Category: 3-LawSometimeCommentary

Continuing our long slog through the end-of-Term opinion dump, it's fraud day! We dig into Kousisis v. United States and Thompson v. United States, two interesting federal criminal law puzzles. 

The official history of America’s founding is often told as a whites-only story, a heroic tale of wealthy white men forging a new nation—with no mention of the people they excluded, displaced, or oppressed. But who gets left out of the story that “originalists” like to tell about the law? This week Mark Joseph Stern talks with Maggie Blackhawk, professor at NYU School of Law, and Gregory Ablavsky, a professor at Stanford Law School, about Native nations at the time of the founding, some of which were very much on the scene as the Constitution was being debated and ratified. What did they think about it? And does asking that question obscure a much more complicated—but more accurate—examination of the founding?

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OA1180 - We begin with some much-needed reminders that good things are still happening and the rule of law is still (mostly) holding on before turning to a recent Trump executive order on homelessness which reads like something out of a (not very good) Batman movie. Jenessa explains how this development fits into the history of long-term institutionalization of vulnerable and unhoused people in the US as we work through what this thing is actually trying to do. In an unfortunately not-at-all-unrelated story, Matt then breaks down the situation with Florida’s “Alligator Alcatraz” (aka “Gator Gitmo”), the pending challenges to this completely new (and totally illegal) approach to state-based immigration detention, and where this is all going.

Finally, in today’s footnote: has ChatGPT finally made its first hallucinatory appearance in a judicial opinion? We investigate not just one but two recent instances of federal judges who have now joined the many lawyers caught using AI to do their homework.

• “Ending Crime and Disorder on America’s Streets,” The White House (7/25/25)

• Complaint in Friends of the Everglades v. Noem, filed 6/27/25

• Complaint in C-M. v Noem, filed 7/16/25

• Defendants’ Unopposed Motion to Clarify in Mississippi Association of Educators et al v. Board of Trustees (7/22/25)

• Judge Henry Wingate’s order in Mississippi Association of Educators v. Board of Trustees declining to clarify decision of July 20, 2025 (8/1/25)

• Defendant’s letter to Judge Julien Neals in In re CorMedix Securities Litigation (7/22/25)

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VR2 - Vapid Response Wednesday returns live on video for another round of bad-faith legal takes from the American right’s leading--well, let’s just go with “minds.”

We begin with a quick check-in on the divided state of the U.S. “sovereign citizen” movement via a short explainer video in which one of its leading grifters denounces a whole new set of grifters who are promoting the concept of an “American State National.”

We then plumb new depths of dumbassery from Harvard Law school professor/crypto-theocrat Adrian Vermeule. In a recent New York Times op-ed, Vermeule has called out the true villains of the American judiciary: lower court judges who aren’t doing exactly what Adrian Vermeule imagines the Supreme Court has told them to do. Matt breaks down why this column doesn’t provide a single example of the trend it purports to be exposing, and Lydia has the details on one of MAGA’s favorite legal scholars. Who is Adrian Vermeule, what is “Catholic integralism,” and why is a man who has previously gone to so much effort to hide his true beliefs behind “common-good Constitutionalism” showing his entire ass in the pages of the NYT?

Then, we preview a *patron-only* bonus where we go into overtime to witness the spectacle of Alan Dershowitz’s lengthy but extremely unconvincing arguments as to why everyone should be required to sell him pierogi under force of law. If you want to be sure to not miss that, you'll have to go to patreon.com/law!

• Watch this episode on YouTube! https://youtu.be/-GyGbd-GUbs

• "What is the difference between American National and American State National?" Kelby Smith (Youtube link)

• “Someone is Defying the Supreme Court, But It’s Not Trump,” The New York Times, Adrian Vermeule (7/25/25)

• SCOTUS shadow docket order in Trump v. Wilcox (05/22/2025)

• SCOTUS shadow docket order in Noem v. Doe (05/30/2025)

• SCOTUS shadow docket order in DHS v. D.V.D. (06/23/2025)

• SCOTUS shadow docket order in DHS v. D. V. D. (07/03/2025)

• Harvard Students' Letter to Administration re: Vermeule (11/09/2020)

• Vermeule Responds to Harvard Law Faculty's Letter to Students re: The Rule of Law under the Trump Administration (03/30/2025)

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We continue our discussion of the deep issues raised in the case of US v. Skrmetti.  Last time we observed the Court wrestling with questions of whether the Tennessee law banning gender dysphoria treatments in minors was a form of sex discrimination.  Later in the argument the Court addressed the question of whether transgender individuals, or some related group, constituted a so-called “suspect classification” and therefore laws purporting to affect that group would be subject to close examination (“Scrutiny”) by the Court.  In this episode we listen, and react to, those arguments as the Court itself did.  Professor Vik Amar returns to join Akhil in this task, and rightly so, since the “brothers in law” have written several recent posts on the deep questions raised by this and other recent cases.  This has resulted in a new unifying theory which they begin to articulate in this episode. CLE credit is available for lawyers and judges from podcast.njsba.com.

