Myth: Yale Law School is a Liberal Bastion

Let’s question the myth that universities are bubbles where only liberal thought is given credence.

Brett Kavanaugh has two degrees from Yale—a baccalaureate and a law degree. He appears to have attended law school with Kris Kobach, a Yale Law grad who is the Republican nominee for Kansas governor. He is to the right on immigration and voter ID compared to Donald Trump. (Kobach was recently held in contempt of court recently for failing to heed a court order to not purge Kansas voter rolls ... Trump has not been held in contempt of court for anything).

Kobach has spent his legal career finding ways to “self-deport” unlawful immigrants, drafting a model bill that required public school children to provide birth certificates as a condition for enrolling in school each fall.

Kobach didn’t get those ideas from liberal professors at Yale. He probably got the idea from a prominent anti-immigration Yale law professor, and former dean, Peter Schuck. 

Schuck makes the argument that the 14^th Amendment did not create birthright citizenship (it did)—he says that the nation must consent to this idea (we did, when the 14^th Amendment was enacted in 1868).

Let’s also stop with the nonsense that the left is intolerant and the right is a place for free speech. 

In a New York Times article published on September 9, 2010, Clarence Thomas was quoted: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.” 

The article also pointed out that “Thomas apparently has one additional requirement. Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president.” Check it out here: https://www.nytimes.com/2010/09/07/us/politics/07clerks.html?pagewanted=all

Finally, take a close look at the chart at the top. It presents a Politics 538 article that explained research on elite law schools that place clerks in top-tier federal courts. The author of the study, Dahlia Lithwick, wrote that clerks from “Harvard and Yale fall very near the ideological center. But, interestingly, those distributions are strongly bimodal, with peaks left and right of center. This points to both a strong left and a strong right contingent of clerks from these schools. The same is true of other schools — Stanford and Chicago, for example — but those are more right-leaning in general.” For more. Click here: https://fivethirtyeight.com/features/the-most-conservative-and-most-liberal-elite-law-schools/

What to think about this? Elite law schools are incubators for conservatives and liberals. Just look at the current members of the Supreme Court. Every one of them graduated either from Harvard or Yale. Four are conservative; four are liberal.

En Banc Federal Courts Provide Example for Fractured Supreme Court

The Supreme Court hears only 75 or so cases a year. The federal appeals courts—one level below the Supreme Court— decide several thousand appeals every year. In rare cases—where a matter of great importance is before the court, such as the travel ban or the Affordable Health Care Act’s constitutionality— the circuit court sits en banc. This means that instead of a three member panel of judges, all or many of the judges hear the appeal.

The Ninth Circuit (California and western states) has 29 judges. Under their rules, 11 judges can sit en banc.

The Sixth Circuit (Michigan, Kentucky, and Tennessee) has only 16 judges but under its rules all 16 participate in an appellate ruling.

The point is that they use many judges to decide really important cases.

Why not for our Supreme Court?

Our nation is rapidly moving to the point of seeing the Supreme Court poisoned by partisan outrage. It goes both ways.

Let’s dilute our Supreme Court and use our longstanding en banc structure as a guide.

Add more justices (a federal statute allows for this).

Dilute the effect of a single nomination.

En banc rulings are rarely decided by one vote. 
The new structure-- adding more judges-- would lessen these all-or-nothing nomination battles.

Judge Kavanaugh Teaches How Not to Be a Good Witness

Judge Brett Kavanaugh has never been a trial judge nor a trial lawyer. Nor has he been an arbitrator or a hearing officer—people who run a court-like hearing. Appellate judges hear academic-type arguments but the lawyers before these judges are not sworn nor do they testify.

So, this post is mostly for my for students, past and present, to share some brush-up tips from our mock hearings:

Demeanor—avoid aggressive, hostile, evasive and uncooperative conduct. You want to appear to be a reasonable, believable, and honest person.

The opposing advocate— attempt to put your answers in the light most favorable to your case; do not engage in belligerent arguments with opposing counsel.

And also as a refresher, here are some tips to use on cross exam, to make a witness look bad:

Cross Examination Strategy: Pick out the weak spots in the witness’ evidence and zero in on them.

Cross Examiner Demeanor: Do not allow yourself to get excited or angry in questioning a witness. If the witness becomes angry, it is even more important that you remain icily cool.

Undermining Credibility: Before you confront a witness with a prior inconsistent statement, set the hook by committing the witness to the prior statement before proceeding to discredit him with the contrast between that statement and the one he now makes.

How Grover Cleveland Speaks to GOP Rejection of Christine Blasey Ford’s Testimony

This week, Senate Republicans on the Judiciary Committee—with the hesitating exception of Jeff Flake— have chosen to ignore credible testimony that a Supreme Court nominee sexually assaulted a woman who testified before them under oath. So much for the party of law and order.

So, here is an interesting example of the absurdity of the GOP's double standard.

