Two explosive First Amendment cases from the Ninth Circuit show how culture-war flashpoints are reshaping speech doctrine and judicial decorum.

In B.B. v. Capistrano Unified, the court held that elementary students have enforceable free speech rights under Tinker, vacating summary judgment after a first grader was disciplined for giving a classmate a pro-BLM drawing.

Meanwhile, in Olympus Spa v. Armstrong, a divided panel upheld Washington's requirement that a women-only Korean spa admit pre-operative transgender women, prompting Judge VanDyke to open his dissent with "This is a case about swinging dicks," drawing a rebuke from 28 judges and igniting a firestorm over judicial rhetoric, religious liberty, and whether civility in opinions masks ideological outcomes.

Key points:

• Olympus Spa + judicial rhetoric: VanDyke’s vulgar disentail drew a “barroom talk” rebuke; defenders say it was an alarm about what “civil” language hides. • Rule-of-law theme: Majority applied rational basis; dissents argued Tandon strict scrutiny and denominational discrimination under Catholic Charities.
• B.B. v. Capistrano: Ninth Circuit confirms elementary students have Tinker rights, with age as a factor, not a cutoff.
• Why it goes back: Disputed facts over intent, impact, and discipline (including recess) made summary judgment improper.
• AI hallucination fallout: Campos/Munoz sanctions an attorney for fake citations; Westlaw’s blue-link formatting can still mislead.

Tune in to hear why these cases expose judicial composition, not doctrine, as the real variable, and why the fight over whether a judge can write "swinging dicks" may matter more than the legal tests themselves.

Justice Kagan has more words about the emergency docket, aka shadow docket. This one is about the 9th Circuit panel injunction of California’s law requiring school officials not to share with parents when their children present as trans. The Supreme Court keeps the injunction in effect.

And on the fee award front, big firms don’t automatically get a lodestar boost.

Plus, a debrief from oral argument in the Scientology AI sanctions case—where the court said nothing about the sanctions at all.

• The shadow docket is now a routine appellate strategy: Mirabelli v. Bonta saw the U.S. Supreme Court reverse a Ninth Circuit stay on an emergency application, reinstating an injunction protecting parental notification rights on substantive due process grounds—despite the majority's stated skepticism of such claims post-Dobbs. Justice Kagan's dissent warned that the Court is bypassing the normal appellate process and deciding cases before en banc review, signaling a procedural shift practitioners are already exploiting.
• AI cover-ups carry career-ending stakes: In Kjoller v. Superior Court, the California Supreme Court ordered a referee investigation after a prosecutor fabricated eight case citations, then called it "scrivener's error." The lesson is blunt—own the mistake immediately, or face bar referrals and public sanctions modeled on U.S. v. Hayes, where notice went to every judge in the district and every state bar where the attorney held a license.
• Firm size doesn't cap your fees: In LA International Corp. v. Prestige Brands, the Ninth Circuit vacated a fee award that discounted rates for a four-lawyer firm, holding that "brilliance at the bar is not measured by the number of associates a lawyer commands." Skill, experience, and reputation control the lodestar—not letterhead.
• Oral argument silence in the Scientology AI case: Despite an Order to Show Cause for sanctions over AI-generated citations, the Second District panel never raised the issue during argument, focusing only on anti-SLAPP merits while the sanctioned attorney sat in the gallery with separate counsel at the podium.
• Legislative response is coming: A California Senate bill imposing heightened duties of care for AI use by attorneys is advancing with no opposition, suggesting statutory guardrails are imminent.

Three paradoxes feature in this episode:

Paradox 1: You must disclose a bankruptcy stay to the Court of Appeal. What about a bankruptcy that does not create a stay?

Answer: Yes, the disclose-bk-stay rule also means disclose a bk non-stay.

Paradox 2: Deadbeat dad owes $500k. He settles and agrees to pay $250k. How much does he owe?

Answer: Still $500k.

Paradox 3: District court 1 rules AI work product is protected because, among other things, no court has ruled otherwise.

District court 2 then rules otherwise.

Key points:

• Local rules mean what they say: The First District's Local Rule 21 requires "prompt" notice of any bankruptcy that could cause a stay—not just bankruptcies you've confirmed do trigger one. Counsel must explain whether the stay applies, not decide unilaterally that it doesn't and stay silent.
• No stay for debtor-initiated lawsuits: The automatic bankruptcy stay under 11 U.S.C. § 362(a)(1) does not apply to actions brought by the debtor itself. Debtors need to marshal assets through litigation; they don't need protection from their own lawsuits.
• Counsel pled ignorance of Local Rule 21 and reliance on "faulty advice" from bankruptcy counsel—neither excuse worked.
• Courts view violations of notice requirements as a waste of limited judicial time, particularly when discovery occurs days before oral argument.
• Even without sanctions, the published admonishment serves as a lasting professional rebuke.
• The broader ethical duty: appellate lawyers must notify courts of any occurrence that could cause the court to lose or question its jurisdiction.

In Part 2 of our conversation with Michael Shipley, Tim and Jeff dig into the real-world fallout of California's no-horizontal-stare-decisis rule — and the structural fix Shipley has been developing to address it.

Shipley walks Tim and Jeff through his proposed "mini-en banc" transfer mechanism — a way for the California Supreme Court to empower a designated Court of Appeal panel to issue statewide-binding precedent on conflicting issues without consuming the Supreme Court's own docket. No constitutional amendment required. The fix is already structurally available. The question is whether anyone has the will to use it.

Key points:

• The "lonesome judge" problem is worse than it sounds: Under Auto Equity, trial judges caught between conflicting Court of Appeal decisions must predict which rule the California Supreme Court would adopt—effectively playing temporary Supreme Court justice on procedural disputes that may never get high court attention. The result: uncertainty, inconsistent rulings, and frustrated trial judges who just want clear precedent to follow.
• The anti-SLAPP mixed-cause-of-action split took over a decade to resolve: Before Baral, California Courts of Appeal were hopelessly divided on whether a defendant could bring an anti-SLAPP motion targeting individual claims within a mixed cause of action. The split persisted for years.
• Forum shopping is a risk—but more at the trial court level: There is a theoretical opportunity to forum-shop between appellate districts, but if shopping actually happens, it’s probably more at the “lonesome trial judge” level.
• Shipley's fix: a "mini-en banc" transfer procedure: The California Supreme Court would transfer cases back to a designated Court of Appeal panel with authority to disapprove prior conflicting decisions and issue a statewide-binding opinion. The decision would remain subject to Supreme Court review, but would resolve persistent splits on procedural issues without consuming Supreme Court resources.
• Constitutional constraints make true en banc review impossible: California's Constitution requires three-justice panels—no more, no less.
• Implementation doesn't require constitutional amendment: The Supreme Court could adopt this procedure unilaterally as a matter of prudence, though a Judicial Council rule would provide helpful procedural uniformity.

Listen now to understand a concrete reform proposal that could bring much-needed certainty to California's appellate system—and learn how you can support it.

California is the largest common-law jurisdiction where appellate courts don't follow each other—and it happened by accident. In Part 1 of this two-part episode, Michael Shipley explains how Bernard Witkin’s treatise reflections on case dicta became binding law, why the federal circuit model works differently, and what the rule costs practitioners and trial judges every day.

Key points:

• The Witkin origin story: No California Supreme Court decision actually establishes the no-horizontal-stare-decisis rule. It developed through dicta, then appeared in Witkin's first edition—which courts then cited as authority.
• The federal contrast matters for forum strategy: In the Ninth Circuit, Miller v. Gammy binds all panels within the circuit to follow the first published decision on an issue. California trial courts, by contrast, face conflicting appellate authority and must guess which rule the Supreme Court would adopt under Auto Equity—a burden one trial judge called being "appointed to the Supreme Court for temporary purposes."
• Stare decisis isn't jurisdictional (probably).
• Unpublished opinions create tension.
• The pros: California's rule allows multiple perspectives on emerging issues and prevents the first Court of Appeal decision from locking in statewide law before the Supreme Court weighs in.
• The cons: The rule creates uncertainty, burdens trial courts, and leads to inadvertent inconsistencies on procedural issues too minor for Supreme Court attention—splits that can persist for years or even decades. (In anti-SLAPP law, it took 13 years before Baral v. Schnitt decided how to handle mixed causes of action.)
• Publication practices hide the problem: Many conflicts never surface because courts strategically leave decisions unpublished, masking the frequency of divergent reasoning and making the appellate landscape harder to navigate.

Listen to Part 1 now for the full discussion on how California got here and what it costs practitioners—then tune in to Part 2, where Shipley covers forum shopping, the anti-SLAPP mixed-causes-of-action case study, and his proposed reform: precedential transfer.

In the first half of their conversation with James Mixon, Managing Attorney at California's Second District Court of Appeal, Tim Kowal and Jeff Lewis ask what is healthy AI use, and unhealthy use? To help organize—yes! To replace judgment—no! Tip: When an attorney does not read AI output before filing a brief, expect sanctions.

James draws on his role on the judicial branch AI Task Force and his monthly Daily Journal AI column to provide a practical roadmap for responsible AI use—from crafting effective prompts to avoiding the automation bias that has led to attorney sanctions across the country.

