Do I have to choose between Trump and communism?

Re-creation, RJ Peltz-Steele with Google Gemini CC0 1.0

A sign on my commute distracts me every time, and I find myself thinking about it way too much:

"TRUMP OR COMMUNISM."

So we're clear, that's not actually a choice anyone is being asked to make. 

For Slate, Alexander Sammon wrote today about the rhetoric of a new Red Scare:

"On the occasion of America’s 250th anniversary, President Donald Trump took time away from the birthday revelry to warn of a grave and imposing adversary. 

"'Communism is a mortal threat to American liberty. It is the greatest threat to our country, including World War I, World War II, Pearl Harbor, or even 9/11,' he said on July Fourth weekend this year, in South Dakota...."

And in Georgia a few days earlier, "according to the Atlantic, Trump mentioned communism or communist 15 times ... 'starting less than a minute into his hour-plus speech.'"

My family, on one side, escaped communism in Ukraine. I have seen the aftermath of communism in central and eastern Europe since the wall fell. If "communism" is that communism, then I'll take the democratically elected leader every time, regardless of our policy agreements and disagreements.

But as I wrote about Vietnam last year, "communism" today looks more like capitalism run amuck; it's hard to tell from the street which side won that war. Even historically, behind the iron curtain, the authoritarian bureaucracy of red Russia hardly lived up to any Marxian ideal.

So if "communism" means making filthy profits from global cartels and bathing in the social largesse of murderous oligarchy— well, then, I'm not sure how the sign's two choices are different. 

If "communism" means a living wage for one's work, and healthcare for one's hefty taxes; breaking up anti-competitive trusts and leveling the field for a free marketplace; and access to education for those who are willing to put in the work— 

Well, then, I guess I have to think about it some more.

9/11 widow calling out U.S.-Saudi coziness highlights failure of liability regime to deliver justice

Flag from Ground Zero appears in September 11 commemoration
last week at American History Museum in Washington, D.C.
G. Edward Johnson via Wikimedia Commons CC BY 4.0

"Tell the Saudis to stop lying," a September 11 widow told the 25th annual memorial gathering in New York City on Friday.

Terry Strada is the widow of Thomas S. Strada, a father of three and Cantor Fitzgerald bond broker killed in the terrorist attack on September 11, 2001. She broke the tradition of exclusively apolitical statements at the annual memorial. But she drew applause from the crowd and shamed the assembly of every living former President and the current Vice President, who were there.

Here's more of what Strada had to say, from The Hill:

"For 25 years, administration after administration, including leaders in front of us here today, chose to protect the Saudis instead of standing with the 9/11 families," she said. 

"They withheld evidence," Strada continued. "They vetoed JASTA [Justice Against Sponsors of Terrorism Act]. They broke promises, both public and private. It has been one betrayal after another."

"Tell them that if they want to be friends with the USA, they cannot continue to deny all of this, all of the pain, all of the destruction that we have all been suffering through," Strada said.

The Guardian has further coverage. 

There's no disputing Strada's facts. Twenty-eight pages of the 2002 congressional report on 9/11 were redacted for 14 years and did show possible ties, though nothing definitive, between Saudi officials and 9/11 hijackers. Many 9/11 records, including parts of the 2002 report, remain classified and have dribbled out over the years, including daily presidential briefings released just last week. Tim Burke at the Freedom of the Press Foundation has more on the latest. The City of New York also dumped a document trove into sunlight last week, including revelations of especial interest to first responders showing what officials knew about dangerous air quality.

Both Bush and Obama administrations tried to protect the Kingdom of Saudi Arabia (KSA) from accusations of 9/11 responsibility. The United States is not dependent on Saudi oil. But the White House saw, and still sees, KSA as an essential diplomatic and military partner in Middle East security.

In 2016, President Obama did veto JASTA. Congress overrode the veto five days later. The law waives foreign sovereign immunity in civil claims against foreign governments that aid and abet terrorism, whether with action or with money. 

Legislators were not so noble as it might seem. They knew well that JASTA claims would be next to impossible to prove against KSA, especially while 9/11 intelligence remained classified. So JASTA was really symbolic, something to boast about back home in the district. September 11 families would be pacified for a time while preoccupied with the bureaucracy of civil litigation.

Even if JASTA plaintiffs could obtain evidence, they would have a hard time ever proving a causal chain from the Saudi state to the 9/11 attacks. KSA might have ignored warning signs—so did the United States—but was hardly looking to destabilize geopolitics and send energy demand into free fall.

Indeed, since 2016, no JASTA suit has gained serious traction. A much touted suit against Israel in 2017 has gone nowhere and certainly has not been a deterrent to Israeli warfare. Iran has not even defended against JASTA suits and has suffered default judgments. That just moves plaintiffs into enforcement actions in the United States, in which they've been profoundly unsuccessful. Administrations of both parties have intervened against the plaintiffs, preferring that the government control Iranian assets to use them for diplomatic leverage.

The determination of Strada and other JASTA plaintiffs despite long odds, dim enforcement prospects, and opposition of their own government is a stirring reminder of the manifold purposes of tort law, or civil dispute resolution more generally. The U.S. tort system tends to emphasize, usually to a fault, the aim of compensation. But most 9/11 plaintiffs have received some compensation already from the federal victim compensation find.

Rather, plaintiffs in many types of cases, and especially in wrongful death, are usually after something else entirely. No amount of money can bring back a loved one. But justice is a relentless motivator.

Nevertheless, the law never has favored compensation for plaintiffs in U.S. courts for matters implicating foreign affairs. The preference is partly structural. The Constitution provides roles for both the executive and legislature in foreign policy. Congress often has abdicated, justifiably and not. But foreign policy in any event was always to be policy, by design, a matter of distributive justice for the political branches, not a problem in corrective justice for the courts. 

The preference also is political and is less defensible in that vein. As money became the lingua franca of Washington especially in the post-World War 20th century, policymakers became reluctant to trust courts, much less civil complainants, with regulatory influence over powerful and wealthy actors. In other words, the grubby hands of the unwashed masses must not be allowed to derail the gravy trains of the elite. The distaste for civil complainants against states supporting terrorism is a cousin, and not even a distant one, of the reluctance to create private causes of action in civil rights and consumer protection. 

In an outcome under-reported by mass media amid the usual flurry of Supreme Court opinions late in the last term, in Cisco Systems, Inc. v. Doe, in June, the Court disallowed a lawsuit accusing a U.S. corporation of knowingly developing technology for the Chinese government to facilitate the identification, arrest, and torture of members of the Falun Gong spiritual movement. The Court ruled out both corporate liability under the 1789 Alien Tort Statute (ATS) and aiding-and-abetting liability under the Torture Victim Protection Act (TVPA), appended to the ATS in 1991.

Both conclusions are debatable on the merits; the Court ruled 6-3. But more significant is the problem that remains: whether, or when and how, transnational actors can be held accountable in the United States for their complicity in human rights violations abroad.

As the United States has sought to eschew judicial involvement in foreign matters, other nations and the international legal system have been trying to step up. There is needed and dawning recognition around the world that transnational actors, public and private, have for too long been permitted to operate above the law. From Big Oil in South America, to Big Ag in Africa, to Russia in the former SSRs, the supposed rule of law has failed to stop bad actors from literally getting away with murder.

Which brings us back to KSA. To be fair to the past presidents, the United States always has been in a tough spot with the Saudis.

KSA seems to enjoy impunity in the murder of Jamal Khashoggi, oppression of dissidents at home and abroad, dubious policies on gender and sexual orientation equality, religious freedom, and immigrant labor, and financing war in Syria and Yemen. I'm not saying all such Saudi policies are indefensible, and I'm not letting the United States off the hook for its own issues. I mean only that there seems to be no official inquiry at all; other nations fairly accuse the United States of a double standard. 

The pandering of Bush, Obama, Biden, and Trump to Saudi royals is perennially stomach-churning. Western politicians will smile and abide when KSA hosts the 2034 FIFA World Cup, just as they abided Saudi acquisition of LIV Golf (until this year), Newcastle United, and Electronic Arts. And the United States is moving forward (probably) on an agreement to share nuclear technology with KSA for, one hopes, only civilian applications. 

And no wonder. The United States and KSA continue to rely mutually on strategic alliance for security interests in the Middle East. Meanwhile, Trump and allies, including son-in-law Jared Kushner, are profiting handsomely from Saudi investments.

One might wonder whether a time will come to pay the piper. Late last week, KSA grew frustrated as Iran-backed Houthi rebels seized from Saudi-financed government forces the entire Red Sea coast of Yemen. The Houthis thus gained control—this might sound familiar—of a vital strait and key islands in the transit of oil.

About the same time, KSA suffered a drone attack on its East-West oil pipeline. The massive conduit, stretching 1,200 km (746 miles), vital in the best of times, is a critical overland bypass to the Strait of Hormuz. The attack came from Iraqi territory, but almost certainly was the work of Iran-backed forces, and the timing dovetailed with the Houthi advance. The pipeline is shut down now for damage and risk assessment. I hope you filled your gas tank over the weekend.

In the wake of this one-two punch, reports say that Crown Prince Mohammed bin Salman (MBS) himself—whom you might remember from such hits as the Khashoggi dismemberment and Biden fist bump—asked the White House to intervene militarily against the Houthis. Middle East commentator Professor James M. Dorsey observed analogously seven years ago: "The Saudis do not want an open conflict with Iran. The Saudis would like others to fight that war, and the others are reluctant."

Whether or not Trump personally felt inclined to oblige in Yemen, U.S. military resources happen to be running thin. And Republicans campaigning for midterm election would go into full meltdown if the country were to go to war on a second front.

So the President had to let down his Riyadh chum, but did pledge to send 200 military advisers to beef up intelligence sharing. Why does that also sound familiar (inflation since 128 in 1950)? Well, don't worry, the President said. He had a call with MBS, and "everything's going to work out fine and dandy. It's going to be very good."

A deepening Saudi alliance, a merely symbolic JASTA, and a neutered ATS: Seems to me that the United States is succumbing to sycophancy as its place in the new world oligarchy.

No third term for Trump upon nonconsecutive-term theory, Vyas concludes in 22nd Amendment research

Trump at CPAC 2019
Mike Licht via Flickr CC BY 2.0

The theory that the President may seek a third term because his two terms were nonconsecutive holds no water.

That's the finding of law professor and constitutional scholar, and my friend and colleague, Anoo Vyas, in a short but important new piece in Wisconsin Law Review Forward: No Third Term: Rejecting the Nonconsecutive Loophole (2026).

Speaking about Trump at the Conservative Political Action Conference in March, televangelist Franklin Graham urged the crowd "to get him reelected!"

Graham subsequently said he misspoke (Yahoo News). His cry nevertheless stoked anxiety among Trump skeptics and opponents, amplified by the March 28 No Kings rallies, about the President's sometimes clingy affection for the office. 

Commenters have spilt much ink on how the President might circumvent the two-term limit of the 22nd Amendment.

With sound interpretive methodology and inquiry into historical sources, Professor Vyas's research takes the wind out of one circumvention theory. Here is the abstract:

The text of the Twenty-Second Amendment seems clear that a president cannot be elected to a third term: "No person shall be elected to the office of the President more than twice." This Essay looks further to the history surrounding the Twenty-Second Amendment, an exercise sometimes employed by judges, particularly those who favor the constitutional interpretive method of originalism. History shows that a president cannot be elected to a third term on the theory that the previous terms were nonconsecutive.

I'm a fan of Professor Vyas's work, such as his 2025 Why Capping the House at 435 is Unconstitutional (at The Savory Tort), besides his expertise in intellectual property law. So I have full confidence in his conclusion here and am gratified that he has shared it.

Carr, Trump threaten broadcasters unconstitutionally, experts attest, but the play's the thing

Late last week, on Sunshine Week, former Federal Communications Commission (FCC) officials, civil society organizations, and First Amendment scholars organized by D.C.-based TechFreedom, sent a letter to FCC Chairman Brendan Carr asserting the unconstitutionality of threats to revoke broadcast licenses and to prosecute broadcasters for treason.

I joined the letter, which observed that the Communications Act of 1934, while allowing the government broad discretion to regulate "as public convenience, interest, or necessity requires," also disallows censorship.

At risk of exhausting the word "unprecedented," that's the best way to describe the strong-arm tactics of the Trump Administration that have wrought havoc with late-night comedy and hammered historically stalwart network news into conformity. Accusing media of treason for not favorably spinning the Iran war is beyond the pale.

