Archive for the 'Law' Category

https://reformclub.blogspot.com/2018/09/peak-conlawprof-i-and-ii.html

Too short to quote; worth clicking.

It strikes me that the complaint against judicial elections (as voiced on this listserv) is rooted in the absence of life tenure — not elections per se. You could have elections filling judicial vacancies — but with the candidates’ receiving life tenure. And you could have appointments by political authorities to fixed and limited judicial terms — with the possibility of reappointment. The threat to the rule of law (such as it is), lies with the prospective candidate for reelection/reappointment to judicial office biasing his/her decision for self-interested reasons. But that conflict of interest will appear whenever you have terms of limited duration with the possibility of reelection/reappointment. It is not elections per se that create the conflict.

This is an excellent point.

Read Seth’s post in full.

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Josh Blackman & Seth Barrett Tillman at The Volokh Conspiracy:

For now, it is enough that we point out that the District of Maryland’s five-page rebuke of our brief rests on plain historical error. Moreover, that error was enabled by errors in the Plaintiffs’ briefs. On appeal, the burden remains on the Plaintiffs to show that the District of Maryland, and not President Washington, is the more faithful arbiter of the Emoluments Clauses.

Worth reading.

If your dispute with Trump and your call for his removal are based on policy (and his language about policy), rather than about discrete factual predicates amounting to legal violations, then you should eschew the language of the criminal law and push forward with debates (in this forum and elsewhere) about the prospective dangers you think Trump is creating or the harms he has already caused. But as I said, the country survived Johnson. To the extent that the argument against Trump is based on his saying stuff you think outrageous, I think the country will survive his talking big. I would also add that Trump has done little (as I see it) which substantially departs from his campaign statements—so a removal based on political disagreement about the expected consequences of policy is not going to be one with a strong democratic justification.
 
Technical point: It may be that deporting foreigners is not a criminal punishment, but exiling/banishing/deporting Americans who are in the country legally would seem to me to amount to a violation of a 14th Amendment liberty interest. This brings up an important cultural divide in America today (and not just in America, but across the Western world). Many of Trump’s supporters see the elites as being indifferent between their fellow citizens and foreigners. I ask you not to prove them correct.

Read the whole thing.

The conclusion of a Glenn Reynolds USA Today column about pro-governing-class selection bias in US Supreme Court nominations:

To counteract this, we might want to bring a bit more diversity to the court. I’m not recommending that we eliminate the informal requirement that judges have law degrees (though non-lawyer judges were common in colonial times, and some countries still use them). But maybe we should look outside the Ivy League and the federal appellate courts. A Supreme Court justice who served on a state court — especially one who had to run for election — would probably have a much broader view of America than a thoroughbred who went from the Ivy League to an appellate clerkship to a fancy law firm.

I would expand on this thought to suggest US presidents give preference to candidates who have run small businesses, have had run-ins with bureaucratic authorities and/or been arrested.

Lex adds:

Agreed.

If Trump gets a second term, I’d like to see Mike Lee on the Supreme Court.

I like Glenn Reynolds’s idea: 59 Justices. Nine appointed by the President, and one appointed from each state by the governor. Bloody brilliant.

Arrayed against the policy of the elected government of Poland (which ran for election twice on this policy) is: the EU Commission (not elected), the decisions of the European Court of Human Rights (not elected), the Council of Europe / Venice Commission (not elected), and any number of Polish judges — all appointed by a process wholly insulated from democratic control. But I repeat myself.
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I cannot prove this, but I expect if during our domestic squabbles involving the elected arms of the government manipulating the federal courts (circa 1802, and again circa 1863, or even today in relation to court packing) a bunch of international organisations told us what to do, such interventions would not have been (and will not be in the future) very welcomed, and might very well have made (and will make in the future) normal political compromise less likely.
 
“Purge”. If you want more Trump … but I repeat myself.

Read the whole thing.

See: The Case Against Deporting Immigrants Convicted of Crimes

Then see:

The prosecutor made a recommendation against deportation.
 
The prosecutor reasoned that the defendant was unlikely to be rehabilitated by confinement, and therefore, the defendant was likely to commit the same crime again. The prosecutor’s position was that whether the defendant goes on to rape a Swede (or a non-Swede in Sweden) or someone in the defendant’s own home country should not be considered because the health, safety, and lives of all potential future victims should be valued equally. And equality is a value upon which we all do or should agree.
 
