The Volokh Conspiracy http://volokh.com/ The Volokh Conspiracy, an academic blog. en-us 2008-07-05T19:07+00:00 "The ’60s Begin to Fade as Liberal Professors Retire": http://volokh.com/posts/1215286838.shtml ... Orin Kerr 2008-07-05T19:07+00:00 this interesting story on generational change within academia. Some of the data didn't quite seem to back up the story, but it was still pretty interesting.]]> Jesse Helms did not lead "the rise of the modern conservative movement."-- http://volokh.com/posts/1215230867.shtml In the obit for former Senator Jesse Helms on NBC Nightly News, they mentioned (or at least hinted at) his racist background, as they should have, but I was stunned by... Jim Lindgren 2008-07-05T04:07+00:00 In the obit for former Senator Jesse Helms on NBC Nightly News, they mentioned (or at least hinted at) his racist background, as they should have, but I was stunned by the conclusion.

Martin Savidge reporting (at about 2:58 of the NBC video segment):

But there is one point on which both critics and supporters do agree: Helms led the rise of the modern conservative movement.

This was followed by the disreputable Pat Buchanan saying, “He was the most principled conservative in the United States Senate.”

I don’t see what’s “modern” or “principled” about Jesse Helms, who came to fame in North Carolina through his overt racism.

And – most of all — I don’t see how NBC has the nerve to say that both critics and supporters agree that “Helms led the rise of the modern conservative movement.” Until Martin Savidge said so, I had never heard anyone say anything even remotely like that. I’ve heard many people or groups credited with leading the modern conservative movement: Ronald Reagan, Barry Goldwater, William Buckley, and Rush Limbaugh, and in a more indirect manner, the Weekly Standard, the Olin Foundation, the Federalist Society, and the Heritage Foundation. I have never heard anyone, until I heard Martin Savidge tonight, say anything like this: “Helms led the rise of the modern conservative movement.”

More on Helms here and here.

UPDATE: JPS in the comments helpfully points out that many conservative organizations are making claims similar to NBC's:

The folks at the American Conservative Union disagree. David Keene's quotes in the NYT obit don't use those words exactly, but are pretty close. Former ED David Josi referred to him as, among other platitudes "quite possibly the most important U.S. senator ever to have served."

Then there's ConservativeHQ today saying in a press release today "It was the New Right that energized and led the conservative movement in the 1970s and 1980s and our beloved leader was Senator Helms." ConservativeHQ.com

All I can say is that, while I am not myself in the conservative movement, I know some people who were -- and are -- major players, and they never said anything about Helms that was even approximately similar to these sentiments. But then the people I talk to are academic in their profession or their approach to the world.

]]> Happy Independence Day! http://volokh.com/posts/1215179531.shtml Enjoy, and stay safe.... Eugene Volokh 2008-07-04T13:07+00:00 Enjoy, and stay safe.

]]> You Don't Mess with the Gura: http://volokh.com/posts/1215179396.shtml Odd factoid that I didn't know until today -- Alan Gura, the winning lawyer in the Heller v. D.C. Second Amendment case, was born in Israel.... Eugene Volokh 2008-07-04T13:07+00:00 Odd factoid that I didn't know until today -- Alan Gura, the winning lawyer in the Heller v. D.C. Second Amendment case, was born in Israel.

]]> More on Reducing the Pain of Taking the Bar Exam: http://volokh.com/posts/1215153187.shtml My post on reducing the pain of taking the bar exam has attracted eminent critics such as Jim Chen and Nancy Rapoport.... Ilya Somin 2008-07-04T06:07+00:00 My post on reducing the pain of taking the bar exam has attracted eminent critics such as Jim Chen and Nancy Rapoport.

In the original post, I argued that many students spend too much time preparing for the bar exam and attending prep courses. Since the exam is primarily a test of memorization, many people can pass simply by studying the books at home, and taking practice tests (which is what I did myself, and I know quite a few other people who successfully did the same thing).