Early in the history of U.S. telecommunication regulation, the U.S. Supreme Court upheld the government power to regulate in the public interest. The Court, like the public, was wary of seemingly miraculous new communication technologies. And transmission over unseen electromagnetic waves posed real technical challenges, such as interference and scarcity.

Even when the civil rights era sparked a sea change and invigoration in First Amendment jurisprudence, the peculiar prerogative of public broadcasting regulation persisted. 

Researchers and social activists raised alarms about the impact of television on child development. With "the first televised war" in Vietnam as backdrop, many commentators theorized a causal link between television and social unrest. Accordingly, First Amendment law enshrined the principle of "media balkanization," meaning government regulatory power varied by medium, as between, for example, a newspaper and a TV station.

Late in the 20th century, the status of the internet in the schema of media balkanization was much debated. The internet blurred traditional lines, such as between print and broadcast, and as between journalist and ordinary citizen. As the internet became pervasive in American life, and the technology improved toward handheld recording and video streaming, the prospect of internet regulation seemed ever less akin to broadcast licensing and more akin to censorship. 

Thus, in the 1990s, the Supreme Court charted a course away from disparate treatment of the internet. Still, balkanization doctrine has never been addressed definitively in the digital age, much less abolished. Internet abuses, from revenge porn to social media addiction, continue to bolster arguments for regulatory models tailored to the online environment. And conventional broadcasters still have a foot in the bear trap of FCC licensing, as the agency nears its centennial.

Carr and Trump's threats thus occur at a nadir of constitutional confidence in the government power to regulate by way of broadcast licensing.

Yet constitutionality might be beside the point. A lesson Trump learned well in a lifetime of litigation is that the powerful economic actors that dominate our society fear uncertainty and risk more than they fear impact and loss. That is to say, the Sword of Damocles is more dangerous for its potential than for its blade. 

The threat to censor, or to impose transactions costs in resisting censorship, has proven effective in compelling commercially minded media corporations to toe the official line. 

And therein lies an especially pernicious threat to free speech, because our legal system, thus far, has proven profoundly ill equipped to counter.

Did Donald Trump go to prep school with Citizen Kane?

I just re-watched the masterpiece Citizen Kane (1941), and a line I'd never noticed before dropped my jaw.

I'm teaching a seminar on freedom of the press in film this semester with the superb new book by friends and colleagues, Helen J. Knowles-Gardner, Bruce E. Altschuler, and Brandon T. Metroka, Filming the First: Cinematic Portrayals of Freedom of the Press (2025). I wrote about the book here in 2024.

The second film featured in the book is the Orson Welles classic Citizen Kane. It raises for consideration a host of issues around the meaning of the First Amendment, whether as law or ideal, and the role of the press in a democracy. A key issue arises from the central character, Charlie Kane, a fictional analog to the real-life William Randolph Hearst.

Hearst was a media mogul in his time, the late 19th century and early 20th, a central figure in the yellow journalism era. Hearst and Kane alike prompt consideration of the very contemporary problem of media consolidation. My class considered data from a recent Roosevelt Institute report (inset), which described the economics of the news business over the course of American history, culminating in a deeply worrisome status quo.

Prof. Altschuler, who joined my class via Zoom for part of our discussion, wrote in the book that President Donald Trump has twice in interviews identified Citizen Kane as his favorite movie. As Prof. Altschuler remarked to my class, President Trump might not have gotten the message Welles intended.

Quoting an anecdote told by Ruth Warrick, the actress who played Kane's first wife in the movie, Prof. Altschuler reported, "Welles told the cast that the movie 'is about the kind of man that Americans tend to make their heroes, when actually they are the despoilers of their country.'"

I knew all of that, having just read up on the film in anticipation of re-watching it after decades. Yet I was caught off guard by something completely unexpected.

In the film, there is a scene (cued in video below) in which Kane is courting the woman who would become his second wife—the real-life Hearst separated from his wife, who would not grant him a divorce, and lived his later years with a second partner—and to amuse her, Kane, played by writer-director Orson Welles himself, wiggled his ears. 

Kane explained to his romantic interest: "It took me two solid years in the best boys' school in the world to learn that trick. The fellow who taught it to me is now the President of Venezuela" (USA Today).

Whitman: Failing rule of law in America means, if not civil war, ever more dismal standards of living, dying

Whitman speaks in Montreal.
RJ Peltz-Steele CC BY-NC-SA 4.0

Professor James Q. Whitman, Yale Law, just concluded an extraordinary lecture on the failure of the rule of law in America.

Whitman gave the plenary keynote at the annual meeting of the American Society of Comparative Law, meeting at the Faculty of Law of McGill University, in Montreal, Canada.

Whitman organized his talk in two principal points. First, he explained that the Trump administration's overrunning of the rule of law is not wholly new, but a result of "longstanding" dysfunction.

Namely, the American "variety" of rule of law never embodied the notion familiar in Europe, that law is to be followed rather than circumvented; rather, the American conception of "freedom" fostered law only as a framework to be gamed. The phenomenon can be seen, for example, in the way bankruptcy is tolerated legally and even regarded as social and economic achievement; the way transaction costs are weaponized to convert civil dispute resolution into settlement calculation rather than contest of merit; and the way criminal charges are reduced to plea bargaining irrespective of guilt or innocence.

For Whitman's second point, he referenced his 2017 book, Hitler's American Model: The United States and the Making of Nazi Race Law. Whitman concluded in that book that Nazi Germany took from American law not racism per se, but the dangerous notion of a legal framework that formally recognizes equality while legislating based on race, thus, e.g., "separate but equal." This point further demonstrates that American law provides a framework to be gamed. Despite the brief respite of the civil rights era, Whitman said, the United States remains plagued by the "curse" of inequality and might always be.

America's rule-of-law problem is made worse by the failure of common law to evolve, and a small, selective, general-jurisdiction Supreme Court woefully outdated and outmatched by the challenges facing a modern economy, as demonstrated in comparison with the constitutional courts known elsewhere in the world. The U.S. Supreme Court is simply too slow to respond to crisis, Whitman said, and when it does, it responds with weak rules that simply invite next-level gaming.

If Trump acts so boldly as to nullify the results of the next presidential election, Whitman posited, then civil war will break out. But the more likely alternative might be no better: America continues to hobble along with dysfunctional rule of law, growing inequality, and an ever worsening length and quality of life for ordinary people, who are constantly on the brink of financial ruin and of death and suffering by curable disease.

