Legal Food for Thought: A Savory Stew of Stimulating Essays Laced with Law

By Daniel Kornstein

Legal Food for Thought is both an entertaining and provocative collection of non-technical essays written by an experienced, literate lawyer with an eye for unusual topics and a gift for language. Combining original insights with probing commentary, these sparkling essays light up the page as they illuminate a wide range of subjects more or less in some way, often unexpected, linked to law. As the title foreshadows, the book is creatively organized in the form of a meal, with its delicacies spread over a menu covering a drink, appetizers, entrees, sides, and dessert. Among other surprises, the author reminds us of poet John Milton's appeal for freedom to read what we want, describes two comic book lawyer superheroes, suggests ways to improve our democracy, finds new legal themes in the lives of various well-known creative artists, and even tells us which are his favorite books about law and why. It is a tour de force sure to fascinate any thinking person, lawyer or not

• Language: English
• Publisher: AuthorHouse
• Release date: Oct 31, 2023
• ISBN: 9798823016636

Daniel Kornstein

DANIEL KORNSTEIN practices law in New York City at the firm of Emery Celli Brinckerhoff Abady Ward & Maazel, LLP, where he is a partner. He has coupled a busy and varied civil litigation law practice with writing about the law. A past president of the Law & Humanities Institute, Kornstein has been called "a lawyer as philosopher, historian, as humanist" (Super Lawyers Magazine New York Metro 2012), whose work is "legal writing at its very best, legal writing as literature, his essays inspire us" (New York Law Journal); "a testimonial to cultural literacy at its best . . . gracefully written" (Choice); "the distinctive voice of an American lawyer [who] speaks to our era in the polished cadences of an experienced advocate" (Yale Journal of Law and Humanities). His writings have been cited by several courts, including the U.S. Supreme Court.

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© 2023 Daniel Kornstein. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 10/31/2023

ISBN: 979-8-8230-1664-3 (sc)

ISBN: 979-8-8230-1665-0 (hc)

ISBN: 979-8-8230-1663-6 (e)

Library of Congress Control Number: 2023920580

Any people depicted in stock imagery provided by Getty Images are models,

and such images are being used for illustrative purposes only.

Certain stock imagery © Getty Images.

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

For Susan,

once again

Writing a book is an adventure. To begin with, it is a toy and an amusement. Then it becomes a mistress, then it becomes a master, then it becomes a tyrant. The last phase is that just as you are about to be reconciled to your servitude, you kill the monster, and fling him to the public.

—Winston Churchill

Menu (a.k.a. Contents)

Plan of the Meal (a.k.a. Preface)

Drink

1    Lemonade from the Dobbs Lemon

Appetizers

2    Areopagitica Remembered

3    O. W. Holmes Jr. and #MeToo

Entrées

4    Three Logical Men Named Holmes

5    Lawyer Superheroes

6    Dinner at the Supreme Court

7    A Variation on a Frederick Douglass Theme: What to the Disenfranchised Voter Is Democracy?

8    Political Defamation and Democracy

9    Libel Tourism and the Speech Act

10   The Pardon Power and Shakespeare

11   The Senate Report on Torture

12   Creative Lawyering

Sides

13   Is Shyster Anti-Semitic? A Delayed Response

14   Anton, Can We Talk?

15   Julien Sorel Is Us

16   Robinson Crusoe the Second Time Around

17   Sir Walter Scott’s Tangled Life

18   Robert Louis Stevenson, Esq.

19   Wordsworth: Rumpole’s Favorite Poet

20   Edgar Lee Masters and 9/11

21   Lawrence Joseph: Our Lawyer-Poet

22   Kandinsky’s Abstractions

23   Tchaikovsky’s Law School Friends

24   A Litigator’s Life

25   P. D. James Again

26   History’s Greatest Unsolved Mystery

Desserts

27   King Michael of Romania

28   My Favorite Books about Law

29   The Law? Fuhgeddaboudit!

Acknowledgment

Plan of the Meal (a.k.a. Preface)

To compare a book to food is nothing new. Some books are to be tasted, Francis Bacon famously wrote around 1600, others to be swallowed, and some few to be chewed and digested. In the nineteenth century, Ralph Waldo Emerson said, I cannot remember the books I’ve read any more than the meals I have eaten; even so, they have made me. Maya Corrigan, our contemporary author of mysteries involving food, says, You are what you eat and read.

And a book can also be food for thought, as it nourishes our minds and souls, a meaningful literary equivalent of a good meal, consumed but not quickly forgotten. It is, then, not going too far out on a limb to hope that readers will think of the essays in this book as food for thought, snacks or a meal for the reader, and a special kind of meal at that—one warranting serious consideration.

This book resembles what foodies call an olio, a rich, thick, spicy Spanish dish or stew with a variety of ingredients. Figuratively speaking, olio means a medley or miscellaneous collection of things, a hodgepodge, mixture, or assortment. This book is a figurative olio, a harvest, a curated collection of essays, but with a special, idiosyncratic spice. Because they are an olio or hodgepodge, the essays may sometimes seem at first glance to lack an overall theme, thesis, or connecting thread, but that would be a misperception. Throughout the essays runs a recurring idea.

