July 04, 2004

Law Prof Roundup

by Chris Geidner

* Lawrence Solum's impressive "Swing Votes, Making Things Come Out Right, and the Virtue of Justice," which takes aim at the danger to the rule of law that comes from having both a closely divided court and a results-oriented one. Solum, of course, is most memorable when analyzing the philosophical interaction with the law, and many people will get much out of a post that can easily justify the use of this artful prose: "We should select Justices who care more about the rule of law and less about ruling through law."

* Doug Berman discussed in "Other institutional voices," the role the states have to play in federal sentencing after the Supreme Court's bombshell sentencing decision in Blakely v. Washington. Notably, the prompt of this post was a U.S. District Court judge's view on the role academics have to play in the post-Blakely deliberations, which was in turn prompted by Berman's day-earlier post calling on the U.S. Sentencing Commission and the Department of Justice to speak out and provide some guidance for those judges and practitioners out in the trenches. This final call has been, as of yet, to no avail.

* Rick Hasen, in "'Fahrenheit 9/11,' NRANews, and the Media Exemption," takes a new look at a part of campaign-finance law about which he has previously written. I have questioned the media excemption before in connection with an Ohio reform bill, and Hasen let me know that such excemptions have regularly been a part of campaign-finance legislation since the 1970s. In his new commentary, Hasen relies on the "blurring of the lines separating entertainment, politics, and news" in restating his discomfort with the media excemption. After some solid, accessible analysis of the sticky legal issues created by the excemption, Hasen concludes that "[t]he media exemption may indeed become the next battleground for campaign finance reform."

* Eugene Volokh looks at post-Ashcroft v. Free Speech Coalition child-porn prosecutions in which the charges were dismissed because the prosecution could not prove the pictured person in the pornography was a minor. Volokh points to the majority opinion's discussion of an the government's argrument that "protected speech may be banned as a means to ban unprotected speech" as one that "turns the First Amendment upside down." Volokh, however, wonders if these dismissed cases (and others like them) might convice a pragmatist from the Free Speech Coalition's five-justice majority (he helpfully offers up Justice Breyer as a possibility) to join with Justice Thomas, who concurred only in judgment (providing a sixth, hence non-essential, vote) because:

if technological advances thwart prosecution of "unlawful speech," the Government may well have a compelling interest in barring or otherwise regulating some narrow category of "lawful speech" in order to enforce effectively laws against pornography made through the abuse of real children.

* Last but certainly not least, both Cass Sunstein and Laurence Tribe have had op-eds in the papers this week, with Sunstein today talking about the "minimalist" U.S. Supreme Court here in the NYTimes and Tribe earlier discussing executive power and the rule of law here in a free copy of his piece from the Wall Street Journal.

(Thanks to Howard Bashman for leading me to many of the news articles or commentaries I discussed.)

July 4, 2004 08:21 PM | TrackBack