Chen and Rapoport emphasize two points: that the bar exam is hard (as witness the fact that many students fail), and that there are negative career consequences if you don't pass.

Much of our disagreement probably stems from their failure to notice and my own failure to properly emphasize, a key part of my argument that I briefly noted in the original post: that my approach is only likely to work if "you're reasonably good at managing your time and memorizing legal rules." I strongly suspect that many of those who fail the bar exam did so because they didn't measure up on one of these two dimensions. Either they are bad at memorization or they did a poor job of managing their time, or both.

Moreover, I would also emphasize that most of those who failed probably weren't using methods similar to those I used, but instead attended the full Bar/Bri course or the equivalent. I can't know for sure without detailed test data. Yet I suspect that some of them would actually have had a higher chance of passing using the methods I suggest, because bar prep courses tend to use a "lowest common denominator" approach that devotes a lot of time to repetitious explanation of even very simple points. This is useful for the weakest or most inattentive students, but probably isn't necessary for the rest. If you instead spend this same time (or, potentially, much less time) studying the more complex points that are difficult for you personally, you might well do better.

As for the critics' second point (the career damage caused by failing), I think that it is valid but overstated. The fact that failure is a serious setback doesn't prove that students aren't studying too much. After all, no one argues that you should spend every waking moment from graduation to bar exam time studying. That suggests that there is an optimal amount of studying beyond which additional effort isn't worth the cost. If, for example, something like what I did gives you a 95% chance of passing, while spending twice as much time increases it to 97%, the tradeoff probably isn't worth it. Moreover, Chen and Rapoport implicitly assume that your career is kaput if you don't pass the first time around. In reality, plenty of people pass on the second or third attempt and still go on to have perfectly good careers as lawyers. So - assuming that you are reasonably good at memorization and time management - what you get with my approach is a vast savings of time on your first attempt combined (with possibly) a slightly increased chance of having to retake the exam in six months. If you allocate your time properly, you might actually increase your chances of passing relative to taking the full prep course, because you won't spend so much time on endless repetition of material you already know.

Lastly, Jim writes that "[a]n academic appointment is an immense privilege in a world of finite resources and constrained opportunities, and those of us lucky enough to hold a winning ticket should refrain from treating our life circumstances as realistic benchmarks for the legal profession as a whole." In answer, I would note that I didn't know whether or not I would get an academic job at the time I took the exam, and I had to assume that I might end up working in a firm. I may be "immensely privileged" now; but I wasn't back then. Even more to the point, the validity of any argument is independent of the background of the person making it.

Bottom line: I spent about two weeks preparing for the Massachusetts Bar, working perhaps 4-5 hours per day. I know several other people who used similar tactics and spent less time. All of them passed, including a few on the very difficult New York and California exams. I was not an innovator, and was actually on the more cautious side relative to most of the people I know who decided to follow this approach.

Yes, these people were all good students from good schools. However, you don't have to be unusually smart compared to other law students in order to do this. All you have to do is be reasonably good at memorizing, and disciplined enough to take the time to do the necessary memorization. Passing the bar exam is mostly a matter of memorizing legal rules. You don't have to understand the legal rules covered by the exam in any deep way. All you have to do is be able to regurgitate the material you learned.

And, even if my argument is only valid for good students from good schools, it still has some value. Many people who fit this description also spend unnecessarily large amounts of time preparing for the bar. And their time is valuable too.

]]> The VC's First Emmy Nomination: http://volokh.com/posts/1215145733.shtml Colorado Inside Out is weekly public affairs roundtable program, on KBDI channel 12, one of the two PBS stations in Denver. Twice a year, the program tapes a Time Machine... David Kopel 2008-07-04T04:07+00:00 Colorado Inside Out is weekly public affairs roundtable program, on KBDI channel 12, one of the two PBS stations in Denver. Twice a year, the program tapes a Time Machine episode; our 1927 episode, which was broadcast last December, is one of the three finalists for the "Interview/Discussion Program" category for the National Television Academy's Heartland Chapter (which covers Colorado, Oklahoma, Nebraska, Kansas, and Wyoming).

