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Balkinization
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Saturday, February 11, 2012
Contraceptives and the Politics of Recognition
Joey Fishkin
The Affordable Care Act requires all health insurance plans (except grandfathered plans) to cover the entire cost of certain preventive medical services, with no co-pays. This list includes, among many other things, birth control. This has led to a massive political firestorm. Should all women, regardless of employer, have access to birth control with no out-of-pocket costs? Or should religiously affiliated employers with religious objections to birth control be exempt from this requirement as a matter of religious freedom? Understanding the Right’s Birth Control Rage
Ken Kersch
A tutorial in ten minutes. Friday, February 10, 2012
What is Rick Santorum's position on masturbation?
Sandy Levinson
According to the Sacred Congregation of the Faith of the Roman Catholic Church, Thursday, February 09, 2012
On the Servicing Settlement
Frank Pasquale
Today, Jon Walker tweeted that "No one man has done more to protect the power of the financial elites than President Obama." Is that a fair assessment? Here are some views expressed on the mortgage settlement today: Proposition 8's Continuing Constitutionality?
Jason Mazzone
By finding Proposition 8 to violate the Equal Protection Clause solely on the ground that it withdrew the right of marriage that gays and lesbians previously possessed in California (as a result the earlier state supreme court's decision), Perry v. Brown produces a curious result. It appears to leave Proposition 8 partially intact. Wednesday, February 08, 2012
Marriage and the Ninth Circuit: Next Up, Washington
Jason Mazzone
Today in Washington state the house approved a same-sex marriage bill. The state senate approved the same bill last week. The governor promises to sign the bill into law and it will take effect 90 days thereafter. Washington state has had domestic partnership laws since 2007. Opponents of the marriage bill say they plan to gather signatures for a ballot measure to overturn the legislation. After yesterday's decision of the Ninth Circuit panel in Perry v. Brown, would a ballot measure repealing the law violate the Equal Protection Clause of the U.S. Constitution? Perhaps the answer depends on whether the marriage law has actually taken effect at the time of repeal (it could for example be stayed pending the outcome of the ballot measure). But one thing at least is clear: just 24 hours after Perry, we know the decision cannot easily be contained in California.
Understanding Perry v. Brown
Marty Lederman
Jason Mazzone asserts that the Ninth Circuit's decision yesterday in Perry v. Brown was "dishonest and foolish." It is neither. Judge Reinhardt's rationale did not, as Jason argues, rest upon any misreading of Romer v. Evans, nor did the panel hold, as Jason would have it, that "if the state gives you something it can't later take it away." Moreover, in declining to reach out to decide whether a state can ever limit civil marriage to heterosexual couples, the panel not only did not act foolishly; it acted appropriately, since resolution of that question--one that would affect the marriage laws in many states--was not necessary in order to resolve the case. (For the proposition (pp. 5-6) that “[b]roader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court," Judge Reinhardt provides a lone, apt citation, one that I commend to Jason and others who are so eager to have the courts resolve momentous and deeply contested legal questions in one fell swoop, even where the case in question does not require such resolution.) Marriage and the Ninth Circuit: Collateral Damage
Jason Mazzone
In his opinion yesterday in Perry v. Brown, Judge Reinhardt devotes 15 pages to explaining why reasons offered in support of Proposition 8 (childrearing and responsible procreation, proceeding cautiously, protecting religious freedom, and preventing children from being taught about same-sex marriage in schools) are irrational. He then concludes that, absent any such legitimate reason, Proposition 8 must have arisen out of animosity toward or disapproval of gays and lesbians and such motivations cannot sustain the law. Yet by focusing the equal protection analysis on the revocation of previously existing rights, Reinhardt unintentionally puts on the table another, potentially legitimate, explanation for Proposition 8 apart from animosity and disapproval. The marriage right that existed for a short period in California arose because the state supreme court read the state constitution to require the state government to extend marriage to same-sex couples. Given that context (which Reinhardt ignores), Proposition 8 could reasonably be understood as the people of California correcting the state supreme court's interpretation of the state constitution. Somebody in favor of same-sex marriage might at the same time be opposed to judges decreeing it--and therefore have voted for Prop 8. To be sure, a "pure correction" of the state court's decision would have been a proposition specifying that no provision of the state constitution requires the government to extend marriage to same-sex couples, thereby leaving the issue to the legislature to decide in the normal course of politics. But Californians angry at what they perceive to be an activist court (and yet generally in favor of same-sex marriage) might well have endorsed stronger medicine (no same-sex marriage in the state at all) in order to push back firmly against overreaching judges. Reinhardt sees no rational reason for Proposition 8. But his own approach in the Perry decision appears actually to create one.
