The Volokh Conspiracy

Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice Sotomayer raised it again, not especially coherently.

Surveying some of the post-oral argument Lochner-related commentary, I hereby present The Lochner Awards in various categories noted below:

Weirdest and most conspiratorial use of Lochner
Breitbart.com “In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision–an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.”

Spookiest Lochner reference
Jamin Raskin, Huffington Post “The ghost of Lochner is alive and well on the Roberts Court” (someone call Bill Murray!)

Smelliest use of Lochner
Daily Kos: “the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law”

Most “challenging” reference to Lochner
Attorney Bryan Caskey: “So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding.”

Most Honest use of Lochner
Jonathan Cohn, New Republic: “But I’m pretty sure both Obama and his administration’s lawyer were saying something different, and broader, when they invoked Lochner: By invalidating the Affordable Care Act, the Supreme Court would be resurrecting a vision of constitutionally limited government that, quite rightly, went out of fashion a long time ago.” (Constitutionally limited government! The very idea is preposterous!)

Most Puzzled reference to Lochner
DailyGreg blog: “Lochner? Who the hell is Lochner?”

Disco Lochner
Allergictobull.com: “Now one thing that comes up several times is what I refer to as the Lochner ‘boogie man.’”

Most judicious comment about Lochner
Damon Root, Reason: “the legal challenge to the individual mandate has nothing whatsoever to do with overturning any New Deal era precedents”

Yeye, Kai-Lan’s grandfather, and the late Milton Friedman.

At the New Yorker today — very funny. Thanks to Joe Malchow for the pointer.

I’m usually not wild about attempts at wit in headlines — so many are cliche, or otherwise fall flat — but this one struck me as quite good. From Drew Combs (The Am Law Daily):

Where There’s a Will: Estate Planning Group Bolts Weil for McDermott

In move that spells the end for Weil, Gotshal & Manges’s decades-old estate planning practice, the chair of the firm’s trusts group, Carlyn McCaffrey, and six colleagues have decamped to McDermott Will & Emery, which announced the moves in a statement released Thursday….

Fox 411 reports:

Everything Britney Spears wanted to know about sex, she learned from her mom.

And at a very young age.

“I was 12 years old,” Spears tells OUT magazine about when she asked about the birds and the bees. “I was confused and disgusted.”

Well, duh. Who wouldn’t be disgusted by the birds and the bees? Here’s what the conversation probably sounded like:

“Now, daughter, think of yourself as a bee. There’s a 99.99% chance that you’ll never get any, and instead of developing an extensive reproductive system, you’ll get to have a stinger and a venom pouch. But there’s a tiny chance that you’ll be a queen bee, which means you’ll be really huge, and all these male bees will have sex with you.

“Now if you are the queen, and all the boys have sex with you, their penises will fall off and stay in your body. Then they’ll die. Oh, and before one of them has sex with you, he’ll have to make sure he take the other guy’s penis out of you first.

“No wait, daughter, actually, think of yourself as a bird. That means you’ve got a single cloaca, through which your urine, feces, and eggs go out, and the male’s semen comes in. Just remember that, and you’ll be OK.”

(Joke shamelessly recycled, but at least it’s my own! Oh, and how is 12 a “very young age” to learn about sex [by hearing rather than by doing]?)

To become a member of a circuit Bar, I just had to affirm “that I will demean myself as an attorney.” But at least I have to demean myself “uprightly and according to law.”

Over at Concurring Opinions, G.W. lawprof Dan Solove has some fun with the Playmobil airline screening playset.

UPDATE: 21st century Gadsen Flag(H/T Jacob Hornberger via Facebook)

Interesting race in Connecticut. One candidate’s adult life has been spent in a profession in which testosterone-infused alpha male types engage in well-choreographed bombast for the benefit of the credulous masses.

And the other has spent her career in professional wrestling.

Over at Balkinization, Mark Graber has an amusing guide to Supreme Court histories written by Supreme Court Justices and wannabees.

Froom the comments section on Nate Silver’s 538 blog, where he notes a 1 in 4 chance of the GOP taking the Senate:

October is known for its surprises, but I would not be surprised if the electorate became more informed about the facts, and the distortions prevalent on both Network and Cable TV, and of course Talk Radio, as we approach this crucial election. And please don’t underestimate the effect of C-span.org on independent voters, who watch Washington Journal regularly with passion.

The combination of earnest hopefulness that the voters will “come to their senses”, apparent ignorance of the fact that “swing” voters tend to be by far the least informed part of the electorate, and the pairing of “passion” with “Washington Journal,” a show only slightly less dull than watching professional golf on t.v., made me laugh out loud.

This is a few months old, but still pretty funny: from The Onion. Thanks to reader John Ellis for the link.

With lots of media attention focused on Judge Walker’s SSM decision, I decided to write a generic op-ed that any paper or website can use. Just pick the right word you want in parenthesis — conservatives pick the first word, and liberals pick the second.

FOLLOW THE CONSTITUTION

Judge Walker’s decision on same-sex marriage is a reminder of the proper role of judges in our society. Above all else, judges should follow the Constitution. For that reason, Judge Walker’s decision should be [condemned/celebrated].

