Mensch tracht, un Gott lacht

Wednesday, June 21, 2023

Is It True What They Say About Chinese Food?


The Legend of Mi Yue is a made-in-China 81 episode historical court drama set in the Warring States period (about 300 BCE). It aired on Chinese television during 2015 and 2016. The actors, including its star, Sun Li, all spoke in Chinese.

What follows is a conversation between the king of Qin and his queen, a former princess of Chu. (Qin and Chu were the two primary contenders for hegemony during much of the Warring States period, with Qin ultimately prevailing.)

King Huiwen: This hair pin and your hair style complement each other.

Queen Huiwen: Qin’s LanTian jade [jewellery] is the best in the world. I have this [pin] because of you.

King: [The] Queen likes Qin’s LanTian jade. But does not like Qin’s food. I heard that you think the grains [ie, wheat from northern and western China] are too rough.

Queen: My body is weak—grains can easily upset the stomach. So I dare not use it.

King: No harm. You are the Queen. The [relatively expensive] rice [from southern China] in the palace can be eaten at your discretion. But I prefer those rice. After eating the rice, I will be hungry in one or two hours. It is not useful.

Episode 29 (bold added), <> (quoting close captioned materials) (at 7:20-8:15).

The concept that you might be hungry soon after eating certain traditional Chinese delicacies is not some foolishness rooted in bigotry, prejudice, and ignorance. Many people—including some Chinese people—have recognized that certain rice-based dishes can be digested quickly leaving the person feeling hungry in a relatively short period.

Of course, when my wife and I saw this scene, we both laughed, as I suspect many viewers in China did in 2015. The king merely stated what many know to be a true.

PS: The Legend of Mi Yue is an extraordinarily beautiful and moving historical drama. I give it 10 out of 10, only because I cannot give it an 11. 

Seth Barrett Tillman, Is It True What They Say About Chinese Food?,’ New Reform Club (June 21, 2023, 13:51 PM), <>; 

Tuesday, June 20, 2023

Climate Change Activists’ Embrace of Rationing


Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)


June 20, 2023


Irish Examiner

Letters Editor


RE: John Gibbons, ‘Why we should ration the distance each person can fly every year,’ Irish Examiner (June 20, 2023, 11:55 AM), <>.

John Gibbons suggests a 1,500 km annual allotment per Irish national/resident for air travel. So you could do Dublin–Paris round trip. Europe is within reach.

But if you are a new Irish national, from Caracas, Venezuela, and you’d like to visit family and friends: Dublin-to-Caracas is a 7,000 km distance, just one way. And if you are a new Irish national, from Cape Town, South Africa, and you’d like to visit family and friends: Dublin-to-Cape Town is a 10,000 km distance, just one way. And if you are a new Irish national, from New Delhi, India, and you’d like to visit family and friends: Dublin-to-New Delhi is an 8,000 km distance, just one way. Even Rabat, Morocco is over 2,000 km from Dublin.

Under Gibbons’ scheme, as near as I can make out, if you want to visit a historically Caucasian-majority country in Europe, then you can continue to do so tax free. But just go try and visit some third-world country where the majority population’s skin tone has a different complexion, and then you will be taxed for the privilege.

If one of Ireland’s minuscule right-wing nationalist parties proposed such a policy, they’d be labelled bigots. But if the very same policy is put forward in the name of environmentalism and climate change, precisely what conclusion or conclusions should we draw?

Is mise, le meas,


Seth Barrett Tillman

Seth Barrett Tillman, Letter to the Editor, ‘Restricting flights closes the world,’ Irish Examiner (June 27, 2023, 2:00 AM), <> , <> (responding to John Gibbons’ ‘Why we should ration the distance each person can fly every year’); 

Seth Barrett Tillman,  ‘Climate Change Activists’ Embrace of Rationing,’ New Reform Club (June 20, 2023, 12:47 PM), <>; 

Friday, June 16, 2023

Tillman on Plagiarism in the Trump Litigation Briefs

This is my answer to an inquiry about “plagiarism” in certain briefs ....

I don’t think Trumps lawyers used the word “plagiarism”—which is an assertion of a wrong. I do think it is more likely than not that my co-authored Lawfare paper (and other publications) influenced thinking on both sides and pointed both sides to further useful authorities. (Indeed, I sent copies of my publications to lawyers on both sides—a man has got to eat!)

Bragg’s attorneys cited many primary authorities (which I also had cited), and they did not take personal credit for the ideas in their brief as (wholly) original to themselves. They just decided to cite those other authorities and not to cite Professor Josh Blackman, my co-author, and me. That’s something they are entirely entitled to do. See Seth Barrett Tillman, ‘Some Thoughts on Plagiarism, Plagiarists, Fools, and Legal Fools,’ New Reform Club (Apr. 6, 2016, 2:11 PM), <>. See generally anything by Professor Brian L. Frye on plagiarism. I have written on the scope of the duty to give credit. See Tillman, ‘Some Thoughts,’ supraAnd I don’t fault Bragg’s lawyers for citing others and not me. (Of course, I would have been delighted to have been cited by Bragg’s lawyers—as I am only human.)

