Category Archives: epistemology

An RBG Fine Point

An interesting little tidbit from CNN this morning. Yes, CNN. It seems they sometimes provide some actual information and insight despite themselves. We are sure they have no idea why there’s a modicum of significance to their piece this morning on RBG. But there is:

In the 2018 DC v. Wesby case, Justice Ginsburg wrote a solo concurrence saying, “The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. … I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”But I should emphasize that the 1996 Whren was unanimous, and no other justice joined Ginsburg’s concurrence in the 2018 Wesby.

What’s the significance?

Well, the article points out, as we did in the wake of RBG’s passing, that the late Justice was hardly solicitous of the rights of criminal defendants. In so doing, you know, that passage we just quoted.

RBG apparently had this idea – an idea she never sold to any of her colleagues on the SCOTUS, or came even close to selling – that the Whren doctrine, which holds that subjective intentions do not matter in a 4th amendment context, should have some kind of exception, or exceptions. Apparently she brought this up in a 2018 case, District of Columbia v. Wesby. And we must admit to being impressed that her concurring opinion there resonates rather well with a concurring opinion she authored in 1994 in a case we have had to tangle with ourselves: Albright v. Oliver. We are impressed because it indicates a consistency in thought over a period of 24 years on a very fine point of law that didn’t arise with any real frequency during her time on the SCOTUS, and didn’t attract any real attention.

Except from us here at LoS.

So we infer from this that RBG was at least capable of intellectual integrity and consistency. This is a good quality in a SCOTUS Justice.

We figure her soon to be replacement has the same quality. Hopefully in greater measure.

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Sowing And Reaping And Too Little, Too Late

So we were having a discussion about the Breonna Taylor situation. Our interlocutor was a guy who had done prison time for manslaughter. He had been a passenger in a car with four other individuals, two of whom left the car at some point and, unbeknownst to our interlocutor and without his prior knowledge or agreement or participation of any kind, killed someone.

Everybody got rounded up and processed through our “system” and the outcome was a homicide conviction and prison time for our interlocutor: someone who, assuming the truth of his account, wasn’t guilty of anything.

Do we know other similar stories? Absolutely. And that’s just us. We are sure that many other lawyers who have done criminal defense can cite as many, or indeed many more similar stories.

Here’s the point. Our position here at LoS is that the cops in Louisville should not be prosecuted, that they had no criminal intent. Our interlocutor’s opinion, though, is that the cops have to “take responsibility” for what they did.

He’s wrong, of course, to the extent “take responsibility” means to accept criminal liability, which is in fact how he means it. There’s no crime without the intent to commit one. In theory, anyway.

But when he was on the receiving end our interlocutor’s intent didn’t matter. You see the problem?

We taught him (and many, many others) exactly this, in other words. He did prison time because we insisted on teaching it to him. And now he cannot see how all of a sudden intent matters because the accused are cops. So even though he is ultimately wrong in principle we can understand his reasoning. It’s bad reasoning – shallow reasoning – but that’s what governs the system in all too many cases. And he’s right about the double standard: five million cases where the defendants are not cops and little nuances like intent don’t matter at all; then the one in five million where the defendants are cops and now we’re all about nuances?

Later on we were discussing the BLM movement with a colleague, trying to explain the connection between how our system has operated for decades and the civil unrest we are experiencing. Our colleague understood in the most theoretical way the causal connection, but denied that BLM protesters were making any such connection, arguing that they were just commie-influenced rabble-rousers taking advantage of the moment.

This seems to us a failure of imagination, an inability to see things from another’s point of view, and a refusal to appreciate the damage the system has done to people’s sense of justice, individual by individual, over decades.

Sometimes it’s too late. It may not be too late in absolute terms to right the ship of state, so to speak; but it’s probably too late for the actors in the Breonna Taylor play out in Louisville, just as it is probably too late for the actors in the Daniel Prude play in Rochester.

Which is to say, that if nuances are going to matter again – and they should – that will have to await later cases. The prevailing argument right now is a very simple “what’s good for the goose is good for the gander”. We’ve convicted and punished – wrongly – perhaps hundreds of thousands of people. And haven’t cared. We’re not going to be allowed to suddenly start caring because the defendants are cops.

