Rebecca Tushnet

In FOIA litigation the “presumption of regularity” saves the government from even having to search for documents in places they are not supposed to be, like Signal and Truth Social DMs. We may start seeing judges routinely ordering officials to swear that they have search their personal accounts.

Great @jotwell.bsky.social piece by @rtushnet.bsky.social reviewing Dustin Marlan's piece on trade dress in the Supreme Court (and the mysterious tertium quid) cyber.jotwell.com/distinguishi...

If you are a US citizen who has been scanned by one of these pls hmu. You might have a chance to do the funniest thing.

A truly extraordinary document. Judge Rodriguez throws out the indictment because "the Government’s conduct is so shocking to the universal sense of justice that it should be deprived of the opportunity to prosecute the Defendant." Hard to count all the different ways ICE lied throughout this case.

It feels very appropriate that my article, A New Satanic Panic, 36 Yale J. L. & Feminism 102 (2025) has appeared on Westlaw on Halloween. Seems like a good time to do a thread on the piece!

SSRN: papers.ssrn.com/sol3/papers....
Westlaw: www.westlaw.com/Document/Idc...

This three-hops theory is especially insane. Even if you assume each person is connected to only 100 other people, there are 1m people within three hops of every suspected drug trafficker—and remember that even *known* drug traffickers aren’t legitimate targets. www.nytimes.com/2025/10/30/u...

The GOP’s top think tank just defended an open Nazi Reasonable people can disagree about whether Hitler was good, says the Heritage Foundation.

Kevin Roberts' defense of Nick Fuentes is a watershed moment: the right has officially declared open, unabashed Hitlerism to be an acceptable position in their coalition

www.vox.com/politics/466...

the end of a brand's domination of search results is a risk the brand takes when they choose descriptive terms/phrases as marks--you might be the first hit until someone else uses the same phrase, & that doesn't nec. cause or reflect confusion, esp when the products are different

petunia products sues anastasia soare for trademark infringement, alleging her book "raising brows: my story of building a billion-dollar beauty empire” creates a likelihood of consumer confusion with petunia's trademarks RAISING BROWS and BILLION DOLLAR BEAUTY for cosmetics

A shop front (closed) with the name of the shop: "Non Paint Store.nl"

What do you sell?

Not paint.

Nativism is us, doing to ourselves voluntarily what an external enemy could only dream of doing to us in wartime: forcing our best and brightest to flee. (And after 13 years fucking yes Ms. Wen counts as “ours”, or should have been welcome to.) Pure deadweight loss in every possible sense.

Copyright x Chicago:

Making Banking Supervision Suck Again - The American Prospect Bank supervision consists of two main prongs: risk management and compliance. On the compliance side, consumer protection laws are being enforced less than at any time since at least the Great Recessi...

We know that the Trump administration has pretty much ended bank regulation. But they've also quietly walked away from bank supervision, the obscure work of checking for risk that prevents financial collapse. Our friends at @revolvingdoordc.bsky.social have a nice reported look at this:

Constitutionalism After Trump Part One | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as ...

New episode of Supreme Betrayal: Constitutionalism After Trump Part One—against restorationism/Schumerism, some suggestions for institutional reform going forward. supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...

I heard an ad for this in a *(!*(& grocery store and knew this would happen.

So much of modern large-scale abuse of ordinary people in the U.S. involves luring them into systems that are engineered to malfunction and pretending it was their choice to be there and their fault it's not working.

1/x (but short, I promise): If you read (or have already read) this WSJ piece, the context you may be missing is that for at least 100 years people have been saying that they were trans (using varied language) and cis ppl responded by spending HUGE effort proving that they aren't really trans.

Most likely don’t have this on the Election Day radar, but felony disenfranchisement is on the ballot next week in Virginia, an unusually harsh state for denying voting rights to people with criminal records. Major reform may be coming there, and Tuesday is pivotal.

Here’s what you need to know:

Can't overstate how fucked up it is that unraveling what is arguably the greatest achievement in the history of humanity is now a motivating issue of one of the two dominant parties in the U.S.

I love how Rep. Joe Neguse reframed this question.

Idaho Banned Vaccine Mandates. Activists Want to Make It a Model for the Country. The Idaho Medical Freedom Act makes it illegal to require anyone to take a vaccine or receive “medical intervention.” Leslie Manookian, the activist behind the law, hopes to make it a “societal norm” ...

South Carolina schools recently sent home unvaccinated kids to stem a growing measles outbreak. It turned out 5 of them were infected and, if they'd been at school, could've unwittingly spread it to their classmates for days.

That kind of precaution is now illegal in Idaho.

Bill Pulte makes serial claims for fraud that do not pan out. In this case, he used them to fire mostly Indian-American employees who have not been given access to evidence for why they were fired.

This is part of the war over How We Remember the Pandemic

Always remember the truth: it was a big deal, most regular people were sensible at the time, the anti-vaccine craziness set in late & has been trying to rewrite history ever since

Scolding people for being shocked is bad. "You don't pay as much attention to the world as I do" isn't great for broadening a coalition. Also, "all bad stuff is the same" is wrong. Refusal to gate-keep Nazis from a major party *is* new. And it's valuable to remain shocked by things you can explain.

Putin’s fascist government is arresting young musicians in Russia for performing songs by exiled Russian artists. No opposition to Putin and his war is tolerated. Watch this excellent report by @bbcstever.bsky.social of the BBC at the Instagram link below.

www.instagram.com/p/DQeOQsAkVLT/

#PetText

At Jotwell, I review Dustin Marlan's Servicing Trade Dress

Spoke too soon!

Transformative work of the day, well, how did we get here? edition

No one denies that training requires reliance on fair use/substantial similarity is satisfied for training data; pivoting to the outputs has separate dangers for the overall (c) system. If you're saying training shouldn't be fair use but is under current standards, ok; that's not my issue here

Good question! Because courts have collapsed "substantial similarity" into "recognizably from" and that was always a bad idea.

and students often say "yes" because it's recognizable and thus not de minimis. 2/2