Rational Basis

Time To Do Away With The Electoral College.

2022-06-27T15:27:00.000-05:00

It is time to do away with the Electoral College.

Our obsolete, undemocratic way of choosing the President made the events of January 6, 2021 possible. The bizarre nature of the Electoral College encouraged the President and his allies to try to manipulate the system to overturn a free and fair election in which Donald Trump lost by one of the biggest popular vote margins in history.

Alexander Hamilton in Federalist #68 explains why the Framers created the electoral college. Hamilton wrote that the electoral college would be “small number of persons, selected by their fellow-citizens from the general mass, [who] will be most likely to possess the information and discernment requisite to such complicated investigations” in selecting the most qualified person to be President.

The Framers wanted to “to afford as little opportunity as possible to tumult and disorder.” Creating “an intermediate body of electors will be much less apt to convulse the community with any extraordinary or violent movements.” Moreover, they dictated that the electors would meet in their respective states because “this detached and divided situation will expose them much less to heats and ferments” from excited partisans.

The Electoral College, according to Hamilton, deliberately placed “every practicable obstacle” to “cabal, intrigue, and corruption.”

The Framers could not have been more wrong. The electoral college allowed Donald Trump and his allies to advance absurd legal theories about the election. These ideas – that the election was stolen, that state legislatures could override the vote of the people, and that the Vice President could decide which electoral votes to count - allowed Trump to rile up the crowd on January 6 and caused the majority of Republicans in the House to vote against certifying President Biden’s election.

These ideas are laughable and profoundly undemocratic. If the Vice President could decide which votes to count, then we would have a dictatorship, not a democratic republic. And if members of Congress could decide that the states did not follow their own laws, we would no longer have a federal republic where states are primarily responsible for their elections. Indeed, the need for elections would vanish. Why bother when either Congress, or state legislatures, or the Vice President could decide who gets to be President?

The Electoral College has failed to serve its purposes. It no longer filters the choice of a President through a small body of wise, disinterested persons. By the 1830’s all of the states gave their electors to the winner of the popular vote. It did not stem the “extraordinary or violent movements” of January 6. The bi-partisan January 6 commission reveals daily the “cabal, intrigue, and corruption” Trump and his allies engaged in. The attack on the Capitol brought the “tumult and disorder” and the “heat and ferments” the framers feared.

But most egregious of all, the Framers promised us that the electoral college would provide a “moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications…. there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” Instead, it gave us the 2016 election of Donald Trump, a corrupt, vulgar authoritarian, a man manifestly unfit for public office.

Let’s get rid of the electoral college and democratize Presidential elections. Over time, we have replaced some of the constitution’s original undemocratic features with more modern, democratic ones. Thus, the 17^th amendment mandates the direct election of Senators, the 22^nd Amendment term limited the President, the 14^th, 15^th, 19^th, and 26^th Amendments enlarged the franchise, and the 24^th outlawed poll taxes.

If January 6^th taught us anything, it is that unscrupulous actors will try to manipulate undemocratic structures. The electoral college is obsolete, useless, and dangerous. It’s time to remove this constitutional appendix.

RBG"s Only Abortion Case was for a Roman Catholic woman who DIDN"T want an abortion

2022-05-07T06:50:00.001-05:00

Before she became the notorious RBG, Ruth Bader Ginsburg handled women's rights case. The only abortion case she ever handled involved a pregnant member of the military.

Susan Struck was an Air Force captain when she became pregnant in 1970. Her commanding officer gave her two choices: abortion or resignation. Instead of choosing, Struck sued. Justice Ginsburg, working for the ACLU, represented Struck, arguing that the regulation banning pregnant women from service was sex discrimination, and that Struck should have the right to choose whether or not she wanted to have a child; a military directive to the contrary violated Struck’s rights.

https://www.findlaw.com/legalblogs/supreme-court/how-justice-ginsburg-struck-out-in-the-pro-choice-movement/

Before the case got the Supreme Court, however, the Air Force changed its position and the case was dismissed as moot.

Ginsburgh thought it unfortunate that SCOTUS did not hear this case:

“I wish that would have been the first case. I think the court would have better understood that this was a question about a woman’s choice,” she said.

https://www.usatoday.com/story/news/factcheck/2020/09/29/fact-check-ruth-bader-ginsburg-susan-struck-air-force-case/3555141001/

So RBG was not pro-abortion. She was truly pro-choice.

"The moon passes through different phases--shows us a different face every night--but it's always the same moon" : Bob Dylan, Leonard Cohen, Samuel Alito, Roe v. Wade, and Neil Diamond

2022-05-06T10:57:00.001-05:00

Ok, bear with me. It will take a little time to get to the point and bring the title characters together. Justice Alito's leaked draft opinion got me thinking about originalism which got me thinking about hermeneutics which got me thinking about Leonard Cohen and Bob Dylan and Neil Diamond. (It didn't hurt that I own the Essential Leonard Cohen and 10 New Songs.) No matter when he recorded, Leonard Cohen sounded a lot like Leonard Cohen 50 years ago. He always had a tight lyrical structure, he wrote about love and sex and loss ,and his vocal range was always about 3 notes wide. Some might say that if you have heard one Cohen song, you have heard them all. But that is not true. Cohen used the same themes but expanded and refined them in new circumstances.

Pico Iyer captured this sense of Cohen on the liner notes to The Essential Leonard Cohen

"[W]ith Cohen, one feels that he knew who he was and where he was going from the beginning, and only digs deeper, deeper.... The moon passes through different phases--shows us a different face every night--but it's always the same moon."

Contrast that with Dylan who changes structure, subject, and musical style at the drop of his (sometimes literal) hat. Dylan puts on these changes like disguises. He mixes together all his influences, current and past, to come up with the "new and improved" Dylan. He grows organically, changing the words and music to fit his mood or the country's mood or just because he's tired of being this year's Bob Dylan. And he doesn't mind making things up as he goes along. He is notorious for speaking jibberish during interviews. New moon, different solar systems.

Neil Diamond. This will be quick. Same song, same words, same inflection, same meaning now and forever. Same moon, same aspects (preserved forever in crystal clear audio and yours for the low price of ...)

Here's the legal connection. Cohen is like the second John Harlan (and Anthony Kennedy): the Constitution's fundamental principles never change but their meaning cannot be plumbed once and for all. Each new situation will show a different aspect of the fundamental principles. (e.g. ,We can only say what Liberty means in the context of each case as we explore its deeper and deeper meanings. And meaning takes into account our national experience.) Same moon, different faces.

Dylan is more like William Brennan: the Constitution is an organic document that changes in each era. (i.e., we have to adapt the Constitution to the modern world)

Alito's leaked draft opinion makes this point: the Constitution never changes, period. (e.g., Unless the framers envisioned allowing abortions, the constitution has nothing to say.) That doesn't sound like Dylan or Cohen: It sounds more like Neil Diamond - same song, same words, same inflection, same meaning now and forever. (preserved forever in crystal clear audio and yours for the low price of ...)

But as Leonard Cohen said in Alexandra Leaving, "Do not stoop to strategies like this... Do not choose a coward's explanation that hides behind the cause and the effect." We don't need Neil Diamonds on the Supreme Court singing "Sweet Caroline" for the next 30, 40, 50 years and we don't need Bob Dylans making up the lyrics to "Maggie's Farm" on the fly. We need Leonard Cohens, who look unflinchingly and repeatedly at the same subject, exploring its different aspects, who bring their and our nation's experience to bear on the legal issues confronting the court and never sparing us from the necessary truths. We need Justices who, like Leonard Cohen see that "The moon passes through different phases--shows us a different face every night--but it's always the same moon."

2022-05-06T06:12:00.000-05:00

Justice Alito's leaked draft opinion on Roe v Wade is the immediate impetus to fire up my old blog, Rational Basis. I did a Zoom discussion of my initial thoughts on the draft opinion. Here is a link to the audio of that discussion. I will be adding more thoughts on this opinion and what it means in the coming days (or hours!)

