Max Kennerly Profile picture
Trial lawyer by day. Cookie monster by night.
Adam Smithee Profile picture porteredly - we know who T is, Vote him out. Profile picture Marilia Coutinho, Ph.D. , the Baffled Immigrant Profile picture Umed Mehta #a citizen 🇮🇳 Profile picture Joshua Cypess Profile picture 5 added to My Authors
20 Oct
Let's talk for a minute about the Pennsylvania election case.

It's a win for now, because a 4-4 tied SCOTUS vote means the lower court (here, PA Supreme) order stays intact.

But it's terrifying that 4 Justices thought otherwise, and might soon be joined by a 5th (Barrett). /1
Two basic, longstanding principles of law:

first, states control their own elections, though Congress can impose conditions;

second, state courts interpret their own state laws, including state constitutions.

That should've ended this case. Excerpt from PA Dems' brief.
5 Republican Justices already blasted a hole in Congress's power to regulate elections in Shelby County v Holder, invalidating Congress's reauthorization of the VRA. Pics 1 & 2 from Ginsburg's dissent.

In the PA case, the Republicans' brief sang a different tune. (Pics 3 & 4) /3
Read 8 tweets
17 Oct
I was wondering if this was one of those "applying precedent leads us to this unfortunately result..." cases but, no, the reality is that Barrett plowed through state law and a jury's factual findings to cheat the plaintiff out of her fair compensation. /1
The plaintiff's appellate brief is available here:…

The facts are recounted on pages 16-21 of the PDF. They're awful. The guard repeatedly raped her at the prison.

The issue was whether the county had to pay for the $6,700,000 jury verdict. /2
Consistent with Wisconsin law, the jury had already heard ample evidence about whether the rapes were within the guard's "scope of employment," and they had decided the answer was yes. Excerpts from plaintiff's brief. /3
Read 9 tweets
10 Oct
A good article about the openly activist nature of Barrett's "originalism." We've already seen it in practice from her circuit court opinions, where she uses it—like all "originalists"—to produce the result she wants. For example, let's talk about the Second Amendment.
In DC v Heller, the "originalists" faced a problem: during the constitutional convention, there were several proposals (like from NH's delegation and minorities in MD, PA & MA) to protect individual gun ownership. They were all rejected.

Excerpts from Stevens' dissent. /2
Scalia's response, writing for the majority, was that it was stupid to look at rejected constitutional proposals. Further, the *rejected* NH/MD/PA/MA proposals actually somehow represented a prevailing view of an essential legal right the Framers didn't bother to write down.🤷‍♂️ /3
Read 5 tweets
6 Oct
Putting aside the 15-year-old on TikTok, yes, Trump's condition is still quite worrying. COVID's course is slow compared to the flu. Dyspnea often develops 4 to 10 days after symptom onset, and patients can still deteriorate after that.…

In the most recent remdesivir trial (which involved early-stage patients with SpO2 >94%, which it seems Trump went below), one-third of patients who took the drug were still hospitalized 11 days later. Around 10% were still there a month later.…

The decision to give dexamethasone is still a big mystery. Either Trump had 'severe' COVID-19, or he has jumped the gun and might suffer for it, including the known effect of immunosuppression. Neither speaks well for his course going forward. /3
Read 5 tweets
29 Sep
I quibble with that, too. Trump's finances from 2008 onward aren't "mundane." He defaulted on the only bank lending him money, then obtained >$500m in credit despite inadequate collateral, then liquidated >99.5% of his stocks & bonds. That's unusual. /1
Litigation is common in business. The surprising part here is how, as of 2008, Deutsche Bank was the only bank that would loan him money (and only with a personal guarantee), but he nonetheless defaulted. Standing alone, it makes little business sense. /2…
The 2008 sale of Trump's Palm Beach home to the bad guy from TENET has always been odd, but perhaps Rybolovlev is just bad with money. 🤷‍♂️ Either way, it coincides with a sharp rise in Trump condos being bought through shell companies and/or with cash. /3…
Read 14 tweets
27 Sep
Federal income taxes paid in 2017 (jointly with spouse):

Joe Biden - $3,742,974
Kamala Harris - $516,469
Bernie Sanders - $343,882
Elizabeth Warren - $268,484

Donald Trump - $750
Of course, we did not need a NYTimes investigation (plus I presume some whistleblower) to find tax returns for Biden, Harris, Sanders, and Warren.




