“A people with no reverence for the heritage left them, a philosopher once observed, will indeed leave nothing of themselves to be remembered proudly.”
William Edward Syers, *Off the Beaten Trail* at v (1971).
Shout out to Harrison Ford
Of all the Super Bowl advertisements last night, I liked best the Jeep ad by Harrison Ford, but this morning the NYTimes critic panned it, rating it number 56.
My rejoinder to the Times critic:
You should re-review the Harrison Ford ad for Jeep. It is a dual message: buy Jeep, of course (it takes a lot of money to get an ad on the air during the Super Bowl), but more significantly it's a plug -- in basic, language that the followers of the right-wing strongman-wannabe can understand -- all about the fundaments of our democratic society. Should've been number one on your list.
Watch it for yourself:
www.youtube.com/watch?v=cDn_uFEXGXk
One of my cases: In re Conex, on the topic of removal and remand of state court lawsuits--and the successful defense of a "wrongful removal" claim
Here is a case from my days of bankruptcy practice in which I represented the prevailing party in the matter of its removal of a state court lawsuit by an affiliate of three debtors to the Bankruptcy Court for the Eastern District of Texas, the district in which that action was pending, and then, when the home Bankruptcy Court in Delaware adjudged that the cause of action was not property of its specific debtors' estates, then the remand from the Texas bankruptcy court to the Texas state court. At that point the plaintiffs alleged and tried to reserve a liability claim for "wrongful removal" against our client, but obviously that was insupportable as the Bankruptcy Court easily held.
This decision should have been reported by West!
The case is Conex Int'l Corp. v. Fluor Enter., Inc. (In re Conex Holdings, LLC), Case No. 11-01010 (Bankr. E.D. Tex. 2012).
the article in Bloomberg's about the proposal to delete the income tax exemption for municipal bonds
The story today in Bloomberg's about one of the changes to the Revenue Code to finance the new president's projects and actions under consideration in some quarters in Congress surprised me: to delete the exemption of municipal bonds from income taxation. I thought that exemption was sacrosanct.
In fact, in my new article on the history of municipal bankruptcy, focusing on the enactment of the First and Second Municipal Bankruptcy Acts in 1934 and 1937 in response to the huge numbers of defaults on muni bonds in the early Great Depression, I had written in my introduction that the exemption from income tax had been a big driver for muni bond issuance since the first income tax law:
_____________________________________________________________________________________
Municipal bonds had occupied a sacrosanct place in the world of finance for two reasons. First, there had been almost no defaults since the 1870s. Second, under the Seventeenth Amendment, the first income tax in 1913 had exempted municipal-bond interest which “effectively made the federal government a partner with state and local governments” for the building of a vast amount of infrastructure such as highways. So payment defaults of the late twenties and early thirties shocked the bondholding community. Their lawyers’ resort to litigation was reflexive, and more and more insolvent political subdivisions and special taxing districts found themselves as defendants haled into courts in mandamus suits seeking to compel greater tax collections to force payment of bond arrearages.
Such municipalities were “insolvent” within the definitions in the Bankruptcy Act of 1898 (the BA’98) and the general understanding of lawyers and judges of the day, but on the eve of the Depression, that act afforded relief only for individuals, partnerships, and, since 1910, corporations (but specifically excluding banks and insurance companies—and municipal corporations), and only in the forms of court-supervised liquidation of assets in exchange for a discharge of debts or an opportunity to reach an court-enforced composition with creditors. Railroads and a few other firms imbued with some sort of public interest could restructure outside of bankruptcy through the federal-court device of equity receivership ; but while theoretically possible, receiverships for municipalities required a statutory basis and were “rarely available.”
from Josiah Daniel,
Law and Economics or Legal History?
Hatton Sumners and the Genesis of
Municipal Bankruptcy, 1933-1938
(forthcoming)
I endorse the AHA–OAH Statement on Executive Order “Ending Radical Indoctrination in K–12 Schooling”
I endorse this statement:
https://www.historians.org/news/aha-oah-statement-on-executive-order-ending-radical-indoctrination-in-k-12-schooling/?_zs=ohLma&_zl=IE7O4
The joint statement of preeminent societies of historians reject the executive order’s "unwarranted assumption" that “it is ‘anti-American’ or ‘subversive’ to learn the full history of the United States with its rich and dramatic contradictions, challenges, and conflicts alongside its achievements, innovations, and opportunities.”
And: "The executive order’s narrow conception of patriotism and patriotic education does more than deny the actual history of American democracy; it also undermines its own goals of a rigorous education and merit-based society."
From the conclusion of my Hatton Sumners/court-packing article
V. SUMNERS’S KEY ROLE IN RESOLVING THE CRISIS
a. The Congressman’s Post-Crisis Relationship with Roosevelt
Whitehurst asserted that “F.D.R. never spoke to him again,”247
and legions of commentators and historians have asserted that
Sumners had departed the Roosevelt team. But those views are
incorrect. The President was peeved that his plan failed, and he
undoubtedly recognized Sumners’s significant responsibility. But
Roosevelt had been miffed at the Congressman previously, without
permanent alienation.248 In the immediate aftermath of the crisis,
Roosevelt did take a small jab at Sumners. On September 21st,
Congressman W.D. MacFarlane of Graham, Texas, sent FDR a
clipping from the Fort Worth Star-Telegram reporting a speech
Sumners made to the Dallas Bar Association on September 11th
and characterizing it as expressive of the views “held by a large
majority of the Texas Delegation and many other Delegations in the
South as well as the North, all of whom call themselves
democrats.”249 The newspaper reported that Sumners had stated
that Congress “abdicated its power to follow the leader,” implying
that Roosevelt was acting like a dictator.250
With MacFarlane’s missive in hand, Roosevelt drafted a letter
dated September 21st for signature by his assistant W.H. McIntyre.
Addressing the Congressman as “a dear friend of mine,” the letter
inquired about “the enclosed clipping.”251 FDR’s covering memo to
McIntyre directed: “Check and be sure you get an answer from
Hatton. If you don’t get an answer with a week or 10 days, check
again.”252 Two weeks later Sumners replied to McIntyre that he had
spoken to the bar group extemporaneously but recalled “the drift”
of his speech as distinguishing “between our way of dealing with a
crisis in our country and the method pursued in Germany and
Italy.”253 He then turned the tables to chide the President for “our
present situation” in which “some people are so intense with regard
to this court issue” that “it is almost impossible” to discuss
fundamental public problems.254
But Sumners confirmed his loyalty:
I want to be as useful as I can. You call on me just as you always have
done. I feel just as I always did, but I would be willing to go to night
school for a whole year to learn the barbers’ trade if I could get the
fellow just one time in my chair who started things.255
His allusion after the conjunction “but” in the last-quoted sentence
portrays himself as a “barber” so devoted to the President that he
would put his razor to the throat of “the fellow . . . who started
things.” In handwriting Sumners added: “I am a better friend to the
Chief than he, whoever he is.”256 By referring “the fellow” and
“whoever he is,” Sumners was not indicating MacFarlane but rather
insinuating the existence of an unknown, backstage manipulator.
From the outset of the crisis, Sumners posited repeatedly that
“someone” had “imposed” on Roosevelt to make the court-packing
proposal.257 The President was not amused, telling McIntyre that
“[Sumners’s letter] is very interesting and we can now file it with
the reservation that he has not answered in any way.”258 But his
pique did not damage the relationship. . . .
Josiah M. Daniel, III, “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role
of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis, 54 UIC J. Marshall L. Rev. 379, 420-21 (2021), available free at the law review's website: https://repository.law.uic.edu/lawreview/vol54/iss2/1/
Birthright citizenship -- a Constitutional right
U.S. Constitution amendment XIV, Section 1:
All 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(emphasis added)
The plain meaning is . . . well, very plain! The argument that "subject to the jurisdiction [of the United States]" limits the scope of the amendment to those persons born of mothers who are lawfully present in the nation is ridiculous. The Constitution applies to all persons within its territorial jurisdiction regardless of status. Even in the instance of foreign diplomats, U.S. courts have jurisdiction over such persons. The diplomat's official-acts immunity is not a jurisdictional bar but an affirmative defense that can be asserted before the U.S. court that has subject matter jurisdiction over an alleged crime. However, a formidable appellate advocate, Randy Barnett, has just asserted in the N.Y. Times that very argument, so we will hear more about it.
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