Category: Uncategorized

One of my favorite sites on the web is the Legal Affairs website. In addition to posting insightful articles from the magazine, it also hosts Bashman’s How Appealing blog, an absolute treasure for the court watcher, practitioner, commentator, or scholar.

But by far my favorite element to the site is the “Debate Club” feature. If you haven’t discovered it yet, go take a look. Each week, the powers that be at Legal Affairs invite two legal commentators to debate an interesting topic. Some of the topics are more compelling than others, of course; but it is usually a good read. All of the archives are available.

This week, Phillip Carter and James Joyner discuss whether the U.S. military must adopt a draft if it is to maintain its global presence, an issue discussed previously on slate.

I personally don’t have a horse in this race, but it seems to me that the best argument in favor of a draft is that it would give everyone in the country a personal stake in military policy. Of course, that benefit is only realized if the wealthy, the elite, and the connected are not given favorable treatment.

Posted by Hillel Levin on April 19, 2005 at 01:54 PM

One of the enjoyable things about guesting on this blog is that I get to share space with Rob Howse, who has no particular reason to remember me. I was one of any number of students who took a course with him at the University of Toronto’s law faculty before he (and I) headed south. (In my case, it was to warmer climes. I’m not sure RH gets to make the same claim.)

This happy coincidence has me thinking about one of the great joys of entering teaching. The law, in particular, is a backward-looking profession, in many respects, and one of the pleasures of teaching is that you get to keep faith with those who have taught you. I take some pleasure when I teach Con Law in knowing that I took the course from Louis Henkin at Columbia, who in turn clerked for Frankfurter and Learned Hand, who in turn knew Holmes, who in his turn, when a child, if recollection serves, met at least one of the founding fathers. So, in this way, we pass on to our students some connection, however reduced over time, to the past, and impress on them their place in one branch of the great chain of being. (I also took constitutional law in Canada, and am thus, I suppose, related by far greater levels of propinquity to the framers of the Canada Act, 1982, and the Canadian Charter of Rights and Freedoms. Funny that I’m not more struck by those connections. It’s not just a Canadian thing, I think; it’s that the more distant our connection to the past, the more likely we are to overlook the petty flaws and say, “Those were giants.”)

Similarly, in teaching one gets to pay tribute to one’s own teachers by emulating them. After all, what other training in teaching do most legal academics have? In my case, the foremost examples are all from Columbia, and all exhibit different traits of the ideal teacher. John Manning, who has since decamped for Harvard, taught me about enthusiasm, which is an essential tool in the large classroom (helped, in his case, by quarts of Mountain Dew). Mike Dorf taught (and teaches) me much about generosity, the capacity not only to inspire by enthusiasm but to fulfill the duty to be enthusiastic in advising and championing one’s students. And Kent Greenawalt taught me a surprisingly difficult skill: that of listening. Socratic lecturing and seminar teaching both count on interaction with students. Yet, as new teachers find, often one is so focused on where the material is going next that Socratic lecturing is a mere dumb show, in which you take comments until someone says what you want to go where you need to be next. A couple of years of teaching has taught me the difficulty of really simply listening to a student, and responding respectfully and thoughtfully, without regard for the direction of the class. I think it’s difficult to do this right until you’ve really road-tested your classes and mastered the material. I hasten to say that these three graces did not embody only these individual virtues. But on those rare occasions when I manage to do something right in or out of the classroom, it’s pleasing to consider that I’m repaying a profound debt to them in one of the few ways I can.

So, who do you intend to favor with the sincerest form of flattery when you hit the classroom next year? This is one of those few times, I think, when shameless flattery is highly appropriate, and I am always curious to hear which scholars are also role models in the classroom. (I’m doubly curious about the converse, but I won’t ask…)

P.S. Why are none of these models from Toronto, my alma mater? Not the quality of the teaching, certainly; Toronto was a terrific school, and I had some wonderful teachers. Perhaps because teaching there was even further from the Socratic model than at most American law schools. Or perhaps because my own schema invariably associate America with a certain kind of energy.

Posted by Paul Horwitz on April 19, 2005 at 11:58 AM

Comments

I knew that the Dudes were over-represented. But just to be clear: Brett Dignam is a woman (though I admit she is clinical faculty).

Posted by: Ethan Leib | Apr 20, 2005 8:15:26 PM

Interesting question for me since I’m not a teacher. But I do hope to spend my career channeling my two law school mentors, Nancy Morawetz and Mike Wishnie, who teach the Immigrant Rights Clinic at NYU. They are two people who embody for me everything that is (can be) great about the legal profession. What I admire most about them is not their teaching but their work — I mean, their litigation and community activism work. Nancy does a lot of work with deportation and “criminal aliens,” (remember St. Cyr, Zadvydas?) and she has an unbelievable ability to make the true human story behind some horrible law come alive. Mike works with a lot of immigrant workers’ rights groups and is also an incredibly smart and creative lawyer. I spent my third year of law school working more than full-time for these two in the clinic, which was much more of a job than it was a class. If my future work can be anywhere near as rewarding as the work they do all the time, I will be profoundly greatful.

I also really admired my Criminal Procedure prof, Andrew Schaffer, who was also a federal prosecutor. Prawfs take note! Schaffer gained the respect of every student in the room, including those of us who would later do Public Defender work, because of his integrity, his insistence on treating each student, defendant, and lawyer with honor, and his refusal to belittle students so that he could score points or come off as funny and sarcastic (the lack of last trait being an unfortunate flaw among many otherwise-ok law professors).

Posted by: Ariela | Apr 20, 2005 3:51:51 PM

Nuthin’ but dudes being channeled here. Perhaps this posting should be cited in the discussion about women in law teaching? I will break this all-male channeling streak with a most-sincere offering of my own: Pnina Lahav, my con law professor at Boston University. In addition to a stunning intellect, a kind and patient heart (even when I made lame errors while doing research for her) and a wonderful sense of humor (perhaps that’s how she tolerated my errors), she has the rare ability as a teacher, in my experience, to challenge a student and yet make that student feel truly empowered and connected to the material. These teaching skills seem easily overlooked in the competitive tenure grind of publishing, conferences, blog postings, etc.

Posted by: Brooks | Apr 20, 2005 3:28:43 PM

I went to the same law school as Ethan and had many of the same professors. Some of them were good. But from most of them I learned that you don’t have to be a good teacher to have tenure at a top law school. In fact, it doesn’t matter a lick.

