The Legal Workshop User Comments

Comment on Partial Unconstitutionality by ab

ab — Tue, 01 Feb 2011 06:24:27 +0000

I like your suggestion. I wish you had worked through some concrete examples.

The lay reader is not going to be able to work through your essay, although it’s clear enough to constitutional lawyers and students.

There is, of course the problem that a big bill like health care reform is the product of many compromises. Lose the mandate, and now someone else has to pay for the other provisions.

Comment on Mapped Out of Local Democracy by useful-community-development

useful-community-development — Wed, 18 Aug 2010 01:03:08 +0000

What I’ve observed is that instead of counties being more objective than cities, and therefore likely candidates for pro-social redistributive tactics, the counties themselves become entrepreneurial about keeping some territory out of any city. If the county becomes opposed to virtually any annexation of middle-class neighborhoods, there’s no objectivity. So my advice would be to study counties where all territory is part of a municipality, versus counties where some territory is part of a city and a considerable amount of land is not inside any municipal boundary. See if their behaviors are different.

If the counties where all land also lies inside a municipal boundary behave in a useful fashion, a first step could include considering state legislation that would force urbanized counties to re-order municipal boundaries so that every parcel lies in an incorporated municipality. If desired, a state agency could oversee the process to make sure that the county’s decisions about who receives the unincorporated pockets of non-white poor are reasonable.

Comment on The Meaning of the Word “All” in Article III by AndrewHyman

AndrewHyman — Thu, 12 Aug 2010 21:37:34 +0000

I’ve written a response to Judge Fletcher’s interesting article, at the following link:

http://www.redstate.com/andrewhyman/2010/08/12/ninth-circuit-judge-william-fletcher-conservatives-who-propose-constitutional-amendments-to-deal-with-gay-marriage-and-abortion-are-ignoring-a-much-easier-solution/

Comment on The Disintegration of Intellectual Property?: A Classical Liberal Defense by argoff

argoff — Tue, 20 Jul 2010 17:00:24 +0000

From the article:

“We cannot of course go the whole way toward a public domain regime that removes all protection for writings and inventions, because this would eliminate the main incentive for private investment in creating these technologies or works.”

This is a statement of faith. They are imposing this restriction on how people use inventions and imitate, and then they pull this out as a justification … literally, out of their hat. There is no empirical evidence for it. In truth, copyrights and patents started out way way way less intrusive then they are now. They grew out of control precisely because they are unjust at the core.

For example, consider a government that had no rules other than forbidding the word “fuck”, well in order to secure that “right” they would also need to monitor our speech and internet, but then people would use encryption, so then the government would need to have the right to our keys, or to forbid encryption, but then we could use stenography, so then the government would need to outlaw it. But then people could use symbols and “code words”, so then the government would need to regulate what gestures people could make, and what words we are allowed to use. … and on and on and on.

Copyright and patent grow out of control for similar reasons, and a constant economic pressure for those that have “ip”, to expand it’s scope.

But the core fallacy is this: property rights do not exist for the sake of profit or incentive. Profit and incentive are a common side effect of property, not an ends in itself Property exists so that humans may resolve differing opinions and conflicts over limited resources in a rational and respectful and peaceful way. Without property rights, all that is left is “might makes right” philosophies. With information and invention, the limiting factor is not the information itself, but the time one puts into discovering it. So a person is totally within their God given right to bill by the hour for their invention or creative services, but not entitled to control how information and knowledge is used all over the planet for the sake of their “incentive”.

Comment on Cybersieves by That Lawyer Dude

That Lawyer Dude — Mon, 31 May 2010 04:54:45 +0000

Professor, What if anything stops a person in a country other than China, (say France or the USA) from just looking at google US or France or one of the other myriad of incarntions that allow for the material the individual seeks?

Comment on Justice and Judgment Among the Whomever: An Anthropological Approach to Judging by dbl230

dbl230 — Wed, 31 Mar 2010 22:49:59 +0000

I’m not sure I agree with your characterization that “acting like judges” leads to a more conversant group of trial judges. Wouldn’t appellate judges, who have to convince colleagues, be expected to be more conversant than trial judges, who make unilateral decrees? Granted counsel are likely to re-appear before a trial judge, but so too (and to greater degree) are colleagues likely to re-appear on a panel.

Comment on The Structural Case for Vertical Maximalism by jwalden

jwalden — Wed, 02 Dec 2009 04:36:50 +0000

The Constitution also suggests a hierarchy in which the central entity merely supervises its subordinates and allows them free reign except with respect to certain enumerated responsibilities: that is, the federalist model of a central government with the subordinate states. It seems to me that an argument from the structure of the Constitution cuts both ways, if indeed it really cuts one way or the other.

Comment on Modernization and Lawlessness: A Reply to Professor Mitchell by sohbet

sohbet — Sun, 22 Nov 2009 11:20:31 +0000

Thank you very much for this useful article and the comments
________________
sohbet

Comment on Iterative Federalism and Climate Change by jwalden

jwalden — Tue, 04 Aug 2009 06:20:09 +0000

This article, or at least this condensation of it (I have not read the article in its entirety), seems to ignore the elephant in the room: the quasi-monopsony power of California or of a ten-state compact. If a business wished to deal with either (and presumably the largest would given the populations and quantity of consumers at stake), it had to conform there, leading to spill-over into other states simply because multiple production processes would be less profitable. Once that step has been made federal change is more likely because those who have previously changed have an incentive to encourage more, to hurt their competitors who chose not to produce in either region. With industry not standing in the way, perhaps also supporting, such policies have an easier time of being enacted. The phenomenon at work here seems somewhat analogous to adverse selection, in that the more painful policy choices eventually result in the entire market being subjected to them.

I also question why section II mentioned only the positive effects of California’s policy choices and not the negative ones. Certainly it has had to spend more to enforce stricter standards. It likely has deterred some businesses from expanding or forming, at the margin. Fewer job opportunities might also predict a decline in state population, a decline happening today (although whether or not there is causality is a separate question). Certainly these issues deserve at least some analysis in determining the overall effect of these policy choices, don’t they?

Comment on The Untimely Death of Bush v. Gore by mvymvy

mvymvy — Mon, 20 Jul 2009 17:07:47 +0000

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere, would be politically relevant and equal in presidential elections.

The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The National Popular Vote bill has passed 29 state legislative chambers, in small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes — 23% of the 270 necessary to bring the law into effect.

See http://www.NationalPopularVote.com