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Posted
20 minutes ago, Hard Times said:

They need to do the right thing and keep Doturd off the ballot in all states, but they probably won't.

I hope they recognize that Trump is a threat to the sovereignty of the court. Look at what Netanyahu is doing in Israel. Look at Erdogan in Turkey. Look at Orbán in Hungary. If Trump regains power, he’ll be a tyrant and expect the court to do his bidding…or else. 

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Posted

It's amazing to watch clips on Fox of idiots saying things like "Well Trump put them on the court so they need to come through for him". Uh huh, because that's how that's supposed to work. 

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Posted

Who here thinks the supremes will rule in favor of Colorado, and extend that to Trump not being eligible, period.  They don’t need/want him now.  To extreme a hope?

Posted
34 minutes ago, nbmishoid said:

Who here thinks the supremes will rule in favor of Colorado, and extend that to Trump not being eligible, period.  They don’t need/want him now.  To extreme a hope?

They'll find a way to keep him on the ballot, whether legitimately or not, but I don't know what it'll be based on other than "let the people decide"

That Postal Service Act language from 1792, specifically mentioning the President was an officer *should* be enough to say the 14th applied to him. Colorado's Supreme Court did a thorough analysis and determined he was engaged in insurrection.

SCOTUS justices swear an oath to support and defend the Constitution too, and the 14th is part of that.

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Posted (edited)
1 hour ago, nbmishoid said:

Who here thinks the supremes will rule in favor of Colorado, and extend that to Trump not being eligible, period.  They don’t need/want him now.  To extreme a hope?

Yes.  But to look fair, they will not overturn the DC circuit saying that immunity is not a defense.  So when they allow a convicted Trump to assume the presidency after his election in 2024, they will throw their hands in the air and point to their impartial rulings.

I do repeat this as the long-shot possibility: Roberts is worried about SCOTUS losing its authority - and people deciding to just not follow them. To quote Stalin about the Pope, “how many divisions does Roberts have?”  A Justice Marshall Marbury v Madison moment. 

The stain of corruption from Thomas is so strong that Trump‘s attorney Hubba Dabba Do publicly reminding SCOTUS that they need to rule for Trump - because they are his puppets put there to do his bidding - may push them over the edge in a 5-4 decision to make a ruling that is solely meant to show that Trump does not own them.

Don’t bet on that. 

Edited by Gatorubet
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Posted
1 minute ago, Willfully Horn said:

Garland waiting until November 2022 to appoint a special prosecutor was an abdication of duty.

In his defense, Garland had to wait until Smith’s purple smock got back from the dry cleaners. 

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Posted
1 hour ago, wildcat09 said:

They’re going to decide that the 14th requires a conviction. It’s wild that anyone is even considering any other possibility.

Constitutional originalists will somehow find the word “conviction” in the 14th amendment 

chefs kiss 

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Posted
2 hours ago, bolverk said:

They'll find a way to keep him on the ballot, whether legitimately or not, but I don't know what it'll be based on other than "let the people decide"

That Postal Service Act language from 1792, specifically mentioning the President was an officer *should* be enough to say the 14th applied to him. Colorado's Supreme Court did a thorough analysis and determined he was engaged in insurrection.

SCOTUS justices swear an oath to support and defend the Constitution too, and the 14th is part of that.

No, language in legislation does not offer a guide to language in the Constitution.  Different documents, different purposes, different authors.  The Postal Service Act does have the benefit of being an example of contemporary usage.  But this probably isn't a case of that.

Usage in the Constitution is pretty context-specific.

There's so many "outs" because section 3 of the 14th Amendment is some of the shoddiest draftsmanship in the Constitution.  Rivaled by the Second Amendment.

Posted (edited)
34 minutes ago, TwiceHorn said:

There's so many "outs" because section 3 of the 14th Amendment is some of the shoddiest draftsmanship in the Constitution.  Rivaled by the Second Amendment.

If only the plain meaning of the text  had as much interpretive value as scholastic conjectures about whether the framers meant to indicate through omission that the chief executive of the government was somehow not an officer. 