Posted by: Truly Anonymous–and for good reason | Apr 19, 2005 4:19:50 PM

I learned from Bruce Ackerman to be audacious and intellectually curious. I learned from Bill Eskridge that teaching is performance and that one has a responsibility to do it well. I learned from Rogers Smith that vigorous dissent in the classroom excites students — and that the intellectual relationship between teachers and students should not end at the end of a term or at graduation. I learned from Owen Fiss to remain open-minded and intellectually honest even after you’ve figured it all out; he taught me that there is no end to the wonder that can be experienced when living the life of the mind. I learned from Brett Dignam that no legal education is complete without practicing in a clinic and constantly questioning the ethical dilemmas our profession presents. I learned from Akhil Amar that it is fun to argue with that annoying guy in the back of Fed Jur who seems to have actually done all the reading even though he’s a 3L. And I learned from Jack Balkin to be as funny and as wickedly clever as you can be.

In short, I have had many mentors who have shaped the sort of person I’ll be as a teacher and scholar. And I’m grateful to all of them.

Posted by: Ethan Leib | Apr 19, 2005 4:00:14 PM

Paul, I find it odd that I share the same sense that energy is something that is just present here in the US in a way that seems somewhat absent in Canada. I wonder how one can measure the restlessness of a city. Certainly Toronto is one of the most attractive places on earth to live and raise a family, and many of our cohort across Canada end up emigrating to Toronto, the same way that so many Americans migrate to NYC. But something is different. I’ve often joked that colors seems more vivid here; maybe Toronto is just more gray-skied than DC, and i’d feel differently if I lived in Ohio…

As to your particular question the answer is unhesitatingly: David Charny, who embodied intellectual generosity, trenchant wit, and basic and unceasing interest in the ideas and lives of his students. David was ripped from us at the age of 44. May his memory be a continued blessing.

Posted by: Dan Markel | Apr 19, 2005 12:32:53 PM

Why is it that everyone’s politics seems to coincide so happily with their jurisprudential instincts and principles?

Nowhere is this more true than in the legal academy and blawgosphere. Political liberals/progressives seem to assume that the Constitution can accommodate their agendas (e.g. gun control)–and sometimes even demand their adoption (e.g. abortion, death penalty). Political conservatives contend that “progressive” policies are not only wrong, but also unconstitutional (e.g. affirmative action, 11th amendment jurisprudence, gun control, commerce clause jurisprudence, etc). In other words, everyone seems to believe that the Constitution is perfect–and, serendipitously, perfectly aligned with his/her hir own politics.

My own view is somewhat different. In many respects, I am a fierce political liberal. I favor redistributive economics, same-sex marriage, liberal abortion laws; I question the death penalty and see many gun restrictions as just plain common sense. I could go on, but you get the picture.

At the same time, I certainly don’t believe that the Constitution mandates all of these policies; and in some cases, I question whether it even allows them.

In other words, my jurisprudence is often in conflict with my politics; I don’t view the Constitution as a perfect document that can accommodate and accomplish every policy goal I prefer.

Posted by Hillel Levin on April 19, 2005 at 11:26 AM

» Law and politics from The Listless Lawyer An anonymous lawprof over at PrawfsBlawg asks, “Isn’t it odd… that everyone’s politics seems to coincide so happily with their jurisprudential instincts and principles?”… [Read More]

Tracked on Apr 19, 2005 9:03:25 PM

Comments

Fine, fine, we’ll talk about Justice Scalia. I think MJ has it half right.

1. There is a cluster of issues on which Justice Scalia adheres to his identity as a “dog” in the dog-prag divide (Dahlia Lithwick and Walter Dellinger and perhaps other commentators have divided the justices into dogmatic and pragmatic along the lines you see in the Apprendi/Blakely cases) more than to any “conservative” identity. Thus, last year he went all the way with the Sixth Amendment, both in Blakely and the less publicized but also quite revolutionary Crawford v. Washington (argued by the same young lawyer from Davis Wright Tremaine in Seattle, by the way). Hamdi would be another example of how he is unable to resist taking what he views as constitutional principles to their logical conclusions, even if this leads to awkward results in practice. Stopping halfway (something he seems to think Justices O’Connor and Breyer do all too often) strikes him as pussy-footing.

2. There is another cluster of issues on which he just sticks to politically conservative conclusions and bends the Constitution to make it fit. Rather than run through the examples myself, I refer you to Adam Cohen’s very good (I thought) recent editorial piece in the New York Times pointing out Justice Scalia’s occasional judicial “activism” when it suits his politics. Cohen has examples in there besides rewriting the Eleventh Amendment.

Posted by: Ariela | Apr 20, 2005 2:10:46 AM

Since the topic turned, as it inevitably does, to Justice Scalia, I don’t think you can say, assuming he is a conservative (probably a fair assumption) that his jurisprudence always matches his policy preferences. The obvious, and oft quoted, example of Texas v. Johnson is only one example. Look at his repudiation of the administration’s position in Hamdi v. Rumsfeld, where he absolutely knocked the legs out from under the Executive’s authority to detain U.S. citizens indefinitely (and said Congress and not the President is the only body who could suspend Habeas Corpus). Similarly, I doubt that on a personal level Justice Scalia liked State Farm v. Campbell’s award of 145 million against a big business, but he flatly said that the Constitution had nothing to say about the matter.

It seems to me that the general point is valid, but that if there is an exception to the rule it would be Justice Scalia.

Posted by: MJ | Apr 19, 2005 5:28:47 PM

“In other words, my jurisprudence is often in conflict with my politics; I don’t view the Constitution as a perfect document that can accommodate and accomplish every policy goal I prefer.”

Same with me. But notice that we’re both posting anonymously?

Posted by: Anon Person | Apr 19, 2005 3:58:11 PM

Scalia claims just the opposite. He always says, quite felicitously, that “a Living Constitutionalist is a happy man. Every day he comes home and tells his wife that the Constitution said just what he’d like it to.”

This is a habit of mind that must be broken.

Posted by: Yusif Shakur | Apr 19, 2005 2:22:56 PM

Thanks, Dan, for the responsive post. I suppose part of my response has to be: “What do you mean we, kemo sabe?” I happen to be extraordinarily funny.

More seriously, I agree that the goal of an academic ought to be to get the arguments right. Whether or not this is the primary goal of a political worker is another question, although I think it ought to be. But an academic, in my fusty understanding of its loftiest purposes, ought to care more about following a train of thought to its necessary conclusions than about where those conclusions lie. I concede that not all academics think this is so, and that is fine. But the trait I find too often missing in legal scholarship is the capacity to be surprised. I would like to think that more scholars work outward from the point of curiosity about the question that needs to be resolved or rethought, toward the conclusion, and not vice versa. But I’m not convinced.

Why spend more time attacking one’s friends than one’s enemies, as I lightly put it? Is this a problem? For me, it’s really a personality trait — cussedness, contrarianism, etc. Really, though, it’s also a matter of what is interesting and worthwhile. How much time do I want or need to spend reaching a point of easy agreement with others? Even if you agree that some set of conclusions are simply true, and truly simple, why devote your resources to those questions when you can worry about the complicated questions? And if, as is likely, your views tend to lie within a reasonably circumscribed spectrum, such that some set of views are within the Lessigian realm of the contestable and others are uncontestable, surely you’ll find yourself raising contestable issues within your frame of reference, and hence making life difficult for your allies.

I grant that these views apply especially to those who are interested in analyzing policy rather than making it, and I have no answer to the question how much time the politically active left, as opposed to left-leaning academics, ought to spend attacking itself. I think the answer is that it depends on how intractable the philosophical differences are. The more substantial they are, the more unavoidable the battles are, until someone can do a sufficiently effective job of galvanizing the left.

Does the Left really eat its young to a greater degree than the right does? There are plenty of internecine battles on the right, which are likely to increase; and certainly it is one story one could tell about turnover between the first and second Bush 43 administrations. Perhaps the problem is not that the left battles itself, but that it talks so damn much about that fact, and so makes those battles more salient and visible.

Nor do I think that there is a problem of levity in the left that is greater to any degree than among the right. To the extent the seriousness of the times is relevant — and I don’t think it is; to the politically committed, the times are always serious — it is because these are boom times for earnest folks, and earnestness is death for humor. That’s especially true if the earnest folks are also self-serious, since the best humor, in my view, involves cutting yourself as close to the bone as possible without quite filleting yourself.

Posted by Paul Horwitz on April 19, 2005 at 06:45 AM

Comments

To answer one question from the original post: yes, I do believe that the Left is a fractured, internally inconsistent, self-cannibalizing movement. While the conservative movement has its infighting, I think that it does a much better job of uniting to promote a few philosophical positions and policy goals than the left does.

Case in point: 90% of conservatives will agree with the statement that reducing taxes is usually a good thing. It is amazing how the disparate groups that make up the Right all push together to lower taxes (the Christian Coalition’s website used to list its number one political goal as lowering taxes…despite the fact that this has absolutely zero relation to Christianity or the Bible). Can we think of a single sentiment that unites the Left? No.

Perhaps this all indicates that it might be more accurate to say that the Left’s coalition is more ideologically and politically incoherent than the Right’s or that the Left has done a poor job coordinating and mediating between its different factions. That might be a more accurate way of describing what I feel is wrong with the Left than calling ourselves “self-cannibalizing;” perhaps, the self-cannibalizing isn’t due to the personalities of individual Lefties as much as the fact that our differences are greater.

Even if it is true that the Left’s internal divisions are what’s causing this behavior, I don’t think that there’s anything wrong with trying to create intellectual space where Lefties can overcome these internal divisions. I think that is why it frustrates me to see that the intellectual arm of the Left is often so far out of touch with political reality. Our numbers are dwindling, and academic institutions are one of the few places left where Leftish thought is still fashionable. In the past, when liberalism was so pervasive, it might have been easier to ignore it when many professors engage in theoretical arguments that are unrelated to current political realities. As it stands, though, America is becoming more conservative by the minute, and I’d like to rally the troops.

But I think I’m now (if I haven’t already) overstepping my bounds. I won’t start law school until this fall, and I feel a little awkward preaching to a bunch of people who are officially several steps above me on the food chain.

(To be honest, though, I really do think that a great generalization holds true: the Right is much more influenced by a more efficient corporate-style model of organization, while the left is influenced more strongly by the individualistic academic model of organization. While our free-spirited style of debate and leadership sometimes has its advantages, I think it is undeniable that it contributes to our organizational weakness and strategic confusion.)

Posted by: Jeff V. | Apr 19, 2005 6:51:22 PM

Ariela is certainly correct that whether “women can have it all” is not something of interest only to progressive types, though I wonder whether the cause of women’s equality is really at the forefront of social conservatives’ agendas. I guess the reason the topic of family-friendly work environments seems tinctured with progressivism is because the discussion came about in some way as a response to fears of patriarchal domination in society and legal education, and that too is not something typically addressed by the “right.”

Thus, the comment that this discussion was self-cannibalization resonated at least insofar as it’s a topic more likely to be tackled by the left and to divide the left, when there could be other issues that would unite it against “the bad guys.” As Paul wisely noted, that is a good strategy for political organizations; but this blog space is not singlemindedly devoted to the causes liberals take up so much as the soundness of the arguments underlying them.

Of course, Ariela’s larger point stands: women’s rights are human rights, and they deserve vindication against tyranny both abroad and at home, and in the home.

Posted by: Dan Markel | Apr 19, 2005 11:43:37 AM

I’m intrigued and mystified by the notion, which seems to have gained instant currency on this blog, that our earlier discussion about feminism and legal academia was an attack on the left, or an example of the left cannibalizing itself. Who says? This idea was first suggested by a blogger contributing to that discussion, then picked up uncritically by Dan and now Paul. For my own part, I don’t see my criticisms of certain assumptions about family roles as aimed particularly at the left. Certainly the focus on whether professional women can have it all, without any questioning about whether men can have it all, is not the exclusive province of the left. Yet, clearly, the idea that some of us advancing these ideas were “cannibalizing ourselves,” or attacking the left in particular, resonated with some of you. Why do you think that is? I think the criticism is far more universal — it’s aimed at the broad segments of our society (left and right, I guess) that put women’s professional and family responsibilities under a microscope but fail to ask whether women would better be able to do either job if their male partners picked up the slack in the other department.

Posted by: Ariela | Apr 19, 2005 7:55:17 AM

I saw Todd Solondz’s new movie, Palindromes, this weekend. Read about it — but don’t waste the ten dollars to see it on the big screen. The reviews give you what you need to know, and there isn’t much left in the filmic experience that isn’t already covered in thinking through its ideas on the page.

Given my interest in the right to procreational autonomy, the movie did present one issue that struck a nerve: a 13-year old girl/woman, Aviva, gets pregnant and her mother essentially forces her to have an abortion. Forget for a moment that the abortion leads to a hysterectomy that deprives Aviva of her procreational autonomy for life. What are we to make of parents who force their children to abort? I’m usually fairly suspicious of children’s ability to choose what is best for them. But my wife — who is a lawyer acting as a law guardian charged with the responsibility of making choices for and with children all the time — assures me that they are fully capable of acting in their best interests and that we should encourage them to make choices and live with them.

Later in the weekend, a father told me that our democracy will continue to fail and our citizens will continue to be uninterested in self-governance so long as we allow parents and schools to structure our children’s lives without empowering them to make decisions and live with them.

Thoughts?

Posted by Ethan Leib on April 18, 2005 at 09:49 PM

Comments

Ethan as a famous man once said “if you can’t say it right don’t say it at all!” and i’m saying this because well now i’ve never seen the movie but you kinda went of topic talking about that movie. Now back to the voting, kids should vote though it ould give them a good chance to show the world they can something better than adults:]lol lol lol lol lol. I said that because i know this man that gets so nervous that when he votes he picks the person with the shortest last name.

Posted by: caleb | Mar 12, 2007 8:58:03 PM

I agree with Ruchira. What I told Ethan, in full, was that though I did believe that most older children are capable of making moral decisions, this has mostly only theoretical significance. The true reality of most situations is that children are in too helpless of a position in society to deal with practical consequences of their decisions.

I represent children in a legal system in which the law attempts to straddle both the theoretical and practical aspects of a child’s decision-making ability, and succeeds fully at neither.

In cases where a parent’s actions cause her to lose her superior right to make decisions for a child, the state assumes the role of a surrogate parent. There’s a ‘standard’ which governs: ‘the best interest of the child.’

Further, the role of the attorneys who represent these children in Family Court matters is even more morally ambiguous. Law guardians, as we’re called, must act differently according to the age and maturity of the client. For a young child, a law guardian is encouraged to ‘substitute judgment’ and determine what is in the ‘best interest’ of the child, regardless of that client’s express desires. For an older child, who presumably has greater moral capacity to make decisions, the law guardian must advocate for that client’s wishes, even if the result desired by the client might be detrimental to the client. Who makes the decision about which category a thirteen-year old child might fall into? The law guardian.

Because the court makes the ultimate decision, once I stumble over that philosophical hurdle, the judge, acting as parens patriae, reviews my decision and rules according to this wacky, overbroad, and completely subjective standard, ‘the best interest of the child.’

Posted by: wife-o | Apr 20, 2005 2:24:32 PM

As far as I’m concerned, Ruchira has got Jean-Jacques figured out correctly. Supposedly Yogi Berra said, “In theory, there is no difference between theory and practice, but in practice there is.” That sums up my view of children’s autonomy — it’s a great-sounding idea, but if put into practice leads to disasters. I believe in giving kids prescribed choices: “Would you like a carrot or an apple?” rather than, “What would you like to eat?” Giving kids autonomy sounds nice, but it becomes harsher when you get to the forcing-them-to-live-with-the-consequences part. It almost feels like you are setting the kids up for failure when you allow them to do things that you, with the benefit of adult perspective, know will be bad for them.

The problem with a pregnant 13-year-old is that she has been put, too early, into an adult situation. That’s part of the tragedy. It’s also a classic dilemma (political theorist Bonnie Honig writes about these), in the sense that no choice she could make will be a “good” or “safe” one. That said, the idea that the grandparents would force the girl into an abortion she vehemently opposed is upsetting, to say the least. Pregnancy, miscarriage/abortion, and birth work enough assaults and indignities on the body even when they are sought out by an adult. To force a child to endure one of those forms of battery against her will (when she prefers another such form) seems downright abusive.

Posted by: Ariela | Apr 19, 2005 3:53:24 PM

A thirteen year old girl (not a woman, for sure) getting pregnant, is a sad event, no matter what the outcome of the pregnancy is. I will not address the issue of loss of procreational autonomy but just the matter of parental participation in deciding the fate of the pregnancy.

I am for empowering children to make decisions from an early age (as long as they call home regularly)- in fact, as early as the child starts to communicate verbally with others. Except for issues of health and physical safety, which a child may not recognize due to inexperience, parents and other adults ought to leave children alone for the most part. Pregnancy at an early age is a matter of health – physical and emotional, and it is wonderful if parents can discuss its implications with the child in a sane manner without climbing on a moral or rage filled soap box or better still, if they prepare the child not to get in this situation at all. A childhood pregnancy affects not the child-mother alone – particularly, when it ends in a live birth. I assume that most thirteen year olds do not have the financial or even the physical savvy to care for an infant independently. In most cases, the parents of the young mother will have to play a significant role in caring for her newborn. Harking back to Ethan’s logic of a man’s right to choose because he is responsible for child support, the grandparents’ predicament must not be dismissed lightly either, especially if they end up being responsible for both teen mother and her child for some years to come. As with all matters of life and death, this is an issue which is probably best decided on a case by case basis – depending on the parent-child relationship, the health and age of the pregnant child, the circumstances which caused the pregnancy, financial and emotional wherewithal of the family and much more. And adoption is always an option.

As for the fate of democracy and self-governance where children are denied autonomy, it has been a question for parenthood and pedagogy through the ages. Jean-Jacques Rousseau, the most fervent advocate of children’s autonomy, believed that at the very instant of birth, we partake of the rights of citizenship. He argued that the education of a child had much greater far reaching implications for society than it had for the parents (who, according to actuarial calculations, will die before the child) and as such, parents ought to have a minimal role in shaping their children’s minds. Pathbreaking as his ideas were for educational philosophy, it is good to remember that Rousseau committed his own children to the orphange soon after their birth and in his old age, did reconsider his position on unlimited autonomy for children. In a perfect world, where we are all rational beings, parents and schools would prepare children to experiment, observe, ask questions and come to their own conclusions. They would act as facilitators and not repositories of all wisdom. But based on my own experience as a teacher and parent, I know that a bit of whip cracking is beneficial to child rearing. Also, it helps when you don’t lie to children about yourself and the world – the best training you can give is to teach them to keep their B.S. detectors polished and in working order through life.

Posted by: Ruchira Paul | Apr 19, 2005 2:07:44 PM

I proposed that 14 be made the age of full adulthood, in all legal senses, voting, drinking, contracts, driving, the death penalty, and my favorite, self financial support. That was a good landmark until the 19th Century.

It is also endorsed by nature, in making the individual fecund. As to maturity, that comes from experience and making mistakes. So the 50 year old is more mature than the 40 year old. By that measure, 80 should be the voting age. Indeed, much capacity progressively deteriorated after the teens.

That proposal gets unanimously booed by adolescents, including those in my home.

What they want are privileges. We can keep the burdens of responsibility.

