NY State Bar Report on AI - Artificial Intelligence use

“The New York State Bar Association has adopted guidelines for lawyers to use artificial intelligence without running afoul of attorney ethics rules, as organizations and courts continue to weigh the benefits and pitfalls of AI in the legal sector. Lawyers should take precautions to safeguard sensitive client information and protect confidentiality, and should not rely solely on information generated by AI and generative AI tools in client matters, a state bar AI task force urged in a new Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.” Read more comment by Reuters here.

Ten Recommendations by the New York State Bar Association Task force on AI:

Task Force Recommendations 

1. Adopt Guidelines: The Task Force recommends that NYSBA adopt the AI/Generative AI guidelines outlined in this report and commission a standing section or committee to oversee periodic updates to those guidelines. 

2. Focus on Education: The Task Force recommends that NYSBA prioritize education in addition to legislation, focusing on educating judges, lawyers, law students and regulators to understand the technology so that they can apply existing law to regulate it. 

3. Identify Risks for New Regulation: Legislatures and regulators should identify risks associated with the technology that are not addressed by existing laws, which will likely involve extensive hearings and studies involving experts in AI, and as needed, adopt regulations and legislation to address those risks. 

4. Examine the Function of the Law in AI Governance: The rapid advancement of AI prompts us to examine the function of the law as a governance tool. Some of the key functions of Page 10 of 85 the law in the AI context are: (i) expressing social values and reinforcing fundamental principles; (ii) protecting against risks to such values and principles; and (iii) stabilizing society and increasing legal certainty.

Toward a New Constitutional Politics - Aziz Rana - LPE Project

The treatment of the Constitution as scripture is a disabling feature in our law and politics.  Especially because the scripture is limited to the 1787 pre-industrial revolution first draft which sought to guarantee the disproportionate power of the slavers like Washington, Jefferson, and Madison, 

No one speaks of the drafters of the 13th, 14th, and 15th Amendments as founders.

- GWC

Toward a New Constitutional Politics - LPE Project

By Aziz Rana [Professor of law and government at Boston College.]

In recent years, the anti-democratic flaws of the U.S. Constitution have become increasingly apparent. Commentators now routinely worry over the system’s exaggerated checks on popular authority: the lopsided grant of power to certain states, an impassable constitutional amendment process, widespread voter disenfranchisement, and of course the dramatic control exercised by a tiny group of lifetime federal judges.

And yet, if you grew up in the United States around the turn of the twenty-first century, the dominant culture was that of almost religious textual devotion. Even Occupy Wall Street was launched on Constitution Day, September 17. One might well have assumed that the American constitutional system stood at the apex of liberal-democratic ideas. Given its manifest flaws, how did Americans come to idolize this document and what have been the political consequences of this reverence?

My new book, The Constitutional Bind, attempts to make sense of this striking tension in our collective life. It argues that the substance and implications of modern constitutional veneration have not been continuous since the founding. They are, instead, a distinctively twentieth century development. 

The Indian Ocean Slave Trade - with Prof. Bernard Freamon

 Bernard Freamon is author of Possessed by the Right Hand - a history to the present day of Islam and Slavery.

Stormy Daniels Trump trial: Why the legal arguments are stronger than I thought. by Mark Joseph Stern - SLATE

The elements of the offense with which Trump is  charged - falsification of business records are HERE.

Stormy Daniels Trump trial: Why the legal arguments are stronger than I thought.

By Michael Joseph Stern - SLATE

When Manhattan District Attorney Alvin Bragg brought criminal charges against Donald Trump in 2023, I was highly skeptical of his decision. It seemed at the time that other indictments would soon follow, and that they would rest on far firmer legal ground than this one. Over the past year, though, I have realized that my initial doubts about Bragg’s indictment were misplaced. It now seems clear that Trump’s New York trial, slated to begin this week, will be the former president’s only criminal trial before the November election. 

