Archive for the 'Law' Category

(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.

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 …
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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

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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)

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.

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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.

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.

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.

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.

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.

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.)

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

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.

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