Edited by Bozo_Casanova
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Posted (edited)
6 minutes ago, Bozo_Casanova said:

If only the plain meaning of the text  could offer some kind of interpretive clues. 

For better or worse, plain meaning has rarely if ever been an interpretive tool of the US Constitution.  

We didn't really get into looking hard at the document until the 20th Century and, by then, the idiom of late 18th century America was lost to history.

Funny thing, "plain meaning" is an interpretive tool used for patent claims, most all of which in litigation were drafted within the past two decades (you tend not to litigate patents that are expired, and they expire after 20 years).  You'd be surprised how hard it is to get people to agree on plain meaning or to offer a judge a principled way of choosing between two "plain meaning" interpretations of a word or phrase.  You almost always have to resort to something else.

Edited by TwiceHorn
Posted
4 minutes ago, Bozo_Casanova said:

If only the plain meaning of the text  could offer some kind of interpretive clues. 

Sort of goes without saying that some people who have committed treason should still be eligible to hold the highest office of our country while other traitors shouldn't depending on their previous job classification. OTOH, can anyone really know what the 14th Amendment means?

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Posted
38 minutes ago, TwiceHorn said:

For better or worse, plain meaning has rarely if ever been an interpretive tool of the US Constitution.  

Yeah, I see it often in the workplace, too.  For instance, it is often difficult to suss out whether "and" means something different than "or".

Posted (edited)
1 hour ago, TwiceHorn said:

For better or worse, plain meaning has rarely if ever been an interpretive tool of the US Constitution.  

We didn't really get into looking hard at the document until the 20th Century and, by then, the idiom of late 18th century America was lost to history.

Funny thing, "plain meaning" is an interpretive tool used for patent claims, most all of which in litigation were drafted within the past two decades (you tend not to litigate patents that are expired, and they expire after 20 years).  You'd be surprised how hard it is to get people to agree on plain meaning or to offer a judge a principled way of choosing between two "plain meaning" interpretations of a word or phrase.  You almost always have to resort to something else.

The plain meaning rule is alive and well in contracts.  And just because the parties don't agree on the meaning, doesn't mean its ambiguous.  At least around these-here parts.

 

/not the first time I've typed that, albeit not verbatim. 

Edited by dcbc
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Posted (edited)
32 minutes ago, dcbc said:

The plain meaning rule is alive and well in contracts.  And just because the parties don't agree on the meaning, doesn't mean its ambiguous.  At least around these-here parts.

 

/not the first time I've typed that, albeit not verbatim. 

Of course it is.  Patents and contracts and, for the most part, legislation, are current, contemporary documents.

And no, not every disagreement over a term or phrase makes a term ambiguous or insoluble.

But, people like plain meaning here because it suits their ends.  More or less just like every interpretive device is chosen:  I like the outcome.  I.e. Calvinball.

Ironically, originalism is a time-adjusted form of plain meaning, e.g plain meaning when drafted 200 years ago.

As far as "officers" go, the real loaded term is "Officers of the United States."  That one does have a very particular meaning attaching to those who are appointed by the President with the advise and consent of the Senate, and may be removed by impeachment.  Which is as opposed to "inferior officers," who are appointed by the President without the advise and consent of the Senate and serve at the pleasure of the President or as Congress has dictated.  Shit gets messy sometimes.

Thank God they didn't say Officers of the United States in the 14th.  Signs and wonders they didn't.

Edited by TwiceHorn
Posted
2 hours ago, Bozo_Casanova said:

If only the plain meaning of the text  had as much interpretive value as scholastic conjectures about whether the framers meant to indicate through omission that the chief executive of the government was somehow not an officer. 

It is difficult to get a man to understand something when his salary depends on his not understanding it.

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Posted
40 minutes ago, dcbc said:

The plain meaning rule is alive and well in contracts.  And just because the parties don't agree on the meaning, doesn't mean its ambiguous.  At least around these-here parts.

 

/not the first time I've typed that, albeit not verbatim. 

I've had the unfortunate experience of being involved in many software contract negotiations. Fucking lawyers will beat the shit out what something clearly means.

Me usually after being asked to clarify a sentence because it could imply some unintended service offering.

