Now published in Duke J. Const L. & Pub. Pol’y. Like Gerard and Stephen Bainbridge, I expect this to be my final SSRN paper.
Question for readers: What else is out there, as a venue both to distribute drafts and published work and for keeping up with new work (draft and published) from others?
Eugene Volokh passes along the following notice:
Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)
Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars
If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.
We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.
We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.
If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech-scholars (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.
Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.
If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.
Many thanks to the Stanton Foundation for its generous support.
* * *
James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University
Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law
You can write a Fed Courts/Civil Rights exam around Brown v. Neville (N.D. Ill.).
The Illinois Supreme Court appointed Brown, a retired state trial judge, to a temporary assignment. The court then learned about Brown’s online column and podcast appearance in 2025 spewing typical MAGA stuff; after complaints, the court rescinded the temporary appointment, finding that his statements violated the judicial code of ethics. Brown sued the Justices, claiming due process and free-speech violations and seeking an injunction ordering his reinstatement and damages.
The district court stayed the action, denied a preliminary injunction, and denied a motion to dismiss the damages claims.
1) The justices did not enjoy judicial immunity from suit. The decision to fire a lower-court judge is an administrative employment decision, no different from a judge’s employment decisions with respect to a probation officer or a chief prosecutor’s decisions with respect to line prosecutors. And because it was done as an administrative decision rather than court order, it did not take the judicial form that justifies immunity.
2) The court abstained, concluding that “[t]horny and unprecedented questions of Illinois state law abound in this case” (emphasis in original) and may obviate consideration of the federal constitutional issue. State law issues include whether the Illinois Supreme Court has the power to remove temporary lower court judges or whether that power rests with the Illinois Courts Commission; what grounds justify removal; whether removal can consider conduct prior to the appointment; whether Judicial Code of Conduct applies to pre-appointment speech; and whether Brown’s conduct violated the Code.
3) While state law issues likely warrant not deciding the federal issues at this time, the district court did three strange things:
• It did not specify the basis for abstaining. It cited a bunch of different doctrines and spoke generally of federalism and comity. This is plainly Pullman. In fact, it is on all fours with Pullman itself–a state entity issued an order that violates the federal Constitution but doubt remains as to the entity’s state-law power to issue the order.
• It never considered certifying the state-law questions to the Illinois Supreme Court, even though that has become a preferable alternative to abstention.
• The court stayed the action under Pullman, rather than dismissing, which is formally improper, but I think one of those practical things district courts do. More on that below.
4) The court addressed the First Amendment merits two ways.
• It denied Brown a preliminary injunction, concluding Brown was not likely to succeed on the merits of his First Amendment claim. It appeared to the court that Brown wrote the column and spoke on the podcast in his judicial capacity–the byline identified him as a judge and he tied his arguments to his judicial role, and it only identified him as a retired judge at the end. If his statements were made as a private person, he did not appear likely to survive Pickering, given concerns over his ability to remain fair and impartial in performing his judicial functions.
• It denied the defendants’ 12(b)(6) motion. Taking the facts in the complaint as true and drawing all reasonable inferences for the plaintiff, it remained plausible that Brown spoke in his personal capacity. And Pickering does not work well at the 12(b)(6) stage.
•• The court explains the apparent inconsistency and it illustrates an interesting procedural issue, even at the same point in the litigation. The court on a preliminary injunction acts as fact-finder (or at least fact-predictor). So the court can look at the factual record and decide that, in its view, Brown spoke as a judge and/or that he likely fails Pickering. The court on the 12(b)(6) takes Brown’s pleaded facts as true–he spoke as a private citizen and at least plausibly his statements do not undermine his ability to serve as judge.
5) The court hints that the justices may enjoy qualified immunity, pointing to the absence of similar case law. It declined to resolve the point at the pleading stage because it had decided to abstain.
6) The court stayed the action, although dismissal is the appropriate for Pullman. Not a big deal, since we end in the same place–the federal case will not proceed and the parties will begin anew in a state trial court. But the stay/dismiss line should distinguish certification from Pullman: With the former, the federal court retains the action and awaits the state supreme court’s answer to the questions; with the latter, the court drops the case from the federal docket and the burden is on the plaintiff to initiate a new federal action if his state claims fail in state court.
7) The court expects Brown to appeal to the Seventh Circuit, triggering preliminary procedure questions. Denial of the PI is reviewable under § 1292(a). Had the court abstained and dismissed, that would be a final-and-appealable judgment. A stay is not final. But the court points to precedent allowing appeal of abstention-based stays under the collateral order doctrine, including stays in which the case might return to federal court (as under Pullman).
Though things may change in the coming months, I doubt very much that I will post any new draft papers given their policy shift. There are other venues.
