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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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57% of Americans Google Themselves. Is it really that low?

May 28th, 2010

From CNN:

About 57 percent of adult internet users in the United States said they have entered their name into a search engine to assess their digital reputation, according to a new Pew Research Center study“Reputation Management and Social Media.”

That’s a significant increase since 2006, when only 47 percent of adult internet users said they had looked their name up on a search engine. The findings show “reputation management has now become a defining feature of online life,” the study says.

I don’t google myself–anymore. A google alert that sends me an e-mail instantly whenever my name is mentioned on the web does the trick much better.

Update: Apparently Ann Althouse also has a google alert on her name. Guess I’m in good company.

Update 2: How did I find that obscure comment from Althouse’s blog? I googled “google alert” and Google showed results from my “social circle.” Althouse is in my social circle, and google linked to that comment she wrote . Oh google. You know what I want to find before even I know what I want to find.

New Article: A Coase Theorem for Constitutional Theory

May 28th, 2010

The title alone made me check out this article from Professor Neil Siegel, which will be published as part of the MSU symposium issue on Barry Friedman’s The Will of the People. H/T Legal Theory Blog

The abstract:

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim – that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion – is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again.

Despite its many virtues, certain aspects of The Will of the People give me pause. For one thing, I fear that the book may fail to fully register the power and potential influence of the particular individuals who sit on the Supreme Court at a given time. If law professors and political scientists may become “so fascinated by the Court as political actor that they [forget] that it is also acted upon politically,” Friedman’s project may be vulnerable to the opposite criticism. That is, the book may under-appreciate the capacity of the Justices to shape social values or otherwise to decide important matters effectively with finality. For another thing, even if I am wrong about the Court’s potential efficacy as a political actor, there remains reason for skepticism that the book has tamed the counter-majoritarian difficulty, at least when the problem is framed properly.

Part I of this essay summarizes Friedman’s main thesis, including his implicit suggestion that the present composition of the Court matters much less than is commonly believed – and may not even matter much at all. Part II offers some reasons to doubt that the substantive visions of the Justices themselves are as relatively inconsequential as Friedman seems to believe. Part III explains why the counter-majoritarian difficulty endures even in the wake of Friedman’s formidable contribution.

And what about the Coase Theorem?

If I am reading Friedman correctly, his logic brings to mind a famous proposition in law and economics, which helped Ronald Coase win the Nobel Prize in economics. The Coase Theorem asserts that individuals bargain successfully unless transaction costs impede them. The primary implication of the theorem is that it does not matter to efficiency where the law places initial legal entitlements so long as transaction costs do not get in the way.28 At bottom, The Will of the People offers a kind of Coase Theorem for constitutional theory: regardless of the way the eventually bargain their way towards an interpretation that reflects their considered judgment as a people. Court interprets the Constitution and initially assigns constitutional entitlements, Americans will eventually bargain their way towards an interpretation that reflects their considered judgment as a people.

Interesting.

SG Corrects Erroneous Prisoner Data Used in Graham v. Florida – That National Consensus Model Just Does Not Seem To Be Working Out

May 27th, 2010

After Justice Kennedy issued the opinion in Graham v. Florida, relying on the “national consensus” model of 8th Amendment jurisprudence, I remarked:

I often joke that I became a lawyer because I couldn’t do math. I guess I’m not the only one.

Well looks like SCOTUS made another counting mistake.

From the BLT:

In an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG’s knowledge, was inaccurate.

The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that “there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes.” In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.

Katyal’s letter focused on the information submitted by Bureau of Prisons in its letter, “of which this office became aware only upon the release of the Court’s decision,” and which was “submitted in response to a confidential request from Court personnel.”

Katyal said that because of “time constraints,” the number of six federal prisoners was arrived at by consulting “automated inmate records,” rather than presentence reports and other documents. Since the decision came down, Katyal said a “careful review” of presentence reports was conducted, leading to the conclusion that “it appears that none of the six inmates listed … is serving a life sentence  based solely on a nonhomicide crime completed before the age of 18.” Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.

In other words, the Supreme Court, on its own initiative petitioned the Bureau of Prisons for information regarding the number of inmates serving sentences of life without parole for juvenile non-homicide crimes. The BOP did not inform the SG’s office, and provided SCOTUS with inaccurate information.After the opinion was issued, Katyal double checked, realized the BOP was wrong, and issued this letter to the Court.

A few comments.

First, what right does the Court have to petition parties for information that was not briefed? This is not a civil law country where the Judge becomes the finder of fact. Rather, Judges should determine questions of law, and on appeal, determine whether the lower court was correct.  Is this common for Courts to look outside the record, and actually ask for info? I always get irked when SCOTUS appoints counsel when the parties are no longer interested in litigating a case. What authority do they have to do so? Oh well. In the words of Mel Brooks, “It’s good to be the king.”

Second, this further proves the flaws of the national consensus model of 8th amendment jurisprudence. In two consecutive HUGE 8th amendment cases, the Court made fundamental counting errors, that impacted huge questions of constitutional law.

Along with Ilya Shapiro, I have written about the fallacy of national consensus in Pandora’s Box in the context of Kennedy v. Louisana, another opinion written by Justice Kennedy.

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care,164 the right to education, or reproductive rights?

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?168 Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

If the Court cannot ascertain such a simple piece of information, how can we possibly expect this model to be anything more than mere window dressing?

Third, and perhaps most importantly, this brings to the fore the fact that the Supreme Court makes mistakes. Kudos to Katyal for making this correction. But I wonder how many other errors are made by the Court in their attempts to elucidate the law and rule on big issues. Think back to Kennedy v. Louisiana. The Court’s mistake only came to light following a blog post! I am glad this admission of error comes from the Government and not the Internet.

Now, will the Court issue a new opinion, noting that this error was de minimis, like they did with Kennedy v. Louisiana? Perhaps we will have another opinion from Justice Thomas.

Back to the Future Part II Win! Real, Working Hoverboard Exists

May 27th, 2010

We’re in the year 2010. Back to the Future Part II takes place in 2015. Where the hell is my hoverboard?

Well some French artist made a semi-functional hoverboard. It works! Just don’t try to evade Griff Tannen on it. I’m not sure if it works on water. Needs power, probably.

Watch till the end when they push the hoverboard to the side, and it wobbles. This single device may have restored all hope I have for the future. And this board is real, unlike some annoying rumors and urban legends from the past.

Hey Google. Get on this. Build a real one. KTHXBAI.

H/T Gizmodo

Justice Scalia Praises Elena Kagan’s Lack of Judicial Experience

May 26th, 2010

From ABC News:

Justice Antonin Scalia, the High Court’s most outspoken conservative, said Wednesday that he likes that the former Harvard Law School dean and Solicitor General is not currently a judge.

“When I first came to the Supreme Court, three of my colleagues had never been a federal judge,” said Scalia who joined the Court in 1986 after being nominated by President Reagan. “William Rehnquist came to the Bench from the Office of Legal Counsel. Byron White was Deputy Attorney General. And Lewis Powell who was a private lawyer in Richmond and had been president of the American Bar Association.”

“Currently, there is nobody on the Court who has not served as a judge –indeed, as a federal judge — all nine of us,” he continued. “. . . I am happy to see that this latest nominee is not a federal judge – and not a judge at all.”

I don’t seem to recall he had anything positive to say about Justice Sotomayor, though I may be mistaken.