Bernstein on McDonald and Privileges or Immunities

David Bernstein at Volokh sketches out his argument for how the Court can hold that the Privileges or Immunities Clause protects a right to bear arms:

(a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause;
(b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade;
(c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause;
(d) by contract, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!;
(e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history;
(f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government.

Our article, in the Georgetown Journal of Law & Public Policy, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment touches (a), (b), (d).

David seeks to appeal “not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.” This is precisely the tact we take.

The Court today more-or-less has 5 solid votes for incorporation. But as Justice Stevens and Ginsburg leave the Court, and Justice Scalia and Kennedy age, President Obama has the potential to totally transform the Judiciary. A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future. If they punt, and let future Courts handle this, they are just waiting for Pandora’s Box to be opened.


Academic Random Sentence Generator. Professors To Lobby Against It

Read these sentences and let me know what you think?

  • The experience of representational familiarity invests itself in the illusion of the parent-child dynamic.
  • The representational validity of post-capitalist hegemony fails to penetrate the myths obscuring the totalization of the culture industry.
  • The logic of teleological narrative thematizes the cooptation of disciplinary boundaries.

Are they written by some pointy-headed academic, or by a random sentence generator? The University of Chicago has created a Random Academic Sentence Generator (H/T Glenn R. on Facebook).

Soon, Professors will feel threatened by the ability of this generator to make perfectly rational academic-style sentences, without the years of schooling and prestige. Like the Candlemakers Petition by Bastiat, expect academics to come out against this fantastic service.

2nd Circuit Upholds Ban on “New Parades” down 5th Avenue, Not Content-Based Regulation

The Second Circuit decided INTERNATIONAL ACTION CENTER v. CITY OF NEW YORK H/T How Appealing. New York City Bans new parades down 5th avenue:

a City regulation (the “Fifth Avenue Rule”) — that began as an informal policy in the 1970s and was codified in 2001 — bans any “new” parades on Fifth Avenue.

A group challenged this ban on content-based regulation, as it “discriminat[es] against parades related to current events.”

The Court rejected this argument:

In contrast, the Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all “new” parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current  events.

Although the Fifth Avenue Rule may indeed have “an incidental effect on some speakers or messages but not others,” that is true of many content-neutral regulations. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Such an incidental effect does not convert a content-neutral regulation into a  content-based one.

And in an interesting panel arrangement, the court noted that:

  1. * Honorable Denny Chin, United States District Judge for
    the Southern District of New York, sitting by designation. The
    Honorable Sonia Sotomayor, originally a member of this panel, was
    elevated to the United States Supreme Court on August 8, 2009.
    The two remaining members of the panel, who are in agreement,
    have decided this appeal. See 28 U.S.C. § 46(b); Local Rule §

Professor Richard Epstein on NRA v. Chicago

Professor Richard Epstein posted a new article on SSRN, forthcoming in the Chicago Law Review, titled NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?

In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O’Scannlain’s decision in Norkdye v. King. Easterbrook’s approach emphasized the imperative need for lower court deference to the Supreme Court’s explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court’s game-changing decision in District of Columbia v. Heller and thus gave only scant attention to the various historical authorities that O’Scannlain referred to in Nordyke. On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

Only scant discussion of the current Supreme Court case, and the Privileges or Immunities Clause, but it is a nice, short read.

Google Closing in on WestLaw, Lexis, Now Allows Searches of Legal Opinions and Law Journals

West and Google, start counting your duopoly days. TaxProfBlog reports that Google Scholar now allows you to search legal opinions and law journals.

I just did a couple quick searches, and you can search for cases by case name, and by citation. Extremely quick, efficient, and free. And it doesn’t just link to FindLaw or Cornell. It actually has an original, full text version. I just entered in a few key Supreme Court cases, and a few prominent Circuit cases, and they were all in Google. Pretty cool. Plus, it has a rough Shepardizing feature, called “Cited By.” I am not sure how broad the Shepardizing is, but it seems to know all citations in Supreme and recent Appellate cases.

Coming soon to a law school near you; a Google Table with student representatives handing out cool Google Office supplies and tasty treats.

And the ABA is getting in on the action as well. They just launched Media Alerts on Federal Courts of Appeals.

The website, which officially launches on Wednesday, now covers the U.S. Courts of Appeals for the 3rd, 5th and 9th Circuits. The plan is to add eventually all of the circuits.

About 60,000 cases are filed every year in the federal courts of appeals, McKeown told the ABA Journal. “Most courts have very good websites, but there is a lot of information out there, so this provides a special niche,” she says. “There is a certain needle-in-the-haystack element for someone to go through them every day in every jurisdiction of interest to find cases.”

“Our view is that fair and accurate reporting about the courts is important, both for the public and also in order to emphasize judicial independence,” says McKeown, whose three-year term as chair of the ABA Standing Committee on Federal Judicial Improvements ended in August.

Record Number of Students Taking LSAT, Yet Law School Isn’t Worth The Price. Not good.

Yesterday I blogged about how law school just wasn’t worth the high cost. Today TaxProfBlog reports that a record number of students took the LSAT! Big Law, We Have a Problem:

The numbers are out, and they are huge. On September 26th, more students took the LSAT than have ever taken a single administration of the LSAT in the history of the exam.



There is definitely an asymmetry of information here between those applying to Law School and those suffering with the rising costs and difficult employment situation. Potential applicants should be dropping, not rising.

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Online Job Applications For Federal Law Clerk Jobs Rise 66 Percent

No surprise here. From

A total of 401,576 electronic applications from lawyers seeking jobs as federal court law clerks were received in fiscal year 2009, a 66 percent increase from the 241,529 applications received in 2008 via the Online System for Clerkship Application and Review (OSCAR).

The applications were filed by 10,722 applicants who were competing for the 1,244 clerkship positions that were posted between October 1, 2008 and September 30, 2009.

About two-thirds of all federal judges participate in the OSCAR program, electing to maintain a judge profile, post a clerkship position and accept applications, or advertise that there are not hiring law clerks.

Fifty-two percent of the applicants that used OSCAR during FY 2009 were law school graduates, and 48 percent were third-year law students. But 68 percent of the 401,576 applications were generated by third-year law students.

OSCAR takes what was a paper-heavy – and expensive – process and puts it online. Applicants for law clerk positions can pull together and submit online applications complete with resumes, cover letters, transcripts, and writing samples.

The number of applications filed via OSCAR has increased each year since its introduction in FY 2005, when 94,693 applications were handled. The totals since have been 174,363 in 2006; 180,832 in 2007; 241,529 in 2008; and 401,576 in 2009.

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