Robert’s Rules of Order

I’m sure most of you are familiar with the idea of Robert’s Rules of Order.  They are used by countless civic organizations for meetings.  What is surprising to me, after looking into this a bit, is that there is almost no academic writing about them.  It’s surprising because: (a) they probably wield significant influence over what many folks think about deliberative assemblies; (b) they must reflect a broader understanding about how democracy should work; and (c) I don’t know why they became the gold standard.

I raise this question in part because of something curious in the rules of the Republican National Convention.  The Convention’s default rules are from the House of Representatives.  Convention committee’s, though, use Robert’s Rules of Order.  Why are they different?  And how do those differences matter?  Hard to say, as I don’t know enough about the details of Robert’s Rules.


How an Anarchist Changed Oliver Wendell Holmes’s Future


Seattle, WA: Last evening I joined David Skover to see (yet again) Stephen Sondheim‘s dark musical, Assassins. Afterwards, I turned to David and said: “Well, not all of those assassinations proved for the worst. Holmes, after all, owed a debt to the anarchist who murdered President McKinley.” So here is a page from that story, the true one that is.  

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Leon Czolgosz

Leon Czolgosz

September 6, 1901 is one of the most important dates in American constitutional history, though few think of it as such. On that day Leon Czolgosz attempted to assassinate President William McKinley at the Pan-American Exposition in Buffalo, New York. Though the President would live several more days, the two shots the anarchist fired ultimately killed McKinley (he died on September 14th) and thereby put in motion a string of events that led to Oliver Wendell Holmes, Jr. becoming the fifty-eighth Justice on the Supreme Court.

But for the death of the President, the seat to be vacated by Justice Horace Gray would not have gone to then Chief Justice Holmes of the Massachusetts Supreme Judicial Court. No — President McKinley had other plans. Here’s what those plans were:

As the summer of 1901 wound down, it became apparent to McKinley and others that Justice Gray was ill and was likely to retire soon. So the President turned to his friend John Davis Long, then Secretary of the Navy, for advice. Though Long had nominated Holmes to the Massachusetts bench when he was governor, he did not recommend him for the U.S. Supreme Court. Instead, Long urged the president to select Alfred Hemenway, his law partner.  And Hemenway was prepared to accept the position if and when offered.

As it turned out, however, Horace’s delay in retiring combined with McKinley’s assassination changed everything. Thereafter, Henry Cabot Lodge, a U.S. senator from Massachusetts and one of Theodore Roosevelt’s close friends, recommend Holmes for Gray’s seat when the ailing Justice stepped down in July 1902. Roosevelt acted on Lodge’s suggestion and nominated Holmes. By December the Senate confirmed him, unanimously.

As ironic as it was, Oliver Wendell Holmes owed his justiceship to a crazed anarchist.


Promising Official Jobs for Support

192px-Dwight_D._Eisenhower,_official_photo_portrait,_May_29,_1959During the presidential campaign there has been some discussion of a provision in federal law (18 U.S.C. § 599) that bars candidates from promising jobs to garner support. I’m not clear whether this provision applies to presidential candidates, but if it does I’m not sure why it should.

History is replete with situations where presidential candidates did exactly this to either get the nomination or win an election.  John Quincy Adams and Henry Clay in 1825 (Secretary of State), Dwight D. Eisenhower and Earl Warren in 1952 (the Supreme Court), and candidates who offered the vice-presidency to win over convention delegates for support. (Ronald Reagan, for example, in 1976). I don’t see why any of this should be a crime.

While I’m on the subject, I think it would be great if candidates would name some key Cabinet members in advance, much as you see a “shadow Cabinet” in parliamentary countries.



State Antitrust Law

Here’s a topic that came up in a faculty workshop the other day.  What does state antitrust law do?  The federal antitrust statutes do not preempt state law.  Large mergers are scrutinized by state AGs for compliance with their state statutes.  Yet the state statutes are all virtually identical to the federal ones, and it appears that states in this area do nothing more than seek to extract rent as the price of not seeking to block or delay a corporate transaction.

Could state law being doing more in this respect?  Should one state amend its statute as an experiment?  If so, then how?  Or should Congress conclude that state antitrust law is a fiction and actually preempt those statutes?  Thoughts?


A Senate Executive Order

I want to try to draw an analogy between the Senate’s refusal to give Judge Garland a hearing and President Obama’s use of an executive order to implement immigration reforms.

What is the difference between an executive order and a statute? That’s pretty obvious–the former does not bind the next President while the latter does.  What is the difference between the Senate’s refusal to vote on a Supreme Court nominee and a statute that eliminates a vacant seat?  The same thing.

Here’s the next thing. One objection to President Obama’s executive order on immigration is that he lacks the statutory authority to do what he did.  (The Supreme Court will take that up later this month.)  Another complaint, though, is that the order is legal but that a President should not address such a sensitive and important question unilaterally.  He has a duty, you might say, to work with Congress. For the Senate’s inaction on Judge Garland, the argument is similar.  The Senate has the power to not act, but that on such an important matter they have a duty to work with the President by acting.

In both cases, though, the “duty” is just political.  If the President thought that taking unilateral action on illegal immigration would be politically harmful, he wouldn’t have done it.  The same is true for the Senate Republicans now.  We’ll see if they are right.


