Things to Read This Week (12/15)
Latin maxims and formalist principles
Another banger of an issue of the Harvard Law Review is out, including Emma Kaufman, The First Criminal Procedure Revolution, arguing that “In the nineteenth century, the rules we now call criminal procedure rights were hard limits on judicial power. . . . But then, in an underappreciated and radical shift, courts changed their mind.” I’d like to put the piece in conversation with Ryan Williams’s discussion of the maxim “quilibet potest renunciare juri pro se introducto” before deciding what I think of it, but exciting in any event. The same issue also has Deeks & Eichensehr, Federalism and the New National Security, and more.
You have to listen to this one instead of reading it unless you can dig up a transcript, but my colleague Genevieve Lakier has a great appearance on Mike Seidman’s and Mark Tushnet’s podcast — standing up for the relevance of judicial review under the Free Speech Clause even in (especially in?) the current moment.
I recently came across this working paper by John Harrison, The Unitary Executive Without Inherent Presidential Removal Power, a very interesting and timely attempt to square the circle: “This article develops and defends a new version of the unitary executive thesis: The Constitution puts the President in control of the government’s executive activities, including exercises of policy discretion that is granted to executive officials by statute. The Constitution does not, however, give the President any particular tool with which to exercise control. The Constitution therefore does not confer removal power. Congress has substantial flexibility in structuring the executive branch, but it must ensure that the President has the tools needed to direct executive activities and policy choices. Removal power is one such tool, but there are others.”
And, relatedly, I was in the New York Times last week for another conversation with Kate Shaw and Steve Vladeck — mostly about the Trump v. Slaughter arguments. I wrote: “the thing that most concerns me is the risk that the court won’t take its own formalist principles as seriously when it comes to restraining executive power. The jury is still out on that, and the tariff case will be an important data point, but Trump v. United States was a very bad sign. I’d rather have a non-originalist court than a court that uses originalism to help the president win cases and then finds excuses not to use it against him.”
Prof. Baude: Emma Kaufman's piece is inspired, invigorating. You know this. The way you matched her up with another author who appears to be particularly antagonistic to inalienable, personal/individual 'immunities', suggests (to me) that you have something more to say. I'd like to hear it. Should Ms. Kaufman have found a (plausibly historical) way to substitute 'immunities' for 'public rights' and 'jurisdiction'? Are you thinking that (she should have said) we actually lost our 'immunities' during the fifteen decades after John Bingham–America's Second-Founding Son–escaped to Japan (disgraced by Credit Mobilier?) to promote U.S. financing for another (Japanese) civil war and more railroads? Please, please, please, get her to one of those round-tables where you and McConnell, and Pfander, and Solum, all sit and talk about everything. It would be so wonderful–and better–to listen to Ms. Kaufman chatting with all the authors she cites in her study. Better still–on a panel before any chapter of the higher-profile Federalist Society (with Ryan Williams, as you suggest!). You're very clever–make that conversation happen!