Tuesday, February 07, 2012
Marriage and the Ninth Circuit: Thumbs Down
Jason Mazzone
My initial reaction to the Ninth Circuit panel's decision today in Perry v. Brown is that it is dishonest and foolish. It is dishonest because it warps the relevant background and misrepresents Romer v. Evans to reach the conclusion that Romer requires invalidation of Proposition 8. It is foolish because it misses--indeed evades--a ripe opportunity for a straight-up ruling that a ban on same-sex marriage violates the federal Constitution, a ruling that has a better than even chance of being upheld by the Supreme Court. Monday, February 06, 2012
How the Cold War Matters to the War Powers Debate
Mary L. Dudziak
This is the second in a series of posts about my new book, War·Time: An Idea, Its History, Its Consequences, kicked off when Eric Posner so helpfully generated an on-line discussion. He dismisses an argument about Cold War statebuilding because "it would be hard to exaggerate legal scholars’ obsession with the rise of executive power, going back at least to the Nixon administration, indeed to the New Deal." Sunday, February 05, 2012
What Eric Posner Misses About War Time
Mary L. Dudziak
Eric Posner has spent much of the last decade criticizing the liberal legal response to post-9/11 government policies. In his review of my new book, he sticks to the script. But this leads him to miss a critical point: the book does not reinforce post-9/11 liberal thought but instead criticizes it. Friday, February 03, 2012
The conservatism of Elizabeth Drew
Sandy Levinson
I've been swamped this past month, and even now don't really have the time I'd like to return to posting on my favorite Blogsite, especially since I have a number of pent-up postings on such topics as Haley Barbour's pardons, what it means to call reason the "slave" to the passions, and other such topics. But I couldn't restrain myself when I read Elizabeth Drew's Can We Have a Democratic Election? in the current (February 23) New York Review of Books (available only to subscribers, I'm afraid). I agree with much of what she says about the corrosive impact of SuperPacs (and the roles played by such billionaires as Sheldon Adelson). But I am most interested in--and dismayed by--her attack on those who would go after Citizens United by trying to amend the Constitution. It's not that I necessarily support all of the proposals that are out there; many are undoubtedly dubious and, perhaps, even pernicious in their implications. But that really isn't the basis of her argument (or what triggers this post). Instead, she writes, "To submit the Constituiton to the political process is to put in danger of being opened up to the popular movements of the moment." To call for a constitutional amendment, she writes, "sets a very bad precedent. The Founders in Philadelphia wisely [my emphasis] made it difficult to change this core document.... They sought to protect the Constitution from being subject to shifts in popular opinion...." Iguanas and the Rule of Law at Guantánamo
Guest Blogger
Liza Goitein Wednesday, February 01, 2012
The Lincoln Conspiracy Trial
Gerard N. Magliocca
I am now writing the portion of the Bingham biography that deals with his role as one of the prosecutors in the military trial of John Wilkes Booth's alleged co-conspirators. When I began my research two years ago, I thought that this would be a terrific stand-alone chapter that would not shed much light on Bingham's constitutional views. I was wrong on the latter point. Tuesday, January 31, 2012
First Amendment Challenges in the Digital Age
Marvin Ammori
Next Friday, February 10, the Stanford Technology Law Review is holding its annual symposium, and this year's topic is an important one: First Amendment Challenges in the Digital Age. Of the three panels, one is devoted to privacy and another to copyright. The third is devoted to a long, ambitious law review article ... written by me. The panel participants joining me to discuss the article are two of the nation's great free speech scholars--Harvard's Yochai Benkler and the University of Virginia's Lillian BeVier. The article is called First Amendment Architecture. In it, I argue that the First Amendment plays an important role in ensuring adequate physical and digital spaces for speech, and that this role is not some exceptional outgrowth of First Amendment doctrine but is central to understanding what the First Amendment "means." While I submitted the paper for publication in February 2011, the subsequent events of the Arab Spring, the Occupy Movement, and the fight over SOPA/PIPA have all highlighted the significance to democratic speech of open physical and digital spaces.
I am using the occasion of this symposium panel to blog about First Amendment Architecture. Law review "articles" generally add up to 30,000 words, or 60 pages, and have hundreds of footnotes and use semi-colons; this article is definitely a creature of that genre. My language in the piece is simple I think, but the blog genre is better for discussing the same arguments in bite-sized, digestible pieces. Several people have already blogged about my article briefly (saying nice things even), such as law professors Tim Wu (calling it "important work") and Susan Crawford (calling it "a terrific article"), as well MSNBC host Dylan Ratigan (saying it addresses "important ... First Amendment questions") .
This first post is more about the amazing panel and about why I chose to research and write this article. The next pieces will present the article's arguments more fully.Read more »
Sunday, January 29, 2012
More on Corporations as Slaves
JB
Following my previous post on why for-profit corporations cannot be persons for purposes of the Thirteenth Amendment, Sandy Levinson reminded me of another important fact. Not only can people buy and sell for-profit corporations like slaves, but they can also liquidate them. In the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave's life. On the other hand, people who were not owners (or in the position of an owner, as Mann was in the case) could be sued for injuring or killing a slave. Saturday, January 28, 2012
Corporations and the Thirteenth Amendment
JB
Yesterday Columbia Law Review held a symposium on the Thirteenth Amendment, at which Sandy Levinson and I presented a paper we are currently working on (I hope to post a draft soon). Wednesday, January 25, 2012
Bad Ads in Mass.
Joey Fishkin
Following up on Mark’s post, a further problem with the Brown-Warren agreement is that not all ads “for” or “against” a candidate make their case effectively. Some are wholly ineffectual and others are actually counterproductive, indirectly reminding voters of why they disagree with the ad’s message. Monday, January 23, 2012
What Am I Missing?
Mark Tushnet
According to reports, Elizabeth Warren and Scott Brown have reached an agreement -- the near-final version of which is, with grammatical warts and all, available here -- expressing their opposition to "outside" spending in connection with their campaigns for the Senate. As summarized, the agreement is this: "Brown said his campaign would have to donate 50 percent of the value of any spending on his behalf to a charity of Warren’s choice, and she would have to do the same to a charity of his choosing if he was targeted with an outside ad benefitting her." On its face, this agreement seems to turn control over campaign advertising to outside groups: Say Brown and Warren each have $10 million to spend on their own advertising. All that outside groups have to do to gain complete control over campaign messaging is to spend $20 million (each, for Brown and Warren). Favorite Son/Daughter Candidates
Gerard N. Magliocca
Normally I wouldn't post on something that has nothing to do with law, but in this case I can't resist. If Newt Gingrich wins the Florida primary and turns the campaign for the GOP nomination into a long fight, I wonder whether we might see an old-style tactic reemerge; namely, local politicians running in their home state to win delegates and thereby prevent anyone from getting a first-ballot majority. For example, Mitch Daniels could run in the IN primary in May, Mike Huckabee could run in the AR primary in May, Mitch McConnell could run in the KY primary in May, etc.
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Books by Balkinization Bloggers
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |