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  • Archive for the 'Law' Category

    Seth Barrett Tillman and Josh Blackman: Yes, Trump Can Accept Gifts

    Posted by Jonathan on 13th July 2017 (All posts by )

    The NYT elevates itself by printing an op-ed by Professors Blackman and Tillman:

    The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.

    The piece is a concise presentation of Seth’s argument about the Emoluments clause. Worth reading in full.

    Posted in History, Law, Trump | Comments Off on Seth Barrett Tillman and Josh Blackman: Yes, Trump Can Accept Gifts

    Seth Barrett Tillman: A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

    Posted by Jonathan on 11th July 2017 (All posts by )

    Once this error is noticed, the rest of Chong’s analysis falls apart. Chong can point to other language in Hoyt using “emolument of office.” It is there, and she takes it to mean that “emolument” can be used in a context unrelated to “office” and other employment-like relationships. But she offers nothing akin to proof for that bold claim. It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without her initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

    Read the full text of Seth’s post.

    Posted in Law, Politics, Trump | 5 Comments »

    Seth Barrett Tillman: A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled?

    Posted by Jonathan on 7th July 2017 (All posts by )

    In a recent post on Lawfare, Christopher Fonzone and Joshua A. Geltzer ask the question: “Is the persistent and deliberate failure to identify candidates [for appointed federal positions] not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?” Their answer is basically: yes. Their position is worth pondering. I do think several of their arguments do not work, and several others are not well supported.

    Read Seth’s entire post.

    Posted in Law, Politics, Trump | 1 Comment »

    Patterns of Prejudice in Legal-Industry Hiring

    Posted by David Foster on 12th June 2017 (All posts by )

    In a study summarized here, two sociologists sent 316 law firms résumés with identical and impressive work and academic credentials, but different cues about social class. The study found that men who fit a profile identified by the researchers as “upper-class origins”…by listing hobbies like sailing and listening to classical music had a callback rate 12 times higher than those of men who signaled working-class origins, for example by mentioning country music and track and field sports.

    For comparison, the callback ratio between those profiled as “upper class men” versus “upper class women” was 4X.  Yet “lower class women” received callbacks at almost 5X the rate of “lower class men,” and at 1.6X the rate of “upper class women”!

    I’m not sure the metric used by the researchers really distinguishes economic class…there are a lot of very-well-off people who like country music…but rather some class archetype that exists in the minds of some people, evidently including those people involved in hiring at the subject law firms.  (I also wonder how many of these law firm people actually listen to classical music on any kind of basis, rather than just using it for an “our sort of person” filter)  It seems to me that regional/geographical prejudice (against southerners and rural people) and ethnic prejudice (against people of Scots-Irish background) are influencing these hiring decision-makers.

    Here are links for the abstract of the study, a presentation that summarizes the results,  and the complete paper.

    Posted in Business, Law, Management, USA | 29 Comments »

    Seth Barrett Tillman: President Trump’s Reverse Merryman

    Posted by Jonathan on 7th June 2017 (All posts by )

    Interesting thoughts from Seth:

    Trump is doing what Taney did, but he is doing it to the courts. Absent his recent tweets, Trump might very well have won*** the travel ban case: an appeal from the Fourth Circuit’s decision to uphold the trial court’s grant of a preliminary injunction against the (modified) Executive Order. But Trump does not want to merely win. He wants to win Yuuge! He does not want to squeak out a narrow win by a divided court promising more time-consuming, after-the-fact, and morale-draining oversight in the future (e.g., where such future oversight might threaten lower level Executive Branch officers with individual liability).

    Read the entire post.

    Posted in History, Law, Politics, Trump | 5 Comments »

    Seth Barrett Tillman: Have I Got A Sweet Deal For You …

    Posted by Jonathan on 28th April 2017 (All posts by )

    Are you a law student in desperate search of an interesting topic for a note? … Or, are you a fundamentally burned out and deeply disappointed legal academic tired of writing papers lacking relevance and resonance—papers which no one reads—papers which are never cited and are soon forgotten? … Because if so, have I got a sweet deal for you. You can have this idea—with no money down, and at no cost to you. But you will want to post your work-product on SSRN or otherwise publish prior to May 26, 2017.

    Read Seth’s full post.

    Will Seth get any takers on his generous offer? He should. However, since the emoluments issue is mainly a political bat that partisans use against Trump, that would lose its value if Seth’s argument against its applicability to the President became widely accepted, it seems not unlikely that the answer (at least in the short term) is no.

