Two conservative legal scholars argue that former Pres. Trump is barred from holding office. They point to Sec. 3 of the 14th Amendment which bars persons who “engaged in insurrection” from holding office in the U.S. government. That section of the 14th Amendment was aimed at former Confederates who might seek elected office. But, the wording is broad enough To apply to anyone who “engages in insurrection.”

The article, written by William Baude of the University ion Chicago Law School, long known as a conservative law school, and Michael Stokes Paulsen of the University of St. Thomas School of Law, will be published in the University of Pennsylvania Law Review. Both of the authors are members of the Federalist Society and consider themselves to be originalists.

The authors point to Trump’s exhortation on Jan. 6 that his followers “fight like hell,” his attempts to intimidate state officials regarding vote counting, Trump’s efforts to persuade state legislatures to overturn election results, his attempts to pressure Congress to reject votes, and his attempt to pressure Vice-Pres. Pence to reject legitimate vote counts. And, the professors note his indifference as the Jan. 6 riot unfolded.


The professors note that in 1872 and 1898, Congress specifically issued amnesty to former Confederate officials. That indicates Congress at the time viewed Sec. 3 ban as ongoing and effective. Because Sec. 3 of the 14th Amendment came after other amendments, it would supersede prior amendments such as the 1st Amendment and its free speech clause. We must note that the plain language of Sec. 3 is straight forward. The challenge will be to show that Trump’s actions and those of his conspirators amounted to engaging in “insurrection.”

See ABA Bar Journal report here.

There are folks with disabilities who test websites to see if those websites are ADA compliant. I previously wrote about one tester, Deborah Laufer here. In Laufer v. Acheson Hotels, 50 F.4th 259 (2022), the First Circuit ruled that Ms. Laufer as a tester did have standing for her ADA lawsuit. Some of the ADA testers are literally filing hundreds of lawsuits each year. The hotels who are often the targets of those lawsuits question whether the testers ever possessed sincere intentions to visit those hotels.

U.S. Supreme Court

One of the tester cases has been appealed to the U.S Supreme Court. Ms. Laufer’s case against Acheson Hotels was appealed to the U.S. Supreme Court. But, the lawyer who handled that case and who has handled hundreds of her lawsuits was suspended by a federal court in Maryland for six months. Last July, a court noted that Tristan W. Gillespie filed multiple tester lawsuits all with the same typos and misspellings. Yet, he claims that it took him two to four hours to draft each complaint. He filed 16 such tester lawsuits in one day. Mr. Gillespie conceded at a disciplinary hearing that he submitted fee petitions which contained some false entries.

Alleged Fraud

After that suspension, Acheson Hotels submitted a brief to the Supreme Court. That brief accused Laufer’s now former attorneys of defrauding scores of hotels in their fee petitions; claims those lawyers sent hundreds of thousands of dollars to an investigator who did little work, but was father to Ms. Laufer’s grand-daughter; and that those lawyers lied to the hotels in settlement negotiations.

After Mr. Gillespie was sanctioned, Ms. Laufer submitted documents asking to drop her Supreme Court appeal – without a decision. As one commentator observed, it appears that Ms. Laufer wishes to avoid a bad decision – one which may well overturn that favorable decision in Laufer v. Acheson Hotels. See ABA Bar Journal report here for more information.

Indeed, even though the actions of Mr. Gillespie in no way would involve Ms. Laufer, those sanctions will surely color her entire appeal. Mr. Gillespie’s conduct does support the hotels’ general allegation that the testers do not truly intend to stay at these hotels and that these suits amount to nothing more than an attempt to secure attorney’s fees. It appears that Mr. Gillespie was cranking out lawsuits. But, certainly, these lawsuits benefited persons with disabilities across the country.

Yes, Barbie has been in court quite often. Is there a litigious Barbie, yet? … In Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003), the toymaker sued Tom Forsythe, a photographer, after he photographed nude Barbie using kitchen appliances, a “Food Chain Barbie” depicting a “Malted Barbie” on a vintage Hamilton Beach malt machine, and a “Barbie Enchilada,” which depicted four Barbies wrapped in tortillas and covered with salsa. Mattel sued for infringement of its patent. But, the Ninth Circuit found that Forsythe’s use of Barbie images was “fair use” and represented parody. The pictures constituted a transformative use of the Barbie images.

The Court noted that some of the photos depicted Barbie “about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well-known smile, disturbingly oblivious to her predicament.” It is not difficult to see the commentary that Forsythe intended or the harm that he perceived in the roles of women in our society, noted the Court.


