Showing posts from November, 2017

A Brief Note On Justiciability

Several of this blogs most faithful supporters suggested that I do a post on justiciability, having just referenced that concept in the last post about the emoluments cases.  It is both an abstract and a very real concept.  I'll try to focus on the real world application of the term, the one that will show up in legal memorandums and judicial opinions.  A word about legal terminology in general.  Legal terms are capable of being defined yet are constantly being interpreted.  They have a core meaning yet there is a fuzzy area surrounding them where the interpretations take hold.  Also, there are the exceptions to that core meaning which need to be understood to grasp the entire concept of that term, and also related terms that affect the meaning of the term itself.   For example, take the term "moot" or "mootness".  Legal actions cannot be brought or continued after a matter has been resolved, leaving no live case for a court to deal with.  You need a live disp

Emoluments: What They Are and What's At Stake

Benjamin Franklin's snuff-box, a gift from King Louis XVI of France A recent subscriber to this blog asked me if I could do a post on emoluments and the litigation surrounding them.  Glad to oblige.  (And readers can make their own requests for topics by leaving suggestions in the "Comments" section). It is, to say the least, a big topic, and it's only getting started.  The Take Care blog alone had, as of November 9, 47 posts relating to it.  If you really want to dig into this issue, I'd suggest starting here.   A summary  posted on November 9 does a fine job of detailing the Congressional case, the issues raised and links to briefs.  (Spoiler alert: I think this is the strongest case, which is why I will focus on it in this post).  I'll try to summarize all of this in this post, along with a brief discussion of emoluments and the Constitutional provisions involved.  This is a longer than usual post, and there are lots of links to definitions

Masterpiece Cake Shop: Cakes, Compelled Speech, and Discrimination in Public Accomodations

What is the most important case the Supreme Court will decide this term?  Working with just the cases already on the docket (there could easily be a really important case to come given the current legal climate) there are two: the gerrymandering case ( Gill v. Whitford, covered in my September 23 posting) and this case, Masterpiece Cakeshop, Ltd, v. Colorado Civil Rights Commission.  One of the things I have learned over the years following the Supreme Court (in fact, courts in general) is not to be too quick to judge (no pun intended): the case may look important, but the final outcome, reflected in the opinion(s), may make it less so.  But Gill   could end gerrymandering as we know it.  Or maybe not.  But  Masterpiece is a landmark case any way you look at it.  As blogger and lawyer Joshua Matz put it,  "It's hard to overstate the importance of this case.  If the Supreme Court accepts the baker's free speech or free exercise claims, it will punch a significant h