Constitutional Law
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Courts
The Ever-Expanding Culture Of Persecution
The now infamous Colorado baker Jack Phillips has no doubt become the target of a troll, but the law remains clear. -
Morning Docket
Morning Docket: 12.31.18
* Michael Cohen: The Movie? Cooley Law’s most infamous graduate could soon be on the big screen, because Trump’s former lawyer/fixer and soon-to-be federal inmate was seen meeting “Pulp Fiction” and “Inglourious Basterds” producer Lawrence Bender. [Page Six]
* Judge Reed O’Connor has stayed his ill-conceived ruling that the Affordable Care Act is unconstitutional since many people have already purchased their health insurance plans. Gee thanks, Your Honor. How considerate! [National Law Journal]
* SCOTUS has kept a pretty low profile in the wake of Justice Brett Kavanaugh’s confirmation, but that may soon change thanks to the high-profile appeals the justices will be considering. Get ready for some dramatic 5-4 decisions. [Associated Press]
* Speaking of SCOTUS drama, perhaps you’ve been wondering why Chief Justice Roberts intervened in the Mueller investigation. Mueller’s team submitted its briefs on the matter on Friday night, so we’ll soon find out what’s going on. [POLITICO]
* There were a ton of pay equity disputes litigated in 2018, and you can probably expect to see even more in the year to come. In fact, the Supreme Court take a case on the gender-based salary differences soon. Stay tuned. [National Law Journal]
* “Big Law killed my husband.” For far too long, lawyers’ mental health was ignored, but the subject came to a head in 2018. Going forward, more attention will be paid to depression, substance abuse, and other problems lawyers face. [American Lawyer]
* Kevin Spacey was seen delivering pizza to paparazzi in Baltimore, Maryland, ahead of his arraignment for felony sexual assault next week. This is the first time he’s been seen in public since allegations of this kind were first revealed. [TMZ]
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Constitutional Law
Citizens United Did Not Ruin Our Political System
'[A] long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT.' -- Thomas Paine, Common Sense
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Constitutional Law
The Court Is Not Gambling With Mueller
Gamble v. United States is a very interesting case, just not for the reasons you might have heard. -
Constitutional Law
The Right to Criticize Police Distinguishes A Free Society From A Police State
The government is asking for a rule that functions as a bar on retaliatory arrest claims. That should frighten you. -
Constitutional Law
Respect For Due Process Can Be Brutally Tough, But Always Necessary
In cases of rape, due process is traumatic, and it makes the constitutional right often difficult to accept. -
Government
A Proposal To Put Politicians At Risk
An idea for how we can force politicians to compromise. -
Constitutional Law
Religious Liberty Is Under Significant Threat This Term
The Constitution and the Founders were clear, yet rather than the law, ideologically driven preference has largely dictated the result in this area. - Sponsored
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Non-Sequiturs
Non Sequiturs: 11.11.18
* The unstoppable Justice Ruth Bader Ginsburg maintains her three-Term streak as author of the Supreme Court’s first signed majority opinion — and, interestingly enough, it’s a unanimous affirmance of the Ninth Circuit (opinion by my former boss, Judge Diarmuid O’Scannlain). [Empirical SCOTUS]
* When he’s not busy issuing landmark decisions (and feeding his clerks to SCOTUS), Judge Jed Rakoff (S.D.N.Y.) writes erudite essays for the New York Review of Books — like his latest, a review of Joel Richard Paul’s new biography of Chief Justice John Marshall (affiliate link). [New York Review of Books]
* President Donald Trump is transforming the federal judiciary with his youthful and conservative appointments — but the extent of the transformation should not be exaggerated, for reasons identified by Ed Whelan. [Bench Memos / National Review]
* Ann Althouse analyzes some of the juiciest passages in Michelle Obama’s new memoir (affiliate link). [Althouse]
* It has been a long time — specifically, more than four years — since the Department of Justice has issued an opinion about the Foreign Corrupt Practices Act, as FCPA guru Mike Koehler points out. [FCPA Professor]
* Peter Schuck responds, in thoughtful and civil fashion, to the (many) critics of his and Rogers Smith’s argument that the Fourteenth Amendment does not require birthright citizenship for the children of unlawfully present aliens. [PrawfsBlawg]
* After last Tuesday’s elections, in which Louisiana approved a state constitutional amendment requiring a unanimous jury to convict in a criminal case, Oregon is the only state that allows conviction in some criminal cases without a unanimous jury — and Gerard Magliocca wonders if this is constitutional. [Concurring Opinions]
* He’s no stranger to our pages, but Isaac Lidsky — the child actor (Saved By The Bell) turned first blind SCOTUS clerk turned successful entrepreneur — still has many insights to share, as he does in this wide-ranging podcast with Goli Kalkhoran. [Lessons From A Quitter]
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Morning Docket
Morning Docket: 11.07.18
* Republicans’ control over the Senate grew after the midterm elections, but Democrats managed to take the House. Here are six interesting reasons why that means President Donald Trump could be in “huge legal trouble” now. [Law & Crime]
* Florida voters approved an amendment to their state constitution to restore felons’ voting rights, which will now be automatically restored after prison time is completed and restitution paid. That’s at least 1.4 million more voters! [Orlando Sentinel]
