Academic

Gates, Crowley and Police Reports: The Teachable Moment

Posted on July 29, 2009
One real and lost teachable moment in the Prof. Gates/Sgt. Crowley incident relates to how police reports ought to be read.  From the start of the process, many (including Mika Brzezinski of MSNBC’s Morning Joe) have pointed to Sgt. Crowley’s police report and his statements as the truth regarding what occurred surrounding the Prof...

What is Single-Payer Health Health Care?

Posted on July 27, 2009
Single-Payer health care systems vary but share similar features. For example, the Canadian single-payer system is the source of health care funds generally derived from taxes of various kinds. In Nova Scotia, hefty taxes on alcohol provide the funds to support the province’s health care...

Is a Reasonable Health Care Program Possible in the United States?

Posted on July 24, 2009
Is an effective and fair health care program possible in the United States? Or will the insurance companies and their dupes in Congress once again defeat such a program? Why aren’t the proponents of such a program defending it rationally? For example, the Canadian “single-payer” system, on balance, is far better than ours...

The Most Dangerous Supreme Court Case

Posted on July 23, 2009
There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal.  In that case, the Court upheld the dismissal of a civil rights claim brought by a Pakistani immingrant held in the wake of 9/11 against [...

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Henry Louis Gates and Bad Policing

Posted on July 22, 2009
By now most have heard of the arrest for disorderly of Harvard scholar Dr. Henry Louis Gates at his home in Cambridge and the subsequent dropping of charges.  The police report notes that the police officer involved was investigating a call of a possible break-in phoned in by one of Gates’ neighbors who saw Gates [...

Which Official Do You Want Between You and Your Doctor?

Posted on July 21, 2009
Governmental heath care overhead, I’m told, costs approximately 6% of health care.  Corporate health care overhead is approximately 20-30%. Why? Corporate insurance is designed to reject claims. That’s expensive. But that’s the insurance company’s raison d’etre...

Do Judicial Confirmation Hearings Help Us Get to Know Future Supreme Court Justices?

Posted on July 20, 2009
The Senate confirmation hearings generated virtually no significant information about a nominee that would help the American people learn about the judicial philosophy of a future Supreme Court Justice.  The explicit language and implicit interpretive norms embedded in that language set up enormous roadblocks for getting a sense of how nominees approach the Constitution and [...

Senator Coburn?s Misreading of the Tenth Amendment

Posted on July 17, 2009
It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong.  No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings: You know, I — people call me simple, because I really believe this [...

Thoughts on the Sotomayor Hearings

Posted on July 16, 2009
When I was a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color [...

Senator Coburn?s Misreading of the Tenth Amendment

Posted on July 16, 2009
It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong.  No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings: You know, I — people call me simple, because I really believe this [...

The Hyde Amendment: No Need for Equal Protection of Law for Republican Causes

Posted on July 14, 2009
Last night on the Chris Mathews’ Hardball  a discussion arose with Senator Orin hatch about the possibility that President Obama’s health care program will reject the Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion...

Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?

Posted on July 13, 2009
Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience or appreciate the circumstances, [...

Why Women on the Court?

Posted on July 10, 2009
It should astonish anyone with moderately progressive (fair and just) sensibilities that only two women have so far served on the Court. Can it be seriously argued that for at least the past fifty years, say, no more than two women have been qualified to serve? If not, male power directed toward discriminating against women [...

Racial Justice After Ricci

Posted on July 09, 2009
As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination in our country which has subordinated racial minorities, [...

Sarah Palin and Quitting

Posted on July 08, 2009
Regardless of what one thinks of Gov. Sarah Palin, she quit.  Quitting itself is not necessarily problematic if one has a good reason to do so.  It is unclear she has a good reason.  At least three legitimate reasons exist to quit a public office before one’s term has ended...

?Saint? Michael: America?s Need for Gods, Saints, and Heroes

Posted on July 07, 2009
Whatever one’s views of Michael Jackson are as either an entertainer or as a human being, why must we sanctify him; indeed, in this case, why must we divinize him? At best, he was a pop innovator, a superlative entertainer, and a unique, if mysterious, personality...

Is Deliberative Democracy Possible in Contemporary America?

