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Glen Beck as civil libertarian and Joe Lieberman as authoritarian

Thu, 06 May 2010 00:00:00 -0700

Balkinization - By Sandy Levinson - May. 06 (Opinion) - consider the implications of the suggestion by this Yale Law School graduate, former Attorney General of Connecticut who believes that it is enough simply to allege that status to lose all "rights that come with that citizenship." No trial or conviction necessary in Sen. Lieberman's world. I'll take Glenn Beck (or, for that matter, the Antonin Scalia who forcefully dissented in Hamdi and said in effect that any policy like Lieberman's would require the Congress overtly to suspend habeas corpus) over the egregious junior senator from Connecticut. Will the Nutmeg State actually return this continuing embarrassment to the Senate in 2012?

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The Anti-Counterfeiting Trade Agreement, Part II

Wed, 21 Apr 2010 00:00:00 -0700

Balkinization - By Margot Kaminski - Apr. 21 (Opinion) - This post is a follow-up to my earlier post regarding the leaked draft of the Anti-Counterfeiting Trade Agreement (ACTA). The big picture issues are unchanged: 1) ACTA establishes a new institution outside of existing international law; 2) ACTA pushes the international standard for IP law to an IP-maximalist’s dream; and 3) when you establish the information-sharing and investigative infrastructure, bad things (civil liberty violations) will follow.

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Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway

Fri, 19 Feb 2010 00:00:00 -0800

Balkinization - By Jb - Feb. 19 (Opinion) - At long last we have the Department of Justice report on the professional conduct of John Yoo and Judge Jay Bybee in writing the infamous torture memos, along with previous versions of the Office of Professional Responsibility report and responses by Yoo and Bybee. Upon reviewing the OPR's report and recommendations, Associate Deputy Attorney General David Margolis concluded in a 69 page memo that the DOJ should release the Office of Professional Responsibility report for public review but that the Justice Department would not refer a finding of misconduct to state and local bar committees where Yoo and Bybee are members.

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A Contractual Solution to Citizens United

Sun, 31 Jan 2010 00:00:00 -0800

Balkinization - By Ian Ayres - Jan. 31 (Opinion) - Now that the Supreme Court has freed corporations to expressly advocate for the election or defeat of federal candidates, many pundits feel that is simply beyond the power of Congress to constitutionally curtail the corrosive potential of corporate speech. But Bruce Ackerman and I just published a piece in the Washington Post arguing that Congress can constitutionally prohibit corporations that are federal contractors from paying for ads “endorsing or opposing a candidate for public office.” A 2008 Government Accountability Office study found that almost three-quarters of the largest 100 publicly traded firms are federal contractors. If Congress endorsed our proposal, these companies — and tens of thousands ...

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Obama's Illogical Afghanistan-Terrorism Policy

Fri, 29 Jan 2010 00:00:00 -0800

Balkinization - By Brian Tamanaha - Jan. 29 (Opinion) - Obama's Illogical Afghanistan-Terrorism Policy

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The Supreme Court is All Business – Or Half-Business, Anyway

Sun, 18 Oct 2009 00:00:00 -0700

Balkinization - By Barry Friedman - Oct. 18 (Opinion) - Now that the Supreme Court’s 2009 Term is under way, it is interesting to look at how the docket is shaping up. Two categories of cases dominate: business cases and criminal cases. Business cases are roughly half the docket, and there’s a full plate of criminal issues as well. Let’s think about why that might be.

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Kobe Bryant or Anita Bryant? Who Is Big Ben’s Ideal Juror

Fri, 11 Sep 2009 00:00:00 -0700

Balkinization - By Dan Kahan - Sep. 11 (Special Report) - Cultural cognition refers to the tendency of people to conform their view of facts to their identity-defining group commitments. We all belong to groups that share basic understandings about how the world does and should work. Forming beliefs that undercut those understandings creates emotional dissonance and also threatens our connections with others whose good opinion we covet.

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Why the Sotomayor Nomination Makes Sense

Tue, 26 May 2009 00:00:00 -0700

Balkinization - By Jack M. Balkin - May. 26 (Opinion) - Barack Obama's nomination of Sonia Sotomayor is a good example of how Presidents make Supreme Court appointments: they balance political constituencies they wish to favor or reward and the predicted ease or difficulty of confirmation with their desire to have jurists who will cooperate with their policy initiatives.

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Bailout Bonus Hot Potato: Where Does the Buck Stop?

