2023 Year In Review And 2024 Predictions (With David Lat)

Also: philosophical font disputes.

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Sarah joins David Lat’s Original Jurisdiction to review 2023’s best (and worst) legal cases and lawyers and make some hopeful (and less hopeful) predictions about the coming year.

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Comments (59)
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  1. Rs

    I'm so glad I found AO last year! I've come to rely on it to help me wade through the spin and understand important court cases. With that in mind, please help me understand the 5th's opinion on EMTALA. Is the opinion a solid one, or based on weak logic? Do Texas emergency doctors have to rely on affirmative defence?

    Obviously, I'm very hopeful you'll do an AO podcast on it.

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  2. MathewA

    regarding fonts, when learning to read sans serif fonts are an abomination

    How would a 5 or 6 year old understand that

    I've literally seen the word "I'll" as the equivilant of three straight lines lll

    Please if you are publishing a kids book, include the feet

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    WilliamJ

    Hey, Sarah, none of us look at the letters, we actually skip over most of the words. It's *very* complex, and not completely understood, but fluent reading is inherently skipping along.

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    1. MathewA

      My understanding from listening to the "Sold a Story" podcast as well as some other learning to read podcasts is that actually yes we do read all the letters, which is why phonics (learning to sound out words) is SO important.

      But good readers do this amazingly fast so fast they don't even realize they are doing it, so fast you think you are sight reading.

      They did one study where they made up a new alphabet and where teaching people to read it. one group learned sight words, the others learning it phonetically. At first the sight words group was faster but after a bit the phonics group took off and left the other group WAY behind.

      Apparently there's a special process in the brain as you attach words to sounds that is very important.

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        WilliamJ

        Interesting. I guess that's why it's so complex. I read in a (non-academic) journal that you're eye skips along, only resting on an occasional word.

        I think phonics is crucial to becoming fluent, but perhaps the fluent reader skips along...?

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  4. Teresa Brazil

    Any thing for the hearing impaired? Podcast are useless. Thanks

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      Kmregan7

      Transcripts- people have asked for transcripts for a long while now (including me!)

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      1. Davidbenjaminlat

        I've posted a transcript for this episode over at Original Jurisdiction (link below). I include transcripts for all my podcast episodes. There's a service called Rev.com that produces fairly accurate ones at an affordable rate; I spend a little time cleaning them up, but it's not too bad.

        The transcripts generated by voice-recognition software are terrible, and trying to fix those—which is what I used to do—would take me hours. Rev.com uses human beings, who have common sense, exercise good judgment about punctuation, and look up things like case names. You can also create a "glossary" for each episode, where you provide correct spellings for terms that are frequently used.

        One thing I will say about transcripts, though: they dramatically reduce the number of people who actually listen to the episode. This is especially true if your audience consists mostly of lawyers, as mine does; lawyers love to read—or, more accurately, skim. And I do think the experience of reading a transcript of a podcast isn't the same as the experience of listening, just as reading a transcript of a trial or appellate argument isn't the same thing as listening (or attending in person).

        For folks who are hearing impaired, I understand that transcripts are necessary, which is why I happily provide them. But if you're able to listen, I recommend listening; it's how podcasts are meant to be consumed.

        Here's the transcript of this episode:

        https://davidlat.substack.com/p/2023-year-in-review-and-2024-predictions

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        1. Teresa Brazil

          Sorry. It is all noise listening to podcasts. Must lip read and hear at the same time and still miss a bit.

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  5. William Hodes

    Here's a further entry on the Trump Trial Sweepstakes.

    I agree with those saying that it's extremely unlikely that any one of the cases comes to trial before the November election.

    But my chief prediction is on the verdict side: no convictions, ever, but an unending series of hung juries instead.

    No matter how much care is taken during voir dire, I just don't believe it's possible to seat a jury in any jurisdiction that fails to include even ONE juror who has successfully concealed an unalterable commitment to vote for all acquittals all the time.

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  6. William Hodes

    Sarah and both Davids repeatedly mistated the SCOTUS vote in Bush v. Gore.

