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At Concurring Opinions, Professor Zimmer lists 10 Amendments his 2005 constitution law students students would propose as the the 28th Amendment. They are:

10. A tie:

Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor of gay and lesbian rights.

Repeal of the Second Amendment. This was before Heller but the issue obviously was on the horizon for some. Since both classes used the Chemerinsky casebook that started with the problem of the Second Amendment even before Heller, that might explain the focus. I wonder if the response would be different if the law school was not located in the heart of a major city.

The right to equal education. Each year that I have taught San Antonio v. Rodriguez, a number of students express absolute shock that this is not already a protected individual right. Law students seem to be committed to education, though sometimes their contribution to it might appear a little weak on any particular day.

Constitutional protection for broad campaign finance legislation. Given the way our federal government operates, or fails to, this one is no surprise.

6. Equal protection because of sex or gender. The Equal Rights Amendment still lives in the hearts of some students, despite the expansion of the equal protection clause to cover sex discrimination.

5. A tie:

Make explicit a constitutional right to privacy.

Prohibit the death penalty.

3. Guarantee universal health care. This may just show how long this issue has been on the agenda.

2. Presidential election by direct vote. Bush v. Gore still had impact five years later.

1. Legalize same-sex marriage or civil unions. While phrased somewhat differently, proposals on this topic constituted more than twice as many amendments as the next most popular proposal. Not one proposal was made to restrict same-sex marriage or civil unions.

What would my 28th Amendment be? Better question, what would my 28th-37th amendments look like? See Randy Barnett’s Bill of Federalism, or the Wikipedia page.

1. Disallow federal income taxes (i.e., repeal Sixteenth Amendment), as well as gift, estate, and consumption taxes; allow FairTax; require a 3/5 supermajority to raise or set new taxes
2. Set limits on the Interstate Commerce Clause
3. Disallow unfunded mandates, and conditions on funding.
4. Close a constitutional loophole that allows treaties to override established limits on power
5. Extend free speech consideration to campaign contributions, and to cover any medium of communication (including the Internet)
6. Allow a resolution of three quarters of the states to rescind any federal law or regulation.
7. Establish Term Limits for Senators and Representatives.
8. Provide the President with a line-item veto to balance the budget on any year in which it is unbalanced.
9. Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.
10. Restrict judicial activism by mandating an originalist method of interpretation.

Check out the first in a series of Reason.TV videos about Rand.

[youtube=http://www.youtube.com/watch?v=gRqNV6tNH5c&feature=player_embedded]

Every first year law student knows that Judge Learned Hand of the Second Circuit has the most bad-ass name of any Judge, ever. Even cooler than Judge Friendly.

But that is not his real name!

His real name is Billings Learned Hand. Billings? Really? Like Montana. Ugh.

My legal heart is shattered. From now on, I shall call him Billings Hand. Just doesn’t have the same ring to it.

And, some choice comments from a facebook thread I started:

• You know, I had enough of the crushing of my hopes and dreams from Legal Writing, and you go and post something like this.
• If it makes you feel better, I thought they called him learned hand beacause he was really smart and his last name was hand. Kind of like if he was a judge it would have been judge hand.
• For the first 2 months of lawschool, I wondered why every judge’s first name began with J. E.g., (Hand, J.) Then I realized J. stood for judge. Fail

• Why did you have to reveal that? That’s like telling a four year old about the secret of Santa Claus. Come on Blackman!
• I have to admit, I liked the name too, but isn’t Billings Hand more appropriate for the modern practice of law anyways?
• When he wanted to deny a motion, instead of saying “motion denied”, he would say “talk to the Hand”.
• The above would be funnier if he had served with a judge named face….then we would get “Talk to the Hand cause the Face ain’t listenin”

From SCOTUSBLOG, the January oral argument calendar is set. Most visibly lacking is the McDonald v. Chicago.  But Comstock is set for Tuesday, Jan 12. That’s gonna be interesting.

The Supreme Court on Monday released the list of cases to be argued in the sitting beginning Mon., Jan. 11.  It can be found here.  There will be no afternoon arguments.  The first case of each day begins at 10 a.m.  The day-to-day list of cases on the calendar, with a summary of the issues involved, appears after the jump.