I have always struggled–conceptually and pedagogically–with the piece of Twiqbal that considers “obvious alternative explanations” as part of “plausibility.” It provides that a complaint fails to cross the line from possible to plausible if there is an obvious alternative explanation for a set of facts other than unlawfulness. Thus, a complaint alleging the mass arrest of thousands of Muslim men does not plausibly show religious discrimination given the obvious alternative explanation of a desire to keep the U.S. safe from those who committed 9/11.
This seems inconsistent with the 12(b)(6) requirement that the court take the facts as true and draw all reasonable inferences in favor of the plaintiff. Looking for an alternative explanation reflects the opposite–the court searching for inferences to draw against the plaintiff. It somewhat fell by the wayside as–as Adam Steinman and Alex Reinert show–the Court has applied something closer to historic notice pleading than to the full version of Twiqbal. Most lower courts do not speak of alternative explanations.
And the Court at least arguably interred it as a concept two terms ago in NRA v. Vullo. The government defendant asserted an obvious alternative explanation for its negotiations with the insurers–“pursuing conceded violations of the
law”– that rendered not plausible the NRA’s claim of First Amendment jawboning. The Court declined to “credit” this assertion, citing the requirement that the Court assume the well-pleaded allegations to be true.
But then comes Thursday’s unanimous decision (per Justice Jackson) in Hikma Pharmaceuticals v. Amarin Pharma. The case involved an inducement-to-infringe claim by a patent holder against the manufacturer of a generic equivalent. Substantive patent law requires that the inducer took active (even if implicit) steps to encourage direct infringement.
Here is how Jackson describes the pleading standard:
Our well-established federal pleading standards are not
up for debate in this case. In order to proceed to discovery,
a plaintiff must “state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 570
(2007). That plausibility standard “asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). If the complaint
“pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Ibid. (internal quotation marks omitted). Instead, to nudge a claim“across the line from conceivable to plausible,” a plaintiff must plead facts that, if true, “allo[w] the court to draw the reasonable inference that the defendant is liable for themisconduct alleged,” id., at 678, 680 (internal quotation
marks omitted), and to rule out “obvious alternative expla-
nation[s]” for the defendant’s conduct, Twombly, 550 U. S.,
at 567.
It’s back. Or to paraphrase Justice Scalia:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, [obvious alternative explanation] stalks our [pleading] jurisprudence once again, frightening the little children and . . . attorneys for Amarin Pharma.
And this was not a throwaway. Jackson identified three reasons why the allegations fail to establish that defendants took affirmative steps to encourage infringement. The first identified an obvious alternative explanation for defendant’s statements–they were complying with the law and with standard industry practices, under which the generic label matches that of the brand equivalent and describes itself as the equivalent. The other reasons focus on the complaint’s failure to allege affirmative (as opposed to passive) encouragement and general doubt that the complaint describes inducement.
So what should we make of this, especially after Vullo?
One possibility: “OAE” rears its ugly head only in certain types of complex cases–antitrust, patent infringement, politically sensitive actions against high-ranking federal officials. As I wrote after Vullo, the Court may have been “more solicitous of the NRA’s free speech claims than of 9/11-detainees’ equal-protection claims during a national-security crisis or consumers’ antitrust claims, and thus less solicitous of New York’s obvious alternative explanations than of John Ashcroft or Bell Atlantic.” The Court was similarly less solicitous of Amarin’s inducement-to-infringe claims and thus more solicitous of Hikma’s obvious alternative explanation.
A better possibility: Although framed as finding an OAE for facts alleged, the Court is really defining the scope of substantive law and finding the claim insufficient in light of that substantive law. As the Court puts it: “We decline to put generic manufacturers between a rock and a hard place by turning adherence to the law and industry standards into building blocks for illegal conduct.” This makes sense as a statement of the substantive law of inducement-to-infringe–no liability when following law and industry standards; that compliance renders Amarin’s claim insufficient. And the court can do this on 12(b)(6) (when limited ot the four corners of the complaint) as to the legal point, since the four corners includes applicable law. It is a bit dicier to do this as to industry standards on 12(b)(6). In essence, the Court took judicial notice of industry standards, treating them as unquestioned background facts incorporated into and thus part of the four corners for 12(b)(6) purposes.
I am not sure if courts should be able to do the latter. Industry standards and practices do not seem the undisputed, unquestioned facts of which a court can take judicial notice–akin to something contained in a judicial record or the shape of the earth or who is President of the United States. Although I think courts do something similar with contract interpretation under the UCC, so perhaps some industry standards are sufficiently established to justify judicial notice. In any event, better that courts play a bit loose with what facts it can take judicial notice of–and be honest in doing that–than make up something such as OAE that undermines the basic point of 12(b)(6).
