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April 2008 Archives

April 1, 2008

Beware of the Home Owner's Loan Corporation Mirage--Skeel

As the Bush administration begins its defense of the new Treasury Department proposal to revamp U.S. financial regulation, Democrats are arguing, rightly in my view, that the more urgent concern should be to directly address the mortgage crisis. Unfortunately, Democrats increasingly are coalescing around a proposal by Congressman Frank and Senator Dodd to pump billions of dollars into the Federal Housing Administration to guarantee new mortgages that would replace troubled borrowers’ current mortgages. Proponents cite the Home Owners’ Loan Corporation, which was set up at the outset of the New Deal, as shining precedent for the Frank-Dodd plan.

The HOLC certainly sounds like a remarkable governmental success story.

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April 3, 2008

More Cancer--Stuntz

My cancer has been promoted: I’m officially in stage 4. My doctors have found two cancerous nodules—a euphemism for “small tumors”—one on each of my lungs. I started chemo this week. Next week, I’ll see a thoracic surgeon who will, sometime this summer, cut those tumors out. Needless to say, this isn’t good news—though, thanks to medical advances (especially, thanks to those evil drug companies that politicians regularly attack), it isn’t disastrous news either. We’ll see what the future brings.

I don’t have any previous experience with this sort of thing, but judging from what I hear and read, I’m supposed to be asking why all this is happening, and why it’s happening to me. Honestly, those questions are about the farthest thing from my mind.

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April 8, 2008

Prohibition and Abortion--Stuntz

For an article I was writing a decade ago, I read a lot about Prohibition: both the then-current literature on the subject—the best book, as of then, was David Kyvig’s “Repealing National Prohibition” —and the impressions of people on the ground in the 1920s and early 1930s.

No one knows the precise amount of alcohol consumption in the 1920s, but the trend lines are pretty clear from those bodies of literature. For the first few years after Prohibition was adopted, consumption fell dramatically. Then, beginning around 1923, it started to rise, and rose steadily after that, with the rise continuing after Repeal in 1933.

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April 10, 2008

Good and Bad Pro-Life Arguments--Skeel

While Bill’s most recent post focuses on the effects of the pro-choice movement’s overplaying of its hand in the Roe v. Wade era, the attempt to ban abortion altogether in South Dakota several years ago was a sobering experience for those of us in the pro-life camp. The push for an absolute ban seemed to me at the time, and seems now, an unfortunate overplaying of the pro-life hand. From both a strategic and a cultural standpoint, more incremental steps to restrict abortion are a much more promising step. Consider the contrast between the South Dakota ban, which was quickly repudiated, and the Congressional ban on partial birth abortion, which was upheld by the Supreme Court last year in Gonzales v. Carhart. The partial birth abortion ban reflected a national consensus; the absolute ban on abortion didn’t (and as we quickly learned, didn’t reflect a consensus in South Dakota either).

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April 14, 2008

Obama's Multiple Audience Problem--Skeel

 There’s a clear pattern to Obama’s three biggest recent slip-ups– the controversy over his former pastor’s anti-American remarks, his economic advisor’s alleged assurance to Canadian officials that he doesn’t really mean the critical things he says about Nafta, and now his suggestion at a San Francisco fund-raiser that dire economic straits have caused small town Pennsylvania voters to “cling to guns or religion or antipathy to people who aren’t like them ...”  In each case, the original remarks seem to have been acceptable to their intended audience, but deeply disturbing to a different audience.

Speaking effectively to multiple audiences is one of the trickiest challenges of any political campaign.   Roughly speaking, there seem to be three strategies for pulling this off.

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April 18, 2008

Chemo Brain--Stuntz

Thanks to some of my cancer survivor friends, I recently discovered that Wikipedia has an entry for “Chemo brain.” (The link is here.) They call it “Post-chemotherapy cognitive impairment,” but I think the simpler label works better.) So far as I can tell, it’s totally true: these drugs seem to have roughly the same effect on mental acuity as repeated viewings of “Legally Blonde.” I can feel the I.Q. points departing, perhaps never to return. And I didn’t have that many to spare.

