There is a crisis of faith in Constitutional Law, and as Jesse Wegman notes, it’s changed the way law professors look at it and teach it.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Litman is about as die-hard a progressive prawf as they come, and her quote, the first proffered by Jesse in support of his contention, speaks volumes. As a trench lawyer, I’ve taken issue with many Supreme Court decisions over the years, from the dreaded Whren to Heien, and every decision that loves drug-sniffing puppies more than facts. And don’t get me started on the Reasonably Scared Cop Rule of Graham v. Connor. Continue reading →

Ross Douthat frames it as a 1950s dystopian sci fi scenario.

Imagine a short story from the golden age of science fiction, something that would appear in a pulp magazine in 1956. Our title is “The Truth Engine,” and the story envisions a future where computers, those hulking, floor-to-ceiling things, become potent enough to guide human beings to answers to any question they might ask, from the capital of Bolivia to the best way to marinade a steak.

How would such a story end? With some kind of reveal, no doubt, of a secret agenda lurking behind the promise of all-encompassing knowledge. For instance, maybe there’s a Truth Engine 2.0, smarter and more creative, that everyone can’t wait to get their hands on. And then a band of dissidents discover that version 2.0 is fanatical and mad, that the Engine has just been preparing humans for totalitarian brainwashing or involuntary extinction.

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Having authored my all-time favorite law review article, when Sasha Volokh writes, I take him seriously. He asserts that what the Court took away in SSFA v. Harvard, it gave back in 303 Creative v. Elenis, creating a back door that would enable colleges to engage in racial discrimination under the protection of the First Amendment’s right to expressive association.

In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative-action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive-association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis. Continue reading →

Michelle Goldberg, the millennial pixie, conveys a threat from a Michigan activist named Layla Elabed. It’s Israel or us, Genocide Joe. Pick one.

As infuriated as she is by Joe Biden’s stalwart support for Israel, Layla Elabed has not ruled out voting for him in November. A progressive Palestinian American community organizer in Dearborn, Mich., a majority Arab American city near Detroit, she doesn’t want to see Donald Trump back in office.

“Donald Trump has never been a friend to our community,” she told me as we sat in an airy, modern Yemeni coffee shop. But to win her back, she said, “the very bare minimum” Biden needs to do is to completely overhaul America’s relationship with Israel, demanding a permanent cease-fire and ending American military aid to Israel, at least as long as its war in Gaza drags on.

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According to the father, daughter “Jane Doe” had issues that were being addressed by dad and her therapist after mom passed. But the school had rules, and District of New Jersey Judge Georgette Castner denied a temporary restraining order after finding the father unlikely to prevail.

Jane Doe is a freshman at Delaware Valley Regional High School in Frenchtown, New Jersey. Jane is a minor diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and Unspecified Mental Disorder (UMD), and has been under the care of a therapist for anxiety, depression, and gender confusion since April 2022. {The Court refers to Plaintiff’s child as “Jane Doe,” consistent with Plaintiff’s Verified Complaint and the parties’ briefing.} Plaintiff John Doe is Jane’s father. Plaintiff alleges that he and mental health professionals “agreed to take a cautious approach to Jane’s gender confusion” given her mental health diagnoses and the trauma following the death of Jane’s mother. Continue reading →

There have been precious few decisions from the United States Supreme Court where the opinion of Justice Sam Alito didn’t cause me paroxysms of pain. It’s almost a truism that the worst opinions begin, “Justice Alito delivered the opinion of the Court.” And yet, in his five-page dissent from the denial of cert in Coalition for TJ v. Fairfax County School Board, joined by Justice Clarence Thomas, Alito was right. Justice Sam Alito is right.

The case involved a change in the admissions policy of Thomas Jefferson High School for Science and Technology in Alexandria, Virginia explicitly designed to reduce the number of  Asian students admitted by competitive exam in order to create a more diverse student body. It would reduce the percentage of Asians from 73% to about 54%, which was still more than the percentage of Asian students in the general population. Continue reading →

Put aside Trump’s braggadocio, that he’s so very rich. He is, and he’s not. He’s a whole lot wealthier than me and, likely, you, but there are many who are far more wealthy. And as the case overwhelmingly proved, Trump can’t be trusted when it comes to his own wealth. He lies. A lot.

Put aside that Trump violated New York law by fraudulently inflating the value of his assets on loan applications. He did. A lot. Continue reading →

For some of us, mere competent customer service is such a stunning improvement from the norm that we applaud it. After all, how often are we able to get anything accomplished, no less done right the first time without insufferable fuss? But for an employee with a form of Tourtette Sydrome, coprolalia, performing the job isn’t enough but for his disability. And in Cooper v. Dolgencorp, LLC, the Sixth Circuit held that’s not discrimination.

Cameron Cooper has a disability that causes him to involuntarily utter racist and profane words. Even with the disability, Cooper (like many adults in America) needs to work to earn an income. Fortunately, the Americans with Disabilities Act (“ADA”) provides a remedy for an employee whose employer discriminates against him for having a disability. But to access the remedy, the employee must be able to perform the functions of his job, with or without help (an accommodation) from his employer. Continue reading →

The Ohio law made sense when enacted and it still makes sense. The problem isn’t with the law, but with the cultural shift that entitled some people, a tiny cohort, to use their name of choice and condemns their real name as “deadnaming.” There was no such thing as “deadnaming” back then.

The law, which was passed in 1995 to prevent deception, requires candidates who have changed names in the last five years to list previous names on election petitions. It has become an obstacle for Mr. Faber, who has not legally changed his name, and the three other transgender people seeking a seat in Ohio’s Legislature this year.

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It’s a truism in law that a right without a remedy is worthless. It’s cool to say “you have a right to speak,” but if you’re precluded from speaking, whether because of cancellation, disruption or pressure of being shunned, it’s an empty right. The American Bar Association, flexing the one power that it oddly still possesses, accreditation of law schools, decided to take a stand for free speech in law schools, in ironic conflict with its prior stands against free speech in Model Rule 8(4)(g) for lawyers, by approving Standard 208.

A law school shall adopt, publish, and adhere to written policies that encourage and support the free expression of ideas. A law school’s free expression policies must: Continue reading →