Monday, February 08, 2010
When are you submitting?
Kaimi Wenger at CoOp is running a poll for those planning to submit articles in the coming cycle: What is your target date? Click over and add your voice.
I presently am shooting for late this week. But if enough people say it is best to wait a week, I could be convinced.
Posted by Howard Wasserman on February 8, 2010 at 02:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3) | TrackBack (0)
The Semantics (Colloquially Speaking) of Semantic Originalism
A major target of Larry Solum’s much-discussed “semantic originalism” is the confused claim (which he attributes to many nonoriginalists) that normative considerations can transform the original meaning of the constitutional text. This claim is indeed confused, but Solum is mistaken in attributing it to sophisticated nonoriginalist theories, which for the most part are best understood as normative accounts of how judges and other interpreters should attribute legal (rather than linguistic) meaning to the constitutional text.
To be sure, most nonoriginalists would be unwilling to concede that their theories permit legal meaning to deviate from or override linguistic meaning. To this extent, they might be thought to contest, at least implicitly, Solum’s descriptive claim that original public meaning is the Constitution’s one true linguistic meaning (and to do so on normative, rather than positive, grounds). But this is essentially a terminological disagreement. Nonoriginalists are happy to acknowledge that their approach permits interpreters to depart from—indeed to contravene—original meaning. That, after all, is what makes them nonoriginalists. Their claim to honor the text’s linguistic meaning is a claim to honor other meanings, such as the plausible range of meanings present-day Americans would understand its words to bear.
Whether or not these represent linguistic meanings in the technical philosophical sense Solum is concerned with, they are plainly an intelligible object of inquiry. The important question is thus a normative one: whether these meanings, or original meaning, ought to be of overriding interest to constitutional interpreters. Of course, that is the same question originalists and nonoriginalists have always understood themselves to be debating. Solum’s heroic efforts to identify originalism with interpretation (carefully, openly defined as searching for the linguistic—which is to say original public—meaning of the text) change nothing.
Posted by Andrew Coan on February 8, 2010 at 09:00 AM | Permalink | Comments (3) | TrackBack (0)
Nebraska Safe Haven Snafu, Revisited
You might recall the sad circumstances, reported in the news about a year ago, surrounding the Nebraska "safe haven" law. Safe haven laws, which exist in all or virtually all states, permit a parent to surrender an uninjured newborn or infant at a location such as a hospital with no questions asked and no risk of liability. (The details differ from state to state.) What made Nebraska unusual was that its statute did not specify an age limit but instead just used the word "child." As a result, people drove to Nebraska from all over the country to abandon children, including older children and teenagers. At the time, most of the coverage portrayed this as some kind of legislative oversight or scrivener's error (as in the article linked above, which quotes a state official as saying that the intent was to protect newborns). I decided I would discuss this incident briefly on the first day of my Legislation class.
As I dug around the state legislature's website to prepare for class, I found some things that revealed a rather different kind of legislative process failure.
Continue reading "Nebraska Safe Haven Snafu, Revisited"
Posted by Aaron Bruhl on February 8, 2010 at 08:44 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)
Procedural Crisis
Jack Balkin (among several other commentators) argues that we are in the midst of an emerging constitutional crisis, over the rules and norms of the Senate and the uses to which they are being put.* The routine filibuster--in which the GOP speaks, acts, and is perceived as controlling the Senate by having 41 out of 100 seats--was the start. The latest is Sen. Richard Shelby (AL) placing holds on 80 executive-branch nominations unless several Alabama-earmarked projects are restored in the budget. Another is the ongoing talk about using reconciliation (not subject to filibuster) to make changes to the Senate bill once passed by the House (what some bloggers are calling the "Pass.The.Damn.Bill" Campaign) and the somewhat Orwellian response that a simple-majoritarian process is undemocratic.
I agree that we are in an unprecedented and precarious spot that may be something of a tipping point. But it is notable that this crisis is entirely procedural and I wonder how that may cause it play out differently.
