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BlackProf Blog

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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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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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Miers, Frum, Congress, and Respect

miers.jpegAt National Review, David Frum’s criticms of the Miers nomination continue apace. Frum is now discussing John Fund’s op-ed from yesterday, which focused on a conference call where religious leaders were told about Miers’ alleged beliefs about Roe v. Wade. If true, this creates a number of potential problems. Frum notes one particularly salient problem:

If Fund is right, the White House was acting in such a way as to persuade a group of religious leaders that they were being given more information on a nomination than would be given to the US Senate.

Such behavior, if true, would be inexcusable. Either the White House is giving religious leaders greater access to nominee information than Congress — which would be outrageous. Or the White House is simply letting religious leaders think (wrongly) that they’re getting more information than Congress — which would be evidence of blatant hypocrisy, dishonesty, and deep contempt for its own supporters. Neither option looks good for the White House.

Probably the best way out is to hang the two call participants (who allegedly knew Miers’ preferences) out to dry, painting them as rogue agents or loose cannon loudmouths. But can that be done — to two close Miers associates — without negative consequences for Miers herself?

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A Day in the Life of Blogging

Wake up

Check email

Check blog – see if co-bloggers have posted anything and read comments to posts

Check site meter stats – see how many people visited and who’s linking to the blog

Check Technorati – see who’s linking to the blog

Check out blogs linking to the blog

Check The Truth Laid Bear – see the latest ranking of the blog

Check other blogs for ideas for blog posts

Check news sites for ideas for blog posts

computer-addict4.jpgWrite blog post

Check email

Check blog

Check site meter

Lunch

Check blog

Check email

Check site meter

Check blogs and news websites

Write blog post

Check Technorati again

Check email again

Check site meter again

Dinner

Check blog

Check other blogs

Think of ideas for tomorrow’s blog posts

Check email

Check Technorati

Check out blogs linking to the blog

Check site meter

Bedtime

Repeat the above for life . . . .