Twitter Sues Elon Musk to Force Acquisition

David and Sarah cover a full spectrum of cases and interesting news today. First up: ...

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David and Sarah cover a full spectrum of cases and interesting news today. First up: Will a judge order Elon Musk to buy Twitter? Our hosts address the Texas res judicata case (pronunciation courtesy of a Latin expert); Boycott, Divest, Sanction (BDS) laws; and an abortion travel case. They also answer a question from listeners about the Second Amendment and militia precedent.

Show Notes:

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  1. Avatar photo
    Ben Connelly

    On the dishes, the answer is that you take your roommate aside and explain in no uncertain terms that an adult takes care of his own messes and doesn’t let them become a burden upon other people.

    I’ve had roommates like that. One guy who was a few years older than me (and was theoretically the adult in the house in that he had a job and two degrees and we were in college) left a pile for a month until it filled the entire sink and the drain clogged so bad I had to plunge it (with the plunger from the toilet). I cleaned the sink and all of the dishes and it took me an hour. When I came home, I pulled him aside and explained what had happened and that I would never do his dishes again for him. And he was actually pretty good about doing them after that.

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  2. Avatar photo
    Reed Benet

    David and Sarah. We and the universe are totally aligning? Days after I suggested in an email to you that Professor Amar be a guest, you had him on! Staff says that he was already scheduled, so all kudos to you. And then in an email compliment I sent to Professor Amar, in the context of both Originalism and Textualism I asked him about the militia clause in the 2nd Amendment. Then I catch up on this podcast and you're dealing with exactly this!

    I enjoyed both your and David's commentary, but as a not lacking in hubris layman (or, as we said in the Marine Corps, "seabag", i.e. we sit on our seabag and pontificate) lawyer me has these comments regarding Scalia's and your interpretations:

    1. I disagree with the prefatory and operative clause logic that prefatory clauses do not exclude other interpretations of the operative clause. Rather I say they speak to the SPECIFIC, LIMITING, and thus LIMITED meaning of the operative clause. I heard in another podcast (Politicology?) that Scalia used to say that every word in the Constitution is important. If this is the case, and you don't want to limit the operative clause for other interpretations, you DON'T have and certainly DON'T need to have a prefatory clause. This is all illogical.
    2. I disagree with the militia versus specific militia argument. While I understand the history and think it's relevant that the colonists didn't want a specific militia (i.e. standing army or even as per David a NATIONAL Guard/militia) to limit to disarm them and thus infringe their rights, I think this militia clause and the entire 2nd Amendment means is that for the purpose of a STATE well regulated militia the right to keep and bear arms shall not be infringed, so uninfringed keeping and bearing is only within this context. This is classic states rights versus Federalism stuff, which is as old as the creation of this country, and the plethora of supporting his interpretations pale in comparison to the debated and written and Civil Wars fought over this examples of this.
    3. Someone who is a real and honest and unhypocritical originalist and textualist please tell me if even the broadest interpretation of the right to keep and bear clearly (to even at all) allows for the right to do such beyond with unrifled muzzle loading black powder pistols and rifles.
    4. Thus, I think that someone who argues that the Second Amendment is completely clear is either stupid or intellectually dishonest, and any logical arguments they make here or regarding anything else are suspect. Ah for the change or elimination of just one or a few commas in the Constitution! I can fully understand other interpretations, but the arguments we're having is because the 2nd Amendment is clearly UNclear.
    5. Furthermore, I think the strict originalist thing falls apart and that there is no need for a living Constitution argument falls apart when it comes to slavery, which I would hope all of any to say natural rights related decent morality would be against. And yes we fought a Civil War over it, and the Constitution was amended. And I also am sympathetic to the present Supreme Court, particularly with the recent gun cases, requiring the legislature to actually legislate. But the lock step lack of understanding that there is a need for interpretation beyond textualism and examining our morality today shouldn't be foregone lightly.

    I welcome your comments, if any of the above are worth them.

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  3. John

    In the fall of 1970, I was in my first semester of law school at the University of Illinois. We started to encounter Latin terms in the law such as res ipsa loquitur, writ of scire facias, sua sponte and many others. The one thing the prof was quick to point out is to never ask a Latin student how to pronounce a term because they don't know. The reason being is that the pronunciation of these terms are vested in "lawyer's Latin" and not actual Latin. Just a remembrance.