Continue reading "Procedural Crisis"
Posted by Howard Wasserman on February 8, 2010 at 08:00 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack (0)
Toyota Class Actions: let the games begin
The National Law Journal reports on the several class actions that have been brought against Toyota in the wake of the gas pedal problems and recalls. The lawsuits are consumer class actions that seek damages for economic losses stemming from reduced value of cars subject to this problem.
It looks like the lawsuits are being filed state by state with the expectation that they will then be consolidated as an MDL. The lead plaintiffs in the lawsuits appear to be persons whose cars actually experienced the gas pedal issues. Although these plaintiffs have not alleged personal injury, there will be some serious typicality issues given the very broad class definition that the attorneys are seeking.
While the plaintiffs face some challenges in terms of class certification and causation, there is no question that multiple billion dollar lawsuits will pose a major litigation challenge to Toyota going forward.
What will be interesting to watch is the delicate balance between the remedies that Toyota has already offered, the recalls and other actions by NHTSA, and the machinery of private remedies writ large over a vast number of car owners.
Posted by Robin Effron on February 8, 2010 at 07:42 AM in Civil Procedure, Current Affairs, Torts | Permalink | Comments (0) | TrackBack (0)
Sunday, February 07, 2010
Entrench the Filibuster
With all the discussion of the filibuster, including some evidence of hypocrisy on the part of a certain allegedly anti-pork Senator from Arizona, it occurs to me that the Democrats in Congress might consider something to put the Republicans to the test: Propose an amendment making the filibuster a constitutional rule. If the R's won't go for it, reserving the right to eliminate it when control of the Senate changes, then the D's should get rid of it now. If the states roundly reject such an amendment, then there will be a political justification for abandoning it now. And if the R's sign up, then D's will be protected in the future. Of course, I'm one of the political geniuses who contributed to John Edwards.Posted by Jack Chin on February 7, 2010 at 03:19 PM | Permalink | Comments (1) | TrackBack (0)
Saturday, February 06, 2010
Welcome to "Nuestras Voces Latinas"
(Updated)
I wanted to bid welcome to the legal blogosphere to a new law-prof blog, "Nuestras Voces Latinas" (Our Latin Voices), headed up by my friend and FIU colleague Ediberto Roman. It is devoted to providing "Perspectives on Latin-American Communities and their Issues" and includes several top Latino/a scholars.
Posted by Howard Wasserman on February 6, 2010 at 12:13 AM | Permalink | Comments (1) | TrackBack (0)
Friday, February 05, 2010
SEC Mandate on Reporting Corporate Board Diversity
In December, the Securities and Exchange Commission approved a rule to require more information for shareholders about the makeup of leadership in public companies. Disclosure of diversity considerations in hiring directors will be required for proxy and information statements. Although reporting cannot steer behavior on its own, the SEC recognizes that this reporting requirement may induce “beneficial changes in board composition,” particularly since many scholars and commentators have pointed to the importance of diversity for investors and even the connection between diverse boards and ROE.
It is striking that the SEC left it up to the companies to decide how to define diversity. This is a marked contrast with Norway’s 2008 Corporate Board Quota, which requires publicly-listed corporations in Norway repopulate their boards to include at least forty percent of the minority gender (that is to say women, for now), with noncompliance leading to delisting from the exchange and dissolution. My article Feminizing Capital: A Corporate Imperative, available here, explores the theoretical bases and impacts of this groundbreaking law. The SEC’s new rules are significant when our current economic crisis has exposed a lack of ethical leadership in the corporate world and the need for an influx of new ideas. As women become the majority of the workforce, gendered understandings of economic relations have surfaced. (See my op-ed piece with Melissa Murray on this issue:) Norway’s bold step has been copied elsewhere in Europe as more countries realize the need to diversify the private sector.
The disparity between women’s majority workforce status and their paltry 10% of corporate boards exposes a highly gendered economic structure. Norway’s law, albeit through a draconian process, attempts to remedy this. The SEC’s decision to mandate diversity reporting is a step in the right direction.
