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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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To Tweet, or not to Tweet, that is the Question. Should Newlyweds Tweet Honeymoon Coitus? Should Mothers Tweet The Death of Their Children?

December 18th, 2009

When is it appropriate to Tweet? Should a mother tweet following the death of her child? Should a newlywed couple tweet during their honeymoon to document their consummation?

To answer these questions take a look at these two articles. Why Does a Mom Tweet Her Son’s Death In Near-Real Time? and  Best Man Rigs Newlyweds’ Bed To Tweet During Sex. Not Kidding.

In the former case, a mother tweeted her son’s death in near-real time.

At 5:38pm she called the police saying that her son Bryson was dead at the bottom of the family pool. At 6:12pm she asked her Twitter followers to pray for the life of her son. Only five hours later, she posted photos of the two-year-old Bryson along with the following message: Remembering my million dollar baby

My heart goes out to the Mother on her tragic loss. While many commenters found the mother’s actions to be inappropriate, who am I to Judge how people deal and cope with loss. For many, Twitter, Facebook, and Web 2.0 are  outlets for emotion. While the mother’s actions may seem unconventional, if she can take solace from her fellow tweeps, I think this behavior is healthy.

In many regards, web 2.0 has made society so accustomed to instant gratification, people may need the instant tweet or text from a loved one to help them get through this pain. Waiting for family to arrive from across the land for consolation may just take too long.

But on the lighter side of tweet appropriateness  is this story from the U.K.

This man, who is choosing to stay anonymous, has set up this Twitter account for the sole purpose of automatically tweeting when the newlyweds are having sex. I’m not kidding. Read the entire tweet stream from the bottom up if you want the full story. But basically, this guy was watching his friend’s house while they went on their honeymoon and he placed a device under their mattress. This device, which is similar to the one found here, is a pressure-sensitive pad that tweets out when sexual activity starts, when it ends, the force of the “action,” and a “frenzy” rating.

So the real first action is as follows:They?re on the job! #2 ¿ Action commenced at 15.50GMT. Weight: 151KG.

22 minutes later:

They?re off the job! #2 ? Action concluded at 16.12GMT. Duration: 22 m.05 s. Frenzy Index: 4 (easy listening). Judge?s Comment: “Good work!”

Newlyweds FTW! Bedsprings FTL! Privacy EPIC FAIL!

Let’s just hope the newlyweds don’t find out about this Twtiter account. Or else, I would expect a huge WTF.

FantasySCOTUS.net Predictions of the 10th Justice: Citizens United v. FEC (Hilary Movie Case) Revisited

December 17th, 2009

Welcome to the fourth installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 2,600 members, who have made predictions on all cases currently pending before the Supreme Court. Check out a recent CNN.com feature on FantasySCOTUS.net. Also note that our site was placed above stories about Justice Sotomayor and Chief Justice Rehnquist.

Tony Mauro at the Blog of Legal Times wrote an article about the Supreme Court’s delay in releasing an opinion in Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case. To help predict the case, Tony relied on several SCOTUS experts, and also asked our opinion. Interestingly, our data match the predictions of his SCOTUS experts.

Since our original predictions, our league has doubled in size and now has over 550 predictions for Citizens United. The Hillary Movie case is a showdown between free speech and campaign finance laws. In 2008, the D.C. Circuit ruled in favor of the FEC that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.

Out of 556 predictions, 67% predicted that the Supreme Court will likely reverse the lower Court, while 33% predicted that the Supreme Court will affirm the lower court’s decisions.

outcome3

The vast majority of members predict that the case will be a close 5-4 split. Two hundred and sixty-three  members voted for a 5-4 reversal, while 121 members voted for a 5-4 affirmance. This prediction of the league mirrors the predictions of close Court watchers. Very few predict that the case will be unanimous in either direction.

split2

But what about the Supreme Court’s long delay in issuing the opinion? Our predictions, after the jump.

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Updated Version of Pandora’s Box Uploaded to SSRN

December 17th, 2009

Ilya and I just finished our final rounds of edits, and uploaded the article to SSRN.

Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear arms to the States

Here is the abstract:

The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.

This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.

In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.

In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.

What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property – independent of its enumeration in the Second Amendment – was considered a privilege or immunity of citizenship in 1868.

Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities Clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only by correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.

Balkin Opens Pandora’s Box: Health Care, Constitutional Moments, the Constitution in 2020, and Privileges or Immunities

December 17th, 2009

At Balkinzation, Jack Balkin has a very interesting post about Constitutional Moments and Health Care.

Balkin argues that President Obama is faced with a Constitutional Moment because several moderate Republicans and moderate Democrats are blocking passage of his health care bill. 50 votes isn’t enough according to modern Senate procedures. In reality, the Senate needs 60 votes.

We are at such a moment now. The political impasse is over health care reform. The institution is the United States Senate. The question is whether the Democratic Party led by Barack Obama, will threaten unconventional adaptation so that the Senate (in this case, a small number of moderate Democratic Senators) will back down and allow passage of health care reform by a simple majority, creating a new precedent for Senate practices. If Obama does not make this threat credibly, opponents of reform will succeed and the Senate– and particularly the power of the Republican minority and Blue Dog Democrats in the Senate– will become more powerful than ever. It is, in other words, a match to the death between Obama’s promise of a new politics and the existing forms of politics.

Faced with such a Constitutional moment, what is President Obama to do?

Thus, time is of the essence. Obama must win big or he will surely lose bigger. It is time, in short, for unconventional adaptation. Obama and the Congressional Leadership have been pushed against the wall. They must win now or be decimated politically . . .  It is precisely these desperate circumstances that lead to unconventional adaptations in American politics.  If Obama can route around the 60 vote requirement through unconventional adaptation, and pass health care reform, he can go to the American public for ratification of his actions in the 2010 and 2012 elections. If he cannot do this, then he puts himself at the mercy of Joe Lieberman and Ben Nelson, which means a very watered down bill that may not pass because of opposition from his left.

While this unconventional adaptation would not truly be of a Constitutional nature, as the 60-vote requirement is a matter of procedure and not Constitutionally required, Balkin’s invocation of a “Constitutional Moment” in the health care debate falls into line with a prediction that Ilya Shapiro and I made in our article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment. We just uploaded a revised version to SSRN reflecting Balkin’s blog post. From page 51:

In contrast to the historical approach that this article advances, the landmark legislation/constitutional moment theory no longer restricts the Court to canonical texts like the Declaration of Independence or Blackstone’s Commentaries, but leads it to consider acts Congress passes to establish new privileges or immunities. Would there be a constitutional right to Social Security, to food stamps, to subsidized housing, to Medicaid—to health insurance (whether or not a “public option” ever passes)?  Professor Balkin would say yes—and even considers the potential passing of President Obama’s health care bill, over the opposition of stalwart moderate Democrats and virtually all Republicans, a “constitutional moment” forcing the president and the Senate to engage in an “unconventional adaptation of American politics.” Health care reform is precisely the type of landmark legislation that would create constitutional rights under The Constitution in 2020.

According to Ackerman and Balkin’s work, when Congress passes significant pieces of legislation, such as health care reform, this can generate a Constitutional moment. In our article, we contend that when such a moment occurs according to Balkin’s work, Congress essentially creates, or “instantiates” this right as a privilege or immunity of national citizenship. Once a right is protected as a constitutional right, it is permanently entrenched, and cannot be abrogated by future legislatures.

By not rooting the rights protected under the Privileges or Immunities Clause in our nation’s history and traditions, the Court can consider constitutional moments, national consensus, and social movements as signs that society recognizes new rights. This post presages Balkin’s future arguments if the Supreme Court fails to properly interpret the Privileges or Immunities clause in McDonald v. Chicago. If a public option passes, it will be of such monumental status that a right to health care will be considered a privilege or immunity of national citizenship, and thus a constitutional right. Pandora’s Box is no longer sealed.

 

Blackberry Shrugged. Crackberry Outages Throughout North America

December 17th, 2009

I woke up this morning in a panic and I realized my blackberry was not delivering e-mails. I thought it was just me. That the problem was isolated to Johnstown. Or maybe, the RIM gods were trying to slowly wean me off my habit.

But, sadly. there is a Blackberry Outage throughout North America.

Batten down the hatches. Stock up on bottled water and canned goods. Brush up on your Morse code and dust off that old Telegraph. This could be rough.