Author Archive

(This is a reposting of posts from two and seven years ago. Unhappily, this post’s themes are more relevant than ever. The Internet seems to be changing human social relations, business, politics and civil society in significant ways not all of which are clear. Perhaps the nature of what is happening will be better understood with time.)

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Crazy, overconfident; the opposite of the judicious, scientific, skeptical temperament.

Extreme opinions.

Stubborn.

Bombastic.

The opposite of thoughtful.

Read the rest of this entry »

I suggest that it is not wrong for this prime minister or any prime minister to criticize her predecessors, cabinet colleagues, back benchers, or fellow members of parliament—in private or in public. Going over the heads of members of parliament by calling a snap election or engaging in political speech is precisely what is meant by normal democratic politics. Seeking to constrain normal democratic politics by characterizing it as abnormal is precisely the sort of behaviour that made Brexit possible—if not an existential necessity to secure democratic rights for ordinary voters.
 
[. . .]
 
Professor AAA thinks an elected Prime Minister’s trying to pass a cabinet programme by directly speaking to her nation’s people is somehow a wrong—a threat. And that is why millions of people voted for Brexit, and—I might add—why millions of people voted for: Donald J. Trump.

Read Seth’s post.

Reagan made his case directly to the voters by giving speeches which the networks were forced to broadcast unfiltered. Trump does the same thing by using Twitter. Trump’s critics respond as did Reagan’s, by trying to discredit the speaker and distract attention from his message. Trump’s critics are unsuccessful in doing this, as were Reagan’s.

Here is another question: What if President Trump and his wife should choose to go their separate ways? Can the President seek a divorce? Getting a divorce is not a de minimis benefit. Getting a divorce, especially with concomitant determinations about the division of marital property, calls for judicial discretion—so I guess, under Plaintiffs’ theory, the President must remain married as long as he is President. Tough luck Melania! Under Plaintiffs’ theory, the President cannot get a divorce in a federal court—as that would be an “emolument” from the federal government beyond his regular presidential compensation (and so purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a state court—as that would be an “emolument” from a state government (again, purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a foreign court—as that would be a foreign “emolument” (and so purportedly precluded under the Foreign Emoluments Clause). Trump just can’t catch a break!

Great stuff.

In the Fourth Circuit, 3 judges have D/R or R/D appointments (i.e., CJ Gregory, Traxler & Floyd). 8 of the 18 have R or R-only appointments. 7 of the 18 have D or D-only appointments. The chances of drawing a strictly R-only panel of judges are 8/18*7/17*6/16 = 7%.
Not that it matters.
7%
Did I tell you?: only 7%.

Seth runs the numbers. His post is worth reading in full, as usual.

“it’s merely common courtesy, you moron”

(Actual quote from a FB discussion I read today.)

I do not know why Judge Messitte took this course of action. But if I had to guess this is what I would say. Judge Messitte denied the President his day in court, and when it looked like the President’s counsel was going to get his day in front of another court, Judge Messitte actively sought to frustrate those efforts. To put it another way, Judge Messitte, and all the parties, and all the amici, and all sophisticated observers know—we all know that this lawsuit was not brought by Plaintiffs in the hopes of prevailing on the merits. Plaintiffs would be happy with such a victory if it should come their way, but that is not why they brought this lawsuit. This lawsuit’s primary goal was and remains an effort by Plaintiffs to get discovery against Trump and his commercial entities—to see what (if anything) shakes out. The discovery in this lawsuit ordered by Judge Messitte was put on hold during the appeals process, and when Judge Messitte saw that his efforts to get discovery were being frustrated by the President’s counsel’s filing an appeal, Judge Messitte advised the Plaintiffs how (they might try) to lock the case out of the court of appeals and to put it back in his bailiwick where discovery could proceed, even where he refuses to rule promptly on threshold motions. Again, the President is not litigating against the Plaintiffs: they are little more than passive observers in this action. It appears to me that this litigation is, in reality, between Judge Messitte* and President Trump. Of course, that is all just guesswork on my part.

Read the entire post.