I also don’t think Trump’s lawyers did anything wrong by flagging to the court that there were similarities between what was in Bragg’s brief and what was in my publications, and how those similarities could be explained. “Cribbed,” as used in Trump’s lawyers’ brief, might mean no more than copied, as opposed to wrongfully copied. Some level of copying, particularly standard views and well known positions—as my views are by now after exposure on Opening Arguments and Instapundit, is to be expected in legal briefs. So some copying and cribbing is not necessarily a wrong, particularly where statements about law are at issue, as opposed to statements about facts. Indeed, that distinction is one appellate courts regularly apply to trial courts. If a trial court copies a party’s brief’s analysis of law, a court of appeals IS NOT likely to fault the trial court, much less overturn its decision. But if a trial court copies a party’s brief’s analysis of contested facts, a court of appeals IS likely to fault the trial court, and may overturn the trial court’s decision, and just perhaps, it may direct the case be moved to another judge for a retrial.

Of course Professor Hasen may have a different view.


Seth Barrett Tillman, Tillman on Plagiarism in the Trump Litigation Briefs,’ New Reform Club (June 16, 2023, 13:55 PM), <>;

See also Josh Blackman, ‘Trump’s Lawyers Cite, And Disagree with Blackman & Tillman On Whether The President Is or Is Not An “Officer of the United States”,’ Reason–Volokh Conspiracy (June 16, 2023, 1:39 PM), <>;

See generally [Former] President Donald J. Trump’s Memorandum of Law in Opposition to the People of the State of New York’s Motion for Remand at v, 2 & n.1, The People of the State of New York v. Donald J. Trump, Civ. A. No. 1:23-cv-03773-AKH (S.D.N.Y. June 15, 2023) (Hellerstein, J.) (citing multiple Tillman-authored and Blackman-Tillman-authored publications), Doc. No. 34, <>;

Friday, June 09, 2023

Additional Judges Will Not Solve the Irish Judicial Backlog



Deputy Carol Nolan TD (Independent, Laois-Offaly), Dáil Éireann debate: Court Proceedings (Delays) Bill 2023: Second Stage (Resumed), Houses of the Oireachtas (May 30, 2023), <>

Deputy Nolan discussed proposed judicial reforms and appointments, and she further stated:


The Government says that it is considering the appointment of several additional judges to speed up the process. However, I will make the point—one made by Mr. Seth Barrett Tillman of Maynooth University many times—that these appointments will not improve matters if the rules and traditions that guide the conduct of litigation carry on using the same or a similar procedural framework. In fact, it will just mean that whatever new courts we set up will continue to be weighed down by the exact same backlog in the exact same way as exists now. (bold added)


Seth Barrett Tillman, ‘Additional Judges Will Not Solve the Irish Judicial Backlog,’ New Reform Club (June 9, 2023, 9:13 AM), <>;

Thursday, June 08, 2023

A Note on the Opinion Clause and the Unitary Theory of the Executive



I do not think it is all that difficult to explain the Opinion Clause as consistent with the President’s having a removal power per the unitary theory of the executive. I am not saying the unitary theory of the executive is correct—only that that position is consistent with the Constitution’s drafters’ having incorporated the Opinion Clause into the Constitution’s text.

The counter-position goes like this. If the President has a constitutionally granted power—i.e., a power not subject to limitation by federal statute—to remove principal Executive Branch officers which he appoints, then he can direct such subordinates to answer questions. If such an officer refuses to respond to the President’s inquiries, then the President can remove the non-responsive officer. In other words, if the President has an unqualified removal power, then the Opinion Clause has no real function because the power to request opinions flows from the power to remove.

But that argument does not work. This is why.

Congress creates and defines offices. In other words, Congress can set qualifications, and Congress could also limit the ability of an officer to communicate with third parties—including the President. If Congress insulated an officer from communicating (even voluntarily) with the President, then the President would be unable to justify a removal based on the officers’ future conduct. Such conduct would not be known until it emerges. In such circumstances, the President would have to wait for the officer to engage in wrongdoing (as the President understands wrongdoing) before removing him.

