Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts That elusive timeless essence of marriage Barbour's Bargain The Illusion of Free Pharmaceutical Markets Move the cars to remove the snow We Hold These Truths to Be Universal The Legal Academy’s Phantom Svengalis (Net Neutrality Edition) Short Circuited Surge Capacity: Lessons from the Blizzard for Public Health The Last Business Section Reva Siegel and Linda Greenhouse discuss "Before Roe v. Wade." Ideals of Marriage, Ideals of Argumentation Sanford Levinson Talks about Constitutional Faith and Renewing Democracy The New START Treaty: A Constitutional Blunder and Its Political Consequences The Constitution Can Do No Wrong Parliamentary Parties and the Lame Duck Session Google Ngram on "Legal Formalism" and "Legal Realism" Today’s Wall Street Journal: James Grant on The Illusion of Free Markets. [Ground Control to Major Tom] Network Neutrality Symposium in Yale Law and Policy Review's Inter Alia Lindsay Graham is not a serious man (and the Constitution makes his frivolity of perhaps life-and-death significance) Rakove on Maier on the Ratification "You've got to stop this war in Afghanistan." Why one is hard pressed to take the Democratic Party seriously What if there were no 20th Amendment? What Marriage Isn’t Department of the Obvious, or Why The Senate Must Be Reformed Wikileaks and the Mayflower Hotel Finance Sector as Ultimate Risk Manager? Almost 40? Puzzling About Federalism, Take 3 The Law of the Census Puzzling About Federalism, Take 2 Can’t think of another one Earl Warren: Homophobe The "Activity-Inactivity" Distinction Virginia v. Sebelius: Judge Hudson & Justice Scalia More Scorn for Judge Hudson's Health Care Ruling The Virginia Court’s bizarre health law decision Puzzling About Federalism DREAMing of Nurses Bush v. Gore in the American Mind Patient Autonomy and Personal Health Records Why the 2010 election was good for the federal judiciary
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Friday, December 31, 2010
That elusive timeless essence of marriage
Andrew Koppelman
Kenji Yoshino is right that I misunderstood his rejoinder to the case against same-sex marriage made by Robert George and his coauthors (hereinafter “George” for short), and he ably explains why that rejoinder is more substantial than I took it to be. His (accurate) claim is that George’s definition of marriage is underinclusive. But I still think he and George are talking past each other. To see why, we have to get into some fairly technical philosophy. Thursday, December 30, 2010
Barbour's Bargain
Jason Mazzone
The Supreme Court has never heard a case in which the government has required a person to give a kidney to somebody else. The reason the Court has not heard such a case is that forcing somebody to hand over a kidney is so obviously unconstitutional (at a minimum it violates the due process right of a competent person to refuse unwanted medical treatment) that government has not been foolish enough to try it. The Illusion of Free Pharmaceutical Markets
Frank Pasquale
Over the break, I have been reading the extraordinarily illuminating The Illusion of Free Markets (by fellow Balkinization blogger Bernard Harcourt). I believe Harcourt's "archeology of regulation" convincingly shows that when "layers of legal entitlements, technical rules, and criminal prohibitions are exposed, it is clear that the notion of natural order or market efficiency is pure fiction" (196). What John Quiggin accomplishes in an economic idiom, Harcourt achieves via legal, historical, and philosophical analysis. You'll never view commodity trading (or much of the rest of our economic landscape) the same way after you've read his brilliant book. Wednesday, December 29, 2010
Move the cars to remove the snow
Jason Mazzone
One of the strangest things about New York City is the free parking on public streets. That's right: New York City permits individuals to leave their 4,000-pound personal possessions on some of the most expensive real estate in the world without paying a dime. In my neighborhood, on the Upper West Side of Manhattan, there are metered spaces on portions of the major avenues but anybody can park without paying on any of the cross streets. We Hold These Truths to Be Universal
Ian Ayres
Crosspost from Freakonomics: (A few weeks ago, I had the pleasure of attending a conference honoring the accomplishments of Tom Ulen. One of the highlights of the conference was an unusual presentation by Richard McAdams, who not only presented his own work but also told the audience about a cool review article by Joseph Henrich, Steven J. Heine and Ara Norenzayan. Richard deserves a special thanks for highlighting a number of the piece’s neatest results.) The behavioral revolution in economics and psychology has successfully identified and named close to three dozen biases (my favorite behavioral folk song defines them in verse). I had thought that these biases transcended issues of culture. Indeed, both neoclassical and behavioral economists were united in a belief that cultural variables were of secondary importance when it came to the deep drivers of behavior. But a series of experiments now has