#5l — Public Fediverse posts

The problem with originalist jurisprudence isn't necessarily the originalism itself. Trying to divine original intent has non-dogmatic antecedents before the 1970s. An answer driven by originalism is one possibility of what the law might be.

The problem with originalist jurisprudence is that it goes beyond articulating rules to decide like cases amenable to like reasoning and declares that there can only be one possibility of what the law could be. Cases like Bruen tell you the only way you are allowed to think. They sever whole areas of law from all other possibilities of what the law might be in a new situation. And, in doing so, they make the law impossible to implement with a straight face. Which, if we're honest, is at least 9/10ths of what the law is supposed to be—a way for the powerful to make peasants feel like what the state has done to them happened for a well-considered reason (even when that is obviously not true).

#5L

The idea that government and law exist by the consent of the governed is disproven by the driver's license suspension regime. More than half of people (probably) have had to pay traffic tickets. How many of those people have ever believed that continuing to drive while they owed money for tickets ought to be A Crime for which a cop can pull them over and fully take them To Jail?

#5L #EssayIdeas

Had a win today. And a loss that was bitter for me but satisfactory to the client. It is what it is.

#5L

In Washington's criminal legal system, it is essentially impossible for a judge to say "this prosecution is bullshit, so we're dismissing the charges" despite the fact that the rules say this is possible. This is justified by saying that judges should not have the power to second guess the prosecution authority.

However, every plea bargain is subject to court approval. A judge can say "the prosecutor's plea bargain was too lenient, so the prosecution is not required to follow the deal they made to get you to plead."

(And, at that point, the defendant is asked if they still want to plead guilty, now without a plea deal.)

#5L

The justices harp about the statement for the ERA in the 1972 voter's pamphlet. Which does not say anything about gay marriage.

They do not mention the statement against, which explicitly warned that the ERA would legalize gay marriage.

#5L

"[T]here is nothing in DOMA that speaks to gender stereotyping within marriage." (2006)

Becoming a lawyer is one of the worst things you can do for your brain.

#5L

Washington's constitution has a provision that all but says stare decisis is unconstitutional, but nobody cares. #5L

Justice Madsen's whole thing was dressing up her conservatism as objectivity and proper judging. Just another liberal casualty of the Federalist Society's project.

#5L

"[W]hile same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it."

Justice Madsen, Anderson v. King County (2006)

LOL. Lmao, even.

#5L