Not Quite Schrödinger’s Cat—At least not yet

 

My amicus briefs and publications (including co-authored publications) are on both sides of the parallel federal and state Trump election-law-related litigation in: People of the State of New York v. Donald J. Trump, No. 24-2299-cv (2d Cir. Nov. 6, 2025), Doc. No. 104.1, 2025 WL 3096170 (per curiam) (ordering remand); People of the State of New York v. Donald J. Trump, Indictment No. 71543-23, 86 Misc. 3d 810, 224 N.Y.S.3d 832 (N.Y. Sup. Ct. Dec. 16, 2024) (Merchan, J.), appeal filed, App. No. 2025-00648 (N.Y. App. Div. 1st Dept. notice of appeal filed: Jan. 31, 2025) (briefing ongoing). 

Supports Trump’s Appeal In New York State’s intermediate appellate court: 

Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant-Appellant Donald J. Trump, People of the State of New York v. President Donald J. Trump, App. No. 2025-00648 (N.Y. App. Div. 1st Dept. Oct. 29, 2025) (filed by Robert W. Ray, Esq., of Sterlington PLLC, and J. Andrew Salemme, Esq., of Tucker Arensberg, P.C.), Doc. No. 72, 2025 WL 3028790, <https://ssrn.com/abstract=5652010> (making the argument that Trump’s jury-unanimity rights were violated by Judge Merchan’s jury instructions). 

Seth Barrett Tillman, ‘The Right to a Unanimous Verdict and the Jury Instructions in People v. Trump,’ Just Security (June 10, 2024), <https://www.justsecurity.org/96654/trump-unanimous-verdict/>, <https://ssrn.com/abstract=4850079>. 

Opposes Trump’s Removal of State Prosecution into the Federal Courts: 

Josh Blackman & Seth Barrett Tillman, ‘Why the Manhattan DA’s Trump Case Cannot Be Removed to Federal Court,’ Lawfare: Hard National Security Choices (May 18, 2023, 8:14 AM), <https://www.lawfaremedia.org/article/why-the-manhattan-da-trump-case-cannot-be-removed-to-federal-court> (arguing that the President of the United States is not an “officer of the United States” as that phrase is used in the federal removal statute). 

Josh Blackman & Seth Barrett Tillman, ‘New York District Attorney Bragg Argues That President Trump Was Not An “Officer Of The United States”,’ Reason—Volokh Conspiracy (May 31, 2022, 3:23 PM), <https://tinyurl.com/yv8kybyu> (arguing that the President of the United States is not an “officer of the United States” as that phrase is used in the federal removal statute). 

Josh Blackman & Seth Barrett Tillman, ‘New In Lawfare: “Why the Manhattan DA’s Trump Case Cannot Be Removed to Federal Court”,’ Reason—Volokh Conspiracy (May 18, 2022, 9:43 AM), <https://tinyurl.com/3wkxmj22> (arguing that the President of the United States is not an “officer of the United States” as that phrase is used in the federal removal statute). 

Seth Barrett Tillman, ‘Not Quite Schrödinger’s Cat—At least not yet,’ New Reform Club (Nov. 7, 2025, 2:35 AM), <https://reformclub.blogspot.com/2025/11/not-quite-schrodingers-catat-least-not.html>; 

Clearing Up Linguistic Confusion Involving Older Documents

I also add, that pre-Strunk-&-White (1918), AMERICAN-ENGLISH was much closer to BRITISH-ENGLISH, than it is today. Even today, BRITISH-ENGLISH has no hard-and-fast rules as to the placement of phrases acting as modifiers. Post-Strunk-&-White, we (users of AMERICAN-ENGLISH) are careful to place modifying phrases alongside the object being modified, else, we label them as “misplaced modifiers.” (Thank God!—for Strunk-&-White.) I begin to wonder if this is the source of some element of the confusion here.

