IN THE NEWS   A federal judge temporarily blocked President Donald J. Trump’s executive order ending birthright citizenship—an immigration policy granting citizenship to babies born in the United States regardless of the citizenship status of their parents. The executive order would withhold birthright citizenship from U.S.-born babies with mothers illegally or temporarily in the United States and non-citizen or permanent resident fathers. Critics of the executive order contend that it violates the 14th Amendment to the U.S. Constitution, which states that those born in and subject to the jurisdiction of the United States are U.S. citizens. Some advocates of immigration restrictions argue, however, that the 14th Amendment was never intended to extend citizenship to everyone born in the United States. President Trump signed an executive order halting the hiring of any federal civil employees in the executive branch. The only exceptions to this order are…

Amelie Whitehurst (U.S. Army JAG Corps) & Susan Tanner (University of Louisville - Louis D. Brandeis School of Law) have posted How Critical is Critical Race Theory? (Creighton Law Review | Vol. 57) on SSRN. Here is the abstract: This Article examines the constitutionality of legislation restricting the teaching of Critical Race Theory (CRT) in American schools, analyzing these laws through the lens of both First and Fourteenth Amendment jurisprudence. While public discourse often frames the debate as a binary choice between free speech and curriculum control, this Article argues that such framing represents a false dichotomy that obscures the complex legal and social issues at stake. Through analysis of relevant case law, including Garcetti v. Ceballos and González v. Douglas, the Article demonstrates that while teacher speech in classrooms may face constitutional limitations, many current anti-CRT laws are likely unconstitutional—not primarily due…

ShareThe Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. So at the last conference, the Supreme Court acted on a ton of relists. Most remarkably, in 10-time relist Andrew v. White, the court summarily vacated a decision by the U.S. Court of Appeals for the 10th Circuit denying relief to Brenda Andrew, who was sentenced to death in 2004 for the murder of her estranged husband. Andrew argued that the trial court improperly admitted evidence about her sex life and about her failings as a mother and wife, much of which prosecutors later conceded was irrelevant. The Supreme Court held that contrary the 10th Circuit’s ruling, Andrew’s habeas claim could be considered under the Antiterrorism and Effective Death Penalty Act because when the Oklahoma Court of Criminal Appeals acted in her case, clearly established federal law provided that the…

As age verification bills pass across the world under the guise of “keeping children safe online,” governments are increasingly giving themselves the authority to decide what topics are deemed “safe” for young people to access, and forcing online services to remove and block anything that may be deemed “unsafe.” This growing legislative trend has sparked significant concerns and numerous First Amendment challenges, including a case currently pending before the Supreme Court–Free Speech Coalition v. Paxton. The Court is now considering how government-mandated age verification impacts adults’ free speech rights online. These challenges keep arising because this isn’t just about safety—it’s censorship. Age verification laws target a slew of broadly-defined topics. Some block access to websites that contain some "sexual material harmful to minors," but define the term so loosely that “sexual…

Evelyn Douek (Stanford Law School) & Genevieve Lakier (University of Chicago Law School) have posted Lochner.com? on SSRN. Here is the abstract: “[T]he First Amendment,” Justice Kagan declared in Moody v. NetChoice, LLC, one of the five platform First Amendment cases the Court decided this Term, “does not go on leave when social media are involved.” That is obviously true. But no one seriously contests the claim that the First Amendment applies to the internet. The era when people argued that law should not, or perhaps could not, reach into the vast realms of cyberspace is decades behind us. Justice Kagan’s truism therefore only raises the question — what does or should it mean for the First Amendment to apply to the complicated and ever-changing online world? This is the question that this Term’s platform cases raised, in various ways. And it is not a question that has any easy answers, as the cases themselves make clear.…

Federal Communications Commission Chairman Brendan Carr has revived three complaints against broadcast stations accused of bias against President Donald Trump. Outgoing Chairwoman Jessica Rosenworcel last week directed the FCC to dismiss the complaints against CBS, ABC, and NBC stations, along with a fourth complaint about Fox, in what she called a stand for the First Amendment. Rosenworcel said the "threat to the First Amendment has taken on new forms, as the incoming President has called on the Federal Communications Commission to revoke licenses for broadcast television stations because he disagrees with their content and coverage." But in three orders issued yesterday, the FCC Enforcement Bureau reversed the CBS, ABC, and NBC decisions. "We find that the previous order was issued prematurely based on an insufficient investigatory record for the station-specific conduct at issue," each new order said. "We therefore conclude that this complaint…