Posted by: SupremacyClaus | Apr 19, 2005 1:59:14 PM

Ethan, if I’m not mistaken, Paul Peterson, a political scientist at Harvard, has advocated that children be given political rights at least so as to balance some of the rent-seeking behavior by the old folks in the country who send their AARP reps to fleece the young… There may have been a story in the Atlantic Monthly about this years ago. Here’s a link on why kids should get the vote. It cites Peterson’s study showing that the gov’t spends ten times as much on old poor people than young poor kids. http://www.youthrights.org/voteproposal.shtml

Posted by: Dan Markel | Apr 19, 2005 11:48:51 AM

Ann Coulter believes the media is out to get her. Why is she so upset? They had the temerity to make her feet look larger.

Color me outraged.

Posted by Hillel Levin on April 18, 2005 at 09:07 PM

In the NYT Mag’s piece on the Constitution in Exile, the following point is made:

According to Epstein, the Takings Clause prevents the government from redistributing wealth in any form without appropriate compensation and that a proper understanding of the clause calls into question ”many of the heralded reforms and institutions of the 20th century: zoning, rent control, workers’ compensation laws, transfer payments,” as well as ”progressive taxation.” Liberal governmental reforms could be sustained, Epstein argues, only if the government were to compensate individuals for the lost value of their property or to make everyone better off in exchange for their taxes.

This is an interesting issue, one I hadn’t thought of before. How is it that taking Jane’s money to give to Sam is not a violation of the “just compensation” element of the Takings Clause? (Epstein may or may not believe that the “public use” prong is also at issue; I don’t.)

I’m sure there has been good stuff written on this question, but I’m not familiar with it. Please provide me with your cites and insights in the comments sections.

Posted by Hillel Levin on April 18, 2005 at 05:01 PM

Comments

That’s a silly argument. The answer is simple:

’cause there’s other, more specific, provisions of the Constitution specifically permitting taxation. (And those provisions don’t include any restriction on redistributive use.)

To read the takings clause that broadly would require not reading the sixteenth amendment at all. And, since the sixteenth amendment came after the fifth, if they’re in conflict the resolution of such a conflict would have to go the other way around and bye bye takings clause.

(I tend to think that the takings clause just means, on the very outside, no individualized taking of property/taking of specific property. “No land shall be used for a hog rendering plant” = no taking. “Your hog rendering plant is now a public park” = taking. But that’s not as clear as the undisputable fact that taxation isn’t a taking.)

Posted by: Paul Gowder | Apr 19, 2005 7:54:46 PM

Here’s a cite–the issue of compensation for legal changes is very intelligently addressed in Louis Kaplow’s piece on legal transitions, which appeared a number of years ago in the Harvard Law Review.

Posted by: Rob Howse | Apr 18, 2005 8:38:42 PM

Remembering Saul Bellow, the Teacher

By Robert Howse

In the novels of Saul Bellow, who died two weeks ago, lawyers take a real beating; it was his lawyer that announced to the world Bellow’s passing, and I’m inclined to believe that was no accident—conveying bad news, he probably thought, was among our few professional strengths.

It’s hard to write about my own experience of Saul Bellow—it happened in my early twenties, when I came to the University of Chicago for graduate studies in political theory. At the time, I was fascinated by Allan Bloom, the student of Leo Strauss who eventually went on to pen the best-selling Closing of the American Mind. At the University of Toronto, I had been seduced by Bloom’s readings of Plato, Rousseau and Alexandre Kojeve. There was a slight problem, though: I was, mostly, a left liberal (with some communitarian leanings back then, making me what they call in Canada a “red Tory”); my politics in every sense were opposed to Bloom’s and especially to those of his circle of disciples, almost all budding neocons. Self-destructively, but hoping to learn more from Bloom about the history of ideas, I followed him from Toronto to Chicago. While Bloom wasn’t supportive of my idea to study at the Committee on Social Thought, his own lair at Chicago, I did manage to get admitted to the Political Science department.

Bellow was co-teaching with Bloom seminars on literature—Stendhal, Flaubert, Celine, Machiavelli’s drama, Moliere, Dostoevsky, and so forth. It amazes me now just how pushy a fellow I was in those days, but I found a way to barge into those classes despite Allan Bloom at first denying me entry. (I imagine he liked to keep access to Bellow as a perk for his favorite students, and I sure wasn’t in that ballpark.)

Was it perhaps Bellow himself who saved me from expulsion, causing Bloom to relent? I’ll never know.

What I do know is that Bellow largely salvaged my mental health.

I was miserable at Chicago; these were the early Reagan years, where the mood there was one of conservative triumphalism. While the neocons are now claiming him as a fellow traveler — albeit not a full adherent, see John Podhoretz’s op-ed in the London Times a few days ago — Bellow was truly beyond left and right. He was as ruthless in dissecting conservative prejudices as leftist ones.

And he could and did stand up to Allan Bloom’s prejudices: the repartee in those seminars created an oasis of freedom of thought in a desert of intellectual Reaganism. (It wasn’t that there weren’t theoretical alternatives to the Right at Chicago—Raymond Geuss’s classes on Hegel and Leszek Kolokowski’s on Pascal supplied that; but there wasn’t the same liberating effect as when Bellow took on the high priest of the American philosophical Right.)

Bellow had a magical gift for diving into the human depths and resurfacing with a smile on his face; he saw the comic side of even the most weighty matters. It isn’t too much of an exaggeration to say that he taught me how to laugh again. He knew all the jokes in Dostoevsky. He cautioned the students against gratuitous ponderousness in their engagement with literature: “That’s practicing psychoanalysis without a license!” I remember him once quipping, when one of my classmates attempted to see through a character without seeing the character.

His differences with Bloom and Bloom’s circle are well expressed in his roman a clef about Bloom, Ravelstein: Bellow suggests that, as a writer, you have to give people “due process.” You can’t just dismiss them as unworthy if they don’t fit into your own circle; nor can you overlook the vices and failings of those who are your friends and flatterers.

Saul Bellow was like Bloom a critic of American culture and morals, but an admiring and constructive one: he liked the fact that in America ordinary men and women could pick up a work of Shakespeare or Tolstoy and make of it what they wanted, without the baggage of literary criticism or academic interpretation. He just regretted that it happened not so often these days. He would have none of the Bloom elitism that deep spiritual experiences were the preserve of a (pre-) chosen few, requiring a very special kind of education; this was, to Bellow, European or Europhile snobbism—in one of his novels, he refers to the “canned sauerkraut of Weimar intellectuals.”

Bellow’s disagreements with Bloom gained all the more credibility and weight from the obvious fact (again so evident in Ravelstein) that, far from being one of the thousands of Bloom’s enemies, he respected Bloom and loved him as a friend. Bellow’s Olympian status as Novel laureate and confirmed grand man of American letters would have made a snobbish, anti-egalitarian pose almost acceptable in Bellow—but he turned out to be Olympian enough to be above that. Podhoretz suggests that Bellow turned from left to right; but, in fact, his politics were as complex as Goethe’s—like Goethe he saw matters from very many angles. His politics are reminiscent of the multifaceted reactions of Goethe to the French Revolution and its consequences. Just as one can use the elderly Goethe’s words to condemn the French Revolution, one can find sound bites of Bellow’s that seem to confirm his “conservatism.” But this is a very impoverished and one-sided picture of a man, who—to translate loosely an expression of Tocqueville’s—was not always unpartisan but saw into the human condition far beyond the partisans.

I never tried to make a personal connection with Bellow; I was a silent observer in his classes, basking in the liberating, therapeutic atmosphere. Many years later, I happened to have a chance encounter with him. I apologized for being such a passive pupil. With characteristic grace, he absolved me, saying that there are worse things than being a quiet student. I even might have mentioned having dropped out of Chicago; he didn’t seem to take that as something shameful. After all, he himself had done okay after leaving Hyde Park degreeless.

Posted by Administrators on April 18, 2005 at 11:37 AM

Comments

Sorry, I forgot to add that this was an amazing post. I love Bloom and love to hear anecdotes about him. Especially interesting memories of Bellow. You have honoured him well.

Posted by: Jonathan | Apr 19, 2005 2:35:28 AM

“a left liberal (with some communitarian leanings back then, making me what they call in Canada a “red Tory”)”

I don’t mean to get picky on the definitions, but I believe a left-liberal is closer to a New Democrat. Red Tory’s are right leaning liberals.

Posted by: Jonathan | Apr 19, 2005 2:28:37 AM

Paul’s very thoughtful post about balancing political passion and pragmatism in an academic career (see below) made me think of two things, which are somewhat orthogonal to the thesis of the post, and so I post these separately.

First, he raises the very important question about mission, saying that he’d rather have the chance to critique the views of his friends than to attack those of his enemies. This makes good sense to me. However, after the stir the posts this past week about gender and the academy created, one thoughtful commentator said, in effect, why is the Left so intent on cannibalizing itself when there serious bad guys to defeat. It was, at the time, an important question to me, and remains so.

Nonetheless — and putting aside the question of the purported leftism of this blog, which is in reasonable dispute — I suppose I’m more interested in creating a space where we’re not on the attack, but rather, as Michael Walzer once wrote, “just trying to get the arguments right.” Sometimes that’s attack, and sometimes it’s retreat, and sometimes it’s coddle and reflect. There is room for political antagonism in the blogosphere, but I doubt this will be the space for it.

In that vein, this should be a place for serious discussion, but also for some levity, which is the second point Paul’s post raised for me. Has the Center-Left lost its sense of humor? When did it happen?

I suppose Wonkette, Al Franken and Jon Stewart, among others, have tried to help us recover it in popular media, but I wonder if others have also basically stopped reading Wonkette and watching the Daily Show since the election ended. Have we lost the Hobbesian strategy of using humor to deflate the pretensions of our interlocutors, if not ourselves?

This flight from levity may be reasonable. The nation is at war with a loathsome enemy that many liberals refuse to acknowledge — and at the same time has conducted this war with seriously disturbing methods — while the leadership of the country fails to call for sacrifice from the public much beyond continued consumption. Domestically, myopia plagues this administration as much as avarice. So there is lots to be worried about, and I’m not sure where levity can be found, under the circumstances.

Any thoughts Paul? Others?

Posted by Administrators on April 18, 2005 at 10:36 AM

Comments

Hmm…I like the idea of a space to “get the arguments right” for the American Left. Many commentators have characterized the 2004 election as the beginning of our own period of out-of-power reflection, analagous to what the Republican Party experienced between 1960 and 1968. During this period, so the story goes, the conservative party turned inward to debate its goals, political strategy, and philosophy, and laid the foundation for its victories over liberalism in the eighties and nineties.

Bill Bradley, in an op-ed in the NYT, recently noted that the Right has a much stronger organizational structure than the Left; its various subdivisions are more cohesive, its think-tanks are more prominent, its financial resources are greater, its support structure for political candidates is better, and its use of cutting-edge political tecniques (direct mail, 10 years ago…and the use of marketing-style niche targeting, in this past election) is better. Perhaps this blog, and others like it, can serve as a small link in a nascent liberal structure that will help our long-term political chances.

That said, let’s look at our approach. To put it bluntly (and quickly), I think that any focus on advancing a culturally liberal agenda is likely to do us more harm than good politically. I think this explains my reticence to argue and re-argue about issues such as many of those raised in the feminism/academia post. Quite frankly, 75% (or more) of Americans (including myself) view the nuclear family as the bedrock of society. Advocating approaches that drastically affect the nuclear family will only bring electoral defeat upon our liberal heads. In a similar vein, I would like to downplay the Democratic Party’s emphasis on issues such as abortion, LGBT rights, and school prayer. Instead, I think liberals would be better served with a renewed emphasis on our economic and social policies.

Hopefully people won’t be too mad that my post is mainly a re-hash of “What’s the Matter with Kansas”…

Posted by: Jeff V. | Apr 18, 2005 7:44:15 PM

This piece in Sunday’s NYT Magazine is the talk of the blogosphere this week. Even semi-retired uber-blogger Andrew Sullivan is in on the act.

In the piece, Jeff Rosen claims that believers in the Constitution in Exile wish to roll back decades of precedent and return to the Lochner era, and that they may be poised to capture the judiciary. This could mean the end of social security, welfare, environmental laws–in short, the entire regulatory state.

I must admit that I am not the expert on libertarian and conservative jurisprudence that these Volokh conspirators are. (They are doing a tag-team takedown of the central thesis–that a jurisprudential theory that can be labeled “Constitution in Exile” even exists–a project that began months ago.)

Even so, I agree with them that Rosen’s thesis presents, um, difficulties. His biggest mistake, I think, is in lumping together such disparate legal scholars, judges, and practitioners as Michael McConnell, John Roberts, Richard Epstein, Michael Greve, Ginsburg, Michael Luttig, William Pryor, Clarence Thomas, Janice Rogers Brown, Randy Barnett, William Myers, and others, and claiming that they can all be categorized together jurisprudentially.

As near as I can tell, the only thing these folks have in common is that they are (for the most part) principled conservatives who appear to believe that the Commerce Clause and/or some other constitutional provision has been interpreted too broadly.

