Season 4, Episode 11 (Show 168): What the Concurrences Should Have Said

March 13, 2024

We analyze the concurrences in Trump v. Anderson, looking at those areas where there was ostensible agreement.  We find much to bemoan.

CLE Credit Available for this episode from podcast.njsba.com.

The concurrence by three Justices (as opposed to that of Justice Barrett) in Trump v. Anderson concurs only in the judgment.  We look at different types of concurrences and why a Justice might choose one type or the other; and as for this one, we find much to dissent with.  We dissect the arguments and now with the benefit of a week since the opinion, we “slow it down” and take you carefully through the logic and illogic we find.  Can we locate common ground among justices who claim to be unanimous but in fact significantly diverge?  And how do we address our own position, which seems to lie firmly opposed to the entire Court?

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(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Show Notes:

How to get Continuing Legal Education Credit for listening!

THIS WEEK, CLE CREDIT WILL BE AVAILABLE AFTER MONDAY, FEBRUARY 12.  Virtually all lawyers and judges admitted to practice anywhere in the USA can obtain CLE (Continuing Legal Education) credit after listening to this episode by visiting podcast.njsba.com.  You do not have to be a New Jersey lawyer or resident or admitted to the NJ Bar; essentially every state has reciprocity arrangements with New Jersey.  When you visit the site you fill out a form and provide the code Andy read during the episode, pay a small fee, and within two weeks you will receive the certificate from New Jersey.  It couldn’t be easier.  Thanks to the New Jersey Bar Association for making this possible!  Note, too, that other podcast episodes from our “back catalog” now qualify for this credit as well.

Click to go to the website for CLE credit

Trump v. Anderson (2024)

The opinion, including the concurrences.

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The Variousness of Federal Law (1957)

Professor Paul J. Mishkin writes in the University of Pennsylvania Law Review (1957) on “The Variousness Of ‘Federal Law:’ Competence And Discretion In The Choice Of National And State Rules For Decision.” We discuss this in terms of the Court’s apparent insistence on a sort of uniformity of Federal Law which doesn’t exist in general and seems entirely devoid of necessity in the case at hand.

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