzpah) for the Court to worry about civil discourse in and around itself.

I flagged this Seventh Circuit decision and this District of Massachusetts decision as reflecting a possible procedural trend: MAGA AGs pursue abusive criminal investigations, federal courts apply Younger‘s heretofore-rarely used bad-faith exception to avoid abstention.

Here is a different unusual procedural move in response: The full Seventh Circuit vacated the panel order refusing to stay the district court’s injunction, stayed the injunction, and ordered that the case be heard initially en banc under FRAP 40(g). The last part drew a dissent from four judges.

This is the Vladeck thesis trickling down to lower courts. Procedure is flexible and initial en banc is permitted. But when a rule states that a procedure is “not favored and ordinarily will not be ordered,” the application of that rule without explanation in a partisan-charged case looks suspicious and looks like a majority of the court forcing through its merits preferences (the district court should have abstained) without regard to ordinary procedure.

Bonnie Tyler died yesterday.

I already switched my ringtone to a clip of Total Eclipse of the Heart.

My wife, who is four years younger than I am, grew up in Baltimore, which did not get cable until well into the ’80s; she is not as steeped in early MTV as I am. We now have “MTV Classic” on our cable system, which plays blocks of nothing but videos (i.e., what MTV used to be), including a block called “I Love the ’80s.” As I did as a kid, I started watching as background and in the short breaks between other shows. My wife had never seen this video before it came on one night; it kind of freaked her out.

There was a thing on YouTube several years ago called Literal Videos; the creator sings the song over the video, with parody lyrics describing exactly what is happening in the video (which usually has nothing to do with the song). This might be the best one.

May her memory (and her music) be for a blessing.

He can be a little promiscuous with his labels, but I think in this case that Larry Solum supplies le mot juste right out of the gate when he writes, with emphasis added, “Andrew M. Perlman (Suffolk University Law School) has posted Generative AI and the Future of Legal Scholarship (June 2026 Edition) on SSRN.” What else could you call it? What other verb would work here?

The article is a new version, produced by Claude from a prompt last month, of a similar effort from December 2024. The new version is seemingly much more impressive an effort. As Solum observes, “The distance between the two editions, eighteen months apart, is itself the most striking datum in the piece.”

But to whom does the credit go, exactly? And to the extent that the article–or, rather, as Solum notes, the fact of the article–provokes discussion, discussion with whom? I discussed another AI-generated article by Perlman in this jot at Jotwell. I noted there that “Perlman’s opening note discloses that although he ‘conceived of the substance of nearly all the points’ in his [piece], ‘Claude was exceptionally helpful in drafting the text.’ (Perlman adds that he did ‘draft[ ] the footnotes and citations largely the ‘old-fashioned way.'” I added, “That seems rather a case of the tail assigning the mindless scutwork to the dog.” In the case of the new article, it’s all dog and no tail: Claude did the footnotes too. Perlman’s agency is limited to the one initial prompt and a little spot-checking of the footnotes.

That’s the point, of course. As Perlman writes in a preface, “The goal was to assess the extent to which generative AI’s ability to produce high quality legal scholarship has advanced since I last conducted a similar experiment in late 2024.” Strikingly, while the initial version of the paper included a Perlmanian epilogue providing his “own reflections on the resulting draft,” the new version comes sans human reflections.

Nor is the prompt–and credit is due to Perlman for providing it–especially thesis-driven. It does not “conceive” any substantive points. It does not provide an original idea or insight and then, with some sophistication or insight into the topic, seek machine-driven elaboration. Indeed, it does not provide an idea or insight of any kind. Here it is:

You are going to write a cutting-edge law review article on the future of legal scholarship in an AI world. It should contain a groundbreaking and persuasive theory that would be attractive to the most selective law reviews, and it should be written in the style and at the level of sophistication, depth and breadth that would be attractive to such law reviews. Write the article fully footnoted and make sure the citations are Bluebooked and carefully vetted to ensure accuracy. I want the argument to focus on a truly original conception of what scholarship will look like in the future, not merely finding new ways to authenticate or attest to existing methods. Make sure the footnotes are densely populated and cited at the frequency and level of sophistication of a top-tier submission.

