We Have Met the Other and He Is Us (Law Professors)

In the latest development in what is starting to feel like a trip  “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of  repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above.  In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21).

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The Real Deal

I’m going to start this post with the words “when I was in law school…” and hope that they don’t inspire a collective eye-rolling and a quick click to another link. Sort of the way selective hearing kicks in when some old-timer starts a harangue about dissolute modern youth with “when I was a youngster, I had to walk to school in the snow . . . for five miles . . . and it was uphill both ways . . . .”

At any rate, this is a passionate plea for those budding soon-to-be lawyers to PAY ATTENTION IN YOUR CRIMINAL LAW CLASSES!!

Not all that long ago I was as guilty as the next 1L or 2L of paying really rapt attention in the classes that I figured would be my bread and butter after I graduated, and paying enough attention in the other ones to get good grades. Followed by massive mental “information dumps” after the final exams.

I knew I wanted a career in criminal prosecution, and I knew that I would be drawn to appellate advocacy, so I leaned forward intently and absorbed as much as I could, and committed to memory as much as my fading hard-drive of brain cells could assimilate.

As for the rest—trusts and estates, contracts, civil procedure, secured transactions—I figured that if I ever had a legal problem in those areas, I could always hire me a good lawyer.  

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Crescents and Crosses at Ground Zero

I have two principal reactions to the Park 51 Islamic Center controversy.  The first is that the legal issues are pretty clear cut. The government cannot deny approval t0 – or move to block construction of – the center because its Muslim character would be seen as offensive or insensitive. This would apply, I think, to any effort to transparently manipulate historical preservation laws to block or restrict the project.

The second is that those who are concerned about the project ought not to be dismissed as nativists or bigots. One can acknowledge that the attackers on 9-11 represent a small slice of a huge religion and remember that Muslims died that day as well and still think that a prominent Islamic Center that close to Ground Zero is insensitive and subject to misinterpretation,. One can wish it wouldn’t be built without unmooring oneself from our traditions of tolerance and religious liberty. (To be clear, I, like the President, take no position on the matter and, for reasons, set forth below. worry that not going forward at this point would be problematic.)

I wonder if the controversy represents a larger problem in our interconnected society – one that the law is ill prepared to address. We generally believe that the state cannot restrict speech in deference to a heckler’s veto. But should we be concerned about the private consequences of public outrage?

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