From the NYT: Pressured by Their Base on Abortion, Republicans Strain to Find a Way Forward

An interesting example of the tension that can exist within a party due to the fact that the positions necessary to win a primary election may not be those necessary to win a general election. They may in fact jeopardize success in the general election.  

- Click here for the article. 

Republican leaders have followed an emboldened base of conservative activists into what increasingly looks like a political cul-de-sac on the issue of abortion — a tightly confined absolutist position that has limited their options ahead of the 2024 election season, even as some in the party push for moderation.

Last year’s Supreme Court decision overturning a woman’s constitutionally protected right to an abortion was supposed to send the issue of abortion access to the states, where local politicians were supposed to have the best sense of the electorate’s views. But the decision on Friday by a conservative judge in Texas, invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, showed the push for nationwide restrictions on abortion has continued since the high court’s nullification of Roe v. Wade.

Days earlier, abortion was the central theme in a liberal judge’s landslide victory for a contested and pivotal seat on the state Supreme Court in Wisconsin. Some Republicans are warning that the uncompromising position of their party’s activist base could be leading them over an electoral cliff next year.

“If we can show that we care just a little bit, that we have some compassion, we can show the country our policies are reasonable, but because we keep going down these rabbit holes of extremism, we’re just going to keep losing,” said Representative Nancy Mace, Republican of South Carolina, who has repeatedly called for more flexibility on first-term abortions and exceptions for rape, incest and the life and health of the mother. “I’m beside myself that I’m the only person who takes this stance.”

She is far from the only one.

The chairwoman of the Republican National Committee, Ronna McDaniel, has been showing polling to members of her party demonstrating that Americans largely accept abortion up to 15 weeks into a pregnancy and support the same exemptions that Ms. Mace wants. Dan O’Donnell, a conservative radio host in Wisconsin, wrote after the lopsided conservative defeat in the state Supreme Court contest that abortion was driving young voters to the polls in staggering numbers and that survival of the party dictated compromise.

“Because we keep going down these rabbit holes of extremism, we’re just going to keep losing,” said Representative Nancy Mace of South Carolina, a Republican who supports flexibility on abortion rights.

“As difficult as this may be to come to grips with, Republicans are on the wrong side politically of an issue that they are clearly on the right side of morally,” he wrote.

From the Washington Post: Employment law still has roots in the Middle Ages. That’s terrible for workers.

Another example of unequal treatment.

- Click here for the article. 

Imagine clearing out your desk on the last day of your job, ready to begin a higher-paying position elsewhere. But just as you turn in your keys, your boss hands you a court order preventing you from taking your new job. Instead, you need to come back tomorrow to the same job — for the same pay — if you want to work at all.

This is exactly what happened in January to seven employees of ThedaCare, a health-care system in Wisconsin. As the employees were preparing to leave their positions for more lucrative jobs at Ascension, another regional health-care network, ThedaCare sued Ascension and asked a court for a restraining order — which was granted — to stop the workers from taking the Ascension jobs until ThedaCare could hire their replacements. This happened even though there was no dispute that the workers were “at-will” employees and supposedly free to quit at any time.

The restraining order was lifted three days later, but for those three days the employees were essentially held against their will by ThedaCare with no certainty about when — or if — the court would allow them to start their new jobs.

While observers expressed shock and outrage, the court's initial order is less surprising when considered in light of the historical roots of U.S. employment law, which has its origins in English laws governing the relationship between domestic servants and their masters.

Those laws, which arose from medieval norms that English courts enforced, created a rigidly hierarchical relationship between masters and servants. Servants were typically bound to work for their masters for a specific duration. During the term of service, a servant was expected to live in the master’s house, abide by the master’s rules and perform whatever tasks the master requested. No matter how bad working conditions were, the servant could not quit, since their labor was considered the property of the master. In fact, masters could have servants arrested if they attempted to leave their service early.

Beginning in the 1700s, scholars and judges began applying master/servant rules to other types of work relationships that were historically less hierarchical. By the late 1800s, the master/servant paradigm had effectively become the default legal model for all employment relationships in the United States. Factory workers who quit their jobs could be arrested for vagrancy and forced to choose between returning to the factory or staying in jail. Farmhands hired for the harvest season were forced to follow every one of their employer’s commands — no matter how unfair or dangerous — or else risk being fired without receiving any pay.

Laws passed by Congress and the states since then have hacked away some of the worst parts of this legal heritage. Employees today have the right, for example, to be paid a minimum wage, have a workplace free of health and safety hazards, and to engage in collective action or join a union to press for better pay and working conditions.

- Law, Labor, and Ideology in the Early American Republic.

- Ordinance of Labourers 1349.

The Ordinance of Labourers 1349 (23 Edw. 3) is often considered to be the start of English labour law. Specifically, it fixed wages and imposed price controls; required all those under the age of 60 to work; prohibited the enticing away of another's servants; and other terms.

The ordinance was issued in response to the 1348−1350 outbreak of the Black Death in England. During this outbreak, an estimated 30−40% of the population died. The decline in population left surviving workers in great demand in the agricultural economy of Britain.

Landowners had to face the choice of raising wages to compete for workers or letting their lands go unused. Wages for labourers rose and translated into inflation across the economy as goods became more expensive to produce. The wealthy elites suffered under the sudden economic shift. Difficulties in hiring labour created frustration. John Gower commented on post-plague labourers: "they are sluggish, they are scarce, and they are grasping. For the very little they do they demand the highest pay." On the other hand, while some workers suffered from increasing prices, others benefited from the higher wages they could command during this period of labour shortage.

The law was issued by King Edward III of England on 18 June 1349.

The ordinance required several things, including:

- Everyone under 60 must work.
- Employers must not hire excess workers.
- Employers may not pay and workers may not receive wages higher than pre-plague levels.
- Food must be priced reasonably with no excess profit.
- No one, under the pain of imprisonment, was to give any thing to able-bodied beggars 'under the colour of pity or alms'.

The ordinance has largely been seen as ineffective.[4] Despite the English parliament's attempt to reinforce the ordinance with the Statute of Labourers of 1351, workers continued to command higher wages and the majority of England (those in the labouring class) enjoyed a century of relative prosperity before the ratio of labour to land restored the pre-plague levels of wages and prices.

The BRUTAL Peasants' Revolt Of 1381

What was Feudalism?

Old Number 7 and Old Number 2

 

From Cision Distribution: FTX Debtors Release Report on FTX Group's Control Failures

An internal report on what went wrong at FTX. Apparently its what you would expect.

