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Sunday, December 23, 2012
Gang Violence and Terrorism
Jonathan Hafetz
Terrorism is largely the province of federal law. But a little-noticed decision from the New York Court of Appeals (the State’s highest court) issued earlier this month makes an important contribution to the field. The case, People v. Morales, involves an expansive—and novel—interpretation of the crime of terrorism. Following a gang-related shooting in the Bronx that killed a 10-year-old-girl and paralyzed another victim, the district attorney charged gang members under New York’s anti-terrorism statute, enacted after 9/11. The prosecution argued that the defendants, who were from one of the most feared Mexican gangs in the Bronx, had committed a “crime of terrorism” because their intent was “to intimidate or coerce a civilian population,” namely the Mexican-Americans who resided within the gang’s geographic area. The jury convicted. Saturday, December 22, 2012
Would a serious country place John Boehner two heartbeats from the Presidency?
Sandy Levinson
Under the current Succession in Office Act, the Speaker of the House would succeed to the Presidency in case something happened to both the President and Vice President. Akhil Reed Amar makes an interesting argument that the Act is unconstitutional, though this has been disputed by Seth Barrett Tillman. But although the constitutional question is surely of interest to constitutional theory buffs, it is near-irrelevant to most people. For them, the question is (and perhaps should be) the wisdom of some of our institutions rather than their pure legality. As almost everyone on this list knows, I think that a lot of our Constitution is stupid (or worse), but the point is that the relevant provisions--such as, for starters, delaying Inauguration until January 20, which would have placed us, yet once more, in the position of having an even more terminally dysfunctional government had Mitt Romney been elected about six weeks ago but had no legal authority for yet another month) being without a truly functioning government--raise no "legal questions" as such. Is America Governable? (II)
Sandy Levinson
Friday, December 21, 2012
"Is America Governable?"
Sandy Levinson
Majority of a Majority
Gerard N. Magliocca
The latest breakdown of the fiscal cliff negotiations illustrates the problems created by another unwritten constitutional rule--no bill may be brought to the House floor unless it is supported by a majority of the majority party. It is possible that a budget measure could pass the House with the support of most Democrats and some Republicans, but that is not an option for the Speaker. The practice of requiring a majority of the House majority operates as a minority veto that is even more lopsided than the Senate filibuster, since it means that (typically) less than a third of the House can block action. Thursday, December 20, 2012
Guns and Courts
Jason Mazzone
People who spend their lives reading Supreme Court opinions sometimes end up imagining that the Supreme Court is responsible for everything, good and bad, that happens in American politics and society. Since the Sandy Hook shooting, various commentators have asserted that the five justices in the majority in the recent Second Amendment cases of DC v. Heller (2008) and McDonald v. City of Chicago (2010) bear responsibility for Adam Lanza's actions. Professor Geoffrey Stone now writes: Wednesday, December 19, 2012
Robert Bork and the Contingencies of History
JB
The Enduring Image of the Warren Court
Mark Tushnet
"If your Constitution is so good, how come you're sending drones against us?"
Mark Tushnet
Tuesday, December 18, 2012
Instagovernment?
Jason Mazzone
Yesterday, Instagram, the popular photo sharing site owned now by Facebook, announced new terms of service effective January 13 under which Instagram purported to gain the right to license to advertisers photos users had posted to the site unless users opted out of the arrangement by closing their accounts. Instagram users around the web immediately voiced strong opposition to this proposal to make money off their photos. The collective outrage worked. A few hours ago, Instagram abandoned its plan with a face-saving announcement that the language contained in the proposed terms of service had been unclear and misinterpreted and that the company had no intention of hawking users' photos. I have written a lot about overreaching claims with respect to intellectual property. Even so, Instagram's audacious plan--to confer upon itself by a contract of adhesion licensing rights and immunity from violations of rights of publicity claims--was extraordinary. More striking, though, was the 24-hour correction. Imagine if government worked that way.
Monday, December 17, 2012
Gun Control: The Missing Movement
Jason Mazzone
Given the renewed calls for Washington/Democrats/Obama to do something about firearms, I recommend Kristin Goss's 2008 book, Disarmed: The Missing Movement for Gun Control in America. Goss (a colleague from when we both worked at Harvard for Robert Putnam and now a professor at Duke University) explains persuasively why there has never been an organized and effective gun control movement in the United States. Goss's account is rich and complex and it will give pause to anybody who thinks that all that is needed to enact stricter gun laws is to overcome the political influence of the NRA in Washington. Goss shows that a mixture of institutional and historical factors explains why the gun control movement has been "missing." Two factors are especially striking. First, Goss shows, there has been a historical shift in where reformists look to for resources. A century ago, well-organized women's groups led and financed social reforms, often in conjunction with churches. Today, and since the end of the twentieth century, reformers depend much more heavily on professionally-staffed foundations for resources. Foundations, however, are reluctant to take on risky high-profile political movements like gun control. In sum, professionalization of reform undermines transformative endeavors. Second, Goss shows, gun-control leaders in the 1970s made a disastrous error of calculation. They focused their efforts on a single goal of a federal ban on handguns. In so doing, they failed to develop a grassroots network of engaged citizens in state and local chapters to pursue localized reform. Focusing on handguns also alienated vast numbers of Americans who might otherwise be inclined to volunteer in efforts to secure more modest goals. In other words, by going big at the federal level, reformists overlooked the possibility of incremental reforms and local successes. By the time gun control reformers had dropped their focus on handguns and learned the value of local organizing, the NRA had filled the void by successfully pursuing state laws that prohibit local regulation. Read Goss to understand how we got to where we are now and to identify the background factors that work against any simple reforms.
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Books by Balkinization Bloggers Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |