The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Seth Barrett Tillman Interviewed in Ami Magazine
I have been honored to work so closely with Seth Barrett Tillman on so many important matters. I learn a lot from Seth about so many substantive areas of the law. But I've also learned a lot from Seth about how the world works. Seth has a keen insight into government, politics, and society. Recently, Seth was interviewed by Ami Magazine, a Jewish publication, and shared some of his insights. If you want to understand what makes Tillman tick, read it all. Here are a few excerpts:
Well, sometimes presidents do commit illegalities.
Every administration is going to look back at the alleged wrongs of the prior administration as illegality. Not every mistake and not every policy misjudgment is illegality. As a young adult, I don't remember our political system being weaponized in this way. Maybe that is because I was very young during Nixon, who certainly made grievous errors.
You might remember that there was a big imbroglio over the leak of the Dobbs Supreme Court decision. Almost immediately, you saw people in the media, including the right-of-center media, talking in the language of criminality—that someone had committed a crime and ought to be prosecuted.
Why do you think that is?
The problem is that a lot of the people in the media today are former state and federal prosecutors. When you are a former prosecutor and the only thing you know is to prosecute people, it seems that more than a few often forget that there are things that are just bad but are not crimes. A bad thing can happen—a bad thing can be done—but that doesn't mean that anyone committed a crime, and we don't prosecute people just because they did something bad. This is one of the basic lessons that seems to be dying from our society. And by the way, I am a law-and-order person. …
I will also suggest another possibility: The Dobbs draft was not leaked; rather, its release may have been authorized. A Justice may have said to one of his clerks: "I'm unhappy with the way this draft is developing—I'm unhappy with ill-informed reports in the media predicting our decision and its reasoning—I'm going to tell one of my clerks that he has my permission to give it to a journalist." That might be a very egregious thing for a Justice of the Supreme Court to do, and it might be daring for a clerk to follow such guidance, but I don't know of any rule or law against such behavior. I don't know that you can prosecute a Justice or judge for leaking a draft opinion from his own court.
Seth also opines on the Hamilton Documents Imbroglio from 2017:
Even a cursory examination of the hand writing, and the purported signatures within the American State Papers document and its annexes, should have revealed that the Hamilton list in American States Papers was not signed by Hamilton. Once I explained that to the[] [self-characterized 'Legal Historians'], the five historians retracted. That was in 2017. At least, I thought they had retracted. A few days ago, one of the five historians filed a document in litigation in a federal trial court in Maine and participated in a deposition based on his filing. My reading of that deposition is that in 2025 he retracted his 2017 retraction. At least, that is how it appears to me. Or, perhaps, he simply forgot about his 2017 retraction? I suppose that is possible. But it is odd. Very odd. …
What started in 2017 was a real eye opener. It was part and parcel of a series of events, continuing to this day, revelatory of a decline of civility in US academic institutions, law and other fields. A large part was driven by Trump derangement syndrome. But it's more than that. It's really quite shocking when academics who have preached civility in front of large audiences depart, in their own publications, from the standards they have regularly espoused elsewhere. But that is where we are. This behavior is omnipresent among the woke left. But it's not just there. Among right-of-center legal academics, you will find some who will not give the time of day to other academics who have departed, in even the most minor way, from what the former believe to be acceptable legal orthodoxy. It is miserable, m[ean-spirited fanaticism borne of misplaced self-pity.
Finally, Seth has a wide range of interests beyond our own legal system:
The issue of if, when and how apex government officials should be treated differently from other government officials and from citizens (and from foreigners) is a perennial problem—not just in our legal system. See, for example, Sanhedrin19a, Shevuot 31b and Maimonides' Laws of Kings and Their Wars3:7, which discusses the amenability of kings and high priests to suit and to giving testimony. The issue comes up even in fiction: e.g., when Prime Minister Cao Cao inadvertently, but in violation of his own legal decree, rode through a privately owned field of grain as told in Luo Guanzhong's Romance of the Three Kingdoms—by many considered the greatest Chinese novel, first printed circa 1522. I am in the process of writing a book review of the latter, albeit, it is about 500 years too late.
As I often say, Tillman gets to things on his own time, even five centuries late.
