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Steve Shiffrin
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Many are worried that pardons by Trump or the firing of the Special Prosecutor would trigger a constitutional crisis. This is understandable. The notion that a suspected criminal could pardon people who might implicate him or stop the investigation is clearly at war with the rule of law. The rule of law calls for an impartial investigation. It does not call for a suspected criminal to pardon people or stop investigations for illicit reasons. Even assuming that the Courts would uphold such actions and assuming that the spineless Republicans would continue to cater to the deplorables in their base by looking the other way, Robert Mueller has a backup plan that will mitigate the damage. Perhaps you noticed that Paul Manafort was not charged with all the felonies implicated in the indictment. Tax evasion is one of the most conspicuous omissions. If the factual claims of the indictment are accurate,... Continue reading
Posted Nov 5, 2017 at
What's wrong with the Russians using speech to influence our elections? Citizens United argued that limits on the speech of business corporations interfered with “the open marketplace of ideas protected by the First Amendment.” The Court said that “The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.” (emphasis added). So, if we trust the marketplace of ideas, shouldn’t the Court protect the speech of the Russian government or Russian corporations. President Obama in his 2010 State of the Union Address worried that the Court would go that far: "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." You will recall... Continue reading
Posted Oct 31, 2017 at
I have subscribed to the Wall Street Journal (along with the New York Times) off and on for many years. Its excellent news pages have been accompanied by conservative editorials and often marred by kooky or mean-spirited contributions to the editorial pages. Nonetheless, even in the editorial pages, I have often enjoyed the writing of people like Peggy Noonan. Nonetheless, tomorrow I will cancel my subscription to the Wall Street Journal. A few days ago, the Journal suggested that Clinton, the Democratic Party, and FBI colluded with the Russians. It demanded an investigation and called for the resignation of Robert Mueller. For a summary, see I will cancel not just because the Journal has crossed over into Fox, Limbaugh, Breitbart territory and not just because the Journal can no longer be thought of as a serious newspaper. By joining the liars and lunatics, the Journal in calling for Mueller’s... Continue reading
Posted Oct 29, 2017 at
Wedding Cake Brief I filed a brief in the United States Supreme Court yesterday in the wedding cake case on behalf of Mike Dorf, Seana Shiffrin, and myself. We address the free speech issue in the case, but not the religion issue. We argue that wedding cakes are not speech within the meaning of the First Amendment, at least in the absence of a specifically articulated message on the cake. Although Jack Phillips, the baker in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, has religious objections to producing wedding cakes for same-sex weddings, a wedding cake does not communicate that a wedding should be celebrated, and a wedding cake has no theology. It does not carry a message of divine approval. It carries no message that contradicts the baker’s ideology. The baker maintains that his cakes are art, but no court has ever held that wedding cakes are the... Continue reading
Posted Oct 27, 2017 at
Many of us have wondered why evangelical Christians have stuck with Donald Trump for so long. It is, of course, child’s play to come up with reasons why they would not and should not. Initially, I thought abortion was the main reason. Certainly, the evangelicals applauded the appointment of Justice Neil Gorsuch. But I had not thought about why the abortion issue was so important to evangelicals except for the obvious pro-life, pro-choice debate. That view, however, misses the underlying sociology. More than 30 years ago, Kristen Luker wrote Abortion and the Politics of Motherhood. The book drew on 200 interviews with abortion activists on different sides of the issue. She found that their position was connected to their views on sexual behavior, the care of children, and family life. So thirty three years ago, Luker discovered what I had forgotten. The abortion issue is centrally connected to the evangelical... Continue reading
Posted Sep 24, 2017 at
Posted by Robert Hockett When Bill Clinton's notorious 'It depends on what the meaning of "is" is' became something of a 'meme' in the late 1990s, I was struck by two things. The first was that Clinton was actually being forthcoming in saying this in the context in which he said it; for he went on in the same deposition to explain that on one plausible understanding of 'is' in the question addressed to him, the answer would be x, while on the other plausible understanding the answer would be y. The second thing that struck me during this episode was that everyone's taking Clinton's locution as emblematic of a penchant for dissembling was itself emblematic of something: namely, that Clinton had evidently long since developed - indeed, probably earned - a reputation for dissembling, and that this enabled even his attempts at parsing in good faith to stand in... Continue reading
Posted Jan 23, 2017 at
This unusual little address this morning, by Prince Charles on religious persecution and the plight of refugees, is surprisingly moving. And of course it couldn't be more timely. Continue reading
Posted Dec 22, 2016 at
Dear Friends, I am delighted to be able to report that our own Eduardo is to return to Cornell Law School this summer to serve as our new Dean. The Law School's announcement is here. Continue reading
Posted Mar 18, 2014 at
Ari Fleischer has a surprising column in today's Wall Street Journal. His claim is that if we are concerned about poverty and income inequality, then we should focus our efforts on addressing 'the breakdown of the family,' since these two phenomena tend to correlate. I think that Fleischer at best mistakes a case of bidirectional causation for a case of unidirectional causation, and at worst privileges a case of weak causation at the expense of a case of much stronger causation. Either way, the mistake vitiates his policy advice. It is widely observed in the social science literature that people experience much greater difficuly in forming and maintaining stable families when they are in dire poverty. It is also widely observed that 'cultures' of child-bearing outside of stable family structures tend to develop in desperately poor communities. Even apart from the social science literature, many of us hear anecdotally or... Continue reading
Posted Jan 19, 2014 at
