Legal Commentary

ICS Summer Research Seminar

Posted on February 04, 2011
I thought I'd pass along this notice from the Institute for Constitutional Studies about their upcoming summer research seminar, on academic freedom and the First Amendment (a pet issue of mine). I participated in one of these seminars a few summers ago and thought it was first-rate...

An economist's view of what is (charitably) called "legal reasoning"

Posted on February 04, 2011
Mark V. Pauly, Wharton School economist, is famous for cooking up the individual mandate at the behest of Republicans who wanted to preserve private insurance from governmental control of health care. Putting aside the well-known ironies of that fact for the moment, here's what Pauly has to say about the constitutional argument against the Individual Mandate: I?m not an expert on the Constitution...

Open Enrollment vs. Incentives to Purchase Insurance

Posted on February 04, 2011
Some outlets are now reporting a bit of political support for an amendment to the affordable care act that would replace existing incentives to buy insurance with a rule restricting new insurance contracts to a window of 4-6 weeks each year. (Confusingly, this is often called "open enrollment," since insurers must accept everyone during the eligibility period; I'll call it "limited enrollment" b/c I think that's clearer...

Conscription and Commerce

Posted on February 04, 2011
There is one unequivocal benefit to the recent controversy over the constitutionality of ACA's Individual Mandate: The argument against the mandate may force us all to revisit the correctness of the Selective Draft Cases, 245 U. S. 366 (1918). Randy Barnett's amicus brief in the Sebelius case attempted to distinguish the Draft Cases by arguing that conscription of personnel is somehow more explicitly linked to the power to raise armies than conscription of insurance purchases (aka conscription of "commercial" activity) is to the power to regulate commerce...

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Corporate Personhood & Popular Constitutionalism

Posted on February 03, 2011
There is a movement afoot to strip corporations of personhood, especially in the wake of Citizens United. The Vermont Senate just passed a resolution urging that the Constitution be amended to overrule Citizens United and recognize that "[t]he U.S. Constitution protects only the rights of living human beings...

Greetings from the Ice Planet Hoth

Posted on February 03, 2011
Now that I've shoveled out from the blizzard here in Milwaukee, I can begin posting. Thanks to Dan and the Prawfsblawg crew for inviting me back for another visit; I hadn't realized how much time had passed. The last time I was here, I blogged a four-part series on the Scrabble vs...

A Guide to Egyptian Law Enforcement

Posted on February 03, 2011
Have you been wondering why the ?army? is standing by while ?pro-Mubarak forces? are attacking Egyptian protestors? Egyptian law enforcement is not quite as black and white as most news coverage makes it seem. Over at Jadaliyya, Professor Paul Amar has written a guide to the players...

Want to Reduce Violent Crime in Your City? Trying Increasing the Poverty Rate

Posted on February 03, 2011
It's good to be back on Prawfs after a long layoff. I?m glad Dan invited me back. I guess that means I didn?t embarrass him too much the last time?either that, or he has a short memory. Since my last guest stint, one of my new gigs has been with the Milwaukee Fire and Police Commission...

Arguing Angela Onwuachi-Willig's merits to the right audience

Posted on February 03, 2011
My friend and former colleague Angela Onwuachi-Willig is one of the nine finalists for three spots on the Iowa Supreme Court. Over at Concurring Opinions, Kaimipono Wenger provides "[a] few reasons) why [she] should be appointed to the Iowa Supreme Court," but it really reads like "a few reasons why Kaimipono Wenger thinks he would be happy if she is appointed to the Iowa Supreme Court": Angela is a leading scholar on topics of racial justice and critical race theory...

A clipping for the "weirdly groundless journalistic pronouncements about law" file...

Posted on February 03, 2011
From The Economist, January 27th, 2011: "How will liberal democracies accommodate such [religious] variety? The clarity of a written constitution may give America an advantage over many European countries, where unwritten custom has more sway." Yep, I myself routinely rely on the "clarity" of our "written constitution" to resolve my legal doubts about, say, the constitutionality of the Individual Mandate...

Groundhog Day

Posted on February 02, 2011
Since the beginning of this semester, each Wednesday morning the alarm goes off at 6:00 a.m., I hear Sonny and Cher signing "I've Got You, Babe," there's another foot of snow on the ground, and we watch with bated breath to see what school follows "Sudbury" on the scroll at the bottom of the TV screen.

Foley and Barnett on Judge Vinson

Posted on February 02, 2011
I think they're dead wrong, but my colleague Elizabeth Foley has an op-ed with Randy Barnett in today's WSJ defending Judge Vinson's ruling striking down the individual mandate, as well as all of PPACA. The Nuts and Bolts of the ObamaCare Ruling According to the government's theory, wrote Judge Vinson, 'the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause...

Irascible Italy

Posted on February 02, 2011
This story reports Italy's rejection of the EU's "statement against persecution of religious minorities" because of what Italy claims to be the studied failure to reference the persecution of Christians. Italy was supported by France (vraiment??) in its rejection of the statement, which it felt to be too "secular...

Charles Fried on the Individual Mandate (and a Plug for Our Contract Law Symposium)

Posted on February 02, 2011
Charles Fried of Harvard, former Massachusetts SJC justice and Solicitor-General in the Reagan administration (hence a long time Republican), testified before the Senate Judiciary Committee, excoriating Judge Vinson's constitutional analysis in the individual mandate case...

