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Steve Shiffrin
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Recently Rachel Maddow has been asking the question, assuming Donald Trump has violated laws, what governmental entity will take him to task? The spineless Republican Congress? The Justice Department led by Jeff Sessions? Not likely. Well Fordham University Law Professor has developed an approach in which states attorney’s general could move to dissolve the Trump Corporation in all its U.S. tributaries. In accord with that Free Speech for People has sent a 24 page letter to New York Attorney General Eric Schneiderman to open an investigation to determine whether to revoke the New York charter of the Trump Organization, Inc. The basis for this is the history of its illegal activity including concerns about Emoluments Clause violations. Such an action would combat substantial corruption concerns in the Trump administration and it would open the door to important discovery. It would not speak to the Russian scandal, but it opens the... Continue reading
Posted Feb 16, 2017 at
It is theoretically possible that a cabinet filled with the wealthy would rule in a way that would benefit the poor and the middle class. On the campaign trail, Donald Trump contended that he knew the unfairness of the system, a system that helped him, and he would move to fix it. He would drain the swamp. Millions believed him. The evidence that Trump’s intentions were quite different is manifest, but from my perspective the most conspicuous example is his treatment of the so-called fiduciary rule. That rule provides that those who give retirement investment advice steer clients toward investments that are in their best interest. The current rule permits many advisers (brokers and insurance agents who work on commission) to steer clients toward investments that are suitable for them, but not necessarily in their best interests. In other words, the current rule permits conflicts of interest and resulting higher... Continue reading
Posted Feb 14, 2017 at
I wrote this to the President this morning: Dear President Trump Your executive order banning immigrants from various Muslim majority countries willfully ignores (or proceeds in ignorance of the already extensive vetting requirements). It is calculated to be an unnecessary and unconstitutional form of religious profiling. It does not make us safer. Indeed, it will be used as a recruiting tool by those who mean to do us harm. Grabbing headlines at the expense of the public interest while exploiting those who have already been vetted and have proceeded in reliance on U.S. assurances is a moral outrage. Continue reading
Posted Jan 29, 2017 at
Should the press report Donald Trump’s obvious falsehoods as lies? NPR featured a discussion this morning in which two arguments were made against calling them lies. First, if the press called them lies, it would appear partisan and the press would lose credibility. Second, to be a lie, one has to know the statement is false, and it is not possible to get in someone’s head. The first argument is unacceptable. The press should not refrain from telling the truth because people would doubt its credibility. This is akin to not telling the truth because advertisers would worry about loss of audience. It is entirely contrary to what the press is supposed to stand for. The second argument is overbroad. Demonstrating a lie frequently depends upon circumstantial evidence. But there is a third consideration. When Donald Trump says that his inauguration crowd was larger than Obama’s or that 3 of... Continue reading
Posted Jan 25, 2017 at
The election of Donald Trump created trauma, depression, and associated health issues with those who were shocked by the result. Virtually all of us thought it can’t happen here. The U.S. could not elect an ignorant, intellectually lazy, vindictive, racist, sexist, lying narcissist to be President of the United States. Most of us thought the system was at least sensible enough that it could not go that wrong. To some extent, apart from fear, the trauma is associated with the recognition that the marketplace of ideas did not sort truth from falsehood. Yes, Clinton won the popular vote, but if the marketplace of ideas functioned properly, she would have won with many more millions of votes. But confidence in the marketplace of ideas was deficient from the start. As Frederick Schauer states, “Once we fathom the full scope of factors other than the truth of a proposition that might determine... Continue reading
Posted Jan 17, 2017 at
I have been reflecting on the great bookstores I have visited. My favorite is Powell’s in Portland, Oregon. But there are many others. Book Culture, Nine Lives and the Strand in New York City. University Press Books, City Lights, Green Apple, and Moes in the Bay Area; the Seminary Co-Op Bookstore in Chicago (great for religion, but a wide selection beyond religion); the Harvard Bookstore in Cambridge, Massachusetts; the Elliot Bay Book Company in Seattle; Diesel in Los Angeles (like Nine Lives, small, but good selection); Politics and Prose and Kramerbooks in D.C. I would be interested in others. Here are links to interviews with the owners of Book Culture and Diesel. Continue reading
