Category: General Law


FAN 124 (First Amendment News) Ellen DeGeneres raises First Amendment defense in defamation case

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs? Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

 “It was all in good fun,” reported Elura Nanos, “until Ms. Pierce’s phone blew up with harassing calls and messages. And to make matters worse, she was on her way to a family funeral. Comedic timing really is everything.” In light of that, on “Ms. Pierce filed a lawsuit in Georgia Federal Court against  DeGeneres, alleging Invasion of Privacy, Misappropriation of Likeness, Defamation, and Intentional Infliction of Emotional Distress.”

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

The Plaintiff is being represented by Stacey Godfrey Evans.

See video clip, courtesy of LawNewz, here.

Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

unknown“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

“Circuit Judge Cheryle Gering entered an order dismissing the defendants on Aug. 24.”

“‘BPI’s decision to dismiss some of the other defendants does not release the primary targets of the litigation, nor does it have anything to do with the merits of our case,’ BPI attorney, Erik Connolly, of Chicago, said in a written statement. . . .”

“BPI sued ABC, its correspondents, federal officials and a former employee in September 2012 in Union County Circuit Court and will attempt to prove that a series of stories and broadcasts that began in early March 2012 defamed the company’s Lean Finely Textured Beef. . . .”

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley” Read More


A Forthcoming Book to Recommend

I was at The University of the South (Sewanee) for a conference on the 150th anniversary of Tennessee’s ratification of the Fourteenth Amendment. There were many terrific presentations there, but I wanted to single out one by Dan Sharfstein about his upcoming book entitled Thunder in the Mountains: Chief Joseph, Oliver Otis Howard, and the Nez Perce War.  (It’s available for pre-order here.)  Here is the Abstract:

The epic clash of two American legends―their brutal war and a battle of ideas that defined America after Reconstruction.

In 1865 Union Army General Oliver Otis Howard took charge of the Freedmen’s Bureau, tasked with helping millions of former slaves become free and equal citizens. He was so committed to civil rights that Howard University was named for him. But when Reconstruction failed, General Howard was sent to the Pacific Northwest to force Native Americans onto reservations. His biggest adversary was Chief Joseph, a Nez Perce leader who doggedly pushed federal officials to save his ancestral territory and to give Native Americans equal rights. Although Joseph echoed Howard’s earlier views about liberty for freed slaves, in the summer of 1877 the general and his troops ruthlessly pursued Nez Perce families who refused to leave their homes. Thunder in the Mountains is the story of two remarkable Americans who fought vicious battles across 1,400 miles of the northern Rockies and waged a war of ideas about freedom, equality, and the role of government in American life.


FAN 123 (First Amendment News) When you think of free speech, think of “45” — New book by Stephen Solomon explains why

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

“[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

“First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

unknown-1 “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

“In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

A video of this salon will be posted in an upcoming issue of FAN.

The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for” Read More


Does Law Matter? The Economics of the Family Revisited

Economist Shoshana Grossbard’s book, The Marriage Motive: A Price Theory of Marriage: How Marriage Markets Affect Employment, Consumption and Savings (2015), provides important insights into the impact of the legal system on families.  It sheds new light on many of the questions that today’s law professors and family policy analysts address; yet, it a book that that only professional economists are likely to read.  The reasons tell us a lot about what has happened to the law and economics movement of the last thirty years, and the different directions its influence has taken.

At the time I started writing about Family Law at George Mason in the eighties, law and economics was in its heyday.  Peg Brinig and I, my George Mason colleague at the time, began to explore the implications of what seemed to be an exciting new field for our work on the financial consequences of divorce.  The articles we wrote were characteristic of the law and economics scholarship of the era.  We took the economic analysis of contract damages, applied it to the theory that justified spousal support, and reported on the insights it generated in critiquing the normative foundations of family obligations.  In process, we did no empirical work, nor did we rely to any great extent on empirical work in our law review articles.  Instead, we argued that contract theory, then dominated by economic analysis, accurately framed the normative choices judges and legislatures faced about such matters as the role of spousal support in the legal system and the likely impact of such choices on divorce rates.

Thirty years later, the intersection of law and economics looks quite different.  Within both Economics and Law, abstract equations and arm-chair legal analysis, respectively, have given way to much more rigorous empirical work.  Brinig, who is now at Notre Dame, obtained a Ph.D. in Economics and does empirical work informed by the type of questions lawyers ask about issues such as the role of custody rules on women’s inclination to initiate divorce or the response to domestic violence.   I have found my own work less influenced by economics and more by sociology, as sociology offers a deeper qualitative analysis of the reasons for family decisions, particularly the class-based split in family form, fertility, and father involvement.  Grossbard’s work reminds us that we have retreated to our disciplinary silos; while law professors cite other law professors who use economic or sociological methodologies, they have become less likely cite economists and even in the social sciences, imperial Economics has given way to a greater variety of methodologies, with proponents of each freer to ignore the work in other fields.

But what about Economics itself?  What has happened to the economic analysis of family decision-making?  And what lessons, if any, does the work of economists like Grossbard offer for Family Law?  To answer these questions requires starting with the legacy of Gary Becker.  Becker, a University of Chicago economist, won a Nobel Prize for his efforts to extend economic analysis generally and price theory in particular to nonfinancial realms such as crime, discrimination and the family.    He is viewed as almost single-handedly creating the modern economic study of the family, and while law professors no longer spend much time on Becker, economists do.  Virtually every economic article on the family starts by acknowledging the debt to Becker, even as these economists immediately go on to note that Becker’s major predictions were wrong and (cough, cough) we can now therefore ignore him.

Grossbard, who studied under Becker at Chicago, does something quite different.  She wishes to reclaim Becker’s original work on the family, work that was more eclectic than the later efforts for which he is known, and to use his methodologies without the hubris that characterized his more famous pronouncements.   Becker’s best known work, which Grossbard describes as one of the most frequently cited books in Economics (p. 8), is his 1981 Treatise on the Family.  It describes a unitary model of family decision-making that rests on two widely criticized assumptions.  The first is the idea that the benefits of marriage come from a gendered exchange between wives who “specialize” in cooking, cleaning and childrearing while their husbands specialize in “the market.”   He predicted accordingly that higher earning women would be the least likely to marry and dual earner couples who brought home carry out dinners and hired others to clean the toilets for them would be less stable.  The second is that, remarkably for an economist, he incorporated ideas of altruism into family decision-making.  The problem is that he asserted that a presumptively male head of the family would value the interests of the entire family while an egotistic second spouse would place her own interests ahead of those of other family members.  Becker’s critical predictions proved wrong – the only group in society whose marriage rates have increased are the highest earning women – and perhaps more importantly he proved tone deaf in describing the changing role of women and families in an era of greater gender equality.  Moreover, he tends to be associated with neoliberal political prescriptions, some of which he enthusiastically embraced.  While Becker’s work is more nuanced than his critics (and this brief description might suggest), it is easy for those who disagree to dismiss him altogether.

Within the economics of the family, however, Becker’s influence lives on.  After all, he invented the field and even his critics acknowledge the debt they owe him.  Grossbard begins her book by acknowledging his influence and attempting to refocus the field on the traditional subjects of economics.  Her subtitleHow Marriage Markets Affect Employment, Consumption and Savings” emphasizes that marriage is a product of markets, and that market exchanges depend on prices.  The book thus closely examines the factors that affect “price,” including gender ratios that alter the terms available to men and women who want a relationship with a member of the opposite sex.  More fundamentally, though, she is interested in how market terms affect employment, consumption and savings.   While Grossbard does not assume that marriage necessarily rests on a gendered exchange of men’s income for women’s services, she does see a trade-off, with some spouses investing more in household services than others (p. 181).  Much of the discussion of employment and consumption (and to a lesser degree savings) in the book involves this tradeoff: how do we understand the factors that determine the terms of the exchange.  In other words, if we see both paid employment and the consumption of domestic services as a product of markets, what determines their price?  When does it make sense for a spouse to stay in the paid labor market, while hiring others to provide child care and domestic services, and when does it make more sense for a spouse to provide such services directly?  This is the traditional subject of price theory and Grossbard attempts to reclaim the analysis as central to the economics of the family.

