Sunday, March 18, 2018
Stormy Daniels and Cambridge Analytica
Mark Graber has argued that the First Amendment should protect Stormy Daniels' violation of her nondisclosure agreement with Donald Trump. I doubt that this is correct-- for reasons described below, I think her best argument sounds in contract law. But even if Mark is correct, I want to argue in this post that there are very good reasons why the First Amendment generally does not forbid enforcement of contacts that prevent the disclosure of sensitive personal information. Most companies' privacy policies depend on this proposition. These considerations are especially important in the digital age. We should not use First Amendment doctrine to make it difficult if not impossible for governments to implement reasonable privacy protections that will prevent the disclosure and manipulation of sensitive personal information.
Saturday, March 17, 2018
Stormy Daniels and New York Times Co. v. Sullivan
Friday, March 16, 2018
National Conference of Constitutional Law Scholars
Inspired by Larry Solum's efforts at live blogging scholarly conferences, I am in Tucson at the inaugural meeting of the National Conference of Constitutional Law Scholars. This is a very good idea put together jointly by Andrew Coan (Arizona), David Schwartz (Wisconsin), and Brad Snyder (Georgetown) and funded by the University of Arizona's Rehnquist Center. The papers I mention are available (I assume) from Andrew. It's a great conference, with an interesting mix of scholars at different stages of their careers. I was just listening to Aziz Huq presenting a paper on "Apparent Fault," followed by Victoria Nourse talking up a terrific paper, "Reclaiming the Constitutional Text from Originalism." It's part of a book she is working on which I can't wait to read. Jamal Greene is commenting.
Explaining the Persistence of "Impure" Legal Theories
Tuesday, March 13, 2018
The wisdom of Publius and our militarized society
In Federalist 8, Publius (in that case Alexander Hamilton) warns that failure to ratify the Constitution would lead to the almost inevitable breakup of the fragile United States (under the Articles of Confederation) and the creation of two or three independent countries. Each of them would have to create its own armed forces. More to the point, each of them would genuinely be consumed by fear of war and thus become steadily more militarized in its culture. On the other hand, if we ratified the Constitution, there would be only one standing army to pay for and, more importantly, we could rest secure that we really wouldn't have to worry very much about the prospects of actual war, since we would be united internally and we'd have the "pond" of the Atlantic Ocean to protect us against against imminent invasions from European powers.
Monday, March 12, 2018
Some Realism about Internal and External Points of View
Wednesday, March 07, 2018
Young adults and politics
As Balkinization regulars know, my wife and I co-authored a book directed at teenagers, Fault Lines in the Constitution, that, not surprisingly, examines a variety of defects in the structures created by the Framers in 1787. We regularly blog about the book, and our latest examines the spate of student activism following the Florida shootings. We had earlier discussed the fact that several teenagers are running for governor in Kansas and Vermont, the only two states that don't have age requirements for that office. The mainstream press has begun covering the Kansas election, in part because GOP officials are trying to make sure that none of the youngsters will be allowed to participate in the upcoming candidate debates. I sometime wonder if and when anyone will start suggesting that one really shouldn't trust anyone over 30 :) Perhaps it a mistake to assume that any age cohort, including those we usually classify as "adults," are necessarily trustworthy. Perhaps we should actually listen to what people, including the articulate thirteen-year-old running for governor in Vermont, instead of assume that he has nothing valuable to say.
Opioids and Unorthodox Civil Procedure: Will the MDL solve the crisis?
The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. Four hundred of them are now consolidated before a single federal judge--Judge Dan Polster in the Northern District of Ohio--who has announced his intention to settle not only all the cases before him, but ALL the cases filed across the country, before the end of 2018. If you didn't just say "wow," you are not reading carefully enough. I have a forthcoming article about this litigation here.
Monday, March 05, 2018
Originalism as a Topic versus Originalism as a Theory
I have said on a number of occasions that originalism as a theory of interpretation is not widely practiced outside the United States, and that even within the United States, state judges tend not to be originalists. Nevertheless, over the years, people have pointed out, quite correctly, that this judge or that judge in another country, say Canada, or Malaysia, has made arguments that look and sound pretty originalist. There are also a very sizeable number of originalist arguments in state constitutional decisions--these happen, for example, anytime a state court interprets a recent referendum or state constitutional amendment.
The Costs of Conscience and the Trump Contraception Rules
Saturday, March 03, 2018
The Real Purpose of the Foreign Emoluments Clause
Gerard N. Magliocca
Undoubtedly you are aware that the President is being sued for allegedly violating the Foreign Emoluments Clause of the Constitution. While I do not believe that the plaintiffs in these cases have standing, the theory behind the litigation is that the President's business interests are receiving foreign benefits because of his status as President. In other words, foreign governments are trying to bribe him by staying at his hotels, renting out his properties for events, and so on. Then there is the related claim that domestic competitors are being harmed by this influence peddling (because they are not getting these sorts of bookings).
Rethinking the Modalities of Constitutional Interpretation
I have posted my latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, on SSRN. Here is the abstract:
Friday, March 02, 2018
The Interpretive Poverty of Data
Poor Joshua Had No Gun
After the mass shooting at Marjory Stoneman Douglas high school in Parkland, Florida, Republican lawmakers in Tallahassee are now calling for the Governor to exercise his authority to suspend the Sheriff of Broward County, Scott Israel, for “incompetence and neglect of duty” for failing to prevent the massacre. In a letter to the Governor, the lawmakers describe a long catalog of warning signs that they argue the Sheriff’s office ignored. It begins: “During Sheriff Israel’s first week in office, his deputies responded to a call from [the then-14-year-old shooter’s] mother, who complained about her son’s violent response to her taking away his video games. They did nothing.” The letter goes on to cite dozens of additional calls to sheriff’s deputies through November 2017 that should have raised concerns, but each time, the letter repeats its refrain: “Nothing was done.” As a final straw, one sheriff’s deputy was outside the school during the shooting itself and did not act.