Archive for June, 2008
So, what the Heller our friends at the ACLU going to do now?
posted by Kaimipono D. Wenger
One interesting question is what the ACLU is going to do with Heller.
Initial indications aren’t particularly promising for the second amendment crowd. The ACLU’s recent press release about developments this term clearly indicates where organizational priorities lie. The release describes Boumediene in glowing terms, along with background like
Habeas corpus has been regarded as a cornerstone of liberty and a check against the abuse of executive power since the Magna Carta in 1215. Even before the Bill of Rights, the framers regarded habeas corpus as so essential to the system of checks and balances that they included a provision in the Constitution prohibiting the “suspension” of habeas corpus except in rare and limited circumstances.
What about Heller? “By concluding that D.C.’s gun control law was unreasonable and thus invalid, the Court placed a constitutional limit on gun control legislation that had not existed prior to its decision in Heller. It is too early to know how much of a constitutional straitjacket the new rule will create.” Yeah, it’s pretty clear who the red-headed stepchild is in this household.
And this ambivalence is consistent with ACLU history — the ACLU has not been a second-amendment rights organization, historically. Instead, it’s taken a distinctly agnostic view. Interestingly, though, the ACLU has explicitly linked that agnostic approach to Miller. Thus, the stated grounds for the ACLU’s prior agnosticism no longer exist.
Really! Let’s take a look.
June 30, 2008 at 9:54 pm
Posted in: Constitutional Law
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“The outrage, of course, is it was only two years … “
posted by Dave Hoffman
Kathryn Jean Lopez, editor of the National Review Online, says about the DOJ’s practice of using political credentials in civil service hiring decisions:
“The outrage, of course, is it was only two years … “
Funny, I thought the outrage was that this behavior was illegal (under the CSRA and applicable Department regulations). Orin, over at the Volokh, agrees (“The basic picture is just disgraceful.”)
But Todd Zywicki, who earlier downplayed the “scandal” (“it seems obvious that merit alone has never the sole criterion for securing these positions, and that a variety of other personal, geographic, and demographic factors have always played into these decisions”) hasn’t spoken up to criticize the Administration, and other prominent conservative legal voices have been equally silent. (I don’t think Glenn Reynolds has said a thing about the report: readers can correct me if I missed it among the many posts about Obama’s foibles).
June 30, 2008 at 3:18 pm
Posted in: Current Events
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LawProf as Philosopher-King
posted by Frank Pasquale
Carlin Romano’s fascinating profile of Harvard Law Prof Roberto Unger should prove inspiring for any academics who long for a policy role. Here’s a taste:
His political involvement in Brazil dates to the late 1970s, when military dictatorship gave way to a “political opening.” Unger offered his services to the united opposition party. In 1978 he became that party’s chief of staff . . . . In those days, he says with a grin, he consoled himself “during solitary evenings … with readings and translations of Chinese imperial poetry, one of the themes of which is the presence of the exiled intellectual in the dusty steppes.” . . .
In April 2007, [Socialist President] Lula invited Unger for two long conversations in Brasília, then offered him a new position running a “Secretariat for Long-Term Actions.” Unger accepted, informing Lula that he’d start after finishing his Harvard semester. . . .
“I have the only position in the government that is about everything, except for the position of the president,” Unger exults. “He has all power, and I have none. But I have one advantage over him. I don’t have to manage daily crises. I’m therefore free — as he is not — to deal with the future and to deal with our direction. It’s been fantastic.”
Unger’s ideas for change are interesting, though the scholarship that underlies them has gotten a mixed reception in the American academy.
June 30, 2008 at 2:07 pm
Posted in: Culture, International & Comparative Law, Jurisprudence, Philosophy of Social Science
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Euro 2008
posted by Darian Ibrahim
Thanks to Dave for the introduction and to everyone at Co-Op for having me. I’m a regular reader, so I’m happy to be able to contribute a few thoughts.