The other three strong indictments against him in other jurisdictions have unfortunately been delayed by a corrupt judge, a foot-dragging Supreme Court, and a district attorney’s questionable conduct in an already complex case. This, combined with Bragg’s excellent pretrial briefing, has substantially strengthened the case for this prosecution. It is important to American democracy that Trump be forced to defend at least some of his alleged criminal conduct before a jury of his peers in advance of Election Day. And there is no reason why this shouldn’t be the case in which he’s compelled to do it. I am now fully onboard.

The NY Trump prosecution.- elements of the offense

 

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

 New York Consolidated Laws, Penal Law - PEN § 175.10 Falsifying business records in the first degree

Current as of January 01, 2021 | Updated by FindLaw Staff

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Falsifying business records in the first degree is a class E felony.

Trump is Not Immune from Prosecution - Jack Smith - Special Counsel

 

The United States Supreme Court will soon hear argument in a case in which it has granted a petition for review pre-trial.  Case, No. 23-393 is United States v. Donald J., Trump, prosecution  for charges arising from his role in the attempted obstruction of the lawful transfer of power after he lost the 2020 Presidential election.

On February 6, 2024, in his application to the Supreme Court for a stay of trial, posed two questions for the Court:

The questions presented are: I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)). II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges. 

The Court granted the stay but reframed the questions  presented as:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

In his Brief for the United States To this the Special Counsel Jack Smith has a plain answer:  

I. A former President lacks immunity from federal criminal prosecution for official acts during his presidency  
A. A claim of absolute criminal immunity for a
former President’s official acts violates
established separation-of-powers principles
B. History supports the conclusion that former
Presidents are subject to prosecution for official
acts.

The Court earlier this year declined a request by Smith to rule quickly on the issue. but the Court ordered that the District of Columbia Circuit Court of Appeals first rule on the issues.  The Court did.  This appeal by Trump followed.  the delay i consequential.  A decision is unlikely until the end of June, making trial and judgment before the November election doubtful.  Should Trump be re-elected he could order dismissal of all charges by the Attorney General whom he appoints.

- GWC 4/11/24

Trump is not immune_DavidBoyle amicus

20240321205032155_23-939_tsac_DavidBoyle.pdf

After Courts: Democratizing Statutory Law by Ryan Doerfler, Samuel Moyn :: SSRN

The latest in a line of articles opposing judicial aggrandizement, the imperial judiciary, etc..

- GWC

 

After Courts: Democratizing Statutory Law

Michigan Law Review, Forthcoming

70 Pages Posted:

Ryan Doerfler

Harvard Law School

Samuel Moyn

Yale University

Date Written: April 7, 2024

Abstract

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent massive power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every Term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rule-making and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article completes our proposal to disempower courts exercising lawmaking authority—including when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to though not identical with the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but in the long term, a fuller rethinking our desirable institutional plan of legal interpretation beckons. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control.

Suggested Citation:

Doerfler, Ryan and Moyn, Samuel, After Courts: Democratizing Statutory Law (April 7, 2024). Michigan Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=

History, Tradition, and the Designated Hitter Rule - Eric Segall // Dorf on Law

History, Tradition, and the Designated Hitter Rule // 

By Eric Segall

****Professor Solum, along with Professor Randy Barnett, has also commented on the role of history and tradition in some of the Court's recent cases. These two well-known academic originalists wrote an article titled "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." 

Their article begins by saying that "in three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court." Not surprisingly, these two originalists concluded the following about history and tradition (the article is sophisticated and provocative but is not the direct subject of this post, hence the leap to the conclusion):

In this Article, we have argued for an originalist approach to history and tradition. History and tradition are essential elements in the originalist toolkit: no originalist should leave home without them. But originalists should be wary of the use of history and tradition by non-originalists, whether they be Progressive or Conservative Constitutional Pluralists. An originalist embrace of history and tradition that is inconsistent with the original public meaning of the constitutional text would undermine originalism itself and sacrifice the rule of law, the separation of powers, and popular sovereignty on the altar of pragmatism and political expediency. Our message is simple: “Originalists, don’t go there!”

