The Faculty Lounge

Census of Law Professor Twitter Users -- Beta Version

How many law professors are on Twitter?  Here's a very, very beta version of a census of law prof Twitter users, similar to the law prof blogger census begun by Dan Solove over at Prawfs (see, e.g., here, here and here) and carried forward by Colin Miller at Evidence Prof Blog (see here). The list is meant to cover individual law professor tweeters only.  The list is not meant to be a comprehensive account of everyone (adjuncts, librarians, practitioners, students, group blogs) publishing law-related tweets.

I'm sure I've missed folks, included those who shouldn't be on the list, and made other errors.  All additions and corrections very welcome.  Feel free to use the comments or email me directly at [email protected]

For the enquiring mind, this beta version lists 93 195 Twitter users. 65 139 are male; 29 56 are female.

For those who wish to access the raw data, I've made my spreadsheet available here:  Download LawProfessorTwitterCensus [last updated 7/13/12]

FIRST NAME	LAST NAME	TWITTER NAME (PRECEDED BY @)	SCHOOL
Ann	Althouse	annalthouse	Wisconsin
Heidi	Anderson	HeidiRAnderson	Florida Coastal
David	Ardia	dsardia	UNC
Richard	Ashcroft	qmulbioethics	Queen Mary London
Jonathan	Askin	jaskin	Brooklyn
Ian	Ayres	iayres	Yale
Barbara	Babcock	bababcock	Stanford
Sam	Bagenstos	sbagen	Michigan
Stephen	Bainbridge	ProfBainbridge	UCLA
Jeffrey	Baker	JRBProf	Faulkner
Jack	Balkin	jackbalkin	Yale
Derek	Bambauer	dbambauer	Arizona
Jennifer	Bankier	jbankier	Dalhousie
Jennifer	Bard	profbard	Texas Tech
Ann	Bartow	profabartow	Pace
David	Batty	dlbatty	Charlotte
Jeff	Bellin	BellinJ	William & Mary
Adam	Benforado	Benforado	Drexel
Jason	Benth	Prof_Bent	Stetson
Gerry	Beyer	Gerry_Beyer	Texas Tech
Tamar	Birckhead	juvjusticeblog	UNC
John	Blevins	johnfblevins	Loyola New Orleans
Maxwell Gregg	Bloche	greggbloche	Georgetown
Jack	Bogdanski	Bojack54	Lewis & Clark
Craig	Boise	CMLAWDean	Cleveland-Marshall
James	Boyle	thepublicdomain	Duke
Barbara	Bressler	bbressle	DePaul
Kim	Brooks	SchulichLawDean	Dalhousie
Sam	Brunson	smbrunson	Loyola Chicago
Trevor	Buck	trevbuck	De Montfort U (UK)
Alafair	Burke	alafairburke	Hofstra
Beth	Burkstrand-Reid	beth_burkstrand	Nebraska
Gillian	Calder	gilliancalder	Victoria
Ryan	Calo	rcalo	Univ. Washington
Jennifer	Camero	jennifercamero	Southern Illinois
Paul	Caron	SoCalTaxProf	Cincinnati
Tim	Caulfield	CaulfieldTim	Alberta
Anupam	Chander	AnupamChander	UC Davis
Jim	Chen	chenx064	Louisville
Miriam	Cherry	Prof_MCherry	St. Louis University
Colleen	Chien	colleen_chien	Santa Clara
Luis	Chiesa	proflchiesa	Pace
Andrew	Chin	chinunc	UNC
Chester	Chuang	ChesterChuang	Golden Gate
Danielle	Citron	DANIELLECITRON	Maryland
Robert	Clinton	robertclinton	Arizona  State
