RNLA Honors Prof. Ron Rotunda on His Passing

Professor Ron Rotunda, a stalwart leader of the conservative and Republican legal movements, has unexpectedly passed away.  A consummate scholar, he was an expert on constitutional law, federalism, free speech, professional responsibility, legal history, and many other areas of law.  His legal and political analysis was always insightful and witty, enabling non-lawyers and lawyers alike to easily understand complicated concepts and making him a sought-after commentator on many issues.  

RNLA President Elliot Berke said: "When I was in law school, Ron became a legal giant to me as a Constitutional Law scholar. He had worked on Watergate with my Con Law professor so I then only knew him by reputation. Within a few years of graduating, I was fortunate to work with him in the Independent Counsel's office and to become his friend. He leaves behind a tremendous legacy in the law and will be greatly missed." 

Here are some recent highlights from his prolific writing and speeches:

John Marshall and the Cases That United the States of America - published in January, this critically acclaimed book contains Prof. Rotunda's rewritten and condensed version of Beveridge's biography of John Marshall.  It is a fascinating read for scholars of legal history and constitutional law.

"Facebook, Russian Interference and the Monsters on Maple Street" -Verdict, Dec. 18, 2017:

There is nothing new under the sun and there is nothing new about Russian interference. The Russians (and the Soviets before them) spread agitation-propaganda, or “agitprop,” a Russian blend of agitatsiya (agitation) and propaganda (propaganda). Its purpose is to sow discord, fan hatred. . . . 

Non-democracies spread fake news to undermine democracy and manipulate people. . . . There is nothing unusual, or even new, in all of this. When we express surprise, we emulate French Captain Renault in Casablanca who said, “I am shocked—shocked—to find that gambling is going on in here!” (Right after that, an employee says to him, “Your winnings, sir.”) 

What we know of Russian interference tells us much about Putin, the former KGB operative, and much about ourselves. Russia used Facebook and other social media in the year or so preceding the 2016 presidential election, and the period following, to sow discord and mayhem. The point is to amplify social divisions . . . by promoting opposite sides of the political spectrum . . . .

"Using the Licensing Power of the Administrative State: Model Rule 8.4(g)" - The Federalist Society's National Lawyers Convention, Nov. 18, 2017: Prof. Rotunda provided a chilling, yet amusing, analysis of free speech implications of the American Bar Association's new Model Rule of Professional Conduct 8.4(g).

"George Wallace at Harvard—The Good Old Days of Campus Free Speech" - Verdict, May 8, 2017: 

Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that country’s first freely elected president since World War II was a playwright.

"An English Teacher Corrects Shakespeare" - Verdict, Apr. 10, 2017:

There is also the problem of free speech. People have a right to use ordinary English. Perhaps because we have passed 1984 unscathed, we often ignore the significance of George Orwell’s “Newspeak”. Words both reflect and mold the way that people think, which is why they are so powerful and why the First Amendment is so important. [Northern Arizona University's] Dr. [Anne] Scott is using her power of grading as a way to control how people talk. . . . 

There are limits to the power of words, but there is also a magic in them: not the magic of “abracadabra,” but magic nonetheless. Words have the ability to confuse and to clarify, to help legitimate policies, to generate loyalty, to give the appearance of action, to mold people’s perceptions of the world, to affect the way they approach a problem, and to reflect their innermost thoughts. When people argue about “mere words,” they are talking about fundamentals, about infrastructure, not superstructure. 

When Dr. Scott and Northern Arizona University force students to use certain words and shun others, they are tapping into this power—a power easy to abuse. That is why we have the First Amendment. The government should not punish people for using words that our dictionary blesses.

"The Electoral College Works Fine, Just as It Is" - Verdict, Dec. 5, 2016:

Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state. 

The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats

The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. . . . 

The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”

"The ABA Decision to Control What Lawyers Say: Supporting 'Diversity' But Not Diversity of Thought" - The Heritage Foundation Legal Memorandum, Oct. 6, 2016: 

These changes show that the ABA is very much concerned with what lawyers say and who teaches them. The only thing that does not concern the ABA is diversity of thought. The language that the ABA uses to promote its latest foray into political correctness makes this all too clear. Moreover, what the ABA does affects all of us, even if we are not lawyers, because of its governmental power. . . . 

Even when a court does not enforce this rule by disbarring or otherwise disciplining the lawyer, the effect will still be to chill lawyers’ speech, because good lawyers do not want to face any nonfrivolous accusation that they are violating the rules. The ABA as well as state and local bar associations routinely issue ethics opinions advising lawyers what to do or avoid, and most lawyers follow this advice. . . . 

Is it the best use of scarce bar resources to discipline lawyers who may violate a vague rule that prohibits speech because that speech violates the new Rule 8.4(g)? It is not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, who commingle trust funds, or who cheat third parties. 

The purpose of the new Rule 8.4(g) is to promote a “cultural shift” in the United States. Until now, that was not within the job description of the ABA or of the Rules Governing Professional Conduct.

Rest in peace, Professor Rotunda.