me thinking that the underlying heuristics are less universal. The article, “The Weirdest People in the World” (ungated working paper), has the startling thesis that social scientists in trying to investigate basic psychology may have erred by oversampling outlier populations. The “Weirdest People” of the title are Western, Educated, Industrialized, Rich, and Democratic. (The cuteness of the title is not one of the article’s strengths.) But the idea that “we” are the exotics usefully jars one from complacency. The heart of the review is a catalog of experiments where the results differ markedly across different societies. Take, for example, the Müller-Lyer illusion, which I would have bet dollars to doughnuts would be a universal trick of the eye: Turns out not only that different societies display different degrees of illusion bias, but the U.S. subjects (represented here by subjects in Evanston, Illinois) are outliers when researchers tested for the prevalence of the illusion across more than a dozen societies throughout the world. The WEIRD subjects, as expected, require “segment a” to be on average 20 percent longer than “segment b” before they subjectively assess the two to be the same length. But other cultures exhibit markedly less bias. Indeed, the “San foragers of the Kalahari seem to be virtually unaffected by the illusion”: The non-representiveness of the United States can also be seen in experiments testing the propensity of subjects to be opportunistic. For example, look at the results from the Dictator Game, which allows one player (the Dictactor) to decide unilaterally how a pot of money will be split with another player: Dictators in the United States and in Canada (Sanquianga) offer nearly half of the prize to the other player. But the “U.S. offers are nearly double that of the Hadza, foragers from Tanzania, and the Tsimane, forager-horticulturalists from the Bolivian Amazon.” The most bizarre results came from a two-stage game of cooperation and punishment. In the first stage, players could contribute to a public good by contributing money to a group project. “All contributions to the group project were multiplied by 1.6 and distributed equally among all partners. “ In stage 2, players could pay some of their private money to “to punish other players by taking money away from them.” What’s bizarre is who subjects from different societies choose to punish: The green, left-hand side of the graph shows the propensity of subjects to punish players who failed to contribute to the group project. The propensity of U.S. subjects to punish free-riders doesn’t seem weird at all. But the U.S, Australia and the U.K. subjects were much less likely to punish players who HAD cooperated by contributing to the group project. In other societies, “[m]any subjects engaged in anti-social punishment; that is, they paid to reduce the earnings of “overly” cooperative individuals (those who contributed more than the punisher did).” It might be that subjects in Oman reason: Who do you think you are, giving so much of your private money to promote a social cause? Even the fundamental attribution error seems less fundamental when tested on non-Western cultures. The fundamental attribution error posits inter alia that individuals tend to “ignore situational information in favor of dispositional information” when evaluating others (but overplay situational information when evaluating themselves). So, for example, if I miss a free throw in an old gym, I’ll tend to blame it on a bent rim. If you miss a free throw in the same gym, I’ll tend to blame it on your poor shooting prowess. Turns out this bias is not as prevalent in other parts of the world: East Asians are more likely than Americans to infer that behaviors are strongly controlled by the situation (Miyamoto & Kitayama 2002; Morris & Peng 1994; Norenzayan et al. 2002a; Van Boven et al. 1999), particularly when situational information is made salient (Choi & Nisbett 1998). Grossmann and Varnum (2010) provides parallel findings with Russians. . . . Hence, although dispositional inferences can be found outside the West, the fundamental attribution error seems less fundamental elsewhere (Choi et al. 1999). The Legal Academy’s Phantom Svengalis (Net Neutrality Edition)
Frank Pasquale
I've been disappointed by the FCC's recent moves on net neutrality. They are not only weak substantively, but also appear vulnerable to jurisdictional challenges.* Like many others, I've been wondering what the FCC chairman was thinking as he delayed action and then ultimately proposed rules that, as Craig Aaron states, are "riddled with loopholes." A recently published reflection on Tim Wu's book The Master Switch by Bruce Gottlieb (who "worked, until this summer, as a senior advisor to [FCC] Chairman Genachowski and was involved in some of the earlier actions that led up to last week's decision") offers some insight. Tuesday, December 28, 2010
Short Circuited Surge Capacity: Lessons from the Blizzard for Public Health
Frank Pasquale