I’ll start with something that has been a nice distraction from writing and conferences over the past month: Euro 2008, which is the world’s second most important soccer tournament (after the World Cup). It was a terrific tournament – the quality of play was outstanding and the matches were close and exciting. While Spain deservedly won yesterday’s final, the real story of the tournament was Turkey. Turkey is not a traditional soccer powerhouse, but in this tournament managed to pull off three amazing come-from-behind victories before eventually losing to Germany in a very close semifinal. I don’t know how many Americans watched the tournament, but on my way back from a conference, at least, I had to convince my fellow patrons at the O’Hare Chili’s that the last five minutes of Croatia-Turkey would make for better TV than some rerun on another channel. (I was vindicated when both teams scored – Turkey in the last seconds before winning on penalty kicks.)
An interest in soccer comes naturally for me given my family. My dad started the men’s soccer team at Clemson University in 1967 and had an amazing career before retiring in 1994. Needless to say there were some big expectations on me growing up. Turns out I was pretty terrible at soccer, but all was forgiven since I did well in school. My brother inherited the soccer genes and went on to play for Clemson after my dad retired.
Even though I couldn’t play, I did go to countless games and enjoy many conversations about the sport. The conventional wisdom is that Americans don’t like soccer because there’s not enough scoring, which makes it boring. I actually think the lack of scoring makes each goal that much more exciting, and that a bigger problem is the opaqueness of the teams’ strategies. In football you establish the run to open up the pass, in basketball you establish the inside game to open up the perimeter, but in soccer, it’s far from clear what the teams are doing. The announcers could help here, but it’s a fine line between initiating new viewers and not irritating seasoned viewers with five-minute discussions of the meaning of “offsides” (a problem with US soccer coverage in the past). Even with a better understanding of the game, I doubt soccer will ever become that popular as a spectator sport here (unless it’s watching your kids play), although more sports fans would surely have their interest piqued by tournaments as good as Euro 2008.
June 30, 2008 at 12:16 pm
Posted in: Current Events
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What Men Will Do To Win
posted by Sarah Waldeck
Christopher Wilson, a neurobiologist at Cornell, has recently offered an evolutionary explanation for why certain cultures developed the norm of male circumcision. In an article in Evolution and Human Behavior, Wilson describes circumcision as an “evolutionary challenge” because it “involves a dangerous and costly surgery.” Enter sperm competition theory, which predicts competition between males to fertilize a woman’s egg. Wilson points out that some cultures practice male genital cutting that is far more drastic than circumcision, and that undoubtedly decreases male fertility. As a review of Wilson’s article in The Economist describes:
June 30, 2008 at 11:55 am
Posted in: Culture
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Introducing Guest Blogger Darian Ibrahim
posted by Dave Hoffman
I’m pleased to welcome Darian Ibrahim, who this Fall is moving to Wisconsin from Arizona, as a guest blogger for the month of July.
While at Arizona, Professor Ibrahim was voted the Teacher of Year (2006-2007) by the student boy and co-created and co-directed the University’s Business/Law Exchange. Professor Ibrahim’s scholarly interests include corporate e reand securities law and the intersection of law and entrepreneurship. His current research analyzes and compares the various financing options that are available to high-tech start-ups, including angel finance and venture capital. He has current articles on angel investing, Delaware corporate law, and a macro look at the field of law and entrepreneurship in the Vanderbilt, Iowa, and Arizona law reviews. At Wisconsin Professor Ibrahim will teach classes in business organizations (public corporations), securities regulation, and a seminar in law and entrepreneurship.
Professor Ibrahim is a 1999 graduate of Cornell Law School (magna cum laude), where he was Articles Editor of the Cornell Law Review, Order of the Coif, and a recipient of the Fredric H. Weisberg Prize for Constitutional Law. He earned a Bachelor of Science degree in Chemical Engineering from Clemson University in 1996 (magna cum laude) and was the recipient of a number of honors, including an internship with Dow Chemical Company.
During law school, Professor Ibrahim was a summer associate in the Mergers and Acquisitions Group at Cravath, Swaine & Moore in New York. After graduation, he was an associate in the Corporate and Securities Group at Troutman Sanders in Atlanta, where he focused on mergers and acquisitions and private placements of securities for high-tech start-ups. Following his law firm experience, Professor Ibrahim clerked for Chief Justice Norman S. Fletcher of the Georgia Supreme Court.
Recent Articles (via SSRN)
• The (Not So) Puzzling Behavior of Angel Investors, 61 VAND. L. REV. __ (forthcoming 2008)
• Individual or Collective Liability for Corporate Directors?, 93 IOWA L. REV. 929 (2008)
• Entrepreneurs on Horseback: Reflections on the Organization of Law (with D. Gordon Smith), 50 ARIZ. L. REV. 71 (2008)
Welcome, Darian!
June 29, 2008 at 3:01 pm
Posted in: Administrative Announcements
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Alternative Careers for Lawyers: How real is it?
posted by Jessica Silbey
My pile of “to read” material is overwhelming, but somehow I managed to read this article in the June issue of the ABA Journal about lawyers who write for television and film. I was interested in the article for two reasons. One, I am a law and popular culture fan — that is, I squander some academic credentials on writing about law and popular culture (trial films and the like) not only because I am addicted to them (Michael Clayton anyone? I loved it!) but because I do think the stories they tell and the manner in which they tell them constitute a popular legal consciousness that is part and parcel of the law (what it is, how it functions, why it changes, both on the books and in action). I was also interested in the article because when I counsel students about career choices, I like discussing alternative careers. With lawyer satisfaction low (at least that is what the media tells us, but see this article by my colleague Michael Rustad, and my comment about it here) lawyers-to-be should think hard about how to structure their career in terms of what they like about law and lawyering. Being a writer for television or film is potentially a dream of a career for many, but it is more and more common as the law-genre has blossomed. Remember LA Law? From that television drama (and the Perry Mason before it, long before it), law tv has exploded and the explosion keeps on burning (Law and Order, the Practice, Ally McBeal, Boston Legal…). There are new variants in the crime drama genre – CSI, the Closer… just too many to list here. I am sure readers have their favorites and the ones they most despise. For me, the ones I tend to enjoy are the ones that are “smart” — that is, ones that explore contemporary legal issues and get the law right, although in a streamlined fashion and without much of the important details that keep lawyers in business litigating. (I count West Wing as one of my favorites for a law drama, albeit not a trial drama, that gets the legislative process fairly on and, when discussing legal issues regarding case law, tends to treat them with an element of sophistication.) The ones I most dislike are the shows that are more about the social drama of a law firm (Ally McBeal stands out on this front, although it had some good episodes, and the Practice devolved into this kind of show, unfortunately) or that are too heavy on the cops and investigators and spend less time on the legal restraints on those actors.
It seems clear to me that I can’t just suggest to my students “go get a writing job for Hollywood” even to those who had journalism careers before coming to law school. But it also seems clear to me that the law-writing field is wide open and the market is hot for it. Novels and non-fiction, essays and magazine or newspaper articles, blogs or on-line journals (Slate.com, for example) are all reasonable avenues to try — even before graduating from law school. There must be examples of well-trod blogs and their authors turning writer for the visual media for real pay. And this article from the ABA Journal is evidence that it can be done, even by the relatively young law student. It is also evidence of the need for the lawyers to help the producers and directors manage complex legal themes for diverse audiences — to keep the law meaningful, so to speak, for those who are only exposed to it through television and film. Although not a career in public service, it does seem (to this fan, at least) a worthwhile endeavor. In other words, “smart tv” should not be an oxymoron.
June 29, 2008 at 10:08 am
Posted in: Uncategorized
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Of Lost Keys and Lampposts
posted by Frank Pasquale
Michael Kinsley has recently satirized a newspaper’s initiative to evaluate journalists by counting the number of words they write:
Productivity will be measured by column-inches of words. In other words, the company will assume that the more words you write, the more productive you are. Or, to put it another way, if you use many, many, many words to make whatever point you may be trying to make or fact you are attempting to report, you will be considered more productive than another writer who takes pains to be concise—that is, to use fewer words rather than more words.