In 1885, President Grover Cleveland whipped up a raging fever of anti-Chinese bias that swept the nation. His inaugural address remarked: 

“The laws should be rigidly enforced which prohibit the immigration of a servile class [Chinese laborers] to compete with American labor, with no intention of acquiring citizenship, and bringing with them and retaining habits and customs repugnant to our civilization.”

Three years later, two naturalized American citizens, Kevork Guligyan and Bedros Iskiya, traveled to Turkey with U.S. passports in hand. 

Turkey—like the U.S., a nation that discriminated heavily in favor of nativity—only accepted people of born in the Ottoman Empire.  

But these two men qualified for admission.

Their problem? 

They were Jews. 

Grover Cleveland’s Secretary of State intervened at length, lecturing the Constantinople government: “The power to expel a Jew from Turkey is claimed, notwithstanding that, as a foreigner, he may have treaty rights of residence…. In its dealings with Turkey, as with Russia, this (U.S.) Government cannot acquiesce in the executive imposition of a penalty, especially on account of race or creed.” 

To summarize this confusing account: In America, we could boot out resident Chinese on account of their race and customs—but Turkey could not exclude Jews on account of their faith and ethnicity.

By that twisted logic, we can now understand the absurdity of the Republican Party’s passion for law and order: Muslims and immigrants are a public safety threat; men who sexually assault others are privileged, above the law.

Did Today’s Hearing Make You Angry? Count to 11 and Other Remedies

Suppose that Judge Kavanaugh is confirmed. This would make Democrats (and others) angry.

For relief, they might count to 11. The number of Supreme Court justices is set by a regular statute, called the Judicial Circuits Act. 
To show one example, in 1866 Congress passed the Judicial Circuits Act to shrink the number of justices from 10 to 7 to prevent President Andrew Johnson from appointing anyone new to the court. After he left office, they raised the number of justices to nine, where it has stood ever since.

Why 11? We’re at 9. By Democratic reasoning, add a seat for the Merrick Garland steal by the GOP Senate, and add one more because Judge Kavanaugh is deemed unfit for the office. No, that doesn’t remove him—but the eleventh justice could neutralize the new justice’s vote.

But that’s just the beginning.

Jurisdiction Stripping: The Constitution gives Congress power to create courts. This includes the power to strip courts of jurisdiction. A Democratic Congress could, for example, strip federal courts of jurisdiction to hear religious freedom cases (to prevent a court from interpreting religious freedom to mean some sort of right to outlaw transgender bathrooms).  

Second, Congress has the express power to define the appellate jurisdiction of the Supreme Court. All the cases that we read about in the news come up from lower courts and travel this path. 
So, for example, Democrats who fear that the Supreme Court will overturn Obamacare, with Kavanaugh on the Court, could strip the Supreme Court of jurisdiction to hear Obamacare cases. 
They can even transfer jurisdiction to state courts.

Add More Judges: There are 179 judges on the courts of appeals, 673 for the district courts. That’s to hear cases for 325 million people and many millions of corporations, governments, organizations and so on.

This is not news to senators on the Judiciary Committee. They know all about these options. They know that for every action, there is almost always a reaction. That's why they are loathe to make changes. 
But if Democratic and independent voters are angry enough, they might insist on these changes. A Democratic Congress, if elected, might change the judicial system as others have in the past.  

Confessions of a Freshman Nerd

I had a different college experience compared to Brett Kavanaugh. I spent Friday nights in the stacks in the UIUC library. It’s not a boast. I lacked confidence and social skills to navigate the drinking and pot smoking scene in college, and I did not join any club or social group.

But I completed two freshman research projects that stuck with me throughout my adult life.

I found many volumes of declassified U.S. State Department cables from World War II. These reports confirmed the existence of Nazi death camps. They also pinpointed railroad lines that were used to ship Jews to their death. I created several maps that varied by years, showing that U.S. bombing runs were remarkably near these train lines. Why weren’t these lines bombed by U.S. and allied forces to cut the death toll? I found no answers but plenty of cables that essentially made the case for humanitarian bombing missions. The project affected me emotionally in an unhealthy way.

The other research project involved farm unions in the late 1800s—an effort by various farmers to unite and withhold their crops from market until they could get a better price.

After my freshman year, I had a more normal college experience—and no more Friday nights in the stacks. My sophomore-year girlfriend eventually became my fiancé, wife, and mother to our three children. I had my share of self-inflicted disappointments and personal failings, including loss of a valuable scholarship due to sub-standard grades and nearly losing my girlfriend. 

I applied to seven elite law schools in 1978 and was rejected by all seven-- and I lacked a backup plan. I bombed the LSAT, a disappointment that in hindsight set me free to broaden my education and life experiences. That temporary failure was one of the best things to happen to me.

Still, I am glad I had freedom—and resources— to start college as a genuine nerd. 

