In a curious twist of logic, Josh Blackman recounts when Nino Scalia was asked which of his decisions he was most proud of.

When I was a 2L, I attended an event on Justice Scalia’s book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

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Brauner’s Country Market was a bit of a staple in Alabama life, especially for the folks in Driftwood County. Started by an Amish family that made their way south for a better life, the market was a sort of country store offering various handmade knickknacks and old time remedies for various ailments.

The most talked about feature of Brauner’s was the deli counter. Here one could purchase all manner of freshly made sandwiches served on bread baked that day. Such sublime sandwich artistry was highly regarded in Mud Lick, and it was these sandwiches that had Sheriff Roy Templeton at the door of Brauner’s with several slips of paper in hand—orders from other men and women at the Sheriff’s Department. Continue reading →

If there were any justice a criminal defense lawyer wouldn’t mind being smacked, fairly or not, it’s Sam Alito. As previously noted, the worst words at the start of a Supreme Court opinion are  “JUSTICE ALITO delivered the opinion of the Court.” No words assure that what follows will be bad. And yet, even the dreaded Justice Alito should have the opportunity to defend himself. Whether his argument prevails is another matter, left to the discretion of the reader. So was his Wall Street Journal op-ed designed to pre-empt the coming accusations of ProPublica wrong?

Josh Blackman comes to the defense of Alito’s op-ed.

Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito’s rejoinder in context. And Alito’s concerns proved prudent.

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Tim Cushing does an excellent job of saying what needed to be said about the Third Circuit’s decision in Fenico v. Philadelphia.

The First Amendment protects speech, even the horrible stuff. It can’t protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

It’s not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it’s dealing with its own employees. Continue reading →

To be fair, Hunter Biden’s plea deal, two years probation for failing to timely pay taxes for two years, even though already paid up, was pretty sweet. Even sweeter was the deal of diversion for lying on the form to obtain a handgun that he wasn’t an addict. It was a good deal. A really good deal. But with good counsel, even really good deals happen.

But what about Garland, the attorney general appointed by none other than Hunter Biden’s daddy? The investigation and prosecution of Hunter Biden was under the auspices of the United States Attorney for the District of Delaware. His name is David Weiss. He was appointed not by Biden, but by Trump, in 2018. Biden did not replace him with a new United States Attorney of his own choosing, as he could, because he sought to avoid the appearance of exactly what’s running through the overly fertile minds of conspiracy believers. Continue reading →

Yesterday, Trump gave another confession. He didn’t mean to, I suppose, but he lacks the capacity to tell the difference between something that legally damns him and something that just makes him look foolish and incompetent on the telly. There is an increasingly strong likelihood that Trump will be convicted at trial for his retention of national security papers and obstruction of justice.

In anticipation of this increasingly likely scenario, some have been calling for the pardon of Donald Trump. Continue reading →

No one is arguing that Duane Owen wasn’t a monster who committed horrific crimes. Whether that means that the death penalty is the right punishment is another matter, perhaps best argued based on opposition to the death penalty than that Owen’s crimes were not so horrible that execution wasn’t warranted. As monsters go, Owen’s actions would certainly qualify.

Owen was convicted for the 1984 rape and fatal stabbing of teenager Karen Slattery and for the rape and killing of 38-year-old Georgianna Worden in Palm Beach County.

It should be noted that Owen was convicted in 1984, nearly 40 years ago. Whether it makes any sense to execute anyone for a crime committed 40 years earlier is another good question. Yet these were not the foremost issues that outraged the ACLU, which felt compelled to make a public assertion of the harm suffered by Duane Owen. Continue reading →

In one sense, it’s a meme. But in another, there’s a good deal of truth in the assertion that Mario Puzo’s The Godfather teaches all the life lessons one needs to know. And in light of the new Academy of Motion Picture Arts and Sciences “rules” for diversity, it does so again.

Starting with the March 2024 awards, movies will not be considered for a Best Picture nomination unless they feature a lead or significant supporting character from an “underrepresented racial or ethnic group,” have a main storyline that focuses on an underrepresented group, or at least 30% of the cast comes from two or more underrepresented groups (women, ethnic minorities, LGBTQ or the disabled).

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Ten years ago, maybe even five, no one would have blinked at the bold assertion that there are only two genders. Some now argue to the contrary, and perhaps have made a legitimate argument that there are more than two and that the assertion that there are but two genders either “erases” their existence or, to put it more aggressively, is an act of violence against them. Massachusetts district court Judge Indira Talwani agreed.

The First Amendment has long been understood to protect messages on kids’ T-shirts in school, as long as they weren’t vulgar or likely to cause a disruption. For example, a federal appeals court ruled that a kid had the right to wear a T-shirt saying, “Be Happy, Not Gay.” But that was back in 2008, a less woke time, when judges were not as eager to sacrifice free speech rights at the altar of political correctness. Continue reading →

Hello, fellow movie lovers! It is I, your humble humorist, and today I’m attempting something I’ve never done before: a review of four movies at once. This week we’re taking a ride through the cinematic universe of John Wick. Buckle up, because this is going to be a bumpy and extremely bullet-ridden journey through all four installments of the Keanu Reeves-led action franchise.

I’ll get the pleasantries out of the way from the start. These are probably my favorite action films of the past decade. Make a point to see them. If you haven’t, you’re missing out on some of the most intense action scenes to ever grace celluloid. But let’s be completely honest here— the biggest positives of the series are Keanu Reeves making it cool to wear dark suits and dress shoes again, and John Wick taking out bad guys like he’s nonchalantly strolling through a park. Continue reading →