    The Florida Supreme Court's 4-3 decision (which the Florida Chief Justice, dissenting, branded "a judicial coup d'etat,") was found to be a violation of Equal Protection Clause of the Fourteenth Amendment by a 7-2 vote in the United States Supreme Court.

    The vote to dismiss rather than remand for a newly devised (constitutional) recount was 5-4.

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    1. Davidbenjaminlat

      The remedy in the case was the only thing mattered. That was what decided the election—and the fate of the nation.

      And what, pray tell, was the vote on the remedy?

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      1. William Hodes

        As I noted in my Comment, David, the vote on remedy was 5-4 in favor of not continuing with the unconstitutonal recount (of course), but also not starting a new recount that would be constitutional.

        But the critical vote in favor of Bush and against Gore (aka the Florida Supreme Court) was still 7-2, not 5-4. Here's why.

        If SCOTUS had not first rejected the ongoing recount---the judicial coup d'etat, according to the Florida Chief Justice--on substantive federal constitutional grounds (Equal Protection), there would have been no call to fashion some substitute remedy. The recount in selected counties would have continued with the constitutional imprimatur of SCOTUS, and Bush or Gore would have prevailed.

        But in the view of 7 SCOTUS justices, this would have allowed the Florida Supreme Court majority to succeed in its mission to "select" the next POTUS, the federal Constitution be damned. (Don't forget that the Florida Supreme Court's first crack at it was unanimously reversed by SCOTUS!) So SCOTUS refused to close its eyes to a violation of the federal Equal Protection Clause and put a stop to the selective unconstitutional recount. (By a 7-2 vote, all concede.)

        But what now? The Florida Executive (in the person of the Secretary of State) had only 4 (I think) more days to certify the existing (still tentative at that instant) results, or Florida voters would lose all of their voting clout to the operative federal statute. Could a brand new--and constitutional--recount protocol be devised, completed, and the results appealed to and through both the Florida and U.S. Suprmee Courts in time? No way, said 5 SCOTUS justices; just shut it down.

        The urban myth that Bush v. Gore was a 5-4 rather than a 7-2 decision was eagerly embraced by the media, but at least the hacks there had something of an excuse--they can't do serious legal analysis, and their readers and their bosses don't want them to anyway. But liberal law professors who do know better jumped on the bandwagon--Larry Tribe a chief culprit--and bloviated to the end of time about how 5 justices decided the election, with the result that no Bush judicial nominee should be confirmed during his term.

        Bill Hodes
        Professor Emeritus of Law, Indiana University
        Law Clerk to Justice Ruth Bader Ginsburg, OT 1996

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        1. Davidbenjaminlat

          I do want to be as technically accurate as possible, so let me ask you a question. Can you complete the following sentence for me in a way that meets your standards for technical correctness?

          "Bush v. Gore was a 5-4 decision [on/as to/with respect to/regarding] ______."

          I'm happy to use your locution going forward. I do want to be technically correct.

          And I suspect that there IS a way to complete my sentence above. There were definitely five votes FOR something and four votes AGAINST something. After all, this sentence appears in your comment above:

          "No way, said 5 SCOTUS justices; just shut it down."

          So I guess another way of phrasing my question is this: what in your view is the legally, doctrinally precise way to paraphrase your "just shut it down" sentence above?

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          1. William Hodes

            That is a fair question, and nicely framed. But in order to avoid a crazy-long single compound sentence, I'm going to break up my attempt at a response. (And I apologize in advance for resorting to CAPS from time-to-time, because I haven't figured out how to employ italics on this site.)

            As is often the case, Bush v. Gore proceeded in two distinct phases, one substantive and one procedural (which was in this instance essentially indistinguishable from remedial).

            With respect to the substantive constitutionality of the THEN ONGOING recount authorized by the Florida Supreme Court, SCOTUS ruled by a 7-2 vote that in both design and operation, it violated the Equal Protection Clause of the (federal) Equal Protection Clause. THEREFORE, whether that recount resulted in a larger margin of victory for Bush or a victory for Gore had no legal significance. Accordingly, the recount THAT WAS BEFORE SCOTUS had to be, and was, terminated.