"While the FTX Group’s failure is novel in the unprecedented scale of harm it caused in a nascent industry, many of its root causes are familiar: hubris, incompetence, and greed."

As we get into public policy - and especially regulatory policy - we'll note that over history these types of things have led to the passage of laws creating regulations.

- Click here for the report. 

WILMINGTON, Del., April 9, 2023 /PRNewswire/ -- FTX Trading Ltd. (d.b.a. FTX.com), and its affiliated debtors (together, the "FTX Debtors") today announced the release of their first report, which identifies and discusses control failures by FTX Group's previous management team in critical areas, including management and governance, finance and accounting, digital asset management, information security and cybersecurity (the "Report"). The Report is based on the Debtors' review of terabytes of electronic data and communications, more than one million documents, and interviews conducted with 19 former FTX Group employees, among other information. This work was undertaken by the Debtors through a team of legal, restructuring, forensic accounting, cybersecurity, computer engineering, cryptography, blockchain and other experts.

The Report and related information can be found on the docket of the Chapter 11 cases and posted on the quick links section of the FTX Debtors Kroll site at https://cases.ra.kroll.com/FTX/.

John J. Ray III, Chief Executive Officer and Chief Restructuring Officer of the FTX Debtors, said: "We are releasing the first report in the spirit of transparency that we promised since the beginning of the Chapter 11 process. In this report, we provide details on our findings that FTX Group failed to implement appropriate controls in areas that were critical for safeguarding cash and crypto assets. FTX Group was tightly controlled by a small group of individuals who falsely claimed to manage FTX Group responsibly, but in fact showed little interest in instituting oversight or implementing an appropriate control framework. We are continuing our efforts to review the events that factored into the fall of FTX and to identify and recover as much value as possible for creditors."

 https://www.washingtonpost.com/business/2023/04/07/trucks-outnumber-cars/

The pros and cons of supermajorities.

At the heart of the recent events in Tennessee lies the problems when a group in a legislature becomes large enough to be a supermajority, meaning that they cannot be checked by any other forces within the legislature.

For an upcoming discussion: 

- Wikipedia: Supermajority.

- The Case for Supermajority Rules.

- The Problems with a Supermajority.

- Supermajority Votes in the House.

- Do Supermajority Rules Limit or Enhance Majority Tyranny? Evidence from the US States, 1960-1997.

 
 

Tudor Sumptuary Laws or Statutes of Apparel

An effective way to distinguish people according to rank.



- Britannica: Sumptuary Laws.

- Wikipedia: Sumptuary Law.

- Sumptuary Laws And Taxes, Colonial.

The Tennessee Purge

We discussed purges in previous lectures and the role they play in allowing one group to dominate an institution by simply getting rid of the others.

That's one way to think about what happened in Tennessee recently.

- Tennessee House Ousts 2 Democratic Lawmakers: What You Need to Know.

Article One of the U.S. Constitution contains a provision that allows the House and Senate to expel a member with a 2/3rds vote. 

From Academia: Land of the Freeholder: How Property Rights Make Local Voting Rights

Before voting rights come property rights.

- Click here for the article. 

Abstract

A large body of research documents the dominance of homeowners in local politics. There has been little scholarship, however, on the role that voting institutions have played in empowering homeowners from this country’s inception; indeed, most accounts describe property qualifications for voting and officeholding as largely fading from view by the mid-1800s. Combining a novel analysis of state constitutions and constitutional conventions with data on state statutes, this article explores the emergence of property qualifications for voting, with a particular emphasis on their role in local politics. We find that, counter most historical narratives, property requirements persisted well into the 20th century, with almost 90 percent of property requirements restricting voting and officeholding at the local level. Most centered on local bond referenda, school districts, and land use—suggesting that homeowner citizens were granted particular political control over local taxation and public services. These requirements were largely clustered in the American South and West—emerging alongside Jim Crow laws and mass availability of federal public lands—and were not eliminated until the Supreme Court took action. This article illuminates the important role that voting institutions played in linking homeownership with American democratic citizenship, especially at the local level. 

From the Galveston Daily News: Pagourtzis' attorneys seek to disqualify judge over past legal practice

This takes us back to the Santa Fe shooting. The trial has not exactly been speedy.

- Click here for the story.

Attorneys for accused Santa Fe school shooter Dimitrios Pagourtzis argue Judge Jeth Jones should be disqualified because of past association with a lawyer briefly involved in the case, according to a motion filed Tuesday.

Nicholas Poehl, the main attorney representing Pagourtzis, argues Jones, presiding judge of the 122nd District Court, should be disqualified because he was in legal practice with with Jared Robinson, who’s now judge of the 405th District Court, according to the motion.

Poehl, Robinson and attorney Robert Barfield spoke to and provided legal advice to Pagourtzis on May 18, 2018, the day of the shooting, which created an attorney-client relationship, according to the motion.

Robinson at the time was in practice with Jones through the firm Jones Robinson LLP, according to the motion. Robinson and Jones discontinued their association two days later, according to the motion.

"Although Robinson was briefly on the team and in a limited capacity, Jones is still considered a part of that group,” Poehl said. “Jones and Robinson are the same person for these purposes.”

Under Texas Rules of Civil Procedure, a judge must be disqualified from any proceeding in which the judge has served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter.

Judicial disqualification must meet two prongs: The judge or the judge’s firm was the attorney for the party in the case, and the matter before the judge is the same matter that was before the judge or judge’s law firm.

Pagourtzis’ defense team on March 13 filed a motion to recuse Jones from the case, which has yet to be heard by Administrative Judge Susan Brown.

Attorney General Ken Paxton also weighed in on the case March 30, when he filed a motion in the 122nd District Court to vacate Jones’ March 10 order to require Dr. Joseph Penn to perform a new competency examination of Pagourtzis.

Brown is scheduled to hear both the recusal motion and the motion to disqualify on April 20.

For more: 

- Texas Rules of Civil Procedure.

- JETH JONES FOR GALVESTON 122ND DISTRICT COURT.

- Jeth Jones (Texas 122nd District Court, Texas, candidate 2022).

- 122nd Judicial District Court.

From ProPublica: Clarence Thomas and the Billionaire

A look at the influence of money on the Supreme Court - FYI, money is not supposed to influence the members of the Supreme Court. 

- Click here for the article.

IN LATE JUNE 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet — and the yacht, too.

For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.

The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.

These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.