I Dont Morgan Freeman GIF

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Posted (edited)
7 minutes ago, F250 said:

I've had the unfortunate experience of being involved in many software contract negotiations. Fucking lawyers will beat the shit out what something clearly means.

Me usually after being asked to clarify a sentence because it could imply some unintended service offering.

I Dont Morgan Freeman GIF

 

I saw a contract somewhat recently that said payment due at x:xx p.m.  "Dallas, Texas time."  My initial reaction was that it was a really stupid substitute for "CST," until I thought about daylight savings time and realized why some lawyer insisted on that term. 

Edited by dcbc
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Posted
9 minutes ago, dcbc said:

 

I saw a contract somewhat recently that said payment due at x:xx p.m.  "Dallas, Texas time."  My initial reaction was that it was a really stupid substitute for "CST," until I thought about daylight savings time and realized why some lawyer insisted on that term. 

You should have crossed it out and written "Tulsa Time."

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Posted

I had a land seller’s counsel object to the time is of the essence clause the other day.

Really showed off some law school learning there bud.

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Posted
1 minute ago, Bullneck said:

You should have crossed it out and written "Tulsa Time."

Thankfully, that's not my role in the process anymore.

Posted

I've heard an argument that SCOTUS may overrule Colorado/Maine on the grounds that the president hasn't been indicted for insurrection (with those trials ongoing). 

But since the House impeached him for "incitement of insurrection" on Jan 13th, would impeachment on those terms carry the same weight as indictment? 

(I know, I know... They'll all find facts or arguments to support their preconceived decisions) 

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Posted

Fourteenth doesn’t say anything about indictment. 
 

shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 

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Posted
55 minutes ago, Bozo_Casanova said:

Ironically that’s why I like negotiating with lawyers on the other side- they get so wound around the axle about language that’s only disputed in catastrophic situations that they inadvertently wind up reopening commercial terms with real value.

Because in the event that those catastrophic situations happen, guess who catches the blame for there being "ambiguity" in the document?

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Posted (edited)
43 minutes ago, Eastwood said:

Because in the event that those catastrophic situations happen, guess who catches the blame for there being "ambiguity" in the document?

It doesn’t come up, seriously. When deals blow up it’s because of bad-faith breech, non-payment, performance issues or delivery, not narrowly tailored risk management language. The wagons get circled, we deal with it, and if there’s accountability after the fact it flows downhill through the business (ie, not middle or back office) after an analysis of root cause. 
The literal only time in 25 years I’ve seen a lawyer held to account after the fact over a contract that blew up it was because they didn’t spot an end-run around the termination language buried in definitions.

I've been lucky to have worked with great in-house and outside counsel virtually my entire career. They’ve provided extremely valuable support and partnerships, and I like to think that I’ve been a good partner in large part because I take full ownership of the commercial agreement and look to them for risk mitigation and structuring guidance.

Edited by Bozo_Casanova
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Posted
Because in the event that those catastrophic situations happen, guess who catches the blame for there being "ambiguity" in the document?

Only if you didn’t advise your client about the potential, but remote, risk, and let them make a business decision.
Good contract review isn’t hard: 1) these terms are really important, let’s get them right, or be willing to walk away; 2) these terms are somewhat important, let’s negotiate on them and maybe use them for some horse-trading (maybe you give on a couple of them, in exchange for a price break); and 3) these terms carry some remote risk (yes, this term provides that if every EU country is conquered by Tanzania in a war, the contract is terminated…I think there’s a pretty low risk of that happening, so you need to make the business decision of whether you can live with that risk), so decide if you can live with that risk. Note that the overall value of the contract has some bearing on the amount of risk to be tolerated.
Generally, if you spend a shitload of time haggling over category 3, you’re either a dumb client or a bad lawyer (spoiler: there are plenty of both out there).
Oh, and writing in plain English isn’t hard. But a lot of lawyers who are addicted to using forms that have been used and re-used for 20 years have a hard time with it. I’ve written good contracts on one yellow legal pad page on the hood of my truck. You will do x, and in consideration, I will do y, by z date. Yes, sometimes it’s specialized enough where you need lots of defined terms…so use your definitions section to make the meaning plain and clear. That’s what it’s there for.
Back to the topic: the SCOTUS will fuck this up 5-4 or 6-3, it’s just a question of how they’ll fuck it up.
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Posted (edited)
2 hours ago, Bozo_Casanova said:

And to be clear- I have a ton of respect for lawyers and revere the legal profession. But part of why I keep coming back to the point that the profession appears to be in an ethical crisis is that from the outside looking in, it seems that charlatans and grifters have been accepted as a legitimate form of practitioner just so long as they maintain a facade of professional standard. 

