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Steve Shiffrin
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Proud to have joined as co-counsel with Free Speech for People in opposing Exxon's attempt to defend against investigations of the Attorneys General of New York and Massachusetts by resorting to the First Amendment. Exxon has no First Amendment right to mislead consumers and investors. Continue reading
Posted 5 days ago at
In her Saturday Wall Street Journal column, Peggy Noonan praises Susan Collins’s defense of now Justice Kavanaugh as the voice of reason. She notes that Collins supported nominees of Republican and Democratic Presidents. She indicts Democrats for attempting to scuttle the nomination from the start. She does not mention the behavior of the Republicans in scuttling the nomination of Merrick Garland. Nor does she mention that Collins did not support Garland. Neither Noonan nor the “voice of reason” discuss (1) the apparent perjury of Kavanaugh; (2) his open display of partisanship; or (3) his shocking shows of temper coupled with inappropriate respect for sitting Senators. Kavanaugh would properly have been disqualified for any one of these reasons. A “voice of reason” would have squarely dealt with all of the major issues, but Collins did not do that. It was far from the “master class in thoroughness” described by Noonan. Collins... Continue reading
Posted 7 days ago at
Senate Republicans are complaining about “mob rule.” You would not guess that the Republicans control the House, the Senate, the Presidency, and the Supreme Court. You would not know that the number of Republican representatives in the House vastly exceeds what they would be entitled to if majority rule prevailed. You would not realize, as Michael Tomasky observed in the New York Times that the 54 Senators who voted for Justice Gorsuch received 54 million votes while the 45 Senators who voted against him received more than 73 million votes. You would not guess that 4 of the current Justices have been appointed by Presidents who were elected despite losing the popular vote. This is not democracy, but it is no secret that the Senate is undemocratic. Nonetheless, the Framers hoped the Senate would be a deliberative body that would act in the public interest. Instead, the Senate Republicans (together... Continue reading
Posted Oct 7, 2018 at
Last week, a friend of mine argued that Kavanaugh should be confirmed because Dr. Blasey (her professional name) had remained anonymous until quite late. In this, he spied a character flaw. I observed that the issue was not whether she had a character flaw, but whether Kavanaugh had the requisite character for a Supreme Court appointment. In addition, Blasey had every right to remain anonymous. Indeed, she revealed her name only after her name was leaked to the press. The same thing happened to Anita Hill. This points to a scandal that has not received enough attention in this matter. Leaking Blasey’s name to the press when she had requested anonymity is inexcusable as it was with Hill. Who leaked her name and why? This exploitation of Blasey for whatever reason cannot be defended and members of the press should try to find out who did it. Continue reading
Posted Sep 25, 2018 at
I just finished William Connolly’s, Aspirational Fascism: The Struggle for Multifaceted Democracy Under Trumpism. Connolly is a giant in political theory and this short book is well worth reading. It offers fascinating comparisons and contrasts between the political and rhetorical appeals of Donald Trump and Adolph Hitler and important guidance for the resistance – all embedded in themes familiar to those who have generally followed the development of his theory. As he argues, it is crucial to understand the appeal of nationalist, right-wing, authoritarian politicians if resistance is to be informed. It is not enough to write off the racism, sexism, and fascist tendencies of Trump’s base (though that needs to be done). Connolly argues that a multifaceted diverse social movement has to bring in white male workers left behind who have been conned by Trump. In this respect, the book deserves to be read with Listen Liberal by Thomas... Continue reading
Posted Sep 17, 2018 at
We do not live in a democracy. If we think of a democracy as a system of representation in which the rights and interests of the People are respected, my claim seems to be unassailable. Surely, a legislature that attempts to deprive millions of people of health insurance and passes a massive tax cut in which more than 80% of the revenue goes to the top 1% reminds us that John Kenneth Galbraith was on to something when he said we have socialism for the rich and capitalism for the poor. This welfare for the rich is compounded by the unearthing of health and safety measures (including bad faith denials about climate change) and otherwise promoting a short-term, short-sighted friendly business environment opposed by and to the detriment of the People. The system is rigged against the People. The Framers were opposed to democracy. Even with elections for the Senate,... Continue reading
Posted Sep 12, 2018 at
