Archive | 2012

Berkeley’s Malcolm Feeley Reviews Rehabilitating Lochner

Berkeley Law School professor Malcolm M. Feeley has a brief review of Rehabilitating Lochner in the January issue of Choice, which publishes reviews for its primary audience of academic librarians. The review is behind a paywall, but it concludes, “This is a delightful and informative book that deserves a broad audience of scholars and laypeople alike.” [...]

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Rick Santorum, Big Government Conservative

An old but very relevant commentary by Jonathan Rauch:

In his book he comments, seemingly with a shrug, “Some will reject what I have to say as a kind of ‘Big Government’ conservatism.” They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, “individual development accounts,” publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in “every school in America” (his italics), and more. Lots more.

Via David Boaz, who points out Santorum’s explicit rejection of “the whole idea of personal autonomy” and the “idea that people should be left alone.” [...]

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The Framers and the Difference Between Freedom of Speech and Freedom of the Press

A common argument against the claim that “the freedom of the press” protects all who use mass communications technology — and thus in favor of the claim that “the freedom of the press” specially protects the institutional media — is that otherwise the “freedom of the press” would be redundant of the “freedom of speech.” After all, the argument goes, the Court has long treated printed communication as “speech”; given this, the only way to give independent meaning to the “freedom of the press” is to view it as extending independent protection to the press-as-industry.

I don’t think that’s right, for reasons I talk about in Part I.E of my Penn article on the subject:

The freedom of the press-as-technology, of course, was not seen [during the Framing era] as redundant of the freedom of speech. St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press as focusing on the printed:

The best speech cannot be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press.

Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that “freedom of speech means, in the construction of the Constitution, the privilege of speaking

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The Original and Traditional Meaning of “Freedom … of the Press”

My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:

“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just

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The Classic Contracts Cases in Words and Song

Stanford contracts professor Richard Craswell conceived, wrote and performed these amazing songs about six of the most famous and memorable cases in contract law. I laughed out loud at the first one, but they all are simply brilliant. If, that is, you took first year Contracts.

UPDATE: By the time I had listened to all these songs and cut and pasted all the links into a blog post, I see that Eugene already blogged about these. But having the videos embedded might be more convenient for some, so I will leave it up. [...]

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New Jersey Court Holds Divorcing Husband Can’t Be Ordered to Give Wife a Jewish Religious Divorce

Under Jewish law, at least as understood by many Jews, a civil divorce decree isn’t enough to terminate the marriage from a religious standpoint — unless the husband gives the wife a bill of divorce, called a Get (pronounced just like the word “get”), she may not remarry. If she civilly remarries before receiving a Get, her sexual relations with her new husband are seen as adulterous, notwithstanding her civil divorce; also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Orthodox Jewish community (and possibly also among many Conservative Jews). A recalcitrant wife may cause somewhat similar problems for the divorcing husband if she refuses to accept the Get.

Of course, all these impairments are purely a matter of Jewish law; American secular law does not at all enforce them. Nonetheless, they are taken seriously by many observant Jews, and women who have been refused Gittin (that’s the plural of “Get”)and the smaller group of men whose ex-wives have refused to accept Gittin are put in a difficult position. The ability to impose this position can also give a spouse substantial leverage to try to negotiate a more favorable settlement as a condition of giving (or receiving) the Get.

This had led some courts to order divorcing husbands to give Gets, and some legislatures to enact statutes providing for such orders. Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).

My sense, though, is that [...]

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Even Worse Than We Had Hoped: Inside Local TV News

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.


We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the [...]

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Herbert Wechsler on the ALI and His Career

I’ve blogged here before about the legendary law professor Herbert Wechsler. Thanks to Adam White, I’ve recently learned that there’s a long interview with Wechsler recorded in 1989 that is now on YouTube . Part 1 is below (2 hours), and part 2 is here (36 minutes). The interview is mostly focused on Wechsler’s work with the American Law Institute, which is only one part of his fascinating career, but it’s at least an interesting glimpse.


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National Defense Authorization Act (NDAA) Discussion

I’ve pointed in the past couple of weeks to ‘must-read’ discussions of the NDAA at the Lawfare blog, by Benjamin Wittes, Robert Chesney, and more recently Steve Vladeck.  Now, in a cross post at Lawfare and Opinio Juris, Marty Lederman and Steve Vladeck weigh in with two substantial posts.  Their take-away is somewhat different from Wittes and Chesney’s, and I strongly commend them to you.  At OJ, Marty Lederman also has a guest post on the meaning of the signing statement that accompanied the President’s signature on the NDAA, and then there is a response post giving pushback on many of the basic international law assumptions in all of the above discussions from OJ’s Kevin Jon Heller.   (For my part, I will try to find a moment here to parse the answers given by several of the Republican presidential candidates to a New York Times inquiry on the lawfulness of the targeting of an American citizen, Anwar Al-Awlaki, in Yemen several months ago.) [...]