For people wondering, Biden's income history looks like this. The big payday was from his post-VP book sales and speaking engagements:…
Read 5 tweets
24 Sep
What was the point of DOJ's vague statement with no information about what happened—except that the 9 ballots were for Trump—and no criminal charges? Just to undermine confidence in mail-in voting and give Trump's political team something to promote as a conspiracy theory? ImageImage
Yup, already gone:…

Great work, DOJ, really instilling confidence in your commitment to justice and the rule of law.

Back up, slightly modified about the status of the ballots. Still no legitimate purpose for this, except to scare mail-in voters and give the Trump political team some gristle for conspiracy theories. Discarded how? Any sign of intent/accident? No criminal charges?

Come on. Image
Read 4 tweets
22 Sep
The ACA case is a perfect example: the plaintiffs don't have standing ($0 tax doesn't affect them), their theory is absurd (Congress can't zero-out a tax?), and the remedy is ridiculous (the $0 tax is plainly severable from pre-existing condition protections). And yet... /1
... nine Republican-appointed judges who have reviewed the ACA case have approved this thrice-ridiculous claim. A district judge adopted the whole thing. Two circuit judges adopted the first two parts, said the third part needs more analysis. Six more circuit judges agreed. /2
There's no way to reconcile the ACA lawsuit with basic, longstanding doctrines in the law like standing and severability. The case keeps winning so Republican judges can enact policy changes voters hate and Congress rejected. /3……
Read 8 tweets
30 Aug
This is horribly dishonest. "Only 6%" would refer to COVID deaths where the death certificate had literally nothing but "COVID-19." It means the pathologist / medical examiner was lazy and didn't even include things COVID causes, like "respiratory failure" or "cardiac arrest." /1
Table 3:…

If a person with no pre-existing conditions got COVID-19, developed sepsis, went into respiratory failure, had a heart attack, and died, and the death certificate listed all that, they wouldn't be in the "only 6%." They'd have 3 comorbidities. /2
If you want to roll with "only 6%," you've got to explain something else.

42% of Americans are obese. What percent of COVID-19 deaths involved obesity?


What?! How?!

