The website now shows “website is under maintenance” where it once showed an article written by Rabea Eghbariah, a Palestinian human rights lawyer and a doctoral candidate at Harvard entitled Toward Nabka As A Legal Concept. According to the New York Times, the law review’s Board of Directors has issues.

In a statement, the board of directors, which consists of faculty members and alumni, said it had decided to suspend the website on Monday after learning two days earlier that not all of the students on the Law Review had read the essay before publication. Continue reading →

Ilya Somin argues that President Joe Biden’s proclamation on securing the border is likely ultra vires, and will eventually be struck down. The ACLU has already announced that it’s taking it to court, because it involves one of its favored groups, so of course it is. And they will likely prevail, eventually. But in the meantime, there is a crisis at the southern border, an influx of immigrants that the United States lacks the resources and infrastructure to absorb. Something must be done.

There’s no denying that the executive order President Biden signed on Tuesday — significantly curtailing the number of asylum seekers allowed into the country — is a head-spinning reversal for a president who promised to undo Donald Trump’s policies at the border. It’s worth remembering that Biden wasn’t alone on that front. Eight out of 10 Democrats running in the presidential primaries said in 2019 that they would make walking across the border without permission a civil infraction, like a traffic ticket, instead of a criminal offense.

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As a Class E non-violent felony, conviction for the crime of Falsifying Business Records in the First Degree is subject to a range of punishment, from probation to a term of imprisonment, the maximum of which is an indeterminate sentence of 1 1/3 to 4 years.

Within the sentencing parameters, there are many variations, such as a split sentence involving part incarceration and the balance probation, and conditions such as home or weekend detention, curfews and ankle monitors. Continue reading →

After the stunning implosion of a sweet plea deal that, all things being equal, should never have been allowed to escape the grasp of the defense, Hunter Biden is going to trial. You remember Hunter Biden, whose conduct was denied and pooh-poohed when initially raised, another fabricated conspiracy theory of the right crafted as disinformation to harm his father, which turned out to be not merely true, but damning?

Last September, a federal grand jury charged Mr. Biden with three felonies: lying to a federally licensed gun dealer, making a false claim on the federal firearms application used to screen applicants and possessing an illegally obtained gun for 11 days, from Oct. 12 to Oct. 23, 2018. Continue reading →

Like many of us who found the legal theory upon which the New York County “hush money” indictment of Trump problematic, former prosecutor turned prawf Randall Eliason had his doubts.

The New York courts appear to be mixed on this question and there is no definitive ruling from the state’s highest court. If Bragg’s theory is that the false entries were part of a scheme to defraud an agency such as the New York State Board of Elections, then a court might apply this broader definition. If his theory is that it was a scheme to deceive the voters, I think a court is likely to hold that does not constitute fraud. (Part of the problem, as I discuss below, is that we don’t know exactly what Bragg’s legal theory is.)

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The COVID-19 pandemic severely harmed schoolchildren in ways we’re only beginning to fully understand. Loss of instruction time, socialization and structure have repeatedly shown in the past four years to have negatively affected everything from reading comprehension to basic speech. Some states brushed away the problems by abolishing tests and declaring subjects like math racist. My home state of Tennessee, not to be outdone in acts of legislative stupidity, decided to base all of third grade on one pass/fail test.

The Tennessee Learning Loss Remediation and Student Acceleration Act updated the state’s third grade retention requirements and requires intervention for some students before they can be promoted to fourth grade. Starting in the 2022-23 school year, third grade students who score “below expectations” or “approaching expectations” on the third grade ELA TCAP shall not be promoted to the fourth grade unless they meet the requirements.

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There are a few decisions which, by law, are left entirely to the defendant. Whether to plead guilty. Whether to testify. But trial strategy is the lawyers’ domain. And with any other defendant, there is a good chance that the lawyers defending Donald Trump could have mustered a defense that would have sufficiently countered the prosecution’s narrative to get an acquittal, or at least a hung jury. Even with the defense provided, there were serious doubts whether the jury would find the defendant guilty. It did.

