The law profs keep writing, because that’s what academics do. They write. They write and write, and then write some more. They can somehow manage to turn a thousand word blog post into a hundred-page law review article without adding an iota of substance. I don’t say this out of spite, but out of envy. We used to have a blawgosphere, and of the many parts of the blawgosphere, one of the most robust was the practical criminal defense blawgosphere.

There isn’t much of it left. In fact, other than the occasional post from the ether, there isn’t really any of it left. I realized this when a post popped up on my RSS feed (remember those?) from Jeff Gamso. First, go read Jeff’s post. I’ll wait. Continue reading →

Over the years, I’ve expressed many differences with the American Bar Association, ranging from its shift from a stodgy old guard lawyer group to an extremely progressive left wing political organization, driving away many, if not  most, of its dues-paying members who wanted nothing to do with its newfound woke ideology to Model Rule of Professional Conduct 8.4(g).

Nonetheless, because of its legacy as the “foremost” voluntary lawyer membership organization, the ABA held two positions that enabled it to pretend it was a serious organization. The first, a review and opinion as to the qualification of nominees for federal judgeships, including the Supreme Court. This had been tenuous over the past decade as the ABA’s ratings became increasingly subject to its view of the nominee’s politics and ideology. By letter, Attorney General Pam Bondi put an end to the ABA’s role altogether. That doesn’t mean the next president won’t restore its role, but for now, it’s toast. Continue reading →

Someone had to do it, and Leonard Leo stepped into the breach. After his election in 2016, Trump was in an awkward position. Despite all the bluff and swagger, Donald Trump was completely unprepared to do the job, one critical piece of which was the appointment of judges, the most critical of which was the appointment of justices to the Supreme Court. Trump had no clue who to pick, and so he needed someone with the basic knowledge of who was who. Leo, a Cornell educated lawyer and long-time vice president of the Federalist Society, filled the role of advising Trump.

Trump thought Leo was giving him names of justices who would be “his guys,” reliably serving him and being his rubber stamp. Whether this was because Trump didn’t understand the role judges and justices play, mistaking their conservative bona fides for being his minions on the courts, is unclear. Continue reading →

There seems to be damn good reason for Sean “Diddy” Combs to have paid off Cassie Ventura rather than have her expose his sexual proclivities to the world. Many are disgusted by what he did, and with good reason. But disgusting as it may be, he’s not on trial for being a guy whose sexual proclivities were disgusting, but for sex trafficking. That’s a different matter.

Rick Horowitz sent over a post by Ron Chapman making a very salient point, that the contention that she was coerced into being an “enthusiastic” participant in Comb’s “freak outs” comes at the expense of her agency. Continue reading →

Today marks the putative final day of Elon Musk, special advisor or some such thing and definitely not in charge of the thing he’s entirely in charge of, DOGE, the acronym named after his crypto currency that was one of his least consequential efforts to enrich himself in an administration that valued self-enrichment as a virtue. But at least he cut $2 trillion in fraud, waste and abuse from the federal budget, right?

Few would contend that there wasn’t fraud, waste and abuse in the federal budget, but contrary to the simpletons who mindlessly supported any cutting for this reason, understanding how government works, why things happened and where the fraud, waste and abuse could be found, required a level of attention and effort that neither Musk nor his Muskrats could muster. So what did he accomplish? Continue reading →

There were many reasons raised as to why Trump’s unliteral imposition of tariffs violated the law and the Constitution. A three-judge panel of the Court of International Trade, including judges appointed by Reagan and Trump, held that every single argument raised precluded Trump from imposing tariffs, as I argued here last April.

The US Court of International Trade just issued a unanimous ruling in the case against Trump’s “liberation day” tariffs filed by Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs. The ruling also covers the case filed by twelve states led by Oregon; they, too, have prevailed on all counts. All of Trump’s tariffs adopted under the International Emergency Economic Powers Act of 1977  (IEEPA) are invalidated as beyond the scope of executive power, and their implementation blocked by a permanent injunction. In addition to striking down the “Liberation Day” tariffs challenged in our case (what the opinion refers to as the “Worldwide and Retaliatory Tariffs”), the  court also ruled against the fentanyl-related tariffs imposed on Canada, Mexico, and China (which were challenged in the Oregon case; the court calls them the “Trafficking Tariffs”).

Continue reading →

It’s not as bad a feeling in your gut as when a Supreme Court opinion begins with “Justice Alito delivered the opinion of the Court,” but it’s damn close when there’s a dissent by “JUSTICE ALITO, with whom JUSTICE THOMAS joins.” And he’s right, as is the case in L.M. v. Town of Middleborough.

The Supreme Court denied certiorari, leaving the First Circuit’s decision intact. The facts of the case are undisputed, and it raises a basic First Amendment free speech issue for a public school student that should have been easily resolved by application of the seminal Tinker v. Des Moines Independent Community School District, holding that “public school officials may not restrict a student’s freedom of speech unless his behavior ‘materially disrupts classwork
or involves substantial disorder or invasion of the rights of others.’” Continue reading →

A comment yesterday from abwman gave me pause.

Scott, I don’t know you other than through this blog, but I’m worried about some of your recent missives. Over the years I’ve read your views as concerns about misguided efforts of political and social extremists (on both sides of the spectrum) to break the mold of American liberalism.

My sense has always been that this was founded in a fundamental optimism that a less extreme majority could reason their way to social and economic improvements that don’t undermine the principles that have allowed the U.S. to make course corrections over time that, on balance, enhance the lives of the vast majority of folks. Your recent posts have dark overtones that seem imbued with a more pessimistic view of where we stand now, and what lies in the future. Continue reading →

It’s still early as I write this, and perhaps the New York Times will post a headline or editorial about today being Memorial Day later today. But as I write this, there is nothing. The closest it comes is an op-ed by Drew Faust, former president of Harvard, quoting Frederick Douglass from May 30, 1871, asking “What shall men remember?”

For reasons I’ve expressed in the past and need not say again, I remember the men and women who gave their lives for their country. But when my generation is gone, will there be anyone left to remember? Will there be any left to care whether anyone remembers? Continue reading →

Five years ago today, George Floyd died. Contrary to many who knew little about issues of police racism, abuse and violence, and criminal law reform, this one death gave rise to a movement that seized the nation as if there were no serious, meaningful, intelligent efforts to make change. Instead, the mantra of Black Lives Matter appeared ubiquitous and progressives in government began reinventing our socio-economic-legal processes around the “marginalized” at the willing expense of the “privileged.” Continue reading →