Though that program sounds particularly silly, it’s a cautionary tale for our broader propensity to look for answers in easily measurable data. As Charles Tilly writes in Durable Inequality:
We pay a price for concentrating on well-documented outcomes. Recent students of inequality under capitalism have, unsurprisingly, focused on wages, a topic that lends itself both to measurement and to explanation in individual terms. They have neglected wealth, health, nutrition, power, deference, privilege, security, and other critical zones of inequality that in the long run matter more to well-being than wages. (24)
Like someone who’s lost his keys at night and only searches for them under illuminated lampposts, we can easily get led astray by the lure of “hard data.”
June 27, 2008 at 12:18 pm
Posted in: Economic Analysis of Law
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Antiques Roadshow
posted by Sarah Waldeck
If you are looking for something in addition to the Supreme Court news, check out this New York Times article about an under-theorized aspect of estates and trust law: the pesky personal property that people would have preferred not to inherit, but still can’t quite bring themselves to throw away. The comments (195 as of this writing) are particularly rich, with all sorts of vignettes about the objects with which people find themselves stuck, painful conversations between siblings, and (of course) the wrongdoings of stepparents and half-siblings.
June 26, 2008 at 3:05 pm
Posted in: Uncategorized
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Meet Your Second Amendment: D.C. v. Heller Decided (Updated)
posted by Mike O'Shea
It’s a momentous day. With the Supreme Court’s landmark Second Amendment decision this morning in District of Columbia v. Heller, American constitutional law has just gained a newly enforceable, individual liberty. The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table. Such laws are a violation of the U.S. Constitution.
In this post, I want to look back at the issues I discussed in my earlier CoOp post, “What to Watch for in D.C. v. Heller,” and offer some brief thoughts about how they featured in Justice Scalia‘s opinion for the Court. Before I begin, let me recommend Larry Solum’s typically thoughtful analysis of many of the interpretive techniques employed in the Heller opinion.
ISSUES
1. Recognition of an Individual Right to Arms: You bet. The right is recognized as squarely individual; the “militia” referred to in the preface was and is a popular militia. The Court rejects any requirement of participation in the National Guard or another organized militia.
June 26, 2008 at 3:03 pm
Posted in: Constitutional Law, Supreme Court
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Summer Reading
posted by Deven Desai
As the summer slips away there may still be time to read. For that matter if one is in academia, one should find time to read no matter what. Dan’s first bit of advice to me was read, read, and oh yeah read. Now I entered the field in part because I missed reading and writing. I love the fact that when I say I worked on the weekend, people think “Oh, too bad,” while I think I just enjoyed what I was doing, but it happens to be part of my work. As I tell my students, lawyering is a nerdy profession. Don’t fight it; EMBRACE THE NERD WITHIN. One way to do that is, you guessed it, to read. So what should one read? That depends on the topic of interest of course. Nonetheless, one person has started a great project that merits a nod.
Patrick O’Donnell’s list of biblographies at Ratio Jurist is a great public service. Take a look. Given the number of topics he wishes to cover in the future, he needs some sense that people care. Checking out his lists and perhaps even sending him a thank you note is nice way to do that. Who knows? Perhaps you can convince him to post his list on capital punishment or science and technology just in time for you to start that super cool article.
One last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument. In addition, if one feels that the job is boring or not a fit, read about the area you want to be in. That way when the opportunity to enter that field of your dreams arises, you will at least show that you really do know the area and are dedicated to it. Experience in an area matters of course but so does evidence that you love the field and wish to excel in it.
June 26, 2008 at 2:06 pm
Posted in: Legal Theory
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Conditioning Givings
posted by Frank Pasquale
Fred Smoler’s review of books on mercenaries is an even-handed treatment of the recent rise of private armies. I found this section particularly insightful:
The great defense of PMFs, at least by advanced Western militaries, is that they save money. The evidence on this is at best patchy, and for a good reason: the number of officers monitoring contracts has fallen while the value, and number, of contracts has risen sharply, and there is very imperfect competition (and much reported cronyism and other abuse) in the market. Government Accountability Office investigations suggest that at least three-quarters of the billions in savings that the first (early 1990s) wave of DOD outsourcing was supposed to generate never happened, and the situation has probably grown worse since then.