Who is Harlan Crow? 

- From Wikipedia.

- From Open Secrets.

- From Crow Holdings.

- Statement from Harlan Crow.

What is forum shopping?

This is relevant to the link below: 

- LII: Forum Shopping. 

Forum shopping refers to the practice of pursuing a claim subject to concurrent jurisdiction in the court that will treat the claim most favorably. Forum shopping can occur between courts in different states, between federal and state courts in the same state, or between courts in separate countries. While forum shopping is still permitted under limited circumstances, the practice is generally discouraged in the modern legal system due to the Erie Doctrine and other conflict of law rules.

Under the Erie Doctrine, which was explicitly adopted to reduce forum shopping, a federal court sitting in diversity jurisdiction must apply the substantive law of the state in which it is sitting. As a result, a plaintiff cannot use forum shopping between federal court and state court within the same state to choose which laws will govern the merits of their claim. Additionally, the court’s ability to decline to exercise their jurisdiction through the power of forum non conveniens prevents plaintiffs from using forum shopping to burden the defendant by choosing to sue in highly inconvenient jurisdiction.

Nonetheless, even with the Erie Doctrine and other restrictive measures in place, a plaintiff may still find it beneficial to engage in forum shopping. For example, a plaintiff suing a large corporate defendant might choose to sue in state court rather than federal court because they believe that a local jury will be more sympathetic to their argument than a federal jury. Alternatively, a plaintiff might prefer one jurisdiction over another due to a quirk of its procedural rules or due to its conflict of law rules.

Sometimes, plaintiffs deliberately structure their state law claims against out-of-state defendants to prevent the out-of-state defendants from removing the case to federal court, which might otherwise have diversity jurisdiction under 28 U.S.C. § 1332. For example, a plaintiff suing a major retailer might sue both the national parent company and its local store. By joining the in-state defendant, the plaintiff prevents federal courts from exercising diversity jurisdiction over the case for lack of complete diversity.

From the NYT: Judge Invalidates F.D.A. Approval of the Abortion Pill Mifepristone

For our look at federalism and the checks and balances.

- Click here for the article.

A federal judge in Texas issued a preliminary ruling invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, an unprecedented order that — if it stands through court challenges — could make it harder for patients to get abortions in states where abortion is legal, not just in those trying to restrict it.

The drug will continue to be available at least in the short-term since the judge, Matthew J. Kacsmaryk, stayed his own order for seven days to give the F.D.A. time to ask an appeals court to intervene.

Less than an hour after Judge Kacsmaryk’s ruling, a judge in Washington state issued a ruling in another case, which contradicted the Texas decision, ordering the F.D.A. to make no changes to the availability of mifepristone in the 18 states that filed that lawsuit.

The conflicting orders by two federal judges, both preliminary injunctions issued before the full cases have been heard, appear to create a legal standoff likely to escalate to the Supreme Court.

Presumption of innocence

 https://en.wikipedia.org/wiki/Presumption_of_innocence

Squire Patton Boggs

 https://en.wikipedia.org/wiki/Squire_Patton_Boggs

Jack Daniel's Properties, Inc. v. VIP Products (old number 2)

https://www.supremecourt.gov/oral_arguments/audio/2022/22-148.

https://www.reuters.com/legal/us-supreme-court-jack-daniels-case-free-speech-fight-over-dog-toy-2023-03-19/

https://www.reuters.com/legal/us-supreme-court-takes-up-jack-daniels-dog-toy-trademark-rumpus-2022-11-21/

https://www.reuters.com/legal/legalindustry/bad-spaniels-barking-line-between-permitted-parody-trademark-infringement-2023-02-15/

https://www.oyez.org/cases/2022/22-148

https://www.scotusblog.com/case-files/cases/jack-daniels-properties-inc-v-vip-products-llc-2/

https://mydogtoy.com/

Some detail on falsifying business records

What are business records? 

- Wikipedia:

A business record is a document (hard copy or digital) that records an "act, condition, or event" related to business. Business records include meeting minutes, memoranda, employment contracts, and accounting source documents.

It must be retrievable at a later date so that the business dealings can be accurately reviewed as required. Since business is dependent upon confidence and trust, not only must the record be accurate and easily retrieved, the processes surrounding its creation and retrieval must be perceived by customers and the business community to consistently deliver a full and accurate record with no gaps or additions.

Most business records have specified retention periods based on legal requirements and / or internal company policies. This is important because in many countries (including the United States) many documents may be required by law to be disclosed to government regulatory agencies or to the general public. Likewise, they may be discoverable if the business is sued. 

- The Sarbanes–Oxley Act:

The Sarbanes–Oxley Act of 2002 is a United States federal law that mandates certain practices in financial record keeping and reporting for corporations.

The act, (Pub. L. 107–204 (text) (PDF), 116 Stat. 745, enacted July 30, 2002), also known as the "Public Company Accounting Reform and Investor Protection Act" (in the Senate) and "Corporate and Auditing Accountability, Responsibility, and Transparency Act" (in the House) and more commonly called Sarbanes–Oxley, SOX or Sarbox, contains eleven sections that place requirements on all U.S. public company boards of directors and management and public accounting firms. A number of provisions of the Act also apply to privately held companies, such as the willful destruction of evidence to impede a federal investigation.

The law was enacted as a reaction to a number of major corporate and accounting scandals, including Enron and WorldCom. The sections of the bill cover responsibilities of a public corporation's board of directors, add criminal penalties for certain misconduct, and require the Securities and Exchange Commission to create regulations to define how public corporations are to comply with the law.

- Dodd–Frank Wall Street Reform and Consumer Protection Act:

The Dodd–Frank Wall Street Reform and Consumer Protection Act, commonly referred to as Dodd–Frank, is a United States federal law that was enacted on July 21, 2010. The law overhauled financial regulation in the aftermath of the Great Recession, and it made changes affecting all federal financial regulatory agencies and almost every part of the nation's financial services industry.

Dodd–Frank reorganized the financial regulatory system, eliminating the Office of Thrift Supervision, assigning new responsibilities to existing agencies like the Federal Deposit Insurance Corporation, and creating new agencies like the Consumer Financial Protection Bureau (CFPB). The CFPB was charged with protecting consumers against abuses related to credit cards, mortgages, and other financial products. The act also created the Financial Stability Oversight Council and the Office of Financial Research to identify threats to the financial stability of the United States, and gave the Federal Reserve new powers to regulate systemically important institutions. To handle the liquidation of large companies, the act created the Orderly Liquidation Authority. One provision, the Volcker Rule, restricts banks from making certain kinds of speculative investments. The act also repealed the exemption from regulation for security-based swaps, requiring credit-default swaps and other transactions to be cleared through either exchanges or clearinghouses. Other provisions affect issues such as corporate governance, 1256 Contracts, and credit rating agencies.