Kim Diana	Connolly	kimdianaconnoll	Buffalo
Jorge	Contreras	contreraslegals	American
Nathan	Cortez	nathancortez	SMU
Brenda	Cossman	BrendaCossman	Toronto
Bridget	Crawford	profbcrawford	Pace
Susan	Crawford	scrawford	Cardozo
Dennis	Crouch	patentlyo	Missouri
César	Cuauhtémoc Garcia Hernandez	crimmigration	Capital
Steven M.	Davidoff	StevenDavidoff	Ohio State
Jeremy	de Beer	jdebeer	Ottawa
Stephen	Diamond	StephenFDiamond	Santa Clara
Amy	Dillard	adillard	Baltimore
Jim	Dimitri	profdimitri	Indiana
John	DiPippa	jmdipippa	Arkansas-Little Rock
Marc	Edeman	MarcEdelman	Barry
Joel	Eisen	joeleisen	Richmond
Ted	Eisenberg	TheEisenberg	Cornell
Jonathan	Ezor	ProfJonathan	Touro
Dave	Fagundes	Dave_Fagundes	Soutwestern
Joshua	Fairfield	JoshFairfield	Washington & Lee
Nita	Farahany	LawandBioDigest	Vanderbilt
Dan	Farber	dfarber	Berkeley
Gabe	Feldman	SportsLawGuy	Tulane
Dan	Filler	danielmfiller	Drexel
Eric	Fink	LuckyJimJD	Elon
Cynthia	Fountaine	clfountaine	Southern Illinois
Gary	Francione	garylfrancione	Rutgers-Newark
Michael	Froomkin	mfroomkin	Miami
Lance	Gable	professorgable	Wayne State
E. Townsend	Gard	ETownsendGard	Tulane
Leslie	Garfield	LawAcademics	Pace
Eric	Goldman	ericgoldman	Santa Clara
Jerry	Goldman	oyez	Chicago-Kent
Colleen	Graffy	Colleen_Graffy	Pepperdine
Kyle	Graham	kylefgraham	Santa Clara
Kent	Greenfield	Kentgreenfield1	Boston College
James	Grimmelman	grimmelm	NYLS
Jill	Gross	profgross	Pace
Hugh	Hanson	HughCHansen	Fordham
Woodrow	Hartzog	hartzog	Cumberland
Rick	Hasen	rickhasen	Irvine
Michael Avi	Helfand	MAHelfand	Pepperdine
Joan	Heminway	VolunteerTwit	Tennessee
William	Henderson	wihender	Indiana
David	Herzig	professortax	Valparaiso
Robert	Heverly	robheverly	Albany
Hugh	Hewitt	HHRadio	Chapman
Nancy	Hogshead-Makar	Hogshead3au	Florida Coastal
Danielle	Holley-Walker	danielleholley	South Carolina
Blake	Hudson	ForestLawProf	Louisiana State
Lolita Buckner	Inniss	AuntieFeminist	Cleveland-Marshall
Kendall	Isaac	workplaceadresq	Appalachian
Eric E.	Johnson	Eric_E_Johnson	North Dakota
Anil	Kalhan	kalhan	Drexel
Daniel Martin	Katz	computational	Michigan State
Ariel	Katz	relkatz	Toronto
Renee	Knake	reneeknake	Michigan State
Russell	Korobkin	russellkorobkin	UCLA
Kim	Krawiec	KimKrawiec	Duke
Greg	Lastowka	greglas	Rutgers-Camden
Richard	Leiter	rleiter	Nebraska
Mark	Lemley	marklemley	Stanford
Jack	Lerner	jacklerner	USC
Lawrence	Lessig	lessig	Harvard
Browne	Lewis	bayouwriter	Cleveland-Marshall
Michael	Lewyn	mlewyn	Touro
Lyrissa	Lidsky	LidskyLidsky	Florida
Lawrence	Lokken	Llokken	Florida
Brian	Love	BrianJLove	Santa Clara
Daithí	Mac Síthigh	macsithigh	East Anglia (UK)
Michael	Madison	profmadison	Pittsburgh
Phil	Malone	berkphil	Harvard
Irina	Manta	irina_manta	Hofstra
Dan	Markel	DannyMarkel	Florida State
Christopher	Marsden	ChrisTMarsden	Essex (UK)
