ISIS and Algorithms

Plus: Sarah's first tattoo.

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47

Sarah and David react as SCOTUS weighs in on social media regulations. Sigh. Also:

-Justice Jackson cutting to the chase
-Patent Act and dad jokes
-Reader Comments
-Judicial side eye for banning platforms for speech
-West Virginia and the abortion pill
-Constitutional rights and admission standards
-Happy Memorial Day weekend

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Comments (47)
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  1. Liquidvacation

    Hey Sarah, I'm following up from a couple months ago, I've kept a list going as I listen.

    A lot of the time you guys are great at explaining things to non-lawyers, but I've collected some terms over the past few months, some of which I think I understand, some of which are still greek (or, more likely, latin) to me, and all of which I'd like a cheat sheet for to refer back to when listening to AO.

    Could you please explain:
    -Dismissed as Improvidently Granted related to cert and denial: When this happens is the court disagreeing with a previous decision *it made* to grant cert? Like an "Upon closer inspection we don't want to deal with this" situation? What exactly is meant by 'improvidently?'
    -GVR: what it is, mechanism, results
    -Is "rational basis review" the same as "on the merits?"
    -Intermediate scrutiny, Strict scrutiny, arbitrary and capricious- what they mean, when they apply
    -Preponderance vs overwhelming vs other levels of evidence and their applicability
    -Summary judgement
    -Special solicitude
    -Tort
    -Bonk
    -Rule of leinity? Levity? Lenienty ? Lenin-ty?
    -Circuit vs district, state vs federal, levels of court and paths to supreme court. How things end up at the Supreme Court (all the paths, order of appeals, basically?)
    -District jurisdictions and what they're known for, other random courts like delaware chancellery etc.

    -Also, I'm super excited for your EPA waters discussion. I've heard the case hinges on the difference between "adjoining" and "adjacent?" I work in land surveying, so my interest is piqued.

    -Side note - I watched the Boston Marathon bomber doc on Netflix and they mentioned the terrorist wasn't Mirandized, and I had a sort of visceral reaction. What does and doesn't the Patriot Act do as of 2023? How often is it used, and in which ways?

    And finally, thanks for all you do! I really enjoy peeking under the hood of justice and understanding how things actually function, rather than the passing glance most news takes at these aspects. And you always manage to find the best special guest!

    Much appreciated,
    Nickolas
    Long Beach, CA

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  2. Austin302

    (Perhaps a topic for next episode) Regarding the 14th Amendment, could it perhaps be “invoked” *not* by the President, but instead by the holders of U.S. Government debt? Could someone who loaned money to the U.S. Government by buying a Treasury bond go into a District Court and ask for an injunction ordering the Treasury to continue making the payments required by that contract between the Government and its creditor? In that situation, the Treasury might argue that it can’t make the payment because Congress has passed a law (the so-called “Debt Limit”), which effectively orders the Treasury to stop making debt payments once the national debt hits a certain level. In response, the plaintiffs (Treasury bond holders) could argue that, to the extent that Congress’s law prevents making payments on existing debts, it is an unconstitutional law because it violates Section 4 of the 14th Amendment. Congress has no right to pass a law telling Treasury to stop paying existing debts, just like Congress has no right to pass a law telling the Treasury to abridge freedoms of speech, religion, etc. The 14th Amendment created a Constitutionally protected interest in the holders of U.S. Government debts. Congress still has power to tell the Treasury to stop making payments for all kinds of other things (new contracts, entitlements, etc.) but the Constitution prevents the Congress from ordering a stop to one kind of payment: debt payments.

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  3. UpNorth

    I think the problem with the TJ case is that it exposes the problems with a racially stratified society, namely that practically anything of significance can become a proxy for race. It would be ridiculous tell selective school or university admissions offices that they are forbidden to know what school a student went to or that they could not cap how many students they want to admit from any one school or jurisdiction. Yet by limiting the number of slots allotted to each middle school in TJ's admissions process, a completely race-blind policy, the outcome is that Asians get fewer slots -- and all because the schools are so highly segregated.

    I think that leaves us in a bit of a quandary. I do not think SCOTUS would be eager to try to say that anything that could be a proxy for race is off the table. It is unworkable and would make even using test scores suspect. And unless they are willing to do a 180 and say that diversity, particularly in the context of public education and its mission to serve a broad swathe of the populace, is not a compelling government interest, it won't ban admissions plans like TJ's. The only thing it might reasonably do is say that the particular circumstances surrounding the adoption of the TJ plan invalidate it, but I am not sure that would be at all satisfactory or provide any real guidance. I imagine that all such action would likely do is telegraph that policies that affect any racial balance should not be talked about in racial terms. After all, if comments from school board members were not part of the evidentiary record, I think the Coalition for TJ plaintiffs would have no case at all. In fact, I would imagine that if the TJ admissions plan is struck down, they may just opt for the lottery plan they had studied. Based on chance alone, the number of Asians admitted would drop substantially anyway. And as long as they do not say anything about race, I think it easily would pass legal muster and accomplish the same end.