The half-hour episode is available for Internet viewing here. I play Chumley Drizelwhit, Professor of Ancient Studies at Colorado Women's College, an Al Smith Democrat who celebrates the execution of Sacco and Vanzetti, and bemoans the influence of the KKK. But the Professor does make an error once in a while, as when he describes the film Birth of a Nation as a talking pciture.

]]> Viacom to Get Copy of Every Record of Every Access to Every YouTube Video?: http://volokh.com/posts/1215106633.shtml ... Orin Kerr 2008-07-03T17:07+00:00 a page up here, referring to this district court decision. At first blush, I think that the Video Privacy Protection Act prohibits this; the Google/EFF analysis provided in the link strikes me as correct, and the decision as incorrect.]]> Interpretation vs. Construction in Heller: http://volokh.com/posts/1215106086.shtml Jack Balkin and Larry Solum are having a very important exchange on the originalist methodology employed by Justice Scalia in Heller. (For Jack's post click here for Larry's click <a... Randy Barnett 2008-07-03T17:07+00:00 Heller. (For Jack's post click here for Larry's click here, here, & here) This involves the crucial, and widely unappreciated, distinction between constitutional interpretation and constitutional construction, a distinction first brought to the fore in modern constitutional theory by Princeton professor Keith Whittington. As Larry explains in his third post, constitutional interpretation is the method by which the semantic meaning of words is ascertained; constitutional construction is the method by which the meaning yielded by constitutional interpretation is applied to particular factual situations.
So what is the distinction between "interpretation" and "construction"? Unless, you have a thorough familiarity with the history of the law of contracts, trusts, or will or a deep knowledge of contemporary constitutional theory, you may think that these two terms are simply synonyms. It turns out that the distinction between interpretation of the linguistic meaning of legal texts and the construction of legal rules from that linguistic meaning has a long history in Anglo-American law. Here is a first (rough) cut at definition:
* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
* Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague.
Those definitions sound pretty technical to me, but I hope you are starting to get the idea. We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law. In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978).
In short, where the text is vague, and the factual situation falls outside its core meaning, this typically requires the "construction" of doctrine that is not literally in the text itself.

Although this is all very commonplace in law, sometimes these constitutional doctrines resulting from construction are inaccurately considered to be the meaning of the Constitution itself, which they clearly are not. By the same token, they are also often criticized as being "made up" by the Court and not in the Constitution, which is true, but beside the point.

Once one grasps the distinction between interpretation and construction, many constitutional confusions can be cleared up and constitutional debate can shift to more productive issues. For example, original public meaning originalism is a method of constitutional interpretation; it is not a method of constitutional construction. Once it has done all it can do to ascertain the meaning of the text, and that meaning remains vague when applied to a particular situation, then constitutional construction is required. Although such constructions or doctrines must not contradict or subvert the original meaning of the text, by assumption they are not dictated by that meaning. That is an implication of the meaning of the text being "vague." More than one construction is consistent with its (original) meaning, and therefore no single construction can be logically deduced from it.

How one engages in constitutional construction is a bigger topic than I can even summarize here. In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.

If all this sounds too open-ended or fuzzy for your taste, I sympathize, but don't blame me. Blame the inherent limitations of language. But also blame the need to adopt written constitutions at a level of generality that allows them to be applied to future changing circumstances. For example, the Second Amendment speaks of "arms" not "muskets" allowing it to be applied to modern arms. That's not a bug, it's a feature. Deal with it.

Which returns us to Heller. In my Wall Street Journal piece, I praised Justice Scalia’s opinion as “the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court.” Even with the benefit of a cooling off period, I stand by that assessment and note that Jack Balkin too praises the original public meaning aspect of Justice Scalia’s opinion. (I do have one concern with Justice Scalia's originalist analysis, however, which I identify at the end of this post.)