Seth Barrett Tillman, ‘Clearing Up Linguistic Confusion Involving Older Documents,’ New Reform Club (Nov. 6, 2025, 5:58 AM), <https://reformclub.blogspot.com/2025/11/clearing-up-linguistic-confusion.html>; 

The Silence of the Criminal Defense Bar

 

 

To me, there is both a technical legal issue here and what you might also call a wider cultural issue, which is: Where is the defense bar in the United States? Usually, when there is a defendant who’s alleging a violation of a serious constitutional right, the defense bar is there, talking about it. Here, there is just utter silence. If the defense bar thinks that this Trump’s jury-unanimity argument is weak, they are certainly not saying it. If the defense bar thinks Trump’s position is strong, again, they are certainly not saying it. They are not shouting from the rooftops.

These are the same litigators who have to go into court when litigating other New York crimes prosecuted against their clients. Trump’s position, if upheld by the courts, would be a very valuable argument with regard to analyzing New York state law. Keep in mind that New York City’s defense bar includes some of the most elite lawyers in the United States, both practicing in the federal courts and the New York state courts.

I’m an academic, and other academics have published on the issue of Apprendi and jury unanimity. I’m in Ireland—I ask: Where are all the American and U.S.-based academics? Every law faculty has professors who teach procedural criminal law and substantive criminal law. Every law faculty has constitutional scholars, and this is a constitutional issue. I can guess as to why there is silence. Is this issue of little moment to them? Is it that they all support Trump and don’t want to say something that might hurt him, or that they oppose him and don’t want to say something that might inadvertently help him? Could either of these be the case?

You don’t even see vanilla analyses of these issues appearing in the major journals or even the professional journals, like the legal newspapers that report news and events of the day with short, neutral analyses. It’s a stone wall of silence on the jury-unanimity issue and that is really telling. I happen to think—and I don’t know this to be the case, as it is more of a sociological or anthropological question—one reason you have this silence is that many know Trump is right on this particular issue, but they are afraid of becoming unpopular by saying it out loud. It is Orwellian, or, perhaps, better described as characteristic of the behavior of primary school students.

….

I think it’s catastrophic, though, in terms of American legal culture that practitioners and others are afraid to talk about what they believe in academic settings and elsewhere beyond academic settings.

It should be that the loudest and most vigorous speech comes from the defense bar. They’re the guys who are constantly saying, “We will defend every single criminal to make sure that every right is protected. Don’t hold it against us that we defend wrongdoers. You could be the next target of a malicious prosecutor.” Here, if they were willing to go out and say, “Trump is guilty, and the jury instructions were correct, and here’s why”—all that would be very interesting. But we don’t even get that. We get nothing. Is it that they simply don’t care—or, even worse, that they are deeply afraid of being unpopular. I don’t know how a defense bar could be successful if popularity is governing their willingness to talk about these issues, irrespective of whether they think Trump’s jury-unanimity rights were violated.

Looking at this from the outside—and I certainly have views about the jury-unanimity issue—there is a larger cultural problem here which is, arguably, more important than the concrete legal issue. At the end of the day, it doesn’t matter whether Trump’s convictions are upheld. If he loses this case, it doesn’t affect whether he is president. He’s in office. The only way to remove him is via a House impeachment and a Senate trial ending in conviction, and I don’t see that happening. For that reason alone, we should be able to have these discussions without being afraid of political consequences because nothing that happens in the court will affect whether Trump is or is not president at this point. And yet, the stone wall of silence is still there. And like I said, it is difficult to explain why it is there.

An extract from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

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Seth Barrett Tillman, ‘The Silence of the Criminal Defense Bar,’ New Reform Club (Nov. 5, 2025, 8:17 AM), <https://reformclub.blogspot.com/2025/11/the-silence-of-criminal-defense-bar.html>;

 

What Blackman and Tillman Wrote in March 2024

 

 

 

Special Counsel Smith’s actions taken to date in this case have been unlawful. However, his actions and those of his purported subordinates, may be salvageable by operation of the De Facto Officer Doctrine. Nguyen v. United States explained that the “de facto officer doctrine ... confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Nguyen v. United States, 539 U.S. 69, 77 (2003) (quoting Ryder v. United States, 515 U.S. 177, 180 (1995)). The cases cited in Nguyen and Ryder concerned challenges to purported “officers of the United States”—all federal judges—whose appointments under the Appointments Clause were in some way defective. See also Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, Circuit Justice) (discussing De Facto Officer Doctrine as applied to a state court judge purportedly disqualified under Section 3 of the Fourteenth Amendment in the context of a collateral challenge). Admittedly, it is not entirely clear whether the De Facto Officer Doctrine applies to the facts and circumstances at hand involving a federal prosecutor.