    Posted in Law, Politics, Trump | Comments Off on Seth Barrett Tillman: Have I Got A Sweet Deal For You …

    “George Washington was the first president to stay in the real estate business”

    Posted by Jonathan on 14th April 2017 (All posts by )

    Eugene Kontorovich:

    In today’s Wall Street Journal, I have an op-ed, “Did George Washington Take ‘Emoluments’ “? It examines the first president’s extensive and hands-on business affairs to get a better handle on the nature of constitutionally prohibited “foreign emoluments.
     
    Here’s an excerpt (article requires a subscription):
     

    Mr. Trump is not the first president to have business dealings with foreigners. That was actually George Washington, whose conduct in office has been a model for every president.
     
    By the 1790s, Washington was wealthy primarily because of real estate — renting and selling his vast holdings. As with Mr. Trump’s hotels, Washington’s renters or purchasers could include foreigners.
     
    The president received constant reports from his nephew and subsequent managers and wrote to them at least monthly… This belies the notion that the Constitution limits a president’s management of, or benefit from, his existing business ventures.
    ***
    One letter written by Washington deserves great attention in the current debate. On Dec. 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture, an entity newly created and funded by Parliament at the initiative of William Pitt. The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young, with his agricultural connections, could find and organize some would-be farmers in his home country and send them over.

     
    The op-ed is drawn from a larger research project on Washington’s business interests and the prohibition on emoluments. Here, I’ll take the space to address possible limitations to this evidence. In particular, Washington insisted that his December 1793 letter to Young be kept private. (Prof. Seth Barrett Tillman has presented strong evidence of the allowance of business dealings from Washington’s public conduct in relation to the domestic emoluments clause.) He suggested that “in the opinion of others, there [may] be impropriety” in his solicitation but makes clear that he himself disagreed with that position.
     
    [. . .]

    (Via Seth.)

    Posted in History, Law, Trump | 1 Comment »

    Seth Barrett Tillman: This Is What Is Wrong With The American Judiciary

    Posted by Jonathan on 16th March 2017 (All posts by )

    Excerpt:

    For example, judges, like anyone else in any other role, want a reasonable amount of time to meet their responsibilities. So a compressed briefing and argument schedule is onerous. But all temporary restraining orders are onerous in just this way. That being so, it is difficult to credit why this all too common fact of judicial life is among the “worst conditions imaginable.” Bybee’s overstatement here is palpable.
     
    Even more problematic, Judge Bybee states that “intense public scrutiny” is another of these “worst conditions imaginable.” That is a problem. Judges have extraordinary public power. They are supposed to be scrutinized, and that includes scrutiny by the wider public. The only legitimate question is whether the scrutiny is fair, not how “intense” it is. The First Amendment does not end at the courthouse door, nor do parties’ First Amendment rights end because they find themselves dragooned into litigation.
     
    Moreover, it is wholly “out of … bounds” for an American judge to instruct litigants that their out-of-court statements are inconsistent with “effective advocacy.” Even if not specifically intended, the natural, probable, and expected effect of the dissent’s language is to chill constitutionally protected speech.* It amounts to a directive, from the court** to the lawyers before it, to instruct their clients to shut up during ongoing litigation. Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

    Read the whole thing.

    UPDATE: I Was Wrong

    Posted in Anglosphere, Civil Liberties, Civil Society, Law, Political Philosophy, Politics | 17 Comments »

    Seth Barrett Tillman: NPR’s Planet Money, President Trump, and the Foreign Emoluments Clause

    Posted by Jonathan on 12th March 2017 (All posts by )

    Noel King & Robert Smith, NPR Podcast #758, Can Trump Take the Money, NPR: Planet Money (Mar. 10, 2017), http://tinyurl.com/zg6cgte.
     

    Noel King: Presidents and other elected officials have been so paranoid that they might seem to be in violation of [the Foreign Emoluments Clause] that they do everything they can to avoid it. In fact, in the handful of times it does come up it sounds ridiculous.

    Noel King: Or if Presidents or other U.S. officials do accept gifts, they do what the [Foreign Emoluments] [C]lause says they got to do, they ask Congress for permission.

     
    Dear Noel,
     
    I listened to your full podcast. In fact, I listened to it twice. And then I delayed two days before writing you.
     
    In your podcast (at 10:20ff), you state that Presidents have done “everything they can to avoid” application of the Foreign Emoluments Clause “or … they ask Congress for permission [to keep the gift].”
     
    I find your willingness to make this claim more than a little troubling. You interviewed me for well over an hour, and you and I discussed in detail President George Washington’s diplomatic gifts: gifts which he received, acknowledged, and kept, absent any request for congressional consent.
     
    [. . .]

    Read Seth’s full post.

    Posted in History, Law, Media, Politics, Trump | 5 Comments »

    Seth Barrett Tillman on Irish Television and Radio

    Posted by Jonathan on 2nd February 2017 (All posts by )

    Sharon Ní Bheoláin & Bryan Dobson, RTÉ News: Six One (Jan. 31, 2017, 6:00 PM) (interview), http://tinyurl.com/h2yatsx ; http://tinyurl.com/hx3ndjc

    Cormac Ó hEadhra, The Late Debate, RTÉ Radio 1 (Jan. 31, 2017, 10:00 PM) (panelist), http://tinyurl.com/hfs62h2

    Pat Kenny, The Pat Kenny Show, Newstalk.com 106–108fm (Feb. 1, 2017, 9:00 AM), http://tinyurl.com/gvvqdnb

    (Link to blog post.)

    Posted in Current Events, Law, Media, Politics | 4 Comments »

    Glasnost and Perestroika: An Agenda for the Trump Administration

    Posted by David McFadden on 25th January 2017 (All posts by )

    Although President Trump is confident of his ability to deal with Vladimir Putin, he should carefully avoid emulating Putin. It would be far better for the president to look to the example of Putin’s predecessor, Mikhail Gorbachev, who transformed the Soviet Union. The first steps in the transformation were glasnost and perestroika. Glasnost, introduced in 1985, roughly means openness and was a step toward open discussion of political and social issues. Perestroika, introduced the following year, roughly means restructuring. Perestroika reduced central economic planning and allowed some private business ownership. These and later reforms resulted in a sharp increase in political freedom (from nil), which peaked in 1991. Sadly, the gains were short lived. Freedom steadily and drastically declined under Yeltsin and Putin for a complex of reasons debated at a recent symposium at the Cato Institute.

    The United States as it emerges from the Obama Administration, while not as bad off as the Soviet Union as it emerged from communism, is badly in need of both glasnost and perestroika. They should be the twin priorities of the dawning Trump Administration.

    Glasnost

    The American left has come to despise freedom of speech as much as it has traditionally despised freedom of contract. It has followed the normal progression of leftist movements toward viewing the protection of its social objectives as more important than human rights. The earliest and still worst manifestation of this trend is on college campuses. Campus speech codes began to appear in the late 1980’s and spread rapidly. Within a few years sixty percent of colleges had them. According to a report of the Foundation for Individual Rights in Education, the percentage has declined over the last nine years to forty percent.

    In 1998, Congress declared that it was the sense of Congress that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” 20 U.S.C. § 1011a(a)(2)(C), (D). While the sponsors of this provision may have thought (or wanted to give the impression) that they were doing something, they did not do very much. The provision imposes no consequences on institutions that act contrary to the sense of Congress on this subject. It needs an amendment putting federal funds at stake, as anti-discrimination sections in title 20 do. Although speech codes are less common than they were, universities still do a lot to stifle “the free and open exchange of ideas.” In particular, they fail to prevent students from being intimidated, harassed, and discouraged from speaking out by other students, using increasingly violent methods.

    Intolerance of dissent, especially on a fixed dogma like climate change, is not limited to college campuses. A few years ago, a cabal of environmentalists enlisted sympathetic state attorneys general to investigate climate change dissidents. With a vague objective of finding a RICO violation, a group of twenty attorneys general (“AGs United for Clean Power”) have subpoenaed forty years of records from ExxonMobil in a retaliatory effort to find evidence that it has had information on climate change that differs from what it has said publicly. The attorney general of the Virgin Islands subpoenaed documents from academic institutions, scientists, and the Competitive Enterprise Institute, a think tank. He withdrew that subpoena after getting some pushback from a congressional committee and a lawsuit from the Competitive Enterprise Institute.

    A venerable weapon is available for the Justice Department to use against oppressive state universities and attorneys general, the Enforcement Act of 1870. The second section of the act, 18 U.S.C. § 242, makes it a crime for anyone under color of state law to deprive a person of rights, privileges, or immunities secured or protected by the Constitution. The first section of the act, 18 U.S.C. § 241, provides criminal penalties for conspiracy to injure, oppress, threaten, or intimidate any person in the enjoyment of any right secured to him by the Constitution. State action is not an element of the crime under § 241. Could not the Civil Rights Division of the Justice Department, under new leadership, go after, for example, a group of students who prevent Milo Yiannopoulos from speaking? That would be fun.

    These tools may or may not work, but they should be tried. Assaults on civil liberties should no longer be costless.

    Perestroika

    In Federalist No. 72, Hamilton said, “To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert.” This has to be the best standard now, as everyone in the Trump Administration should understand.

    Perestroika in the modern context ought to begin with reversing and undoing the Obama Administration’s impositions on the economy. Amity Shlaes, who, it should be recalled, wrote The Forgotten Man, observed that “smaller firms–the ones unready for the lawsuit, the investigation or the audit–bear the greater share of regulatory costs.” The regulatory burdens in need of repeal extend far beyond the Affordable Care Act and its progeny. Daniel Pérez of George Washington University’s Regulatory Studies Center has determined that Obama issued about 33% more “economically significant” regulations than either Bill Clinton or George W. Bush.

    It will be a challenge for the political appointees in all the departments of the federal government to sift through the regulations and begin the process of liberating the economy from the worst of them. Fortunately, litigation has already left some of the Department of Labor’s output in ruins. The Persuader Rule, which I warned about in this blog before its adoption, and the Fiduciary Rule are controversial intrusions of the Labor Department into professional relationships. Both the Persuader Rule and an anti-business revision of overtime regulations have been enjoined by federal district courts in Texas. Five different lawsuits challenging the Fiduciary Rule are pending.

    Withdrawing appeals of the rulings against the Persuader Rule and the overtime regulations is the simplest way to dispatch those rules. Other recently adopted regulations can by nullified by using the Congressional Review Act, 5 U.S.C. §§ 801-808. A joint resolution of disapproval has to be introduced within sixty days of Congress’s receipt of a report of rulemaking. The act provides an expedited procedure for a joint resolution and limits debate in the Senate. In June, President Obama vetoed a joint resolution disapproving the Fiduciary Rule.

    For that rule, and so many others, the arduous notice and comment process of the Administrative Procedure Act will be the only method of repeal. The ultimate goal should be that the Code of Federal Regulations will bear no trace that the Obama Administration ever existed and, more generally, that this time glasnost and perestroika will have a more lasting imprint.

    Posted in Big Government, Civil Liberties, Education, Law, Obama, Russia, Trump | 5 Comments »

    Seth Barrett Tillman: Opening Arguments Podcast on the Emoluments Clause, With Andrew Torrez and Thomas Smith

    Posted by Jonathan on 17th January 2017 (All posts by )

    Listen here.

    Posted in History, Law, USA | Comments Off on Seth Barrett Tillman: Opening Arguments Podcast on the Emoluments Clause, With Andrew Torrez and Thomas Smith

    Seth Barrett Tillman: This is what balanced news reporting looks like ….

    Posted by Jonathan on 13th January 2017 (All posts by )

    [Partial automated translation:]

    Tillman also pointed out that many of the public service regulations were not valid for the purpose of preventing possible conflicts of interest for elected deputies [i.e., officials], judges and not least the presidents and vice-presidents. Tillman called [i.e., made reference to] the desired independence of the persons who hold such offices. If presidents had to submit their decisions to an ethics officer, in order to rule out possible conflicts of interest, the latter would gain a very powerful position, although he [i.e., the latter] was not legitimized by any choice [of the people]. Judges and elected representatives enjoy a trust advance.

    This is worth reading in full. Recent US reporting on the Constitution’s Foreign Emoluments Clause, like much recent US reporting on any topic that can be associated with Trump, is tendentious in the extreme.

    See also: Tillman on Trump on RTE (Irish national television) (Seth appears in the video beginning around 5:50, debating a Democratic Party representative. The clip runs about 9 minutes.)

    Posted in Law, Media, Politics, Trump, Video | 1 Comment »

    Seth Barrett Tillman: Moving the Overton Window and Student Notes

    Posted by Jonathan on 6th January 2017 (All posts by )

    When you launch a new idea, its very newness puts it outside of the mainstream. Back in 2007, in an academic article, recess appointments were one of the issues du jour. I wrote that if a President made a recess appointment, a determined Senate could kill the appointment by ending its current session and immediately starting a new one (or by doing so twice, in the case of an intra-session recess appointment). See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164 (the first part of a four-part Tillman-Kalt exchange).
     