Posted by Darren Rosenblum on February 5, 2010 at 09:57 PM | Permalink | Comments (0) | TrackBack (0)
Pointless Parentheticals: A Diatribe (arguing against use of unnecessary parentheticals in law review articles)
Student law-review editors are great. How many people, after all, are willing to read our work closely enough to offer detailed, line-by-line feedback? But sometimes it feels like they're demanding adherence to institutional rules just for the sake of following the rules, and not because they make the article better. Case in point: parentheticals. Parentheticals are wildly out of control. Since 2007 or so, journals seem to have decided that even see citations need parentheticals. My question: why? Isn't this madness?
First, let's take a large leap of faith and assume that there are people other than the editors themselves (and maybe later RA's looking to steal citations) who read footnotes.
Posted by BDG on February 5, 2010 at 07:08 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack (0)
Thursday, February 04, 2010
They don't call it a quarter pounder with cheese
Unionized French workers, frustrated with layoffs and cutbacks, are attempting both old and new(ish) strategies. These new strategies include bossnappings, in which employees hold senior managers on the premises to protest layoffs or other unfavorable policies, and aggressive sit down strikes, along with more recognizable forms of labor unrest like the recent strike at the Pompidou. American workers have their own clever labor strategies. The large inflatable rat first made his appearance in Chicago in 1990 and is now in common use. I wonder, though, why no American unions are adopting the bossnapping strategy. Why aren’t French strategies being transported?
Some thoughts on this question- though I admit, they are just a first cut. Law alone does not seem to answer the question. By way of quick background, French law seems more pro-labor in some important respects than American law. For instance, French law dictates shop stewards and plant committees must be present in large enterprises. American law, in contrast, is more neutral in requiring unions to win elections (or gain voluntary recognition) before their presence is felt in the workplace. Yet in both countries, violence and threats of violence are clearly unlawful. It seems unlikely that French labor unions would expect a friendly reception from the state for engaging in such behavior. Nor should American labor unions be indifferent to new labor strategies since they ought not be particularly optimistic about their ability to succeed in the legislative realm. In recent years, their efforts to pass pass major reforms to the NLRA have floundered and the recent Massachusetts election may have put the last nail in the Employee Free Choice Act.
So far, the best explanation I can come up with, though I’d be happy to hear others in the comments, is a historical/cultural one. From what I can tell, and I am no expert on France, the general public is much more sympathetic to labor movements. In fact, the idea for bossnapping may have originated in Jean Luc-Godard's popular pro-labor movie, Tout Va Bien. Students and other segments of the population strongly supported numerous French strikes in the late 1960s My sense is that the American public, whether at large, or specific subpopulations, didn't and don’t share the same support for labor as a whole and for violent/illegal strategies in particular. While most Americans don’t have a specific knowledge of Haymarket square and the Molly Maguire Riots or other periods of labor violence, American unions may have surmised that the American public loses support for labor when they are seen as inherently criminal in nature.
Posted by Lesley Wexler on February 4, 2010 at 03:28 PM | Permalink | Comments (1) | TrackBack (0)
A Transaction Cost Approach to Constitutional Interpretation
Building on a long tradition, recent work in constitutional theory has traced the normative deficiencies of originalism to two central factors—the extreme age of the Constitution and the extreme difficulty of the amendment process. See here, here, here, and here. To help tease out the relative significance of each, consider the following thought experiment. Imagine that the Constitution could be amended by referendum through a simple majority vote. What implications would this have for the desirability of an originalist interpretive approach?
It seems hard to deny that originalism would be more defensible in such a system. In fact, it would be a downright plausible approach. If 51% of the people could amend the Constitution at any time, their failure to do so could reasonably be taken to reflect an implicit endorsement of its original meaning, especially if judges were widely known to be consistent originalists. Moreover, if any particular original meaning truly produced intolerable results, it would almost certainly be amended. Nevertheless, where a constitutional provision is sufficiently old and the consequences of its original meaning sufficiently bad in the eyes of recently appointed judges (even after accounting for the benefits of stability in the law), there is still a solid case for meliorative judicial construction.
Why? The answer, in brief, is the Coase theorem. Even a relatively lenient 51% amendment rule is costly—both in terms of the resources required to mobilize public support and the risk that the amendment will fail despite popular support (perhaps because too few resources could be collected to raise the issue to the fore of public consciousness). This means that, other things being equal, we should favor the judicial approach most likely to render amendment unnecessary. In the situation I’ve just described, judicial pragmatism (including a hefty dose of deference to contemporary legislators) seems a better bet than originalism. If pragmatist judges get it wrong—as they inevitably will in some cases—the costs would be relatively small; a 51-percent popular vote would be sufficient to overturn their decision.
Continue reading "A Transaction Cost Approach to Constitutional Interpretation"
Posted by Andrew Coan on February 4, 2010 at 02:30 PM | Permalink | Comments (3) | TrackBack (0)
The Haters and the Hated
As Howard Friedman notes on his Religion Clause blog, a group of pastors and the "American Family Association of Michigan" filed suit in federal court on Tuesday challenging the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, which criminalizes violence motivated by a victim's "actual or perceived" sexual orientation. In particular, the complaint alleges that the law "elevates those engaged in certain deviant sexual behaviors to a special, protected class of persons under federal law." In a nice Orwellian flourish, the plaintiffs go on to suggest that the the law makes gays "more equal than others" before the law. This is an old and largely failed argument (see Romer v. Evans) that, in this incarnation, attempts to cast religious believers as the real victims of oppression--again, in the plaintiffs' words: "[T]he homosexual agenda seeks[s] to vilify and criminalize deeply held religious beliefs"--but it is made particularly ironic in this case because the specific provision at issue (18 USC s 249(a)(2)) actually includes a victim's "actual or perceived religion" on the list of prohibited motivations. Now, I have my own discomforts with "hate crime" legislation, which I can get into more later, but am I the only one who finds this latest challenge confusing (to put it charitably)? Can the same statutory provision both "elevate" and "criminalize" religious beliefs?Posted by Ian Bartrum on February 4, 2010 at 01:22 PM | Permalink | Comments (1) | TrackBack (0)
Sex, Identity, and Haiti
I too am a long-time Prawfs reader and a virgin guest blogger. Thanks to Dan and the Prawfs team for extending the invite to me this month – I’ll be blogging mostly about international, comparative and corporate contexts with a focus on gender and sexuality. First topic: food coupons for women in Haiti. Now the food coupons in Haiti must be denominated for “women” because the men who received the limited rations were not sharing them with women and children.Sex differences persist between men and women, and the Haitian authorities’ response reminds me of the creation of women-only train cars in India and Japan. Men are constructed as a sex that ignores rules, whether legal or societal. Both the prompting behavior and the resulting policies in such contexts both amaze and disturb me.
One’s observations of another culture reflect first and foremost one’s own, as comparative theory tells us (think Roland Barthes and Lama Abu-Odeh). When we see something elsewhere, we must look home first to find the meaning. So the United States cannot fall so far from these examples - we may behave similarly in such a shattering crisis. A study by Esther Duflo of MIT in two Indian regions exposed the divergence between male and female leaders’ policy decisions, and how they reflected sexed opinion differentials - in her example, women preferred access to water, while men preferred roads. These examples remind us that strict adherence to identity-neutrality, such as that embodied in recent Supreme Court jurisprudence, can lead us to mistaken policy outcomes.
Posted by Darren Rosenblum on February 4, 2010 at 01:06 PM in Current Affairs | Permalink | Comments (1) | TrackBack (0)
Finding your voice
Finding your voice as a writer can be difficult, but sometimes as prawfs we have a more basic problem: how to use your actual speaking voice to communicate effectively in the classroom and when presenting papers.
In my other life I am a classically trained singer. While I long ago gave up on the idea of pursuing a professional career, I have put some of my skills to good use in the classroom. (I also have the privilege of continuing to sing with the fabulous New York Choral Society here in NYC).
