this is why gag orders on criminal defendants implicate the 1st Amendment.

I realize folks feel Trump is sui generis, but imagine if a prosecutor falsely accuses you of a crime (which happens ALL THE TIME) and you having no right to tell the public the witnesses aren't credible.

https://twitter.com/JoyceWhiteVance/status/1779196768325882039

I GET why people don't want to extend that right to Trump when he has all these supporters who could be riled up to intimidate a potential witness.

But there's a principle here whatever you want to say about former President Trump.

Let's talk about the last time a President brought a questionable immunity claim up through the courts, Clinton v. Jones. It makes an interesting contrast to the Trump case. 1/ So some background. Bill Clinton was a brilliant politician. He also had what one of his aides called a "zipper problem" and what another one (a female aide, to be clear) called "bimbo eruptions". He wasn't faithful to Hillary in Arkansas and had a number of girlfriends. 2/

This "the courts are slow-walking Trump's immunity claim" narrative (for the most part coming from non-lawyers who don't understand anything about the system) is truly pissing me off. So here's the real story. 1/ President Trump was indicted last August. Notably that's the biggest slow walk of all- an August 2023 indictment for a January 2021 alleged crime, and 10 months after Jack Smith was appointed. But Smith is a saint among men and "on our team", so he cannot be criticized. 2/

I've been thinking a lot about how quickly at least the official Republican Party flip-flopped on IVF. I think it tells you something about a certain kind of political issue. I am going to call these Vampire Issues because they can't be exposed to sunlight. 1/ A Vampire Issue is an extremist position that a political party takes to please some very small set of people in its coalition, because the country is not paying attention and it will shut the group up/cement their support. 2/

Maybe I will write about this in detail (could even be a law review article, although IDK if I have the bandwidth), but the District Court which thought it was helping Harvard with its finding of no anti-Asian discrimination took the SFFA case in a much worse direction as Con Law The elements of the argument:

1. The District Court and Court of Appeals were REALLY biased towards Harvard, and the finding of no anti-Asian discrimination was, given the "personal score" stuff (which was CLEARLY discriminatory), obviously an attempt to help Harvard on appeal.

You are going to hear a bunch of takes this week about how the Supreme Court is "required" to take Trump off the ballot.

Whether or not you buy the argument that he's disqualified, remember this-- nothing is "required".

SCOTUS can do whatever it wants. 1/ Moreover, even if there's some notion that plain text should constrain SCOTUS from considering pragmatic issues (such as how half the country would react to disenfranchisement), this case is NOT about plain text. Section 3 is an old, very ambiguous, seldom invoked provision. 2/

having listened, on @ProfDBernstein 's recommendation, to the Federalist Society's excellent, diverse (no pun intended) panel on affirmative action, one thing I think a lot of people don't get is there really is a lot of anti-Asian animus in college admissions. I think it evolved in other words, i don't think it started out "there's too many Asians, let's screw them over". Rather, I think that people who started out open minded and tolerant ran into a situation where they couldn't reach their other goals without discriminating against Asians.

So after the latest Clarence Thomas revelations, I have a modest proposal which John Roberts et al. won't like. But I'm convinced it is fully constitutional.

We should make serious Supreme Court ethical violations criminal offenses. 1/ So here's the basic problem. The Constitution grants life tenure to justices subject only to impeachment. And further, partisan political polarization means NOBODY will ever impeach the other party's justices.

And that leads to the Court having complete impunity. 2/

just once i'd like to see the NGO sector pressure Hamas to offer concessions that would be attractive to Israel to induce ceasefire.

E.g., if Hamas said "we will release the hostages, fill the tunnels, locate in the open, and offer up the planners of 10/7 for a war crimes trial"

https://twitter.com/JoshuaPHilll/status/1733483592532029687

obviously NGO's won't say "we support Hamas", but they definitely and conspicuously don't want to push Hamas to give up any capability to launch future terrorist attacks, because a lot of folks in that sector hate Israel and think Hamas is engaging in justified resistance.

i think it rather obvious that a lot of academia got caught with its pants down when its very under-reasoned "words are violence" theories started to be used against Lefty pro-Palestinian revolutionary-type students, and there's a lesson here about insisting on scholarly rigor. because a lot of this was just academics saying a bunch of stuff in echo chambers and never subjecting it to real challenge.

When i was at the ACLU the law student interns had better debates about the protection of hate speech than many scholars faced.

So I know I am supposed to hate the new Twitter suit against Media Matters, but having read it-- it looks to me like it states a cause of action for disparagement and maybe for interference of contract as well.

