Archive for the ‘Uncategorized’ Category

Physical Punishment and Parental Rights

posted by Elizabeth A. Wilson

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children.  This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases.  In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality.  (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes.  Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse.  Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.”   Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa.  (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

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  February 11, 2012 at 11:29 pm   Posted in: Civil Rights, International & Comparative Law, Tort Law, Uncategorized   Print This Post   No Comments

Super En Banc in the Ninth Circuit

posted by Gerard Magliocca

One thought about the future of the panel opinion in Perry (on same-sex marriage) is that the Ninth Circuit can choose to go en banc without a request from the parties.  Moreover, the Ninth Circuit has a unique procedure where it can go en banc from the en banc.  This “super en banc” involves all of the active judges, whereas the usual one only includes eleven of them.  So hold your horses on the prospects for the Supreme Court to hear this anytime soon.

  February 10, 2012 at 10:01 pm   Posted in: Uncategorized   Print This Post   4 Comments

Boston University Law Review, Volume 92: Issue 1 (January 2012)

posted by Boston University Law Review

 

Boston University Law Review

Volume 92 Number 1 – January 2012

CONTENTS

ARTICLES

Statistical Knowledge Deconstructed                                
Kenneth W. Simons
Page 1

The New Judicial Deference
Kim Lane Scheppele
Page 89

The Supreme Court and the Regulation of Risk in Criminal Law Enforcement
Jonathan Remy Nash
Page 171

ESSAY

The Geography of the Death Penalty and Its Ramifications
Robert J. Smith
Page 227

NOTES

Defining a New Punctilio of an Honor: The Best Interest Standard for Broker-Dealers    
Nicholas S. Di Lorenzo
Page 291

Showing Your School Spirit: Why University Color Schemes and Indicia Do Not Deserve Trademark Protection
Stephanie Frank
Page 329

Calling the Supreme Court: Prisoners’ Constitutional Right to Telephone Use
Peter R. Shults
Page 369

  February 10, 2012 at 3:48 pm   Posted in: Uncategorized   Print This Post   No Comments

What Does Jones Mean for the Exclusionary Rule?

posted by David Gray

Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts.  I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things.  Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing.  A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least.  More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we said to them over the past semester ought be wiped from their memories and to make decisions about whether to give credit on exams for answers that were right when written, answers that were wrong when written but are now right, both, or neither.  By contrast, the timing of Jones could not have been better for most of us, who were set to teach the two-prong test from Harlan’s Katz concurrence that week.  There was and continues to be some adjustment in what we teach about the Fourth Amendment, but at least it is all timely.  So . . . Thanks Your Honors, very considerate indeed!

It is tempting to jump into the substantive conversation about whether Jones is good, bad, neutral, or a complete enigma for the Fourth Amendment, but I will demur for now, mainly because I cannot find sure footing for anything beyond the obvious: Trespass is back baby! (If it was ever gone).  Instead, I’d like to wonder out loud about one of the adjustments I’m facing in class as we turn to our discussions of the exclusionary rule:  What, if anything, does Jones mean for remedies.  The issue was not briefed or argued in Jones, and each of the written opinions seems to assume without comment that the remedy provided by the district court—exclusion—was appropriate.  Howard Slugh wrote a bit about this over at the National Review, but there is certainly much more to say.

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  February 10, 2012 at 12:20 pm   Posted in: Uncategorized   Print This Post   No Comments

Free Speech Architecture – Responses

posted by Marvin Ammori

  February 10, 2012 at 11:49 am   Posted in: First Amendment, Symposium (First Amendment Architecture), Uncategorized   Print This Post   One Comment

Preserving Free Speech Architectures — vs. Designing New Ones

posted by Marc Blitz

Thanks to Marvin for giving us such a fascinating and well-done article to debate here – and to Danielle and Concurring Opinions for giving us a virtual space for that debate can happen. I’m grateful for the invitation to join in.

Marvin’s major target throughout his article is the “negative liberty” view of free speech. The First Amendment, he argues, is not only a barrier against official abuse. It is also a constitutional power source that provides a basis for a legislature to do things it otherwise couldn’t do, especially when it comes to safeguarding – or, if necessary, modifying – the “architecture” of spaces essential for communication.