Posted on July 06, 2009
A deliberative democracy should inter alia address a diverse range of views to take seriously, critically evaluate, reject or accept as the circumstances indicate. Ghettoizing particular perspectives to that they are insulated from serious confrontation with other perspectives is anathema to deliberative democracy...

Shouldn?t Judges Use the Same Interpretive Methodology?

Posted on July 03, 2009
Isn’t there something peculiar about judges using different interpretive methodologies in constitutional adjudication? If constitutional judgments are objective, inter-subjective, or in some other way reliable across judges, shouldn’t the form of reasoning and interpretation generating the judgments be the same?  This doesn’t mean that if judges used the same methodology they necessarily would agree on [...

Out with a Whimper

Posted on July 02, 2009
The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue...

Ricci and Employment Tests

Posted on July 01, 2009
The Supreme Court issued its opinion in Ricci v. DeStefano, the New Haven firefighters case, on Monday.  It was a typical 5-4 decision in which the conservative wing of the Court declined to allow New Haven to attempt to guarantee racial equality in promotions...

How Should the Effects of American Racism Be Remedied?

Posted on June 29, 2009
Given the irrefutable fact that hundreds of years of oppressing a class of individuals through slavery and Jim Crow discrimination and segregation will determine to a large extent the skills and abilities those individuals will possess, how does a rational, just society remedy the deficiencies imposed on the class of individuals by the oppressors? The [...

When Should Gun Ownership Be Regulated?

Posted on June 26, 2009
I have a simple question addressed to those Americans who oppose gun control.  Under what circumstances would they do an about-face and drastically change their opinion? To answer this question, let’s set aside the Second Amendment. This is critical to express the significance of my question...

The ?Public Option? and the Health of Our Nation

Posted on June 25, 2009
As the health care reform debate shifts into high gear, we need to make sure that the reformers have the right priorities.  The fundamental issue before us is what is the purpose of our health care system ? the health of the American people or the health of the private insurance companies?  [...

What Do We Want in Iran?

Posted on June 24, 2009
I have heard complaints about how the Obama Administration is handling the Iranian election and its aftermath.  The problem with this line of complaint is that the complainers are not clear about what they want or what we as a country should want.  The complainers may want one of three things...

We The Court

Posted on June 23, 2009
Americans’ love-hate relationship to the Supreme Court is bewildering. We, Americans, pride ourselves on living in a republican democracy. Majority rules, but only within the restraining framework of individual rights. Hence, American democracy is perfectly compatible with constitutional “filters” to make sure that majorities abide by the rights of minorities...

What?s the Republicans? Game Plan?

Posted on June 22, 2009
We all have our blindness, but I cannot fathom the criticism that President Obama should be acting aggressively in supporting the Iranian demonstrations beyond calling for the cessation of violence and out solidarity with the Iranian people.  Anything the President does potentially damns the United States and harms the demonstrators...

What does the Iranian Election Contoversy Mean?

Posted on June 19, 2009
First, the controversy is not merely about election fraud or irregularity.  Second, the controversy does not devolve around two particular policy political platforms in contemporary around.  More important, the controversy concerns just how power wit be distributed in Iran between the clerical elite, the religious conservatives, the army, the religious revolutionary guard, and most important, [...

Referenda on the Rights(?) of Others

Posted on June 17, 2009
In a ruling a few days ago, election officials in Washington, D.C. decided that a referendum on whether the District of Columbia could recognize the marriages of same-sex couples who were legally married in another jurisdiction could not occur.  The officials determined that allowing a referendum on the issue would itself authorize discrimination that the [...

The Controversy over Judicial Review Continues

Posted on June 16, 2009
Lawrence Goldstone’s book, The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review (Walker 2008) promises to be an illuminating contribution to an ill the controversy over whether judicial review, let alone judicial supremacy, was made up, as Justice Scalia contends, or rather in some sense intended by the Founders and ratifiers [...

Justice Scalia?s Textualism: Brilliant or Perverse?

Posted on June 15, 2009
Justice Scalia insists that the Constitution be understood according to the most reasonable interpretation of the language used at the time to formulate and ratify the document. Yet, he writes: The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means...

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