The law can be dry, does that mean that lawyers are anti-poets?

This question came up in response to a new Elon Musk tweet that asserted, “Laws are on one side, poets on the other.” I think that it’s wrongheaded and under appreciates what lawyerly skill entails.

The best lawyers are often poetic (even if it doesn’t seem that way in certain filings/statements), since skill with the law requires keeping multiple possible meanings in your head at the same time. Just writing a contract requires something that may look like anti-poetry, but the reason is that the drafting lawyer is going through the process of anticipating possible alternative meanings and excluding them.

Poets, too, have to anticipate possible alternative meanings, though they only exclude the ones that disrupt their intent and deliberately import those ambiguous, multiple-meaning phrases that enhance their intent. Likewise, when the lawyer isn’t drafting something precisely, but rather finding the advantage in something already written (often a statute, but it could be a contract previously drafted), it’s to the client’s great advantage for the lawyer to see multiple meanings in single phrases and craft an argument that employs the most favorable meanings rather than the most obvious ones.

Skill with puns and poetry is correlated with skill in the law. If you’ve got puns, poetry, and logic all down, you’ll probably be great.

Critical Race Theory: Videos by people much more fun than me

For our next fun & games with CRT, I’m just going to share two good videos. One is very non technical while still getting most everything right. I like it a lot. Whatever quibbles I have with it I’m not going to bother with because right now I just want you to hear something from a lay person about CRT because hopefully whatever language they use will be more accessible and less wordy than whatever I would say. (Yes, I’ve heard myself speak. Can’t really help it. Sorry/not sorry.) This first, non technical video was actually suggested in the comments so if you’ve been following along in the comments, you might have already watched it. If you haven’t though, your narrator and host goes by the handle T1J and is excellent. Get to it:

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Critical Race Theory: Questions, Answers, Feelings, and more Questions

A few weeks ago Marcus Ranum asked me via a secret backchannel communication conduit (read: email) if I wanted to tag team some CRT education here on FtB. I said sure, but then quickly hit writers’ block. (And also didn’t keep up with the email. Sorry, Marcus! It’s all me, you did nothing wrong!). The biggest reason I’ll get to at the end, but it hugely contributed to the block. My second biggest problem, though, would have been enough on its own even without the biggest: There’s so much to write about! And although I might possibly be the only blogger on this network who has actually studied this stuff in the law school classrooms where it was meant to be taught, that doesn’t mean I’m an expert. Far from it.

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Vice-Presidential Precedent

Mike Pence has ruled out invocation of the 25th Amendment. I could try to analyze his entire statement, and I’ll post it below, but right now I just want to focus on one sentence:

Invoking the 25th Amendment in such a manner would set a terrible precedent.

Let’s be clear here, Pence is claiming that it would be wrong to communicate to future presidents who aspire to tyranny and the violent overthrow of our constitutional order that such a betrayal of our nation and our constitution renders one, by definition, unfit to hold the power of the presidency.

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Trump: The Worse Fate

So I had thought a bit about self-pardons and Trump, as you might have read. I had also thought of civil cases being brought against Trump. But the last week has been so hectic I didn’t even stop to think about the tradeoffs between self-pardons and civil cases. (To be fair, the consequences for the country are more important to me than the consequences for Trump.)

But ABCNews has a piece up that directly addresses civil liability and briefly raises the fact that a pardon of any kind (issued by Trump to himself or issued by any subsequent president to Trump) is terrible for Trump’s ability to defend against a civil suit.

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We Have No Idea What The FUCK You’re On About, Texas, But Alito & Thomas Have THOUGHTS Anyway

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

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Pervert Puns for Justice

On my last post reader lumipuma was surprised to hear I had conceived of my blog’s title as a pun, and wrote this comment:

This blog’s name is a pun? Now I’m slightly perplexed on why you’d want to pervert justice, in addition to just wanting pervert justice.

I had always assumed the verb/noun pun was apparent, but as it is not, Lumipuma deserves a serious answer to what is a serious question.

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I am Cassandra, Part 1: SCOTUS textualists read the text of the CRA!

As I’m sure that y’all have heard, SCOTUS has decided that the Civil Rights Act of 1964’s Title VII bans employment discrimination against folks on the basis of sexual orientation and being trans. The opinion was even written by a conservative justice. I’ll probably cover the decision in more detail later (though it’s been very hard to write lately), but right now I just want to call out how utterly ineffective I have been in pushing for change.

I had no effect on this decision at all.

And yet, the heart of this decision is simply taking a traditional legal test seriously. This is the “but for” test, and is used in liability cases of many kinds, as well as occasionally in other ares of law. The “but for” test is used this way:

Would the alleged harm have come to pass if all circumstances were the same but for one fact.

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Victory Against the Dakota Access Pipeline has an important story up about a victory against DAPL.

NOTE: The TL;DR is that the expedited process for issuing permits for the project was illegal, DAPL might be shut down (at least temporarily), and the uncertainty created by the illegitimate permits might further delay fully connecting DAPL to the Albertan tar sands oil projects.

The Army Corps of Engineers (ACoE) has a long history of neglecting not only treaty rights but also duties imposed by the National Environmental Policy Act (NEPA). That act requires certain steps to be taken BEFORE concrete actions like issuing permits can be legally undertaken. There are good reasons – have been good reasons – to believe that they did not meet the legal prerequisites for issuing the DAPL permits and today a federal judge agreed.

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