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Convictions: Slate's blog on legal issues
March 2008 - Posts
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Like a fair number of other people , I'm completely captivated by Bryan Garner's videotaped interviews with Supreme Court justices on effective brief-writing. There's no shortage of insights to be gleaned from these discussions -- particularly from the Read More...
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On Monday , Treasury Secretary Hank Paulson unveiled the Bush administration's " Blueprint for Stronger Regulatory Structure ," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets. No Read More...
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DealBreaker offers possible reasons underlying disparate reactions to the Treasury Department's well-publicized new reorganization proposal. Pure conjecture? Surely. But entertaining conjecture nonetheless. Read More...
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When law firms institute family-friendly policies (flex hours, reasonable work loads), who benefits? That depends how you measure it. Mothers at these firms are neither more nor less productive than mothers at other firms, as measured by billable hours, Read More...
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The new issue of the Legal Times ($) includes several Washington law offices' explanations of their respective efforts to "go green." The firms' solutions are laudable if, often, commonplace: more recycled paper and double-sided printing, shifting communications Read More...
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In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story , which sounds plausible: 1. She and seven Read More...
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Paying due respect to John Adams, Esq. , the founder now coming to life in a teleseries, Adam rues the absence today of more than a "lucky few" capable of "deep political, philosophical, and legal argument." An HBO subscription's outside my monthly budget; Read More...
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Eric remains insistent . He wants to know what I would tell judges about how to decide cases consistent with my views of the living constitution. As described earlier, I think that living constitutionalism is a theory about the legitimacy of the constitutional Read More...
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In this bloggingheads.tv episode involving my co-bloggers Dahlia Lithwick and Richard Ford (I checked it out because I wanted to confirm that they have corporeal existences and are not merely algorithms invented by Slate's IT staff), Dahlia accuses the Read More...
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Courage, Orin ! Your question was a good one and Jack did not answer it. He draws an artificial distinction between questions of constitutional legitimacy ("Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional Read More...
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Eric Lichtblau, in an excerpt from his forthcoming book, confirms that the NSA wiretapping program was operated beneath an unprecedented and remarkable veil of secrecy. He confirms Jack Goldsmith's earlier testimony that the Deputy Attorneys General (Larry Read More...
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Jack, my apologies for not understanding your earlier posts. Reading over your latest post , I now understand that your view is that each Justice should do his or her thing; as long as the decisions are drawn from shared legal norms, the system will work Read More...
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I'm not quite sure how Orin Kerr got the impression that my account of living constitutionalism is designed to give advice to judges, since I point out in these two posts that that's really not the goal of the theory. In any case, he wants to know what Read More...
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If I understand Jack's account of "Living Constitutionalism" correctly, the basic idea is that (a) Justices will naturally pull the Constitution in the direction of what they see as sound public policy, and that (b) this is a good thing, as we end up Read More...
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If we're going to be admiring the Framers for their many diverse talents, as Adam White ably does below in his post on John Adams, then don't forget ol' Tommy Jefferson. Sure, he was a political philosopher, principle author of the Declaration of Independence, Read More...
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Tonight, HBO offers Episode Four in the gripping seven-part mini-series, John Adams . No doubt, each viewer takes something different away from the series; here is my modest contribution. What I enjoyed in the early episodes was seeing such deep political, Read More...
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Interesting as the debate over FISA has been, I think this report is important -- the first really serious empirical study of inclusionary zoning, the mechanism whereby localities try to use their zoning powers not to exclude low income housing but to Read More...
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Jack defines living constitutionalism as follows (critique to follow):
Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. ...
This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law's relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run. Read More...
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David asks an interesting question (which I overlooked before--apologies): But the plain fact is that the President could have sought an injunction. And the simple fact is that our elected president did not seek an injunction in this case. So the reason Read More...
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For your latest entry in the seemingly non-stop barrage of fawning Barack Obama major-media coverage, look no further than Newsweek 's latest cover, which offers " When Barry Became Barack ." All very interesting, I suppose. But while Newsweek 's on the Read More...
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AP reports that in a recent speech Justice Scalia criticized press reporting on the Supreme Court: Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made Read More...
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As Jack has recently observed , apart from Katrina, the Iraq War and the conflict with al Qaeda, there has hardly been a government challenge of greater enormity this decade than the economic crisis we are now facing. Yet someone who is neither elected Read More...