As someone who also wrote a book in 2014 on “Marriage Markets” (with Naomi Cahn), the part that immediately fascinated me was the discussion of gender ratios.  Grossbard assembles data across the United States and finds that gender ratios do appear to validate some of the empirical predictions the theory suggests.  She finds, for example, that holding other things constant, where men outnumber women in a given market, men’s labor participation increases and women’s declines, as men need a higher income to land a partner, and women find that they do not need to rely on the same degree on their own earnings (p. 8).  These findings have deep implications.   They suggest that gender performance, while not exactly the same as in the Ozzie and Harriet world of the fifties, is still alive and well.  Moreover, she offers empirical support for the same conclusion we reached that these effects are greater for the better educated.  The result contributes to the growing statistical portrait of class divergence in family formation practices, but without venturing very far into the possible explanations.   Economics still resists any real discussion of class as either a cultural or economic construct.

For most of the family law world, however, her most interesting findings involve the effect of legal differences.   Central to economic theory is the notion that an exchange of income for service requires trust; that is, protection of the vulnerabilities of a spouse who forgoes economic independence to contribute to the family.   The marital exchange has historically required permanence in order to encourage that exchange.  Yet, critics have also long noted that marital permanence came as well from women’s powerlessness in a system in which men can leave with their market-based resources intact while family-oriented women cannot.  Grossbard relies on an updated version of these theories.  By incorporating the tradeoffs into price theory, she suggests that they exist on a continuum.  The issue is not whether women should invest in the home instead of the market (Grossbard’s interest in positive, not normative analysis).  Nor is the question whether it is more “efficient.”  Instead, the question is the entirely empirical one: to what degree does it occur?  Her answer is that it depends in part on the extent to which the law protects the exchange.

Grossbard attempts to measure the effect by exploring jurisdictional differences.  And one of her most intriguing chapters addresses common law marriage.  As a general matter, one would expect unmarried cohabitants to forego paid labor to a lesser degree than married couples and most studies (again holding constant for other factors such as mothers’ income) find that to be true (p. 86).  Grossbard asks a rarely pondered question: what about common law marriage?  On the one hand, common law marriage extends to unmarried couples the same benefits as marriage if they show that they intended to be married.  On the other hand, only a minority of states recognize common law marriage and it’s not clear that couples in common law marriage states know that the courts might treat them as married.  Grossbard runs a statistical analysis of the difference in women’s workforce participation in common law marriage and non-common law marriage states and finds that the law matters (Chapter 7).   Should we believe her?

The question goes to the heart of the differences between the ways that economists and law professors approach such issues.  Roughly a decade ago, I moved from California to Missouri, to a neighborhood six blocks from the Kansas line.  As a law professor I knew that Missouri did not recognize common law marriage while Kansas did.  Yet, during the many discussions I had with my friends, colleagues and now adult children about where to live, the subject of common law marriage never arose.  With State Line Road running through the middle of the metropolitan area, there was an awareness of legal differences; for one thing, liquor and gas taxes are higher on the Kansas side and so is the likelihood of being stopped for a minor traffic infraction.  But not once did I hear a discussion of common law marriage, expect when I raised it in my family law class.

Grossbard finds that the state line matters.  Her statistical correlations show that, holding constant for demographic and other measurable factors, in the states that recognize common law marriage, female cohabitants work less outside the home.  Is she right?  I have no doubt that her statistical analysis is correct.  The question is whether she accurately captures the effect of the law or of differences among those states that recognize common law marriage versus those which do not.  Grossbard has attempted to control for things like the ability to afford a house on the Kansas side of the state line and easily measured attributes such as race.  The question is whether she can capture traits such as a preference for diversity (in which case one in more likely to live on the Missouri side) versus a preference for distance between neighbors (making Kansas residence more likely).  It is hard to test for these differences, but they may well correlate with the issue of whether unmarried female cohabitants have more traditional versus progressive attitudes and thus work outside the home.  On the other hand, she draws her data from a national sample, not just those unusual states whose borders transact a single metropolitan area.