I couldn’t agree more with the article’s claim that the First Amendment law needs to take stock of architecture – and that, it should do so, at least in part, with an eye to “ensuring that Americans have adequate physical and virtual spaces available for speech.” I also agree that, in many cases, freedom of expression relies not solely on courts alone to give it force, but rather on a more complicated division of labor: Courts play an essential role in blocking legislative and other government censorship, but it often falls upon other actors – legislatures, agencies, social movements, sub-cultures – to both protect and nourish individual liberty of thought and expression in other ways. Marvin’s argument impressively answers both of these needs in First Amendment jurisprudence.

This is a significant move, and one I hope gets a lot more attention. But ultimately, I’m not sure that answering such needs requires quite as radical a paradigm shift as the one Marvin proposes. More specifically, I’m not sure that making sufficient room for architecture and architecting requires that we dethrone the negative liberty theory, and replace it with an alternative grand theory of First Amendment architecture. Rather, I’d like to propose that perhaps something a bit less radical, and a bit more theoretically modest, will be good enough – an approach that is aimed not at reshaping First Amendment theory as a whole, but rather as fitting it to a relatively new and challenging problem: namely, the fact that freedom of expression has come to depend heavily on electronic communication networks and virtual environments run by private (rather than government) actors, and with technologies can change more rapidly and jarringly than more familiar free speech architectures.

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  February 9, 2012 at 1:32 am   Posted in: Uncategorized   Print This Post   No Comments

Free Speech and Foot Traffic

posted by Zephyr Teachout

I will be brief for now, though I have much to say about Marvin Ammori’s wonderful article and discussion. Thank you for inviting me to join.

Two quick thoughts for today:

First, the more I embed myself in public forum doctrine (a dangerous side effect of involvement with Occupy Wall Street), the more Dr. Seuss-like it starts to seem, the rhyme in my head being: “walking means talking and free speech is on beeches.” The short of it being that the likelihood of a court finding a public forum seems highly correlated with whether or not it is (a) a beach or (b) a public thoroughfare with foot traffic. In other words, there is a high likelihood that it is a place that few people want to listen to rants, let alone plan the next financial transaction tax. Organizing in mid-summer on the Coney Island beach sounds wonderful, but a little distracting, and sidewalks, as places go, are not conducive to long, extended meetings. Everyone is too busy bustling past. Two quick examples: In HERE, the Second Circuit put great weight on the question of whether Lincoln Plaza formed “part of the City’s transportation grid.” In First Unitarian, the Tenth Circuit makes plain that “Expressive activities have historically been compatible with, if not virtually inherent in, spaces dedicated to general pedestrian passage.”

Why the emphasis on sidewalks and walking? Parks, under this analysis, are more public forum-prone if people walk through them. Several things could be happening here. It could be that justices are not particularly good organizers: these days, sidewalks aren’t great for organizing, let alone for communicating to vast swaths of people. Second, it could be that the ghost of the public easement treading through the cases. Public easement analysis and public forum analysis share many of the same elements, and it may be, for reasons more related to legal culture than logic, that persistent use under claim of right by the public (as against the government or a private party) is be the most powerful claim for public forum. And why are beaches given a pass? It’s not because they are great places for Tea Party rallies—I’d suggest it might be because there’s a public easement there. Maybe what is really happening is property law, not constitutional law—the scope of easement must necessarily include the right to speak, and on public lands the public qua people can gain an easement against the public qua government.

Second, it strikes me that left and right, scholars tend to try to squeeze so much of their political philosophy squeezed through the thin reed of the First Amendment. Perhaps this is inevitable, but it seems so small to bear so much.

I will contribute more tomorrow!

  February 8, 2012 at 9:01 pm  Tags: Symposium (First Amendment Architecture)  Posted in: Uncategorized   Print This Post   No Comments

How and why to boycott Apple

posted by Brishen Rogers

In the wake of two Times articles and an episode of This American Life exposing working conditions among Apple’s suppliers, various bloggers and commentators have called for a consumer boycott. One respected tech blogger even called the conditions “barbaric,” arguing that “the blame lies not with Apple and other electronics companies—but with us, the consumers.”

I find the argument that Western consumers owe a moral duty to overseas workers quite compelling, particularly with regard to luxury goods such as Apple’s. See Iris Marion Young on that point. Yet I don’t think a traditional boycott is a good idea, for two basic reasons. First, it is self-defeating. Putting aside the irony that such a boycott cannot be organized without using Apple products, the collective action problem is huge. Eventually an iPhone will break, or get dropped in the bathtub, or a new app or album will be needed, and the best-intentioned consumers will defect.

Second, what exactly is the ask? Should Apple leave China? That would be bad for the workers. Should Apple demand higher labor standards? Sure … but what would they be? Apart from egregious safety violations or forced labor, someone needs to articulate demands, and define success, or the boycott will just drag on, and on, and on.

But here’s an idea worth considering: a one-day boycott in which people refuse to purchase anything from Apple, iTunes, or the App Store. The demand would be that Apple commit to rigorous, external monitoring of its suppliers. More after the jump…

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  February 8, 2012 at 6:28 pm   Posted in: Uncategorized   Print This Post   No Comments

Redistinguishing “Ought” from “Is,” or Why I Like the World Less Than Marvin Does

posted by Gregory Magarian

Let me be the latest to thank Marvin, for making an outstanding contribution to First Amendment scholarship that gives us this prime occasion for discussion, and Danielle, for making the discussion happen.

I want to take issue with an important part of Marvin’s argument.  Because I’m going to be contrary, I first want to emphasize not just my deep admiration for Marvin’s article but my enthusiastic agreement with what I see as his most important point – what he calls the “ought” point.  By contending that we should construe the First Amendment as mandating some measure of public access to the means of communication, Marvin is advancing a long tradition of scholarship and activism that treats the First Amendment not just as a prohibition on government censorship but also as a charter of democratic public discourse.  Marvin offers an especially smart, thorough, and contemporary take on that position, for which we should all be grateful.

My differences with Marvin go to the “is” part of his argument.  I don’t think First Amendment law has done nearly as much to advance access to the means of expression as Marvin suggests.  In fact, I think the law emphatically favors the negative liberty model that he seeks to marginalize or diminish.  I first want to sketch the basis for my contrary view on this point.  I’ll then briefly explain why I think the disagreement matters.

Marvin points to several levels or instances of First Amendment law as embodying some version of the access principle that he and I advocate.  My problem with a lot of his examples – the Court’s decision allowing states to mandate free speech in shopping malls; regulations governing access to the Internet; and I’d throw in here the Court’s decisions upholding the fairness doctrine and must-carry regulations – is that they aren’t First Amendment law.  They’re government actions that advance free speech, which is important, but they don’t use the First Amendment to enhance access.  The most interesting of these cases to me, the shopping mall case, just says that property rights don’t bar a state from imposing free speech norms on certain, big private concerns.  But when the Supreme Court faced the question whether the First Amendment required shopping centers to tolerate expressive activity, the Court said no.  So yes, First Amendment law sometimes steps out of the way of voluntary government efforts to advance speech interests over other interests.  For me, that doesn’t contradict or even complicate the negative liberty paradigm.

Marvin’s biggest example of his better First Amendment in action is the public forum doctrine.  Although I agree with Tim that the public-private distinction complicates any effort to reason outward from that doctrine, it’s still Marvin’s strongest example in my view.  As Marvin points out, the principle that government must endure free expression in (at least) traditionally open public spaces has been very important for the Occupy protests.

My problem with the public forum doctrine is that, contrary to Marvin’s argument, I do think it’s merely an exception to the Court’s prevailing tendencies on free speech – a weak and increasingly disfavored exception.  From the very beginning of modern public forum analysis, in the 1970s, the Court has hacked away at the doctrine.  It doesn’t give you the right to camp out in public parks to protest homelessness, or post political signs on municipal utility poles, or solicit donations for your church in airport concourses.  Those are just some restrictions the Court has recognized; Tim’s book talks about other, practical constraints courts have permitted law enforcement to impose, like shunting protesters at big political events into remote “free speech zones.”

All of this is getting worse.  If memory serves, the Supreme Court hasn’t handed down a significant public forum decision favorable to free speech rights in at least 15 years.  (I suppose you could count Snyder v. Phelps, the military funeral case, but Snyder doesn’t actually present the issue we’re talking about. )  What the Court’s First Amendment decisions have been doing almost exclusively for the past couple of decades, and predominantly for the past four, is advancing the negative liberty paradigm.  The most important example of this phenomenon, for me, is campaign finance regulation, where the First Amendment saves moneyed interests from government “censorship” that is at least arguably motivated by the very access principles Marvin and I favor.  But even in the increasingly rare cases where the Court in recent decades has invoked the First Amendment to benefit dissident or underfunded speakers, it has done so under the negative liberty model.

Why, if I’m right about any of this, does it matter?  Marvin’s “is” argument, among other things, represents a strategic gambit: You should accept his (our) normatively preferred view of the First Amendment, in part, because it already holds substantial sway in the world.  I don’t think it’s a sound strategy.  I think that First Amendment doctrine is generally in pretty appalling shape; that the doctrine’s problems run deep; and that those problems reflect a thoroughly reactionary legal and political philosophy.  I wish I either agreed with Marvin’s strategy or could propose an alternative that offered as much hope as he believes in his “is – ought” transposition offers.  But the best approach I can come up with is to keep beating the bad doctrine with intellectual and activist sticks until it breaks and opens up space for us to build something better.

  February 7, 2012 at 7:02 pm   Posted in: Uncategorized   Print This Post   No Comments

Free Speech Architecture – Legislated Spaces (#4)

posted by Marvin Ammori

The previous post in this series discussed the First Amendment’s requirement that individuals have access to at least some minimal spaces for reflection and discourse.

But access to speech spaces doesn’t stop at these limited areas required by courts interpreting the First Amendment. State and federal governments frequently choose to designate additional spaces as special zones for speech, and they do so with the intent of promoting specific speech goals. Far too often they attempt to close spaces for speech, something that Tim Zick has highlighted in his very important work. But, at the other end, when governments attempt to promote additional spaces for speech, the Supreme Court has sanctioned the pro-speech policies.

With judicial approval, the government has a long history of promoting access to speech spaces. Under the designated public forum doctrine, a state or federal government can open up additional publicly owned spaces for speakers. A government may also pass a statute guaranteeing free speech on certain privately owned spaces generally open to the public. In 1980, the Supreme Court held that states may declare private shopping malls essentially to be designated forums for speech. While the owner of the mall claimed that its speech rights were infringed by opening the space to others’ speech, and while the case conflicts with a notion of “negative liberty,” the decision was unanimous.

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  February 6, 2012 at 4:59 pm   Posted in: Uncategorized   Print This Post   No Comments

One more principle: Nondiscrimination

posted by Brett Frischmann

There is one principle that I would add to the five that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

  February 6, 2012 at 8:39 am  Tags: First Amendment, free speech, Supreme Court  Posted in: First Amendment, Symposium (First Amendment Architecture), Uncategorized   Print This Post   One Comment

Free Speech Architecture – Baseline Spaces for Speech (#3)

posted by Marvin Ammori

In previous posts about a recent article, I argue that it’s both descriptively inaccurate and normatively problematic to think that the First Amendment embodies merely a negative liberty—a freedom from government interference in matters of speech, even if government is acting to open additional avenues of speech for all. I claimed that what many people now consider doctrinal “exceptions” to the negative liberty model govern much of our speech and reflect overlooked substantive principles regarding the First Amendment’s role in ensuring individuals’ access to spaces for speech.

This post is about the first of the five principles that work together to reveal the First Amendment’s concern with availability of speech spaces.

As a matter of judicial mandate, individuals must have access to some basic, minimal spaces for speech. These include private spaces for reflection and opinion-forming and public spaces for debate.

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  February 5, 2012 at 12:39 pm   Posted in: Uncategorized   Print This Post   No Comments

First Amendment “Exceptions” and What the First Amendment Means (#2)

posted by Marvin Ammori

This is the second post laying out my argument in a recent article. I hope to post later on some of the great comments, or the excellent post by Brett Frischmann on the public domain as speech “infrastructure” and Timothy Zick’s insightful discussion of speech mediums and spatiality. I’m also going to hold off on posting about the current police crackdown on Occupy K Street in Washington, DC, a few blocks from my office, but here is a link to a live video feed of the eviction.

Today’s piece continues with the importance of what are conventionally perceived as “exceptions” to First Amendment doctrine. In yesterday’s post, I set out a common counter-argument to the claim that the First Amendment ought to be concerned with ensuring speech spaces for all. That counter-argument, in many guises, is that the First Amendment is only concerned with ensuring negative-liberty, or keeping government out of the speech market. While this argument has an is-ought fallacy at its core, it is pretty hard to argue with the perceived weight of what First Amendment precedent actually is.