Amici take no position on whether Jack Smith’s work to date can be salvageable by operation of the De Facto Officer Doctrine. That said: as a general matter, the focus of the De Facto Officer Doctrine insulates retrospective conduct, as opposed to prospective conduct. After there is a final judgment declaring that the (purported) Special Counsel is acting beyond his lawful authority, the government may be estopped from seeking to insulate, under the De Facto Officer Doctrine, further unlawful actions taken after an adverse final judgment against the Special Counsel.

Going forward, these Appointment Clause issues can be obviated only if this prosecution proceeds in the regular course under the supervision of the duly-nominated, confirmed, and appointed United States Attorney for the Southern District of Florida. There is no question that such a prosecution would be valid under the Supreme Court’s Appointments Clause jurisprudence. (Other constitutional defenses, such as presidential immunity, remain to be adjudicated.) Perhaps more importantly, prosecuting the Defendant under the auspices of the normal processes involving Department of Justice oversight would bring political accountability to this case.

Whether this prosecution will proceed in the normal course is a policy judgment for the Attorney General and the Department of Justice. It is not a decision this Court needs to reach in deciding Defendant’s motion. 

Extract from: Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 21, 2024) (filed by Professor Josh Blackman & Michael Adam Sasso, Esq.), ECF No. 410, 2024 WL 1214430, <https://ssrn.com/abstract=4755563>, <https://tinyurl.com/3kju33w4>.

Seth Barrett Tillman, ‘What Blackman and Tillman Wrote in March 2024,’ New Reform Club (Nov. 4, 2025, 4:40 AM), <https://reformclub.blogspot.com/2025/11/what-blackman-and-tillman-wrote-in.html>;

What I Wrote in 2014

 

 

Cassady takes the position that the [Constitution’s] disqualification penalty bars disqualified former Presidents, Vice Presidents, and officers of the United States from subsequent election or re-election to the presidency and vice presidency. In this Article, I take the contrary position: disqualified former Presidents, Vice Presidents, and officers of the United States are not barred from any constitutionally mandated elected positions, state or federal. Rather, disqualified former Presidents, Vice Presidents, and officers of the United States are precluded from holding federal appointed or statutory offices.

Given the infrequency by which the Senate [in impeachment proceedings] invokes the disqualification penalty, one might very well ask: “Why is this issue important?” The answer, primarily, is for two reasons. First, just because disqualification has been rare in the past does not mean that it might not become more widely used in changed future circumstances. One thing we know about the future (if only from past futures) is that it might be very different from what we have lived and from what we currently expect. Because the effect of disqualification on candidates and voters is (ostensibly) permanent and (according to Cassady and others) profound, in regard to limiting their participatory and voting rights, we all might be better off having a frank discussion now, while we are behind a common Rawlsian veil of ignorance, before the effects of partisanship and the demands for speed under the pressure of litigation blind us from the permanent interests of our political community.

Second, the Disqualification Clause’s “Office . . . under the United States” language and very similar language appear within many other provisions of the Constitution. So, if our originalist investigation teaches us the scope of the Disqualification Clause’s specific “Office . . . under the United States” language, what we learn will (or, at least, may) have much to say regarding any number of other constitutional provisions (using that language). Our investigation is likely to have a global or intratextual impact across our understanding of the Constitution as a whole. In other words, we can use the Disqualification Clause as a wedge to pry open a door to constitutional meaning and meanings. The combined stakes here are reasonably high.

From: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33(1) Quinnipiac L. Rev. 59 (2014), <ssrn.com/abstract=2484377>.