Inevitably, there would be a few lawsuits regarding a less wholesome image of Barbie. In Mattel, Inc. v. Internet Dimensions Inc., No. 99-Civ-10066, 2000 WL 973745 (S.D. N.Y. 7/13/2000), Mattel sued regarding the use of the Barbie name by an adult entrainment website. The court found the domain “barbiesplaypen” should be transferred to Mattel. The court noted that the Barbie dolls “with their long blonde hair and anatomically improbable dimensions, are ostensibly intended to portray wholesomeness to young girls.” But, said the court, the models on the site “were, um, engaging in anything but “wholesome activities.”

Dungeon Barbie

Suzanne Pitt created a “Dungeon Doll” Barbie. The doll included “Lederhosen-style bavarian bondage dress and helmet in rubber with PVC-mask and waspie.” This Barbie was depicted in a storyboard on the website and she was named “Lily the Diva Dominatrix.” This Barbie was involved in a story of sexual slavery and torture. The victim was another re-configured Barbie. Other adult products were also sold on the site.

The court did find that the makers of Dungeon Barbie were entitled to a “fair use” defense because these dolls were, “to put it mildly, ‘transformative’ and not merely ‘supplanting’ the original Barbie doll.” Mattel Inc. v. Pitt, 229 F.Supp.2d 315 (S.D. N.Y. 2002). The court noted the result might have been different if the website had depicted Barbie in a different style of cheerleader outfit. But, as far as the court knew, Mattel did not produce an “S&M” Barbie.

So, yes, Barbie is no stranger to the courthouse. See ABA Bar Journal here for more tales of Barbie going to court.

In Spears v. Louisiana College, No. 20-30522, 2023 WL 2810057 (5th Cir. 4/6/2023), the appellate court addressed the situation in which an employee’s duties are are assigned to various employees. Some courts refer to this practice as “fractioning.” Carolyn Spears taught at Louisiana College for many years. She contracted cancer in 2012 and again in 2014. In 2016, she received long-term disability and used her sick leave. In early 2017, the College told her that it would not renew her contract. There was dispute about whether Spears had said she would not be returning for the 2017-2018 school year.


At the district court level, the court granted summary judgment for the employer. The district court had found that the College did not replace Ms. Spears with a younger employee. Instead, it divided her duties among various other teachers. She was not replaced, claimed the district court. But, the Fifth Circuit disagreed. It noted that “fractioning” can amount to replacing an employee with younger employees. One of the teachers who received some of Ms. Spears’ classes was male, buttressing her claim of gender discrimination.

Direct Evidence

Too, said the higher court, there was a fact dispute regarding whether Ms. Spears said she won’t return for the next school year. Certainly, her contemporary emails to the College indicated that she intended to return.

Ms. Spears also alleged she was non-renewed as part of disability discrimination. And, in fact, one of the school administrators specifically said her contract was not renewed because she was “too ill to teach.” That statement clearly amounts to direct evidence that they were motivated by her illness and perceived health issues. See the decision here.

In Harmon v. Texas Southern Univ., No. 14-21-00125 (Tex.App. Corpus Christi 6/15/2023), the court denied the employer’s Plea to Jurisdiction. It also looked behind the employer’s weak arguments about what its supervisor knew. Ms. Harmon had taught at Texas Southern for some 16 years, when her knee gave her so much trouble that she needed surgery. The knee problems had been building for several years.

Her immediate supervisor, Michael Sollars, the chair of the English department, officed right next door to Prof. Harmon. She had remarked to Prof. Sollars a couple of times about her knee. Yet, Sollars denied knowing Harmon had knee problems. A critical comment of any discrimination nation case is looking behind the employer’s story. Yet, many courts simply refuse to make the effort to do so.

FMLA Leave

In late 2018, Prof. Sollars decided he needed to fire Harmon. Coincidence or not, this was the very time period in which Prof. Harmon had met with HR and received approval for FMLA leave for surgery. HR told Prof. Harmon that they would tell Prof. Sollars about her approved FMLA leave.

In November, 2018, Harmon was working at home grading papers. Prof. Sollars emailed her setting up a “required” meeting. Twice, Prof. Harmon replied that she could not meet with him, since she was under a doctor’s care. A second member of the faculty was also copied on the second email. Harmon told the second faculty member that she, Harmon, could not attend the meeting because she had a doctor’s appointment. Harmon explained to the second faculty member that her knee was doing much worse now and please let her, Harmon know what the meeting was about.

Some Speculation

Despite these communications over a period of years, TSU claimed in its Plea that Sollars was not aware of Harmon’s impairment or of her upcoming surgery. The Corpus Christi court of appeals agreed that there was “some” speculation about what Sollars knew. But, even so, taking all the inferences in favor of Ms. Harmon, a jury could find that Prof. Sollars knew about her impairment and understood she was making a request for reasonable accommodation.