I’m interested in the saga of Representative Tom Kean Jr. He’s been missing from Congress for the past three months due to an unspecified illness. My first contact with a politician was when I met Kean’s father at our County Fair when he was running for Governor in 1981. For an 8-year-old, shaking the hand of a candidate like that was exciting stuff.
I’m also thinking about Kean Jr. because one of the hearings held by the Bayh Subcommittee was on a proposed constitutional amendment by Margaret Chase Smith to create a rule of mandatory expulsion from Congress if a member missed more than 40% of the roll call votes in a given year. My understanding is that Smith was proud of her perfect attendance record and greatly offended by people who missed votes. Needless to say, that proposal never went anywhere.
The Manhattan Institute is pushing a proposal to redefine minor crimes–vandalism, destruction of property, trespassing, blocking traffic, etc.–as “civil terrorism” when they occur as part of collective protest activity.
The First Amendment protects peaceful assembly, speech, and protest. It does not prohibit enforcement of restrictions on conduct–destroying property or entering and remaining on property without permission–even where that conduct has an expressive component or is done for expressive purposes. Such laws typically survive intermediate scrutiny. Jenny Carroll challenged this framework, arguing that the First Amendment should limit (through something like jury nullification) the application of non-speech laws around expressive activity.
The Manhattan Institute’s proposal goes to the opposite extreme–enhancing the nature of the crime (from misdemeanor to felony) and the punishment (prison sentence) when expressive or politically motivated conduct violates non-speech laws. The law would be facially viewpoint- and content-neutral. It enhances punishment regardless of the substance of the protest at which the violations occurred–although with an overwhelming likelihood of content- and viewpoint-discriminatory application.
The First Amendment argument would be that the law targets expressive activity more harshly than identical non-expressive activity that implicates identical government concerns. Blocking the highway is a misdemeanor punishable by a fine; blocking the highway to protest an ICE facility is a felony punishable by 18 months in prison. The additional jail time punishes the underlying speech and protest. Marty Redish describes this as a “gratuitous restriction of speech.”
Unfortunately, critics of hate-crime laws pushed this basic argument–“murder is murder and imposing an extra five years in prison for a racist-motivated murder punishes the racist beliefs and ideas not the murder”–and failed. In fact, the “mind” behind this proposal justifies the laws in terms similar to those hate-crimes advocates employ: mass commission of minor crimes in the context of protest activity intimidates and coerces the population.
A follow-up to my post about Michael Wolff’s suit against Melania and the court’s abstention from the DJ action: I think the court erred in dismissing
Wolff filed a state DJ action in state court; Melania removed. The parties cross-moved: Melania moved to dismiss for lack of PJ, insufficient service, and failure to state a claim (because this is an improper use of the DJA); Wolff moved to remand for lack of diversity jurisdiction (arguing that Melania is really a NY citizen despite her and the President’s public change of domicile to Florida).
The court denied Wolff’s motion to remand, finding diversity. The court then said that the propriety of this use of the DJA is not, as Melania argued, a merits issue, requiring denial of her 12(b)(6). Instead, the court held, this requires abstention, the court exercising its discretion to decline to exercise subject matter jurisdiction it has, regardless of the merits.
If so, however, the court should not have dismissed the action; it should have remanded to state court. That is the appropriate move when the court does not exercise subject matter jurisdiction in a removed action–whether because it lacks jurisdiction or because it declines to exercise it. The latter is obvious and unquestioned where a court declines supplemental jurisdiction under § 1367(c) or where it refuses to hear an action under some other abstention doctrine (e.g., Burford or Colorado River). The court should follow that process under Wilton/DJA abstention.
The court found more fundamental objections to the validity and propriety of Wolff’s lawsuit and the attempt by a potential tort defendant to beat the tort plaintiff into court; the judge clearly believes no DJ action can lie on these facts or in this posture. But by framing this as a declination of SMJ rather than a merits issue, the court forfeits the power to dismiss. Indeed, the court’s determination that a federal DJ action in federal court is improper in this context should not dictate whether a state DJ action in state court is improper.
Rocky and my third article on S.B. 8 tried to show that the law’s consequence–forcing individuals to face and defend private civil litigation enforcing constitutionally suspect laws–did not create a new conundrum. It reflected the world that defamation defendants have faced since the events giving rise to New York Times.
But here is a different framing: Where is the Ex parte Young counterpart for privately enforced laws? Must the target of privately enforced laws act at her peril, breach her legal obligations, and defend the subsequent suit? The Declaratory Judgment Act plays that role in insurance and IP cases–a potential patent infringer can obtain a declaration of non-infringement or invalidity, rather than infringing and defending (on those grounds) the infringement action seeking treble damages, an injunction, and attorney’s fees.