This leaves Grossbard’s work as both simultaneously intriguing and frustrating.  When I read Peg Brinig’s current work, I see questions informed by legal analysis, rooted in vocabulary to which law professors are responsive.  When I read Grossbard’s work, I see questions framed by economists.  As a family law professor teaching at a law school within a few blocks of a state line, I spent a lot of time wondering about what difference the state line – and the corresponding differences in family law – meant.  Over time, I discovered that, at least then, second parent adoption was easier in Missouri while adoption without paternal consent was easier in Kansas, and that many people made very conscious decisions about where to live or give birth based on these differences.  I am prepared therefore to believe that common law marriage also makes a difference.  Yet, never being involved in a discussion of the issue, I remain a skeptic, though after reading Grossbard, that skepticism has moved from a conviction it did not make much difference to agnosticism about whether it might.

This ambivalence summarizes the current state of the interaction between law and economics.  Grossbard is a true economist.  She focuses on issues that have historically been the subject of economics such as price theory.  She uses an empirical methodology associated with rigor in economics that is off-putting to lawyers (as least those of us who glaze over at extended discussions for regression analyses).   She describes her theories in terms that do not necessarily ring through to lawyers, who are more focused on conscious thought processes than statistical correlations.  Yet, Grossbard, whether right or not, should get us to think again about things we take for granted.  Legal theorists assume that the law reflects different values.  We further assume that it affects case outcomes.  Does it also affect culture; that is, does it create feedback loops that reinforce behavior in ways that we cannot fully trace?  Grossbard’s work, like that of other economists who try to map statistical correlations, challenges our intuitive understandings of causality.  She suggests that the connections may not be at the conscious level and that we may not have figured at all the relationships between law and behavior.  Her work is worth reading for that reasons alone.

Within the realm of family law and policy, there are two worthwhile ways to read her work.  The first is quick and dirty.  Read the introduction to the book and to the chapters that interest you.  Look for the evidence she marshals that support your preconceived notions.  It is excellent footnote material and along the way it may get you to think twice about some of your preconceptions, but it will be a quick read.  For those more ingrained in empirical analysis, the question is how to translate Grossbard’s work into language that makes more sense to those of us engaged in family law.  What part would be more persuasive with a minor change in vocabulary?  And what part needs to be reconceived?

True interdisciplinary analysis requires something more than the simplification that law and economics, at its imperial height, promised.  Instead, it involves genuine integration of different forms of analysis into a shared discourse.  Law, as an applied field, offered the potential to supply the fulcrum that could integrate these various forms of analysis.  Today, instead, we seem to retreating to our disciplinary silos, with J.D./Ph.D.s forced to choose the discipline in which they hope to make their mark.  Grossbard’s work is economics – no question there.  The issue is the terms on which her discussion of the law can be framed to challenge legal scholars to address the issue: does law matter and, if so, can we measure its impact?


A Comment on Dayid Cay Johnston’s The Making of Donald Trump By William K. Black Associate Professor of Economics and Law, UMKC


As a white-collar criminologist who teaches economics and law, I view Donald Trump as an absurd figure.  His scams are so crude, witness Trump University, that he is an embarrassment to con men in a time when the elite Wall Street fraudsters of the C-suites took down the global economy.  Trump is too small time and unsophisticated to rate the term scam “artist.”  What makes Trump’s rise so revealing about our Nation’s rot is that he has parlayed this equivalent of a “paint by numbers” scam non-artistry into a serious threat to becoming the next president of the most powerful nation in the world.  Our Nation has been run by some bad leaders, but never by a charlatan who is transparently a charlatan.  The real story of Trump, therefore, is what has become of America’s elites that someone who is a caricature of everyone’s crazy, nasty uncle could now become president.  `

David Cay Johnston is the perfect person to tell this story because he is the top expert on Trump, having covered him for decades as a reporter.  Johnston’s Pulitzer Prize winning body of work shares a common theme – it shows how corporate elites and their political cronies have become parasites of such magnitude that they are ruining the economy and ruining the middle and working classes.   His best known work is Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich–and Cheat Everybody Else (2003).

