Harold Koh

The Supreme Court this week took a position at odds with it's Citizens United holding: corporations aren't persons when they aid and abet torture.

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Harold Koh and John Yoo are two peas in a pod, except that Yoo is the right-wing pea and Koh is the left-wing pea. Yoo, a Justice Department lawyer during the Bush administration, interpreted “torture” narrowly in order to advance a constitutional agenda in which executive power has primacy. This interpretation permitted the Bush administration to use harsh interrogation tactics on suspected members of Al Qaeda.

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This nobody who is suddenly somebody is Paul Campos. He is a professor of law at the University of Colorado. Other than being an unremarkable law professor, he is known largely for trivial interests: obesity, the personality of judges, the origins of the chicken sandwich, the Notre Dame football team. He has also shown some knack for interdisciplinary work. For example, he wrote a piece, “Fat Judges Need Not Apply,” for the Daily Beast, which, as you know, is a very serious journal. But don’t underestimate Campos.

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Blank Slate

Imagine a candidate for the U.S. Senate who has never taken a public stand on almost any policy issue. Imagine that her campaign consists of asking people for their support because, according to friends and colleagues, the candidate is smart, fair, and good to others. When her friends are asked what her views are on various political matters, they reply that they don't know—but that they're confident she'd make an excellent senator. This bizarre hypothetical closely resembles the actual campaign to put Elena Kagan on the Supreme Court.

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Everyone’s Dean

Some years ago, I told my colleague Jack Goldsmith, when his role in revoking the notorious Yoo-Bybee torture memos became public, that the only thing worse than being demonized by the left is being lionized by the left. It works both ways, though. The media like to pin a one-word--or if they are more nuanced, one-phrase--epithet on public figures, as Homer would on his gods and heroes (grey-eyed Athena, wily Odysseus). They have decided to attach the term "conservative" (or for the more subtle: "relatively conservative") to solicitor general and former Harvard Law School Dean Elena Kagan.

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I take it is a relief that, aside from its rhetorical pandering to the civil libertarian absolutists who can’t seem to grasp that Muslim terror networks are in a worldwide war with the United States and its remaining allies, the Obama administration is actually extending the life of the Bush presidency in its defense against jihad. Eli Lake, who is among the most discerning journalists on the intelligence beat, has written an analysis in Reason on where—or, rather, how little—the Obami have deviated from Bush guidelines. When it comes to the legal framework for confronting terrorism, President

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The Constitution in 2020 Edited by Jack M. Balkin and Reva B. Siegel (Oxford University Press, 355 pp., $19.95) There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on.

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THE CONSTITUTION IN 2020 Edited by Jack M. Balkin and Reva B. Siegel (Oxford University Press, 355 pp., $19.95)   There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on.

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How To Fight A Smear

Dahlia Lithwick has a really good piece lamenting the fact that the mainstream media has failed to take on the right-wing smear campaign against Yale Law prof--and Obama's nominee to serve as the State Department's top lawyer--Harold Koh: You can certainly argue that ignoring the whole story signals that it's beneath notice. But it also means that, once again, the only players on the field work for Fox News.

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Today the Post's Al Kamen repeats the existing talk that Yale Law professor Harold Koh will be Hillary Clinton's top lawyer at the State Department. Koh is a strong liberal on issues of international law and human rights (he is an adamant torture opponent, for instance), which adds another dot to a picture of an Obama administration whose legal picks are among its most liberal. Contrast Eric Holder's clear condemnation of waterboarding versus National Intelligence Director Dennis Blair's more careful take, for instance.

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