I predict that, every time I or another VC blogger posts with closed comments on a subject that Orin finds interesting, he will post something short with open comments soon thereafter. We will see how this prediction holds in the future.
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B.D. says:
You should have posted this with closed comments to test your prediction.
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November 18, 2009, 1:37 pmCJColucci says:
Good for Orin.
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November 18, 2009, 1:39 pmBrennan says:
I hope your prediction is correct.
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November 18, 2009, 1:40 pmyankee says:
I certainly hope so! It’s just as well that some of DavidB’s Israel threads are closed, but you often say things that I find interesting and I’d like to be able to offer my thoughts on them.
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November 18, 2009, 1:44 pmbob says:
I predict that people who tend to post laughable nonsense prefer to keep comments closed.
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November 18, 2009, 1:44 pmCGordon says:
I propose the following test to define a “subject that Orin finds interesting”: If Orin (1) posts a short post on a subject (2) after a previous VC post with closed comments and (3) Orin’s post has an open comment thread, Orin must find the subject interesting.
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November 18, 2009, 1:50 pmRick A. says:
I, too, hope this prediction is borne out.
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November 18, 2009, 1:52 pmFaceword says:
I concur with Brennan. The comments are entertaining and occasionally informative. The more open comment postings there are, the better.
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November 18, 2009, 1:53 pmJosh Blackman says:
My prediction: Kerr, Barnett, and Bernstein chimed in, so it is only a matter of time before Professor Somin jumps into the ring. Perhaps with a discussion of why people should vote with their feet and move to jurisdictions with better gun laws, or perhaps why so many people are rationally ignorant of the original meaning of the Privileges or Immunities Clause, or why the New Yankee Stadium is an atrocious example of government waste.
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November 18, 2009, 1:54 pmtroll_dc2 says:
When you post something interesting without allowing comments, it may get reposted in another forum that allows comments.
As for Orin, all I can say is: Good for him! I’d be pleased if he commented on everyone’s posts. He never fails to be interesting and informative. (So how can he possibly be a Republican?)
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November 18, 2009, 2:02 pmmrshl says:
Count me among those hoping Orin makes a habit of this.
Also, I wouldn’t mind seeing Volokh posters who object to no-comment posts making use of Google’s new sidewiki technology. You can comment on any web page, including ones that don’t seem to encourage it.
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November 18, 2009, 2:05 pmtroll_dc2 says:
I believe that Somin would explain that people (at least conspirators) are voting with their hands by put up their own posts when they see something interesting that does not allow comments.
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November 18, 2009, 2:05 pmnrwo says:
Would you object to Orin so doing?
If so, the tag on your post should be changed from “Humor” to “Passive Agressive Non-response Response.”
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November 18, 2009, 2:08 pmML says:
this post is childish. grow up already.
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November 18, 2009, 2:09 pmMike says:
I’m hoping this post is gentle ribbing rather than the passive-aggressive/beta nonsense it seems like.
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November 18, 2009, 2:12 pmBlue Neponset says:
I am going to side with Prof. Kerr on this. 97.46% of the time the comments add to the discussion.
Re: your earlier post
I am so glad I was born in Massachusetts. According to our Constitution:
I feel bad for the good people of Idaho*. They apparently weren’t born with the same rights as I was.
*Scratch that. Idahoans have this going for them:
I am not an expert on State Constitutions. Is there one that doesn’t guarantee these “rights”? Anybody?
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November 18, 2009, 2:14 pmDave N says:
Yet you took the time to read it and comment. As I say to anyone who complains: “No one requires you to come here so don’t let the door hit you on your way out.”
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November 18, 2009, 2:15 pmAndrew L says:
I predict that 67.89% of the time that any VC blogger posts something lighthearted and innocuous, 90.12% of the comments on said post will consist of self-important condescension and/or snark from commenters who take most things way too seriously. Yeesh!