Taryn Mattice has called my attention to Gary Wills powerful critique of the Catholic Church. It is all about the scope of the sex abuse scandal, the craven need to preserve authority, the so-called “natural law” justifications for a wide variety of unpersuasive positions on sex, and the role that the laity ought to be playing in combatting the overreaching and worse of the hierarchy. To be sure, Gary Wills is not a master of understatement. But his criticism is smart, sharp, well written, with breakouts of humor. It is well worth the read. Continue reading
Posted Aug 31, 2018 at
Jennifer Rubin reports in today's Washington Post that "Paul Manafort's lawyers rested their case without allowing their client to take the stand . . ." In an important respect, that is not true. Lawyers cannot prevent their client from testifying, and surely they did not do so here. Lawyers can advise the client not to testify, but the decision whether to testify or not is squarely within the client's authority. Paul Manafort decided not to testify. I am not suggesting this was a mistake. His chances of being convicted would surely have increased if he had. Opening himself to cross examination by a prosecutor would have been a form of legal madness. Prosecutors are not permitted to comment on a defendant's failure to take the stand, and juries are legally foreclosed from drawing an inference from that failure. Juries are ordinarily quite good about trying to follow instructions, but it... Continue reading
Posted Aug 15, 2018 at
As a member of the Legal Advisory Board of Impeach Donald Trump Now, I am pleased to announce the release of a new book The Constitution Demands It: The Case For The Impeachment of Donald Trump. Written by a trio of veteran constitutional attorneys from Free Speech For People, Ron Fein, our Legal Director; John Bonifaz, our President; and Ben Clements, our Board Chair; with a foreword by John Nichols, the national affairs correspondent for The Nation, The Constitution Demands It presents the legal and constitutional case against Trump, and provides a guide for Congress to launch impeachment proceedings. This book will be in Barnes & Noble stores and independent bookstores across the country on Tuesday, August 14. You could go to your local bookstore or go on Amazon and buy a copy (or 10!). The more books we sell in the first week, the more likely we’ll attract national... Continue reading
Posted Aug 12, 2018 at
Much of the discussion about the possible elevation of Judge Kavanaugh to the Supreme Court has centered on whether Roe v. Wade would be overturned. In fact, as Justice Blackmun emphasized in Planed Parenthood v. Casey, Roe has already been partially overturned. But the Court in Casey affirmed what it characterized as the central holding of Roe. Specifically, it recognized that states could not criminalize a women’s decision to have a pre-viability abortion, and it declared that a state could criminalize post-viability abortions except those that endangered the life or health of the mother. David Brooks has previously been sharply criticized for his views on abortion (see here.)(Brooks’s views) and and The criticisms, particularly the Planned Parenthood response, strongly suggest that Brooks's published views are disturbingly ignorant. Recently, Brooks launched an attack on Justice Kennedy for remarks made in Casey. Ironically, the remarks that drew the fire of... Continue reading
Posted Aug 6, 2018 at
Newspaper headlines indicate the Mueller wants to grant immunity to five witnesses for the Manafort trial. If you do not get beyond the headlines, this seems overly generous. In fact, no generosity is involved. Mueller is seeking to compel the testimony of the five witnesses, none of whom need testify if they invoke the Fifth Amendment – unless they are granted immunity. But there are two kinds of immunity. There is transactional immunity which would excuse them from all crimes connected with their testimony, and there is a narrower form of immunity: derivative use immunity. That is the form Mueller has applied for the court to grant. Under this form of immunity, the witness can be prosecuted for crimes connected to the testimony, and the witness can be prosecuted if the testimony is perjurious, but the testimony (or evidence procured as a result of it) cannot be used against the... Continue reading
Posted Jul 18, 2018 at
The Supreme Court in Janus overturned a 41 year old precedent permitting a state to compel non-union members of a public union bargaining unit to support the union that represents them in collective bargaining. The precedent, Abood v. Detroit Board of Education, said that non-union members of the collective bargaining unit could not be forced to support the electioneering activities of the union, but could be forced to support the collective bargaining expenses, the grievance expenses, recreational activities, and more controversially – lobbying activities. In my view, Abood was right and Janus is wrong. Citizens commonly are taxed to support ideologies to which they are opposed. Suppose Michigan decided that unions ably represented workers against corporate power and decided to tax the population to support unions. Surely, Michigan could use subsidize collective bargaining expenses and the like. It even could support lobbying expenses, given that Michigan can pay the expenses... Continue reading
Posted Jun 30, 2018 at
Justice Kennedy obviously did not want to decide the issues presented in the wedding cake case, so he took a specious way out. He argued that the Civil Rights Commission (one of 4 Colorado decisionmakers in the case) had an anti-religious purpose. To support this conclusion, he pointed to an anti-religious statement by one commissioner (of the seven on the Commission) and a number of other statements that even he conceded could be read (and, in my view, clearly should be read) to say that religious businesses had no right to discriminate against their customers. That the statement of the single Commissioner could have been a but for cause of the outcome in Colorado strains credulity to the breaking point. In addition, Justice Kennedy points to an inconsistency on the free speech issue by the Commission. Colorado had ruled that cakemakers could not be compelled to sell a cake with... Continue reading
Posted Jun 5, 2018 at
Democratic candidates for President and many other Democrats are supporting a proposal that would make the government the employer of last resort, at least in the poorest counties. This is not only humane policy; it may be good politics. Guaranteeing a job for blue collar workers that the economy has left behind together with guaranteed health insurance and education combined with an infrastructure program and serious efforts to address climate change gives the Democrats a positive program, that goes well beyond opposition to Donald Trump. It is no secret that Donald Trump appealed to white male blue collar workers and that appeal was a critical part of his success. The guaranteed jobs proposal is designed to appeal to that group and beyond. But I worry. Almost thirty years ago, Johns Hopkins’ William Connolly argued in his book Identity/Difference that liberal policies (see, e.g., affirmative action, busing, and gun control) and... Continue reading
Posted May 13, 2018 at
Donald Trump tells his base that his immigration policy is anti-Muslim, and more than 90% of the people affected by it are Muslim. The Solicitor General tells the Court that the ban is not anti-Muslim because most Muslims in the world do not fall within it. The question is whether the President gets to have it both ways. Continue reading
Posted Apr 26, 2018 at
Recently I saw a debate about hate speech at Cornell between New York law professor (and former ACLU President) Nadine Strossen and NYU law professor Jeremy Waldron. Strossen is opposed to the prohibition of hate speech because it amounts to point of view discrimination which she claimed is acceptable only in an emergency. She also maintained that hate speech statutes have been used to censor the minorities they have been intended to protect. In her recent book on hate speech, Strossen admits that libel law is an exception to the “emergency” principle. The reason is that libel causes harm and it need not be immediate harm to warrant regulation in a wide variety of circumstances. And that is precisely the point of Jeremy Waldron’s book, The Harm in Hate Speech. He argues that hate speech is a form of group libel that threatens the quality of life, the dignity, and... Continue reading
Posted Apr 24, 2018 at
According to the Washington Post this morning (see here), pursuant to a search warrant, FBI investigators seized records of Attorney Michael Cohen including communications with many of his clients, Donald Trump among them. In order to get this warrant, among other things, the FBI would have had to show that there was at least probably cause to show that Trump and Cohen conspired to commit a crime. It is not clear to me why this did not fall under the purview of Mueller’s investigation, but it is not a “witch hunt.” Continue reading
Posted Apr 10, 2018 at
Kurt T. Lash, the E. Claiborne Robins Distinguished Professor of Law at the University of Richmond posted this eye opening post on Facebook: Next term I will teach a course entitled "Abolishing Slavery, Building Liberty: The Adoption of the Thirteenth, Fourteenth and Fifteenth Amendments." This coming Monday, I will give a lunchtime presentation for the students at Richmond Law School talking about the research which led to the creation of the course. In doing so, I will discuss three things I suspect students don't know about these three amendments: First, the Thirteenth Amendment abolishing slavery was preceded by a thirteenth amendment protecting slavery. Both “thirteenth” amendments were sent to the states for ratification. Before he supported the abolition Thirteenth Amendment, Abraham Lincoln supported the pro-slavery thirteenth amendment which would have made slavery an unamendable part of our Constitution. Second, most students have studied Section One of the Fourteenth Amendment—it requires... Continue reading
Posted Apr 8, 2018 at
One of the great questions of the day is to ask why evangelicals and conservative Catholics continue to support Donald Trump. One of the answers is abortion, and accompanying that is the view that the pro life movement favors life until a baby is born. This misses the fact that millions of pro lifers do not support Donald Trump and that the traditional Catholic view supports social justice in ways that are too often not recognized. For a strong statement of this por life view, see these eloquent remarks of Sister Joan Chittister from an interview with Bill Moyers. Thanks to Nancy De Coster for posting this interview on facebook. Continue reading
Posted Apr 2, 2018 at