BLM is right. Not in theory, but in practice. Theory and practice in our justice system have destructively diverged for decades. Bringing them closer together will have to happen in future cases. Not present ones.

Two wrongs do not make a right. True enough. But sometimes timing matters. Sometimes it’s determinative.

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Heavy-handed much, ABC news?

“Metastasizing”? Effective imagery there, but mind-closing. There are no more questions to be asked and nothing to debate. Who supports metastatic cancer?

It’s all “baseless”:

Numerous top Democrats, party supporters, Hollywood stars and other Trump critics have been dragged into QAnon’s web and slandered with false and heinous allegations. Last week, Trump fanned these flames when he retweeted a video clip of Democratic presidential candidate Joe Biden that falsely suggested the former U.S. vice president is a pedophile.

Still, it’s the first time we, personally, have seen any reference to these Watkins and Brennan characters as being behind this bizarre phenomenon.

Granted, if indeed “Q” is the brainchild of some sketchy purveyor of Asian porn who until recently lived on a pig farm outside of Manila in the Philippines, we’d guess that a lot of the followers are going to wind up being pretty embarrassed, deservedly so.

But assuming the truth of all that, we wonder why ABC News is so utterly devoid of introspection and humility. Large numbers of “conservatives” falling for the “Q” stuff is nothing if not a searing indictment of mainstream media and news reporting. The MSM bias has gotten completely out of hand with the election of the Trumpster in 2016. As bizarre and stupid as it may be, the Q stuff is part of a rational reaction to the mainstream media’s failure: disgusted from being lied to all the time by the MSM, people look for increasingly – and symmetrically – radical explanations elsewhere. And in the 21st century lo, they find them.

Its very much like our legal profession – lawyers and judges – being unable to see the connection between their own honesty-challenged conduct and the civil unrest we seem to more frequently experience all the time. We have reminded our colleagues, numerous times, of their fault (and to a lesser extent ours). But nobody much is paying attention to LoS.



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We’re going to dissent from the party line, as we so often do.

What, exactly, is RBG’s great contribution to the law or her country? What great opinion did she write as a Justice of the SCOTUS?

Take your time, it won’t matter: it’s a null set.

She was a place holder on the SCOTUS for almost thirty years. A predictable vote for liberal this or liberal that.

Many people have fawningly noted, and will fawningly note, RBG’s close friendship with her ideological opposite, the late Nino Scalia. This is extremely misguided, while at the same time very telling.

Here’s the point: the conflicting ideas each of the Justices adhered to have no practical consequences for them, sitting atop their high perch. They have the luxury of setting them aside and enjoying the opera together. But for the rabble that in their heart of hearts RBG and Nino literally despised, those conflicting ideas are often – also literally – the difference between life and death, with no respite for, you know, opera-going.

In other words, the Nino-RBG friendship, while cute on the personal level, is not in the least praise worthy. It’s a symptom of the abiding SCOTUS dysfunction, a perverse class consciousness that sets the tone of the “justice system” in the United States.

Speaking of opera, the fight over RBG’s replacement promises to be great political theater, what with the presidential election a mere two months away. But like RBG’s SCOTUS tenure itself, it will be sound and fury, signifying nothing. The SCOTUS will remain terminally dysfunctional, no matter who replaces RBG.

The important historical events of 2020 are not taking place in the halls of our moribund institutions, but rather in our streets.

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Case In Point

We keep sentencing a criminal defendant to more time in prison. Double jeopardy arguments are made, and although obviously correct they are rejected.

This one might get corrected because it’s a celebrity and it’s in the news. But it, or something just like it, happens to more obscure people all the time.

Reason is the sine qua non of the judicial branch of government. Without reason it is not functioning at all.


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Just Deserts (Updated)

As we write this morning our city – Rochester, New York – is experiencing what is called “civil unrest”. It has now taken a somewhat worrisome turn where protesters, having “occupied” City Hall, are squaring off with police.

The City probably cannot allow the occupation of City Hall for any extended period of time. On the other hand, one wonders what kind of “command and control” is in effect since in the last couple of days the police chief, his command staff, and the city’s Corporation Counsel have all been fired or suspended.