This is what makes for a secret cabal that is dreaming and/or poised to take over the judiciary?

Posted by Hillel Levin on April 18, 2005 at 10:20 AM

Comments

Ariela: Two points as to why we should apply principles rather than mere politics to the Constitution. 1. On the theoretical level, what use is there for a Constitution that establishes a government and, among other things, safeguards the rights of the minority if it is simply the majority that determines what those safeguards are? However, if you are a committed realist/crit, I don’t suppose I can convince you by reference to democratic theory. And I don’t mean that snidely: the realists and the crits make strong an convincing arguments. 2. On a practical level, if it really is about politics and policies, then the whole ball game comes down to persuasion. Aren’t we more persuasive when we refer to neutral principles that we’d apply elsewhere? If it really IS all about politics, then we ought to abandon all pretenses about adhering to the Constitution. At the very least we should stop lying about it. I’m willing for it to be all about politics rather than principle, but I’m not willing to lie about it. When the conservatives say “all you liberals do is use the liberal activist courts to pursue anti-majoritarian agendas that you could never push democratically; and the constitution has nothing to do with it,” I’ll be forced to say, “That’s right; and it really stinks to lose, doesn’t it?” I think one reason that political liberals lose so frequently at the polls these days is that we have become, on a number of hot-button issues, anti-populist and non-persuasive; and lots of mainstream Americans view us as liars. We have put all our eggs in the courts’ basket. As a consequence of this losing, we will eventually lose the Court too; indeed, in some senses we already have. If we adopt principled constitutionalism we will no doubt lose many important battles; and I certainly don’t suggest that we should shun the courts altogether; but perhaps we stand a chance of winning a long-term war.

Posted by: amosanon1 | Apr 19, 2005 11:58:30 AM

Ariela, the principles have the be the highest goal, the aspirational underpinning of the judiciary. While I have my political views, my view of the legal landscape is based on interpretation of the law first. I have come to conclusions that were very much against my personal beliefs because that is where the interpretation of the law would go. The question that is asked over and over again is whether a new judge is going to follow the rule of law. The question of the method of interpretation will differ, but if we stop thinking that the ideal of a fair and impartial judiciary is the best option then we have lost the integrity of the judiciary. A lawyer, and by extension the entire judiciary, has only their integrity at the end of the day. There was a case recently where Ginsberg concurred with the majority in protecting an HMO, I think, under ERISA because that was the correct legal response. She, however, wrote a concurrence to point out the problems with this line of cases and the fact that it was a problem that Congress needed to fix. This isn’t just about stare decisis or respect for tradition, it is also about the respect for the institution and what will be left of that institution in the future. If that legacy is tarnished by partisan hacks who do not respect the rule of law, on which our nation was founded, then the populace will lose what respect is left for the judiciary as it becomes everything that the idealogues complain it is. In short, the world is a better place when jurists of integrity look to the law and make their decisions with as little of their partisan pre-determinations as possible because the judiciary is the integrity of the nation.

Posted by: Joel | Apr 19, 2005 10:56:08 AM

But WHY should we? How will that make the world better? I have always had a hard time understanding it (unprincipled hack that I am), both in the world of Anglo-Am. jurisprudence and in the world of religious law (which is what my husband does for a living). I’m not asking this flip-ly, I really want to know why people think it’s important.

If conservative jurists agreed to stick neutrally and fairly to legal positivism and precedent (so that we got out of the cycle of “well, but THEY were just being cynical ideologues when they came up with this Eleventh Amendment crap at a Federalist Society meeting”), would you agree to do the same? I’m not sure I would, and I know that makes me a bad lawyer/person, but, again, WHY is it wrong?

Posted by: Ariela | Apr 19, 2005 8:02:44 AM

Ariela has hit the proverbial nail on the head (again). These battles aren’t really about the constitution and principle; they are about politics.

The difference Ariela and I may have (though I’m not certain) is that I consider this state of affairs unfortunate. We really SHOULD care what the 14th amendment means, what the 11th amendment means, and so forth. We should have a principle about precedent, whether pro or con, and we should apply it neutrally. We may not always succeed in divorcing our politics from our jurisprudence, but we ought to try, no?

Posted by: amosanon1 | Apr 19, 2005 7:38:17 AM

Will Baude correctly identifies what I see as deep-seated confusion and a certain amount of self-deception among people I’ll lump together as “liberals” when it comes to the nature of the threat we are facing. Many New York Times readers (including non-lawyers with whom I’ve discussed this) claim to be extremely alarmed that J. Thomas and his minions are ready to throw out decades of precedent and roll back the New Deal. But I wonder how many of those people really care about the precedent part. Call me an unprincipled hack, but I have no more fidelity to stare decisis than Thomas does when it comes to lines of precedent that work against my political values. Most liberals would probably be perfectly happy to toss Seminole Tribe and its progeny out the window in a heartbeat. As a proponent of immigrants’ rights, I would love to chuck the entire doctrine of plenary power and the Chinese Exclusion cases — the doctrine was stupid and racist in the late nineteenth century, and 125 years of xenophobia and red-baiting haven’t done much to improve it. Why should I pretend to be appalled that Justice Thomas feels the same way about an expansive Commerce Clause that is used to prop up programs he feels are damaging to society? Conservatives don’t like civil rights litigation, and they’ll grab any doctrinal hook they can think of to undermine it. Do you really think they care about whether the laws they’re knocking out “enforce” the Fourteenth Amendment? In my opinion, those who want to save the New Deal would do better to focus on convincing the public that the social safety nets are still necessary, not on attacking their opponents for engaging in doctrinal inconsistency or radicalism.

Posted by: Ariela | Apr 19, 2005 4:00:23 AM

Let me be clear: I don’t think the article was noteworthy in any way. Indeed, I was neither inspired nor offended by it. I wouldn’t have had anything to say about it, in fact, if you hadn’t used the article as an opportunity to (1) highlight why conservatives were unfairly treated in the piece and (2) ask if the Constitution doesn’t perhaps forbids all redistributive programs. I thought those moves were worth some resistance from our Center-Left blog.

I mean, I will very much enjoy teaching the differences in the ideas of Richard Epstein, Doug Ginsburg, Michael Luttig, Clarence Thomas, and Randy Barnett someday in an appropriate setting. But I’m not going to get worked up if the New York Times is–heaven forbid–a bit superficial about the content of a movement that is obviously extant, even if slightly mischaracterized in broad strokes.