Meet Judge Joan Larsen: A Better Conservative Alternative to Brett Kavanaugh

The Federal Society occupies the unprecedented position of being the sole source for suggesting Supreme Court nominees to President Trump. Joan Larsen is on that list. She is currently a judge on the Sixth Circuit U.S. Court of Appeals. Before that, she served on the Michigan Supreme Court. 

The knock against her is inexperience—she was elevated to the Michigan Supreme Court in 2015 and only very recently took her position on the appeals court.

This is her bio on the Federalist Society website. Judge for yourself.

Justice Joan L. Larsen was named to the Michigan Supreme Court on September 30, 2015, by Governor Rick Snyder.

Before assuming office, Justice Larsen served on the faculty of the University of Michigan Law School where she was also special counsel to the dean. An award-winning legal scholar, Justice Larsen taught for more than a decade at the University of Michigan where she received the L. Hart Wright Award for Excellence in Teaching.  She continues to assist the law school as the adviser to the Henry M. Campbell Moot Court Competition.

 Justice Larsen graduated first in her class from Northwestern University School of Law, where she served as articles editor of the Northwestern University Law Review. At Northwestern, she earned the John Paul Stevens Award for Academic Excellence, the Lowden-Wigmore Prize for the best student note published in the Law Review, and the Raoul Berger Prize for the best senior research paper.

 After graduation, Justice Larsen clerked for the Hon. David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit and for Justice Antonin Scalia of the U.S. Supreme Court. Following her clerkships, she joined Sidley & Austin's Washington, D.C., office, where she was a member of the Constitutional, Criminal, and Civil Litigation Section.

 Before coming to Michigan in 1998, she was a visiting assistant professor at Northwestern.  She later served as deputy assistant attorney general in the U.S. Department of Justice Office of Legal Counsel, where she provided advice to the White House, the attorney general, and government agencies regarding constitutional and statutory law.

 While at the University of Michigan Law School, Justice Larsen's research and teaching interests included constitutional law, criminal procedure, statutory interpretation and presidential power.

 Justice Larsen is married to Adam Pritchard, a professor at the University of Michigan Law School.  They live in Scio Township and have two children who attend Dexter Community Schools.

Brett Kavanaugh's Manly Judicial Voice

In 1983, Brett Kavanaugh and his kegger football teammates smirkingly wrote in the Georgetown Prep Yearbook that they were “Renate Alumni.” This backslapping, ha-ha moment was meant to convey that a high school friend of theirs was also their sexual conquest.

More than 30 years later, the same Kavanaugh wrote a cheeky dissenting opinion in SeaWorld v. OSHA. This case also featured a female victim, Dawn Brancheau. She was the Sea World trainer who was dragged during a show by a killer whale and violently drowned.

OSHA fined SeaWorld for violating four safety rules. Merrick Garland wrote the D.C. Circuit’s majority opinion upholding the fine.

Judge Kavanaugh thought this was a case of extreme bureaucratic overreach by OSHA. He sided with Sea World—effectively dismissing any lessons to be learned from Ms. Brancheau’s horrifying death.

When you read the dissent, its manly tone gives off the scent of too much Axe used by a teenage boy.

Quoting now:

“Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile an hour fastball.  Bull riding at the rodeo.  Skydiving into the stadium before a football game.  Daredevil motorcycle jumps.  Stock car racing. Cheerleading vaults. Boxing. The balance beam….

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants?” 

Government is the bad guy here. SeaWorld is the victim. Dawn Brancheau is a sacrifice offered up on the muscular altar of glory-seeking adventure. The high school sexual braggart in 1983 and the polished D.C. Circuit judge in 2014 speak with the same smug, husky, testosterone-driven voice.

The Rapid Rise of Anti-Chinese Sentiment: GOP House in 2012 Apologized to Chinese for Mistreatment

Today, the president and Congress promote an America First agenda, often with cues for prejudice and bigotry. The graffiti in the photo took place in New York City just a month ago.

In 2012, the Republican-controlled House of Representatives passed a remarkable resolution that apologized for the Chinese Exclusion Act. The resolution passed with strong bi-partisan support. That was only six years ago. This is a short but powerful resolution.

EXPRESSING REGRET FOR PASSAGE OF LAWS ADVERSELY AFFECTING THE CHINESE  IN THE UNITED STATES

Mr. SMITH of Texas. Mr. Speaker, I move to suspend the rules and agree to the resolution (H. Res. 683) expressing the regret of the House of Representatives for the passage of laws that adversely affected the Chinese in the United States, including the Chinese Exclusion Act.