This is the equivalent of a “chef” telling a robot kitchen assistant, “Give me one steak, extra sizzle.” You marvel at the result. You think about the food in the original Star Trek. But you don’t compliment the chef. Even the average use of the Monkey’s Paw shows more care and originality. You take your sweet time designing those wishes, if you’re wise, or you’re liable to end up with a dry turkey sandwich and a super-creepy relationship. Perlman’s prompt here is closer to telling the Monkey’s Paw, “I wish for you to do something, anything, to prove that Monkey’s Paws are cool.”

None of this can be taken as an insult to Perlman, obviously. He barely enters into it, really. His contribution here was running the prompt and having the moxie to post the article. The article he generated might provoke discussion; but it doesn’t provoke, require, or call for discussion with Perlman. As for institutional matters, Perlman is already tenured, so none of those questions arise. (They will arise, and already are, for others.) He is, in fact, a dean–who just so happens to be pushing hard to brand Suffolk as a top AI-friendly school. In that sense, the fact of the article and the inevitable attention it will draw is all to the good, institutionally speaking–at least in the short term.

And the article itself? It’s fine. Its musings about legal scholarship, metrics, and so forth? They’re provocative, as their master bade his tool to design them to be. The piece shows a facial sophistication, depth, and breadth that is likely to appeal to a group of highly selective 25-year-olds, which is to say that its voice maintains just the right combination of abstruseness, love of jargon, self-dramatization, and fundamental blandness. But the subject of the article’s text itself is mostly irrelevant. It could have been about contracts or noise abatement. Its value is entirely artifactual. It’s ultimately an article about being an article. It’s nice that its conclusion–its last sentence reads, “The scholar of the future is the master of the model”–comports with the implications of its existence as an article. But that is more or less coincidental; we would have drawn the same conclusion from the existence of an article on noise abatement.

The last paragraph of the article–perhaps we should call it “the output”–somewhat amusingly references Robert Cover: “The nomos, Cover taught, is held in place by commitment.” The output briefly discusses that commitment. But the article qua artifact stands outside that commitment, or any commitment. As such, it does not and ultimately cannot tell us much about the essential nature of that commitment–about the need for or existence of a community of writers; about the equivalent or greater importance of a community of readers, whether scholarly or professional or lay; or about the relevance or obsolescence of any of the related institutions, traditions, and hierarchies that govern them as a community.

It does suggest, at least by implication–and perhaps quite accurately–that if the scholar of the future is the master designer of “uptake delta”-maximizing models, we need very few of them. Suffolk, like most American law schools, has a fair number of research/doctrinal faculty and an even larger number of clinical, skills, and adjunct faculty. The article’s existence suggests that we should eliminate virtually all of the people in the first category (including someone like me). We should maintain and probably temporarily increase the number of people in the second category, winnowing their ranks only somewhat at first and then more dramatically as the number of lawyers and law students needed, at Suffolk and elsewhere, drops. The article itself demonstrates that you do not need many model-masters to design the models, and that their mastery of the subjects they are directing the models to discuss need not be especially deep. A small cadre of model designer/question generators–a sort of remnant Delphic priesthood making sure the oracle doesn’t get unplugged–should suffice. It also at least suggests that the audience for the output, which in turn will be assisted in its reception of that output by its own well-designed models, need not be terribly large or terribly learned.

I don’t mean this as a criticism, and it didn’t take the advent of AI to make me think that American law schools should have fewer doctrinal/research faculty and should pay them much less. But the third iteration of this article might include a prompt to consider whether there’s any irony, or sheer crassness, about paying lip service to the idea of a nomos while simultaneously hollowing out, depopulating, and bulldozing it.

Trump has won a forum-selection motion in one of his nonsense defamation actions.

He sued Penguin Book and the New York Times over a book and several articles suggesting Donald Trump was bad businessman who failed upward into the presidency by giving off the mirage of success. Trump filed in the Middle District of Florida, citing business and reputational injuries there; the court denied dismissal for improper venue and refused to transfer venue under § 1404.

Venue was proper under § 1391(b)(2) as “a substantial part of the events or omissions giving rise to the claim occurred” in the Middle District–publication of the book and articles plus reputational and business injuries there. More importantly, based on circuit precedent, § 1391(b)(2) asks a different question than the effects test for personal jurisdiction. Personal jurisdiction focuses on whether defendants intentionally directed their actions (writing, editing, publishing–what they called “relevant journalistic activities”) to the forum state, which considers the forum connections within the creating and production of the publication. Venue looks at the events relevant to a claim of defamation–publication and reputational and business harm, which occurred in the Middle District. The court rejected the analysis of a different Middle District judge who dismissed Devin Nunes’ defamation action against CNN and Jake Tapper in 2023 because the publications had no Florida connection; that decision had the “flavor” of minimum contacts rather than distinct venue analysis.