Simple: the chart merely lists what medical examiners chose to put on death certificates. /3
Read 6 tweets
18 Aug
Great, but details matter here. What equipment was removed, and how has that affected handling? Is DeJoy rescinding his policies that let mail sit on the floor unsorted overnight and prohibited morning sorting before deliveries? Will he order all election mail be sorted same-day?
It should be extremely easy for USPS to explain why expensive equipment was found broken down in a parking lot: here's the facility's workload, what's wrong with this machine, what we're doing next, etc. That they won't is an admission it was improper.
And since Republicans have moaned for years to "run USPS like a business," fine: if a business owner (that's us) found millions of dollars of equipment smashed up in a parking lot and no one could explain why or what effect that was having, every manager involved would be fired.
Read 4 tweets
14 Aug
This is generally correct—it's quite unlikely Cravath would sign up to pursue a frivolous antitrust claim—but there is only so much that we can infer from their involvement. There's three main issues here: frivolity, conflicts, and the business side of things. /1
We can infer that Cravath believes Epic / Fortnite's claims have merit under current law *or* that there's a good faith argument for changing current law. Frivolous claims are prohibited, but a lawyer can bring a claim they don't think will win so long as it's in good faith. /2 Image
The conflict issue gets complicated. Cravath can't represent directly adverse clients (duh), but can they take a position on behalf of one client that conflicts, in a general sense, with those of other clients? The answer is "it depends." /3 See:… Image
Read 6 tweets
28 Jul
The GOP's liability immunity bill would make it impossible to sue negligent businesses, while also flooding the federal courts with lawsuits by businesses against people they infected, plus lawsuits by AG Barr against unions, lawyers, and doctors. A thread:
The Act applies to any personal injury case relating to coronavirus which occurred "on or after December 1, 2019 and before the later of October 1, 2024 or the date on which there is no declaration by [HHS Secretary]" relating to coronavirus. All cases must go to federal court./2
The GOP bill creates a cause of action so businesses can sue (and get attorney's fees from) anyone who makes a claim, even if by letter. AG Barr gets to sue unions, labor activists, lawyers, doctors—everyone involved in coronavirus claims. "Meritless" isn't defined anywhere. /3
Read 11 tweets
22 Jul
Karen Bass is great, but IMHO the argument made here—that Bass's low profile nationally makes her the most resistant to Trump attacks—is backwards. Trump's #1 tactic is to suck up media oxygen with outlandish claims. He'd have a chance to set first impressions about her. /1
Trump will call Bass a radical antifa BLM socialist police-military-flag-hating blah blah blah. It'll be all the same predictable crap he's always pulling, but it'll get media attention. The question is how much of that seeps into public consciousness. That's hard to predict. /2
Which is why I think the "safe" choices are either Warren or Harris. Trump's attacks on them would be exceedingly boring to the media and likely voters, covering the same ground covered months ago. Such a retread will also feel uniquely outdated in light of the pandemic. /3
Read 4 tweets
14 Jul
This is hardly a model of clarity—SARS-CoV-2 antibodies are potent and vanishing? Vaccines have boosted prospects and reduced hopes?—so let's look at the studies themselves.

Short story: generally good news for a vaccine, generally bad news for herd immunity. /1 ImageImage
Do we usually retain immunity to coronaviruses? Researchers who have collected blood samples since 1985 took a look at 10 subjects and concluded immunity lasts likely just 6 to 12 months. Perhaps this is why there's no herd immunity for common colds. /2… ImageImageImage
That said, when it came to the original SARS-CoV (2002–2004), the antibodies persisted much longer—84% still had neutralizing antibodies 36 months later. But, like the authors ominously warned in 2007, we don't know what that means. /3… ImageImageImage
Read 11 tweets
7 Jun
Samuel did the main study underlying the #8cantwait policies, the subject of much debate lately. I wanted to see if his results could be replicated.

Spoiler: in cities with 0-2 of the policies, you're 44% more likely to be shot by police than in cities with 6-8 of them.
I'm replicating, not reproducing, so I'm intentionally not doing what he did. He did a binomial regression for each policy compared to police shootings from 01-JAN-2015 to 15-JUL-2016. I'm doing a hazard ratio for 01-JAN-2018 to 05-JUN-2020. Different data, different analysis. /2
The only part I relied on Samuel / 8cantwait for is their list of the current policies in place. He is quite right: this info is very difficult to obtain. Most departments do not make it easy. I have no reason to doubt their info. Here's an example. /3
Read 11 tweets
21 May
I saw enough today about Jia Tolentino's parents and "human trafficking" to pull up the docket.

TLDR: the "trafficking" aspect was so weak the judge blew it up mid-trial, but GW Bush's buddy wanted big numbers, so he kept going to extract a plea on a single catch-all charge. /1
The case was brought in the Western District of Texas in 2004. Here's the bio for the guy who was US Attorney throughout the case, a top advisor to GW Bush going back to 1995. Now he's at John Ashcroft's firm doing "internal investigations" and "white-collar criminal defense." /2
The document that keeps getting quoted is ECF 140, a superseding indictment from 05/24/06. It's ugly, and filled with charges of "alien smuggling" and accusations of ripping off the teachers brought in from the Philippines.