Mon., Jan. 11:

Alabama v. North Carolina (132 Original) — interstate dispute over enforcement of regional pact on disposal of radioactive wastes; responses to Special Master’s report

Briscoe v. Virginia (07-11191) — scope of crime lab analysts’ role in a criminal trial; sequel to Melendez-Diaz on Sixth Amendment Confrontation Clause rights

Tue., Jan. 12:

U.S. v. Comstock (08-1224) — constitutionality of prolonged imprisonment of sex offenders after sentences completed

Abbott v. Abbott (08-645) — parents’ rights under Hague Convention on child custody

Wed., Jan. 13:

American Needle v. National Football League (08-661) — antitrust liability of pro sports leagues for joint commercial activity

Jerman v. Carlisle (08-1200) — legal error as an excuse for violation of debt collection law

Mon., Jan. 18 — Legal holiday; no arguments

Tue., Jan. 19:

Mac’s Shell Service v. Shell Oil (08-240) and Shell Oil v. Mac’s Shell Service (08-372) — franchise operators’ right to sue over non-renewal of contract; cases consolidated for one hour of argument

Granite Rock Co. v. International Brotherhood of Teamsters (08-1214) –federal courts’ authority to interpret labor union contract on arbitration

Wed., Jan. 20:

Berghuis v. Smith (08-1402) — make-up of jury pool to reflect cross-section of the community

Conkright v. Frommert (08-810) — release of workers’ claims under ERISA

From SSRN, The Taking/Taxing Taxonomy (H/T Legal Theory Blog_

Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Essay offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between taking and taxing. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Essay is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles-formalism of rights and strong market propensity-but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Essay explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Essay shows why taxation is considered a “lesser evil” type of government coercion, how the taking/taxing dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

Perhaps more interesting, to me at least, than the discussion between taking and taxing, is the concepts of taxonomy’s in general. Professor Solum plucks these paragraphs:

T he enterprise of legal taxonomy need not be understood as necessarily yielding to formalist or positivist conceptions of law, one in which law purports to be capable of dividing the legal world into neat distinctive categories that simply reflect “objective” legal reality.201 Taxonomies and legal categories are analytically and jurisprudentially essential to maintaining a reasonable level of clarity and certainty in organizing the world around us, developing legal expectations, and understanding the normative and policy considerations with respect to different actors, resources, and legal relationships. And yet, no legal taxonomy can be portrayed as wholly detached from the institutional and normative foundations that stand at its basis.202 Even the allegedly most basic distinctions in law, such as between private and public law, are not “natural” in the sense that these must follow a single formula or that they run across different legal systems irrespective of the governing normative and institutional principles in each one of them. The challenge that a legal system thus faces is to find the appropriate balance between the essentiality of creating a comprehensive taxonomy of legal orderings, while at the same time avoiding the pitfalls of enshrining legal categories as inherently superior to the underlying institutional and normative tenets of the legal system as a whole.

Property law faces particularly intriguing challenges in creating and maintaining such a workable division. As a field of law which sets up the ways in which society orders resources and human relationships around them, property is typified by the fact that entitlements and obligations in regard to resources regularly implicate numerous parties not only as a matter of abstract analysis, but also in social and economic practice.204 Thus, although property is so laden with values and constant moral, political, and societal inquiries,205 excessive ad hocery aimed at attaining resource-specific efficiency, justice, or some other underlying normative goal comes with its own high price tag, since it undermines the broad and relatively straightforward signals that property should send about its core attributes to the large numbers of legal actors implicated by its rules.

One more note is in place here about the nature of legal taxonomy, particularly in property law. A point that is often overlooked in the jurisprudential debate over the enterprise of legal taxonomy is that the link between the number of legal categories and the simplicity of the legal system is not straightforward. The question is not only how many different types of legal categories we have, and how easy it is for us to classify a particular event or situation as falling within a specific category, but also what is the type of legal norm that applies to each category, i.e., whether the norm is designed as a clear- cut “rule” that sets out a straightforward, relatively rigid decree, or rather as a “standard,” a broadly phrased provision that requires further, later stage crystallization.207 This means that even what might seem at first glance to be a very orderly division of the world into legal categories can turn out to be quite different if each legal category is governed by a broad and vague standard that may more than offset the alleged tidiness of having carved- out distinctive categories for different types of disputes. This is an issue of tremendous importance in takings law, within which the different categories can be governed by either “per se” rules or by highly complicated and “muddy” standards, mostly in the case of regulatory interventions with property. It is thus essential to realize that “taxonomy” is not synonymous with “simplicity” or “rigidity.”