The plot gets curiouser:

Was Judge Messitte’s ordering the Plaintiffs to dragoon a second defendant into the case a breach of judicial ethics? I really do not know. But it is odd. Imagine one day finding yourself personally named as a defendant in some ongoing lawsuit, not because the plaintiff decided to drag you into the case in relation to some newly discovered evidence, but rather because the judge ordered the plaintiff to sue you before any discovery revealed any specific wrongdoing on your part. We don’t usually imagine that federal judges ought to chase down would-be plaintiffs, and then proceed to advise and urge (and order) them to sue people that the plaintiff had expressed no interest in suing. But that is basically what happened here.

Read the whole thing.

(Part III of this series of posts is here.)

Hundreds and thousands of actions go through the federal courts promptly—Judge Messitte and Judge Sullivan are dedicated judges who do not regularly let motions grow stale beyond the standard 6-month target deadline. So why cannot the President get his motions decided in a timely way just like any other litigant in the federal courts? It is all so difficult to understand.**

Seth helps us to understand.

Read the entire post.

(Parts I and II of this series of posts are here.)

…In other words, in the District of Columbia action, Judge Sullivan’s standing-only ruling did not dispose of the DOJ’s motion to dismiss. The customary or target deadline for resolving such a motion is 6 months—i.e., the 6-month target to resolve the motion was December 7, 2018. December 7 has come and gone. We are now 3 months post-deadline. There has been no call by the court for further clarification, renewed briefing, or renewed oral argument. Yet the DOJ’s motion to dismiss remains unresolved.
 
Why?
Why the delay?
Where is the decision?
What is going on?

Read Seth’s entire post.
 
 
UPDATE: Part II: The Mystery of Senator Richard Blumenthal v. President Donald J Trump

Professor BBB wrote: “Not to mention the lies and manipulation of the Leave campaign, which just exacerbated the problem [for voters].” Notice how Professor BBB feels no need to explain what those lies were or how voters were manipulated or how significant the misinformation was. But just so there is no confusion—there were lots of people on hand to argue the other side. Look at the list. I wonder how is it that they were unable to make themselves understood in a publicly funded vote?
 
Who Supported Remain?
Her Majesty’s Government was for Remain.
The leading opposition parties were for Remain.
 
[. . .]
 
[long list]
 
[. . .]
 
The Bar and the legal profession were for Remain. But …. I repeat myself.
 
Now ask yourself: precisely, who was on the Leave side?
Just some voters—and what do they know?
 
But here at Conlawprof—we are all good democrats—honest & true.

Read the entire post.

The Mango Lady is a peddler who does business under the elevated train tracks at a major intersection. I have seen her many times but never bought anything from her. However, I know someone who knows people who say that they have.

The story is, if you ask the Mango Lady her price she will reply that mangoes are $1 each or $3 for two. Yes. My friend’s friends wanted to buy several mangoes but made clear that they would pay no more than $1 each. They weren’t about to get taken by the 2-for-$3 gimmick. The Mango Lady laughed and said: You wouldn’t believe how many people fall for that.

From a characteristically astute column by J.E. Dyer:

The point of the Treaty of Westphalia was not that religion is ugly and divisive, or that it must be subordinated to the political. The point was that the armed force of the nation-state, which is useful and does good service for the right purposes, must not be used to enforce universalist philosophies or settle their irreconcilable disputes.
 
The Westphalian commitment is that universalism will not take precedence over national sovereignty. Instead, national sovereignty will protect nations from movements for overweening universalism.
 
In 1648, the conscious commitment to this principle helped end the wars of Catholic and Protestant monarchs on the European continent (although the effect was not immediate). In the Napoleonic era, it was instrumental in beating back Bonaparte’s encroaching supranational vision: a hybrid of Roman imperial concepts and French revolutionary declarations.
 
The Westphalian commitment to respect for national sovereignty was also a key enabling factor for the success of the United States, once we established the “national” and “sovereignty” conditions. America is not possible without Westphalianism.
 
And in the 20th century, it was the continued commitment to the Westphalian nation-state that allowed the free West to face down ruthless, radical, universalist Communism, even though the latter expanded with each decade into more and more territory, and became equipped with vast conventional armies, nuclear weapons, and seats in the United Nations. The UN was useless for defeating state-armed Communist aggression. It was a specific group of nations acting in their own right, led by the United States, that achieved that goal.
 