I know that a lot of interesting work is being done these days on links between mind and body. I’d love to understand those links better. One thing is clear: when your body takes hard shots, your mind suffers. A pain researcher once told me that chronic pain patients’ minds age much faster than the population at large; fighting off the pain uses up mental energy, and not all of that energy gets replaced. So too with fighting off cancer cells, I suspect. Thankfully, I’m not a mathematician—I’d already be far too dumb to do the job. Legal academics is a more forgiving line of work, and these days, forgiving lines of work sound pretty good to me.

Precedent and Judicial Method--Stuntz

The Supreme Court’s recent lethal injection decision, Baze v. Rees, reminds me of a puzzle. Supreme Court Justices, and appellate judges generally I think, often feel bound by previous case holdings and by the core reasoning that supports those holdings. But judges rarely defer to prior decisions about legal method. If, say, case 1 holds that a particular constitutional clause is to be interpreted based on its original understanding, judges who believe in evolving constitutional meanings feel perfectly free to ignore originalist arguments in case 2, arising under the same clause. All sides in contemporary legal debates do this: Justices Scalia and Thomas apply their preferred interpretive methods whether or not the most recent majority opinions in the area do so.

Why is that? If the point of precedent is to make the law predictable, then it would seem that decisions about legal method should receive more deference than simple case holdings, not less. And in the past, I think they did receive a good deal of deference: this willingness to reargue all methodological issues in every case strikes me as a phenomenon of the last generation or two at most, not the norm in American legal history. If I’m right about that—I may not be: I’d defer to the wisdom of any good legal historians out there—this strikes me as a change for the worse, and one that has large consequences for the way constitutional law develops.

April 20, 2008

Evangelicals and Climate Change--Skeel

One of the more interesting things I learned (thanks to Vanderbilt Earth & Environmental Sciences professor Jonathan Gilligan) at a very interesting conference on consumption and climate change at Vanderbilt Law School this weekend was a tidbit from Mike Huckabee’s presidential campaign. In an NPR interview, Huckabee argued that creationists should be more concerned about the environment than Darwinists. For a Darwinist, Huckabee reasoned, there's no reason to fear global warming because it can be seen as the planet's natural adaptation to industrial civilization, whereas he sees the earth as God's creation---something we hold in stewardship and which is not ours to deface.

Equally interesting was a finding by Columbia sociologist Dana Fisher that more than 75% percent of environmental activists have college degrees, and more than 33% of them have advanced degrees, percentages much higher than among antiwar demonstrators and other protest groups. (Fisher’s website, with links to her work on activism, is here). These two data points seem to me to nicely illustrate both the likely growth of evangelical environmentalism, and its likely limits.

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April 25, 2008

Where's a Real Villain When You Need One--Skeel

Almost a year into the subprime crisis, we still haven’t seen any major reforms. The Enron and WorldCom scandals six years ago, by contrast, prompted sweeping reforms in Congress and on Wall Street. Why the difference?

I increasingly think the most important difference is the lack of a clear villain– a person and company that serve as a posterchild for everything that is wrong and needs to be fixed with American finance.

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April 26, 2008

Who is Responsible for America's Swollen Prison Population?--Stuntz

Pretty much everyone—Republican or Democrat, right or left—familiar with America’s criminal justice system agrees that our prison population is far too large. The data are familiar: Adjusted for population, imprisonment has quintupled in the last thirty-five years. As of 2001 (America’s prison population has grown since then), the average incarceration rate in EU countries was 87 per 100,000 population. In the U.S., the comparable figure was nearly 700. (Link here) The black incarceration rate is several times higher than that.

Those numbers represent a social catastrophe. Who made it so? Who is responsible for the now-famous “punitive turn” in American criminal justice?

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April 29, 2008

Stuntz Elected to American Academy of Arts & Sciences-- Skeel

I learned through the grapevine yesterday that Bill is one of a small handful of law fellows (the others are Justice Stevens and six law professors) who have just been elected to the American Academy of Arts & Sciences. This is an incredibly high honor, and couldn't have been more deserved. Congratulations, Bill.