Craig	Martin	craigxmartin	Washburn
Jonathan	Masur	jonathanmasur	Chicago
Kris	Mayes	krismayes	Arizona State
Michael	McCann	McCannSportsLaw	Vermont
Marcia	McCormick	marciamccormick	St. Louis University
Lisa	McElroy	ProfLisaMcElroy	Drexel
Tracy	McGaugh	millennialprof	Touro
William	McGeveran	BillMcGev	Minnesota
Paul	McGreal	PaulMcGreal	Dayton
Greg	McNeal	gregorymcneal	Pepperdine
Nancy	Millar	lpprof	Phoenix
James	Milles	jgmilles	SUNY Buffalo
Derek	Muller	derektmuller	Pepperdine
Haskell	Murray	HaskellMurray	Regent
Cynthia	Nance	Nancecy	Arkansas
Ira Steven	Nathenson	nathenson	St. Thomas
Anthony	Niedwiecki	LawProfAnt	John Marshall (Chicago)
Sean	Nolon	snolon	Vermont
Beth Simone	Noveck	bethnoveck	NYLS
Rory	O'Connell	rjjoconnell	Queens University Belfast
Paul	Ohm	paulohm	Colorado
David	Opderbeck	dopderbeck	Seton Hall
Jessica	Owley	JessicaOwley	Buffalo
Frank	Pasquale	FrankPasquale	Seton Hall
Scott	Peppet	speppet	Colorado
Lisa	Philipps	lphilipps	Osgoode Hall
Randal	Picker	randypicker	Chicago
Ellen	Podgor	whitecollarprof	Stetson
Thaddeus	Pope	thaddeuspope	Hamline
Brian JM	Quinn	bjmquinn	Boston College
Neil	Richards	neilmrichards	Wash U. St. Louis
Keith	Robinson	wkeithrobinson	SMU
Cassandra Burke	Robinson	AndraRobertson	Case Western
Tom	Russell	houseofrussell	Denver
Meghan	Ryan	MeghanJRyan	SMU
Matthew	Sag	matthewsag	Loyola Chicago
Steve	Sanders	SteveSSanders	Michigan
Susan	Scafidi	CounterfeitChic	Fordham
Jason	Schultz	LawGeek	Berkeley
Michael	Scott	PrivacyLaw	Southwestern
Christopher	Seaman	cbseaman	Washington & Lee
Paul	Secunda	psecundaWrkProf	Marquette
Eric	Segall	espinsegall	Georgia State
Lea	Shaver	leashaver	Hofstra
Ross	Silverman	phlu	Southern Illinois
Gordon	Smith	professor_smith	BYU
Dan	Solove	DanielSolove	George Washington
Larry	Solum	lsolum	Georgetown
Christopher	Sprigman	CJSprigman	Uva
Ruth	Stirton	RuthStirton	Sheffield (UK)
Lior	Strahilevitz	liorjs	Chicago
Kate	Sutherland	LawandLit	Osgoode Hall
Peter	Swire	peterpswire	Ohio State
Aaron N.	Taylor	TheEdLawProf	St. Louis University
Hollee	Temple	holleeinbalance	West Virginia
David	Thomson	dicthomson	Denver
Beth	Thornburg	btSMU	SMU
Jonathan	Turley	JonathanTurley	George Washington
Rebecca	Tushnet	rtushnet	Georgetown
Christopher	Tyson	chrisjtyson	Louisiana State
Barbara	van Schewick	vanschewick	Stanford
Steve	Vladeck	steve_vladeck	American
David	Wagner	david_m_wagner	Regent
Polk	Wagner	PolkWagner	Penn
Ari Ezra	Waldman	ariezrawaldman	Cal Western
Kimberlee	Weatherall	kim_weatherall	Sidney (Aus.)
Phil	Weiser	pweiser	Colorado
Adam	Winkler	adamwinkler	UCLA
Mary	Wong	marymagistra	UNH
Joshua	Wright	Josh_D_Wright	George Mason
Tim	Wu	superwuster	Columbia
Jane	Yakowitz	JaneYakowitz	Arizona
Jonathan	Zittrain	zittrain	Harvard
Christopher	Zorn	prisonrodeo	Penn State

