Monday, February 28, 2011
Supreme Court Ethics: Of Geese and Ganders
Friday, February 25, 2011
Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform
Two federal district judges have invalidated the so-called “individual mandate” in the Patient Protection and Affordable Care Act of 2010. Their reasoning is bizarre and mischievous. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the framers, and cripple the nation’s ability to address one of its most pressing problems.
Jury Nullification on Trial
As the New York Times reports, the federal government has indicted Julian Heicklen on one count of jury tampering in connection with his distribution outside the federal courthouse in lower Manhattan of pamphlets advocating that jurors refuse to apply laws with which they disagree. In the days when jurors played a greater role in interpreting statutes, nullification was an available tool for reining in overreaching government actors. Today, of course, judges instruct jurors that they must follow the law as the judge provides it. As a practical matter, though, there is little that can be done to remedy a verdict that is based on the jury's belief that the law they are asked to apply is unjust. Heicklen is charged under 18 USC s 1504, which provides:
Thursday, February 24, 2011
In my first-year constitutional law course, we do an exercise involving footnote 4 of Carolene Products. Tracking the language of that footnote, I ask my students to identify the "discrete and insular minorities" against whom there is "prejudice" that "
Is Obama's Position on DOMA an Executive Power Grab?
Wednesday, February 23, 2011
A whole new ball game on DOMA and same sex marriage
Back in July 2010, Judge Tauro in the federal district court in Massachusetts issued a pair of decisions overturning the Defense of Marriage Act (and offering some rather creative tenth amendment rhetoric). I was quoted in the New York Times as saying "What an amazing set of opinions . . . No chance they’ll be held up on appeal."
AG Holder on DOMA
In a letter today to Speaker Boehner, Attorney General Holder advised that pursuant to a directive from the President, the Department of Justice will not defend section 3 of the Defense of Marriage Act in cases currently pending in the Southern District of New York and the District of Connecticut. Those cases, Windsor v. United States (S.D.N.Y.) and Pedersen v. OPM (D. Conn.) involve challenges to section 3 of DOMA (which defines marriage for purposes of federal law as a union between a man and a woman) by same-sex couples legally married under state law. Holder reports that the administration has concluded that sexual orientation classifications merit heightened judicial scrutiny and that under that standard, section 3 is unconstitutional. Because no "reasonable" argument can be made in defense of section 3's application to married same-sex couples, "the proper course is to forgo the defense of this statute."
A Chauffeur's Dilemma for Wisconsin's Police
Kevin Drum has explained events in Wisconsin well. Whatever you think of public sector unions, Gov. Walker's proposals ring alarm bells because they are so high-handed. They are also embedded in a larger package of crony capitalism, authority for infrastructure giveaways, and Medicaid-mongering.
The Constitution in 2020: the Caesars or the Tudors?
Tuesday, February 22, 2011
Schmitt and Post-9/11 Legal Thought
Mary L. Dudziak
This is the second post in a short series on post-9/11 legal thought.
The Search for Authority
Gerard N. Magliocca
Last month I read an excellent paper by Jamal Greene on the constitutional anti-canon. (The draft is not on SSRN but soon will be.) One interesting feature of Professor Greene's argument is that there was no anti-canon until the 1960s. Prior to that time, there were cases that people saw as wrong, but none were considered so wrong that they should be upheld as precedent of what not to do. Today, of course, some cases are used that way (e.g., Dred Scott, Plessy, Lochner, and Korematsu) by judges and scholars who want to buttress their reasoning ("My theory could never lead to one of those awful results") or attack the reasoning of others ("Your logic would lead to those awful results.")
Sunday, February 20, 2011
Minority Report: Leon Neyfakh on Risk Prediction
Bernard E. Harcourt
Leon Neyfakh, over at the Ideas section of the Boston Globe, has a fascinating piece today on the increased use of risk prediction instruments, "Inside the new science of predicting violence." Neyfakh covers the ground extremely well and even-handedly, discussing the important contributions of John Monahan and his colleagues, Richard Berk at Penn, and others.
American's Panel on Guantanamo
Cross-posted at Opinio Juris
All the Right Moves
I've talked in previous posts about a "closed circuit" economy among the wealthy. A plutonomy at the top increasingly circulates buying power (be it luxury goods, real estate, gold, or securities) among itself. The middle class used to dream that a rising Wall Street tide would lift all boats; as Felix Salmon shows, that hope is fading. Whatever innovations arise out of these companies aren't doing much for average incomes.
