From the Desk of Bob Mankoff:

When it comes to humor, everyone is his or her own judge. If you decide that something is funny, it is for you. If you don’t, it’s not. End of story. That is, unless you are an actual judge with an actual case involving humor and the law. Then it’s a whole different story, one that I’m going to let Laura E. Little, a law professor at Temple University’s Beasley School of Law, tell.

Professor Little’s scholarship integrates law, linguistics, and philosophy. She has concentrated her study recently on the legal regulation of humor, and has studied the topic both in the U.S. and Australia. Take it away, Laura: http://nyr.kr/YZ1nyd

(Source: newyorker.com)

In today’s Daily Comment, Jeffrey Toobin explains why the Pistorius case will likely end with a plea bargain: http://nyr.kr/X7NvCf

Evan Osnos on Kim Lee, an American woman who made Chinese legal history last weekend when a Beijing court granted her a divorce on the grounds of domestic violence, and a three-month restraining order against her husband:

The judgment was a victory not only for Kim Lee and her three daughters but also for advocates of the rule of law on behalf of China’s often-silenced victims of domestic violence.

Continue reading: http://nyr.kr/UtouCj

(Source: newyorker.com)

(Source: newyorker.com)

Screams in the Basement: Amy Davidson on how the prosecution in the Jerry Sandusky trial made it’s case http://nyr.kr/LqhT2W

There was another big win for gay marriage today, as the Defense of Marriage Act was ruled unconstitutional by a Federal appeals court: http://nyr.kr/LKJ8mS

Trayvon Martin and America’s Gun Laws

The National Rifle Association was founded in 1871 by two men, a lawyer and a former reporter from the New York Times. For most of its history, the N.R.A. was chiefly a sporting and hunting association. To the extent that the N.R.A. had a political arm, it opposed some gun-control measures and supported many others, lobbying for new state laws in the nineteen-twenties and thirties, which introduced waiting periods for handgun buyers and required permits for anyone wishing to carry a concealed weapon. It also supported the 1934 National Firearms Act—the first major federal gun-control legislation—and the 1938 Federal Firearms Act, which together created a licensing system for dealers and prohibitively taxed the private ownership of automatic weapons (“machine guns”). The constitutionality of the 1934 act was upheld by the U.S. Supreme Court in 1939, in U.S. v. Miller, in which Franklin Delano Roosevelt’s solicitor general, Robert H. Jackson, argued that the Second Amendment is “restricted to the keeping and bearing of arms by the people collectively for their common defense and security.” Furthermore, Jackson said, the language of the amendment makes clear that the right “is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” The Court agreed, unanimously. In 1957, when the N.R.A. moved into new headquarters, its motto, at the building’s entrance, read, “Firearms Safety Education, Marksmanship Training, Shooting for Recreation.” It didn’t say anything about freedom, or self-defense, or rights.

Comment: Heavy Burden

It’s tempting to analyze the case in the context of election-year politics, to game out how Obama might be helped or hurt by the Court’s eventual decision. (Thumbs down on the act discredits the President with moderates—or, maybe, mobilizes his base. Thumbs up, maybe, does the opposite.) But the decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. An adverse decision on the Affordable Care Act could even jeopardize the prospects for conservative legislative priorities, like health-insurance vouchers or private retirement accounts in lieu of Social Security. It is simply not the Supreme Court’s business to be making these kinds of judgments. The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either. 

Comment: Holding Court

The precedents supporting the constitutionality of ACA haven’t changed, but the federal judiciary, including the Supreme Court, has. As in the Senate, moderate Republicans held sway for years at the Supreme Court, but that species has vanished on both sides of First Street. The likes of Lewis Powell and Sandra Day O’Connor have been replaced by the likes of John Roberts and Samuel Alito. In order to strike down health-care reform, the new Republican Justices would have to change the underlying constitutional law, which they have proved themselves more than capable of doing. They have already cut a swath through the Court’s precedents on such issues as race, abortion, and campaign finance, and it’s possible that they will assemble the votes to do the same on the scope of the Commerce Clause. The high-stakes health-care case is a useful reminder of the even higher stakes in the Presidential election. If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh.