Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.-- St. Thomas Aquinas, Summa Theologicae, I-II, Q. 96, Art. 2 (Eng. Dominican Province transl. of 1920).
Saturday, May 31, 2008
Thursday, May 29, 2008
Friday, May 23, 2008
Ann Althouse discusses this question in an interesting post about the current dynamics on the Supreme Court. UPDATE #1: Jonathan Alter over that the Volokh Conspiracy asks the same basic question: Where Did the 5-4 Splits Go? UPDATE #2: Alter's fellow Volokh Conspirator, Orin Kerr, also asks Why So Few 5-4 Decisions?
Thursday, May 22, 2008
Ilya Somin thinks so. The Bluebook, for those of you who are lucky enough never to have run across it, is the standard citation manual used by law journals, courts, and attorneys in most jurisdictions. As a legal research and writing professor, I spend a lot of time with the Bluebook, and try to guide frustrated first year law students through the tome so they can learn the citation skills necessary to effective research and communicate legal ideas. As a general matter, I think that the Bluebook is a useable tool, but it definitely needs improvement. I wouldn't go so far as to abolish it, but I would revise it dramatically. And by revise, I mean trim down. It is simply too bulky to be used effectively, and most of its rules apply to situations that are rarely encountered by the average legal scholar, let alone legal practitioner. Simplification is what is needed in regard to the Bluebook. That and better editing. The current edition (the 18th) has all sorts of typos and inconsistencies in it.
Read it here. I think that Kerr hits the nail right on the head when he writes:
Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court's docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them. Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real 'hot button' issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds. That's generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn't mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.