Blog

Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

2020
2019
2018
2017
2016
2015
2014
2013
2012
2011
2010
2009

The Liberty League and Popular Constitutionalism

August 17th, 2012

Have you ever heard of the American Liberty League? Think of it as the latter-day Tea Party that challenged FDR’s new deal on constitutional grounds. Jared Goldstein, who has written about the Tea Party and the challenge to the Affordable Care Act, has a new piece juxtaposing the American Liberty League and the Tea Party: Unpopular Constitutionalism: The American Liberty League and the Importance of Constitutional Villains:

 In 1936, much like today, a first-term President faced opposition from a movement that charged that the President’s key policies were unconstitutional and un-American. Like the Tea Party movement, the American Liberty League of the 1930s generated massive media attention by calling the President a radical socialist who sought to foist alien policies on an unwilling public. Unlike President Obama, however, President Roosevelt welcomed the confrontation, making the dispute with the American Liberty League a central focus of his reelection campaign. Created and run by a small group of prominent businessmen, the Liberty League was a political gift, giving Roosevelt the perfect foil to make the case for the New Deal.

This Article tells the story of the fight between Roosevelt and the American Liberty League and argues that it should be recognized as a crucial episode of popular constitutionalism, in which the American people were asked to choose between fundamentally competing constitutional philosophies. This story corrects the narrative put forward by Bruce Ackerman and others that in 1936 the American people faced a choice between the constitutional positions of the President and the Supreme Court. In fact, Roosevelt chose to take on the Liberty League and not the Court because he recognized that persuading the public of the constitutional validity of the New Deal required an opponent that would sustain public attention by continuing to fight back and which could easily be made the villain in a grand constitutional drama.

The story of the American Liberty League adds an important chapter to scholarship on popular constitutionalism, which has devoted considerable attention to social and political movements that succeeded in changing the understood meaning of the Constitution, while neglecting the role of losing sides in constitutional contests. As the story shows, public consensus on constitutional questions may arise just as much from a conviction that one side is wrong as from the conviction that the other side is right. It is perhaps only a slight exaggeration to say that the apparent public consensus in favor of the modern administrative state arising from Roosevelt’s landslide victory owes as much to rejection of the constitutional nationalism of the American Liberty League as it does to an embrace of the New Deal.

 

Should Adverse Possession Be Eliminated?

August 17th, 2012

This past week, I opened my Property 2 Class by teaching adverse possession. Roughly stated, adverse possession allows a trespasser who openly, notoriously, and continuously squats on a plot of land for a period of time to gain title to the land. This is a very uncomfortable doctrine at first blush, but it makes sense for a whole host of reasons. The squatter is using the land more efficiently than the absent owner, so there is economic efficiency. There are also reliance interests for the squatter.

Though, it seems, that at least one State Senator in Pennsylvania wants to do away with adverse possession.

“It’s just plain wrong to legally seize someone’s property in cases where the owner did not knowingly relinquish their property rights, and has continued to meet their tax obligations,” Kasunic said. “My bill would do away with this antiquated law that rewards this legalized brand of theft.” . . .

“I see no need or justification for allowing someone to defiantly trespass, act like they own one’s land — and then somehow have the force of our laws reward them,” Kasunic said. “The practice smacks of being sneaky, dishonest and an affront to property rights.”

Kasnuic sought to introduce a bill (which seems to have gone nowehre) that would have “repeal[ed] the state’s common law doctrines that allow for the use or title to land through adverse possession or easement by prescription.”

Richard Epstein, who only grudgingly accepts adverse possession, would agree.

Though, in a Lockean sense, is it an affront to property rights? In terms of mixing labor, the absent owner is mixing nothing. The squatter, openly using the land, and presumably improving it, has a stronger claim to title. No?

 

 

H/T Zak Slayback

How do sentencing judges react to evidence of genetic predisposition to violence?

August 17th, 2012

A new study in the journal Science, via the New York Times, shows that such evidence is a double-edged sword for sentencing judges.

This mixed result — added punishment for the defendant’s being identified as a psychopath, tempered by empathy for his having a possible genetic predisposition — provides a good illustration of what legal researchers call the double-edged sword of biobehavioral evidence. On one hand, a biological predisposition suggests that a person is likely to be dangerous in the future and should get a longer sentence; on the other, it implies a lower threshold of responsibility. The evidence could cut either way, depending on the judge.

In other words, judges were more likely to be lenient, presumably because those with a genetic predisposition were less culpable or the offense. On the other hand, because a person was more predisposed to violence, they would likely reoffend, and a stiffer sentence was warranted.

So which consideration won out? The former.

In the study, three researchers at the University of Utah tracked down 181 state judges from 19 states who agreed to read a fictional case file and assign a sentence to an offender, “Jonathan Donahue,” convicted of beating a restaurant manager senseless with the butt of a gun. All of the judges learned in their files that Mr. Donahue had been identified as a psychopath based on a standard interview — that is, he had a history of aggressive acts without showing empathy.

The case files distributed to the judges were identical, except that half included testimony from a scientist described as “a neurobiologist and renowned expert on the causes of psychopathy,” who said that the defendant had inherited a gene linked to violent, aggressive behavior. This testimony described how the gene variant altered the development of brain areas that generate and manage emotion.

The account is an accurate description of one theory of how brain development may underlie aggressive behavior. Its applicability to any individual is unknown, however, given that many other factors could increase the likelihood of violence, researchers said.

The judges who read this testimony gave Mr. Donahue sentences that ranged from one to 41 years in prison, a number that varied with state guidelines. But the average was 13 years — a full year less than the average sentence issued by the judges who had not seen the testimony about genetics and the brain.

In interviews about their decisions, the judges said that a crime of aggravated battery like this one normally carried a sentence of nine years, on average, and 15 years if the defendant was identified as a psychopath, the researchers found.

“But then those who read about the biological mechanism subtracted a year, as if to say, ‘This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can’t hold him as responsible for the behavior,’ ” said James Tabery, an assistant professor of philosophy at Utah.

So what does this hold for sentencing? Does 18 USC 3553a permit consideration of genetic predispositions?

JoshLive 8/16/12: Interview with Brian Tamanaha, Author of Failing Law Schools

August 16th, 2012

Join the conversation tonight at 9 EDT/8 CDT/6 PDT right here.

If you have any questions for Brian, please email them to Live@JoshBlackman.com.

What did Jay-Z tell Arena Executives About Music Selection in Barclays Center?

August 16th, 2012

“Less Jersey,” he urged, pushing niche artists like Santigold over old favorites like Bon Jovi.

The Brooklyn Nets. No longer a Jersey Thing.