One of the most common complaints I hear from my colleagues by the proverbial water cooler is that their voices become strained, tired, or even hoarse while teaching. Here are some things that I do to help modulate and save my voice during class.
Continue reading "Finding your voice "
Posted by Robin Effron on February 4, 2010 at 10:35 AM in Teaching Law | Permalink | Comments (3) | TrackBack (0)
Does the Constitution Prescribe Rules for its Own Interpretation?
This question is the title of a provocative recent article by Michael Stokes Paulsen, who answers in the affirmative. For reasons I explain in a forthcoming article, I think the argument supporting this answer is mistaken. Nevertheless, it is an interesting puzzle whether a constitutional text (or any other text) can ever authoritatively supply the methodology for its own interpretation. Imagine, for example, that Article VI contained a 4th section explicitly instructing judges and other officials to interpret the Constitution according to its original public meaning. Would this resolve all doubt about how contemporary interpreters should approach the text?
It would not. And not just because the new section would itself have to be interpreted. We can presume that an explicitly worded instruction of this sort would—read in isolation—have the same meaning under any plausible contemporary interpretive approach. Nevertheless, a normative argument would still be required for adhering to this instruction in interpreting the rest of the Constitution. Of course, the instruction itself would raise the costs of applying a nonoriginalist interpretive approach to other provisions. If judges (and other officials) could ignore this language, would any constitutional provision be safe? But these costs could—at least in principle—be outweighed by the substantive unattractiveness of an originalist approach relative to plausible nonoriginalist alternatives (and to the alternative of scrapping the Constitution altogether). If an originalist approach were sufficiently unattractive substantively but so was jettisoning the Constitution, the normatively best option might be for contemporary interpreters to ignore even an explicit instruction to be originalists and instead apply some other interpretive approach to the remainder of the constitutional text. It follows a fortiori that contemporary interpreters might be normatively justified in ignoring the implicit interpretive instructions Paulsen purports to find in Article VI, which unlike an explicit instruction, simply disappear under a range of plausible nonoriginalist interpretive approaches.
An important implication is that interpretive choice need not be all or nothing, pace many originalists. Both constitutional text and original meaning can be embraced in part or in whole, depending on the values that would be served thereby.
Posted by Andrew Coan on February 4, 2010 at 09:00 AM | Permalink | Comments (9) | TrackBack (0)
Wednesday, February 03, 2010
Federalist Society Debate on Citizens United
I am one of the (possibly few) strongly liberal Democrats who also believes Citizens United was correctly decided and that corporate political speech deserves full First Amendment protection, which puts me in a fun position. For the next two weeks, I will be participating in an on-line Federalist Society debate on Citizens United. Debaters include Larry Ribstein (Illinois), Barry Friedman (NYU), Trevor Potter (former FEC Chair and General Counsel to the McCain Campaign), and appellate litigator Erik Jaffe.
The first two entries (from Ribstein and me) are up and the full debate can be accessed here (but boy do I need a new picture).
Posted by Howard Wasserman on February 3, 2010 at 10:04 PM in Howard Wasserman | Permalink | Comments (1) | TrackBack (0)
Memo to Microsoft
It's great to be back at Prawfs. I'll take this opportunity for access to a substantial public forum to make a couple of friendly points to the good folks in charge of the Microsoft Word Spell Checker: 1) "Thurgood" is actually a word, the first name of a well known American, so no need to flag it as an error, and 2) it is not a misspelling of the word "Thurmond".
I am a little surprised that at this late date in American history and Microsoft Word (I have Office 2007) the name of the Senator made it into the database, but not that of the great Justice. Or do I only think that Justice Marshall was at least an equally prominent historical figure as Senator Thurmond because I am a lawyer?
Posted by Jack Chin on February 3, 2010 at 10:36 AM | Permalink | Comments (3) | TrackBack (0)
The legal debate over the Senate's rules: a dialogue
There has been a lot of discussion lately about reforming the Senate's rules. This isn't especially surprising. The same party controls the presidency and has majorities in both houses of Congress, and the Senate minority has been using the veto powers it enjoys under the Senate rules to block some of the governing party's initiatives. We had a similar partisan configuration during some years of the Bush administration, and there were similar proposals for reform back then (recall Sen. Frist's "nuclear option" for judicial confirmations).
