Mensch tracht, un Gott lacht

Wednesday, December 27, 2023

A Short Defense of the Tillman Comma



In a list of nouns or adjectives following a colon, the rule is to separate the elements of the list with commas.

However, where a series of parallel phrases follows a colon, the rule is to separate the elements of the list with semi-colons. The semicolon is a particularly good choice if one or more elements of the list already have internal commas.

The problem with the latter rule, i.e., using semicolons to separate elements of the list, is that the last element of the list is preceded by an “and.” The “and” in the last element breaks the parallel structure across the list’s elements.

Therefore, my suggested practice is to use a semicolon prior to the “and” and to use a comma following the “and.”


My car uses: high beam lights for seeing into the distance; low beam lights for driving at night; and, running lights for day-time driving.


My car uses: [i] high beam headlights for seeing into the distance; [ii] low beam headlights for driving at night; and, [iii] running lights for daytime driving.

The [i], [ii], and [iii] also facilitate clarifying the sentence’s parallel structure.


Seth Barrett Tillman, ‘A Short Defense of the Tillman Comma,’ New Reform Club (Dec. 27, 2023, 4:20 PM), <>;

Tuesday, December 26, 2023

Professor Vikram David Amar and the New Civility


Professor Vikram David Amar, Part One, ‘Bad Arguments Against the Application of Section 3 of the Fourteenth Amendment Against President Trump,’ Verdict (Dec. 26, 2023), <>:

Now there are those who challenge whether the President is an officer under the United States (although there are very few prominent academics from highly regarded institutions who take that position).


Seth Barrett Tillman, ‘Professor Vikram David Amar and the New Civility,’ New Reform Club (Dec. 26, 2023, 4:39 AM), <>;

Monday, December 25, 2023

Are Provisions of the Constitution Self-Enforcing?

Michael McConnell et al., ‘2023 National Lawyers Convention: Insurrection & the 14th Amendment,’ The Federalist Society, at 55:45–57:50 (Nov. 10, 2023, 2:00 PM) (posted online Dec. 20, 2023), <>, <available on PROQUEST> 

Professor Michael McConnell: “I think the general rule, at least until very modern times, was that things in the Constitution could be invoked as a defense, but that they did not constitute a cause of action in which you can go to court and sue. . . . Don’t forget that the 14th Amendment is, in fact, enforced, for the most part, against States [and] state officers under Section 1983. So you don’t just go into court and say—Obergefell [v. Hodges], for example, was a [Section] 1983 case—so it was not one brought without any congressional authority.” (emphases added).

Seth Barrett Tillman, Are Provisions of the Constitution Self-Enforcing?,’ New Reform Club (Dec. 25, 2023, 7:58 AM), <>; 

Sunday, December 24, 2023

Seeking a Correction from a Journalist


Dear Journalist, 

See our [prior] correspondence below. 

You wrote me the following question: “I’m just curious about your reaction to last night’s [Colorado Supreme Court] ruling—specifically over the ‘officer’ argument—one you know very well.” 

I responded with: “I think it an argument about which reasonable persons can disagree. That argument and others will likely be addressed in a further appeal to the U.S. Supreme Court.” My comment was measured, vanilla, and even handed. 

In your publication, you wrote: Tillman “thought the ‘officer’ issue would be one of paramount importance at the Supreme Court’s level.” Paramount?!?  I never said anything remotely close to “paramount importance.” And, in fact, I do not think the “officer”-issue is of “paramount” importance. It is just one issue, among several issues, that is “likely” to be addressed on appeal. 

I know today is the 24th; still, you should correct this error, as soon as it is reasonable for you to do so.  



Seth Barrett Tillman, ‘Seeking a Correction from a Journalist,New Reform Club (Dec. 24, 2023, 7:26 AM), <>; 

Friday, December 22, 2023

Is It Soup Yet?

Professor Paul Horwitz’s Prawfsblawg post is a basically fair appraisal of the sociology and pathologies of law. It is not much in the way of praise. But I do not expect praise—at least not as a matter of course. 


He gets two things, in my view, wrong. First, the media elites did not push Judge Wallace, in the Colorado trial court, to rule as she did. That was all on Judge Wallace. Also Blackman and I did not push Judge Wallace—as we had no amicus brief at that stage. Indeed, to date, during the Section 3 cases, Blackman and I have pushed the non-self-executing argument much more heavily than the “officer of the U.S.” argument. Moreover, Judge Wallace, is (I have read) a Democratic donor in a Democratic state, and I believe she was (initially) appointed by a Democratic governor to her judicial position. Was she really moved by Fox News and other media reports? It is true that the Blackman/Tillman “officer of the U.S.”-position on did not fare well before the Colorado Supreme Court. But it was adopted by the trial court. Thats enough to put it on or near the “wall.”


Second, I am not “monkish”—even if it is used as a “compliment.” Just, maybe, I am boringly repetitive. In my defense, I would point out that I am on U.S., Irish, and other foreign media fairly regularly. And I write in many fora—not just academic journals with small and specialized readerships. My email address is public information. People of all sorts and all perspectives reach out to me all the time. 

Seth Barrett Tillman, ‘Is It Soup Yet,’ New Reform Club (Dec. 22, 2023, 2:49 PM), <>;

Friday, December 15, 2023

Academia: Same As It Ever Was


Kusuma Mahendra Wijaya, ‘Kewenangan Presiden Dalam Pembentukan Undangundang (Studi Komparasi Indonesia Dan Amerika Serikat)’ / ‘Presidential Authority in Law Formation (Comparative Study of Indonesia and the United States)’ 18 (University of Mataram, Indonesia, Faculty of Law, Master’s dissertation, [circa Oct.] 2023) (advisor Prof. Dr. H.M. Galang Asmara) (citing Tillman’s Textualist Defense in Texas Law Review (2005))), <>.

and later ...

Wijaya Kusuma, Galang Asmara, and Chrisdianto Eko Purnomo, Kewenangan Presiden Dalam Pembentukan Undang-Undang (Studi Komparasi Indonesia Dan Amerika Serikat) / Presidential Authority in Legislation Formation (A Comparative Study of Indonesia and the United States), 2(2) Jurnal Diskresi / Discretion Journal 210, 217 (December 2023) (peer review) (citing Tillman’s Textualist Defense in Texas Law Review (2005)) (Indonesia), <>. 

Think about it.

Seth Barrett Tillman, ‘Academia: Same As It Ever Was,’ New Reform Club (Dec. 15, 2023, 3:09 AM), <>; 

Tuesday, December 12, 2023

Academic Norms



On November 17, 2023, Judge Sarah Wallace, a Colorado trial court judge, ruled, in effect, for Trump in Anderson v. Griswold, Colo. Secretary of State andIntervenors Republican State Central Cmt., Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023). Wallace held that the presidency was NOT an “officer of the United States” for the purposes of Section 3 of the Fourteenth Amendment. Id., slip. op. at 95–102. Thus, Trump cannot be disqualified under Section 3. (Judge Wallace’s decision is now on appeal before the Supreme Court of Colorado.)

In a recent podcast, after the state trial court judge announced her decision, Professor Akhil Amar stated:

Maybe judges in Colorado, state judges, trial judges, may not understand all this . . . .

Akhil Amar, Podcast, ‘Sense and Nonsensibility on Section 3—Special Guests Mark Graber and Gerard . . . .,’ Amarica’s Constitution (Nov. 29, 2023) (season 3, episode 49, show 153), <>, <> (at 38:40ff).

Even if Judge Wallaces decision erredand I do not think it erredwhy criticize anyone other than Wallace? Why criticize a broader group? Is Colorado somehow unique? Are state court judges unable to grasp the concepts discussed? Are trial court judges lesser judges than appellate judges? Is any of this how a legal academic should set an example for students—i.e., future lawyers looking for work?

Norms anyone?

Seth Barrett Tillman, ‘Academic Norms,’ New Reform Club (Dec. 12, 2023, 7:35 AM), <>;






Sunday, December 10, 2023

Publications by Professor Saikrishna Prakash


Aditya Bamzaia & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1776 n.141 (2023) (citing Senator Charles Pinckney, approvingly, for the statement: “every officer of the United States is nominated by the President, and (except Judges) removable at his pleasure” (emphasis added));

Saikrishna Bangalore Prakash, The Appointment and Removal of William J. Marbury and When an Office Vests, 86 Notre Dame L. Rev. 199, 216–17 (2013) (“[T]he Appointments Clause provides that the President ‘shall nominate, and by and with the Advice and Consent of the Senate, . . . appoint’ all officers of the United States. . . . [T]he President must commission all officers of the United States.” (emphases added) (footnotes omitted));

