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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Constitutional Faces: The Schecter Brothers

June 2nd, 2012

The “Four Jewish Butchers” that “brought down the first New Deal.”

The Schechters were kosher butchers operating in the 1930s who stood fast to their commitment to the dietary laws of kashrut in the face of ferocious pressure and prosecution by a powerful government. They eventually took their case to the highest court in the land—and won—defeating one of the most popular and powerful administrations in American history.

One would think this story of Jewish heroism and commitment to Jewish values would be inspirational for generations of young American Jews. But the Schechter brothers were up against Franklin Delano Roosevelt.

It was the Roosevelt administration’s prosecution of the Schechters for violating the National Industrial Recovery Act, one of the pillars of the New Deal, that led the Supreme Court to declare the act unconstitutional in 1935. FDR was, and remains, so beloved by American Jews that the heroism of the Schechters has been lost as a story of Jewish moral commitment in the face of power. In her history of the Great Depression, The Forgotten Man, Amity Shlaes begins the process of rescuing the Schechter brothers from obscurity by spending an entire chapter on their challenge to the New Deal. In this article I build on Shlaes’s account to provide some broader context for their story and draw some implications for Jewish Americans.

Little known fact- the Schechter Brothers voted for FDR in 1936 after their Supreme Court case!

“”In fact, sharing the world as you see it with someone else may be the ultimate social experience.”

June 2nd, 2012

Or Google Glass may be the dawn of Omniviellance. One key limitation on stalker-creepiness is that you can generally tell when someone is taking a picture of you. Not so with Google Glass. It can surreptitiously record everything.

What do you call an order entered by a district court after a court of appeals already has jurisdiction of the case?

June 2nd, 2012

Ted Frank thinks such a brief is just a “de facto amicus brief.”

In April, On the Case scribe Alison Frankel wrote about a kerfluffle over attorneys fees in a class action settlement with Dell Inc. over allegations the company didn’t fully pay a $50 rebate it had offered. Theodore Frank of the Center for Class Action Fairness is representing a class member objecting to the settlement and the approximately $7 million in accompanying attorneys’ fees approved by the district court judge in October 2011.

Frank filed his initial briefing with the 9th Circuit Court of Appeals in mid-March. On April 4, the judge who had approved the settlement, Ronald Whyte of San Jose federal court, issued a second order explaining why he approved the fee request. In the order, Whyte said the court had “inadvertently failed to file and serve its written order onattorneys’ fees.”

Frank was not pleased with the timing, and told On The Case at the time that the new order amounted to a de facto amicus brief supporting the settlement. He filed a motion asking the 9th Circuit to disregard the April order, arguing that the lower court no longer had jurisdiction and that such an order unfairly interfered with the appellate process.

CTRL-F Fail

June 2nd, 2012

So apparently in the Nook version of “War and Peace” all instances of the word “Kindled” were replaced with “Nookd.” Is this some nefarious plot, or some inside joke by Barnes & Noble to punish Amazon. Nah, some putz did a search and replace for all instances of the word “Kindle” an accidentally changed the body of the book:

The best explanation, we think, comes from a commenter on the blog, who says “This obviously wasn’t done by Barnes & Noble, but by the publisher who submitted the book to Barnes & Noble. They created a Kindle version of this public domain book first, realized they used ‘Kindle’ somewhere in their submission, and did a quick find-and-replace to change ‘Kindle’ to ‘Nook’—never once thinking it would affect the book’s text rather than just whatever they put in the title page.”

I once did something dumb like this. In district court, I took a pretrial order where one of the parties was a male (possessive pronoun of his) and changed it to apply to a case where one of the parties was a corporation (possessive pronoun of its).

So what happens when you search for “his” and replace with “its”?

Think about the word “this.”

Tits.

Judge was slightly-amused.

Black Swans and #ZombieApocalypse

June 2nd, 2012

I recently sounded a black swan alert about a possible rash reaction to so-called bath salts, after some guy in Miami chewed off another guy’s face. Well, I failed to predict this reaction to flesh-eating:

The horrific face-eating arrest in Miami and several other seemingly subhuman acts has many people wondering what’s behind this flesh-munching wave of terror.

A zombie apocalypse, however, is not what we should be worried about, at least according to the federal government.

Over the years the Centers for Disease Control and Prevention has released a couple of tongue-in-cheek “zombie warnings,” which really are just disaster-preparedness stunts. But on Thursday, the agency made it official: Zombies don’t exist.

“CDC does not know of a virus or condition that would reanimate the dead (or one that would present zombie-like symptoms),” wrote agency spokesman David Daigle in an email to The Huffington Post.

Nevertheless, recent incidents in which humans reportedly ate human flesh have the Internet in a firestorm, with “zombie apocalypse” being Google’s third most popular search term by Friday morning.

I was talking to a friend who authored a review called “The Undead Constitution” about Cass Sunstein’s “A Constitution of many minds.”  Mike Dorf is writing a review of Jack Balkin’s “Living Originalism,” also titled “The Undead Constitution.”

I proposed suggesting other titles: “The Zombie Constitution,” “Dawn of the Dead Constitution,”or  “225 Years Later” (1787-2012).

The entire zombie craze fascinates me. People are really, really intrigued by the undead. But, I think more so, people are enthralled with the idea of some post-apocalyptic world where they were one of the few survivors, everyone else is a monster, and they need to kill or destroy or whatever to survive. It is an interesting ideal.