At the corner of Wall and William Streets in downtown Manhattan, just up the stairs from the 2 and 3 subway stop, in front of the Cipriani restaurant frequented most nights by glitterati delivered in limousines and welcomed by non-whites in top-hats and tails, next door to where A. Hamilton lived when the new federal government worked in New York, one block from the stock exchange and from Federal Hall where G. Washington first was sworn-in as President, and three blocks from (a) Trinity Church where Secretary Hamilton and his beloved Betsy Schuyler are interred, (b) the Federal Reserve Bank of New York where Wall Street’s banks are supposed to be regulated, (c) T. Jefferson’s erstwhile residence as first Secretary of State, and (d) Zuccotti Park where the ‘Occupiers’ first modeled an ideal community in 2011, there stands a gray metal news kiosk. A bent, weathered old fellow clad in... Continue reading
Posted Nov 30, 2013 at
Hi Friends, Early last year, I noted with pleasure some progress underway in connection with a truly 'win-win' mortgage bridge loan statute I'd drafted with a friend and colleague at FRBNY. Today I am pleased to be able to report that the same is now S 5035, under consideration in the New York Senate. Here is hoping it passes in what remains of the current legislative session, for reasons elaborated in brief at the previous link and more fully here. Hope you all are enjoying a truly beautiful weekend like that underway at least here in New Haven today, Bob Cross-Posted at MOJ Continue reading
Posted Jun 15, 2013 at
Both Patrick's recent post marking the birthday of Malcom X, and Steve's post before it questioning just how 'scandalous' the IRS pseudoscandal really is, invite some reflection on President Obama's reaction to the mentioned pseudoscandal thus far. In my humble opinion, that reaction has been the very contrary of what it ought to be, and this might owe partly to a handicap that many have long suggested the President might labor under. If that perception of handicap does indeed partly explain the President's weak showing right now, I very much hope he will recognize that he has nothing to worry about, then reclaim his spine and resume his hard work for the nation. Let me explain. To begin with, let us refresh ourselves on the backdrop against which the President has recently professed 'outrage' and accepted the resignation of acting commissioner Steven Miller at the IRS. There is so much... Continue reading
Posted May 20, 2013 at
[N]one shall entomb him or mourn but leave him unwept, unsepulchered, a welcome object for the birds, when they spy him, to feast on at will. Many an educated reader - and many an educated lawyer in particular - will have encountered the line I've just quoted, as well as the name I have quoted in the title to this post. These are words spoken by Antigone, apropos an edict prohibiting entombment of her brother, Polynices, in the Attic tragedy that bears her name. Polynices has made war on his own polis, Thebes, and for this reason Creon, the ruler of Thebes, has decreed he is not to be accorded the rites that both sacred and customary law prescribe. The 'luckless corpse of Polynices' is to be left to be eaten by carrion-birds. A resultant clash of contrary obligations - that to obey ruler-posited law on the one hand, that... Continue reading
Posted May 6, 2013 at
A few quick reactions to Andreas, Caitlin, and Paul's helpful post: First, it's very heartening to read the good news here - both (a) that so many in San Bernardino County have benefited by monthly payment reductions (mainly attributable to lower interest rates) and (b) that home prices in the County are showing a somewhat more resilient upward trajectory than they have experienced in previous post-bust peak periods. One cannot but hope that this continues, and that other hard-hit counties across the nation experience counterpart treds. Second, the authors' principal claim is incontravertible - the facts that they marshall must indeed figure into any CBA to which the eminent domain plan is subjected. The same holds, of course, in respect of further facts going forward, whether conditions continue to improve, level-off, or turn south again. Finally third, notwithstanding the foregoing, a few cautionary notes bear sounding: 1) First, as documented in my forthcoming Current Issues piece to which Andreas, Caitlin, and Paul's post will ultimately appertain, home prices nation-wide have of course cycled over the years since the bust, and some analysts are predicting that the numbers for the past several months, once available (there's always a lag), will show another significant retreat. Sam Zell is the latest: Time will tell. 2) Next, as quite a few analysts - including some who are not enamored of the eminent domain plan - often observe, principal-reduction is the most effective means of forestalling delinquency, default and foreclosure, even if other stages of the HAMP 'waterfall' - including rate-reduction and term-extension - are of course helpful. That too of course has to be factored in to the CBA. 3) Next, it bears noting that principal-reduction is about more than delinquency-, default-, and foreclosure-prevention, even though it's partly about those. It's also about at least two other related but likewise partly independent things - namely (a) market failure and efficiency, and (b) consumer spending and consequent growth and employment. As to (a), if (i) there are loans locked in PLS trusts whose EVs can actually be raised, through writing down principal, by more than the transaction costs occasioned by buying them out of the trusts and then writing them down, and (ii) only improvident PSAs, drafted when too few anticipated the prospect of market-wide crash, now prevent the write-downs, then (iii) we are currently living with avoidable deadweight loss. To recoup that lost value would be a good thing. The 'if's here can be and are contested, of course; and again, the EV gains would have to exceed the transaction costs to be worth the candle. But there's reason to believe these conditions are met. Finally, as to (b), there seems to be broad - though of course not uncontested - agreement that mortgage debt overhang constitutes a significant drag on consumer spending, rendering macroeconomic recovery that much more difficult. (The 'We Might Be Japan' conjecture.) FRB and FRBNY white papers and policy presentations often note the connection - the wealth effect's possible operation in reverse, so to speak. Insofar as this is the case - and again, I know it's contestible and contested - then principal reduction would seem to be better than interest rate and term refis on this score as well. That too, then, would be well to factor in to the CBA. I hasten to add that I don't take Andreas, Caitlin, Paul and myself to be disagreeing on anything. We're only pointing different things out. In the proverbial 'final' analysis, the cost-benefit analysis will of course run on the basis of empirical data. We all doubtless agree that under different empirical circumstances, the CBA will yield different results - and that we must all accordingly continue the great work that Andreas, Caitlin and Paul here have done in assembling some of those all-important empirics. All best, more soon, and thanks again, Robert