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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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When I was your age, the Triceratops was a Dinosaur.

July 31st, 2010

First scientists tell me that Pluto is not a planet. Now scientists tell me that the Triceratops never existed!?! What next?

From the New Scientist:

Triceratops had three facial horns and a short, thick neck-frill with a saw-toothed edge. Torosaurus also had three horns, though at different angles, and a much longer, thinner, smooth-edged frill with two large holes in it. So it’s not surprising that Othniel Marsh, who discovered both in the late 1800s, considered them to be separate species.

Now Scannella and Horner say that triceratops is merely the juvenile form of torosaurus. As the animal aged, its horns changed shape and orientation and its frill became longer, thinner and less jagged. Finally it became fenestrated, producing the classic torosaurus form (see diagram, right).

This extreme shape-shifting was possible because the bone tissue in the frill and horns stayed immature, spongy and riddled with blood vessels, never fully hardening into solid bone as happens in most animals during early adulthood. The only modern animal known to do anything similar is the cassowary, descended from the dinosaurs, which develops a large spongy crest when its skull is about 80 per cent fully grown.

Shape-shifting dinosaurs? OK that is pretty cool. When I was a kid I wanted to be an archaeologist, so I will accept this news that one of my favorite dinosaurs from my youth never existed half-heartedly.

H/T Gizmodo.

Coase Theorem FTW! Wind Power Company pays Residents $5,000 not to complain about noisy turbines

July 31st, 2010

What a perfect illustration of the Coase Theorem from the New York Times of all places:

Patricia Pilz of Caithness Energy, a big company from New York that is helping make this part of Eastern Oregon one of the fastest-growing wind power regions in the country, is making a tempting offer: sign a waiver saying you will not complain about excessive noise from the turning turbines — the whoosh, whoosh, whoosh of the future, advocates say — and she will cut you a check for $5,000.

“Shall we call it hush money?” said one longtime farmer, George Griffith, 84. “It was about as easy as easy money can get.”

What amount of money would make you willing to accept the noise from the turbines? Apparently for some, for $5,000 the price is right.

But not everyone was happy, and some refused to sign:

“The lady that came said everyone else signed,” said Jarrod Ogden, 33, a farmer whose house would be directly opposite several 300-foot turbines once Shepherd’s Flat is completed. “But I know for a fact that some people didn’t. I’m all for windmills, but I’m not going to let them buy me like that. I think they’re just trying to buy cheap insurance.”

Ah the hold-out dilemma. This tells me that $5,000 is too low of a price, and if they want to buy everyone out, they’ll have to increase the price.

Originalist Social Movements

July 30th, 2010

Andrew Koppelman has an interesting piece in the Drake Law Review titled DOMA, Romer, and Rationality. Koppelman argues that while DOMA may have passed the rational basis test in 1996 when enacted, it would not pass the test. Here is the abstract:

It has been objected by many that the Defense of Marriage Act lacks a rational basis because it reflects a bare desire to harm a politically unpopular group. The increasing success of the argument, which has persuaded three federal judges, reveals the hidden normative premises of rational basis analysis, at least whenever that analysis is used to invalidate a statute. Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country’s attitudes toward gay people have evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. In 1996, otherwise reasonable people thought it a pointless waste of taxpayer dollars to look after the basic needs of gay couples and their families. That callousness no longer looks so rational, and increasing numbers are ready to recognize gay relationships. The burden of proof now lies on those who want to defend this discrimination, and it is very hard to articulate a basis for this discrimination that makes sense. The shift is really one of normative priorities. The invocation of “rationality” masks the processes that are actually at work. The changing fortunes of DOMA shows how Constitutional Law develops over time, responding to shifts in the larger culture.

Koppelman also has a brief discussion on the evolution of constitutional principles, relying heavily on Balkin’s concept of redemptive constitutionalism.

Jack Balkin emphasizes the way in which the boundaries of legitimate constitutional argument shift as culture does, so that an argument regarded as crackpot and “off the wall” at one time becomes accepted doctrine later on. Balkin also observes that, because constitutional law is in some respects hostage to cultural shifts, social movements, such as the Civil Rights movement or, more recently, the movement for gun rights, can change the shape of constitutional law.

In practice the meaning of constitutional principles shifts over time. Some constitutional terms, such as “equal protection,” are intentionally abstract, leaving the specification to be worked out by later generations. Mobilized social movements, invoking their own interpretations of those texts, play a legitimate role in determining which specification will ultimately prevail.115 The constitutional protection of sex equality, for example, is the consequence of the feminist movement of the 1970s, which changed the mind of the public in a way that eventually was reflected in the interpretation of the Constitution.116 The triumph of gun rights in District of Columbia v. Heller117 is another example.118

I have written about Balkin’s “off the wall” concept, as well as the importance of “social movements” to developing constitutional law in the context of Randy Barnett’s movement against the individual mandate.

Koppelman notes that this notion of social movements has been very distressing to originalists. I have written critically about this theory in Pandora’s Box.