David Cay Johnston’s book tells us not only about Trump, but about our pathetic and predatory elites.  Those elites have not simply failed to stop Trump, many of them are aiding him because they know he is a third-rate con man.  Johnston’s introductory chapter gives us the example of Hugh Hewitt, the Republican talk show host that purports to exemplify “serious” Republican elites.  Johnston begins with what wonks know – Hewitt asked Trump in the December 2015 Republican debate about the “nuclear triad.” Trump’s answer made clear that Trump had no idea what the triad was, but equally importantly it made clear that he would not admit the fact, ask what Hewitt was referring to, and give a reasoned answer.  That incident made obvious why Trump is such an unsophisticated con – he is too lazy to do his homework, he is exposed by even simple questions, and rather than stop talking when he is making a fool out of himself, he goes on endlessly.

But then Johnston adds the key even very few wonks know.  Hewitt asked Trump the same question about the nuclear triad four months earlier on his radio show – and Trump’s answer was another witless whirl of words racing down a drain.  Hewitt’s question on his radio show about the “triad” was a simple question for anyone running for president – the equivalent of a 70 mph (not very) fastball down the heart of the plate that Trump should have been able to rip for a home run.  Hewitt, four months later, was now lobbing the exact same question to Trump to ensure that Trump would look like a heavyweight slugger on national security – and Trump proved he was so lazy and so uninterested in national security that he fanned on the question for a second time.

But here’s the key takeaway made clear by events after Johnston wrote his book.  Hewitt is continuing to act as Trump’s surrogate.  When Trump is on Hewitt’s radio show, Hewitt openly advises him how to correct his absurd responses when Trump raves.  Hewitt is supposed to represent the “thoughtful Republicans” seeking honest, intelligent leadership.  Johnston’s book shows us not only the innumerable ways in which Trump’s entire life is a mash-up of predation and lies – but the failure of the “conservative” “elites.”  These elites know that Trump represents what Lincoln would have called the worst “angels of our nature” – and support or at least refuse to stop his rise to power.  Trump would be our most corrupt president, but the real danger comes from those who are not lazy and are far brighter than Trump.  The sophisticated and far wealthier frauds are salivating at the prospect of using Trump to allow them to predate with impunity.  The elite banksters that led the epidemics of “control fraud” that caused the financial crisis have blazed that trail of impunity.  Thousands of wealthy predators are eager to widen that trail into the Drumpf autobahn.  Trump is their dream president because he is such a putz.


David Cay Johnston’s The Making of Donald Trump — And the Unmaking of the Rule of Law

David Cay Johnston is part of a disappearing breed: an investigative reporter who spends months delving into the details of how the world works.  A frequent AALS speaker and Distinguished Visiting Lecturer at Syracuse University, Johnston won a Pulitzer Prize for his work on taxes – documenting how the tax system has changed to engineer huge payoffs for the rich at the expense of everyone else.  In the course of thirty years of investigating how the elite rig the system, primarily for The New York Times, Johnston developed a huge file on Donald Trump and as Trump sewed up the Republican nomination, Johnston drew on those records to write The Making of Donald Trump, released this August.


The book draws on decades of interviews, financial records, court documents, and public statements, to take a close look at Trump’s business dealings and rise to power.  Johnston has written extensively about Trump’s mob ties, his use of real estate investments to evade taxes, his gaming of the political system to profit financially from campaign contributions, and his personal values.  Johnston recalls telling anecdotes, such as Trump’s role in rewriting his father’s will to cut his brother’s widow and children out of the Trump fortune.  When the family sued, Trump had his brother’s son’s health insurance cut off in retaliation.  The child, who suffered from seizures and cerebral palsy, depended on the health insurance his grandfather had provided for him.