Not only should originalists not go there (a strong version of traditionalism) but no one else should either because a tradition-focused approach to constitutional interpretation provides little guidance to judges and lets them hide their implicit value judgments and ideologies behind centuries of disputed practices, customs, and traditions (or the absence thereof). How long does something have to last to be a tradition? How widespread does the tradition have to be? Is rejection of  practices something judges should take strong notice of when examining the role of history and tradition? What if a long tradition is viewed as pernicious by large segments of minority populations? There are no good answers to any of these questions.

Here is a hypothetical to demonstrate these problems....

Demand the Impossible - One Lawyer's pursuit of equal justice for all

 

A conversation with legendary capital punishment defender Stephen Bright, with Robert Tsai - author of a biography of the passionate lawyer.

Bishop Gumbleton, longtime soul of the US Catholic peace movement, dies | National Catholic Reporter

Bishop Gumbleton, longtime soul of the US Catholic peace movement, dies | National Catholic Reporter

Bishop Thomas Gumbleton, the Detroit prelate who for many American Catholics defined faith-based social justice activism in the post-Vatican II church, died April 4. He was 94.

Described sometimes as the pastor of the Catholic peace and justice movement, Gumbleton lived in Detroit nearly his entire life, yet his influence was felt in far-flung places such as El Salvador, Haiti, Vietnam, Iran and Iraq. 

He was a founding member of both Pax Christi USA, the national arm of the international Catholic peace movement, and Bread for the World, an advocacy organization seeking to end world hunger.

"To put it most succinctly, Tom lived out the peace of Christ in his complete being," said Johnny Zokovitch, Pax Christi USA's executive director, shortly after the bishop's death. "Everything that our movement strives to be was evident in Tom and how Tom lived."

Immaculate Heart of Mary Sr. Irene Therese Gumbleton, the last living of nine Gumbleton siblings, said her brother passed away at a hospital in Dearborn, Michigan, following physical decline over the past week. "It means a lot to us that we've lost him," she told NCR by phone. "I think the church is really going to miss him."

Jeffrey Clark’s bid to aid Trump election scheme violated attorney rules, DC Bar panel finds - POLITICO

Jeffrey Clark’s bid to aid Trump election scheme violated attorney rules, DC Bar panel finds - POLITICO

Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition by Lawrence B. Solum, Randy E. Barnett :: SSRN

Randy Barnett was the originator of the concept that nearly killed the affordable care act: that liberty prohibited compelling someone to buy insurance.  Such an argument from history led to a profoundly harmful result.  But John Roberts saved the day by finding the so-called individual mandate to be permissible under the taxing power.

Then in The Original Meaning of the 14th Amendment Barnett with Evan Bernick celebrated a letter by Justice Joseph Bradley to a District Judge embracing an understanding of the 14th Amendment that did NOT have the state action requirement.  So a state's failure to protect rights was as actionable as an affirmative measure.  The implications are profound and surprising from such a prominent conservative/libertarian voice.  - GWC

Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition

118 Northwestern University Law Review 433 (2023)

62 Pages Posted: 27 Jan 2023 Last revised: 11 Oct 2023

Lawrence B. Solum

University of Virginia School of Law

Randy E. Barnett

Georgetown University Law Center

Date Written: October 7, 2023

Abstract

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play:

 (1) as evidence of original meaning and purpose, 

(2) as modalities of constitutional argument within a constitutional pluralism framework, 

(3) as a novel constitutional theory, which we call “historical traditionalism,” and 

(4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Former Trump Lawyer John Eastman Should Be Disbarred, California Judge Rules - Democracy Docket

John Eastman, left, addresses the crowd at the 

January 6, 2021 rally preceding the assault on

the United States Capitol

Former Trump lawyer John Eastman - then the Dean of Chapman University School of Law - is now listed as not eligible to practice in his home state of California.

