Imagine that the political donations that rented the Lincoln Bedroom in the Clinton era were actually personal payments, made directly to the Clintons, and paid immediately, to bypass all the ordinary-political-corruption norms about waiting until someone is out of office to unfairly enrich them. Imagine that rather than reduce the income stream by limiting himself to one bedroom, Clinton rented out the entire, pre-tacky-gold-fixtures White House. And then imagine that to sweeten the deal, the President offered to personally service each of the guests.
The flashy online announcement called it “the most EXCLUSIVE INVITATION in the World,” a chance to have “an intimate private dinner” with President Trump at his members-only golf club in Virginia, followed by a tour of the White House.
A seat would be reserved for each of the top 220 investors in $TRUMP, a cryptocurrency that Mr. Trump launched on the eve of his inauguration....
The effort was, in effect, an offer of access to the White House in exchange for an investment in one of Mr. Trump’s crypto ventures....
As news of the dinner invitation spread on social media, the memecoin’s price surged more than 60 percent, suggesting that investors were rushing to accumulate enough coins to qualify for a dinner seat.
“This is really incredible,” said Corey Frayer, who oversaw crypto policy for the Securities and Exchange Commission during the Biden administration. “They are making the pay-to-play deal explicit.”
A business entity linked to Mr. Trump owns a large tranche of the coins, meaning the president personally profits every time the price increases, at least on paper. Mr. Trump and his business partners also collect fees when the coins are traded, a windfall that amounted to nearly $100 million in the weeks after the coin debuted in January.
Of course, the president has already disbanded the DOJ cryptocurrency prosecution unit, and the SEC has already announced its desire not to stand in the president's industry's way. His conflict of interest policy is less rigorous than Caligula's. And his law enforcement consists of the author of a children's book that, on a charitable reading, is a thinly veiled perverse fantasy about himself and the President. (But it wasn't an audition!)
Why bother recounting the obvious? Four reasons. One, of course, is sheer anger at the bottomless pit of corruption that is Donald Trump when not surrounded by adult minders, and at his befouling of American institutions. Another is that it is so easy to focus on the many ways in which he is otherwise harming and dishonoring his office and the nation--his wreckage of the economy, his service as adjutant-general to Russia's quest for Lebensraum, his violation of law and legal norms, his wholesale violations of due process, his eagerness to rent out quasi-concentration camps abroad, his desire to lay waste to public health and encourage disease and death at home and abroad, the fundamental vulgarity, tackiness, sloppiness, and illiteracy with which he infects public office and public discourse, and so much more--that one can easily neglect his now-unrestrained personal vice and corruption. That would be unfair. We must take him for all in all. And all in all, this is a man who makes Idi Amin look like Mother Teresa. Third, given the ways in which policy and personal gain are intertwined in this regime, not just at one level but throughout a "unitary" executive branch that has pledged itself to his personal service in a branchwide violation of the constitutional oath, one must note again that denying this regime a presumption of honesty, sincerity, and regularity is no departure--why grant a presumption that every day is loudly refuted?--and granting it those presumptions would be a farce and a willful lie. Judges are obliged to be impartial to the parties before them; they are not obliged to be ignorant, or impartial about the rule of law itself.
Finally, as has been wisely said, one must live up to the intrinsic integrity of the academic enterprise, particularly as it relates to the legal profession and public law. Integrity demands that one profess the truth. Respect for the rule of law, and a desire not to encourage a "disillusioned and cynical" view of the rule of law, likewise demands that one note total, blatant, vulgar corruption of the office, "without fear or favor" and without engaging in "tendentious" apologetics. Any "emphatic subscriber" to anything faintly resembling the "rule of law" recognizes this, sees this personalization of the executive branch for purposes of self-enrichment for what it is, and perforce must say so.
I note, in passing but not without shame, that this is the man who invited himself to speak to an audience at the University of Alabama, and to whom the university half-capitulated by having him speak at an address prior to the commencement weekend. (And even in this, he could not stifle the impulse to engage in a narcissistic, self-idolatrous lie about it.) One hopes that, if the university was trying to buy his goodwill or at least buy off his always-threatened hostility, they tried to win the liberty of our own graduate student as part of the bargain, however corrupt such a use of power would be.
I'll have more to say about my forthcoming book in the coming months. For now, I want to highlight one aspect of Justice Jackson's Youngstown concurrence.
A theme in the concurring opinion is that the President can, in practice, exercise unauthorized powers so long as they stop short of provoking a court case. Here are the two relevant passages:
"The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test."
"It is interesting to note Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. 'The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.'" [This is in Footnote 16]
The current Administration is not following this advice. The first Trump Administration presents an interesting contrast. Back then, the Executive was mostly bark. Tariffs were threatened but not invoked. Emergency powers were bandied about but rarely used. But now prudence and tact have left the building. Thus, there are many judicial tests underway. And many of them will not go well for presidential power.
Statement from Jewish faculty and staff at Northwestern University
As Jewish faculty and staff at Northwestern University, we write today to defend the values of academic freedom, pluralism and independence that animate Northwestern and undergird its commitment to teaching, learning, and research. We write to dispel misconceptions that are being wielded by outsiders to weaken the university and harm our students. The fact that U.S. government leaders are making unwarranted threats to our university and stripping rights from students, faculty, and researchers nationwide in the name of Jews is deeply offensive to us. We believe it should stop.
In announcing Title VI investigations of 60 universities, including Northwestern, the U.S. secretary of education spoke of “relentless antisemitic eruptions that have severely disrupted campus life for more than a year.” As Jews who walk the campus every day and teach in its classrooms, we can reliably report that this depiction bears little resemblance to life at Northwestern. Some of us have been disappointed at times by Northwestern’s response to campus events. We recognize that antisemitism is present on college campuses, as it is in the world. Yet a fair-minded assessment would reveal a faculty and a university administration committed to the education of our students through rigorous and respectful debate.
We come from different points on the political compass. We express our identities as Jews in myriad ways. But we are united by the conviction that our Jewishness must not be used as a cudgel to silence the vigorous exchange of ideas that lies at the heart of university life. To punish Northwestern financially or to limit academic freedom in the name of protecting Jewish students could itself spark antisemitism — and would be an injustice to those very students and an injury to American society at large.
Justice Frankfurter was giving a talk to the Supreme Court's clerks about his philosophy of judicial deference. He told them that the lawyers in the Executive Branch took the same oath to the Constitution that they did and took the Constitution just as seriously as they did. How, then, could the clerks second-guess the decisions of their executive counterparts?
Justice Frankfurter left and was followed by Justice Tom Clark, the former Attorney General. One clerk asked: "Justice Clark--Justice Frankfurter told us that Executive Branch lawyers take the Constitution as seriously as we do. Is that true?"
This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes. After exploring the choices of Texas, Alaska, New York, and Alabama—all of which take different approaches to their lumping or splitting—the paper seeks to make state courts more aware of what their options are; to help states think about whether their commitments to formalism or contextualism make sense to apply in both domains; and to help them evaluate their meta-choices about whether to bring their interpretive regimes closer together or further apart.
Do Not Confuse Unitary Executive Theory With Being Narcissistic, Corrupt, and Foolish
Imagine that you are the chief executive of a very large and diverse company that has not filed for bankruptcy multiple times. Assume that your goal is for the company to thrive, rather than for self-aggrandizement or self-entrenchment. How would you run it? If you established a committee to examine health problems at a major plant, would you appoint as its chair a new employee with only a BA in biology, whose most noteworthy past experience was practicing medicine without a license? If the company's CFO pointed out that a new initiative--say, reneging on agreements with your main suppliers--was having disastrous effects on earnings and depleting trust in the company, would you listen, or attack the CFO? When hiring, would you scrap your successful, stable, industry-standard set of hiring standards? If your company's largest divisions were headed by morons and desperately under-staffed with the upper management who might assist those morons, would you reorganize--or would you instead lavish praise on the morons, and assure shareholders and customers that it was no big deal?
The answers to these questions are so obvious that you could even get a correct response from a law professor. Nor will it shock anyone, no matter their politics, that the Trump regime in the past couple of days has provided at least a hat-trick of wrong answers. Trump has declared his full confidence in Defense Secretary Pete Hegseth, who is obviously not competent to run his department and has fired or lost those who might help him. His State Department--and it must be said that this regime's approach all along has been to run State from the White House, while complying with Marco Rubio's apparently bottomless appetite for humiliation--is looking into eliminating the foreign service exam and replacing it with loyalty-based criteria that ignore any longer-term interest in having stability in foreign relations across administrations. And he continues to attack the chair of the Federal Reserve, with the result, if not the intent, of supplying visual learners with a precise chart of the level of confidence placed by the world in Jerome Powell versus Donald Trump:
And it's just Monday. [Okay, now it's Tuesday. The chart above now looks even worse and the regime's behavior on all of these issues has not gotten better. The challenge of this administration is that every day brings five new terrible choices and fifty new or newly revealed lies--for instance, Rubio's lie about a State Department overhaul--and its programmatic lack of transparency makes it difficult to track. Happily, its infighting and indiscipline, and the constant war over who can be closest to the throne, means it leaks like a sieve.]
My point here is not to criticize Trump, at least not directly. (Of course he should be criticized for all these things, and for whatever he's done in the past week that we don't know about yet--not to mention the things it is harder to find out about, like whether Trump's cronies suggested to Warner Bros. Discovery that the best way to stay safe would be to emulate Jeff Bezos's Amazon and provide an in-kind bribe by paying a Trump family member. Although the two are inextricably intertwined, it is important, in the welter of regime actions that merely constitute terrible policy, not to forget the personal corruption.) Rather, it is to offer a reminder that none of this is synonymous with unitary executive theory. The two should be understood as different, although obviously closely related, matters.
It is absolutely true that the Trump regime has taken a broad view of unitary executive theory and pushed that position aggressively. (This Ross Douthat interview with Jack Goldsmith nicely lays things out.) And unitary executive theory has a lot to say about Congress's ability, had it the guts to do so, to rein in the regime's excesses. But once, under its auspices, the executive branch is viewed as operating top to bottom according to the president's design, this general architecture says virtually nothing about how the chief executive chooses to organize and manage his branch. The executive branch is a very large enterprise, with at least twice as many employees as Walmart, the largest private employer in the United States. Even (or perhaps especially) if one were to posit, wrongly, that Congress has nothing to say about how that branch is organized, the head of this unitary organization has no obligation to organize and manage it badly, to attempt to make every decision personally--or to make every decision personal, as this regime does. A decision to exalt personal loyalty over loyalty to the Constitution and over competence and experience; a decision to contract out key diplomatic jobs to a gormless real estate developer pal; a decision to let one's lieutenant in one's chief policy priority skip an actual chief of staff and rely on a close friend as de facto chief of staff: these and a hundred other choices are not necessary consequences of a belief in unitary executive theory. Rather, they represent Donald Trump's version of what it means to run any large enterprrise.
It's understandable that news articles and polemics often conflate the two. And it may well be that a unitary executive approach renders the executive branch especially susceptible to all these problems, especially in the absence of a backbone-possessing Congress and in light of the extent to which party politics, polarization, and an unserious legislative bench have laid waste to the hoped-for mechanics of Federalist No. 51. That concern should be taken seriously. Depending on one's interpretive methodology, these manifest problems may weaken the case for aggressive application of the theory. By weakening or eliminating many of the justifications for any presumption of regularity and constitutionality on the part of the executive, the executive branch's ongoing mismanagement certainly, in my view, counsels strongly in favor of more careful, forceful, stringent, and skeptical judicial scrutiny of this executive branch. But the mismanagement is not the same as the theory.
I'm not arguing for or against the theory. But perhaps those who do advocate for a unitary executive should turn their thoughts more closely, and their writing more explicitly, to the question of what sound administration should look like under a unitary executive, and what ethical and oath-driven principles should guide it. Perhaps the needed work right now is not in offering further historical detail on why the president may fire his subordinates, and more practical analysis, legal and otherwise, about why he is not obliged to, and should try to keep the smart ones and cut down on the morons instead of championing them. They might also offer more work on why the notion that the president possesses the full share of Article II power says nothing about whether any personal loyalty is owed to him by those subordinates. (It is not.)
Whatever the answers to these questions are, they certainly won't look anything like what we are living through. No executive of even marginal competence would run any large enterprise like this. The lawyers may supply the theory; but at every step of the way, albeit with a great deal of help, Trump is supplying the disastrous practice.
In all of this, there is one irony that under other circumstances would be delicious. It's not unfamiliar, since it helps define the difference between the first Trump administration and the present regime. It is this: As bad as things are, the reason they are not worse on a day-to-day basis is the presence of those long-serving, dutiful professional federal employees who have not yet been fired or forced out. Once again--this time over fierce resistance--Trump's best hope for avoiding the consequences of his own unfitness for office is the "Deep State."
FedSoc Webinar on the Weaponization of the Justice Department
Today at 11 a.m. Eastern time, the Federalist Society--lately the object of conspiracist rantings from White House habitue Laura Loomer, whose basic accusation that its patrons, by holding on to conservative views, are not personally loyal to Donald Trump differs from the core managerial and constitutional theory of the Trump regime only in its specifics but not in its "principles"--holds a panel titled "The Weaponization of DOJ?" Registration information is here.
The question mark is of course unnecessary. Small and twisted minds beget small and twisted missions, and the primary mission of the ostensible leaders of the Justice Department, and the only mission of the man who is responsible for it, is vengeance against alleged enemies. (Although this appears to be more true of the White House and the FCC than of the DOJ, I imagine that if it has not already, it will soon add to its basic mission statement the corrupt exaction of financial and other forms of tribute, one of the few areas in which the Attorney General has expertise and experience.)
I have meant for weeks to point out the necessity, for any lawyer, of watching or, if one can't stomach the visuals, reading the transcript of Trump's March 14 speech at and to the Justice Department. It seems silly--not un-lawyerly, but silly--to debate only the finer points of questions like, "Is the Trump regime lawless?" or "Is Trump weaponizing the DOJ?" when the president, in a regime devoted to the proposition that the president is the government and vice versa, actually stands up in the middle of Main Justice and makes clear that vengeance without justice is his goal. Around the time of the speech, I looked up past speeches delivered by presidents at Main Justice. Among them were speeches by Herbert Hoover, Harry S. Truman, Ronald Reagan, George W. Bush, and Barack Obama. None were terribly impressive, none were terribly objectionable--and none of them was steeped in filth, hatred, and paranoia at all, let alone in the way that Donald Trump's remarks were. No lawyer who is still a lawyer in any useful sense of the word, a lawyer can hear or read his words without visceral disgust and a renewed commitment to the defense of the rule of law against the chief executive who is its chief enemy. Not to put too fine a point on it: Trump's DOJ speech is a must-read in the same way that millions of decent people forced themselves to read Mein Kampf.
Clinical Fellowship Opportunity at Yale Law School
The Yale Law School Center for Private Law seeks applications for a Clinical Fellow in Private Law. The Clinical Fellow would also serve as the Director of the Private Law Clinic at Yale Law School for the duration of the fellowship. The fellowship will begin by August 2025 at the latest and extend over two academic years, with the possibility of renewing the post for a third. Pay and benefits will track the Law School's practices. Applications received by April 25 will be given priority.
The Fellow will work alongside the Center's director, Daniel Markovits, to teach the Private Law Clinic during the academic semester. Duties will include designing and co-teaching the weekly two-hour seminar, supervising students on a regular basis, helping select the matters the clinic will take up, and coordinating with outside attorneys on both the substance of the matters and the feedback they provide our students.
Throughout its work, the Clinic aims to deploy private law doctrines in the public interest and/or to apply useful ideas from legal theory to push for improvements to existing doctrine. By way of example, students may find themselves seeking redress for the victims of cryptocurrency scams, arguing for heightened tort duties owed to people with disabilities, or researching contract theories that can be used to combat exploitative or deceptive medical bills. In our seminar, we also tackle specific issues within private law doctrine and theory (e.g., the rights of third-party contract beneficiaries or the relationship between statutory and common-law tort liability). The details of the clinic’s docket and the topics covered in seminar remain somewhat open, however, and will depend on the Fellow's interests and expertise, as well as on student input. While an ambition to become a law professor is not required, the fellowship is designed to support someone who would like to move from practice into a university appointment, as either a clinical or an academic professor. In addition to co-teaching the Clinic alongside the Clinical Fellow, the Center's director will engage with the Fellow's research and academic work in the service of helping the Fellow to develop as a scholar and teacher. Applicants should submit a letter of interest and a CV by email to [email protected] and to [email protected] with the subject line “Clinical Fellowship Application.”
Paul Butterfield's iconic "Born in Chicago," the first cut on his first album, was written by Nick Gravenites (who was in fact born in 1938; but that didn't rhyme with "gun"). Along with Butterfield, Gravenites began hanging out in South Side blues clubs in the late 1950s, listening to Muddy Waters, Howlin' Wolf, Buddy Guy, and others. Unlike Butterfield, Gravenites did not become nationally well known, although he did have a moment with Mike Bloomfield in the Electric Flag. He also produced for Janis Joplin and other West Coast acts. He outlived Butterfield by 37 years, passing away in September 2024.
You can see Nick performing with some other Chicago blues musicians, including Harvey Mandel, Barry Goldberg, Sam Lay, and Corky Siegel at The Faculty Lounge.
Sometimes I think about whether I should write another biography. One candidate would be Herbert Brownell. On the plus side, he was one of the more important Attorneys General during his service from 1953-1957. On the minus side, he was the co-inventor of the Bluebook. (That's a joke. Sort of.)
But here's where things get complicated. Brownell gave most of his papers to the Eisenhower Library. The covering memo on that gift explains that almost all of the papers related to civil rights were accidentally thrown away before the Eisenhower Library received them. The story was that Brownell gave the civil rights papers to someone to write a book. When she died, the family didn't know that the papers were important and just tossed them. A book about Brownell without his civil rights papers doesn't sound too appealing, which may explain why nobody has written his biography.
This is a more common problem than you might think. Some of John Bingham's correspondence was also thrown away by the family of a private collector after the collector died. They didn't know that what he had was significant. The lesson here is that some library or archive should also serve as the custodian.
A million years ago, when I was in law school, I took a course, taught by David Luban, called "The Legal Profession" (which, thanks to some Yale Law School magic, satisfied a professional-responsibility requirement although it was not, at all, about "the rules" of P.R.). We read Luban's Lawyers and Justice, Ishiguro's Remains of the Day, Galanter's Tournament of Lawyers, some books about the evolution of the profession and the rise of big law firms, a book about Skadden, and -- providentially for me! -- some articles by a fascinating scholar who would become my colleague at Notre Dame, Tom Shaffer. And some other things.
I've long wanted to teach a class like this, i.e., a course that I could hold out as satisfying our P.R. requirement but that was really more about "Lawyers and Society." Has anyone taken, or taught, a class like this?
In my recent research, I was struck by the following point. When we look at the 1787 Constitution, we pay a lot of attention to debates in the states. This makes sense for many reasons. First, the Philadelphia Convention's deliberations were secret. Second, we have good records of many state convention proceedings. Third, we have The Federalist.
For the succeeding amendments, though, we pay almost no attention to state ratification debates. I wrote a book on the first ten amendments and learned that we know almost nothing about the state legislative debates on them from 1789-1791. In those days, state legislatures kept only bares-bones journals or minutes. The same goes for amendments 11 and 12.
For the 14th Amendment, we have only one detailed record on state ratification. There are transcripts of the debate in the Pennsylvania Legislature that look like The Congressional Globe. Perhaps this is also true for the 13th and 15th Amendments, but I've never looked into that.
On more modern amendments, the record is almost as sparse. Sometimes this is because the proposed amendment was rather simple. The 21st Amendment, for example, received virtually no scrutiny in those state ratifying conventions. None of them lasted longer than a day. In other cases the record is sparse because the state legislative records from, say, a hundred years ago are not detailed.
That said, I think that there is room for a scholarly project that gathers the state debates on the twentieth-century amendments. Maybe we'd learn something useful about, say, the 26th or 16th Amendments.
There is currently a circuit split on whether states can prohibit 18-21 year-olds from having a gun. (I used this as an exam question years ago.) One of the points made in support of those challenging these laws is that the 26th Amendment should be read as reducing the age of majority for all constitutional rights, not just voting. Put another way, 21 was the relevant age in 1791 and 1868, but not after 1971.
Acceptance of this argument would have broader implications. Right now the 26th Amendment is a one-trick pony. Ratification simply reduced the national voting age to 18. But if you read the text more expansively, that brings in the argument that laws discriminating on the basis of age in voting are suspect. Attacks on state laws that, say, give preferential treatment to older voters have thus far not succeeded on 26th Amendment grounds. But maybe they will in the coming years.
Defense Secretary Pete Hegseth’s demanded purge of the Naval Academy library was not unprecedented. Roy Cohn pulled the same stunt in 1953, at the behest of his boss, Joe McCarthy, at State Department libraries across Europe. There is one big difference, however, although it is not very encouraging, as I explain in my new column for The Hill.
Here is the gist:
Hegseth’s ‘Big Brother’ book purge models the worst of McCarthyism
by Steven Lubet, opinion contributor
The U.S. Naval Academy has had a library since the day it was founded in Annapolis, Md. in 1845. Its history had been one of steady expansion and wide inclusion until last month, when Defense Secretary Pete Hegseth ordered the removal of suspect books.
Hegseth was not the first Republican figure to demand a library purge. That was the disgraced Roy Cohn, Sen. Joe McCarthy’s henchman and President Trump’s early mentor.
Hegseth was, however, the first to insist that future military officers could be harmed by exposure to the wrong books. In fact, the most famousfive-star general in U.S. history once took a decidedly contrary view.
McCarthy himselfpromised to “pin down” those who were “directly responsible” for “placing the U.S. stamp of approval on a vast number of well-known Communist authors.” Predating Hegseth by 72 years, Secretary of State John Foster Dulles ordered the removal of many books “stocked in our libraries throughout the world.”
In the meantime, Hegseth has earned for himself perhaps the best-known rebuke from the McCarthy era: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”
1.PUMPERNICKEL: The king. Strong flavor, but not too strong. Dances with, rather than fights against, the cream cheese and the lox. (Or whitefish, if that’s your thing. I don’t judge.)
2.PLAIN: Not as fierce a “dancer.” More submissive to the lox. Kind of kinky. Maybe you like that.
4.EGG: Too cakelike to be a proper bagel, but possibly it reminds you of the challah your nana hand-fed you when she nursed you through polio.
5.SALT: You’re someone who really likes salt.
6.ONION: You’re someone who really likes onions.
7.GARLIC: Do you actually even like bagels?
8.EVERYTHING: “I can’t decide what kind of distracting shit I want on my bagel, so why don’t I add every kind of shit to my bagel.” Good decision-making process.
9.BLUEBERRY: O.K., you’ve been alive for a thousand years. You were cursed by God after stepping on a butterfly or something. You’ve seen multiple generations of your descendants grow up and live and die, painfully. You watched Rome burn. You made love to Mona Lisa. You killed Kennedy. There is nothing in this world your jaded senses haven’t experienced and become weary of. Finally, you’ve come to this.
10.CHOCOLATE CHIP: Do you understand what a bagel is? What purpose it serves? There’s a ninety-five-per-cent chance that you’re five years old, so maybe not. Yes, I like chocolate chips—everybody likes chocolate chips—but surely even your imperfectly matured brain can grasp that there are better conveyances for chocolate chips than a bagel.
11. CINNAMON RAISIN: You eat raisins on purpose?
12.JALAPEñO AND CHEDDAR: This is not a bagel. This is what you order to signal to the guy at the counter that you need him to call a cop.
It's not the antisemitism, stupid (again and again)
I hope the silence from anyone in the Trump Administration about the planned (and more-serious-and-destructive-than-reported) assassination attempt against a Jewish governor--on Passover, several hours after a community seder--(finally) disabuses everyone that this administration cares about antisemitism as opposed to using Jews to attack ideas and people they do not like.
That Shapiro was the target provides a layer of irony--MAGA loved Shapiro last summer when pushing faux anti-antisemitism in arguing that Kamala Harris did not choose Shapiro as her running mate because he is Jewish.
Ilya Somin highlights an amicus brief signed by 86 colleges and associations in the AAUP student-visa lawsuit. Most of the signatories are liberal arts colleges and private non-research-centric universities, with a few exceptions (Georgetown, Fordham, Michigan State, the University of Maryland System). Many of the presidents pushing back in public lead liberal arts college, while Trump aims (for the moment) at R1 universities. Don Moynihan argues the divide makes collective action more difficult because different schools' needs and interests do not necessarily align or allow for similar remedies (e.g., University of Michigan depends on research funding in a way that Bard does not).
Something similar may play out among law firms. Large firms have surrendered--preemptively or otherwise--while smaller and boutique firms (most recently Sussman) have pushed back (along with large firms such as Jenner and Hale, obviously). The larger amount of money and the more varied practices of big firms makes it more difficult to make common cause with smaller shops. The firms most able to fight (financially) have more to lose in its business model.
This is the title of Birch Bayh's 1968 book on the proposal and ratification of the Twenty-Fifth Amendment. It's probably the best account of how an amendment moves through the process from beginning to end. I wanted to highlight a couple of points:
The first is that was the era where the ABA's influence was at its height. The organization was heavily involved in rallying support for the 25th Amendment. Lewis Powell, later Justice Powell, played a role in these efforts. Perhaps the ABA is just another victim of polarization, though there may be other factors in its decline.
In constitutional design, there is often a debate between formalists and functionalists. Formalists want amendments and functionalists want statutes. Formalists also often want more detailed amendments while functionalists want shorter ones. You see this divide in the 25th Amendment debate. Some people wanted Congress just to enact a law on presidential disability. Others wanted an amendment to simply clarify that Congress had that power. The 14th Amendment saw a similar dynamic, with Bingham wanting an amendment and Stevens wanting statutes. Might be a theme for my book.
There is an extended discussion on how conference committees work. This led me to wonder: Do they even have those anymore? Perhaps Congress still does this for ordinary legislation, but for bigger items this is all done at the leadership level.
Supreme Court opinions rarely move markets. I don't know enough about the Court's great antitrust opinions to know if they did, though they probably did for individual stocks. (John D. Rockefeller's response to the Court's opinion upholding the breakup of Standard Oil was "Buy Standard Oil," which was good advice.)
But can you can imagine a future Supreme Court decision on the legality of tariffs moving markets. And this creates some special concerns that people should start thinking about: For example:
Sometimes Supreme Court deliberations or opinions leak out. The opportunities for insider trading are obvious. Let's hope that the Court's security is better and that the insider trading laws clearly apply to the use of confidential court information. (I have no idea on the latter.)
The Court usually issues merits opinions at 10AM on a weekday. Right during stock market trading. Maybe this is a bad idea for a market-moving opinion.
Maybe #2 means that the Court should say in advance when the market-moving opinion is coming by issuing a special 4PM release time. In 1935, the Court did telegraph the day when it's opinions in the Gold Clause Cases would come out to squelch market rumors that it would be some other day, though they did not change the release time.
Deciding such a case on the emergency docket is not good because oral argument can at least signal where the Court is going and cushion the blow.
