There are two things right and left agree upon. The first is that censorship of the internet is critical to our survival. The second is that Judge Terry Doughty’s injunction in Missouri v. Biden is over and under inclusive, or to put in lay terms, isn’t very well framed. So there’s consensus? Not really, since other than agreement about these two things, they come out on opposite sides of the issues.

That much is true by definition. Doughty’s injunction generally prohibits various agencies and officials from “meeting with social-media companies,” “specifically flagging content or posts,” or otherwise “urging, encouraging, pressuring, or inducing” the “removal, deletion, suppression, or reduction of content containing protected free speech.” The injunction also bars the defendants from “threatening, pressuring, or coercing social-media companies” toward that end and from “urging, encouraging, pressuring, or inducing” them to “change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech.”

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The head of Stanford’s Supreme Court Litigation Clinic, Jeffrey Fisher, raises a very important point. It may take five votes to win at the Supreme Court, but it takes four votes just to make it on the docket. And the right/left split is 6-3, leaving the liberal/progressive side one vote shy of  a certiorari grant.

Why does this matter? Because the rule of law requires the court to do more than simply adhere to precedent when deciding cases. It also requires the court to reprimand lower courts when they refuse to follow Supreme Court decisions. If it doesn’t, those rulings are in danger of becoming dead letters, precedents that lose their force without being overruled.

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If one employee can’t get along with others, it creates two problems. The first is an unhappy workplace, where the employee who is deemed the cause of the problem makes other employees unhappy, maybe even miserable. While the assertion that happy employees are productive employees may not be quite as accurate as some believe, miserable employees can be both unproductive and a time-consuming source of needless drama and angst. Continue reading →

There are no numbers to tell how pervasive the problem is, or even what exactly the problem is. It’s not that there is reason to doubt it’s a problem, that women real estate agents are exposed to male buyers and sellers in vacant houses and apartments where the men can sexually assault or rape the agents. Then there are also men who flirt or make jokes they find humorous which the agent does not. Some decry this as sexual harassment, though others will argue that it’s hardly on the same level as sexual assault.

Still, women real estate agents want to be protected. Continue reading →

[Ed. Note: The following is reprinted with permission from Judge Milt Hirsch’s “Constitutional Calendar.” Judge Hirsch sits in the criminal division of the 11th Judicial Circuit Court in Miami-Dade, Florida. Before being elected to the bench, he was a board member of the National Association of Criminal Defense Lawyers and president of FACDL Miami.]

If you’re a judge or lawyer about my age – and yes, there are still a few people and several sequoia trees that are about my age – I know exactly why you decided to become a lawyer.  In fact, if you’re about my age, I know exactly when you decided to become a lawyer. Continue reading →

Is it true that progressive prosecutors have failed to create the change they promised? That’s almost impossible to say, both because some have been far more successful than others and because there’s no metric by which to measure success. Some district attorneys have opened bureaus to review old cases that have resulted in exonerations or, if not quite exonerations, at least concessions that convictions were wrongfully obtained, resulting in reversal and dismissal. Others have prosecuted cops for everything from rape, and theft to murder, where nary a cop was prosecuted before.

Is this not a significant step forward?

And yet, two prawfs assume it’s been a bust. The reason? Prosecutorial mutiny. Continue reading →

[Ed. Note: See here for Part I and here for Part II.]

If one called Belle Reeve Penitentiary in Louisiana a “shithole,” one would do no favors for shitholes. A better description of Belle Reeve might be “if a shithole and a third world country run by a tyrannical despot had a baby.” Often spoken of by guards as a black site where the most dangerous criminals were held by the federal government for participation in a top secret series of near-suicidal missions because handlers said so, Belle Reeve was an intimidating structure of concrete and black metal in the south of the state. Continue reading →

At VC, noted ‘nymophobe (just kidding) Eugene Volokh runs through his Judicature article on the choice of pseudonyms. Most of us take for granted that pseudonymous litigants will use the name “John Doe” or “Jane Roe,” but that gives rise to a problem.

To give just one example, there are six Doe v. Trustees of Indiana University cases just from 2020 to 2022 that have yielded opinions available on Westlaw, all in the same field (higher education law). These seem likely to be joined by new cases each year, and they will remain potentially citable for decades to come. Continue reading →

Being a fan of history, I often enjoy Heather Cox Richardson’s discussion of current events in a historical context. But she’s a much better historian than lawyer, which makes sense since she’s not a lawyer, but doesn’t seem to give her pause to consider whether she should incorporate  her legal insights into her daily newsletter.

That the injunction claims to protect free speech by forcing people to stop communication was not lost on observers. Harvard constitutional law professor Laurence Tribe called the injunction “blatantly unconstitutional” and noted: “Censoring a broad swath of vital communications between government and social media platforms in the name of combating censorship makes a mockery of the first amendment.” Tribe joined law professor Leah Litman to eviscerate the “breathtaking scope” of the order.

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As I’ve said already, I’m a believer in the proposition that a racially and ethnically diverse student population serves a valid pedagogical purpose. And indeed, it was the purpose in Justice Lewis Powell’s plurality opinion in Bakke, which served as the closest thing to a majority opinion, to sustain the constitutionality of affirmative action under strict scrutiny.

Josh Blackman argues that the Supreme Court’s decision in the SFFA cases reveals the diversity rationale to be a sham that has outlived its purpose and is now a dead letter. Was I wrong? Was I that wrong? Continue reading →