Bumper Sticker Popular Constitutionalism

Continuing on my theme of talking about scholarship that I've been reading .... Thanks to a pointer from Dan Ernst at Legal History Blog, I've been enjoying Mary Ziegler's "Grassroots Originalism: Rethinking the Politics of Judicial Philosophy."  The abstract is as follows:

How has originalism become so politically successful? Whether its appeal is intrinsic or depends on the political outcomes it promises, leading studies a gree that the popularization of originalism came from the top down: elite actors persuaded grassroots activists to endorse originalism. By focusing on arguments about the backlash against Roe v. Wade, this Article argues that current studies of originalism as a political practice are fundamentally incomplete. First-generation originalists like Antonin Scalia, Robert Bork, and Lino Graglia defend originalism in part by pointing to the negative political and social consequences of any alternative approach. Roe has been the most powerful example used in consequentialist arguments for originalism. By failing to adhere exclusively to constitutional text or history, as Scalia has argued, the Roe Court forced lay people to question the Court’s legitimacy and, in so doing, helped to create the antiabortion movement. 

However, these consequentialist contentions of originalism and against Roe emerged not in the academy or in the courts but within the grassroots Right. In 1980-81, antiabortion activists began arguing that Roe should be overruled because of the consequences of the Court’s activism: the creation of the antiabortion movement, the polarization of debate, and the effective preclusion of any meaningful legislative compromise. These activists were not simply attracted to originalism because of its inherent worth or because of the results it produced. Instead, members of the grassroots Right pioneered justifications that later featured in the work of first-generation originalist scholars. As the Article shows, the politics of originalism have been conducted from the bottom up as well as from the top down.

There is a good deal at stake in understanding the role of the grassroots Right in creating consequence-based justifications for originalism. First, by assuming that academics, politicians, and judges have dominated the politics of originalism, we have misunderstood important popular arguments for originalism or judicial restraint. Grassroots claims about originalism have a distinctive language, and their purpose and rhetoric differ considerably from the arguments articulated by politicians and professors. A second implication concerns the legal academy. The materials assembled here suggest that the battle for the future of constitutional interpretation will not be won by whoever has the best theory. The politics of judicial philosophy have involved an unpredictable and highly contingent give-and-take between grassroots activists and the political and judicial elites. This will likely to continue to be the case in the future.

Among the things that interest me about this is Ziegler's attempt to go back and trace out the evolution of the popularity of originalism.  I'm deeply interested in the process by which constitutional arguments evolve, especially how the public interprets the Constitution, how they understand Supreme Court decisions, how they react to them, and how the Supreme Court in turn reacts (and in many cases adopts) arguments made by people outside the Court.  For instance, the pre-Civil War era saw an enormous amount of public discussion of constitutional ideas and I believe interaction between the Court and the public.  Outside of the domain of constitutional thought, there was also substantial interaction of elite Southern opinion and judicial decisions.

Call for Nominees for AALS Section on Women in Legal Education Lifetime Achievement Award

This year the AALS Section on Women in Legal Education will award, for the first time, a Lifetime Achievement award. The purpose of the Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years.  The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is seeking nominations for this most prestigious award.  Please submit your nomination, with a short paragraph explanation of how the nominee fits the criteria, to Nancy Levit, Chair of the Section on Women in Legal Education, at [email protected] by September 7, 2012.   According to Section bylaws, the Section Officers and Executive Committee will comprise the selection committee.

 

Let's Bring The Bald American Girl Into The Mainstream

To the credit of American Girl, a division of Mattel (though you'd never know it by the brand or price-point), the company has introduced a doll without hair.  According to AG's Facebook page, it's part of the My American Girl line (known popularly as the "Just Like Me" dolls) and it's been designed "for girls affected by cancer, alopecia, or any medical condition causing hair loss."  

In reality, many kids buy Just Like Me dolls that don't look just like the owner - but rather, look just like the buyer would prefers her or his doll to look.  Lots of kids might want to own this doll.

But as evidence of the complexity of marketing this doll, and perhaps aware that some people would prefer their kids not to see or think about such things as "cancer, alopecia or any medical condition causing hair loss", Mattel is making the doll available only by phone.  You can find it listed on the website - but not under the rest of the MyAmerican Girl line.  Instead, it's buried in the Doll Hospital section, under Doll Hospital Services.  

I think this is a shame.  One of the profound challenges of being a girl without hair is the social stigma.  In addition to potential profits, AG has presumably created this doll in part to provide a positive message to such girls: its OK to be you.  (And if it hasn't done this for altruistic reasons, its done so because of pressure and the desire for good press.)  

But it would be even more OK if the bald doll lived on the web in the midst of the other Just Like You dolls.  Yes, this might cause some parents to have conversations with their children about the bald doll - but these are a good thing generally, and needn't implicate issues of mortality.  

Kudos to Mattel but consider me one vote for mainstreaming the new bald American Girl doll.

Articles of Confederation Trivia

Here's a new one at the faculty lounge: a trivia question related to the Articles of Confederation.  We don't talk much about the Articles of Confederation; in fact, I almost never hear about them.  But at right is the house of one of the signers.  Whose house is it and where is it?

 

Capital Punishment News: North Carolina Destroys Racial Justice Act

Thanks to an override of governor Beverly Perdue, the North Carolina death penalty is safe from statistical scrutiny.  The state  legislature acted right before the holiday to radically reduce the scope of NC's signature Racial Justice Act.  The Act, adopted in 2009, allowed the use of extensive statistical evidence to establish that an individual death sentence was imposed as a result of race.  The fresh modifications shrink the field of data that can be considered in a case and prohibit use of statistics alone to establish race bias.  

