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Steve Shiffrin
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In case you missed it (I did), the American Catholic bishops earlier this month issued a wise document opposing the Republican tax plan. The commentary is from Thomas Reese, former editor of America: Continue reading
Posted Nov 24, 2017 at
Sometime back I asked my now retired doctor how he coped with the fact that despite best efforts, he lost many patients to death. He said, "I am grateful for every day." Continue reading
Posted Nov 23, 2017 at
I was a moderator for a panel celebrating Nelson Tebbe’s sweeping and carefully argued new book, Religious Freedom in an Egalitarian Age. The panel members were Douglas NeJaime, Micah Swartzman, Reva Siegel, and, of course, Nelson. There were many interesting issues provoked, but I was especially interested in the extent to which religious liberty claims can survive when their accommodation would harm third parties. In a co-authored Yale Law Journal article, Reva and Doug take the position that dignitary harms should prevail over religious liberty claims even if no material harm is caused. So a photographer who religiously objects to providing services for a same-sex wedding would lose because of the infliction of dignitary harm on a lesbian couple even if many other photographers were willing to provide services. At the panel, Doug provided a thick description of the nature of dignitary harm, and certainly the unfairness of being denied... Continue reading
Posted Nov 22, 2017 at
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