Saturday, February 19, 2011
Reducing Mass Incarceration – It's Not About "Free-Market Innovation," Grover Norquist!
Bernard E. Harcourt
There have been several fascinating interventions on the question of reducing mass incarceration since I last posted on Reducing Mass Incarceration, and they have ranged the political spectrum with important contributions from Mike Konczal at the Roosevelt Institute, Josh Brokaw over at Reason.com, Scott Keyes at Think Progress, and Grover Norquist at the National Review Online. The Justice Policy Institute also just released a report criticizing President Obama’s budget for “an 11 percent increase from FY2010 in spending on the federal prison system and slash[ing] funding for juvenile justice programming dedicated to providing opportunities for positive life outcomes for youth involved in the justice system.”
Search Neutrality as Disclosure and Auditing
We had an excellent online symposium on Tim Wu's book The Master Switch at Concurring Opinions last week. I just wanted to respond to some concerns about the role of search engines raised by Jonathan Zittrain and Katherine Strandburg. For example, Strandburg observes:
Thursday, February 17, 2011
"Wartime" becomes "Crisis Time" in post-9/11 Legal Thought
Mary L. Dudziak
With the tenth anniversary of September 11 coming up this year, we are sure to see efforts to take account of the past decade. There will be tireless repetition of the idea that “everything changed” on September 11. But it should also be an occasion for meaningful examination of the era of 9/11 as a moment in history. This is the first of a short series of posts on post-9/11 American legal thought (and it is part of the “wartime” project that some readers will be familiar with).
Wednesday, February 16, 2011
Gerard N. Magliocca
I'm working on a biography of John Bingham, the primary drafter of the Fourteenth Amendment. While my research is not complete, I thought I'd provide an update on how things are going. Specifically, I want to share what I've learned so far that seems important.
Vague Law, Stable Outcomes: The Example of Money and Judicial Elections
In earlier posts and academic work, I've written about the phenomenon I call "vague law, stable outcomes." This experience is central, in my view, to thinking about constitutional doctrine and Supreme Court decisionmaking, yet not properly appreciated. Some of the most difficult problems the Court confronts arise when the Court is inclined to conclude a constitutional violation has occurred, but where the nature of the issues inherently makes it difficult or impossible to formulate a relatively clear set of doctrinal principles or rules that can define the border between constitutional and unconstitutional action. Should the Court go ahead and declare the action unconstitutional, even though the Court will inevitably be able to do no better than generate a vague set of principles to guide future cases? Or should the fact that the Court cannot do better than offer vague principles be a reason the Court should refrain from declaring a constitutional violation in the first place? A good recent example is the Caperton case, in which the 5-4 Court held that due process is violated at some point when a judge sits on a case involving the interests of an entity that has spent extremely large amounts to get that judge elected (or his opponent defeated). There is simply no clear doctrinal way for the Court to specify at what point spending or contributions to elect or defeat a judicial candidate become so large as to require, as a matter of due process, judicial recusal. For some Justices, that unavoidable lack of clarity is a reason not to act; for others, that lack of clarity is not.
New Life for the Bagram Habeas Litigation?
Yesterday, U.S. District Judge John D. Bates granted a motion filed on behalf of the three non-Afghan detainees held at the Bagram air base in Afghanistan to present new evidence in support of their habeas corpus petitions. Bates' opinion explaining his order in al-Maqaleh v. Gates is available here. Bates had previously ruled in al-Maqaleh that some Bagram detainees—specifically, non-Afghans seized outside Afghanistan and brought to Bagram by the U.S.—could obtain federal habeas review of their detention. Bates relied on the test set forth in Boumediene v. Bush for determining the extraterritorial application of the Constitution's habeas corpus Suspension Clause (In Boumediene, the Supreme Court upheld the constitutional right of Guantanamo detainees to habeas corpus). The test considers, among other factors, the citizenship and prior process the detainee had received; the nature of the site of the prisoner's apprehension and detention; and the practical obstacles to habeas review. Last year, the D.C. Circuit reversed Judge Bates' ruling in al-Maqaleh, holding that Bagram detainees had no constitutional right to habeas corpus under Boumediene. The Circuit did, however, leave open the possibility that the petitioners could present new evidence in support of their jurisdictional arguments.
