Wednesday, October 26, 2016
The Cubs and the Supreme Court
For those who think my blog posting about the Cubs has nothing to do with the Supreme Court issues frequently discussed here, see today's Scotus Blog post, at this link.
Monday, October 24, 2016
No, Justice Kagan did not violate a statutory recusal requirement [UPDATED with reply]
Sunday, October 23, 2016
Justice Thomas' 25 Years on the Supreme Court
This month marks the 25th year that Justice Clarence Thomas has been on the Supreme Court, which means he has now served one year longer than the man he replaced, Justice Thurgood Marshall (for whom I had the honor of clerking). The major media are beginning to recognize this milestone, as in the stories here, here, and here.
Wednesday, October 19, 2016
The Distinctive Role of Justice Alito: From a Politics of Restoration to a Politics of Dissent
The editors of the Yale Law Journal asked me to contribute to a series reflecting on Justice Alito's first ten years on the Court. In lieu of praising or criticizing the Justice, I elected to ask into what distinguishes him from his colleagues.
A "Government of National Unity"?
Monday, October 17, 2016
Gerard N. Magliocca
With respect, all of the gloom and doom surrounding the campaign is starting to sound like the melodrama that you hear on "The Real Housewives of [Wherever]." I would therefore like to make some contrarian positive (or contextual) observations.
Will the United States Survive the 2016 Election (continued)
More recent update (post-debate): It is crystal clear that the major event of the "debate" (beyond Chris Wallace's resolute failure to ask a single question about climate change or global warming) was the refusal of the sociopath (who was clearly trying to adopt a more "serious" mien this evening save when he just couldn't contain himself) to agree to abide by the election results. And the refusal is, in effect, twofold. Not only is he continuing to raise completely unmerited doubt about the basic fairness of the vote, but he also continues to cast calumnies on Secretary Clinton and suggest that she is unfit to be President and would be a "disaster" as President (i.e., exactly the charges I am more than willing to make with regard to his own fitness to be President). So I think that the possibility of a "good sport" concession is absolutely zero. I suppose it would be marginally better for him simply to say on November 8 that "Crooked Hillary" prevailed in what was, after all, a fair election but that the country will deeply regret their mistaken choice than to say that the election itself was "rigged" and thus fundamentally illegitimate. But surely nobody should feel more optimistic about our country's political stability after this evening than before. He continues to be a menace in almost every conceivable way to our "Republican Form of Government."
Sunday, October 16, 2016
On "Clamping Down on Religious Dissent"
Saturday, October 15, 2016
An Anti-Feminist Icon for Our Time
This week I was teaching sexual harassment law to my employment discrimination law class. It’s a tricky topic today for law students in their 20s, because understanding the legal revolution of sexual harassment law requires understanding the world as it existed before it. That world feels distant. Most years when I teach this material I find Mad Men a useful touchstone. The show gave a generation of students some general cultural knowledge about the sex hierarchies in a fancy white-collar New York workplace in the 1960s. Having watched Mad Men, students find it less implausible, I think, to believe that judges—well into the 1970s—were telling women who complained of what we now call sexual harassment things like, well, you weren’t fired because you were a woman, but rather because you wouldn’t engage in sexual relations with your boss, so there was no sex discrimination. Or, you went ahead and submitted to your boss’s sexual advances, and you kept your job, so no sex discrimination. Mad Men is off the air now; I’ve been curious what would take its place. Well… this year almost the very first point a student raised her hand to make brought up current events.
Friday, October 14, 2016
Trump IS a Threat to the Rule of Law
Another law professor blathering on about Bob Dylan and the Nobel Prize
Wednesday, October 12, 2016
Will the United States Survive the 2016 election (continued, with special attention to Republican "leaders"taken issue
It is clearer and clearer that the sociopath running for President on the Republican ticket is devoted not only to attacking the substantive legitimacy of Secretary Clinton (something I am obviously doing with regard to the sociopath), but also the legitimacy of any election that makes her President. (I suppose I am doing the same thing insofar as the only conceivable way that the sociopath could be elected is because of the operation of the electoral college in a multi-candidate race). I repeat what I said earlier: No sane person beeves that the sociopath will get more than roughly 40-45% of the total vote, and some polls suggest significantly less than that. The NYTimes is currently estimating the chances of a Clinton victory at 89%, so I think that a rational polity must be preparing for the high likelihood of a Clinton presidency.
Tuesday, October 11, 2016
Why Trump is Not a Threat to the Rule of Law (More than Already Exists)
Yesterday and today the New York Times published articles suggesting Donald Trump would endanger the rule of law:
Monday, October 10, 2016
Will the U.S. Survive the 2016 election (continued)?
So, last night's "debate" featured one candidate saying that her opponent was not fit to be President, which is surely true, and the other indicating that he would, if elected, use all the power at his disposal to jail Secretary Clinton, who is actually a "devil." So I continue to wonder what the concessions will look like on November 8. Can Secretary Clinton really call on all of us to be good sports and rally round a sociopath who is indeed not remotely fit to be President? That conclusion is now attested to by an ever increasing group of Republicans, some of whom took longer to reach this conclusion than others, but who have nonetheless reached it. She said at the conclusion of the last debate that she would accept the voters' verdict, but one must truly ask why, if in fact it is the case, as it surely is, that he is a sociopath who should not be let within 100 yards of actually legal authority. And, of course, no one--and I mean literally no one--believes that the sociopath could possibly gain even close to majority of the popular vote. Any win continues to be dependent on our insane system established by the Framers in 1787 partly because of mistrust in ordinary Americans and at least as much to reward slaveowning states and otherwise removing any incentive for those elites controlling state government actually to let their citizens vote.
Friday, October 07, 2016
The Chicago Cubs and the Boston Red Sox
As the Chicago Cubs begin their quest to return to the World Series for the first time since 1945, and to win it for the first time since 1908, I can't help recalling the most unique experience I've had in my "legal career" (in quotes, for reasons you will see).
Thursday, October 06, 2016
A Crisis of Representation
Wednesday, October 05, 2016
Solicitation Fraud: The Important Difference Between “Not Intending to” and “Intending Not to”
Tuesday, October 04, 2016
Money in Politics: How Far Does the Egalitarian Position Go?