Bad weather recently caused massive failures at Heathrow Airport, and brought chaos to air travel in the New York area. Both scenarios suggest an intriguing set of dilemmas in health law and policy. We should be doing much more to prepare for sudden, disruptive events in both the transportation and health sectors. But economic short-termism rules the roost, undercutting the infrastructural investments that a more enlightened America would make. Monday, December 27, 2010
The Last Business Section
Frank Pasquale
The New Museum of Contemporary Art has hosted an exhibit called "The Last Newspaper" the past few months. Part of the exhibit centers around newspaper-based art. Another focus has been a "hybrid of journalism and performance art," as groups of editors and writers developed "last newspaper sections" in areas ranging from real estate to sports to leisure. I co-edited the business section, which is available here in a low-res copy. I'm posting our editorial statement below. Sunday, December 26, 2010
Reva Siegel and Linda Greenhouse discuss "Before Roe v. Wade."
JB
In this video, I interview my colleagues Reva Siegel and Linda Greenhouse about their recent book, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before The Supreme Court's Ruling, a sourcebook that explains the political and legal arguments people made for and against abortion rights leading up to the Supreme Court's 1973 decision. Before Roe vs. Wade: Voices that Shaped The Abortion Debate" from Yale Law Librarians on Vimeo. Friday, December 24, 2010
Ideals of Marriage, Ideals of Argumentation
Guest Blogger
Kenji Yoshino Thursday, December 23, 2010
Sanford Levinson Talks about Constitutional Faith and Renewing Democracy
JB
CSPAN recently interviewed Sandy Levinson about his 1988 book, Constitutional Faith. Wednesday, December 22, 2010
The New START Treaty: A Constitutional Blunder and Its Political Consequences
Bruce Ackerman
The Obama Administration had a choice in framing its agreement with the Russians. It could have submitted it for majority consent by both Houses under Article one, generating a binding Congressional-Executive Agreeement -- this is the path taken by Richard Nixon in the first arms control agreement with the Soviets. Or it could have submitted the agreement as a classical treaty under Article two, requiring the approval of two-thirds of the Senate. The Constitution Can Do No Wrong
Gerard N. Magliocca
Sovereign immunity started with the fiction that "the King can do no wrong." Constitutional law now rests on a fiction that "the Constitution can do no wrong." Parliamentary Parties and the Lame Duck Session
JB
My previous posts on the Republicans as a parliamentary party were based on the assumption that Mitch McConnell would be able to hold the Senate Republicans together on procedural votes in order to block Democratic legislative initiatives. And yet President Obama has been successful in passing several different laws during the lame duck session. (Note this remarkable statement by Lindsay Graham complaining of Republican "capitulation.") Tuesday, December 21, 2010
Google Ngram on "Legal Formalism" and "Legal Realism"
Brian Tamanaha
Today’s Wall Street Journal: James Grant on The Illusion of Free Markets. [Ground Control to Major Tom]
Bernard E. Harcourt
James Grant’s book review of The Illusion of Free Markets: Punishment and the Myth of Natural Order in today’s Wall Street Journal is certainly entertaining, but it side-steps the central argument of the book—namely, that the paradoxical belief in, on the one hand, the efficiency of free markets and, on the other hand, government’s unquestioned competence in the field of policing and punishing, has facilitated the massive expansion of our criminal justice system by reducing resistance to the social and political forces that tend toward more criminalization, longer punishments, and harsher policing. It is precisely this paradoxical logic that provokes deep suspicion and recurring resistance whenever legislators contemplate “regulating” the economy, and yet triggers wide enthusiasm and electoral victory whenever politicians pile on sentencing enhancements, stricter drug laws, and three-strikes statutes. Monday, December 20, 2010
Network Neutrality Symposium in Yale Law and Policy Review's Inter Alia
Guest Blogger
Christopher Suarez Sunday, December 19, 2010
Lindsay Graham is not a serious man (and the Constitution makes his frivolity of perhaps life-and-death significance)
Sandy Levinson
The New York Times reports that South Carolina Republican Sen. Lindsay Graham may well vote against the New Start Treaty because he is upset that the Senate voted to repeal Don't Ask, Don't Tell. That is not a serious argument, especially given the consequences, attested to by the US military, many former Republican Secretaries of State and, indeed, President George H. W. Bush. Dare I award Graham, who aspires to "seriousness," the appellation of "thug" if he takes the treaty down in a partisan effort to put President Barack "in his place" at the back of the political bus? If he honestly opposed the treaty, then that would be another matter. But there is no evidence that he does. Such is the modern Senate, which, thanks to our dysfunctional Constitution, allows a petulant minority of "willful men" to torpedo important international treaties.
