Category: Columns

The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law

Below is my column in The Hill newspaper on the renewed calls for the investigation of Justice Brett Kavanaugh.  The often over-heated coverage however omits key factual and legal context for a new report.

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New Jersey Woman Triggers Free Speech Case With Profane Anti-Biden Signage

I have previously lamented that we appear to be a nation addicted to rage. There is no greater example than Andrea Dick, a Trump supporter who has adorned her yard in Roselle, Park New Jersey with profane attacks on President Joe Biden. The signage led to a complaint and ultimately a ruling by Judge Gary A. Bundy of Roselle Park Municipal Court that she must remove the offending signs. One of the burdens of being a free speech advocate is that you often must defend the speech of people with whom you disagree, even despise. This is one such case. Dick’s signage is juvenile and highly offensive. However, it is also free speech. Judge Bundy is entirely right in his expression of disgust but, in my view, entirely wrong in his analysis of the First Amendment. Continue reading “New Jersey Woman Triggers Free Speech Case With Profane Anti-Biden Signage”

The Shadow State: Embracing Corporations As Surrogates For Government Action

Below is my column on the expanding role of corporations as surrogates for the federal government. The White House is openly calling for greater corporate action to address censorship, health care, and other issues.  That call is being supported by a growing list of Democratic members, journalists, and academics who have discovered the advantages of shared corporate governance.

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The Illusion of Action: Cuomo’s New Gun Manufacturer Liability Law is a Colossal Misfire

Below is my column in The Hill newspaper on the declaration of a gun violence emergency by New York Gov. Andrew Cuomo.  The centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue gun manufacturers under a nuisance theory. If it sounds familiar that is because it is painfully familiar.  It has failed repeatedly in various states, including New York. It is doubtful that Cuomo truly believes that the law will make a significant, if any, impact on gun violence. However, that is not the point. The point is the appearance of action, not the ultimate result of such action.

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Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation

Below is my column in the Hill on a series of cases that appear propelled by political rather than legal considerations.  The costs to the legal system, the public, or victims in such cases are often overlooked but they are considerable.

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Georgia On My Mind: The Biden Administration Doubles Down on New Challenge Despite Victory of Arizona In Voting Case

Below is my column in USA Today on the Supreme Court’s rejection of the challenge to the Arizona’s new election rules. The 6-3 decision undermines the claims raised in the new challenge to Georgia’s election law.  Indeed, the Biden Administration is pursuing a new challenge that could result in a sweeping loss under the Voting Rights Act.

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Could Cosby Sue For Wrongful Conviction?

Bill Cosby is a free man after the Pennsylvania Supreme Court overturned the conviction that sent him to jail roughly three years ago to serve 3-10 years for sexual assault.  The opinion (below) correctly found that the trial judge and prosecutors denied Cosby a fair trial and due process in 2018. The question now is whether Cosby might seek damages for his conviction and incarceration. Continue reading “Could Cosby Sue For Wrongful Conviction?”

Politics By Other Means: Why Giuliani’s Suspension Should Worry All Lawyers

Below is my column in The Hill on the suspension of Rudy Giuliani by the New York Bar. The widespread hatred for Giuliani may be blinding many to the more troubling aspects of the opinion by the New York Supreme Court.

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Student Athletes or Independent Contractors? The Supreme Court Moves the Goalposts on College Sports

Below is my column in The Hill on the recent ruling on college athletes by the Supreme Court.  The decision could prove to be the critical “crossing the Rubicon” moment for college sports and force schools to address long unsettled questions regarding big sports programs.

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Supreme Court Rules 8-1 for Cheerleader in Mahonoy Case In Major Victory for Free Speech

For those seeking to portray the Supreme Court as, to use President Joe Biden’s words, “out of whack,” the Court itself continued to disappoint critics this week with another major and nearly unanimous decision in the long-awaited decision in Mahonoy v. B.L. While many of us in the free speech community hoped for a bright-line decision protecting student speech, the decision sharply rebuts the sweeping claims of schools (from high schools to universities) of authority to monitor and punish off-campus speech.  What is striking about the language is that the Court secures near unanimous decision by limiting the reach of the decision. Continue reading “Supreme Court Rules 8-1 for Cheerleader in Mahonoy Case In Major Victory for Free Speech”

Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?

Below is my column in the Hill on the growing number of losses by the Biden Administration in courts around the country, including a particularly embarrassing loss before the United States Supreme Court. What is notable is that such losses in the early days of the Trump Administration led to coverage declaring a war on the “rule of law” and even indications of authoritarianism. The Biden losses have received little coverage despite what could be a worst record in the early days of his Administration. The fact is that such adverse decisions are not uncommon as Administrations try to fast track changes. However, the Biden Administration has actually had some very serious losses, including some which are being appealed. Yet, many previously outspoken legal experts have either blamed conservative judges  or simply ignored the losses all together. It is a continuation of an interesting pattern where Democrats are adopting the very rationales that they once denounced.

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E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics

Below is my column in USA Today on the remarkably united and non-ideological line of cases handed down by the Supreme Court.  As Democratic leaders demand to pack the Court to create a liberal majority, the Court itself appears to be speaking through these cases.

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The Leak Investigation: If We Want To Protect Journalists, We First Need To Define Them

Below is my column in USA Today on the controversy involving the acquisition of metadata evidence on members of Congress and the media in the leak investigation launched during the Trump Administration. We recently discussed the questionable reporting by the New York Times concerning the lead prosecutor, but far more serious questions remain if we are going to reach any resolution on protecting journalists, including the question of what is a journalist.

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Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions

Fred Schilling, US Supreme Court

Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines.  Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.

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