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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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George Mason School of Law to become “Antonin Scalia School of Law”

March 31st, 2016

Nina Totenberg tweets the breaking news about my alma matter:

Also, I think this tweet by Eric Segall in response to Ian Millhiser is exactly right:

Update: WSJ has this report:

George Mason University School of Law, named after a founding father known for his refusal to sign the Constitution, now plans to rename itself after a man famed for a strict adherence to its words: Justice Antonin Scalia.

George Mason University’s Board of Visitors is expected to vote on the renaming Thursday afternoon. The new full name of the Fairfax, Va., school will be the Antonin Scalia School of Law at George Mason University, school officials said. The school expected to unveil the name change Thursday afternoon, along with an announcement that it has received two donations totaling $30 million, including a $10 million grant from the Charles Koch Foundation.

The change will still then need a final go-ahead from Virginia’s higher education oversight agency, which is expected to give its blessing.

The school’s dean expects that people will call it Scalia Law School for short. By July, all the school’s signage and marketing materials will bear the late justice’s name, school officials said.

Update 2: The President of GMU sent out this news release:

Dear Patriot,

Today, I am pleased to announce one major gift and several naming decisions, just approved by the Board of Visitors.

First, we have received pledges totaling $30 million to support the School of Law. These gifts, which combined are the largest in university history, will help establish three new scholarship programs, enabling us to attract more of the most talented law student candidates in the country.

The gift will create the Antonin Scalia Scholarship, named after the late Supreme Court Justice; the A. Linwood Holton, Jr. Leadership Scholarship, named after the former governor of Virginia; and the F.A. Hayek Law, Legislation and Liberty Scholarship, named after the late 1974 Nobel Prize winner in economics. The Scalia scholarships will be awarded to students with excellent credentials, the Holton scholarships to students who have overcome barriers to academic achievement, and the Hayek scholarships to students with great potential in the field of law and economics. All scholarships will be awarded exclusively and independently by the university.

As part of the gift agreement, our law school will be named the Antonin Scalia School of Law at George Mason University in honor of the long-term Supreme Court Justice.

Justice Scalia was an advocate of vigorous debate and enjoyed thoughtful conversations with those he disagreed with, as shown by his longtime friendship with Justice Ruth Bader Ginsburg, who said, “Justice Scalia was a law teacher, public servant, legal commentator, and jurist nonpareil. As a colleague who held him in highest esteem and great affection, I miss his bright company and the stimulus he provided, his opinions ever challenging me to meet his best efforts with my own. It is a tribute altogether fitting that George Mason University’s law school will bear his name. May the funds for scholarships, faculty growth, and curricular development aid the Antonin Scalia School of Law to achieve the excellence characteristic of Justice Scalia, grand master in life and law.”

That ability to listen and engage with others, despite having contrasting opinions or perspectives, is indeed at the heart of what higher education is all about.

This generous gift includes $20 million from a donor who wishes to remain anonymous, and a $10 million matching gift from the Charles Koch Foundation. We are deeply grateful to both parties for their support of George Mason University students.

This gift pushes the university’s comprehensive Faster Farther campaign past the $400 million mark on its way toward meeting our overall $500 million goal. I am particularly pleased that this gift will directly support students, the most important priority in our campaign.

The gift also provides a tremendous boost for the law school to firmly retain its position among the nation’s finest. The gift is intended to further the School’s new strategic plan, recently developed under the leadership of Dean Henry N. Butler.

The Board of Visitors today also approved the naming of a prominent public space on our Fairfax Campus after Governor Holton, who in 1972 signed into law the establishment of George Mason as an independent university. During his term as governor, he fought for school desegregation and equal opportunity, values of accessibility and inclusion that we hold so dear at Mason. Holton Plaza will be immediately adjacent to the Center for the Arts.

Finally, the Board of Visitors today approved the naming of the Occoquan Building on the Science and Technology Campus as “Senator Charles J. Colgan Hall” in honor of the longest-serving state senator in the history of Virginia. The recently retired Democratic senator from Prince William County was known and respected for reaching across the aisle to achieve state objectives, inspiring his colleagues and future public servants to work together for the common good. He was an ardent supporter of higher education, and the architect behind hundreds of millions of dollars invested in our university, Northern Virginia Community College, and universities across the Commonwealth.

Today’s board actions highlight the outstanding contributions of so many individuals, from business to government, who helped us build this university from a small branch campus of the University of Virginia to its current status as a tier-one research university with the largest enrollment of any public university in the Commonwealth. I am grateful to each one of them.

Thank you for all you do for George Mason University.

Sincerely,

Ángel Cabrera

Flashback to October 2015: The Fatal Conceit of Chief Justice Roberts’s “Long Game”

March 31st, 2016

In October, I wrote a post about the fatal conceit of Chief Justice Roberts’s so-called “long game.” In light of the 4-4 split in Freidrichs, this portion of my analysis seems especially timely:

The long long game, however, suffers from a much deeper problem. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the “fatal conceit.” Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the “fatal conceit” of central planners that they presuppose enough knowledge to control all aspects of human existence. The notion that Roberts can forge a thirty-year plan—-Stalin only tried for 5 years–to transform the law crumbles on inspection.