    I admit that the idea was a bit novel—but it does follow from the text of the Constitution’s Recess Appointments Clause. One student note called my “innovation[] … at once both plausible and absurd ….” David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 643 (2014).
     
    Two years later, in 2016, what was absurd is now standard fare.
     

    All that the [Republican majority] Senate would need to do [to terminate a purported recess appointment by President Obama of Judge Garland to the Supreme Court] is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

    Read the rest.

    Posted in Law, Politics | 2 Comments »

    Seth Barrett Tillman: Ed Kilgore, At NY Mag’s Daily Intelligencer, Asks President Obama To Use Recess Appointments: Kilgore’s Strategy Won’t Work & This Is Why

    Posted by Jonathan on 29th December 2016 (All posts by )

    Kilgore argues that the only route the Republicans would have to remove these recess appointees* would be through slow moving lawsuits which would take months, all the while leaving these appointees in place during the first year of Trump’s new administration. See Kilgore (“TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.”). Kilgore is entirely wrong. No lawsuits would be needed—just two swings of the Majority Leader’s gavel. Just two swings and the recess appointees would be out.**

    Read the rest.

    Posted in History, Law, Obama, Politics | 1 Comment »

    Seth Barrett Tillman: This Is What I Think And This Is What Other People Think Scholarship Looks Like

    Posted by Jonathan on 27th December 2016 (All posts by )

    Seth points out differences in the ways in which different legal scholars characterize arguments that challenge conventional legal wisdom. Worth reading.

    Posted in History, Law | 2 Comments »

    Seth Barrett Tillman: Room for Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents

    Posted by Jonathan on 19th November 2016 (All posts by )

    Seth makes the New York Times:

    Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides that “no person holding any office of profit or trust under them (i.e., the United States) shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”
     
    Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not.

    Worth reading in full.

    Posted in History, Law, Politics, Trump | Comments Off on Seth Barrett Tillman: Room for Debate: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents

    Seth Barrett Tillman: The Supreme Court Temptation

    Posted by Jonathan on 9th November 2016 (All posts by )

    Making a nomination to the Supreme Court to fill the Scalia seat is easy, and it will permit Trump to control the news cycle. Trump will be tempted to make this his first substantial order of business, but it is a temptation to which the future president ought not succumb, even if he risks losing some political popularity while delaying the eventual nomination.

    Read the rest.

    Posted in America 3.0, Elections, Law, Politics, Trump | 10 Comments »

    Outrageous But Not Surprising

    Posted by Jonathan on 6th November 2016 (All posts by )

    If it serves the cause it can’t be illegal.
     

    Posted in Crime and Punishment, Current Events, Elections, Just Unbelievable, Law, Leftism, Media, Obama, Politics, Trump, Video | 7 Comments »

    Seth Barrett Tillman: The Case of the Ship Money, R v Hampden 3 State Trials 381 (1640), and its relevance today

    Posted by Jonathan on 6th November 2016 (All posts by )

    In The Ship Money Case [R v Hampden 3 State Trials 825 (1637), superseded by Act Declaring the Illegality of Ship-Money, Aug. 7, 1641, 17 Charles I, chapter 14], a bare majority of the judges of the Court of Exchequer Chamber voted for the Crown and against Hampden, the tax payer, who objected to being forced to pay purported taxes absent parliamentary consent.

    Seth asks:

    100 years from now which will be recognized as the more odious decision? Hampden or Miller? Hampden merely opposed Parliament; Miller opposed a national popular referendum.

    Read the whole, brief, thing.

    (I’m guessing Hampden wasn’t one of the foreign laws our own Justice Ginsburg had in mind.)

    Posted in Britain, Elections, Europe, History, Law | 1 Comment »

    Seth Barrett Tillman: Justice Thomas’ Worst Decision: Brexit

    Posted by Jonathan on 3rd November 2016 (All posts by )

    Seth predicts reversal on appeal. Read his argument for yourself.

    Posted in Anglosphere, Britain, Europe, Law | 1 Comment »

    Madonna – Felon

    Posted by TM Lutas on 19th October 2016 (All posts by )

    Here’s Project Vote’s NY voter registration guide. The footnotes have been linked to the underlying laws and the federal court case.

    Here is an excerpt

    A. Are there restrictions on the voter registration drive offering something of value to a person in
    exchange for completing a voter registration application?

