Much of the time, a little legal research will produce a ruling that can guide the court and litigants as to how an issue has been addressed in the past. Sometimes, it’s precedential, for what that’s worth these days. Other times, its value is merely persuasive, leaving the decision to stand or fall on its merits. Rarely is there absolutely nothing out there, no court decision addressing an issue at all. But when it comes to Trump, novelty is the new normal.

Special prosecutor Jack Smith has employed a rarely used writ of certiorari before judgment to bring two issues before the Supreme Court in advance of trying Trump for his role in the January 6th insurrection. The question presented was carefully framed. Continue reading →

Kate Cox was the perfect patient to suit the Texas exception for the health of the mother. The circumstances could not have aligned better to test the merits of the law that, it was argued, didn’t ban all abortion, but allowed for medical intervention when the mother’s life or health was at risk. And despite her desire to have a child, her non-viable pregnancy was doomed, removing any cries of murder.

But her doctor had a point. This was Cox’s medical reality, but Texas Attorney General Ken Paxton, no stranger to indictment himself, was of the view that he, and not those damn doctors, got to decide whether aborting Cox’s pregnancy was a crime. Even a judge ruling in her favor wasn’t enough to stay Paxton from control, and so he appealed and obtained an injunction from the Texas Supreme Court, which was apparently unaware that it lacked the jurisdiction to prevent medical harm from coming to Kate Cox while letting time go by. Continue reading →

While a candidate for the Virginia state house, Susanna Gibson’s online past came back to haunt her. Even so, she came within 1000 votes of winning the race, as the Democrats took the house. She’s now raising the question of whether her consent to putting her sex acts online for money in what she would argue was a private forum was consent to the Washington Post to write about it and others to repost video of her having sex and offering to pee for profit for all to see.

I think this is going to continue to happen as millennials age into running for office. There was a 2014 study conducted by McAfee that said or showed that 90 percent of millennial women have taken nude photos at some point. This is something that is very common, especially in the younger generations. Continue reading →

For a brief period years ago, my next door neighbor was a cop. Not just any cop, but an emergency services cop who worked on the SWAT team. Nice guy. Pleasant, friendly, helpful to a fault. Never, during that time, did I hear a mean word, no less a curse, come out of his mouth. And yet, we talked one day about the way in which he executed his duty, and one of the things that stunned me was that his language changed from my good neighbor to a vulgar animal.

When I asked him why, he explained that it had shock value and enabled him to establish “command presence,” the assertion of control over the person he was dealing with. It showed that he was not “fucking” around, but was both very serious and not inclined to tolerate any challenge. As a cop, this was a life or death need, he explained. Any crack in his commanding facade could spell death for him, and he had no plan to die that day. Continue reading →

It was December in the town of Mud Lick, Alabama and Christmas magic seemed to fill the air.

For one, it was snowing. Mud Lick almost never got snow in the winter months, but this year it came in huge, fluffy white droves. The town’s residents were typical Southerners, which meant everyone was enchanted with the thought of a white Christmas for about a day. When the schools closed because buses couldn’t run safely and businesses closed as a result, everyone started getting frustrated with what they called “White Death.”

Both grocery stores had a run on bread, milk and eggs. Teachers at Bear Bryant Elementary moved their classes to Zoom school since that was the way of the world these days. More importantly, everything in what was normally a very quiet rural Alabama town slowed down and quieted so much that if you weren’t a local you would’ve sworn time came to a complete stop. Continue reading →

Bret Stephens got it right, although to be fair, it wasn’t really a hard question.

The presidents of Harvard, the Massachusetts Institute of Technology, and the University of Pennsylvania testified before a House committee on Tuesday about the state of antisemitism on their campuses. It did not go well for them.

Let’s assume, arguendo, that these are smart, capable women, How hard could it be to answer the question posed by Rep. Elise Stefanik, “whether ‘calling for the genocide of Jews’ violated the schools’ codes of conduct or constituted “bullying or harassment”? Yet, not one could bring themselves answer “yes.” Continue reading →

There is a weird dynamic that happens when you attend an elite college. You go in believing you’re pretty darn smart, which is why you’re heading for New Haven instead of Podunk, and as a pretty darn smart person, you’re supposed to get pretty darn good grades. In the olden days, you heard the speech at orientation that began “look to your left, look to your right,” and were informed that one of you will flunk out.

The warning was to tell you that you weren’t in high school anymore and would have to work, and work hard, to make the cut. There would be no free ride. Whether it was accurate or merely a scare tactic, I dunno, but it worked. At my college, they graded on a curve, and we knew only too well that there was a pretty darn good chance we would not get an “A.” But then, I didn’t go to Yale. Continue reading →

The foundational premise underlying campus Title IX sex tribunals’ denial of due process to male students accused of rape is “believe all women.” There is no reason to suspect this premise will change on campus, and it will continue to serve as the justification for precluding the accused students from having a minimal opportunity to defend themselves and challenge accusations against them.

In the mythology of sexual assault “survivors,” women almost never lie. They constructed a litany of excuses for why they can’t remember, tell different, even contradictory, stories or enthusiastically consented at the time, although discovered they were raped a month or year later. But to raise these issues is to violate the basic premise: Believe women.

Except when it comes to being an Israeli woman raped by Hamas. Continue reading →

When an argument for criminalizing conduct begins with the appeal to emotion, “We’re fighting for our children,” it’s almost certainly calling for bad law. But when it comes to “deepfake”** nudes of women, particularly minors, does that change the calculus?

The problem with deepfakes isn’t new, but experts say it’s getting worse as the technology to produce it becomes more available and easier to use. Researchers have been sounding the alarm this year on the explosion of AI-generated child sexual abuse material using depictions of real victims or virtual characters. In June, the FBI warned it was continuing to receive reports from victims, both minors and adults, whose photos or videos were used to create explicit content that was shared online.

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Like so many laws that made sense in one context, the Insurrection Act, as amended, seemed like a good, if not necessary, idea at the time. And like so many laws that gave enormous power to the president, the guardrail was that the American people would never be so foolish as to elect a person to that high office who was so lacking in trust, so antagonistic to the Constitution, democracy and the rule of law, as to abuse that vast power. But that was then and this is now.

I’m talking about the Insurrection Act, a federal law that permits the president to deploy military troops in American communities to effectively act as a domestic police force under his direct command. In theory, there is a need for a well-drafted law that permits the use of federal troops in extreme circumstances to maintain order and protect the rule of law. The Insurrection Act, which dates back to 1792 but has since been amended, is not, however, well drafted. And its flaws would give Trump enormous latitude to wield the staggering power of the state against his domestic political enemies.

Continue reading →