Rakove on Maier on the Ratification
Mary L. Dudziak
Balkinization readers will want to take a look at Jack Rakove's review of Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, which appeared in the Harvard Magazine. (Hat tip to Dan Ernst.) Rakove writes: "You've got to stop this war in Afghanistan."
Brian Tamanaha
The last words of Richard Holbrooke.
Saturday, December 18, 2010
Why one is hard pressed to take the Democratic Party seriously
Sandy Levinson
The egregious Senate (which does deserve credit for repealing Don't Ask Don't Tell, with the support of eight Republican senators), of course also refused to move forward with the "Dream Bill" because there were "only" 55 senators (out of 100, which in some countries that call themselves democracies would be a relevant data point) to support ending debate on the measure. Although, needless to say, most members of the Republican Party voted against cloture, three did not: Senators Richard Lugar, Lisa Murkowsi, and the retiring senators Robert Bennett from Utah, and they deserve genuine kudoi for doing so. But forget the other Republicans. The real disgrace is that the decisive votes to maintain the filibuster were supplied by five ostensible memers of the Democratic Party, Senators Max Baucus and John Tester of Montana, Ben Nelson of Nebraska, Kay Hagan of North Carolina, and Mark Pryor of Arkansas. A serious political party would not allow this. They can, of course, vote however they wish on the final vote. But for ostensible members of the Democratic party to prevent legislation strongly backed by a Democratic President and the Democratic caucus from even coming to the floor should lead to consequences. What if there were no 20th Amendment?
Sandy Levinson
Eugene Garver, who teaches philosophy at St. John's College in Minnesota, has made the extremely shrewd observation that were it not for the 20th Amendment, which in 1933 changed Inauguration Day from March 4 to January 20, then George W. Bush would have had to take responsiblity for the Great Bailout that occurred in January-February 2009. (There's little doubt that the Bush Administration would have done that, given that Henry Paulsen and Ben Bernanke led the initial bailout in November-December 2008.) No doubt Bush would have tried to enlist Obama's support, just as Hoover tried to enlist FDR's support for his policies during the long hiatus in 1933, but Obama could have remained above it all, more than happy, to put it mildly, to let W. take the hit for the "giveaway to Wall Street." Instead, of course, Obama has taken the enormous hit for doing what was quite clearly, all things considered, necessary, and the Republicans could therefore run against the bailout and forget that George W. Bush actually started the whole thing (not only the financial meltdown but also the extraordinary measures to prevent the world from going into full-scale Depression). What Marriage Isn’t
Andrew Koppelman
The same-sex marriage debate is a particularly intractable one, because, more than many other public policy issue, the two sides are unintelligible to one another. Opponents don’t see how same-sex couples can possibly be relevantly similar to opposite-sex couples; proponents don’t see how anyone could fail to perceive the similarity. So academic philosophers, who are particularly concerned with laying out all the moving parts of an argument clearly, have an important contribution to make to public discourse. Friday, December 17, 2010
Department of the Obvious, or Why The Senate Must Be Reformed
JB
Jon Chait points out the obvious: that Mitch McConnell secured an agreement from all Republican Senators to vote together on all procedural votes. The effect was that the Republicans agreed to act like a parliamentary party, with the baleful effects for American democracy I have described here. Since the tactic has proved so successful in the past two years, there's little reason to doubt that Senate Republicans will attempt to continue it for the foreseeable future, fundamentally changing how Congress works, at least until President Obama finds a way to fracture their coalition, or the Senate Democrats figure out that they need to change the Senate's filibuster and hold rules when the Senate reconvenes in early January. Thursday, December 16, 2010
Wikileaks and the Mayflower Hotel
JB
Charlie Savage reports that the U.S. government is trying to distinguish Wikileaks from traditional investigative journalists by arguing that Julian Assange conspired with Pfc. Bradley Manning to obtain secret government information from a government computer system. Wednesday, December 15, 2010
Finance Sector as Ultimate Risk Manager?