Johnston is at his best, however, in working through the financial picture.  He initially met Trump when he started to cover Trump’s role in Atlantic City casinos when Johnston was the Atlantic City bureau chief for the Philadelphia Inquirer.  Johnston quickly concluded that Trump knew little about the casino business.  By the early nineties, Johnston found that Trump’s casinos were poorly managed and often the first to fail.  He also detailed how Trump managed to get and hold casino licenses despite clearly established mob ties, prior investigations that he improperly failed to disclose, and other irregularities that should have led to disqualification from the casino industry.  What Johnston shows is that while Trump may not have known much about business, he clearly understood politics – as he threatened to build a competing casino in Manhattan, pressured New Jersey officials to cut short their investigations, and lied or shifted gears when it suited his purposes.  He very consistently has left the “little people” – and the public — holding the bag as he looked put own interests first.


As he did in Perfectly Legal, his book about the tax system, Johnston shows how Trump, like many of the new elite, have systematically undermined the very idea of the rule of law.  Trump threatens to sue anyone who crosses him, a trait Johnston suggests that Trump learned from Roy Cohn, and that he has experienced firsthand.  Johnston has also read the available documents and deposition transcripts from Trump litigation, and finds that they show consistent patterns.  Trump denies remembering unsavory associates with whom he once had close relationships.  When public officials press hard, he offers them things that they want, and wins their cooperation.  Johnston reports, for example, that New Jersey officials came to his rescue in his casino bankruptcies; they told creditors that if they foreclosed on Trump properties they would not receive casino licenses, thus pressuring the banks to restructure Trump’s debt on favorable terms.  And when litigants persevere, refusing to back down on cases that could embarrass him, Trump settles pursuant to secret agreements.  Trump has thus gotten away with flouting the rules that apply to everyone else.


Johnston is perhaps better suited to report on Trump’s taxes than almost anyone else, yet, like everyone else, he is left speculating as to what Trump’s undisclosed tax returns are likely to show.  Johnston has seen – and intensively studied – the tax returns Trump has disclosed in earlier litigation.  They show irregularities that could well constitute tax fraud, such as filing a return under the signature of a preparer who testified that he never saw the returns.  Johnston explains how the laws that deal with real estate depreciation make it possible for Trump to defer paying taxes indefinitely, effectively borrowing money at government expense that finances his billionaire life style.  He further questions whether Trump has given much to charity.  Perhaps most tellingly, Johnston was the first (in 1990) to question Trump’s true net worth, showing that while Trump claimed to be a billionaire, he had a negative net worth at the time.


Johnston’s book seeks to provide a window into Trump’s character.  The conduct of his political campaign has much in common with the tactics Trump has employed throughout his business career.  Yet, The Making of Donald Trump serves as well as an indictment of the legal system in an era of inequality.  Johnston shows how everything that can be manipulated will be manipulated by the likes of Trump.  He flouts the law, overwhelms underfunded government agencies, intimidates those who try to challenge him, and then settles the most serious allegations in secret deals that produce no lasting changes in his behavior or the conduct of his businesses.  And he has gotten away with this behavior his entire life.  Bill Black, in the accompanying post, asks why so few Republican elites have called Trump out for this behavior.  The answer is that while our elites are only too happy to support “broken windows” policing tactics that arrest the poor for minor offenses, they have contributed to a system that imposes little accountability on the wealthy.   The key to that system as Johnston demonstrates is that if you act as though you are rich and powerful, you can bend the legal system to serve your interests.  Black responds that the only way to combat such a system effectively is to discredit the behavior and to stigmatize those who engage in it.  Yet, Trump’s audacity in flouting the law is, as Black acknowledges, small bore in contrast with those who brought us the financial crisis and their ability to get away with it is a product of the same system.  That system starts by cutting the budgets of government agencies, as Ted Cruz has led the charge to undercut the IRS.   It allows banks (and billionaires) to become “too big to jail,” as public officials treat them as too important to the economy (or the Atlantic City casino market) to shut down entirely.  It allows lobbyists to insert special protections for the elite, whether the real estate provisions in the tax code that benefitted Trump or the Republican’s Congress’s first act in regaining control, which was to water down Dodd-Frank reforms to benefit Wall Street.  It has consistently shifted enforcement from criminal to civil venues, allowing Trump and those like him to control their own destinies.  And it no longer funds investigative reporting like that of David Cay Johnston, as news organizations pay more attention to the bottom line.  Johnston developed much of the information in this book from prior Trump investigations that became part of the public record.  Yet few people note that Trump’s fury at the judge, Gonzalo Curiel, he tried to discredit because of his Mexican-American heritage came from a decision to make some of the fraud proceedings that involve Trump University public.  Trump’s racist remarks have received substantial coverage overshadowing the documents themselves.  Yet, what both effective law enforcement and good investigative journalism do to shine light on the behind the scene maneuvers that undermine the rule of law.  We are all worse off for the systematic decay of these public systems of accountability.



