Archive for the ‘Uncategorized’ Category


Written by Robert Justin Lipkin on December 31st, 2007

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Gonzales Resigns

Written by Robert Justin Lipkin on August 27th, 2007

The Washington Post reports that that Alberto Gonzales has resigned.

Posted 10:30 AM

Sorry for the Inconvenience!

Written by Robert Justin Lipkin on February 28th, 2007

Readers, ECA is experiencing technical difficulties resulting in a mis-feed in the right-hand column of the web log. Hopefully, it will not interfere with posting. With a little luck, the problem will be corrected post haste. I apologize for any inconvenience. Thanks for your patience. RJL

When Empirical Legal Research Really Shines!

Written by Robert Justin Lipkin on January 10th, 2007

For thirty-two minutes of agony resulting in her death, Kitty Genovese cried for help in front of her apartment building after being stabbed on the streets of Kew Gardens in New York City. Thirty-eight bystanders observed her being murdered and did nothing. The common law vindicates bystanders who have no special relationships with a victim when they fail to make even an easy rescue of someone in peril, let alone a potentially dangerous rescue. Traditionally, two arguments, among many, have been offered in defense of the common law: (1) it is an infringement of the individual’s autonomy to require him or her to rescue people absent a special relationship. (2) it’s human nature to decline putting one’s life on the line for strangers.

Two decades ago I rejected the first argument in “Beyond Good Samaritans and Moral Monsters” published, as a student Comment, by the UCLA Law Review. In that piece, I make the following point. Those committed to individual autonomy, whether rational egoists or not, have dispositive reasons to embrace a general legal duty to rescue. Why? Because doing so furthers their autonomy-interests. When we ground of the general legal duty to rescue in a system of reciprocal rescues, one’s chances of being rescued, should one need to be, are maximized. Consider, for instance, signing up for a organ donation system. Any individualist or rational egoist should embrace such a system in which the commitment to rescue a stranger is all one needs to ensure that one is rescued oneself, should the need arise.

Last week, Wesley Autrey jumped in front of a moving subway train to save the life of stranger. (And he’s a New Yorker. Go figure!) Over at Ratio Juris, Elizabeth Weeks posted “Duty to Rescue?” reporting this incident. Permit me to highlight one passage from her informative post. .

[T]he Autrey incident offers a stunning rejoinder to the traditional no-duty principle. Moreover, it is a clear example of the result shown in David Hyman’s recent Texas Law Review article. Contrary to popular perceptions and tort policy assumptions that people tend to avoid voluntary rescue of strangers, Hyman’s empirical study concluded that, in fact, people commonly engage in not only cheap, easy rescues but also hazardous acts of heroism that would not be required by law and may not be justified in traditional cost-benefit terms.

Hats off to Elizabeth for her post, including the heads-up about Hyman’s article. Empirical legal research of this sort is r imageimmensely valuable. Rather than supporting the conventional assumption that people, by nature, are disinclined to rescue strangers, this empirical research strikes back. According to this data, people generally are not Bad-Samaritans. Despite danger to themselves, they often try to save strangers. Hence, for us bleeding hearts, one obstacle blocking the establishment of a general legal duty to rescue is overcome.

Posted on Ratio Juris on 9 January 2007

The Supreme Court & Republican Democracy: Third Post in the First ECA Series on American Constitutionalism

Written by Robert Justin Lipkin on December 31st, 2006

What follows is the third post in the ECA series on Whether Judicial Supremacy Is Compatible with Republican Democracy?

Announcing ECA’s New Posting Schedule

Written by Robert Justin Lipkin on December 9th, 2006

During the Holiday Season, ECA will post Monday–Friday beginning today. Have a good weekend everyone!

Who Was the Most Dangerous President in U.S. History?

Written by Robert Justin Lipkin on November 29th, 2006

Should George W. Bush be ranked as the worst President in the history of the United States? Before answering this question we need to determine which categories should be invoked to assess a President’s place in this ranking? For starters, how about helping to improve the economic and social welfare of the citizenry? Add to that protecting the nation from attack, preventing wars costly in life and treasure, preserving the integrity of the Constitution,, and finally honesty. How will history judge Mr. Bush? Curiously, Mr. Bush doesn’t seem to care. When the journalist Bob Woodward asked him about how history will rate him, Mr. Bush replied “History. We won’t know. Well all be dead.” Bravo Mr. Bush for another illuminating answer!

According to historian Sean Wilentz here are some other candidates: James Buchanan, Andrew Johnson, Warren G. Harding, Herbert Hoover, and Richard Nixon. I would add Rutherford B. Hayes for buying the presidency by ending Reconstruction. Each abandoned the stewardship of the nation either through commission or omission. Check out Wilentz’s article and decide for yourself.

N image Asking a somewhat more focused question–Who was the most dangerous President in U.S. history?–I’d say the top four are in order of dangerousness: George W. Bush, James Buchanan, Richard Nixon, and Lyndon B. Johnson. Bush ranks first for the Iraq War and his attack on fundamental constitutional values. Buchanan takes second place for not taking seriously the gathering storm of civil war over slavery. Nixon is a close third for his duplicity and for undermining constitutional government by in effect creating a shadow government unaccountable to Congress or the Court. And finally, Johnson for lying throughout the 1964 presidential campaign lambasting Goldwater for his strident plans to end the Vietnam War and them implementing some of those very same plans.

b2 image It might be the heat of the present moment, but I think Mr. Bush is in a class by himself. Here’s a man of limited, if any, talents who lacked personal insight to appreciate his own limitations. He involved the United States in a war that did not need to be waged, a war that has taken the lives of tens of thousands of Iraqis and has left thousands of brave American military personnel dead or badly wounded. Mr. Bush has heard the opinions of people he respects and still insists that we will remain in Iraq until we’ve stabilized the country.

Ever since Sadaam was deposed, the nation that was Iraq was destined for civil war It was, in truth, an artificial nation, built on deep-seated and long-standing hatred, which could not be mollified without civil war. It was a civil war waiting to happen. Yet, Mr. Bush and his crowd believed we could spread democracy to Iraq and to the region. Their naivete is exceeded only by their arrogance.

We will soon hear a debate over who lost the war in Iraq. Mr. Bush can use this debate as a vehicle out of Iraq by blaming the Iraqi people and government for the failure. Although such blame slanders the Iraqi people, Mr. Bush will not, in the end, be above using it. The real answer to the question–Who Lost the Iraq War?–is this. The American people with the unexpected and unjustified help of the Supreme Court lost the War when election 2000 ended with George W. Bush, the president-elect.

“Staying the Course” in Reforming the Constitution

Written by Robert Justin Lipkin on November 28th, 2006

c image American democracy is driven by the engine of judicial constitutionalism. At the core of this engine is judicial supremacy. According to the doctrine of judicial supremacy, the Court (almost always) gets the last word in resolving hot-button constitutional controversies. Of course, the absolute last word rests with the people should they wish to overrule the Court through Article Five. The problem with Article Five, however, is that it costs too much time and money to be effectively navigated. When a formal mechanism of constitutional change becomes ineffective, smart people stop using it. As a result, informal practices of constitutional transformation develop and take its place. hh imageJudicial supremacy is one of those practices and when citizens embrace judicial supremacy it morphs into judicial constitutionalism. Judicial constitutionalism insists, even as it simultaneously it denies, that the Constitution says what the Court says it says. (Whoosh! Try repeating that five times quickly.) Chief Justice Hughes bluntly puts this point: “We are under a Constitution, but the Constitution is what the judges say it is.” Once we realize the inevitable truth of Chief ustice Hughes’ sentiment, there is no going back to more a more forgiving era when it seemed that there were clearly identifiable methods for ascertaining the Constitution’s meaning. Arguably then, the conviction that the Constitution has identifiable, determinate, objective meaning is now shattered. And all the king’s horses and all the king’s men can’t put Humpty Dumpty back together again.