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  4. HR⚕️

    It's a pleasure to listen to y'all each week! As a non-law-minded health care worker, I always learn something--actually, lots of somethings. David, I miss hearing your analysis that is weirdly easy to understand while also being super high-level on the Dispatch--and hearing your squeaky chair that reminds me you are a normal guy--, but glad I can hear it here on AO. And, Sarah, your unrelentingly and super-smart arguments make me smile and teach me so much--also there's a t-shirt at my local HEB with "Do it for the Brisket" that makes me always think of you.

    A totally off the topic question (maybe add it to the pile for one day you're low on material): How would you personally handle DEI training that requires you to sign-on to views that you don't hold, but completion is required for employment?
    Do you do it, because 'it's just not that big of a deal?'
    Do you do it, because 'I've got too many other things to deal with and this is low on my priority list?'
    Do you squabble with HR about it, but then finally give in after they've sent you 3 or 4 final warnings to complete it "or else?"
    Or, do you go to the mattresses and dig your heels in?

    I have a dear friend who is a university professor. Despite the fact that he's at a private, Christian institution, he's noticed that the language of their annual DEI "training" each year gets closer and closer to asking the "trainee" to affirm differences in gender/sex orientation (as opposed to merely encouraging tolerance and kindness toward ones who hold those different viewpoints).
    And, while many might presume that affirmation and tolerance are similar enough to be innocuous, there can be downstream implications...

    Anywho, happy Memorial Day weekend!

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  5. Jen Searcy

    Regarding "pin" and "pen"... I grew up in NW Iowa. In 4th grade, my teacher informed us that we were to acquire two red pens as part our school supplies. I'm not sure her provenance, but the way she pronounced it was "pins". Why only two? What would I do with the other 98 in the pack? It took me many days of uncertainty and stress to realize that what she wanted were "pens". I was a stellar student and the possibility of failure on that issue has clearly never left me. Context is not always obvious, so David....

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    CarsonJ

    Definitely on the team that spends the extra energy to pronounce words the "right" way, even if it's a little harder. The "wh" in words like "why, "when" and "where" originally represented an "hw" sound and that's why they're spelled that way, and when I learned that I tried pronouncing those words that way. More work but it just felt right.

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  7. Randall Briggs

    Dear Sarah:

    Please don't feel compelled to get a tattoo.

    The explosion of tattoos among younger adults--including my nieces and nephews--is part of what makes me feel like we live in a national freak show. Once upon a time, you paid 50 cents at a carnival to see "the Tattooed Lady." Now, she sits beside you on an airplane.

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      Dave T

      It's not a freak show if everyone has a tattoo 😁

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    An Actual Cat

    I, for one, would like to know what Sarah has against "Succession". I'm curious about what has rankled her about this last season.

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    Bill Dyer (aka Beldar)

    Save yourself some pain and expense, Ms. Isgur, and for your tattoo, just go with "YMMV."

    In fact, save yourself ALL the pain and expense, and don't get a tattoo. Different facts and different circumstances may prompt a different decision from or for a different person, but don't YOU be that tattoo'd person. (PS: Given the number of business restructurings over which your father has presided, I am unsurprised that he can mend turtles.)

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  10. Jon craig

    I was involved in discussions surrounding a proposed program in Charlottesville that would've provided public funding and other support to members of specified minority population groups seeking investment capital for new business ventures. It seemed obvious to me that it would be unconstitutional to expressly include only minority entrepreneurs in such a program. The almost unanimous push back to my position was that white entrepreneurs already have access to such resources, and, therefore, they were not being discriminated against impermissibly. The debate proved to be academic because the program was never implemented, but I maintain that my analysis was correct.

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    1. Michael.Mcchesney

      While many white people have access to capitol, not all white people do. There is no special access to capitol for being white. But for some people group identity is all that matters. Some of us have a crazy belief that people should be treated as individuals. I think you might share my insanity in that regard.

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        Scarlette Tarte

        Sure, they should be. But, alas so many people still judge people of color AS A GROUP. And as long as that is the case, as long as some are wrongly not judged as individuals, then we will have to continue to use group identity. After all, more is accomplished by sticking together, than by fighting alone.

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    2. MathewA

      Agreed. race based programs are pretty much the definition of discrimination

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