The Supreme Court does not exist in a vacuum, where a stasis is maintained. Everything changes. First, and most obviously, the composition of the Court changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, if President Clinton appoints three Justices, all of those plans vanish instantly. His first decade of planning and calculating will be for naught, and the Chief Justice will be in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they’ll vote. Maybe those Justices will also have a master plan, and will not agree with the Chief’s plan. Or maybe (hopefully not) we will get another Souter or Stevens.

Yes, all of the slow incrementalism that has characterized the Roberts Court presupposes a stasis that is impossible. Had the Court overturned Abood in Harris v. Quinn in 2014, rather than saving the question for another day, Friedrichs would not have mattered. Now, if Justice Garland (or someone likeminded) replaces Justice Scalia, Abood will likely never be overturned.

What about the Chief’s all-important dicta in NFIB about the commerce clause–the so-called saving grace of the saving construction? With Justice Garland on the bench, that language will remain dicta. (Indeed, one of the few dissents Judge Roberts wrote on the D.C. Circuit was in a commerce clause challenge concerning the endangered species act and the “hapless toad”–Judge Garland wrote the panel opinion).

What about the Court’s decision in Fisher I to punt the question, and then grant certiorari again? Well, now we are down to 7 Justices, and it is unlikely any meaningful majority opinion could be reached. The decision not to reach the merits the first go-round, and to kick the can down the road, means the can will stay on the road.

What about the Second Amendment? The Court consistently denied certiorari on every conceivable Second Amendment case, even while the 5 members of the Heller and McDonald Courts were still around. Now, with a Justice Garland (who would have voted to rehear Parker, the D.C. handgun case), Heller is on precarious grounds–perhaps not of outright reversal, but of limiting it to its facts to make it a dead letter.

I could go on, but you get the gist. To the extent that the Chief had any sort of long game, that would be accomplished by slow, incremental decisions, those plans may never go to fruition. The best laid schemes o’ mice an’ men, go oft awry.

ConLaw Midterm: President Trump Uses Execute Action To Build Border Wall

March 31st, 2016

If you are interested, my ConLaw students had to suffer through this somewhat-plausible fact pattern involving President Trump and how he will make American safe again.

Instructions:

The year is 2017. You are a law clerk for the Chief Justice of the United States. He has asked you to prepare a memorandum of no more than 1,000 words addressing five issues affecting several major cases pending before the Court.

The year is 2017. After his landslide electoral victory, President Donald J. Trump—as promised—rips apart an agreement that was negotiated with Iran by President Obama. President Trump then accuses the Iranian ambassador to the United States of using the Iranian embassy in Washington, D.C. as a terrorist training camp. Trump announces that he plans to no longer recognize the Iranian ambassador, who was previously received by President Obama in the waning days of 2016.

Congress swiftly enacts The Ambassador Removal Act of 2017, which states that “The President shall receive the advice and consent of the Senate before rejecting a previously-recognized ambassador from a country that the United States has a commercial relationship with.” President Trump vetoes the bill, but the Congress overrides it. President Trump argues that he cannot be bound by the statute, and then formally rejects the credentials of the formerly-recognized Iranian ambassador.

After his credentials are revoked, the FBI executes a search warrants of the Iranian embassy, and discovers a nuclear bomb in the basement. The FBI arrests the ambassador, and charges him with material support of terrorism. As he is being hauled away in handcuffs, the ambassador announces that that he wants the Justices of the Supreme Court to review his case.

In response, Congress enacts The Judiciary Act of 2017, which states that “No court of the United States, with the exception of the District Court for the District of Columbia, shall have original jurisdiction for terrorism prosecutions.” The ambassador is then indicted in the District Court for the District of Columbia. The attorneys for the ambassador filed a motion to dismiss the indictment, charging that this case must be heard in the original jurisdiction of the United States Supreme Court. The district court denies the motion to dismiss the indictment. A jury convicts the ambassador, and the court sentences him to life in prison. The D.C. Circuit Court of Appeals affirms the conviction. The ambassador files a petition for certiorari with the United States Supreme Court, which is granted.

After the conviction of the ambassador, an investigation reveals that Iranian agents smuggled the nuclear bomb across the Southern border from Mexico. President Trump calls on Congress to enact The Border Security Act of 2017, which states that “The President shall have all powers that are necessary and proper to secure the southern border with Mexico.” With the fear of domestic terrorists rising, Congress swiftly enacts the law. President Trump announces that he will use the power of eminent domain to seize all of the private property within five miles of the Southern border, so he can use it to construct a huge wall. Under the comprehensive plan, President Trump offers what he deems “just compensation” to the property owners. He justifies this action by citing the authority vested in him by The Border Security Act of 2017, as well as Article II of the Constitution. A group of ranchers who own property along the southern border in Texas file suit, claiming that President Trump lacks the authority to use eminent domain against their land. The district court dismisses the case, and the Fifth Circuit Court of Appeals affirms. The ranchers file a petition for certiorari, which is granted.