This is a potentially dangerous moment, in other words. We hope for the best, of course. We have friends and neighbors on both sides.

Our own opinion is that the City of Rochester – including the mayor, police chiefs and the vast majority of the cops – are the least guilty and the least responsible officials for the state of affairs that is actually prompting all the protesting. We continue to object that lawyers – especially prosecutors – and judges are largely getting a pass while police officers are increasingly targeted. We think judges, in particular, have failed the country and even the police in the long run by toadying for the police. In the short run, toadying for the police is a political score for the judge and makes the police feel good. In the long run, consistently cheating truth, fairness and justice result in civil unrest, as we have so often pointed out.

In other words, we are simply experiencing the natural and probable consequences of decades of judicial dishonesty. No one should be surprised.

Some judges are already bending over backwards to make matters worse. We had to comment over on Professor Turley’s blog, and probably can’t much improve on that commentary here, so we’ll just reproduce it:

The judge is a moron. It is too late to impose “discipline” with draconian bail setting and sentencing accompanied by pious allusions to law and order. We haven’t done law and order for a long time, and that’s the problem. Law and order is not about the government’s monopoly on force; it’s about the government’s commitment to being fair and just. It is the third branch of government – the courts – that is supposed to keep that commitment and it has been failing – and I mean miserably failing – to do that for decades. It doesn’t even pretend to do it, and the members of the profession that administers the judicial branch – lawyers – are overwhelmingly nihilists who deny that fairness and justice have any meaning or content.

That’s a formula for civil unrest. It’s just a matter of time. And it’s inevitable.

It’s really unbelievable to me how dense a judge has to be to think he’s going to make a dent in all this by imposing an obviously unlawful bail. That’s exactly the kind of stupidity that has led to this situation in the first place. It’s also pretty depressing to see commenters here applauding the judge. I should think Professor Turley’s audience would be a little brighter.

The problems here run so deep. All of these recent incidents – George Floyd, Jacob Blake, etc. – are just triggers.

The underlying facts of these incidents don’t matter? You know, was it self-defense, was it a justified use of force by police, and so on.

Of course the underlying reality doesn’t matter. That’s exactly how our courts have been behaving for decades now. That’s exactly what we have taught the populace. Now they have learned the lesson and the shoe is on the other foot, turned around on us. What do we do now? Get them to listen to reason? It’s so “too late” for that. Cave to the pressure? That will invite more pressure.

There’s probably only one way out at this point: return to first principles like justice and fairness, or at least decency, then hang on, be patient, and take our punishment in the meantime.

This is not something we seem able to do very well. Or at all.

One last observation. Our friend SHG has his own take on the situation this morning. Very different from ours. Very much behind the curve, we think.

We see absolutely nothing wrong with a judge finally being made uncomfortable at home, especially in this situation. And SHG’s allusions to all the supposed remedies to correct the judge’s stupidity? It’s possible that some other judges might not be so stupid as this one is and might correct the obviously wrongful bail decision, but that’s only because the spotlight is on them, this time. The spotlight usually isn’t, and that means that – usually – even rulings as stupid as this one never get corrected.

Put another way: We deserve everything we’re getting, and then some.

Update: LOL On the one hand, this is good, undoing an obviously stupid ruling. It would be better if the judge just undid it instead of the pretense of a “hearing”, but meh.

On the other hand, he’s just caving to pressure. He has low character. Maybe we could say otherwise if he issued an abject apology for being such an asshole in the first place. But we are not holding our breath.


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Petty Problems

We must be tres scrupulous to publicly censure a town justice for: a) giving a ride home to a defendant he had just arraigned; and b) barring a man wearing a sleeveless shirt from his court room.

Looking at (b) first – because easier – we don’t understand why people show up to court so ill-dressed and we have no idea why the judicial conduct commission would censure a judge over this. We recall one time representing a defendant charged with a marijuana offense who came to court wearing a t-shirt with marijuana favorable messages emblazoned on it, and insisted the client go home and don more appropriate attire. Seems to us the judge was well within his prerogatives to make an issue of it, though maybe he should have given the opportunity to explain. But either way, it doesn’t strike us as something worthy of an investigation, to say nothing of a censure.

