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Q & A with Epstein and Yoo
Civil Conversation
It’s an August tradition in the faculty lounge of the Law Talk podcast: every year at this time I turn over the questioning of Professors Richard Epstein and John Yoo to you the listeners (a practice we originally instituted so I could spend the month undisturbed in The Maldives).
Got a question about constitutional law? Public policy? John’s visit to the White House? Richard’s ability to perfectly recite TLC lyrics (it’s on an old episode, go find it)? Now’s your chance! Submit your question in the comments below and then tune in for answers on next week’s episode.
Published in General
Was Dred-Scott properly decided? And, of course, what does “properly decided” mean?
The parts of the constitution conservatives hate: The Postal Clauses.
Please discuss the first principles behind the postal clauses and how those fundamental principals might be applied in the 21st century.
An interesting subject that has mildly interested me long before it became central to the bad acid trip half the country is on.
Is the Logan Act constitutional?
MacDonald’s recently announced it will require all its customers to wear masks:
https://www.businessinsider.com/mcdonalds-will-require-customers-to-wear-masks-in-its-restaurants-2020-7?op=1
John, what impact will this have on your McRib consumption?
I do not think that either Yoo or Epstein would be hired to their respective institutions in 2020… especially not Yoo. (I can just imagine the hiring committee discussing his last book, much less his service in the Bush administration.)
I think my feeling is in part because my son went to a T14 law school and did not have a single conservative professor. I went to a much more modest “Harvard on the Highway,” also known as a third tier, state graduate school, and I did not have a single conservative professor.
Since branded diplomas are almost required now to enter into what I see to be a sort of 21st century American oligarchy, do you think that there will ever be a law that requires institutions to have more ideological diversity in faculty? Would that even be appropriate? What other fixes might exist for the strangle-hold of progressive thought in higher education, which honestly makes me want to get out a pitchfork, even though I don’t consider myself a populist?
Is there enough integrity in the legal community today for a distinction between legal theory and political theory to survive long term? Which Justices, left or right, maintain that distinction most consistently — that is, they subordinate their political wishes to the law, as they understand it?
Related: We on the right like to think “our guys” generally behave less cynically in this department. Are we correct?
Greetings from the Commonwealth of Virginia, or as it is quickly becoming “The People’s Republic of East California”.
The General Assembly is looking at removing the right of landlords to evicting non-paying tenants, for at least 8 months. The General Assembly is not granting public funds to the landlords for this change in the law. Thus, I have two questions:
Mr. Yoo:
Your recent book called to mind the speech AG Barr gave at the Federalist Society (last year I think). To the extent you understand his thinking on Presidential power, how does it dovetail with your own? Are there any actions or remarks made by AG Barr that you disagree with on this topic?
I’m particularly interested because it seems that Barr became AG not for love of Trump but because he had a coherent view of Presidential power he felt was worth defending. Thank you.
Can CA actaully pass a tax on people who leave CA because they used to live there?
Would it be constitutional to ban any person or company from gathering any information from a customer or visitor to a website other than information documenting a sale of merchandise or a service? Banning cookies and the gathering of any information other than that needed to make a sale? This would include, of course, banning the distribution or sale of any information about their customers.
And, if so, would that not be a better way to deal with Google, Facebook, Twitter, etc., who make all of their money selling our information, than anti-trust lawsuits?
@troysenik: You’re going to the Maldives again???
Why do people with bar cards get to lie about “Hands up don’t shoot.”? It disgusts me that candidates for president that are lawyers get to do this. These people supposedly want to be head of the justice system.
How bad does Kamala Harris rate as an executive in the justice system? It seems to me we need to keep her the hell away from the justice system.
What does it mean to be an “officer of the court”? When is that a legal issue?
Would Trump have been on solid Constitutional grounds had he told the Supreme court to mind their own business when it came to rescinding DACA executive order?
John & Richard,
With our Constitutional Federal system, it has been the American standard procedure in law enforcement to first defer to local authorities. If local authorities feel that they can’t handle a situation a very short term marshall law may be declared and the Governor of the state will call in the National Guard. As soon as order is restored (often less than 1 week) the marshall law edict is rescinded and the National Guard is withdrawn.
We are seeing a new problem. I think it started when in the aftermath of a hurricane both the mayor of New Orleans and the Governor of Louisiana were so derelict in their duties that the President of the United States employed the U.S. Military, the 82nd Airborne, to mitigate the situation. That the President was faced with the Constitutional fact that he was forbidden to use the military inside the United States was ignored by the media and he was criticized because he didn’t do it sooner.
We are now seeing again and again pure anarchy in the streets, where the police are faced with large numbers of professional rioters. Neither the local nor the state officials seem to be able to or even have the desire to handle the situation and a state of anarchy goes unchallenged for days if not weeks.
WATCH: Armed Rioters Corner, Fire at Police Vehicle in Wisconsin
If you watch this video, you will see a rioter with an automatic rifle held with the muzzle facing downward yelling profanity and orders at the police. Although such behavior would be considered an insurrection in normal times and produce an immediate reaction that would end this violent challenge to the control of the streets, the police instead calmly tell the rioter not to point the gun directly at the police!!?? They wait and then toss some teargas out of their armored vehicle to disperse the crowd.
Is there any precedent that would simply declare both local and state authorities derelict in their duties and allow a takeover by federal authority. Perhaps the President could use the 82nd Airborne again even if this time CNN wouldn’t be so hot for it.
Regards,
Jim
I have a question for Troy: how dare you, sir?
The 22nd Amendment provides (emphasis added): “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”
Textually, this prohibits election of a former President who is disqualified by prior tenure, but does not explicitly prohibit a former President from subsequently serving as President.
This leads to my series of questions: Could Joe Biden pick Barack Obama as his running mate? If so, and if they won, could Obama then become President again, if Biden were to die, resign, or be removed from office?
So in I believe it was MacDonald they hold that the government can’t ban weapons in the common usage. This is a preference for existing well established technologies, but leaves open to restricting innovative technologies.
How do we articulate a forward looking 2nd amendment legal position that protects technical innovation?
Shorter version. Does the 2nd amendment protect my right to own lasers?
If I am not going to get an hour long debate on the post office, I demand lazers and sci-fi spectical.
#nolasersnopeace
https://californiaglobe.com/section-2/california-supreme-court-orders-gov-newsom-to-justify-school-closure-orders/
By Evan Gahr, August 26, 2020 7:50 am
The California Supreme Court has given Governor Gavin Newsom until Friday to respond to lawsuits seeking to enjoin his orders that bar schools opening for in-person learning.
The lawsuits, formerly known as “writ petitions” were filed by the Tyler and Bursch law firm on behalf of a coalition of parents, private schools, a charter school and the Orange County Board of Education.