Gerry Canavan

the smartest kid on earth

Posts Tagged ‘legal realism

Tuesday Morning Links

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* From the archives: The university is no longer primarily a site of production (of a national labor force or national culture) as it was in the 1970s and 80s, but has become primarily a site of capital investment and accumulation. The historical process through which this transformation was implemented is long and complicated, and we cannot give a detailed account of it here. Instead, we want to describe the general shape of this new model and the consequences it might have for political action in a university setting. We take as paradigmatic the case of the University of Michigan, where this model has been worked out in its most developed form and from which it is spreading across the United States, as university administrators across the country look to and emulate what they glowingly call the “Michigan model.” In this new university, instruction is secondary to ensuring the free flow of capital. Bodies in classrooms are important only to the extent that money continues to flow through the system. It is a university that in a global sense has ceased to be a university—its primary purpose is no longer education but circulation. This is the new logic of the university. If we want to fight it, we have to understand it.

Merit, Diversity and Grad Admissions.

* Big Data and Graduation Rates.

* Teaching the controversy in California, Holocaust edition.

* Another absolutely botched college investigation of a sexual assault.

* Violent Abuse of the Mentally Ill Is Routine, Widespread at Rikers Island.

* Bullshitting about Gaza.

* Malcolm Harris on redheads and playacting racist.

* Why it’s time we talked about the sex lives of humanitarians.

* Shouting About Diving, but Shrugging About Concussions. How to stop FIFA from being such a parasite. Could the World Cup Champion Beat the Best Club Team in the World? Stadiums and/as prisons. Another World Cup Is Possible.

* That’s… ominous. Parts of Yellowstone National Park closed after massive supervolcano beneath it melts roads.

* Buzzfeed has a longread about the behavior of a long-term predator in an elite California private school.

* Meanwhile, Pope Francis’s back-of-the-envelope calculation of the number of predators in the clergy is utterly horrifying.

* Demolition unearths legacy of toxic pollution at Milwaukee plant.

* Is Milwaukee the No. 1 city for tech? Not so fast.

* The July effect is real: new doctors really do make hospitals more dangerous.

* Joss Whedon has written more Buffy the Vampire Slayer. True fact!

Behind-The-Scenes Footage Of Buffy Stunts Is the Ultimate Time Suck.

On the legacy of Dungeons & Dragons.

* Against natural gas as a “transition fuel.”

* If you pretend precedent is meaningful and the rule of law is an operative concept in America, and squint real hard, here’s a way Hobby Lobby could be good news for liberals.

There is, Steve estimates, room enough on the ark for 23 people to live comfortably. And Australians are welcome. Singles, couples, families, believers. All that’s required is a $300 one way ticket from Brisbane to Luganville and a commitment that means forever.

* A bit on the nose, don’t you think? Two Fruitland Park, Fla. cops have lost their jobs after an FBI source named the two as members of the Ku Klux Klan.

* Uber and rape: Seattle Police Clear Uber Driver of Rape Charge, But Not Sexual Assault.

* When Park Middle School cheated on a high-stakes test.

* The goal of ethics is to maximize human flourishing.

* And the new Doctor Who trailer fills me with a little bit of sadness: I was really hoping the Capaldi era would be more swashbuckling than brooding. I guess I’m looking forward to Moffat moving on.

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Some Thoughts on Miranda

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I wound up indulging my academic gene after all with a long conversation on Twitter this morning about Miranda rights (Storified here). Distilling this to just a few key points:

* The Miranda warning is a fairly idiosyncratic (and relatively recent) feature of American jurisprudence. It is not by itself determinative of the absolute fairness or unfairness of a criminal proceeding.

* The Miranda warning concerns only the suspect’s post-arrest utterances, which by all accounts the prosecutors in this case would not need to secure a conviction. They claim, after all, to have photographic evidence of the bombs being planted.

* A brief “public safety” exemption to the Miranda warning is a lawful and long-standing procedure that is rationally applied to the circumstances of this case. It should be over (very) soon, but it’s not by itself illegitimate.

