The View from Right Field

Will Conservatives Be Happy With the Supreme Court Overturning Chevron If Trump Wins in November?

The following appears in the Letters section of today’s Financial Times under the heading “US courts vs. agencies is not a left-right problem”:

"Brooke Masters is quite right in saying that U.S. businesses may come to regret at least some aspects of the Supreme Court’s Loper Bright decision overturning the “Chevron deference” doctrine that held judges should defer to the decision of government agencies when laws are ambiguous (Financial Times, Opinion, “Red-tape win for US business may backfire”, July 12).  This may also be true, when political winds change, for conservatives who applauded the decision.  Progressives, on the other hand, may come to love Loper Bright.

Free Speech and “Censorship Envy”

With all of the protests about Hamas’s attack on Israel and Israel’s response thereto, the question of free speech is coming up again.  Of course, all the woke and anti-woke campaigners in the US are raising lots of free speech issues, too.  My main response to these is “Thank God for James Madison and his friends.”  The United States is so lucky to have the First Amendment – and a Supreme Court willing to enforce it.

I could go on, but really I don’t need to – because Eugene Volokh, professor of law at UCLA, has done it so well in “Censorship Envy” at The Volokh Conspiracy (and Reason.com).  There is no reason for me to try to write something when he does such a great job.  Read his article/post, "Censorship Envy," here. 

"Why Legal Writing Is So Awful"

A recent issue of The Economist had an article on “Why legal writing is so awful”.  The article listed several possible reasons: (i) the “curse of knowledge”; i.e., lawyers don’t know how to write for non-lawyers; (ii) by writing complex stuff, you can charge more for it; etc.  The article concludes that the most likely reason is the “cut-and-paste” hypothesis.  It is easy to copy what others have already done and add extra language, thus making things more complex, to fit the new situation.

After practicing law for 39 years, much of it writing contracts and other documents, one a joke, one more serious.  The joke was that it was all part of an in-group game, sort of like the Scrabble®, we lawyers had going.  And in that game, “notwithstanding the aforegoing” was triple word score.

More seriously, my real thought was this: When I was asked to write up something in a rush, I would tell people (in the spirit of Blaise Pascal) that if it can be long, I can do it quickly.  Short and simple, however, will take longer.  It requires more work and more time.

On the Special Counsel for Donald Trump

I let out a big sigh when I read that Attorney General Merrick Garland has appointed a special counsel to investigate whether Donald Trump should be indicted with respect to the events of January 6 and with respect to confidential documents he took to Mar-a-Lago.  I sighed because, at least to me, the appointment means former President Trump will likely be indicted, and I can’t see that as a good thing.

I don’t know whether former President Trump broke any laws with respect to January 6 or the Mar-a-Lago documents.  I don’t know all the facts, and I don’t know the specifics of the laws.  But, ultimately, I don’t think former President Trump should be indicted because I don’t think it will help the country.  I want former President Trump gone.  And I think the best way to get him gone is to just ignore him.  Don’t talk about him.  Stop giving him the respect of attention.

Biden Is Forgiving Debt for Former Students. He Should Tell Colleges to Cut Tuition for Current Students.

President Biden gave former college students a $10,000 gift ($20,000 in certain cases) if they borrowed money for college and haven’t paid it back.  But he didn’t give anything to current college students, which doesn’t seem fair.  So here’s my idea: For current students, he should force colleges to cut their tuition by $2500/$5000 a year (which is $10,000/$20,000 over four years).  It wouldn’t be that hard for the colleges.  Purdue has kept its in-state tuition at $9,992 for ten years.¹  Colleges can cut their costs – if they want to.  They could reduce the number of administrators; they could get a few teachers to teach an extra class; they could figure out ways to reduce fees.  There’s lots of things they could do.