Posted Jan 4, 2017 at
Proposed Secretary of State and Exxon CEO Rex Tillerson’s ties to Russia deserve to be explored, but so does the issue whether Exxon has deceived investors and consumers regarding climate change. The Attorney Generals of Massachusetts and New York are investigating Exxon, the largest oil company in the world, regarding possible false and misleading statements in this area. As counsel for the Attorney General of Massachusetts put it, it appears that “Exxon knew by at least July, 1977 from its own scientists that the continued burning of fossil fuels was causing global temperatures to increase, that the impacts could be catastrophic, and that changes in strategies would be needed. Nonetheless, it appears that Exxon continued to advise investors that its business model, heavily reliant on continued burning of fossil fuels, was sound, and continued to market its fossil fuel products to consumers without adequately disclosing the climate risks to the... Continue reading
Posted Dec 14, 2016 at
Republican FBI Director Comey and Russian intervention alone will make Donald Trump an illegitimate President. That is, he will have the power, but he has gained that power only because the democratic process has not been respected by the Director of the FBI and has been sideswiped by a foreign power. Moreover, Trump has won the job by appealing to racist values that are alien to what the Constitution stands for. This is not new for Republicans, but this time it has been far more blatant. From a political perspective, Hillary Clinton should have not referred to the large basket of deplorables among Trump supporters, but virtually all of those supporters were aware of the racist (and sexist) appeals and voted to achieve their objectives either because of them or despite them. The point of this post is to decry the media coverage of the campaign. A friend of mine... Continue reading
Posted Dec 2, 2016 at
Hillary Clinton did a lot of things right in this election. She won all three debates. She managed a well-funded, well-oiled campaign machine. Her advertisements were brilliant. Her events were well-conceived. Her volunteers were committed and hardworking. She won the popular vote. Were it not for Director Comey and Russian intervention, she would be the President elect. But one aspect of the campaign was misdirected. The emphasis of her campaign was not why the Republicans are wrong, but that Donald Trump is an incompetent moral monster. That emphasis may have been the best message to get her elected, but for many years now the Republican theme of laissez faire, small government, and lower taxes has not been subjected to the full throated critical scrutiny it deserves. Many are saying that the failure of the campaign was the failure to address the white unemployed in the Rust Belt. Although it was... Continue reading
Posted Nov 13, 2016 at
Paul Ryan and other Republican leaders are arguing that citizens should vote for Republicans in House and Senate races in order to check Hillary Clinton if she is elected President. Checks and balances are needed, they say. But there is another name for checks and balances in this context: it is called gridlock. Most American have a low opinion of Congress and gridlock is a prime reason. Regrettably, the American Constitution is structured to make gridlock possible. It was designed to protect the wealthy creditors against debtors. It resists change. There is a lot of Constitution worship in this country. You would think we have a perfect Constitution. Well, we don’t. Continue reading
Posted Nov 7, 2016 at
The lower court in what became Buckley v. Valeo recognized that "it would be strange indeed if . . . the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money and because the amounts they give and spend cannot be limited.” Yet that strange idea, an idea wholly inconsistent with political equality in a democratic society is currently the law. In reversing the lower court, the United States Supreme Court held that the right of wealthy individuals to spend unlimited sums of money in campaign expenditures outweighed the interest of political equality in a democracy. Any other result, the Court claimed, would be "foreign to the First Amendment." Regrettably, that principle not only has be given stubborn adherence; it has been extended to corporations; indeed, even secret spending is constitutionally permissible. One of... Continue reading
Posted Nov 2, 2016 at
The Clinton campaign is asking the FBI to issue more details about the investigation concerning Hillary Clinton. I think this is a mistake. Clinton and other Democrats (not to mention Republicans) are asking Director Comey to again violate the rules which prohibit the Bureau from commenting on ongoing investigations and not to intervene in election campaigns. It was wrong for the Director to comment before, and I do not think his prior breaking of the rules should serve as a cover for further interventions in the campaign. It ought to be obvious that the Bureau is supposed to operate as an independent nonpartisan agency. It should not be conducting investigations or commenting on investigations because Congress, a political candidate, or a political party wants it to do so. I get that the Clinton campaign wants to make it clear it has nothing to fear. There are better ways. Continue reading