To be clear, this simply returns North Carolina to a situation akin to - and slightly better than - other states imposing capital punishment.  But it also provides stiff tonic to policy advocates who imagined that states might choose to be thoughtful about race and capital punishment notwithstanding Justice Powell's legendary wimp-out decision in McCleskey v. Kemp. 

The ABA and the non-US College

    One of the consequences of working at a new school that had been seeking first-time ABA approval for almost twenty years is that you become more familiar with the details of the ABA accreditation standards than you might personally prefer. I have materially participated in drafting four ABA self-studies — two unsuccessful efforts submitted by Southern New England; a third attempt started by SNESL, but aborted as the merger into U.Mass. occurred; and the most recent successful effort as the U.Mass. Law School. Most times, even if you disagree with a requirement, you can nevertheless understand why the ABA requires it. Sometimes, however, this is not true. Consider Standard 502 entitled “Educational Requirements”:

    (a) A law school shall require for admission to its J.D. degree program a bachelor’s degree ... from an institution that is accredited by an accrediting agency recognized by the Department of Education.

    (b) In an extraordinary case, a law school may admit to its J.D. degree program an applicant who does not possess the educational requirements of subsection (a) if the applicant’s experience, ability, and other characteristics clearly show an aptitude for the study of law. ...

    The basic purpose of the rule is understandable. The U.S. law degree is a graduate program, so it makes sense to require typical applicants to law school to establish that they have completed an undergraduate education. The accrediting agency referenced in the rule are the regional agencies (NEASC for us). Gaining regional accreditation, though not pro forma, is not extraordinarily difficult either as long as the institution is not just a diploma mill (I’ve had the “privilege” of drafting multiple NEASC self-studies, also).

    The problem with the rule is its U.S.-centric basis. There are many undergraduate institutions world-wide that provide excellent undergraduate educations. Does the ABA mean to make admission to a U.S. law school more difficult for a graduate of the University of Cambridge or Oxford just because they are located in the U.K. or of McGill University just because it is located in Canada? None of these institutions are accredited as far as the U.S. Department of Education is concerned. Under 502, exceptions can only be granted in “extraordinary case[s].” Personally, I suspect that a vast majority of foreign-educated applicants across the country are justifiably deemed qualified and are admitted despite their foreign degree. All of our foreign-educated applicants aren’t only above average, they are extraordinary.

    While the rule practically mandates that all candidates have a U.S. undergraduate degree, the admissions requirements in Chapter 5 of the ABA Standards are silent on a candidate’s language abilities. For any law school, it is a major problem when a student is not fluent in the language of instruction. Why is it, then, that the ABA has no requirements that a student demonstrate an ability in the language of instruction?

Zombie Tax!

Adam Chodorow (Arizona State) has posted to SSRN his article Death and Taxes and Zombies, forthcoming in the Iowa Law Review.  Here is the abstract:

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

This article fills a glaring gap in the academic literature by examining how the estate and income tax laws apply to the undead. Beginning with the critical question of whether the undead should be considered dead for estate tax purposes, the article continues on to address income tax issues the undead are likely to face. In addition to zombies, the article also considers how estate and income tax laws should apply to vampires and ghosts. Given the difficulties identified herein of applying existing tax law to the undead, new legislation may be warranted. However, any new legislation is certain to raise its own set of problems. The point here is not to identify the appropriate approach. Rather, it is to goad Congress and the IRS into action before it is too late.

The full article is available here.

Who says tax professors don't have a sense of humor?

The End of the Calhoun Constitution, Active Version

It just dawned on my that I might use a picture of Appomattox Courthouse as a sign for "the end of the line" for the "Calhoun Constitution."  That might have been an even better illustration for my post than the field where Pickett's charge took place.  (But, of course, I wanted to use the Pickett's charge photo because Wednesday was the 149th anniversary of the charge.)  That's the Courthouse off in the distance.

Then as I was looking through the other pictures I took the day I was at Appomattox Courthouse I came across a monument the United Daughters of the Confederacy put up back in June 1926 to commemorate the Lee's surrender.  The language is pretty illuminating -- and I think also suggestive of the UDC's efforts at reconciliation:

Appomattox.  Here, on Sunday April 9, 1865, After Four Years of Heroic Struggle in Defense of Principles Believed Fundamental to the Existence of Our Government Lee Surrendered 9000 Men, the Remnant of an Army Still Unconquered in Spirit.

