The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Thursday, November 24, 2011

Video Games for What Ails Us
Mike Rappaport

This is cool.  I hope it works.

November 24, 2011 | Permalink | Comments (0)

Wednesday, November 23, 2011

Climategate 2.0: New E-Mails Rock The Global Warming Debate - Forbes

A new batch of 5,000 emails among scientists central to the assertion that humans are causing a global warming crisis were anonymously released to the public yesterday, igniting a new firestorm of controversy nearly two years to the day after similar emails ignited the Climategate scandal.

Three themes are emerging from the newly released emails: (1) prominent scientists central to the global warming debate are taking measures to conceal rather than disseminate underlying data and discussions; (2) these scientists view global warming as a political “cause” rather than a balanced scientific inquiry and (3) many of these scientists frankly admit to each other that much of the science is weak and dependent on deliberate manipulation of facts and data.

via www.forbes.com

November 23, 2011 | Permalink | Comments (0)

Tuesday, November 22, 2011

Uh oh, global warming loons: here comes Climategate II! – Telegraph Blogs

Breaking news: two years after the Climategate, a further batch of emails has been leaked onto the internet by a person – or persons – unknown. And as before, they show the "scientists" at the heart of the Man-Made Global Warming industry in a most unflattering light.

via blogs.telegraph.co.uk

November 22, 2011 | Permalink | Comments (0)

Schlunk: Is a Law Degree a Good Investment Today?

These numbers are bleak. What they say, in plain English, is that with the benefit of twenty-twenty hindsight, two-thirds of the graduates from Also Ran’s institution, four-fifths of the graduates from Solid Performer’s institution, and two-thirds of the graduates from Hot Prospect’s institution will know, as they are receiving their diplomas, that they made what has turned out ex post to be a bad investment!

via taxprof.typepad.com

Yikes.

November 22, 2011 | Permalink | Comments (0)

The Original Meaning of the Equal Protection Clause
Mike Rappaport

I have a post over at the Originalism Blog on this subject.  Here is an excerpt: 

Under this interpretation [which has very powerful evidentiary support], the Equal Protection Clause protects against the failure of the state to protect people from violations of the law.  The focus of the Clause was on the historical evil of state officials, such as sheriffs, who ignored private violence by groups, such as the KKK, against blacks, unionists, and others who the former confederates opposed. [It does not provide protection against unequal laws.] 

The problem is, if the Equal Protection Clause does not provide equality, then what does under the Fourteenth Amendment?  

There are three significant possibilities.  First, Harrison and Green argue that the Privileges or Immunities Clause forbids the states from imposing caste type forms of inequality.  Second, the Privileges or Immunities Clause might grant substantive rights (including certain common law rights) to all citizens of the United States.  Since these substantive rights are constitutionally protected, all citizens would be protected from violations of those rights and thereby enjoy equality as to them.  Third, the substantive component of the Due Process Clause-- which may in fact exist -- may prohibit certain unequal laws.  Moreover, these different sources of the equality right may reinforce one another.  In particular, the second and third sources may work well together.

November 22, 2011 | Permalink | Comments (0)

Monday, November 21, 2011

The Abstract Meaning Fallacy
Mike Rappaport

John O. McGinnis and I have a new paper on SSRN.  It is entitled The Abstract Meaning Fallacy and is forthcoming in the University of Illinois Law Review as part of a symposium on Jack Balkin's book, Living Originalism.  
While the article focuses on Jack's book, it actually is directed at the type of argument that he employs to conclude that the original meaning allows modern interpreters significant discretion over the content of the Constitution -- a type of argument which is employed by many constitutional scholars (both critics and advocates of originalism).

Here is the abstract:

This Article, which was written for a symposium on Jack Balkin's book, Living Constitutionalism, criticizes the principal method that is used to argue that originalism allows modern interpreters significant discretion. The key move in this argument occurs when an interpreter claims that possibly abstract constitutional language has an abstract meaning. Clauses with abstract meanings allow interpreters to exercise significant discretion over their content. Consequently, interpreters can claim to find modern values in these clauses and still argue that that they are respecting the original meaning. 

We examine this interpretive move and argue that two well-known theorists who employ it, Ronald Dworkin and Jack Balkin, commit a fallacy – what we term 'the abstract meaning fallacy.' This fallacy occurs when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities. While possibly abstract language might turn out to have an abstract meaning, this result does not exhaust the interpretive possibilities. As we show with examples, the better interpretation of such language considered in context might turn out to have either a concrete meaning or a general meaning that is not abstract. 