And if President Biden’s lawyers can come up with a way to claim he has the legal authority to forgive all that student debt, I am sure they can come up with a way he can force colleges, at least any college that gets money from the federal government, which is just about all of them (except, maybe Hillsdale College), to cut their tuition.  And that wouldn’t even cost the federal government $300 billion.
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Note: I hope readers understand this post is a bit of a joke – except for the idea that colleges could cut their tuition.  They could - if they wanted to.  That's not a joke
¹ See here and here.

Solving Gun Violence – Without a Time Machine

I totally understand the calls for new gun control legislation.  What is happening is horrific.  The problem is that most of the proposals involve a time machine.  Let me explain.  Too many of the calls for gun control assume we can go back in time and get rid of the Second Amendment (which would involve going back to the early 1790s).  Or that we can, at least, go back to before the Heller decision in 2008, and get the Supreme Court to issue a different decision in that case (which might require going back before 2008 and getting at least a couple different justices on the Supreme Court). 

Many of them also assume we can go back to a time when we did not have upwards of 400 million guns in the United States. 

Overturning Roe v. Wade – And a Call for the Great Middle of America to Take the Issue Back

In September of 2018, I wrote a post about Roe v. Wade and the possibility that it might be overturned.  (It was the time of the confirmation hearings for Brett Kavanaugh.)  At that time, I said this:

“What people don’t understand in the debate over a woman’s right to choose is that we are not evenly divided between those who support a woman’s right to choose and those who oppose abortion.  Actually, views on abortion are divided among four groups: (i) those who oppose a woman’s right to choose under virtually any circumstances; (ii) those who want abortion available virtually without restriction; (iii) those who would allow it in some situations; and (iv) those who allow it in many circumstances. 

Do Kirkland & Ellis and the Biden Administration Have the Solution to Crime?

With Roe v. Wade getting overturned today, this post is probably a day late and a dollar short.  But here it is anyway:

Paul Clement and Erin Murphy, who won the case in the Supreme Court against New York state’s relatively strict handgun law,  New York State Rifle and Pistol Association v. Bruen, have announced that they are leaving the law firm they were at, Kirkland & Ellis.  According to them, Kirkland & Ellis told them that the firm would no longer take firearms cases and that they needed to stop representing clients such as the New York State Rifle and Pistol Association or leave the firm.  Not surprisingly, Clement and Murphy are leaving K&E.¹  In any case, the lesson is clear: K&E doesn’t want to provide legal representation to unpopular clients – or at least certain unpopular clients.

Two Nations, One Country, Talking Past Each Other

I watched parts of a couple of Sunday morning news shows this morning (for the first time in I don’t know how long).  Among the stories were (i) the January 6 committee hearing last week in prime time and (ii) the protests outside Supreme Court Justice Brett Kavanaugh’s house and the guy arrested and charged with his attempted murder.

With respect to the January 6 committee, I don’t know if I learned much new.  For me, January 6, and the events leading up to it, told me all I needed to know about Donald Trump.  He lost the election, he tried to overturn the results on specious grounds, and he should not be considered any kind of candidate for any kind of office ever again.  The committee hearings may tell me a little more about January 6, but it will only make him look worse, and the prior sentence is still true. 

Here’s My Theory Why Self-Driving Cars Are a Long Way Off: Lawsuits

On Monday, the Financial Times had an article noting that driverless cars may create more traffic jams because more people will take cars if they don’t have to drive themselves.  But, the article also noted that “[p]redictions for driverless cars hitting the road en masse have repeatedly been proved wrong.”  The FT published my letter giving my theory why in Friday’s paper.  Here it is (there is no link because it is behind their paywall):

“Lex talks about how driverless cars may result in more cars on the road as people find car travel even easier if they don’t have to drive themselves.  (‘Driverless cars: jam tomorrow’, March 7)  But the article also notes that, ‘[a]fter a decade of hype and hundreds of millions of dollars of investment, you still can’t buy a self-driving car.’  As the article concludes, ‘[t]he future [of driverless cars] may also be further away that investors hope.’