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According to the New York Times , the Treasury Department is pushing a plan which broaden and deepen the reach of the federal government into America's financial markets: According to a summary provided by the administration, the plan would consolidate Read More...
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So it just comes down to different judgments about the proper weighing of the costs and benefits of publication. Marty thinks that the legal arguments are bad (high benefit from publication) and suspects that the secrecy of the NSA program was not important Read More...
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Wow, Eric, you packed a lot into that provocative opening post , and led me to read Lichtblau's how-the-media-sausage-is made story I confess I might not otherwise have read, given the day job. Call me a cynic, but I've invariably come away from such Read More...
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Eric asks a reasonable but ultimatelyt thetrical quesiton of me: do I think natinal security concerns should wiegh in the balance concerning publication? Of course national security concerns should be part of the calculus as to whether to publish. Just Read More...
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Guilty as charged . Yes, careful lawyer that I try to be, I did include a qualification to suggest that maybe there could, one day, be some case in which a newspaper should refrain from publishing a story about rampant illegality, affecting the privacy Read More...
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Eric writes , "The question was whether The Times went about making its decision [to reveal the Bush administration's violations of FISA] in a responsible way." Marty and David 's responses (citing Eric Lichtblau's column ) have devastated any suggestion Read More...
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Marty puts the case succinctly: Has there ever been any case in which a serious American newspaper declined to publish information it had about felonious conduct at the highest levels of government? And if that meant the cessation of the program, so be Read More...
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If I can wade into the debate on the Times ' publication of the Risen & Lichtblau NSA wiretapping story, I think the Times acted relatively carefully but James Risen's subsequent solo book "State of War" was quite reckless. The original story by the Read More...
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David , there was nothing "abstract" about what The Times was doing. Are you saying that any possible harm to national security was negligible, or irrelevant? I did not argue that The Times should not have disclosed the existence of the program, a question Read More...
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Eric Posner claims not to be able to discern from from Eric Lichtblau's column just why the Times changed its mind between 2004 and 2005 about publishing the story revealing the Bush Administration's unlawful wiretapping program. What's the great mystery? Read More...
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Perhaps I am tainted by having once been a journalist, but although Eric raises a host of interesting questions that could be plucked from a good Columbia School of Journalism class on reportorial ethics, all of which may be hard to answer in the abstract, Read More...
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According to our colleagues at Trailhead the Clinton campaign has questioned whether Obama lied when he claimed to be a law professor at U of Chicago. Formally his position was Senior Lecturer. In a way this is almost too silly to merit a response: when Read More...
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Elsewhere on Slate, Eric Lichtblau describes the " inside drama " behind The Times' wiretapping story, a drama in which our hero confronts the arrayed forces of the U.S. government, momentarily stumbles, picks himself up, brings the Bush administration Read More...
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In an incredibly opaque speech to the U.S. Chamber of Commerce yesterday, Treasury Secretary Henry Paulson implied that he would seek "the same type of regulation and supervision" for investment banks as that which exists for commercial banks. He made Read More...
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Jack's got it right when he writes: " Don't assume that living constitutionalism only swings to the left. It doesn't." And that's a lesson that extends beyond the question of whether today, 217 years after ratification, the 2d Amendment to the U.S. Constitution Read More...
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My endorsement of Senator Obama seems to have piqued some Republican and Catholic interest in the Senator, and whether as a consequence, I should be: (A.) tried by military commission or (B.) simply shot on the blogosphere of battle. All things considered, I guess I should just be happy to learn John McCain wants to shutter Gitmo, but in genuine respect of, and gratitude to, the many who have shared their own thoughts, here is a bit more explanation. Read More...
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Two thoughts in response to Marty's provocative questions : First, I think having a relatively independent DNI probably is manageable constitutionally. We already have, after all, an FBI director who is appointed for a term of years that does not coincide Read More...
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This new Gallup poll suggests that if, as Mr. Dooley says, the Supreme Court follows the election returns (or more correctly, national public opinion) it will hold that there is an individual right to keep and bear arms unconnected with militia service, Read More...
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Last week Dahlia Litwick and Eric Posner asked an important question about my posts on living constitutionalism : If constitutional interpretation by judges responds to political and social mobilizations over time, why have judicial review at all? Why Read More...
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Jack, to answer your questions , as pithily as possible, I understand judicial restraint as underenforcement of constitutional norms, not the position that there are few or no constitutional rights or only those constitutional rights that reflect my political Read More...