City of New York v. Exxon Mobil Corp., --- N.Y.S.3d ----, 2025 WL 209843, No. 451071/2021 (N.Y.S. Ct. Jan. 14, 2025) Probably not the last we’ll hear about this, but the court dismissed the City’s two consumer protection claims against defendants for: (1) misrepresenting the purported environmental benefit of their fossil fuel products, and failing to disclose the attendant climate change risks of these products, and (2) engaging in false and misleading greenwashing campaigns. Previously, the courts dismissed public nuisance, private nuisance, and trespass claims as preempted. See City of New York v. BP P.L.C. et al., 325 F. Supp. 3d 466 (S.D. NY 2018), aff’d City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021). The court summarized its key holdings: First, the City’s allegations that NYC consumers are climate conscious, yet are being misled by Defendants’ failure to disclose that fossil fuels cause climate change is not sustainable…

Today's advance release tort law opinion: Murphy v. Rosen(Defamation; special motion to dismiss pursuant to anti-SLAPP statute (§ 52-196a); claim that characterizing another person as white supremacist constituted defamation per se; attorney's fees and costs).

The factual allegations from an earlier iteration of the case: Tallman … lives in the city of Boardman, Oregon, in Morrow County. He owns and operates a coffee shop in Boardman called, "The Farmer's Cup." … Miller … grew up in Boardman. In approximately April 2019, she began working at The Farmer's Cup, as a server. She was 16 years old. Tallman hired Miller and was her supervisor. Shortly after she began working for Tallman, Miller [alleged that she] "experienced what [she] now know[s] to be highly inappropriate behaviors from a 40-year-old man toward a 16-year-old girl." She describes that [alleged] behavior in detail in her declaration. She adds that "Tallman would only engage in these behaviors when there wasn't another adult present" and that she "did not feel safe working with Tallman." She also witnessed a friend and co-worker experience similar behavior from Tallman. In August 2019, Miller…

The trouble with defamationBy Andy DelaneyThree opinions issued on Friday. In the first one, we look at the interplay between tort and criminal law, with a twist based on what I like to call "the reverse-Uno card of defamation law": the anti-SLAPP special motion to strike.  Defendant made reports to police that got plaintiff charged with aggravated sexual assault, sexual assault, aggravated domestic assault, and domestic assault. Plaintiff spent two years in jail, held without bail. Plaintiff was eventually found not guilty on all counts. Shortly after his release, plaintiff filed this suit against defendant. Defendant filed a motion for judgment on the pleadings and a special motion to strike under Vermont's anti-SLAPP law (SLAPP is an acronym for "strategic lawsuits against public participation"). The trial court granted judgment on the pleadings, finding an absolute privilege in defendant's statements to the police barred…

[1.] The First Amendment generally protects remarks on a wide range of matters, not just on politics, science, or other big subjects. As the Court held in U.S. v. Stevens (2010), "[m]ost of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' …, but it is still sheltered from Government regulation." Or, to quote another case, Connick v. Myers (1983), [T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political… We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction. [2.] Nonetheless, the Court has at times held that speech on matters of purely private concern is less protected by the First Amendment, in…

Generally speaking, legal malpractice cases are styled as legal malpractice, breach of fiduciary duty and breach of contract. in Kohler v West End 84 Units LLC 2024 NY Slip Op 34215(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 654985/2023 Judge: Lyle E. Frank, there were additionally anti-Slapp issues, defamation, fraud, abuse of process, intentional and negligent infliction of emotional distress, Judiciary Law 487, aiding and abetting false imprisonment, civil theft and conversion. “Ms. Paulette Kohler (“Kohler”) has lived in one of the West End 84 Units LLC (“Landlord”) rent-controlled apartments for over seventy years. Ms. Kohler is currently 94 years old, widowed, and her only child died in 2020. In 2011, she met a Norwegian woman named Kjersti Inga Eggerud (“Eggerud”, collectively with Kohler “Plaintiffs”). The two women became friends, and on March 21, 2021, Ms. Kohler executed…