Did the prosecutor act rightly or wrongly?

Leon Cooperman: Two changes that could help fix what is wrong with our regulatory process:

It seems logically manifest to me that something transpired between September 2016 and March 2017 that led to the Commission’s dramatically downwardly-revised settlement offer. Despite numerous attempts to ferret it out, I have been unsuccessful in getting a response, either from the current chairman or from his predecessor who oversaw my case (and who told me, when I saw her at a conference after she left office, that even innocent people often find settling with the government preferable to hazarding the system). As an American taxpayer, I believe that I deserve an answer to my question. And as an analytical person, it is hard for me to reconcile the significant, blood-sport destruction of my business that this matter has occasioned without understanding the dynamics behind the resolution from the Commission’s perspective.

“Something transpired between September 2016 and March 2017” that led the SEC to dial back the brutality of its regulatory attack on Mr. Cooperman’s firm. I wonder what that something could have been?

Elections have consequences. The Obama administration was so openly hostile to business, and so casually willing to use its power to reward allies and punish critics, that prominent business people were reluctant to criticize the Administration publicly, especially in the early days before the 2010 elections. If I recall, Mr. Cooperman was more courageous than most of his contemporaries in expressing public concern about Mr. Obama’s policies.

As the man said, this is how you get more Trump.

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(inspired by Are You an Alpha or a Beta Male? Take Our 20-Question Quiz and Find Out and the Bill of Rights)

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Linda Greenhouse, writing about the late federal judge Stephen Reinhardt, also mentions Supreme Court justice William Brennan, and says “Doctrinal purity mattered less to him than extracting even the most gossamer claim to a favorable result.” She evidently sees this as a good thing.

I’m reminded of something written by Sebastian Haffner, who at the time of the Nazi takeover of Germany was a young lawyer working at the Prussian Supreme Court, the Kammergericht:

It was strange to sit in the Kammergericht again, the same courtroom, the same seats, acting as if nothing had happened. The same ushers stood at the doors and ensured, as ever, that the dignity of the court was not disturbed. Even the judges were for the most part the same people. Of course, the Jewish judge was no longer there. He had not even been dismissed. He was an old gentleman and had served under the Kaiser, so he had been moved to an administrative position at some Amtsgericht (lower court). His position on the senate was taken by an open-faced, blond young Amtsgerichtsrat, with glowing cheeks, who did not seem to belong among the grave Kammergerichtsrats…It was whispered that in private the newcomer was something high up in the SS.

The new judge didn’t seem to know much about law, but asserted his points in a “fresh, confident voice.”

We Refendars, who had just passed our exams, exchanged looks while he expounded. At last the president of the senate remarked with perfect politeness, ‘Colleague, could it be that you have overlooked paragraph 816 of the Civil Code?’ At which the new high court judge looked embarrassed…leafed through his copy of the code and then admitted lightly, ‘Oh, yes. Well, then it’s just the other way around.’ Those were the triumphs of the older law.

There were, however, other cases–cases in which the newcomer did not back down…stating that here the paragraph of the law must yield precedence; he would instruct his co-judges that the meaning was more important than the letter of the law…Then, with the gesture of a romantic stage hero, he would insist on some untenable decision. It was piteous to observe the faces of the older Kammergerichtsrats as this went on. They looked at their notes with an expression of indescribable dejection, while their fingers nervously twisted a paper-clip or a piece of blotting paper. They were used to failing candidates for the Assessor examination for spouting the kind of nonsense that was now being presented as the pinnacle of wisdom; but now this nonsense was backed by the full power of the state, by the threat of dismissal for lack of national reliability, loss of livelihood, the concentration camp…They begged for a little understanding for the Civil Code and tried to save what they could.

“The meaning was more important than the letter of the law”…Linda Greenhouse’s approving gloss on Brennan’s judicial strategy is in my view uncomfortably close to the methodology of this newly-assigned Kammergerichtrat. I am not saying, of course, that Greenhouse is a Nazi; I am, however, saying that the judicial interpretation approach that she prefers is highly dangerous.

(I discussed Haffner’s experiences at the Kammergericht, and their relevance to American today, in 2013 at Chicago Boyz, where an interesting comment thread developed)

Also highly dangerous: the attitudes and behavior of those CUNY law students…law students, mind you…who recently tried to shout down a talk being given by law professor Josh Blackman. See also Blackman’s own article about his experience at CUNY.

The mainstream of the Democratic Party and its supporting media has gone very far in the directions of legislation by the judiciary, and is moving rapidly toward the approval of politics by mob action. The prospect of Democratic control of Congress and/or the Presidency…even of Democratic dominance following a crippling of the Trump presidency…should be absolutely terrifying to all who value American institutions.

Haffner’s memoir is an important and well-written document; I reviewed it here.

(The above was also posted at Ricochet, in slightly different form; so far, it is only on the Member feed)

Conrad Black:

Mr. Trump isn’t the problem, but among the symptoms of the problem are that the director and deputy director of the FBI have been fired for cause as the Bureau virtually became the dirty-tricks arm of the Democratic National Committee, and that, as the Center for Media Studies and Pew Research have both recorded, 90% of national-press comment on Mr. Trump is hostile. Mr. Trump may have aggravated some of the current nastiness, but his chief offense has been breaking ranks with the bipartisan coalition that produced the only period of absolute and relative decline in American history.

I think Black is too harsh on George W. Bush but this column is otherwise excellent.

Conrad Black:

Here are two current examples of [the failings of the legal system and of journalism]: Canadians don’t like Donald Trump, largely because his confident and sometimes boorish manner is un-Canadian. He is in some respects a caricature of the ugly American. But he has been relentlessly exposing the U.S. federal police (FBI) as having been politicized and virtually transformed into the dirty tricks division of the Democratic National Committee. Few now doubt that the former FBI director, James Comey, was fired for cause, and the current director, backed by the impartial inspector general and Office of Professional Responsibility, asserts that Comey’s deputy director, Andrew McCabe, was also fired for cause. There are shocking revelations of the Justice Department’s illegal use of the spurious Steele dossier, paid for by the Clinton campaign, and of dishonest conduct in the Clinton email investigation, the propagation of the nonsense that Trump had colluded with Russia, and of criminal indiscretions and lies in sworn testimony by Justice officials. It is an epochal shambles without the slightest precedent in American history (certainly not the Watergate piffle), yet our media slavishly cling to a faded story of possible impeachable offences by the president.
 
The American refusal to adhere to the Paris climate accord is routinely portrayed as anti-scientific heresy and possibly capitulation to corrupt oil interests. The world’s greatest polluters, China and India, did not promise to do anything in that accord; Europe uttered platitudes of unlimited elasticity, and Barack Obama, for reasons that may not be entirely creditable, attempted to commit the United States to reducing its carbon footprint by 26 per cent, at immense cost in jobs and money, when there is no proof that carbon has anything to do with climate and the United States under nine presidents of both parties has done more for the ecology of the world than any other country. Journalistic failure on this scale, and across most of what is newsworthy, added to an education system that is more of a Luddite day-care network, produces a steadily less informed public, who, while increasingly tyrannized by lawyers, elect less capable public office-holders.
 
Lenin famously wrote: “What is to be done?” We must ask ourselves the same question but come up with a better answer than he did.

About a week ago, the WSJ ran an article titled Mark Zuckerberg is No James Madison.  The article argues that a constitution is similar to a block of computer code—a valid point, although I would argue it is also true of legislation and contracts in general…both the code, and the constitution/law/contract must be sufficiently clear and unambiguous to be executable without reference to their originators.

Then the article goes on to say that ‘the Constitution understands human nature.  Facebook, dangerously at times does not.  In designing the Constitution, Madison managed to appeal to people’s better angels while at the same time calculating man’s capacity to harm and behave badly. Facebook’s designers, on the other hand, appear to have assumed the best about people. They apparently expected users to connect with friends only in benign ways. While the site features plenty of baby and puppy photos, it has also become a place where ISIS brags about beheadings and Russians peddling misinformation seek to undermine the institutions of a free society.’

The attempt to create a parallel between Zuckerberg and Madison is a strange one, IMO, given the completely different nature of the work the two men were doing. Madison was attempting to create a new model for a self-governing country, Zuckerberg was attempting to make money for himself and his investors, and maybe to provide a little fun and value for his users along the way.

What I find especially problematic is the ‘therefore’ that the author draws:

Facebook insists it is not a media company. Maybe so. But unless it takes on the responsibilities of an editor and publisher by verifying the identities of users, filtering content that runs on its platform, and addressing the incentives to post specious or inflammatory “facts,” Facebook should expect to be policed externally.

But is Facebook really a publisher, or it is it more of a printer?  If someone..Ben Franklin in the mid-1700s or some corporation today…is running a printing shop, running printing jobs for all who will pay, should he or it be held accountable for validating the truth of the material printed and verifying the identities of the customers?

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Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.

Read the entire post.

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First, the commentators above (along with other commentators) believe their position carries a strong presumption of correctness (if not certitude), that it is my duty to displace that presumption, and that they will be the judges if I have carried that burden. Certainly, I have never agreed to such terms for this debate. Nor should I. The text of the Constitution does not expressly state that the Foreign Emoluments Clause applies to the President. The text of the Constitution does not expressly define the scope of the Constitution’s “Office of Profit or Trust under [the United States]” language. The Supreme Court has had no occasion to address the scope of the clause or the meaning of the clause’s operative language (or even the scope of similar language in other clauses.). As educated generalists who have chosen to recently inject themselves into this debate, their opinions should get a hearing. I would add: so should mine. And since, what is involved here is a debate between opinions lacking firm judicial support, our divergent ideas (and we) meet as equals. I add that the Legal Historians are supporting the plaintiffs in active litigation. Generally, in civil litigation, the burden of proof, production, and persuasion falls on the plaintiff, not on the defendant.
 
Second, it is time for my intellectual opponents to be fair. Claims that they have made that they know or now know to be incorrect should be withdrawn or revised. Claims that they have made asserting the existence of documentary support, should be supported, and promptly, with actual documents—or else the claims should be withdrawn. If they have to go through this process repeatedly, they might ask themselves if their position (and expertise) is really as strong as they have led themselves and others to believe.
 
Third, it is time for my intellectual opponents to be forthcoming in regard to an improved debate and debate atmosphere—an atmosphere rooted in mutual respect and goodwill…

Read the whole thing.

Arguments progress:

On January 25, 2018, Judge Messitte held oral arguments in Greenbelt, Maryland. Blackman attended. The very first question from the bench referenced our amicus briefs, and asked the parties to address whether the Maryland Complaint concerns actions taken in the President’s official or individual capacity. Over the course of nearly five hours of argument time, counsel for the State of Maryland and the District of Columbia maintained that Trump’s receipt of (purported) emoluments concerned his official capacity. But once confronted by skeptical questions from the bench, Plaintiffs volunteered to amend their complaint to bring claims against the President in his individual capacity.
 
Judge Messitte did not order the Plaintiffs to amend their complaint, but during the hearing, counsel for Plaintiffs represented that they would do so in due course, presumably through a Rule 15 motion. At the hearing, the Justice Department did not indicate that it would oppose such a motion—rather, the Government suggested that it would file a new motion to dismiss. In short, the Maryland action, which had been set either to be dismissed or to proceed onto discovery, now sits in limbo awaiting a Rule 15 motion to amend, a new round of briefing on a motion to dismiss (and possibly in regard to the Rule 15 motion too), and, presumably, a new oral argument on the revised motion to dismiss (and, perhaps, also in regard to the Rule 15 motion). Moreover, all Plaintiffs have to do, to move the litigation into its new “path,” the obvious direction it should always have been in, is to change the Complaint’s caption and the 1-page prayer for relief; yet, it is now more than a week later, and still no amended complaint has been filed.

Read the whole thing.

In 1792, the Senate directed President Washington’s Secretary of the Treasury, Alexander Hamilton, to draft a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States.”[1] Hamilton took more than nine months to draft and submit a response, which spanned some ninety manuscript-sized pages. The report included appointed or administrative personnel in each of the three branches of the federal government, including the Legislative Branch (e.g., the Secretary of the Senate and Clerk of the House and their staffs) and the clerks of the federal courts.[2] But Hamilton’s carefully-worded response did not include the President, Vice President, Senators, or Representatives.[3] The presumptive meaning of this document is that Hamilton accurately responded to the Senate’s precise request: elected officials do not hold office . . . under the United States, and so they were not listed.
 
