My New Article in Memphis L.Rev. Youngstown’s Fourth Tier: Is There A Zone of Insight Beyond the Zone of Twilight?

I recently co-authored an article with my Mason Law Review colleague, Elizabeth Bahr. Liz is currently working  as an Assistant Counsel, Department of the Navy General Counsel, Strategic Systems Programs. She has an extensive background in military law, and I am honored to have had the opportunity to write with her.

The article, available here on SSRN, will be published in Volume 40 of the Memphis Law Review, sometime this Spring.

The article presents an interesting question. You all remember the classic steel seizure case, Youngstown Sheet & Tube. In his famous concurring opinion, Justice Jackson three tiers to understand the separation of powers concerns between the executive and the Congress. But what happens when the Court is in fact considering the tension between the Executive and the Judiciary?

We contend that this is exactly what the Court considered in the recent Detainee cases, yet ostensible applied the old Youngstown Framework. Is there an implied Fourth Tier of Youngstown? Beyond the Zone of Twilight is there a Zone of Insight?

I will be blogging more about this article to solicit feedback and comments in future posts, but in this post I will copy some points from the Introduction to whet your appetite. More after the jump.

Know what really grinds my gears? F*ck FML. I prefer LML.

The FML meme really grinds my gears. FML, of course, stands for F*ck my life. And whenever people experience some setback, they proclaim, FML, as if it were some aphorism to cleanse the soul

I see it littered throughout Web 2.0.

I missed my flight. FML.
I’m so busy. FML.
My teacher assigned too much reading. FML.
My car broke down. FML.
I have so little self confidence and am so insecure that I have to rant and complain on facebook about my life, which is mostly positive, but has minor setbacks. FML.

Of course, you will never see the last FML. But that is what is implicit in this meme. People are fortunate enough to possess computers with high speed Internet access (and facebook for blackberries or iphones), and have enough free time to not only access the Internet, but complain about it online. Are lives really that f*cked?

I’m an eternal optimist. Sure bad things happen to me. But on the whole, I am happy, healthy, and optimistic for my future. I fear this constant kvetching about f*cking one’s own life desensitizes us as a society. When something good happens it, society barely notices. When something marginally bad happens, people whip out the FML meme. And when something really bad happens, people won’t know what to do.

Stop complaining! Seriously. Stop complaining. Don’t f*ck your life. Love your Life. Or as I say, LML. Love my Life.

Anyway, FML really grinds my gears.

SCOTUS Confirmation Hearing as “Kabuki Theater.” Partisan Senators to Blame for Destroying Teaching Moments

The October 2009 ABA Magazine has a fascinating article, critiquing the confirmation hearing of Justice Sotomayor.

It’s a “Kabuki dance,” said Joe [Plugs] Biden when he was a senator on the Judiciary Committee. U.S. Supreme Court nominees give the illusion of responding to senators’ questions, but say little of importance.

It’s “as if the public doesn’t have a right to know what you think about fundamental issues facing them,” he told John G. Roberts Jr. at his 2005 confirmation hearing for chief justice.

I agree with this article, and feel that the confirmation have become a dog and pony show, where the Justice closely hews a script, and says the right things in order to get confirmed. Sure the Senators might not like it, but it is the Senator’s politicization of the confirmation process that has mandated this farcical procedure.

Look at the partisan confirmation rejection of Judge Bork. Judge Bork, as a testament to his amazing grasp of Constitutional law, engaged the Senators in detailed discussions on the meaning of the Constitution, his jurisprudence, and how he would Judge. Why would any judge ever risk his confirmation to the Supreme Court by foolishly answering questions.

The Senators have created a perverse incentive to Judicial nominees to give bland, boring answers, that cannot be taken out of context.

I watched Sotomayor’s confirmation gavel to gavel (when I really should have been studying for the Bar, results come out next week). Panelists at the Constitution in 2020 conference argued that these hearings should be a teaching moment. I agree. If Sotomayor represents everything President Obama considers implicit in the liberal view of the Constitution, she should have proudly conveyed that message. Rather, Sotomayor sounded like a broken originalist record, and kept repeating the maxim that you interpret the law as it is written. If she believes that, her previous opinions sure do not reflect that.

But, I blame the Senators for destroying these teaching moments. If a candidate actually discussed his view of the Constitution in any detail, he only has his confirmation to lose. Anyway, the ABA article should really place more of the blame on the Senators. The judicial candidates are just doing what is rationally in their self interest.

Interesting New Article- Marbury and Lochner as Fraternal Twins

SSRN-The Strange Cases of Marbury and Lochner in the Constitutional Imagination by Miguel Schor. (H/T Legal Theory Blog)

Check out the abstract:

Embedded deep in the constitutional imagination is the notion that courts can implement rights and effectuate the hope of Marbury v. Madison while avoiding running amok and falling into the abyss of Lochner v. New York. This Article challenges this belief and argues that the two cases are not opposites but fraternal twins. In this story, however, Marbury becomes Lochner’s twin not by the use of drugs, which is how Robert Louis Stevenson imagined that Dr. Jekyll became transformed into Mr. Hyde, but by exposing the workings of the constitutional imagination across space and time. The comparative and historical record evinces deep, albeit hidden, linkages between the two cases. Part I of this Article introduces the dichotomy between these two cases and argues that we need to uncover the linkages between them if we are to understand the jumble of ideas that comprise judicial review. Part II of this Article historicizes the relationship between the two cases and argues that Marbury and Lochner became linked in the nineteenth century as judicial review germinated in the constitutional imagination in the United States and abroad. Part III examines how Lochner shaped the political construction of judicial review around the globe in the twentieth century. When the hope of constitutionalized rights (Marbury) traveled abroad, it was joined with the fear that courts might run amok (Lochner). As a consequence, polities abroad adopted different and stronger mechanisms of political accountability than the United States as the price of granting courts the power of constitutional judicial review. Judicial review transformed not only politics but also courts that suddenly had to grapple with the problem of accommodating legislation to constitutional text. Part IV argues that the judicial elaboration of Marbury has had a perverse impact, as courts in civil law jurisdictions have become more like common law courts whereas the United States Supreme Court has become more like a civil law court. Part V concludes that the spread of judicial review is best understood as the story of Lochner, not Marbury, writ large around the globe. In exposing the workings of the constitutional imagination, debates over the fear of power are considerably more illuminating that those surrounding the hope of its exercise.

