Category Archives: Law

MAKING RBG PC AGAIN

Supreme Court Justice Robert Jackson famously quipped: “We are not final because we are infallible, we are infallible because we are final.”

The ACLU decided that a statement by the late Justice Ruth Bader Ginsburg on women’s rights wasn’t sufficiently enlightened.  So they deemed it not truly final, and proceeded to change it to make it more infallible.

In her 1993 Senate confirmation hearings, the future Justice stated: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity.… When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

In 2021, on the anniversary of her death, the ACLU tweeted this modified version, attributing it to her:

All references to women and to female pronouns had been erased, replaced with gender neutral terminology.

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BARRETT v. SOTOMAYOR

Occasionally, the stars align to illuminate important civic matters for all to see and understand. Such an alignment occurred last week in the June 18 hard-copy edition of the New York Times, in the form of two articles running just pages apart.

The first was a front page news story on the Supreme Court’s 7-2 decision in California v. Texas, upholding the Affordable Care Act (ACA) from a challenge by 18 states and two individuals. The second was an opinion piece in the same edition entitled “Justice Sotomayor, the Supreme Court’s Truth Teller,” authored by Linda Greenhouse, the retired legal affairs writer for the Times.

Taken together, the two stories illustrate the difference between the philosophies of judicial restraint and judicial activism.

Adherents of judicial restraint see the judge’s role as modest. Judges should be umpires, calling balls and strikes, regardless of who wins the game as a consequence of their calls. Judges should recognize the boundary between judging and legislating, and take care not to cross it. Judicial activists, on the other hand, expect judges to do more than merely apply the law to the facts, disregarding the result. Instead, they believe judges should strive to reach the “right” result; i.e., the result embodying their vision of a just and moral society.

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ASSESSING TEDDY ROOSEVELT

Future generations may look back at 2020 as the Year of Madness. In the name of racial justice, statues of Abraham Lincoln and Ulysses Grant – the two men most responsible for the eradication of American slavery – have been defaced. The destruction in Madison, Wisconsin of the monument to Hans Christian Heg may mark the nadir of the inanity. Heg, a Norwegian immigrant, devoted his life to the abolitionist cause, fought bravely in several Civil War battles, and died leading a charge against a numerically superior Confederate force. His statue was torn down, decapitated, and thrown into a lake.

The equestrian statue of Theodore Roosevelt at the entrance of the American Museum of Natural History is another target of our national Cultural Revolution. The monument features Roosevelt on horseback, with a Native American on one side and an African on the other, both on foot. According to James Earle Fraser, the sculptor, the two figures at Roosevelt’s side “are guides symbolizing the continents of Africa and America, and … stand for Roosevelt’s friendliness to all races.” According to John Russell Pope, the Museum architect, the three figures together comprise “a heroic group.”

Teddy Roosevelt Statue

The statue will be removed because some object to the fact that Roosevelt occupies a position of prominence, seated in the center on horseback while his Indian and African guides stand on either side. The configuration, socially conscious critics insist, signifies that the Indian and African are inferior.

Of course there is another, less contentious explanation for Roosevelt’s central placement:  the statue was erected to honor him. Roosevelt was a devoted conservationist and the author of many books on natural history. As President, he placed some 230 million acres of land under protection. His father was a co-founder of the Museum, which has enjoyed a long association with the Roosevelt family. He occupies the central position for the same reason a newly wedded couple occupies the center of a family photograph. It doesn’t signify that the family members off to the sides are inferior; it simply means that they are not the main subject of the photograph.

The fact that removal has been ordained by the Museum Board itself, rather than by a mob, should fool no one. The Board acted under the same pressure animating the rest of our Cultural Revolution.

Rather than organize counter-mobs to protect such statues, perhaps the best response may be to use these events to educate the public.  As the destruction of the Hans Christian Heg statue demonstrates, much of the current madness arises from plain ignorance. The best cure for ignorance is knowledge. Continue reading

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THE PROP 209 LOCKDOWN CAMPAIGN

“Never allow a crisis to go to waste,” Rahm Emanuel, former Chief of Staff to President Obama, said in the wake of the 2008 financial meltdown. He repeated the quip last March, in the wake of the coronavirus economic meltdown. In both cases, Emanuel saw these disasters as opportunities to advance the progressive agenda.

The same opportunistic spirit has surfaced in Sacramento, where, in the midsts of the Covid crisis,  a group of Democratic legislators have introduced ACA 5, a bill to repeal Prop 209, the California measure which outlawed racial and gender-based preferential treatment in public education and contracting.

California State Capitol

Prop 209 was added to the California constitution by a ballot initiative in 1996. It won by a decisive 54.6 to 45.4% majority, despite the fact that nearly every major corporation, institution, and celebrity in the state lined up against it. Even the Republican Party kept its distance, which turned out to be a tactical error: Bob Dole garnered only 38% of the state popular vote that year, meaning that Prop 209 was almost 17 points more popular than the GOP ticket.

Why did Prop 209 pass? The simple answer is that most people, regardless of race, agreed with its fundamental message. A poll conducted on the eve of the election by the UC Berkeley Institute of Government Studies found that majorities of all four major racial groups – 69 percent of whites, 64 percent of Asians, 63 percent of Latinos and 59 percent of blacks – preferred that job advancement and college admissions be based solely on merit rather than on a system considering race and gender.

Of course, those numbers did not reflect how the members of those racial groups actually voted. Some people probably voted against Prop 209 because they saw government-sponsored racial and gender-based preferential treatment as a necessary and temporary evil. Discrimination designed to help the poor or socially disadvantaged is one thing. But the poll numbers confirm that discrimination on the basis of race or gender has never been popular, whether that discrimination is used to help or hinder a particular group.

Following the passage of Prop 209, opponents predicted that minority representation at California’s university system would plummet. The actual results, however, have been very different. Continue reading

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Winston Churchill Versus Winston Churchill: The True Story of a Trademark Coexistence Agreement

Although perhaps best known to history as the man who stood up to Hitler, Winston Churchill, an English journalist, warrior, and statesman, also made great contributions to American trademark law. Indeed, Churchill was a pioneer and one of the first proponents of trademark coexistence agreements.

A short primer on trademark coexistence agreements is in order. Trademark coexistence agreements are peace treaties under which the owners of similar marks agree to forgo war and to divide the marketplace instead. The division may relate to goods, with one owner, for example, using its mark on raisins while the other uses its similar mark on oranges. The boundary may be geographic, allowing one party to market products on the West Coast while the other markets on the East Coast. Or the division may involve incorporating subtle distinctions in the marks themselves.

In the case of Churchill—while certainly more modest than saving civilization from Nazi conquest—his major contribution to trademark law involved a trademark dear to his heart: his own name.

Young Winston Churchill

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WHY NOT A 1776 PROJECT?

Last August, the New York Times launched The 1619 Project, an ambitious effort to educate the public on the role of slavery in shaping America. The Project began with an issue of the Times Sunday Magazine devoted entirely to the subject of slavery. It has grown to include a podcast, and curriculum materials for schools. A book is planned. There is reason to believe that a generation of young, impressionable students will form their historical outlooks based on the Project.

Its title says much about its purpose: to challenge the notion that 1776 is the birth year of America. According to the Times, 1619, when slaves are said to have first arrived on our shores, “is the country’s very origin.”

It’s worth noting at the outset that the title of the Project may be misplaced.  According to Professor Nell Painter, the first Africans to arrive on our shores in 1619 were indentured servants, not slaves — a status they shared with many impoverished white arrivals. Racialized slavery did not emerge in Virginia until the 1660s. But setting aside the question of dates, the abominable institution of slavery took root in the New World and two centuries would pass before it was extirpated.

chains

Now any project that aims to educate the public on our nation’s history should be lauded. Much of the information imparted by the 1619 Project is thought-provoking and valuable. But its central theme should not go unchallenged.

Project creator Nickole Hannah-Jones, in her introductory essay, describes this theme:

Conveniently left out of our founding mythology is the fact that one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery. By 1776, Britain had grown deeply conflicted over its role in the barbaric institution that had reshaped the Western Hemisphere. In London, there were growing calls to abolish the slave trade. This would have upended the economy of the colonies, in both the North and the South…. In other words, we may never have revolted against Britain if the founders … had not believed that independence was required in order to ensure that slavery would continue. … [S]ome might argue that this nation was founded not as a democracy but as a slavocracy.

If these statements were true, if the purpose of the American Revolution was to preserve slavery, then our nation was founded in evil, and every American should properly feel some element of shame in his or her heritage.