Fri, 20 Mar 2009 00:00:00 -0700

Balkinization - By Frank Pasquale - Mar. 20 (Opinion) - We live in "a world in which, according to 2006 statistics, one percent of the world’s adults own forty percent of all global assets[,] [t]he richest ten percent own eighty-five percent, while the poorest half own less than one percent." We should not be surprised when those in that glittering top percentile pull out all the stops to preserve and intensify those inequalities. But we are still inevitably disappointed by an administration that promised so much, and appears more at drift than mastering the financialization that has brought the nation to the brink of ruin. That's the kernel of truth and sorrow at the core of public outrage over AIG.

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Will Al Franken or Norm Coleman be able to claim to be "the people's choice"?

Sun, 28 Dec 2008 00:00:00 -0800

Balkinization - By Sandy Levinson - Dec. 28 (Opinion) - There is nothing in the Constitution that prevents states from adopting voting systems that would do a better job of meeting democratic criteria. It's also the case, incidentally, that several of the Democratic wins in 2006 featured non-majority winners who might have been helped by the presence of third-party candidates who deprived Republicans of likely votes. This might have been the case in Montana, and Sen. Webb in Virginia, too, might have been helped by the third-party candidate. So there's nothing partisan in my critique of the voting system that Minnesota, like almost all other states, has adopted.

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For this we had a revolution?

Thu, 18 Dec 2008 00:00:00 -0800

Balkinization - By Sandy Levinson - Dec. 18 (Comment) - I must also say, as a partisan Democrat, that I genuinely wonder whether Ms. Kennedy, whatever her strengths might be, would necessarily prevail over Peter King or some other well-financed Republican in 2010, who might well find a constituency to agree with another of Kristoff's comments, that Gov. Patterson is "said to be drawn to appointing Caroline Kennedy to the senate because she would be a good fund-raiser who could be reelected in 2010 and would cast a glow around him and his issues. But we don’t want a plutocracy, we want a democracy."

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Why the Bailout isn't Socialist

Tue, 23 Sep 2008 00:00:00 -0700

Balkinization - By Stephen Griffin - Sep. 23 (Opinion) - I've read one too many articles labeling the bailout "socialist," so I'll take a brief stab at explaining why it is not. First, some definitions that I hope are not entirely idiosyncratic. "State socialism" implies a one-party state, and is not democratic. "Democratic socialism" assumes multiple political parties and thus electoral democracy, although such a state may be "corporatist" in assuming that economic policy should be determined through bargaining among bureaucrats and organizations of labor and capital.

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Hamer's Convention

Wed, 27 Aug 2008 00:00:00 -0700

Balkinization - By Mary L. Dudziak - Aug. 27 (Opinion) - in spite of various sorts of whining accompanying this year's Democratic National Convention, it is an historic moment in more than one way. It was not so long ago that an African American woman, Fannie Lou Hamer, captured the nation's attention not with a convention floor speech but with testimony before the 1964 Credentials Committee of the DNC.

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Giving in China

Mon, 11 Aug 2008 00:00:00 -0700

Balkinization - By Lauren Hilgers - Aug. 11 (Opinion) - ... volunteering, charitable giving and civil participation in general, is on the rise in China. It sounds wholesome, but when it comes to private charities, most are operating in a legal gray area. A charity law in the works has been dragging, as China's government struggles with the role civil society organizations should play in public life. In the meantime, gaps in legislation addressing charities and NGOs leave organizations unsure what their rights and limitations are.

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The One Country Where Torture is So Likely That Even the United States Will Not Transfer a Detainee There

Thu, 07 Aug 2008 00:00:00 -0700

Balkinization - By Marty Lederman - Aug. 07 (Opinion) - s recent experience has shown, it takes a great deal of evidence to convince the United States that someone is likely to be tortured by a repressive regime. Finally, the U.S. has found one nation that satisfies its demanding evidentiary standard: Even the United States is convinced that China would more likely than not torture Uighurs who we transfer there. How can that be? After all, the Chinese actually outlawed torture in 1996. Well, it appears that China's lawyers have developed an odd definition of "torture." As one U.N. investigator recently described the Chinese practice: Although China outlawed torture in 1996, its definition of illegal acts -- those leaving physical marks -- is so narrow that interrogators can employ a wide range of methods contravening UN standards. Suspects are manacled in contorted positions, deprived of sleep and subjected to psychological torture. Some techniques have been given names, such as "reversing an aeroplane", where a victim must remain standing, bent double, with arms splayed upwards and backwards. Sound familiar?

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Ending the "War" on Terrorism

Thu, 31 Jul 2008 00:00:00 -0700

Balkinization - By Jack Balkin - Jul. 31 (Opinion) - The Rand report also argues that American military presence in Muslim countries should be very light, largely confined to training and expertise. One reason for this is that military presence in Muslim countries makes American military force salient and increases recruiting efforts for terrorist groups. Indeed, it may well turn out to be the case that the greatest mistake of George H.W. Bush's presidency was the decision to increase American military presence in Saudi Arabia. This decision, premised on on America's long alliance with the Saudi rulers, may have stoked resentments among the population and led to the growth of Al Qaeda there. Bin Laden himself and many of the 9/11 conspirators were from Saudi Arabia; they objected to American military presence in the same country as some of Islam's holiest sites.

