Category: Law

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Is the Rule of Law a Chimera?

The term “chimera” has come to describe . . . anything composed of disparate parts or perceived as wildly imaginative, implausible, or dazzling.  Wikipedia

We are hearing about the Rule of Law quite a lot these days in the nation’s political dialogue.  I am wondering how the phrase is hitting the American ear.  Is it properly understood?  Is it considered important?  Why are we hearing it now only from one side of the political aisle?  Does it matter?  Does it exist?

The basic premise of the Rule of Law is easy to understand.  No one is above the law.  Everyone is equal under the law.  The law plays no favorites.  More dramatically, the Rule of Law is a sine qua non of democracy itself, of the people’s self-rule.  Without Law’s Rule, there can be no democratic form of government.  If any person or group is above the law, then by definition there is no democracy.  There is either autocracy or totalitarianism. Continue reading “Is the Rule of Law a Chimera?”

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Will the U.S. Prosecute the Former President for Insurrection and Other Crimes?

No doubt you have noticed the ongoing question of whether and when the U.S. Attorney General, Merrick Garland, will prosecute Donald Trump for alleged crimes he committed in the period leading up to the 2020 election and thereafter.  While the House of Representatives Select Committee to Investigate the January 6 Attack on the United States Capitol has already publicized evidence of presidential crimes, the Attorney General has been silent on the status of investigations into the former president’s conduct regarding his effort to have the election of President Joe Biden overturned, which led to the insurrection at the nation’s capitol on Jan. 6, 2021.  Meanwhile, according to a poll released this week, almost 60 percent of Americans believe Trump should be prosecuted for crime in connection with the insurrection. Continue reading “Will the U.S. Prosecute the Former President for Insurrection and Other Crimes?”

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Whither the Supreme Court? Notes on Law, Abortion and Religion

For more than 30 years I taught the sociology of law to both undergraduate and graduate university students.  We considered how American law developed, how it was applied to persons and groups, and with what effects on them and on the broader society.

When discussing the U.S. Supreme Court, I emphasized that the traditional law school approach to its decision-making was wrong.  There, students have been commonly trained that legal reasoning is a learned skill much like that in scientific work.  It is based on principles of deduction, according to which judges make decisions about laws by logically figuring out how the principles established in earlier court decisions–precedents–apply to the current dispute before them.  In this perspective, judicial decision-making–especially in the higher courts with the best trained lawyers–is a matter of technique.  It produces the correct legal answers based on facts and reason, free of bias and personal belief.  Competent practitioners, therefore, should reach the same, right, answers.

Although the American legal establishment placed a lot of faith in this account, and asked the nation to do the same,  it was never a true story.

Of course, if it were, how could the Supreme Court issue so many decisions with 5-4 votes?  More dramatically now, how could it be that today’s Supreme Court appears to be little more than a radical Right redoubt, one on the verge of retracting a basic right finally granted to women by the Court almost 50 years ago? Continue reading “Whither the Supreme Court? Notes on Law, Abortion and Religion”

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Will Freedom Kill Liberty?

You may recall the now-iconic phrase that emerged during the Tea Party rise in our national politics around the 2010 elections:  “Take your government hands off my Medicare!”   Now there was a valid point to it–Republicans in Congress were threatening to pass a budget that would end “Medicare as we know it.”

But the directive also betrayed a deep confusion about the role of the national government in citizens’ lives, suggesting that a major social safety net program was not a program of government.  Indeed, political science research published in 2010 found that 40 percent of Medicare recipients surveyed denied that they had ever benefitted from a government social program.

Laughable as this level of civic ignorance struck many of us at the time, in fact it poses a significant threat to the stability and security of American society.  If citizens badly misunderstand their basic relationships with government, then they are more vulnerable to the distortions and appeals of demagogues. Continue reading “Will Freedom Kill Liberty?”

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An Open Letter to Mark Zuckerberg: Common Sense is Not Yet Dead in America, So Don’t Kill Truth and Civility

Dear Mark (if I may):

Recently in a Fox News interview, you said that your company, Facebook, would not fact-check any of the President’s lies, as Twitter has begun to do. You said that, “I believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online. I think in general private companies shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that.”

Many–likely many millions–of Facebook users are upset, even outraged, at your position, including many of your own employees, especially in the face of the President’s posts inciting law enforcement and other violence against the current nationwide protests of police murders of African-Americans. And it’s not only politicians’ speech that you are allowing to run rampant over the truth and divisiveness. Since the police murder of George Floyd in Minneapolis last week, Facebook and other social media have disseminated nonsensical conspiracy theories that Floyd is not dead, that the police assault on him was faked, and that George Soros was funding the protests around the nation. Continue reading “An Open Letter to Mark Zuckerberg: Common Sense is Not Yet Dead in America, So Don’t Kill Truth and Civility”

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The Impeachment Trial and the Assault on American Democracy

If the impeachment trial of Donald Trump for the charges of abuse of power and obstruction of Congress continues on the path set for it on the first day by Senate Republicans and the President’s defense team, it will constitute the greatest assault on American democracy since the Civil War.  More so than the President’s campaign’s efforts to coordinate with the Russians to favor his election.  Even more so than the behavior in the impeachment’s own charges against the president:  that for his personal political benefit he used the power of his presidency to withhold funds mandated by Congress for Ukraine’s military defense against Russian aggression, in order to extort that country to announce an investigation of a political rival (Joe Biden), and that in unprecedented fashion he obstructed the Congress’s investigation of those events.  As such, it will either portend the end of our democracy or so diminish it that it will take generations to repair. Continue reading “The Impeachment Trial and the Assault on American Democracy”

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Five Cliff Notes on the Mueller Report

The much-anticipated (redacted) Mueller Report was released today by the U.S. Attorney General, William Barr. Here are five brief initial observations on it.

I. There is a very important distinction in American law between decisions not to prosecute crimes and whether or not crimes were in fact committed. Decisions not to prosecute potential criminal cases are commonly NOT based on prosecutors’ judgments that the suspects are innocent of crimes. Continue reading “Five Cliff Notes on the Mueller Report”

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State of the Union: Freeing Slaves, Liberating Corporations? A Short Story

In his first State of the Union address, in January 2010, President Obama broke decorum and delivered a most unusual rebuke to the Supreme Court, six of whose members were sitting only feet from his podium.   He was objecting to the Court’s decision only a few days earlier in which it extended corporations’ First Amendment rights to free speech to allow companies to fund their own advertisements for or against political candidates (Citizens United v. Federal Election Commission).  In his address the president asserted that, ‘I don’t think American elections should be bankrolled by America’s most powerful interests.’

The Court’s narrow, 5-4 decision overturned its own precedent in a 1990 case, in which it had ruled against such corporate political ads because of ‘the corrosive and distorting effects of immense aggregations of wealth’ on our political processes.

Most careful observers will conclude that the Court got things right the first time.  As it turns out, the Citizens United decision was built on both a historical irony and a Supreme Court error that dates back more than 130 years. Continue reading “State of the Union: Freeing Slaves, Liberating Corporations? A Short Story”

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