Couple of things stand out about this.  First, the "principles believed fundamental ot the existence of our government" -- seems to be saying that, well, maybe we're now understanding that those principles actually weren't fundamental.  This is part of the reconciliation that took place in the early twentieth century -- a sense both North and South that the South was fighting for a cause believed just at the time, even if subsequent events showed it wasn't.  That allowed everyone (well, really the south) to sort of save face.  And it seems as though the UDC monument makes that concession.  Or maybe I'm reading too much into this.

The second piece -- not as relevant to my legal point -- is that the "still unconquered in spirit" point elides that they may have had been willing in spirit, but in terms of ability to press on, this was it.  End of the line.  Third, and somewhat relevant to how we think about monuments, this has the UDC's characteristic focus on heorism and honor.  (For another example of this, see the text of the Confederate monument at the South Carolina statehouse.)

Because AGR and anon and I have been talking about this issue on Tuesday's post on "The Calhoun Constitution," I thought that it would be useful to cite the UDC's monument.  They realized that the strong version of the Calhoun Constitution, with its compact theory of federalism, had been rejected.  And maybe even acknowledged that major parts of it were not just rejected militarily and politically but as a principle of political theory, too.

Appreciating America's Freedom

To celebrate Independence Day, here is one immigrant's story of safety and opportunity in this wonderful country, America.

The immigrant is my father.

Happy birthday, U.S. of A.

ABA’s Class of 2011 Employment Outcomes Data Show How Rough It Is Out There

Greetings.  I’ve been away attending to an illness in my family, and it’s good to return.  Thanks to both of you for your postcards; I had forgotten how majestic the Badlands could be this time of year.

What’s new?  Well, the ABA Section on Legal Education has kept its promise to disclose more detailed data on law-school employment outcomes, and to do so earlier.  In mid-June, the ABA released employment outcome data for the Class of 2011 at accredited law schools nine months after graduation.  Two things are new about these data:  (1) They are being released nine months earlier than usual (past practice would have seen them released in March 2013); and (2) The data gathered and disclosed are more detailed than prior years’.  Among other categories, school-funded, part-time and short-term positions are broken out.  The types of jobs are categorized by type and size of employer, as well as separated according to whether the job requires a law license, is “JD Advantaged,” “Other Professional,” “Nonprofessional,” or “Undetermined.” 

There is a great deal of information here.  Let’s start examining it by seeing what we can learn about the employment value of a law degree for the law school class of 2011.  In other words, for how many 2011 law grads did their time, effort, three years’ forgone income and advancement from other work, and expenditures on tuition, fees and books result in a certification that provided them real and substantial opportunities for employment not otherwise available to them? 

There are a number of ways this question could be addressed.  Here’s how I propose to take the first cut at it: 

Declaration of Independence Signers Monument

In past years I've written about the game of Monopoly, as well as July Fourth orations for my Independence Day post.  Alas, this year I've been too busy to write something substantive, so I'm relegated to putting up a picture.  

Here is the monument in Greensboro, at the Guilford Courthouse park, to the two signers of the Declaration of Independence from North Carolina who are burried on there (William Hooper and John Penn).  William Hooper -- whose son I write a little bit about -- was orginially buried up in Hillsborough, but he and Penn were both reinterred in Greensboro in the late nineteenth century as part of creating a monument to the Guilford Courthouse battle.  That strikes me in some ways as, don't like your history?  Change it!  But as creating tradition goes, this isn't too bad.  In addition to moving the graves, they built a bunch of other monuments there.

PA Voter ID Law May Disenfranchise 9% Of Registered Voters. Massive Racial Impact?

The Philadelphia Inquirer's headline understates the concerns here:

Voter ID law may hit more in Pa. than originally estimated

It appears that 9.2% of registered voters in Pennsylvania do not currently have a PA driver's license or state-issued identification card.  A few may have passports, student ID's with expiration dates, military ID's or government issued employee identification cards.  But as the story points out, most voters don't have these approved alternatives. 

Supporters of the law will argue that some of these people are dead and some moved out of state.  I'm sure that's true.  But my guess is that a similar perecentage of new registrants will also lack these ID cards - so there will be freshly registered (and disenfranchised) voters created every day between now and the final date for November registration.

But it gets worse - particularly for a Democratic president.  18% of registered voters in Philadelphia don't have a Pennsylvania issued identification card.  Not a huge surprise: many people in a big city, with comprehensive public transit, don't drive. 