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Are Campaign-Finance Laws Inherently Incumbent Protecting? Are All Election Laws?

Mon, 30 Jun 2008 00:00:00 -0700

Balkinization - By Rick Pildes - Jun. 30 (Opinion) - He suggests that all campaign-finance laws are likely to be pro-incumbent. There are two different reasons this might be so. One is that it is inherent in campaign-finance regulation that it will necessarily favor incumbents; on this view, a laissez-faire, privately-financed system is inherently the kind of regime that will enable challengers to be most effective in competing against incumbents. The other possible reason is that, as a matter of realpolitick, the only kind of campaign-finance regime incumbents are likely to enact will be one that favors incumbents, that is, themselves. Somin seems to be making the second argument more than the first, which is an argument about the political economy of these laws. So that's the argument I want to address.

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Some preliminary reflections on Heller

Fri, 27 Jun 2008 00:00:00 -0700

Balkinization - By Sandy Levinson - Jun. 27 (Opinion) - I begin with some "external" considerations. My own hope, spelled out in some prior Balkinization posts, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to "keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.

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So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?

Mon, 09 Jun 2008 00:00:00 -0700

Balkinization - By Marty Lederman - Jun. 09 (Opinion) - If one examines the entire series of statements, it soon becomes evident either that the Senator and his staff have no earthly idea what they're talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal and contradictory as possible, so that they can embrace whichever view is politically expedient at any given time and with any given audience -- so that they can, for example, tell Charlie Savage that the President has no dictatorial constitutional power to disregard FISA, while at the same time reassuring the Republican base (i.e., the National Review) that, as President, McCain would scoff at statutes that get in his way.

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If the Attorney General Insisted That the Sun Rises in the West, Would the New York Times Treat it as an Open Question?

Fri, 06 Jun 2008 00:00:00 -0700

Balkinization - By Marty Lederman - Jun. 06 (Opinion) - Today's New York Times story about the arraignment of Khalid Shaikh Mohammed concludes with this sentence: "C.I.A. officials have said that Mr. Mohammed was one of three detainees who were subjected to the simulated-drowning technique known as waterboarding during interrogation, which is described by some as torture."

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Is Google the New "Media Monopoly"?

Wed, 21 May 2008 00:00:00 -0700

Balkinization - By Neil Netanel - May. 21 (Opinion) - Microsoft's hastily renewed courtship with Yahoo --this time centered on a merger of the companies' search advertising businesses -- in order to compete more effectively with search engine leader Google raises issues not just of market competitiveness but of the shape of the new media landscape. In particular, might new media become as concentrated as the conglomerates and oligopolies that characterize much of traditional media? And if so, would new media concentration poses similar concerns about media concentration's deleterious impact on public discourse and expressive diversity?

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Senator Obama and Private Military Contracting

Mon, 24 Mar 2008 00:00:00 -0700

Balkinization - By Laura Dickinson - Mar. 24 (Opinion) - right now there are more contractors than troops in Iraq, which is an enormous shift in the way we project our power overseas, at least as compared to how we've done it in the last fifty years. It's not clear precisely how many of them are authorized to use force, in tasks such as providing security or conducting interrogations.

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The Commander in Chief Threshold

Sat, 15 Mar 2008 00:00:00 -0700

Balkinization - By Stephen Griffin - Mar. 15 (Opinion) - The issue is rather whether the gulf between most of the officer corps and Democrats has reached the point where alienation, lack of common ground, and mistrust would lead to unnecessary conflict, misunderstandings, and serious policy mistakes in a Clinton or Obama administration. Remember the opening months of the first Clinton administration -- gays in the military? That conflict featured the military brass drawing on their contacts in Congress to oppose an initiative featured in the presidential election.

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The Spitzer Case and the National Surveillance State

Fri, 14 Mar 2008 00:00:00 -0700

Balkinization - By Jack Balkin - Mar. 14 (Opinion) - If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.

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The Normalization of Torture

Mon, 10 Mar 2008 00:00:00 -0700

Balkinization - By Marty Lederman - Mar. 10 (Opinion) - Our President today vetoed a bill that -- once again, for the umpteenth time -- would have rendered even more unlawful some or all of the CIA's "enhanced interrogation techniques." Not much new in the President's veto statement -- the CIA techniques are not "torture"; they are not "cruel treatment" prohibited by Common Article 3; and whadda ya know? -- they're even "humane."

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