The sixth Democratic debate drew just over 6 million viewers, the lowest number so far. This isn’t surprising, as the debates have been largely unremarkable and disinteresting, not very debate-like outside of insipid zingers, and so even the most passionate Democratic party adherent struggles to find a reason to squander a few hours of her life listening to childish squabbling in an effort to catch fire and emerge from the crowd as a winner.

But this debate offered an attack of some interest against the youngest, and gayest* of the candidates, Mayor Pete Buttigieg. By shifting from left to more rational, the 37-year-old third-class city mayor has gotten traction, causing the socialists no end of angst. And they went after him for fund-raising in a . . . wine cave.

To reach the wine cave that set off a firestorm in this week’s Democratic presidential debate, visitors must navigate a hillside shrouded in mossy oak trees and walk down a brick-and-limestone hallway lined with wine barrels. Inside the room, a strikingly long table made of wood and onyx sits below a raindrop chandelier with 1,500 Swarovski crystals.

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The 1619 Project was an ambitious effort to rewrite the history of the American Revolution. America’s birth, we’ve been taught, was from a revolution against the tyranny of King George III. It was a battle against oppression of the colonies, and a fight for which we could be proud. Granted, it’s a bit rosy and whitewashed, but we won the war and get to write its history.

But the 1619 Project told a different story, that our revolution’s primary purpose was to perpetuate slavery and we are a nation born of racism. We should be guilty. We should feel disgust toward our nation and recognize that its existence is a disgrace. The purpose of the 1619 Project is to rewrite the history taught to our children so that they believe America to stand not as a shining beacon of democracy, but as a disgrace, an affront to equality.

Except historians took issue, not with the concerns of racism and slavery, but with the facts. Continue reading →

Here again are some unsolicited opinions, offered by a likely unqualified random person on the internet whom no sane person should take seriously. Unless you agree with me.

Here’s a fun thing to try this year. Instead of cookies and milk, have your kids leave a flight of beer and a pizza for Santa. You know what the jolly old elf really wants, and it’s not sugar and dairy.

One book I’d like to read next year is “We Fucked Up: An Extensive Apology Of Everything Bad We’ve Done” by Kamala Harris and Kirsten Gilibrand. Of course it’ll never get written, but a man can dream, can’t he?

Bumper stickers and decals are getting out of hand. You’re allowed two bumper stickers and one window decal. Points are deducted if a bumper sticker is from a failed politician’s campaign. Continue reading →

In an intramural tiff, Harvard prawfs Larry Tribe and Noah Feldman have taken to the twitters.

How is it mistaken, @tribelaw? Since you wrote a great book about it, you surely agree and know that the core of impeachment is and has always been presenting the articles of impeachment in the Senate (or House of Lords in England) and prosecuting the charges.

— Noah Feldman (@NoahRFeldman) December 20, 2019

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This isn’t a condemnation of anyone by race or gender, but a condemnation of how the narrative of identity politics is used to manipulate the emotions of the unduly passionate to achieve outrage when they’re supposed to, and yawns when they’re not. Because this, in another world, would rightfully evoke outrage.

“F—ing Hispanics! Go back to your country!” the [person] seethed as she attacked the 54-year-old victim on a Manhattan-bound No. 2 train at about 4:15 a.m. Tuesday, cops said. “You come here to take our jobs!” she railed.

The person was female. The person was black. The person was, it’s alleged, drunk and very, very angry. Continue reading →

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article I, Section 3, Clauses 6 and 7 of the Constitution

I have a special interest, albeit purely academic,[i] in the trial of the impeachment of President Trump.[ii] Most particularly, I will be fascinated to see whether the Senators argue about the burden of proof. And, if they do, I will be fascinated in the outcome. In this post, I make a prediction.[iii] So, if you are interested, read on. Continue reading →

I was maybe five years out of law school when I first became a small claims court arbitrator in Manhattan. It was one of my pro bono activities, once or twice a month, usually Thursday evenings, going over to 111 Centre Street, using the judges’ elevator in the back, and hanging out with my buds, the small claims court officers and Joe Gebbia, the chief clerk, with whom I would usually get dinner later in Chinatown. Joe was always kind enough to let me pay. It was his superpower.

The jurisdiction of small claims court at the time was $3,000. so that was the most an arbitrator could award. We had no authority to do anything beyond issuing a monetary award, and the legal basis upon which we ruled was, by statute, “substantial justice.” Beyond that, we were largely left to our own devices. Continue reading →

It started with New York County District Attorney sending Governor Andy Cuomo a letter in order to cover his butt. That’s where it was first called a “loophole.”

“Under current law, a voluntarily intoxicated individual is not considered ‘mentally incapacitated,’” the letter reads. “Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent, even if a reasonable person would have understood that victim was incapacitated.”

This is kind of tricky to follow, as it conflates two separate things: first, if it’s involuntary, such as a person forcing another person to become drugged or intoxicated, then the intoxicated person is not responsible for her condition. The second is that being drunk is not the same as being incapacitated. One can be incapacitated by being drunk, or being drugged, but the key to the law is being incapacitated. Drunk, alone, doesn’t do it.

But Cy called it a “loophole,” which by definition means it’s a law working the way it was intended and someone doesn’t like the outcome. So Andy is going to fix it. Continue reading →

There were two apparent possibilities as the House Democrats decided to pursue Articles of Impeachment. Either they would muster sufficient evidence to convince enough of the American public to support impeachment that Republican senators would feel confident enough that they could find Trump guilty and vote to remove him and be re-elected, or the evidence would sufficiently damage Trump to impair his re-election.

It appears that neither has come to pass, if polls are any indication. Whether the evidence just didn’t do the trick, or people are so stuck in their positions, or they just don’t care anymore as they’re exhausted by the three years of ceaseless outrage, the numbers haven’t really moved.

It’s not that voting for Articles of Impeachment isn’t the right thing to do for no better reason than Trump’s conduct warrants impeachment and it’s an act of principle, even if in vain. But the calculus has now shifted: what happens after the articles are voted? Senate Majority Leader Mitch McConnell has announced that it’s dead in the Senate, and has rejected Minority Leader Chuck Schumer’s attempt to have John Bolton and Mick Mulvaney called as witnesses. Continue reading →

Head of house? It’s not that the name given to the House Master at residential colleges within elite Ivy League schools had anything to do with southern plantations or slaves, but the word. That word. It was the same word, even if it came from Oxford Dons rather than Jefferson Davis.

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

Those words were written by Lewis Carroll, which was a pseudonym for Charles Lutwidge Dodgson. Guess what his day job was? Exactly, an Oxford Don. Coincidence? Continue reading →