Rational Basis went by the wayside when I got enamored with Facebook and other things (like running a law school). In any event, I need something to do now that I am retired and the discussion about the Allito opinion reminded me how much I love talking about the law but also that I may still have something to offer people.

I retired from law school teaching, a job I held since 1983, with pride but also trepidation. I am proud of what I have accomplished as a teacher, scholar, Dean, and public servant. During that time, I had the privilege of meeting and teaching thousands of students who have gone to do great things in Arkansas and beyond. I also retired from the Clinton School of Public Service where I was one of the Inaugural Professors and had the privilege of teaching the very first class on the very first day.

The blog will be a mix of politics, law, music, food, and culture. I can say things that I couldn't say before because I am no longer associated with the UALR Bowen School of Law or the Clinton School. I also want to be able to say things with a bit more depth and nuance than I can in a Twitter or Facebook post.

Arkansas Fetal Heartbeat Law

2013-01-28T17:59:00.000-06:00

Arkansas is considering passing a law that would ban abortions at any time after a fetal heartbeat is detected. Unquestionably, this would be unconstitutional under Planned Parenthood v Casey which says that anything that has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," is unconstitutional.

Viability is defined as the age at which the fetus is capable of life outside the womb with or without artificial support.

A few states have tried to pass similar bills. The strategy seems to be to pass a bill, have it challenged in court, and then launch an all out assault on Roe v Wade.

Supporters of this bill must justify the expenditure of considerable state funds defending it when a favorable outcome is uncertain at best. Only the United States Supreme Court can undo Roe so that, unless the case gets to the Supreme Court AND it turns out in the state's favor, passing the bill would be quixotic.

I don't think that the current make up of the Supreme Court would uphold this kind of law if it meant undoing Roe. There are four solid liberal, pro-roe votes (Kagan, Ginsburg, Sotomayor, Breyer), three solid conservative, anti-roe votes (Scalia, Alito, Thomas) and two moderate votes (Kennedy, Roberts.) Even if we assume that Roberts would vote with the anti-Roe side, Kennedy is unlikely to do so. He co-authored the Casey opinion that upheld the "central tenets" of Roe: that the constitution protected a women's right to choose and that the government could not place a substantial obstacle in her path.So that leaves a 5-4 majority against these kinds of laws.

Brainwashed and Dry Cleaned.

2009-08-12T14:31:00.002-05:00

The think tank posts this link to an MSNBC interview with the shouter who disrupted Arlen Specter's Lebanon town hall yesterday.

What's sad is to see a real live example of brainwashing. Poor Mr. Miller was simply repeating what he heard hundreds of times from the right wing media. I feel sorry for him because he is the kind of person for whom government needs to work but he is being played by the faux populists who have created the mishmash he and others repeat. As a character said in the original version of the Manchurian Candidate: "His brain has not only been washed...it has been dry cleaned."

US Attorney Purge Documents

2009-08-11T16:38:00.002-05:00

The Arkansas Times blog notes that there's some more smoke on the 2007 US Attorneys purge that involved Arkansas US Atty Bud Cummins. It sure seems like there was a fire about this in Karl Rove's office in the White House.

The "Death" of Health Care Reform

2009-08-10T16:35:00.005-05:00

I have been thinking a lot about the mobs who are shouting down any discussion of health care. But first, here's a source of facts for the reality based community, that dwindling band of folks who like to make decisions based on quaint things like facts and evidence and, you know, reality. James Fallows thinks that journalists should report the truth and not simply relay lies, half-truths and misinformation. What a concept!

Blake Rutherford links to Mark Halperin's Time posting: Why Everything About the Health Care Mobs is a National Disgrace.

Listen to David Brooks - David Brooks! - say that Rush Limbaugh's health care rhetoric is "insane." Here is the unpleasant truth that the health care shouters will not accept: refusing to reform health care is a death sentence for thousands of Americans.

As Southern Beale says to Sarah Palin: "You have no idea what it’s like to be called into a sterile conference room with a hospital administrator you’ve never met before and be told that your mother’s insurance policy will only pay for 30 days in ICU. You can't imagine what it's like to be advised that you need to “make some decisions,” like whether your mother should be released “HTD” which is hospital parlance for “home to die,” or if you want to pay out of pocket to keep her in the ICU another week. And when you ask how much that would cost you are given a number so impossibly large that you realize there really are no decisions to make. The decision has been made for you. "Living will" or no, it doesn't matter. The bank account and the insurance policy have trumped any legal document. If this isn’t a “death panel” I don’t know what is."

The truth is that the unthinking anger, the refusal to listen to the facts, and the willingness to be misled by corporate-managed campaigns of disinformation are far greater dangers to our future than anything that health care reform will bring. Death of democracy, anyone?

A Change -in Legal Education - is Gonna Come (with apologies to Sam Cook)

2009-08-03T13:07:00.006-05:00

I attended the ABA Workshop for Law School Dean on being a law school dean in tough times. It had the expected advice about how to weather the current economic storms. But there was also a not so veiled undercurrent: the old strategies may not work this time because legal education is undergoing a sea change.

I am in that camp. Economic and educational forces are combining in ways that will create a different world in which law schools will operate and lawyers will practice.

What are the economic forces?

Law firms are shedding jobs that are not likely to be re-created when the recession ends.
The remaining jobs will not pay so much as before.
Students will be reluctant to take on large debt unless there are jobs waiting for them.
Law Firms will demand job-ready applicants

What are the educational forces?

Calls for fundamental legal education reform are gaining momentum
The ABA is moving toward outcome-based accreditation standards
Students are demanding different approaches and want to see value for their tuition dollars.

In my view, schools that are mission driven and can measure their effectiveness will thrive. This means that life as law schools have known it for the last 20 years is over: if rankings survive, they will have take into account the new value that students will seek. And law schools will not be able to pump up tuition without regard to student debt load. And the faculty salad days may be over.

Perhaps it will create a caste system for law school but, as UMKC Dean Ellen Suni said, "So what? We've got that already." Perhaps, mission driven schools will be able to pursue their vision and prospective students will recognize our value. (BTW, the Sam Cook original may be one of the greatest R & B songs ever. IMHO).

Changing what Law Schools Practice and Law Firms Teach

2009-07-30T15:19:00.003-05:00

Temple Law School Dean Joanne Epps has an interesting piece in the National Law Journal entitled A Tipping Point for Law Schools? Dean Epps argues that the economic crisis gives law schools and law firms an opportunity to re-think the way we educate law students. The old bargain between the profession where law schools taught "the law" and law firms taught skills has broken down.

Of course, that was only true for the largest firms. Law schools that sent their graduates into small firms, state agencies, and solo practice have always embraced a mission to teach legal theory AND to prepare their graduates to practice law. That's why my law school - UALR William H. Bowen School of Law - has required an upper level skills course since 1974. The ABA only mandated a skills requirement in 2006. The recession and the reform movement in legal education have exposed the divide between the law school "haves" and the rest of us. In truth, the "haves" are now experiencing what the rest of us have always known and are now embracing what the rest of us have always done.

In fairness, Dean Epps' school - Temple - has been at the forefront of clinical legal education. I'm not picking on her. In fact, she gets it about right: that there is no single template for legal education in the 21st Century and that the future will be marked by flexibility and collaboration. As she says:

"I [don't] expect that change will come from one law school or even a handful of law firms. Rather, I think it is imperative that a dialogue get under way that harnesses our collective experiences from across the spectrum of the industry to think strategically about the role legal education should play during the next 20 to 50 years."

Indeed.

John Yoo: Anti-Terrorism and The Dangers of Balancing

2009-07-28T15:19:00.005-05:00

The recent NY Times article indicating that VP Cheney considered using the military to arrest terrorism suspects in NY caught my attention. Cheney used a 2001 legal memo written by John Yoo. I spent the day with and interviewed John Yoo when he spoke at the Clinton School in 2006.

I liked him. He was warm, funny, and engaging. I don't think my interview was particularly hard hitting but it does give a pretty good idea of how John Yoo thinks. For Yoo, the President has almost complete power to protect the country. Thus, once military action is authorized, a president has almost carte blanche to carry it out. Congress can only cut off funds if it does not like what the president is doing.

