"Usha and J.D. made a memorable pair. The legal writer David Lat remembers attending a poker night with the couple in 2011..."

"... at the neo-Gothic home of [Amy] Chua and her husband, fellow Yale law professor Jed Rubenfeld.... At the time, Chua was mainly known for her book Battle Hymn of the Tiger Mother, a gaily provocative paean to achievement-oriented parenting. Chua was a kind of den mother to certain student protégés, known on campus as 'Chua pets,' and J.D. was central among them. According to another former friend of the pair, Chua was not a fan of Usha. 'Probably because she didn’t engage in her bullshit,' the former friend said. 'You have to gossip and drink. J.D. loved that shit.' Usha did not. Lat happened to ride the Metro-North up from New York for the poker game with the soon-to-be Vances. He told his husband later that night that they’d reminded him of another famous Yale Law couple, Bill and Hillary Clinton. 'They had a kind of energy to them,' Lat said. 'They seemed very confident and successful. One thing that struck me as Hillary-esque was that Usha seemed to have more polish than J.D.'"

From "What Is Usha Vance Thinking? The veep candidate’s wife is the child of immigrants, a former Democrat, a highly skilled lawyer — and a total mystery" (NY Magazine).

"Omicron Makes Biden’s Vaccine Mandates Obsolete/There is no evidence so far that vaccines are reducing infections from the fast-spreading variant."

Commentary by Luc Montagnier and Jed Rubenfeld (in The Wall Street Journal)("Dr. Montagnier was a winner of the 2008 Nobel Prize in Physiology or Medicine for discovering the human immunodeficiency virus. Mr. Rubenfeld is a constitutional scholar").

It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target. Yet that’s exactly what’s happening here.

The government's mandates came out when the concern was Delta, not Omicron, and therefore its "findings are now obsolete."

"And we all know that this is about payback for supporting Brett Kavanaugh, no more. If it brings the law school bad press..."

"... and ruins the already disappointing deanship of Heather Gerken — spoiler, it has — then that’s justice. Just read this, and imagine putting any of these people in charge of your life, your liberty, or your business’s future."

Glenn Reynolds weighs in on the Yale Law School controversy. This is the complicated Amy Chua/Jed Rubenfeld matter that I'm not taking any position on, because I don't trust the witnesses.

Meanwhile, at Lawyers, Guns & Money, Paul Campos is reviling Chua and Rubenfeld.

Campos quotes NY Magazine...

Three other professors [said] that Chua is the victim of overzealous zoomers who have confused the natural hierarchy of achievement — and Chua’s right to favor whomever she wants — with a social-justice outrage. “There are a lot of mediocre students at Yale who were superstars in their little county fairs, and now they’re in the Kentucky Derby and they’re not winning their races and they feel like it’s unfair because other students are doing better,” says one faculty member who thinks the dean, Heather Gerken, was too deferential to students in how she handled the small-group affair.

... and goes nuclear:

This person should be fired directly into the Sun. It’s basically impossible to get into YLS without perfect everything, and the analogy between running the Belmont in 2:24 and impressing a bunch of wankers on the YLS faculty with your talent for subtle ingratiation disguised as “brilliance” is, shall we say, not a super tight one.

It's easy for me to picture how the most elite admissions process could lead to a student body that, in action, feels like "a lot of mediocre students." But that's a dreadful dysfunction of the institution that the faculty is responsible for. It's truly contemptible to stand aloof and blame your students. 

And the use of the rural setting for the analogy — little county fairs — is out-and-proud snobbery of the most embarrassing kind. Little county fairs and the Kentucky Derby — that's rich. Is there horse racing at a county fair? I'd really like to know who came up with that dimwitted analogy, and I can see why it pissed Campos off. He's right that in that analogy, winning the Kentucky Derby is analogized to ingratiating yourself to law professors.

But what we don't really know is what kind of ingratiating was going on with the great power couple that was Amy Chua and Jed Rubenfeld? Was it something different — creepier and more sexual — than the ingratiating that goes on with other Yale lawprofs?