He awaits trial in Georgia where he is charged for his role in trying to obstruct the lawful transfer of power after the 2020 Presidential election. 

The California State Bar Court Judge Yvette D. Rowland recommends disbarment in her 128 page opinion and order.  .  She has ordered Eastman to be suspended from the practice of law pending final review by the state's Supreme Court.  He is also ordered to pay $10,000 in fines. The thrust of the findings is stated by the Judge:

Even after courts in key states authoritatively rejected unsupported allegations of outcome-determinative fraud in the election, Eastman persisted in proposing a legally unsustainable strategy. From November 2020 forward, as his many legal challenges failed, Eastman substantively advanced the false narrative that widespread fraud had tainted the election, and that Vice President Pence possessed the power to contravene the constitutional electoral process. His demonstrated intent was to foment loss of public confidence in the integrity of the 2020 election and persuade Vice President Pence to refuse to count or delay the counting of electoral votes on January 6.

Most of his misconduct occurred squarely within the course and scope of Eastman’s representation of President Trump and culminated with a shared plan to obstruct the lawful function of the government. While attorneys have a duty to advocate zealously ee RPC for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support.

Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system. 

It is important to note that the purpose of suspension and disbarment is not punishment.  Rather the purpose is to protect the public, not to punish the delinquent lawyer.  That purpose is set forth in Comment [8] of the Preamble to the ABA's Model Rules of Professional Conduct which calls for "zealous" representation.

[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. 

- GWC

Former Trump Lawyer John Eastman Should Be Disbarred, California Judge Rules - Democracy Docket

WASHINGTON, D.C. — A judge in California ruled on March 27 that John Eastman, former President Donald Trump’s attorney in 2020 and the chief architect of the insurrection on the Capitol, should be disbarred for his involvement in Trump’s coordinated attempt to overturn the results of the 2020 presidential election. On April 7, Eastman’s official status with the State Bar of California was updated to “not eligible to practice law.”

In the 128-page ruling from the State Bar Court of California, Eastman was charged with one count of “failing to support the Constitution and laws of the United States,” two counts of “seeking to mislead a court,” six counts of “moral turpitude by making various misrepresentations” and finally, two counts of “moral turpitude.”

Eastman faced 11 charges from the California State Bar over his myriad legal efforts to help Trump overturn the election results. Those charges stemmed from two memos he sent — one on Dec. 23, 2020 and another on Jan. 4, 2021 — presented ways in which Trump could stay in the White House. The second one Eastman sent, a notorious six-page memo, outlined how Trump could stay in the White House by persuading Vice President Mike Pence to throw out the electoral votes for Joe Biden in seven key states and instead cast them for Trump. 

Eastman’s memo hinged, in part, on the fringe right-wing legal theory called the independent legislature theory (ISL) that interprets the word “legislature” to mean that only the legislature can set the rules for federal elections, including how presidential electors are chosen. 

Eastman sent the memo on Jan. 4, 2021 — just two days before the deadly attack on the U.S. Capitol by Trump supporters who were trying to thwart the certification of the election. Eastman spoke at the Jan. 6 rally near the White House that preceded the attack where he asserted, without evidence, that voter fraud helped Biden win the election. 

“They were unloading the ballots from that secret folder, matching them, matching them to the unvoted voter, and voilà, we have enough votes to barely get over the finish line,” Eastman said at the rally. “We saw it happen in real time last night and it happened on Nov. 3rd as well.” 

During the attack, Greg Jacob, Pence’s chief counsel, sent an email to Eastman that said, “Thanks to your bullshit, we are now under siege.” In the subsequent congressional investigation into Jan. 6, Jacob testified that he told Trump his plan would violate the Electoral Count Act and wrote in an email to fellow Trump lawyer Rudy Giuliani that he should be on a “pardon list.”