Moving to (a), so what? He gives the guy a ride home after arraigning him on some petty charge. They didn’t discuss the man’s case. Not the best judgment, we suppose, but a censure?

Here’s a clue as to what might be happening. The Commission notes that the town justice should have “offered” to recuse. To whom was this offer to have been made? The prosecutor.

Who do you think brought the complaint against the judge? The prosecutor, we’d guess.

Lesson learned. If you’re a judge, don’t cross the prosecutor.

System dysfunction continues unabated.

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Masks – Range Of Opinion

From CNN via MSN (or do we repeat ourselves?) – masks will save 70,000 lives in three months! Wow!

From Newsweek – people who refuse to wear masks are sociopaths! Who knew!

That’s the range of opinion about masks allowable by the mainstream media. Wearing a mask is about saving many thousands of lives and only sociopaths, people unfit to live among us – who should in fact be in prison – would refuse.

At the other end of the spectrum, all the COVID measures such as masks are completely ineffective from a public health standpoint. That’s just pretend. In truth, they are all satanic initiation rituals.

Something tells us that there’s a lot of irreconcilable conflict out there.



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Putin Poisons People

The alliteration is irresistible. Sorry.

This media narrative has been circulating for years. It has always seemed quite implausible to us, but what do we know? We are no longer privy to intelligence briefings on foreign adversaries as we once were.

In any event, this morning there is a report that an opposition leader in Russia, Alexei Navalny, is hospitalized after having been poisoned in Russia, and of course this would be quite the confirmation of the PPP narrative, if true.

But if NPR and the western press generally really wanted to have any credibility in pushing this narrative, it seems to us they would have to mention in their stories about him, including this morning’s, that Navalny went to Yale. That distinguishes him from, you know, some home grown Russian “opposition leader”.

We hope Mr. Navalny recovers from whatever his affliction is, but we are skeptical that the affliction has anything to do with his having been poisoned by Putin.

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Natural Born Citizen II

Apparently there is no level of stupidity too low for political arguments to fully embrace. We refer to a kerfuffle over the last few days regarding Kamala Harris’ eligibility to be president.

The idea that she is not eligible is now being labeled a “conspiracy theory”, when in fact it’s just a legal question that’s maybe not entirely clear in every case, but clear enough to conclude that Harris is not eligible. As we also concluded four years ago regarding Ted Cruz and Marco Rubio.

We have little to add to what we said then, but to once again go over the rather simple line of reasoning owing to the prevalence of the stubbornly stupid: the constitution says that only “natural born citizens” are eligible to be president. The best definition of “natural born citizen” is a person who is born in the United States whose parents were also born in the United States. It could be reasonably argued that you would qualify as a natural born citizen if only one parent was also born in the US. But if neither of your parents were born in the US – that is, they were both immigrants – then you are not a natural born citizen and are not eligible to be president under our constitution. And that’s the problem with Kamala Harris. She is plainly not eligible.

To reiterate what we said four years ago: we are more than agreeable to amending the constitution to delete the requirement that the president must be a natural born citizen. We don’t even object to that being done quickly so that Kamala Harris can become eligible. We think the natural born citizen requirement long ago outlived its usefulness, which was, obviously, to ensure that our commander-in-chief would be less likely to have any vestigial loyalties to the British crown.

But we still object to dishonest “scholars” peddling plain falsehoods that we are supposed to accept because of their “credentials” at the risk of being labeled “conspiracy theorists” if we don’t.

And we object to the stupidity of the debate. And the media treatment of it.


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Mouthpieces Of The Ruling Class….

…..writing in the Wall Street Journal, confirm our previous post, where we were incorrect about the Biden VP pick but – we gather from the WSJ article – peculiarly perceptive about the nature of this pandemic thing.

It is not beyond the realm of possibility that the swamp, recognizing in their bones, as it were, the decline of the US military and relative diminution of funding for the MIC going forward, has arrived at the conclusion – again, as if by instinct – that we must have new dragons to slay, and they have come up with …. viruses.

The “new normal” is going to be more of the same, but with a different face. A masked face, of course.