There have been very few if any good studies of the real long-term economics of military outsourcing, although much anecdotal evidence suggests lost institutional capacity, fraud, and waste. The amount of money the Army thinks one contractor alone (Halliburton) has overcharged it in Iraq exceeds the aggregated constant dollar cost of a number of successful American wars. The improbability of some hypothesized savings becomes obvious when one considers the fact that in these service businesses ex-soldiers earn between twice and ten times what they had earned as government employees. Market perversity seems especially striking when one considers a second fact: the military trains, at very great expense, highly skilled employees whom it then permits to work for private competitors, against whom it must bid if it seeks to retain the services of such employees when they are most desperately needed, in time of war.
I worry about the same dynamic happening in some sectors of health care. Innovations in the private sector can lead to great new opportunities for care. But they can also effectively “bid up” the price of personnel to the point where publicly funded programs can no longer afford them. If the government hadn’t already subsidized medical education so much, this wouldn’t be so troubling. But when it has such an extensive role in shaping and training the physician workforce, it might want to think about conditioning such “givings” on some requirements to serve a certain percentage of Medicare and Medicaid patients.
June 26, 2008 at 12:49 pm
Posted in: Economic Analysis of Law, Health Law
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Capture & Academic Punitive Damages Research
posted by Dave Hoffman
Today’s punitive damages decision in Exxon is a wild piece of work, which tears the remaining guts out of punitive damages practice in the United States, and I’m still digesting it. But on the first read, one particular footnote from Justice Souter’s majority opinion stood out. In a section of the opinion relying heavily on Ted Eisenberg, Michael Heise, Martin Wells, Paul Hannaford-Agor, Neil LaFountain, G. Thomas Munsterman, and Brian Ostrom’s work on the variance in punitive damage awards, the Court takes a strong shot against Cass Sunstein and others who have studied juries in the laboratory. Here’s what the Court said about that work:
The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards byconducting numerous “mock juries,” where different “jurors” are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L. J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.
I agree with this skepticism about these particular mock jury studies, as I argued here, and here, and as Neil Vidmar, Denise Antonili, Richard Lempert, and others have discussed. But I was still fairly shocked to see the Court acknowledge the problem of deep capture in such an open way.
By the way, the fact that the Court et al.’ed the punitive damages empirical work (led by the ELS-folks at Cornell) is more evidence of my thesis that the bluebook hurts interdisciplinary contributors by reducing the recognition of their work.
[Update: For a defense of the Exxon-funded studies, and more thoughts about the footnote, check out Rick Hasen's post.]
June 25, 2008 at 1:30 pm
Posted in: Behavioral Law and Economics
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Public Service — Cool Job Opening at Creative Commons
posted by Deven Desai
Looking to work at a place with smart people who encourage you to use your legal skills to support and really grow a long-term project? Well, if you love education and have a law degree, your time may be now. Creative Commons, one of the coolest non-profits out there, has project called ccLearn. ccLearn has a mission:
ccLearn is a division of Creative Commons which is dedicated to realizing the full potential of the Internet to support open learning and open educational resources (OER). Our mission is to minimize barriers to sharing and reuse of educational materials — legal barriers, technical barriers, and social barriers.
They are looking for someone to be ccLearn Counsel and Assistant Director.
NOW there have been several posts about how to think about a law job. So before you flood the contact below, I urge you to read the job description, write a targeted letter, and polish that resume to show how you fit. As with many of these jobs, the candidate may not have all the desired experience. But often you can show that you excel in a couple core areas and have aptitude in others with some chance of getting the job. Also make sure you know as much as you cna about CC–its history, mission, and how you think ccLearn fits CC in general. Someone who says this job looks cool but has no idea about the work and overall nature of the place will not be likely to get the job.
Here is how to apply:
“If interested, please submit:
Cover Letter explaining your relevant interest in ccLearn and in the position.
Resume.
Three References; please include email and phone number.
Applications and questions can be sent to:
Jennifer Yip
Operations Manager
jennifer [at] creativecommons.org
fax: 415.278.9419″
NOTE; I am not the contact in any way, shape, or form. This post is truly a public service announcement.