Frank Pasquale
David A. Moss's When All Else Fails: Government as the Ultimate Risk Manager should be a vital guide to our future. Moss describes programs ranging from social security to bankruptcy as backstops of support for all classes. As volatility in prices, employment levels, and wages climbs, we should be exploring new "automatic stabilizers" to guarantee every family a "social minimum." Instead, we appear to be privatizing and financializing risk via opaque institutions whose only mandate is to increase their own profits. Almost 40?
Andrew Koppelman
Pamela Karlan points out that, by some calculations, I may have undercounted the number of Americans who live in jurisdictions that recognize same-sex couples. Puzzling About Federalism, Take 3
Heather K. Gerken
For the last two days, I have been blogging about some puzzles in the federalism literature. The first is that federalism's two main camps endorse a markedly similar account of federalism, an account that is poorly suited for the institutional arrangements we call "cooperative federalism," where the states and federal government regulate together. The second is that the few scholars who do write about "cooperative federalism" dwell, as the moniker suggests, entirely on the sunnier aspects of federal-state relations and thus neglect many of the theories that have been traditionally associated with constitutional federalism. Scholars, for instance, haven’t thought enough about the uncooperative dimensions of cooperative federalism or the democratic dimensions of these bureaucratic arrangements. Tuesday, December 14, 2010
The Law of the Census
Nate Persily
Next week the Census plans to release its demographic profile of America and soon afterward the apportionment totals for the states. If the 2010 Census is like its predecessors, the state next in line for a congressional seat will sue and argue that some counting method employed by the Census was unconstitutional or otherwise illegal. Because recent Supreme Court decisions surrounding the Voting Rights Act (VRA) have placed greater importance on the size of a minority community that is entitled to its own majority-minority district, we should expect dickering over the census numbers to continue for the next three years or so. For the first time, moreover, the Census will also be releasing data relating to the size of the prisoner and non-citizen population in time for redistricting. I discuss all of these issues and more in an article about to appear in a Cardozo Law Review symposium issue to be published next month. The article -- "The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them" -- is now available here.