To understand it, read this case:

1/casetext.com/case/suzuki-mo… The Suzuki case arose out of a sensationalized report in Consumer Reports about the Suzuki Samurai, a small Jeep Wrangler-style SUV, which Consumer Reports claimed had the tendency to roll over. The thing is, CR rigged the tests to make the rollovers more likely. 2/

Since every time I mention baseball analytics I get tons of very emotional pushback from the supposedly rational devotees of it, I ought to do a thread that sets out my actual position.

Here's a graph on complete games- that's where a starting pitcher goes all 9 innings. 1/ What happened? Well, at least the standard story (there's another story, which I will briefly cover later), is that managers used to leave their pitchers in too long. Then statistical experts (baseball fans who loved numbers) showed this was bad strategy and they changed. 2/

Want to know how pervasive sexual harassment was in the workplace in the 1970's? This passage is from a book about the history of ABC Sports. The writer doesn't even see anything remarkable about it: 1/ "It was common practice whenever [very married] Howard [Cosell] came to the main floor of ABC Sports for him to make some remark about one of the secretaries." 2/

A few general points about the Middle East and US foreign policy:

1. Some conservative Israel supporters love to claim that the Hamas position is the "Palestinian" position. This is wrong. A lot of Palestinians are scared of Hamas because Hamas are violent terrorists. 2. Israel can't be expected to do anything other than defend its civilians when under attack. Hamas likes this, because it wants a permanent state of war with Israel. Bibi Netanyahu benefits from this due.

Normie Israelis AND Palestinians do not.

The fact that we still require young males to register for the draft is a classic example of something we don't talk enough about in politics- the fact that politicians will not repeal bad statutes if even a small minority of the electorate will get pissed off at them for it. Ever wonder why, e.g., a lot of states didn't repeal their sodomy statutes (pre-Lawrence) even though they weren't arresting gay people, and won't repeal them now even though they can't?

Ever wonder why Connecticut even had that contraception statute struck down in Griswold?

We're going to be analyzing Students for Fair Admission for years. I want to talk about something that both sides of these controversial cases do that I think erodes BOTH the truth seeking functions of law AND academia. It involves something called "mismatch theory". 1/ "Mismatch theory" is the controversial claim that I think originated with a law professor, Richard Sander, who claimed affirmative action programs basically set recipients up for failure, by putting them in tougher schools when they could succeed in slightly less elite ones. 2/

The Democrats very much need to remember that affirmative action is not popular. Even in here Lefty California it got killed at the polls during an election with high Democratic Party turnout.

Politicians should stop mentioning it and probably shouldn't even defend it. 1/ People who support affirmative action aren't going to vote Republican. And people who oppose affirmative action, who include a lot of liberals and moderates, could get turned off by this issue.

And more generally, even supporters are not passionate about this issue. 2/

one important thing to remember as the Right crows about ending affirmative action:

We as a society are responsible for the lousy educations some of our poorest and most marginalized children receive. We are also responsible for the unsafe neighborhoods they grow up in. 1/ We don't do much about this, and part of the dirty little secret as to why is we want our own kids to have a leg up. US elites, including most people who comment on SCOTUS decisions, would get a smaller portion of the pie if we really fought racial discrimination in education. 2/

i very much agree that the original understanding of the 14th Amendment permitted preferences for former slaves (and, reasonably, their descendants) and this is a powerful argument against Roberts' position

But it's worth noting that this ISN'T what universities were doing.

https://twitter.com/jbouie/status/1674419888511938563

Colleges did not want to create the Freedman's Bureau form of affirmative action because they had OTHER more nefarious goals than providing reparations to Black descendants of slavery. They wanted to make sure rich donors' kids got in too, and cap the number of Asians.

this is really wrong.

Roe didn't die because John Hart Ely and Ruth Ginsburg said not nice things about it. It died because the conservative movement organized around taking it down and lucked out winning the right elections.

slate.com/news-and-polit… Judicial reasoning is important because of how it affects future cases on other fact patterns. (That's why even liberal decisions expanding rights don't use Douglas' loopy "the Third Amendment protects birth control" logic from Griswold anymore.)

I shouldn't have to explain this but the reason why it's so hard to disqualify a judge from a case is because if it were easy to do the courts would be inundated with such motions from dissatisfied lawyers and clients, accusing judges of all sorts of misconduct. 1/ Some systems, including California state courts, allow a "peremptory challenge" of a judge (like what you can do with jurors), but you only get one such challenge, and after that, you're stuck with the judge unless you can make a severe showing of bias or misconduct. 2/