On Thomas, we actually disagree: I think he’s much more dangerous than a hack. I think he has the courage of his convictions–and they are not (all the time) incoherent ideas either. I very much find his beliefs and modes of interpretation extreme and wrong-headed–but I wouldn’t say they are the products of an unprincipled hack.

Posted by: Ethan Leib | Apr 18, 2005 9:28:24 PM

Here’s the trouble, Ethan. I agree that it is worth thinking about whether the New Deal will be undone by Bush appointees, over and above the brain cells we should be spending on thinking about Roe and Grutter.

But I don’t think that’s a fair read of Rosen’s piece. I don’t think he even mentions Roe or Grutter, and if he does, it is just in passing. The article is about the supposedly imminent activist libertarian takeover of the judiciary, and he goes to great lengths to name names and string together a coherent theory for them. (Mind you, he has written previously–in the NYT Mag and TNR–precisely the kind of piece you are talking about.)

In other words, if he wrote the piece you had just described, I’d have no beef. But he didn’t.

Further, no one can claim to be surprised that Bush’s appointees are going to be conservative jurisprudentially, and that a conservative jurisprudence is one that rolls back the power of the federal government. If it is something to worry about, it is hardly shocking.

Finally, I’m not sure we ought to make hay out of whether a given commentator is to the right or left of Scalia or Thomas. My problem with Thomas is not so much his stated jurisprudential philosophy (though we do disagree), but rather his political hackery in applying it. Don’t forget that same-sex marriage was a crazy fringe idea not two decades ago, and a few decades ago the whole idea of social security was just insane. So the fact that the debate has shifted is not–itself–a normative issue.

Posted by: amosanon1 | Apr 18, 2005 8:10:18 PM

There are many reasons Wickard is questionable both as a matter of originalist jurisprudence and as a matter of policy. Its problems, however, are also analytically separable from simply realizing that Wickard and much more besides are currently on the table in the appointments game.

Posted by: Ethan Leib | Apr 18, 2005 6:45:59 PM

Fine, but there are two (or three) analytically distinct questions here that the article unfortunately conflates. 1: Would overturning Wickard v. Filburn be wrong because it is, as a matter of law, the right way to understand the commerce clause power? [2: Would overturning Wickard v. Filburn be wrong because it is entitled to stare decisis even though wrongly decided?] 3: Would overturning Wickard v. Filburn be wrong because it would lead to the destabilization of legislation that is now overwhelmingly popular?

1 and 3 are very different, and it’s not clear which one Rosen (and like-minded folks) thinks should be considered when appointing new justices. Rosen doesn’t discuss why a restrictive commerce clause program is legally wrong (if it is), but he quotes a lot of academics who presumably disagree with it on the merits, not just because they like the Endangered Species Act.

Posted by: Will Baude | Apr 18, 2005 4:35:59 PM

Yes. Though there is nothing especially secretive about it.

I think it is worth reporting that what was once called called “the lunatic fringe” jurisprudence of Clarence Thomas (see, e.g., http://leiterreports.typepad.com/blog/2004/06/more_on_justice_1.html; http://leiterreports.typepad.com/blog/2004/06/still_more_on_j.html) is actually becoming a position with respectable adherents in the academy, in think tanks, and on the bench. And the prospect of Thomas getting more votes to undo Wickard and other firmaments of the New Deal is nothing short of a political revolution. That deserves some attention.

The question about whether there is a “movement” that has this or that name–and whether he or she is a member of such a movement–is hardly the major issue that Rosen’s article makes salient. The point is, I think, that we shouldn’t only be asking ourselves if Bush’s new appointments want to undo Roe and/or Grutter. We need to question whether they are to the right of Scalia in being willing to undo the New Deal altogether. That, rather than the smoke screen at the VC about nomenclature, was the core of the article as far as I’m concerned.

Posted by: Ethan Leib | Apr 18, 2005 2:13:13 PM

Rodger Citron has an article over at Slate discussing the seemingly fashionable attacks on the judiciary. He takes a historical approach and looks at two other cases in history when politicians and the public attacked the Court: when Roosevelt threatened the Court with packing to push throught he New Deal, and when the public pounced on the Brown v. Board decision. Citron concludes from the fact that the Court persevered in both instances, the Court will once again come out on top.

It strikes me that in all three cases (Roosevelt, Brown, and today), the Court is attacked for refusing to bend to public pressure and political will. Surely that is what we want from the Court, for otherwise it would simply be a rubber-stamp for the elected branches.

At the same time, we really should worry about an Imperial Court. There is no reason to believe that the Court gets it right more often than it gets it wrong, or more often than Congress.

Let’s ask the question this way: which demonstrated and created more “progress”: the Civil Rights Act of 1964 (which took years of grass-roots mobilization and coalition-building, as well as the death of a president), or Roe v. Wade? As I’ve already expressed in my previous posts about same-sex marriage, I think that the Civil Rights model leads to better and longer-lasting results, even if it requires compromises and sacrifice of some principles.

Thoughts?

Posted by Hillel Levin on April 18, 2005 at 01:01 AM

Comments

The lawyer should not become a justice. The conflict of interest results in rent-seeking, no matter the ideology, right or left.

SC decisions would be more respected if it contained only random selections from the Northern Virginia jury pool. The quality of the decisions would also increase. The jury pool members would read the plain, high school language of the Constitution, and obey it. There would be no attempt at mind reading of dead people for their intent, which, for some reason, always coincides with the biases of the Justices. They would not believe they are brighter than the elected Congress nor the President.

Example: They would have let stand a slave state Supreme Court decision, that once a slave has entered free territory, that slave is free and has citizenship standing. Thus, there would have been no Civil War.

Posted by: SupremacyClaus | Apr 18, 2005 8:38:05 AM

On a lighter and briefer note, one other crucial, vital piece of advice: in order to properly prepare for your classes (the principal obligation of a new prof for the first couple of years), you will need the right music. May I recommend the recent Rhino collection, Left of the Dial: Dispatches From the ’80s Underground. Punk, new wave, and other excellent, pulse-racing proof that this was not a lost decade. As with any such collection, some may quibble with the selections, and doubtless licensing concerns were also important constraints. But it’s still an excellent tool, pedagogically speaking. I find, when prepping classes, that discs 1 and 3 are particularly inspirational. For reasons I surely cannot fathom, I find when getting ready for class that I am especially drawn to the classic Mission of Burma song, That’s When I Reach For My Revolver.

Posted by Paul Horwitz on April 17, 2005 at 07:37 PM

» Something About Those Lyrics… from GOH Something About Those … [Read More]

Tracked on May 18, 2005 7:24:38 AM