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November 18, 2009, 2:16 pmCrunchy Frog says:
Perhaps this will persuade you to leave comments open, at least on selected posts. As it is often the comments section that is the most entertaining/illuminating, I get rather irritated when they are unavailable, to the point that I rarely bother to read the original post.
I’m sure there are plenty of valid (to the blogger) reasons to leave comments closed, but consider the implications to the reader: that the blogger feels his positions are unassailable, and that the reader comments would produce nothing of value. I’ve had college classes like this, usually in humanities and victim’s studies. No fun.
Often (and I’m singling no one out in particular) the original post is a worthless piece of partisan tripe (on either side), that comments would certainly demolish if they were available. Gee, wonder why they’re not...
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November 18, 2009, 2:17 pmDudeman says:
Do you have any empirical evidence to support this claim, a citation to a law review article or case law perhaps?
;)
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November 18, 2009, 2:36 pmkrs says:
I predict that the recent childish posts will prove to be a temporary thing, and Prof. Barnett will return to posting insightful stuff (with or without comments) eventually.
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November 18, 2009, 2:43 pmJoseph Slater says:
B.D. wins the thread with the first comment, although honorable mentions go to the folks with fractional percentages in their comments.
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November 18, 2009, 3:30 pmSteve says:
I assume the #1 reason for turning comments off is because the blogger doesn’t feel like moderating the comment section. Outsourcing the comments to Orin has the advantage that he assumes the moderation duties for you!
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November 18, 2009, 3:34 pmSarcastro says:
This post is stupid! The internet is not for fun, people! Plus, the word “interesting” gives far too much wiggle room in the prediction.
Honestly, post about things I like or don’t post at all.
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November 18, 2009, 3:39 pmTamerlane says:
I agree with Steve. But I’d add, it’s sad that Orin has to assume moderation duties for co-conspirators who post potentially inflamatory material on interesting topics and don’t want to deal with issues they raise.
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November 18, 2009, 3:45 pmAnderson says:
What does “*s*” mean?
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November 18, 2009, 3:45 pmEH says:
Dave N:
Yet you took the time to read it and comment. As I say to anyone who complains: “No one requires you to come here so don’t let the door hit you on your way out.”
Nice dose of the anti-intellectual. Fortunately, criticism does not always have to be positive. I can see the element of childishness in the post, but my sense is merely that Orin uses the power of the internet (grayskull!) and the no-comment bloggers see the internet merely as a tool for self-aggrandizement. I guess it could just be a resource issue as well, where these bloggers just don’t appreciate the value in editing the comment threads to keep the chaff out. Baby, meet bathwater.
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November 18, 2009, 3:51 pmML says:
Dave N,
Sorry for commenting in my comment? I’m well aware of the fact that I’m not required to read this blog. On your reasoning, if they don’t want to hear comments, then they can turn off comments. I imagine the enable comments because the want to hear what their readers think.
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November 18, 2009, 3:56 pmThe Curmudgeonly Ex-Clerk says:
Anderson:
I assume that “*s*” means “smile(s),” given the “humor” tag assigned to the post. Though I suppose it could also stand for “snark” based on the content. Either way, can a more scholarly disquisition from Professor Barnett explaining how his Constitutional theory is Over 9000 and how Professor Kerr’s is Fail be far behind?
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November 18, 2009, 4:07 pmdcperson says:
I think it’s a smile (or smiling), but I’m not sure.
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November 18, 2009, 4:07 pmNickM says:
If your prediction is not borne out, you owe Orin a beer.
Nick
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November 18, 2009, 4:12 pmmariner says:
Shorter Barnett:
“I didn’t want people to be able to comment on what I posted, and I’d have gotten my way except for that meddling Orin!”
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November 18, 2009, 4:17 pmmariner says:
Shorter Barnett:
“I didn’t want people to be able to comment on what I posted, and I’d have gotten my way too, except for that meddling Orin!”
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November 18, 2009, 4:18 pmPeteP says:
Seeing as this is a discussion blog, you should NEVER ‘post with comments closed’ — save that for your personal website.
