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Monday, November 30, 2009

A "disgusting" case of mistaken identity...

The other day Larry Solum registered his reaction to Andy Koppelman's newest piece, Why Jack Balkin is Disgusting (forthcoming in Con Comm): "The title is over the top and in my opinion unprofessional.  The reading of Balkin and his critics is surprisingly shallow." As I perused the piece today to see if I'd agree with Larry's assessment, I found that I was listed as one of Balkin's critics.  I had one reaction: Huh? How did I get mixed up in this? 

Well, according to the text accompanying FN 30 of the piece, I apparently wrote that  Balkin “attempts to eliminate the rhetorical power of originalist arguments by making essentially everything an originalist argument.”  Did I actually write that?  Not quite. It doesn't sound that terrible but I didn't recall writing that. Turns out it was someone else, a person purporting to be named Orin Kerr. Easy mistake, right? And at least someone's citing, if not reading, my posts. But based on that gentle post, if anyone now cares, it's probably more accurate to label me as an anti-anti-Balkinite. Not a big deal, but fwiw I'd prefer in the future not to be quickly lumped with Ed Whelan and Matthew Franck, both of whom attacked critiqued Balkin in the National Review Online. I will do or say a lot in the name of intellectual pluralism, but I won't go *that* gently.

One last thought on L'affaire Koppelman: Balkin's got a great sense of humor  (see, e.g., this), and a pre-existing relationship with AK (see, e.g., AK's citation of an email with JB making a (Straussian?) reference to the esoteric teachings of and connections between early and late Balkin), so my guess is that Koppelman got pre-approval from JB on the title.  Based on his comments, I guess Larry thinks consent is no defense here. But, as a matter of "professionalism," would that be true, ie., assuming JB gave consent?

update: Sorry, Ed, didn't mean to suggest the exchange was less than cordial.  

Posted by Administrators on November 30, 2009 at 12:07 AM in Constitutional thoughts, Dan Markel, Legal Theory | Permalink

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Comments

Perhaps Larry's concern was that Andy was indirectly
critical of his brand of originalism. Andy's "Disgusting" is
in SSRN's top five last week. Andy's post at Balkinization
does not permit comments from the "usual suspects." Query
whether this was Andy's or Jack's decision?

Posted by: Shag from Brookline | Nov 30, 2009 6:53:48 AM

Dude, that's my cite! Give it back!

Oh, and I should note that my statement was not an authoritative "declaration", as the article suggests, but rather a quite tentative comment that asked for responses. For that matter, I'd still be interested in responses.

Finally, Dan, I tend to lump you together with John Yoo and David Addington more than Ed Whelan and Matthew Frank. In fact, I somtimes just refer to the group as "YAM" -- Yoo, Adddington, & Markel.

Posted by: Orin Kerr | Nov 30, 2009 2:44:18 AM

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