The idea that social movements shape constitutional law has been particularly distressing to many originalists, who are committed to the idea that the Constitution’s meaning does not shift over time. 119 John McGinnis and Michael Rappaport write, “it is a little difficult to see what is left of a recognizable originalism, not to mention the amendment process, if social movements have such substantial discretion to apply constitutional provisions as they see fit.”120 Steven Calabresi and Livia Fine claim that Balkin’s originalism “substitutes the rule of engaged social movements for the rule of law.”12

But, is an originalist social movement kosher? I argue yes in the sense that it is reaffirming the idea that the Constitution’s meaning does not shift over time–even if the Supreme Court has strayed.

There is a strong social movement afoot today to restore the original meaning of the Constitution, and learn more about how the Constitution was understood by those who ratified it. This type of social movement, I think, is immune to the types of criticisms McGinnis and Rappaport lodge against Balkin’s social movements. Redemptive constitutionalist social movements cannot rely on the text or history of the Constitution (except Balkin’s theories), so they must rely on notions outside of the Constitution to advance their beliefs. In contrast, the originalist social movements–which undoubtedly are trying to influence constitutional law and put stuff “on the wall” that was “off the wall”–at least bears the mantle of grounding that agenda in history.

Moving forward, I think it is important to keep this distinction in mind.

When do Judges Judge? Equality of Rights.

July 29th, 2010

People often get hung up on how judges judge. Richard Posner wrote an excellent book on this question titled “How Judges Think.” I find this topic fascinating. But a fundamentally more important question–a question that must precede the question of how judges think–is “When do Judges judge?” In other words, when do judges exercise their judgment and when do they let others (usually the legislative or executive branch) do the judging for them, and merely rubber stamp that other judgment.

This abstinence from judging is most pronounced when considering political questions. In these cases, the Court finds that a question is reserved to a separate branch of government, and the Court simply ignores the issue. This approach dates all the way back to Marbury, but we have seen it pop up in Luther v. Borden, Baker v. Carr, and elsewhere.

But, the Court does the exact same thing–decide not to judge–in many cases that are not political in nature. I often think of Lee Optical style rational basis review as equivalent to refusing to consider a nonjusticiable  political question. In these cases, the Court is not judging, but is simply leaving the determination of the law to the other branches. I often query whether it is even reasonable to call the rational basis a test at all–it is not a test, but rather an abstention doctrine. At best its a rubber step accompanied by the wave of a magic wand and the sprinkling of some legal talismanic incantations.

What are some of the reasons why rational basis test applies? Generally, when the Court determines that Judges lack the requisite area of expertise, and the elected branches are more suited to make these determinations.

Justice Breyer gave a similar rationale in McDonald:

Unlike the protections offered by many of these same Amendments, it does not involve matters as to which judges possess a comparative expertise, by virtue of their close familiarity with the justice system and its operation

I will assume for the time being that this is a valid rationale. My objection, however, is to question when courts decide to whip out the rational basis test. Courts have no problems wading into the muddied water of intricate antitrust cases, sophisticated patent cases, and some of the most pressing issues of the day, including racial integration, assisted suicide, sodomy, etc. Why do Courts have the expertise to handle these complicated issues, but not other issues awarded rational basis test? The answer, I think, is that the Courts do not like some rights, and are comfortable letting the elected branches handle them.

This is another lens through which I view the concept of equality of rights. Simply put, why are some rights different from other rights?

The Most Dangerous Right

July 28th, 2010

According to the dissenting McDonald Justices of the “least dangerous branch,”  the right to keep and bear arms is unlike all others, and is the most dangerous right. In the words of Justice Stevens the “liberty interest” protected by the Second Amendment is “dissimilar from those we have recognized in its capacity to undermine the security of others,”  and “firearms have a fundamentally ambivalent relationship to liberty.”  According to Justice Breyer, “unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others lives at risk.” But why is the right to keep and bear arms so different?

During the Passover Sedar, it is customary in the Jewish faith for the youngest child at the table to ask a series of Four Questions, that begins with “Why is this night different from all other nights?” In order to grasp the varied opinions in McDonald v. Chicago, as well as our modern conception of rights and liberties, one must ask “Why is this right different from all other rights?”

This is an idea that I will be developing for an article about McDonald (separate from the piece I am co-authoring with Ilya Shapiro and Alan Gura in the Cato Supreme Court Review)

. In short, why are some rights treated differently from other rights?  Why are some rights favored more than others? Implicit in the assignment of a tier of scrutiny is the hidden normative bias that some rights are more worthy of protections than other. Rights given strict scrutiny are important. Rights given rational basis scrutiny are worth nothing.

Much of this distinction in rights boils down to the bifurcating of rights under Footnote Four of Carolene Products. Though as I have argued, the Court has relied quite seldom on this bifurcating principle, and contrary to the assertions of the dissenting Justices, Footnote Four actually counsels a higher level of scrutiny for an enumerated right, such as the Second Amendment.

I tend to think that a right is a right is a right. Perhaps we should strive for “equal rights under law.” I use the phrase “equal rights under law” not to imply that everyone possesses the same rights–that would seem to fall under “equal protection of the laws.” Rather, I use the phrase “equal rights under law” to imply that different rights should be treated equally.

More to come. Soon.