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In the New York Times this week, Adam Liptak takes a long overdue and somewhat tepid look at the fuzzy math Justice Scalia used in his concurrence in Kansas v. Marsh when he concluded that "The rate at which innocent people are convicted of felonies is Read More...
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One of the students in my Separation of Powers class flags that Barack Obama has proposed that the director of national intelligence be given a fixed term, "like the Chairman of the Federal Reserve," in order to "insulate the [DNI] from political pressure." Read More...
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Both the Clinton campaign and our comrades at Trailhead are complaining that Barack Obama was, in fact, never a law professor. Well was he? Sorry Trailhead, but it's not so clear-cut. To see why requires a quick visit through the mists and mysteries of Read More...
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Over at Obsidian Wings , my friend Publius [ not his real name -- a.w. ] suggests that states should enjoy flexibility under the Second Amendment to calibrate gun-control regulations in light of the varying needs of different cities and towns: If your Read More...
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Like any associate at a big law firm in a major city, I'm keeping a close eye on layoff trends . I'm a little less worried for my friends in various M&A shops, however, now that I've seen DealBreaker's coverage of how Wall Street is adapting to new Read More...
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When Linda Greenhouse recently announced that she was leaving the New York Times , it was a sad day for Supreme Court coverage. Now there's good Greenhouse news--and a coup for Yale Law School. Greenhouse will be the law school's Distinguished Journalist-in-Residence Read More...
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In a major foreign policy address today to the Los Angeles World Affairs Council, Sen. John McCain offered a few policy ideas that sounded, well, downright Democratic, even going so far as to cite Truman and Kennedy as role models: America must be a model Read More...
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Last week I cited an L.A. Times feature on the Tupac Shakur killing as part of a post on Eliot Spitzer and Dickie Scruggs. Serious questions have now been raised about the accuracy of that story, which hinges upon a series of documents provided to the Read More...
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Back to Jack in a bit. Adam Liptak's NYT article notes that foreign courts don't like to enforce American punitive damages awards, a position that Liptak's interviewees attribute to foreign discomfort with the American jury system and American-style punitive Read More...
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Kenji, thanks for the props last week—looking forward to continuing our conversations here and elsewhere. Since we basically agree on the Obama speech, I wonder what you thought of Christopher Hitchens' characteristically energetic denunciation of same. Read More...
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I fear that my jest at the beginning of my previous post on judicial restraint caused Eric Posner to miss the real point of my discussion of judicial review. (Perhaps he didn't read anything after the jump.) continue reading at Balkinization . . . Read More...
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Reading over Chief Justice Roberts' Medellin opinion, it reminds me a lot of Justice Stevens' majority opinion in Hamdan v. Rumsfeld in 2006. Recall that in Hamdan , the court blocked the Bush administration's effort to create military commissions unilaterally Read More...
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Can God create a boulder he cannot lift? That's the type of political question raised by the decision in Medellin: namely whether the Bush administration can create a court more resistant to enforcement of international law than the administration itself. Read More...
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Phil , the Supremes have time-honored words ready-made to make your Munaf point. Here's the theme, from the court's 1949 opinion in Watts (p. 52), quoted verbatim in the 2004 Padilla dissent (p. 11 n.10): And there comes a point where this Court should Read More...
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Today, the Supreme Court handed down an opinion of great importance for understanding America's obligations under international law. The United States is a party to the Vienna Convention on Consular Relations, which requires states to allow foreign nationals Read More...
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Like Marty , Diane , and Deborah , I, too, am excited about today's oral argument in Munaf and Omar . Not just because I think this case raises thorny issues, but also because this case deals with a subject I have some personal experience with. I served Read More...
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Thank heavens for you, too, Marty. Otherwise I would've completely overlooked the powerful argument that it's really Bulgaria pulling the strings in Iraq. As for the rest of the merits, there's nothing you said, Marty, that I have much cause to fault. Read More...
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Scholars who want to explain things and also suggest reform find themselves in a difficult position. Suppose you have an excellent theory that can predict how justices will vote in Supreme Court cases. The theory's independent variables are all nonlegal Read More...
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I'll have more to say about living constitutionalism in a later posting this week, but in the meantime, I wanted to offer a few remarks about Eric Posner's call for judicial restraint last week. Eric makes three suggestions in his critique. Eric's first Read More...
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