H. Res. 683

Whereas many Chinese came to the United States in the 19th and 20th centuries, as did people from other countries, in search of the opportunity to create a better life;

Whereas the United States ratified the Burlingame Treaty on October 19, 1868, which permitted the free movement of the Chinese people to, from, and within the United States and made China a ``most favored nation'';

 Whereas in 1878, the House of Representatives passed a resolution requesting that President Rutherford B. Hayes renegotiate the Burlingame Treaty so Congress could limit Chinese immigration to the United States;

Whereas, on February 22, 1879, the House of Representatives passed the Fifteen Passenger Bill, which only permitted 15 Chinese passengers on any ship coming to the United States;

Whereas, on March 1, 1879, President Hayes vetoed the Fifteen Passenger Bill as being incompatible with the Burlingame Treaty;

Whereas, on May 9, 1881, the United States ratified the Angell Treaty, which allowed the United States to suspend, but not prohibit, immigration of Chinese laborers, declared that ``Chinese laborers who are now in the United States shall be allowed to go and come of their own free will,'' and reaffirmed that Chinese persons possessed ``all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation'';

Whereas the House of Representatives passed legislation that adversely affected Chinese persons in the United States and limited their civil rights, including--

(1) on March 23, 1882, the first Chinese Exclusion bill, which excluded for 20 years skilled and unskilled Chinese laborers and expressly denied Chinese persons alone the right to be naturalized as American citizens, and which was opposed by President Chester A. Arthur as incompatible with the terms and spirit of the Angell Treaty;

(2) on April 17, 1882, intending to address President Arthur’s concerns, the House passed a new Chinese Exclusion bill, which prohibited Chinese workers from entering the United States for 10 years instead of 20, required certain Chinese laborers already legally present in the United States who later wished to reenter the United States to obtain ``certificates of return,'' and prohibited courts from naturalizing Chinese individuals;

(3) on May 3, 1884, an expansion of the Chinese Exclusion Act, which applied it to all persons of Chinese descent, ``whether subjects of China or any other foreign power'';

(4) on September 3, 1888, the Scott Act, which prohibited legal Chinese laborers from reentering the United States and cancelled all previously issued ``certificates of return,'' and which was later determined by the Supreme Court to have abrogated the Angell Treaty; and

(5) on April 4, 1892, the Geary Act, which reauthorized the Chinese Exclusion Act for another ten years, denied Chinese immigrants the right to be released on bail upon application for a writ of habeas corpus, and contrary to customary legal standards regarding the presumption of innocence, authorized the deportation of Chinese persons who could not produce a certificate of residence unless they could establish residence through the testimony of ``at least one credible white witness'';

Whereas in the 1894 Gresham-Yang Treaty, the Chinese government consented to a prohibition of Chinese immigration and the enforcement of the Geary Act in exchange for readmission to the United States of Chinese persons who were United States residents;

Whereas in 1898, the United States annexed Hawaii, took control of the Philippines, and excluded only the residents of Chinese ancestry of these territories from entering the United States mainland;

Whereas, on April 29, 1902, as the Geary Act was expiring, Congress indefinitely extended all laws regulating and restricting Chinese immigration and residence, to the extent consistent with Treaty commitments;

Whereas in 1904, after the Chinese government withdrew from the Gresham-Yang Treaty, Congress permanently extended, ``without modification, limitation, or condition,'' the prohibition on Chinese naturalization and immigration;

Whereas these Federal statutes enshrined in law the exclusion of the Chinese from the democratic process and the promise of American freedom;

Whereas in an attempt to undermine the American-Chinese alliance during World War II, enemy forces used the Chinese exclusion legislation passed in Congress as evidence of anti-Chinese attitudes in the United States;

Whereas in 1943, in furtherance of American war objectives, at the urging of President Franklin D. Roosevelt, Congress repealed previously enacted legislation and permitted Chinese persons to become United States citizens;

Whereas Chinese-Americans continue to play a significant role in the success of the United States; and        Whereas the United States was founded on the principle that all persons are created equal: Now, therefore, be it Resolved,

SECTION 1. ACKNOWLEDGEMENT.

 That the House of Representatives regrets the passage of legislation that adversely affected people of Chinese origin in the United States because of their ethnicity.

Congressional Record Volume 158, Number 92 (Monday, June 18, 2012)] [House] [Pages H3715-H3719]

Can an Employer Require Obese Applicants to Pay for a Medical Exam?

Casey Taylor applied for an electronics technician job with BNSF, a major railroad company. The company offered to hire him. But first, he had to be evaluated by the company’s medical examiner. The doctor found that Taylor could do the job but also concluded he was “morbidly obese.” Taylor weighed 256 pounds, which at a height of 5’6’’ gave him a Body Mass Index (BMI) of 41.3.

BNSF treats a BMI over 40 as a benchmark for further screening in its prehiring process. The upshot is that if a person has a BMI over 40, the company reserves the right not to hire a qualified applicant and to require the applicant to pay for additional medical tests.

The company yanked Taylor’s offer.

BNSF pulled his job offer because Taylor was unable to pay for the additional medical tests it asked him to obtain.

Taylor sued, claiming that this is prohibited by the ADA and Washington state’s counterpart law.

The Ninth Circuit Court of Appeals has ruled that Taylor’s appeal “raises an important question of Washington law” of whether obesity qualifies as an “impairment” under the statute, a question that has never been addressed.

“This court has not yet addressed whether or when obesity qualifies as a disability or impairment under the [Americans with Disabilities Act] and … other jurisdictions are divided on that question,” the panel said. “Because the ADA’s coverage of obesity is an open question in this circuit and, in any event, Washington law may [provide] broader [coverage], we conclude it is appropriate to certify this important question of Washington law to the Washington Supreme Court.”

The panel of judges also said that for Taylor to win his suit he would have to prove both that obesity constitutes a disability under the state statute and that BNSF pulled his job offer because he was unable to pay for the additional medical tests it asked him to obtain.

As to the second prong, the panel noted that it just issued a ruling a few weeks ago in another case involving BNSF where the panel held that businesses can’t require individuals with disabilities to pay for their own follow-up medical testing during the hiring process, and that BNSF illegally rescinded a job offer when the applicant in that case declined to pay for an MRI.

How Many Presidents Owned Slaves? Revisiting “Shithole” Countries

photo credit: Pyroashe

We have had 45 presidents—and 12 have owned slaves. Put another way, 12 of the first 18 presidents were slaveholders: George Washington* (between 250-350); Thomas Jefferson* (about 200); James Madison* (more than 100); Andrew Jackson* (fewer than 200); Martin Van Buren (one); William Henry Harrison (eleven); John Tyler* (about 70); James Polk* (about 25); Zachary Taylor* (fewer than 150); Andrew Johnson (probably eight); and Ulysses S. Grant (probably five). Asterisks denote that the president owned slaves while in office.

Why does this matter?

The Constitution was drafted with racial bias. Yes, that’s a very serious charge. Here is the evidence.

Only “a natural born Citizen” is eligible to be president. That knocked out free blacks, slaves, and foreigners. It also disqualified most whites who did not own enough property or who worked under servitudes (think apprenticeships).

“Electors” voted for presidents (think Electoral College). 

Electors were apportioned among the states along the lines of the Three-Fifths Compromise.  Slaveholding states were allowed to count their black captives as three-fifths of a person. This added twenty congressional seats—and consequently, twenty presidential electors— to the voting pool of electors.  

In other words, presidential elections gave an advantage to states that used their ports and marketplaces to sell captive migrants. Thus, the people elected to the office of president were the byproduct, to some degree, of a slave-owning group of electors. 

Presidents not only owned slaves; at times, they used constitutional powers of diplomacy to affect the migration of blacks. 

George Washington—an ambivalent slaveholders while in office — used his Article II powers in behalf of Georgia to secure a fugitive slave accord with Spain in 1791. The effort grew out of slaves running away from Georgia to Spanish territory in Florida.

Thomas Jefferson used diplomacy to try to "deport" blacks-- free and slaves-- to Sierre Leone.

Article II power—the Constitutional power for presidents— is naively viewed as a neutral enumeration of strong executive powers without regard to its advantageous treatment of whites who were tied to a growing slave economy.  

So that was history. Why does it matter today?  Today, 19.8 million naturalized citizens are constitutionally barred from holding this office. Talented public figures, ranging from Alexander Hamilton, Henry Kissinger, and Arnold Schwarzenegger to Madeleine Albright and Ariana Huffington, have been, or are today, constitutionally barred from office. 

This is worth considering when, as widely reported, our current president believes that countries with black populations are “shithole” nations, and the legal immigration system which brings people of color to America is being heavily restricted.

Does Your Workplace Have a “Well Regulated Militia”? Rethinking Gun Control

There have been at least three mass casualty shootings in American workplaces in the past 24 hours.

Before we grow numb to this routine carnage, let’s take another look at the text of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Read in text and also context, the amendment was enacted to allow citizen soldiers to rise up against a tyrannical government. If you don’t have or need a militia, the Second Amendment doesn’t apply. That’s strict constructionism—the type of judicial analysis favored by right-leaning groups such as the Federal Society.

The debates today focus on the type of weapon and the mental health of the shooter. Neither argument has proved effective. To the contrary, a new and ludicrous counter-argument has taken root. We need more guns in all possible locations where a mass shooting can occur.

A new approach should be founded on a pillar of our Constitution. The Fifth Amendment provides that the U.S. government cannot take “life, liberty, or property without due process of law.” The Fourteenth Amendment says that same thing. It applies to states and their local governments.

So, why not enact federal and laws titled “The Gun-Free Private Workplace Act”? The law would make clear that the Second Amendment could not be interpreted so broadly as to override a private property owner’s right to regulate the workplace by prohibiting guns.

Courts have already established this right, many times over, in cases where, for example, employees have been fired for bringing guns to work or even the parking lot of a workplace.

