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Thursday, August 29, 2024

The Birth of An Academic Religion

 


 

Under the U.K.’s Research Excellence Framework, “each individual academic must generate something groundbreaking, paradigm-shifting and world-leading at least once every 15 months. The simplest method for doing that are either to criticise the most recent judgments to emit from the courts, or [to] subscribe to one of the academic cults which advance a particular worldview (autopoietic theory, legal positivism and restitutionism are examples). A good academic, on this model, should never praise judgments—because there is no research glory in simply repeating what other people have said. There is no evidence of an acute intellect in simply acknowledging that someone else has done a perfectly reasonable job in resolving a dispute. To be a top-flight academic, it is said by some, you must criticise, critique and carp. And when you have reached the top of the pile you may choose to lose your head and advance a model or try to establish a religion of your own.

Just such a thing happened at the University of Oxford during the 1980s and thereafter. A new religion was born: the law of restitution. Its prophet was [the late] Professor Peter Birks . . . .

This new theory about the organisation of English private law gave birth to a forest of doctoral theses, to a range of new textbooks, and even to an academic journal, the Restitution Law Review. This was perfect for academics because it gave them a belief system with which to attack every judgment which had ever been delivered in a court of equity and it also gave them a seed bed in which they could grow their precious, career-cultivating research projects. It allowed them to criticise judgments and to subscribe to an academic religion. The ‘restitutionists’—that is, the acolytes of this new religion at the University of Oxford—were iconoclastically dismissive of the old ways of doing law and equity, they were evangelical, and they were passionate.

The above is an extract from: Alastair Hudson, Equity and Trusts (10th edn, Routledge 2022) 1094–95.

Seth Barrett Tillman, The Birth of an Academic Religion,New Reform Club (Aug. 29, 2024, 5:00 PM), <https://reformclub.blogspot.com/2024/08/the-birth-of-academic-religion.html>;




 

Wednesday, August 28, 2024

Tillman Randos

Liz Dye, ‘Take A Wild Guess Which Federal Judge Is Hosting Amici At A Motions Hearing?,’ Above the Law (June 5, 2024, 2:43 PM), <https://abovethelaw.com/2024/06/take-a-wild-guess-which-federal-judge-is-hosting-amici-at-a-motions-hearing/>:

The Meese randos will be represented at the hearing by Gene Schaerr, of Schaerr Jaffe. The Tillman randos will be represented by Prof. Josh Blackman, of the South Texas College of Law. And Team WTF will be represented by Matthew Seligman, from Stanford and Stris & Maher LLP.

My response:




Seth Barrett Tillman, Tillman Randos,’ New Reform Club (Aug 28, 2024, 8:19 AM), <https://reformclub.blogspot.com/2024/08/tillman-randos.html>; 



Thursday, August 15, 2024

A Year’s Changes to the Intellectual Landscape Governing Federal Litigation

   In our American constitutional tradition, there are two distinct senses of self-execution:first, as a shield—or a defense—and second, as a sword—or a theory of liability or cause of action supporting affirmative relief. The former is customarily asserted as a defense in an action brought by others; the latter is asserted offensively by an applicant seeking affirmative relief. 
   For example, when the government sues or prosecutes a person, the defendant can argue that the Constitution prohibits the government’s action. In other words, the Constitution is raised defensively. In this first sense, the Constitution does not require any further legislation or action by Congress. In these circumstances, the Constitution’s provisions, as [Professors] Baude and Paulsen write, are “self-executing.”
   In the second sense, the Constitution is used offensivelyas a theory of liability or a cause of action supporting affirmative relief. For example, a person goes to court and sues the government, or its officers, for damages in relation to a breach of contract or in response to a constitutional tort committed by government actors. As a general matter, to sue the federal government or its officers, a private individual litigant must invoke a federal statutory cause of action. It is not enough to merely allege some unconstitutional state action in the abstract.

Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. 2024) (posted on SSRN: Sept. 19, 2023), <https://ssrn.com/abstract=4568771>. See generally Seth Barrett Tillman, Letter from Seth Barrett Tillman to the Honorable Clarence Thomas on Suggested Sources for a Future Citation (May 31, 2024), <https://ssrn.com/abstract=4833465> (collecting other on-point 2023 & 2024 Blackman and Tillman publications and amicus briefsall prior to the Supreme Court’s April 2024 decision in DeVillier v. Texas).

                                                                          ---


Similarly, notwithstanding resuscitating the “self-execution” objection, Blackmail and Tillman recognize Section 3 has force of law without enabling legislation. See Blackman & Tillman, supra at 29 (“[T]he Fourteenth Amendment can be raised as a defense, even in the absence of enforcement legislation”). The idea that Section 3 was enacted to serve as a “shield” to protect insurrectionists and not a “sword” to disqualify them absent further legislation runs headlong into history.

Brief of Amicus Curiae Citizens for Responsibility and Ethics in Washington at 13 n.8, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 6883478 (Minn. Oct. 6, 2023) (emphases added to shield and sword).

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Professors Blackman and Tillman are thus wrong to suggest that the Fourteenth Amendment somehow distinguished or was meant to distinguish between ‘positive’ (using the Amendment as a ‘sword’) and ‘negative’ (using it as a ‘shield’) uses. Calling this an ‘American constitutional tradition’ and claiming that the Fourteenth Amendment was meant to ‘be wielded as a shield without legislation’ but ‘not self-executing in court [for] … affirmative relief unless Congress provides for its enforcement’ is far-fetched to say the least. It is not a tradition and has no basis in the many cases that were directly raised under the Fourteenth Amendment throughout the late nineteenth and early twentieth centuries. The Fourteenth Amendment was directly used as a sword and a shield for more than eighty years without need of a congressional enforcement mechanism. The generation that framed the Fourteenth Amendment must have known all this. It would not have expected the Fourteenth Amendment’s terms to lie moribund until Congress took action.

Mark Brown, Trump and Section 3 of the Fourteenth Amendment: An Exploration of Constitutional Eligibility, Jurist, Oct. 12, 2023, 10:05:50 PM, <https://www.jurist.org/features/2023/10/12/trump-and-section-3-of-the-fourteenth-amendment-an-exploration-of-constitutional-eligibility/> (emphasis added); id. (citing, e.g., Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77 (1997)). 

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[T]here is self-execution as a shield, allowing individuals to raise the Constitution defensively, in response to an action brought by a third party. Second, there is self-execution as a sword—such as when individuals invoke the Constitution in advancing a theory of liability or cause of action that supports affirmative relief. When acting as a shield, the Fourteenth Amendment is self-executing. The Fourteenth Amendment, however, cannot act as a self-executing sword; rather, an individual seeking affirmative relief under the Amendment must rely on legislation from Congress.

Anderson v. Griswold, 543 P.3d 283, 351 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citation omitted) (bold added). See generally Trump v. Anderson, 601 U.S. 100 (Mar. 4, 2024) (per curiam), rev’g Anderson v. Griswold (Colo. 2023) (per curiam).

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Whether Section Three creates a federal cause of action is irrelevant in this case because the electors are using Colorado state election law as their procedural vehicle. The sword/shield metaphor may be evocative, but here it simply confuses the issue. The Constitution is neither weapon nor armor. It is law.

Brief of Amicus Curiae Professor Kermit Roosevelt in Support of Respondents at 4, Trump v. Anderson, 601 U.S. 100 (brief filed: Jan. 30, 2024) (No. 23-719), 2024 WL 399941 (emphases added), <http://tinyurl.com/2zrujc89>.

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In DeVillier v. Texas, the Court stated:

   Constitutional rights do not typically come with a built in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983.

DeVillier v. Texas, 601 U.S. 285, 291 (Apr. 16, 2024) (Thomas, J., for a unanimous Court) (emphases added), <https://tinyurl.com/bdj8a9du>.

All this happened in a span of about seven months. I find it striking that the DeVillier Court put forward its position absent any prior Supreme Court authority, other judicial authority, or, even, any scholarly authority. Is it possible that the unanimous Court believed its position entirely obvious? 