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We haven’t really dealt with the worldwide development over here on the blog. Maybe that’s because it’s not really lawyer type stuff, but then again it could be. In any event, we have commented elsewhere and for what it is worth we reproduce some of our thoughts here. We provide a link to what appears to us to be solid data from the CDC as well, so our readers – all three of them! – can make up their own minds if they are so inclined, which we hope they are:

It seems like the NYT is taking some firm data and spinning, but it’s interesting that they are focusing on the same “deaths from all causes” data. The CDC has these two tables, one showing week by week deaths nationwide that clearly show a noticeable increase from “expected” for some weeks starting in April. The second table shows deaths by location, which clearly shows some areas experiencing more deaths while others are even less than “expected”. The results in the second table are more ambiguous and raise some questions about why, outside NYC which is a national anomaly, there is much variation at all. Or come to think of it, there really isn’t that much variation, and not that much in the way of elevated deaths. If any, because the problem I’m seeing with the “data” has to do with “expected” deaths, which is based on only three years of history. Obviously, much, much more data is available to the CDC. They could go back decades if they wanted and adjust for population increase. That might yield a very different number of “expected” deaths, which in turn would paint a very different picture, although even so the picture now is not unambiguously as dire as the NYT article is advancing. You also have all these scare stories from Fauci, et al, about the “extraordinary variety” of symptoms the COVID causes, only to find with a brief google that every single scary unusual symptom has also been attributed to the flu in years past, before all this got so politicized – organ failure, brain damage, lung damage, and on and on – it’s a big world and diseases affect different people in different ways and lo, you can always find some outlier, but the rule is that the flu is like a bad cold for almost everyone and it looks like the COVID is like a bad flu for almost everyone. And it’s hard to make the argument that somehow this particular bug warrants any “public” reaction at all, unless we begin defining “grave public health threat” so loosely that we’ll be facing grave public health threats continuously from now on, and submit all of our interpersonal behaviors in public to the, let’s face it, central committee of public health experts, which raises an issue not of convenience or minor discomfort but something far, far deeper. At least for me it does. But I’ve gone round with you, and…… others on this and in truth I don’t have a comfortable level of certainty either way. As I’ve said, I recognize that there must be a line that gets crossed at some point and then we do indeed have a grave public health threat and we should hand ourselves over to the central committee for some period of time. But we have not identified that line. It’s important to do that, this provides an opportunity to do that but as a nation we’re just bickering about it rather than engaging in systematic, rational thought.

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Smearing The Victim

We are wary of the term “victim” over here at LoS. Too often, our “best justice system in the world” comes to rest on a conclusion we used to call in the Navy 180 degrees out, and the victim is actually the perpetrator, or vice versa.

For some reason this morning we were reminiscing about why this so often happens: deep, system wide professional inadequacy. Perversion, even.

Let us revisit an old example. Here you had a house explosion that killed three people and an official investigation that was contaminated with self interest. That investigation focused on one of the three dead and suggested the house explosion was a deliberate act by him, to kill himself and his mother, who indeed died also in the aftermath from terrible wounds. A roommate died in the blast as well, and apparently the deceased perpetrator was socio-pathic enough not to care that another life would be thrown into the mix.

There was absolutely no evidence to support this terrible narrative, but the narrative stuck. Until we came along, that is, and dug up all kinds of witnesses, and even documentation, to the effect that there had been a long standing problem with strong gas odors at the house so noteworthy that one young couple had broken their lease and left, believing the house to be unsafe.


At this point the prevailing original narrative is untenable and cannot be maintained by any reasonably intelligent person, both in absolute terms and in view of the fact that at common law, still applicable so far as we know, there is a presumption against suicide.

But in the litigation the utility company’s lawyers continued to maintain – and the judge continued to entertain – this thoroughly discredited original narrative that house exploded due to the suicidal act of one of the dead.

The system is designed to rule this argument out before you get to a jury trial. We have discovery procedures, especially in civil litigation, that are intended to refine the arguments so that we’re not wasting jurors’ time with arguments that cannot be honestly held by reasonably intelligent people.

Of course, there is no guarantee that those sitting on the jury will be reasonably intelligent. So added to the benefit of not wasting time and effort, refining the dispute so that untenable arguments are not advanced guards against an unjust outcome that is not in conformity with the truth of the matter. To run with this notion a bit, you might have a juror whose ability or willingness to analyze evidence consists of siding with whatever interpretation is offered by those who are apparently in authority.