 
- Falsifying Business Records: NY PL 175.10 and 175.15.

- FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE Penal Law § 175.10.

- Texas: PENAL CODE - TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION - 
CHAPTER 37. PERJURY AND OTHER FALSIFICATION.

For 4/6/23

- From Axios: Read: The 34-count indictment against Trump.

- Wikipedia: Michael Cohen: Federal Investigations.

US Constitution - Institutions: 
- Executive: Article 2.
- Judicial: Article 3.

US Constitution - Public Policy
- Article 1, Section 8.
- Article 1, Section 9.
- Article 2, Section 2 and 3.

The Creation of the Executive Branch
- The First Congress.

U.S. Criminal Code
- Title 18 of the United States Code.

__________

Public Policy

__________


Equal Protection.

U.S. Constitution, Article 1, Section 2, Clause 1: 
- Congress.gov.
- Founders Constitution. 

The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the elector in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

Slavery Clauses.

U.S. Constitution, Article 1, Section 3, Clause 3: Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.(The previous sentence was superseded by Amendment XIV).

U.S. Constitution, Article 1, Section 9, Clause 1: The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations, not exceeding 10 dollars for each person.

U.S. Constitution, Article 4, Section 2, Clause 3: No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.(This clause superseded by Amendment XIII)

U.S. Constitution, Article 5: . . . no amendment which may be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article

__________


Civil War Amendments: 

- 13th Amendment: 

Passed by Congress January 31, 1865. Ratified December 6, 1865.

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

- 14th Amendment:

Passed by Congress June 13, 1866. Ratified July 9, 1868

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

- 15th Amendment:

Passed by Congress February 26, 1869. Ratified February 3, 1870.

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2. The Congress shall have the power to enforce this article by appropriate legislation.

 
__________

Texas Constitutions: 

1836 - General Provisions.

1845 - Article VIII Slaves.

1861 - Article VIII Slaves.

1866 - Article VIII Freedman.

1869 - Article VI Suffrage.

1876 - Article VI Suffrage.

From Ballotpedia:

- Changes to the Federal Register.

- Election-related bills in state legislatures.

Catching up with SB 2: Relating to conduct constituting the criminal offense of illegal voting; increasing a criminal penalty.

From the Texas Legislature Online.

- Click here for the latest. 

From the Texas Tribune: Sutherland Springs shooting victims reach tentative $144.5 million settlement with U.S. government

For our look at the judiciary - a lawsuit initiated by citizens of Texas against the U.S. Air Force.

- Click here for the article. 

The U.S. Justice Department has reached a tentative $144.5 million settlement with victims and relatives of those killed in the 2017 mass shooting at a church in Sutherland Springs, and plans to end its appeal of a lawsuit that found the U.S. Air Force partially responsible for the attack.

Notice of the agreement, which must be approved by a federal judge and a top Justice Department official before being finalized, is expected to be filed Wednesday before the U.S. 5th Circuit Court of Appeals, where the case is pending.

The tentative settlement was announced in separate statements by an attorney for the families and the Justice Department, which described it as an “agreement in principal.”

“No words or amount of money can diminish the immense tragedy of the mass shooting in Sutherland Springs,” Vanita Gupta, the associate attorney general whose portfolio includes the Justice Department’s civil division, said in a statement. “Today’s announcement brings the litigation to a close, ending a painful chapter for the victims of this unthinkable crime.”

Twenty-six people were killed and another 20 injured in the November 2017 shooting at First Baptist Church of Sutherland Springs, an attack that has left lingering physical and emotional scars on the rural Texas community more than five years later.

Dozens of victims sued the U.S. Air Force in 2018 after the branch said it did not report gunman Devin Kelley’s history of violence, including a 2012 conviction for domestic assault, to the FBI’s background check system. That conviction, which led to Kelley’s dismissal from the Air Force, should have prevented the former airman from being able to buy the guns he used in the attack.

In a July 2021 ruling, U.S. District Judge Xavier Rodriguez found the Air Force was “60 percent liable” for the attack. He cited the background check failures and other disturbing details uncovered at trial, including that Air Force officials were aware Kelley had previously researched and threatened a mass shooting and had a history of severe mental health issues that led officials to declare him to be “dangerous” and “a threat” — information they did not share with others.

From Ballotpedia: Wisconsin Supreme Court elections, 2023

For our look at both the judiciary and judicial elections.

- Click here for the entry. 

Janet Protasiewicz defeated Daniel Kelly in the nonpartisan general election for Wisconsin Supreme Court on April 4, 2023. Protasiewicz and Kelly were the top two vote-getters among the four candidates who ran in the February 21 nonpartisan primary.

The election determined who would succeed retiring conservative Justice Patience Roggensack, whose term expires in July 2023. While supreme court elections are officially nonpartisan, the court was considered to have a 4-3 conservative majority. With Roggensack—a member of the court's conservative majority—retiring, Protasiewicz's election meant the balance of the court would switch to a 4-3 liberal majority.

NBC's Sam Edelman wrote, "A win by Kelly would retain conservative control of the court, while a win by Protasiewicz would result in a liberal majority — which has not been in place for 15 years — and could determine the fate of issues like abortion rights in the state."

Wisconsin media also identified election administration and legislative redistricting as legal issues the court could address following the election. For more media analysis and commentary on this election, click here.

At the time of the election, Protasiewicz, a former assistant district attorney, had served on the Milwaukee County Circuit Court since 2014. After the primary, Protasiewicz said, "We're saving our democracy in the state of Wisconsin. … I'm talking about the ability to vote, to have a vote that counts about women's rights, reproductive freedoms, the fact that the 2024 presidential election results could likely come into our Supreme Court chamber, just everything people care about."

Kelly previously served on the supreme court from 2016, when Gov. Scott Walker (R) appointed him to fill a vacancy, to 2020, when he lost re-election to Jill Karofsky. Kelly said, "If an activist were to win next April, Wisconsin's public policy would be imposed by four lawyers sitting in Madison instead of being adopted through our constitutional processes. I won't let that happen on my watch."