Contrary explanations do not hold up…

Read the rest.

I swear, I have no idea why the denizens of celebrity-world are going nuts lately. The distinct possibility is that most of them were always nuts, and I – despite once having had a nice collection of subscriptions to publications like Premiere, Entertainment Weekly, and Rolling Stone, and a mild and mostly professional interest in the entertainment field generally – managed to not notice the frothing waves of insanity emanating from the world of popular entertainment … since … Well, I think some entertainment figures began to go nuts about a decade ago, but in the last year it’s been … OMG, are these people allowed out without a keeper?
And this was before Pervenado, and the revelation to the wider public that apparently just about every big producer, star, or media figure in a position of authority is a sex-crazed perv who cannot keep their nasty hands off lower-level staff or prospective employees. Well, it wasn’t like the existence of the casting couch was that big a secret, but still …
Read the rest of this entry »

On Twitter:

The emoluments suits represent an attack by the elite, master word-smiths, who claim a monopoly on all the positions of state, against a public who, from time-to-time, elects people who don’t live in the world of words and texts. Instead, these people make things and do deals.

Also: Tales of the Unexplained. From Plaintiff’s Opp’n to the DOJ’s motion to dismiss in the DDC emoluments case. see page 34 n.24: /1

Excerpt:

As it stands now, there is absolutely nothing that the Plaintiffs and their Amici have submitted to the court to rebut our position that the President is not bound by the Foreign Emoluments Clause. (The Legal Historians did make such a claim, but subsequently withdrew it.) Count I concerning the Foreign Emoluments Clause must be dismissed.

FTW

(Via Seth)

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These five experts did a very brave thing. They knowingly took on the cause of historical truth in spite of the fact that a social media mob had already descended on me, and in spite of the fact that they don’t (as far as I know) have any particular love for the administration. (Indeed, one of them loathes the President, but nevertheless took on this project because it was the right thing to do.) They have all written extensively on Hamilton, the Constitution, the Founding Era, and/or the Early Republic. As a personal favor to me, and if you value what has been accomplished to date, I would ask you to buy their books. If you cannot buy a book or two, please ask your local library or university library to do so. Of course, cite to their publications in your articles and elsewhere. That’s a valuable thing too. If you want honesty in our courts, in legal practice, and in the wider intellectual marketplace of ideas, then honest researchers have to be able to make a living. So if you can, help.

Read the whole thing.

Seth is gracious to people who helped him. He deserves great credit for his original and important scholarship, and for standing firm in the face of scurrilous personal attacks

The conclusion of Seth’s brief piece:

But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
 
We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.

(The full column is behind a pay wall but is worth reading if you have access.)

From the post:

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.
 
Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

See also the comment by Glenn Reynolds here.

My money’s on Seth.

https://ssrn.com/abstract=2996412

Abstract
How should we understand the Foreign Emoluments Clause? The debate has been presented to the public as a choice between idiosyncratic conservatives embracing early practice and liberals embracing intellectual reconstructions of constitutional purpose. That distinction is only the surface. The reality is that this debate is a conflict between constitutional Eloi and constitutional Morlocks.
 
The ninety-nine percenters are our constitutional Eloi, our beautiful people, our self assured true believers who regularly assume they understand 99% of the Constitution’s original public meaning. For them, figuring out what a yet-to-be adjudicated clause means is easy: it only requires their selecting the most eligible meaning which already fits in with what they already know. And what’s the danger of that strategy—when you already know (or believe you know) 99% of what there is to know?
 
On the other side, we have constitutional Morlocks. Morlocks are ugly, or, at least, their theories are ugly. Ugly and dangerous. Morlocks don’t believe they know 99% of what there is to know, and, not surprisingly, they don’t believe the Eloi or anyone else knows 99% either. Moreover, Morlocks believe that fitting what you don’t know into what you (think you) know permanently freezes our constitutional theories even when those theories are entirely wrong.

(Seth adds: The PDF posted on SSRN is my amicus brief in CREW v. Trump.)

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.