Ronald Dworkin is not himself an originalist, but he argues that an originalist methodology should lead to abstract interpretations. Unfortunately, Dworkin consistently assumes an abstract meaning without closely examining other possible historical meanings. 

Jack Balkin makes a variety of more complex arguments, but also commits the abstract meaning fallacy. Balkin attempts to support his preference for abstract interpretations by claiming that many constitutional provisions take the form of open-ended principles that allow modern interpreters significant discretion. But Balkin presents little evidence that the Framers embraced such a distinctive method of writing and interpreting a constitution. Balkin also claims that abstract constitutional provisions are necessary to enable politics by allowing political processes to give content to the values that the abstract provisions leave open. But provisions as abstract as he prefers are not necessary to politics, because non-abstract provisions can also allow a significant political sphere. Further, Balkin attempts to support his approach with normative arguments. But Balkin’s normative vision does not comport with that of the actual Constitution and, in our view, is normatively unattractive. Thus, Balkin is no more successful than Dworkin in showing that originalism can be collapsed into living constitutionalism.

November 21, 2011 | Permalink | Comments (0)

If I had been on the interview committee, my first question would have been, "Is your father as much of a dick as he seems?"
Tom Smith

Hmmm.  I admit that Crimes and Misdemeanors (in its various guises) is a pretty good movie(s). However, their power turns on being able to present the sociopath's point of view without apology, which as a matter of armchair psychology anyway Mr. Allen evidently is.  Of the pedophile variety. Still I would be the first to admit he is our most talented and amusing sociopathic pedophile.  Or most amusing and second most talented after Roman Polanski.  Maybe there should be a separate Oscar for this category.  Mia Farrow, OTOH, seems like an angel to me, but who knows.  Maybe it's just an act.

In other news, lots of happy new Rhodes Scholars hail from elite colleges . . . I get the feeling much has changed since I was there back around the time of the Glorious Revolution.  Better food and facilities, more effort to prevent Yanks from being socially isolated, and so forth.  More sexual equality.  

Stanford gets five.  In my view there's a preferential attachment phenomenon that goes on in programs like this that needs to be guarded against, a rich getting richer thing that leads to the goodies concentrating themselves.  Kinda looks like Stanford is forming itself into a monster node.  This problem will soon be corrected by everybody in California who has nothing to gain by being on Stanford's good side standing up against it.  Sorry, still a bit sore from the big game.  I'm a golden bear fan now.

November 21, 2011 | Permalink | Comments (0)

OMG I agree with Paul Krugman
Tom Smith

I'm gobsmacked.  Has he always thought this way about the Euro?  I have a weird feeling he might be a person of rodentality leaving the ship.  Anyway I think his characterization is accurate.  And it really is a dumb idea built and now preserved on the backs of little people.

November 21, 2011 | Permalink | Comments (3)

Sunday, November 20, 2011

Another nutty idea from YLS
Tom Smith

This is silly.  Ahkil Amar and Ian Ayers are saying Yale Law School should pay some of its students to quit.  This is trendy, but, not sensible.

Look, clearly some people go to law school who shouldn't, but very few if any of them go to Yale. The school was very difficult to get into 20 years ago; now it's just about impossible.  You need grades and test scores not statistically different from perfect.  On top of that, you need to have distinguished yourself in some other way, like having a PhD in history or having reformed a third world country.  I doubt very much YLS grads are having trouble finding jobs.  The calculation for somebody who gets into Yale in entirely different from the guy who just manages to slip into Big State U and has to borrow every dime (YLS also has generous financial aid).

I have the highest regard for both Ahkil and Ian as scholars, but this looks more about getting all over a hot new idea than offering advice students should actually follow.

Of course, borrowing money to go to Yale and then finding yourself working for Big Law, and hating it, just so you can pay back loans -- that may be a life course you want to avoid, but that's true whether or not there is a higher ed bubble.

November 20, 2011 | Permalink | Comments (1)

Thursday, November 17, 2011

The Republican Contenders
Mike Rappaport

I fear that Ann Coulter has this right:

Instead of sitting on our thumbs, wishing Ronald Reagan were around, or chasing the latest mechanical rabbit flashed by the media, conservatives ought to start rallying around Romney as the only Republican who has a shot at beating Obama. We'll attack him when he's president.

That the House has a significant Tea Party contingent means that the House will not simply follow a moderate Romney agenda. 

November 17, 2011 | Permalink | Comments (5)