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Balkinization
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Wednesday, July 07, 2010
Is the United States a proper member of the Community of Democracies?
Sandy Levinson
Anne Applebaum had an interesting column in the Washington Post, tellingly titled "Democracy in Trouble," detailing a speech by Secretary of State Hillary Rodham Clinton in Krakow, Poland, on the 10th anniverary of the Community of Democracies founded by Madeline Albright. As Applebaum notes, the Bush Administration was not much interested in it--though support for "democracy" was a major theme of that Administration, and one of the former-President's favorite books was Natan Sharanksy's ode to democracy--and it has basically been revived by Poland. I have no desire to question the Secretary of State's commitment to democracy. Rather, as could be easily predicted by anyone familiar with my oeuvre, I continue to be amazed--and, of course, often enraged--by the complacent assumption that the United States is the kind of democracy that other countries should try to emulate. It's not only that the Constitution under which we operate is so distinctly anti-democratic in so many ways (which helps to explain the fact that no country that has drafted a constitution over the past four decades has looked to the US Constitution for inspiration), but, as noted in my previous post, that a number of the American states are truly dysfunctional in their inability to exercise effective governance. Could anyone, regardless of his/her place on the political spectrum, be optimistic about the American future, that the country is indeed "headed in the right direction"? The difference between me and most people who read Balkinization is that my pessimism derives from our Constitution more than the particular defects of given political "leaders," whether one thinks of Presient Obama, Sarah Palin, or anyone in between. Monday, July 05, 2010
Will Maryland lead the nation?
Sandy Levinson
An interesting story in today's Washisngton Post notes that Marylanders wil, thanks to their constitution, have the opportunity this November to vote to call a new constitutional convention that would be empowered to suggest significant revisions to the Maryland Constitution, whose present form goes back to the immediately post-Reconstruction Era. For obvious reasons, I hope that the good folks of Maryland will vote for such a convention and that, more to the point, it can serve as a model of the kind of constitutional reflection that is so desperately needed (and lacking) in the United States today. Unfortunately, the constitutional revision movement in California seems to have collapsed. And New York, another contemporary "failed state," will not have the next opportunity to vote for a new convention, as its constitution also allows, for some years. Saturday, July 03, 2010
ACTA's Digital Enforcement Provisions
Guest Blogger
Margot Kaminski The Anti-Counterfeiting Trade Agreement (ACTA)’s digital enforcement provisions were just renegotiated in the most recent round of negotiations in There hasn’t been much public discussion of ACTA’s Article 2.18 “Enforcement Procedures in the Digital Environment”, because the proposed language in the officially released draft from April is both provisional and overly complicated. There probably won’t be another draft released for public comment before the final text of ACTA is released at the end of this year. These are parameters for open discussion of ACTA’s Internet section and its provisions. In short: ACTA envisions an active, pro-rightsholder role for ISPs and other online intermediaries. This role is established not only by law, but also under government pressure for cooperation between intermediaries and rightsholders. ACTA may also limit the type of services that can fall into a “mere conduit” exception to notice-and-takedown. Such cooperation combined with a change in definition of “mere conduit” will likely result in what Annemarie Bridy terms private ordering graduated response: graduated response by agreement between private companies, outside of government process. ACTA does not, contrary to earlier discussions, export the letter of CJR interview on Yale's Media Freedom and Information Access Practicum
JB
The Columbia Journalism Review interviews Nabiha Syed and me about the Media Freedom and Information Access Practicum we've started at Yale as part of the Knight Law and Media Program. MFIA is an externship program that connects Yale Law students with media attorneys to defend media freedom and access to information. It is the beginning of what we hope will be a fully funded clinic at Yale Law School devoted to free speech and freedom of information issues.
Friday, July 02, 2010
Supreme Court Holds That Congress Has Incorporated Entire Bill of Rights
JB
Exclusive to Balkinization! Must cite Balkinization! Diversity Revisited
Mark Graber
No Protestant will sit on the Supreme Court of the United States if Elena Kagan is confirmed by the Senate. Many distinguished scholars, valued colleagues and well meaning friends are troubled by this possibility. They fear a Supreme Court with six Catholics and three Jews is insufficiently diverse. I believe these worries are misguided. Our diversity concerns should focus on historically underrepresented groups, not on achieving demographic balance. Transcripts of the Kagan Hearings
JB
The Washington Post has now published transcripts of the Kagan hearings. Here is Day One, Day Two, and Day Three. (Thanks to Bob Barnes of the Washington Post for the pointer).
