New on SSRN: "Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment"

I have just posted on SSRN a new draft: Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment. Here is the abstract:

In 1994, the popular children's cartoon show "Animaniacs" aired a song about the presidents of the United States, culminating in the lyrics, "Now in Washington, DC/ There's Democrats and the G.O.P./ But the one in charge is plain to see/ It's Clinton, first name Hillary." Its humor illustrated what Americans come to expect--first spouses effectively serve in the role of President of the United States, if only informally. When Americans voted in 2016, they recognized that she was ineligible to be elected as President of the United States--she could not serve a third term because of the Twenty-Second Amendment.
This Article proceeds in three parts. First, the Article examines the text of the Twenty-Second Amendment, which provides that "[n]o person shall be elected to the office of President more than twice." Through a Blackstonian understanding of the common law tradition of coverture, the Article argues that the word "person" includes both married spouses, as the public understood the amendment when it was ratified in 1951--even as coverture was being abolished in most jurisdictions.
Second, even in light of some ambiguity of the meaning of the word "person," the "unwritten" Constitution informs us that presidential spouses are ineligible to serve as President. Tracing George Washington's example of serving just two terms in the White House to the enactment of Twenty-Second Amendment, the tradition of no spouse running for the office remains an indelible practice that informs our understanding of the Constitution.
Third, the people's uniform rejection of presidential spouses running for the office of President--in the 2008 presidential primaries, and the 2016 general election--suggests that spouses are not eligible for the office. The people, after all, may independently judge the qualifications of candidates for the office of President, and their interpretation, as construed through their behavior, informs this view of the Amendment. It concludes by teasing out the implications for a potential presidential run for office for Michelle Obama and how litigation seeking to exclude her from running might fare.

Comments (and offers from law reviews) welcome!


Ted Cruz citizenship quiz

Donald Trump and others have suggest that Ted Cruz's status as a "natural born citizen" is in some doubt. Cruz was born in Canada to a Cuban father and an American mother. To clear up any uncertainty, however, a test to determine whether Mr. Cruz is Canadian or American is in order. I decided to draft the following quiz--perhaps a court could administer it to him and judge the results. Some questions are decidedly more subtle than others.

1. It is third down and four. What play do you call?

A. Pass
B. Run
C. Punt

2. Which of the Articles of Confederation has the most enduring legacy?

A. Article 2
B. Article 5
C. Article 11

3. What is the greatest walk-off home run in a World Series?

A. Bill Mazeroski, 1960
B. Kirk Gibson, 1988
C. Joe Carter, 1990

4. Who is the most underappreciated president of the Gilded Age?

A. James Garfield
B. Chester A. Arthur
C. Benjamin Harrison

5. Who is the most impressive sprinter?

A. Carl Lewis
B. Donovan Bailey
C. Usain Bolt

6. On what day are you most inclined to consume turkey?

A. The second Monday in October
B. The fourth Thursday in November
C. The final Thursday in November

7. What tastes best atop french fries?

A. Ketchup
B. Chili
C. Vinegar

8. Which is the most impressive professional sports dynasty?

A. The 1960s Boston Celtics
B. The 1970s Montreal Canadiens
C. The 1990s New York Yankees

9. Who is the greatest female vocalist of recent years?

A. Madonna
B. Céline Dion
C. Whitney Houston

10. When you are exasperated with someone, which is the best retort?

A. Take off!
B. Get lost!
C. Make like a tree, and get outta here!

Canadian answers: 1. C, 2. C, 3. C, 4. B, 5. B, 6. A, 7. C, 8. B, 9. B, 10. A

Incidentally, certain answers are designed to reveal whether one is truly a conservative. Identifying Article 2 of the Articles of Confederation (states' rights) or the last Thursday in November ("Republican Thanksgiving") are important clues for any conservative Republican candidate's platform.

New MP3: Eminem - '97 Bonnie and Clyde ft. Chief Justice John Roberts

I grew up on 12 Mile Road in the 313.* It's with some affection, then, that I hold the music of Detroit, from Motown to techno, in high esteem.

