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Google+Theodore M. Porter, in Trust in Numbers, argues that the American distrust of elites–and of government itself–has led to a focus on “mechanical objectivity,” or rules to make decisions. In many ways similar to what American jurists call “procedural due process,” the idea of to diminish the necessity of personal judgement in favor of predictable, “transparent” processes and thus lessen the number of disputes over the outcomes of a bureacratic decision.
law
The problem of expertise in a liberal democracy
If free discussion and debate is core to liberalism–as Turner, backed by old-school liberal theorists like John Stuart Mill, argue–then anything that interferes with public debate and decision-making also moves a society away from liberalism (note, once again, that this is not the opposite of conservatism in the modern sense).
Problems with treating privacy as a property right
One approach to dealing with privacy would be to extend property rights to cover information or personal data, rather as copyright, patents, trademarks, and other forms of intellectual property extended physical rules into the realm of the intangible. While there are undoubtedly benefits to this, there are limitations as well
Privacy and the First Amendment: privacy as property?
In Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief.
The rule of law in Michigan
Should a state legislative body be insulated from judicial scrutiny of its “internal” processes? Is ignoring actual vote counts, and simply declaring something to have “immediate effect” sufficient to make it so in the state of Michigan? What is the relationship between the three branches of government?
Freedom to contract at the end of the nineteenth century
In Kermit Hall’s words, the nineteenth century saw the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97) The early twentieth century continued this–at least until the Great Depression and Franklin Roosevelt’s New Deal forced the court to reconsider.
Post-war contract law in the nineteenth century
In many respects, the so-called “black codes” put in place in the South immediately after the Civil War exemplify the potential extremes of nineteenth-century contract law.
Reforming government regulations: Stephen Breyer’s technocratic solutions
In Breaking the Vicious Circle, Justice Stephen Breyer tackles the problem of regulation and risk in the American context: “Justice Breyer identifies several systemic problems that plague the regulatory process in the United States. He discusses how public (mis)perceptions, congressional (over)reaction, and technical (un)certainty create a “vicious circle” that increasingly undermines the legitimacy of the regulatory process.”
If the Fourteenth Amendment didn’t exist, could Obama still be President? (Yes)
Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational. A good example of this is the lawsuit Gordon Warren Epperly filed in Alaska challenging President Obama’s inclusion on the 2012 presidential ballot. It shows a fuzzy grasp of the law, legal terminology, logic, and history (a little reading of case law is a dangerous thing!), but pointing out some of its flaws can help illustrate these concepts.
Federal vs. State Power in Antebellum America
Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).
Lecture on 19th-Century Legal History Before the Civil War
I gave a lecture the other day to an undergraduate history class on the topic of 19th-century legal history, mostly before the start of the Civil War (with hints to the future, of course). This is hardly comprehensive–I only had 50 minutes!–but I thought I’d share anyway.
Ben Bratman on the First Amendment and Brandeis & Warren’s “The Right to Privacy”
Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy.”
What is the First Amendment?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The (scientific) development of common-law precedent
One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.
Daniel Solove’s six general types of privacy
Daniel J. Solove’s 2008 book, Understanding Privacy, attempts to characterize and understand the complex and contradictory modern views and approches to privacy. For Solove, “[p]rivacy concerns and protections do not exist for their own sake; they exist because they have been provoked by particular problems” and it “is protection from a cluster of related problems that impinge upon our activities in related ways.”
Narrative, free will, and legal responsibility: reading Cathy Gere reading Michael Gazzaniga
Michael Gazzaniga suggests that his finding that we construct post-hoc narratives potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them–our decision-making moral sense, as it were–only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”