A first hand report from Cairo

Posted on February 02, 2011
I recently received the following report from Cairo. For the person's safety, I am going to omit any possibly identifying characteristics. Hello all, The internet has just been turned back on here. No one knows how long it will stay on, but here are a few updates...

Lived (and Dated) History

Posted on February 01, 2011
I've been waiting patiently for the rotations to rotate; I should have posted this on January 20, 2011, the fiftieth anniversary of John F. Kennedy's inauguration. For some random reason about a month ago, I pulled Theodore H. White's Pulitzer Prize winning The Making of the President 1960 off the bookshelf and have been leafing through it because the 1960 Presidential campaign is one of my earliest memories of the world beyond the immediate surroundings of a pre-schooler (I was six and would have been watching it all on the black and white Muntz television while sitting on the Naugahyde...

Judge Vinson's incoherent extension of Printz's anti-commandeering principle from states to private persons

Posted on February 01, 2011
Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate: (1) It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61); (2) The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63)...

Greetings, and a confession from a faculty committee skeptic

Posted on February 01, 2011
Hello Prawfsblawg readers, It's been a while since I guest-blogged here, so a brief introduction: I teach "bad guy" law stuff (criminal procedure, national security law, terrorism & the law) at Lewis & Clark Law School, where I'm in my second year after spending seven years at the University of Iowa...

PPACA and three-judge panels

Posted on February 01, 2011
Judge Vinson's decision yesterday striking down all of PPACA (savaged by Rick and Brian and others, lauded by still other commentators) brought to my mind an interesting procedural question: Why did congressional Democrats not provide in PPACA for expedited judicial review, through a three-judge district court, with automatic review to SCOTUS? Would it have been better for the President and Democrats if they had done so? Several reasons for not fast-tracking are clear...

Greetings!

Posted on January 31, 2011
Hello Prawfs! It's a pleasure to be here. Thanks to Dan for this opportunity. During this stint, I'll be blogging about legal issues related to the turmoil in the Middle East. As we all watch the events in Egypt, keep an eye on the Egyptian Bar. As an 82-year-old president struggles to regain control of a country where 2/3 of the population is under 30, the Egyptian bar is poised to emerge as a powerful voice supporting the Egyptian opposition...

A Small-Town, Social-Media Parable

Posted on January 31, 2011
My co-author Daniel Friedel and I just finished a book chapter for a book called Social Media: Usage and Impact (Hana Noor Al-Deen & John Allen Hendricks, eds., Lexington Books, 2011). In the course of writing the chapter, I came across Moreno v. Hanford Sentinel, Inc...

A philosopher and a psychoanalyst walk into a classroom, redux.

Posted on January 31, 2011
The thoughtful comments left in response to my last post have prompted me to reflect more on the question of controversial sentiments in the classroom. I?ve received a few emails inquiring whether I personally fall in with Freud or Sartre, I realize that my answer is ?Neither ? I?m with Kant...

Rotations

Posted on January 31, 2011
February is nigh and so it is time to extend thanks to our January visitors, most of whom deserve special thanks for filling in for us in a pinch. Some of them will linger as they get some last posts off their collective chest, but it is also time now for us to welcome our new and returning voices for the month of February...

Mutatis Mutandis

Posted on January 31, 2011
Since people are writing about very serious subjects (health care, Egypt), I thought I'd start with something equally serious, and that is the use of the phrase mutatis mutandis in both legal opinions (not so much any more) and theory-heavy papers (still a bit more, I think)...

Quick Reax to the FL Dist. Ct. Health Care Ruling

Posted on January 31, 2011
Unsurprisingly to those who read its earlier opinion, the federal district court in Florida has held that portions of the Affordable Care Act are unconstitutional. Also unsurprisingly to those who may recall my blogging last year on this subject, I think the court's all wet...

A fun time to be teaching about Madison and Marshall

Posted on January 31, 2011
Judge Vinson's ruling regarding the constitutional challenge to the "individual mandate" is here. I don't know what is going to happen, eventually, with this challenge but I do know that the ruling's timing is great, for those of us teaching Constitutional Law this semester!

A Clearinghouse for Questions

Posted on January 31, 2011
N.B. This thread will get bumped to the front every 10 days or so. The first second batch of FAR forms were distributed a while ago and so we can officially say that the new year's hiring market has begun. We'll have two posts to get things started. This one, the first one, will be a place where wannabes can ask questions anonymously (assuming they are not especially offensive or otherwise improper), and prawfs or others can weigh in, also anonymously if they choose, but note that while I won't actively moderate this discussion forum, I will feel free to...

Jurisdictional defect in the PPACA litigation?

Posted on January 29, 2011
Yes, according to Kevin Walsh (Richmond), whose new essay argues that there is no statutory subject matter jurisdiction over the two state-initiated actions challenging the individual mandate--one brought by Virginia in the Eastern District of Virginia, the other by about twenty states (led by Florida) in the Northern District of Florida...

The Law of Baby Names

Posted on January 27, 2011
My new article on parental naming rights is now up on SSRN: This Article provides the first comprehensive legal analysis of parents? rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms...

More on Parenting: It's the genes, uh, silly.

Posted on January 27, 2011
In the midst of all this talk of Tiger Moms and Lion Dads, this recent study mentioned in the Wall Street Journal may provide some additional food for thought. It suggests that for poorer parents, environment is the most important factor in determining a child's "mental ability," whereas genetics is by far the most important factor for children in wealthier families...

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