In 2019, the confrontation is in some ways harder to discern than in earlier centuries. It isn’t between nations; it’s within them. Urban “elites” align with each other across borders, the leaders of the biggest cities consciously identifying not with their compatriots from the hinterlands but with the leaders of foreign megalopolises. Conversely, many of the people outside the “elite” circles, wherever in the world they are, take to the streets cheering America’s Donald Trump. His brand of politics cares about them.
 
The nation-state is what makes the protection of liberty and rights possible. Undermining the nation-state is the project of today’s universalist collectivism, and the government crises in the U.S., UK, and France are visible signs of that battle being waged. This is not a battle over theory or mere programmatic choices. It’s a battle for the future of mankind.

In a way that seems psychologically analogous to price trends in financial markets, the civil war is what’s happening now while people focus on lurid predictions that don’t materialize.

Read the whole thing.

Important points:

In his 60 Minutes interview, former acting FBI director McCabe said:

There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt… publicly undermining the effort of the investigation.

https://www.lawfareblog.com/thoughts-andrew-mccabes-60-minutes-interview (emphasis added).
 
Is not this statement troubling, if not Orwellian? Think or speak the wrong thing—and the government investigates you? In a 2017 blog post on New Reform Club, I wrote about this issue as follows:

Read Seth’s full post.

The trend toward U-shaped confrontation zones continues.
 

Appliance delivery, carrying refrigerators up and down stairs, hard work for not much money. I ask the guy where he’s from, he says he came here two months ago from Venezuela.

I try to cheer him up, tell him that in a year or two his life will be better. He replies that it’s already better.

#USA

 
 

 
 

 
 
Could dogs in places be the new waiting rooms?
 

Minimize paper, phone calls, driving, errands, quarrels, litigation, surgery.

Maximize time with loved ones and time alone.

Nobody’s that good.

Most things aren’t your problem.

Most predictions are wrong. Arguing about predictions is usually a waste of time.

Arguing about anything, unless you are paid to do it, is usually a waste of time. An exception to this generalization is when you have a chance to make a principled case about an important issue in front of an audience with many uncommitted members.

Most advice is worthless and should be taken with a grain or twenty of salt. However, an unexpected gentle suggestion from someone who knows you well should be treated seriously.

Most loose ends should be left alone.

Silence is often the best reply.

Embrace the power of “I don’t know”.

If it’s stupid and it works it isn’t stupid.

Risk is everywhere and many endeavors are riskier than they initially appear to be. Complacency, especially in groups and institutions – “That’s never happened” – is a warning to watch out for icebergs.

In business, look for patterns of events that contradict an opinion consensus.

The period of chaos following a disruptive event can be a good time to take bold action.

Everyone thinks his way is the only way. Try to learn from other people while keeping an open mind.
 

Rush Limbaugh on Dec. 7:

Donald Trump arrived, the way I hear this Tillerson sound bite, Trump arrives knowing what he wants to do. He doesn’t arrive unsure and he’s not gonna admit that who doesn’t know what to do because he’s not from this world. He’s there, and he has a specific agenda that everybody that elected him knows what it is: Make America Great Again.
 
Sadly, he hasn’t done a lot on that agenda. He hasn’t built the wall yet. We haven’t repealed and replaced Obamacare. There’s a lot of things in the Trump agenda that have not happened yet. But that’s not what Tillerson’s talking about. Tillerson’s talking about some guy comes in and says, “This is what I want to happen.” And your typical Washington bureaucrat or CEO bureaucrat will say, “Well, where’s the memo? Where’s the plan? Where’s the blueprint?”
 
Trump said, “There’s no blueprint. Just do it! This is what I want to happen. This is what I want.”
 
“Well, uh, you know, you shouldn’t do it that way.”
 
“I don’t care what you — just make it happen.” Trump is one of these, this is how he’s worked, “make it happen.” If he’s talking to Jared, if he’s talking to Trump Jr. or Eric or Ivanka, “This is what I want, make it happen.” That’s not how Washington works. Washington works on things not happening. The whole point of bureaucracy is to not do such that it looks like you’re getting things done. There might not be any need for you after you finish. So everything’s never done. Of course Trump’s gonna have compatibility problems with that.

[emphasis added]