Law Talk #18: The Defense Claus
Blue Yeti ·
December 21, 2011 at 9:27pm
It's the last Law Talk of the year, and we're going out in with a bang. This week, America's most beloved legal minds (along with host Troy Senik) discuss Newt's problem with the law (fair warning, Newt fans), the professor's issues with the ABA, cut rate law schools, and we wind up by asking Richard and John debate the most important developments in the law over the past year. See you next year!
It's the law: everyone can listen in above, but if you want to hang with Epstein,Yoo, and Senik on your phone or tablet, subscribe to the show in iTunes (click there for the direct link) or on Stitcher, you must be a Ricochet member. Join today!
Our thanks to the great EJHill for the illustration.
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Comments:
Mar '11
Re: Law Talk #18: The Defense Claus
I strongly agree with Richard (and Jon) on Newt's attack on the courts.
No doubt, there are certain occasions, on which Jon is entirely correct, that an Executive must demand that a court "enforce" its ruling. They should be extremely rare, and only under the most dire of circumstances. Civil War, the most dire circumstance, qualifies.
Newt, however, has given us no limiting principle in his doctrine. Frankly, I don't think he actually believes that subpoenaing judges will change anything--I think he's using it to demagogue an issue most voters don't understand--and thus Richard is absolutely right on the substance. Newt's policy is not a check on the judiciary a la Madison. Instead, he's gone straight Robespierre.
Dec '10
Re: Law Talk #18: The Defense Claus
No chance to listen, now, but it's saved. With the new IE browser, right click the Subscribe link, then left click, the "http" URL code in the text, then you can Save As.No time to listen, right now, Crow's Nest, but I will look forward to it. I wonder what you, Jon, and Richard think about the fact that the Constitution leaves it to Congress to establish every federal court beneath the SCOTUS and, given that, whether or not they might occasionally request some feedback. Not Newt, as a candidate for President, but the Congress.
Gotta run!
May '11
Re: Law Talk #18: The Defense Claus
Enjoyed the discussion of the 9th Circuit, but I have a few questions for the professors.
Re: Law Talk #18: The Defense Claus
CN,
You're on to something here, but there is also another motive at work. If you notice, apart from a few vague references to national security, every example Newt cites in his attacks on the judiciary has to do with issues of religious freedom (school prayer, the cross in San Diego, "One Nation Under God" etc.). Because he's not comfortable with discussing social issues in a conventional fashion, he's attempting to use this as a way to back in to winning over the social conservatives he needs in Iowa. Ever since he saw the poll numbers showing the public's lopsided opposition to the Ninth Circuit's "One Nation Under God" ruling, he's been fixated on this. It's a political calculation, but one that didn't factor in the blowback that could come from such a bombastic approach.
Crow's Nest:
Newt, however, has given us no limiting principle in his doctrine. Frankly, I don't think he actually believes that subpoenaing judges will change anything--I think he's using it to demagogue an issue most voters don't understand Dec 21 at 1:20pm
Mar '11
Re: Law Talk #18: The Defense Claus
He's attempting to use this as a way to back in to winning over the social conservatives he needs in Iowa. Ever since he saw the poll numbers showing the public's lopsided opposition to the Ninth Circuit's "One Nation Under God" ruling, he's been fixated on this. It's a political calculation, but one that didn't factor in the blowback that could come from such a bombastic approach.
I agree, Troy.
Every politician panders. Some instances are less egregious: the book signing/baby kissing variety. Some instances are more concerning because they exploit the ignorance of the audience rather than attempting to educate it.
Newt over the years has used his platform for good, and educated voters on issues. But here, as he has also done over the years, he's pandering to an audience that doesn't understand much about the way the courts operate, or the separation of powers. He is able, therefore, to articulate a policy which would endanger both of these principles because 1) the voter in question won't know any different; and 2) he has no intention of actually putting the policy in place once elected.
Oct '10
Re: Law Talk #18: The Defense Claus
Thanks to all involved for (nearly) a year of great podcasts. This is truly an exceptional achievement.
Jan '11
Re: Law Talk #18: The Defense Claus
I have not had a chance to listen yet and apologize if the professors offer an explanation in the podcast but why is there a separation of powers concern with members of the judicial branch being called before Congress to explain their decisions but not with members of the executive? All are co-equal branches, no?
Jun '10
Re: Law Talk #18: The Defense Claus
Troy Senik:
...
It's a political calculation, but one that didn't factor in the blowback that could come from such a bombastic approach.
...
Oh, do you think Newt should "factor in the blowback" now, Troy? That's a good idea. We need to get that over to Newt's headquarters right away.
Newt has learned that blowback is there no matter what.
I agree that this is a political calculation -- and it's a damn good one. In my opinion, we have been dealing with this country's takeover by the leftists for way too long without a revolution (except the Reagan one) and we have been way too silent on this issue. I consider Roe v. Wade to be obscene. If the Republican Party had any viability this would have been dealt with a long time ago. How can a country not rule itself? Why can't conservative legal minds approach it this way: let's get creative and find a way to meet the demands of the American people.
Newt's creative. A political campaign is a brawl and it is often a binary decision. People need to get on board.
Apr '11
Re: Law Talk #18: The Defense Claus
Troy Senik: CN,
If you notice, apart from a few vague references to national security, every example Newt cites in his attacks on the judiciary has to do with issues of religious freedom (school prayer, the cross in San Diego, "One Nation Under God" etc.). Because he's not comfortable with discussing social issues in a conventional fashion, he's attempting to use this as a way to back in to winning over the social conservatives he needs in Iowa. Ever since he saw the poll numbers showing the public's lopsided opposition to the Ninth Circuit's "One Nation Under God" ruling, he's been fixated on this. It's a political calculation, but one that didn't factor in the blowback that could come from such a bombastic approach.
It may be what he gives as examples, but his generalized, rather than specific, assault on the rule of the Constitution means that the impact is more likely to be felt in supporting the Citizens United overturn movement than in the Pledge. It is a great example of Steyn's view that he excitedly and creatively supports left and right, but only the left stuff makes a difference.
Feb '11
Re: Law Talk #18: The Defense Claus
"Simple Rules for a Complex World" is a great book!
Regarding Richard's call for reading books over 100-year-old (and Roman): Thomas Cooper's 1812 Translation and Annotation of Justinian's Institute is available for free at http://books.google.com/ebooks/reader?id=Z31IAAAAYAAJ.
Mar '11
Re: Law Talk #18: The Defense Claus
Is this not a premium podcast anymore? What's with the Ricochet sales pitch if only the paying members will hear it?
Jul '11
Re: Law Talk #18: The Defense Claus
I was both heartened and disappointed that law schools have fully embraced the milquetoastization of our students. I've long thought that this has more to do with marketing than actual education, in that having a staff or office devoted to putting emotional bandages on the poor, disadvantaged college or law student is part of the sell for the school. I would be less inclined to look at this in a negative way, but I know full well that a big chunk of the money for these staff gigs is baked into the tuition, which is largely a function of the student loan regime. Schools would have a much harder time selling the value of an education if parents and students considered what constitutes the college's actual costs, not what it's pitching as a "value".
Most school administrators, from low- to high-level, are so in love with the academy it physically pains them when the value of the education is questioned. "Since it's being taught, it must inherently be valuable" is the mantra - and now students are funding warm, touchy-feely counselors to help them get through their day.
Nauseating.
Re: Law Talk #18: The Defense Claus
Troy, do you have the book recommendations they made listed anywhere? I found this in the Amazon instant video section:
Also, do some consulting with Legalzoom.com. They are constantly being sued by bar associations attorneys general, and other dinosaur legal interests across the country for trying to do exactly what Prof. Epstein was talking about in this podcast. Legalzoom makes certain legal documents possible without paying an attorney the kind of rates an attorney would have to charge to mess with these kinds of documents like wills, name changing, copyrights, etc.
Jun '11
Re: Law Talk #18: The Defense Claus
The professors do not address this point directly, but I think the best answer lies in the fact that we view the relationship between the two political branches (congress and the executive) differently then we view the relationship between the political branches and the non-political branches. We tend to expect that with in pretty broadly defined limits the political branches will use every tool at their disposal to do battle with one another. However, when it comes to the judiciary, which we want to keep independent and free of political interference, we do not see it as appropriate for congress to move against the courts as a method of politically punishing them. This is why we would see cutting the budget of a court in response to a ruling differently than cutting an agency's budget.
Jan '11
Re: Law Talk #18: The Defense Claus
Jesse Duddy
The professors do not address this point directly, but I think the best answer lies in the fact that we view the relationship between the two political branches (congress and the executive) differently then we view the relationship between the political branches and the non-political branches. We tend to expect that with in pretty broadly defined limits the political branches will use every tool at their disposal to do battle with one another. However, when it comes to the judiciary, which we want to keep independent and free of political interference, we do not see it as appropriate for congress to move against the courts as a method of politically punishing them. This is why we would see cutting the budget of a court in response to a ruling differently than cutting an agency's budget. · Jan 4 at 12:48am
I would accept that if the courts would refrain from making political decisions. As it stands, courts are free to usurp political power on the basis of weak constitutional arguments while the political branches stand aside impotent for fear violating the separation of powers the court already violated.
Jun '10
Re: Law Talk #18: The Defense Claus
Klaatu
...
I would accept that if the courts would refrain from making political decisions. As it stands, courts are free to usurp political power on the basis of weak constitutional arguments while the political branches stand aside impotent for fear violating the separation of powers the court already violated. · Jan 5 at 2:56pm
Well said! Thanks for responding on this. I meant to -- but what you say here cannot be improved on.
Re: Law Talk #18: The Defense Claus
Anyone can listen using the embedded player in the post above, and the show is also carried by a couple of legal blogs. That's why we do the short sales pitch.