FAN 104 (First Amendment News) Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center

 “Being bruced” means being prosecuted or harassed for speaking freely, for expressing unpopular ideas, or for breaking taboos. To be “bruced” is to be silenced for exercising one’s First Amendment rights. The expression  derives from Lenny Bruce’s free-speech encounters with the law.

Lenny Bruce, the ribald comic and free-speech hero, returns to life this evening for an 8:30 performance at the National Constitution Center in Philadelphia. Mr. Bruce, who inspired a generation of uninhibited comics, was charged with speech crimes for his comedic performances in Los Angeles, San Francisco, Chicago, and New York. In 2003, New York Governor George Pataki posthumously pardoned Mr. Bruce for his 1964 obscenity conviction.

Lenny Bruce

Lenny Bruce (1925-1966)

This evening’s performance (Can We Take a Joke?) is being supported by FIRE to celebrate “Freedom Day.”

Can We Take a Joke? is a documentary about the threats that outrage culture poses to comedy and free speech, featuring interviews with comedians such as Adam Carolla, Gilbert GottfriedLisa Lampanelli, Heather McDonaldPenn Jillette, and more.

FIRE partnered with the DKT Liberty Project and director Ted Balaker of Korchula Productions to produce Can We Take a Joke? Due for release this fall, the documentary explores many topics and cases, including the case of student Chris Lee, whose satirical play Passion of the Musical was disrupted by a group of students who had been organized by Washington State University administrators. It will also include interviews with FIRE President and CEO Greg Lukianoff, long-time FIRE friend and Brookings Institution scholar Jonathan Rauch, and Stand Up For Speech Litigation Project attorney Robert Corn-Revere, who was lead counsel in the petition to posthumously pardon Lenny Bruce.

Many of us lament the fact that college and high school students today don’t seem to appreciate freedom of speech as much as they should. This suspicion, unfortunately, pans out in recent surveys of millennials and generation Y. But rather than blaming the students, we should understand that we as a society have not been doing a very good job of educating students about the importance of freedom of speech. I try to do this in my writing, and FIRE is always trying to reach new audiences, but we realized many years ago that perhaps the best way to reach the largest possible audience is to remind students that comedy is impossible without freedom of speech. As I’ve said many times, you can either have a right not to be offended or you have good comedy, but you can’t have both. Can We Take A Joke? isn’t for everybody, but I think it will really connect with people who never really thought much about freedom of speech and how much we rely on it in every facet of our lives. — Greg Lukianoff (executive producer)

→ See Reason TV: Nick Gillespie interviews Greg Lukianoff re documentary.

If you’re a college student, there’s still time for you to apply for free exclusive screening rights to show the documentary on your campus between April 13th and April 20th. The deadline is fast approaching, however, so make sure to apply ASAP.

→ Related: Ronald Collins & David Skover, The Trials of Lenny Bruce: The Fall & Rise of an American Icon (Kindle edition, 2012) (see here also)

Full disclosure: I am a consultant to FIRE and likewise appear in the Can We Take a Joke? documentary.

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Headline: Westboro Baptist Church counter-protesters who flew American flags found guilty of picketing church Read More


Rule of Recognition for Party Nominations

There are many scenarios that could play themselves out at the Republican National Convention this July, but here is one that I thought I’d flag.  Suppose the loser claims that he was cheated out of the nomination by a manipulation of the rules, questionable rulings on delegate credentials, etc.  A lawsuit challenging the official result would almost certainly go nowhere, but . . .

How does a state official decide who is the Republican nominee for President?  This is almost always a ministerial task, but what if the loser argues to, say, the Secretary of State of Florida that he was the real winner of the nomination and should appear on the ballot.  (Kind of like the medieval period where there were two Popes each claiming that the other was not legitimate.) Does that Secretary of State have the discretion to decide who won?  If so, how would she decide?  And if that decision were challenged by another candidate, on what basis would a state court overturn that decision?



Viewpoint Discrimination in IP

Here’s a question that came up in a panel that I was on last week on some intellectual property issues. Suppose somebody makes a movie that contains completely loathsome content.  Let’s say the film seeks to justify racism, sexism, or you-name-it ism.  I would venture to say that nobody would argue that the creators of such a movie could be denied a copyright in their work.  That’s true even for child pornography, though there the copyright would be of little or no value because distribution or possession is a crime.

Why, then, does federal trademark law permit the PTO or a court to refuse or invalidate a registration on the grounds that the mark is equally offensive?  The Federal Circuit en banc recently held in In re Tam that this authority was unconstitutional, and I suspect that the Supreme Court will take this case and affirm.  But I’m curious to hear what the counterargument is? Are marks different from copyrights for purposes of First Amendment analysis?


FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)


51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.


Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More


Federal Trade Secret Protection

Yesterday the Senate unanimously passed a statute creating a federal cause of action for the violation of trade secret.  I do not know what the prospects are for this legislation in the House, but I want to express my opposition to the bill.

In general, I take a dim view of federal statutes that seek to take over regulation traditionally handled by the state common law.  There are situations where that is warranted, but this is not one of them.  Trade secret protection is in place in every state, and there is no reason to think that this system is inadequate.

Naturally, companies often prefer one national standard to many state standards, but in my view that does not justify federal action.  An article from Reuters commenting on the bill stated that trade secret cases are currently “relegated to state courts,” which is not the way I would describe federalism but does accurately describe the attitude behind the statute from Republicans and Democrats.

I hope the House decides not to take up this legislation.