Hat tip: Mike Carroll (If you like law, technology, music, and copyright, read Mike’s blog. It is excellent, and Mike has always been someone worth listening to and engaging with.)
June 25, 2008 at 11:34 am
Posted in: Cyberlaw, DRM, First Amendment, Intellectual Property
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The Truth about Multitasking
posted by Frank Pasquale
I’ve been of two minds about multitasking for some time. But growing evidence is suggesting that the very concept is a myth:
Dr. Edward Hallowell, a Massachusetts-based psychiatrist who specializes in the treatment of attention deficit/hyperactivity disorder and has written a book with the self-explanatory title CrazyBusy, has been offering therapies to combat extreme multitasking for years; in his book he calls multitasking a “mythical activity in which people believe they can perform two or more tasks simultaneously.” In a 2005 article, he described a new condition, “Attention Deficit Trait,” which he claims is rampant in the business world. ADT is “purely a response to the hyperkinetic environment in which we live,” writes Hallowell, and its hallmark symptoms mimic those of ADD. “Never in history has the human brain been asked to track so many data points,” Hallowell argues, and this challenge “can be controlled only by creatively engineering one’s environment and one’s emotional and physical health.” Limiting multitasking is essential.
Walter Kirn concurs: “Neuroscience is confirming what we all suspect: Multitasking is dumbing us down and driving us crazy.”
Still, I think it all depends on the complexity of the secondary task. If I’m on a long phone call, I’m going to start checking my sage reader or Bookforum for interesting articles. Most TV shows take up very little “bandwidth;” it would seem a shame not to fold clothes or clean or cook during them. Perhaps it’s time for Birdthistlian sample of views on the matter.
June 24, 2008 at 10:37 pm
Posted in: Blogging, Law and Psychology, Law School (Teaching)
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University of Chicago Law Review, Issue 75:1, Winter 2008
posted by University of Chicago Law Review
In Memoriam: David P. Currie (1936-2007)
Saul Levmore
Demisesquicentennial
Kenneth L. Karst, Equality as a Central Principle in the First Amendment Geoffrey Stone
Symposium: Surveillance
Dredging up the Past: Lifelogging, Memory, and Surveillance Anita Allen
Privacy Decisionmaking in Administrative Agencies Kenneth Bamberger and Deirdre Mulligan
The Memory Gap in Surveillance Law Patricia Bellia
Privacy, Visibility, and Exposure Julie E. Cohen
Cybersecurity in the Payment Card Industry Richard A. Epstein and Thomas Brown
Updating the Foreign Intelligence Surveillance Act Orin Kerr
Choice or Consequences: Protecting Privacy in Commercial Information Timothy Muris and J. Howard Beales
Privacy, Surveillance, and Law Richard A. Posner
Data Mining and Internet Profiling: Emerging Regulatory and Technological Approaches Ira S. Rubenstein, Ronald D. Lee, and Paul M. Schwartz
Reviving Telecommunications Surveillance Law Paul M. Schwartz
Data Mining and the Fourth Amendment Chris Slobogin
Data Mining and the Security-Liberty Debate Daniel Solove
Privacy Versus Antidiscrimination Lior Strahilevitz
Article
The Reconstruction Congress David P. Currie
Comments
Reducing Fraud against the Government: Using FOIA Disclosures in Qui Tam Litigation Eric M. Fraser
Big Boys and Chinese Walls Daniel M. Sullivan
Book Review
Economics as Context for Contract Law
Framing Contract Law: An Economic Perspective
Victor Goldberg George S. Geis
June 24, 2008 at 7:31 pm
Posted in: Law Rev (Chicago), Law Rev Contents
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So Let’s Say Justice Scalia Writes D.C. v. Heller …
posted by Mike O'Shea
Tomorrow may be the big day. (Or we might have to wait again. At least I’m improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday’s opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court’s March sitting is D.C. v. Heller, and the only Justice who hasn’t written any majority opinions from that sitting is … Justice Antonin Scalia. Tom Goldstein thinks it’s “exceptionally likely” that Scalia was assigned to write the Court’s lead opinion in the most important Second Amendment case in American history.