 

Seth Barrett Tillman, ‘What I Wrote in 2014,’ New Reform Club (Nov. 4, 2025, 4:22 AM), <https://reformclub.blogspot.com/2025/11/what-i-wrote-in-2014.html>;

 

Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77

 

  

 

Extract from Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (posted: Oct. 24, 2025)) (manuscript at 18 n.46) (bold added), <https://ssrn.com/abstract=5648310>: 

 

[I]ronically, the removal-power issue is one on which Hamilton, writing as Publius in The Federalist No. 77, can be read as suggesting, sloppily, that the Senate’s role in confirming appointments operated to limit removals as well. The Federalist No. 77, at 432 (I. Kramnick ed. 1987) (Alexander Hamilton) (“The consent of that body would be necessary to displace as well as to appoint.”). While it is possible (with some straining) to read this line, in the context of the overall passage, as intended to explain that the power to withhold consent to a new, replacement to office would operate as an indirect constraint on the President’s prerogative to remove officers, Hamilton himself reportedly acknowledged error or at least imprecision on this point at the time of the congressional debates on the State Department bill over presidential removal language.

Extract from 3 Joseph Story, Commentaries on the Constitution of the United States 390, §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833):

§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president “shall nominate, and, by and with the advice and consent of the senate, appoint,” &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself.

§ 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . .

You can find Story’s interpretation of Hamilton’s Federalist No. 77 quoted favorably in the reports of four courts of record: McElrath v. United States, 12 Ct. Cl. 201, 214 (Ct. Claims 1876) (Loring, J.); U.S. ex rel. Bigler v. Avery, Case No. 14,481, 24 F. Cas. 902, 905 (C.C. N.D. Calif. 1867) (Deady, J.); Nicholson v. Thompson, 5 Rob. (LA) 383, 393 (La. 1843) (quoted by the attorney seeking a rehearing); Field v. Illinois, 3 Ill. 79, 166 (Ill. 1839) (Lockwood, J., concurring), superseded by state constitutional amendment. The latter 1839 decision was published roughly contemporaneously with Story’s Commentaries. You can also find Story’s position quoted in congressional debate. See, e.g., Congressional Record / Senate 2492, 2493 (Mar. 18, 1886) (Spooner, Senator); see also, e.g., Congressional Globe / Senate (Supp.) 251, 259 (Apr. 22, 1868) (Logan, House Impeachment Manager). See generally Hathi Trust for other congressional sources, and other sources generally.

Likewise, you can find this passage from Story quoted in post-bellum sources by respected commentators and authors. See, e.g., Raoul Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577, 596–97 (1980) (citing Story’s Commentaries); see also, e.g., George W. Paschal, The Constitution of the United States / Defined and Carefully Annotated 178, § 185 (D.C., W.H. & O.H. Morrison 1868) (“The removal takes place in virtue of the new appointment, by mere of operation of law.” (citing Federalist No. 77)). 

You can even find two contemporaneous reviews of Story’s Commentaries. See Story’s Constitutional Law, 38 North American Review 63 (Boston, 1834); Judge Story’s Commentaries, 14(28) American Quarterly Review 327, 364 (Philadelphia, 1833) (expressly quoting Story’s as to “great earnestness”). 