The defendant blamed the corrupt judge and rigged trial. He called it a disgrace, over and over.  He lied about his ability to defend himself, claiming the gag order prevented it when the choice was his whether to testify. Of course, testifying would have been critical if he wanted to claim innocence, but then he would have been subject to cross. There is no one who believes he would have done well on cross. Continue reading →

Congressman Jamie Raskin of Maryland has cred that few others in Congress can match, as he was a con law prawf at American University for 25 years before he won office. He must know things, right? So when Raskin opines on the Constitution, people take him seriously. And Rep. Raskin says that the generally-accepted-view that there is nothing to be done about Congress imposing an ethics code on the Supreme Court is wrong.

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.

Okay, this doesn’t reflect a rational argument in opposition, but it was a nifty turn of phrase. Raskin goes on.

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.

In other words, they can ask the other justices on the Supreme Court to . . . do something? Granted, there is a strong due process component to having a fair and impartial justice sit in judgment, but that doesn’t mean that one group of justices has any authority to tell another that they’re off the case. There is obviously no process for such a petition, although that doesn’t preclude the attorney general from making up his own form of petition and having it sent over  to the Court. The problem is what would the justices do with it when it got there?

As for 28 USC § 455, relating to the disqualification of judges and justices when their impartiality can reasonably be questions, Raskin makes a strong case that it’s applicable on its terms to the Supreme Court, since there are no justices to be found elsewhere in the federal judiciary. Where the argument unravels, however, is that he neglects to take note of the fact that the judicial branch of government, consisting of the Supreme Court and whatever lower courts Congress may create, is co-equal to Congress.

The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges[.]

See how he tries to shoe-horn “federal laws under it” into the mix, as if laws enacted by Congress are the same thing as the Constitution. Laws carry weight as to pretty much everyone in government, but they do not enable one branch of government to tie the hands of another.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.

Curiously, Raskin argues the a co-equal branch of government would “trespass on the constitutional separation of powers” by not subjecting itself to Congress’ command. While Congress is not without the power to affect the Court, whether by paying salaries to justices, determining the number of justices to sit on the Court (the Constitution only requires a Chief Justice, without any particular number of associate justices), or respecting the Supreme Court’s authority to determine whether its “commands” are constitutional or not, nowhere in the Constitution does it state that Congress gets to command whether another constitutional officer is empowered to perform his constitutional duty.

Even if there were a mandate requiring Supreme Court justices to adhere to a Code of Ethics, which no reasonable person could argue against since no one wants an unethical justice sitting on the Court, there remains the ancillary problem of how it could happen, there being no mechanism by which to charge, investigate and determine whether an ethical lapse occurred. But that is downstream from the solution argued by Raskin, that whether a justice is ethical or not, violates due process by lacking impartiality or not, it is not Congress’ “command” that matters, save for one instance.

If representatives in the House decide that a justice has gone rogue, the Constitution provides for a remedy. Impeachment. Beyond that, Raskin’s cred as a former con law prawf isn’t good enough to carry his argument up the hill.

From the safety and comfort of a tent on a college quad, it’s easy to argue ad nauseam about the horrors of war and why they shouldn’t happen. And it’s similarly easy to do the same from the oval office and halls of Congress. Brett Stephens argues that it’s the reason America has  in the past 50 years gone from the winner of wars to loser.

But what about wars that are existential?

We know how America fought such wars. During the siege of Vicksburg in 1863, hunger “yielded to starvation as dogs, cats, and even rats vanished from the city,” Ron Chernow noted in his biography of Ulysses Grant. The Union did not send food convoys to relieve the suffering of innocent Southerners. Continue reading →

At Volokh Conspiracy, Orin Kerr raises an interesting point about what he calls “meaning assignment.” For years, I’ve challenged the morphing of definitions, from rape to sex, from what were once clearly defined words into vagaries that enable everyone to claim their own idiosyncratic definition. It makes communication rather difficult when we use the same words but either use our personal definition or untether them from any cogent definition. For many, vibes have replaced meaning, and even if they can’t quite offer a definition for their use of a word, they can justify their use by what they claim to be its vibe. Who can argue against a vibe?

But Orin questions the opposite direction, whether others assigning meaning to a word or phrase somehow imputes that meaning to its speaker. Forget Humpty Dumpty, and consider whether the listener is master rather than the speaker. Continue reading →