This is a common juror type. Mostly men. Women much less often.

And so the system is designed to neutralize the stupidity that might prevail if such a juror were allowed to even consider an argument we all know is untenable in advance. It wastes a lot of time during deliberations, and indeed such a juror may wind up holding out over the untenable argument and cause a complete misfire of the whole thing (a mistrial) for no good reason.

But what happens too often is that the professionals involved – that is, judges and lawyers – deliberately short circuit the system by advancing, or entertaining, an argument they can’t possibly honestly believe for the short term benefit that in this or that case is might help them “win” the case (on the part of the lawyers) or to curry favor with the establishment litigant (on the part of the judges).

And then all of the discovery, all of the effort undertaken beforehand to refine the issues and present a cleaned up and cogent dispute to a jury wind up not mattering. The system fails, in other words, not because it isn’t well designed, but because the players cannot be relied upon to be honest.

Or put another way: to work properly, the system’s design depends upon the players being honest. Or at least decent.

What bothered us so much about our house explosion case all those years ago was how fundamentally immoral it was to make, or even entertain, a baseless claim that amounted to blaming a dead man for his own death. And his mother’s.

There could be a justification for such an approach in a criminal case – say, a murder trial – where it can sometimes, with some juries, help the defense to sully the reputation of the victim of the murder. There’s an old saying in the profession: the victim is not unaccountable in his own demise. And sometimes this is true, or at least honestly arguable.

But even in a criminal trial where an attorney is defending and has adopted the increasingly discredited “zealous advocacy” approach, there is an argument to be made that where the smear is baseless and cannot be honestly advanced it would be professionally improper for a lawyer to advance it. Even if it would benefit the client.

But we here at LoS believe that in a civil trial, where only money is at stake, there is no excuse. Advancing such an argument is professional misconduct.

That’s our position this morning, in any event.

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Justice Gorsuch And Sex

We’re going to establish ourselves as real outliers here, but we don’t care. Fearless bloviating on all manner of subjects has been the hallmark of LoS since it began almost 10 years ago!

Let us start by speaking the plainly unspeakable truth that litigation over: who uses what public bathroom; or whether high school girls can be barred from the boys’ football team; or for that matter whether the boy-turned-transgendered girl can run track on the girls’ track team; and all other such sexuality-based-debates-turned-legal-questions-and-lawsuits, is unserious to the point of stupidity and a sinful waste time and attention that could be better turned to the tasks of freeing all the people we have wrongfully imprisoned (and in death penalty cases intend to murder), of compensating injured people, of holding corrupt politicians and CEO’s to account, and a million other actually significant things.

People’s sexuality and how members of this or that sex are treated are not suitable topics for legislation or court proceedings and never were.

The Civil Rights Act of 1964 was about race relations, not feminism or genderism – or whatever these sorts of things are called this morning – and indeed all of these other relations are radically different in kind and do not belong in the US Code at all.

So we here at LoS think there’s really only one effective response to Justice Gorsuch’s invitation to endless stupid litigation opinion in Bostock: amend Title VII and delete the word “sex”, which was the entire basis for his opinion and apparently was only added to the law as a poison pill in the first place.

It makes us incoherent. People discriminate “based on sex” all the time in ways that are not in the least objectionable. The first question asked about any new human being – “Is it a boy or a girl?” – is discrimination based on sex.

Moreover, we at LoS have never understood why civil rights leaders embraced this piggy-backing of feminist concerns onto the far more serious questions of how people treat other people of different races. The latter can legitimately be the subject of laws and litigation without degenerating into self-satire and stupidity. The former cannot.

So this is our outlier opinion of the day: overrule Bostock by amending Title VII to delete the word “sex”.

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Casey Anthony And ‘Wrongful Acquittals’

It’s been almost nine years since Casey Anthony’s “wrongful acquittal”.  The partisans are still so ginned up that when she gets a speeding ticket it’s national news.

Why does she still live in Florida?  Or in the United States at all?  She probably doesn’t have the money to move away.  Our advice at the time still holds, though.  Obviously.

We did a lot of posting about Ms. Anthony back in the day.  Such as here.

The case is still yielding its lessons.




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