See generally, e.g., Seila Law LLC v. CFPB, 591 U.S. 197, 261, 270 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (“In Federalist No. 77, Hamilton presumed that under the new Constitution ‘[t]he consent of [the Senate] would be necessary to displace as well as to appoint’ officers of the United States. He thought that scheme would promote ‘steady administration’: ‘Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained’ from substituting ‘a person more agreeable to him.’ ” (quoting Federalist No. 77) (bold added)); Reply Brief for the (United States) Respondent at 10, Seila Law LLC v. CFPB, Sup. Ct. No. 19-7 (U.S. Feb. 14, 2020) (Francisco, Solicitor General), 2020 WL 774433 (“In The Federalist No. 77, Hamilton said only that the Senate’s consent ‘would be necessary to displace’ principal officers . . . not to ‘remove’ them. Replacing an officer would of course require Senate confirmation of the replacement—which is all Hamilton may have meant.” (citing Tillman on Federalist No. 77)); Susan Low Bloch, The Early Role of the Attorney General in our Constitutional Scheme, 1989 Duke L.J. 561, 573 n.40 (1989) (using “remove”-language and “replace”-language in connection with discussion on Federalist No. 77); Jonathan L. Entin, The Removal Power and the Federal Deficit, 75 Ky. L.J. 699, 714 (1986–1987) (using “replace”-language in connection with discussion of Federalist No. 77); Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1, 30 n.164 (2023), <https://ssrn.com/abstract=3941605>; Aaron L. Nielson & Christopher J. Walker, The Early Years of Congress’s Anti-Removal Power, 63 Am. J. Legal Hist. 219, 224 n.19 (2023) (peer review), <https://ssrn.com/abstract=4361394>; Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010), <https://ssrn.com/abstract=1331664>; Michael Stern, ‘Tillman and Bailey on Federalist No. 77,’ Point of Order: A Discussion of Congressional Legal Issues (Oct. 7, 2009, 19:34 PM), <https://www.pointoforder.com/2009/10/07/tillman-and-bailey-on-federalist-no-77/>. 

But see generally J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010, at 221 n.72, 225 n.41 (2013); Ray Raphael, Constitutional Myths: What We Get Wrong and How to Get It Right 277 n.36 (2013) (“Tillman tries to untangle the puzzle by making a purely legalistic distinction between the words ‘displace’ (Hamilton’s term) and ‘removal’ (the term used in the congressional debates).”); Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol’y 169 (2010), <http://ssrn.com/abstract=1473276>; Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 238 n.55 (2023) (“Let’s be plain: What Tillman [or Story?] ultimately asks us to believe is far less plausible than what he asks us not to believe, which is the long and short of it.”). Compare Joshua C. Macey & Brian M. Richardson, Checks, Not Balances, 101 Tex. L. Rev. 89, 143 n.287 (2022) (characterizing Hamilton’s “displace as well as ... appoint” language in Federalist No. 77 as an “equivocation”), with Joshua C. Macey & Brian M. Richardson, Structural Indeterminacy and the Separation of Powers, 113 Calif. L. Rev. 1251, 1294 n.225 (2025) (“Joseph Story’s Commentaries interpreted Federalist 77’s reference to ‘dismissal’ to refer plainly to removal.”). 

What Professor Paulsen calls a “strain[ed]” reading was Joseph Story’s reading of Federalist No. 77. I see no evidence of any antebellum commentator or other source, or even any pre-21^st century source, squarely contesting Story on this point. Perhaps, Story’s reading was the standard understanding of Hamilton’s Federalist No. 77, and it is Professor Paulsen’s understanding of Federalist No. 77 that is “strain[ed]”?

I suppose the ghost of Hamilton should be thankful. In 2024, Professor Paulsen characterized Chief Justice Chase’s Griffin’s Case[1] decision as “bonkers”; here by contrast, Hamilton’s essay (Federalist No. 77) is only characterized, by Professor Paulsen, as “slopp[y].” William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605, 654 (2024) (using “bonkers” language), <https://scholarship.law.upenn.edu/penn_law_review/vol172/iss3/1/>; Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (manuscript at 18 n.46) (using “slopp[y]” language), <https://ssrn.com/abstract=5648310>.

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Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States [24 October 1800]: (“But the truth most probably is, that the measure was a mere precaution to bring under frequent review the propriety of continuing a Minister at a particular Court, and to facilitate the removal of a disagreeable one, without the harshness of formally displacing him.”);

Alexander Hamilton to the Electors of the State of New York [7 April 1789] (“It has been said, that Judge Yates is only made use of on account of his popularity, as an instrument to displace Governor Clinton; in order that at a future election some one of the great families may be introduced.”);

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Seth Barrett Tillman, ‘Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77,’ New Reform Club (Oct. 30, 2025, 5:22 AM), <https://reformclub.blogspot.com/2025/10/strained-readings-of-constitution-and.html>.  