What could that mean for the decision in Heller? As I’ll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.
In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment — what pro-rights scholars often call the “Standard Model.” He emphatically rejected the various “collective rights” theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone’s emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.’s high crime rates, far from supporting gun prohibition, were instead “[a]ll the more reason to allow a homeowner to have a handgun.” Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in “common use” at this time — though not arms that are “uncommon” for private citizens, such as machine guns.
June 24, 2008 at 5:53 pm
Posted in: Constitutional Law, Supreme Court
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Michigan Law Review, Issue 106:8 (June 2008)
posted by Michigan Law Review
Michigan Law Review, Issue 106:8 June 2008)
(Past issues are available on our website.)
SYMPOSIUM
Glucksberg and Quill at Ten: Death, Dying and the Constitution
Foreword
Yale Kamisar, Can Glucksberg survive Lawrence? Another Look at the End of Life and Personal Autonomy, 106 Mich. L. Rev. 1453 (2008)
Articles
Randy E. Barnett, Scrutiny Land, 106 Mich. L. Rev. 1479 (2008)
Erwin Chemerinsky, Washington v. Glucksberg Was Tragically Wrong, 106 Mich. L. Rev. 1501 (2008)
Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 Mich. L. Rev. 1517 (2008)
Cass R. Sunstein, Due Process Traditionalism, 106 Mich. L. Rev. 1543 (2008)
Steven D. Smith, De-Moralized:Glucksberg in the Malaise, 106 Mich. L. Rev. 1571 (2008)
Kathryn L. Tucker, In the Laboratory of the States: The Progress of Glucksberg‘s Invitation to States to Address End-of-Life Choices,106 Mich. L. Rev. 1593 (2008)
Herbert Hendin & Kathleen Foley, Physician-Assisted Suicide in Oregon: A Medical Perspective, 106 Mich. L. Rev. 1613 (2008)
Marc Spindelman, Death, Dying and Domination, 106 Mich. L. Rev. 1641 (2008)
June 24, 2008 at 12:47 pm
Posted in: Law Rev (Michigan), Law Rev Contents
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Inequality as a Political Phenomenon
posted by Frank Pasquale
When the great and good talk about inequality, they often presume that at its root is a skills differential between rich and poor. The former are supposedly much more educated than the latter, and this explains income gaps.
There are certain situations where returns to education are clear. However, a growing body of work makes it clear that political decisions are a key part of the equation as well. Consider Larry Bartels’s recent work (here reviewed by Dan Balz):
[T]here is a partisan pattern to the size of the gap between the rich and the poor. Over the past half-century, he concludes, Republican presidents have allowed income inequality to expand, while Democratic presidents generally have not.
Lest anyone think this book is a partisan hit job by a left-wing academic, Bartels goes to great pains in his introduction to preempt the counterattack he expects from critics on the right. “I began the project as an unusually apolitical political scientist,” he writes, noting that the last time he voted was in 1984, “and that was for Ronald Reagan.” He adds that in doing this work, “I was quite surprised to discover how often and how profoundly partisan differences in ideologies and values have shaped key policy decisions and economic outcomes. I have done my best to follow my evidence where it led me.”
No wonder “more than three-fourths (77.2 per cent) of US workers say they feel unrepresented by the political system on workplace issues.” They are likely becoming ever more skeptical of the “education remedy” for addressing inequality. Until the Neal Stephensonian nano-revolution is complete, we can’t all make our daily bread as manipulators of symbols. Adequate wages and health care for participants in the real economy–whatever their level of education–are a must.
June 24, 2008 at 12:31 pm
Posted in: Economic Analysis of Law, Education
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UPDATE: Law Professor Hiring: Statistics on JD Placement
posted by Daniel Solove
Last month, I posted a few posts with statistics on the success percentage of JD candidates from particular law schools seeking a job in legal academia. I based my percentages on Larry Solum’s law professor hiring report. Larry Solum has recently updated his stats, so I have updated mine.
UPDATED POST: Law Professor Hiring: Statistics on JD Placement
June 23, 2008 at 8:29 pm
Posted in: Law School (Hiring & Laterals)
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