No, the law would not magically end gun violence.

It would, however, amount to a major defeat of the NRA’s unbounded premise that everyone has a right to carry a gun anywhere they wish.

Republicans would have to choose between voting for property rights of business owners—a natural for Republicans—or for gun rights—also a natural for Republicans. Make a choice.

Finally, it would create an opportunity for some private employers to do more than make up a rule. They might start to screen people coming into the workplace. Places such as Rite-Aid— the site of today’s fatal shooting— would be challenged to screen everyone who comes in to a large workplace.

Did Anita Hill’s Testimony Sensitize Clarence Thomas to Sex Discrimination Issues?

We will soon revisit the awkward— and for many working women, painful— testimony of Anita Hill in the confirmation hearings for Supreme Court nominee Clarence Thomas. Hill was a staff attorney who worked under Thomas’s direction when he headed the EEOC—the nation’s agency to enforce sex discrimination laws.

She testified: “He spoke about ... such matters as women having sex with animals and films showing group sex or rape scenes," adding that on several occasions Thomas graphically described “his own sexual prowess” and the details of his anatomy. Hill also recounted an instance in which Thomas examined a can of Coke on his desk and asked, “Who has put pubic hair on my Coke?”

Hill was attacked by Sen. Orin Hatch who said, “Hill was working in tandem with 'slick lawyers' and interest groups bent on destroying Thomas’ chances to join the court.”

Was that a teachable moment for Justice Thomas?

In 1992, Colorado enacted an amendment by a 52%-48% vote. The new law forbade any Colorado court, legislature, or local government from enacting a law or otherwise creating legal protection for gays, lesbians, and bisexuals.

In Romer v. Evans (1996), the Supreme Court struck down the Colorado law as a violation of equal protection. 

Justice Kennedy wrote for the 7-2 majority, stating that the law “seems inexplicable by anything but animus (hatred) toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

Justice Thomas joined Justice Scalia’s dissenting opinion. Their opinion said that “homosexuals” cannot “obtain preferential treatment under the laws” because the U.S. Constitution said nothing about homosexual rights. Colorado, therefore, had constitutional authority to enact this law.

Thomas and Scalia based their reasoning, in part, on Bowers v. Hardwick, a 1986 Supreme Court case. There, police observed two men through a window in their apartment having sex. This violated Georgia’s sodomy laws. The men received $25 fines. The Supreme Court upheld the law, even though the men argued that Georgia does not prohibit heterosexual couples from having oral and anal sex.

The Supreme Court revisited that precedent in Lawrence v. Texas (2003). On a similar fact pattern with a similar state law that was founded on Biblical injunctions against same-sex relations, the Court struck down this law (and others like it) as a violation of equal protection.

Again, Justice Kennedy wrote for the Court: “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 
He added: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Justice Thomas joined Justice Scalia’s dissenting opinion. 

Scalia said: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

If confirmed, will Brett Kavanaugh respect these precedents? 
What is his view of the state’s power to regulate sexual identity and consensual relations? 
These questions are worth exploring as his faces his accuser.

Why Do 37% of Americans Not Participate in the Labor Force?

In some ways, this chart is more ominous than a Category 5 hurricane.

The numbers on the left are percentages for people in the labor force. Take all people ages 16-64 who can work. Then count the number of people who have a job, or who are unemployed but looking for jobs. They are in the labor force. The rest of people are not working or trying to work.

Throughout President Trump’s term, the percentage has held steady at 62%-63%. That was the same level for the last four years of President Obama time in office. It's a problem that's bigger than a president.
The Great Recession of 2007-08 took out about 3% of our labor force participation. 
That means we have millions of people who can work but are not engaged in the labor force.

What is surprising is that the robust economy today is attracting so few new people to get off the sidelines and work.

Republicans believe that an overly generous welfare system is part of the problem. Why work when you’re paid to be idle?

Democrats believe that lack of job training is part of the problem. How are laid-off coal miners and steel mill workers supposed to adapt to a changing economy?

An aging population is part of the problem (but note, the statistic takes out retirees and retirement-eligible people, so the problem is among 40-65 year olds). Do they have desirable skills? Is age discrimination chasing them out of the job market?

Are undocumented aliens part of the problem? No. Their numbers declined in 2016-2018 (estimates range from about 1-2 million who have been deported or left voluntarily). This drop has not caused labor force participation rates to rise.

This is a quiet problem that has huge consequences for millions of broken lives— the explosion of opioid addiction among people who have lost a connection to work being just one compelling example.

As a nation, we must find a way to engage more people in work—or we will pay for them to be idle in direct subsidies and indirect costs such as emergency room visits that shift costs to our health insurance premiums.

Thomas the Tank Engine v. NRA?

The NRA’s TV station ran an altered image of Thomas the Tank Engine and friends with KKK hoods. The NRA’s ire was directed at a train engine from Africa, designed to teach children about multiculturalism.  

What this has to do with Second Amendment is beyond comprehension—but one can imagine the NRA has thought this one through and is ready to claim some form of First Amendment speech.

Good luck with that. The First Amendment protects against government interference with speech. Thomas is owned by Mattel—and Mattel owns his name, image, and likeness. Mattel paid $680 million for Thomas in 2011. One would assume that Mattel will protect its investment in court.

There are a variety of legal options available to Mattel.

If Mattel has a trademark for Thomas, it may sue for infringement—and collect damages. I would imagine Mattel has done this. 

In the U.S. a trademark is rigorously examined and approved by the U.S. Patent and Trademark Office. 

Britain has a version of this, too. Thomas may be trademarked in Britain, where he was created.

The essence of a trademark lawsuit is to penalize a party who creates or causes confusion by emulating a registered image. Recently, 3M won a lawsuit in a Chinese court—a court that has a similar version of U.S. patent law— where a competitor with 3M called itself 3N.

There is also tort law—a general body of civil wrongs (compared to criminal law without prison or fines … but civil monetary damages).

LawShelf has a succinct explanation of how this works in the trademark infringement setting though one can sue in tort without a trademark. 
Quoting in red text:

“To prove a prima facie case of appropriation of plaintiff’s name or likeness for commercial purposes, the plaintiff must show that the defendant used his name or likeness for commercial purposes without being authorized to do so. See Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995). See also Fairfield v. American Photocopy, 138 Cal. App. 2d 82 (1955). The plaintiff must also prove causation.

Please note that if the plaintiff is not a user of the product that his likeness appears on and the advertisement for the product harms the plaintiff’s reputation, the plaintiff may also have a cause of action for defamation. For example:

Bernard is a devout Catholic. A picture of Bernard is used to advertise a brand of male contraceptives. 
In such a situation Bernard will have a cause of action for appropriation of his likeness. 
He may also have a cause of action for defamation since, as a devout Catholic, his association with a brand of contraceptives may diminish his reputation in the eyes of his community.

Some jurisdictions have extended protection beyond name and likeness to include other features associated with the plaintiff as well. For example, some jurisdictions will now protect the plaintiff’s voice, catch phrases and trademark habits.” For more, see https://lawshelf.com/courseware/entry/appropriation-of-plaintiffs-name-or-likeness.

That sounds like the NRA’s misappropriation of Thomas the Tank Engine. Let’s hope Mattel restores Thomas’s image as a “useful tank engine.” He is not a racist tank engine.

Why Did Our U.S. Constitution Permit Importation of Slaves Until 1808?

The short answer: To allow, in slave-owning states, a “breeding stock” of enslaved Africans to add a new generation of American-born black slaves to reach sexual maturity. The Constitution was written in 1787; 1808 was 21 years later; and by that time, slave-children could procreate, albeit as adult slaves.

What is the constitutional language in question?  It appears—of all things—as an “Article II” power—that is a power of Congress. How is that? Because slaves were brought to the U.S. as a type of commerce— human merchandise. Article II confers upon Congress the essential power to regulate commerce among the states and between the U.S. and foreign nations.

Here is how the Constitution addressed the slave trade in Art. II, Sec. 9:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit [pause … that is a polite way of saying slaves brought in trade] shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation [pause … think of a “tariff” in today’s context on steel and such, i.e., merchandise], not exceeding ten dollars for each Person [pause … the preceding language treats slaves as articles of commerce but ends by referring to slaves as “person”].

So, is this just historical trivia? Not to me. 

For one, our nation made a bargain with the devil by allowing for the trafficking of human beings—worse yet, of blacks who could be thought of less than human by the white ruling class. 

For two, this short little paragraph reflects our nation’s unresolved treatment of blacks as full-fledged “persons” but also stained by their color. 

And finally, the question I am working through on my research: America has always based immigration on race, to the severe disadvantage of people who were not white. The exceptional period was 1965-2016. In Donald Trump, we simply reverted to our long-held traditions. He is us, and we are him, truth to tell.

A post-script: As students in my two classes on immigration and race have already noted, it’s not exactly correct to say that slaves were immigrants. Point well taken. But read Art. II, Sec. 9 again, where it alternately refers to “migration or importation.” Even in 1787, our constitutional fathers could not quite get a handle on this. My research shows it was just part of a two-centuries pattern of betraying our constitutional promise that “all people are created equal.” That is our ideal, our quest. It is not our natural practice.

No-Competes Create Modern-Day Serfs: But New Law Free Employees

(Photo Credit: LECTRR FOR CONTRAST)

Your job evolved from a medieval relationship. Under feudal contracts, lords provided certain benefits to vassals and serfs—protection from assaults, a private justice system, and a plot of land to work. In return, the lord had the right to demand services (military and jury) and a right to various “incomes” known as feudal incidents.

Fast-forward. Now we have an employment relationship. In the past 30 years or so, “no-competes” have mushroomed. A no-compete is a contract that an employer requires an employee to sign. It restricts the employee from working in some competitive fashion after their employment relationship ends.

No-competes have three key features: duration (usually one year), geography (highly variable), and restricted activities (doing the same job or type of job as before is a common one).

Courts uphold no-competes for professional employees—doctors, lawyers, accountants, etc. The idea is to protect the employer against a former employee who poaches clients and business.

But employers are abusing no-competes. Now, fast-food workers are required not to work within 3 miles of their store for a competitor, just to give an example. The list of employees required to sign no-competes has grown from advanced-degree professionals to, well, you name it— CNAs, warehouse workers, cable installers. In fact, about 20 percent of all employees (that’s about 30 million people!) are under no-competes.

This probably explains—in part—why wages are stagnating. Employers are using these contracts to kill off labor market competition and bidding up of wages.

On Monday, Massachusetts passed a sweeping new law that strictly limits no-competes. It bans these contracts for minors, students, and hourly wage workers. It also introduces important procedural protections, guaranteeing employees notice and an opportunity to consult with an attorney before signing non-compete deals.

If Democrats take control of Congress, this type of law would likely be a legislative priority. Using the Massachusetts law as a model, they might enact similar legislation, perhaps dubbed the Anti-Serfdom in Services Act, or ASS Act. Perhaps the president— known for sticking up for ordinary workers— will sign this law.

Loathed and Lowly: Federal Workers Do Essential Work As Florence Hits

Two weeks ago, President Trump told Congress that he wants to scrap a 2.2% pay raise already budgeted for federal civilian workers.

Who are these workers?

They include the meteorologists who work for the National Hurricane Center.

They include FEMA workers who are traveling to the Carolinas to spend weeks or more helping people find a porta-potty, shelter, fresh water, basic food—and yes, a working internet connection. Last year, 32,000 FEMA employees worked in Texas to help with Hurricane Harvey.

They include physicians, nurses, and service staff at the Fayetteville VA Health Center. They’ll provide dialysis, among other essential services, to vets throughout the storm.

They include air traffic controllers who will reroute and reschedule thousands of flights that are affected by Florence.

They include EPA scientists who study global warming— people whose work on ocean warming is derided by some politicians as a deep-state conspiracy that makes up the threat of human factors in elevating the frequency and intensity of storms.

They include river scientists, such as my daughter-in-law, who will soon be on boats to inspect the base of major bridges over rivers and bays, looking for signs of unsafe scouring where the bridge is anchored to the water-bed.

They include postal carriers who will lose a week or more of hourly-paid work because their routes are inaccessible. When they return to work, they will work in stinking neighborhoods that are swarming with mosquitos. 

They include Social Security employees who will face thousands more requests for help from elderly people whose checks are delayed or lost in the mail. They will try to help these folks recoup their money and help them sign up for direct-deposit-- even for elderly people who have a hard time understanding this.

They include scientists at CDC who will watch for evidence of unusual illness events, such as mosquito borne diseases, food poisoning and other maladies associated with a catastrophic storm.

They include FDA inspectors who will inspect North Carolina’s poultry intensive operations to ensure that the public is getting safe eggs and meat.

They include IRS employees who will work with a large number of tax-filers— individuals and small business owners— who will lose paper records, computers, homes, and offices—all things we take for granted but also vital for filing an accurate and timely tax return.

The list goes on. As vital as the private sector is, there is no substitute for a large federal workforce to handle the immediate and second-order effects of a Category 4 hurricane.

The Federalist Papers Used Pseudonyms— Why Not Anonymous for NYT Op-Ed?

Alexander Hamilton has become something of a cult hero in the past two years due to the Broadway production.

Among Hamilton’s great accomplishments, he led the effort to ratify our Constitution.

He, with James Madison and John Jay, authored 85 news editorials in 1787 to persuade Americans to adopt the proposed Constitution. They sent these submissions to three different New York newspapers (none were the NYT).

We now call this collection The Federalist Papers. They were published as two books in 1788.

The point is that Hamilton, Madison, and Jay did not use their names in writing these controversial op-ed pieces. They used the pseudonym “Publius.”

Anti-federalists published op-ed pieces under the pseudonyms of “Cato” and “Brutus.”

Hamilton apparently wanted the Federalist op-eds to be associated with Roman history (Publius Cimber was a Roman senator) and the New Testament (Publius received the Apostle Paul during his shipwreck on the island).

The circumstances then and now are quite different, of course—but they have the common thread of an anonymous writer try to convince Americans that they are on the right side of history in times of constitutional peril. These writers are also appealing for public support.

A closing thought: If Publius was, in fact, three authors, why should we assume that the anonymous writer to the NYT is just one person? Why not three, or more?