The Blog of Josiah M. Daniel, III

Posts

Charles Warren on the bankruptcy power under the Constitution

Research continues on my bankruptcy history project. I decided to take a look back at Charles Warren's Bankruptcy in United States History (1935). At the end, he notes the Supreme Court's invalidation of the Frazier-Lemke Act (farmer bankruptcy) on 5th Amendment grounds in the Radford case and the Court's affirmation of Section 77 (railroad reorganization) as well within the bankruptcy power under the Constitution in the Chicago, R.I. & P. Ry. Co . decision. Quoting from the latter: "The fundamental and radically progressive nature of these extensions becomes apparent upon their mere statement; but all have been judicially approved or accepted as falling within the power conferred by the bankruptcy clause of the Constitution. Taken altogether, they demonstrate in a very striking way the capacity of the bankruptcy clause to meet new conditions as they have been disclosed as a result of the tremendous growth of business and development of human activities from 1

Slight Revision: The Still Forthcoming Pardon of Donald J. Trump

January 18, 2021 On December 3rd, I posted a piece predicting that 45 would depart his office with a presidential pardon in his hand, and that he would resign before Noon on January 20th and receive that pardon from Mike Pence, as his constitutional successor. As a result of the insurrection and invasion of the Capitol on January 6th that 45 instigated and Pence's narrow escape from harm, my scenario is not workable: Pence would never pardon him now. So 45 will not resign, but he will still exit the White House with a pardon: a self-granted pardon. I continue to believe that the "transactional" Trump wants the criminal-law equivalent of a general release in civil matters in order to reduce the amount of court proceedings he will have to defend beginning on January 21st. That outweighs the loss of ability to claim the 5th Amendment when subpoenaed or ordered to testify, and he is unconcerned what his political base will think of him. Update: January 21, 2021 Of the alm

Regarding the ethical obligations of in-house corporate counsel

Legal commentators over the years have emphasized that general counsel, and really all in-house attorneys, ought not serve merely as conduits for the advice and input of outside counsel, but rather should work for the enterprise as an integral part of the management structure and function. Ethical responsibilities add a significant dimension in evaluating business problems but can and should be used to aid the client in considering potential corporate actions. Creedon, Lawyer and Executive-The Role of the General Counsel , 39 Bus. Lawyer 25 (1983); Corporate Legal Ethics—An Empirical Study—The Model Rules, the Code of Professional Responsibility, and Counsel's Continuing Struggle Between Theory and Practice , 8 J. Corp. L . 601 (1983). See also Herschman, Stewart, Evans & Van Dusen, The Murky Divide: Professionalism and Professional Responsibility, Business Judgment and Legal Advice—What is a Business Lawyer? , 31 Bus. Lawyer 457 (1975). Properly so engaged, the profes

What history tells us about the attack on Congress on January 6th

From a preeminent historian of fascism: "[G]reater knowledge of the past, fascist or otherwise, allows us to notice and conceptualize elements of the present that we might otherwise disregard and to think more broadly about future possibilities. It was clear to me in October that Trump’s behavior presaged a coup, and I said so in print; this is not because the present repeats the past, but because the past enlightens the present." Professor Timothy Snyder, The American Abyss: A historian of fascism and political atrocity on Trump, the mob and what comes next, NY Times Magazine, Jan. 9-10, 2021

The jury trial . . establishing credible knowledge

"A core function of the jury trial is to discriminate between truth and falsehood, and so the courtroom offers an instructive microcosm of the American struggle to establish credible knowledge amid the disorientation of modernity." Andrew Porwancher, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law at 1 (2016)

Louie Gohmert sues Mike Pence for a declaratory judgment holding the Electoral Count Act unconstitutional! Sorry, Louie, that is ridiculous.....

December 28, 2020 Yesterday, Sunday, December 27th, Congressman Louie Gohmert of Tyler, Texas filed a civil action (No. 6:20-cv-00660-JDK) in the U.S. District Court for the Eastern District of Texas, seeking a declaratory judgment holding the Electoral Count Act unconstitutional under the 12th Amendment, in his hope of undoing the results of the presidential electors' votes and give the election to the loser, Donald Trump. I will have more to say, but having read his complaint and accompanying motion for expedited relief: Louie, your pleading is ridiculous. December 31, 2020 The federal judge in this case set an expedited response deadline for the Vice President of today at 5:00pm, and the Justice Department filed a response for him. It rather weakly says that Gohmert sued the wrong defendant -- should have sued the houses of Congress. That is the solely ground of defense to Gohmert's request for emergency, injunctive relief against Pence. Immediately thereafter counsel for t

Search This Blog