Puzzling About Federalism, Take 2
Heather K. Gerken
Yesterday I wrote about one of the puzzles in the federalism literature -- the fact that the two, main opposing camps in federalism debates have a markedly similar view of state power. Most scholars imagine federalism as providing electoral minorities with an exit option, a chance to rule themselves, separate and apart from the center. As I argue in a paper I just published in the Harvard Law Review, Foreword: Federalism All the Way Down, while "exit" is an excellent way to conceptualize chunks of "Our Federalism," it doesn’t describe all of it. And because constitutional theory remains rooted all but entirely in an exit account, it is disconnected from the many parts of "Our Federalism" where an exit model doesn't capture the form of power states wield. In these areas, the states and federal government regulate together, often with states administering national policy. The power that minorities wield is that of the servant, not the sovereign. In these areas, minorities exercise a muscular form of voice, one that allows them to make federal policy and not just complain about it. Can’t think of another one
Andrew Koppelman
My Northwestern Law colleague Steven Lubet has offered in an email an elegant summary of the constitutional claim against the federal health insurance mandate: “The scholarly argument against the mandate pretty much runs this way: (1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” This seems to be the source of the novel idea that Congress can regulate activity, but not inactivity, under the necessary and proper clause. (See, for example, Jonathan Adler’s defense of the ruling on the Volokh Conspiracy blog.) Monday, December 13, 2010
Earl Warren: Homophobe
Sandy Levinson
I attended an excellent conference at the Yale Law School this past weekend, justifiably celebrating the publication of A Republic of Statutes: The New American Constitution, by William Eskridge and John Ferejohn. It argues, among many other things, that one simply cannot understand the American constitutional order if one ignores the "constitutive character" of what they call various "superstatutes" thoughout our history that have shaped that order and, for all intents and purposes, are as "hard-wired" as many of the specific clauses that we ordinary identify as "the Constitution." They are making an extremely important argument that deserves to be debated at length, as it certainly will. (For obvious starters, even if it is spectacularly unlikely that the Social Security Act will in fact be repealed, it would presumably be far easier to do that than to repeal, say, the "Inauguration Day Clause" of the 20th Amendment and replace it with something far more sensible than January 20.) But this obviously doesn't explain the title of my posting. The "Activity-Inactivity" Distinction
Mark Tushnet
I don't think anyone was surprised that conservative Judge Henry Hudson held the individual mandate unconstitutional. What's surprising is the traction that the distinction he relied on has gotten. Congress, according to Judge Hudson, has the power to regulate economic activity but not economic inactivity, that is, a failure to participate in some market such as the insurance market. This distinction seems to me unsound in principle but, more important, inconsistent with the governing precedents. The primary one is Wickard v. Filburn, which is usually described as holding that Congress has the power to regulate economic activities that, taken in themselves, have no substantial effect on interstate commerce but when aggregated do have such an impact. The economic activity in Wickard was the consumption on a person's own farm of wheat grown on that farm. Virginia v. Sebelius: Judge Hudson & Justice Scalia
Jason Mazzone
Criticism of Judge Hudson’s opinion today in Virginia v. Sebelius has centered on his rejection of the government’s argument that the insurance mandate is a necessary and proper means to effectuate federal regulation of the interstate health care and insurance markets. Andrew Koppelman, writing on this blog, and Orin Kerr, at Volokh Conspiracy, complain that Judge Hudson’s analysis ignores the command of McCulloch v. Maryland that in exercising its enumerated powers, Congress can choose means beyond those the powers themselves provide for—and that Judge Hudson has thereby read the necessary and proper clause out of the Constitution. It would indeed be odd for a federal district court to ignore McCulloch or any other Supreme Court decision. I don’t think this is what Judge Hudson has done. Judge Hudson might well be wrong in his holding. But today's criticisms seem to me to miss the thrust of Judge Hudson's analysis. More Scorn for Judge Hudson's Health Care Ruling
Frank Pasquale
Well, I guess we all now know that Federal Judge Henry E. Hudson has a "stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform -- the very law against which he ruled today." Andrew Koppelman's post below examines some of the major flaws in the opinion. Over at Health Reform Watch, we have previously hosted two pieces by Mark A. Hall (one of the nation’s leading scholars in health care law and policy) making the case for the constitutionality of the ACA. His latest installment finds little in Judge Hudson's ruling to change his mind: The Virginia Court’s bizarre health law decision
Andrew Koppelman
Today’s federal ruling striking down the Obama health care law is powerful proof that the law is, in fact, constitutional. Puzzling About Federalism
Heather K. Gerken