* Remember Kim Davis, the Kentucky county clerk who was jailed after she refused to sign marriage licenses for same-sex couples? Last night, she lost her reelection campaign to Elwood Caudill Jr., a Democratic challenger. [Lexington Herald Leader]
* In case you missed it, President Donald Trump chose former White House counsel and current O’Melveny of counsel A.B. Culvahouse to go Down Under to
put another shrimp on the barbieserve as U.S. ambassador to Australia. [National Law Journal]* A California appellate court has paved the way for former Winston & Strawn partner Constance Ramos to get out of an “unconscionable” arbitration agreement with the firm. This may be the first Biglaw gender bias case to make it to trial. [The Recorder]
* Sorry, but you can’t deduct the cost of your law degree on your taxes because it qualified you for a new trade or business. The U.S. Tax Court says that even with a shiny new J.D. in your possession, you’ve only enhanced your current skills. [Law360]
* Grab ’em by the public interest: Per a new Gallup survey, pre-law students don’t care about Biglaw money; no, they say the top reason to go to law school is to “pursue a career in politics, government, or other public service.” [Idaho Business Review]
* A group of crypto investors has filed suit against rapper T.I., alleging that they could not have whatever they like because he tricked them into backing FLiK Token. The Rubberband Man’s lawyer says, “Tip is truly disheartened by the lawsuit.” [Complex]
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Constitutional Law
Censorship Will Not Stem Violence
Moral culpability for inflammatory rhetoric is one thing, legal responsibility is entirely another. -
Government
Funny How The Second Amendment Is Absolute And All-Encompassing, But The Fourteenth Amendment Can Be Basically Line-Item Vetoed
This would be funny, if it weren’t so sad... and scary as hell. -
Morning Docket
Morning Docket: 10.31.18
* Senator Lindsey Graham (R-S.C.) says he plans to introduce legislation to end our “absurd policy of birthright citizenship.” Good luck with that, Senator, because if you want to amend the Constitution, you’ll need a two-thirds majority in Congress and ratification of three-quarters of the states. [The Hill]
* Women are allegedly being paid to make false sexual assault and harassment claims against Special Counsel Robert Mueller, and now the FBI is investigating the situation. The going rate for these made-up stories is apparently $20,000. [The Atlantic]
* After having its plan to gift a troubled law school to Middle Tennessee State University be flat-out rejected, Valparaiso Law has decided to call it quits. We’ll have more on this totally unpredictable development later today. [ABA Journal]
* If you’re in law school and your girlfriend breaks up with you, you should probably stop calling her — unless, of course, you don’t mind a harassment conviction and spending a year in jail. Now this fellow is trying to overcome his character and fitness obstacles to become a member of the bar. [Milwaukee Journal Sentinel]
* In case you missed it, the Library Innovation Lab at Harvard Law School just unleashed about 6.5 million digitized court decisions online, for free, as part of the Caselaw Access Project. No, that’s not a typo — everything is free. [Fortune]
* How did graduates of the Charleston School of Law do on the South Carolina bar exam this past summer? Not too well. For the second year in a row, more than half of them failed the test. On the “bright side,” 59 percent of first-time takers from the school passed, up 11 percentage points from last year. [Post and Courier]
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Government
Reminder: Attacks On Birthright Citizenship Are White Nationalist Propaganda Masquerading As Law-Talkin'
The quest to make revoking birthright citizenship a 'mainstream' view needs to end. -
Constitutional Law
Gab Temporarily Offline... In Violation Of No Constitutional Principle I Can Think Of
Apparently, people had to literally die before GoDaddy and PayPal decided to care. -
Constitutional Law
Eminent Domain No Longer Serves The Public Interest
It is now primarily a tool for crony capitalism. -
Morning Docket
Morning Docket: 10.18.18
* Interior Secretary Ryan Zinke is the subject of no fewer than 14 separate corruption investigations. So he fired the inspector general managing the probes and replaced him with a political appointee. [Outside]
* Meanwhile, a Treasury official who blew the whistle on actual criminal activity was arrested. Good to see we’ve got our priorities straight. [Law360]
* While we’ve been talking about global firms invading the Houston market, V&E is looking to expand to New York, DC, and London. [Texas Lawyer]
* Former West Virginia Supreme Court justice found guilty. [American Lawyer]
* Why are all the bigots going into baking? [Courthouse News Service]
* White & Case has a plan to grow like gangbusters over the next two years. Meghan Tribe talks with the firm about this vision. [American Lawyer]
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Constitutional Law
Gun Control Policies Have Been Destructive, Ineffective, And Unnecessary
Dread it, run from it, the brutal reality of prohibition still arrives as long as significant portions of the population demand it as a policy solution. -
Constitutional Law
Be Very Afraid! The Free Speech Chicken Littles Are Coming!
The struggle between societal elevation via unchecked competition of ideas versus fear of societal unrest continues. -
Constitutional Law
Colonists Had More Protections From Unreasonable Government Searches Than We Do Now
Blame the modern drug war and its erosion of Fourth Amendment guarantees.