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Balkinization
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Tuesday, April 07, 2009
Vote for Me (Maybe)
Mark Graber
I have just been nominated to be on the Governing Council of the American Political Science Association. Below is my assessment of the some of the issues facing the discipline. As those who have looked at this blog today may note, I had some trouble getting this entry to post correctly. My apologies to Charles for deleting his comment in my attempt to improve matters. Better late than never: the scales fall from former-Sen. Stevens's eyes
Sandy Levinson
I am very glad that Attorney General Holder has dropped the charges against former Senator Ted Stevens. But what most intrigues me about a story posted in today's NYTimes noting that the federal judge in the case has ordered an investigation of the DOJ attorneys for possible criminal misconduct is Stevens's own reaction: Politicizing the Justice Department?
Mark Tushnet
People who should know better have been writing op eds and blogging about the politicization of the Department of Justice, as illustrated, they say, by Attorney General Holder's "overruling" an opinion of the Office of Legal Counsel that legislation giving the District of Columbia a seat in the House of Representatives would if enacted be unconstitutional. The scare quotes and "if enacted" indicate qualifications that any lawyer with an ounce of brains would take into account in thinking about these events -- even more so when, as some have said, somehow the President's duty to care care that the laws be faithfully executed has been violated (or is about to be violated). Who’s Afraid of International Law?
Guest Blogger
Mary Ellen O’Connell Monday, April 06, 2009
Why Tax Deductions make our Economy Less Stable
Yair Listokin
Stabilizing the business cycle through fiscal policy is very much in vogue. President Obama’s stimulus package and budget proposal prescribe historic budget deficits in an effort to mitigate the impacts of the economic crisis. The goal is that government spending will replace the demand that vanished with the bursting of the credit and housing bubbles. With this backdrop in mind, I recently posted an article on SSRN entitled “Tax Expenditures and Business Cycle Fluctuations” that applies Keynesian insights on macroeconomic stabilization to the income tax code. The OpenRedistricting Project
Heather K. Gerken
As Balkinization readers know, I've written a great deal about what I call the "here to there" problem -- small-bore institutional changes that would smooth the path for reform, making bigger and better reform possible. One of the areas I've focused on is redistricting. Below is an excellent idea from Travis Crum, a Yale student, who proposes another strategy for raising awareness of the problem and engaging citizens in the solution. This software would then be disseminated via a social networking site, allowing users to develop, share, and evaluate redistricting proposals. Based on sites like Digg and Wikipedia, this Redistricting Wiki would be user-driven and accommodate a wide range of interest and expertise. The Redistricting Wiki would permit anyone who could operate a Google Earth-style program to design their own districts. Site administrators would post every state redistricting proposal and invite interested groups, such as the NAACP, to submit their own schemes. Speaking hypothetically, the homepage would display a "State of the Day" and rank plans according to an algorithm, factoring in compliance with redistricting criteria, user-generated rankings, a plan's number of views, etc. A user could sort the plans by various criteria, such as competitiveness or compactness. Moving from passive to active participant, a user could develop a plan from scratch or manipulate an existing one. Next, the user decides whether to submit their plan for public display and scrutiny. Other users could then critique the plan and give it a ranking. Repeating this process enough times would clear out gerrymandering’s smoke-filled rooms and bring the wisdom of crowds to the process. This platform would be a profound step in educating voters about redistricting. A centralized hub for the nation's redistricting information would transcend the inherent localism of the decennial process, showing citizens where their state's redistricting plan falls in a nationwide ranking. Similar to election night coverage, television broadcasters could use this program to explain redistricting to viewers, generating even greater interest in the site. Moreover, CNN's successful embrace of Twitter and Facebook evidences ordinary citizens' desire to express their political views on social networking sites. The OpenRedistricting Project would also strengthen good governance institutions. While Heather Gerken's shadow redistricting commissions and Sam Hirsch's redistricting contests are solid ideas, they run the risk of being controlled by elites. Social networking sites, however, assemble unprecedented numbers of participants in a decentralized decision-making process. Posting on the Redistricting Wiki would enhance a commission's legitimacy, linking its findings and conclusions to a broad popular base. In turn, commissions could provide much needed leadership, publicity, and funding in the early stages of the project. The dynamic collaboration between shadow commissions and the OpenRedistricting Project would go far beyond comparing proposals. A blog or message board would create a forum for citizens to speak out about their state's redistricting process. Mock elections would be held between competing plans. Contests, with or without prize money, would challenge people to design a redistricting scheme that best achieved a certain objective. If politicians are tweeting during a presidential address to Congress, imagine the additional exposure the redistricting process would receive. Although this may seem fanciful at the moment, remember that Wikipedia was inconceivable as recently as the last redistricting cycle. Whether run by a major law firm or a group of college friends, social networking sites are revolutionizing the way information is distributed and consumed. While the dearth of freely available partisan data poses a problem for this technology, the very existence of the site could instigate the citizen mobilization needed to convince state and local governments to gather and/or release this information. Additionally, the Redistricting Wiki could create an army of free labor to refine the open source software using Google Code or SourceForge, sustaining the project into the 2020 cycle. The OpenRedistricting Project won't destroy gerrymanders, but it may create something to fight them: wikimanders. Travis Crum, Class of 2011, Yale Law School Posted 2:18 PM by Heather K. Gerken [link] Holding Koh and Johnsen Hostage to a Cover Up of Torture
JB
Over at the Daily Beast Scott Horton tells us that behind the fierce Republican opposition to the the Koh and Johnsen nominations is a desire to prevent the Obama Administration from revealing key torture memos. Thursday, April 02, 2009
Lying about Dawn Johnsen
Andrew Koppelman
Dawn Johnsen, President Obama’s nominee to head the Office of Legal Counsel, has been accused of misrepresenting a position she took in litigation, and I have been cited as authority against Prof. Johnsen. On this basis, Republican senators are considering a filibuster against the nomination. Dear Senator Specter, It has come to my attention that a footnote in my article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Northwestern U. L. Rev. 480 (1990), has been cited for the proposition that the brief that Dawn Johnsen wrote in Webster v. Reproductive Health Services claims that the Thirteenth Amendment guarantees a woman’s right to abortion. The Webster brief to which my article referred, however, was not the brief submitted by Dawn Johnsen but was an entirely different brief. The footnote in question, note 24 on p. 484, cites a brief in Webster, filed by the California National Organization of Women and other organizations, and notes that this is an updated and revised version of a similar brief filed by California NOW in Roe v. Wade. In my article, I argue that “[w]hen women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the thirteenth amendment.” While she was chief counsel of the National Abortion Rights Action League, Professor Johnsen submitted an amicus brief in Webster on behalf of “Seventy-Seven Organizations Committed to Women’s Equality.” The brief argues that the state restrictions at issue in the case violate the Fourteenth Amendment’s protection of individual liberty. There is one footnote in the brief, note 23, which states: While a woman might choose to bear children gladly and voluntarily, statutes that curtail her abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state's asserted interest. Indeed, the actual process of delivery demands work of the most intense and physical kind: labor of 12 or more grueling hours of contractions is not uncommon. To say that one thing is “disturbingly suggestive” of another is hardly the same as saying that it is identical to that other thing. Johnsen makes this point to support her Fourteenth Amendment claim, by showing the serious nature of the liberty interest that is at stake. The brief does not argue that the state laws violate the Thirteenth Amendment. This is the only time the Thirteenth Amendment is ever mentioned in her Webster brief. Nowhere in my article do I cite, much less discuss, the brief written by Johnsen. I was fully aware of Johnsen’s brief when I wrote my article, but decided not to mention it because, unlike the California NOW brief, her brief does not make or endorse a Thirteenth Amendment argument. Sincerely, Andrew Koppelman Cc: The Honorable Patrick Leahy When questioned about the brief, Prof. Johnsen correctly denied ever making a Thirteenth Amendment argument. This led many writers in the blogosphere, most prominently columnist Andy McCarthy at National Review Online, to repeatedly accuse her of misrepresenting her position. These claims are recklessly irresponsible. Prof. Johnsen is being libeled. I can’t resist mentioning that while all of these writers cast scorn on the Thirteenth Amendment argument – McCarthy calls it “jaw-dropping” and “farcical,” but his analysis does not proceed beyond the exuberant application of adjectives – none of them has explained why the argument is unpersuasive. I recently did a search of every scholarly discussion of the argument since I published it nearly 20 years ago, and no one has ever made a serious attempt to answer it. (You can judge for yourself. I won’t elaborate the argument now, but the original article is here.) The argument does repel many people, so much that they have trouble taking it seriously. They take it to be a libel on motherhood, which far from being like slavery is an exhilarating, awe-inspiring and joyous experience. The objection gathers whatever force it has by focusing on the experience of women who want to be mothers. But the Thirteenth Amendment doesn't apply to them. The servitude it is concerned with is involuntary. The distinction between wanted and unwanted pregnancy is like the difference between wanted and unwanted sex. Can rape be defended on the grounds that sex is an exhilarating, awe-inspiring, joyous experience? Are arguments that focus on the degrading and violative aspects of rape a libel on sex? Posted 3:57 PM by Andrew Koppelman [link] More on Sen. Gillibrand (and evaluating actions)
Sandy Levinson
The following letter appears in today's New York Times: To the Editor: Re “As New Lawyer, Senator Defended Big Tobacco” (front page, March 27): Senator Kirsten E. Gillibrand of New York should be lauded, not criticized, for her representation of an unpopular client. One of the great traditions of American law, dating at least from the time John Adams represented the British soldiers accused in the Boston Massacre, is that our best lawyers represent the despised and unpopular, particularly those accused of or investigated for alleged crimes. Had these lawyers, in consideration of their political futures, chosen not to represent such people or entities, we Americans would not have many of the liberties we cherish. Lawrence S. Goldman New York, March 27, 2009 Wednesday, April 01, 2009
Reforming the Senate
Sandy Levinson
A respondent to my previous post criticizing the Senate for its dysfunctionality re the confirmation process asks the entirely fair question as to who should make rules for the House and the Senate (other than themselves). I have no easy answer. What we can say with some confidence is that the Senate has stumbled into a set of rules, over the years, that, I (and not only I) believe, seriously disserve the country. One can "explain" the rules in terms of social choice theory. Each senator, for example, wants to hold on to the institution of the "hold" in case he/she wants to exercise that power some day, regardless of the costs to the public in making even more difficult the nomination and confirmation of public officials. Or senators elected as "reformers" are quickly told that they will be punished, in a variety of ways, if they really take on the "way we do things around here." Or one can simply think of a good organizational reason to explain why the Senate persists in using a substantively insane--no other word will do--rule of seniority to name the president pro tem of the Senate, who is third in line for the presidency. Consider that two of the most recent inhabitants of that august office have been Strom Thurmond and Robert Byrd. (I think that Ted Stevens was President pro tem up to 2007.) I freely concede that it would simply be organizationally disruptive for senators to have to decide, and indicate publicly, their colleague most equipped to become president if catastrophe strikes. (But, of course, catastrophe will never strike, so we can behave like children.) And so on. Defending Dean Koh
Guest Blogger
Kenji Yoshino
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Books by Balkinization Bloggers
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 |