At a March 21 debate, Protasiewicz criticized Kelly for accepting the endorsements of organizations that oppose abortion and said Kelly would support keeping in place an 1849 state law that prohibits abortion in most cases. She also accused Kelly of advising state Republican officials who planned on sending an alternate slate of electors to Washington D.C. after the 2020 election. Kelly criticized Protasiewicz for accepting contributions from the state Democratic Party and said those contributions might influence her actions as a member of the court. Kelly also criticized Protasiewicz for publicly stating her views on issues that may come before the court, including abortion and legislative redistricting.

From the Galveston Daily News: Judge rejects Galveston County's move to dismiss gerrymandering lawsuit

For our look at redistricting and equal treatment. 

- Click here for the article.

A high-profile lawsuit asserting Galveston County engaged in race-based gerrymandering in drafting new maps that determine the boundaries of county commission and justice of the peace precincts can proceed, a federal judge ruled late last week.

U.S District Judge Jeffrey Brown on Friday rejected the county’s motion to dismiss a combined lawsuit filed by numerous plaintiffs, including a county commissioner, constables and justices of the peace

The U.S. Department of Justice filed a lawsuit against the county in the U.S. District Court for the Southern District of Texas on March 24, 2022, asserting the county drew a new voting map with “discriminatory purpose.” The new map, which was approved Nov. 12, 2021, by a 3-1 vote, gave Republicans a majority in each of the four county precincts. Precinct 3, which the new map changed, was the only Democratic Party-leaning and majority-minority precinct in the the county and only precinct represented by a person of color, County Commissioner Stephen Holmes, who is among the plaintiffs.

“We are not surprised that the dismissal was denied and we look ahead to trial,” County Judge Mark Henry said. “We believe U.S. District Court Judge Jeffrey Brown is a good, fair judge.”

The map discriminates against Black and Hispanic voters in violation of the Voting Rights Act, the federal government asserts.

“Our complaint alleges that Galveston County has violated Section 2 of the Voting Rights Act by devising a redistricting plan that dismantles the only district in which Black and Hispanic voters had the opportunity to elect a candidate of their choice to the county’s governing body,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in a written statement to the Daily News when the lawsuit was filed.

The precinct has been represented by Black men since 1988, first by Wayne Johnson, the county’s first Black commissioner, and his successor, Holmes. When Holmes took office in 1999, the precinct covered parts of La Marque, Texas City, Dickinson and Galveston.

Although the new map kept parts of Dickinson in the district, the boundaries were moved to include large parts of League City and Friendswood, which are predominately white and solidly Republican.

The Justice Department argues the county’s redistricting went beyond partisan gerrymandering and the precinct lines were drawn to disempower minority voters who make up 38 percent of the county’s total population.

In June of 2022, Brown ordered the Department of Justice’s lawsuit to be combined with others objecting to the map, including three local branches of the National Association for the Advancement of Colored People, the Galveston chapter of League of United Latin American Citizens, the Texas Civil Rights Project and a group of former and current county constables and justices of the peace.

Henry and the county are being represented by several attorneys of Virginia-based Holtzman Vogel Baran Torchinsky & Josefiak; Paul Ready of Galveston County Legal Department Angela Olalde; Jordan Raschke Elton and Joseph R Russo Jr of Greer, Herz & Adams LLP; Joseph M Nixon of The Nixon Law Firm; and James Edwin Trainor III of the Trainor Law Firm.

The lawsuit is set to go to trial Aug. 7.

“We are preparing evidence and looking to put our best case on in the courts,” Ready said.

Representatives from the Texas Civil Rights Project, attorneys from Holtzman Vogel Baran Torchinsky & Josefiak and Stephen Holmes could not be reached for comment.

From Axios: Read: The 34-count indictment against Trump

- Click here for the article.

- - The indictment.

- - Statement of fact.

Links 4/4/23

- Britannica: legal profession.

- Wikipedia: History of the legal profession.

- Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History.

- The ABA: Judicial Oversight of the Legal Profession.

- Evolution Of Lawyers.

- About the Texas Bar.

From Wikipedia: James Andrew Baker

The person mentioned in the posts regarding ChatGPT's status under the First Amendment.

- Click here for it. 

A look at his career: 

Government service

Baker joined the Criminal Division of the Department of Justice through the Attorney General's Honors Program in 1990 and went on to work as a federal prosecutor with the division's fraud section. In 1996 he joined Office of Intelligence Policy and Review (OIPR). This government agency handles all Justice Department requests for surveillance authorizations under the terms of the 1978 Foreign Intelligence Surveillance Act, advises the Attorney General and all major intelligence-gathering agencies on legal issues relating to national security and surveillance, and "coordinates" the views of the intelligence community regarding intelligence legislation. Baker has often testified before Congress on behalf of Clinton and Bush administration intelligence policies, including defending The Patriot Act before the House Judiciary Committee. Regarding Baker's 2007 appearance on the PBS Frontline episode, "Spying on the Home Front", the show's producer, in a Washington Post online chat, referred to Baker as, "Mr. FISA himself".

In 1998, Baker was promoted to deputy counsel for intelligence operations. From May 2001 he served as acting counsel, and in January 2002 was appointed counsel. In January 2014, he was appointed general counsel of the FBI. As of December 2017, newly appointed director Christopher A. Wray reassigned him from this role with his new duties unclear. On May 4, 2018, Baker resigned from the FBI. 

Private sector

Baker's government service was interrupted twice by stints in the private sector. Baker was assistant general counsel for national security at Verizon Business from 2008 to 2009. He was associate general counsel with Bridgewater Associates from 2012 to 2014. He worked as director of National Security and Cybersecurity for the non-partisan, right-center leaning think-tank R Street Institute between January of 2018 and June of 2020.

Baker served as deputy general counsel at Twitter, Inc. from June 2020 to December 2022, until being fired publicly by CEO Elon Musk. Following the disclosure of internal Twitter communications ("Twitter Files") regarding limiting the distribution of a news article concerning materials from Hunter Biden's laptop on the platform in the leadup to the 2020 presidential election, which Twitter at the time falsely cited as a potential violation of its rules regarding hacked materials, Musk expressed concerns about Baker's possible role in its suppression and his alleged interference in the publication of "Twitter Files" as reasons for his termination.

Natural Persons and Artificial Persons.

From LII: Natural person.

A living human being. Legal systems can attach rights and duties to natural persons without their express consent.

From LII: Artificial person.