Thursday, July 01, 2010
Would Cleveland Be Better Off With LeBron James or a New DaimlerChrysler Plant?
Ian Ayres
In my last post, I wrote about LeBron James’s conflicting objectives of pursuing money and championships. This conflict is particularly acute because the NBA salary cap prohibits many strong teams from offering James anything close to his market value. But while NBA teams are constrained, nothing stops other actors from offering LeBron money to sign with a particular team. Ford dealers in the greater New York area could offer LeBron millions if he agreed to promote their dealerships and to sign with the Knicks or Nets. Fans of the Dallas Mavericks could put money in escrow that would only be paid if he agreed to play in Dallas. Of course, there would be a huge incentive for individual fans to free ride on the efforts of others. Even if I would gain $100 in utility if LeBron signed with the Celtics, I would prefer for others to foot the bill instead of me. But local and state governments are natural agents to overcome this kind of free-riding problem. The city of Cleveland or the state of Ohio could offer James a variety of financial incentives to re-sign with the Cavs. Cities routinely give financial incentives to teams — for example, subsidizing the cost of arenas — to keep the teams from leaving. The public subsidies are defended on a mixture of economic and hedonic grounds. Professional sports teams can generate tourism and job growth. And citizens might just be happier living in a place where they can have a local team to root for. But these same arguments might also apply to a transcendent talent like James. In narrow economic terms, Cleveland and the state of Ohio might be hundreds of millions of dollars better off if LeBron stays put. Moreover, many local fans will be heartbroken if he leaves. Elected officials in Ohio understand both these points. That’s why even Ohio Governor Ted Strickland was willing to join in a musical plea (“We are LeBron” to the tune of “We Are the World”). But if Ohio is willing to give business incentives, financial incentives, and tax incentives to encourage companies to move to Ohio, why not consider kicking in financially to try to keep one of the state’s prize assets. Turn LeBron into his very own “enterprise zone.” In 2004, Ohio invested $535 million to expand a DaimlerChrysler Jeep facility in Toledo. But seriously, don’t you think the average voter would prefer to invest in LBJ? Rent-seeking competition from other cities could push public LeBron bribes to astronomic levels. In 1993, one academic estimated that Alabama paid a whopping $200,000 per job created to lure Mercedes to its fair state. Inter-city competition might easily devolve into an inefficient “beggar thy neighbor” equilibrium. The NBA might also want to nip this kind of signing side-payment in the bud. But at the moment, the league can’t block a city or state player tax incentive. (Memo to the league: during labor negotiations, you might push for a provision prohibiting players from entering into any contract that is conditioned upon a player signing for a particular team. Memo to union: resist this proposal.) Generally, the league should worry that inter-city competition would favor the larger cities where a superstar can be adulated by more fans. (This is a literal example of Sherwin Rosen’s classic “The Economics of Superstars.”) Tax incentives would tend to work against league parity. But given endowment effects, Cavalier fans may have more to lose than bigger cities have to gain from winning this King-sized prize. If we add in a bit of Wizard of Oz loyalty — there’s no place like home — to James’s objective function, this tax-incentive arms race is a competition that the city of Cleveland just might win. Public Opinion and Redistricting
Nate Persily
Joshua Fougere, Stephen Ansolabehere and I have placed on SSRN a draft of a paper to appear in the Election Law Journal and in Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy (edited by Heather K. Gerken, Guy-Uriel E. Charles, and Michael S. Kang). No earth-shattering results in the paper, but I think it is the most comprehensive analysis to date of public attitudes (and nonattitudes) toward the redistricting process. Marshall, Kagan, and Martin Luther King
Mary L. Dudziak
My post today on CNN.com: Law Podcast Series: American Constitution Society, UNL
Marvin Ammori
Friends, Law Scholars, Law Students:
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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 |