 According to the Securities and Exchange Commission, a DAO is a "term used to describe a 'virtual' organization embodied in computer code and executed on a distributed ledger or blockchain".  See Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO.  That does not answer the question, however, of the legal status of DAOs.  Two years ago, I wrote that U.S. District Court Judge  William H. Orrick  had ruled that  Ooki DAO was an unincorporated association under California law.  CFTC v. Ooki DAO, 2022 WL 17822445. Several months later, U.S. District Court Judge  Larry Alan Burns found that the plaintiffs had sufficiently pled the existence of bXz DAO as a partnership under California law.  Sarcuni v. bZx DAO, 664 F. Supp. 3d 1100 (S.D. Cal. 2023) In the meantime, California Assembly Member Matt Haney introduced legislation, AB 1229, that…

On September 29, 2024, the Governor of California signed into law a new bill that would create a uniform resentencing procedure. In the past decade, the California legislature has passed numerous bills that have provided incarcerated individuals with the opportunity to ask courts to have their sentences recalled and reduced. Some of these ameliorative statutes include AB 2942 – Recall of Sentence and Resentencing, which grants district attorneys the ability to make resentencing referrals; the RISE Act (SB 483); and SB 775/SB 1437, which effectively eliminated the role of the natural and probable consequences doctrine in murder cases and dramatically limited who can be charged under the felony murder doctrine. Those and other legislation have provided an opportunity for countless people to petition the courts to have their sentences reduced. The new laws have given defendants hope that the tough-on-crime policies of the past would not result in them serving unjust…

Whenever an employer investigates employee misconduct, there’s a chance it will find—and may have to disclose—negative facts. This is true when a hospital investigates the medical conduct of a doctor, or an employer investigates an employee for potential harassment. In both instances, and in the absence of malice, those investigations are protected by the litigation and the common interest privileges. Mounting Problems Dignity Health hired orthopedic surgeon Troy I. Mounts to work in a spine surgery practice at the San Luis Obispo French Hospital Center. Concerns regarding his clinical competence arose almost immediately. At the same time, he complained he wasn’t getting staff support or adequate time in the operating room to perform complex surgeries. Dignity put Mount’s complex surgeries “on hold” and required him to complete a previously scheduled surgery with a second surgeon he hadn’t worked with before.…

Yesterday's edition of the Los Angeles Daily Journal included an above the fold headline proclaiming "growing chorus for state constitutions should be taught in law schools".   I don't recall such a course being offered when I was in law school more than four decades ago.  However, according to the article, Stanford (not my alma mater) currently offers a course in state constitutional law, which it describes as a "neglected body of law". My first real exposure to the California Constitution came when I began working as Deputy Secretary and General Counsel for the California Business, Transportation & Housing Agency.  Since then, I have observed that many lawyers in private practice have scant knowledge about California's foundational document. "Quien sabe dos lenguas, vale por dos." California adopted its first constitution during the Gold Rush.  It was handwritten on parchment in both Spanish and…

In Grafton Partners L.P. v. Superior Court, 36 Cal.4th 944 (2005), the California Supreme Court found that pre-dispute contractual jury trial waivers were unconstitutional under Article 1, Section 16 of the California Constitution.  In  2019, I penned a post discussing a case in which the Court of Appeal invalidated a forum selection clause that included a jury trial waiver.  Last week, the interplay between a pre-dispute jury waiver and forum selection was again at issue.   In Comedy Store v. Moss Adams LLP, 2024 WL 4783868 (Cal. Ct. App. Nov. 14, 2024), the parties agreed to litigate in federal court in Los Angeles.  When the U.S. District Court dismissed the action for lack of jurisdiction, the plaintiff filed a complaint in the California Superior Court.  The defendant responded by bring a motion to dismiss or stay the action based on improper venue, citing the parties' written agreement to resolving disputes in the state or…

Following this past Tuesday's presidential election, California Governor Gavin Newsom proclaimed an special session of the California legislature.   The Governor's proclamation specified two reasons for the special session: Provide additional funding to the California Department of Justice and other agencies, departments, boards, and offices within the Executive Branch to support the ability to immediately file affirmative litigation challenging actions taken  by the incoming Trump Administration, defend against litigation or enforcement actions brought by  the incoming Trump Administration, and take administrative action authorized under state law to  mitigate the impacts of actions by the incoming Trump Administration. Make conforming changes to existing law consistent with the preceding paragraph. A special session is required because under Rule 51(b)(3) of the legislature's joint rules, the legislature went into recess on…