    It is a felony under New York law to pay, lend or contribute, or offer or promise to pay, lend or contribute any money or other valuable consideration to or for any voter, or to or for any other person, to induce such voter or other person to place or cause to be placed or refrain from placing or causing to be placed
    his name upon a registration poll record.14

    Federal law states that whoever pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years. 15 At least one federal appellate court has interpreted payment as intended to include forms of pecuniary value offered or given directly to an individual voter, and indicated the value should be based on an assessment of the monetary worth of an item from the perspective of the voter receiving the item. That case held that food vouchers could be payment.16

    In Madison Square Garden, Madonna just offered oral sex to anybody who votes for Hillary Clinton.

    The NY law violation is a misdemeanor, fine set between $100-$500 and/or imprisonment not less than one year.

    The Federal law violation is a felony, fine set at not more than $10,000 and/or imprisonment for up to five years.

    Posted in Crime and Punishment, Elections, Law, Miscellaneous | 12 Comments »

    Is it ok to have a purposeless military?

    Posted by TM Lutas on 19th September 2016 (All posts by )

    I believe this is a common sense proposition. You should never define a military force without it having a purpose.

    You would think that there would be nobody on the other side of this question. Who would do such a crazy thing as to define a military force, but just have them milling around without a purpose or a mission? It’s ridiculous. Or is it?

    10USC311

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    What is the purpose of the military force called the unorganized militia? What is their mission? What is its proper scope of activity? I think that even people who generally support the 2nd amendment do not have a consensus and certainly have not thought much about it.

    As an aside, it’s straight up sexism for female citizens to be included in only one of these two forces. A smart Republican would introduce legislation to fix that.

    Posted in Law, Military Affairs, USA | 15 Comments »

    Seth Barrett Tillman: Law of the Clinton Candidacy

    Posted by Jonathan on 13th September 2016 (All posts by )

    Seems like a good idea:

    Don’t you think the Democratic National Committee, Vice President Biden, and Senator Tim Kaine, the Democratic Party’s candidate for VP, each already have on file a full-length memorandum on these questions? Maybe the mainstream media could “obtain” copies for the rest of us?
     
    Would not this make a suitable—if not outstanding—law journal mini-symposium issue: “The Hillary Clinton Candidacy: The Legal Issues”? Any takers? An impromptu mini-symposium could be organized, held, and published on line prior to the November election, particularly where all articles are kept to a maximum of 7 pages (footnotes included).
     
    The “natural born citizen” issue generated several timely full-length articles. Surely there is time and means to do this too. The on line supplements to the primary student-edited print journals are particularly well suited for this task. Any takers?

    Posted in Elections, Law, Politics | 1 Comment »

    Seth Barrett Tillman: Trump, Confirmation Bias, and the Rule of Law

    Posted by Jonathan on 6th September 2016 (All posts by )

    Trump is the first presidential candidate of my lifetime who has been regularly criticized for making public statements conforming to rule of law principles. Part of the confusion in the minds of his many critics arises from simple confirmation bias. But another part comes from an inability of his critics to plainly discuss what they mean by the rule of law. No doubt much of it is simply disagreement with the man’s over-the-top style and his political orientation—but normal disagreement about political principles, absent clear on point evidence, ought not lead to claims that one’s opponent is a threat to the rule of law.
     
    So what is the “rule of law”? Unfortunately, there is no simple answer to that query. I well remember my graduation from law school. A thoughtful fellow behind me said, as we waited on line to receive our degrees: “Seth, after three years of law school, as far as I can tell, the rule of law is what a prosecutor says is at risk if he loses a criminal case heard by a jury.” That answer of convenience will not do. Other people fill in the rule of law with all good and noble principles: the rule of law is human rights, separation of powers, democracy, etc. This approach is not helpful either, for even if the virtues of these other principles were contestable, their content and optimal scope remains deeply contested.
     
    Without attempting to fully define the rule of law, I will put forward some minimal necessary (but not sufficient) conditions associated with the “rule of law”. A person’s conduct is inconsistent with the rule of law, if he knowingly disobeys established law without seeking a change in the law from the legislature (including referenda where permitted by law) or validation of his specific conduct from the courts. On the other hand, a person’s conduct is consistent with the rule of law, if he obeys the judicial orders of lawfully constituted courts, and if he obeys the rules associated with the conduct of litigation in those courts.*

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    Posted in Law, Political Philosophy, Politics, Trump | 5 Comments »