Whitman is the author of an article on my shortlist of favorite law review articles ever, The Two Western Cultures of Privacy: Dignity Versus Liberty (2003). The article exemplifies comparative legal research and writing and was essential to shape my understanding of personal privacy in the digital age.

Gutting consumer protection is not libertarian

The Trump administration is gutting consumer protection upon a policy at odds with market freedom.

Moves such as the dismantling of the Consumer Finance Protection Bureau (CFPB), OK'd by the courts three weeks ago, are rationalized by libertarians as market efficiency measures. Yet even as an economic conservative myself, I have trouble seeing how predatory lending, hidden fees and terms, and unfair competition—all of which the CFPB combated—facilitate a level marketplace. 

Free market theory depends on a series of preconditions, including a free flow of information between buyer and seller. Misrepresentation unlevels the playing field, undermining the freedom of the market actor who is deceived. Knee-jerk libertarian absolutists are shilling either ignorantly or willfully for corporatocrats, ironically at the expense of individual economic liberty.

Late last week the administration abandoned rule-making on modest compensation for airline passengers upon the delays and cancellations that have become our everyday experience in air travel in America. I wrote about the EU compensation system in 2023. That system has now turned 20, while the United States becomes ever more an outlier for its passionate embrace of oligopoly and disdain for consumers. Well, we have Russia to keep us company.

Soon, my 1L Torts students will reach our study of express assumption of risk as a liability defense. They will learn how profoundly permissive are American courts of binding boilerplate, notwithstanding any realistic showing of assent, much less understanding, on the part of consumers. (More.) Solutions to this problem have been theorized capably by scholars for more than a decade, yet policy makers, even constitutional originalists supposedly committed to express liberties such as the Seventh Amendment right to a jury trial, show no serious interest in reform.

Given the futility of the consumer's plight, I got a laugh out of an on-screen notice my television recently delivered from HBO Max. 

"Your continued subscription to and/or use of HBO Max confirms that you have"—the text started, before hitting the end of the screen.

"OK" was the only permitted response.

I could have shut down my Roku and walked away. 

I didn't. I agreed and continued.

What's an immortal soul when Peacemaker season 2 beckons?

'Take It Down' Act purports to redress revenge porn, but invites censorship by only incentivizing take-down

Derived from Google Gemini, RJ Peltz-Steele CC0

President Trump signed into law bipartisan federal revenge porn legislation Monday—alas, not in time for inclusion in 2 Tortz (2025 ed.)—but all is not sunshine and rainbows.    

First, it must be noted, and news media seem widely oblivious to the fact that, Congress, per the Commerce Clause, created a federal civil action for revenge porn already in 2022, in the quinquennial reauthorization of the Violence Against Women Act. The law is codified at 15 U.S.C. § 6851.

The TAKE IT DOWN Act, signed into law Monday, ups the stakes by criminalizing revenge porn at the federal level. The law also is broader in scope than existing law. With the new act, the federal government joins the majority of states in tackling deepfake sexual images, besides authentic images. And as Sunny Gandhi and Adam Billen explained for Tech Policy Press, Take It Down extends to "nude images published with the intent to 'abuse, humiliate, harass, or degrade' a minor rather than only 'sexually explicit' images."

The law's means, though, subordinate free speech to purported privacy rights. Right there in the name, Take It Down introduces a requirement that platforms remove non-consensual intimate imagery within 48 hours of a complaint. As Jason Kelley of the Electronic Frontier Foundation (EFF) observed, that's hardly enough time to investigate the context of an image or rights to it, even if a platform were so inclined. 

Rather, Take It Down emulates the notice-and-take-down regime of the intellectual property system, which has resulted in excessive removal of content upon complaint at the expense of fair, authorized, and otherwise protected uses. A poster is afforded little or no opportunity to object to take-down, or to remediate any perceived wrong; rather, the system errs on the side of censorship.

In Take It Down, the addition of criminal penalties further incentivizes prophylactic take-down, with no corresponding incentive to hear an objection or to exercise judgment. The penalties if wrongfully posted content remains online are severe, while there is no risk in excessive removal. As Kelley further observed, for large platforms such as Meta, that calculus incentivizes the blunt use of AI and automation to effect take-down, errors be damned.

Worse, an automated, prophylactic take-down process is susceptible of ill intentioned manipulation.

"President Trump himself has said that he would use the law to censor his critics," Kelley reminded readers.

Take It Down seeks to address a real problem, but takes the easy way out. The law panders to advocates for protective legislation, allowing legislators to take credit for "solving" the problem. Meanwhile, the law gives the corporatocracy a pass on meaningful responsibility and invites political opportunists to obliterate free speech and sow misinformation in its place. 

O Congress. "Bipartisanism ain't all it's cracked up to be."

Are we at the end of 'Bretton Woods'?: White House reconsiders post-WWII world financial system

Omni Mount Washington, Bretton Woods
RJ Peltz-Steele CC BY-NC-SA 4.0

"Bretton Woods," I said.

"Are you sure it's still on?" he asked.

That was part of my conversation with a motel manager in Carroll, N.H., a couple of weeks ago when I was at Bretton Woods for the annual meeting of the New England Political Science Association (NEPSA).

We were talking about where I was headed in the north of New Hampshire, and I answered the man that I was bound for an event at Bretton Woods. I realized later that he thought I meant the ski resort. I could see the slopes from the Omni Mount Washington Resort opposite, where NEPSA was meeting, and the snow cover was waning, yielding to rain.

I did not think he meant, but thought it would be funny if he had, that "Bretton Woods" might be over: meaning not the ski season, but the global financial system built around the International Monetary Fund (IMF) and World Bank.

That system, and the twin institutions (one a predecessor of the World Bank), were conceived at the Mount Washington hotel at the Bretton Woods Conference in July 1944, before the end of World War II. It was widely understood by then that a lack of multilateral economic cooperation was a key failing of the interwar period that led to a second global catastrophe. 

Nevertheless, world leaders, including the Americans and British, were not all yet convinced in 1944 that economic cooperation, especially with a reconstituted Germany, much less Japan, would be in their national interests. Bretton Woods welcomed a who's who of the times at the intersection of economics and politics, such as the British economist John Maynard Keynes. So in the end, the conference proved persuasive to skeptics.