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November 18, 2009, 5:17 pmtroll_dc2 says:
I am with PeteP. What is the point of the VC if not to engage in a discussion? In fact, I wish that other conspirators would take Orin’s approach. As I have mentioned before, reading his posts and comments is like taking an online law course.
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November 18, 2009, 5:34 pmMike McDougal says:
VC FIGHT!
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November 18, 2009, 5:55 pmegd says:
That was discussed last Thursday.
/facepalm.
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November 18, 2009, 6:00 pmMike McDougal says:
Do I need to file a motion to strike?
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November 18, 2009, 6:19 pmLeo Marvin says:
I predict that 67.89% of the time that a VC commenter points out that other commenters have missed the humor in something lighthearted and innocuous, s/he’ll overstate the confusion by 90.12%, more or less.
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November 18, 2009, 7:07 pmArthurKirkland says:
There is always the Redstate/FreeRepublic solution: Banish a troublemaker such as Kerr.
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November 18, 2009, 7:34 pmjss says:
47.56 % of all statistic are made up.
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November 18, 2009, 8:00 pmCrunchy Frog says:
You’re gonna take
A walk in the rain
And you’re gonna get wet
I predict
You’re gonna eat
A bowl of chow mein
And feel hungry real soon
I predict
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November 18, 2009, 8:06 pmBT says:
Hey Mr. Cal City, a number of your posts are well worth commenting on, it is frustrating to have all of your posts closed. I hope you will reconsider.
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November 18, 2009, 9:09 pmOff Kilter says:
This is silly. What WOULD be interesting would be for Orin to carefully answer Randy’s reasonable questions on constitutional interpretation. But I won’t hold my breath. Beyond claims, frequent yet really beneath him, that constitutional interpretation is just a cover for policy preferences, he never seems to say much as regards the proper method of interpreting the document.
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November 18, 2009, 9:57 pmOrin Kerr says:
Off Kilter,
When I say that Randy doesn’t want to hear my answers to his questions, I genuinely mean it: When I saw him last week, he teased me at length for earnestly answering his questions the last time we had an exchange about the same questions.
As for why I never say much about the proper method of interpreting the document, it’s because I am an Oakeshottian Burkean conservative stare decisis guy: I therefore don’t need a single first principles theory of constitutional interpretation, and indeed, I am deeply skeptical of such theories because they always seem to align almost perfectly with the speaker’s political views. I have blogged about these issues dozens of times, of course, so just check out the archives if you’re interested.
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November 18, 2009, 10:12 pmOff Kilter says:
So, Orin, if you yourself were on the Supreme Court, and an issue that had no precedents presented itself, you would have no principled method of interpretation? Perhaps you would merely check the law blogs to see what informed opinion said about how you would likely vote... :-)
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November 18, 2009, 10:46 pmOrin Kerr says:
Off Kilter,
In that case I would be an originalist: I think most people would be. But only 110 people in the history of the United States have been on the Supreme Court, and issues without any precedents pop up very infrequently, so I’m not too worried about running into that problem.
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November 18, 2009, 11:25 pmjimM47 says:
I’ve understood the fact that OK leaves comments on and RB doesn’t to be a reflection of the fact that OK is willing to take the time and responsibility for monitoring/engaging the resultant comment thread while RB isn’t. So it’s kind of funny that when RB finally does have an open comment thread, it’s still OK who is watching the comment thread. You are ever diligent Prof. Kerr.
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November 18, 2009, 11:43 pmOrin Kerr says:
Thanks, jimM47. I guess that’s why they pay me the big bucks.
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November 19, 2009, 12:15 amOff Kilter says:
IANAL,Orin, but I don’t see your answer as either clear or sufficient.
Was Brown wrong to overturn Plessy? Was it wrong to overturn Lochner? If the court’s overturning their own precedent itself constitutes binding precedent, doesn’t this require something more in terms of interpretative principles? Or do you see the Court, too, as merely imposing their own policy preferences?
