There has been a great deal of discussion about whether Section 3 of the Fourteenth Amendment precludes Trump from being re-elected president. Issues swirl, from whether the president is an officer to why it was specifically omitted. Is he precluded from running or just serving? Must he be convicted or is it left up to the states to decide? There are “expert” opinions all over the place, meaning that the Supreme Court’s decision can legitimately go either way.

But what if the Court rules that a state can decide to reject Trump as a candidate and not put his name on the ballot? Continue reading →

There are few worse jobs in Washington than representative. You’re one of 435, so it’s not as if any individual congressman carries much clout. You have a two-year term, so the day after you win election you’re back to begging for money to pay for the next campaign. Why would anyone want such a job?

Joe Cohn told me it was because he’s dedicated his career, indeed his life, to trying to make this a better country, and he’s willing to take the hit for the rest of us. I tried to talk Joe out of it, but he made up his mind. Joe Cohn is running for Congress in the Third Congressional District of New Jersey. Continue reading →

At Volokh Conspiracy, Jon Adler provides four “concerns” about what has become of Chevron Deference, the doctrine that courts should defer to the “expertise” of federal agencies executing the law.

First, in practice, Chevron is often used to uphold agency interpretations that have little to do with allowing agencies to exercise their delegated authority to make policy judgments based upon agency expertise.

Second, despite Supreme Court decisions suggesting that ambiguity alone is insufficient to trigger Chevron deference, lower courts often fail to engage in any meaningful “step zero” analysis in order to make sure that Congress had delegated the relevant authority to the agency. Instead, Chevron has become an excuse for courts to abdicate their responsibility to resolve legal questions in favor of agencies. Continue reading →

At Sentencing Law and Policy, Doug Berman notes a study questioning why jury verdicts in criminal cases are rendered as general, as opposed to special. When the judge orders the defendant to rise to hear the jury’s verdict, and the lawyer stands as well as the client should never stand alone, they suffer the longest, most intense minutes in a criminal case. Everything up to that point is foreplay. This is the climax. You stand there, frozen, awaiting the jury foreman to utter the words “not guilty.’

But why only the ultimate conclusion and not a finding as to each element of the offense? Continue reading →

It is Groundhog Day in the year 2024.

For the first time in the company’s history, no one named McMahon is in charge at World Wrestling Entertainment. And for the first time in forty years, Vincent Kennedy McMahon, the guy who essentially nationalized professional wrestling in America, has nothing to do with the company that made him a billionaire.

This whole damn situation is wild and it’s only going to get more interesting as time goes on. Continue reading →

Not being a gamer (assuming you don’t consider ‘striods a serious game anymore), Megan McArdle’s explanation was new to me, even though it may not be new to many of you.

In some respects, a good society is like a good game. Both have well-defined, well-designed rules that allow for the pleasures of companionship alongside the thrill of competition. Both require their participants to have virtues, such as honesty and good sportsmanship, that temper the naked lust for victory. And both offer everyone a fair chance of winning and keep the cost of losing bearable.

Continue reading →

It was a dumb fight to pick for a business that relied upon the largesse of the state and for a state that relied upon the largesse of a business. In the heat of the moment, Disney employees pushed for the company to speak out against Florida’s “Don’t Say Gay” bill. CEO Bob Iger Chapek succumbed to pressure. But in response, Gov. Ron DeSantis decided to teach Disney a lesson by seizing control of the “special tax district” that was DisneyWorld.

Disney sued DeSantis and others, arguing that the governor’s actions were in retaliation for its speech critical of his law and thus violated its First Amendment rights. Northern District of Florida Judge Allen Winsor, a Trump appointee, tossed the suit. Continue reading →

The Supreme Court has held that child pornography is an exception to the First Amendment, and few would argue otherwise. But it also limited the exception to actual kiddie porn, not fake computer generated porn where no child was sexually abuse.

The court held, 6 to 3, that the Child Pornography Prevention Act is overly broad and unconstitutional, despite its supporters’ arguments that computer-generated smut depicting children could stimulate pedophiles to molest youngsters. Continue reading →

It’s foolish, bordering on dangerous, but not having found anything compelling to write about today, I’m closing my eyes and hoping for the best. What’s on your minds? Please (and I mean this with utmost sincerity) don’t spew nonsensical conspiracy theories (looking at you, Vivek) or right-wing propaganda. Try to focus on real things, not the crap made up or believed by people whose tin foil hats are too tight.

I’m relying on sane and/or knowledgeable people to take the initiative here to debunk those whose views are considered too idiotic for reddit. There’s a reply button. Don’t be afraid to use it.

So what’s on your minds?

*Tuesday Talk rules apply. Please don’t make me regret this.

Sure, an award of $83.3 million, or $148 million, or even more than a billion, is a lot of money, assuming it’s payable and paid. So why then are defamers unrepentant to the point of walking out of court and repeating the very defamatory statements that just cost them bigly? Why do the verdicts not “correct the public record” but rather give rise to yet further debate and accusation about the truthiness of the statements? Why is there no social disgrace to being held a lying liar telling lies?

Several examples show a stark break from the past. For most of the long history of libel law, a jury determination that material was false and defamatory settled the question, and defendants facing that liability would take every possible step not to repeat the lie — both because it would be socially reprehensible to do so and because the risk of punitive damages was a powerful deterrent unlikely to be overcome by any stronger incentive. In short, libel law used to stop the libel.

Continue reading →