p imageYet, in many circles, the Constitution is still venerated. Because the Constitution is venerated and because the Court has taken the place of an effective constitutional provision for change, judicial constitutionalism informally arises and becomes an entrenched practice. It becomes so entrenched as to be subliminal. Although scholars, disgruntled politicians, special interest groups, and talking heads lampoon the Court when they disagree with its decision in a particular case, few join the chorus of those of us calling for the elimination or reformation of the practice of judicial supremacy. f image Such entrenched veneration prevents many thoughtful people from even considering that something might be systemically wrong with the American practice of judicial constitutionalism. Turning a blind eye to the defects in the Constitution is potentially dangerous. If there is something wrong with the Constitution, we need to identify it and then with luck fix it. The United States has survived for over 200 years, and with any luck it will survive at least another 200 years. It makes no sense to resist to the possibility that the American Constitution needs to be jump-started. At the very least we need to take seriously the proposition that American constitutionalism doesn’t ome close to warranting the veneration we perfunctorily give it.

j image Why do republican democrats fall so easily into constitutional denial every time someone suggests that our Constitution is broken? Wouldn’t it be remarkable if a Constitution designed by the lights of past constitutional framers should be workable today? Of course, we can insist that it is workable, but saying so doesn’t make it so. And since reflection and self-criticism should be a frequently used weapon in a democrat’s arsenal, why not periodically review our progress towards perfecting or at least improving American constitutionalism. Jefferson favored “a little rebellion now and then.” Perhaps that’s neither feasible nor desirable, but critical self-reflection surely is. ss imageMore starkly, Jefferson also thought that we should regard “each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”

Yet, so many informed Americans have little patience with suggestions for serious attempts at reforming the Constitution. This is a mixed blessing; it’s both good and bad. It is good because it reveals that the populace takes constitutionalism seriously. It is bad because it shows that the populace has not yet been sufficiently exposed to the culture of constitutional democracy, which should valorize persistent, reflective criticism of governmental practices, especially criticism of constitutionalism. Not taking dissent seriously is fatal to a vibrant democracy even when dissent targets its basic charter. Dissent and criticism are valuable first in helping us understand how our current government operates and second in keeping alive the possibility that at some time in the future we will be in a position, if necessary, to transform our current system into a better one. Reformative criticism should apply to each of the branches of the government and to the culture of politics through which American citizens select their leaders and hold them accountable. There is room at the table for self-critical examination of American society and constitutionalism in general. Picking out the Court, for criticism, is neither conceptually nor normatively more important than self-criticizing the other faces of American self-government. Neither is it less important.

Many no doubt will remain unpersuaded. They will say we have enough work to do here and now: war, disease, poverty, the loss of constitutional rights, and so forth. Let’s not worry about significant holistic transformation. Leave the future to fend for itself. This reaction is disappointing and demoralizing. More important, leaving the future to fend for itself means no one will fend for it. And if leaving the future to fend for itself means resisting significant reformative self-criticism, we deprive ourselves of appreciating the current value of reflecting on ideals we wish to embrace now. However, perhaps all we can ever really do is to take care of business now.

f image In any event, since my interest lies in pursuing ways to end judicial constitutionalism, I want to suggest some possibilities for reforming the role of the courts in American society. One possibility, which should be mentioned and dismissed first, is this: “Stay the course.” As Dr. Frankenstein implored Fritz, his assistant, who enjoyed tormenting the monster, “Leave it alone, Fritz. Leave it alone!” Of constitutional reform we can join Dr. Frankenstein and say: “Leave it alone!” We can “stay the course” and attempt to convince judicial candidates of the importance of adopting the “correct” methodology and of developing the “appropriate” judicial self-discipline. The scare quotes indicate the poverty of such a view. In an essentially contested constitutional democracy, correct methodology even together with judicial discipline will have radically indeterminate meaning across persons. This strategy has been tried before and every time it has been tried, it failed. There is little reason to have any confidence that it will work today.

Fortunately, there are other possibilities with differing degrees of attractiveness: (1) a legislative override, (2) electing justices, (3) recalling justices, (4) constitutional courts, (5) referenda to override a judicial decision, (6) term limits, and (7) random selection of appellate judges to serve as justices, and so forth. Instead of being mired in endless, unwinnable debates over the correct interpretive methodology, judicial restraint, deference, identifying “clear mistakes,” and a plethora of other prospects keeping the constitutional academy busy, some of us should seek alternatives to staying the course.