"He thrives on the understanding of the classroom as an eroticized place, where there’s this kind of thrill of engaging in risky exploration about ideas that’s continuous with risky exploration of all kinds of boundary transgressions."

Says an unnamed Yale Law School colleague of Jed Rubenfeld's, quoted in "The Tiger Mom and the Hornet’s Nest/For two decades, Amy Chua and Jed Rubenfeld were Yale Law power brokers. A new generation wants to see them exiled" (NY Magazine).

ADDED: The NYT is running a story today too: "Gripped by ‘Dinner Party-gate,’ Yale Law Confronts a Venomous Divide A dispute centering on the celebrity professor Amy Chua exposes a culture pitting student against student, professor against professor."

I've read both articles, and I can't take a position. It's too complicated and there are too many unreliable narrators.

"On Monday morning, members of the Yale Law School faculty received a terse message from their provost informing them that Professor Jed Rubenfeld 'will leave his position as a member of the YLS faculty for a two-year period, effective immediately'..."

"... and that upon his return, Rubenfeld would be barred from teaching 'small group or required courses. He will be restricted in social gatherings with students.' As of Tuesday morning, he was no longer listed on the Yale Law faculty site. Three people familiar with the investigation that led to Rubenfeld’s suspension said it stemmed from the university finding a pattern of sexual harassment of several students. The allegations, which spanned decades, included verbal harassment, unwanted touching, and attempted kissing, both in the classroom and at parties at Rubenfeld’s home.... Rubenfeld said Tuesday, 'I think subsequent to me having written some controversial articles about sexual assault, that I became a target of people making false allegations against me.' Who was making these false allegations, exactly? 'I don’t know,' Rubenfeld said, 'because of confidentiality. Identities were not revealed to me.' That’s not true, according to Yale’s stated policies — and one of the complainants.... Rubenfeld is married to fellow Yale Law professor Amy Chua, author of Battle Hymn of the Tiger Mother, and both wield power in the high-stakes race for judicial clerkships. In the summer of 2018, it was Chua who took to the pages of the Wall Street Journal to vouch for then–Supreme Court nominee Brett Kavanaugh as a 'mentor for young lawyers, particularly women.'"

From "Yale Law Professor Jed Rubenfeld Has Been Suspended for Sexual Harassment" (New York Magazine).

Via Glenn Reynolds, who says: "If I recall correctly, they started going after him when he and his wife Amy Chua defended Brett Kavanaugh."

Oh, no, we have to talk about "Tiger Mom" again.

I should be immune to the efforts of law professors to get us all talking about themselves, and Amy Chua has already done it once, with her "Tiger Mom" book in 2011, so I should be able to resist as she reappears, 3 years later, with another book, this time co-authored with her husband (who's also a law professor). But this one is cleverly packaged to make us say: Hey! Isn't that racist?! How can they say something so racist?!! Do they think because they are Yale law professors that they won't be accused of racism?!!!

"A kafuffle has broken out between Yale Constitutional Law Professor Jed Rubenfeld and self-righteous right-wing blogger 'Simon.'"

LOL. Our Simon has a quote for his banner from preening, left-wing, he's-not-Mickey blogger Stephen Kaus (who seems to be some sort of lawyer but thinks judges announce decisions by saying "Decision: [name of winning party]" and that there is a word "kafuffle").

IN THE COMMENTS: Inwood writes:

I don't know how anyone could fail to, um, decide correctly which is more reasonable from both a commonsense POV, & a Con Law approach: (a) the carefully reasoned & well-expressed points presented by both Mukasey & Simon or (b) the, um, “self-righteous” as well as hysterical "five days from the effective date of Mukasey's appointment, we're all gonna be back in the McCarthy era where, because we've talked to certain people, expressed certain ideas, or are some kind of free thinkers; we’re gonna be on the "National Wire Tapping List", following which we may well be randomly water boarded by the jackboots of BushHitler" nonsense of The NYT & these guys.

