Episode 46 | Sex and Scholarship

Should the parties pick their candidates in smoke-filled rooms, or does that just hand control back to the elites? And can Boulder, Colorado sue Exxon and Suncor for the costs of climate change? Hosts Kathryn Johnson and law professors Joshua Kleinfeld and Ilan Wurman take on both issues on the latest episode of Rationally BASED.First, Ilan revisits the discussion from the midterms about primaries. He argues that pure majoritarianism has always had defects — faction, self-interest, the capacity for depravity — and that the Founders designed representation to refine and enlarge the public views. Primaries hand the nomination to the most ideological sliver of the electorate. Conventions of delegates embedded in their communities might better reflect what voters actually want. Josh’s response is that elite control is the deeper problem. On immigration, racial preferences, crime, schools, and more, elite institutions have overridden clear popular majorities for decades. Who's right?Next: Boulder is suing fossil-fuel companies under state common-law theories — public nuisance, trespass, unjust enrichment — for local costs it attributes to climate change. The causation chain is extraordinarily thin; the companies are a tiny fraction of global emissions. The legal theory is also thin: Boulder is abusing an old and venerable doctrine, nuisance, and twisting it for Leftist ends. But the federal preemption defenses are pretty weak. The cleaner objection may be that the claims are so detached from traditional nuisance and trespass that allowing them to go forward would be a due-process problem — liability without preexisting law. But are there risks to that approach? Would it hand too much power to federal judges?This is the rational — and based — discussion of populism, elite power, and climate litigation that you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

In a Tennessee manslaughter trial, the judge barred the jury from learning that the deceased — the defendant’s sexual partner of two years — was a biological male who identified as a woman. The appeals court reversed, holding that biological sex was relevant to whether the defendant reasonably feared imminent harm. Duh. The Left claimed the ruling created a “trans panic” defense. It did no such thing. And isn't this all obvious? How could a courtroom turn into a vehicle for the propagation of such fundamental mistruths about human nature? Two law professors also published an article arguing that the Supreme Court’s transgender cases undermine sex equality — a claim that only works if sex is not binary. The problem is, their own footnotes said the opposite: sex is dimorphic, determined at fertilization, and defined by reproductive function. This is a reminder of how thin the line between scholarship and advocacy can become when an academic field treats a contested ideological claim as settled fact. Hosts Kathryn Johnson and law professors Joshua Kleinfeld and Ilan Wurman take on both issues. This is the rational — and based — discussion of biological sex, criminal justice, and the legal academy that you won’t hear anywhere else.This is the rational — and based — discussion of the midterms, primaries, turnout, and election integrity that you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

Susan Collins lost in Maine after years as the most moderate Republican in the Senate. Across the country, Republicans ran solid candidates and still underperformed. In Alaska, “Decoy Dan” Sullivan remains on the ballot with thousands of votes while Mary Peltola leads by a few hundred.Hosts Kathryn Johnson and law professors Joshua Kleinfeld and Ilan Wurman give their high-level thoughts on the results — and an update on the Alaska decoy.On the results: Ilan argues the lesson is to scrap primaries and bring back smoke-filled rooms. The Democrats have already done it twice — replacing their primary winner with Kamala Harris, and forcing out their own nominee in Maine before a convention picked the replacement. Kathryn sees a different problem. The candidates were fine. Republicans simply did not show up at the levels they did two years ago, while Democrats did.Josh treats the result as a reversion to default American habits: non-ideological voters focus on practical problems and personalities, then go back to sleep once the immediate chaos fades. The deeper clash with the Left, including the emerging Red-Green alliance, has not gone away. The task is to build an anti-Left politics that still registers as practical to voters who do not think in ideological terms.On Alaska: The second ("Decoy") Dan Sullivan is not ordinary third-party ballot stacking. Nor is it "fraud in the inducement." It is fraud in the fact — deceiving voters about which candidate they are choosing. That fits the federal statute against a candidate fraudulently misrepresenting himself as acting for another candidate on a matter damaging to that candidate. It may also fit 18 U.S.C. § 241, the conspiracy-against-rights statute long used against ballot-stuffing schemes that injure the right to vote. With Peltola ahead by roughly 600 votes and Decoy Dan holding more than 3,500, the Senate could refuse to seat her under the Elections Clause. But Democrats will be in charge, so of course they won't.This is the rational — and based — discussion of the midterms, primaries, turnout, and election integrity that you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

A Brazilian Supreme Court justice who used to be Lula’s personal lawyer ordered the polls kept open for two hours after they were supposed to close. Another ordered the opposition candidate, Bolsonaro, to surrender his passport. He's since fled to the United States. Is that the sign of a healthy democracy, or is the global Left actually the authoritarian ones undermining democracies around the world?In Alaska, a second “Dan Sullivan” is on the ballot against the actual Republican senator of that same name. “Decoy Dan" initially filed with the incumbent’s middle initial, and filed as a Republican even though he's a lifelong Democrat. It turns out the Democrats coordinated to get him to run to confuse voters. Is that the sign of a healthy democracy, or does the American Left care more about power than the will of the people? And what legal consequences might there be for Decoy Dan, including possible criminal prosecutions?In California, the state was told that roughly 20,000 noncitizens may have received vote-by-mail ballots and refused to check. The Ninth Circuit denied emergency relief to the DOJ, with Judge Patrick Bumatay dissenting on obstacle-preemption grounds. Most Democrats don't seem to care that they have no way to check for illegal voters. Is that the sign of a healthy democracy, or is the Left once again hungry for nothing but power?Hosts Kathryn Johnson, Joshua Kleinfeld, and Ilan Wurman take on the midterm picture — and the legal fights surrounding it. The pattern is global: elite institutions, especially courts, used against conservative populists.This is the rational — and based — discussion of midterm election integrity, lawfare, and the rules of the game that you won’t hear anywhere else.

Trump’s Office of Legal Counsel has been on a tear, and hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld explain the big developments.Guns: OLC announced that the federal ban on selling handguns to 18-to-20-year-olds is unconstitutional -- and DOJ announced it will no longer enforce it.Religion: OLC reversed federal policy that routinely barred religious charities from receiving federal grants. Religious charities can now get those grants on the same terms as secular ones.Immigration: OLC held that if a state knows about an illegal immigrant, it must report that person to the federal government—closing a 30-year loophole that let states ignore a clear statutory duty whenever they took federal welfare money.Riots in France: The hosts also briefly discuss the riots in France to argue that much of what the media calls “protest” is better termed "civic terrorism." This is the rational — and based — discussion of guns, religion, immigration, and riots you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

Chief Justice Roberts likes to take some time away from DC every summer and relax in Maine. It's a lovely community. Boats and barbecues. Neighbors and no cars. For years, it helped him reset from one of the country's biggest jobs.Then a local activist published an op-ed urging people to yell at him, give him the finger, refuse to serve him, and generally make sure he never has a moment's peace. Other activists obliged, kayaking up to his home every morning to denounce him.But is that really "protest"? The effort to make one man's life a living hell?Hosts Joshua Kleinfeld, Ilan Wurman, and Kathryn Johnson argue that:This is not protest. We need to call it by its name, and its name is "civic terrorism."Civic terrorism is illegal both criminally and civilly — and is not First Amendment protected.Civic terrorism is a form of cruelty, even when its motive is so-called "justice." It is also very effective. It is tactical cruelty.The only way to end civic terrorism is to impose consequences for it. The Right's preference for bemoaning bad behavior, rather than taking action against it, fails to meet the moment. But how to respond without falling into cruelty oneself presents deep moral questions that the Right must grapple with.This is the rational — and based — discussion of harassment, menace, and the breakdown of social norms you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