As the court said, “[r]easonably implicit in her communication with Sollars was the idea that Harmon could not make the meeting because she was under a doctor’s care and had a doctor’s appointment.” The court then added that Harmon’s email to the second faculty member was more explicit regarding her need to postpone the meeting. When Sollars then responded that she must attend the meeting, and that her continued employment depended on it, Prof. Sollars essentially foreclosed any further interactive dialogue. See the decision here.

Yes, it would have been better if Prof. Harmon had said the things to Sollars that she told the second faculty member. But, as the court acknowledges, it is not up to the employee to come up with a solution on her own. There is supposed to be a dialogue about accommodations. TSU never explained why the meeting had to occur within the 24 hour time frame Prof. Sollars was trying to impose.

Too, to some degree, there is always “some speculation” about what the supervisor knew – and also about what the employee knew. That is why we have jury trials.

I have written about the Trump election lawyers, including Rudy Giuliani here and here. I expressed amazement that so many lawyers were willing to risk their law licenses advocating frivolous election claims. And, now the other shoe has dropped. A Washington D.C. attorney Bar committee has recommended that Rudy Giuliani be disbarred. It is an extraordinary development for someone who was once one of the leading lawyers in our country.

An attorney discipline committee is typically comprised of volunteer attorneys. Such committees include lawyers who experience every day the same issues Rudy Giuliani experienced. Mr. Giuliani cannot say his client made him do it. He cannot say he was dealing with a difficult judge. In essence, a jury of his peers studied Mr. Giuliani’s actions up close and found them wanting. Even now, I just cannot believe any lawyer would so risk his/her law license.

See Politico news report here for more information. Even if the committee’s recommendation is not accepted by the larger committee, this is still an event which Giuliani would have to self-report on various bar applications throughout what is left of his legal career.

The nine pro-Trump lawyers from the Detroit election lawsuit have been sanctioned. I previously wrote about these sanctions here. In a court of appeals decision, the Sixth Circuit found that the lawyers, Sidney Powell and others, had lodged a “whole raft” of baseless claims alleging hostile foreign governments had accessed Dominion voting machines.

The Sixth Circuit found numerous problems with the lawsuit, including:

  • A claim that Dominion was founded to help former Venezuela President Hugo Chavez. That claim was based on purported Dominion whistleblower report. But, that report concerned a different voting machine company.
  • The suit relied on an expert who had allegedly served with the 305th Military Intelligence [type of unit not identified]. But, in reality, the expert had dropped out of an entry level Intelligence course after seven months. And, his report did not address issues with the machines. His report simply addressed issues with the voting system’s public website.
  • Another expert claimed a background in “advanced converged telecom, highly advanced semiconductor materials, hospitality, commercial real estate development & operation.” He also said he had operated “Europe’s highest grossing Tex-Mex restaurant.” Those qualifications for an election lawsuit, noted the court, were questionable on their face.
  • An expert’s opinion about “unexpected” gains by Biden in some large counties caused the lawyers to wrongly claim that 190,000 likely fraudulent votes were cast.
  • The suit relied on a weak claim made by Matt Breynard. But, Breynard’s opinion “came in the form of four tweets, each 280 characters or less,” said the Sixth Circuit. Mr. Breynard claimed to have conducted a “multistate phone survey data of 248 Michigan voters,” leading yet another expert to make the unreliable assertion that the results showed that “approximately 30,000 Michigan mail-in ballots were lost, and approximately 30,000 more were fraudulently recorded.”

IT Consultant

And, the IT Consultant used by the plaintiffs claimed Dominion voting machines resulted in some 280,000 illegal votes cast in four Michigan counties. But, the Dominion voting machines were not used in two of those counties. And, he claimed the counties used a ballot marking system that was actually used by no county in Michigan. 

The court of appeals did disagree with the lower court judge that the entire suit was sanctionable. The Sixth Circuit believed it was acceptable practice to use a lawsuit as a vehicle to frame a public discussion.

The court found all nine lawyers involved in the suit were jointly and severally liable for the attorneys fees. But, the Sixth Circuit did agree that the participation of two of the nine lawyers was so minimal that should not be sanctioned. The court noted that the defendant gave the plaintiffs an opportunity to abandon their frivolous claims, but they declined. See the ABA Bar Journal report regarding this decision here.

It is one thing to be sanctioned in federal court. But, for those sanctions to be forever enshrined in an appellate decision is embarrassing for any lawyer. We can only wonder at what motivated them to get so involved in frivolous claims.

