Wednesday, November 30, 2011
Dean David Levi's Response to the New York Times
I have read with great interest the several recent posts responding to a news article and an editorial in the New York Times on the state of legal education in America. Dean David Levi of Duke Law School recently wrote a letter to the editor of the Times on this subject, which the paper did not print. He has given me permission to post it here:
Constitutional Theory is Like Toothpaste
Gerard N. Magliocca
We have now found the heart of our disagreement. Jack and some other scholars view originalism (in its more expansive form) as an interpretive theory that is doing meaningful work. I believe, by contrast, that it is now just a brand name that is getting close to becoming a generic term for interpretation. Indeed, originalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness.
Is Constitutional Theory Like Toothpaste?
Gerard's last post helpfully clarifies our disagreement. He writes: "there is considerable value in retaining a sharp distinction between constitutional theories. . . It just seems to me that once anything can be labelled as originalist, then that term is no longer useful and may just obscure the truth."
Tuesday, November 29, 2011
A Reply to Jack
Gerard N. Magliocca
I want to respond briefly to Jack's post, though I would like to think more deeply about his points over the next day or two. It is true that I am not an originalist, and it is also true that Jack's account of originalism is gaining traction in the academy. Now he asks why I should care about what originalism is (at least before I convert to the true faith).
Why Sigh . . . . About Originalism?
Gerard's post Sigh . . . Originalism proposes a test for what should properly termed originalism: "an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified."
Sigh . . . Originalism
Gerard N. Magliocca
Richard Nixon once said that "we are all Keynesians now," and constitutional theory is approaching the point where we are will all be originalists. Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack defends the Court's abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist.
Monday, November 28, 2011
Unconditional Bailouts: Capitalism’s Undoing
What are we to make of Bob Ivry, Bradley Keoun and Phil Kuntz's blockbuster report on the Fed's bailouts? The three journalists conclude that "taxpayers paid a price beyond dollars as the secret funding helped preserve a broken status quo and enabled the biggest banks to grow even bigger." Yves Smith argues that "banks lied" and grabbed $13 billion in profit. She also notes that their favorite water carrier, Timothy Geithner, "told Congressmen they were too stupid to be able to shrink banks, and they should leave those questions to the Basel Committee (which has no interest in making big banks smaller)."
Sunday, November 27, 2011
Bread, Freedom and Social Justice
Gary Jeffrey Jacobsohn on “Rights and American Constitutional Identity”
For those interested in the constitutional understandings of one of the leading political scientists (and constitutional comparativists) writing in the field, the journal Polity has just posted a podcast interview I did with Gary Jeffrey Jacobsohn, the H. Malcolm McDonald Professor of Constitutional and Comparative Law in the Government Department at the University of Texas-Austin.
Saturday, November 26, 2011
An Invitation to the Editorial Board of The New York Times
I extend to the members of the editorial board of The New York Times an invitation: come to the law school where I teach and I'll show you around.
Understanding Wealth Defense: Direct Action from the 0.1%
The OWS protests have provoked reflection on the morality of direct action and civil disobedience. How far should the police go to spy on, disrupt, or punish peaceful protesters? Is pepper spray a dangerous chemical agent or "a food product, essentially?" Does current American inequality merit a direct action follow-up to the Civil Rights Movement, whose mass-arrestees and water-cannoned marchers are now viewed as heroes?
Friday, November 25, 2011
Reforming legal education
The New York Times has an editorial in tomorrow's (Saturday, Nov. 26) paper on reforming legal education. The key sentences, I think, are the following:
A Growing 'Civilian-Military' Gap, and its Consequences
Mary L. Dudziak
"A smaller share of Americans currently serve in the U.S. Armed Forces than at any time since the peace-time era between World Wars I and II," according to a new report from the Pew Research Center (hat tip New York Times).
Wednesday, November 23, 2011
David Segal on Law Schools: A Note on the Published Correction
On Saturday evening I posted a response to David Segal's article in The New York Times on legal education. One of my points was that Segal didn't seem to know much about the law given his complaint that criminal procedure involved "case studies of common law crimes — like murder and theft" rather than training in plea bargaining. The Times has now revised Segal's article to substitute criminal law for criminal procedure and the following statement accompanies the online version of the article: "An article on Sunday about the emphasis on theoretical over practical learning in law schools misidentified a first-year course about common law crimes. It is Criminal Law, not Criminal Procedure."
