Monthly Archives: February 2016

Ke$ha v. “Dr. Luke” (Updated)

Sometimes, CNN provides a window into the approved narrative, and the approved narrative with respect to the whole Kesha-Dr. Luke thing involves terms like “complex” and “intricate” instead of rape and abuse.

When they call it “in-depth”, you know you’re in for a heavy dose of propaganda.

Why is the Kesha-Dr. Luke narrative so different from, say, the Bill Cosby narrative?  They both seem to fit comfortably into the “casting couch” category, allegation wise.

We have a passing acquaintance with the “entertainment law” establishment.  It exists in New York and Los Angeles in this country, and nowhere else.  Talent – musical, acting, whatever – is controlled, managed and produced through this establishment.  They get a piece of whatever sells and entertains the masses.  The bigger the sales, the tighter the grip, precisely for the reason that a talent who dares to defy or even marginalize the role of the establishment in his or her “career” is a mortal threat to the whole enterprise, especially if the talent is high profile and successful.

Because the establishment, by itself, has no talent and nobody likes them.  All they have is their grip, so it must be jealously guarded.

The judge understands:

“You’re asking the court to decimate a contract that was heavily negotiated and typical for the industry,” New York Supreme Court Justice Shirley Kornreich told Kesha’s attorney Mark Geragos after hearing arguments that Dr. Luke had invested $60 million in the singer’s career, according to a brief from the Hollywood Reporter. “My instinct is to do the commercially reasonable thing.”

“I don’t understand why I have to take the extraordinary measure of granting an injunction,” the judge said, citing the lack of hospital records and other medical evidence related to Kesha’s assault allegations.

It’s good if you have hospital records and medical evidence of a sexual assault, but often you don’t.  That doesn’t mean it didn’t happen, of course, but the judge has to go by proof, and to that extent we can sympathize with the judge’s position.

On the other hand, we can’t agree that “the commercially reasonable thing” can trump Kesha’s allegations.  The rest of the judge’s comment implies that the judge’s real concern was protecting industry practice.  Industry practice includes the casting couch, apparently, and so this whole thing becomes “complex” and “intricate”.

There’s a lot to say here, potentially.  But not now.

 Update:  In addition to the Cosby situation, throw this into the mix:



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Rubio, Too.

You can review here, if you like, but what interests us about the question is, again, not how to resolve it but the frankly irrational approach of “scholars” on the issue, to wit:

Rick Hasen, a professor at the University of California- Irvine School of Law, was kind enough to provide a quote.

“The claim is meritless. I’m unaware of any serious scholar or court suggesting that someone born on U.S. soil is not a natural-born citizen if his parents were not citizens at the time,” Hasen told

Someone who is born in the US could rightly be described as a “born citizen”, we suppose, but the constitution doesn’t discuss born citizens and the presidency; it discusses “natural” born citizens and the presidency.  “Natural” has to mean something, and we have a pretty good idea what, and refusing to acknowledge that obvious fact and calling yourself a “scholar” doesn’t change anything.

Apparently Senator Rubio was born in Miami but neither of his parents were citizens at the time of his birth, and accordingly under the best understanding of “natural born citizen” he is not one, and therefore not eligible to be president.

As with Senator Cruz, and just to once again demonstrate that we have no dog in this fight, we are agreeable to a constitutional amendment to abolish the “natural born citizen” requirement, and we are agreeable that it should be done immediately and that both Cruz and Rubio would then be eligible.

But we are not agreeable to corruption of language and thought by “scholars” or anyone else.  And that’s what this particular debate is about.


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The 7th Circuit Is A Mess

This decision, White v. City of Chicago, came down 4 days ago.  I think the truth is that Judge Feinerman just likes to side with police and throw Plaintiffs out of court, but I’ll concede that his Court of Appeals gives him plenty of ammunition.

Just read the whole thing.  It’s better than his last opinion, but it’s still straining and straining to throw the Plaintiff out and protect the cops.

Judge Feinerman needs to recognize two things:  first, deliberate lying, cheating or evidence fabricating by the government in a criminal case violates due process no matter when in the process it occurs, not just at a trial; and second…

never mind.

I wonder if anyone brought the Manuel cert grant to Judge Feinerman’s attention before he issued that opinion?

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Raw Political Power v. Raw Star Power

That’s all this is about.

Who will win, the police union or Beyonce?  I have to admit it’s fairly audacious of the police union to throw down the gauntlet on this one.

But ultimately this is extremely unhealthy for everyone.  If there’s a rational debate to be had in this country about police shootings of black suspects, a high profile clash between police unions and one of the world’s biggest celebrities isn’t going to enhance it.  This is one of those stories that says something about us we might not wish to ponder.


