Category Archives: Law

THIS YEAR IN JERUSALEM

The President of the United States confronted a difficult decision concerning recognition in the volatile Middle East. He was personally sympathetic to the Israeli side.  Many of his closest friends and confidantes were Jews, including some with whom he had participated in business ventures. But now his Secretary of State argued forcefully against recognition. The Secretary’s opposition was shared by almost the entire foreign policy establishment, as well as by the New York Times and the Washington Post. He was warned that if he proceeded with recognition, violence would erupt throughout the Middle East, America’s position at the United Nations would be weakened, and he himself would be accused of pandering for the Jewish vote.

Bucking the advice of his Secretary of State, the President decided in favor of recognition. The Prime Minister of Israel thanked him, and told him that his decision would earn him an immortal place in Jewish history. Jerusalem old city Western Wall with Israeli flag

These events, as recounted by Clark Clifford, occurred 70 years ago, when the President was Harry Truman, not Donald Trump; the Secretary of State was George Marshall, not Rex Tillerson; the Prime Minister was David Ben Gurion, not Benjamin Netanyahu; and the issue was recognition of the State of Israel, not recognition of its capital. With the benefit of hindsight, most would agree that Truman made the right decision in May of 1948. Donald Trump’s decision to recognize Jerusalem as the capital of the State of Israel — though almost universally condemned by the supposed experts on the region today — ultimately will also be seen as the right move. Continue reading

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JUST DESSERTS

Sometimes social change arrives slowly.

Slavery was abolished and equal protection enshrined in the Constitution in the 1860s. Yet nearly a century would pass before segregation was outlawed in public facilities, and racial equality would begin to emerge as a fact.

Sometimes social change travels fast. Thirty years ago, 57% of American adults did not approve of sexual relations, let alone marriage, between gays and lesbians. Gallup did not begin to ask respondents about same sex marriage until twenty years ago. Before then, the issue was not considered controversial enough to warrant polling. In 1996, the Defense of Marriage Act went before Congress. Section 3 of the Act declared: “The word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It passed with overwhelming bipartisan support. Two thirds of the Democratic senators and representatives voted in favor, along with nearly all Republican members. The Act became law when President Clinton signed it. At the time, Bill Clinton opposed same-sex marriage. So did his wife. So did every notable figure in both major parties.

Wedding

In 2008, when Barack Obama ran for President, he too opposed same-sex marriage, stating: I believe marriage is between a man and a woman. I am not in favor of gay marriage. He continued to oppose same-sex marriage until 2012. Hillary Clinton continued to oppose it until 2013.

That same year, 2013, the Supreme Court, in United States v. Windsor, declared Section 3 of the Defense of Marriage Act unconstitutional, effectively ending federal bars to same-sex marriage. Two years later, in 2015, the Supreme Court ruled in Obergefell v. Hodges that state laws banning same sex marriage were also unconstitutional.  Continue reading

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SPEECH KILLS: THE LATEST EXCUSE FOR CENSORSHIP

“There are some ideas so absurd that only an intellectual could believe them,” George Orwell famously said. We can add to that long list of lunacies a theory on freedom of speech and violence articulated by Professor Lisa Feldman Barrett, author of “How Emotions are Made: The Secret Life of the Brain” in last Sunday’s New York Times.

Visiting the troublesome trend on college campuses today to protest, disinvite, and even violently remove controversial speakers, Professor Feldman maintains that the speech-suppressors have a point. Children may believe that “sticks and stones may break my bones, but words will never hurt me.” But Professor Feldman knows better.

…[S]cientifically speaking, it’s not that simple. Words can have a powerful effect on your nervous system. Certain types of adversity, even those involving no physical contact, can make you sick, alter your brain – even kill neurons – and shorten your life.

free-speech

Speech can shorten your life? How? Professor Feldman explains:

Your body contains little packets of genetic materials that sit on the ends of your chromosomes. They’re called telomeres. Each time your cells divide, their telomeres get a little shorter, and when they become too short, you die. This is normal aging. But guess what else shrinks your telomeres? Chronic stress.

Words that stress you out can rub you out, she maintains. Under her theory, the Middlebury mob that attacked Charles Murray and injured Allison Stanger (causing her a concussion) were not engaged in acts of unlawful violence. They were engaged in legitimate self-defense. Continue reading

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THE POLITICS OF JUDICIAL CONFIRMATION

In light of President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia, partisans on both sides of the political aisle are shocked – shocked – to discover that the other side is playing politics. But there is an important difference. The Democrats are playing smart. The Republicans are playing dumb.

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That should not come as a surprise. After all, this is the year the Republicans have shown themselves hell-bent on ensuring that they lose the presidential election. While the Democrats proceed to nominate Hillary Clinton — a figure so shady that she is widely viewed by her own Party as untrustworthy —  the Republicans are en route to nominate Donald Trump, their one candidate who consistently lags well behind Clinton in the polls. And for good measure, he lags even farther behind Bernie Sanders.