Politics, Cognition and "Pepper" Spray
Does “pepper spray” really hurt? The answer probably depends on the relationship between the ideology of the person who was sprayed and the ideology of the person asking/answering the question. There is an internet buzz emerging over the suggestion by Fox news commentators & equivalent that “pepper” spray (it’s orders of magnitude more irritating than habanero) isn't all that painful. The debate is politically polarized along predictable lines. If the demonstrators who were sprayed had been protesting abortion rights outside an abortion clinic, would there be an ideological inversion of the perceptions of how much the spray stings? The answer is that we are unlikely even to get to that point in the discussion before we are already tied in knots over other facts relating to the behavior of the protesters and the police.
Does “pepper spray” really hurt? The answer probably depends on the relationship between the ideology of the person who was sprayed and the ideology of the person asking/answering the question.
There is an internet buzz emerging over the suggestion by Fox news commentators & equivalent that “pepper” spray (it’s orders of magnitude more irritating than habanero) isn't all that painful. The debate is politically polarized along predictable lines.
If the demonstrators who were sprayed had been protesting abortion rights outside an abortion clinic, would there be an ideological inversion of the perceptions of how much the spray stings?
The answer is that we are unlikely even to get to that point in the discussion before we are already tied in knots over other facts relating to the behavior of the protesters and the police.Read more »
Tuesday, November 22, 2011
The Last Days of Laissez-Faire
Spirited laissez-faire arguments peppered the media and other popular outlets in the decades leading up to the New Deal. These in many ways anticipate those now being used by the Tea Party and others on the contemporary Right.
Monday, November 21, 2011
Our notably unpardoning President
Justin Smith, a philoosphy professor from Montreal, has an excellent posting on the New York Times web site denouncing the "parody" of mercy by which President Obama will shortly "pardon" a turkey, who will therefore be allowed to live. Smith notes the fact that the United States is almost unique among the self-proclaimed "enlightened" countries of the world in its use of the death penalty. Rick Perry, of course, garnered huge applause from telling a Republican audience that he has let literally dozens of prisoners go to their deaths without his exercising his gubernatorial prerogative even to delay the sentence for 30 days. (Pardons and commutations are in the hands of a separate pardoning board in Texas.) This included his sending to death a very-likely innocent man who had been railroaded by junk-science testimony about arson, and Perry thereafter torpedoed a a post-execution attempt to find out the full facts. Moreover, Mitt Romney has publicly praised himself for never once using his own authority as Massachusetts governor to pardon anyone.
The Responsibility of Yale Law School for the Rise of Tuition Nationwide--And What It Can do to Help
Yale Law Professors Akhil Reed Amar and Ian Ayres (a fellow Balkinization contributor) recently posted a thoughtful essay on Slate noting the problems with tuition and debt. Tuition at private law schools has more than doubled in real terms in the past quarter century, average debt among law graduates is approaching $100,000, many graduates are not getting jobs as lawyers, and many who do get lawyer jobs do not earn enough to manage their monthly loan payments. Their main proposal, which they are urging their dean to implement, is to encourage law schools to offer law students a one-half tuition rebate to drop out of law school after the first year. By then, students will know whether they are interested in a legal career and their likelihood of landing a decent-paying job.
Sunday, November 20, 2011
New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You're 100)
Jason Mazzone has already addressed the main shortcomings of the latest N.Y. Times article by David Segal on law schools. I'd like to situate it as part of a neo-liberal ideology developing at the Times and other scriveners for the powerful.
Saturday, November 19, 2011
David Segal on Law Schools
David Segal has an article in The New York Times called "What They Don’t Teach Law Students: Lawyering." The article rehashes some old complaints about legal education: law schools emphasize the theoretical over the useful; professors don't have practice experience and spend too much time writing law review articles; and employers have to train law school graduates before they can work for clients.
The Washington Post reported a few days ago on the heavy involvement of conservatives in the world of viral political chain emails.