The Dec. 23 two-page memo outlined a plan to keep Trump in office alleging false evidence of election fraud. Eastman allegedly devised this plan even after multiple lawsuits in numerous states found no credible evidence of fraud that would affect the outcome of the election. The California State Bar’s decision to disbar Eastman stems from the plan formulated in the Dec. 23 memo.

In the time since the California State Bar charged Eastman, he’s remained active in legal matters elsewhere. In August of 2023, Eastman represented the Colorado Republican Party in a lawsuit attempting to bar unaffiliated voters from participating in the state’s 2024 Republican primary — a lawsuit that could have disenfranchised nearly two million voters. 

The California court recommended that Eastman not only be disbarred but have to pay “monetary sanctions” for his actions. The judge ruled that he should pay $10,000 for “making numerous false and misleading statements regarding the conduct of the 2020 presidential election and Vice President Pence’s authority to refuse to count or delay counting properly certified slates of electoral votes and for his collaborative efforts with President Trump to impede the counting of electoral votes.”

Eastman’s disbarment takes effect three days from the date of the order, according to the judge’s ruling. 

Read the California Bar’s 11 charges against Eastman here. 

Gag order - Trump, by Judge Merchan, NY, NY

New York Supreme Court

Justice Juan M. Merchan

Because the United States Supreme Court has stayed trial in the most important charge arising from the January 6, 2021 attempt to retain power despite losing the Presidential election Donald Trump is likely to first face criminal charges in New York.  The charges there arise from his attempts as a candidate to buy silence regarding his involvement with the porn actress whose stage name is Stormy Daniels.

The Sixth Amendment to the United States Constitution was ratified on December 15, 1791. It guarantees the rights of criminal defendants, including the right to:

• A speedy and public trial by an impartial jury
•  To confront witnesses against the accused

Because Donald Trump's rhetoric poses a threat to jurors and witnesses, as well as to lawyers and prosecutors and family New York Supreme Court trial judge Juan M. Merchan has issued a four page "gag order", enforceable by  contempt of court,  which order seeks to prevent Donald Trump from disparaging or threatening jurors, court officials and others

ORDERED, that the People's motion for clarification is GRANTED. '

I'he Court's Order of March 26,2024,did not contemplate the family members of this Court or of the District Attorney. It is therefore not necessary for this Court to determine -whether the statements were intended to materially interfere with these proceedings; and it is further ORDERED, 

that the Court's Order of March 26, 2024, is amended as indicated below. Defendant is directed to refrain from:

Making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding; Making or directing others to make public statements about 

(1) counsel in the case other than the District Attorney, 

(2) members of the court's staff and the District Attorney's staff, or 

(3) the family members of any counsel, staff member, the Court or the District Attorney, if those statements are made with the intent to materially, interfere with, or to cause others to materially interfere with, counsel's or staff's work in this criminal case, or with the knowledge that such interference is likely to result; and making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding. 

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron and More by Jack Michael Beermann :: SSRN

 

"The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron and More"  William & Mary Law Review, Forthcoming Boston Univ. School of Law Research Paper No. 4383132 JACK MICHAEL BEERMANN, Boston University School of Law Email: beermann@bu.edu The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. In periods of governmental innovation and assertions of expanded authority, this aggression becomes evident and perhaps more robust. In recent years, the Court has created new barriers to government innovation even as government is confronted with serious threats to the health and welfare of mankind. Chief among this new set of limitations on the power of federal administrative agencies is an interpretive device that has become known as the Major Questions Doctrine. This doctrine purports to be based on a view of legislative intent and judicial role that, but in reality it resonates more with conservative anti-regulatory political views. Under this new doctrine, the Court rejects agency assertions of regulatory authority when it finds that the agency’s action would have major social and economic affects and lacks crystal-clear congressional authorization. Ironically, because the MQD has no basis in the Administrative Procedure Act or prior law, the Court has in effect created a major new doctrine of administrative law severely limiting agency authority without clear authorization from Congress. The Court has also suppressed agency innovation by confining Chevron deference to unimportant issues of statutory construction. Chevron, for all of its faults, has the virtue of validating agency policy innovation so long as Congress had not clearly denied agency authority. This reform to Chevron, together with the creation and application of the Major Questions Doctrine, in effect accomplishes the aim of some Justices to impose a more robust nondelegation doctrine, making agency innovation even more difficult. In addition, the Court has worked to prevent innovation in other areas of law, such as gun control and the spending power, preventing the state and federal governments from taking action to deal with pressing social problems. The current court has truly become an anti-innovation Court.

Clarity Doctrines in law - Richard M. RE

 

Clarity Doctrines

86 University of Chicago Law Review 1497

UCLA School of Law, Public Law Research Paper No. 19-06

66 Pages Posted: 8 Feb 2019 Last revised: 9 Oct 2019

Richard M. Re

University of Virginia School of Law

Date Written: January 31, 2019

Abstract

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge on a given answer. Each of these two sorts of reasons gives rise to a model form of legal clarity with its own strengths and difficulties. More generally, debates about what type and degree of clarity to require often reflect implicit disagreements about the relevant clarity doctrine’s goals. So by challenging a doctrine’s accepted purposes, reformers can justify changes in clarity doctrines. To show as much, this article discusses a series of clarity doctrines and illuminates several underappreciated avenues for reform, particularly as to federal habeas corpus, Chevron, qualified immunity, constitutional avoidance, and the rule of lenity. Finally, this article acknowledges, but also discusses ways of mitigating, several anxieties about clarity doctrines, including worries that major clarity doctrines are too pluralistic, malleable, or awkward.

Suggested Citation:

Re, Richard M., Clarity Doctrines (January 31, 2019). 86 University of Chicago Law Review 1497, UCLA School of Law, Public Law Research Paper No. 19-06, Available at SSRN: https://ssrn.com/abstract=3327038

Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law by Jed H. Shugerman, Jodi L. Short :: SSRN

 The hardest question for lawyers thinking about the Supreme Court of the U..S. today is whether reason plays any role: is it entirely driven by a quiver of doctrines selected to justify the right wing cause du jour. IOW - is there really a search for law that can withstand changes in partisan alignments?

In my now fifty year career as a New Jersey lawyer the ideological range on the high and appellate courts has been center left to center right.  So though we had some profound differences of consequence (e.g. death penalty; recently the Supreme Court's abandonment of its groundbreaking history in products liability)  we were within reach of each other - we understood "where each was coming from) the ideological divides and fought within a reasonably narrow range.

But at least since the rise of Newt Gingrich and the "Contract with America" Republican party hostility to government has driven almost all - except for devotion to the police (but not the police power) and the military spending that finances the otherwise generally lagging economies of its base.  That ideological thrust has been aptly characterized as "racialized anti-statism" by Jefferson Cowrie in his Pulitzer Prize winning Freedom's Dominion.

Jed Shugerman and Jodi Short take on the present manifestation of the schizophrenia on the right: apotheosis of Presidential power and detestation of the Rooseveltian administrative state.  Both sides of the ideological coin share an antipathy to social democracy.

- GWC

Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law  SSRN

UC San Francisco Research Paper Forthcoming

Boston Univ. School of Law Research Paper No. 4531721

64 Pages Posted: 8 Aug 2023 Last revised: 4 Mar 2024

Jed H. Shugerman

Boston University - School of Law

Jodi L. Short

UC Law, San Francisco

Date Written: August 4, 2023

Abstract

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”

Meanwhile, each of the policies in dispute in the Major Questions cases over the past three decades are the product of the “directly accountable president” and the “chain of dependence” in action. This Article documents seven MQD cases, from 1990s tobacco regulation to the recent student debt waiver: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power. The erasure of presidents serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the president who ordered the policy accountable for overstepping the separation of powers. The erasure also suggests the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: relying on a theory of presidential accountability, but then retreating from holding presidents accountable; unaccountable judges expanding judicial power based on a narrative of “unaccountable bureaucrats.”