Lately I've been thinking and writing about federalism for a paper I just published last month in the Harvard Law Review: Foreword: Federalism All the Way Down. There I talk about several puzzles one finds in the federalism literature. One of those puzzles goes to the main intellectual divide in federalism. There is a fair bit of agreement as to what purposes federalism serves: choice, competition, participation, experimentation, and the diffusion of power. The core divide in federalism turns on the best means to pursue those ends. The Supreme Court and a handful of scholars regularly assert that states require sovereignty -- a formal guarantee, enforceable in court -- to protect state power. Another set of scholars just as regularly insists that federalism should move beyond sovereignty. Many endorse process federalism, which looks to politics, inertia, and interdependence as the guarantors of state power. So that's the divide as we conventionally understand it: champions of sovereignty on one side; process federalists on the other. Here’s the puzzle: even though we typically imagine these traditional sparring partners as being on opposite sides of the debate, in fact the two camps have a good deal more in common than we typically imagine. Even as process federalists announce the death of sovereignty, they remain haunted by its ghost. The process federalists' image of state power, for instance, looks remarkably like the one found in a sovereignty account. The de facto autonomy lauded by process federalists looks much like the de jure autonomy lauded by sovereignty’s supporters -- both involve presiding over one's own empire rather than administering someone else's. Process federalists rebuke sovereignty types for endorsing a separate spheres approach, but lurking in their own work is the sense that states should have their own regulatory turf. So why do these putative opponents have so much in common? We can begin to make sense of this fact if we imagine federalism as a strategy for solving one of the great puzzles of democratic design -- what should a majoritarian democracy should do with its minorities? Most accounts of federalism stand in loosely for the notion that the best way to protect minorities in a majoritarian system is to give them what Albert Hirschman might call an "exit option" -- making space for them to enact their own policies, separate and apart from the center. That is why process federalists, who urge the Court to move beyond sovereignty, still stick with sovereignty's intellectual traveling companions. They may differ from sovereignty's champions when thinking about how to protect state power, but both camps are still thinking about power itself in basically the same way. The argument I offer in the Foreword is that while "exit" is an excellent way to conceptualize chunks of "Our Federalism," it doesn't describe all of it. And because constitutional theory remains rooted all but entirely in an exit account, it is disconnected from the many parts of "Our Federalism" where an exit model doesn’t capture the form of power states wield. In these areas, the states and federal government regulate together, often with states administering national policy. The power that minorities wield is that of the servant, not the sovereign. What kind of account do we need to describe state power in the many areas where states are servants, not sovereigns? What's the alternative? Voice, obviously, but here I don’t mean "voice" in the same sense that Hirschman uses it. I am not referring to the idea that minorities can speak out against a national policy. I mean to refer to a more robust, more muscular form of voice: the ability of states to make national policy, not just to complain about it. It's the chance to serve as policymaking insiders rather than autonomous outsider . . . to dissent from within rather than complain from without . . . to administer the federal empire rather than preside over an empire of one’s own. Tomorrow I'll talk about a different puzzle in the literature: why do scholars have such a sunny view of "cooperative" federalism? Sunday, December 12, 2010
DREAMing of Nurses
Jason Mazzone
Immigration law in the United States has never done a very good job of promoting the nation's economic interests. The proposed "Development, Relief and Education for Alien Minors Act" (DREAM Act) is a case in point. The DREAM Act would provide aliens of "good moral character" who arrived in the United States illegally as minors a path to permanent residency and citizenship if they graduate high school and complete two years in the military or two years of college. Bush v. Gore in the American Mind
Nate Persily
[Cross-posted at electionlawblog.com] Saturday, December 11, 2010
Patient Autonomy and Personal Health Records
Frank Pasquale
I recently gave remarks as part of a panel at the roundtable "Personal Health Records: Understanding the Evolving Landscape," sponsored by the Office of the National Coordinator for Health Information Technology (ONC). There were many interesting speakers, including some of the leading businesses in the PHR space and regulators from FTC, HHS, and the California state Office of Privacy Protection. The roundtable exposed the promise--and limits--of a personalized health record model. Databases may help both public health and patient care, but the many stakeholders in PHR's may have very different views about how much control patients should have over the presentation of their medical selves in everyday life. Thursday, December 09, 2010
Why the 2010 election was good for the federal judiciary
Jason Mazzone
The 112th Congress will convene next January with Republicans holding 47 seats in the Senate, having gained six seats in the November election. This is good news for the federal judiciary.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) 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 |