05 November 2020
What Just Happened?
The American electorate seems to have spoken and it seems to have rejected President Trump. But the there is still the possibility of mischief if Trump succeeds in using the law to thwart the election results. The US constitutional system with its strange and unique system for selecting a president is just rickety enough to make it possible for Trump to litigate his way out of an election loss. Continue reading >>
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03 November 2020
Rule of Judges, Rule over Judges, Rule by Judges
There are numerous reasons why people feel anxious about the 2020 U.S. presidential election. Donald Trump seems more than willing to use the tools at hand to manipulate the democratic game to his own advantage and to use the law and courts to impact the election, to manipulate the democratic game, and to extend Trump’s political power beyond the 2020 presidential election. Judicial intervention has, however, a self-defeating potential in terms of legitimacy. Outlined here is the clash between democracy and juristocracy, and the potential it holds for a latent autocracy. Continue reading >>
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26 October 2020
Dark Money Subverts the Rule of Law
During the recently completed United States Senate committee hearings for Donald Trump’s nominee for a seat on the Supreme Court, Amy Coney Barrett, Senator Sheldon Whitehouse of Rhode Island used his time to try to demonstrate how right-wing groups, including the Federalist Society and Judicial Crisis Network, use dark money to shape the American judiciary. A common reaction, certainly on the part of those continually disadvantaged on the policy side, is that massive dark money investment in the legal system’s actors and outcomes subverts the rule of law. Although ordinary citizens, informed commentators, and political representatives make this claim, theorists have paid scant attention to explaining why this might be so. This omission is likely rooted in the sort of concept theorists think the rule of law is. Continue reading >>28 September 2020
Justice Unlimited
The passing of Justice Ruth Bader Ginsburg and her replacement by Judge Amy Coney Barrett has led to a spike in interest in imposing term limits for Supreme Court justices. The proposals now on the table are for doing so by statute because amending the U.S. Constitution is so difficult. They face constitutional and political obstacles, which in combination make their adoption unlikely. Continue reading >>
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27 August 2020
Why Proceduralism Won’t Save Us from Trump
Can procedural rules rein in the Trump Administration? Many people got their hopes up that they can and will, especially after the United States Supreme Court announced its decision on the DACA rescission. Trump's Department of Homeland Security, however, has announced that it intends to begin dismantling DACA yet again. Continue reading >>
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16 August 2020
Weaponizing the Post Office
In our pandemic-addled moment, many once-normal activities are now considered dangerous. Hugging hello. Teaching in a classroom. Attending a concert. Having friends over to our homes. And now in the US, we have something else to add to the list of once-normal things that are risky in the pandemic: Voting by mail. Continue reading >>
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01 July 2020
SCOTUS Aids Trump’s Drive to Autocracy
The United States Supreme Court just took a big step in that authoritarian direction in Seila Law LLC v. Consumer Financial Protection Bureau, in a 5-4 decision. In that case, the Supreme Court created a constitutional rule that the President has the right to fire high executive branch officials for political reasons. Continue reading >>13 June 2020