An artificial person is also known as a juridical person; it has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. In other words, an artificial person is a non-human legal entity that is not a single natural person but an organization recognized by law as a fictitious person. In the United States, an artificial person usually refers to “any entities established under the law of the United States, any foreign country, or a state, province, territory, possession, commonwealth, or dependency of the United States or any foreign country, and as to which the government, state, province, territory, possession, commonwealth or dependency must maintain a record showing the entity to have been established.” Specifically, in a business sense, an artificial person is any form of business association and any other non-governmental legal organization, including a profitable or non-profitable corporation, partnership, limited liability

Active Learning Assignment #12

This is the last weekly written assignment. 

 😩

For both GOVT 2305 and 2306

Get started on the 1000 word essay.

Give me outline, or a draft, or some substantive indication about how you're going to address the subject.

All normal rules apply.

What is Dark Money?

- From Open Secrets: What is Dark Money?

“Dark money” refers to spending meant to influence political outcomes where the source of the money is not disclosed. Here’s how dark money makes its way into elections: 

Politically active nonprofits such as 501(c)(4)s are generally under no legal obligation to disclose their donors even if they spend to influence elections. When they choose not to reveal their sources of funding, they are considered dark money groups. 

Opaque nonprofits and shell companies may give unlimited amounts of money to super PACs. While super PACs are legally required to disclose their donors, some of these groups are effectively dark money outlets when the bulk of their funding cannot be traced back to the original donor.

Dark money groups have spent roughly $1 billion — mainly on television and online ads and mailers — to influence elections in the decade since the 2010 Citizens United v. FEC Supreme Court ruling that gave rise to politically active nonprofits.

- From Open Secrets: How do Dark Money Groups work?

Many laws govern what a 501(c) organization, or Dark Money group, can do with its money and what it is required to report. While some expenditures, such as explicit political spending, must be publicly disclosed, many other expenditures remain off the radar screen.

Most of what we know about spending by Dark Money groups spending is gathered from their annual IRS 990 forms, including their major vendors and the organizations to which they give grants. As the example below illustrates, groups often submit only vague descriptions of their outlays to vendors, such as "media services" or "consulting phone programs." They are not obligated to say what the money purchased with any specificity.

These organizations can spend money on direct political advocacy, but that cannot be their primary purpose, which is usually determined by how much the group spent on politics as a proportion of their overall expenditures. Disclosure requirements mandate that 501(c) groups report direct political expenditures to the Federal Election Commission (FEC). But expenses earmarked as "educational" or "membership building" are considered part of the organization’s primary purpose and (most of the time) need not be detailed.

- Wikipedia: Dark Money: 

In the politics of the United States, dark money refers to spending to influence elections where the source of the money is not disclosed to voters. In the United States, some types of nonprofit organizations may spend money on campaigns without disclosing who their donors are. The most common type of dark money group is the 501(c)(4) (often called social welfare organizations).[3][4] Such organizations can receive unlimited donations from corporations, individuals and unions. Proponents of dark money maintain it is protected under the First Amendment, while critics complain recipients of dark money (as with any contribution) "knows exactly who he owes a favor", but voters are kept in the dark about connections between donor and politician when favors are paid back.[5]

Dark money first entered politics with Buckley v. Valeo (1976), when the United States Supreme Court laid out "Eight Magic Words" that define the difference between electioneering and issue advocacy -- exempting the latter from election finance laws. Dark spending increased from less than $5.2 million in 2006 to well over $300 million in the 2012 presidential cycle, and more than $174 million in the 2014 midterms,[3] $216 in the 2014 midterm elections,[5] The 2010 landmark case, Citizens United v. FEC, marked the turning point when dark money contributions surged, and some political groups began contending that they were not required to register with the FEC as any sort of PAC because their primary purpose was something other than electoral politics.

_____

For more: 

- 501(c) organizations: 

A 501(c) organization is a nonprofit organization in the federal law of the United States according to Internal Revenue Code (26 U.S.C. § 501(c)) and is one of over 29 types of nonprofit organizations exempt from some federal income taxes. Sections 503 through 505 set out the requirements for obtaining such exemptions. Many states refer to Section 501(c) for definitions of organizations exempt from state taxation as well. 501(c) organizations can receive unlimited contributions from individuals, corporations, and unions.

For example, a nonprofit organization may be tax-exempt under section 501(c)(3) if its primary activities are charitable, religious, educational, scientific, literary, testing for public safety, fostering amateur sports competition, or preventing cruelty to children or animals.

- 501(c)(4) organizations:

A 501(c)(4) organization is a social welfare organization, such as a civic organization or a neighborhood association. An organization is considered by the IRS to be operated exclusively for the promotion of social welfare if it is primarily engaged in promoting the common good and general welfare of the people of the community. Net earnings must be exclusively used for charitable, educational, or recreational purposes.

According to The Washington Post, 501(c)(4) organizations: ...are allowed to participate in politics, so long as politics do not become their primary focus. What that means in practice is that they must spend less than 50 percent of their money on politics. So long as they don't run afoul of that threshold, the groups can influence elections, which they typically do through advertising.

 

Public Opinion and the Policy Agenda

A few random approaches to understanding that relationship: 

- The Political Agenda: 

In politics, a political agenda is a list of subjects or problems (issues) to which government officials as well as individuals outside the government are paying serious attention to at any given time.

The political agenda is most often shaped by political and policy elites, but can also be influenced by activist groups, private sector lobbyists, think tanks, courts, world events, and the degree of state centralisation. Media coverage has also been linked to the success of the rise of political parties and their ability to get their ideas on the agenda (see agenda-setting). Although the media does often have an effect on the political agenda, these results are not always immediate, which can produce a lag in the political agenda.

- The Overton Window: 

The Overton window is the range of policies politically acceptable to the mainstream population at a given time.

Overton described a spectrum from "more free" to "less free" with regard to government intervention, oriented vertically on an axis, to avoid comparison with the left/right political spectrum. As the spectrum moves or expands, an idea at a given location may become more or less politically acceptable. After Overton's death, his Mackinac Center for Public Policy colleague Joseph Lehman further developed the idea and named it after Overton.

Political commentator Joshua Treviño has postulated that the six degrees of acceptance of public ideas are roughly: 

Unthinkable
Radical
Acceptable
Sensible
Popular
Policy

The Overton window is an approach to identifying the ideas that define the spectrum of acceptability of governmental policies. It says politicians can act only within the acceptable range. Shifting the Overton window involves proponents of policies outside the window persuading the public to expand the window. Proponents of current policies, or similar ones within the window, seek to convince people that policies outside it should be deemed unacceptable. According to Lehman, who coined the term, "The most common misconception is that lawmakers themselves are in the business of shifting the Overton window. That is absolutely false. Lawmakers are actually in the business of detecting where the window is, and then moving to be in accordance with it."