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November 19, 2009, 12:17 amOrin Kerr says:
Off Kilter,
Just so I understand, you have no actual legal training, and yet you find my several dozen posts and hundreds of comments explaining my jurisprudence over the years — posts and comments that I have taken dozens if not hundreds of hours to write and comment on — insufficient? Maybe I misunderstand you, but I’m beginning to think you are a difficult person to please.
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November 19, 2009, 12:28 amKudos to Orin Kerr « Entitled to an Opinion says:
[...] to Orin Kerr Posted by teageegeepea under Uncategorized Leave a Comment Randy Barnett gently ribs his co-blogger for his penchant for providing open threads on a topic when others (Barnett himself, [...]
Off Kilter says:
That MIGHT be the answer, Orin, but since I’ve seen several other posters over the years ask very similar questions of you and also express dissatisfaction with your answers, I suspect it is not the correct answer.
It’s perfectly fine to argue precedent uber alles. That’s an interpretive theory, though a derivative one, since it doesn’t explain how those who once made precedent were supposed to try and interpret the document. But if that’s your theory, you need to apply it uniformly or explain why Brown was right to overturn Plessy, etc.
You’re certainly right that as a non-lawyer I have less standing in asking you these questions. But others with more training than I can determine for themselves whether they are reasonable questions or not. As to your voluminous writings, if you’ve specifically addressed when to apply precedent and when to overturn it, and what principles to base that on, I’d be grateful for a cite. Always happy to learn from you.
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November 19, 2009, 2:32 amOrin Kerr says:
Off Kilter,
I am very disappointed that you seem to want me to answer all these questions for you and yet you never buy me any beer. Why not? What are you are trying to hide?
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November 19, 2009, 3:06 amno relation says:
Off Kilter, you posed a good question. I’d like to see Orin’s answer too, if he has indeed answered it before.
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November 19, 2009, 6:16 amMark Field says:
I’m not Prof. Kerr, obviously, but I basically agree with his theory of interpretation (with some caveats), which I understand to be that judges should apply the standard rules of common law interpretation combined with a respect for, but not veneration of, precedent.
In this “legal traditionalist” view of the law, there is no a priori answer to the question of when to overrule precedent. In fact, the point of it is that there shouldn’t be any such hard and fast rule. Each case gets taken on its own merits, with respect for the existing tradition.
That’s what Burkean conservatism is — it’s not a rejection of all change, nor a formula for deciding what change is good. It’s a case by case analysis of each specific situation.
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November 19, 2009, 10:12 amjimM47 says:
Mark Field:
A nitpick, to be sure, but I’ll push back on that, because I think Burkeanism has something to say about the substance of change, not just the pace and procedure of change. Burkeanism isn’t just a caution toward change, it is also a theory of order, of cultural and institutional evolution, that secondarily explains why there should be caution toward change. And that theory is not neutral to what change is good — change which disturbs a piece of the status quo that is the product of many hands over a period of time is less likely to be good than change which disturbs a piece of the status quo that was singularly or arbitrarily decided; change which disturbs a condition that has been relied on by many is more likely to have unintended consequences; change which comes as the result of a slow erosion of an old idea is more likely to be good than change based on a new idea.
(At least that’s a Burkeanism. I don’t know if it is yours or Prof. Kerr’s.)
A note, though, is that Burkeanism does give value to the emergence of ideas as part of discourse. That means that good-faith contributions to discourse, and engagement with them on their own terms, are an important part of an institution that will produce good Burkean outcomes, and they are valuable on their own terms, regardless of their ultimate factual validity. And I think that’s why many of us keep trying to push OK to engage more with first-principle visions of the Constitution. Not because we always think a court should apply first principles to the exclusion of precedent but because when courts do need to look to textual interpretation to supplement their work, we want the interpretation to which they look to be one that is fully developed — one that has itself gone through a Burkean process of refinement and testing by many hands.
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November 19, 2009, 1:37 pmno relation says:
That hardly answers the question.
