Splitsylvania: State Secession and What to Do About It

Intrastate secession is the true secession fever: not the perennial postelection calls of losing parties to secede from a nation controlled by the opposition, but a growing movement for secession from states, with the rural parts of states (sometimes geographically very large parts of states) wanting to separate from the population-dense urban areas that essentially control state decisionmaking. Feeling ignored, put-upon, and mistreated, secessionists want to take their fate into their own hands. These movements are common, but not likely to succeed on their own, as intrastate secession is, though not entirely unknown (see, e.g., West Virginia), very difficult to achieve. But these movements do indicate a widespread sense of dissatisfaction among (mostly rural) populations who feel that they are governed by people in distant urban centers who know little, and care less, about their way of life. Such sentiments, which in a way resemble those regarding Britain in the lead-up to the American Revolution, have probably worsened since the Supreme Court’s line of cases beginning with Baker v. Carr weakened rural areas’ political position in favor of urban areas. This problem was, to a degree, foreseen by contemporary critics of those decisions. In this short Essay, I will describe the problem, and suggest some ways in which—without overturning existing Supreme Court precedent or engaging in the sort of constitutional brinksmanship described above—Congress might remedy this dissatisfaction. Though there is no particular reason why the number of states in the United States should remain fixed at fifty, I will suggest that there are, in fact, remedies short of secession. The result of addressing these concerns, I hope, will be a less-polarized and angry national politics, and perhaps a smaller chance of serious turmoil

Libel in the Blogosphere: Some Preliminary Thoughts

People have been talking about libel and bloggers since the blogosphere was new, but the big news at this point is that, so far at least, there’s more talk than action—despite the millions of blogs, and probable billions of blog entries to date, there haven’t really been any major blogrelated libel cases, and the number in total is quite small. People are still talking about Blumenthal v. Drudge, a case that predates the blogosphere, when they talk about blogs and libel, and no major new case has emerged to take its place. The absence of a major blog-related libel case in the United States after so much blogging is itself a pretty interesting phenomenon. In this short Essay, I will offer some suggestions as to why blog-related litigation has been relatively scarce, along with some observations on what law has developed, and some thoughts on the ways in which, and the extent to which, questions of blog-related libel should be treated differently than libel in newspapers, books, or television broadcasts

A Due Process Right to Record the Police

Do citizens have a right to record the actions of law enforcement officers? This topic has been the subject of considerable discussion, and no small degree of litigation, in recent years. The increase in litigation is driven by dramatic improvements in camera technology, which allow individuals to record and share images in ways that were previously available, if at all, only to members of large media organizations. Most of the discussion and litigation has revolved around the question of whether there is a First Amendment right to record police officers in public. In the recent First Circuit case of Glik v. Cunniffe, for example, passerby Simon Glik caught sight of three police officers arresting a young man. Hearing a passerby shout that the officers were hurting the man, Glik turned on his cell phone and began capturing video. The police officers objected to being recorded, arrested Glik and charged him with violating the state’s “wiretap” law by recording them without their consent, and seized his camera and memory chip in the process as evidence. The First Circuit held that the right to record police officers in public is a “clearly established” part of the First Amendment’s protections, and held the officers were not entitled to qualified immunity. Though the issue has not yet reached the Supreme Court, it seems safe to say that the case for First Amendment protection regarding photos and video of law enforcement officers in public is quite strong, and is in the process of being resolved. This Article, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and litigation are sure to be forthcoming

Heller\u27s Future in the Lower Courts

The Supreme Court\u27s recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a collective right interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called new doctrinalism