Apart from the essays having been the product of one mind over several years, they have another unifying theme in that they all relate in some way to law. They cover a wide range of topics, from ways to improve our democracy, to whether law can be practiced creatively, to lawyers as comic book superheroes, and much else besides. But don’t worry; it is not a law book, and I tried very hard not to make it dull. They are one man’s personal views, a practicing lawyer’s spare time ruminations, on many various topics in some fashion connected, however loosely, to law.

Hence the title Legal Food for Thought and the subtitle A Savory Stew of Stimulating Essays Laced with Law.

The structure of the book follows the title and builds on it. With the analogy to food in mind, I thought it might be interesting and creative to organize the book in the form of a menu for a nice meal. As a result, I divide the book into five parts or courses, starting with drink, appetizers, moving on to more substantial offerings, side dishes, and ending with dessert. Each course contains essays I hope match the purpose of that course. Or you can think of this book as a buffet or smorgasbord of essays that you can sample at any point and then come back to try others.

I hope this culinary concept works. Some of the essays, to borrow from Francis Bacon, you may taste, others swallow, and a few you may chew and digest. This is not to say you will or should agree with all my views. But read not to contradict or confute, Bacon also advised, nor to believe and take for granted . . .but to weigh and consider. That is good advice. You may well find yourself in silent debate on almost every page. If so, I will be happy, because I will have provoked thought, agreement, and dissent. You will be the judge.

Enjoy your meal. Bon appétit!

Drink

Before being served with substantial food, diners usually

order their drinks. For us, a recent controversial Supreme

Court case supplies the key ingredient for a drink.

1

Lemonade from the

Dobbs Lemon

To protect an aspect of liberty, the due process clauseguarantee[s] some rights that are not mentioned in the Constitution.

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was momentous. That decision overturned the 1973 ruling in Roe v. Wade, which had established a constitutional right of abortion, and the 1992 decision in Planned Parenthood v. Casey, which had explicitly reaffirmed Roe. In Dobbs, the court reversed course and held, by a vote of five to four, that the Constitution does not confer a right of abortion and that authority to regulate abortion belongs to the elected branches of government, particularly the states. As expected, several state legislatures quickly outlawed most abortions. Conservative Republicans and religious groups cheered, and women’s groups jeered. Few decisions in the history of the Supreme Court have caused as much bitter controversy as Dobbs.

Ever optimistic, some of us look for silver linings in the darkest of clouds. Faced with harsh reality, we try to assume a positive can-do attitude even against the odds, and in the teeth of adversity or misfortune, to put a different, more congenial, more hopeful spin on the situation. This reaction is a matter of personality, a coping mechanism. That mechanism kicked in for me when the Supreme Court handed down Dobbs.

Count me as one who hopes—and believes—Dobbs is terribly wrong for many compelling reasons and will in time be itself overruled, one way or another, the sooner the better. Given the current ideological composition of the court, it may take a while. But until then, before that happy time occurs, we have to deal somehow with Dobbs; we have to try to find a way to use Dobbs to our advantage. By all means, let’s do what we can—by liberal legislation and court cases—to lessen the ill effects of Dobbs on American women and our whole society. At the same time, however, let’s see if Dobbs contains some hints of hope, some unintended gifts, some hidden analytical tools that can be used for good. Dobbs may be a double-edged sword. Much as we abhor Dobbs, certain aspects of it may, surprisingly, prove useful for civil liberties. Dobbs may open the door in the future to some welcome and long overdue Supreme Court course corrections.

Buried in Dobbs, beneath its awful, cataclysmic holding, are at least two such possibilities. First, the Dobbs rationale can be read as explicitly recognizing the existence of fundamental rights not explicitly mentioned in the Constitution, just not the right to abortion. Such a rationale can lead the way in the future to expanding the scope and types of rights not expressly spelled out in the Constitution. A second takeaway from Dobbs is that a majority of the Supreme Court thinks it can, if it wants, overrule prior rulings it doesn’t like, no matter how long those precedents have been on the books. That doctrine has potential to cut both ways and work for liberals as well as conservatives.

I. Dobbs Recognizes Unwritten Constitutional

Rights, Just Not Enough of Them

Dobbs, despite its holding, contains the germ of a beneficial theory of unwritten constitutional rights. Dobbs accepts the crucial major premise that unwritten constitutional rights can and do exist. (Only Justice Clarence Thomas disagreed.) But, says Dobbs, abortion is not one of those unenumerated rights. That major premise—Dobbs’s mode of analysis—opens the door to a useful, liberty-loving theory of constitutional law.

Start by thinking of unwritten rights as society’s safety valve that acts as a fail-safe to protect the system against too much tension and pressure. Safety valves were first developed for use on steam boilers during the Industrial Revolution because without safety valves, the boilers were prone to explosions. Similarly, without unenumerated constitutional rights, the pressure on society would be too great to bear.

No list of citizens’ liberties, no bill of rights, no matter how well intentioned, can ever be complete, comprehensive, and exhaustive. It is impossible. We can’t think of everything. Such lists can only enumerate some of the basic rights that come to mind at that time but cannot specifically list all contemporary rights or anticipate future changes in attitudes or technology creating the need for new rights.

