Friday, June 22, 2018
Draft Paper on the Equal Rights Amendment
Gerard N. Magliocca
Thursday, June 21, 2018
Data Nationalization in the Shadow of Social Credit Systems
Wednesday, June 20, 2018
Cultural contradictions of capitalism II
Ross Douthat has a very interesting column in today's Times (online) noting the transformation in views especially by feminists with regard to the use of surrogates to carry children. Without expressing my own view on the merits, I do find it a wonderful illustration of Bell's (and Deneen's) overall point that the power of libertarian-capitalist ideology, even for people who undoubtedly identify themselves as one the left, does indeed lead to a lot that was formerly solid melting into air. Not surprisingly, a number of the hostile comments to Douthat's column denounced him for his failure to respect the capacity of women to make autonomous choices on how to use their bodies, including, of course, in effect renting them out to more affluent persons and couples. All we have to do, of course, is to define exactly what constitute the conditions for "autonomous choice," as Kanye West recently reminded us (with stunning ineptitude). The one thing we can be relatively certain about is that the judiciary will provide almost no help, since all American lawyers are socialized into a theory of contract that basically ignores, save, at most for a day, the problems of "duress" or "unconscionability" in favor of a model of arms-length bargaining and contractual freedom, as with, say, plea bargaining.
Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?
Monday, June 18, 2018
The Cultural Contradictions of Capitalism
I mentioned in a previous post some of my reactions to Patrick Deneen's interesting book Why Liberalism Failed. I noted that many of his arguments are evocative of earlier critiques of liberalism written in the 1960s and early '70s. One of the most important of those critiques was Daniel Bell's "The Cultural Contradictions of Capitalism." As Marx had noted, one effect of capitalism was to disrupt settled societies, to "make all that is solid melt into air." The decidedly anti-Marxist Joseph Schumpeter emphasized the importance of "creative destruction" in the capitalist project, i.e., to destroy existing industries and the communities that might have been based upon them upon the discovery of new and better mousetraps. Although it is not my primary interest in this post, I do note a story in today's New York Times that emphasizes, altogether accurately, the extent to which Donald Trump is engaging in the political economy of nostalgia, trying to restore industries, most obviously the coal industry, that will never ever make a come back because it has in fact been creatively destroyed by other sources of energy. Texas, for example, is now the largest source of wind power in the US, and one finds very few Texans, other than the hapless Rick Perry, who believes that valuable dollars should be wasted on trying to revive a dying coal industry. One might make much the same argument about steel. But, as I say, that's not the primary focus of this comment.
Hjalmar Schacht and Mitch McConnell
If you read Justice Kennedy’s opinion in Vieth in 2004 together with the Court’s opinions this morning in Gill v. Whitford and Benisek, at some point it begins to become apparent that although everyone on both sides of the sharply pitched debate about the constitutionality of partisan gerrymandering is desperate for a victory in the Supreme Court, Justice Kennedy is strongly disinclined to provide such a victory to anybody. His dogged insistence on finding creative ways to avoid deciding these cases, even at significant cost to doctrinal coherence, at some point begins to suggest the possibility that his actual preference is for what we might call nonnonjusticiability: the vaguely Schrodingeresque state of affairs in which the legally correct answer to the question of whether such a constitutional claim can proceed or is dead is “maybe.” The Court could continue to hold partisan gerrymandering claims nonnonjusticiable, if it wishes, right up until the 2020 Census, a state of affairs that would be unlikely to strike too much fear into the hearts of increasingly confident partisan gerrymanderers, with their increasingly impressive data and software. But, maybe just a little teensy bit of fear. After all, you never know when a nonnonjusticiable claim might suddenly get justiched—that’s the nature of nonnonjusticiability. Perhaps we should take seriously the possibility that this teensy amount of fear is the precise amount Justice Kennedy views as optimal. Anyway, today’s decisions might at least permit a little bit of development of partisan gerrymandering doctrine in some lower courts (development that often tends to be stunted in redistricting law by the special three-judge court system).
Friday, June 15, 2018
Police Surveillance Machines: A Short History
Thursday, June 14, 2018
Happy Flag Day
Gerard N. Magliocca
Today marks the 75th anniversary of the Supreme Court's opinion in West Virginia State Board of Education v. Barnette, which remains Justice Robert H. Jackson's rhetorical masterpiece:
ACA's Former Foes Agree DOJ/Texas Have Severability Wrong - An Unusual Amicus Brief That Says a Lot about the Case's Lack of Merit
Wednesday, June 13, 2018
Technology, Political Economy, and the Role(s) of Law
The De-Americanization of Internet Freedom
[Cross-posted at Lawfare]
The Minsky Moment in Constitutional Law
Gerard N. Magliocca
During the Panic of 2008, fresh attention was given to the economic research of Hyman Minsky. Minsky proposed a theory to explain periodic financial crises that went something like this: The further the previous crisis receded from memory, the more people discounted the possibility that such an event would recur. This led them to take on more risk or deregulate, which eventually triggered the next crisis. And so on.
Tuesday, June 12, 2018
Further reflections on "the common good"
As noted yesterday both Patrick Deneen's and Steven Brill's new books, about which I am very enthusiastic, both ultimately turn on the belief that there is an ascertainable "common good" or "public interest" that is being ignored by feckless politicians, for whatever reasons, including, of course, the sheer power of the donor class. I am not unsympathetic with this critique. One of the reasons I have become so critical of the Constitution is that, as Mark Graber has pointed out, it is structured so as to assure that no national elected office-holder, including the President, truly has an incentive to think about the "national good." Every member of Congress is beholden to local constituents. The only difference between the House and Senate on this score, putting to one side the seven states with more senators than representatives, is that senators represent larger constituencies, but their incentive is to do what they believe these parochial constituencies desire. Thus Mitch McConnell as the faithful ambassador from a dying coal industry. Indeed, if one wants to understand why it's going to be so hard to win the "war on coal," one should begin with the fact that most of the largest coal producing states are small (in population) and, therefore, coal plays an exaggerated role in the consciousness of the representatives and senators. (These states include Montana, Wyoming, Kentucky, and West Virginia, which have a total population of approximately eight million people (out of approximately 325 million people in the entire US), but who have, among them, 8% of the in the egregious and indefensible U.S Senate and, unlike the senators from, say, Illinois, they are not encumbered by in-state groups that might not be so completely committed to maintaining the supremacy of coal. (Texas, a high coal-producing state, somewhat to my surprise, is now the leading center of wind-energy in the US.)
Monday, June 11, 2018
Non-light reading for the summer of our discontent
Friday, June 08, 2018
The Right of Rescission
Gerard N. Magliocca
I was away on a vacation and returned to see Sandy's interesting posts on the ERA. In one respect, I am in complete agreement with him. States should be able to rescind their ratification votes for an Article Five amendment. Thus, my view is that Congress should not consider the ERA part of the Constitution until SIX more states ratify (as five rescinded their yes votes in the 1970s).
Just How Indefensible Does an Argument in a Government Brief Have to Be to Cause All the Career Litigators in Federal Programs to Withdraw from the Case?