"This Magic Moment" is probably the second best known composition by Doc Pomus and his writing partner Mort Shuman. The first, of course, is "Save the Last Dance for Me," which was a Saturday post here in 2021. Doc Pomus -- birth name Jerome Felder -- was the Brooklyn born son of Jewish immigrants, who changed his name to sound (he thought) more like a blues singer. A polio victim at age seven (in 1932, decades before the Salk vaccine, when polio was great), he walked with crutches most of his life, and eventually used a wheelchair. He was the brother of the prominent New York City lawyer Raoul Felder. "Magic Moment," like "Save the Last Dance," was written for Ben E. King and the Drifters, who released it in 1960, reaching 16 on the Hot 100; the original audio is at the bottom of the post. It was covered by Jay and the Americans in 1969, charting at number 6; interestingly, it was originally the B-side for the totally forgettable "Since I Don't Have You." Jay Black also changed his name, from David Blatt, evidently to sound more, well, American. The clips are at The Faculty Lounge.
In my never-ending quest for future problems, I give you the world's most famous planewreck. Suppose that Amelia Earhart's plane ("Flying Laboratory") is found someday in international waters. Who would own it? This was an exam question for my Admiralty class last year.
Perhaps this is a case for the law of finds. Finders keepers. An objection to that approach, though, is that we use maritime salvage law for shipwrecks. Salvage law is more equitable and divides property or liability interests among various claimants. In this case there would be the salvor, Purdue University (which financed her final flight) and (perhaps) the United States itself.
But can salvage law be applied to planes? We don't generally apply maritime law to planes, even when they crash into navigable waters. Should we make an exception for Earhart's plane because of its cultural significance?
I stand ready to provide my thoughts when archaeologists find her plane. It belongs in a museum, you might say.
The Truth is a National, ie. Personal, Security Threat; or, King Henry With Fewer Wives
The Trump regime paused briefly from its efforts to immiserate the American people wholesale and decided to go retail for a bit, returning to one of Donald Trump's chief regime policies: revenge. Several executive actions today are of particular note. One is an executive order and the others are memoranda to the heads of departments and agencies--although all of them are, in effect, part of the Trumpian taste for executive orders of attainder.
One involves an executive order against the law firm Susman Godfrey. It's what we have come to know as standard-issue regime pettiness, although surely not petty to the law firm or to lawyers and decent citizens. Susman Godfrey's chief sin, first on the list in the executive order? The regime's lawyers--one imagines a couple still work there--put it in fancier language, but not so fancy as to obscure it. Susman Godfrey represented Dominion Voting Systems, which sued Fox News for defamation and received a settlement moments before trial, perhaps because Fox News in fact defamed Dominion Voting Systems. It is not clear in itself how much Trump's anger has to do with the crime of suing-the-media-while-not-being-Donald-Trump and how much it has to do with Dominion having had the temerity to interfere with the lie that the 2020 election was stolen.
Two other orders are similarly grudge-driven. One is aimed at Miles Taylor, who Trump accuses of "disclosing sensitive information"--although not this sensitive information, which is fine. (Remember: "For my friends, everything. For my enemies, the law.") While I am normally and rightly queasy about a White House going after leakers, I certainly do not think doing so is per se illegitimate. Calling Taylor a traitor and ordering our cosplaying fool of a Homeland Security secretary to investigate him, however, is another matter. (Kristi Noem's recent social-media pictures put me in mind of other, similar photographs.) Of course Trump's interest is not in national security, but in getting even.
Finally, and right in between the two, is his memo targeting Chris Krebs, who had the misfortune to take his oath and his office seriously while serving as director of the Cybersecurity and Infrastructure Security Agency during Trump's first term. As with Susman and Dominion Voting Systems, Krebs's greatest crime was insisting on the truth--or, as the presidential memorandum puts it, he "falsely and baselessly denied that the 2020 election was rigged and stolen." Perhaps that answers the question: Susman Godfrey's crime was not suing Fox, but doing so on the basis that claims of a rigged election were false.
The election, of course, was not stolen. I find something especially offensive to anything like common decency, a stench in the nostrils, to see an official memorandum targeting an individual who did his duty and basing that vendetta on a blatantly false proposition, one that in the mind of this president and his lieutenants occupies the status of the propositions in the Oath of Succession in 1534. As the quote goes, "If [the Earth] is flat, will the King's command make it round? And if it is round, will the King's command flatten it?" No. But it can, in an administration run by a "King" whose councillors make us weep with longing for the intelligence and relative moral restraint of a mere Cromwell, lead to a presidential order charging Noem and the Attorney General to investigate Krebs and provide "recommendations for appropriate remedial or preventative actions." Or, as the quote goes, "My dear Norfolk....This isn't Spain."
I find "lawfare" a fatuous term, no matter which political side is using it. Still, insofar as it hangs like a moral millstone around the neck of its boss, sinking him ever deeper into the muck, I think we can all agree: "Lawfare continues to hobble the Trump administration."
Wesleyan President Michael Roth offers the latest "Trump is using Jews and it will end badly" take. He highlights the White House "Shalom ____" tweets ("Shalom Khalil," "Shalom Columbia," whatever) and the large dose of sarcasm in which Jews should not find comfort. And he calls out the ADL for losing sight of its mission in defending Musk's Nazi salute and in only belatedly (and under pressure) supporting due process for Khalil.
Roth makes one interesting move--highlighting why Jews are safe at Wesleyan (my kid feels perfectly at home) and why the "situation was different at Columbia. Protests became violent (both in the actions of the participants and those of the police who were called in to quell them). Tensions between supporters of Palestinians and Israelis were at times extreme." He highlights a March Atlantic article by Franklin Foer that "document[s] some serious antisemitic activity."
I read Foer's article (missed it in March). It discusses numerous incidents of antisemitic violence and harassment. But it mixes them with examples of obnoxious-but-protected speech, obnoxious-but-core faculty speech, and violations of neutral regulations (e.g., occupying buildings) that would be unprotected regardless of the occupiers' motivation (although the university's selective non-enforcement raises distinct discrimination concerns). For example, academic freedom and the First Amendment protect professors who engage in polemic, inside- and outside-of the classroom, at least to a point; Foer describes a prof's actions without identifying any line or where it might be. Foer argues (and Roth accepts) that this reflects an overall antisemitic environment. But the conversation must separate the protected from the unprotected--what makes students uncomfortable from what violates their rights.
The following points are blindingly obvious, but I felt compelled to make them just the same.
The first and far less important one is that it seems perfectly cogent and morally acceptable to ask the question, “Can a federal court force the president to negotiate with a foreign leader to obtain return of an alien?” Or, to put it more fully, “Can a federal court order the president to ask a foreign leader to return an alien it has concededly removed in error?” It’s a perfectly legitimate legal question raising issues of judicial power and separation of powers. I suppose the only reason the point needs to be made is that the moral overhang is so powerful that one might be accused of a kind of fatal moral desiccation for even asking such a question, in the same way that one might be astonished by someone asking whether the American soldiers who liberated Buchenwald maintained proper unit discipline. Of course such an inquiry would miss the main point, and of course such an inquiry might well be made for morally desiccated, bad-faith, or even monstrous reasons. But the question is not illegitimate as such. It could be asked for purely academic reasons—to write a history, for example. It could even have some forward-looking value. Buchenwald was not the first or the last prison camp, and—provided, at least, that the United States prefers to liberate such places rather than to build them or lease space in them—it might be nice for planning purposes to know such things.
The second is, again, obvious: It seems bizarre to ask the question above without asking, “Why on earth would it have to?” If the United States reaches an agreement with a dictatorial populist thug and part-time internet troll—hard to imagine us being well-positioned to do this, I know, but bear with me—and offers to pay several million dollars, plus (one imagines) other benefits such as improved relations, to rent space in that leader’s human-rights-violating maximum-security prison, and then by its own admission sends someone there in error, why on earth would a court have to ask it to make some effort to seek the return of that individual? (To say nothing of the unknown number of others it has also sent there in error but hasn’t gotten around to admitting to.) How, unless perchance there were a particularly important golf tournament, would it even have time to before finding out that the question had been mooted by the government’s own mitigating efforts?
One can understand that whether a court can order a president to engage in what our regime pretends, in high-flown language, is “sensitive foreign negotiations” is a genuine question. But when the United States realizes it has sent someone to a foreign prison camp-cum-American-storage-space-rental in violation of a court order, and knows that the sensitive negotiations consist of some lackey picking up a phone and exercising the same leverage he used the first time around, or at least trying and failing, the obvious prior question is: How does it not even try?
I suppose one could view this as a matter of “breaking norms.” But I prefer to think of the norm of attempting to correct your own mistakes without having to be asked as more of a fundamental question of morality and of honor. And not one that exists entirely outside of or irrelevantly to the Constitution. One reason courts are not faced with fixing every mistake made by executive actors is that executive actors often, as honorable officials will, attempt to clean up their own messes. The core values that lead them to see themselves as honor-bound in such circumstances to attempt to correct the mistake are the same ones that permit them to take oaths of office, to give some content to them, and to live up to them. To be willfully indifferent to the first is to be unworthy of and presumptively incapable of carrying out the second.
Of course it is often harder to undo a mistake than to make it in the first place, easier to destroy than to build--or to remedy. I take it that is one reason for things like due process, the separation of powers, and a system that requires law to be made by large legislative bodies rather than by one short-fingered individual. You can’t guarantee the return of a prisoner from a foreign prison camp, any more than you can resurrect ten trillion annihilated dollars. (I believe the current word for that kind of thing is “oopsie.”) That it doesn’t occur to an executive branch to try—or, worse, that it does occur to it—is, it seems to me, the more pressing question. Very pressing.