BTW, IR, how about “Kausfluffle”?

And Simon is unruffled by the Kausfluffle:

I'm not sure how ruffled my feathers could really get when someone whose sole claim to fame is having a brother more famous, more erudite and more accomplished than he is decides to demonstrate the same lack of reading comprehension skills (he completely misapprehends my post, not to mention making some very questionable assumptions) by scrawling some graffiti on the sewer wall of the internet.

I mean, really, Steve Kaus? For all the world, he's the blogosphere's equivalent of the brother of the Paul Bettanny character in Wimbledon.

And what's with the "Simon" in scare quotes? It's not as if my last name's a secret or hidden.

ALSO IN THE COMMENTS: Too Many Jims said "there are better indictments of Kaus' writing than "kafuffle is not a word." And I said:

I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professor. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.

MORE: Jed Rubenfeld — the Yale lawprof who wrote the NYT op-ed that started all this — emails:

In response to my op-ed, some have said, "But Judge Mukasey in no way suggested a presidential authority to ignore constitutional statutes; all he meant was that the president has authority to ignore unconstitutional statutes." Others have wondered, on my behalf, whether, given Judge Mukasey's actual statements, and given the history of executive-power claims by the present Administration, this reply is in fact a meaningful reply to the point I made in my op-ed. Of those posting on your blog, "Laser" comes closest to saying what I myself would have said. But in case it would be helpful, here is my own answer.

There are two interpretations of Judge Mukasey’s statements that I meant to be addressing simultaneously and that I would object to equally.

Judge Mukasey indicated that the president has constitutional authority to disregard a federal statute if “what goes outside the statute nonetheless lies within the president’s authority to defend the country.” The president was not above the law, Judge Mukasey emphasized, but the law “starts with the Constitution.” A "statute, regardless of its clarity, can't change the Constitution."

The first question — and what I regard as the real question — is whether Judge Mukasey's statements imply a presidential authority to ignore a federal statute in the following kind of case: (a) where both the president and the Congress possess constitutionally granted power over a certain subject matter; (b) where Congress has exercised its constitutionally granted power; but (c) where the president, in the exercise of his constitutional power, wants to do something that is otherwise constitutionally permissible, that he believes justified in the name of defending the nation (at least in wartime) as he thinks best, but that the enacted statute prevents him from doing. I think Judge Mukasey's statements at least leave open the possibility that the president has authority to disregard the statute in this kind of case.

There are two interpretations of Judge Mukasey's statements according to which he could have endorsed such an authority. First, he might have meant: (1) that, under our Constitution, executive power simply trumps a constitutionally enacted statute in those cases. This is not an unintelligible position. Where two branches each have power over a certain subject matter, one must be supreme over the other, even if both are acting within their constitutionally granted powers. In matters of defending the nation in wartime, someone might intelligibly believe that the executive power must be supreme. On my view, however, this position is plainly unacceptable, contrary to Youngstown, contrary to the supremacy clause, and a subversion of the Constitution’s foundational principles.

Second, Judge Mukasey’s statements could be interpreted to mean: (2) that in the cases specified, the statute becomes unconstitutional just because the statute has infringed on executive power. Now, some people seem to think that this is very different from position (1). They say, "On this view, Judge Mukasey was merely arguing for an executive power that everyone agrees to -- the power to disregard an unconstitutional statute." For myself, I do not view position (2) as meaningfully different from position (1). I think position (2) just is position (1), dressed up in different words; or, to put it the other way, that position (1) just is position (2), dressed up in different words. I take position (2) to be unacceptable precisely because it boils down to the same thing as position (1). I also take position (2) to be close, if not identical, to the position articulated in the repudiated “torture memo.”

I thought about trying to distinguish these two positions in my op-ed, but in the end decided not to. I made this decision not only to save words. On my view, the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct.