To paraphrase what Chief Justice John Marshall said so well about the implied powers of the federal government in the 1819 case of McCulloch v. Maryland, a constitution, to contain an accurate list of all the rights of the people and all means by which they may be carried into execution, would have the prolixity of a legal encyclopedia and could scarcely be embraced by the human mind. We must never forget it is a constitution we are expounding. Let’s remember that it is a constitution we are interpreting.

Most of the time, formally amending the Constitution is not an adequate, realistic, or reasonable answer. It sounds good and right in theory, but it doesn’t work in practice except in the most exceptional and rare cases. The amendment procedure is just too difficult, time-consuming, and cumbersome to work effectively or efficiently for creating, recognizing, and embodying new rights. Except perhaps for structural changes in government, the amendment process is, in the real world of politics, a promise to the ear broken to the hope.

That is why certain open-ended constitutional provisions have the potential to function as safety valves that keep social pressure below the point of unrest, rebellion, or revolution. For example, the phrase due process of law in the Fifth and Fourteenth Amendments has come to mean more than just proper procedure. Over the years, many cases have interpreted the phrase due process of law to also have a substantive component referring to some aspect of personal liberty that cannot be infringed by government. This concept has come to be known as substantive due process and has embraced many types of rights not explicitly mentioned in the Constitution.

Similarly, the phrase equal protection of the laws in the Fourteenth Amendment could be another vehicle for recognizing rights not otherwise expressly listed in the Constitution. The concept of equality inherent in equal protection conjures up the possibility of eliminating, on constitutional grounds, legal differences based on race, religion, gender, sexual orientation, disabilities, wealth, education, and so on. Equal protection is a fertile phrase with great potential.

Likewise, the phrase privileges or immunities of citizenship in both Article Four and the Fourteenth Amendment looks like another potential safety valve clause. But the Supreme Court nixed that potential way back in 1873 when it interpreted the phrase narrowly. In that case, the court ruled that a citizen’s privileges or immunities meant only those few spelled out in the Constitution and did not include many rights, including civil rights, given by the states. This crabbed reading of privileges or immunities has, unfortunately and mysteriously, never been overturned.

Another part of the Constitution can serve a similar function and perhaps even satisfy those jurists who look for support in the original text of the document. The Ninth Amendment expressly says, The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. That language is plain and simple. On its face, the Ninth Amendment says the rights of the people are not limited to just the rights listed in the Constitution. It is a constitutional safety net intended to make clear that individuals have other rights in addition to those listed in the first eight amendments. One would think that constitutional originalists without a political agenda would, in the search for unenumerated rights, weigh heavily what the framers wrote and intended by their words in the Ninth Amendment.

Any one of these constitutional sources—the due process clause, the equal protection clause, the privileges or immunities clauses, or the Ninth Amendment—could have been the constitutional basis for finding implied fundamental rights. Taken together, they make an overwhelming case for unwritten constitutional rights. In some ways, it is only a historical accident that substantive due process has been the safety valve most often used. It didn’t have to be that way. Had the Supreme Court wanted to do so, it could have used any of the other safety valve clauses for that purpose. Had the court done so, the particular path our constitutional history took might have been different, although the end point may well have been the same. But in any event, some safety valve would have been needed, even though the justices always seem skittish or reluctant to use one.

But why does the Supreme Court seem so reluctant to rely on these constitutional safety valves? Why is there so much controversy over unenumerated rights? The answer is the lack of any standards, much less clear, precise standards, and the consequent risk of unbounded judicial policymaking (a.k.a. judicial activism). How can you tell if an unenumerated right exists? The key words and guiding phrases are themselves vague and open-ended. What is liberty? What is equal protection of the laws? What are the privileges and immunities of citizenship? Exactly what are the rights retained by the people?

This lack of clarity tends to make judges shy away from the task. Those who try to define a new unenumerated right struggle and may delude themselves and others about the source of values they invoke. Judges say—and many even believe—that they are identifying important or fundamental values using some objective, impersonal method. They rely on various sources, such as natural law, neutral principles, reason, tradition, consensus, or predicting progress. But these criteria are themselves so vague that they allow judges to read their own subjective personal values into their legal reasoning (and impose them on the public) in deciding whether something is or is not an unenumerated constitutional right.

But the risk must be run. The Constitution says what it says, and the pressure of life in a modern society of more than three hundred million people raises issues that need resolution. The job of identifying implied fundamental rights cannot be avoided just because it is tough, hard work. It is ironic that Justice Samuel Alito says in the Dobbs majority opinion that we must guard against the natural tendency to confuse what substantive due process protects with our own ardent views about the liberty that Americans should enjoy. One cannot help but think that is exactly what Alito and the Dobbs majority did.

The ever-present potential for subjective, personal social and economic views can create controversy. For several decades from the end of the nineteenth century until the Great Depression, for instance, the Supreme Court blocked progressive social and economic regulation by Congress and the states on the ground that it violated the freedom of individuals to make contracts. The justices found what they called liberty of contract, a phrase not in the Constitution, in substantive due process. Reaction