Jan 14, 2013

White House Opposes Petition for SC, NC, AL, TN, GA, FL, TX, LA, Secession

Jon Carson, the Director of the Office of Public Engagement was saddled with this important response to petitions seeking the secession of a number states from the Union.

In a nation of 300 million people — each with their own set of deeply-held beliefs — democracy can be noisy and controversial. And that’s a good thing. Free and open debate is what makes this country work, and many people around the world risk their lives every day for the liberties we often take for granted.

But as much as we value a healthy debate, we don’t let that debate tear us apart.

Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, “in contemplation of universal law and of the Constitution the Union of these States is perpetual.” In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States.

Yeah, citing Lincoln will not play well to people from South Carolina, North Carolina, Alabama, Tennessee, Georgia, Texas, and Louisiana who want to secede.

Hell, he even cited Texas v. White!

And shortly after the Civil War ended, the Supreme Court confirmed that “[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.”

H/T Justice Willett

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Jan 14, 2013

Extended Deadlines for Harlan Institute FantasySCOTUS Competitions

This year the Harlan Institute is offering three contests: Fantasy Predictions, Fantasy Blogs & Badges, and our Virtual Supreme Court–the grand prize is an all-expenses paid trip to Washington, D.C. for ConSource’s Constitution Day 2013 for the winning team. Teachers–sign up today for our free programs.


Virtual Supreme Court

The Harlan Institute has partnered with The Constitutional Sources Project (ConSource) to host the inaugural Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct.

This year the competition focuses on Fisher v. University of Texas.

ResolvedIs the Fourteenth Amendment Color-Blind?

The members of grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration on September 17, 2013. All briefs are due by February 28, 2012.


Fantasy Predictions

FantasySCOTUS Predictions challenges students to make predictions about pending Supreme Court cases and write analytical blog posts exploring the different constitutional issues in the cases.

After studying cases currently pending before the Court with these lesson plans, students will make predictions about how each of the nine Justices will vote. Based on the individual student predictions, each class will submit a set of group predictions for each case. All predictions will be due by March, 31, 2012.



Fantasy Blogs & Badges

In addition to making predictions, each class will write a series of analytical blog posts for each case.  By signing up your class for FantasySCOTUS, you will automatically receive a free WordPress blog hosted at the Harlan Institute. All Blog posts will be due by March 31, 2013.

The winner of the FantasySCOTUS Blogs & Badges Contest will be determined based on the class with the most points from badges on May 15, 2015.

The top class in the United States will be awarded the “Chief Justice” Prize, an iPad.

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Jan 14, 2013

Breyer Still Perpetually Dissenting From Apprendi

From oral argument today in Alleyne v. United States, Justice Breyer continued to perpetually dissent from Apprendi, a case that gutted the Sentencing Guidelines he helped write.

JUSTICE BREYER: I mean, in the one case you can say all that Apprendi did — it never should have been decided; I mean, some of us thought that — because in fact -­

JUSTICE SCALIA: I wonder who that could have been.


Get over it SGB.

I have proposed a rule against perpetual dissents. On the topic, Justice Kagan had interesting thoughts on the purposes behind dissenting.

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Jan 14, 2013

Did Justice Thomas Speak At Oral Argument?

Update: From the Transcript, THOMAS DID SPEAK:

JUSTICE SCALIA: She was a graduate of Yale law school, wasn’t she?

MS. SIGLER: She’s a very impressive attorney.

JUSTICE SCALIA: And another of his counsel, Mr. Singer — of the three that he had — he was a graduate of Harvard law school, wasn’t he?

MS. SIGLER: Yes, Your Honor.

JUSTICE SCALIA: Son of a gun.

JUSTICE THOMAS: Well — he did not -­ (Laughter.)

MS. SIGLER: I would refute that, Justice Thomas.

JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale?


JUSTICE SOTOMAYOR: Or even just passed the Bar?


Holy Cow!


SCOTUSBlog seems to think so.

[tweet https://twitter.com/SCOTUSblog/status/290874379296972800]

And Art Lien got a pic!


