Professor Russell Arben Fox (whose blog I don't link to enough) is searching for recommendations about good choices for teaching politics through movies. (He has already fastened on Dirty Harry and Liberty Valance; both great choices). Since many readers of this blog like both politics and movies, some may be able to help him.

The Supreme Court has decided to decide the constitutionality of the Solomon Amendment (which conditions federal funds on a school's willingness to open up to military recruiters). I've posted on this before (1, 2, 3) and I think there is a lot of lousy police here on all sides. The military shouldn't discriminate against gays in the military, but it does. The federal government shouldn't demand that schools let the military recruit on campus, but it does. The schools shouldn't try to keep the military off, either, but they do. A bunch of powerful institutions duke it out, with nary an individual right in sight.

This post at Prawfsblawg views the upcoming case through the lense of institutional free speech, arguing that universities ought to have free speech rights entirely apart from the free speech rights of the professors and students that make them up. A dutiful follower of Harry Kalven, I think this is all wrong. "The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic." (From the Kalven Report.)

There might be some good reason to treat Universities as special free speech havens where normally-applicable laws cease to be able to coerce individual students and individual professors. (Allowing, e.g., increased fair use of copyrighted material in educational institutions or a higher threshold before advocacy of criminal conduct could be punished.) But that's not what's going on here, where the schools avowedly want not to prevent individual students from being forced, for example, to serve in the military; instead, the school wishes to collectively condemn military policy. I'm not sure how this case should come down on doctrinal grounds, but as a pragmatic matter, nothing but mischief can come of the free speech claim here.


[Incidentally, there is a bunch of other interesting stuff over at PrawfsBlawg, including Kaimi Wenger's exploration of how secondary journals at top schools compare to primary journals at lousy schools and an anonymous poster's exploration of whether we should have Lo-Jack for toddlers.]

I read the comments section at Kevin Drum's otherwise good blog only as an exercise of the triumph of hope over experience. Nonetheless, just as Dan Drezner is taking a spin posting there, Jacob Levy can be found mired in the comment-muck.

See, e.g., this comment about unjust tax rates.

UPDATE: contrary to my own instincts (but in line with the sharp-eyed Phoebe Maltz's) Professor Levy can also be found in the comments to Phoebe's blog applying the principle of bedikat chametz to laptop keyboards.

In a recent post David Bernstein quotes an earlier one:

I know that both Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too.

The Texas statute, the Georgia statute, and a host of possible alternatives are not monuments to the ignorance of man. They are uneasy but reasonably responses to most troublesome questions. They should not be struck down as unconstitutional by the Supreme Court, particularly in an opinion that avoids in the name of privacy the hard questions that must be faced to reach that result.

I am pessimistic about our society's ability to resolve these differences, because no amount of artful compromise can bridge the huge moral divide represented by the person/nonperson dichotomy. The abortion issue is vastly different from many questions of property and economic liberties because there is, quite literally, no way to divide the baby. . . . It takes no crystal ball, but only a look at the recent controversy over abortion counselling, to see that the current struggles will continue with undiminished intensity in the foreseeable future, no matter what the future of Roe v. Wade.

I expressed many of my views some years ago in Richard A. Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159. These have changed on matters of detail, but on matters quite irrelevant to Glendon's book. There is no prospect of treating abortion as a problem amenable to a market solution because of the evident impossibility of fashioning any contract between mother and fetus, much less a contract for abortion that works to their mutual advantage.

I really ought to be back at my desk studying for Federal Courts (can anyone explain the difference between a "case" and a "controversy" in Article III?), but I noticed this fascinating article in the usually desultory Business section of the Washington Post about Halal meat factories in the Washington D.C. area. Two particularly interesting points.

First, the Halal manufacturers are lobbying for a state law making it illegal to say that your meat is Halal when it isn't. In the paper that I just finished on geographical indications (a rough draft of my chapter on the great wine revolt of 1907 is available here) I argue that this kind of local "geographic indication" law is evidence that America's trademark and unfair competition history should be no bar to adopting a European style geographical indication regime, setting up a national registry within the WTO protecting foods made by localized or specialized skill or craft. Wild Rice harvested by Indians is protected in Minnesota - Hams in Virginia - Vidalia Onions in Georgia. Protecting parmesano regiano would not be such a big change.

Second, there's an interesting point about the mechanics of halal meat. Apparently, you're meant to slit the throat and invoke the name of God as you do so. But this takes time, forcing Halal meat to sell at a premium, and thus excluding large, potentially national, producers. But what if a machine doing the slitting said "Allah" for you? Can a soul-less being invoke the name of God? If I was a meat manufacturer, I'd have hired the best immans to convince people that it can.

UPDATE: Blog-lord Will notes correctly (in email) that a geographical indication on "halal" would implicate the first amendment, as similar laws have done for kosher foods. As he says, what if the government establishes a geographical indication for halal, and then some other immam says that robots saying "Allah" as they snip is ok?

I spent yet another Greyhound bus ride reading another Currie book, this time volume three of The Constitution in Congress: Democrats and Whigs, which the Interlibrary Loan office found for me last week. (Volumes 1 and 2 were books five and fifteen respectively). This time there was too much Constitutional deliberation for Currie to cover the period from 1829-1861 in a single book, so the economic stuff and miscellany was kept in this book, while the slavery skirmishes were split off into Descent into the Malestrom, which will come out later this year (but when?). That means this book has less of a consistent theme than some of the previous books, but it is still littered with fascinating characters. In addition to Clay, Webster, and Calhoun, who are the main heroes of the story, (Currie disapproves of every president in this time period except for James Polk) we hear from such characters as Gulian Verplanck, a classicist, theologian, and lawyer who fought hard against governmental Thanksgiving proclamations and tariffs before retiring to New York to produce a complete edition of Shakespeare's works and look after impoverished immigrants, as well as North Carolina's George Badger, who defended the constitutionality of the Wheeling Bridge statute without impugning judicial review. The Supreme Court apparently refused Badger's nomination to the Supreme court in 1853 because he thought (contra Dred Scott) that Congress could ban slavery in the territories. Adds Currie, "My praise here and elsewhere for the admirable Badger has nothing to do with the fact that I spent several happy formative years living in North Carolina."

At any rate, there is much more, but at this point it is hard to know where to begin or end. Long live David Currie. Or, as he ends the book: "Let us not tarry here. There is another story to be told, and I am eager to tell it. See you in volume four!"