Author: Gerard Magliocca

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Yes, Prime Minister on Health Care Reform

450px-big_ben-150x1501Sir Humphrey Appleby:

“Cigarette taxes pay for a third of the cost of the National Health Service. We are saving many more lives than we otherwise could because of those smokers who voluntarily lay down their lives for their friends. Smokers are national benefactors.”

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Article on Free Speech and Terrorism

I want to draw your attention to a paper by my colleague Shawn Boyne that examines the tension between free speech values and counterterrorism efforts.  Shawn is doing some terrific work on comparative criminal law issues.  Here is the Abstract:

Since the 9/11 attacks in 2001, the United States and many European states have sought ways to disrupt the radicalization process that leads individuals to join the call to Islamic jihad. This strategy has included attempts to prosecute individuals who post or help to circulate calls to jihad that appear on the internet. While this speech is unpopular, it is an open question whether the speech, standing alone, incites violence. More importantly, these prosecutions may both chill speech and open the door to wider governmental efforts to regulate unpopular speech. To explore the tension between security and civil liberties triggered by such strategies, I analyze three recent criminal cases in Germany, the United Kingdom, and the United States. I examine the prosecution strategies and the legal hurdles that prosecutors faced in securing convictions. I show that, in an effort to surmount the legal problems inherent in prosecuting these cases, prosecutors have broadly branded the defendants as terrorists and evil-doers. The broader impact of these strategies, risks shaking a core element of democratic governance.

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A Constitutional Convention

“I hope we won’t lose sight of the main target in a debate over which route we take to amend the constitution.  Some want to call a constitutional convention.  Others want to go the legislative way with Congress passing an amendment to then be ratified by the states.  Among the latter, voices have been raised warning of danger that a constitutional convention would open the door to all manner of proposed amendments.  In my view those who warn of this show little faith in our democratic procedures.”

So who said this?  Sandy Levinson?  William Jennings Bryan?

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A New Discovery About FDR’s Court-Packing Plan

120px-FDRfiresidechat2The biggest thrill that a researcher can have (and that is not meant as an ironic statement) is to find something new, interesting, and unexpected about a famous event.  I think that I have done that with respect to FDR’s 1937 Court-packing plan in the course of my inquiry into the Child Labor Amendment.

Consider the following paradox.  In February 1937, FDR proposed his plan to expand the size of the Court.  One of his arguments for that plan was that pursuing constitutional change through Article Five amendments would take too long or be futile because of the requirement that 3/4 of the states had to ratify.  Exhibit A for that point was the Child Labor Amendment, which was passed by Congress in 1924 and was still languishing unratified thirteen years later.

Two weeks before proposing his judicial “reorganization,” however, FDR wrote a public letter to all of the Governors in the 19 states that had not ratified the Child Labor Amendment and urged them to do so.  He was also active in the debate on the Amendment in New York (which was one of the 19 states), writing public telegrams to Mayor LaGuardia, Governor Lehman, and others on behalf of ratification.

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Where’s the Butter?

img_04831After returning from Peru (see right), my thoughts now turn to the beginning of class at the end of the month.  I’ve always started my 1L courses with a meat-and-potatoes description of the subject, but this year I think I may go with a more whimsical approach.  Specifically, I’m going to use this old chestnut (that I got from Chris Matthews but is not original to him.)

Joe Biden is at a restaurant having dinner.  He says to the waiter, “I’d like some butter for my bread.”

The waiter responds, “Well, we’re short-staffed tonight, but I’ll get it for you as soon as I can.”

Five minutes go by and there is no butter.  Biden is getting aggravated, and when he sees the waiter across the room he says, “Hey, I still have no butter.  Do you know who I am?”

The waiter looks up and says, “Well, do you know who I am?”

“No,” Biden answers.

“I’m the guy with the butter.”

As a lawyer, you’re either representing the one with the butter or  the one who wants some.