But I am now recalling something more pedestrian: when pressed, Professor Yoo would resort to a sophisticated version of the answer, "It all depends." Several times, he responded by saying that we must balance the benefits more from aggressive Presidential actions against the possible harm to our civil liberties. And, inevitably, the harm from the terrorists was far worse than the impact on our liberties.

Yoo exposes the limits and dangers of utiliarian reasoning. It sounds great to say that we should balance the good and the bad effects of our actions but the real power is with who sets the scale. If the President can ignore the 4th Amendment and Federal Law to deploy troops inside the country on his say-so, then we don't really have a rule of law.

None of us can know what it was like to be where John Yoo was in the aftermath of 9/11. The pressures must have been enormous and the uncertainties severe. But that is why we have the rule of law: it acts as a mechanism to force our thinking along certain paths when we might be led astray by our innate cognitive and emotional tendencies. The problem is not that Yoo wanted to create a dictator - he did not. The problem is that his expectation that the President would self-limit his power or that Congress would pull the plug with troops in the field is unrealistic.

Bob Dylan, Leonard Cohen and Sonia Sotomayor (and Neil Diamond)

2009-07-21T09:04:00.005-05:00

Ok, bear with me. It will take a little time to get to the point and bring the title characters together. The Sotomayor hearings got me thinking about originalism which got me thinking about hermeneutics which got me thinking about Leonard Cohen and Bob Dylan and Neil Diamond. (It didn't hurt that I bought the Essential Leonard Cohen and 10 New Songs last week.) Leonard Cohen today sounds a lot like Leonard Cohen of 40 years ago. He still has a tight lyrical structure, he still writes about love and sex and loss and his vocal range is still about 3 notes wide. Some might say that if you have heard one Cohen song, you have heard them all.

But Pico Iyer captured my sense of Cohen (and Dylan) on the liner notes to The Essential Leonard Cohen

"Yet what strikes me most, listening to these songs all at once, is how little in some sense he's changed; the changeless is what he's been about since the beginning. If you think of some of the other great pilgrims of song (Bob Dylan, say, or Van Morrison or Joni Mitchell), you see them pass through philosophies and selves as if through stations of the cross; with Cohen, one feels that he knew who he was and where he was going from the beginning, and only digs deeper, deeper. Listen to the "Master Song" here, and recall that it was written six years before he fell in with a Zen master, Joshu Sasaki-roshi; lose your heart, 35 years later, to "Alexandra Leaving," and remember that he was writing of "Alexandra's double bed" 23 years before, at the beginning of "Death of a Lady's Man." The moon passes through different phases--shows us a different face every night--but it's always the same moon."

Contrast that with Dylan. Dylan changes structure, subject, musical style at the drop of his (sometimes literal) hat. Dylan puts on these styles like disguises. He mixes together all of influences, current and past, to come up with the "new and improved" Dylan grows organically, changing the words and music to fit his mood or the country's mood or just because he's tired of being this year's Bob Dylan. And he doesn't mind making things up as he goes along. He is notorious for speaking jibberish during interviews. Same moon, different solar systems. Neil Diamond. This will be quick. Same song, same words, same inflection, same meaning (or not) now and forever. Same moon, same aspects (preserved forever in crystal clear audio and yours for the low price of ...)

Here's the legal connection. Cohen is like the second John Harlan: the Constitution's principles never change but their meaning cannot be plumbed once and for all. Each new situation will show a different aspect of the fundamental principles. (e.g. ,We can only say what Liberty means in the context of each case as we explore its deeper and deeper meanings. And meaning takes into account our national experience.) Dylan is more like William Brennan: the Constitution is an organic document that changes in each era. (we have to adapt the Constitution to the modern world) Diamond is like the originalists (more Hugo Black than Scalia): the Constitution never changes, period. (Unless the framers envisioned electronic eavesdropping, the fourth amendment does not protect it.)