These allegations failed completely at trial. /3
Read 17 tweets
16 Apr
This is appalling reasoning, but we also need to discuss something else: that's not what The Lancet said, and the underlying source for all this is <drumroll> the very same WHO / Imperial College model that Fox News hosts and other right-wingers have been complaining about. /1
Here's The Lancet:…

Here's the WHO / Imperial College model they link to:…

A "2-4%" reduction was modeled for the UK doing nothing but closing schools for 3 months. It's not a model of what would happened if we re-opened schools. /2
That same report produced the dire projections which prompted many of the shut-down orders in the first place. As it showed, even a 5-month intervention wasn't enough to get cases below US capacity.

And now Fox News is outrageously using the study to push re-opening schools. /3
Read 4 tweets
27 Mar
It's just pure, unvarnished incompetence, and the harm might fall even more heavily on Trump's own supporters. Ventilators & ICUs aren't like corn or firearms, they're a distinctly urban phenomenon. 94% of ICU beds are in metropolitan areas. Let's take a look. /1
Merge these two together and you get a political map of COVID-19 treatment capacity (third pic). Everywhere that's orange is a county that voted for Trump and has zero ICU beds. Pink counties voted for Trump and don't even have hospitals. The numbers per capita are bad too. /2
Even if we focus on just a few swing states and on just the biggest counties, the Clinton-voting counties typically have more than 1 ICU bed per 1,000 residents aged 60+. The Trump-voting counties rarely do. Some big Trump-voting counties in Michigan have no ICU beds at all. /3
Read 4 tweets
23 Mar
Lloyd's a billionaire and Senior Chairman at Goldman Sachs. He could easily employ a team of actuaries, biostatisticians, economists, epidemiologists, hospitalists, infectologists, and statisticians to price out various cost/benefit scenarios.

But he won't, because...
...the economic numbers blow up. Let's do a thought experiment. Assume:

(a) we still do enough social distancing to reduce infection rates by a whopping 75%;

(b) only 20% of infected people need health care services, and only 30% of those need an ICU.

What happens then?
The healthcare system collapses. Consider this article in the NEJM today:…

What I described above is the "severe" scenario. We'd have 3,840,000 patients needing to use 85,000 ICU beds, 160,000 ventilators, and 25,000 respiratory therapists (per shift).
Read 9 tweets
22 Mar
That stupid Medium post is going mainstream. Okay, fine, let's go through some data. Why listen to me? Two weeks ago I was at Johns Hopkins for a deposition of one of their bio-statisticians. Critically reviewing medical research data and communicating it is part of what I do. /1
How bad is COVID-19? Here are the raw numbers, by country, for deaths per case. In America, about 1.5% of people confirmed to have it have died. That's in line with the latest analysis of Wuhan (1.4% of symptomatic cases died).

It's deadly, but it spreads like a common cold. /2
How many people in America have SARS-CoV-2? A team at Notre Dame estimated ~22,876 (7,451-53,044) as of March 12. A team at UMass estimated ~54,100 (5,600-125,300).

That was 9 days ago. It has likely doubled since then. Or doubled twice since then. Maybe even three times. /3
Read 9 tweets
24 Feb
Sanders's 2017 & 2019 proposals said, "There needs to be vigorous debate as to the best way to finance our Medicare for All legislation." If not now, when? He left Warren dangling when she outlined how to do it. If he won't fight for the hard parts of M4A, it won't happen.
"Medicare for All" as a concept is a winning message among Dems and independents. But that support is quite susceptible to messaging, and much of it seems predicated on misconceptions, like people keeping their current plans. M4A is vulnerable to "Harry & Louise" attacks. /2
"Harry & Louise" helped kill Clinton's healthcare reform. And like @paulkrugman predicted when Harry & Louise oddly showed up again to promote the ACA, the health insurers used their goodwill to kill the public option. They know how to play this game. /3
Read 11 tweets