Two big new cases just hit the courts, and hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld take them on. First, the President pulled the White House passes of CNN, MS NOW, and Politico, saying: “The White House is not instituting an assault on the Free Press, something which I cherish. It is instituting an assault on the FAKE NEWS ….” The outlets sued, claiming a constitutional right to the passes, and a federal judge provisionally ruled in their favor on due process grounds. Is the due process claim sound? What about freedom of the press?Ilan answers that due process is out of hand if a press pass counts as “property,” and the President can lawfully attach germane conditions to a pass. Josh argues that major media outlets have been gradually shifting from “honest but slanted” to “outright deception.” The solution is to hold that viewpoint discrimination is unconstitutional, but calculated lying lowers the constitutional shield — even if the liar is named “CNN.” And Kathryn asks a question that cuts the other way: if a future Democratic president cannot pull the Daily Wire’s credentials, have we frozen yesterday’s media hierarchy into constitutional law?Meanwhile, a federal judge held that Congress cannot prohibit non-citizen voting in federal elections, because that power belongs to the states alone. Is that right? Or is it a trap that violates basic principles of republican government?This is the rational — and based — discussion of press access and non-citizen voting you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

Midterms are around the corner. Democrats have a shot at the House and Senate. And the maps that will decide those races are being fought in courtrooms as much as in legislatures. Hosts Kathryn Johnson, Joshua Kleinfeld, and Ilan Wurman take on the gerrymandering arms race — and the deeper question underneath it: Should courts referee election maps, or does that hand too much power to judges who never have to face the voters?They start with Virginia, where Democrats tried to turn a 51 percent state into a 10–1 congressional map, then lost on a technicality. Then Texas and California: two states with 60–40 splits in 2024 but maps that look nothing alike. Josh argues that partisan gerrymandering is exactly the kind of attack on democratic machinery courts exist to stop — and that Rucho v. Common Cause was one of the Supreme Court’s great mistakes. Ilan disagrees on the merits: the Fourteenth Amendment protects civil rights, not political rights, and nothing in the Constitution forbids a political gerrymander.Then the Missouri firestorm. Republicans passed a new congressional map. Democrats put it to a referendum. State and federal courts issued conflicting orders to the same official. The U.S. Supreme Court stepped in three times — on the shadow docket — and Missouri will go to the midterms with the old, more Democratic-friendly map.The hosts ask who was right, what the Purcell principle actually requires, and why the Left’s sudden silence about the “shadow docket” is so revealing.This is the rational — and based — discussion of gerrymandering, judicial power, and election maps you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

A public university is “We the People” spending our money on our children. A foreign student with a visa is a houseguest, not a relative.So why are judges telling states they cannot stop DEI dogma in public classrooms — and telling the United States it cannot send home non-citizens who preach hatred of the country?Hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld take on two new cases that split conservatives from libertarians. First, a divided Eleventh Circuit held that Florida’s “Stop Woke Act” violates the First Amendment. Second, a California district court held that the Trump Administration cannot revoke student visas for anti-American, antisemitic, or other speech contrary to U.S. national interests.The hosts draw two lines.  On immigration, citizenship is the line: speech that is fully protected from an American may still be reason to send a guest home.  As to universities, public versus private is the line: a private university may teach what it likes on its own dime, but the people of a community should be able to oversee the institutions they create and fund for the sake of a public mission.This is the conservative/libertarian fight that will decide whether the Constitution is a charter of self-government or a suicide pact. And this is the rational — and based — discussion of free speech, woke ideology, and immigration you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!

Lindsay Clancy sent her husband out of the house, strangled their three children one by one, and then claimed a voice told her to do it. Was she insane? Eleven jurors voted to acquit. Has the jury system failed us?The conservative media sphere is getting this wrong, hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld argue. The rage is justified. The insanity defense and the jury — ancient foundations of Anglo-American liberty — are the wrong targets.The disease is identity politics: a culture in which women side with women, and every group sides with its own, no matter the crime. Dead children become an inconvenience. Justice becomes secondary. Fake compassion becomes a tool of power.This is the most passionate episode we have ever recorded. Josh, who has taught criminal law for fifteen years, explains what legal insanity actually is, why it is vanishingly rare, and why this jury still almost acquitted.This is the rational — and based — discussion of crime, gender, and justice you won’t hear anywhere else.Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!Subscribe to our Substack!New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!Follow us on social media on Instagram, X, Facebook, and TikTok!