FAN 122 (First Amendment News) Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)

There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –Justice Samuel Alito for the Court in Pleasant Grove City v. Summum  (2009)

Unknown-1It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:

Suppose that a State erected elec- tronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individu- als to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?

What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

UnknownAgainst that backdrop comes the cert. petition in Mech v. School Board of Palm Beach CountyThe issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.

The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”

Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:

  1. “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and 
  2. “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.

Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:

  1. “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
  2. “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”

Shawntoyia Bernard, representing the School Board, counters:

  1. “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker
  2.  “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
  3. “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”

 One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?

The case was distributed for Conference of September 26, 2016.

CJ Roberts  temporarily blocks subpoena over sex ads Read More


Introducing Guest Blogger — June Carbone

  It is my pleasure to introduce Professor June Carbone, who will be blogging with us this month.  June joined the University of Minnesota Law School faculty in June 2013 as the inaugural holder of the Robina Chair in Law, Science and Technology. Before her current position at Minnesota, she was the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the University of Missouri at Kansas City (UMKC).  And prior to that, she  was  a professor at Santa Clara University (SCU) School of Law, where  she served as associate dean for faculty development from 2000-2006 and from 2001-03 as the Presidential Professor of Ethics and the Common Good. She is an expert in numerous areas of the law, ranging from family law to property to bioethics, and she also has taught contracts, remedies, financial institutions, civil procedure, and feminist jurisprudence.

In addition to countless law review articles, June is the co-author of a leading family law casebook, the author of the ground-breaking From Partners to Parents,  and, with yours truly, the co-author of Red Families v. Blue Families and Marriage Markets. Brian Leiter recently listed her as the 6th most frequently cited family law scholar from 2010-2014.


The Journal of the Joint Committee on Reconstruction

I wanted to post about the bizarre tale of the Journal of the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment.

Unlike the Constitutional Convention, where James Madison kept an extensive record of the proceedings (supplemented by an official journal and some notes from other delegates), the only record of what occurred in the Joint Committee was created by George Mark, a clerk from Maine who probably received that assignment by Senator William Pitt Fessenden, a senior member of the Committee from Maine. Not much is known about Mark other than the fact that he later worked at the Library of Congress.

After the Joint Committee disbanded, Mark’s journal was retained by Senator Fessenden, then by his son, and then by his grandson. Around 1908, the journal was sold by the Fessenden family to a private collector. Not long after that, a doctoral student at Columbia–Benjamin Kendrick–traced the journal and was able to get Columbia to buy the original manuscript, which he then reproduced in his 1915 dissertation. Kendrick verified the Journal’s authenticity by contacting Mark’s son to confirm his father’s handwriting.  (There were also handwritten sheets from some of the members of the Joint Committee in Mark’s collection.)

This account, though, leaves many questions unanswered.  When did Mark write the journal?  At the time the Committee was meeting, or years later? Was he a reliable eyewitness? Since there are no other records of the Joint Committee’s proceedings, how do we know that Mark’s notes on the motions are correct? And did anything go missing in the decades prior to publication?  Strange that these questions have not been pursued by researchers.