Eminem supporters storm the State of the Union address and beg onlooking Supreme Court justices to "Protect the 1st Amendment." (Screenshots from Eminem, "The Mosh Continues" (2004).)

Eminem is probably one of the most gifted lyricists in rap--he moves far beyond rhyme to embrace assonance, consonance, alliteration, and many more poetic forms in his lyrics. (This 90-second video clip of his interview with Anderson Cooper on the word "orange" teaches more about poetry more than most students learn in all of high school.) His music, however, is not for the faint of heart, given the obscenity and... shall we say, adult content of those lyrics.

An early album in 1997 featured "Just the Two of Us," a song about domestic violence in which Eminem and his daughter conspire to kill the girl's mother. (The song samples heavily from the 1981 Grover Washington Jr. and Bill Whithers song.) The song was re-recorded, extended, and released under the title "'97 Bonnie and Clyde" on another album in 1999.

Last week, the United States Supreme Court heard oral argument in Elonis v. United States, in which Defendant was convicted of threatening another in a Facebook post. Asking about the scope of the First Amendment when it comes to threatening speech, Chief Justice John Roberts quoted from "'97 Bonnie and Clyde." From the transcript (PDF):

CHIEF JUSTICE ROBERTS: What about the language [in] the Petitioner's brief? You know, "Da-da make a nice bed for mommy at the bottom of the lake," "tie a rope around a rock," this is during the context of a domestic dispute between a husband and wife. "There goes mama splashing in the water, no more fighting with dad," you know, all that stuff.
Now, under your test, could that be prosecuted.
MR. DREEBEN: No. Because if you look at the context of these statements--
CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?
MR. DREEBEN: Because Eminem said it at a concert where people are going to be entertained.

With that, I thought a mashup was in order. With the enormous help and creative talent of an old friend and talented musician, Nate Wazoo, here's "Roberts and Clyde." an MP3 of a 52-second sample of the song.

You can purchase a copy of the original "'97 Bonnie and Clyde" at sites like Amazon.

*Strictly speaking, that was Royal Oak, not Detroit--the 313 area code was subdivided in 1993.

Copyright notice: the use of any copyrighted material is fair use for non-commercial, satirical, and educational purposes.

Glossary: What words and phrases in Supreme Court analysis mean

It's another October Term for the Supreme Court!

And that means it's another year of compelling Supreme Court analysis.

You may not be familiar with the jargon that usually accompanies Supreme Court analysis. Here's a brief glossary of key terms, and what they mean when an author uses them.

along gender lines: "Justice Breyer did not vote along partisan lines."

along partisan lines: "Thank goodness Justices Stevens and Souter retired."

angry dissent: "I [the author] agree with the majority."

bitter dissent: "I agree with the majority."

blistering dissent: "I agree with the dissent."

bold: "There is no meaningful textual support for the argument the Court advanced."

Citizens United: "This article is clickbait."

hammered: "The opinion was disrespectful, but I enjoyed it."

impassioned: "The opinion might not have had the law, or the facts, on its side, but it sure did have the adjectives and the adverbs."

the justice was moved to read his/her dissent aloud from the bench: "I'm bursting at the seams to inform you that I agree with that dissent."

Lochner: "I'm about to rip Chief Justice Roberts for being pro-business."

major blow: "The losing party actually lost."

the majority dismissed these concerns: "I had concerns that the majority did not address."

may: "This is not a fact."

many observers: "The first law professor who answered my phone call."

members of Congress expressed outrage: "Some people have never read Article V."

modest: "The opinion did not discuss as many things as I wanted."

narrowly divided: "The vote was 5-4, and I agree with the four dissenting justices."

passionate dissent: "I agree with the dissent."

potentially: "I am making things up."

powerful dissent: "I agree with the dissent."

rebuked: "The losing party actually lost."

repeatedly: "More than once."

restraint: "I am going to compliment Chief Justice Roberts."

scathing: "The opinion used a lot of hyperbolic words."

setback: "The losing party actually lost."

sharply divided: "The vote was 5-4, and I agree with the four dissenting justices."

sidestepped: "The Court did not include very much dicta."

speculated: "You should not read the rest of this sentence."

supremely: "I lack any creativity."

surprising: "My rampant speculation after listening to oral argument was wrong."

sweeping: "I think this case is important."

tea leaves: "You should not read the rest of this article."

unbroken silence: "I'm going to discuss Justice Thomas."

unprecedented: "It turns out that the Court had a purpose when it granted certiorari to address a new issue."

unusual alliance: "This isn't the 5-4 opinion I wanted to write about."

waded: "The Court probably regrets granting cert."