Posted Oct 31, 2016 at
In case you missed Richard Painter's excellent op-ed in the New York Times here. Continue reading
Posted Oct 30, 2016 at
FBI Director James Comey’s decision announcing that the Bureau is investigating e-mails found on a computer used by Huma Abdin in connection with the investigation of Hillary Clinton is inconsistent with D.O.J. policy, indefensible, and was apparently prompted by his ineptitude in the execution of the prior questionable decision to make public remarks attempting to justify the decision not to prosecute Hillary Clinton. According to long established D.O.J. rules, the FBI does not comment on ongoing investigations, and the usual practice is not to comment on decisions not to go forward with a prosecution. Comey’s prior decision to publicly comment on the decision not to prosecute was itself unusual, and it was difficult to defend because the claim that Clinton was “extremely careless” in handling e-mails intervened in the election with no law enforcement purpose. What has turned out to be equally problematic, Comey left the impression that the Clinton... Continue reading
Posted Oct 29, 2016 at
My new book What's Wrong with the First Amendment? has now been published in hardback, paperback, and e-book formats by Cambridge University Press. The book argues that the US love affair with the First Amendment has mutated into free speech idolatry. Free speech has been placed on so high a pedestal that it is almost automatically privileged over privacy, fair trials, equality and public health, even protecting depictions of animal cruelty and violent video games sold to children. At the same time, dissent is unduly stifled and religious minorities are burdened. The First Amendment benefits the powerful at the expense of the vulnerable. By contrast, other Western democracies provide more reasonable accommodations between free speech and other values though their protections of dissent, and religious minorities are also inadequate. The book argues that US free speech extremism is not the product of broad cultural factors, but rather political ideologies developed... Continue reading
Posted Oct 24, 2016 at
Recently, I proudly presided at the wedding of Jacob Shiffrin and Sarah Olbrantz in Saint Louis, Missouri. It was a wonderful event. But, how you might ask, could I have the authority to marry them. I am not a judge, a clergyman, or authorized by a religious institution of which Jacob or Sarah are members as Missouri law seems to require. The answer, of course, is that I became a pseudo-clergyman on line in a couple of minutes. Missouri accepts such credentials. So do most states (although questions have been raised in Connecticut, Virginia, Tennessee, Alabama, and New York). Although Missouri permits judges to marry couples, some states require that only spiritual leaders preside at weddings. Suppose, however, that a couple want a non-religious social worker to marry them. Is a state law preventing the social worker from marrying the couple constitutional? It strikes me that a law forcing a... Continue reading
Posted Oct 5, 2016 at
From the New York Times to PBS, the media proclaims that Donald Trump is not stable, but he is the change candidate, and Hillary Clinton is not. In other words, she just stands for four more years of Obama. In one sense this is true. It will not be possible to get legislation through the Republican House. At the same time, Trump would not be able to get anything through the Senate which is likely to be controlled by the Democrats. So on the domestic level, whoever is President will govern at the margins by executive order, although appointments to the federal departments are obviously important. In terms of foreign policy, Trump is the change candidate. But change in the hands of an ignorant, reckless, thin-skinned, narcissist is hard to rally around. But Hillary Clinton is the real change candidate. The Supreme Court has been dominated by Republicans since the... Continue reading
Posted Sep 19, 2016 at
Of course, under the circumstances, Hillary Clinton must be elected President, but what can she be trusted to do? I will argue that there is a lot to worry about here, but first, some things she can be trusted to do. First, she will appoint Justices who will transform the Supreme Court from a dream of the Federalist Society to a moderately liberal court that respects equality, principles of criminal justice, and fairness in elections. Second, she will on most issues act like a Democratic President. Third, e-mail carelessness to the contrary, her brilliance, experience and judgment will make her a reliable anchor in foreign policy and national security (though many of us prefer she were less hawkish). Fourth, she will block Donald Trump from ever becoming President of the United States. But there is much to worry about and not because she is more likely to issue false statements... Continue reading