Let me emphasize that I take both positions (1) and (2) to be distinguishable from position (3), which holds that the president has the authority to disregard a statute that unconstitutionally asserts congressional power over a subject matter that the Constitution simply does not grant Congress power over. Thus if Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all. By contrast, I take FISA and the military commissions act clearly to govern matters that both Congress and the president have powers over (at least, in FISA’s case, as applied to communications made by United States persons on United States soil). It follows that the president is simply breaking the law if he unilaterally violates these statutes, regardless of which position, (1), (2), or (3), is asserted in defense thereof.

What is key is that there are some things with respect to which the President has exclusive power. This is commonly known as Jackson's category 3 (from the Youngstown case). Here is Justice Jackson's delineation of the concept:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system....

[Where the President's action is contrary to a federal statute,] it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.

I think this is what Mukasey was referring to, and, as such, it is a solid and unremarkable position. The real dispute is not over whether the President can violate statutes, but how big "category 3" is: How much power does the Constitution give exclusively to the President? I don't doubt that Mukasey has a more expansive view of "category 3" than Rubenfeld does.

What did Mukasey say about the President's power to disregard statutes?

Yale lawprof Jed Rubenfeld has a NYT op-ed. Simon wields the transcript in retaliation. Decision: Simon.

UPDATE: The discussion continues here, where, among other things, Rubenfeld responds.

"The world no longer believes rational thought will solve our problems."

That's novelist Caleb Carr's theory for why Yale lawprof Jed Rubenfel's novel "The Interpretation of Murder" is not selling well (despite the publisher's $500,000 publicity campaign and all the free PR reaped from the news that Rubenfeld got an $800,000 advance). In other news, Rubenfeld is trailing badly in the "America's hottest male law school dean" contest. I think these two stories are linked, though. He's already got the $800,000 advance, so no way we're voting for him as hottest dean. That's rational, right?

My magic table.

I've got a little table -- I've written about it before -- that seems to have a magical capacity to concentrate my mind. It's all the way in the back of a Madison café, not a normal place for me to sit. I like the front, where people move around and talk and give you that real feeling of being out in the world, which seems to be the point of not working at home. But there's something about this table by the window, where the view when you look straight up is a bulletin board: "Stop Israeli Terror Now!" "Help Defeat Bush and the GOP," "Demand Zero Emission Cars," "Demonstrate Against Hate," "Womyn's Coop," "Lay Low and Glow," "The Power to Heal Is In Your Hands," "Depression and Brain Changes Research Study." Something keeps me focused. I sat here once and wrote an op-ed on a 3-hour deadline. Last time I was here, I ran into a colleague who had a writing project spread out on a table. A novel, he revealed. Are all the lawprofs writing novels these days? A week ago, I checked out lawprof Jed Rubenfeld's new novel and noted how he said his agent steered him away from a law book: People want to read novels. But I'm not here to start a novel, even though once, a long time ago, I wrote a novel, I was kind of inspired by an essay today about those summer camps for writers, and I even had a dream last night that I was writing a novel. What was the novel about? I can't remember! And I'm at my little magic table here now because I've got another little law essay to do.

"We only like to represent material that someone might actually want to read."

That's what an agent wrote to lawprof Jed Rubenfeld when he proposed to write a book about law for laypersons, according to this big NYT piece about the novel of his that's coming out next month, supported by tons of expensive publicity. The book -- which I've got around here some place (because I'm a publicity outlet, you know) -- is called "The Interpretation of Murder." The title, I assume, is based on "The Interpretation of Dreams" -- Rubenfeld's book has a lot of Freudian material. If this big publicity campaign works out, a lawprof will get very rich -- I approve! -- and there will be a big rage for lawprofs, lawprofs, lawprofs -- I approve! And presumably, everyone will go mad for Freud -- right? -- like the way "The DaVinci Code" made Leonardo DaVinci or Renaissance art or the Gospels or -- what the hell was that book about? -- a newly reupholstered part of our mental furniture. Do you want Freud back in your head -- so soon after he was so brilliantly, successfully ousted?

