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As early as December 2009, I identified a possible 4-1-4 split in McDonald v. Chicago with Justice Thomas concurring in judgment. That is precisely what happened. David Cohen wrote a number of posts about what he dubbed the Paradox of McDonald v. Chicago, which I addressed here, here, and here. The final version of the article is available on the GW Law Review Arguendo. Here is the abstract:

On the last day of its 2010 Term, the Supreme Court issued the landmark decision of McDonald v. City ofChicago, holding that the Second Amendment is incorporated against state and local governments.  On its face, the 5–4 decision is simple enough, as a majority of the Court concluded that the 2008 decision inDistrict of Columbia v. Heller, which held that the Second Amendment protects an individual’s right to own a handgun, applied to state and local governments, such as the city of Chicago, just as it applied to the federal government and its territories, such as the District of Columbia.  However, this simple statement ofMcDonald’s holding masks a much more complicated reality—that its outcome, an instance of a rare phenomenon called a “voting paradox,” turned not on grand theories of constitutional law, history, or doctrine, but rather on the minutiae of Supreme Court vote counting.  In fact, only because the Court reaches a conclusion based on each Justice’s vote on the case’s outcome, as opposed to voting on the case’s individual issues, were the headlines following McDonald that gun rights prevailed and gun regulation lost, rather than the other way around.

This Essay explains why McDonald is an important example of a voting paradox.  The Essay first walks through the opinions in McDonald and then places McDonald in the context of relevant social choice theory that models voting paradoxes on multimember judicial bodies.  Having described how McDonald fits into this literature, the remainder of the Essay discusses three significant lessons that come from viewing McDonald as a paradox.  First, McDonald illustrates the importance of the Supreme Court’s voting rules, which decide cases based on outcome voting.  Second, McDonald is a lesson to litigators of the value of including additional arguments.  Finally, McDonald shows the considerable role of precedent-in-flux in creating voting paradoxes.

 

 

David Bernstein, hiding from Volokh at the Legal History Blog, writes a post about law profs should write books (really you can run, but can’t from me).

Academic historians may find this to be a ridiculous question, as books are “the coin of the realm” among professional historians. But among the law professors, the traditional medium of academic discourse has been articles in law reviews. While publishing academic books has become far more common in recent years, it’s still the case that many prominent legal academics never write a book, and have no desire to.

David lists a few reasons.

First, if you are engaged in serious historical research, and want historians to be aware of and engage with your research, a book is a far better avenue to do so than are law review articles. . . . Second, the world of academic publishing, while certainly not completely free from bias in favor of established scholars who teach at top schools, is far more meritocratic than the world of law reviews edited by 2nd and 3rd year law students . . . Third, and most important, the process of writing a book will almost certainly make your work better and deeper (albeit at a great cost in time and energy).

I have been laboring this point for some time,with respect to Constitutional Places. I find the timeline and process of writing a book to be ridiculous. As I noted, from David’s announcement to publication, Rehabilitating Lochner took over 3 years! Further, who buys an expensive hardcover book when you can download the author’s previous articles (which probably are similar to the final book) for free on SSRN?

I am really thinking that self-publication for electronic formats (both Internet and kindle type) is the future.

Do check out my Joshcast with David about Rehabilitating Lochner.

Night at the Roxbury fans, sadly, were misled by the title of this post. Rather, I refer to Larry Solum’s new piece, titled What is Originalism? The Evolution of Contemporary Originalist Theory. Larry is a leading constitutional theorist and all of his works are hot hot hot. Take a look:

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice.

The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear.

The problem with labelling a Supreme Court opinion Pro-Business or Pro-Consumer is that the implications of the case are often hard to pin down. AT&T v. Concepion (my analyses are here, here, and here). Ted Frank, who knows a thing or two about the pitfalls of class action litigation, has a post at PointOfLaw that argues that Concepion may in fact help consumers:

John Tabin’s analysis (which quotes my analysis) is sound, but the typical media coverage of the 5-4 decision gives a loud megaphone to theludicrous claim that the Supreme Court opened the way for consumers to be raped with impunity. Not one of these attacks on the decision points out that AT&T’s arbitration clause makes it easier for an individual consumer to bring a profitable claim against the phone company. The only thing it does is to preclude a class action that would rip off the vast majority of consumers for the benefit of attorneys. The Supreme Court decision permits consumers to see cheaper prices; a mandatory arbitration clause still has to provide a consumer a remedy. The only losers are attorneys. (My organization, the Center for Class Action Fairness, filed an amicus brief in this case.)

In this sense, class action arbitrations would largely dupe customers out of any meaningful recovery because attorneys fees will reduce any judgment.

It is not so easy to determine what is pro-business and what is pro-consumer. Adam Liptak’s “Pro-Business” model hardly fails to embrace any nuanced distinction.

 

Kash Hill has a great post about how important location is to Google’s mobile strategy.

The San Jose Mercury News has gotten its hands on internal Google emails from the summer of 2010 attesting to the importance of location information from phones for the company’s business. The emails reveal that the smartphone info collection became especially necessary for Google after its Street View cars’ collection of Wi-Fi information got it into hot water with privacy advocates and governments around the world. The “Wi-Spy” debacle — where Street View cars were inadvertently sucking up emails and passwords along with Wi-Fi hot spot location information — led Google to vow to stop collection of any Wi-Fi information with its Street View cars, meaning it now relies on smartphones for that mapping

Essentially, because Google no longer uses their fleet of Google street view vehicles to scan local WiFi networks and record their data (following that big mess-up a couple years ago), they now conscript Android users, and their smartphones, as a veritable mapping army to track WiFi hotspots everywhere.