Posted Aug 7, 2016 at
In a well argued facebook post, Patrick O'Donnell maintains that a vote for a third party candidate is morally irresponsible. Here is what he has to say: The upcoming election is a binary choice (i.e., abstention or third party voting is morally and politically irresponsible), and here's my brief argument as to why: If one assumes (and it seems a reasonable assumption given what current numbers suggest and 'experts' are saying about the upcoming presidential election) that this presidential race will be fairly close and, furthermore, believes that Donald Trump is an immeasurably worse candidate than Hilary Clinton, than it would be politically (and I think morally) irresponsible to vote for a third party candidate of any sort, for that would be tantamount to giving your vote to Trump. If one believes a vote for a third party candidate amounts to a salutary or necessary expression of one's ideals or... Continue reading
Posted Jul 20, 2016 at
Apparently, Hilary Clinton over the years has made false statements in order to minimize or deny wrongdoing of one sort or another. It is not right, but millions of people are not truthful when accused of wrongdoing. And, of course, Hilary Clinton has been accused of wrongdoing on many occasions when the charges were entirely trumped up. Donald Trump, on the other hand (leaving aside his regular diet of groundless claims), time and again has made false statements in order to defraud others. There is obviously an important a moral difference between lying to defend oneself and lying to defraud others. Not all lies are equally defective. And now, let’s not put aside Trump’s regular diet of lies about birth certificates, participation in assassinations, and bribery of the Attorney General etc, etc, etc. Here there is good reason to ask whether the man is just a liar or is a... Continue reading
Posted Jul 8, 2016 at
I attended a workshop today in which Nelson Tebbe perceptively discussed the question whether harm to third parties should invalidate government creation of religious exemptions to otherwise valid laws, and, if so, under what circumstances. Many in the audience posed questions that raised the issue whether religion is special. At first glance, one might think that under our Constitution religion must be special. After all, it contains religion clauses. Nonetheless, there is a substantial literature arguing to the contrary, and I take a mixed position. I begin with the proposition that a major purpose of government is to make arrangements assuring that human lives flourish. A major responsibility associated with this is to assure that citizens can lead moral lives. Protecting religion under the Constitution and promoting free exercise exemptions by statute furthers that responsibility. Of course, religious institutions are filled with sinners, and some religions have twisted views of... Continue reading
Posted Jul 6, 2016 at
Lost in the Supreme Court shuffle yesterday was the Court’s drunk driving decision (Birchfield v. North Dakota) on breath and blood tests and the Fourth Amendment. The Court ruled that breath tests whether at the scene or at the station did not require a warrant. On the other hand, blood tests because of their more intrusive character were ruled to require a warrant. The significance of this decision in drunk driving cases is small for two reasons. First, most jurisdictions rely on breath tests administered at the station (the breath test administered in the field, whatever its merits as a screening test is inadmissible). Presumably those jurisdictions using blood tests in drunk driving cases will begin to shift to in-station breath tests. On the other hand, blood tests are the standard test employed to determine whether a motorist has been driving under the influence of drugs other than alcohol, and,... Continue reading
Posted Jun 24, 2016 at
Michael Arnovitz on Facebook has a terrific defense of Hillary Clinton. It is the best I have seen. Well worth reading. See here. Continue reading
Posted Jun 13, 2016 at
Donald Trump has famously contended that a federal judge cannot impartially adjudicate a case involving Trump because the judge’s ethnic background is not French, German, or Italian, but Mexican. According to Trump, the judge has an inherent conflict of interest because of his Mexican heritage. This breathtaking racist display has rightly been condemned, but there is a germ of truth (but just a germ) in his statement that I want to mention. Suppose for a moment, that we focus on the selection of jurors. It is unconstitutional for attorneys to use preemptory challenges when they exclude jurors on the exclusive basis of race or gender. The Court has referred to impermissible stereotypes. Nonetheless, as Justice O’Connor observed in J.E.B. v. Alabama ex rel. T.B., “[O]ne need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his... Continue reading
Posted Jun 8, 2016 at