Category Archives: Uncategorized

Justice Delayed

The issue is significant, though it is neither more nor less significant than when Special Prosecutor Jack Smith brought it to the Supreme Court for decision before the District of Columbia Circuit Court of Appeals. The pendency of an election is not, as a matter of legal doctrine, a cognizable reason to expedite hearing and decision by the Court. Nor does Merrick Garland’s neglect of the matter for two years before appointing a special prosecutor turn this into the Court’s emergency.

And that’s pretty much the most generous reading I can muster about the Supreme Court’s decision to hear Trump’s appeal on a time frame that almost certainly precludes a trial on the January 6th indictment before D.C. judge Tanya Chutkan. The timeline is fairly clear at this point, with oral argument scheduled for April 22d, a balance of 88 days remaining for defendant to prepare for trial and an estimated three month trial. Continue reading

Not Every Assignment Has Pedagogical Value

As a general rule, it seems wise for courts to keep their noses out of the fraught issue of whether a school assignment has pedagogical value. After all, judges aren’t teachers, so why would it be left to courts? And yet, as schools, and teachers, become more aggressive in the nature of what they’re requiring students to do, the potential for crossing the line leaves parents of public school students with few options other than the law when the assignment goes too far.

In Evans v. Hawes, District of Nevada Judge Jennifer Dorsey denied a motion to dismiss when the high school daughter of Terrance and Candra Evans’ assignment in an acting class was to read a monologue written by another student. Continue reading

Tuesday Talk*: Dignity Lost?

What is it about a grifter from Queens who neither knows nor cares about you, who has neither principles nor plans, that makes people love him. Not merely support him or want to vote for him, but adore him. Putting a flag with his name on a truck, comparing him with a deity, being willing to fight a cop and storm a building for him? Krugman thinks he knows.

Technology, then, has made America as a whole richer, but it has reduced economic opportunities in rural areas. So why don’t rural workers go where the jobs are? Some have. But some cities have become unaffordable, in part because of restrictive zoning — one thing blue states get wrong — while many workers are also reluctant to leave their families and communities. Continue reading

Who Will Teach The Teachers?

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

The Engine of Truthiness

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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Is There A First Amendment Right To Affirmative Action?

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

Seaton: Sheriff Roy And The Conspiracy Theorist

When we last left our intrepid heroes, Mud Lick’s top cops were attempting to solve the mystery of a prized cow allegedly anally probed by aliens—CLS

Sheriff Roy Templeton and Deputy Ernesto Miranda stood in front of what looked to be a cross between a nuclear bunker and an abandoned radio station.

“What in blazes are we doing here, boss, and why isn’t this building on any maps?” Miranda asked. Continue reading

For Biden, It’s Michigan Or Israel

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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School Policy Trumps Parent

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

When Justice Sam Alito Is Right

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