Saikrishna Prakash, How the Constitution Makes Subtraction Easy, 92 Va. L. Rev. 1871, 1871 (2006) (affirming that “Congress may remove, via statute, all officers of the United States, save for federal judges with good behavior tenure” (emphasis added));

Saikrishna PrakashThe Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 583 n.360 (2005) (“The Appointments Clause grants the president the power to appoint all officers of the United States, with the advice and consent of the Senate.” (emphasis added));

Saikrishna B. Prakash, Branches Behaving Badly: The Predictable and Often Desirable Consequences of the Separation of Powers, 12 Cornell J.L. & Pub. Pol’y 543, 546 (2003) (noting that “the Constitution grants to the Senate the responsibility of confirming all non-inferior officers of the United States” (emphasis added));

Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 Geo. Wash. L. Rev. 1, 41 n.244 (1998) (noting that the Appointments Clause “establish[es] the requirement of senate confirmation for all officers, but permitting Congress, by law, to vest the appointment of inferior officers with the President, heads of departments, and courts” (emphasis added)); 

Saikrishna Prakash, Regulating Presidential Powers, 91 Cornell L. Rev. 215, 244 n.154 (2005) (reviewing Harold J. Krent, Presidential Powers (2005)) (“I have argued elsewhere that the [Inferior Office Appointments Clause] was necessary as a means of circumventing the burdensome requirement that all officers of the United States be appointed by the President and confirmed by the Senate.” (emphasis added)); 

Seth Barrett Tillman, Publications by Professor Saikrishna Prakash,’ New Reform Club (Dec. 10, 2023, 7:35 AM), <>; 

Saturday, December 09, 2023

Topic for a Student Note


Are you a law student looking for a breaking and newsworthy topic for your student-note or for some course paper? Perhaps for a master’s thesis—or, a chapter of a PhD dissertation? 

Consider: “The Scope of ‘Officer of the United States’ in Section 3 of the Fourteenth Amendment,” or, “The Scope of Section 3’s ‘Office’ and ‘Officer’ Language.”

I would be happy to point you to sources—both historical, as well as current briefs and decisions in the state and federal courts.

Seth Barrett Tillman, ‘Topic for a Student Note,’ New Reform Club (Dec. 9, 2023, 2:46 PM), <>; 

See also Seth Barrett Tillman, Briefs and Other Filings in Section 3 Cases,’ New Reform Club (Nov. 16, 2023, 4:11 AM), <>;

Thursday, December 07, 2023

Practice Tip: Citing Older U.S. Cases—state and federal



Do not cite to text near the start of a reported case without examining the text. The introductory material is often an editor’s headnote—such material is not part of the judge’s or panel’s or court’s decision.

Like judges, editors sometimes make mistakes. But if a judge makes a mistake, his mistake is still part of the case law until the decision is set aside on reconsideration or appeal, or overruled by later case law, or, in effect, overturned by subsequent legislation. If the editor’s headnote is wrong and you rely on it, that’s on you—unless you clearly indicate that you are citing to a headnote.

Also, early cases often reported the lawyers’ arguments as part of the introductory material. You can cite such arguments if you clearly indicate that you are citing to a lawyer’s argument, and not the judicial decision itself. If you do not indicate that you are relying on a lawyer’s argument (as opposed to the judicial decision), your error might be inadvertent, but a suspicious judge might think you are actively trying to mislead him/her.

And it pains me to point this out, but some retired judges go back into practice. So a retired judge might act as a lawyer in a case. The editor reporting the case then proceeds to report the argument, and, as a courtesy, the editor reports the argument of “Judge so-and-so.” What a judge-acting-as-a-lawyer argues is just a lawyer’s argument, and it is not part of the judicial decision. So you should avoid inadvertently citing a lawyer as if he or she were the judge on the case.

That’s why you should read the cases you cite, and not rely on how others characterize such cases. Errors along these lines are passed down from generation to generation, and sometimes, the mistake displaces the actual reality. Cf. The Man Who Shot Liberty Valance (1962).

Seth Barrett Tillman, Practice Tip: Citing Older U.S. Cases—state and federal,’ New Reform Club (Dec. 7, 2023, 7:16 AM), <>;