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	Comments on: Constitutional law roundup	</title>
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	<description>Chronicling the high cost of our legal system</description>
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		<title>
		By: Walter Olson		</title>
		<link>https://www.overlawyered.com/2020/05/constitutional-law-roundup-18/comment-page-1/#comment-359532</link>

		<dc:creator><![CDATA[Walter Olson]]></dc:creator>
		<pubDate>Wed, 13 May 2020 17:52:33 +0000</pubDate>
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					<description><![CDATA[In reply to &lt;a href=&quot;https://www.overlawyered.com/2020/05/constitutional-law-roundup-18/comment-page-1/#comment-359531&quot;&gt;Anonymous Attorney&lt;/a&gt;.

I have heard that there might be an interesting story-behind-the-story on the 1944 landmark California Supreme Court case of Escola v. Coca-Cola, involving a soda bottle that supposedly exploded for no reason at all. 

On the fancy footwork of Judge Learned Hand (fancy Hand-work?) in The T.J. Hooper, see: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1553&amp;context=law_and_economics]]></description>
			<content:encoded><![CDATA[<p>In reply to <a href="https://www.overlawyered.com/2020/05/constitutional-law-roundup-18/comment-page-1/#comment-359531">Anonymous Attorney</a>.</p>
<p>I have heard that there might be an interesting story-behind-the-story on the 1944 landmark California Supreme Court case of Escola v. Coca-Cola, involving a soda bottle that supposedly exploded for no reason at all. </p>
<p>On the fancy footwork of Judge Learned Hand (fancy Hand-work?) in The T.J. Hooper, see: <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1553&#038;context=law_and_economics" rel="nofollow ugc">https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1553&#038;context=law_and_economics</a></p>
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		<title>
		By: Anonymous Attorney		</title>
		<link>https://www.overlawyered.com/2020/05/constitutional-law-roundup-18/comment-page-1/#comment-359531</link>

		<dc:creator><![CDATA[Anonymous Attorney]]></dc:creator>
		<pubDate>Wed, 13 May 2020 17:27:07 +0000</pubDate>
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					<description><![CDATA[Re:  Erie Railroad v. Tompkins.

I bet there are interesting stories behind so many of the cases you read in law school.  For instance, a law professor told us that Ernesto Miranda of &quot;Miranda rights&quot; was himself killed in a bar fight years later (and yes, his killer was read his &quot;Miranda&quot; rights).

Kumho Tire is famous for evidentiary reasons, but the family who sued the company looks grossly unsympathetic when you find out the real story -- they hadn&#039;t changed the tires is 80 thousand miles or something like that.

Anyway, it could be worth a book.  Fascinating Facts About Famous Cases.]]></description>
			<content:encoded><![CDATA[<p>Re:  Erie Railroad v. Tompkins.</p>
<p>I bet there are interesting stories behind so many of the cases you read in law school.  For instance, a law professor told us that Ernesto Miranda of &#8220;Miranda rights&#8221; was himself killed in a bar fight years later (and yes, his killer was read his &#8220;Miranda&#8221; rights).</p>
<p>Kumho Tire is famous for evidentiary reasons, but the family who sued the company looks grossly unsympathetic when you find out the real story &#8212; they hadn&#8217;t changed the tires is 80 thousand miles or something like that.</p>
<p>Anyway, it could be worth a book.  Fascinating Facts About Famous Cases.</p>
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		<title>
		By: Hugo S. Cunningham		</title>
		<link>https://www.overlawyered.com/2020/05/constitutional-law-roundup-18/comment-page-1/#comment-359511</link>

		<dc:creator><![CDATA[Hugo S. Cunningham]]></dc:creator>
		<pubDate>Tue, 12 May 2020 01:58:18 +0000</pubDate>
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					<description><![CDATA[Unconstitutional Amendments?  (Mike Rappaport&#039;s posts)

I suggest SCotUS adopt a doctrine of &quot;Disambiguation&quot;:  A proposed Constitutional Amendment is invalid if it contains contradictory elements.  Congress might ask for an advisory approval of the Supreme Court before sending a proposed amendment to the States, but I am not sure whether such an approval should bind a future SCotUS.

Reasoning:  a contradictory amendment would not reflect a thoughtful consensus of the people.

A prime example is a progressive proposal to overturn &quot;Citizens United&quot;, the &quot;Democracy for All Amendment&quot;:
https://freespeechforpeople.org/the-amendment/democracy-for-all-amendment/

Section 3
&#062; Nothing in this article shall be construed to 
&#062; grant Congress or the States the power to abridge&#062;
&#062; the freedom of the press.
contradicts the first two sections, and under my &quot;disambiguation&quot; proposal should invalidate the entire amendment. If progressives want to curb First Amendment freedom of the press, let them be honest about it, rather than trying to confuse the public with pablum.

Under a &quot;disambiguation&quot; regime, the &quot;Democracy for All Amendment&quot; could be saved either by 
(a) deleting Section 3, or 
(b) rewriting it to say what is actually intended, eg.
&quot;Section 3:
&quot;Nothing in this article shall be construed to  grant Congress or the States the power to abridge the freedom of the press for commercial news media.&quot;

But what if someone like Jeff Bezos buys a commercial news medium?  Progressives can debate that at their leisure.]]></description>
			<content:encoded><![CDATA[<p>Unconstitutional Amendments?  (Mike Rappaport&#8217;s posts)</p>
<p>I suggest SCotUS adopt a doctrine of &#8220;Disambiguation&#8221;:  A proposed Constitutional Amendment is invalid if it contains contradictory elements.  Congress might ask for an advisory approval of the Supreme Court before sending a proposed amendment to the States, but I am not sure whether such an approval should bind a future SCotUS.</p>
<p>Reasoning:  a contradictory amendment would not reflect a thoughtful consensus of the people.</p>
<p>A prime example is a progressive proposal to overturn &#8220;Citizens United&#8221;, the &#8220;Democracy for All Amendment&#8221;:<br />
<a href="https://freespeechforpeople.org/the-amendment/democracy-for-all-amendment/" rel="nofollow ugc">https://freespeechforpeople.org/the-amendment/democracy-for-all-amendment/</a></p>
<p>Section 3<br />
&gt; Nothing in this article shall be construed to<br />
&gt; grant Congress or the States the power to abridge&gt;<br />
&gt; the freedom of the press.<br />
contradicts the first two sections, and under my &#8220;disambiguation&#8221; proposal should invalidate the entire amendment. If progressives want to curb First Amendment freedom of the press, let them be honest about it, rather than trying to confuse the public with pablum.</p>
<p>Under a &#8220;disambiguation&#8221; regime, the &#8220;Democracy for All Amendment&#8221; could be saved either by<br />
(a) deleting Section 3, or<br />
(b) rewriting it to say what is actually intended, eg.<br />
&#8220;Section 3:<br />
&#8220;Nothing in this article shall be construed to  grant Congress or the States the power to abridge the freedom of the press for commercial news media.&#8221;</p>
<p>But what if someone like Jeff Bezos buys a commercial news medium?  Progressives can debate that at their leisure.</p>
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		<title>
		By: Rupert		</title>
		<link>https://www.overlawyered.com/2020/05/constitutional-law-roundup-18/comment-page-1/#comment-359509</link>

		<dc:creator><![CDATA[Rupert]]></dc:creator>
		<pubDate>Mon, 11 May 2020 16:29:07 +0000</pubDate>
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					<description><![CDATA[Re: SCOTUS and Ninth Circuit, I made it through law school and 25 years of practice without hearing of the &quot;party presentation rule,&quot; and have seen dozens of trial and appellate courts decide cases because the Court thinks of something the parties didn&#039;t think of, to resolve the case.  Dubious of the rationale on that one.]]></description>
			<content:encoded><![CDATA[<p>Re: SCOTUS and Ninth Circuit, I made it through law school and 25 years of practice without hearing of the &#8220;party presentation rule,&#8221; and have seen dozens of trial and appellate courts decide cases because the Court thinks of something the parties didn&#8217;t think of, to resolve the case.  Dubious of the rationale on that one.</p>
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