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The Ridiculousness of the Virginia GOP Primary

The Republican primary in my home state of Virginia is becoming ever more ridiculous. First, the state GOP’s byzantine signature-gathering rules prevented all but two of the candidates (Mitt Romney and Ron Paul) from getting on the ballot. Now the state GOP has decided to require all primary voters to take a loyalty oath pledging to “support the nominee of the Republican Party for president” in the fall. The pledge is not legally enforceable, but state GOP leaders hope it will deter Democrats and independents from voting in the primary. They can’t simply limit the primary to registered Republicans because Virginia has nonpartisan voter registration.

Be that as it may, the oath is still stupid. Even if you’re a hard-core Republican partisan, there are surely some circumstances where you might choose to vote for another party’s candidate, or simply abstain. What if the eventual GOP nominee has a massive scandal (e.g. – after he gets nominated, evidence emerges proving that he’s a murderer or a child molester)? What if you believe that he or she is incompetent or ideologically abhorrent? [...]

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Glenn Greenwald on Campaign Season Partisanship

As long-time readers know, I’m not a fan of Glenn Greenwald, but his broad attack (below) on placing partisanship above all other concerns during campaign season–motivated by his desire to praise Ron Paul on various issues on which he thinks Obama has been terrible, including some issues on which Greenwald and I agree, such as the War on Drugs and certain abuses of Executive authority–deserves repeating:

Then there’s the full-scale sacrifice of intellectual honesty and political independence at the altar of tongue-wagging partisan loyalty. The very same people who in 2004 wildly cheered John Kerry — husband of the billionaire heiress-widow Teresa Heinz Kerry — spent all of 2008 mocking John McCain’s wealthy life courtesy of his millionaire heiress wife and will spend 2012 depicting Mitt Romney’s wealth as proof of his insularity; conversely, the same people who relentlessly mocked Kerry in 2004 as a kept girly-man and gigolo for living off his wife’s wealth spent 2008 venerating McCain as the Paragon of Manly Honor.

That combat experience is an important presidential trait was insisted upon in 2004 by the very same people who vehemently denied it in 2008, and vice-versa. Long-time associations with controversial figures and inflammatory statements from decades ago either matter or they don’t depending on whom it hurts, etc. etc. During election season, even the pretense of consistency is proudly dispensed with; listening to these empty electioneering screeching matches for any period of time can generate the desire to jump off the nearest bridge to escape it.

Then there’s the inability and/or refusal to recognize that a political discussion might exist independent of the Red v. Blue Cage Match. Thus, any critique of the President’s exercise of vast power (an adversarial check on which our political system depends) immediately prompts bafflement (I don’t understand the point:

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Talk About Scale!

So here’s the most interesting thing I’ve come across in 2012**. . . As anyone who reads what I write here or elsewhere knows, I am obsessed with trying to understand Internet scale. I am convinced — and it was Jefferson, interestingly enough, who convinced me — that it is simply impossible to understand any questions about Internet law and policy without considering the extraordinary and unprecedented magnitude of Internet activity. The TCP/IP network had to solve a number of very profound scaling problems before it could perform the tasks it now performs — 700,000 Google searches, 11 million IM conversations, 1 million Facebook status updates, etc. etc., every minute of every day, more content posted to YouTube every month (probably, by now, every 3 weeks or so) than the combined output of all US television networks since their inception in the 1940s, etc. — and the idea that our legal system, and the 19th and 20th century tools it contains, can somehow magically “scale up” to work well on the Net is, frankly, laughable — though I try to keep a straight face when respected colleagues and friends propound it.

It’s why the current brouhaha about the “Stop Online Piracy Act” (SOPA) (see my previous posts here and here) is so important. The regulators have started to understand scale, and the solutions they’ve come up with — law enforcement via the domain name system — is positively chilling. If that’s the best we can do, we’re in trouble.

** Actually, it’s not the most interesting thing I’ve come across in 2012; the most interesting thing I’ve come across in 2012 is here.

[and thanks to J. Lewis for the pointer] [...]

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