            But that was not the end of the matter. Perhaps, some argued, if the case was remanded to the Florida courts, a new and constitutonal recount procedure could be crafted and the recount carried out. Perhaps the recount could be concluded within the four days before the congressionally established "safe harbor" deadline that would ENSURE the counting of Florida's electoral votes. Or perhaps Florida's electoral votes would still be counted, even if a final result was certified by the Florida Secrtary of State even AFTER the safe harbor date.

            By a 5-4 vote, SCOTUS ruled that these "possibilities" were NOT actually possible, and therefroe left the case where it stood after the 7-2 substantive ruling on the Equal Protection Clause: the recount that had been approved by the Florida Supreme Court was terminated, NO NEW RECOUNT COULD BE PUT IN ITS PLACE, and therefore the Florida Secretary of State was free to (and required to by State law to) certify Bush's narrow victory.

            The five justices in the 5-4 majority on the remedial issue conceded that a constitutionally valid recount procedure could barely possibly be devised and implemented within the remaining 4 days before the federal deadline, but found that it was IMPOSSIBLE that any party agrieved by the results of that recount could ALSO mount a legal challenge in the Florida courts and then in SCOTUS within that same short time period.

            The 5-4 majoirity also rejected the possibility that after remand, Florida could perform a new recount and certify its new result AFTER the safe harbor date, but for a different reason: the Florida Supreme Court itself had determined that, as a matter of State law, Florida was determined to MEET the deadline, and was unwilling to risk losing the ASSURANCE that its Electoral Votes would be counted.

            BTW, strictly as a historical aside, we should be clear that the complaint that "Bush was selected, not elected" has no salience, whether the claim is that Bush was "selected" by 5 justices or 7.
            We can say with well over 99% certainty that Bush's election was attributable to ONE person only--Ralph Nader!

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    Michael McGuire

    Sarah, I beg of you, please look up the American pronunciation of “sans”. That is all.

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      Sarah Isgur vertical-nib Author

      I don’t even know how I say it. Like sands or like saute?

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        Michael McGuire

        It’s pronounced like “sands” without the d.

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          Sarah Isgur vertical-nib Author

          lol since it’s not an English word—like voir dire and certiorari and lots of other imported terms—I think it can be pronounced in quite a few ways just like those other terms. The justices can’t even agree on certiorari so I think I’m good here:)

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            Michael McGuire

            You’re right. I probably shouldn’t have spoken with such conviction. I will say as a software engineer I have worked a lot with both fonts and designers and have always heard it pronounced “sands”. And Google seems to agree with me as well.

            Ultimately, I am just happy with any font content on The Dispatch Podcast network… 🤓

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    Bradley Alpert

    Really love this year-in-review! As a non-lawyer, I don’t always have the patience to listen to every episode of AO. But this one hit so many fascinating themes that it’s not to be missed.

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  9. Chris

    Seems a little unfair to me that you keep comparing DeSantis with Newsom. While DeSantis has had a number of defeats at the district court, virtually all of them as I recall are by Robert Hinkle who is nearly always reversed on appeal. And DeSantis' bills tend to involve speech by state employees in the public education system, whereas Newsom is trying to have the state engage in content moderation of private companies like twitter.

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  10. McScott

    Sarah and David (either David!)... I have a question. Next week I am inaugurating a 'J-Term' intensive at my high school on SCOTUS. I would like your advice. I would like the students to listen to an oral argument, or at least part of one. Do you have a recommendation for me? It wouldn't need to be tied to a case I plan on covering, but I would like them to hear the court at work, and a particularly a feisty one (these are high school students, and I will have to work hard to keep them engaged for a week!) with lots of give and take between the justices and the advocates would be nice. Your advice in this manner would be much appreciated.

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    1. Davidbenjaminlat

      It's a bit long (so maybe you can do excerpts), but the argument in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is both delightful and insightful. Sarah and David (French) had a great breakdown of it on AO (although I can't seem to find the link to the episode right at this moment), and I also wrote about it on Original Jurisdiction:

      https://davidlat.substack.com/p/judicial-notice-102222-not-so-good

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      1. McScott

        Thank you! I will look into that.

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