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November 19, 2009, 1:40 pmMark Field says:
jimM47, I accept your view of Burkeanism. I’m not so sure I agree entirely with your additional point about dialogue. I think Burke would have said that “sufficient unto the day are the evils thereof” and refused to engage in multiplying hypotheticals. He’d want to deliberate on each issue when it became necessary, but not before, because only then would a full discussion be possible. At least that’s how I read him.
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November 19, 2009, 1:43 pmJohnny Appleseed says:
I love this comment thread. It starts with humor (more or less) and then evolves into an informative discussion of legal theory.
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November 19, 2009, 2:13 pmChris Newman says:
Please help me out a little here, Orin. Pretty please. I will gladly buy you a beer (or two!) in return, at the DC watering hole of your choosing.
The Court deliberately granted cert on the question whether the right to bear arms is a P or I under the 14th am. If we take the apparently governing precedent (Slaughterhouse) at face value, it would seem the answer to that is clearly “No.” So the Court would appear to be inviting argument as to whether that precedent needs to be revisited. In response to this invitation, Gura goes originalist, which is what you said above you would do when precedent doesn’t govern. So what’s wrong with Gura’s brief again?
And why is the default rule originalism, anyway? I thought you said you were skeptical of originalism because it tends to line up with its proponents’ political preferences. Do you really believe that “most people” would be originalist if not governed by precedent?
Or is it not originalism per se but something about Gura’s (and Randy’s) particular originalist methodology that you reject? Is it that originalism is okay as a default rule because it has desirable Burkean discretion limiting effects–but that this salutary benefit breaks down the moment originalist methodology requires us to take seriously something as loosey goosey as natural law? I can understand that position (more or less where Scalia is, I think), though it would seem to depend on whether the contours of the particular natural law doctrines at issue are in fact any less tolerably determinate than the other sorts of objective public meaning originalism requires us to grapple with.
Here’s what, I confess, has gotten a bit under my skin in reading these exchanges between you and Randy. You’re perfectly free, of course, to be skeptical of originalism, or natural law, or anything else. But I notice you got a bit testy above when challenged by a random commenter who hadn’t bothered to read and process carefully all your blogposts on constitutional jurisprudence before challenging you. Randy’s written numerous articles and books on originalism and natural law that address the kinds of objections I assume you to have. I’m not claiming you’re required to read all of them before saying anything on the topic–if that were the rule all blogging would cease. I just find it disappointing that you seem willing to dismiss a coblogger so cavalierly as doing nothing more than trying to legislate his preferences–and to make numerous smug digs based on that premise, secure in the knowledge that all the kewl kids will snicker on cue as they’ve been trained to–without feeling any need to say where exactly you think he’s being inconsistent or explain how a different methodology would be better. You’re under no obligation, of course, to put in the time and effort to do the latter; I for one just wish that in that case you’d refrain from the former as well.
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November 19, 2009, 3:19 pmloki13 says:
I cannot speak for Orin, but I can offer my own thoughts.
1. When I see repeated references to “natural law” it tends to make me grate my teeth a little. Why? Well, if you have any legal training, let me use an analogy– if you go back (why back, pre-Brainerd, 19th C.) in choice of law disputes, there was the concept that the law rose from the soil; that the rights conferred were based upon some property of the territory itself. Seems kind of… quaint, right? Same with older common law principles– there was no need for Erie, because there was only one “common law” that was being worked toward, reasoned toward, understood. Now– you may believe this; just as with Plato’s forms, you might think that judges extend their antennas into the ether and gradually divine the true essence of the natural law and shape our laws toward them. But it seems far-fetched to me.
2. Building on that, there is a problem when one person argues that any language construct (let alone the Constitution) has one clear, unambiguous meaning. That the text compels a single “right” answer. There are certainly things that are more, or less, supported, but no absolute truth.
