Eastman Memo: It’s Real and It’s Not Spectacular

In today’s episode, Sarah and David discuss a number of situations where events have proven ...

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In today’s episode, Sarah and David discuss a number of situations where events have proven their predictions true, starting with a challenge to the Texas abortion law and ending with a complaint over critical race theory. In between, our hosts also dissect the legal arguments underpinning the push to get Vice President Mike Pence to overturn the 2020 presidential election and discuss a new bill that would reign in presidential powers.

Show Notes:

–Alan Braid, Texas abortion doctor, sued over ban

–John Eastman memo

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  1. Avatar photo
    Bill Dyer (aka Beldar)

    I'm listening to this episode very belatedly, but I want to note for posterity my admiration for Ms. Isgur's explanation of the Eastman memo. Despite the difficulty and complexity of the subject matter, her explanation was clear, rapid-fire, comprehensive — and most importantly, self-evidently correct! In short: This is brilliant legal thinking, brilliantly communicated.

    When I was in law school, the student who got the top grade in each class was given a special award by lawbook publisher West Publishing Co., an award which was then named after its American Jurisprudence series of legal treatises, and which was commonly abbreviated to "Am Jur," as in:

    Q: "What were your best classes?"
    A: "Well, I Am-Jur'd my torts class [i.e., got the top grade.]"

    I thought to myself after that explanation: "Ms. Isgur just Am-Jur'd that explanation."

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  2. BadgerBill

    Not to be pedantic, but in the notes it says : “reign in presidential powers”. Hmm. I’m pretty sure you want to “rein” in said powers, although the pun of “reigning” in monarchical presidential powers would be pretty funny.

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  3. Avatar photo
    WKDawson

    Being a long resident of Japan, I've come to the habit of saying you're both right; people should study civics, but they should also be good scouts.

    Actually, I would say that you should not use facile metrics like how many people can name the three branches of government or even some number of people in each branch. These are easy things to claim metrics ... and I guess that is what school districts may try to use to claim that they meet the common core standards because the so-called objective tests are typically aimed at testing memory rather than adaptability and application of complex concepts. What is more important is understanding. This is best tested by an essay where the student actually tries to articulate in his/her own words how to apply the principles he/she has learned.

    The scouting principles are a solid way to test and examine your own tendencies.

    However, I think there are problems when you are confronted with following Jesus or making a very secular choice perhaps using a principle like weighing the odds. The choice of following Jesus may not go favorably with the odds. There you just have to decide what you really believe. Still, it is probably better if you understand that you made such a decision based on faith.

    Anyway, I appreciate AO, and I hope you get millions of listeners. Almost every one of the episodes I've listened to (at least 80%) has been useful. If nothing else, it has helped me understand the complexities of the law, why the court is sometimes so inscrutable (because of my lack of familiarity and understanding), and I especially appreciate that y'all are more concerned with fundamental understanding than naming names.



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  4. Payette

    AO is the best kept secret at The Dispatch. In No Way am I fluent in legalese. But each episode AND the listener comments are a useful introduction to the habits & language of the judiciary. Besides, it seems that SCOTUS is the only branch of our current federal government to know (or at least have read) their job description.

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      “Best kept secret at The Dispatch.” You are a person of taste and discernment!

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  5. Avatar photo
    David Chen

    What a preposterous memo. A civilized society would simply have a pie eating contest.

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    1. Avatar photo
      WKDawson

      Usually, what we hope of a life is that, from the follies of our youth, we grow in wisdom, courage, and understanding, such that we finish strong. To finish in such ignominy is to show how little you really valued wisdom and that all your utterances were a fraud.

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  6. Ben P

    Sarah is right on regarding the "scout mindset" response to David's suggestion that we need better civics education. Not that civics education is bad, or even "not good", just that it's insufficient for ameliorating the problem at hand. The best informed people are often the least reasonable; the plausible explanation being that unreasonable people are motivated to become better informed so that they can win more arguments.

    Julia Galef said that one of her motivations for writing "The Scout Mindset" was that she had, for a long time, believed that teaching people about logical fallacies would help them to become more careful thinkers. But then she saw that what most people do with their newfound knowledge of logical fallacies: use them as a rhetorical bludgeon with which to strike their ideological opponents. Turns out we're much more interested in spotting other people's logical fallacies than in spotting our own. No reason why enhancing civics education wouldn't give us a similar result.

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  7. DJ

    Great episode. AO is consistently the most fair-minded show I listen to. Lawfare is pretty good too but y'all are more fun.

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      Thank you!

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  8. Avatar photo
    Sad Trombone

    I think you indulged in a little bit of nut picking when dealing with the CRT controversy - kinda like when the University of California invited David Duke to argue for Ward Connerly's Equal Rights Amendment. Why don't you ask Bari Weiss or Andrew Sullivan if there is a real problem being addressed with these laws?
    Also, I would have liked you to address Professor Tribe's arguments that Professor Eastman tried to ju jitsu off of... I used to admire Professor Eastman so much, but agree he's gone around the bend in recent years - but I see very little analysis of the hard core nuttery on the other side that is probably motivating this reaction. Just as the flower petals thrown at the feet of Stacie Abrams for her premeditated lies and rejection of election results laid the groundwork for Trumpists to think repudiating election results was fair play.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      On the CRT point, david isn’t saying there isn’t a real problem. He’s been saying for months that these laws don’t actually address any of those problems and instead end up banning books like Ruby Bridges. On the Tribe point, I think we’ve also said quite often that there have been plenty of people guilty of stupid things on the other side. But that doesn’t absolve Eastman of also making stupid arguments and there’s a big difference in terms of impact between tribe writing stupid law review articles/tweets and Eastman writing a memo to a VPOTUS.

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        Sad Trombone

        I agree totally, on both points, a) current laws against CRT are counterproductive and b) Eastman's efforts are the reaping of a horribly more consequential harvest from Abram's sowing. But I think the podcast would be improved it you would throw in a little more acknowledgement of the filaments of fact that the nutters are spinning their cotton candy around.

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  9. Shel F.

    Michiganders we’re mailed unsolicited absentee ballot applications not ballots.
    https://www.michigan.gov/ag/0,4534,7-359-102822_102830-539846--,00.html

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Apologies if I didn’t say that—I misspoke. But doesn’t change the legal analysis.

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  10. Jay Webber

    I may be late to the party on this, but there is a mockumentary from about five years ago called Population Zero that is all about a murder on the Idaho portion of Yellowstone. It is an entertaining enough watch, even if it falls off the rails a little bit at the end. Its has enough of an authentic enough feel that my wife, who I didn't tell that it was fake, was really getting outraged about the injustice of it. Think it is available for free on Tubi, or for a few bucks on Amazon.

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