"The Room Where It Happened":
the Gold Room, where the Bretton Woods Agreement was signed
RJ Peltz-Steele CC BY-NC-SA 4.0

 

On a tour of the stunning, now-Omni hotel while I was there, I learned that Bretton Woods was chosen as a location for the high-level meeting in bello because its location between two notches in the New Hampshire mountains afforded it remarkable physical security. I found that that security is still a thing even in the information age, as my cell phone found signal only intermittently. I had to use the public library in Carroll to meet with my International Law class on Zoom.

The Bretton Woods Conference resulted in a system of consistent currency convertibility and installed the IMF as a kind of backstop, or currency reservoir, to help countries avert spiraling domestic destabilizations that might otherwise threaten global security—such as the collapse of the German economy that fueled the rise of Nazism. The Bretton Woods conversion system lasted as long as the gold standard, until the 1970s, and what followed, what still functions today, is a direct descendant.

And now all that might change. As a headline asked in The New Republic (TNR) on April 21, three days before I arrived at Bretton Woods, "Will Trump Finally Kill the Bretton Woods System?" 

As TNR explained, Project 2025 is not on board with the global financial system, despite its facilitation of American dominance of the world economy since World War II. The rightest wing rather sees the Bretton Woods system as part of the globalist agenda to subordinate U.S. interests to a new world order. In this telling of it, the IMF and the World Bank are just two more UN-adjacent intergovernmental organizations that suck resources from the American economy to subsidize the world's welfare-indulgent masses.

It is true that the IMF and World Bank invest in poorer parts of the world. But those poorer relations sometimes see these investments as more imperialism than charity. I studied World Bank projects as long as 30 years ago and witnessed the thorns of economic hegemony that came with the roses of infrastructure development in Latin America. There's been a lot of reform since, but nationalist critics see thoughtful multistakeholderism as an ebbing of commitment to quid-pro-quo foreign aid, rather than an all-boats-float scenario.

The IMF has long been at the middle of similarly conflicting perspectives. High-GDP contributors complain about the organization's generous loans and patient debt restructuring. Meanwhile, countries on the receiving end see IMF loans as a Hobson's choice, complemented by promises of private investment that never materializes and delivery into an addiction-like cycle of economic dependence that knows no off ramp.

Bretton Woods ski slopes
RJ Peltz-Steele CC BY-NC-SA 4.0

Climate change has exacerbated these tensions. Small-island and economically weaker nations have experienced an uptick of costly, destabilizing events, increasing demand for aid from developed economies. Meanwhile, aid recipients point out, not without reason, that the loan sharks got where they are through the very resource exploitation that they seek to restrain in the developing world. And with global temperature set to rise for the near future no matter what we do, no amount of economic and governance reform can turn back the clock on the damage sustained.

So need rising and prospects dimming for a return on investment, the Trump Administration contemplates bailing on Bretton Woods. You see it in the President's infamous tariff chart, which, analysts worked out, was not calculated to impose reciprocal tariffs, but to use tariffs as a weapon against trade deficits.

I as much as the next guy want the overworked American laborer to get a fair shake in the world. For a post-industrial economy, we work too many hours, enjoy too few benefits, and suffer an outrageously high cost of living, all summing wretched prospects for socioeconomic mobility. Trump is right that the IMF could care more about trade imbalances. 

But foreign social democracies are a scapegoat. Most of Americans' economic misery is self-imposed at the beckoning of a fat corporatocracy feasting on the deepening wealth divide.

An America-first policy that requires exiting the Bretton Woods institutions gives off an eerily 1930s vibe. And that didn't work out so well the last time.

Law students Costa, Osuagwu talk first 100 days

Costa & Osuagwu (WGBH)

Thrilled to see two of my star 1Ls/rising 2Ls, Cameron Costa and BJ Osuagwu, just finishing Torts II, representing and holding their own in this political dialog on WGBH (below from YouTube).

From GBH News: "The Trump administration hit 100 days of its second term marked by economic volatility, aggressive immigration enforcement and tariff talk.  Is the country headed in the right direction? We asked two people who support Trump and two people who don't on Politics IRL."

Costa is an educator and a student of legislative advocacy. Osuagwu is executive director of Healthy Waltham.

Big Law cowardice calls legal licensure into question

The WAMU podcast 1A put on an excellent show Monday on the White House threats against law firms.

The show featured Princeton University Professor Deborah Pearlstein, Politico reporter Josh Gerstein, and Elias Law Group Chair Marc Elias.

Highlights for me:

• Pearlstein questioned the ethics of the firms that have caved to Administration pressure. How can a client trust Paul Weiss to provide zealous representation, she asked, when the firm so readily caves to political pressure?
• Elias called the deals struck by Paul Weiss and Skadden, inter alia and respectively $40 million and $100 million payoffs in legal services, "cowardly" and "obscene" and questioned whether the practice of law should continue to be protected by the exclusivity of licensing.

Agreed and agreed. I suggest moreover that the weakness of the legal profession and its willingness to sell out for the bottom line has been the American way already for decades. That Big Law has locked down the profession and lobbies anti-competitively to keep it that way—thereby denying access to legal services, legal education, and legal careers to ordinary Americans, while building and bolstering an anti-democratic corporatocracy—is nothing new to those of us who toil away on the hamster wheels beneath the status ceiling.

It's simply Trump's shameless gambit that has exposed the rot.

In the less cowardly vein, Perkins Coie, WilmerHale (Court Listener), and Jenner & Block (Court Listener) are litigating against the executive orders targeting law firms. I anticipate signing on to an amicus brief of law professors in support of the plaintiff motion for summary judgment in the Perkins Coie matter in the U.S. District Court for the District of Columbia.

Update, Apr. 3: Law Professors' Amicus Brief in Perkins Coie v. DOJ (D.D.C. filed Apr. 3, 2025).

Government used soccer tattoo, 'rock'n'roll salute' as evidence against Venezuelan deportee, lawyer asserts

According to his lawyer, a tattoo and a hand gesture are the sum of evidence against at least one Venezuelan man who was deported to the El Salvadoran gang prison among what the federal government has called "the worst of the worst."

Left: Real Madrid logo; right: artist conception.
Left: © Real Madrid CF, adapted in part by Coloring Pages for Toddlers;
here fair use. Right: Same crown with free clip art ball and Word lettering;
RJ Peltz-Steele CC0 with no claim to underlying works.