Of course, big cities have different demographics than the rest of the state.  And nobody is going to be surprised if this law has a wildly disparate racial impact, disenfranchising Blacks at astronomically higher rates.  Roughly half of Philadelphia's population is African-American.  And almost half of all African-Americans in Pennsylvania live in Phillly.  So although this new report doesn't tell us much about the demographics of that disenfranchised 9.2 percent, we can all make a rough guess.

Nobody is suprised by this result, I 'm sure, least of all the Republicans who pushed the legislation through Harrisburg.  One 2006 one study estimated that 19% of African-Americans lived in homes with no car...compared to 4.6% of whites.  So if you're trying to clear the decks for a Republican candidate, voter ID laws are an excellent strategy.

 

Is Google Overcharging Advertisers With Mistaken Clicks?

Am I alone in noticing that Google searches often load relatively slowly now, with unpaid results appearing about a half second before the paid ads at the top of the page?  More than once, at a particularly impatient moment, I've reached to click on the first (unpaid) result at the top of the page, only to discover that an ad had loaded into that same space a split second before my finger managed to complete the click.  I've then been directed to the advertiser.

This is a little irritating for me (though I've also accdientally landed on a the same page - except through a paid click.)  But I have to think this could be very irritating to those advertisers who pay for my uninteded visit.  It's not like I stay on the page.  I quickly back out, re-google, and wait for the results to fully load.

I wonder if this is just a glitch or an actual strategy?

IP Scholars Forum

If you have an interest in the intersection of intellectual property and public health, then you may wish to attend the Sixth Annual IP Scholars Forum, sponsored by our friends at the University of Akron School of Law’s Center for Intellectual Property & Technology in October.  Details here.

The Mandate Challenge: Testing the Counter-Narratives

In the wake of the Affordable Care Act decision, competing narratives have emerged on the significance of the Court's holding that the Commerce Clause does not permit regulation of inactivity. According to Randy Barnett, David Rivkin and other observers, the Court may have upheld the individual mandate to purchase health care coverage under the taxing power, but Congress lost an important legislative option when the Court concluded that purchase mandates cannot be justified under the Commerce Clause.

In the alternative view that also has been taken by Einer Elhauge, John Yoo and others, Congress lost nothing in the decision. Not only was the Affordable Care Act's mandate upheld, but a majority of the  Court reaffirmed its past 75 years of Commerce Clause doctrine, including Wickard v. Filburn. Congress still can enact mandates, through either its Commerce Clause power or its taxing power. The barriers to purchase mandates are political, not constitutional.

Which narrative is correct? We can test them by positing hypothetical purchase mandates and seeing whether they would survive the majority's analysis in NFIB v. Sibelius. I'll start the challenge with some examples from the pre-decision debate:

1. Justice Antonin Scalia wondered whether Congress could enhance the health of Americans by requiring them to purchase broccoli. Yes--Under the commerce power, Congress can require groceries and restaurants to include broccoli with every sale of food.

2. Justice Samuel Alito wondered whether Congress could require people to carry burial insurance. Yes--In fact, there already is a small, lump sum death benefit as part of Social Security.

3. Judge Roger Vinson wondered whether Congress could require people to buy GM cars to protect the government's ownership stake in the company. Yes--Congress can tell service stations that they may sell gasoline only to owners of GM cars.

What can't Congress make us buy by regulating us once we're engaged in some kind of economic activity, or by exercising the taxing power?

The Calhoun Constitution

As I'm sitting here editing University, Court, and Slave I've been thinking about the joint dissent in Sibellius.  This statement interests me in particular: 

The constitutional protections that this case involves are protections of structure.  ... [T]he Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment.  The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.

As close followers of my scholarship (as if anyone cares about what I think) may recall, I'm skeptical of the originalism project.  I wonder, for instance, whether we can meaningfully understand original intent, whether the framers themselves thought that intent should bind us, and how we might translate their understanding of their world into ours.  All sorts of things like that.  So I am not the person to answer this, because I don't put much stake in the originalism project.  My skepticism of originalism is borne of my reading in pre-Civil War constitutional law.  In that era the Court and public interpreters of the Constitution were close in time to the framing of the Constitution but were so clearly understood that they were interpreting a flexible text.  But, look, this isn't the place to replay for the millionth time the debate over originalism.