As I said, these are obvious points, so forgive me. Whatever the result in this case, all these things are obvious to the courts too. I’m more concerned at present with the enormity of the conduct. But I’ll note, also obviously, that this is one more occasion on which the Trump regime has said to the judicial branch, as loudly as possible, that its actions and justifications should be viewed with skepticism and with no presumption of good faith, legitimate motives, or the capacity for lawful, honest, or decent conduct. No one can reasonably expect judges, like other human beings, not to recognize and, implicitly or explicitly, respond to the extent to which the current executive branch—and, perhaps, its apologists—have become legally, mentally, and/or morally deranged.
A puzzle from the Fifth Circuit declining to abstain under Pullman from a constitutional challenge to a state judicial-ethics canon that might prohibit him from declining to perform same-sex weddings.
The court finds Pullman prerequisites--constitutional challenge to ambiguous challenged state law--satisfied. It declines to abstain because of the status of a pending state-court litigation in which a different judge challenged the same canon on state-law grounds. The district court abstained believed this litigation would resolve the meaning and scope of the canon; the court of appeals disagreed on that point, believing other issues might prevent the state courts from reaching the scope issue. Because the other state litigation would not definitively address the state issue in this case, the court would not rely on it.
The point of Pullman is to for the federal plaintiff to litigate his state issues in state court; the point is not to free-ride on other possibly related litigation. The status or scope of another, unrelated state-court case should not affect the court's abstention decision. If this federal plaintiff could get a state-court ruling on an ambiguous state-law issue that might obviate his federal constitutional challenge, the court should abstain.
On a stranger note: The court gets to the same place by certifying the state-law issue in the current case to the Texas Supreme Court. In other words, the court really chose certification over abstention as the mechanism in which the current federal plaintiff will resolve the ambiguous state-law issue. Which perhaps was the right move--courts have not found a good metric for when to abstain and when to certify, as the standards are (or should be) basically the same. Just for the wrong reasons.
My best college professor drilled into my head the idea that you have to look at what didn't happen as well as what happened to understand something fully. This is what I'm doing in researching the Bayh Subcommittee. Let me give you an example:
In 1966, Delaware filed an action in the Supreme Court's original jurisdiction arguing that the Electoral College was unconstitutional. Electoral College reform was in the air. President Johnson asked Congress to consider an Article V amendment. The Bayh Subcommittee held hearings, and Senator Bayh expressed support for the lawsuit. Delaware was candid in explaining its goal:
Although the Complaint seeks declaratory and injunctive relief, it is recognized that ultimate correction of the conditions complained of may best be achieved by Constitutional Amendment. But unless this Court sees fit to “open the door,” and point the way through equitable interim relief, as it did in the field of legislative apportionment, no Constitutional Amendment aimed at fair and just reform of the Electoral College is likely to come from entrenched political interests which are satisfied with a voting device that suits their purposes. No other remedy is available to aid citizens whose votes in presidential elections are diluted, debased and misappropriated through the state unit system and its risks of miscarriage of the popular choice will continue indefinitely, unless this Court grant relief.
Now this was directed at the Warren Court, which might explain why Delaware thought they could get somewhere. The Court rejected the complaint without comment. I'll have to did into the papers of the Justices to see what, if anything, was said on this internally.
My twenty-year run in and around legal academia, preceded by my twenty-six-year run as a real lawyer, will ratchet down in a couple months. I took the three-year “phased retirement” Suffolk offers, and it runs out on June 30. Last week, the University’s trustees approved my emeritus status, effective July 1. As my real claim to fame was the iconic 2008 essay, Memo to Lawyers: How Not to “Retire and Teach,”followed by its 2014 post-tenure sequel, Retire and Teach: Six Years On, completing the trilogy with a reflection on “retirement,” a word and a concept I hate, seems appropriate. PrawfsBlawg has intertwined with my academic career the entire twenty years, and Howard was gracious enough to permit me a self-indulgent post as this segment of my professional life draws to a close. It’s really too long to be a blog post, so I will spare most readers and begin it after the break.
I’ve written that, notwithstanding Chief Justice Roberts’s dismissive quip about legal scholarship and the influence of Kant on 18th century Bulgarian evidence law, the vast bulk of legal scholarship in fact addresses real-world problems. We are not, by and large, doing arts or sciences for the mere sake of liberal education and an intellectually richer world. For example, as of the morning of April 6, 2025, the last six pieces highlighted on Larry Solum’s Legal Theory (emphasis mine) Blog have to do with AI-enhanced evidence, AI-conducted arbitration, an approach to nondelegation doctrine that would improve governmental effectiveness, presidential immunity, the relationship between Congressional and Supreme Court authority, and the erosion of limitations on the ability of police to stop, search, or arrest.
Much of my work has had to do with the intersection of law and business, e.g., contracts and legal forms of organization. I have no qualms about retiring from it, at least to the extent it involves finding solutions to problems. For example, many of my friends and colleagues who write about corporate governance have weighed in on the recent amendments to Delaware corporate law that facilitate the ability of controlling shareholders (rather than the board of directors) to dictate corporate policy. That is a significant issue of law and policy that leaves me completely unmoved. I wish them well and will keep them in my RSS feed.
As I contemplate my last three months as a non-emeritus faculty member, my great joy is rather that, after a quarter century of being a real lawyer in the real world, I found a job that, for almost twenty years, let me try to make sense of things, and not necessarily in a practical way, under the cover of teaching practical skills. That is an occupation from which I decline to retire.
Perhaps I can best explain my present commitment not to retire with stories of the beginning and the end of this segment of the journey, both of which have to do with real numbers.
As I recently told my new friends, Barry and Gretchen Mazur (as will become clear in a few paragraphs), at age eighteen, in my first year at the University of Michigan, I thought I was going to be a mathematician. I enrolled in Math 195, the most theoretical calculus course, and I lasted about eight weeks. The first subject was proving the existence of real numbers (something I came to understand about forty years too late); I didn’t have the lowest grade on the second midterm, but mine was the exam the professor chose to mock in front of the entire class. I got special permission the next day from the dean of the Honors College to drop the course. As I rooted around for a major over the next year, I considered philosophy, but the Michigan’s program was very much analytic. Having just shot an air ball with theoretical math, I had no desire to work through symbolic logic. And I ended up as a history major.
I discovered the non-analytic approaches to philosophy – epistemology, ontology, morality – as an adult still trying to make sense of things. If ever a single book changed the course of someone’s life, for me it was Susan Neiman’s Evil in Modern Thought, a revisionist history of modern Western philosophy. I know from Susan it was something she had been writing for ten years, but the evil serendipity was that Princeton University Press published it shortly after 9/11. The Wall Street Journal published a review on September 3, 2002 with the following paragraph:
According to Ms. Neiman, human beings desperately long to make moral sense of themselves and the world: “The drive to seek reason in the world ... is as deep a drive as any we have.” It is so fundamental to who we are, in fact, that most of us go about our lives assuming that “the true and the good, and just possibly the beautiful, coincide.”
Nothing had ever resonated so deeply – that was what I thought about and cared about. It introduced me to a way of making sense of things – and legal academia turned out to be a place I could work on making sense. Yes, I wrote about contracts and promises and corporate governance, things that “cash out” in the practical world, but it was always with a mind to the telos, the ends and purposes that suggest meaningfulness, with the result that I was likely, as Dan Markel once told me, “orthogonal to most issues.”
And I wrote a lot. Articles, essays, blog posts. Something always seemed to trigger some idea that I could turn into a beginning, a middle, and an end. Nevertheless, over the last couple years, I haven’t felt the trigger very much. That was a large part of the motivation to take the phase-out. I have been a tenure hard-liner: regardless how old you are, if you are working because you have tenure, you are obliged to do all the things tenure requires, including writing and publishing.
Fast forward to last month and some renewed basis for thinking of this not as retirement from the journey itself but merely the close of one more segment. One of the joys of living in Cambridge has been the eclectic friends you acquire, whether in the dog park, down the street, at the gym, or whatever. Our house backs up to that of our friends, Eneida and David Haig. They are both biologists, Eneida a researcher for various biotech companies, and David an evolutionary biologist at Harvard. Many a Saturday or Sunday afternoon, I have opened the gate between our yards, taken a seat at their kitchen table, and, as we drain a bottle or two of wine, David and I work on making sense of things as philosophers who happen to be, respectively, biologists and lawyers.
Several weeks ago, David gave me a copy of the book, Imagining Numbers (particularly the square root of minus fifteen), by his friend, Barry Mazur, a Harvard mathematician. Square roots are wonderful things. When of positive numbers not themselves squares of positive integers, they are irrational real numbers – the very things I was supposed to have derived in the fall of 1972. When they are square roots of negative numbers, they aren’t real but imaginary (and without which, for example, there would be no Schrödinger equation as the basis of quantum mechanics). Barry’s book is about the mysteries of mind by which mathematicians over the last five hundred years or so came to conceive of those abstractions.
I was taken by the charm and erudition of the book but, more importantly, its relevance to my lifelong attempt to make sense of things. I looked Barry up on Harvard’s website and, with my usual unbridled chutzpah, sent him an email, offering him a cup of coffee in consideration of therapy for a long-lapsed mathematician.
If, like me, you had never heard of Barry Mazur, it turns out that sending him an email and inviting him for a cup of coffee is on a par with doing the same thing to, let’s say, Daniel Kahneman, Amartya Sen, Cass Sunstein, John Rawls, or Francis Collins, if you were dealing with a subject a little less ethereal than pure mathematics. Nevertheless, I found myself invited over a few days later for breakfast with Barry and Gretchen (Gretchen known professionally as Grace Dane Mazur), and perhaps the most delightful two hours I have spent in a long time.
I had the good sense to google Barry before I went to his house, and watched a number of the YouTube segments about his life and work. I recommend Barry Mazur and the Infinite Cheese of Knowledge. The infinite cheese is an image one of his yeshiva rabbis imparted to Barry:
Once, [Rabbi Moseson] was so exasperated that he just plopped into his chair and said, “Look, what we are faced with is an infinite cheese of knowledge. And we’re all, all of us, we’re all little mice; you are, I am, and we together are nibbling on it. We will never devour it. But it is the effort of nibbling on the cheese that makes what we are doing meaningful and worthwhile.” (Bhāvanā, Jan. 2025).
Almost the first thing I said to Barry after he opened the front door was, “The infinite cheese of knowledge resonates with me. Except that I never seem to nibble very deeply because I see something on another part of the cheese that I want to nibble on as well.” Which he immediately pooh-poohed, no doubt recognizing it for the false modesty it was.
What prompted me to contact Barry was the idea of “interstitiality.” A couple months ago, I saw a post on Larry Solum’s blog about a chapter in a new book edited by John Goldberg and Henry Smith entitled Interstitial Private Law. It got my attention, but it turns out that the main thrust of the book, interesting in its own right, is about interstitiality between the broad categories of private law, contract, tort, property, etc., and not the interstitiality that I have been thinking about for twenty years. I have an image of interstitiality in the application of rules (including legal rules), one that I can visualize in the same way I visualize the square root of 2, or any other real but irrational number that is infinitely interstitial. Desperate times call for desperate measures; perhaps a mathematician could tell me if this was a disease and, if so, how it might be cured.
Without using the word “interstitial,” I have been pondered judgments that lay in the excluded middle of binary legal rules (like you have a contract right or you don’t) for over twenty years.
In 2005, I published an essay in Law, Culture and the Humanities probing what seemed to me not a problem, but a mystery, in the law’s treatment of a particular issue. Contract law scholars focus on the vindication of rights created by contract; what rules govern the circumstance where one has a legal entitlement under contract, but the vindication of that right is a moral outrage? For example, a company fires an executive for outrageous conduct that happens not to fall within the definition of “for cause” termination, and thus has to pay a hefty severance. There is no legal avenue to vindication of the moral sense that the executive ought to decline the money. At the time, I simply wanted to say something about the separation of positive law and morality in contract law.
My conclusion then (which I am reading for the first time in many years), effectively about interstitiality of rule-application, still speaks to me. I called on the philosopher Gabriel Marcel’s distinction between problems (which can be solved) and mysteries that can only be pondered as an exercise of mind, suggesting that the answer truly involved the latter.
Few decisions are easy; there are heuristics in the art of management and leadership, but rarely does the manual give the bright-line answer. Whether or not they are conscious of it, business leaders and managers sense the fundamental indeterminacy that is at the core of a hard case, or in the center of a paradox. ‘‘If the answers were easy, they wouldn’t need us,’’ they say. But the organization, like ourselves, simply cannot operate, or indeed survive, in the physical world of cause-and-effect, without some reduction of the totality of experience to rules. Experience tells us we need rules and laws, but reason is capable of divining abstract forms and spirit, whether or not they are tied to the real world.
***
Our default state is to operate on our needs, desires and inclinations and to comply. Yet we are always free to choose, to resolve problems or recognize mystery, to engage in discourse between subject and subject, and to comply with a system of compulsion, or to resist it. We face that choice every minute of every day, and the commitments of a lifetime ago, or the contracts of yesterday, are as binding upon us as we, in this current moment, choose them to be. That is the mystery of the choice not to enforce a promise the law cannot address. And it is the grease that makes the business world (if not the world as a whole) work, whether or not it is recognized in the law. Let us not forget what is human-made and what is not. Mine is no doubt a theology so abstract and universal as to say the only thing we are sure to be God-given is the mystery of that very paradox that provides the richness in hard cases that mere rules ignore.
Suffice it to say at this point that Barry has not told me to lay off the possibility that some insight might be gleaned from a similarity between the infinite interstitiality of irrational numbers, on one hand, and of rule application, on the other. A trigger! Maybe I can turn it into an essay.
Regardless, I’m satisfied that one way not to retire is to keep nibbling at the cheese for the mere sake of nibbling, even if I get to shed the pretext of doing it to solve problems, and even if it is no more practical than an exegesis on Bulgarian evidence law.
Jeffrey Lipshaw (Suffolk) guested at Prawfs many times over the years and has been a regular reader and commenter. Jeff will retire and talk emeritus status at the end of this semester. And he pointed out that his 20-year academic career has correlated with this blog. So we invited him for a final retrospective guest post, which will be up Monday afternoon. Meanwhile, I (on behalf of Prawfs, if I may) wish him well in his next act and thank him for being an important part of this community.
Richard Nixon's Testimony to the Bayh Subcommittee
In the markup of the Twenty-Fifth Amendment, a highlight was Richard Nixon's congressional testimony in 1964. Nixon's thoughtfulness was widely praised, especially since he was a Vice President who dealt with a presidential health crisis (Eisenhower's heart attacks).
One of Nixon's criticisms of the proposal was that congressional consent was required to fill a vice-presidential vacancy. He thought that the prior Electoral College should be reconvened to confirm a selection by the President. This was, in part, a formalist argument that the Electoral College picks vice presidents. But Nixon also said that this would avoid the problem of partisan deadlock over the vice presidency.
The precedents of the 1970s did not bear out this concern. Democrats controlled Congress but confirmed Republicans Gerald Ford and Nelson Rockefeller to the Vice Presidency in 1973 and 1974. Today, though, Nixon's point looms large. Imagine a scenario in 2027 when Democrats control Congress (or even one House) and the vice presidency falls vacant. Is there any Republican that would be acceptable to the President and to that Congress? I doubt it.
David Schraub writes about the ADL's announcement that it will not sponsor future editions of the Law vs. Antisemitism Conference unless the organizers grant it the right to exclude speakers, including those from Jewish Voice for Peace. David addresses the problem from his experience as site host for the 2023 Conference at Lewis & Clark. I agree with everything David says about the craven anti-intellectualism of the ADL and Academic Engagement Network.
I served as site chair for the 2024 Conference at FIU (link includes videos of every panel), held about five months after October 7. We discussed questions of balance in organizing panels, but encountered no demands about panel composition and no demands about who should or should not be allowed to appear or present at the conference. I cannot imagine the conference chairs will agree to this demand. This means the purported leading advocacy group on antisemitism will no longer sponsor the largest academic conference devoted to the issue because it cannot dictate the ideological content of the conference.
Amicus Brief on the Illegality of the "Liberation Day" Tariffs
The Liberty Justice Center is preparing to file litigation challenging the new global tariffs. The Justice Center are looking for law professors who might be interested in joining an amicus brief on its behalf. If you are interested, please contact me and I will connect you with the relevant attorney.
Sam Moore and Dave Prater were originally from Miami, where they had performed individually with gospel groups such as the Sensational Hummingbirds and the Melionaires. They signed together with Roulette Records in 1961, then made the switch to Atlantic/Stax, and moved to Memphis, in 1964. They had a long series of hits, many produced or written by Isaac Hayes, Steve Cropper, or Booker T. Jones.
Moore and Prater, rather famously, did not get along well (an understatement), which did not affect their even more famously energetic live performances, for which they were known as "Double Dynamite" and the "Sultans of Sweat." Their first break-up was in 1970. They intermittently reunited until 1981, when they parted for good.
Beginning in 1982, Prater performed with Sam Daniels as "The New Sam & Dave Review. As far as I know, there wasn't any litigation over the name, which is surprising. Prater passed away in 1988.
Moore has attempted a solo career with some success, often guest performing with other acts, though has been said to resent being constantly asked to perform Sam & Dave numbers. What did he expect?
The clips are at The Faculty Lounge, including cameos by some former presidents.
Behind Every Terrible Artist is a Foolish Patron, Tariffs Edition
It has been difficult this week, for those who are interested in at least attempting to get the contrary arguments on seemingly obvious points, to find any expert defenses of the Trump tariffs on economic policy grounds. This is unsurprising, since the economic policy is terrible and the experts agree that it's terrible. If you absolutely insist on finding "economists" who are willing to serve as apologists for Trump's single-person taxation frenzy, your options are highly limited. But you could consult Oren Cass and his team at American Compass.
