Balkinization

Jack Balkin at Yale has some relevant thoughts on the topic. The video is worth watching for the historical analysis alone. https://balkin.blogspot.com/2018/05/the-first-amendment-in-second-gild…

It’s also toxic to talk about legal decisions only in terms of the political implications while ignoring the legal ones. The way you are talking about law bears no resemblance to how law should work. It’s worth zooming out and looking at how constitutional law works in other countries. For the most part, in other advanced democracies, the courts stick much closer to the law and less to the politics than what you’re advocating. For example on Loper: https://balkin.blogspot.com/2023/10/chevron-viewed-from-france.html (“The first point to make here is that in European legal systems, it is the responsibility of the courts to give a definitive interpretation of the law, not the executive, and as a result any such interpretation by the administration (including administrative agencies) is subject to review by courts.”) Likewise with Dobbs, France’s Macron criticized that decision. But French courts had never recognized some supra-legislative right to abortion, and the European Court of Human Rights had repeatedly declined to overturn Ireland’s and Poland’s abortion bans (despite having a more explicit privacy right to work with). French courts have similarly refused to intervene to strike down hijab bans. The German high court last year rejected a challenge to Bavaria’s law requiring display of Christian crosses in public buildings. It’s not because those countries don’t have constitutional text that could be interpreted to strike down those laws. It’s because European courts…

All else equal, education is good, but education isn't going to make everyone into healthcare policy wonks, nor is that necessarily a good use of everyone's time. Which... is a problem when the programs are designed so that you more or less have to be a healthcare policy wonk to understand them. Obamacare is unpopular in part because it's incredibly complex. On the political side that makes it an easy target, because you can blame everything on it, and some of that will stick. But it also makes it unpopular for substantive reasons, in that people really hate the experience of interacting with it. You rarely get people who like Obamacare; its supporters, at best, think it's less bad than what was there previously. I follow the area pretty closely, am quite left-wing politically, clearly think it's better than the alternative, and nonetheless when I was signing up for a marketplace plan last year, even I found the experience frustrating and complicated. You need to understand a pretty big range of things to just understand the baseline terminology and market setup: the subtleties of in-and out-of-network coverage (did you know that in-network hospitals can have out-of-network doctors?), the different kinds of deductibles, out-of-pocket maximums, the subsidy schemes, etc. Then you have to learn how to read the policy documents of each plan in light of this new terminology you've learned, and compare them in order to act as an informed market participant. The healthcare.gov…

And this doesn't include the messiness in the decisions themselves. Judges often edit the decisions for some time after they are published. For example, Souter was editing his published opinion in Lee v. Weisman nine years after the case was decided. https://balkin.blogspot.com/2025/05/a-justice-souter-anecdote-or-seein…

This is debated.[1] And sufficient unity and motivation do not exist in Congress now. Theoretically was appropriate. [1] https://balkin.blogspot.com/2012/04/who-won-new-deal-confrontation-bet…

true, the good old HRE, which was none of the three... incidentally, while looking for NdBdM's foxes and lions, I ran into something else: when I'd bounced off of Moldbug, there was one thing that seemed to be an actual claim, and not just vibe: that neo-nazis don't ever go around saying that the historical Nazis had just implemented it wrong; they weren't doing true Nazism. At the time, I couldn't think of any counterexamples, but I've recently learned Leo Strauss is one: https://balkin.blogspot.com/2006/07/letter_16.html#:~:text=the%20fact%… It was only 1933, and I only have it in translation, but still: he seems to me to be claiming to intend to argue that the historical Nazis were not behaving according to true "fascist, authoritarian, and imperial principles"?

IANAL, but there's a been a trend in American jurisprudence to raise the standing barriers for effective litigation. Scott Lemiuex, a political scientist has written a bit on this point [1]; see also this balkinization post [2]. In general, the courts show extreme deference to the executive on matters of secrecy and national defense, so I'd expect they'd be disinclined to give anyone standing. [1] http://prospect.org/article/slow-motion-destruction-establishment-clau… [2] http://balkin.blogspot.com/2007/04/standing-and-executive-power-in.htm…

There used to be a dual-track system, where you could study law by either attending a law school, or apprenticing with an existing practicing lawyer for some set amount of time; and either way you could then take the bar exam to be licensed. Typically people would go the apprentice route to become trial lawyers, and the law-school route to become appellate lawyers or specialists. Seems the apprentice route has either been abolished or fallen into disuse, though. This article's proposals for reform don't really seem on the mark, though. As this post points out, his suggestion for expanding law-school practical clinics, and staffing them with tenured faculty rather than instructors, is pretty directly contrary to his complaints about the expense of law school, since that would only increase it: http://balkin.blogspot.com/2011/11/david-segal-on-law-schools.html

I strongly dispute that the investment/payoff ratio is worse for M.D.s than J.D.s. Lawyers 44-173K (Imputed median 108k) General Surgeon 225K Paediatrician, General 95K Family Physician 164K For various "Physician" categories the median goes from 118 to 217K. (All salary data taken from payscale.com) This neglects the fact that most people who finish medical school get fulltime permanent jobs as doctors, while getting a J.D. is a disastrously bad idea unless you can get into a T14 school, and not actually a good idea unless you can get into a T6[0] [0]http://insidethelawschoolscam.blogspot.com/ written by a law school professor http://balkin.blogspot.com/2011/10/depth-and-breadth-of-misleading.htm… evidence that newly qualified lawyers aren't getting paid much, even if they've got jobs

This commentary is interesting (and non-alarmist): http://balkin.blogspot.com/2010/04/whats-next-for-network-neutrality.h…