If I had kept my notes from Con Law, I would check to see whether there was any mention of the “Major Questions Doctrine” taught when I was in law school that I’d somehow forgotten over the years. After all, memory is the 13th thing to go. But it’s emerging as a potent tool in the Supreme Court’s arsenal against Executive Branch administrative actions. Is there really such a doctrine?

The doctrine requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of vast ‘economic and political significance.'” If such a broad delegation of power isn’t clear, courts must rule against the executive’s claims that it has the authority in question. Continue reading →

When a private party, and his private law firm, are engaged in motion practice, one of the concerns that influences their tactics is that every motion comes with a cost. Lawyers have to work on it, and they want to get paid because of that whole “kids wanna eat dinner again tonight” problem. That means litigants have to pay their lawyers, and they don’t come cheap. In deciding whether to pursue a case, the cost of doing so is one of the most serious considerations.

Not so for prawfs. They can throw a skunk into whatever garden party catches their eye without worrying for a moment that they won’t get that sweet university paycheck. They win, they get paid. They lose, they get paid. Continue reading →

Michelle Goldberg compares Florida governor and putative Republican presidential candidate Ron DeSantis’ flurry of laws to prove that he is the leader of the anti-wokies in education to Hungarian president Victor Orban.

Many on the American right admire the way Orban uses the power of the state against cultural liberalism, but few are imitating him as faithfully as the Florida governor and likely Republican presidential candidate Ron DeSantis. Last week, one of DeSantis’s legislative allies filed House Bill 999, which would, as The Tampa Bay Times reported, turn many of DeSantis’s “wide-ranging ideas on higher education into law.” Even by DeSantis’s standards, it is a shocking piece of legislation that takes a sledgehammer to academic freedom.

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There are some folks who argue that they just love ’em their guns. There are some who make arguments for their ownership, whether sport, defense or, in the case of an authoritarian government, offense. There are some, like me, who aren’t actually gun fans, but as long as the Second Amendment exists, will defend it as part of the bundle of rights protected from government intrusion.

But what is it about guns? Continue reading →

Another dirty little secret about law is that much of what lawyers produce is repetitive crap. Back in the olden days, we went to the corner legal stationer and bought pads of fill-in-the-blank forms for the sort of stuff like contracts of sale, authorizations and releases that had all the magic words already printed on the page and we would put in clients’ names and act as if it took a brilliant lawyer to make it happen. Truth is, we told the secretary to prep a release for Joe Smith and our work was done.

When computers came along, we input the same forms into the computer and did pretty much the same thing. You only had to type it in once, and it was there forever. Whenever someone came up with a new clause or some new language, we added it into the form and the form grew from one page to 25, which by definition meant we could charge 25 times as much because the client had no clue that it was invented just for him. And clients were thrilled, because they never read the forms, but merely felt the heft and were invariably impressed with our lawyer brilliance based on the weight of the paper. More paper, better lawyer. Continue reading →

A couple weeks ago, a professor of Africana Studies at Villanova University, Vincent Lloyd, wrote a powerful essay about being “a black professor trapped in anti-racist hell.” It’s a fairly long essay, but worth reading as it provides one of the best “insider” views of anti-racist indoctrination around.

To cut to its chase, Lloyd’s pretense of running a seminar for “multicutural” students where they could “think deeply” about “uncomfortable ideas” was taken captive by dogmatic “factorums” running simplistic workshops. Continue reading →

A Greek and an Irishman are sitting in a cafe arguing over whose culture is superior.

The Greek sips on his latte and says, “My people built impressive temples to the sun and moon!”

“Aye,” says the Irishman, “and the Irish discovered the Summer and Winter Solstices.”

“My people were some of the finest mathematicians the world has ever known,” the Greek continues, “and they came up with the measurements we use for time!”

“That may be true,” says his companion, “but the Irish invented the first timepieces.” Continue reading →

The defamation suit by Dominion Voting Systems against Fox News is that rarest of beasts, a viable defamation suit against the media. Then again, it’s not as if Fox News personalities and management didn’t pave the way to overcoming the most brutal of tests, actual malice.

Soon after the election, informed observers at Fox (like those elsewhere) already knew that Trump had lost legitimately. But they chose to conceal this truth on the air, for fear that broadcasting it would anger the channel’s audience and lead to lower ratings: Continue reading →

It’s largely agreed that the Supreme Court is now well aware that it would have been wiser not to have granted cert in Gonzalez v. Google, the case conservatives hoped would enable the Court to rule Section 230 of the Communications Decency Act, or as Jeff Kosseff called it, the “26 words that created the internet.”

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The expectation now, after oral argument, is that there will be no major shift in interpretation, although fears still fester that the Court might say something stupid in its decision that could have disastrous unintended consequences. Continue reading →

In the aftermath of the purely coincidental day when both GLAAD and terminally woke contributors to the New York Times demanded that the paper of record only publish articles and op-eds that adhered to the orthodoxy of transgender activists, the New York Times did something completely unexpected. It grew a pair.

Participation in such a campaign is against the letter and spirit of our ethics policy.

We do not welcome, and will not tolerate, participation by Times journalists in protests organized by advocacy groups or attacks on colleagues on social media and other public forums.

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