Russell Steinthal
@steintr.bsky.social
Antitrust lawyer, computer nerd, long-suffering Mets/Jets fan
Watching NYC area weather via WatchedSky: 🌩️👀 xEqdwWB2srp6
Watching NYC area weather via WatchedSky: 🌩️👀 xEqdwWB2srp6
(* I gather in this case there was a question as to whether the misdemeanor count really was a lesser-included offense of the felony, but that question is somewhat academic in light of Powell.)
December 19, 2025 at 5:15 AM
(* I gather in this case there was a question as to whether the misdemeanor count really was a lesser-included offense of the felony, but that question is somewhat academic in light of Powell.)
And even though it's logically impossible to be guilty of attempted murder and NG of assault in that scenario, since we don't generally instruct juries on sentencing, I could see a jury reasonably, if incorrectly, thinking that it didn't want to "pile on" with a conviction on the second count.
December 19, 2025 at 5:15 AM
And even though it's logically impossible to be guilty of attempted murder and NG of assault in that scenario, since we don't generally instruct juries on sentencing, I could see a jury reasonably, if incorrectly, thinking that it didn't want to "pile on" with a conviction on the second count.
E.g. if the indictment charges a true lesser-included (*) (e.g. Count 1 attempted murder and Count 2 assault), and the jury, isn't clearly instructed that convicting on C1 & acquitting on C2 would lead to the guilty verdict being vacated, you could end up with a windwall win for the defendant.
December 19, 2025 at 5:15 AM
E.g. if the indictment charges a true lesser-included (*) (e.g. Count 1 attempted murder and Count 2 assault), and the jury, isn't clearly instructed that convicting on C1 & acquitting on C2 would lead to the guilty verdict being vacated, you could end up with a windwall win for the defendant.
Another reason to appreciate the NY Court of Appeals. :) It does feel like a bit of a trap for the unwary, however, unless you give the jury very clear instructions.
December 19, 2025 at 5:15 AM
Another reason to appreciate the NY Court of Appeals. :) It does feel like a bit of a trap for the unwary, however, unless you give the jury very clear instructions.
Was just about to ask that same question. But for those who want the link, the reference is to United States v. Powell,
469 U.S. 57 (1984).
469 U.S. 57 (1984).
United States v. Powell, 469 U.S. 57 (1984)
United States v. Powell
supreme.justia.com
December 19, 2025 at 4:25 AM
Was just about to ask that same question. But for those who want the link, the reference is to United States v. Powell,
469 U.S. 57 (1984).
469 U.S. 57 (1984).
That is an impressive memory. But I guess I was never a really heavy user.
December 19, 2025 at 4:12 AM
That is an impressive memory. But I guess I was never a really heavy user.
(Recall that a principal motivation for 230 was a case involving Prodigy. I wonder how many users of this site had accounts on that service. :) <raises hand>)
December 19, 2025 at 3:19 AM
(Recall that a principal motivation for 230 was a case involving Prodigy. I wonder how many users of this site had accounts on that service. :) <raises hand>)
The parenthetical is important, though. Even broadly defined, social media is only part of what is protected by 230. We're also talking about message boards, comments on news articles, shopping reviews, user-generated video sites (even if non-social), Usenet-like networks, public listservs, etc.
December 19, 2025 at 3:19 AM
The parenthetical is important, though. Even broadly defined, social media is only part of what is protected by 230. We're also talking about message boards, comments on news articles, shopping reviews, user-generated video sites (even if non-social), Usenet-like networks, public listservs, etc.
It appears there has already been at least one FDA approved drug with THC as an active ingredient, so New Chemical Exclusivity doesn't seem like it would apply.
www.fda.gov/news-events/...
www.fda.gov/news-events/...
FDA and Cannabis: Research and Drug Approval Process
Information about FDA and cannabis
www.fda.gov
December 19, 2025 at 3:05 AM
It appears there has already been at least one FDA approved drug with THC as an active ingredient, so New Chemical Exclusivity doesn't seem like it would apply.
www.fda.gov/news-events/...
www.fda.gov/news-events/...
Unless there were something patentable about the formulation (which seems unlikely?), wouldn't there just be an immediate ANDA and thus generics (making it impossible to recoup the costs of the trials)? (Disclaimer: everything I remember about Hatch-Waxman is from one case I worked on ~20 yrs ago.)
December 19, 2025 at 3:05 AM
Unless there were something patentable about the formulation (which seems unlikely?), wouldn't there just be an immediate ANDA and thus generics (making it impossible to recoup the costs of the trials)? (Disclaimer: everything I remember about Hatch-Waxman is from one case I worked on ~20 yrs ago.)
That's appealingly meta, insofar as he did get the rules clarification he sought, even in the form of rejecting it. For a contrary (?) example from Hansard, see the point raised by the Gentleman from Greenwich and Woolwich on March 19, 2019.
Points of Order - Hansard - UK Parliament
Hansard record of the item : ' Points of Order' on Tuesday 19 March 2019.
share.google
December 18, 2025 at 11:25 PM
That's appealingly meta, insofar as he did get the rules clarification he sought, even in the form of rejecting it. For a contrary (?) example from Hansard, see the point raised by the Gentleman from Greenwich and Woolwich on March 19, 2019.
