The headline in the New York Times is pure Larry Tribe, very important Harvard con law prof emeritus (as opposed to Dersh, who taught crim law).

Why I Changed My Mind on the Debt Limit

Of the myriad things that could possibly matter, why Tribe changed his mind does not make the list. But if he has an actually sound reason why the debt limit would be unconstitutional under Section 4 of the Fourteenth Amendment, that could actually be interesting. After all, much as he’s demonstrated his gymnastic willingness to bend and twist with the latest progressive fashion, he was still a prawf, even if at Harvard. So did he have anything worthwhile to offer this time in contrast to his genius last time? Continue reading →

Who does it persuade? Who does it inconvenience? Who does it harm? What does it accomplish?

https://twitter.com/RebsBrannon/status/1654973123916095488

Continue reading →

When I first read the words, I knew Lyrissa Lidsky was right. They’ve stuck with me ever since.

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Ross Douthat has a lengthy and interesting column arguing that the progressive revolution is winding down, and its legacy will be of less consequence in journalism than it will be in academia. In the course of getting there, he makes a point that has long been of concern. Continue reading →

No New Yorker who rides the subway is unfamiliar with mentally ill, homeless people on platforms or inside subway cars screaming at people, behaving erratically, posing the possibility of violence. We mostly back away and don’t look. We sometimes change cars to avoid them.

When they put on a show or sit in their sad spot holding a sign that they’re hungry, some will throw them some change, but most walk by giving them a wide berth. They smell bad. There are too many of them. We can’t save them, or at least not them all. And we go on with our day. Continue reading →

Back when Chief Justice John Roberts questioned how diversity would contribute an educational benefit to physics during oral argument in Fisher v. University of Texas, I argued that every discipline, physics included, would benefit from having diverse students bring their perspectives to the issue. Many here scoffed at my take, arguing that physics was physics, so different perspectives changed nothing about science.

Since then, the situation has morphed into one that wraps diversity, along with its fellow travelers inclusion and equity, up with meaningless jargon in such a way as to demonize any doubt as racist and sexist. No longer is the issue limited to the approaches that might be brought to solving a question based upon differing experiences, views and perspective, but that one’s having the ideologically correct identity makes one’s solution more valid than a white heterosexual male. What I argued was a sound approach within the limits of reason has not become dogma that ignores merit and validity in favor of the victim hierarchy. This is unsustainable. Continue reading →

Cardozo law prof Kate Shaw and author Julie Suk have resurrected the Equal Rights Amendment as a cure for many of the contentious culture war battles in a New York Times op-ed. Recognizing, no doubt, that there is no chance whatsoever that the ERA, if approved by Congress today, a far-fetched notion, would receive the approval of three-quarters of the states, they argue that it should be deemed approved by glossing over the insurmountable argument that, by its own terms, it failed to achieve approval.

The debate today is over who decides how to treat both deadlines and rescissions. The Constitution’s provisions on amendment are silent on these questions. What Article V of the Constitution does say is that Congress is in charge of proposing amendments that it deems necessary. It also empowers Congress to choose the “mode of ratification,” a power that is understood, even by the Supreme Court, to include control over time frames. If the deadline power belongs to Congress, shouldn’t the power to change any deadlines it imposes — as well as the power to refuse to recognize rescissions — also lie with Congress?

Continue reading →

Joe Tacopina’s cross-examination of E. jean Carroll, who is suing Trump for battery and defamation based upon a sexual assault and rape that she alleges occurred in 1995 or 6, was characterized as pretty harsh.

The fireworks started from the first moment, when Tacopina started, “Good morning, Ms. Carroll.” She did not respond in kind, but instead remained silent—which was appropriate, as there was not question pending. Mr. Tacopina, visibly perturbed, raised his voice and repeated, “Good morning, Ms. Carroll!” At that point, she finally responded, “Good morning.”

It went downhill from there.

Continue reading →

We’re all familiar with the notorious “trial tax” (or plea disount, according to which table you sit at in the courtroom), but what about the “recidivism premium“?

The “recidivist premium” refers to the practice of imposing more punishment on recidivists—or repeat offenders—than if they were first-time offenders.Consider two eerily similar criminal acts. Both offenders, in the same city, pull a gun on a person withdrawing cash from an ATM. After taking the cash, both offenders strike the victim on the head with a butt of the gun. Both victims receive treatment for a concussion and quickly recover. The offenders are both charged with the same crimes, are convicted at trial, and are facing sentencing by the same judge. Adding no other information, we would think that the two perpetrators of these criminal acts should receive similar sentences. Continue reading →

Do you feel better when someone treats you like a three-year-old? Do you feel better when someone treats you as incapable of being stupid, ugly, weak or wrong? Human beings can be smart or dumb, or both, but to tell someone they’re incapable of enjoying and suffering the same foibles as the rest of their species because of their skin color is to think so poorly of them as to be incapable of handling the ordinary reality that others endure. Do you really think that little of black people?

At @UBC, the faculty email signiatures now contain random rhapsodies about the amazingness of black ppl. This one is more than twice as long as the indigenous land acknowledgment that preceded it. (Apparently, UBC has had a problem with black people being *apologetically* black) Continue reading →

Susan Porter did what a lot of people do when they see something they support. Or don’t support. She honked her horn. She was cited for her action.

Plaintiff was cited for misuse of a vehicle horn under Section 27001 after she honked in support of protestors gathered outside a government official’s office. Although the citation was dismissed, Porter filed suit to block future enforcement of 27001 against any expressive horn use—including honks not only to “support candidates or causes” but also to “greet friends or neighbors, summon children or co-workers, or celebrate weddings or victories.” She asserted that Section 27001 violates the First and Fourteenth Amendments as a content-based regulation that is not narrowly tailored to further a compelling government interest. Alternatively, she argued that even if the law is not content based, it burdens substantially more speech than necessary to protect legitimate government interests.

Continue reading →