-->


Balkinization  

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.

It may be, of course, that the majority of the American public is schizophrenic (or teenager-like) in assuming that one can have public services without having to pay for them through taxes, which raises yet more fundamental questions about whether "democracy" should be our mantra. In any event, it would be refreshing if Joe Biden, who has just lectured Iraqis on the need to "reason together" and overcome their ideological divisions, would turn his formidable talents (I am not being sarcastic) to considering whether the United States does not itself need fundametnal reform. After all, early in January 2011, he may well be asked to rule on whether the Senate can change theh filibuster by a simple majority vote. What he decides may well be be the single most important act of his vice presidency (as distinguished from the "advice," which is without legal force, that he may be giving the President.

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.

Indeed, won't devotees of "federalism" at some point have to confront the fact that a striking number especially of our larger states are essentially terminally dysfunctional? I vehemently oppose the unwillingness of crazed congressional Republicans to pass legislation that might enable states to get through the crisis without further massive layoffs. On the other hand, if there is a silver lining to such truly anti-social behavior, it might be to illustrate that modern American states are incapable of functioning effectively without a significant federal presence, including the necessary infusion of funds when times are tough. Perhaps the Party of No will in fact triumph in the 2010 elections. I wonder what they will be saying in 2012, when the complete and utter lack of a "governing vision"--unless it is to return to the wisdom of Andrew Mellon and Herbert Hoover by cutting spending during a time of de-facto depression--is apparent for all to see.

Saturday, July 03, 2010

ACTA's Digital Enforcement Provisions

Guest Blogger

Margot Kaminski

[Ed.-- This is the fourth in a series of reports on the ACTA treaty negotiations which will significantly affect intellectual property rights. Previous installments are here and here, and here]

The Anti-Counterfeiting Trade Agreement (ACTA)’s digital enforcement provisions were just renegotiated in the most recent round of negotiations in Lucerne, Switzerland.


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 U.S. law. You can read ACTA as leaving room for the current DMCA—but it’s also possible to read conflicts. USTR should explain these differences. More importantly, the elements of U.S. law being exported are not accompanied by balancing provisions present in U.S. law.


Read more »

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!

On Monday, June 28, 2010, in McDonald v. City of Chicago, the Supreme Court inadvertently held that Congress had already applied the entire Bill of Rights to the states through the Civil Rights Act of 1866. The Court held that the Civil Rights Act was intended to protect substantive rights, including the Second Amendment right to bear arms. The same evidence of legislative intent, however, shows that Congress sought to enforce the Bill of Rights generally against the states. This means, among other things, that Congress has enforced all of the remaining provisions of the Bill of Rights against the states: The Third Amendment, the Fifth Amendment Grand Jury trial right the Seventh Amendment civil jury right (depending on what that right actually is), and the Eighth Amendment's ban on excessive fines. Under the Court's new reinterpretation of this venerable civil rights statute, the Civil Rights Act of 1866, currently codified at 42 U.S.C. section 1981, offers a general guarantee of basic constitutional liberties against the states.

This is the kind of judicial activism that would make the Warren Court proud!
Read more »

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.

Sample size is one reason for rejecting concerns about a Supreme Court with three Jews and six Catholics. Worrying about the lack of Protestants on the Supreme Court in 2010 is a bit like worrying about the number of Irish cellists in the Boston Symphony. We might be concerned if no Irish-American ever played for the Boston Symphony or if there are no Irish cellists in the United States or, perhaps, even if the Boston Symphony has never had an Irish cellist. The mere lack of an Irish cellist at present (I have no clue about the actual ethnic makeup of the Boston Symphony) is probably little more than a statistical oddity and unreflective of broader social practices. The present religious makeup of the Supreme Court seems a similar statistical oddity unreflective of broader social practices. Protestants have long been overrepresented on the Supreme Court, in the federal judiciary, in state judiciaries, and in most government offices. Protestant voices will be heard, even if no Protestant is on the Supreme Court. In a country where every President but one has been a Protestant, we might pause before demanding the Supreme Court demographically represent the United States.

Many standard justifications for diversity are substantially weaker when our concern is the temporary underrepresentation of historically overrepresented groups. Many people believe with good reason that (almost) every person of color in the United States suffers some disadvantages solely because they are not white. Few mainstream Protestants can plausibly claim that they are consistently victims of subtle religious biases. Members of historically under represented groups have important perspectives that are often invisible to decision makers unless some representatives of those groups are at the decision table. Few decision makers require the presence of a mainstream Protestnat to be aware of mainstream Protestant values. Living in the United States for a long period of time is sufficient.

My parents witnessed too many “No Jews (or Irish Catholics) Wanted” when they first applied for jobs. I suspect Elena Kagan’s parents have similar stories. We should not hang the same sign over the Supreme Court, even for one vacancy.

Cross-posted at Quoth the Raven: The University of Maryland Law Faculty Blog

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

Crosspost from Freakonomics:

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.

The paper -- titled Partisanship, Public Opinion, and Redistricting -- is available here.

The abstract appears below:

This paper analyzes recent survey data on Americans' attitudes concerning the redistricting process. We find, unsurprisingly, that a large share of the population has little knowledge about the redistricting process, but that residents living in a state with a recent redistricting controversy are more likely to hold opinions about the issue. Of those who do have opinions, their attitudes toward the redistricting process are reflective of their attitudes toward government generally. Members of the "out" party are more dissatisfied with the redistricting process when the "in" party controls the redistricting process, and satisfaction is generally greatest in states where government is divided between the parties. Consistent with such results, we also find Americans to be strongly supportive of vesting redistricting authority in an independent commission, as opposed to state legislatures.

Marshall, Kagan, and Martin Luther King

Mary L. Dudziak

My post today on CNN.com:
Republican senators this week pressed Supreme Court nominee Elena Kagan on the degree to which her views mirror those of her mentor Justice Thurgood Marshall, whom Kagan clerked for in 1987-88.

You might have thought Marshall himself was before the Senate. Sen. John Kyl of Arizona opined in his opening statement Monday that Marshall's judicial philosophy "is not what I would consider to be mainstream." Sen. Jeff Sessions of Alabama concurred, calling the landmark civil rights-lawyer-turned-judge "a well-known activist."

Kagan reminded the senators that if confirmed "you will get Justice Kagan. You won't get Justice Marshall."

There's an irony here. While Kagan and Marshall surely have important differences, there is something they have in common, but it's not what Kagan's Republican questioners have in mind. During confirmation hearings, both were criticized not only for their own ideas, but for those of another.
Continue reading here.

Law Podcast Series: American Constitution Society, UNL

Marvin Ammori

Friends, Law Scholars, Law Students:

I know your type.

You can't jog without your iPod. To run the miles, you need that melodic beat of the Black-Eyed Peas, the triumphal boasts of Jay-Z, the fluid rhymes of Snoop.

I feel you.

But you, like me, have always wished, deep down, that you could jog to the soothing cadence of Harvard Law professor Lawrence Lessig. You have often prayed you could punctuate each step of a morning jog with the faint Russian accent of Eugene Volokh. Yes, the UCLA law professor and blogger extraordinaire. You've often regretted putting down that footnote-laced Article on legal ethics of death penalty reform, just to get your daily run--or even to get into the car and run an errand.

I feel you.

I've been there.

And that's why today turns a new leaf.

Read more »

Home