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Roundup

Some posts of possible interest around the legal blogosphere:

Eugene Volokh points out a funny obit. (This seems to be part of a semi-regular semi-series; see funny star footnotes).

Will Baude ruminates about airborne citrus and constitutional interpretation.

The Notes Editors apparently gave Heidi Bond slightly more than two minutes.

Various parties weigh in on Schelling’s Bank-of-Sweden prize:

-Brian Leiter reminds us all that it’s not a Nobel, no matter now what the VC says.

-Drezner takes issue with Slate’s criticism of Schelling’s Vietnam involvement.

Christine Hurt is becoming Dagny Taggart. In related news, Gordon Smith has invented an unbreakable new metal. . .

Ethan Lieb thinks reprints are obsolete; Ben Barros disagrees.

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Fictions, Concessions & Genossenschaft

Kaimi’s post about corporations and constitutional rights has provoked a response from Will Baude, who points out that at the time that the Fourteenth Amendment was passed it is not as though considering corporations as persons was beyond the pale. My own response to this issue (aside from a hearty “What Will said!”) is — in the best tradition of legal academia — self citation. Consider the following gem from “Corporations and Autonomy Theories of Contract,” forthcoming in the next issue of the Denver University Law Review:

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Must see TV…

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Normally, I think that blog posts that simply link to another blog and say “hey this is cool,” are pretty dumb. On the other hand, this is a really cool post. Check it out!

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Preparing for a Bird Flu Pandemic

pandemic3.jpgBird flu has now captured the attention of the news. While I’m generally not one to become overly concerned with armaggedon scenarios, a flu pandemic strikes me as a particularly realistic and frightening possibility. Pandemics occur periodically, and the experts all seem to be extremely concerned.

I believe that it is important to view this as a national security issue. National security has become almost synonymous with the protection against terrorism, and we assess the success and failure of government officials in keeping us secure primarily with terrorism in mind. But national security should also be understood as the ability to prevent and respond to natural disasters and outbreaks of disease. The destruction terrorists might cause is often small when compared to what nature can do. According to Newsweek:

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The Law of Harry Potter

potter5a.jpgWhat are the criminal consequences of a curse? Can a person commit a tort by unfair Quidditch play? How can the law of the Muggles be harmonized with the law of the Wizarding World? For a long time, attorneys struggled over these issues without much legal guidance. But that problem has now been fixed by Aaron Schwabach (law, Thomas Jefferson), who has posted an article on SSRN analyzing the law of Harry Potter: Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. According to the abstract:

The astounding success of the Harry Potter series of children’s fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry’s story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider.

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Sober = Drunk in Washington, DC

wine2.jpgI’m quite in favor of cracking down on DUI, but this story from the Washington Post is really disturbing:

Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

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If only France could file for Chapter 11

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The Economist has a nice article on the Delphi bankruptcy. For those who don’t follow such things, Delphi is the largest car parts manufacturer in the country and it has just gone into Chapter 11. In doing so, it has availed itself of a process that would do much to help France out of its current economic malaise. Delphi in up against pension obligations entered into with union negotiators long ago. It thus has essentially the same problem as France — back in the day it promised more than it could realistically deliver. The difference is that ultimately Chapter 11 gives Delphi a way of rewriting its contracts in an orderly fashion. France has no such luxury.

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Originalists Take Over The Nation

Many progressives are opposed to the Harriet Miers nomination. Thus, it was no surprise to see an article in The Nation suggesting that she be quizzed about her beliefs, and that she be pressed not to extend the rights of corporations. What was surprising was the fact that the article, by Morton Mintz, relied on the bizarre adoption of a originalist interpretation of the Constitution. Mintz’s argument — which was mostly a plain-vanilla critique of corporate rights — contains (and relies on) this gem:

Who was the “person” whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect? (The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868–soon after the end of the Civil War–proves this.)

From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.

Yes, that’s right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868. This is the interpretive methodology known as originalism — a school of thought more likely to be associated with the National Review than The Nation.

If the amendment is read in an originalist way, Mintz is right that it would probably not cover corporations. The original understanding of the Fourteenth Amendment was that it was to help slaves; that’s more or less where the original understanding ends.

Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.

Originalist arguments, similar to that Mintz employs in his article, are nothing new. A nearly identical argument — that the Fourteenth Amendment was meant to protect freed slaves, no one else, and that no further rights should be drawn from it — was made by Robert Bork in The Tempting of America. Advocates like Bork, taking the originalist methodology to its logical conclusion, have argued that originalism invalidates a whole host of civil rights and liberties.

Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?

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Juris Novus

jurisnovus.jpgWe are pleased to announce that Concurring Opinions is now a feed on the terrific resource site, Juris Novus. Juris Novus is now posting links to the headlines of our most recent postings.

Juris Novus also contains the headlines of postings at some other great legal blogs such as The Volokh Conspiracy, Leiter Reports, Lessig Blog, The Becker-Posner Blog, PrawfsBlawg, Conglomerate, JD2B, and more.

Juris Novus is part of the Meta Novus network, a group of sites that provide headlines from blogs about law (Juris Novus), technology (Machina Novus), politics (Polis Novus), science (Scientia Novus), and more. These are very useful sites, and they are definitely worth visiting.

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Do We Really Want Perfect Law Enforcement?

speeding3.jpgI just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

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