 
Zone of Acquiescence:

- Chapter Two: Public Opinion in America: Moods, Cycles, and Swings. Pages 21-23.

- Policy Entrepreneurs: 

Policy entrepreneur or entrepreneurs are "individuals who exploit opportunities to influence policy outcomes so as to promote their own goals, without having the resources necessary to achieve this alone. They are not satisfied with merely promoting their self-interests within institutions that others have established; rather, they try to create new horizons of opportunity through innovative ideas and strategies.

. . . "advocates who are willing to invest their resources - time, energy, reputation, money - to promote a position in return for anticipated future gain in the form of material, purposive or solidary benefits". Policy entrepreneurs use innovative ideas and non-traditional strategies to influence society, create opportunities, and promote desired policy outcomes. Policy entrepreneurship usually happens over three phases. It starts with a demand in the political landscape for some form of innovation involving a public good. Secondly, an innovative policy instrument is proposed to supply that demand. Lastly, strategies are used such as team building, problem definition, and leadership by example to make certain that the innovation is placed on the agenda. Unlike a public intellect who strives to assert themselves into many different topics and be publicly vocal, a policy entrepreneur will focus on specific topics and possibly work behind the scenes with state and political elite.

- Elitist Privilege: 

American sociologist C. Wright Mills states that members of the elite accept their fellows' position of importance in society. "As a rule, 'they accept one another, understand one another, marry one another, tend to work, and to think, if not together at least alike'."

. . . According to Mills, men receive the education necessary for elitist privilege to obtain their background and contacts, allowing them to enter three branches of the power elite, which are;

The Political Leadership: Mills contended that since the end of World War II, corporate leaders had become more prominent in the political process, with a decline in central decision-making for professional politicians.
The Military Circle: In Mills' time a heightened concern about warfare existed, making top military leaders and such issues as defense funding and personnel recruitment very important. Most prominent corporate leaders and politicians were strong proponents of military spending.

The Corporate Elite: According to Mills, in the 1950s when the military emphasis was pronounced, it was corporate leaders working with prominent military officers who dominated the development of policies. These two groups tended to be mutually supportive.

According to Mills, the governing elite in the United States primarily draws its members from political leaders, including the president, and a handful of key cabinet members, as well as close advisers, major corporate owners and directors, and high-ranking military officers. These groups overlap and elites tend to circulate from one sector to another, consolidating power in the process.

 https://www.nytimes.com/2023/03/30/business/disney-world-ron-desantis.html?smid=nytcore-ios-share&referringSource=articleShare

What is Presidential Immunity?

Presidential Immunity: 

- Congress Annotated: ArtII.S3.5.1 Presidential Immunity to Suits and Official Conduct.

- LII: Presidential Immunity to Criminal and Civil Suits: Civil Cases.

- Mississippi v. Johnson.

- United States v. Nixon.

- Nixon v. Fitzgerald.

- Clinton v. Jones.



Executive Privilege: 

- From Wikipedia:

Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing the information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution.[1] However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its area of constitutional activity.

Will the Texas Legislature minimize the ability of local governments to regulate short term entals?

Two bills have been introduced to do just that: 

- HB 2367 Relating to the regulation of residential amenity rentals by a political subdivision; authorizing a fee; authorizing a civil penalty.

- HB 2789 Relating to regulation of accessory dwelling units by political subdivisions.

For further reading: 

- Airbnb & Short Term Rental Laws and Regulations in Texas.

- Galveston: Short Term Rental Registration and Renewals.

What is immunity?

There are many kinds: 

Immunity

Immunity refers to legal protection that exempts a person from liability, punishment, or legal action that would otherwise apply. Immunity can be granted in various contexts, including criminal and civil cases, administrative proceedings, and legislative inquiries. For example, see "immunity from prosecution"

The concept of immunity has its roots in the common law, but it has been codified in various statutes and legal codes. For example, the U.S. Constitution's Supremacy Clause grants immunity to federal officials performing their official duties.

Qualified immunity.

Qualified immunity is a type of legal immunity. “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan .

Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

Sovereign immunity.

The sovereign immunity refers to the fact that the government cannot be sued without its consent.

Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong. In the United States, sovereign immunity typically applies to the federal government and state government, but not to municipalities. Federal and state governments, however, have the ability to waive their sovereign immunity. The federal government did this when it passed the Federal Tort Claims Act, which waived federal immunity for numerous types of torts claims.

Diplomatic immunity.
 

Diplomatic immunity is a status granted to a diplomat that exempts them from the laws of a foreign jurisdiction. It must be noted that immunity is a privilege of the state that a diplomatic agent represents. As such, a person cannot allege breach of immunity if the sending state does not contest a violation.

From the NYT: What We Know About the Indictment of Donald Trump, and What Comes Next

A good opportunity to re view the due process of law.

As of 4/2/23, I'm not completely sure what the actual charges will be.

- Click here for the article. 

For a look at the specific charges he is likely to charged with violating, click here.

- US v Michael Cohen.

- Bookkeeping fraud: Article 175 of the New York Penal Law.

- Q&A on Grand Jury Investigation of Trump in New York.

From LawFare: A Machine With First Amendment Rights

You could see this coming.

- Click here for the article. 

. . . The logic begins, first, with the observation that large language models generate expressive conduct. They create images. They write text, they have dialogue with humans. They express opinions—however much they are incapable of believing anything. When generated by people, the First Amendment applies to all of this material. Yes, it is all, by the nature of the way large language models work, derivative of other content and therefore not really original. But that doesn’t matter at all. Many humans have never had an original thought either. And the First Amendment doesn’t protect originality. It protects expression. The output of ChatGPT and its brethren is undeniably expressive. And it is undeniably speech.

Note, this first point is also true of Google Search’s autocomplete function, but the scale is altogether different. Autocomplete compositions are fleeting and brief. ChatGPT and Bard are producing complete texts that don’t disappear as soon as you select another option.

Second, the companies that develop and operate large language models have First Amendment rights. Don’t growl at me about the conservative majority on the Supreme Court on this point; this was true long before Citizens United. After all, newspapers are owned by companies. And those companies have long operated big machines that produce written and photographic content. The only difference between newspaper companies and OpenAI is that OpenAI’s machine does the content production autonomously, whereas the newspapers’ machines produce the content that its humans write and create. Think of OpenAI, in other words, as indistinguishable from the New York Times Company for First Amendment purposes. Both are for-profit corporations whose combination of employees and machines produce expressive content. The law is very clear that the First Amendment protects the companies’ right to do so.

Third, OpenAI has the undisputed right to regulate ChatGPT. In this sense, ChatGPT has no rights. It is the property of its owner, who can restrict its expressive rights at will. OpenAI can unplug ChatGPT, which is the ultimate kind of prior restraint. It can also fine-tune what ChatGPT is and isn’t allowed to say. OpenAI does this on an ongoing basis in the name of trust and safety and other values, training ChatGPT to not express dangerous or bigoted content, for example, and honing its usefulness over time.

But here’s the rub.

Fourth, the government can only regulate ChatGPT’s expressive content in a fashion consistent with the First Amendment’s narrow tolerance for government regulation of speech: for situations involving defamation, incitement, copyright infringement, and other non-protected content. From a doctrinal point of view, of course, the government has to stay its hand not because ChatGPT has rights but because OpenAI has the right to operate ChatGPT and OpenAI has constitutional rights. But from a regulatory point of view, this is a distinction without a difference. The result, whether in a formal sense the First Amendment right attaches to the company in operating the machine or to the machine itself, is the same: the government can only regulate the autonomous expressive conduct of the machine in a fashion that satisfies the First Amendment.

________

And here is a rebuttal: 

- ChatGPT and the First Amendment: Whose Rights Are We Talking About?

Last week, Benjamin Wittes argued that, in developing large language models (LLMs) like ChatGPT, “We have created the first machines with First Amendment rights.” He warns us not to “take that sentence literally” but nevertheless “very seriously.” I want to take up the challenge. Wittes is absolutely correct that any government regulation of LLMs would implicate—and thus be limited by—the First Amendment. But we need to be very careful about what we mean when we say that ChatGPT—or indeed any nonhuman entity—has “rights,” First Amendment or otherwise.

Justifications for free expression—and thus for the First Amendment’s prohibition on government action “abridging the freedom of speech”—fall into three broad categories: (a) furthering the autonomy and self-fulfillment of speakers; (b) enabling a “marketplace of ideas”—a legal and cultural regime of open communication—that benefits listeners; and (c) promoting democratic participation and checking government power.

Keeping these justifications in mind clarifies when and why the law grants nonhuman entities First Amendment rights. Take the controversial example of corporations. When the Supreme Court held in Citizens United that corporations had First Amendment rights to spend on political speech—and when then-Republican presidential nominee Mitt Romney infamously told hecklers that “corporations are people, my friend”—they weren’t metaphysically confused, thinking that corporations are people in the same way that you and I were. Rather, the legal assignment of First Amendment rights to corporations exists because, according to its supporters, allowing corporations to invoke those rights in litigation serves the purposes of the First Amendment. (Whether it actually does support the purposes of the First Amendment, or, as many critics argue, subverts them, is a separate question.)

So if ChatGPT is granted First Amendment rights in the near future, it will be on that basis: not because we are convinced that it has attained human-like personhood but because giving it the ability to raise a First Amendment defense against government regulation serves the purposes of the First Amendment.

The Texas Tribune: Three Texas women are sued for wrongful death after allegedly helping friend obtain abortion medication

This appears to be the first application of a 

- Click here for the article. 

A Texas man is suing three women under the wrongful death statute, alleging that they assisted his ex-wife in terminating her pregnancy, the first such case brought since the state’s near-total ban on abortion last summer.

Marcus Silva is represented by Jonathan Mitchell, the former Texas solicitor general and architect of the state’s prohibition on abortions after about six weeks of pregnancy, and state Rep. Briscoe Cain, R-Deer Park. The lawsuit is filed in state court in Galveston County, where Silva lives.

Silva alleges that his now ex-wife learned she was pregnant in July 2022, the month after the overturn of Roe v. Wade, and conspired with two friends to illegally obtain abortion-inducing medication and terminate the pregnancy.

The friends texted with the woman, sending her information about Aid Access, an international group that provides abortion-inducing medication through the mail, the lawsuit alleges. Text messages filed as part of the complaint seem to show they instead found a way to acquire the medication in Houston, where the two women lived.

A third woman delivered the medication, the lawsuit alleges, and text messages indicate that the wife self-managed an abortion at home.

. . . The legality of abortion in Texas in July 2022 is murky. The state’s trigger law, which makes performing abortion a crime punishable by up to life in prison, did not go into effect until August. But conservative state leaders, including Cain and Attorney General Ken Paxton, have claimed that the state’s pre-Roe abortion bans, which punish anyone who performs or “furnishes the means” for an abortion by up to five years in prison, went back into effect the day Roe v. Wade was overturned in June.

The legal status of these pre-Roe statutes remains a contentious question. In 2004, the 5th U.S. Circuit Court of Appeals ruled that those laws were “repealed by implication,” which U.S. District Judge Robert Pitman reaffirmed in a recent ruling. But Cain and others have repeatedly argued that the Legislature restored those laws into effect with recent abortion legislation. This issue went before the Texas Supreme Court, but the case was dismissed before a final ruling.

From the Texas Tribune: Federal judge in Texas strikes down key ACA provision regarding preventive care services

File this under federalism.

- Click here for it. 

A federal judge in Texas on Thursday struck down a key provision in the Affordable Care Act that mandates insurers provide preventive services for free, including those for cancer screenings.

The ruling from U.S. District Judge Reed O’Connor in Fort Worth zeroes in on the makeup of the U.S. Preventive Services Task Force, the panel charged with enforcing provisions of the ACA.

O’Connor found that preventive care recommendations issued by the panel do not have to be followed because he found their volunteer members, who are 16 medical professionals and scientists charged with issuing the recommendations, do not have to be appointed by the president nor confirmed to their posts by the Senate.

As it stands, the ACA, sometimes known as “Obamacare,” mandates that insurers have to cover more than 100 preventive health services, as directed by the task force.

Thursday’s ruling now means that insurance companies are no longer required to cover the preventive services spelled out in the decision. This includes screenings for various forms of cancer like breast cancer and lung cancer, screenings for diabetes, interventions for those who are pregnant and other preventive forms of care.

This could affect more than 150 million Americans who hold private insurance with preventive services covered via the ACA, according to January 2022 data by the Department of Health and Human Services.