But these statements are not true. They are wrong. Continue reading

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HARVARD’S BILL OF RIGHTS PROBLEM

On May 5, 1941, in the bleakest days of World War II, with most of Europe under Nazi or Communist domination, Life Magazine devoted its cover story to Harvard University. The article began portentously:

The names of Alexandria, Padua, Paris, Heidelberg, Gottingen, Oxford and Cambridge are deathless, because each in its time has been a world center for man’s learning and his search for truth. To that roll has been added the name of Harvard, America’s oldest, the New World’s greatest and the world’s richest university. Today it stands alone. On the European continent the universities have been engulfed by a tyranny that recognizes no truth but the perversion of propaganda …. In the fourth year of its fourth century, Harvard must re-examine the purposes that justify its existence, count its resources and consider how it shall serve man in his unknown future.

The article deemed Harvard mankind’s academic beacon, its last best hope to preserve the flame of free inquiry in a darkening age.Life Magazine

Things haven’t quite worked out that way.

Visit Harvard today and one sees, not the last best hope for free inquiry, but an environment hostile, if not toxic, to the Bill of Rights and the values underlying them.

The latest symptom occurred in the aftermath of a demonstration calling for the abolition of the U.S. Immigration and Customs Enforcement (ICE). The demonstration was staged by Harvard College Act on a Dream, an immigrant advocacy group. It attracted a crowd of about one hundred people. The Harvard Crimson, the main campus newspaper, published a generally sympathetic story, quoting several of the organizers, one of whom happened to be a Crimson editorial executive.

And there the story, like the event, would have quickly faded — but for the inclusion in the article of one, seemingly routine sentence: “ICE did not immediately respond to a request for comment Thursday night.” Continue reading

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HARVARD’S FAILING GRADE

Something troubling has happened at Harvard.

For the past ten years, Professor Ronald S. Sullivan, Jr., in addition to teaching at the Law School, has served as Faculty Dean of Winthrop House, one of the twelve houses where Harvard undergrads live after their freshman year. He has held that post along with his wife Stephanie Robinson, a lecturer at the Law School. (Traditionally, a person in that position was given the title “Master,” but in 2016 that honorific was removed because of its alleged association with slavery – an association that may surprise the hundreds of graduate students upon whom Harvard annually bestows Master of Arts, Master of Business Administration, Master of Public Administrations, and Master of Science degrees.)

In addition to teaching law, Faculty Dean Sullivan has had a notable career as a practitioner. Over the years, he has represented Michael Brown, a black man shot by the police in Ferguson, Missouri; Aaron Hernandez, the late New England Patriot convicted of murder; and the family of Usaamah Rahim, a suspected ISIS terrorist killed by the Boston Police.

Last January, Sullivan got involved in another high profile case, when he joined the defense team of Harvey Weinstein.

Sullivan

As soon as he announced his association with Weinstein’s defense team, Sullivan came under attack. Continue reading

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LOOKING BACKWARD ON HARVARD’S DIVERSITY PROBLEM

Last week witnessed two events, both involving Harvard University and the enigma of ethnic diversity. On October 15, the trial of Harvard College began in a Boston federal courtroom. The institution stands accused of racial discrimination against Asian-Americans in admissions. On the same day, in the courtroom of public opinion, former Harvard Law Professor, now U.S. Senator, Elizabeth Warren released a DNA report supposedly corroborating her claim to Native American heritage.

Both events are surrounded by controversy, with partisans lining up along predictable lines. And both events take on added significance when viewed against the background of Harvard’s first experiment in what might today be considered affirmative action: the establishment of an “Indian College” in 1655.Old-Harvard-Yard-according-to-Anthropology-1130-e1419632116650 Continue reading

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AFTER KAVANAUGH

As this story goes to press, it is uncertain whether Judge Kavanaugh will be confirmed to sit on the Supreme Court. But one thing is certain. The confirmation process itself is broken, and in desperate need of repair. Here are three recommendations. They may not necessarily fix the many problems manifested over the past few months, but they may at least moderate them.Panorama_of_United_States_Supreme_Court_Building_at_Dusk

First, the process needs a consensus among its participants on the meaning of judicial temperament. Everyone agrees that judicial temperament is a crucial qualification. No one agrees on what that temperament should be. Continue reading

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