Many of the questions surrounding Senate reform do not really involve law but instead primarily implicate matters of policy, prudence, and political morality. But some part of the debate does present itself as law. That is the part in which I'm interested. Regarding that part, the argumentative moves go something like this:
Q: Why can a Senate minority filibuster?
A: Because the Senate rules permit it. The rules provide that ending debate (i.e., invoking cloture) on a bill or nomination requires sixty votes, not just a majority. So a minority can effectively block action.
Q: Why can't the Senate majority, if it wishes, change the cloture rule, so that debate is easier to cut off? The rules can be changed by a majority, correct?
Continue reading "The legal debate over the Senate's rules: a dialogue"
Posted by Aaron Bruhl on February 3, 2010 at 10:13 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (5) | TrackBack (0)
I don't see any connection to Vietnam, Walter
Thanks for having me back to Prawfs this month. Whenever I meet someone at another institution, the question of what I teach is usually an early question. My response of "Torts, Labor, Employment Discrimination, and Laws of War" usually draws a quizzical look. I did, however, largely choose my teaching package and to me, the linkages are clear. I'm interested in social norms and social movements and how groups move their ideas into legal institutions. I thought I'd spend my time on prawfs blawg this month talking about some discrete instances of those movements across the various areas I teach and write in.
Posted by Lesley Wexler on February 3, 2010 at 09:49 AM | Permalink | Comments (6) | TrackBack (0)
CAFA and the Home State Exception
Even if you're not a civ pro buff you've probably heard of the Class Action Fairness Act (CAFA). Enacted in 2005, CAFA allows some class actions based in state law to proceed in federal court, even if they don't meet the normal 1332 diversity requirements. CAFA's
proponents touted the statute as a national remedy for class action
“abuses” in state courts in which state law procedural devices were
blamed for empowering litigants to bring “nationwide” class actions in
states with plaintiff-friendly law.
But what of genuinely local class actions? To protect such lawsuits, CAFA's drafters crafted some exceptions for local actions, one for actions where two thirds of the class are citizens of the state where the action was filed , and one for local controversies. CAFA's home state exception has the power to change class action practice, and this might not be a bad thing. A Seventh Circuit decision from last week, In re Sprint Nextel Corp., illustrates a few of the new issues.
Continue reading "CAFA and the Home State Exception"
Posted by Robin Effron on February 3, 2010 at 07:57 AM in Civil Procedure | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 02, 2010
Governing through Crime "Old School" style in Iran
When I was in graduate school reading the then recent historical research of the late Edward P. Thompson and his colleagues on crime and society in Britain during the 18th century I was thrilled (intellectually speaking) to see how the majesty of the English common law had served to bolster a shaky revolutionary gentry class in its hour of need. Having overturned long settled rural arrangements and modes of social control going back to the Conqueror, this gentry class found in the criminal law subtle tools of terror and moralization that proved enough to settle down a restive and far more risky (for common people) society, but only by investing in law itself as a source of independent legitimacy. This picture of law as a tool of class power, and a slowly tightening restraint on power was so vivid that it took me a long time to recognize the political logic of crime in late modern America, where in my view a very different kind of restructuring of power and risk has taken place in the shadow of fear of violent crime. If we govern through crime today, it is less to intimidate a restive rabble of uprooted country folk jamming into our cities, than it is to reassure a suburban middle class far more vast than the 18th century gentry could have imagined possible. It is this kind of liberal "war on crime" that is spreading from America to Europe and Latin America. A nice example of "old school" governing through crime, however, is on display in the Islamic Republic of Iran today.Continue reading "Governing through Crime "Old School" style in Iran"
Posted by Jonathan Simon on February 2, 2010 at 01:27 PM | Permalink | Comments (3) | TrackBack (0)
Constructing the Canon
Greetings prawfsworld. It's a real pleasure to be invited to guest blawg, and I want to thank Dan, Rick, et al for the opportunity. I thought I'd use my first post to plug the paper--or at least the idea--that I presented on the AALS panel with Rick Hills, Larry Solum, Mitch Berman, Laura Cisneros, and John McGinnis. Some discussion growing out of that panel has already taken place on prawfs, but because my thoughts sort of abandon the interpretation/construction distinction right out of the box (at least as a tool of a foundational kind of constitutional theory), I thought it might be worthwhile to try and summarize here what I was trying to get at there.