But you are not persuaded yet by the counter-argument that the First Amendment is a negative liberty. You question the “is” underlying the entire argument. You do so the same way you would question any factual claim—you present counter-examples. If someone claims that all Smurfs are female, you might ask, “What about Hefty, Handy, and Papa?”

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  February 4, 2012 at 3:08 pm   Posted in: Uncategorized   Print This Post   4 Comments

Thoughts on Ammori’s Free Speech Architecture and the Golan decision

posted by Brett Frischmann

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

  February 3, 2012 at 4:38 pm  Tags: First Amendment, free speech, Intellectual Property, Supreme Court  Posted in: First Amendment, Intellectual Property, Uncategorized   Print This Post   No Comments

Who’s afraid of job training?

posted by Brishen Rogers

First off, a big thanks to my colleague Dave Hoffman and the other editors for the invitation to guest blog this month. I’m planning to post about my own research as well as other interests, including law and social movements, the meaning of and significance of the Occupy protests, and the complicated role of class in U.S. law and politics.

For now, though, a more topical post: the unemployment numbers are out today, and things are looking up: 243,000 new jobs created in January, lowering the national unemployment rate to 8.3%. Granted, the top-line number lacks granularity, and tends to understate the extent of un- and under-employment. But lower unemployment is a good thing. As the post-Keynesian Joan Robinson once quipped, “The only thing worse than being exploited by capitalism is not being exploited by capitalism.”

What’s intriguing to me is that while Obama, Romney and Gingrich’s proposals regarding unemployment differ in many ways, each has endorsed job training as an anti-unemployment strategy. Obama stirred controversy last year when he praised a Georgia program in which firms could “hire” and train unemployment recipients but not pay them for the first eight weeks.  Less controversially, the DOL recently granted $500 million to community colleges to help retrain and place the unemployed.

There’s just one problem: it’s not at all clear that job training does much good, particularly in a down economy.

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  February 3, 2012 at 12:37 pm   Posted in: Uncategorized   Print This Post   No Comments

Negative Liberty and What the First Amendment Ought to Be

posted by Marvin Ammori

Two days ago, I posted about a law review article I’m presenting next Friday at a symposium. The symposium is dedicated to “First Amendment Challenges in the Digital Age.” Danielle was generous enough to host a little blog-athon about the topic and invite me and some of our friends. (If I may speak for Marc, Tim, Brett, Greg, and Zephyr on one thing: thank you Danielle! And thank you Concurring Opinions.)

I planned to write a few “readable” posts about the article I’m presenting. This is the first.

I’ll begin with a few basics obvious to most CoOp readers but maybe not to everyone. Read the rest of this post »

  February 3, 2012 at 12:01 pm   Posted in: Uncategorized   Print This Post   8 Comments

Vaclav Havel: Concluding Thoughts

posted by Mark Edwards

It’s been a joy visiting here at Concurring Opinions again – thank you to the Co-Op crew for the opportunity. I’m going to take my leap month early this year and consider this January 32nd so I can finish up the Havel posts.

Havel’s Presidency had its up and downs, but what is stunning to me is that he managed it all. There was simply no precedent for a transition of power in Czechoslovakia. Try to imagine, if you can, arriving in the White House tomorrow, to find it abandoned. You have no political experience. You are in charge of the country, and it is convulsing in revolution. Where do you begin? How do you begin?

Havel did what he knew best: he sat down to write, in this case not a play or essay, but a constitution. Havel was the principal architect and drafter of the Czech Charter of Fundamental Rights and Freedoms. As in the case of much of Havel’s writing, it is striking in its parsimony. Much of the bitter history of totalitarian and post-totalitarian society is starkly if implicitly revealed in each articulated principle:

Democratic values constitute the foundation of the state.
The freedom of thought, conscience, and religious conviction is guaranteed.
The inviolability of the person and of her privacy is guaranteed.
A person’s dwelling is inviolable. It may not be entered without the permission of the person living there.
Only a law may designate which acts constitute a crime.
Censorship is not permitted.
Everyone who suffers from material need has the right to such assistance as is necessary to ensure her a basic living standard.
Everyone has the right to the protection of her health.
Everyone has the right to education.
Everyone has the right to demand that her human dignity be respected.

A few final thoughts on Havel: He was not anti-communist. He was horrified by the effects of a system, created by and embodied through individuals, which had encouraged people to avoid two fundamental and ultimately inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. He did not ultimately seek a political revolution, but rather an existential one. The type of existence he imagined was incompatible with post-totalitarianism, so a political revolution would be an inevitable by-product of that existential revolution in post-totalitarian states.

