Let’s try a thought experiment. Imagine a criminal law that says, “It’s a felony to do bad things.” That’s it. That’s the whole law. There’s no further explanation. I have a pretty solid understanding of what I think are “bad things.” I guarantee, however, that some things I consider “bad” would be okay for…

We have discussed Axon v. FTC before and followed it closely since its inception. On January 28, 2021, the Ninth Circuit gave us more to consider. First, a recap is in order. Axon Enterprise, Inc. (Axon) is a corporation that makes law enforcement equipment such as tasers and body cameras. The FTC determined to investigate it under…

Federal court appellate rules (and most state appellate and high courts) require party briefs to include a “standard of review” section (Federal Rule of Appellate Procedure 28(a)(8)(B)). Lawyers tend to pay little, if any, attention to this section. Usually, a single sentence from some random case can be copy-pasted into the brief, saying: questions of…

There’s a frustrating phenomenon in sports where referees will “swallow their whistles” in a close game. At a pivotal moment, a referee will fail to call a foul to avoid the appearance that the refs determined the outcome of the game. The logical fallacy the refs seem to misapprehend (or hope we do) is that…

The Supreme Court heard argument in AMG Capital Management, LLC v. FTC this week. The FTC can’t be happy with how it went. On the Covid-required Zoom-call format, Justice Roberts can and does keep much closer rein on time and interruptions. With all the disadvantages for advocates, it does allow a clear and focused analysis of each…