Two points here.  First, my gosh that statement sounds remarkably like what Senator Calhoun and his Southern colleagues repeatedly told us about the Southern vision of the Constitution.  (I get that Calhoun focused on the liberty-enhancing aspects of federalism AND saw the remedy as state nullification of offending federal action, but right now I'm focusing only on the first part of the Calhoun Constitution.)  Second, that Calhoun vision of strong federalism was resoundingly defeated during the Civil War.  Hence the illustration of this post of the field where Pickett's charge was defeated, which took place 149 years ago today. (I had thought about illustrating this with a monument, but I'm not to partial to the monument of the soldier using his gun as a club.  I do recognize, of course, that illustrates the world view of the victors at Gettysburg and might strengthen the point I'm making here.)  The active interpreters of the Constitution and makers of Union on Cemetery Ridge in Gettysburg made clear that they rejected the southern compact theory of the Constitution.  And mind you I'm not talking only about some Bruce Ackerman constitutional moment argument here.  We have three amendments to the Constitution that were designed to ratify the changes wrought by Civil War.

Now my question: why, when we're talking about the relationship between the state and federal government are we talking about the 1787 Constitution as though the vision of federalism had been un-altered by subsequent events and amendments?  The omitted section in the quotation from the dissent above refers to the Reconstruction amendments, so those amendments and the process of Civil War were on the minds of the authors.   I mean, I get it if you're arguing that the 1787 Constitution permits ACA, but I would think that if you're arguing that the 1787 Constitution's commerce clause prohibits ACA that there's more analysis that one needs to do, in terms of looking at the Civil War and its constitutional legacy.

Calhoun Trivia Question

Deep in edits here on the epilogue to University, Court, and Slave and I'm thinking about John C. Calhoun this evening, which reaches back to work I did in law school.  So perhaps it's time to dig into my virutal stack of photos and ask a trivia building question related to him.  What's the building at right?  This isn't wildly related to Calhoun -- certainly not as related as the Fort Hill question I posed last spring.  But this is certainly a building he visited and had more than a passing connection with.

More on Calhoun shortly I think.

Nguyen on Apologies: The Case of Intellectual Property in China

One of the things I'd planned to do this summer is talk about scholarship I've been enjoying -- or at least flag it here in the lounge.  I haven't done much of that yet, so let me start with SMU Law Professor Xuan-Thao Nguyen's "Apologies as Intellectual Property Remedies: Lessons from China," which appeared recently in the Connecticut Law Review.  Here is the abstract:

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of introducing apology as a remedy in U.S. intellectual property law. There are, however, limits to the effectiveness of injunctions and damages (currently the predominant remedies in U.S. intellectual property law), and tangible benefits to apology. This Article uses Chinese intellectual property law as an example and addresses the limits of the current U.S. intellectual property regime, as well as the potential benefits of a change. The Article concludes that it is time for the United States to learn from beyond its boundaries in order to provide just recourse in intellectual property disputes.

Download the paper from ssrn here.  Close readers of the faculty lounge may intuit that I'm returning to my interest in apologies, reparations, and transitional justice.

Summer Procrastination

    Today, rather than writing the article I’m doing this summer on patent bar ethics, I’ve decided to think about the ways of justifying delaying the grunt work of producing the actual document. The list of excuses for this summer:

    1.    I have obligations in addition to my job. The bathroom does need repainting desperately, and I’m the one to do it. Besides, the Zen of the paintbrush will help me figure out how I’m going to address the difficult issue of enforcement that I’ve avoided thus far by writing pages of drivel to proceed addressing it — pages that I know will never survive to be published.

    2.    I need a break from the grind of the academic year. This would be fine if I had actually done more writing on the article during the year, but I focused instead on the research. “I’ll write the article this summer,” I told myself.

    3.    Summer is for writing, so I’ll write the article when summer really comes. After all, everyone knows that summer doesn’t start until after Memorial Day. Whoops, Memorial Day is long gone. Maybe I can have summer start on the Fourth of July. Unfortunately, the Fourth is basically here, so I should be writing today and I’m not. Some years, I have used the end of my family’s vacation as the start of summer, but this year it doesn’t end until the week before the fall semester starts.

    4.    Well, maybe I can count Faculty Lounge posts as my scholarship for the year. I’ve always wondered if the Dean actually reads my articles ...

    The moral here is clear. Unless I want to conclude my paper by advocating that miscreant patent attorneys should be sentenced to paint bathrooms, I need to get serious.