You're not wrong.  Just know that some of us still are pushing back against that with all of the logic and reason at our disposal.

Edited by dcbc
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Posted
1 hour ago, Brisketexan said:


Only if you didn’t advise your client about the potential, but remote, risk, and let them make a business decision.
Good contract review isn’t hard: 1) these terms are really important, let’s get them right, or be willing to walk away; 2) these terms are somewhat important, let’s negotiate on them and maybe use them for some horse-trading (maybe you give on a couple of them, in exchange for a price break); and 3) these terms carry some remote risk (yes, this term provides that if every EU country is conquered by Tanzania in a war, the contract is terminated…I think there’s a pretty low risk of that happening, so you need to make the business decision of whether you can live with that risk), so decide if you can live with that risk. Note that the overall value of the contract has some bearing on the amount of risk to be tolerated.
Generally, if you spend a shitload of time haggling over category 3, you’re either a dumb client or a bad lawyer (spoiler: there are plenty of both out there).
Oh, and writing in plain English isn’t hard. But a lot of lawyers who are addicted to using forms that have been used and re-used for 20 years have a hard time with it. I’ve written good contracts on one yellow legal pad page on the hood of my truck. You will do x, and in consideration, I will do y, by z date. Yes, sometimes it’s specialized enough where you need lots of defined terms…so use your definitions section to make the meaning plain and clear. That’s what it’s there for.
Back to the topic: the SCOTUS will fuck this up 5-4 or 6-3, it’s just a question of how they’ll fuck it up.

YMMV by which industry you are working in. For my industry, there is usually an imbalance of power in negotiations between my side and the opposing side for prime assets. "Just walk away from the table" isn't an option because I'm trying to secure rights that several other parties are competing over. It becomes a Game Theory exercise of who will pay the price to entry and who will eat the bad contract. Sometimes the price is so high and the terms so bad that nobody will accept (and that bar keeps getting lower and lower, setting precedents that make my job even harder). Sometimes the only way forward is to endure 6 months of haggling over the minutia, including a specific word being used here or there. Therefore, it becomes my job to find a way to make the language as acceptable as possible without running them off and I find myself going back and forth with opposing counsel over what should be obvious language. If I don't, there are two primary negative outcomes: 1. I hold firm and a competitor eats the bad contract. Bad for me from an optics standpoint, even if the competitor falls flat on their face. 2. I eat the bad contract and the liability bomb goes off in the future. Bad for me, bad for the company.

 

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Posted
YMMV by which industry you are working in. For my industry, there is usually an imbalance of power in negotiations between my side and the opposing side for prime assets. "Just walk away from the table" isn't an option because I'm trying to secure rights that several other parties are competing over. It becomes a Game Theory exercise of who will pay the price to entry and who will eat the bad contract. Sometimes the price is so high and the terms so bad that nobody will accept (and that bar keeps getting lower and lower, setting precedents that make my job even harder). Sometimes the only way forward is to endure 6 months of haggling over the minutia, including a specific word being used here or there. Therefore, it becomes my job to find a way to make the language as acceptable as possible without running them off and I find myself going back and forth with opposing counsel over what should be obvious language. If I don't, there are two primary negative outcomes: 1. I hold firm and a competitor eats the bad contract. Bad for me from an optics standpoint, even if the competitor falls flat on their face. 2. I eat the bad contract and the liability bomb goes off in the future. Bad for me, bad for the company.
 