3. Given that, I agree with Orin that every metho of interpretation that I have seen almost invariably leads to results that tend to support the outcomes (political, usually) of the person doing the interpretation. To use Prof. Barnett as an example, he uses “originalism” – but someho he ends up with an a libertarian Constitution. Prof Amar is also an originalist – but his Constitution is much more liberal. Why? Because their interpretative models take into account evidence that supports their conclusions, and tends to discount evidence that undermines their conclusions.
4. As a side note, lawyers, judges, and legal academics make poor historians. They are crafting arguments about history, not trying to understand it. So they search for evidence to buttress their opinion (or smoking guns they need to distinguish) instead of attempting to understand the true context of the times. While I think original expected application is important as a tool (along with textualism and precedent and other factors) it is simply one method of analysis.
5. It is frustrating when you’re explaining the value of precedent to hear the tired rejoinder of “what about Brown?” Well, duh. SCOTUS does overrule itself sometimes. But there is supposed to be a healthy respect for horizontal stare decisis (the ability of SCOTUS to bind itself). You can look at this in a number of ways– you don’t want to keep re-inventing the wheel, there are reliance interests in society, it shows respect for the jurisprudence of those that come before you (and you expect that respect to be returned with your decisions), it would invite people to continually challenge existing precedent etc. So there has to be a default position that prior precedent is correct, and presumption should be hard to overcome. Not impossible– SCOTUS should be able to correct past mistakes– but hard. And there are no rules. That’s the way our system works.
6. Finally, I find it annoying when people ask me for “the way” I understand the Constitution. There’s a mix of approaches. What I think is amazing is that people believe that these interpretive methodologies, consistently applied, which always end up with results that the person favors, have any validity. Every complex problem has a simple, easy-to-understand, wrong solution.
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November 19, 2009, 4:37 pmno relation says:
“There are no rules.”
So anything goes? All the various non-answers here simply beg the question, or else move the inquiry one step backwards. We all agree that precedent should be “hard to overcome.” The question is how hard. And your answer to that is, “there are no rules.”
Not a satisfactory answer in my book.
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November 19, 2009, 5:10 pmloki13 says:
no relation–
Well, deal with it. There’s some presumptions (for example, statutory construction is accorded more weight than constitutional construction, which seems counter-intuitive, until you realize that Congress can change statutes). There’s been articulations (see Scalia in Wisconsin Right to Life). There’s attempts to explain why gradual change is better when building to overruling (for example, path dependency theories).
But that’s life. Your rejoinder seems to be “overrule when the precedent is wrong!”. Um, allow me to reiterate– DUH! But how do you define “wrong”. Wrong to you? “Clearly wrong”?
This is how the law works– you repsect precedent. You gradually develop the law. You attempt to distinguish if necessary. And rarely do you overturn. Saying that there is a presumption of validity in precedent is no more unclear than saying that there is a presumtion of good faith in the business judgment rule, and yet courts manage to apply that on a regular basis.
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November 19, 2009, 11:01 pmOrin Kerr says:
A number of readers are asking — as did Randy– why I am so critical of Gura’s brief.
Perhaps I’m missing something, but I don’t recall my post actually criticizing Gura’s brief. I explained how I think each of the nine justices would respond to the brief, based on my understanding of each of the nine Justices and their view of the law and precedent. But some readers, and Randy, too, seem to want to imagine that my predictions of their reactions are actually my reactions. But they’re really just my predictions of their reactions.
The reason why I usually don’t blog my own personal reactions to these arguments is that my own views are just the common reactions that you can get that anywhere. I don’t teach or write in the field, so I don’t know why I would spend lots of my time spending hours on these topics them unless I think I have something genuinely new to say. I appreciate that some of you want me to spend some time on it, and I appreciate your interest. But I would rather spend my time on one of the articles I’m working on, or perhaps a Fourth Amendment post.
If that strikes you as being evasive, I would ask you why you’re not hearing at all in this thread from any of the other thousands of law professors out there, or for that matter, any of the other bloggers here at the VC, most of whom spend much more time on these issues than I do.