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  4. Isaac Demme

    OK, I was also disappointed by the militia clause discussion, but for a different reason than most here.
    How on earth did we have a discussion of the militia clause without even mentioning Eugene Volokh's excellent (and I would say definitive) article on that question? Scalia even cites this article right there on page 3 of Heller when the militia clause first comes up!

    https://www2.law.ucla.edu/volokh/common.htm

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  5. Michael.Shermanbklyn

    On your choice of Akhil Amar to defend the progressive argument on abortion rights, you do understand, don’t you, that Amar believes that Roe was wrongly decided. I fear he cannot defend the constitutional right of people with the capacity for pregnancy to choose to have an abortion, and, more broadly, the protection of an expanded right of privacy under the constitution. Please keep that in mind during your interview. This is what I think folks wish to hear. We want someone who disagrees with the majority, not someone who is progressive but believes that Roe was incomrrectly decided.

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  6. Michael.Shermanbklyn

    I am disappointed in your discussion of the prefatory clause of the 2nd A. I believe that Heller was unconvincing and clearly wrong, but I blame Breyer for not writing a more compelling dissent that addresses Scalia on his own terms — the need for which Sarah has stated repeatedly when discussing Kagan’s dissents. Kagan developed her skills as student, professor and dean of the Harvard Law School during the critical legal studies period and the establishment of the Federalist Society. She has lived the debate and knows the language.

    The one point that I think a decent dissent (and your podcast) should have addressed is not the rationale that Scalia makes in Heller for the self-defense right, BUT a refutation of that rationale. A far more compelling analysis (which Breyer should have made) is that, as public safety is the most local of concerns, and as an unfettered personal right of self-defense exists in a state of nature, but not in civilized society, the prefatory clause clearly was included to limit the right to keep and bear to the context of participation in a militia. It should not include the right to pack a hand gun in Walmart in 2022.

    The historical context of gun ownership in colonial times is not relevant as, particularly if one lived on the frontier, one was much closer to living in a state of nature than we are today.

    It is time for that argument to be cogently made so that in 50 years with persistent attacks by the anti-gun lobby, the Court might overturn Heller and Bruen, both.

    While I love the flagship pod, listen every week and dutifully subscribe to The Dispatch eventhough I typically only listen to AO and The Dispatch, this episode again highlights the deficiencies of a podcast led by two conservatives, and in the case of David, one with strong gun rights views. We didn’t need you to revisit Heller as we can all (and should) read it ourselves. We need you to dissect Heller and Bruen, as Breyer, in both cases failed to do a credible job. His Solomonic view of a justice’s role takes him out of the textual debate and limits him to discussions of the correct public policy. And we all know that is the function of the legislature, not the judiciary.

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  7. Avatar photo
    Jacob

    Rumsfeld v FAIR (2005) is just an example where the military gets special favor under jurisprudential analysis. It happened in Hirabayashi's Equal Protection context (1941) and in Goldman v. Weinberger's Free Exercise context (1986).

    FAIR also was in the context of conditions upon spending, where the government generally gets greater deference.

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  8. Avatar photo
    Jacob

    Scalia also had another point in Heller that seems like the strongest one: throughout the Bill of Rights, "the right of the people" refers to individual rights.

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    1. Avatar photo
      Kmregan7

      But you'll notice that "right of the people" doesn't refer to individual rights when it comes to abortion. Of course, Alito isn't Scalia.

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      1. Avatar photo
        Jacob

        None of the Bill of Rights apply to only half of the people though.

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    Jacob

    What gets missed about Pruneyard was that it was principally a property rights case. Property rights, including a right to exclude, are defined by positive law. The California Supreme Court said that the mall owner's property rights didn't include a right to exclude non-problematic (i.e., not too loud, just handing out literature) advocacy in the main throughways of malls if they weren't blocking people from going back and forth.

    Maybe if a Takings Claim had been brought, the case would have played out differently, but the Supreme Court had already watered down the Takings Clause in Penn Central two years prior.

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  10. Fiona B.

    This episode was interesting as always. When you brought up the abortion travel question, it made me think about some of the implications. Abortion and right to travel are very serious issues, but I think some of the implications of setting precedents allowing states to control what their residents do in other states could be rather UNserious. For example, I go to college in the Chicago area. The last few miles on the Indiana turnpike, there are a ton of billboards for Krazy Kaplan's Fireworks because firework sales are illegal in IL. If some state really didn't want any fireworks, would they try to ban their residents from going across state lines to get stuff for their backyard 4th of July party? Honestly, this sounds ridiculous!

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    1. Avatar photo
      Kmregan7

      Fireworks are a little different than a medical procedure that, for some people, is equivalent to murder.

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