You bet. It all comes down to a well-informed business decision. Sometimes, the best business decision is to eat the shit sandwich. The lawyered job is to make sure the client knows exactly what’s in the shit sandwich, and to help them negotiate the best bread and condiments possible.
Posted
2 hours ago, Brisketexan said:


Only if you didn’t advise your client about the potential, but remote, risk, and let them make a business decision.
Good contract review isn’t hard: 1) these terms are really important, let’s get them right, or be willing to walk away; 2) these terms are somewhat important, let’s negotiate on them and maybe use them for some horse-trading (maybe you give on a couple of them, in exchange for a price break); and 3) these terms carry some remote risk (yes, this term provides that if every EU country is conquered by Tanzania in a war, the contract is terminated…I think there’s a pretty low risk of that happening, so you need to make the business decision of whether you can live with that risk), so decide if you can live with that risk. Note that the overall value of the contract has some bearing on the amount of risk to be tolerated.
Generally, if you spend a shitload of time haggling over category 3, you’re either a dumb client or a bad lawyer (spoiler: there are plenty of both out there).
Oh, and writing in plain English isn’t hard. But a lot of lawyers who are addicted to using forms that have been used and re-used for 20 years have a hard time with it. I’ve written good contracts on one yellow legal pad page on the hood of my truck. You will do x, and in consideration, I will do y, by z date. Yes, sometimes it’s specialized enough where you need lots of defined terms…so use your definitions section to make the meaning plain and clear. That’s what it’s there for.
Back to the topic: the SCOTUS will fuck this up 5-4 or 6-3, it’s just a question of how they’ll fuck it up.

 

My first boss in private practice was a good-for-very-little solo, but he did have a few nuggets of wisdom.

 

1.  Whenever possible, you draft the contract.

 

2.  There are some cases you should lose but will win.  There are some cases you should win but will lose.  Preferably, there will be more of the former.

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Posted
8 hours ago, Bozo_Casanova said:

 

The evidence suggests that what is laughably called “originalism” is the jurisprudential equivalent of how extreme fundamentalist evangelicals use proof-texting to demonstrate that God commands us to stone gays here in 2024. 
 

Like finding the world “indictment” or “conviction” in the below text: 

 

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

We are going to see how “engaged in” actually means “convicted” per super smart judges. 

We are going to see super smart lawyers argue the President didn’t hold any office or was not an officer of the United States, after they argued the opposite to try and move the Georgia case to Federal court. 

It’s really fun when “or given aid or comfort to the enemies thereof” probably covers the people convicted of seditious conspiracy and Trump saying he will pardon the insurrectionists doesn’t cover giving aid? Or do we have to wait till he pardons them? And then remove him from the ballot?
 

 

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Posted
27 minutes ago, Neonmoon said:

Or do we have to wait till he pardons them? And then remove him from the ballot?

I laughed.  (I wish I hadn't, but any port in a storm.)

Posted
2 hours ago, Neonmoon said:

We are going to see how “engaged in” actually means “convicted” per super smart judges. 

As I write this, Heritage Foundation is drafting an amicus brief about how in 1675 a Special Court of Oyer and Terminer in Virginia found that a certain Goody Badwyfe and her woman Tituba “engaged in” consort with Beleth and thus caused William the Blacksmith’s nethers to swell with pus.

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Posted
As I write this, Heritage Foundation is drafting an amicus brief about how in 1675 a Special Court of Oyer and Terminer in Virginia found that a certain Goody Badwyfe and her woman Tituba “engaged in” consort with Beleth and thus caused William the Blacksmith’s nethers to swell with pus.

To “allegedly” swell with pus. Get it right.
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Posted
16 minutes ago, Brisketexan said:


To “allegedly” swell with pus. Get it right.

I don't think the colonist types were all that conscientious about the presumption of innocence.  

Posted
They'll find a way to keep him on the ballot, whether legitimately or not, but I don't know what it'll be based on other than "let the people decide"
That Postal Service Act language from 1792, specifically mentioning the President was an officer *should* be enough to say the 14th applied to him. Colorado's Supreme Court did a thorough analysis and determined he was engaged in insurrection.
SCOTUS justices swear an oath to support and defend the Constitution too, and the 14th is part of that.
Shit, he admitted the insurrection a day or two ago.
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