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Wednesday, July 06, 2005

"Your Dreams Were Your Ticket Out..."

I'm glad to be back and many thanks to Dan and Ethan and the gang for having me as a fellow blogger.  Well, I guess "glad to be back" wouldn't be of much use or helpful to blogger productivity.  So let me say I'm conflicted to be back, for reasons I discuss below at length.  Or: I'm angry to be back, and it's all the right's/the left's/Lawrence VanDyke's/Leiter's/the Church of Scientology's fault.  I look forward to using this as a space for fence-sitting, pot-shot-throwing, and (to fulfill my original promise of lowering the collective IQ, although I also appreciate Kaimi's occasional pop-culture references) occasional discussions of the Buffyverse and/or good drummers.

While on hiatus, I've been working on a couple of papers.  Early reactions and comments are always appreciated, although I haven't posted my drafts yet.  More after the jump, as they say.


The first is called "James Madison, Behavioral Economist" -- a title which I appreciate is provocative on about five different levels, but which I soften appropriately in the text.  It's really a review essay of Sunstein's book Why Societies Need Dissent and James Surowiecki's book The Wisdom of Crowds, although I'm not sure whether the final form will be a review or not.  It discusses, building on Sunstein and Surowiecki but hopefully with additional depth and detail, the ways in which we could think of our constitutional structure, at least as it presently exists, as being responsive to and consistent with "behavioral" (to use an incredibly loose term) scholarship on group decision-making.  I think Sunstein says useful things about this, but I think more can be said.  His work, and Surowiecki's, also provides the basis for thinking about ways in which we could model small- or large-scale reforms in thinking about the constitutional  and practical structure of government, free speech jurisprudence, separation of powers, and other issues.  One area of scholarship not much touched on by either of these authors is the voluminous literature on institutional analysis, which I think adds much to their basic discussions.

The second is less pithily titled, although (and yes, authors think about these things) more search-friendly.  "The History and Meanings of the Federal Judicial Oath" is about...well, guess.  Although Thomas Grey and Sanford Levinson and, more recently, Patrick Gudridge, have written interestingly on the nature of the judicial oath, there is surprisingly little, if any, sustained treatment of this topic, particularly given the oath's role in the seminal case of Marbury v. Madison, and I aim to fill the gap.  (Of course, readers with suggestions for interesting sources are welcome to let me know.)  The piece will be half historical excursus and half close reading of the text of the oath, which has changed little in over two centuries.  Although this is largely a one-off piece, I think it's interestingly related to the writing I've done on this blog about the filibuster, since it asks how judges (and other constitutional oath-takers) would be obliged to act if they took their oaths with greater seriousness than I believe they do now.  General comments and questions on this paper are especially welcome, for those die-hards who have made it down this far, as it's in the reading and writing stage, as opposed to the final draft stage, when requests for comments often amount to "please allow me to put your name in the asterisk footnote."

I'm also happy to say my piece on Grutter's First Amendment should be hitting the library stacks any day now in the Boston College Law Review, there to flourish or, more likely, wither.  It should be interesting for folks who are writing about or advocating on the Solomon Amendment issue, campus hate speech, and a variety of other issues. 

There.  It does seem that bloggers can get academic writing done too.  In any event, comments are always welcome.  I found in my first stint here that the readership is one of the best things about this blog: smart, interesting, and full of generally useful comments.  I'm happy to take advantage of that.

Posted by Paul Horwitz on July 6, 2005 at 01:24 PM | Permalink


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Paul, we're very glad to see you back here, and to know that you have mastered how to use the jump!

Posted by: Dan Markel | Jul 6, 2005 10:39:48 PM

Interesting ... I find Suroweicki interesting, though it's pretty popularly written. I've got to say, institutional design at network effects are at odds in my view - network effects are kinda like magic, right? Something happens, the black box of the popular will reacts, and we get an outcome. That's the Wisdom of Crowds thesis, anyway - kind of at odds to the economists who posited networks as problematic for efficiency.

And I hate oaths. How are they enforceable in any real way? The Jehovah's Witnesses are on to something. Taking things seriously - what does it all mean?

Posted by: david | Jul 6, 2005 4:27:08 PM

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