Out of curiosity about how it might come by its expertise in the area, I visited its website. The group, which describes its mission as "developing the conservative economic agenda," has a small team of "economists"--actually, "chief economist" Cass is the only one with "economist" in his job title, so I guess it's "chief" in the same way that I’m the chief law professor in my family--plus "policy directors," "policy advisors," and the usual add-ons. It is so fiercely devoted to its "economic agenda" mission that, on a team of twelve, it can boast a remarkable total of zero economics doctorates, zero master's degrees in economics, an MBA, and around two-ish undergraduate degrees in economics. That is...a surprising number, for a group which describes its own mission as developing an "economic agenda." I can understand an argument that economics isn't everything, which is basically the "a peat-burning barter economy is next to godliness" position that Trump's apologists are forced or even eager to take (albeit from comfortable perches and with a stock of claret laid in). But you'd think a group devoted to developing an economic agenda would occasionally hire a trained economist just by accident. (Even Cass, incidentally, had criticisms of the manner in which Trump has indulged his tariff obsession.)
For well north of $2 million in grant money to support the team at American Compass over the last five years, including a $950,000 grant in May 2024, we may thank...the Hewlett Foundation, led until recently by former law school dean Larry Kramer--which, as Troy McClure would say, you may know from grants such as its ongoing seigneurial largesse to the Law & Political Economy Project. Yay team.
Program on Church, State & Society essay-writing competition
The Program on Church, State & Society is hosting, again, an essay-writing contest (for law students and recent graduates) on religious-liberty topics. There's more information here. Consider submitting a paper!
The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersections of church, state & society and, in particular, how the law structures and governs that intersection.
Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/
Papers must be between 9,000-13,000 words, including footnotes and/or endnotes.
Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (i.e., those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted.
Submissions: Papers must be submitted by May 15, 2025. Winners will be announced on or before July 1, 2025. Papers must be e-mailed in .pdf form. Each submission must include a cover letter and resume in a separate .pdf document. Papers should not include author names in order to ensure that the papers can be delivered to judges and scored anonymously. Emailed submissions should be sent with “2025 Church, State & Society Writing Competition” in the subject line, and addressed to: Alicia Cummins.
Judges: Papers will be judged by Prof. Richard W. Garnett, director of the Program on Church, State & Society; by Prof. Jorge Barrera Rojas, the Notre Dame Law School Rodes Fellow; by other faculty members at Notre Dame Law School; and possibly by law & religion scholars from other U.S. law schools.
Prizes: First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention(s), $500 cash award.
The fanciful Irish folk song "The Irish Rover," which dates back to at least the 1930s, is about the improbably long voyage by an improbably large ship (with an improbably vast cargo), headed from Cork to New York. It comes to a tragic end when the crew is wiped out by a then-endemic, and definitely not fanciful, contagious disease.
Here is the relevant verse, which you can hear here by The Dubliners or here by the Clancy Brothers.
We had sailed seven years when the measles broke out/ And the ship lost its way in the fog/ And that whale of a crew was reduced down to two/ Just meself and the captain's old dog.
In the pre-vaccine days, the deadliness of measles was the stuff of folk songs.
My Saturday Music Post on "The Irish Rover" is here, written in 2018 when RFK's disastrous ascendance was unimaginable.
Wrinkles in the Direct Presidential Election Proposal
Here again is the text of the proposal that passed the House by greater than a two-thirds margin in 1969:
SECTION 1. The people of the several States and the District constituting the seat of government of the United States shall elect the President and Vice President. Each elector shall cast a single vote for two persons who shall have consented to the joining of their names as candidates for the offices of President and Vice President. No candidate shall consent to the joinder of his name with that of more than one other person.
SEC. 2. The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications.
SEC. 3. The pair of persons having the greatest number of votes for President and Vice President shall be elected, if such number be at least 40 per centum of the whole number of votes cast for such offices. If no pair of persons has such number, a runoff election shall be held in which the choice of President and Vice President shall be made from the two pairs of persons who received the highest numbers of votes.
SEC. 4. The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations. The days for such elections shall be determined by Congress and shall be uniform throughout the United States. The Congress shall prescribe by law the time, place, and manner in which the results of such elections shall be ascertained and declared.
SEC. 5. The Congress may by law provide for the case of the death or withdrawal of any candidate for President or Vice President before a President and Vice Presi-dent have been elected, and for the case of the death of both the President-elect and Vice-President-elect.
SEC. 6. The Congress shall have power to enforce this article by appropriate legislation.
SEC. 7. This article shall take effect one year after the 21st day of January following ratification.
Here are some preliminary observations that may not be obvious. First, each presidential candidate was allowed to have only one running mate. In 1896, William Jennings Bryan had two running mates. In some states, people voted for his Democratic wingman. in others, people voted for his Populist ticket. If Bryan had won, the Senate may have needed to pick his Vice President under the procedure outlined in the 12th Amendment.
Second, the provision for a runoff election presented problems. Suppose the winner got 39.99% and insisted on a recount nation-wide. That (plus the ensuing litigation) could easily delay any contingent election past January 20th. While critics of direct presidential election worry that someone could win with a rather small plurality if there were many plausible candidates, I'm not sure that concern overcomes the problems created by the possibility of recount hell.
I'll circle back to this after I've done more reading on the framing of this proposal.
With Val Kilmer's death on Tuesday, I want to give some Gen-X love to Real Genius, Kilmer's second starring role (one year before Top Gun) and a mid-'80s classic. Some commentary on the film, including by the inspiration for the main female character. Kilmer plays an irreverent-and-rebellious student at a thinly veiled Cal Tech. It is loaded with great one-liners; my favorite: "I was thinking of the immortal words of Socrates, when he said, 'I drank what?'"
Two years ago, I posted here about a possible book project that would involve civil law scholars from Europe and common law scholars writing comparative essays on causation. The project got shelved for various reasons, but there is now renewed interest. Thus, I want to issue a call for contributors. Email me if interested.
TL;DR: It's too much money to stand on First Amendment principle
I signed a letter of Northwestern alums urging the Board and the administration to hold the line. The well-lawyered responsedid not inspire confidence that NU will hold out--"With the federal government providing hundreds of millions of dollars annually to Northwestern in student financial aid and research grants, each of our choices carries risk to our institution." Worse, it does not appear NU (or any other school, perhaps save Princeton) wants to make the government take the money (something that, at the end of the day, it might be unable to do). In Civil Rights, we discuss how narrowing private rights of action (implied or under § 1983) to enforce Spending Clause enactments leaves funding cuts as the sole enforcement mechanism and how that is hard to do, given the statutory procedural and substantive protections. Apparently the real reason is that the federal government will not strip funds from Alabama for a discriminatory driver's license policy; it will strip funds from Northwestern for not doing enough to silence objectionable speakers.
Meanwhile, as another law firm falls, I wonder: Each firm has committed $ 100 million to pro bono work on which it and the Administration agrees. But will firms do additional work (beyond $ 100 million) on pro bono matters with which the Administration does not agree? Or is it committing to limiting its pro bono activities to those issues the Administration will support.* And does no one see the First Amendment problem with that? Milbank actually had an additional thing I had not seen with other firms--it pledges viewpoint and political diversity in its pro bono committee.
[*] Reportedly, Paul Weiss has stripped from its website PR stories about its pro-LGBTQ+ work. So that hints at the answer.
One for (and by) Ethan: Of Good Faith and "I Love Beating George Washington"
At Jotwell today, I am very pleased to spotlight a recent paper by our own Ethan Leib. The paper, a book chapter, offers an introduction to the subject of "Good Faith in U.S. Constitutional Law." It is, I suggest, both very helpful and an instance of "exquisite lousy timing." The role of virtue, character, a "proper sense of honor," and fiduciary responsibility in making constitutionalism possible--and in making rights and the rule of law something more than a bunch of fancy paper obscuring the entrance to a sewer--is always worth examining, in any administration. It is especially urgent now. But it is also, perhaps, already too late, given that this regime, despite the volubility of some of its intelligentsia on the subject of virtue, not only has none but appears positively to reject the notion that someone who holds an office should seek to act in a way that is at all worthy of it. Some snippets:
Every era gets the constitutional scholarship it needs—after the fact....Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing....
[Leib's chapter] summarize[s] the ways in which good faith is “central to constitutional law, even as the apex Court seems only ambivalently committed to its ability to be useful in deciding cases.” As Leib notes, its centrality begins with the text itself. Just as marriage begins with public vows, so both Article VI and Article II of the Constitution mark the entry from private status to public office with a promise before witnesses: a binding oath to “support this Constitution.” The president is further bound to “faithfully execute” the office of president and the laws of the United States. Other portions of the text, such as the Emoluments Clause, forbid the kind of self-dealing that is an affront to fiduciary duty.
Here and elsewhere, the Constitution relies on the oath-taker’s understanding that any power he exercises stems from the proper execution of the office, not the unfettered will of the individual who occupies it. (“What are the highest places,” as a judge once put it, “but obligations of the greatest dewties?”) At the same time, by swearing, the oath-taker openly acknowledges that his private character and reputation have been fully yoked to his performance of his public duties. Or, as Robert Bolt’s Thomas More puts it, “When a man takes an oath, he’s holding his own self in his own hands like water; and if he opens his fingers then, he needn’t hope to find himself again.” Knowing that men are no angels, the Constitution’s crafters nonetheless envisioned officers who treated one’s conduct in office as a commitment of one’s honor—indeed, of one’s soul....
For Leib, the fact that courts are reluctant to inquire into officials’ good faith is understandable, given concerns about institutional competence; it’s simply another example of the ways in which courts’ “decision rules” often apply more clearly but also more narrowly than the underlying “conduct rules.”...Leib concludes that good faith remains a central conduct rule for officials—one of “the very foundations of constitutional government in the United States”—even if the judicial treatment of that rule involves “careful calibration.”
...[The timing of the chapter] both supports its arguments and raises questions about them, or about their efficacy. Leib’s summation of fiduciary constitutionalism... could not be more relevant right now. The current regime has pushed a more thorough-going unitary, centralized approach to the presidency than anyone in modern history, and joined those actions with a reckless rate of change and a slippery view of law and legal duty.
Under those circumstances, even a neutral or supportive observer of this president should be interested in the public duties, virtues, and commitments that are, as a matter of constitutional obligation, supposed to channel and restrain his actions. That person should be equally interested in how the oath, and other fiduciary aspects of office, are supposed to direct subordinates—from Elon Musk and Russell Vought all the way down to a lowly peon, like a Cabinet secretary—in the performance of their duties. One needn’t like or dislike the man or his policies to acknowledge that Trump’s approach to presidential administration demands attention to these questions, and to how they ultimately cash out in the courts.
Of course, one might be less supportive, one’s sense of reality not so purblind. One might see the administration for what it is. “What it is” isn’t incipient fascism, most likely. (Although this administration has shown an unmistakable eagerness to hire, hang out with, and champion fascists, along with Jew-haters, rapists, Blut-und-Boden freaks, and other thugs—and that’s just counting the Trumpian intelligentsia.) But this is certainly a personalist, patrimonialist, authoritarian administration, staffed mostly by the craven and the roguish—and all of it in the service, not of party or ideology, but of the whims, fads, resentments, corruption, and appetites of a walking id. The title of this jot is a quote from Trump himself, as he was delighting, Commodus-like, in Bill O’Reilly’s flattering lie that Trump is the greatest president in American history. In reality, Trump and his administration resemble Washington’s less than they do a semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste. (Historically speaking, the Mob was also much tougher on Russia.)
Leib’s introduction to fiduciary constitutionalism is especially valuable against this real-world backdrop. If nothing else, it provides the measure against which the current regime’s dizzying plunge away from honor and the rule of law can be evaluated. But Leib’s treatment does two things more. On the “conduct rules” side, it encourages us to think about the degree to which constitutionalism generally, and our Constitution specifically, not only assume but demand basic qualities of character and virtue. For all the usual talk of structures, incentives, guardrails, and the like, without those personal qualities all else is mere parchment barrier. The Constitution does not prevent officials from departing from the ordinary politics, policies, and practices we are accustomed to. But it does require something more than ordinary men and women—not only at the top, but also within positions of responsibility throughout the executive branch.
On the “decision rules” side, reading Leib’s piece in the current moment encourages us to think more about the courts’ increasing reluctance to think in terms of character, duty, or motive itself. The reasons for this reluctance are varied, and Leib does a good job of spelling them out in this context. But one wonders whether the courts’ “irregular support for motivational inquiries,” which Leib describes as stemming from nervousness about courts’ competence to judge such matters, does not also reflect those judges’ confident assumptions that the executive branch’s officials possess basic qualities of character and virtue.
Those assumptions rely in substantial part on the ordinary processes and customs that are in place and have been followed by both Republican and Democratic administrations. If those assumptions become plainly unwarranted, perhaps the courts need to adjust their approach to compensate. When the Court in Trump v. Hawaii refused to follow the tweets, it did so in the belief that rounds of litigation had forced the administration into something like a more normal process of interagency consultation, with concomitant amendments to the travel ban. There was some reason in this. What, then, should the justices do when it is clear that this round of the administration just is its tweets—that to strip it of its vulgarity and “hyperbole” is to miss the point entirely—and that the grown-ups who might conduct ordinary business with more than one eye on the law have been banished? The Supreme Court’s approach through the first Trump term was to nudge the administration back within the guardrails of ordinary process, while premising its grants of power on assumptions about the ordinary good faith of those who fill any given executive branch. The Justices are not morons. They know that those assumptions no longer hold. One would not be surprised to see the Court, at the point at which the “acoustic separation” becomes too vast, turn back to a more frequent and explicit use of motive inquiry. It certainly ought to.
We might finally ask whether these questions come too late. If it is, it will not be because of the extraordinary nature of this regime and its Dear Leader alone. It will also have much to do with the degree to which our very culture, both elite and popular, has simply dispensed with the very idea of character and virtue as central and necessary elements of individual and official conduct. The blame could be heaped on social media—and, indeed, one of the most striking aspects of the Trump regime is not that it lives on social media, but that it seeks to make the lies and vulgarity of social media normative offline as well as online: it sees politics as the continuation of Twitter by other means. The problem might be traced further back, to a hollowness at the heart of individualistic, thin versions of liberalism or neo-liberalism. And it might have to do with the extent to which those who reject liberalism, for the purported reason that it does not sufficiently foreground basic requirements of virtue, have instead filled the post-liberal space with paganism, hedonism, grifting, and der Wille zur Macht. Whatever the case, it may simply be that good-faith constitutionalism requires a vocabulary that we as a culture no longer possess. As I said: exquisite lousy timing.
Enjoy the jot--and read Ethan's chapter! I note that while some scholars who had written about this or similar concepts in public law seemed lamentably to observe something of a caesura on the topic from 2021 to 2025--something I hope they will remedy now by picking it up again, not neglecting questions about the last couple of years of the Biden presidency if and as better evidence becomes available--Ethan has maintained a steady interest come rain or deluge.
Today I had the privilege of needing to go into the law library stacks to search for cases. They were English cases not freely available online. I turned the crank to move the stacks and hunted until I found my cites. Made my day.
In a related vein, I wanted to note the passing of William Leuchtenburg, the great presidential historian. He died in January at the age of 102. About twenty years ago, I sent him a reprint of my article on Huey Long. (An article that might be of interest to people these days.) I had never met him, but he sent back a 2-page typed reply with comments that he clearly typed on his own typewriter. I still have that and will always remember him fondly.
Mark Tushnet has a nice explanation for why he signed the Harvard Law professors' letter. I think there is an important gap in his account. It explains why he might feel a professional, vocational duty to speak out, but not why he would sign a group letter as opposed to engaging in some other form of communication. Perhaps Will Baude's measured, reasonable post on the Divided Argument blog fills that gap a little, although that depends on Mark's own views. (Divided Argument, which now includes some of the finest former Volokh Conspiracy bloggers, requires immediate bookmarking. I don't know their reasons for moving over there and quite agree with those reasons.)
I remain generally lukewarm about such letters, both because I believe their politics are often counter-effective and because I dislike signing on to other people's language. Nor do I see much point in a national push for such letters. (It doesn't much matter, to be sure, since I am locked into a half-convenient, half-humbling cycle, in which I rarely sign such letters and am rarely asked to.) But I do think the closing passage of Mark's post is entirely right:
Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.
Of course opinions will vary about when this language applies. I think political parties, at least, invoke variants of this sort of language all too often. (Romney?!?) Rightly or wrongly, I would not have found it as applicable during the first Trump term, despite my dislike for his policies and rhetoric in those years and despite some clear descents in that time into corrupt personalist rule. (See, e.g., Ukraine, Phone call to.) The difference might be a matter of error on my part. Or, as I would prefer to think, it had to do with the presence of a greater number of administration guardrails. Those guardrails included Republican officials within the executive branch who, when necessary, fulfilled their oath-given duties, and honored their offices, by ignoring or subverting their boss's infantile "desires." Those officials believed in the sorts of norms and processes that allow for ordinary politics, in which vehement disagreement over policy does not demand the kinds of statements that are called for in a more genuinely or incipiently authoritarian regime.
Of course the guardrails have been cast off from the Boss Baby's crib, the family cash registers are ringing, agencies and the DOJ have signed on to exact revenge for personal slights, and bizarre and arbitrary action reigns. So, yes, it is one of those times.
But I think there is another excellent bit of literature one might call to mind for our current moment. It's a passage of dialogue from the sentimental but well-written movie Good Will Hunting.
Will: He used to just put a belt, a stick, and a wrench on the kitchen table and say, “Choose.” Sean: Well, I gotta go with the belt there, Vanna. Will: I used to go with the wrench. Sean: Why? Will: Cause fuck him, that’s why.
Of course the application of the quote is imperfect, although it does have a certain zing that Lowell lacks. The most important reason it's imperfect is that people like law professors are, as a discrete category, at present mostly safe from harm, aside from the general destruction of the economy, the possible loss of their jobs or defunding of universities, and so on, in addition to the lashes they might suffer personally on some other basis. The damage from such things is immense but mostly collateral. Speaking out for us, as lawyers or citizens, may be an indefeasible, urgent moral duty but is also, for now, a luxury. We certainly suffer no reputational harm within our own particular community by doing so.
But in a country that makes deals with vicious autocrats, bribing them with public money to rent space in torture camps, sends the "wrong" people there through "administrative error," and then invites the courts to mind their own business--in a brief that treats the question whether or not it has rushed to correct its error as an incidental item not worth mentioning--that luxury status is nothing to be proud of. (I imagine that natural law and "unitary and discernible" truth have something to say about such conduct. And I imagine the answer is not a shrug of the shoulders.) Of course we have a duty to speak up against this regime. And the more often, and casually, the regime employs state power for its cheap, ugly, punitive ends, the stronger that duty is. Because...well, read the quote.