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The White Whale of Comprehensive Reform

120px-sperm_whale1bTwo years ago I wrote an article about patent trolls that said the problem (if you think it is a problem) could not be solved by a broad legislative approach.  Trolls only affect some industries (mostly software and technology.)  Business groups that rely on patents but are not burdened by opportunistic licensing, therefore, would always oppose a sweping bill because it could not help but might harm them.  Even though the patent reform proposal first introduced in 2007 is now a shadow of its former self, this watered-down legislation still can’t get through Congress because of opposition from drug companies and others.

This brings me to health care.  Unlike some of my co-bloggers, I do not support the proposals coming out of Congress.  I am generally suspicious of anything with the word “comprehensive” in it and want to head for the hills when I hear any President say “we cannot afford to do nothing.”  Most of the time, we actually can afford to do nothing.  Moreover, the alternative to a broad overhaul is not nothing.  It’s incremental change.

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Congressional Government

This was the title of Woodrow Wilson’s book written in the 1880s, in which he argued that parochial congressional committee chairs wielded too much power.  During the Bush Administration, there was a great deal of criticism about unaccountable executive power.  President Obama vowed to take a different tack.  The result is an unusual amount of deference to Congress on issues such as the stimulus or health care.  Perhaps my assessment is premature, but that is not working out well for the reasons that Wilson described long ago.  Members of Congress have a difficult time looking beyond the interests of their district, and without presidential leadership their legislation can become incoherent.

I was struck the other day by this thought.  Obama was heralded for his oratory during the campaign. So how many Oval Office Addresses has he given to rally the country in support of his plans?  None.  Sure, he’s done lots of other media, but none of it carries any punch that might put pressure on Congress from the voters.  Presumably this is because Obama is trying to play nice in the hope that this will be more productive.  But it’s a strategy that FDR or Ronald Reagan would not (and did not) follow.

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The Takings Clause

120px-sign_of_the_times-foreclosure

One interesting feature of the Sotomayor hearing was the number of questions she was asked about Kelo.  I am not a property scholar (I find that blogging often requires me to qualify comments by saying “I’m not an expert on this”), but I find the policy debate over Kelo perplexing.  Let us assume that Kelo was right in holding that a constitutional “public use” if a state or local government takes property (say, somebody’s house) for a private development project such as a shopping mall.  Should state law be amended to bar that practice?

Well, the ongoing foreclosure crisis suggests that the answer is no.  There are many cities that  now have swaths of empty homes (including the house next to mine.)  And this is imposing significant costs on communities, including a loss of tax revenue, declining property values, and higher levels of crime.  If a private developer wants to use a block of these houses to build a commercial project, why should the use of eminent domain to facilitate that be prohibited?  Put another way, which is more problematic — the harm that results when people who live in homes are forced to move against their will (and might be cheated on the value of that property, as often happens when “just compensation” is awarded) or the harm that results from empty houses that just sit there when a transaction cost solution (i.e. eminent domain) would bring them back into productive use?

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The Confirmation Hearings

I wanted to make two (well, maybe three) observations about the hearings for Judge Sotomayor. Contrary to some of the hand-wringing I’ve read about how these affairs are now a meaningless ritual, I think we learn quite a bit about what is on people’s minds with respect to constitutional doctrine.  For example, there were many questions about property rights (as others have noted), which is unusual as compared to prior hearings and suggests a heightened interest that might be reflected in the takings case that the Court will be hearing next term.

One thing that struck me was the consensus among the Senators about the incorporation of the Second Amendment.  Senators from both parties endorsed the idea.  Nobody rejected it.  That’s a pretty telling sign of where the political and legal culture is on that one.

The other point, which also came up in the Roberts and Alito hearings, involves the canonization of Justice Jackson’s concurring opinion in Youngstown.  Everyone, it seems, loves his analysis.  This raises an important question —  why did that happen?  There must be an interesting story there, and I’m going to start looking into that.