The Opinion Clause works in tandem with the Take Care Clause. Both clauses empower a President in regard to supervising a subordinate Executive Branch officer prior to the latter’s engaging in wrongdoing (as the President understands wrongdoing). The Opinion Clause functions as a limit on Congress’s power to create (or authorize or regularize) and define offices created by federal statute. To put it another way, the Opinion Clause makes presidential supervision of subordinate Executive Branch officers possible in circumstances where Congress might otherwise block the flow of information between the President and the President’s subordinates. But compare Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2227 n.3 (2020) (Kagan, J., concurring in part and dissenting in part) (arguing that the Opinions Clause is “inexplicable” if the President has a removal power), with Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2324 (2012) (“Congress usually has done nothing to suggest that it wishes to interfere with this authority as to executive branch agencies; and even if Congress has indicated this intent as to the independents, Article II of the Constitution, most notably its Opinions Clause, may bar Congress from such interference.” (foonote omitted)), and id. at 2324 n.311 (“The Opinions Clause may receive reinforcement, for purposes of this argument, from the Take Care Clause, see U.S. Const. art. II, § 3 (obligating the President to take Care that the Laws be faithfully executed). Although framed in the language of duty rather than power, this clause may imply some minimum amount of presidential oversight authority, on the theory that the President could not perform this function if unable to require information from and engage in consultations with agency officials.”).

Seth Barrett Tillman,  ‘A Note on the Opinion Clause and the Unitary Theory of the Executive,’ New Reform Club (June 8, 2023, 5:32 AM), <>; 

Thursday, June 01, 2023

Judge Peter J. Messitte on “Officers of the United States”


Judge Peter J. Messitte in District of Columbia & The State of Maryland v. Donald J. Trump, individually and in his official capacity as President of the United States, Civ. A. No. 8:17-cv-01596-PJM, 2018 WL 3559027, 2018 U.S. Dist. LEXIS 124129, 315 F. Supp. 3d 875 (D. Md. July 25, 2018), ECF No. 124, <>:

[Office of Legal Counsel (“OLC”)] pronouncements repeatedly cite the broad purpose of the Clauses and the expansive reach of the term “emolument.” See, e.g., Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987) (“Consistent with its expansive language and underlying purpose, the [Foreign Emoluments Clause] has been interpreted as being ‘particularly directed against every kind of influence by foreign governments upon officers of the United States, based upon historic policies as a nation.’” (quoting 24 Op. Atty Gen. 116, 117 (1902) (emphasis omitted)); Applicability of the Emoluments Clause to Nongovernment Members of ACUS, 17 Op. O.L.C. 114, 121 (1993) (“The language of the Emoluments Clause is both sweeping and unqualified.”); Memorandum for Andrew F. Oehmann, Office of the Attorney General, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, Re: Invitation by Italian Government to officials of the Immigration & Naturalization Service & a Member of the White House Staff at 2 (Oct. 16, 1962), (noting “the sweeping nature of the constitutional prohibition and the fact that in the past it has been strictly construed, being directed against every possible kind of influence by foreign governments over officers of the United States.”).

Id. at 901–02 (bold added).

United States v. Nordean, Crim. A. No. 21-175 (TJK), 2022 WL 17583799, at *15 (D.D.C. Dec. 11, 2022) (Kelly, J.) (“For all these reasons, the Court holds that members of Congress hold an ‘office, trust, or place of confidence under the United States’ and are ‘officers of the United States’ under 18 U.S.C. § 372.”); id. at *11 (“Considered in isolation, Nordean offers a plausible reason for construing the phrase ‘officers of the United States’ as limited to its constitutional meaning, which would exclude members of Congress. But ultimately, the Court finds that Section 372’s entire text, structure, and history point to a broader meaning of the phrase.” (bold added));

Blumenthal v. Trump, Civ. A. No. 17-cv-1154-EGS, 2019 WL 1923398, 2019 U.S. Dist. LEXIS 72431, 373 F. Supp. 3d 191, 206 (D.D.C. Apr. 30, 2019) (Sullivan, J.), ECF No. 67 (“Memorandum from Norbert A. Schlei, Assistant Atty Gen., Office of Legal Counsel, to Andrew F. Oehmann, Office of the Att’y Gen., Re: Invitation by Italian Government to Officials of the Immigration and Naturalization Service & a Member of the White House Staff 2 (Oct. 16, 1962), (noting ‘the sweeping nature of the constitutional prohibition and the fact that in the past it has been strictly construed, being directed against every possible kind of influence by foreign governments over officers of the United States’).” (bold added)), <>.

Thompson v. Trump, 590 F. Supp. 3d 46, 94 (D.D.C. Feb. 18, 2022) (Mehta, J.) (“[I]n the end, President Trump’s argument still requires equating ‘officer’ with the meaning of the term as used in the Constitution. The court already has rejected that equivalency. The question here is whether the Reconstruction-Era Congress would have understood members of Congress to occupy an ‘office, trust, or place of confidence under the United States’ or qualify as an ‘officer of the United States.’ They certainly would have.” (bold added)); 

United States v. Rhodes, Case No. 22-CR-15-APM, 610 F. Supp. 3d 29, 50–53 (D.D.C. June 28, 2022) (Mehta, J.).

Seth Barrett Tillman,  ‘Judge Peter J. Messitte on “Officers of the United States”,’ New Reform Club (June 1, 2023, 2:08 AM), <>;