For another commentator on this and related issues, see: David M. Driesen, Does a Removal Power Exist? Joseph Story and Selective Living Originalism, 39 Const. Comm. 1, 3 n.9, 26 & n.125 (2024) (peer review), <https://ssrn.com/abstract=4541820>; David M. Driesen, Toward A Duty-Based Theory of Executive Power, 78 Fordham L. Rev. 71, 102 n.176 (2009), <https://ir.lawnet.fordham.edu/flr/vol78/iss1/13/>. 

[1] Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, C.J.). 

The Appeal: People of the State of New York v. Trump

[A]nother thing that one has to ask is, “What is the interest of justice here that Alvin Bragg, the Manhattan District Attorney, is really serving at this point?” No matter what happens at this point, Trump remains president. And the Appellate Division can’t increase the sentence. So at best, the only thing that Bragg is defending is that Trump retains the title of felon. But at worst, he’s spending a tremendous amount of judicial resources and his own office’s resources to defend this decision by Judge Merchan. 

What legitimate purpose is served by the District Attorney (“DA”) Bragg in defending the sentence and conviction below? The traditional purposes served by the criminal law include: deterrence—general and specific, retribution, restitution, and rehabilitation. I find it difficult to see how any of these traditional purposes are meaningfully served by the DA’s defending Merchan’s decision below. I suppose that the DA’s real purpose might be fairly described as some sort of institutional expressivism—which is easy to do when spending other people’s (that is, the taxpayers’) money. But if that is Bragg’s purpose, then that simply feeds into the narrative that violations of the criminal law are not now (and never were) the core of the prosecution against Trump; rather, it was always just politics. 

The above is from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

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Seth Barrett Tillman, ‘The Appeal: People of the State of New York v. Trump,’ New Reform Club (Oct. 29, 2025, 5:43 AM), <https://reformclub.blogspot.com/2025/10/the-appeal-people-of-state-of-new-york.html>;

A Short Note on IRELAND’s Presidential Election

 

See todays (FRIDAY’s) image on GOOGLE’s front page.

Today is IRELAND’s presidential election. Three candidates on the ballot paper, but one is not running an active campaign. ... So, it is really a two-horse race—two women—an independent (formerly LABOUR) and a candidate from FG (one of the two parties in the governing FF-FG coalition). The independent is the favourite according to the bookies. Odds on the FG candidate are around 10-to-1.

The leading opposition party—SINN FEIN—did not field its own candidate. In fact, SF is supporting the independent. And the smaller opposition parties all (or nearly all) also support the independent. The third candidate, the one on the ballot paper but who is not actively running a campaign, was nominated by FF—one of the two parties in the governing coalition. My understanding is that if the FF candidate does not clear 12%, then FF will sustain considerable negative financial consequences—I think a loss of its deposit. Of course, FF also sunk its own party funds into the candidate’s election prior to the candidate’s decision to stop active campaigning.

Throughout most of post-independence Irish history, FF and FG competed with one another. Indeed, immediately after independence, the two parties’ antecedents fought on opposite sides in a civil war. Lately they have become coalition partners—the Irish uniparty.

Seth Barrett Tillman, ‘A Short Note on IRELAND’s Presidential Election,’ New Reform Club (Oct. 24, 2025, 6:51 AM), <https://reformclub.blogspot.com/2025/10/a-short-note-on-irelands-presidential.html>; 

By-Election in the U.K.

 

Welsh By-Election for Senedd (the devolved Welsh parliament)—35% swing against LABOUR Party , <https://news.sky.com/story/plaid-cymru-win-caerphilly-by-election-in-humiliation-for-labour-13455893>. 

The seat was taken by the Welsh regional party (nominally seeking independence from the UK) … with 15,961 votes (47%). This is a first-past-the-post or plurality victory. Nigel Farage’s Reform UK came in second … with 12,113 votes (36%). And Labour came in third … with 3,713 votes (11%). Conservatives crash to less than 1,000 votes (2%). Both Conservatives and the Liberal Democrats lost their deposit.