OA1179 - Dr. Timothy Leary is best remembered today as the Harvard psychologist who told America to “turn on, tune in, and drop out” with psychedelics in the 1960s. But did you know that “the High Priest of LSD” was also one of the most famous people ever to bring a criminal case to the U.S.. Supreme Court?  Jenessa shares her scientific perspective on Leary’s “research,”  and Matt explains how a minor California marijuana possession charge led to Leary’s unbelievable life on the run as an international fugitive across four continents and his eventual association with not just one but three of the era’s most notorious radical groups. We then review Dr. Leary’s conviction under the Marihuana [sic] Tax Act of 1937 and how Leary v. U.S. changed everything about drug enforcement. (Also discussed: the unexpected origin of the Beatles song “Come Together,” the benefits of podcasting on acid, and what psychedelic research and regulation might have looked like in an alternate Leary-free timeline.)

• Leary v. US, 395 U.S. 6 (1969)

• Letter from the American Medical Association opposing passage of the Marihuana Tax Act of 1937 (7/10/1937)

• The Most Dangerous Man in America: Timothy Leary, Richard Nixon and the Hunt for the Fugitive King of LSD, Bill Minutaglio and Steven L. Davis (2018)

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Leah and guest co-host Mark Joseph Stern of Slate and the Amicus podcast run through what’s been happening in the courts this week, including disturbing attacks on judges, the confirmation of the extremely unsavory Emile Bove, and Amy Coney Barrett’s upcoming appearance with Bari Weiss. Then, Kate and Melissa speak with Jessica Calarco, sociologist and professor at the University of Wisconsin–Madison, about her book, Holding It Together: How Women Became America’s Safety Net.

Hosts’ favorite things:

• Mark: The Subway, Chappell Roan; Uncle Bobby’s Wedding, Sarah S. Brannen & Lucia Soto
• Leah: Life Is a Lazy Susan of Sh*t Sandwiches, Jennifer Welch and Angie Sullivan; The Chrysalis Option, Eric Coulson; DOJ's (Ridiculous) Misconduct Complaint Against Chief Judge Boasberg, Steve Vladeck (One First); Dept. Q (Netflix); NY Times Pitchbot on SCOTUS

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• 10/4 – Chicago

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It’s easy to give up on the courts right now. SCOTUS is throwing down unreasoned decisions expanding Donald Trump’s authority, and Senate Republicans keep confirming the president’s cronies to lifetime judgeships, tarnishing the entire judiciary with their corruption.  But there are judges—courageous, hard-working men and women—who have chosen a different path and are fighting to protect democracy and restore our civil rights. In his new book, Better Judgment: How Three Judges Are Bringing Justice Back to the Courts (out Sept. 2), Reynolds Holding tells the story of three of these judges and how they are laying the groundwork for a post-Trump future in which the courts serve as guardians of liberty rather than instruments of autocracy. Holding speaks with co-host Mark Joseph Stern about these judges’ refusal to accept business as usual and vision of a court that truly delivers equal justice to all. 

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OA1178 - Our conversation with former San Francisco DA Chesa Boudin continues with a closer look at the accomplishments of his term, what progressive prosecutors can realistically expect to be able to do within the constraints of the current system--and why they are the last people who should expected to do it--and what was really behind the 2022 recall campaign which removed him from office. 

• Chesa Boudin’s faculty page at UC Berkeley Law

• Chesa Boudin’s academic publications, SSRN

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VR1 - Welcome to Vapid Response Wednesday! Rather than explaining law in the news as we have for years on Rapid Response Friday, Thomas, Lydia, and Matt are going on the offensive in this live video series to respond and react to the stupidest takes that we can find--and we’ve got just the guy for our first pick! We begin with former Jeffrey Epstein defense attorney Alan Dershowitz’s recent piece in the Wall Street Journal in which he literally claims that “there is nothing more to see here” on the Epstein case while filling in the facts of what we know from reliable reporting and court records. What is Dersh not telling us here about his own involvement with Epstein, the unbelievably corrupt federal non-prosecution agreement which he secured for his client in 2007, and all of the other many reasons that he might not be a trustworthy source on this question? We then take on one of Matt’s all-time favorites: a well-known 1996 video presentation from far-right immigration restrictionist organization NumbersUSA in which founder Roy Beck takes the stage to set the Guinness world record for Biggest Strawman Made Entirely Out of Gumballs.

• “The Inside Scoop on Jeffrey Epstein,”  Alan Dershowitz, The Wall Street Journal (7/15/2025)

• “Alan Dershowitz: Devil’s Advocate,” Connie Bruck, The New Yorker (7/29/2019)

• “Immigration, World Poverty, and Gumballs,” NumbersUSA (originally distributed in 1996, uploaded to YouTube in 2010)

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