Key points:

• Treat AI as an on-demand legal treatise, not a research tool: Mixon explains how AI excels at providing background information and organizing legal concepts into digestible narratives—making it ideal for learning complex areas quickly—but should never replace verified legal research or case citation.
• The "Daedalus Doctrine" framework offers a middle path: Drawing from Greek mythology, Mixon warns against flying too high (reckless AI adoption) or too low (ignoring AI entirely), urging lawyers to use AI thoughtfully while maintaining personal judgment and verification responsibilities.
• Effective prompting is critical: Never use open-ended commands like "enhance this brief"—instead, tell AI exactly what you want and ask it to flag changes in italics or bold so you can review selectively.
• Hallucinations remain the biggest risk: Recent sanctions cases show attorneys asking ChatGPT to verify its own fabricated cases—a fatal error that demonstrates why every citation must be independently confirmed.
• Courts aren't using AI for decision-making: Current California court policy prohibits AI use "in any way that would touch a decision" to preserve public confidence over efficiency gains.
• AI works best for background learning: Mixon describes using AI to create narratives and explanations that make legal concepts stick—transforming dry doctrine into memorable stories, like having a personalized treatise writer available on demand.

Tune in to learn how to harness AI's power for legal background and organization without falling into the traps that have cost other attorneys their credibility—and thousands in sanctions.

Is your AI training data biased? And is using AI-generated reasoning plagiarism?

James Mixon, Managing Attorney at California's Second District Court of Appeal, covers troubling topics on how lawyers should, and should not, use AI. In this second part of Tim and Jeff’s conversation, James discusses how we can detect and counteract bias baked into training data. And what happens when trial judges unknowingly sign orders containing fabricated cases?

Key points:

• Legal reasoning isn't “creative” work—it's problem-solving: When we use words to solve problems, it should not be considered “plagiarism.”
• Bias detection requires active testing: AI models trained on historical data replicate past discrimination, particularly in employment, housing, and finance cases. James suggests an interesting experiment to try in your next research prompt.
• Alternative dispute resolution raises new questions: California bill Umberg 643 bars using AI for arbitration decision-making, reflecting concern that people signing arbitration agreements assume human decision-makers. If contracts explicitly state "AI dispute resolution," that might be acceptable—but not if buried in fine print.
• When should you disclose your AI use? Depends on where the use falls on a spectrum of “organization” and “discretion/judgment.”
• Trial court orders present a growing risk: Judges should strip proposed orders down to essentials: parties, motion, ruling, hearing date.
• AI lacks "ethos"—for now: AI currently can't replicate the credibility and reputation that make people trust human experts. This may change as AI systems develop track records, but for now, judicial decision-making requires the human judgment that builds public confidence in courts.
• Looking backward creates civil rights risks: AI trained on historical data is inherently conservative. Some models predicted Brown v. Board of Education would be affirmed based on precedent—a stark reminder that purely probabilistic decision-making can't account for moral progress.

What AI uses do you find most attractive—and the most troubling?

Lemon Law lawyer Michelle Fonseca-Kamana discusses the seismic shifts in California lemon law—from the Supreme Court's decision in Rodriguez v. FCA US LLC (October 31, 2024) 17 Cal.5th 189 that effectively eliminated most used car claims, to the explosion in case filings (from 4,500 in 2015 to over 22,000 in 2023), to new legislative reforms under AB 1755 and SB 26 that impose strict timelines and mandatory pre-suit notice requirements.

Michelle also shares how she pivoted from in-person networking to social media marketing during the pandemic, built a practice around one-way fee-shifting statutes, and navigates the asymmetric litigation battlefield against billion-dollar manufacturers.

Highlights:

• Rodriguez v. FCA's impact on used-car protections: The Court limited manufacturer liability to certified pre-owned vehicles, leaving used-car buyers without recourse even when cars remain under manufacturer warranty.
• Why lemon law filings quintupled: Despite expectations that Rodriguez would reduce litigation, filings increased fivefold (2015-2023) due to declining vehicle quality, PI firm diversification, and political headwinds.
• New procedural requirements under AB 1755 and SB 26: Effective 2025, consumers must send pre-suit demand letters, wait 30 days, retain the vehicle, meet hard deadlines (one year after warranty expiration or six years from delivery), and navigate an "opt-in" system.
• One-way fee-shifting as equalizer: Song-Beverly allows consumers to bring claims without paying fees—manufacturers pay all costs if consumers prevail.
• Social media as practice-builder: Michelle built her practice through bilingual video content on Instagram, TikTok, and YouTube, generating clients and referrals without traditional marketing.
• Documentation mistakes: The biggest error is failing to keep itemized repair orders and contemporaneous complaints—gaps that become fatal under new requirements.

Tune in for insights on asymmetric consumer litigation, the intersection of statutory interpretation and real-world consequences, and how procedural reforms quietly reshape substantive rights.