For many years many brokers and insurance agents were permitted to give investment advice to their clients without revealing that they had a conflict of interest with respect to the investments they were recommending. This practice was costing investors $17 billion dollars per year. See here. President Obama’s Labor Department ruled on April 6, 2016 (see here) that these brokers, insurance agents, and others could no longer engage in these shady practices, but had to put their client’s interests above their own. They could not recommend investments that were not in the client’s best interests and they had to reveal conflicts. See here. It is a sad commentary on the brazen corruption of big business that this rule has been fought against and delayed. How dare the Obama administration take away the right to hoodwink investors? After a considerable delay in the Obama administration, President Trump has done his best... Continue reading
Posted Mar 28, 2018 at
The House and Senate have just given the military its largest raise in 15 years. See here. Paul Ryan touted the raise as much needed. One wonders why. In 2017, the U.S. already spent more on defense than the next eight countries combined. That includes China, Russia, Saudia Arabia, India, France, UK, Japan, and Germany. See here. Are we really safer? Yes, we have increased salaries, but we have also lined the pockets of military contractors. One could be forgiven for believing that this increase is more about graft than security. Continue reading
Posted Mar 23, 2018 at
Attorney General Jeff Sessions’ war on the Constitution was carried to Sacramento as he made clear that his previous commitment to states rights was predominantly a manifestation of racism. If abandoning the rights of states harms people of color and furthers the racist brand of the President, so be it. In keeping with Sessions declaration of war, the Justice Department filed United States v. California which centers on three California policies. In this post, I will focus on the most important. California Senate Bill 54 took effect in January of this year. It largely prohibits state and local law enforcement agencies from using either personnel or funds to hold, question or share information about people with federal immigration agents unless those individuals have been convicted of one or more offenses from a list of 800 crime outlined in a 2013 state law. If the federal government can draft state and... Continue reading
Posted Mar 8, 2018 at
I sent an e-mail to Senator Graham this morning along with a different version to Senator Grassley Dear Senator Graham: As new evidence emerges about the scope of Donald Trump's attempts to obstruct justice and about his lack of competence, you seek to change the subject by making public your request for the Justice Department potentially to prosecute the author of a memorandum containing accusations against Donald Trump - the most serious of which have been verified. You did this without consulting any Democrat on your committee. This appears to be a cynical attempt to change the subject. In its groundless presentation, it creates an appearance of retaliation against a political enemy in violation of the rule of law. You have moved from being a Republican with some integrity to the status of lapdog. You should be ashamed. Continue reading
Posted Jan 6, 2018 at
Charlie, Fernando, and Jimbino: thanks for the comments. Charlie, we agree that the violation is a democratic one. I had Fed. 10 in mine when I referred to the constitutional plan. Fed. 10 is also relevant to the campaign finance issue. But I also would go further in claiming the violation also implicates the First Amendment. Fernando, I am not sure how you connect Trump to your comment. If the "militant left" would exclude pro-Trump speakers from public university campuses when those speakers would engage in speech that should be protected under the First Amendment, I would not concur the exclusion. If the exclusion is on a private campus, the First Amendment does not apply (though it's spirit could). One place where we disagree is that I would join the position of the Europeans and the Canadians in prohibiting some forms of racist speech (including some other protected classes)(though my definition might be narrower than that used in some European countries). By the way, do you think that the Canadians and Europeans who support hate speech are all part of the "militant left"? Jimbino, treating singles differently than marrieds (which has nothing to do with the First Amendment) is not the same as discriminating on the basis of point of view which clearly implicates First Amendment issues.
I specialize in the First Amendment, and friends observe that, in these times, I must be awfully busy. The assumption is that the First Amendment is in trouble during these horrible times. For the most part, I think this assumption is misplaced. Of course, it is proper to think that President Trump is an autocrat, has threatened the rule of law, and has little regard for the First Amendment. For the most part, however, I believe this has helped the First Amendment rather than harmed it. We are witnessing a time in which people are demonstrating and otherwise protesting government actions. We are witnessing a time in which the press is playing a critical role in exposing corruption and misconduct. Taken together the mass of citizens and the press are playing a more vital role than I have seen in my lifetime. Don’t get me wrong. There is a lot... Continue reading
Posted Jan 3, 2018 at