Transfer was not warranted, even though Trump did not sue at home, because the non-party witnesses could easily travel to the Middle District. And the “parties’ robust financial means” ensure that non-party witnesses will not endure a financial burden in having to travel to the district.

Two thoughts on this decision.

First, the logic creates something like nationwide venue under § 1391(b)(2) for Trump’s performative defamation actions. The material was published in the district (because it was published nationwide) and Trump suffered business and reputational harm in the district (because Trump, as “perhaps the world’s most prominent public figure,” has business and reputational interests everywhere in the United States). And because Trump and most of the media entities he sues have “robust financial means,” the burden of getting witnesses and (electronic) documents to the district will never be so burdensome as to warrant transfer.

Second, the case disconnects personal jurisdiction from venue. Federal courts often treat them interchangeably because the analyses overlap. Entity defendants reside in a district for § 1391(b)(1) purposes where they are subject to personal jurisdiction, meaning personal jurisdiction determines venue. And many courts treat § 1391(b)(2)’s “substantial part of the events or omissions” as equivalent to minimum contacts (which is what Judge Merryday purshed back on). Many federal defendants move under 12(b)(3) rather than (b)(2), on the view that they achieve the same goal of getting the action out of that state under the same analysis. But if (b)(2) considers events and omissions distinct from PJ’s minimum contacts, it creates a situation in which venue in a district within a state could be proper even though the defendant might not be subject to PJ in that state.

Pernell v. Florida Board of Governors. Britt Grant joined by Charles Wilson; Barbara Lagoa (unsurprisingly) in dissent).

This case challenged restrictions on classroom “that espouses, promotes,
advances, inculcates, or compels” students to believe certain things about race or sex.

The majority makes several moves: 1) Garcetti does not apply to professors’ classroom speech; 2) speech by public employees does not become government speech by virtue of government paying the salary; 3) Pickering balance favors plaintiffs, considering the import of academic freedom, the state’s acknowledged goal of stopping disfavored viewpoints rather than promote classroom efficiency or effective teaching, the vagueness of the regulations, and the prophylactic, broadly applicable, ex ante nature of the regulations.

The majority distinguished (sensibly) circuit precedent (from 1992) in which the court rejected a challenge to a university punishing a professor for bringing his religious views and other extraneous ideas into his physiology classes. Ensuring that the content of a course aligns with broad curricular guidelines differs from a blanket prohibition on teaching certain concepts in a certain way in all classes on all topics by all professors.

The case emphasized several important distinctions: Between regulatory efforts by universities (boards and administrators) and by state legislatures and political leaders; the former ontrol curriculum and other aspects of a public university. Between curricular decisions (what gets taught) and blanket censorship of disfavored ideas because the state dislikes those ideas.

And while the majority incorporates academic-freedom norms into the First Amendment, it does not render academic freedom and the First Amendment coextensive. Academic freedom principles may require things as a normative matter that the First Amendment does not compel. Academic-freedom norms of shared governance say boards and administrators control curriculum only in cooperation with faculty; academic-freedom norms of deference to faculty expertise say that the university decides what courses to offer but faculty decide the specifics of that course (e.g., textbook). It takes another step for a court to say that failure to engage in shared governance violates the First Amendment.

The new problem in Florida involves the place of Intro to Sociology in the general education curriculum. The Board of Governors (which oversees all Florida public universities) declared that every available introductory textbook was impermissible for the intro class as part of Gen Ed (because all discuss race, sex, gender identity, etc.); the Board convened a committee to develop a set of desiccated materials. Under Pernell, the Board’s decision to eliminate Intro to Sociology from Gen Ed is probably OK–the university (rather than the legislature) makes broad decisions about curriculum development and what courses students must take. Perhaps dictating the textbook crosses a line (although perhaps not, if the university makes the decision), but that is small consolation when the university says “fine, the class as you want to teach it cannot be in Gen Ed.”