Reducing Mass Incarceration: One Missing Piece In Our Ongoing Deficit Debates
Bernard E. Harcourt
In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions in question were asylums, but the numbers were staggeringly large, in fact comparable to today’s level of mass incarceration in prisons. President Kennedy’s message to Congress was powerfully simple:
Monday, February 14, 2011
Watch the Banks First
I have not been a big fan of Wikileaks. I believe in diplomacy and the rule of law as cornerstones of a civilized society. But the recent revelations about a clandestine campaign to discredit Wikileaks supporters forces reconsideration of a pro-state, anti-Wikileaks position.
Enforcing the Compact Clause
Sunday, February 13, 2011
Black Box Search vs. Black Hat Publicity Hounds
J.C. Penney was on top of the web world last holiday season, showing up at #1 for dozens of retail search queries on Google. Type "dresses," "area rugs," "bedding:" you'd get Penney's items as your first search result. Had the venerable retailer become a "Wikipedia" of online shopping, reliably providing the "people's choice?" Or was something more troubling going on?
Friday, February 11, 2011
Learning from German Finance and Corporate Governance
The president recently cajoled business leaders at the U.S. Chamber of Commerce to create more jobs. As Harold Meyerson shows in a recent piece in The American Prospect, that's not likely to do much to relieve long-term trends toward U.S. decline:
Thursday, February 10, 2011
Leveling Up: A Public Finance Analog for Lobbying
Heather K. Gerken
For those interested in lobbying reform, I have a second post on Rick Hasen's Election Law Blog. It follows up yesterday's post, which argued that lobbying will end up being the new campaign finance. Today's post suggests that, as with campaign finance, the future of lobbying reform will involve leveling up not leveling down. In keeping with this idea, the post proposes a public finance analog for lobbying reform.
Wednesday, February 09, 2011
Lobbying as the New Campaign Finance
Heather K. Gerken
For those interested, I am guest blogging this week on Rick Hasen's Election Law Blog. My first post argues that in the wake of Citizens United, lobbying will become the new campaign finance.
Protean Rankings in the Economy of Prestige
Paul Caron brings news of the ranking system from Thomas M. Cooley School of Law, which pegs itself at #2, between Harvard and Georgetown. Caron calls it "the most extreme example of the phenomenon we observed [in 2004]: in every alternative ranking of law schools, the ranker's school ranks higher than it does under U.S. News." I just wanted to note a few other problems with such systems, apart from what I've discussed in earlier blog posts and articles on search engine rankings.
Sunday, February 06, 2011
"The Dark Side of Internet Freedom"
Mary L. Dudziak
With the uprising in Egypt, fueled by social networking, dominating the news, it may be jarring to read Lee Siegel's review of a "brilliant and courageous book," THE NET DELUSION: The Dark Side of Internet Freedom by Evgeny Morozov in today's New York Times.
Saturday, February 05, 2011
Is the U.S. a "full democracy" instead of a "flawed democracy"?
Charles Blow's column in today's New York Times is typically interesting, as he looks at a variety of data in different countries across the globe with regard to understanding social unrest. The United States, for example, has the largest geni coefficient (where bigger is not better) with regard to inequality of any of the countries he examines. What interests me, though, is that he describes Israel (along with Cyprus) as "flawed democracies' while the United States is listed as a "full democracy." I know nothing about Cyprus. But I do know a fair amount about Israel, and I'm perplexed by Israel's and the U.S. being put in a different category re "democracy." It is not that I'd describe Israel as a "full democracy," whatever that precisely means (Blow isn't telling), but, rather, that I'd definitely put the U.S. in the catagory of a distincltly "flawed" democracy. And the reason isn't that we elected a Republican House, any more than one would stop simply with Israel's electing Netenyahu as their PM. I won't rehearse all of the deviations from any acceptable 21st century of democracy in our own political system. The Senate itself is enough to establish our membership in the list of "flawed democracies." Israel, of course, suffers from an access of one version of "represenative government," whereby the Knessett is open to any party that can get more than 1-1/2% of the national vote, and the fragmentation of the party system (and of Israeli society) means that very small parties can engage in successful extortion in order to get their votes to join an inevitably fragile coaltion. But I suspect that there are fewer barriers to actual voting in elections in Israel by Israeli citizens (including the 20% of Israeli-Arabs) than there are in this country. [Update: And, as Frank Rich notes in his column in tomorrow's Times, El Jazeera English "is routinely available in Israel," unlike the good old U.S.A., whose principal television media are controlled by feckless cowards (perhaps afraid that they will be harassed by right-wingers in Congress should they open up their channels to what many of them undoubtedly simplistically define as "the enemy").]
A Wake-Up Call on Severability Doctrine