That is dumb politics. But the Republican Party position on the nomination of Judge Garland is, if possible, even dumber. Continue reading

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THE CURIOUS INCIDENT OF THE TAPE IN THE NIGHT-TIME

Last Fall, faculty and students arriving in the Wasserstein Hall in Harvard Law School found black tape on the portraits of several black faculty members. The discovery caused an immediate uproar.  Stories appeared in the Boston Globe, the New York Times, CNN, and the Guardian, among many others.

By noon on the day of the discovery, hundreds of students and faculty members had gathered in a community meeting. Law School Dean Martha Minow announced: “Racism exists in America and in the United States and in Harvard and in Harvard Law School.” She called racism a “serious problem” at Harvard. The president of the student body called the incident “a pretty clear act of intolerance, racism.”  The President of the Harvard Black Law Student Association described it as “one of the most clear-cut, overt instances of very, very vile and disrespectful behavior.” A second year law student said: “I’m disgusted and outraged that it happened, but I’m also not surprised. Microaggressions and macroagressions happen every day, and that’s the reality of being a student of color at Harvard ….”black professor

Reaction among the black faculty members themselves was more restrained. Professor Charles J. Ogletree said that he was “still waiting to learn more about the incident before making too strong a judgment.” And in an op-ed column the following week, Professor Randall Kennedy cautioned:

The identity and motives of the person or people behind the taping have not been determined….  Perhaps the defacer is white. But maybe not. Perhaps the taping is meant to convey anti-black contempt or hatred for the African-American professors. But maybe it was … a hoax meant to look like a racial insult in order to provoke a crisis.

In the days following the discovery of the tape, Dean Minow stepped back, albeit subtly. In a statement to the Law School faculty and students immediately following the discovery, she had pronounced herself “outraged.” A week later, in a statement to alumni, her “outrage” had vanished, and she pronounced herself merely “shocked and saddened.” In the earlier statement to faculty and students, she had called the incident “a hate crime.” A week later, writing to alumni, she referred to it as “a possible hate crime.”  If these verbal modifications seem minor, remember that this is Harvard Law School, where students are taught to dissect the language of statutes and contracts, and to hunt for shades of difference.

Then last week, the Harvard Crimson reported that the University Police Department was shutting down its investigation.

There were no protests. There were no demonstrations.

What happened to the outrage? Continue reading

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THE DEAN’S LIST OF DUMB AND DUMBER

Following the forced resignation of Yale Professor Erika Christakis, former Vermont Governor and Democratic Party Chairman Howard Dean tweeted:

Yale faculty member at center of protests will leave teaching role http://fw.to/4CDnirR  Free speech is good. Respecting others is better.

Many remember Howard Dean as the author of the 2004 “Scream,” the incoherent squawk that doomed his presidential campaign. While both were inane, the Tweet may outclass the Scream in fundamental dumbness.
dumb and dumberdumb
First, some background.  The Yale faculty member mentioned in the Tweet is Erika Christakis, a respected expert in early childhood education.  Last Fall, 13 members of the Intercultural Affairs Committee at Yale — administrators with too much time on their hands, apparently — circulated an email advising students on which Halloween costumes were and were not appropriate. The Committee warned students not to make “culturally unaware or insensitive choices,” and advised them to visit https://www.pinterest.com/yalecces/, to see “a great resource for costume ideas organized by [Yale’s] own Community & Consent Educators.”

That website truly is worth a visit – especially by parents concerned with the rising cost of college tuition. In addition to warning against “culturally insensitive costumes,” it warns students to “avoid costumes that prevent you from breathing” and “costumes that prevent you from going to the bathroom.” Thus do college administrators justify their salaries.
Continue reading

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THE LOVE SONG OF LANNY J. DAVIS

No! I am not Prince Hamlet, nor was meant to be;

Am an attendant lord, one that will do

To swell a progress, start a scene or two,

Advise the prince; no doubt, an easy tool,

Deferential, glad to be of use,

Politic, cautious, and meticulous;

Full of high sentence, but a bit obtuse;

At times, indeed, almost ridiculous—

Almost, at times, the Fool.

          T.S.Eliot, The Love Song of J.Alfred Prufrock 

Lanny Davis

Whatever one might think of former Secretary of State Hillary Clinton’s use of a private email server, she has earned the nation’s gratitude on at least one score. She has provided documentary evidence that government access and law practice don’t mix well together. The sycophantic supplication of Lanny J. Davis to his former law school classmate Mrs. Clinton, begging her to put in a good word for him for a profile in process by the American Lawyer, illustrates that horrible union. Continue reading

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