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When Google Is King

google3.jpgWe are entering the age of the Google Empire. As Randy Picker at the Chicago Law Faculty Blog notes in a review of John Battelle’s The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture:

Microsoft was the king of the personal computer, and the Windows Desktop represented the most valuable real estate available. The rise of search has changed that. Search is now the front-door to the Internet, and the documents located there are often more important than those that sit on your computer. Google, not Microsoft, is defining the new interface to the Internet.

Babies are now being named after Google.

Google is filing for patents for techniques to target ads based on search results.

Google has recently added features such as Blog Search, Instant Messaging, Email, Video Search, Maps, and more. There’s also the much discussed Google Print in the works.

And Google is now unwittingly entering into international affairs, finding itself in the middle of the squabble between China and Taiwan.

All roads, it seems, are leading to Google.

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Update on Zywicki, Measure 37, and Quotations

In a prior entry, I crticized the use of a quote in a Volokh.com post by Todd Zywicki. I suggested that the quote was suspect, given a number of factors.

Investigation has revealed that the quote is actually drawn from a real e-mail. (I have received a copy of the e-mail in question). To the extent that my earlier post may have implied that the quote Zywicki used was fabricated, I was wrong on the facts. Given the factual support for the existence of this particular quote, some of my rhetoric was overbroad and inappropriate. I posted too quickly, and should have done further investigation myself before making some of my statements.

That said, I believe that many of the underlying concerns of my original post remain accurate, for reasons that I’ll state below.

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14

Is There One Best Method of Constitutional Interpretation?

constitution4.jpgAlthough the Supreme Court feels some pressure for consistency via precedent, it doesn’t seem to strive at all for consistency in interpretive approach. Thus, the Court’s opinions are all over the map when it comes to the method of constitutional interpretation. Sometimes the Court reads the Constitution broadly and dynamically; sometimes it interprets the Constitution narrowly; sometimes it becomes a textualist; sometimes it becomes obsessed with original intent. And all this can happen in the same year!

When it comes to interpreting the Constitution, the Court will pay attention to precedent as to the substantive meaning of a constitutional provision, but it will often repeatedly shift around in its interpretive method. There seems to be little attempt to develop a precedent for the appropriate method of constitutional interpretation. Institutionally, why does the Court strive for consistency with regard to substance but not consistency with regard to method?

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BlackProf Blog

blackprof.jpg

BlackProf, a new blog created a few weeks ago, has quickly become a must-read in the blogsophere. My colleagues, Spencer Overton and Paul Butler are blogging there, along with a very distinguished group of professors from other law schools. And they’ve recently had a wonderful group of guests, including Michelle Adams (my former colleague from Seton Hall Law School), Congressman John Conyers, and Richard Delgado. Recent topics include school vouchers, the neo-Nazi march in Ohio, journalists and security clearances, race-based medicine, the NBA’s new dress code, affirmative action, law school diversity, and voting rights.

So if you don’t already read it, be sure to check out BlackProf.

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Paging the Department of Bogus Quotes . . . there’s a Mr. Zywicki here to see you

Over at the Volokh Conspiracy, Todd Zywicki discusses Oregon’s Measure 37, criticizing a “direct quote” from an alleged Measure opponent:

On Friday, a judge overturned the measure as unconstitutional under Oregon’s state constitution. Tom quotes one of the lawyers who brought the action to overturn the law:

I will put a couple of enlightened attorneys up against a million Oregonians any day, since the masses do not make right in this Republic, no matter how many you stack up against the wall!!

Frankly, I’m surprised at Zywicki’s unreserved use of a “direct quote” that looks very suspicious on the surface, and that gets no better upon investigation.

UPDATE: I have received new information about the source of the quotation in question. At least some of my assumptions were factually incorrect, and I will post an updated entry shortly. See here for my updated entry.

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10

What Exactly Does “Legislating from the Bench” Mean?

judge2a.jpgIn the discussions surrounding the recent Supreme Court appointments, it seems that the big judicial no-no is to “legislate from the bench.” Orin Kerr has an interesting post about the ambiguity of this phrase as used by the White House. What exactly does “legislating from the bench” mean?

Currently, the phrase “legislating from the bench” means little more than “I know it when I see it.” Despite being thrown about rather vaguely and carelessly, the notion of not legislating from the bench appears to be based on a particular approach toward constitutional interpretation, one that I will call the “principled conservative process-based approach.” By “process-based,” I am referring to conservatives who seek to articulate an approach toward judging–a method–not just a set of results they desire for particular cases.

So what is the method? As I understand it, the method involves a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.

Far too often, the conservative process-based approach is thought and spoken about with Roe v. Wade in mind. But I wonder what applying the conservative process-based approach would have meant for some of the other famous Supreme Court cases of the past century. Consider the following cases:

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A Reply to Richard Epstein on Genetic Testing

dna6.jpgIn his first post to the relatively new Chicago Law Faculty Blog (which has turned out to be a really interesting blog by the way), Professor Richard Epstein argues against my recent post about genetic testing in the workplace. Epstein disagrees with my general view that it is better to restrict employers from using genetic information in making employment decisions.

epstein.jpgEpstein’s argument is based in part on his view that privacy is a form of misrepresentation, tantamount to a kind of fraud by concealing disreputable and harmful information. In this regard, he agrees with his colleague, Richard Posner, who makes a similar argument. If a person knows he will drop dead in a month from a fatal disease, it would be fraud to deliberately conceal this information on a life insurance application. So why not when seeking employment, Epstein asks, since employers often invest heavily in training a person?

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In the Annals for Dumb Criminals

crackhouse2.jpgTip: If you run a crack house, don’t put up a sign that says “Crack House” when you’re open for business.

According to the article:

Memphis police say brazen drug dealers are behind bars after a sting operation called “Operation Blue Crush”. All is quiet at 3293 Rosamond. That’s because the alleged gang members who took over the house are in jail. Police say the suspects were so bold they advertised the fact that this was a crack house. When they were open for business, they’d flip an address sign over that read “Crack house.”

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The Philosophical Significance of the Repo Man

It is time to consider a much neglected topic in legal thought: the philosophical significance of the repo man. Aside from providing the grist for cult movies, the repo man also poses some very basic questions about the nature of the social contract and the autonomy of private law.

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