Seth Barrett Tillman, ‘By-Election in the U.K.,’ New Reform Club (Oct. 24, 2025, 6:17 AM), <https://reformclub.blogspot.com/2025/10/by-election-in-uk.html>; 

A Letter to AG Paxton and Others

Attn: Ken Paxton, Attorney General of Texas

Dear AG Paxton,

I am a U.S. citizen living abroad. I teach law in a foreign law school. I grew up in New York, and I have practiced law in the District of Columbia and Delaware.

The U.S. State with the greatest number of federal judicial vacancies is Texas—with TEN federal district court vacancies. Texas has TEN Article III vacancies. The rest of the country has collectively 50 vacancies. 1-in-6 of the vacancies are in Texas! As of October 21, 2025, there have been no nominations to ANY of the TEN Article III vacancies in Texas. Texas voted for Trump in 2016, 2020, and 2024. Texas has continuously sent two Republicans to the U.S. Senate. And Texas’ U.S. House delegation strongly leans majority Republican: circa 2-to-1.

I have written both Texas’ two U.S. senators on this issue. I would think that your office and your Texas constituents should raise (if not press) this issue with the administration.

Sincerely,

Seth

Seth Barrett Tillman, ‘A Letter to AG Paxton and Others,’ New Reform Club (Oct. 22, 2025, 4:02 AM), <https://reformclub.blogspot.com/2025/10/a-letter-to-ag-paxton-and-others.html>; 

A 1970 Judicial Decision

A 1970 judicial decision—Corbett v Corbett (otherwise Ashley) [1970] 2 All English Reports 33 (probate, divorce, and admiralty division) (Ormrod J):

Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph 2 of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less but the distinction may not be without importance, at any rate, in some cases. The question then becomes, what is meant by the word “woman” in the context of a marriage, for I am not concerned to determine the “legal sex” of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors’ criteria, i.e., the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. The real difficulties, of course, will occur if these three criteria are not congruent. This question does not arise in the present case and I must not anticipate, but it would seem to me to follow from what I have said that the greater weight would probably be given to the genital criteria than to the other two. This problem and, in particular, the question of the effect of surgical operations in such cases of physical inter-sex, must be left until it comes for decision. My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth. It follows that the so-called marriage of September 10, 1963, is void.

I must now return briefly to counsel for the respondent’s submissions. If the law were to recognise the “assignment” of the respondent to the female sex, the question which would have to be answered is, what was the respondent’s sex immediately before the operation? If the answer is that it depends on “assignment,” then if the decision at that time was female, the respondent would be a female with male sex organs and no female ones. If the “assignment” to the female sex is made after the operation, then the operation has changed the sex. From this it would follow that if a 50 year old male transsexual, married and the father of children, underwent the operation, he would then have to be regarded in law as a female and capable of “marrying” a man. The results would be nothing if not bizzare. I have dealt, by implication, with the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purpose of marriage. The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental. These submissions, in effect, confuse sex with gender. Marriage is a relationship which depends on sex and not on gender.

Seth Barrett Tillman, ‘A 1970 Judicial Decision,’ New Reform Club (Oct. 12, 2025, 9:41 AM), <https://reformclub.blogspot.com/2025/10/a-1971-judicial-decision.html>;

Joel Klein’s World Class Kinsleyesque Gaffe

 

 

          Joel Klein published a reflection on his experience clerking for Judge Bazelon (liberal) and Justice Powell (conservative). It was published as: ‘Ancient Wisdom: How a Supreme Court Justice Changed My Life,’ The Free Press (Sept. 28, 2025). Klein’s reflection is all the talk—even on academic listservs.

          Klein reports:

Time and again, [Justice Powell] would say things I found to be unexpectedly insightful and moving. I can vividly remember him once returning to the office after an oral argument and saying to me, “I just had an amazing experience with Thurgood,” referring to Thurgood Marshall, the only black justice on the Supreme Court at the time. “In the middle of the tax case we were hearing,” Powell continued, “Thurgood leaned over and said, ‘Lewis, I don’t know the first thing about a case like this, and I have no idea what the lawyers are talking about. I’m going to give you my vote.’ After I thanked him,” Powell went on, “Thurgood then said, ‘And, you know, Lewis, you don’t know the first thing about civil rights, so, when those cases come before us, you should give me your vote.’ ” Powell looked at me and added, “You know, Joel, I think he might be right.”

