Author Archives: Michael Froomkin

Line of the Day

The line of the day, at least, is surely Robert Waldman’s snark describing the Trump administration’s “petty graft [running] from emoluments to emollients“, i.e. from the Trump Hotel to this.

OK, off to look for a lunar eclipse.

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Brexit Notes

UK’s Jonathan Pie does Brexit (content warning: contains some Anglo-Saxon mono- and poly- syllables).

Now that May’s plan has been defeated, it’s not even dead. The default remains a hard crash-out, which no one outside the Kremlin who has brain cells and lacks either a foreign home or a few million to hedge with, should want. But the option of giving up the whole thing as a bad job appears to lack a majority in Parliament, even if they could find a way to get a vote on it.

Whether there’s a vote may depend on this guy:

If there’s no majority for anything to stop the oncoming train wreck caused by invoking Article 50, that leaves muddling through, which means asking the EU for a delay, which the EU hints hard it would give but only if there’s some point to it. There won’t be an election, so that’s not the point. There might be a referendum, which would certainly be a point, but that doesn’t seem to have a majority in Parliament either.

Normally I think if something is widely understood to be colossally stupid with no upside then legislatures won’t do it. This could be one of the exceptions. (Failing to act on global warming is certainly another, although maybe the consensus isn’t quite great enough on that one.)

Note for those not following Brexit closely: Labor’s position, which amounts to “put us in charge and we’ll negotiate a better deal” is bunk. The EU isn’t going to give May or Corbin or anyone a materially better deal. And certainly not a ‘customs union’ without free movement of people. (And weird that Labor wants to privilege goods over people, eh?)

The faction that says it wants “Norway Plus” (ie modified EFTA), is at least asking for something that might be attainable–although Norway has the right to veto, and seems at present willing to do it–but it’s a very odd outcome since the UK ends up with all the things it said it didn’t want from the EU, minus the ability to influence any of the governing institutions or rules. A straight-up loss when compared to status quo ante, but I guess less a disaster than a crash-out.

The best way out would be a second referendum, but one of the few things the Tory and Labour leaders agree on is that they don’t want that. May wants the threat of a crashout to revive her deal as the lesser of two evils, thus she doesn’t want a third way. Corbin wants to force an election, and also doesn’t mind leaving the EU as he hates it, so he doesn’t want an option that takes the pressure off for an election and also creates real risk of killing off Brexit.

Which all raises the question of when the UK property crash starts, and how deep it gets. Meanwhile some Brits are stockpiling cans, and it’s hard to say they are unwise to do it…

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We Have an Opening for a Dean

Dean Patricia White is stepping down after a long run as Dean, which means there’s an opening. The official advertisement is here. Personally I’d love to see a candidate who had a theory about how law schools will deal with the coming AI revolution.

I think our Deanship is a surprisingly attractive one given the times. The school navigated the financial side of the enrollment crisis with relative dexterity, and kept up the credentials of our incoming classes. The physical plant is not exceptional, but it works. And there are lot of faculty and students doing interesting and even important things. From here it seems we’re in considerably better shape than a number of our peers. And there’s a lot of going on in the University generally and also in Miami the city.

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Sometimes Fiction is Just as Strange as Fact

This, via Crooks & Liars, On 1958 TV Show, Confidence Man ‘Trump’ Promises To Build A Wall To Save The World is one heck of a coincidence:

Here’s an edited version of the whole show with the best bits…

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Mandatory Unpaid Labor by Government Workers: Involuntary Servitude? Wages and Hours Violation?

These are probably stupid questions, but I never took Labor Law: Why is it that the U.S. government can require some workers (e.g. TSA) to do their jobs without pay? As a formal legal matter there is no way that the bosses can guarantee back pay will be forthcoming ever, since it’s axiomatic that money can only be disbursed from the Treasury pursuant to a Congressional appropriation. Theoretically, Congress might never vote the back pay.

Doesn’t the absence of a payment guarantee make the forced labor either involuntary servitude, or at least a wage-and-hours violation since it is work for less than the minimum wage (zero)?

I presume the answer to the 13th Amendment question might have something to do with terms in the employment contract, in that the government perhaps reserves the right to require the unpaid labor, or the worker gets fired. Or, more likely, it’s just that civilian workers (but not military personnel, in this case the Coast Guard?) have the choice to just not show up and be fired, as opposed to slavery/involuntary servitude when the worker has no option to quit. That option, I’m guessing, makes the servitude not ‘involuntary’ for 13th Amendment purposes?

But even so, how does this conform with minimum wage laws? Is it as simple as, no one brings the case, then backpay makes the matter moot? In which case, how long before someone files the complaint?

Posted in Law: Constitutional Law, Politics: US | 1 Comment

A Truly Muscular Reply Brief in a Case of Great Importance

One case I’ve been following with great interest is (well, was) Michaels v. Sessions in which by a strange turn of events the Supreme Court is being asked to decide whether
Matthew G. Whitaker is or is not the Attorney General.

The underlying matter isn’t in my wheelhouse, having to do with the constitutionality of a federal ban on possession of firearms by convicted felons. Michaels lost in the court of appeals, and duly asked the Supreme Court to hear his appeal via a petition for writ of certiori. While that was pending, Trump forced out Sessions; whether Sessions legally resigned or was fired is actually a not-irrelevant issue. Trump then tapped Whitaker to take over the job of Attorney General, purporting to exercise power delegated under the Vacancies Act.

The Vacancies act is a mire of constitutional and structural issues, but suffice it for now to say that it does give the President vast authority to fill vacancies with a wide variety of government employees, but it also contains exceptions, one of which very arguably applies to the Attorney General’s office becuase there is a specific statute that provides for succession in the AG’s office. Under that statute Rod Rothstein, the #2 in the department, would automatically becoming the Acting Attorney General until a successor was properly nominated and confirmed (or, I presume, given an interim appointment–an option that the Senate has quietly foreclosed by having pro-forma sessions every few days during the recess thus preventing the Constitutional trigger that permits interim appointments).

When a person sues the United States about a regulation, it is common to caption (that’s lawyer for “title”) the case with the name of the movant and the government official who heads the agency. When there is turnover at the head of an agency, as there often is, it is usually routine for the name of the case to change too — on request of a party, the court just amends the caption of the case.

That is what happened with the petition for certioria — until Michaels’s lawyers objected. Earlier this month they filed a “Motion to Substitute” in the Supreme Court in which they asked the Court to rule that the case should be captioned “Michaels v. Rothstein” rather than “Michaels v. Whittaker” as Rothstein, not Whittaker, was in fact the Acting Attorney General. Needless to say, the government objected. Michael’s lawyers replied with one of the most muscular briefs I’ve ever read. If you are a lawyer or law student, this is a must-read.

The Supreme Court has not yet ruled, and it could do so without a hearing if it chose to do so.

Posted in Law: Administrative Law, Law: Constitutional Law, Law: The Supremes | Leave a comment