* The Miranda warning, in general, is a good thing, but not as good as it sounds; the primary effect of the Miranda warning is to legitimate police attempts to get you to surrender these rights through coercion or deceit. As I was putting it on Twitter earlier:

* Most crucially, there is a zero percent chance that a guilty Dzhokhar Tsarnaev would somehow escape punishment on the basis of a legal technicality. No court — much less the Supreme Court — would ever allow that outcome. What would happen instead is that a sufficiently large exemption to Miranda would be discovered to allow a conviction to stand. Again, as I was putting it on Twitter:

That’s why from my perspective the big issue is not Miranda, it’s presentment. Right now Tsaraev is still within the scope of the normal criminal justice system, as he should be. The bad outcome here is not his being denied a Miranda warning; it’s him not being allowed any trial at all.

More (not always agreeing with the above) from Orin Kerr, Scott Lemieux, Emily Bazelon, Freddie deBoer, and Glenn Greenwald.

Written by gerrycanavan

April 20, 2013 at 1:28 pm

‘If Someone Like Scalia Can … Decide That Wickard Isn’t a Binding Precedent, Then the Idea of Binding Precedent Is Essentially Empty’

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Nineteen of twenty-one Constitutional scholars think the mandate is Constitutional, but only eight are confident SCOTUS will uphold the law. Paul Campos gets his denunciation of Scalia in early:

Justice Scalia spent his career as a lawyer, law professor and judge in that legal world – a world in which Wickard was no more eligible for serious reconsideration than Brown v. Board of Education or Marbury v. Madison are today. It ought to be obvious that if someone like Scalia can, at this point in a half-century-long career, decide that Wickard isn’t a binding precedent, then the idea of binding precedent is essentially empty, which in turn highlights the inevitable emptiness of the idea of any useful distinction between law and politics.

But this is not obvious, least of all to Justice Scalia, who I have no real doubt actually believes the things he says and writes, no matter how many times his public acts contradict his avowed beliefs. Scalia believes in a version of the rule of law whose existence is refuted by nothing so well as his own career. And that ultimately is more disturbing than a career dedicated to the most self-consciously manipulative Machiavellianism.

More ACA

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Ezra Klein, fresh from arguing that political leaders’ utterances don’t matter, explains how political leaders’ utterances moved anti-mandate legal arguments from the fringe to the mainstream. Meanwhile, here’s Kevin Drum:

If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock — but it was also a unanimous decision and, despite FDR’s pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

Thursday Night

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Tuesday Night

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* Following up on today’s diappointing Supreme Court news: Obamacare’s Supreme Court Disaster. Well, That Could Have Gone Better. Brian Beutler says it wasn’t as bad as it looked. So does Ian Millhiser. The battle over a limiting principle. Medicaid as sleeper issue. Kennedy, Roberts Likely To Determine Fate Of Mandate. Lyle Denniston says it’s all Kennedy. Klein reads Roberts. Kerr reads Kennedy. Even more at MeFi.

* Rachel Maddow: 4,000 days of war in Afghanistan?

* An interview with the creator of You Can’t Do That on Television. Via MeFi.

* The headline reads, “Global Warming Close to Becoming Irreversible.”

* Look on the bright side: The speaker of the North Carolina House says the state’s coming anti-gay Amendment One will probably be struck down in a mere twenty years.

* More Scott Pilgrim? Maybe someday.

* Life in the Retreat at Twin Lakes after the Trayvon Martin shooting.

* And are these the rules of Roadrunner and Coyote? I choose to believe.

1. The Road Runner cannot harm the Coyote except by going “meep, meep.”
2. No outside force can harm the Coyote — only his own ineptitude or the failure of Acme products. Trains and trucks were the exception from time to time.
3. The Coyote could stop anytime — if he were not a fanatic.
4. No dialogue ever, except “meep, meep” and yowling in pain.
5. The Road Runner must stay on the road — for no other reason than that he’s a roadrunner.
6. All action must be confined to the natural environment of the two characters — the southwest American desert.
7. All tools, weapons, or mechanical conveniences must be obtained from the Acme Corporation.
8. Whenever possible, make gravity the Coyote’s greatest enemy.
9. The Coyote is always more humiliated than harmed by his failures.
10. The audience’s sympathy must remain with the Coyote.
11. The Coyote is not allowed to catch or eat the Road Runner.

A Political Objection Becomes a Legal One When It Gets Five Votes

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