Over a late dinner last night, after learning that the Maine Secretary of State had determined that Trump was ineligible to be on the Republican primary ballot, I was asked why there could be any question as to the propriety of applying Section 3 of the Fourteenth Amendment. I put on my lawyer voice and began explaining canons of statutory construction, the constitutional meaning of the word “officer,” and how there were two, and only two, positions in our government that were nationally elected, the president and vice president, distinguishing them from the expressly named elected officials in Section 3.*

As eyes glazed over, and head began to shake from side to side, Dr. SJ asked “How is it possible that the president, THE PRESIDENT, wouldn’t be included in Section 3?” As I was about to reply that “asking a question is not an argument,” a reply that has never caused Dr. SJ to feel warmly about me, another person at the table responded, “Why, since everybody but the MAGA crazies knows that Trump is a lying, venal, narcissistic ignoramus, can’t the Democrats just beat him?” Continue reading →

At Volokh Conspiracy, Orin Kerr raises an old question, first raised by Richard Posner 16 years ago.

Back in 2007, Richard Posner published a very interesting reflection on the state of the legal academy in the form of a memorial essay to his colleague Bernard Meltzer.  It’s a very brief essay, only 3 pages long.  But Posner’s essay laments the loss of the former generation of lawyer-scholars that used to populate law schools. In the old days, Posner says, there were lots of law professors who were superb lawyers steeped in lawyering. These days, Posner says, that model is largely gone.  Today’s professors see themselves as academics first and lawyers second.  Posner suggests that the best education and the best scholarship is a mix of the two.  Both the lawyer-model and the academic-model are useful in their own ways.  A student should get a healthy mix of the two, and scholarship of both kinds is very useful.

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There are strong arguments against the requirement of licensure for a great many occupations where the public may be at risk of harm but the requirement of a license serves more to preclude entry into the position than to save anyone from a dangerous charlatan. But does that apply to professionals, where the testing of educational and experiential requirements serve to provide some modicum of assurance that these people know what they’re doing?

And if a license is required, can someone testify in court as an expert even though he has no license? Eastern District of North Carolina Judge Richard Myers in Nutt v. Ritter held that he can. Continue reading →

It’s taken as a truism that more people voting is better for democracy. If it happens because more people want to vote, are willing to put in the effort to be knowledgeable citizens and participants in democracy, then there is a good argument that more is better. But more, if merely numbers of people who neither know nor care and either vote as they’re told or just check boxes across the ballot, maybe not.

But there is a separate problem, one that has long plagued local elections held on off dates and off years, as opposed to the elections we hear so much about, particularly when the presidency is up for grabs. Nobody shows for these orphan elections, held when no one is paying attention and we have other things to do that take precedence over voting for dog catcher, sheriff or justice of the peace. Well, not really nobody, but nobody outside a small circle of friends. And that small group decides who wins. The residents of a suburban cul de sac at the voting booth could swing the election, so few people vote. Continue reading →

Merry Christmas to all, and thank you for hanging out at SJ.

Whether it’s damaging beloved art or preventing ordinary, innocent, unrelated people from getting to work, the tactic of making people’s lives miserable for the purpose of forcing them to be aware of the cause of outrage has become “normalized,” the go-to tactic of the unduly passionate. You might be able to ignore their cries, but you can’t ignore their blocking a road. You might hate them for it, but they don’t care because they have seized control of your head by force. You might be furious, but to them, they own you and that, as far as they’re concerned, is good reason enough.

Does it matter what the cause is? Whether it’s Black Lives Matter or climate change or Gaza, the people suffering aren’t the perpetrators of whatever wrong is at hand, but ordinary folks who are going about their ordinary lives. Continue reading →

Some offer a simplistic solution. There are too many dead in Gaza, so Israel should just stop. That would certainly have an impact on the number of Gazans killed, but then what? The hostages remain in captivity. Hamas continues to fire rockets into Israel, until it’s next barbaric rampage across the border. And Israel just takes it because the alternative is terrible for Gazans?

.@chrislhayes: “There is no terrorist attack, no matter how horrific—and truly Oct. 7 was horrific—that can wash clean what we are seeing in Gaza and what we as Americans and our government are abetting. It must end. We must stop it.” pic.twitter.com/2nKYlWoaGl

— All In with Chris Hayes (@allinwithchris) December 20, 2023

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Who cares whether Harvard president Claudine Gay is a plagiarist? Had she not blown up for her response to Rep. Elise Stefanik’s question as to whether calling for genocide was against the rules and policies of Harvard, few of you would have known her name, and certainly nothing about her spartan scholarly works. And yet, Republicans in the House are now calling for hearings into her academic veritas.

Harvard last week cleared Gay of “research misconduct” after plagiarism allegations emerged, but Education and Workforce Committee Chair Virginia Foxx (R-N.C.) announced Wednesday that the panel had begun a review of Harvard’s handling of the allegations that she said were “credible.”

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Dog sniffs. Dog hits. Dogs have wonderful sense of smell and will alert either when they smell something, when their handler wants them to alert or just whenever because they’re dogs. Yet, dog hits remain one of the unmovable bits of probable cause despite their having no more validity than a coin toss because the Supreme Court justices, like all judges, love cute puppies.

Yet the New York Court of Appeals has decided there is a place even cute puppies can’t sniff without a warrant. Continue reading →

One might think defending the indigent would be woke enough to soothe the insipient outrage that permeates the majority of the membership of United Auto Workers local 2325, but as expressed in lawyerspeak by union representative Niteka Raina, it barely scratched the woke surface.

“Being a public defender should inherently mean you’re against f—ing genocide,” lawyer Niteka Raina wrote in a ranting email to coworkers obtained by The Post.

“But I guess legal aid is so desperate for attorneys the organization just lets anyone stay these days, oof.

“Ya dumbf—k genocide supporters,” Raina comtinued. “The united states and israel are both settler-colonial entities and both shouldn’t f—ing exist, ya dips—ts.””

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