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Seth Barrett Tillman, A Year’s Changes to the Intellectual Landscape Governing Federal Litigation, New Reform Club (Aug. 15, 2024, 4:38 AM), <https://reformclub.blogspot.com/2024/08/a-years-changes-to-intellectual.html>.


See also Seth Barrett Tillman, Letter from Seth Barrett Tillman to the Honorable Clarence Thomas on Suggested Sources for a Future Citation (May 31, 2024), <https://ssrn.com/abstract=4833465>. 

Compare Josh Blackman & Seth Barrett TillmanSweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. circa Sept. 2024) (originally posted, on SSRN, on Sept. 19, 2023), <Sweeping and Forcing the President into Section 3>, with William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605 (2024).  

Tuesday, August 13, 2024

Tillman on Today’s Speech Monitors: A Letter to the Editor in ‘The Irish Times’

 

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)

 

13 August 2024

 

The Irish Times

Letters to the Editor

lettersed@irishtimes.com

 

RE: Fintan O’Toole, ‘Musk is the Pablo Escobar of toxic disinformation’ The Irish Times (Dublin, 13 August 2024) 12.

Fintan O’Toole’s solution for what ails these islands is that Elon Musk be “held personally to the same standards of criminal justice” as others. Here, O’Toole recommends state imposed criminal sanctions for Musk’s speech and for Musk’s permitting others to speak on Twitter (now X). But O’Toole never explains what specific speech by Musk is at issue, and more importantly, what specific Irish or EU law was violated by that speech.

          Orwell’s 1984 was a period piece. It was fiction describing a dystopic future. For O’Toole, and other speech monitors, 1984 is a how-to guide for running today’s society. Perhaps, the greater danger is elsewhere?

Is mise, le meas, 

Seth Barrett Tillman


Seth Barrett Tillman, Tillman on Todays Speech Monitors: A Letter to the Editor in The Irish Times,New Reform Club (Aug. 13, 2024, 8:35 AM), [https://reformclub.blogspot.com/2024/08/tillman-on-todays-speech-monitors.html], in The Irish Times (Aug. 15, 2024, 12:05 AM), [https://www.irishtimes.com/opinion/letters/2024/08/15/elon-musk-and-free-speech/]. 


Friday, August 02, 2024

Never Strike the Stone

 

By and bye, strolling out of the banquet room into the temple grounds, Liu Bei came to a boulder. Drawing his sword he looked up to heaven and prayed, saying, “If I am to Jingzhou and achieve my intent to become a chief ruler, then may I cleave this boulder asunder with my sword. But if I am to meet my doom in this place, then may the sword fail to cut this stone.”

Raising his sword he smote the boulder. Sparks flew in all directions, and the boulder lay split in twain.

It happened that Sun Quan had seen the blow, and he said, “Why do you thus hate that stone?”

Liu Bei replied, “I am near my fifth decade and have so far failed to rid the state of evil. I greatly regret my failure. Now I have been accepted by the Dowager as her son-inlaw, and this is a critical moment in my life. So I implored of Heaven a portent that I might destroy Cao Cao as I would that boulder and restore the dynasty. You saw what happened.”

“That is only to deceive me,” thought Sun Quan. Drawing his own sword, he said, “And I also ask of Heaven an omen, that if I am to destroy Cao Cao, I may also cut this rock.”

So he spoke. But in his secret heart he prayed, “If I am to recover Jingzhou and extend my borders, may the stone be cut in twain.”

He smote the stone and it split in twain. And to this day there are cross cuts in the stone, which is still preserved.

One who saw this relic wrote a poem:

 

The shining blades fell and the rock was shorn through,

The metal rang clear and the sparks widely flew.

Thus fate then declared for the dynasties two

And the tripartite rule there began.


From: Luo Guanzhong, Romance of the Three Kingdoms 25759 (Charles Henry Brewitt-Taylor, trans., 1925) (first printed version circa 1522).

I wonder if this passage from Three Kingdoms was in some fashion influenced by the Bible?

Seth Barrett Tillman, Never Strike the Stone, New Reform Club (Aug. 2, 2024, 4:25 AM), <https://reformclub.blogspot.com/2024/08/never-strike-stone.html>;