FAN 121 (First Amendment News) New York law to combat Citizens United is “constitutionally unsound” says NYCLU

The headline on the official website of New York State reads: “Governor Cuomo Signs First-in-the-Nation Legislation to Combat Citizens United.” The news story begins by noting:  “Governor Andrew M. Cuomo today signed first-in-the-nation legislation (S.8160/A.10742) to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The legislation also takes significant steps to strengthen disclosure requirements for political consultants and lobbyists who provide services to sitting elected officials or candidates for elected office by requiring them to register with the state and reveal their clients.”

Unknown“This new legislation,” the news release continues, “will work to restore the people’s faith in government by instituting the strongest anti-coordination law in the country and explicitly prohibiting coordination in New York State election law for the first time. The legislation expressly identifies which activities constitute prohibited coordination, and strictly prohibits coordination in egregious scenarios, such as the ‘independent’ spender being an immediate family member of the candidate, as well as in subtle scenarios, such as the dissemination of a candidate’s campaign material by supposedly ‘independent” groups.'”

“Additionally, the legislation increases penalties for lobbying violations, while providing enhanced due process for individuals under investigation for potential violations.”

NYCLU Opposes Law

Robert A. Perry, the Legislative Director of the New York Civil Liberties Union, took issue with the law shortly before Governor Andrew Cuomo signed the legislation. “The bill,” he stressed, “is not only constitutionally unsound; it would promote public policies that are inimical to the mission of not-for-profit organizations that operate in the public interest.”

nyclu-logoThe legislation, he added, “includes several provisions that would regulate activity that is unrelated to electoral campaigns — including lobbying, as well as communications outside the definition of lobbying that addresses matters of public concern. Nevertheless, if enacted in law, the proposed legislation would direct government officials to regulate, and circumscribe, New Yorkers’ rights of speech and association.” Mr. Perry summarized his the NYCLU’s opposition to the measure this way:

  1. “[G]overnment regulation of lobbying and the imposition of disclosure requirements are consistent with the First Amendment only if they are limited to ‘direct communication’ with elected officials to influence legislation.”
  2. “[T]he legislation as well ast the state’s lobbying law and rules require the disclosure of information on contributors to organizations that engage in lobbying, even if the contributed funds are never utilized for that purpose.”
  3. [T]he mandated disclosure of personal information about contributors will undoubtedly have a ‘chilling effect’ on the exercise of protected speech and petition activities,” and
  4. [T]he First Amendment requires that the proposed regulations provide for exemptions for controversial organizations upon a showing of a ‘reasonable’ likelihood of harm from the disclosures.”

For those reasons and others, “the NYCLU objects to the legislation.”

[NB: The proposed measure was not amended after the NYCLU filed its letter of opposition to Governor Cuomo.]

See generally: National ACLU amicus brief (July 29, 2009) in support of Appellant in Citizens United.

Liberal Groups “Strongly” Oppose Legislation

Opposition to the New York law was also expressed by the following groups:

In an August 22, 2016 letter to Governor Cuomo, the groups stated:

“This poorly constructed bill will seriously harm some of New York’s most prestigious institutions, and infringe upon the rights of many public-minded New Yorkers to engage in their constitutionally protected right to comment and criticize. As a result, rather than advancing the public good, the legislation ends up as a secretly developed, clumsily drafted piece of legislation that in the end does little to advance meaningful reform other than dealing directly with problems caused by Citizens United. In fact, the legislation causes more problems than it solves by trying to solve a problem that wasn’t defined publicly and doesn’t really exist. We strongly urge you to veto” the measure.

* * *  *

See also David Keating, New York vs. the First Amendment: New ‘campaign finance’ legislation is an assault on political speech rights, New York Daily News, June 30, 2016 (“The legislation creates expansive new definitions of what constitutes illegal coordination between independent groups and candidates, and forces unprecedented reporting to the state by advocacy groups like the American Civil Liberties Union and the National Rifle Association.”)

Citizens United Group Loses Charitable Solicitation Suit  Read More