Republicans potrayed Sotomayor as Bob Dylan but she sounded more like Neil Diamond: Roe was "settled law," foreign law should never be considered and a judge only applies the law to the facts. Personally, I would have appreciated her to be a bit more like Leonard Cohen. It may have been easier to repeat the usual magic words and to gut the wisdom that her experience and our nation's experience brings to bear on the legal issues confronting the Court. But, as Leonard Cohen said in Alexandra Leaving, "Do not stoop to strategies like this... Do not choose a coward's explanation that hides behind the cause and the effect." We don't need Neil Diamond on the Supreme Court singing "Sweet Caroline" for the next 30 years and we don't need Bob Dylan making up the lyrics to "Maggie's Farm" on the fly. We could use a Leonard Cohen, who looks unflinchingly and repeatedly at the same subject, exploring its different aspects but never sparing himself (and us) from the sometimes harsh but necessary truth. Let's hope that in 20 years Sonia Sotomayor's greatest hits will be more Cohen than Diamond.

The Importance of Being White

2009-07-14T12:15:00.004-05:00

Listening again to Senator Sessions attack on Judge Sotomayor. His witlessness leaves me sputtering but this post by Marie Coco on Alternet captures what is going on:

"It presumes that the white male experience is the only authentically American experience, and therefore the only one that could possibly be unbiased. Whatever predispositions or inclinations these men bring to the law are the valid ones. After all, they are not hampered by some silly notions they may have picked up along the way had they lived their lives as women or as members of minority groups."

Sadly, Judge Sotomayor has to engage in this disingenuous ritual where she must deny what everyone knows: that our experiences influence the way we think. Does anyone seriously believe that the Equal Protection Clause would have provided legal protection to segregation until 1954 if African-american judges had been on the Supreme Court? Or that a mixed gender Supreme Court would not strike down gender discrimination until the 1970's?

Sessions nomination to the federal bench was rejected in 1986 because of racially insensitive remarks. What did he say? Well, he thought the KKK was OK until he found out some members smoked pot, called his african american subordinate "boy" and cautioned him to be careful with what he said to "white folks," wished he could decline all civil rights cases, called the NAACP and ACLU "unamerican" and said they forced civil rights "down the throats of people," and called a white lawyer who prosecuted voting rights cases a "disgrace to his race." And a person with this record presumes to lecture Judge Sotomayor and the rest of us about prejudice?

Wisconsin Diploma Privilege and The Dormant Commerce Clause

2009-07-14T09:43:00.001-05:00

7th Circuit reinstates the case challenging Wisconsin's diploma privilege.

The Lie About Judge Sotomayor's Reversal Rate

2009-07-14T08:25:00.003-05:00

Yesterday Senator Kyl repeated the right wing talking point that Judge Sotomayor's reversal rate by the Supreme Court is a problem. Adding the Ricci case, the Supreme Court reversed 4 of the 6 cases in which she participated that the Court reviewed. Sounds bad, eh? But like much of the slime thrown her way this, too, is not what it seems.

The truth is that most cases decided by the Court of Appeals don't get to the Supreme Court because the court hears only a select few. And of those cases that get there, about 75% are reversed. The Court picks cases when the Courts of Appeals have not agreed. The Court's decision resolves these conflicts and sets precedent for the Courts of Appeals to follow. By this measure, then her reversal rate she's doing better than the average judge. Even if there were some merit to her "alarming" reversal rate, her record shines when compared to Justice Alito's 100% reversal rate when he was nominated by President Bush.

Here is a snapshot of her judicial record: she heard over 3000 cases on the Court of Appeals. She wrote 380 opinions. 5 (6 counting Ricci) were heard by the Supreme Court. 3 (4 counting Ricci) were reversed. So her reversal rate is either 66% (4 out of 6), still less than the average or less than 1% (4 out of 380). And if we only count civil cases, her reversal rate is 4 out of 150.

To use a baseball metaphor (like the Senators), would you refer to Ty Cobb's .366 lifetime batting average- an astounding achievment - by saying that he made an out 64% of the time. A batting average only has meaning in reference to the standard that others have achieved. Thus, most players NEVER hit over .300 so when a player does, it is recognized as exemplary. Similarly, a 60% reversal rate means nothing unless it is put into the context of overall reversal rates.