How, precisely, is this “insightful”? Or “moving”? Here, Klein is recounting how one judge solicited another judge’s vote in naked vote trading … across unrelated cases … with different parties. I am not going to say that such vote trading violates positive law or that such conduct has led to specific sanctions in the past in those rare circumstances where it has been ferreted out. But it seems to me, and it is just my opinion, that judicial vote trading, particularly, across unrelated cases, with unrelated parties, violates due process norms and the aspirational goal of transparent justice. What is the point of adversarial litigation if judges have secret deals which litigants are unable to respond to because they are secret? If judges are going to make such “deals,” then would it not be better to make them public, so that parties could avoid the time, expense, and heartache of bringing futile appeals? If this story really happened, and I have some doubts that it did, then I cannot fault Klein for telling the truth as he knows it. But then why does Klein tell his audience that there is something here “insightful” or “moving”? What? All this story shows is that Klein did not understand what was going on at the time, and he remains as blissfully blind now as he was then.

          And if Klein was not blind: Could not Klein have done something—proactive—about this event, at the time, rather, than just publishing it as part of a reflection long after the fact? Could Klein not have mentioned something—anything—to Powell (even on his last day clerking for Powell) or to Marshall’s clerks? Perhaps, something along the lines, that this is all a very bad look for the Supreme Court of the United States, as it would be for any court of record?

          Then there is this Klein story:

I went from being a favored clerk to a clerk in exile. Bazelon literally moved my office from the big one adjacent to his to a small one down the hall. For the next couple of months, he communicated with me through his executive assistant only. Then, in mid-March, he summoned me to his office and told me I should listen as he returned a call to Potter Stewart, a justice on the U.S. Supreme Court. To my surprise, without telling Stewart, he put him on the speakerphone and said, “Hi, Potter. I got a message saying you wanted to talk about one of my clerks, Joel Klein. You’re considering him for yourself?” Stewart started to say some nice things he’d heard about me, but Bazelon interrupted. “He’s no good,” he said. “One of the worst clerks I’ve ever had. Not very smart and doesn’t work hard.” Bazelon hung up the phone and told me that several other justices had called asking about me, and he’d given them the same report.

I was devastated. I was also astonished by what I saw as inexplicably cruel behavior by this great liberal judge.

          Let’s say Klein was right, and that Bazelon was wrong. What did Klein do about it—at the time? Did he resign? Wait a few days or weeks and, then, have a heart-to-heart discussion over a lunch? Send a written memorandum on his last day clerking, and explain that it is not right to surreptitiously have people listen in on telephone conversations between judges involved in official administrative duties? I know this might sound strange, but just perhaps, Klein could have helped Bazelon? Klein could have suggested that Bazelon take a vacation, take senior status, or therapy? Might Klein have warned (even anonymously) future clerks of the risks involved in working for Bazelon? Could Klein have appealed to Bazelon’s family? Friends? Colleagues? Spoken to the chief judge of the federal circuit court? Did Klein ever tell Justice Potter Stewart—who was on the Supreme Court when Klein clerked for Powell? Instead, Klein saved this story for when Bazelon is dead and cannot answer. In my mind, that’s a damn sight worse than what Bazelon is alleged to have done.

 

It is hardly news that each of us would have some difficulty evaluating our own accomplishments and deeds. The real issue here is not Klein, but rather, it is his Free Press editors and the many, many readers who did not see these stories for what they reveal: a world class Kinsleyesque gaffe (or series of such gaffes). Having read Klein’s article-as-memoir, and more than a few responses, I have come to two conclusions: Our political culture has more than some difficulty distinguishing cowardice from virtue, and the Supreme Court should not have any law clerks.

 

Seth Barrett Tillman, ‘Joel Klein’s World Class Kinsleyesque Gaffe,’ New Reform Club (Sept. 30, 2025, 8:35 AM), <https://reformclub.blogspot.com/2025/09/joel-kleins-world-class-kinsleyesque.html>;