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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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Conservatives Should Know Better Than To Dismiss Constitutional Arguments And Call Them Not “Persuasive” or “Convincing”

January 5th, 2013

Michael Dorf, who takes a broad view of the Executive’s powers under Section 4 of the 14th Amendment to avert any debt crises, responds to what he sees as dismissiveness from conservatives, primarily Professor McConnell and Eric Posner, about his views.

Here’s what McConnell had to say about a month ago:

I have never seen a remotely persuasive argument that the president is entitled to borrow money that the Congress hasn’t authorized.  [The 14th Amendment] does not authorize the president to do anything.  And it certainly doesn’t authorize him to violate the clear constitutional provision that requires congressional authorization for borrowing.

And as Professor Buchanan noted last month, McConnell heard the core of our argument over a year ago, so when McConnell says he hasn’t “seen a remotely persuasive argument” he presumably means that he finds our argument unpersuasive, not that he is unaware of our argument.  Yet McConnell’s own reasoning is completely non-responsive to our view, so I’m at a loss to figure out which parts of our argument he finds unpersuasive.

Apparently, there is something about our argument that leads people to say it’s not “persuasive” (McConnell) or not “convincing” (Posner), without feeling any obligation to confront the actual argument or to say why it’s unconvincing.

I know very little about the debt crisis, and Section 4 of the 14th Amendment. However, if the challenge to the ACA taught me anything, it is that one should never dismiss as “unpersuasive” or “unconvincing” constitutional arguments that may prove useful to a powerful political party backed by strong social movements. Flippant attitudes were how the challengers to the ACA were able to take their off the wall idea and bring it onto the wall in record time.

Let’s not make the same mistakes.

Someone, anyone, should provide a cogent constitutional argument why this position is flawed (again I have no clue whether it is or not, but sounding silly is not a fair response).

Update: Title corrected to delete extra “not” (I wrote this post late at night after AALS. My apologies).

Update 2: Mike Dorf has a lengthy post detailing his discussion with Judge McConnell. I’m glad we are having a substantive airing of these issues. To add to my comment above, we now have a President who has not been afraid to employ expansive executive powers in unorthodox ways to achieve certain policy goals. From drones to failing to defend DOMA to selective enforcement of immigration policies, President Obama has not been afraid to flex his muscles to get things done. Minting a coin may not seem that silly if Secretary of the Treasury Krugman proposes it (ok the last part was only partly facetious).

Academics Help Google Escape FTC Suit

January 4th, 2013

A very interesting article in the Times about how Google avoided FTC enforcement, with this interesting bit from Herb Hovenkamp.

“The way they managed to escape it is through a barrage of not only political officials but also academics aligned against doing very much in this particular case,” said Herbert Hovenkamp, a professor of antitrust law at the University of Iowa who has worked as a paid adviser to Google in the past. “The first sign of a bad antitrust case is lack of consumer harm, and there just was not any consumer harm emerging in this very long investigation.”

Indeed, one of the academics that received funding from Google is now on the FTC as a Commissioner–my former Professor Josh Wright (congratulations Josh!). Wright will recuse himself from all cases involving Google for two years.

In addition, the late Robert Bork and Greg Sidak wrote a Google-commissioned article supporting Google’s case in the JOurnal of Competition Law & Economics (is this Bork’s last publication?).

And of course, Eugene Volokh wrote a paper commissioned by Google arguing that its search results are protected by the First Amendment.

All of these academics were commissioned by Google to perform work because a possible enforcement action was coming down the pike, and Google wanted to preempt it.

Looks like Google’s strategy worked.

Maybe the Morrison Court Should’ve Just Waited 12 Years for Violence Against Women Act to Expire?

January 3rd, 2013

The GOP let VAWA expire today. Maybe the Court was too rash striking down part of it way back in 2000!

 

I will be on Al Jazeera English at 2:30 Talking about Taleb’s “Antifragile.”

January 3rd, 2013

The link is here. I’ll post the video later.

Update: Video is here. I was on very, very briefly at 21:00. I asked him how government could pass more anti-fragile laws that did merely react to the most recent disaster (Black Swan), but rather be resillient to the next disaster. His answer, echoing what he wrote in his book, was to be more like Switzerland, and have a more decentralized system of government, that should be bottom up, rather than top down. He did note that this was how America originally was.

Yay Federalism! I only got one question in, so that’s it.

I Will Be Presenting at the Federalist Society’s Faculty Conference in New Orleans on Saturday

January 2nd, 2013

I’ll be giving a talk on Back to the Future of Originalism. I look forward to hearing from Professor John McGinnis, and my other panelists. Here are the details:

Seven-Minute Presentations of Works in Progress – Part II
10:00 a.m. – 11:00 a.m.
Location: Bacchus Room

  • Prof. Josh Blackman, South Texas College of Law, “Back to the Future of Originalism”
  • Prof. Todd Henderson, University of Chicago Law School, “The Fifth Branch”
  • Prof. David Moore, BYU Law School, “Dismantling the One Voice Doctrine”
  • Prof. Lee Strang, Toledo Law School, “New Normative Justification for Originalism”
  • Moderator: Prof. John McGinnis, Northwestern University School of Law

If you are in New Orleans, please come by and say hi!