Judge Walker showed from the outset of the Prop 8 case that he had one priority: To [subvert/follow] the Rule of Law. His efforts to televise the trial, later overturned by the Supreme Court, show his true intent. Judge Walker wanted to televise the Prop 8 litigation to make sure it would be a [show trial/teaching moment] for the advocates of same-sex marriage. Although the Supreme Court did overturn his decision, Judge Walker pressed on. He never backed down. It is hard to believe that he is a Bush appointee — but this is San Francisco, after all.

Now the case heads to the Ninth Circuit Court of Appeals. The Ninth Circuit is a famously [lawless/independent] circuit. The next stop is the Supreme Court, which will probably divide 5-4 in this case. The swing vote is Justice Kennedy. Although his vote is often unpredictable, Justice Kennedy has tended to vote with the Supreme Court’s [activist/moderate] wing in cases related to homosexuality. We hope that Justice Kennedy rejects [liberal elite opinion/bigotry], follows the Constitution, and [upholds/rejects] Prop 8.

Public opinion about same-sex marriage is changing. The Supreme Court should recognize this and [step aside/ speed it along]. The choice is clear: It a choice between following the true Constitution and caving in to public pressures and opinion. We urge the Supreme Court to show the courage to follow the Constitution just as the Framers intended.

I bet if I had some Adderall, I would have finished this manuscript revision hours ago, or anyway, would stay up all night in a state of ecstatic concentration and get it done :(

Citing the drug’s extensive contributions to almost every field of academia, Harvard conferred an honorary doctoral degree upon a 30-day supply of Adderall during the university’s 359th commencement exercises Thursday.

Resting on a wooden dais throughout the ceremony, the synthetic psychostimulant was warmly praised by Harvard president Drew Faust, who called Adderall a stirring testament to what the human mind can achieve when chemically altered by a combination of dextroamphetamine and racemic DL-amphetamine salts.

“Harvard is proud to honor the tremendous merits of Adderall, without which many of you would not be sitting here today,” Faust said in her opening address to the nearly 1,900 unblinking and intensely focused students receiving their diplomas. “I don’t think I’m exaggerating matters when I say that Adderall has been an inspiration to us all.”

The psychologically addictive drug then received resounding applause from the assembled graduates, with many jumping to their feet, clapping in near unison for 25 straight minutes, temporarily forgetting where they were, and then grinding their teeth in celebration of the well-deserved honor.

A friend of mine who works in the intelligence community brought this jewel to my attention.  In January 1944, the Office of Strategic Services created a secret document entitled “Simple Sabotage Field Manual” (available here as a free audio book) to assist operatives in disrupting the Axis war effort.  It contains the expected stuff about starting fires and shorting electrical systems.  But the most enlightening stuff comes at pages 28-31, in a section entitled “General Interference with Organizations and Production.”  There, we learn that our secret weapon against the Nazi war machine was . . . bureaucracy.  Note these ingenious plots:

(a) Organizations and Conferences
(1) Insist on doing everything through “channels.”  Never permit short-cuts to be taken in order to expedite decisions.
* * *
(3) When possible, refer all matters to committees, for “further study and consideration.”  Attempt to make the committees as large as possible–never less than five.
(4) Bring up irrelevant issues as frequently as possible.
(5) Haggle over precise wordings of communications, minutes, resolutions.
(6) Refer back to matters decided upon at the last meeting and attempt to re-open the question of the advisability of that decision.
(7) Advocate “caution.”  Be “reasonable” and urge your fellow-conferees to be “reasonable” and avoid haste which might result in embarrassments or difficulties later on.
(8) Be worried about the propriety of any decision–raise the question of whether such action as is contemplated lies within the jurisdiction of the group or whether it might conflict with the policy of some higher echelon.

More nuggets after the jump.

In other words, the war would have ended a year earlier if we could have just parachuted the Executive Secretariat of some executive agencies behind enemy lines in 1942.  But probably the paperwork wasn’t in order.

I don’t want to oversell the point that the Manual basically recommended being bureaucratic; there are parts of the Manual that advocate conduct that bureaucracies do not actually encourage, such as “Work slowly,” “Act stupid,” “Cry and sob hysterically at every occasion,” and my personal favorite, “Be as irritable and quarrelsome as possible without getting yourself into trouble.”  But it is at least mildly amusing that such readily identifiable bureaucratic behavior as “insist[ing] on doing everything through ‘channels’” used to be regarded as destructive behavior.

This apparently has been the source of mirth among CIA types for two years. Now you can share the comedy secrets of our intelligence services.

Continue reading ‘Sabotage! Or How “Dilbert” Won The War’ »

That’s the funny Radio-Free-Asia-compiled one, not the not funny North Korean Television one:

Two men are talking on a Pyongyang subway train:
“How are you, comrade?”
“Fine, how are you doing?”
“Comrade, by any chance, do you work for the Central Committee of the Workers’ Party?”
“No, I don’t.”
“Have you worked for the Central Committee before?”
“No, I haven’t.”
“Then, are any of your family members working for the Central Committee?”
“Nope.”
“Then, get away from me! You’re standing on my foot!”

