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Open access

Don Mayer and Adam Sulkowski

Abstract

The two Emoluments Clauses in the U.S. Constitution forbid federal officials from accepting “any present, Emolument, Office, or Title, of any kind whatsoever” from foreign or domestic governments. President Donald Trump’s business interests generate numerous opportunities to use public office for his personal benefit. This article examines the history of the Emoluments Clauses and the Framers’ conception of corruption. The conflicts of interest alleged in pending emoluments lawsuits against President Trump would not be allowable in the private sector, and various plaintiffs argue that the Emoluments Clauses apply to all public officials, including the President. The President’s lawyers have claimed he is exempt from the application of these clauses and have raised numerous procedural objections, such as challenging who might have” standing” to bring a lawsuit to compel his compliance with the clauses. Out of three cases filed in 2017, one has been dismissed, while two judges have recognized that the plaintiffs have standing. In each lawsuit, the President’s lawyers insist on a conception of corruption that is quid pro quo, where only bargained for exchanges count as corruption. While the Emoluments Clauses require public officials to get Congressional permission before receiving such benefits, the President’s position is that Congress must first demand an accounting of any personal benefits, rather than the burden being on the President to ask permission. Thus far, two courts have rejected that approach, and as of this writing, further appeals can be expected.

Open access

Joseph D’Agostino

Abstract

Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.

Open access

Thomas Halper

Abstract

The first amendment does not protect all speech. Should it protect lies? Some argue that the state should intervene to prevent and punish lying because the people are insufficiently rational (they are too emotional, and, therefore vulnerable) or excessively rational (they find it too costly to investigate claims and are, therefore, vulnerable). Others retort that state officials are not neutral or objective, but have their own interests to advance and protect, and, therefore, cannot be trusted. Though certain kinds of lying, like fraud and perjury, are clearly not protected speech, courts have recently seemed sympathetic to the view that the proper response to lying is not government action, but the workings of the marketplace of ideas. The distinguished economist, Ronald Coase, has taken this argument much farther, applying it to commercial speech, but thus far his views have not prevailed.

Open access

Ewan McGaughey

Abstract

What explains the election of the 45th President of the United States? Many commentators have said that Trump is a fascist. This builds on grave concerns, since Citizens United, that democracy is being corrupted. This article suggests the long term cause, and the shape of ideology is more complex. In 1971, an extraordinary memorandum of Lewis Powell for the U.S. Chamber of Commerce urged that ‘[b]usiness interests’ should ‘press vigorously in all political arenas for support’. Richard Nixon appointed Powell to the Supreme Court, and a few years later, despite powerful dissent, a majority in Buckley v. Valeo held that candidates may spend unlimited funds on their own political campaigns, a decision of which Donald Trump, and others, have taken full advantage. Citizens United compounded the problems, but Buckley v. Valeo was the ‘Trump for President’ case. This provided a platform from which Trump could propel himself into extensive media coverage. The 2016 election was inseparable from the social ideal pursued by a majority of the Supreme Court since 1976. No modern judiciary had engaged in a more sustained assault on democracy and human rights. Properly understood, ‘fascism’ is a contrasting, hybrid political ideology. It mixes liberalism’s dislike of state intervention, social conservatism’s embrace of welfare provision for insiders (not ‘outsiders’), and collectivism’s view that associations are key actors in a class conflict. Although out of control, Trump is closely linked to neo-conservative politics. It is too hostile to insider welfare to be called ‘fascist’. Its political ideology is weaker. If we had to give it a name, the social ideal of Donald Trump is ‘fascism-lite’.

Open access

Bruce G. Peabody

Abstract

Given President Donald Trump’s generally non-deferential posture towards national political and governing institutions, why hasn’t his administration produced greater tension with respect to judges, courts, and established norms of judicial independence? Increased politicization of the judiciary, deepening partisanship, and distinct attributes of the President himself all seem to set up a climate of interbranch confrontation likely to challenge judicial independence norms. But at least in the first two years of this presidency, sustained opposition to courts is not evident. This analysis documents and accounts for this puzzle, ultimately contending that the President’s unexpected (and admittedly fragile) institutional comity can be traced to his personal history of relying on legal safeguards and authority as well as a complex stew of partisan and ideological uncertainty about the future direction of courts.

Open access

Robert G. Natelson

Abstract

This Article examines one of the most important state court cases ever decided. In Montana ex rel. Cashmore v. Anderson, the Montana Supreme Court exercised its original jurisdiction to order, by a 3-2 margin, that the state’s original constitution be replaced with one the people apparently had failed to ratify. In doing so, the court yielded to interest groups that favored replacing the original state constitution with an instrument based on radically different premises. Political threats may have caused the swing justice to vote for the new constitution, but even if that did not occur, the case represents a striking example of the failure of the rule of law. The Article also proposes reforms that may reduce the chances of a recurrence.

Open access

Peter H. Huang

Abstract

This Article recounts my unique adventures in higher education, including being a Princeton University freshman mathematics major at age 14, Harvard University applied mathematics graduate student at age 17, economics and finance faculty at multiple schools, first-year law student at the University of Chicago, second- and third-year law student at Stanford University, and law faculty at multiple schools. This Article also candidly discusses my experiences as student and professor and openly shares how I achieved sustainable happiness by practicing mindfulness to reduce fears, rumination, and worry in facing adversity, disappointment, and setbacks. This Article analyzes why law schools should teach law students about happiness and mindfulness. This Article discusses how to teach law students about happiness and mindfulness. Finally, this Article provides brief concluding thoughts about how law students can sustain happiness and mindfulness once they graduate from law school.

Open access

Alex Ansong

Abstract

The prohibition of armed aggression under Article 2(2) of the United Nations Charter is one of the most important developments in international law and international relations in the modern era. The fact that the right to wage war is no longer accepted as falling within the sovereignty of the state has ushered in an appreciably stable international order based on the rule of law and not the rule of might. While states obviously still engage in warfare and numerous wars have been fought by states in the era of the UN, the very fact that the prohibition of armed aggression has assumed universal acceptance as customary international law is a notable achievement. In spite of the prohibition of armed aggression under the UN Charter, self-defence and collective action mandated by the UN Security Council serve as notable exceptions. The US-led invasion of Iraq in 2003 (i.e. Operation Iraqi Freedom) was peculiar because, the justification for the invasion hinged on the enforcement of UN Security Council Resolutions. This justification thus brought to the fore whether, under international law, there was the right to unilaterally enforce Security Council Resolutions. In the current resurgence of unilateralism typified by the US Trumpled withdrawal or threat of withdrawal from multilateral systems of international governance and cooperation, it is important to reiterate the lessons of unilateralism epitomized by the 2003 invasion of Iraq and the instabilities that have become offshoots of this invasion – e.g. the creation of monsters like the so-called Islamic State. This article discusses the resort to unilateralism under the guise of enforcing UN Security Council resolutions. It also engages in a brief discussion on the justifications for war prior to the UN Charter and the provisions on the use of force prescribed in the Charter. It uses the US-led invasion of Iraq in 2003 as a case study to shed light on legality of unilateral enforcement of UN Security Council Resolutions.