The rule of law requires consistent reasoning. We suggest five doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its Major Questions’ erasures of presidents: 1) SEC v. Jarkesy on the removal of administrative law judges; 2) future MQD cases crediting or blaming presidents; 3) the applicability of MQD to presidents; 4) the future of Chevron deference; and 5) in applying the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are for judicial restraint and of acknowledging the costs of direct presidential power, not just the benefits.

Suggested Citation:

Shugerman, Jed H. and Short, Jodi L., Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law (August 4, 2023). UC San Francisco Research Paper Forthcoming, Boston Univ. School of Law Research Paper No. 4531721, Available at SSRN: https://ssrn.com/abstract=4531721 or http://dx.doi.org/10.2139/ssrn.4531721

Enforcement Act 1866 - draftw

 

“The tenant agrees not to permit the premises to be used or occupied by any person other than members of the Caucasian race, but the employment and maintenance of other than Caucasian domestic servants shall be permitted.” —Levittown Corporation Lease (1948)

 

The same language was incorporated into the deeds of the 17,000 houses built by the Levitt family in Levittown and abutting East Meadow.
Those homes - $7,000 when my parents - both Navy vets bought via a VA insured, zero points mortgage - sold forty years later for ten times that.
Only Caucasians gained such equity.  Levitt - who was Jewish - thought Jews and Christians should not mix, but deemed Jews to be honorary Caucasians.
Anyone of African descent - slave, freeman, or immigrant - was barred from purchase or residency.
The Enforcement Act of 1866 was a broad prohibition of ethnic discrimination.  It provided, in relevant part:
>

> citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.

  Passed under the 13th Amendment, it was a dead letter until Jones v. Alfred Mayer Co. in 1965.  It survives in substantial part as 42 USC 1982.

The 14th Amendment was designed to bind the reconstructed states to the same principles.  But in 1875 Joseph Bradley, a New Jersey railroad lawyer elevated to the Supreme Court, sitting as a Circuit judge overturned the murder convictions of a dozen men who as part of a white militia murdered 120 African American men defending the Colfax, Louisiana Courthouse.  The convictions were set aside on the grounds that such crimes committed by private persons were beyond the reach of the 14th Amendment.  Thus was born the state action doctrine.

That was quite a surprise because Bradley had in 1871 personally advised then District Judge Samuel Miller (later an Associate Justice) that:
>>

>> the XIVth amendment not only prohibits the making or enforcing of  laws which shall abridge the privileges of the citizen; but prohibits the states > from denying to all persons within its jurisdiction the equal protection of > the laws. Denying includes inaction as well as action. And denying the > equal protection of the laws includes the omission to protect, as well as  the omission to pass laws for protection.

But when the Cruikshank cases got to the full Supreme Court the state action  requirement was embraced. Convictions were reversed on the ground that the
United States' jurisdiction did not extend to such local crimes.    See James Gray Pope - Snubbed Landmark.   

Not until the Emmett Till Act, passed two years ago did the national government have explicit authority to punish racially or otherwise discriminatorily motivated crimes of violence.  But even there the government must prove some interstate element such as crossing state lines.

So where are we now?  Clarence Thomas, in Missouri v. Jenkins  finds that  "a]s with any inherent judicial power, however, we ought to be reluctant to approve its aggressive or extravagant use, and instead we should exercise it in a manner consistent with our history and traditions."    He renounces " extravagant uses of judicial power that] are at odds with the history and tradition of the equity power and the Framers' design. The available historical records suggest that the Framers did not intend federal equitable remedies to reach as broadly as we have permitted."

So as Jim pointed out  the statute of limitations is short.  But the Court's memory is long - as the majority binds itself to the inventions of the founding generation which accommodated itself to the

system of chattel slavery.  Must we do the same?