A Symposium on the Future-Future of Legal Education

For immediate release.

Following up on the Symposium on the Symposia on the Future of Legal Education, this symposium will examine the future-future of legal education--discussing trends heretofore unanticipated. But, in an attempt to reinvent the points where law and technology meet, we must reinvent what the future means--hence, future-future. This innovative, entrepreneurial symposium will emphasize breaking and/or shifting paradigms, but reimagination and digitalization are welcome. The conference will focus on the following subjects:

  • Beyond Bitcoin: A New Model for Digital Fiat Currency Tuition and Loan Repayment
  • iLaw: What the Next Secret Apple Product Means for Law, and How We Should Immediately Integrate It
  • Reinventing Law in a Post-Twitter, Post-Instagram Universe: An Apocalyptic Vision
  • The Future of Buzz: Identifying How to Start a Trend Before It Starts
  • The Restatement (Fourth) of Everything: Synthesis and Specificity
  • Keynote Address: "A Series of Rampant Speculations for the Next Thirty Minutes"

The conference will be held in an expensive European locale, and conference participants should ask their home institutions to pay for all expenses.

A Symposium on the Symposia on the Future of Legal Education

For immediate release.

Legal education is in crisis. In response to this crisis, law journals have been holding symposia on the future of legal education, including the following from a non-exhaustive list over the last two years:

  • The Future of Legal Education, Iowa (February 2, 2011) 
  • Making Law Students Client-Ready: A New Model in Legal Education, Creighton (March 25, 2012)
  • Perspectives and Distinctions on the Future of Legal Education, Ohio Northern (March 26, 2012) 
  • The Lawyer of the Future, Pepperdine (April 20, 2012) 
  • Building Global Professionalism: Emerging Trends in International and Transnational Legal Education, Drexel (October 12, 2012) 
  • Experience the Future: Experiential Education in Law, Northeastern (October 26-28, 2012) 
  • Are Law Schools Passing the Bar: Examining the Demands and Limitations of the Legal Education Market, Connecticut (November 16, 2012)
  • The Future of Law, Business, and Legal Education: How to Prepare Students to Meet Corporate Needs, Chapman (February 1, 2013)
  • The State and Future of Legal Education, McGeorge  (April 5, 2013)
  • Future of Lawyers and Legal Profession, Vermont (April 5, 2013) 
  • The Future of Legal Education and the Legal Profession, Stanford (April 26, 2013)
  • Justice, Lawyering and Legal Education in the Digital Age, Chicago-Kent (June 15, 2013)
  • Legal Education Looking Forward, Seton Hall (October 25, 2013) 

More symposia on the future of legal education are in the works. 

But what has been undertheorized is the aggregate effect of these symposia on the future of legal education, and their influence on the future of legal education. This symposium fills the gap in the existing literature and grapples with the lessons learned from these symposia on the future of legal education. This symposium on the symposia on the future of legal education offers novel ideas, and bold predictions, for future symposia on the future of legal education. Each panel in this symposium will concentrate on panels from the previous symposia and evaluate or critique the effectiveness of the symposia.

Panels for this symposium include: 

  • Creating an Effective Symposium on the Future of Legal Education
  • Near-Future or Far-Future? An Analysis of the Predictions in Legal Education Symposia
  • Where We've Been and Where We're Going: The Legal Education Symposium of the Future
  • Where Symposia and Technology Meet: Disrupting Symposia on the Future of Legal Education

Papers presented at this symposium on the symposia will be included in a special issue to the special issue of the Law Journal.