Don't they just use points of order for that?
December 18, 2025 at 10:15 PM
Don't they just use points of order for that?
As an observant Jew who voted for Manadani (and who has known one of the rabbis quoted from the meeting for 30+ years), I certainly hope so. Fingers crossed, although Jewish communal politics here are tricky even in good times.
December 14, 2025 at 7:58 PM
As an observant Jew who voted for Manadani (and who has known one of the rabbis quoted from the meeting for 30+ years), I certainly hope so. Fingers crossed, although Jewish communal politics here are tricky even in good times.
Also because he would have been accused of indifference if he hadn't posted a statement. Rightly or wrongly, he's walking a tightrope as it is with the NY Jewish community.
December 14, 2025 at 7:34 PM
Also because he would have been accused of indifference if he hadn't posted a statement. Rightly or wrongly, he's walking a tightrope as it is with the NY Jewish community.
Interesting, I had the opposite reaction that it was almost certainly deliberate. The only name is of the Chabad shaliach whom he expressly connects to NYC. And as others noted, some would think it would be somewhat self-interested to make a point of the hero's religion.
December 14, 2025 at 7:31 PM
Interesting, I had the opposite reaction that it was almost certainly deliberate. The only name is of the Chabad shaliach whom he expressly connects to NYC. And as others noted, some would think it would be somewhat self-interested to make a point of the hero's religion.
I don't think they'd do it now (b/c it would be perceived as political), but the en banc D.C. Cir. could consider switching to a per-application random draw. It's not as if they have geographically dispersed chambers - is there a practical reason they couldn't form ad hoc motions panels?
December 14, 2025 at 5:34 AM
I don't think they'd do it now (b/c it would be perceived as political), but the en banc D.C. Cir. could consider switching to a per-application random draw. It's not as if they have geographically dispersed chambers - is there a practical reason they couldn't form ad hoc motions panels?
The mainstream Democratic Party is still a bit too shy to say it, but if you want to run against the Court, at some point you have to just keep passing laws and making them invalidate them. Get caught trying.
December 14, 2025 at 5:10 AM
The mainstream Democratic Party is still a bit too shy to say it, but if you want to run against the Court, at some point you have to just keep passing laws and making them invalidate them. Get caught trying.
I think it was 1,000 facilities with a total capacity of 40,000, but still. :)
December 11, 2025 at 9:37 PM
I think it was 1,000 facilities with a total capacity of 40,000, but still. :)
Also not a tax lawyer, but it certainly looks like they are going to have to work around a fairly clear statute (26 USC 7701(c)) which codifies a numeric test for "substantial presence" well below 270 days.
www.law.cornell.edu/uscode/text/...
www.law.cornell.edu/uscode/text/...
26 U.S. Code § 7701 - Definitions
www.law.cornell.edu
December 11, 2025 at 6:01 AM
Also not a tax lawyer, but it certainly looks like they are going to have to work around a fairly clear statute (26 USC 7701(c)) which codifies a numeric test for "substantial presence" well below 270 days.
www.law.cornell.edu/uscode/text/...
www.law.cornell.edu/uscode/text/...
Doesn't that just have to do with whether "legislative officers" are officers of the US at all? The Clerk, Sgt at Arms, etc. are appointed per A1S2/3, not the Appts Clause. The problem arises where Congress has conferred exec authority on, e.g., the Librarian of Congress or the Comptroller General.
December 8, 2025 at 6:13 AM
Doesn't that just have to do with whether "legislative officers" are officers of the US at all? The Clerk, Sgt at Arms, etc. are appointed per A1S2/3, not the Appts Clause. The problem arises where Congress has conferred exec authority on, e.g., the Librarian of Congress or the Comptroller General.
But unless "failure to follow the AG's instructions" is a legit (and indeed constitutionally required) basis for removal, I don't see how that solves the tenure/removal issue. It seems like a better explanation for the app't side, where the q is whether PAS app't is required. (E.g. US v. Arthrex.)
December 8, 2025 at 6:01 AM
But unless "failure to follow the AG's instructions" is a legit (and indeed constitutionally required) basis for removal, I don't see how that solves the tenure/removal issue. It seems like a better explanation for the app't side, where the q is whether PAS app't is required. (E.g. US v. Arthrex.)
Under that reading, the Appointments Clause would permit the "courts of law" to appoint inferior judicial officers, e.g. magistrate and bankruptcy judges, court clerks, etc., but not executive officers.
December 8, 2025 at 5:55 AM
Under that reading, the Appointments Clause would permit the "courts of law" to appoint inferior judicial officers, e.g. magistrate and bankruptcy judges, court clerks, etc., but not executive officers.
I agree that makes sense, but think that may be the exception that proves the rule. I can see this Court concluding that 546(b) is unconstitutional on SoP grounds precisely b/c it leads to that result and improperly allows the district courts to interfere with the execution of the laws.
December 8, 2025 at 5:55 AM
I agree that makes sense, but think that may be the exception that proves the rule. I can see this Court concluding that 546(b) is unconstitutional on SoP grounds precisely b/c it leads to that result and improperly allows the district courts to interfere with the execution of the laws.