Truck drivers and many others are tested for drug use routinely. The practice of conducting drug testing has become pervasive across a wide swath of industries. But, what happens when a drug testing company gets it wrong? What happens when the laboratory makes a mistake? Having received many of these phone calls, I can tell you what happens: someone gets fired. That is what occurred in Houston Area Safety Council, Inc. & Psychemedics Corp. v. Mendez, No. 21-0496 (Tex. 6/23/2023). Guillermo Mendez worked as a pipefitter for an oil refinery. Oil services companies and oil refineries regularly conduct drug screening tests.

Mr. Mendez erroneously tested positive for cocaine. A second and third sample tested negative. Plaintiff Mendez paid for the third test himself. Nevertheless, his employer refused to assign him additional work. He was essentially fired. He then sued the lab that made the error the first time. The district court granted the lab’s motion for summary judgment. The court of appeals then reversed. The court of appeals noted that the lab had the greatest control over these events than any other partty. The lab then then appealed to the Texas Supreme Court.

No Duty Owed

On appeal, Justice Hecht found the lab owed no duty to the employee. He reasoned that the lab could not reasonably foresee what would happen if they erred. The court accepted the lab’s claim that the lab had “no control” over what the employer does with the false drug positive. This is indeed specious reasoning. Everyone – except perhaps Justice Hecht – knows exactly what the employer will do regarding the false positive. It is certainly foreseeable that the employee will suffer financial harm.

The Justice also noted rightly that drug screenings provide substantial benefit to society. He does argue that the labs employ numerous safeguards to prevent false positives. But, speaking as one lawyer who receives many calls from workers with false results, clearly those protocols are not always effective. As the appellate court noted, the lab is in the best position to prevent false results. If the lab has little control. the employee has even less control over the process. As the dissent noted, if there is no possible action against the lab, then the employee has no legal remedy anywhere in response to a false positive. To lose one’s livelihood for a false reason likewise causes economic harm. So far, the only person enduring that harm is the person with the least control over the process.

See the decision here.

So, the lawyers who took much of their briefing from ChatGPT have been sanctioned. ChatGPT created case law out of whole cloth. It created non-existent holdings from those cases that simply did not exist. I previously wrote about that brief here. This is not a surprising result. Whatever the source, every lawyer has a duty to verify the law s/he presents to the court. The judge sanctioned the lawyers $5,000 and instructed them to tell their client that they had been sanctioned. The judge also ordered the lawyers, Steve Schwartz and Peter LoDuca to notify each of the judges to whom they had attributed false caselaw that they had been sanctioned.

The judge noted that the lawyers made it worse by withholding the truth when the opposing counsel first questioned them about the false caselaw. It is ironic that Mr. LoDuca simply signed the brief. He he did not help prepare it. But, as lawyers, we need to be careful with whom we associate on cases. Certainly, any lawyer who signs a brief holds some responsibility for that brief.

See blog report here for more information.

The crime fraud exception to the attorney-client privilege was instituted in reaction to the Watergate scandal of the 1970’s. Observers at the time were shocked how many attorneys were involved in the Watergate mess. It was also surprising at the time how often illegal plans were funneled through lawyers, simply because it was presumed the plans could not be pried away from the lawyers. So, now if a crime or fraud is involved, investigators may indeed inquire into matters discussed between attorney and client.

Donald Trump is a prime example. According to the notes made by his lawyer, Evan Corcoran, Mr. Trump suggested Corcoran lie to investigators about his boxes of classified documents. Mr. Trump also suggested Mr. Corcoran hide or destroy subpoenaed documents. Most lawyers prefer to keep their law licenses. We can expect that Mr. Corcoran was concerned about Trump’s suggestions.

According to the indictment recently made public, Attorney I (now believed to be Mr. Corcoran) recorded these notes after his meeting with Mr. Trump:

Mr. Trump said:

  • I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.” 
  • “Well what if we, what happens if we just don’t respond at all or don’t play ball with them [DOJ]?” 
  • “Wouldn’t it be better if we just told them we don’t have anything here?” 
  • “Well look isn’t it better if there are no documents?” 
  • “[A lawyer for former Secretary of State Hillary Clinton] did a great job. … He was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.”

Plucking Motion

In response to the subpoena, Attorney I located 38 classified documents. He put them in a folder and sealed with them with clear tape. Mr. Trump and Mr. Corcoran then discussed whether Corcoran should take them and lock them in a safe at his hotel. Mr. Trump then told Corcoran that if there was anything bad in there, then he should … and Trump then made a plucking motion with his hands.

Yes, these statements fall well within the crime-fraud exception to the attorney-client privilege. This testimony will very likely be admitted in court. The burden then falls on Mr. Trump to somehow justify these statements. Good luck. See ABA Bar Journal report here.