H.W. Perry and L.A. Powe, Jr. (both Texas), as well as Daryl Levinson (Harvard) and Richard Pildes (NYU), among others, have argued that it's not the separation of powers per se between the three branches of government that insures checks and balances in government, but rather the separation of power over the branches between the parties that really provides meaningful checks and balances. In this short essay, Peter Shane (Ohio State) argues, instead, that, given the current condition of the Republican Party, real checks and balances will come from Democratic control across the board. I imagine this will spark a spirited debate.
A job candidate informs me that South Carolina has had to cancel all its AALS interviews due to state budget cuts. This is yet another sign that this is likely to be a tough year on the academic job market due to the finanical crisis.
Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”
But seriously, it's obvious to anyone who is sober that the Heller originalism dance is a charade and that, as Judge Posner notes in How Judges Think (surely the most important book on judging by a judge since Cardozo's The Nature of the Judicial Process eighty years ago), the Supreme Court is essentially "a political court."
...but they trundle on with their rankings of the "top 500" attorneys in America, based on no discernible or intelliglbe criteria (as we've had occasion to note before). Here are the schools with faculty on the newest list: Harvard University (Lucian Bebchuk, Cass Sunstein [though he is listed with Chicago, where he is a regular visiting professor]); University of Chicago (Eric Posner, Geoffrey Stone, plus part-time faculty Sunstein and Judge Richard Posner); Columbia University (John Coffee); Georgetown University (Neal Katyal); George Washington University (Jonathan Turley); Stanford University (Joseph Grundfest); University of California, Irvine (Erwin Chemerinsky); University of California, Los Angeles (Kenneth Klee); Yale University (Harold Koh).
UPDATE: I should note that there is an error (which will be fixed shortly) with respect to Brooklyn Law School: their (quasi-) 'per capita' number (for comparative purposes) should be .18, not .30--they graduate close to 500 per year, whereas we had, wrongly, used initially only the full-time student enrollment figure.
As longtime readers know, I open comments selectively when I think reader input is likely to be especially informative and when I have time to moderate comments. This practice has worked well, in terms of the quality of the comment sections, but it is time-consuming and it also means that relatively few threads have commenting opportunities. But it seems to me that more laissez-faire policies have significant disadvantages.
First, there are likely to be far more anonymous comments, and anonymity generally encourages irresponsible behavior (videthe Autoadmit fiasco). Second, there would be a lot more spam--a lot of older threads with open comments get spam fairly regularly, but that never sees the light of day under the current system. Third, the quality of threads is likely to be much more uneven--take a look at Crooked Timber or Volokh Conspiracy threads to get an idea of what tends to happen. There are some folks who comment rather excessively on any blog where the opportunity presents itself, and what they have in common is rarely skill and insight. The comment sections of highly-trafficked blogs are very attractive for those who want attention, and especially if their professional competence does not permit them to get such recognition from established fora outside the blogosphere. (This blog is certainly not as highly trafficked as some, but it has, shall we say, an unusually 'high quality' audience, at least for anyone wanting to reach Deans and law faculty.) And some nuisance commenters are just literally nuts. (Pharyngula maintains a whole list of permanently blocked commenters, including some denizens of Cyberspace whom he deems, not implausibly, to be mentally ill--a phenomenon, needless to say, with which I have some familiarity.)
The question, of course, is how likely it is an "open" comments policy here would devolve in these ways. These days the quality of submitted comments are pretty good, and I approve at least 90%. On the other hand, the amount of garbage would surely increase if there were not the specter of comment moderation, so for the foreseeable future I intend to maintain the comments status quo, especially since--notwithstanding the reprehensible Section 230 of the Communications Decency Act which insulates me from liabilty for any of the defamation or tortious material that might show up in the comments of my blog--I'd rather not have a site bearing my name be the repository for the kind of garbage that is typical on the blogs that do not moderate comments.