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November 20, 2009, 12:50 amGuy says:
To weigh in, I think overruling is one of the cases where judges can, and should, look to policy reasons. Segregation was terrible, odious policy — and that’s one of the main reasons why Brown was right, more important than any rule of construction at the end of the day. Terrible according to who? Well, the justices, and this judgment was vindicated by future generations, judges should be careful not to impose their whims to lead to an unstable body of law, but when it’s really important, you do what you have to do. As loki alludes to, the common law was, essentially, judges making law by declaring what seemed fair or just to them. This is a part of judges’ jobs, and why the judiciary is so important in our system of law. It’s important that judges show deference to the intent of law-making bodies as well as they can determine it, but that’s not the end of the analysis by a long shot. And yes, judges need to be careful about not pushing their political preferences in an unprincipled or overbearing way, that kind of restraint is one of the things we look for in a judge. But you can’t find that restraint by looking at their legal theories, you have to look at their characters and their actions in practice.
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November 20, 2009, 1:03 amDavid Nieporent says:
No doubt. But I wish you liberals would realize that it’s frustrating to originalists to hear that tired rejoinder, too. That’s part of the standard repertoire of liberals’ rhetorical tools against originalists — the implication that an originalist interpretation can’t support the holding of Brown, and therefore originalism is necessarily discredited as an interpretative model.
It’s not that there are no “rules” in your schema, but that there aren’t even any guidelines. It should be “hard,” but what does that mean? Obviously one shouldn’t overturn on a whim, but, well, to quote you, “DUH.” That doesn’t tell us anything; obviously one needs a reason. But what counts as a reason? You say it should be able to “correct past mistakes,” but how can you even define what a “mistake” is, other than something you just don’t approve of?
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November 20, 2009, 7:31 amjrose says:
That’s part of the standard repertoire of liberals’ rhetorical tools against originalists — the implication that an originalist interpretation can’t support the holding of Brown
As Balkin noted, originalists have greater problems than Brown.
It’s not that there are no “rules” in your schema, but that there aren’t even any guidelines
I’d suggest two guidelines: 1) intervening cases that weaken the precedent, and 2) borrowing Balkin’s view of “originalism”, the intended application of a particular clause has changed because society has changed.
For example in the latter, the original meaning of cruel and unusual remains the same, but precedent might be reversed if specific punsihments that society once thought were not cruel are now deemed cruel.
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November 20, 2009, 7:53 amMark Field says:
I think this is the root of the problem. People who have a system (a set of rules) find it impossible to believe that others don’t. But that was Burke’s whole point: he denied that he had a system of rules; in fact, he argued that nobody should ever have one. He rejected “grand narrative” philosophy in its entirety.
Now, you can argue that Burke was wrong in this, but you’re going to have to meet that argument on the merits and not just exclaim in frustration.*
*As part of meeting Burke head on, you can explain why common law judging was wrong in denying any over-arching method. Common law judges were Burkeans before he ever wrote.
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November 20, 2009, 10:27 amloki13 says:
Not true. I’ve mentioned some guidelines in my posts. I’ve also written about this before (although to preserve anonymity I cannot cite to it). But in short, I think the best way, quickest way to put it is an incredibly strong presumption that can be rebutted by the text, original expected application, reliance interests, and intervening case law (which goes to incremental change, implicit overruling before explicit overruling, and the ability to slowly modify precedent and see the application before overturning it).
But that’s not nearly as pithy as “overrule the bad cases”.
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November 20, 2009, 1:15 pmTwirlip says:
You didn’t ask me, but I’ll tell you that I don’t think that Randy is any sort of originalist or has any particular devotion to any interpetation of the US Constitution. Randy is a moral philosopher who thinks he’s a legal scholar.
Again, you don’t address this to me. But I have serious issues with what Randy has written, and I never get ANY chance to question him about it. So it seems a bit over-the-top of you to hector OK for not answering your questions to your satisfaction. At least you get some answers.
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November 30, 2009, 9:38 pm