President Trump announces a new policy, known as Deferred Action for Tax Evaders (DATE). Trump explains that the Internal Revenue Service lacks the resources to prosecute all people who fail to file accurate tax returns. (Congress only appropriates enough money to audit 400,000 people per year, and there are an estimated 11 million people who do not file accurate tax returns). Under DATE, taxpayers who owe less than $1 million in back-taxes can register with the IRS, and receive an assurance that they will not be audited or prosecuted. Hillary, who owes only $500,000 in back taxes, registers with the IRS under DATE. After receiving a letter indicating that she would not be audited, Hillary is audited, and then indicted on federal charges for tax evasion. She moves to dismiss the indictment, citing the assurance given to her under DATE. The district court rejects her argument, and she is convicted of tax evasion. The court of appeals affirms. Hillary files a petition for certiorari with the Supreme Court, which is granted.

The Chief Justice asks you to prepare a memorandum of no more than 1,000 words addressing the following five issues affecting these cases:

 

  1. Did The Ambassador Consent Act of 2017 violate the President’s executive authority, and the separation of powers? In your answer, be sure to cite any relevant provisions of the Constitution.
  2. Was the ambassador correct that his case could have been heard in the original jurisdiction of the Supreme Court? In your answer, please address the impact of The Judiciary Act of 2017 on the ambassador’s claim, and whether that statute was constitutional.
  3. Did President Trump have the authority to use eminent domain to seize the properties near the southern border? In your answer, please address the authority Congress delegated to the President pursuant to The Border Security Act of 2017 as well as Article II of the Constitution.
  4. Was DATE a constitutional exercise of the President’s authority? In your answer, please address the President’s duty to take care that the laws are faithfully executed.
  5. In consideration of questions one through three, discuss what weight, if any, the Court should give to the fact that that the United States faces a serious domestic terroristic threat.

Prop1 Class 21 – Marital Property II

March 31st, 2016

The lecture notes are here.

 

What is the value of a law degree? According to a (controversial) article, titled The Economic Value of a Law Degree, the value of a law degree, as opposed to stopping with a bachelor’s degree is roughly $1 million over the course of the year:

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historical norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

This chart depicts the value of a law degree over the course of a persons’ career.


simkovich

This chart breaks down the lifetime earnings from a law degree by decade across percentiles (ranging from people the bottom to the top of law degree holders):

simkovich2

Here are the numbers broken down by gender:

bygender

This is the great diva Frederica von Stade.

von-stade

Here is Stade singing at the 1991 Metropolitan Opera Gala

And more opera.

Justice Ginsburg, one of the most famous opera fans in the country, is a huge fan of von Stade, listing her work as among her favorite:

Mozart, “The Marriage of Figaro”; Samuel Ramey, Lucia Popp, Thomas Allen, Kiri Te Kanawa, Frederica von Stade, Kurt Moll, Robert Tear, Georg Solti conducting the London Philharmonic and London Opera Chorus (Decca).

The duo also share something else in common. They were both selected by the Georgia O’Keeffee Museum as Woman of Distinction: RBG and van Stade.

Sec. 2.401.  PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1)  a declaration of their marriage has been signed as provided by this subchapter; or

(2)  the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b)  If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c)  A person under 18 years of age may not:

(1)  be a party to an informal marriage; or

(2)  execute a declaration of informal marriage under Section 2.402.

(d)  A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

Also relevant for our discussion is 2.001 (emphasis added):

Sec. 2.001.  MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.

(b)  A license may not be issued for the marriage of persons of the same sex.

 

ConLaw Class 21 – Substantive Due Process and Economic Liberty

March 31st, 2016

The lecture notes are here.

Substantive Due Process and Economic Liberty

Lochner v. New York

Standing on the right is Joseph Lochner.

joseph-lochner

Here are photographs of Lochner’s bakery in Utica, New York.

lochner-bakery

lochners-bakery

Here is the cover of a recent book aimed at rehabilitating Lochner, which depicts Justice Rufus Pekham, author of the majority opinion, knocking out Justice Oliver Wendell Holmes, author of the famous dissent.
rehabilitating-lochner

Through sleuthing at the Oneida County Clerk’s Office, I discovered this advertisement for Lochner’s bakery. According to the ad, Lochner’s Home Bakery “is one of the oldest and most reliable bakeries in Central New York. We pride ourself on Uniformity, Purity, Cleanliness.”

Advertisement for Lochner's Home Bakery - Harlan Institute for Constitutional Studies

Muller v. Oregon

Here is the Lace House Laundry from Muller v. Oregon.

muller-oregon

Here are workers inside the Lace House Laundry, courtesy of the Oregon Historical Society.

Muller-workers

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.

West-Coast-Hotel

United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722Grosjean v. American Press Co., 297 U.S. 233Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369Fiske v. Kansas, 274 U.S. 380Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390Bartels v. Iowa, 262 U.S. 404Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supraNixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”

 

Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

2014-03-09 13.13.57

20140309_131429

Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.

20140309_131232

Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.

hauser

creamery

equip

equip2
milnut

MilnotEvaporated425

The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).

seneca-plant

Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.

Charles Hauser pardon0001