Two articles on Lochner in one week. What a treat! This one looks particularly interesting. Liberals, have no problem with the Courts scrutinizing an act of government when it deals with civil rights, welfare, affirmative action, reproductive issues, and other footnote 4 friendly topics. But when it comes to the topic of economic liberty, the Left wants an almost blind deference to whatever “rational basis” the government can make up. Viewing Mabury, the progenitor of judicial review, as a twin of Lochner, the seminal case of reviewing economic legislation, makes sense. I look forward to reading this article.

Voting with Your Feet and Living in Johnstown, PA, a City Destroyed by Flood Every Few Decades

I am listening to David McCullough’s fantastic book, The Johnstown Flood, which tells the tragic story of the 1889 flood which destroyed my new hometown of Johnstown. The flood killed over 2,000 people. Check out these pictures. They are horrific.

The geography of Johnstown invites floods. The city is basically a bowl in the Allegheny Mountains, with water flowing from higher altitudes. When the rains break the levees , flooding is inevitable

It should come as no surprise that the 1889 flood was not the only flood. The city flooded again in 1894, 1907, and 1924, 1936, and 1977

A question I asked myself before moving here, is why do people still live here? So why aren’t these people voting with their feet, and getting the heck out of town?

Ilya Somin has produced some fantastic scholarship on voting with your feet. Notions of voting with your feet should not only apply to unfavorable governmental impositions on the populace, but should also apply to unfavorable environmental conditions. Namely, living in a city that gets destroyed by flooding every few decades.

More after the jump.

Why Is Teaching Constitutional Law the most difficult course?

My academic goal is to one day teach Constitutional Law. it is the topic I am most passionate about, and get so excited talking about it. But is it the toughest course to teach?

At Concurring Opinions, Gerard Magliocca writes “I must admit that I find Con Law the most difficult course to teach, even though it’s the subject that I enjoy the most.  Why is that?””

1.  The subject matter is so vast that you can only scratch the surface in one semester.  To some extent, that is true for Torts or Contracts, but much less so.  Constructing a syllabus that must omit so much important material is frustrating.
2.  Students often come into con law with strong views about the material that they lack in other subjects. This can makes them less open to discussion or alternative views.  I want people to be passionate about the subject, but I’d like them to form their opinions after reading the cases, not before.  Many folks have a fixed view about abortion or affirmative action, for example, no matter what the cases say.
3.  Con Law cannot be taught well without a lot of historical background.  Many students (I find) don’t know a lot about history.  Since it’s hard to provide the full context for each and every case (e.g, what was the New Deal about?), I often think that people do not get as much from the opinions as they should.  I’m trying a different casebook next time that has more history — we’ll see if that helps.
4.  Con Law is not just about what the Supreme Court says.  Most (though not all) casebooks, though, do not include significant non-judicial texts.  I try to remedy this by handing out things like Lincoln’s First Inaugural or FDR’s Fireside Chat on “Court-packing” as examples of constitutional analysis that are just as useful from a teaching standpoint as Marbury.

Very interesting points. Constitutional Law is so fascinating because it is so deep. Students (myself included) definitely had lots of views coming into class. Also Con Law requires a huge amount of history. That is why I am such a big fan of Mason’s Founders Constitution class. All 1L’s must take an entire course reading the Federalist, the anti-Federalist, and other early writings that influenced our founding generation. That class provides a huge amount of context.

I agree with the author’s fourth point. The Constitution is not just about what the Supreme Court says. Though, I would argue that speeches given by Lincoln and FDR after the Constitution was written shed no light on the original meaning of the Constitution. That’s where the Founders Constitution class comes in.

One day I hope to teach Con Law. I am assisting Judge Gibson teach a Federal Courts class at Penn State Law in Spring 2010 and am now constructing the syllabus. I’ll post my thoughts about that later.

How do you like them apples O’Connor, J.? After she leaves court, SOC has sour grapes

From Bloomberg News, H/T How Appealing:

Asked whether it concerns her [Justice O’Connor] when the U.S. Supreme Court rules differently than she would have, the retired justice said this:

“What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear,’” O’Connor said. “Life goes on,” O’Connor told her audience. “It’s not always positive.”

Jeffrey Toobin calls Justice O’Connor the most powerful woman in the world for much of the 1980s and 1990s. As the swing vote on the Supreme Court, she could single-handedly determine outcomes of cases. She relished this role, and only reluctantly retired due to her husband’s tragic illness.

It is to be expected that she feels remiss that her precedents are being dismantled. But she should not be surprised. Her jurisprudence was not based on formalist or objective understands of the law. Rather, she tried to measure the pulse of society, and tethered the Supreme Court’s jurisprudence closely to this sense. After she leaves the court, and the country shifts politically, shouldn’t her own philosophy endorse her precedents being dismantled?

I’m reminded of a classic scene from Good Will Hunting.