But Havel’s critique was hardly limited to communist post-totalitarian regimes; it applied with equal force to capitalist, democratic systems, if such systems encouraged people to avoid their two fundamental and inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. In particular, Havel saw in the consumerist West a dangerous phenomenon: individuals attempting to sate themselves through by material satisfactions, to shirk moral responsibility to themselves, each other, and for the actions of their state. Havel saw that the he need for an existential revolution in such a society is just as great, and perhaps as inevitable, since people probably cannot withstand the internal pressure of alienation from themselves forever. In a consumerist society, we consume with increasing speed but can never quite consume enough to be satisfied. Eventually, perhaps, it will become clear that one cannot avoid one’s moral responsibilities with more and better things. As Havel forecast with amazing prescience about the sudden collapse of the East European regimes, such systems are vulnerable to “a sudden explosion of civic unrest, a sharp conflict inside an apparently monolithic power structure, or simply an irrepressible transformation in the social and intellectual climate.”

I, for one, hope that time is coming. And when I say hope, I mean hope as Havel meant it: “not the conviction that something will turn out well, but the certainty that something makes sense, regardless of how it turns out.”

 

  February 1, 2012 at 6:21 pm   Posted in: Uncategorized   Print This Post   10 Comments

Lebron v. Padilla cont.

posted by Elizabeth A. Wilson

I received an interesting question asking how my analysis is informed by the recent trend in Bivens cases (outside the national security context) to “assimilate the Bivens inquiry to the Court’s now restrictive jurisprudence on implied statutory causes of action.”  Here is a brief answer. I’m not in general agreement with an approach conflating implied constitutional and statutory causes of action as, say, two variants of federal common law, because I do believe it makes a difference whether the source is a statute or the Constitution. But even if you accept the premise of the more restrictive approach, it is problematic that due regard is not being given to the extensive activity of Congress with respect to Bivens that lies between legislating and not-legislating, between creation of an express cause of action and silence.     Read the rest of this post »

  January 31, 2012 at 8:39 pm   Posted in: Civil Rights, Constitutional Law, Tort Law, Uncategorized   Print This Post   No Comments

Vanderbilt Law Review, Volume 65, Number 1 (January 2012)

posted by Vanderbilt Law Review

Vanderbilt Law Review, Volume 65, Number 1 (January 2012).

The Vanderbilt Law Review is proud to announce the publication of our January issue.

 

ARTICLES

Darian M. Ibrahim, The New Exit in Venture Capital, 65 Vand. L. Rev. 1 (2012).

Lloyd Hitoshi Mayer, The “Independent” Sector: Fee-for-Service Charity and the Limits of Autonomy, 65 Vand. L. Rev. 51 (2012).

Timothy Zick, Falsely Shouting Fire in a Global Theater: Emerging Complexities of Transborder Expression, 65 Vand. L. Rev. 125 (2012).

 

NOTES

Caroline Cecot, Blowing Hot Air: An Analysis of State Involvement in Greenhouse Gas Litigation, 65 Vand. L. Rev. 189 (2012).

Mike Dreyfuss, My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad, 65 Vand. L. Rev. 249 (2012).

Are you interested in writing a response to one of these pieces? Visit Vanderbilt Law Review En Banc for more details.

  January 31, 2012 at 5:31 pm   Posted in: Law Rev (Vanderbilt), Uncategorized   Print This Post   No Comments

Rufus Peckham

posted by Gerard Magliocca

In doing some research on Justice Rufus Peckham (the author of Lochner), I came across two fascinating facts that I didn’t know. The first is that his older brother, Wheeler, was nominated to the Supreme Court in 1894 (Rufus was named in 1895) but was unable to win Senate confirmation. We’ve had brothers on the same federal court–Richard and Morris Arnold in the Eighth Circuit–but never on the Supreme Court. The second is that he is the last Justice nominated by a Democratic President and confirmed by a Republican Senate.  When you think about that, it’s pretty astounding–not since 1895!  (Indeed, President Cleveland is the only Democratic President who picked Justices when Republicans controlled the Senate.)

  January 31, 2012 at 3:34 pm   Posted in: Supreme Court, Uncategorized   Print This Post   3 Comments

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