Rubenfeld's idea, we read, began with "the intense hostility that Freud developed toward the United States after his visit there in 1909" and took the form of a mystery based on killing off the famous Freud patient Dora.

At first he just made up details about New York in 1909, he said. But when he showed it to a friend, an avid reader of historical novels, she balked when she learned none of the details were accurate.

Over the next six months he researched the history of New York in the early 20th century. The next draft included extensive factual details about famous buildings and historical events, as well as long passages about Freud’s theories.

Extensive... long... is the NYT trying to tell us something?

Most of the article is about the way publishers try to make a book a bestseller by putting lots of money behind it. The sheer act of putting lots of money behind it is itself a way to attract attention, even before you start spending the money to buy publicity. The Times is, no doubt, weary of this game.

I guess I should take a look at the book and provide you with some first-hand opinion. I don't read many novels, and the ones I choose for myself are almost never -- well, never -- the sorts of historical novels and mysteries that make the bestseller lists. If I want to read about history, I'd rather go with nonfiction written by a historian, and as for mysteries, I've just never been interested. What difference does it make who did it? These are just fictional characters made up for the purpose of teasing us by making it seem as if each one could have done it and withholding key pieces of information so you can't tell which one until the end. I'm sure there's more charm to it than that, but I don't know, because, as I've said, I don't read them. I think I've read about five mysteries in my life. Look, I can name them: "Gaudy Night," "The Three Coffins," "Death in a Tenured Position," and maybe something by Agatha Christie and something by Georges Simenon.

Anyway, if I do take a look at "The Interpretation of Murder," which I'm horribly unlikely to read all the way through, the main thing I would care about is how well Rubenfeld has figured out a way to depict Sigmund Freud. He'd better not just be a guy spouting Freudian observations! So Freud hated America? That's the germ of Rubenfeld's idea? The phenomenon of America-hating by self-important Europeans could have some meat to it. As to what the lamp posts looked like in New York in 1909, I don't need a lawprof to put it into words.

UPDATE: It's 6:28 pm, the same day the original post was written. Most of today I spent reading "The Stranger," prompted by another post written today, which now has an update. I also sat down for 20 minutes or so to skim "The Interpretation of Murder," and that was enough to satisfy myself that this is simply not the kind of book that I read. In particular, I intensely dislike when a present-day writer affects a style of a past era because his story is set in that era. Every sentence contains a word choice that irritates the hell out of me. This effort to create an aura of the past... what is it for? But I'm not going to savage this book. It's a genre book in a genre I don't care about. I understand that these things exist for people who aren't like me. You folks can decide if this is a good example of things like that.

ANOTHER UPDATE: Let me type out the third sentence in this book to explain what I hate about the prose style. The first two sentences, for reference, are: "There is no mystery to happiness" and "Unhappy men are all alike." Here's the sentence that exemplifies everything that bugs me:

Some wound they suffered long ago, some wish denied, some blow to pride, some kindling spark of love put out by scorn -- or, worse, indifference -- cleaves to them, or they to it, and so they live each day within a shroud of yesterdays.

First, how could the editor not detect and expunge the "denied"/"pride" rhyme that shockingly informs us of the author's lack of ear?

Second, "cleaves" is an idiotically archaic word. You have to ask yourself why you'd ever use it instead of "clings." But what's worse is that the subjects to that verb just aren't cleaving things. A "wound" doesn't cleave. A "spark" doesn't cleave. A "blow" doesn't cleave.

And why bother to dress up "spark" with the adjective "kindling"? It's a redundancy that was daubed onto the sentence to try to make it sound like 1909, whatever the hell 1909 sounds like.

And why drag in "a shroud"? We've already got too many images: a wound, a blow, a spark, cleaving. Now, we've got a shroud in that sentence too? Blah! I shrink with bone-chilling horror at the deathly shroud of moribund prose that dangles limply from the author's limblike arms, as he threatens ominously to envelopingly enwrap me in it ... or it in me.