Justice Breyer is famously willing to look to foreign law for ideas on how to resolve legal questions, saying that there’s no reason not to look at how foreign judges have solved sticky problems when he is confronted with similar issues. 

So I guess we shouldn’t be surprised that Justice Breyer looks to foreign practice in criticizing the Supreme Court’s decision, effective tomorrow, not to permit visitors to enter through the Court’s front doors (they will still be permitted to leave through it).  Quoth SGB:

To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world–including those, such as Israel’s, that face security concerns equal to or greater than ours–has closed its main entrance to the public.

Justice Breyer’s statement, which was joined by Justice Ginsburg, is available here.

With Justice Stevens having announced his retirement, all eyes now turn to President Obama’s purported short list: Elena Kagan, Merrick Garland, and Diane Wood. Obama will have a tough choice, as he is picking from three very different candidates. No matter who he picks, his selection is likely to break down some major barriers.

First, consider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?

Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices.

No matter who he chooses, Obama will continue to break new ground, or at least help bolster some of the low numbers of people of certain arguably underrepresented backgrounds on the current Court. For example, Elena Kagan would become only the second former Harvard professor presently on the Court (joining Justice Breyer). Either Kagan or Wood would be only the second Chicago professor (joining Justice Scalia). Further, Merrick Garland would be only the second Justice on the Court who went to Harvard College; then Harvard Law School; then clerked for Henry Friendly; then clerked at the Supreme Court; and then worked at DOJ and was a partner at a big DC law firm before serving on the DC Circuit (joining Chief Justice Roberts).

Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.

Inspired by an Arnold Kling post, I’ve been thinking that we Jews, especially those who consider ourselves Progressives, have been way too hard on Pharaoh in our recounting of the Passover story. Consider Pharaoh’s achievements:

(1) Green jobs: The Hebrews built the cities of Pithom and Ramses while emitting no greenhouse gases beyond their own carbon dioxide.

(2) Technology forcing: Pharaoh wanted to conserve natural resources, so he withheld the straw from Hebrews that they had been using to make bricks. Free market naysayers and straw industry lobbyists claimed that this would cripple the brickmaking industry, but instead the Hebrews adjusted.

(3) Zero population growth: Pharaoh first enslaved the Hebrews, and then ordered that all male Hebrew babies be killed. But, hey, look at it from his perspective: the Hebrews were multiplying like rabbits, so Pharaoh engaged in a little population control. After all, how much more environmental devastation could the fragile Nile/desert ecosystem take? The human footprint had to be controlled. Bonus: Had Pharaoh succeeded, he would have created a society with no male hierarchy.

(4) Multiculturalism: In contrast to the ethnocentrism of modern Zionism, the Hebrews in Egypt under the Pharaoh’s regime were multicultural. When they left Egypt, they took their “mixed multitude” (Heb. Erev rav) friends with them.

(5) The Al Gore of 1500 BCE: Rivers filled with frogs. Plagues of locusts. Cattle dying. No wonder Pharaoh didn’t let the Hebrews go. His heart wasn’t “hardened,” as the Jewish version goes. He just thought these were the natural consequences of global climate change.

Above the Law comments, apropos the prostitution advertising case, “If you need advertisements to help point you in the direction of prostitutes in a state where prostitution is legal, then something is wrong with your wang.”

And this reminds me of one of my favorite jokes. A man is on his first visit to Boston, and he wants to try some of that delicious New England seafood that he’d long heard about. So he gets into a cab, and asks the driver, “Can you take me to where I can get scrod?” The driver replies, “I’ve heard that question a thousand times, but never in the pluperfect subjunctive.”

with thanks to Language Log for the pointer:

From Prof. Mark Liberman (Language Log), attributing this to Columbia philosophy professor Sidney Morgenbesser:

Morgenbesser was leaving a subway station in New York City and put his pipe in his mouth as he was ascending the steps. A police officer told him that there was no smoking on the subway. Morgenbesser pointed out that he was leaving the subway, not entering it, and hadn’t lit up yet anyway. The cop repeated his injunction. Morgenbesser repeated his observation. After a few such exchanges, the cop saw he was beaten and fell back on the oldest standby of enfeebled authority: “If I let you do it, I’d have to let everyone do it.” To this the old professor replied, “Who do you think you are, Kant?” The word “Kant” was mistaken for a vulgar epithet and Morgenbesser had to explain the situation at the police station.

From the AP (thanks to BNA’s Internet Law News for the pointer):

The law firm representing a Santa Barbara company that sued China for allegedly pirating its Internet content filtering software says it has been the target of cyber attacks from within China.

Los Angeles-based Gipson Hoffman & Pancione says its attorneys received emails starting Monday containing Trojans, which can allow outside access to the target’s computer….

Sounds like a substantively interesting and possibly important story. But because I know nothing about the substance, let me just ask: Shouldn’t it be “containing Greeks”?

John Podhoretz via Facebook: “Obama pardoned the presidential turkey today. That was appropriate. I don’t think, however, that he should have bowed to the turkey.”

The following email header appeared in my inbox, courtesy of Skymall.com: Save 20% On Our Infamous Travel Pillow and Much More

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.