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 →

Prefatory Note: I will refer to a couple of “laws” in this story. As my mean-ass editor has a policy of not making people stupider for reading SJ, I’ll go ahead and say I have no idea if these are actual laws or just shit people made up. It could be both.—CLS

We make it to the gate in Manchester, Connecticut. My wife, Dr. S, looks at the gate monitor, then her phone. She shoots me a worried look.

“I hope we make the connection in Philly.” Continue reading →

As raised in the debate over the Tennessee three or two, according to your accounting method, the underlying “cause” of the problem was legislators aiding protestors in gaining access to their legislative chambers, seizing effective control by standing up front, megaphone in hand, leading the protestors in chants and violating the rules, not to mention norms, of decorum.

Their conduct occurred after the shooting at the Covenant School, certainly a very traumatic event. Their conduct was directed toward the chamber’s consideration of laws that protected gun rights, rather than limited them, for which there was no law was before the lege. They were passionate about their cause, which they viewed as existential, life or death. Continue reading →

Ed. Note: Fault Lines alumni Mario Machado and Christopher Seaton, who will apparently fight with each other over anything, agreed to debate the following topic: Resolved: Tennessee’s House of Representatives was right to expel the “Tennessee Three.” Chris will take the affirmative and Mario will take the negative. Mario’s argument is below.

Tennessee State Reps. Justin Jones, and Justin Pearson have been expelled from the Tennessee House with Gloria Johnson surviving by one vote. The three are Democrats who had a major beef with what they perceive as inaction from their colleagues with regards to gun reform laws, following a shooting at the Covenant School in Nashville, where three children and three adults were killed. Continue reading →

Ed. Note: Fault Lines alumni Mario Machado and Christopher Seaton, who will apparently fight with each other over anything, agreed to debate the following topic: Resolved: Tennessee’s House of Representatives was right to expel the “Tennessee Three.” Chris will take the affirmative and Mario will take the negative. Chris’ argument is below.

If I’d like to believe one thing about the politicians in Nashville representing my home state, it’s that they’re naturally averse to using the deaths of schoolchildren for political gain. When others in the State House attempt it, a consequence of that behavior should be some form of discipline. That is why, despite the cries of “Racism” at the top of the unduly passionates’ lungs, I stand with Tennessee House Speaker Cameron Sexton and the Tennessee GOP’s attempts to expel Gloria Johnson, Justin Jones, and Justin Pearson—the so called “Tennessee Three.” Continue reading →

There were always leaks, to some very small extent. Whether the leaker was a whistleblower or just a leaker was often a matter of opinion, but there is little doubt that leaks have become far more common and far less justified on whistleblower basis, such as the Pentagon Papers revealing that the government had wasted thousands of lives on a lie. Instead, it’s spiraled down to the leaker’s belief that something isn’t right, or isn’t good, and he therefore isn’t bound by a sense of confidentiality. Or to put it differently, every person whose hands touch a national secret gets to decide for themselves whether they feel like keeping it.

This was manifest in 21-year-old Massachusetts Air National Guardsman Jack Teixeira’s decision to put top secret documents online for, well, kicks. Continue reading →