In his usual thorough way, Nate Silver shows us how to make sense out of these numbers. And for a thorough analysis of her opinions, see the SCOTUS blog.

Who's a Judicial Activist?

2009-07-13T12:18:00.000-05:00

Interesting piece from 2007 on which Justices are the most and least activist: Most Neutral = Kennedy; Most Restrained = Breyer; Most Partisan = Thomas, Most Activist = Scalia.

Judicial Activism Is a Meaningless Concept

2009-07-13T10:11:00.000-05:00

There will be much huffing and puffing during Judge Sotomayor's confirmation hearings about "Judicial Activism." The problem is that it is a meaningless concept. Conservatives have adopted the label to mean any so-called liberal decision. They contrast "true" judging with "activist" judges who ignore the "true" meaning of the Constitution and simply impose will on the country.

The real question is deference to the political branches. How much leeway will a judge give the democratically elected branches? Will Judges second guess them or will they give them wide berth to make decisions, even if those decisions are bad ones? Is it activism to overturn Congressional statutes because the Court did not think Congress made a good enough case for the law? And where is the line between deference and abdication? During the Separate but Equal era was the court simply deferring to the political branches or abdicating their role to enforce the Equal Protection clause?

Deference, especially to Congress, has been the standard for most of our history. New Deal liberals leveled the activism charge against conservative supereme court justices who blocked hundreds of progressive state and federal laws. The Roosevelt appointees deferred to Congress but became increasingly vigilant about Individual rights issues. The Warren Court completed this transition giving Congress (and the states) virtually free reign in economic & social matters but closely monitoring their infringements on individual rights. Old time New Dealers and conservatives joined cause in attacking the court for its Judicial Activism. Since then, the definition has hardened along ideological lines. Conservatives see activism in individual rights cases - like Roe v. Wade - while liberals see activism in the new federalism cases - like Lopez and Morrison.

UC Irvine and Innovation

2009-07-10T16:47:00.000-05:00

One of my students (@msalorio) asked me on twitter (@jmdipippa) what I thought of UC Irvine Law School's approach to legal education. My answer: I like most of what they are doing. Here is how they describe what they're doing. What I like: the idea that an innovative curriculum that focuses on experiential learning and on public service does not come at the expense of scholarship and reputation. Indeed, if they accomplish their goal of being ranked in USNEW's top 20, there is hope for the rest of us! It may mean that law schools do not have to be clones of Langdell's 19th Century Harvard. Rather, we can be well-respected in the academic world and in the legal practice world and that we can educate students to be lawyers with apology. I also like the ambitious goal of a tuition-free law school.

BTW, lots of good stuff on the Legal Innovation Blog including a discussion of UC Irvine.

The Future of Legal Education

2009-07-10T12:27:00.000-05:00

Notice this provocative article from the ABA Journal: "Are Law Schools Like GM? Why Profs Should Mull End of Salad Days" discussing Indiana University Law Professor William Henderson's blog post. Henderson wonders whether law schools have GM's problems: complacency and a sense of invincibility. The problem is that, unlike medical or business schools, law schools don't address the problems of modern practice and, consequently, the legal profession does not look to them as a valuable resource except to produce fresh bodies to inhabit spots on the Associate track. Couple that with students' rising debt loads and a shrinking market and you have a crisis (or a disaster) waiting to happen.

I want to take the GM metaphor a little farther. GM ignored its competition, refused to innovate, and was content with short term profit. While Toyota and Honda were building small, fuel efficient and reliable cars, GM was riding the wave of low oil prices to produce bigger and less fuel efficient and less reliable cars. When short term profits kept rolling in, everything was fine. But when the bottom fell out, GM had no where to go and was too big to move quickly anyway.

Law Schools face an Gm-like environment today: new competitors, changing customer demands (students and employers), and a an antiquated business model. But, as in the past, many of us typically respond to demands for change like GM: we just trot out bigger versions of what we've always done. The future of legal education will belong to those institutions that learn from GM's debacle: adapt or die.