You should know first that I endorse, and work within, Philip Bobbitt's approach to constitutional argument and interpretation. I see Bobbitt's early work as a kind of Kuhnian "paradigm shift" in constitutional theory, and I am happy enough (for now) to simply plug along as a "problem solver" within that framework. That may be enough to make you stop reading, but, if not, here's a brief description of how that model plays out in the paper I presented at AALS.
Bobbitt's first and most fundamental insight is to recognize the similarity between our practices of constitutional argument and our practices of language. Importantly, Bobbitt's approach does not seek to clarify provisions of constitutional text with the application of some bit of semantic or literary theory. Rather, he wants to point out that our practices of arguing about constitutional meaning are contextual and rule-governed in much the same way as are our other language practices. That is, Bobbitt sees constitutional meaning as analogous to a Wittgensteinian "language game", within which the possibility of communication arises from our ability to understand and follow a shared set of rules. For Bobbitt, these basic rules break down into six "modalities", or forms, of argument: historical, textual, structural, doctrinal, prudential, and ethical. If we make arguments within these modalities then we are making "legitimate" or comprehensible assertions of constitutional meaning; if we make other kinds of arguments we are not.
Continue reading "Constructing the Canon"
Posted by Ian Bartrum on February 2, 2010 at 11:06 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack (0)
Poll/Contest: What shape is the Constitution?
I sometimes find it useful to draw the Constitution on the board during my Legislation class. For instance, when I discuss the doctrine of constitutional avoidance, I draw statutes getting "bent" around the Constitution. (It is sort of like how celestial objects bend light around them, except the opposite because the Constitution pushes statutes away from its edge.) Anyway, when I do so, I always just draw the Constitution as a circle. But it occurs to me that this decision is, as they say, undertheorized (I couldn't help saying that).
So, readers, what shape or symbol should we draw on the board to represent the Constitution? What is the best you can come up with?
Continue reading "Poll/Contest: What shape is the Constitution?"
Posted by Aaron Bruhl on February 2, 2010 at 09:09 AM in Constitutional thoughts | Permalink | Comments (6) | TrackBack (0)
Monday, February 01, 2010
Student Evaluations of Teaching
I received my student evaluations from last semester on Monday. I'm sure many of you are critical of the process by which teaching is evaluated, but that's not the point of this post. Instead, I have to share one of my evaluations that amused me. The student who wrote it evidently enjoyed Media Law so much that s/he wrote, "You've redeemed the state of Texas for me." I hadn't realized that I was carrying the whole reputation of the state on my shoulders as I taught, but it is nice to know I didn't muff it. This reminded me of another favorite evaluation from the past. In response to the question, "What did you like most about this professor?," a student wrote, "She reminds me of my mother, who is also from Texas." I choose not to think too hard about that one.Posted by Lyrissa Lidsky on February 1, 2010 at 09:37 PM | Permalink | Comments (3) | TrackBack (0)
Hi, there, prawfs world
I'm happy to be guest blogging here for the month of February, a month that singer/songwriter Dar Williams once called "the longest month of the year." So, despite its compact 28 days, I promise to deliver a full serving of posts about civil procedure, complex litigation, and comparative law, some of which I will cross-post at the Civil Procedure and Federal Courts Blog where I am a co-editor. I'm looking forward to your feedback and comments.
Posted by Robin Effron on February 1, 2010 at 08:33 PM in Civil Procedure | Permalink | Comments (0) | TrackBack (0)
