President for a Day

Posted on Categories Legal History, President & Executive Branch1 Comment on President for a Day

Atchison_David_Rice_-_Plattsburg_MO_3Today marks the 161st anniversary of the one-day Presidency of the United States of David Rice Atchison. Atchison’s story, once well-known, has been reduced to an item of trivia for American history buffs.

By common agreement, the Presidential term of James Knox Polk ended at noon on March 4, 1849. March 4 was a Sunday that year, and the decision was made to delay the inauguration of Zachary Taylor, the hero of the recently concluded Mexican-American War and the newly elected President, until Monday, March 5. Polk completed his final presidential duties on Sunday morning and then departed from Washington that afternoon.

Who then was President between noon on March 4, when Polk departed, and noon of March 5 when Taylor finally took the oath of office?  Continue reading “President for a Day”

Contract Rights Under Assault

Posted on Categories Business Regulation, Corporate Law, Legal Ethics, Negotiation, Political Processes & Rhetoric, President & Executive Branch7 Comments on Contract Rights Under Assault

Barack_Obama_pledges_help_for_small_businesses_3-16-09In 1789, as the inchoate American government was climbing out of the mountainous debt left over from the Revolutionary War, a thorny political problem emerged.  While most of the chattering class was consumed with the debate over whether the states’ war debt should be federalized, another far more visceral controversy arose.  Because the Continental Congress lacked funds during the war, the Revolution was funded partly by wealthy private citizens who invested in bonds.  As a result of the lack of governmental money, many American soldiers were given worthless IOUs at the end of the war, as states scampered for a way to give the patriots their back pay.  Many of these soldiers panicked, and sold their IOUs to speculators for as little as fifteen cents on the dollar.  The problem was, once the federal government began repaying the debt, the value of the bonds soared.  So who should get the money: the patriots who fought bravely for their country and only sold the IOUs because of fear they would get nothing from their government, or the speculators?

Continue reading “Contract Rights Under Assault”

$250 Million Worth of Fuss

Posted on Categories Education & Law, Milwaukee, President & Executive BranchLeave a comment» on $250 Million Worth of Fuss

The U.S. Department of Education released the final rules Thursday for the high-stakes competition called the Race to the Top. That’s the $4.35 billion in grants to be given out in the next year to spur states to take major steps aimed at improving a host of aspects of schooling, including the quality of teachers and the quality of education options open to children, especially those in historically low performing communities.

How much is at stake? Included in the material was a list of how much each state could potentially receive. For Wisconsin, the figure was $150 million to $250 million.

It is unlikely Wisconsin actually will get that much. It appears there are some points where Wisconsin will score well (atmosphere for creating charter schools), and other points where Wisconsin will not do well (track record on closing achievement gaps, such as the one between white and black students). Continue reading “$250 Million Worth of Fuss”

Obama’s Applause Lines on Education

Posted on Categories Education & Law, President & Executive BranchLeave a comment» on Obama’s Applause Lines on Education

teacherPresident Barack Obama’s 35-minute speech on education at Wright Middle School in Madison on Wednesday was interrupted by applause at many points, but most of the reaction was pretty low-key. Three lines drew what seemed to be more enthusiastic responses from the crowd of more than 500, most of them teachers, parents, and students at the 250-student school. Each of those lines says something significant about public sentiment and Obama administration priorities on education issues.

One: Obama said, “I’ve got to be honest, we’ve got to do a better job of moving bad teachers out of the classroom, once they’ve been given an opportunity to do it right.” His calls for recruiting higher-quality teachers and rewarding top teachers better didn’t get applause, but this line did. Secretary of Education Arne Duncan said in a telephone interview after the speech that this didn’t surprise him — it happens wherever the president speaks about education, he said. Raising the quality of teachers, in large part by doing more to identify quality teachers (and those who aren’t) is one of the highest, but most difficult, priorities for Obama and Duncan. And moving out the ones who really aren’t good at it is especially difficult, particularly given the defensiveness of teachers’ unions when such issues come up.

Two: His call for overhauling the way testing is done nationwide.  Continue reading “Obama’s Applause Lines on Education”

President Chester A. Arthur and the Birthers, 1880’s Style

Posted on Categories Constitutional Interpretation, Legal History, President & Executive Branch17 Comments on President Chester A. Arthur and the Birthers, 1880’s Style

arthurThe Obama citizenship “debate” has surprisingly brought former president Chester A. Arthur (1829-1886) back into the pages of American newspapers, which is no small feat.  Unlike President Obama, who is clearly eligible to hold the nation’s highest office, Arthur, the twenty-first president (1881-84), may well have been an “unconstitutional” president.

Although Arthur is frequently seen as Millard Fillmore primary competition for the title of “Most Obscure President in U.S. History,” the circumstances of his birth have raised questions eeriely similar to those asked about President Barack Obama by the birthers.  Continue reading “President Chester A. Arthur and the Birthers, 1880’s Style”

President Obama Behind in the Count in the Sports Arena

Posted on Categories President & Executive Branch, Sports & Law1 Comment on President Obama Behind in the Count in the Sports Arena

Whatever success he may have in regard to health care reform, economic recovery, or the war in Afghanistan, President Barack Obama has already demonstrated that his ability to influence the world of sport is quite limited.  His unsuccessful efforts to convince the International Olympic Committee to award the 2016 Summer Olympics to his adopted hometown of Chicago have been well documented in recent days.

Furthermore, his call for college football to institute a playoff system to determine the champion of what most people still call Division 1A football has fared no better.  Although such a change has admittedly not been a top priority of Obama’s administration, he did quite openly throw his support with those opposing the current BCS championship system (based on polls and giving priority to the teams that make up the six so-called BCS conferences)  both during the campaign and after he was elected.  Continue reading “President Obama Behind in the Count in the Sports Arena”

Taking Oaths Seriously

Posted on Categories Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch2 Comments on Taking Oaths Seriously


Most presidents take the oath of office twice in their lives only if reelected.  Yesterday night, Barack Obama took the oath – again –  from Chief Justice John Roberts because of the miscues during the inauguration ceremony the day before.  The media’s take, thus far, is to poke fun at what is called the “do over,” the “flub heard around the world,” (MSNBC) and the “oaf of office” (courtesy of the New York Post).  Yet at the same time, we are assured that Obama’s first oath was essentially good enough or perhaps even unnecessary for him to assume the presidency because the new term began at noon on January 20, 2009 regardless.  Yale’s Akhil Amar obligingly opined on NBC that the second oath was akin to “wearing both a belt and suspenders.” 

Personally, I’d find it somewhat unsettling if Obama began wearing a belt along with suspenders, so I think it is worth our time to take seriously an event that obviously the President and the Chief Justice took quite seriously.   I am very much impressed that Obama and Roberts thought the oath significant enough to warrant the second ceremony.  Clearly it was not done to deflect the embarrassment of the day before; indeed, the second oath only underscored their abject failure to recite correctly the 35 word oath – hardly a pas de deux.  I also doubt that either Obama or Roberts fretted about the legality of the inauguration ceremony; the second oath was not intended to avoid crack pot law suits.   Continue reading “Taking Oaths Seriously”

Tuesday’s Gone

Posted on Categories Political Processes & Rhetoric, President & Executive BranchLeave a comment» on Tuesday’s Gone

Inauguration day has come and gone, but the euphoria of a historic election will likely remain for some time.  For President Obama and the 110th Congress, the work is just beginning.  The economy continues to show signs of weakening, even amidst hope that the downturn will be neither as severe nor as prolonged as some have prognosticated.  Although Israel draws down its forces in Gaza, tension in the Middle East remains high.  The status of the American presence in Iraq and the oft-criticized detention facility at Guantanamo Bay remain uncertain.  Pricey health care and a failing education system also appear at the top of the President’s to do list.

Given these conditions, it is curious that some have anticipated one of the most prominent pieces of reform that will come on the heels of the inauguration to be the Freedom of Choice Act.  Continue reading “Tuesday’s Gone”

“The Power That I Have On You Is To Spare You”

Posted on Categories Criminal Law & Process, President & Executive Branch2 Comments on “The Power That I Have On You Is To Spare You”

While instant messaging a high school friend yesterday, she mentioned that she had just seen the final episode of The West Wing on DVD (in which outgoing president Josiah Bartlett pardons ex-Director of Communications Toby Ziegler from a conviction for leaking national security secrets to The Washington Post), and then linked me to a recent Slate article handicapping President Bush’s potential pardons, while commenting that “maybe if Bush was more like Bartlett, he wouldn’t have to pardon so many of his cronies.” I commented that President Clinton (and most other presidents) have done the same thing, which caused her to rephrase her statement by replacing “Bush” with “all the real presidents.”

I know: there are any number of things lame duck presidents can do that should probably be reviewed and reconsidered before we get to presidential pardons. I also understand that the pardon is a valuable tool that allows the executive branch to swiftly undo so-called “travesties of law,” setting free the wrongly convicted. Yet the Slate article got me thinking about whether it isn’t worth considering a check on this particular executive power sometime soon, both on a state and federal level (though the misuse tends to be more egregious on the federal level).

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Priorities for the Next President: Antitrust Law

Posted on Categories Business Regulation, President & Executive Branch, U.S. Supreme Court2 Comments on Priorities for the Next President: Antitrust Law

The priority of the new administration in the field of antitrust law will be to undo the damage wrought by Chicago School dogmatists. This does not mean that the economic theories that form the basis of Chicago School economics or its application are incorrect. But, the broad assault by academic, bureaucratic, and juristic theorists over practical reality that has gained significant momentum during the administration of George Bush the younger (hereafter the Bush Administration) has struck down the existing antitrust legal analysis without regard to precedent, evidence, jury findings, and the value to society of private attorneys general in the enforcement of antitrust laws.  During the Bush Administration, the older Chicago School theorists on the United States Supreme Court and the lesser appellate courts have joined with new appointees to alter in many basic ways the structure of antitrust law, e.g., they have undone the per se standard for vertical minimum price-fixing, created high barriers for plaintiffs at the pleading stage for antitrust cases so that it is difficult to avoid dismissal prior to discovery, and strengthened the freedom of monopolists to refuse to deal with parties dependent on what they sell and thereby to avoid greater competition for whatever their products may be used to produce.

Continue reading “Priorities for the Next President: Antitrust Law”