[tweet https://twitter.com/Courtartist/status/290869726740111361]
[tweet https://twitter.com/policyjunkie/status/290881533764567040]

[tweet https://twitter.com/MikeScarcella/status/290879862053408769]

[tweet https://twitter.com/LarryAdamSmith/status/290879669656498176]

[tweet https://twitter.com/SupremeHaiku/status/290878857836384256]

[tweet https://twitter.com/Courtartist/status/290869726740111361]

Update: It seems Justice Thomas took a pot shot at an Attorney who went to Yale.
[tweet https://twitter.com/policyjunkie/status/290889100112822274]

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Jan 14, 2013

Keynesians v. Austrians on The Simpsons

Mr. Burns assembles a team of distinguished economists to determine the appropriate rate hike. He pins plausibel rates on their backs. To decide, he will use “unfettered free-market principles to arrive at a number.” Of course, Burns (as he often does) releases the hounds. The hounds proceed to chase and maul the economists.

And–the best part. Burns quips: “Notice how the Keynesians climb trees, while the Austrian school economists clime rocks.”


Austrian School of Economics mentioned on The Simpsons from Harrison Fischberg on Vimeo.

I would note that this scene is somewhat reminiscent of the Bailout game on South Park.

H/T Steve H. on Facebook.

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Jan 14, 2013

When Blogging Worlds Collide: Volokh Blogs on Balkin

Woah! This is the biggest crossover since the Jetsons Met the Flinstones.

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Jan 14, 2013

Taleb on the Antifragility of “Judge-Based Law”

The same bottom-up effect applies to law. The Italian political and legal philosopher Bruno Leoni has argued in favor of the robustness of judge-based law (owing to its diversity) as compared to explicit and rigid codifications. True, the choice of a court could be a lottery— but it helps prevent large-scale mistakes.

I use the example of Switzerland to show the natural antifragility of political systems and how stability is achieved by managing noise, having a mechanism for letting it run its natural course, not by minimizing it.

Note another element of Switzerland: it is perhaps the most successful country in history, yet it has traditionally had a very low level of university education compared to the rest of the rich nations. Its system, even in banking during my days, was based on apprenticeship models, nearly vocational rather than the theoretical ones. In other words, on techne (crafts and know how), not episteme (book knowledge, know what).

Taleb’s discussion mirrors what Hayek’s discussion in the Constitution of Liberty, Law, and Legislation, that the common law evolved as a method to protect individual liberty.

Once I’m done with this ACA case I really need to turn back to my work on Taleb, Hayek, and Federalism. I think it will be pretty cool.

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Jan 14, 2013

Thomas Jefferson and John Marshall on Native Americans

Thomas Jefferson, Declaration of Independence:

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

Chief Justice Marshall, Johnson v. M’Intosh:

But the tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

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Jan 14, 2013

My New Syllabi For Property I and Property II This Semester

The course home page for Property I is here, and the syllabus is here. Property I covers acquiring property, future interests, estates, and leaseholds.

Perhaps my nerdiest contribution to this semester was to time our coverage of same-sex marital property for the day after oral argument in United States v. Windsor. I had to juggle some stuff around, but I think it will be worthwhile.

I am also covering the Case of the Speluncean Explorers (which I have taught before) on the same day that we do Pierson v. Post. I think the students will appreciate it, as it provides a nice overview of how law operates in the absence of positive law. This provides a nice foray into natural law, economic efficiency, and formalism/functionalism, all issues that are discussed in Pierson (as I wrote about in this article).

Plus, this semester I get to use more props. I purchased this fine fox from Amazon. I also purchased a game of Pickup Sticks to represent my bundle of sticks. Hopefully they’ll work for the class.

And, in case you were wondering, I will teach the Rule Against Perpetuities, but not test it. This is one better than my outstanding Property Professor, Ilya Somin, who didn’t teach it at all (his reasoning is here).

The course home page for Property II is here, and the syllabus is here. Property II covers Adverse Possession, Land Transactions, Title Assurance, the Law of Nuisance, the Law of Servitudes, Zoning, and Takings and Eminent Domain. This is largely the same syllabus I used last semester, and I think it went pretty well. You can view my archived Property II course from last semester here. Lots of fun videos 🙂

Because my Property II class starts on Tuesdays and Thursdays from 9:00 CST/10:00 EST, I will be in an interesting position when SCOTUS opinions are issued. I very well may take the first few minutes of class to parse it and analyze it in real time. Because I stream all my classes live, this may provide those interested with the first-real-time look at a case. Fortunately  the class ends in April, so I’ll be free as a bird for the big cases in June.

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