Paper ballots?
Will paper ballots really fix this problem? They are going to have an error rate, all systems do. Any state that uses two systems will have differential error rates for different voting systems. Indeed, even if a state used a single uniform system,the inevitable differences in its application will produce different error rates. Theoretically, I think this is an irresolvable mess. One could establish some de minimis acceptable difference in vote counting systems, but I don't see that rule in Bush v. Gore. I'm not sure it could be pulled from Bush v. Gore, because I don't think there was any evidence of greater than a de minimis difference there. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Membership in Disfavored Organization as Grounds for Dismissa l as School ...
Isn't the NAMBLA case analogous to the NY police racist float case? In both instances, the government is taking speech/association and using it to infer a risk of misbehavior on the job. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Agenda and persecution of Mormons
I don't see how one can argue that the LDS church hasn't changed its religious views on polygamy. We know that they now excommunicate someone for engaging in polygamy. To say that this was just a concession to civil authority is pretty demeaning to the church, I think, suggesting that they would so greatly compromise their religious beliefs to this degree to civil authority. Perhaps they would accept the law as against their beliefs but if those beliefs are sincere they would not aggressively enforce the law. The law certainly didn't require that they excommunicate those who practiced polygamy. Also, to Paul Finkelman, how do you compel polygamy? Do you punish men for having only one wife? Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Agenda and persecution of Mormons
Re Marci Hamilton and Tom Grey's point: I recognize very well that religions could with integrity choose to comply with civil society and even be informed by civil society in their beliefs. However, if the LDS thought that polygamy was religiously compelled and then, in the face of government opposition, not only agreed to give up polygamy but also excommunicated those who disagreed, they are going far beyond the demands of civil society. I think the LDS take the position that there change was a sincere change in belief, not merely a compromise with civil authority. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Puzzles re: Grutter and Korematsu - hispanics
I had the same instinctive response as Mark but have been told by a Dean that most law schools have already hired lots of admissions officers in numbers sufficient to do the individualized decisionmaking required by the Court. Law schools tend to have bucks, you know. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Shameless self-promotion: A column on Lawrence in a local ne wspa per
Well, while we're evaluating the editorial, I would like to lodge an objection to the reference to totalitarian majoritarianism. While I suppose the two are not definitionally in conflict, has any majoritarian state been totalitarian in world history? At least in modernity? I suppose we all use a little hyperbole in editorializing, but I suspect majoritarian states have been a lot better for gay rights than nonmajoritarian states. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: Lawrence vs. Glucksberg
Isn't it obvious? The Court is doing what it has long done, acting as Posnerian wise elders squarely within the mainstream of American elite opinion, imposing this vision on aberrant states. Scot Powe pretty persuasively explains most Warren Court holdings on this basis. Only Powell's unexpected temporary brain lock and lapse from such elite opinion made it take this long. I wouldn't expect much sequelae from this case, any more than from Bush v. Gore. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: More on recess appointments
Sandy asks: Assume that you are asked to advise Iraq on drafting its new constitution (or, for that matter, the European Union), and you suggest some kind of separated powers a la Americaine, including recess appointments for members of the Executive Branch. Would anyone on this list say that the president should also be able to make recess appointments to an independent judiciary protected against capture by either president or senate? (Is your answer at all relevant to deciding how best to interpret the Constitution that we have?) I think I might so authorize recess appointments, though I would be inclined to leave the issue open in a constitutional text and see how it plays out. First, I would argue that the independent judiciary is a misleading concept. Our courts have never had a pristine independence and have always been subject to some influence, direct and indirect. And I think much of the judicial independence we have lies in a generalized respect for an independent judiciary by the political branches rather than in constitutional text. Second, I would argue that the Constitution should be interpreted to permit a measure of accommodation among the branches, rather than creating rigid rules. Recess judicial appointments seem like something to countervail the Senate filibuster. Both are exceptions to the norm and tend to be used only when the institution both cares deeply about a candidate and thinks that it has sufficient democratic support to sustain its position politically. Ultimately, though, I would want to see empirical evidence, which would be readily available. It would not be too difficult to examine the actions of recess appointments and see if they seem unusually deferential to Senate preferences or see if their votes change upon receiving life tenure. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
Re: WMDs and Bush Impeachment
I think we have established, constitutionally, that lying is not an impeachable offense. At 06:28 PM 6/7/2003 -0400, you wrote: Prof. Maule writes: In other words, there is or should be far more concern about the present location of WMD rather than whether they existed. They almost certainly existed, it is debatable whether their existence justified what happened, and so the question is where are they now and how did they get there. Comment: It was not clear to the international community and others that WMDs existed at the time of the U.S.' invasion. Of course, they existed in the 90s, but it was not at all clear that WMDs existed in 2002. Bush articulated a foreign policy in 2002 justifying pre-emptive strikes on the grounds that WMDs created a threat of imminent attack, and the Bush Administration is now using this stick against other states (Syria, Iran, N. Korea) to compel them to act in conformity with U.S. policy. Francisco Forrest Martin Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