Where Justice Scalia’s opinion is raising questions (such as this post by Brian Leiter) have to do with his inevitable need to engage in constitutional construction where the original meaning of the text is too vague to be directly applied to a variety of issues. There his method is opaque, in large part (I suspect) because he may not himself clearly see the distinction between interpretation (original public meaning) and construction (the need to apply that meaning to specific regulations). I suspect this because very few constitutional scholars appreciate this difference, and Justice Scalia would be in impressive company if he failed to fully grasp when he has left interpretation behind and entered what Larry Solum calls “the construction zone.”

But does this mean that, when confined to the realm of “interpretation,” originalism is so indeterminate as to be uninteresting? That “all the action” is in the construction zone? If that were true, we would not have spent the past 30 years debating the original meaning of the Second Amendment so ardently. That the Second Amendment protects the rights of individuals to possess and carry weapons for lawful purposes is of enormous significance. It sets what Fred Schauer has called the “frame” within which construction is being done. While there is more than one construction that can put this individual right into effect within the frame, the DC gun ban was outside the frame and properly struck down here.

This is what the debate between Justice Scalia and Justice Breyer was largely about. When Justice Breyer proposed a balancing test, Justice Scalia responded that this was not how express constitutional rights are protected. That the Second Amendment protects a right makes a simple rationality test of the sort favored by Justice Breyer outside the frame. Some meaningful level of scrutiny is required to vindicate and protect a right from governmental abuse. But what the precise level of scrutiny ought to be–and how it applies to particular gun regulations–is a matter of construction. More than one doctrine is within the frame, even if Justice Breyer’s approach is outside because, in effect, it sanctions the violation of an individual right by the government that the Bill of Rights is there to constrain.

There is much more to be said about all this than I have said. I do not claim to have addressed all the fascinating issues raised by Heller, or by the posts by Brian, Jack and Larry. Jack and Larry are engaged in a good faith examination of how an originalist ought to do constitutional construction. If you are sincerely interested in these crucial issues, don’t just dash off a comment responding to these brief remarks. Read Brian Leiter’s challenge. Read Jack Balkin’s take. Read Larry Solum’s excellent posts. (The links are all above.) Then stop for a moment and think about how this distinction might illuminate how you approach these issues. Of course, like any conceptual distinction, the line between interpretation and construction is itself vague. But once one realizes that courts and other interpreters are engaged in two closely related but distinct endeavors, much confusion is avoided. And consensus on a great many issues can be attained, while reserving our debates for those important issues–typically involving matters of constitutional legitimacy and construction--about which we truly disagree.

[My concern with Justice Scalia's analysis of original public meaning is his thesis that:
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation.
I do not think that this "particular purpose" is part of the semantic meaning of the right. In my view the right is unqualified by any purpose including that stated in the preface (which is where I disagree with Justice Stevens). It would therefore protect weapons being used for any "lawful" purpose, including the lawful purpose of self defense. I suspect that Justice Scalia makes this move because he does not completely appreciate the distinction between interpretation and construction, so he (like so many others) feels the need to build into the "meaning" of the text limitations on its reach, rather than assessing these limitations as the inevitable need to resolve the vagueness in meaning that gives rise to the need for construction. Of course the original meaning of a particular term or phrase in context could be limited in its scope (as I believe is true about "the rights . . . retained by the people" in the Ninth Amendment) But the paucity of evidence presented by Justice Scalia in behalf of this specific conception of bear arms is an indication that he has strayed here from the realm of constitutional meaning into the construction zone.]]]> Litigation or Corporate? Advice for Law Students: http://volokh.com/posts/1215092498.shtml ... Orin Kerr 2008-07-03T13:07+00:00 has a terrific post for law students considering big firm practice on how to choose between litigation work and transactional work. Via ATL.]]> How Fast Is Google?: http://volokh.com/posts/1215057244.shtml I am posting this at 12:54 am Eastern Time, 11:54pm under the VC clock. I will then check Google to see how long it takes them to record the post and... Orin Kerr 2008-07-03T03:07+00:00
  UPDATE: It posted at 1:09, for a time of 15 minutes. Interesting. And now back to our regularly scheduled programming.]]>