Will Law School Applicants Return?

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Law schools have suffered a precipitous drop in applications in the last six years—the largest decline in decades. To assess whether this decline will continue and to determine the response, legal educators must first figure out the causes of the decline. Here are the three most plausible causes in ascending order of the threat that they pose to incumbents in legal education. The first is the Great Recession: law schools have declined because of a decrease in the demand for legal services caused by the Great Recession. The second is the existence of a lawyer bubble: law schools previously produced too many lawyers and there is overhang of supply that makes new lawyers less necessary. The third is structural: law has faced a technological shock, which has depressed the demand for lawyers and/or their income.

It seems quite clear now that Great Recession cannot be assigned a primary role.

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Who Are the Guardians of the Natural Rights Polity?

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The status of judges in the constitutional regime is fundamentally a question of the place of politics, rightly understood, in human life—a point illustrated by the thoughtful exchanges between Richard Reinsch and Randy Barnett in this space and at Volokh. Reinsch argues the danger of giving judges indeterminate power over unspecified natural rights. Barnett replies that these need not be specified; judges need only ensure that governmental power is reasonably used to promote permissible ends.

Theirs was a productive conversation, and it might be usefully expanded to the following question: Even granting a robust reading of the Ninth and Fourteenth Amendments, what is the basis, and what are the costs, of empowering judges to safeguard the rights therein contained?

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Lincoln: Slavery, Sovereignty, and Secession

This past week, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President.  My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery.

My main point about Lincoln is that his views on slavery were very “moderate” up until the point at which he issued the Emancipation Proclamation.  As a matter of policy, Lincoln favored ending slavery, but he wanted such emancipation to be gradual, compensated, popularly enacted, and followed by colonization.  In Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.

By contrast, there were the abolitionists of the time – people who favored immediate emancipation of the slaves.  The abolitionists included William Lloyd Garrison, who believed the Constitution was a deal with the slavemaster devil, and Lysander Spooner, who believed that the Constitution forbade slavery.  But the groups associated with both of these men were considered extremists and represented only a small portion of the population.

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Politics, Yes; Agency Experts, No

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In an earlier post I commented on President Obama’s success in bulldozing the Federal Communications Commission (FCC) into regulating the Internet as a public utility. GOP legislators have since vowed to look into the matter; among other things they’ve asked the FCC to turn over all correspondence with the White House, to learn whether there has been any “illegal coordination” between the President’s flacks and the “independent” FCC. This strikes me as a rather pathetic response and an unhelpful distraction.

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Safe Harbor Originalism

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Originalism’s success has resulted in a rapidly expanding body of scholarship by a richly diverse group of constitutional theorists, many of whom “tweak” the method in order to bring it within their preferred normative theory. This is the cost of success—everyone wants to play.

There are many ways to be an “originalist.” However, not all ways are originalist, and even those that are arguably originalist will not be equally accepted by practitioners of the method. If originalism is to maintain a degree of coherence as an interpretive option, its advocates are now pressed to define it, and to do so in a manner that distinguishes the method from its rivals while still leaving room for healthy exploration, disagreement, and development.

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The Battle for Open Skies

An article in the New York Times this week described how domestic airlines are conspiring with their unions to weaken open skies agreements. These agreements permit American and foreign carriers access to one another’s markets on a reciprocal basis. They empower airlines to decide where and how often to fly internationally, based on market conditions, not national quotas or other irrelevant considerations. The result are good for airline passengers. Fares become lower, and more international flights go from more cities in the United States to more cities abroad.

The most troubling aspect of the article was that the Secretary of Commerce, Penny Pritzker, and the Secretary of Commerce, Anthony Foxx, were entertaining the American airlines’ and unions’ request for restrictions on the entry of new foreign airlines into the American market. Their complaint is that deep pocketed airlines from the Middle Eastern countries, like the United Arab Emirates, were engaging in “unfair” competition and thus their flight plans needed to be blocked.

These Secretaries should have directed the airlines and their unions to take their complaints to the Justice Department, because competition laws are the best way to assess whether the foreign airlines are acting anti-competitively.

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Even in Prison, One Can be Free

Kayla Mueller's family has released the following letter that Kayla wrote to them while she was imprisoned by Islamic State terrorists: Everyone, If you are receiving this letter it means I am still detained but my cell mates (starting from 11/2/2014) have been released. I have asked them to contact you + send you this letter. It's hard to know what to say. Please know that I am in a safe location, completely unharmed + healthy (put on weight in fact); I have been treated w/ the utmost respect + kindness. I wanted to write you all a well thought out letter (but…

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First Came Bush, Then Came Obama: The Case of College Funding

My coblogger, John McGinnis, recently had a great post about the new programs for forgiving college loans for certain students.  John was responding to this article in the New York Times about the programs. John had three complaints about the program, all of which I agree with: First, differential forgiveness [which forgives loans for people who work in the so called public interest sector but not the private sector] could distort choices in the labor market, to the disadvantage of the private sector. .  . .  Second, more favorable terms for student borrowing takes away pressure on educational institutions to cut costs. …

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The Passive Aggressive Vices

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Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.

In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash.  The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor  that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.

When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them.  These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.

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Christian Anti-Semitism and the Rise of the Modern State

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Over 10 million Google results confirm “Christian Anti-Semitism” as a widespread concern, a historical and continuing moral flaw embedded in Western civilization. The Washington Post and the Wall Street Journal recently led their weekend book sections with reviews on the Holocaust and lingering Jewish stereotyping today.

It takes one cool academic to sort through the morass of relationships between Christians and Jews over time. Sara Lipton, historian at the State University of New York at Stony Brook, might just be up to the job. Her book Dark Mirror: The Medieval Origins of Anti-Jewish Iconography looks at all surviving pictorial representations of Jews across European history to evaluate at least elite views of this relationship.

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