The above are only starters. Before any attempt at systematically exploring these possibilities becomes plausible, we must overcome what is usefully called “utopia-phobia. Utopia-phobia is a knee-jerk rejection of any proposal to seek out holistic constitutional reform. Although overcoming utopian-phobia requires more analysis than is possible here, succinctly put the charge of “utopianism” is often used as a great big stop sign preventing us from seeing beyond contemporary strategies or the possibilities of creating new ones to meet future problems about which we can now only speculate. One recommendation: the next time you hear a proposal for holistic reform, wait before you complain “That’s quixotic” assess the degree of the problem and the attractiveness of the remedy. In this manner, we might be able to understand whether utopian proposals should play a role in the pursuit of constitutional meaning.

Above all, face up to your own constitutional denial–we all suffer from it–and realize that the greatest fidelity to American constitutionalism requires detecting imperfections contained in the document crafted 200 hundred years ago in “another country.”

Simultaneously Posted on Ratio Juris

A “Beyond Historic” Turnabout in New Hampshire

Written by Robert Justin Lipkin on November 28th, 2006

Democrats and pundits have been intoxicated over the November 7th election results. However, without some additional evidence, November 7th can easily been seen as an anomaly. A sizable number of independents were, perhaps, outraged over the War in Iraq. But that can easily change once some type of resolution of that conflict is put into effect. It won’t be plausible, in my view, to insist that a sea change in American politics occurred until evidence of broader disenchantment with Republicans is presented or when traditional bastions of conservative sentiment turn blue. David Broder perhaps has identified such evidence. For the first time since 1874, Democrats now control the New Hampshire state government. This is truly an historic indication that change is underrway. Republican leader, Tom Rath, went further insisting that the democrats victory was “beyond historic.” If New Hampshire can change its red stripes in a single election, then what about the nation? These results are significant. But before we buy more blue paint, observers should ascertain the precise character of this astounding switch in one of the most conservative states in the Union.

If Duration Matters, This IS World War III!

Written by Robert Justin Lipkin on November 27th, 2006

a image The crowd that insists we face an Islamo-Fascist threat which can, if we do not attend to it, devolve into World War III, can take comfort in today’s milestone. Today, the Iraq War out distances–is longer than–World War II. So perhaps, as this hysteria warns, we’re already in World War III. Talk of “Islamo-Fascism” and the impending “World War III” against Islam is specifically designed hype to justify our continued presence in Iraq. Perhaps, wiser heads will prevail.

For now, contrary to General Abazaid’s denial on 60 Minutes last night, we need to manage our defeat in Iraq by devising an exit strategy which should include: (1) recognition that Iraq no longer exists, but instead is in the throes of a civil war, (2) begin negotiation with insurgent and sectarian groups in the recognition that the Iraqi government is powerless to defuse the conflict, (3) create a timetable for evacuation, (4) immediately convene–in secret if need be–the regional powers–Syria, Iran, Jordan, Egypt, and Saudi Arabia to assign each nation’s role in stabilizing Iraq. To achieve this we must use carrots, not sticks, to persuade these nations to comply, (5) request a regional military force to assist in stabilizing Iraq and to guard the oil fields, especially to eliminate the corruption which provides the insurgents with self-sustaining funds for their war against the Iraqi people, and (6) provide massive American aid to rebuild a nation that we destroyed.

s imageWe need to act now before Iraq is descends further into civil war and certainly before other nations in the region increase their support for the instability we created. The only way to achieve this is by directly negotiating with the insurgents and the nations involved. General Abazaid insisted that we cannot negotiate with the insurgents because they are the enemy. Who else does one negotiate with? One’s friends? Continued loss of American and Iraqi lives must be laid at the doorstep of the Bush administration, but now–since their electoral victory, if not earlier–the Democrats deserve a share of the blame. The time for contrition is now. The time for properly resolving the crisis arrived a long time ago, but we can and must act now.