But ordinary tort litigants–the speaker who might face a defamation action or the abortion provider who might face an S.B. 8 action or the web designer who might face a discrimination suit–generally do not try this. My assumption had been they choose to lay low and hope the suit never comes.1
But perhaps, as the Southern District of New York suggests, the option is unavailable.
Journalist Michael Wolff published some statements about Melania Trump’s connections to Jeffrey Epstein. Trump sent a demand letter (a required precursor to a defamation action under Florida law), demanding a retraction and threatening a $ 1 billion lawsuit. Wolff filed an action in New York state court, seeking a DJ that his speech was protected and that any lawsuit would violate New York’s anti-SLAPP law. Melania removed
The court exercised its discretion to decline to hear the DJA.2 The court questioned whether Article III or the DJA allow pre-emptive suits absent a contractual relationship as a way for a federal court to “conduct pre-publication review of potentially defamatory statements made by and about private parties.” But it did not have to resolve that issue, because the demand letter showed Melania believed Wolff’s statements to be tortious and thus created the necessary Article III concreteness.
Nevertheless, the court abstained under Wilton, the multi-factor balancing courts apply to pure DJA actions. In essence, the court held that Wolff’s action subverts the ordinary and appropriate course of private speech-tort litigation over past, completed speech–defensive litigation and defensive nullification. And the judge made clear that she was not pleased with having to exercise that discretion, rather than never having to have dealt with this action; she accuses Wolff of engaging in gamesmanship and forum-shopping, abusing the judicial system, and undertaking a “brazen attempt to ‘short-circuit'” Melania’s litigation strategy.
In other words, at least with respect to potential defamation actions over past speech and other non-contractual conduct,there is no EpY counterpart for stopping future private civil litigation.3 And bringing this back to S.B. 8, no EpY counterpart to a potential civil action over a past unlawful abortion.
The Berkeley/Texas/Toronto/Yale Private Law Junior Faculty Forum (BETTY) is a platform dedicated to fostering in-depth exchange of ideas on the conceptual and normative foundations of private law. It aims to build an engaged community of private law scholars, with a particular emphasis on strengthening connections between junior and senior professors.
The second session of the BETTY Forum will be hosted by the Berkeley Center for Private Law Theory on April 9-10, 2027. They are currently seeking submissions for this meeting. Six to eight junior scholars will be selected following a blind peer-review process to present their work at the Forum. A senior faculty will provide commentary on each paper, followed by the author’s response and an open Q&A session.
Topics. They welcome submissions on any topic related to the conceptual and/or normative foundations of private law. Their understanding of private law is capacious, and thus goes beyond property, contract, and torts to include also central aspects of work law, family law, organizational law, and more.
Eligibility. To be considered, authors must be in a tenured or tenure-track position and have been so for no more than 7 years. Co-authored submissions are welcome, provided that each co-author is individually eligible to participate in the Forum. Papers that will be published prior to the Forum will not be considered.
Funding. Participants are expected to cover their own travel and lodging expenses. However, BETTY may be able to secure funding for one or two participants whose institutions do not cover these costs.
Submission guidance. Please submit your paper by email (preferably no longer than 20,000 words, including footnotes) to Casey Dzubur (cdzubur@berkeley.edu) with the subject line “BETTY Forum.” The submission deadline is December 7, 2026. All references to the author should be removed from the paper. Additionally, please include as a separate attachment a cover letter with your name, institutional affiliation, paper title, and contact information.
General inquiries concerning the Forum should be sent to cdzubur@berkeley.edu with the subject line “BETTY Forum.”
The last time the Knicks won the NBA title, the walls were closing in on an historically corrupt president. It took another 15 months to be rid of him, but the process was underway.
Just sayin’.
The things you learn from random “Next Door” emails.
A South Florida man pleaded guilty and was sentenced to 60 months for creating and administering “online chat groups dedicated to the distribution and discussion of sexual and violent videos depicting monkeys being mutilated and burned.”
I confess to not knowing what had become of federal regulation of “animal crush” videos after United States v. Stevens declared the federal ban invalid. Congress amended the law in 2010 to add a requirement that the video be “obscene” (incorporating by reference the Miller definition). The Fifth Circuit in 2014 rejected a constitutional challenge to the amended law. The obscenity element pushes the speech into a recognized category of unprotected speech. And rather than raising an R.A.V. problem by targeting one narrow content-based form of otherwise-unprotected speech, the law targets secondary effects by drying up the market for the conduct of harming animals.
Congress amended § 48 in 2019 to add a prohibition on crushing animals in addition to existing prohibitions on making and distributing crush videos.1
