2/ "Under diploma privilege, applicants can be admitted to the bar w/o taking a bar exam but successfully graduating from law school & satisfying certain other requirements like passing the NY Law Exam & MPRE and completing a 'character and fitness' assessment."
3/ Most people don't know the history of the bar exam requirement.
For most of American history, most people became lawyers w/ neither law school nor a bar exam, but by "reading law" under a lawyer's supervision and a judge granting privileges to appear in his court...
4/ Over a century ago, Anglo-Saxon legal elites grew anxious about immigrants & children of working class becoming lawyers, so they erected "barriers of entry" to protect their privilege and status.
The requirement of college, law degree & bar exam were enormous costs & barriers.
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@RickPildes 3/ Barrett picked up on the Special Counsel's argument of the absurdity that crim statutes need a clear statement, if only a tiny number of statutes include (she said only three or so). Surely Congress did not mean for presidents to be broadly immune so generally from crim law.
At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable.
@FedSoc @Harvard_Law 3/ @NoahRFeldman says the Constitution’s original structure is functionalism and “checks and balance,” not formal “separation of powers.”
I haven’t put the point this strongly, but my research shows he’s more right than wrong.
And more historically correct than Scalia.
Thank you @NotreDameLRev (Vol. 100) for accepting "Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power."
I'm deeply honored & excited to work with you!
#newlawrevarticles papers.ssrn.com/sol3/papers.cf…
3/ My @SSRN draft "Freehold Offices v. Despotic Displacement" has more detail on:
The Opinions Clause;
The Ratification Debates;
Common law default rules for "good cause" removal; Charts on the Founders' Bookshelf & 18th C. English dictionaries: papers.ssrn.com/sol3/papers.cf…
My good friend Jeff Cohen (@BCLAW prof. former prosecutor) persuaded me that I was wrong about a criticism of the @ManhattanDA case against Trump:
These purely internal records like paystubs could count for intent to defraud.
1/
2/ Last April, I wrote in @nytimes:
"What, in practice, is the meaning of 'intent to defraud'? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it."
See below:
@nytimes 3/ The statutes 175.05 & .10 require:
"falsifying business records...with intent to defraud."
A false tax return or FEC filing would defraud the govt, but I asked how a pay stub would defraud anyone if no one ever relies on it or even looks at it: nytimes.com/2023/04/05/opi…
I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."
Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
3/ Trump's lawyers can seek an injunction in fed district court (and a stay) on grounds of 1) no state jurisdiction 2) federal preemption 3) selective prosecution, partisan bias, violation of 14th A.