The face-off between the Trump administration and U.S. District Chief Judge James E. Boasberg over deportations has stoked strong suspicion that the enforcement action swept up men who pose no threat to the peace, have legitimate claims to refugee status, and now have been condemned wrongfully to imprisonment in El Salvador, a country foreign to them and their families.

The suspicion is not easily vindicated because the men are gone from the United States and inaccessible in El Salvador, and the evidence against them is secreted in the hands of the federal government. Yet one by one, stories are emerging that cast doubt on the official narrative. 

Immigration attorney Linette Tobin, a member of the D.C. Bar, has been making the media rounds to tell the story of one client, Jerce Reyes Barrios. Tobin told outlets, including NPR, that she has seen the evidence against Reyes Barrios (family photo via ABC News), and it comprises nothing other than a tattoo and social media images of a hand gesture, both with innocent explanations. 

Left: Horned hand. RJ Peltz-Steele with Google Gemini CC0
Right: ASL "I Love You." LiliCharlie via Wikimedia CC BY-SA 4.0

According to Tobin, Reyes Barrios is a 36-year-old professional soccer player and father of two who has a tattoo unrelated to any gang other than Spain's very legitimate and globally popular Real Madrid Club de Fútbol (RMCF). A variation on the RMCF logo, the tattoo pictures a crown atop a soccer ball and the word "Dios" (God), Tobin said.

The hand gesture pictured in social media, according to Tobin, is the "rock and roll salute." That gesture, known more widely as "the horned hand," became associated with heavy metal in the 1970s (more at Medium), then came into wider use in music culture. The gesture is sometimes interchanged, knowingly or unknowingly, with the ASL sign for "I love you" (literally, the letters I, L, and Y), which is similar but requires an extended thumb.

Tattoos imaged in 2024 Texas DPS presentation include these.
Public document; no indicated copyright notice.

Circulating online, a 2024 presentation by the Texas Department of Public Safety on the Venezuelan gang Tren de Aragua (more from NPR), to which the federal government alleges Reyes Barrios and other deportees belong, depicts tattoos borne by gang members. While some of the tattoos might be indicative of Tren de Aragua—images of trains, for example—most are not so specific, e.g., a rose, a clock, a star.  (More from NBC News.) Tren means "train," and Aragua is a Venezuelan state west of Caracas.

Also among the imaged tattoos are a crown, similar to the Real Madrid CF logo; the Nike "jumpman logo" with Michael Jordan's and LeBron James's number "23"; and the initials "HJ," said to abbreviate hijos (sons), under a crown ("king of kings"), meaning "sons of God." While gang members might bear such tattoos, they're hardly a way to determine gang affiliation.

In fact, of two of my own tattoos, one is a train—not because of criminal affiliation. Another is a variation on a cross that might suggest a football club or a historical war campaign, neither of which I'm championing. So I find this evidence against Reyes Barrios unsettling, especially insofar as it might be exemplary of the government's shallow scrutiny in countless other cases, too. 

I can only assume that when Tobin joined the D.C. Bar, she was admonished as strongly as I was never to lie. So I'm inclined to believe her, and thus to share Judge Boasberg's skepticism.

Update, Mar. 31, at 3 p.m.: Too late for Reyes Barrios and others, but I learned today that on Friday, the federal district court in Massachusetts granted a temporary restraining order against the removal of immigrants to unrelated third countries without due process, that is, notice and "meaningful" opportunity to raise safety concerns. The case is D.V.D. v. U.S. DHS (filed D. Mass. Mar. 25, 2025) (Court Listener).

FOIA committee meets after firing of National Archivist

Yesterday, the Freedom of Information Act (FOIA) Advisory Committee, on which I am privileged to serve, held a public meeting, available on the YouTube channel of the National Archives and Records Administration (NARA). 

The meeting comprised routine status updates from working subcommittees. But arising as it did amid the Trump/Musk shake-up in federal government, the stream might have drawn more than the usual public interest. The President fired National Archivist Colleen Shogan three weeks ago (see also CBS News), apparently in violation of federal law and with a political logic that's hard to discern, as University of Maryland Professor Jason Baron explained recently in Washington Monthly.

The committee lost one member to the Musk "fork in the road" program; capable attorney Kevin Bell departed the Federal Energy Regulatory Commission. The President last month terminated the Open Government Federal Advisory Committee in the General Services Administration (GSA) (Government Executive).

I am all for eliminating government waste and inefficiency, but I'm worried that "fork in the road" only incentivized the departure from public service of the most talented people, who could get other jobs most readily. And I'm not sure I see the wisdom of terminating an advisory committee, which brings volunteer expertise from the private sector (or state academics, such as Baron, me, and others) to bear on federal government work at minimal cost to taxpayers.

The committee yesterday unanimously approved a motion of Frank LoMonte, CNN senior counsel, to ensure preservation of committee work, as required by the Federal Advisory Committee Act (FACA). He didn't say so explicitly, but the move seemed pretty well calculated as a hedge against possible termination of the committee's work.

Excellent public comment came from Alex Howard, Digital Democracy Project and former committee member. Logically he inquired, inter alia, about the impact of government "efficiency" cuts and website take-downs on FOIA. Certainly these questions are of great concern to everyone involved; Professor Margaret Kwoka said as much in response. The fact is, simply, I don't think anyone can yet apprehend that big picture.

Civil conflict in Mali devastates innocents, while indifference, deference to Russia undermine U.S. policy

U.N. peacekeepers, here a Togolese soldier near Mopti in 2018,
provided enough security for local markets to function.
MINUSMA (UN Mission in Mali) photo via Flickr CC BY-NC-SA 2.0

The Putin-backed Wagner Group is among the aggressors responsible for ongoing violence against civilians in Mali, and the United States is sabotaging its own future by ignoring the multiplying atrocities there. 

As the Trump Administration cozies up to Russian President Vladimir Putin, apparently to redraw the borders of Europe Munich Agreement-style, it's worth remembering who our new partner in peace is. Correspondingly, U.S. withdrawal from U.N. aid operations suggests minding what it is we're withdrawing from.

A friend in central Mali, from a village so small it's not on Google Maps, but west of Bandiagara, wrote last week pleading for support for foreign intervention there. He reported civilians murdered and displaced and villages and food stores burned in the region in recent weeks. I am not naming my friend for his security, as he remains in the area.