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RIP Harper Lee

She died today aged 89.

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The “Natural Born Citizen” Fiasco

Words mean specific things, although it’s not always easy to determine just what.  But when it is easy, yet confusion seems to abound, you can be sure there are agendas involved.

In that sense this is an important question.  Not because it determines whether Ted Cruz is eligible to be president, but because it pertains to our ability to reason dispassionately and objectively, not focused on attaining a particular outcome, but rather on being correct and letting the outcome happen of its own accord, whatever that outcome might be.

The noise is deafening.  That’s a lengthy article, and we don’t know much about Vox, but it’s also a troubling article in this sense:  it speaks of “constitutional scholars” and being a citizen from birth and has highly suggestive little section headings like “The only definition of ‘natural born’ in US history would include Ted Cruz“, which of course concedes by implication that there are other definitions, and then those other definitions are never given, even though they are alluded to:

Scholars have looked at English precedents, US judicial decisions, bills, and congressional debates to figure out what the meaning of “natural born” is supposed to be and how (if at all) it’s changed over time. But while some scholars have maintained that the evidence supports a narrow meaning of “natural born” — one that wouldn’t include Ted Cruz — more of them agree that the evidence supports a broader one.

What is the “narrow meaning” of “natural born” they are referring to?  They don’t say.

Here’s one argument they make, but it’s wrong:

The majority of constitutional law scholars who’ve written about the meaning of “natural-born citizen” have agreed that if a court were to rule on the question, it ought to rule that someone born outside the US but eligible for citizenship through parents counts as “natural born.”

One of the key arguments in favor of this point is that while there is no longer any law defining “natural born,” there used to be one — way back in 1790. The Naturalization Act of 1790 explicitly said that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens.”

See the problem?  It would not be necessary to pass a law saying that children “…that may be born beyond sea…shall be considered as natural-born citizens” unless they weren’t considered natural born citizens before the law was passed.  And the article doesn’t go there, and that appears to be deliberate misdirection.

We have no horse in the presidential race.  In fact we are pretty agreeable to Ted Cruz, not that he’s in any sense “our man” for the White House.  But we do have a stake in the honesty race:  honest argument can advance reason and truth; dishonest argument can undermine both.

So this worries us.  We had to travel to some obscure corner of the web to find a worthwhile and honest article dealing with the question at hand.  Without quoting at length – indeed we encourage readers to click the link and read the article for yourself – here’s the essence of it:

When the US Constitution was written, the “natural law” that dealt with issues such as nationality and allegiance to a sovereign was called “the law of nations.” Modernly, we call this “international law.” In 1789, the preeminent codification, description and explanation of “the law of nations” was a work written by Emerich de Vattel, entitled THE LAW OF NATIONS, or principles of the law of nature applied to the conduct and affairs of nations and sovereigns. The Founders were not only familiar with de Vattel’s treatise, they relied on it extensively when they wrote laws and Constitutions (of their respective States, not just the Federal one.)

In Section 212 of de Vattel’s treatise, he states the following:

§ 212. Of the citizens and natives.“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

We are not opponents of Ted Cruz’s presidential candidacy.  We greatly prefer him to front-runner Trump.

But we are forced to conclude that he is not constitutionally eligible to be president because he is not, by any rational or honest definition, a “natural-born citizen”.

Going one step further, we are agreeable to the proposition that the constitution should be amended to delete references to “natural-born citizen” and that any citizen should be eligible for the presidency.  But we are not agreeable to the obfuscation and pettifoggery of self-anointed “scholars” on this point, or any other political agenda dressed up as “interpretation” or “argument”.

Words have meaning, and this is simply not a difficult call.


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Mourning Scalia

We haven’t always been kind to Justice Scalia in these pages.  But not exactly unkind, either.

Ultimately, the mighty fall.  Just like the less mighty.  He was 79 and not the least bit addled, plying his trade at the highest levels right up to the end.  That’s a good way for a man of substance to go, and say what you will Antonin Scalia was without a doubt a man of substance.

He died in Texas.  That seems significant somehow, though we don’t know why at the moment.

Whether he will be known posthumously for his constitutional originalism or for something else we can’t say.  He was certainly a prolific contributor to his country, prompting a national conversation that has changed it considerably, often in good ways.

No, we didn’t always – or even often – agree with him.  But standing over everything, and all our differences, is the common mortality he, and we, and everyone else shares.  And we may have shared more than that:  after all, he was one of Georgetown’s finest sons, a prominent defender of the faith, and with nine children and apparently numerous grandchildren, his professional attainments are not his only, and perhaps not even his most important, contribution.

REQUIEM aeternam dona ei, Domine, et lux perpetua luceat ei.  Requiescat in pace. Amen.


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