Mali
ECHO Base Map via GetArchive, public domain

The situation is complex, as both rebel Islamist militants and government counterinsurgent forces, the latter partnered with private contractors such as "Africa Corps" né Wagner, are at war, de facto, with both sides ruthlessly victimizing civilians caught in the middle.

Human Rights Watch (HRW) confirmed in a December report:

The JNIM [al-Qaeda-linked Jama’at Nusrat al-Islam wa al-Muslimeen (Group for the Support of Islam and Muslims)] has burned homes and looted livestock in Bandiagara region since June. JNIM fighters attacked several villages in the Doucombo and Pignari Bana district areas, setting over 1,000 homes on fire, stealing at least 3,500 animals, and forcing thousands of residents to flee, according to witnesses. Residents said the attacks were in apparent retaliation against communities that the JNIM accused of collaborating with [a collective self-defense militia organized to secure area villages].

Neither side in the conflict boasts a moral record. HRW reported:

Since May 2024, Malian armed forces and the Wagner Group have deliberately killed at least 32 civilians, including 7 in a drone strike, forcibly disappeared 4 others, and burned at least 100 homes in military operations in towns and villages in central and northern Mali. Two Islamist armed groups, [JNIM] and [Group for the Support] of the Islamic State in the Greater Sahara (ISGS), have summarily executed at least 47 civilians and displaced thousands .... Human Rights Watch received credible reports of hundreds more civilians killed, but due to the difficulties of conducting research in central and northern Mali, the numbers in this report are conservative. 

At the request of Malian authorities, a U.N. peacekeeping mission withdrew from Mali in December 2023 after itself coming under attack in the cross-fighting. French forces had withdrawn the previous year. The U.N. mission had been in Mali for 10 years, but its presence did not prevent two military coups in the last five years. The junta now in control of the government seems intent on extinguishing the insurgency at any cost, but it's far from clear whether either side can prevail.

The worsening situation in Mali is indicative of destabilization across west and central Africa. Military coups toppled governments in Burkina Faso in 2022 and in Niger in 2023. Now the three military governments of Burkina Faso, Niger, and Mali have withdrawn from the Economic Community of West African States (ECOWAS). Meanwhile, combatants' calls for U.N. withdrawal are growing in other hot spots, such as DR Congo, where rebels have taken the key city of Goma.

ECOWAS (2018)
St.Krekeler via Wikimedia Commons CC BY-SA 3.0

In my travels in West Africa, I found ECOWAS to be a profoundly stabilizing force and engine of economic development. The free trade group, formerly 15 countries, allowed fragile economies a chance to level the playing field in the global market. A common currency, the "eco," was planned to supplant and surpass the CFA franc.

Indicative of the progress made possible by ECOWAS, my friend in Mali messaged last year, keen to get the word out about his nascent tourism venture. Bandiagara is within a day's travel of Timbuktu, the UNESCO World Heritage Site that has been mostly inaccessible to outsiders for more than a dozen years because of armed conflict.

Now social and economic progress in the region is disintegrating.

To be clear, I do not contend that the United States or the United Nations should ride to the rescue with military force in Mali. Neither side in the conflict there wants western intervention, and we would sink into a lethal quicksand by merely adding a third side in the fighting.

However, diplomatic intervention to start with, and international peacekeeping later, could be vital to save generations of innocent people from murder, abuse, and starvation. I am mindful that my International Law class will soon study use of force, a unit that prompts sorrowful consideration of the western indifference that permitted the Rwandan genocide to play out unhindered.

HRW decried the conflict in Mali for both sides' utter disregard of "the laws of war." Between U.S. willingness to reward Putin's invasion of Ukraine with gained territory and a repeat of willful western blindness to the trampling of human rights in Africa, the entire project of international law that was built upon the ashes of World War II is now in jeopardy.

The Trump Administration seems content to let the United Nations fall by the wayside in favor of a transactional approach to foreign policy. Thus, for example, the key to a Trump peace plan in Ukraine, and any hope that Ukraine would recover lost territory in such a plan, seems to turn on a deal for U.S. access to rare-earth minerals in the country's east.

But it is in fact a transactional foreign policy that I suggest will suffer if we disregard Africa. Development of extractive industries—Mali has diamonds, gold, and uranium—is a desirable goal; the question is, who will benefit?

ECOWAS, after the model of the European economic community, and U.N. peacekeeping, which makes free trade possible, represent a west-leaning African future in which ordinary people benefit from development with rising standards of living. This isn't charity. The United States would benefit from vibrant, free-market commerce with an economically developed West Africa. All boats float.

In contrast, Russia seeks to expand its sphere of influence by undermining democratic participation and capturing governments with authoritarian oligarchy. That means an east-leaning African future in which ordinary people are subordinated and impoverished. The United States loses in that scenario; our only benefit from wealthier eastern oligarchs will be the sale of more prime U.S. property to foreign owners.

As the United Nations has been nothing but a thorn in the side of neo-imperial Russian ambitions, Putin would like nothing better than to put the organization to death. In corollary, he must be delighted by the demise of USAID, which represents our foreign policy leverage in Africa.

The United States lets its influence wane and turns its back on the world at its own peril.

Here is a list of NGOs, IGOs, and charities working in Mali.

Free Syria regime stands at crossroads

A lone demonstrator outside my local city hall today, in Barrington, Rhode Island, is getting plenty of horn honks for his sign, "Celebrate Free Syria" (photo RJ Peltz-Steele CC BY-NC-SA 4.0).

I do celebrate the fall of the Assad regime. Ghastly, if not unexpected, stories of oppression are pouring out of the country, especially about brutal political imprisonments and torture.

I've not been able to help, though, but wait for the other shoe to drop concerning Hayat Tahrir al-Sham (HTS), the prevailing Islamist rebel regime. Western media are eager to report on the efforts of HTS leader Abu Muhammad al-Jawlani to position himself as a moderate and distance HTS from its al-Qaeda origins. 

The Taliban promised enlightenment, too, when Kabul fell. And now Afghanistan is in an alarming state. The NGO Human Rights Watch declared almost a year ago "that the pattern of abuses against women and girls in Afghanistan amounts to the crime against humanity of gender persecution."

I hope my anxiety is ill founded, and Syria will be different. HTS has a fractured nation to hold on to. Foreign forces, including Americans, are firming up footholds. And Turkey looks poised to invade to suppress the Kurds.

France sent a diplomatic mission to Syria earlier this week, and other western powers should follow suit. The West would do well to impress on al-Jawlani which side of the bread has the butter. The United States has an opportunity, all at once, to further U.S. security, to protect Syrian human rights, to establish a western foothold in a sphere of Russian influence, and to give the Kurdish people a good turn due. 

But how that opportunity will fare as against Trump isolationism remains to be seen. We have an opportunity, too, to throw it all on the pyre and strike the match. And then we really will see what al-Jawlani is made of.

1901: Disgruntled laborer shoots, kills President

Assassination of President McKinley by T. Dart Walker, c. 1905
Library of Congress

In Buffalo, New York, this week, I felt obliged by recent events to seek out the place where Leon Czolgosz fatally shot President William McKinley in 1901.

Contemplating Thomas Crooks's still unknown motive for shooting President Donald Trump in Pennsylvania on July 13, I thought about something Bill O'Reilly told Jon Stewart on The Daily Show last week: that every U.S. presidential assassin has been mentally ill.

I wasn't sure about that. After some looking into it, I suppose the accuracy of the assertion depends on what one means by mentally ill.

One could argue that anyone with ambiguous motive to murder a President is mentally unwell. Indeed, an "insanity" argument was made in the criminal defense of Czolgosz for the 1901 shooting of McKinley. The defense hardly slowed the conviction. Inside of two months from the shooting, Czolgosz was executed.

Site of President McKinley assassination, Buffalo, N.Y., 2024
RJ Peltz-Steele CC BY-NC-SA 4.0

So in informal terms, O'Reilly probably is right. In clinical terms, we don't have enough data to be sure of the mental state or diagnosis of past assassins. Experts have disagreed about Czolgosz. Then there's the legal concept of "insanity," having to do with capacity to differentiate right from wrong. Czolgosz knew what he was doing; I don't think O'Reilly meant to say otherwise.

Czolgosz was attracted to radical socialism and then anarchism because he lost his job in an economic crash when he was 20—the same age as Crooks when his life ended. Czolgosz couldn't find consistent work amid the labor turmoil of the ensuing depression in the 1890s. Born into a Polish-immigrant family, he became convinced that the American economic system was rigged to favor the establishment over the working class. Hm.

Czolgosz learned that socialists and anarchists in Europe were struggling with similarly entrenched economic inequality as royals endeavored to maintain their traditional grip on social order. European anarchists had resorted to assassination as a means to express their displeasure and spark reform. However, bolstering O'Reilly's theory on Czolgosz's mental state, even American socialists and anarchists raised, no metaphorical pun intended, red flags over Czolgosz.

Pan-American Exposition, by Oscar A. Simon & Bro., 1901
Library of Congress

In his second term as President, McKinley was in Buffalo for the Pan-American Exposition, a kind of world's fair. He was riding a wave of national optimism upon consolidation of American power in the hemisphere. It was in McKinley's first term that the United States seized Puerto Rico, Guam, and the Philippines from Spain after substantially prevailing in the Spanish-American War. 

McKinley was keen to attend the exposition, because he saw political promise in associating himself with American prosperity and invention. The 342-acre exposition featured the latest engines, the hydroelectric power of nearby Niagara Falls, and an "Electric Tower" framed by the newly proliferating magic of light bulbs. 

No doubt McKinley's exposition strategy galled Czolgosz. In a morbid irony, when Czolgosz was executed in October 1901, it was by electric chair.

Reenactment in Porter's Execution of Czolgosz (1901).
Library of Congress

Like President Trump, McKinley liked being up close and in person with his public, despite the exposure to risk. McKinley's security staff, of course, knew of the anarchist assassinations in Europe and the organization of anarchism in the United States. McKinley's top adviser twice canceled the appearance of the President at the exposition's Temple of Music, for fear he could not be protected there. McKinley overruled the cancellations. That's where he was shot.

Like Crooks, Czolgosz intended to shoot the President while he was giving a speech, the day before the Temple of Music event. But the crowd at the speech was too dense, and Czolgosz didn't think he could make the shot. So instead, he approached the President in a receiving line at the Temple of Music and shot him at close range. Czolgosz's first shot only grazed the President. The second struck McKinley in the abdomen and resulted in death two days later.

Fordham Drive, Buffalo, N.Y., 2024
RJ Peltz-Steele CC BY-NC-SA 4.0

Like Crooks, Czolgosz was recognized as a potential threat. But security blunders—for example, he should not have been permitted in the receiving line with the closed and covered hand that concealed a gun—let him reach the President. After the shooting, he was tackled by a heroic but later undersung African-American man standing nearby, then pummeled by security staff. Czolgosz might have been killed right then, but McKinley himself called off the beating.

Many Americans no doubt saw the assassination of McKinley as signaling a tragic inevitability of the times. President Lincoln had been assassinated in 1865, and President Garfield in 1881. Director Edwin S. Porter made a creepy, one-minute silent film for the Thomas Edison company in 1901 about the assassinations; The Martyred Presidents is available online at the Library of Congress. Present in Buffalo to film the exposition and yet early in his prolific career, Porter also made a four-minute film featuring a reenactment of Czolgosz's execution.

President Roosevelt at the Wilcox House, 2024.
RJ Peltz-Steele CC BY-NC-SA 4.0

Another assassination attempt did follow, injuring President Theodore Roosevelt in 1912. Roosevelt had been inaugurated in Buffalo in succession of McKinley in 1901. The location of the hasty inauguration, the then-private Ansley Wilcox House, is now a National Historic Site in Buffalo; I stopped by there, too.

Me'n'T.R. meet inside the Wilcox House.
RJ Peltz-Steele CC BY-NC-SA 4.0

Roosevelt's survival seemed to break the generational cycle, at least until the assassination of President John F. Kennedy in 1963. A more entertaining explanation for the abatement of presidential assassinations is featured in Sarah Vowell's characteristically superb book Assassination Vacation (2006): the Robert Todd Lincoln "jinx." The eldest son of President Abraham Lincoln was present at the assassinations of his father, President James Garfield, and President McKinley, but not for the attack on T.R.

The Pan-American Exposition is long gone. The land where the incident occurred became a residential development. A small plaque and garden, and a flagpole and flag in the roadway median of Fordham Drive in Buffalo mark the approximate location of the fatal shooting in 1901.

A nearby high school is named for McKinley. Buffalo, N.Y., 2024.
RJ Peltz-Steele CC BY-NC-SA 4.0