Baker Center Journal of Applied Public Policy, Vol. III No. I

Welcome to the third issue of the Baker Center Journal for Applied PublicPolicy. I am pleased that this issue, as its predecessors, evidences the vibrancy of the Baker Center’s governance and public policy programs and makes a contribution to our collective understanding about a variety of policy issues currently being discussed in America. Relating to our system of governance, Jess Hale Jr. examines a proposal for a uniform state approach to reining in renegade presidential electors and Professor Glenn Reynolds reviews Jack Goldsmith’s book The Terror Presidency: Law and Judgment Inside the Bush Administration. Relating to media and foreign affairs and the role of the media in political life, Dr. Mike Fitzgerald and two of his students provide us with “A Comparative Study of Images Created by Press Coverage of the United States and the Republic of Belarus.” Relating to health policy, Dr. David Mirvis, recently appointed as a Senior Fellow for Health Policy at the Center, explores the public policy implications of viewing health as an engine of economic growth. Relating to energy and environmental policy, Drs. Bruce Tonn and Amy Gibson and Baker Scholars Stephanie Smith and Rachel Tuck explore U.S. Attitudes and Perspectives on National Energy Policy. I am also very pleased that this issue includes a report of an excellent conference – “Formulation of a Bipartisan Energy and Climate Policy: Toward and Open and Transparent Process “- that was co-sponsored by the Baker Center and the Woodrow Wilson International Center for Scholars. This issue also includes the result ofanother successful collaboration between the Baker and Wilson Centers that focused on “Five Public Policy Ideas for Building Obama’s New Economy.” I look forward to further productive collaborations between the Baker and Wilson Centers. Relating to global security policy, this issue includes a Student Symposium onNational Security. Although the Baker Center Journal has provided an outlet for publication of student scholarship since its inception, I am particularly pleased that the student co-editors - Baker Scholars Elizabeth Wilson Vaughan and Bradford A. Vaughan - took the initiative to expand upon the efforts of their predecessors and to provide us with an expanded set of excellent students essays each of which addresses an important national security policy issue. It is an important part of the Baker Center’s mission to engage UTK students in the political and public policy process, and I applaud our student authors fortheir contributions to this symposium. I hope you find this issue of the Baker Center Journal for Applied Public Policy to be both interesting and thought-provoking and that it will encourage you to participate in America’s unique and wonderful political and policy processes

Baker Center Journal of Applied Public Policy, Vol. I No. I

Welcome to the first issue of the Baker Center Journal of Applied Public Policy. Throughout my many years of service, I always have been impressed with the tremendous good that can be accomplished through the creation and implementation of sound public policy. I hope that, along the way, I have contributed to the body of policies that help our nation function in a strong, effective, compassionate, and prosperous fashion. As we launch this new Journal, under the auspices of the Howard H. Baker Jr. Center for Public Policy at the University of Tennnnessee, I wanted to briefly expand on some of the reasons I believe that this journal is necessary and why I believe that research on public policy is so vitally important. This Journal aims to discuss applied public policy. The goal is not to engage in theoretical discussions, though I believe those are important. Instead, we hope that the Baker Journal will focus on the most current issues that directly affect our nation and our world on the operational, or mechanical level. We intend to engage a wide variety of contributors. Scholars, of course, will be asked to write on critical topics of research. We also aim to include contributions from those who draft, approve and execute public policy at the local, state, and national levels. Additionally, at least one article in each issue will be reserved for the work of a university-level student. Our approach is varied, and I know that the result will be an intellectually sound and extraordinarily interesting presentation of experiences and ideas.I am especially pleased that so many University of Tennnnessee students are involved in the formulation and operation of the Journal. Our editorial board is comprised of some of the University of Tennnnessee’s most promising undergraduate, graduate, and law school students. With dedicated assistance and oversight from faculty and from the Baker Center, this board of extraordinarily intelligent and committed students has worked very hard to make this Journal a reality. The Center has also formed a national advisory panel for the Journal. I am a member of that panel, and I must note that I am grateful for the involvement and support of my colleagues who have agreed to serve with me: Ms. Emily Reynolds, former Secretary of the United States Senate; Congressman Bob Clement, former Tennnnessee Congressman; Mr. Glennnn Reynolds, noted author and professor of law at the University of Tennnnessee; Dr. Joseph Cooper, an accomplished professor of political science at Johns Hopkins University; and Mr. John Seigenthaler, distinguished journalist and founder and director of the First Amendment Center at Vanderbilt University. I believe it is critical that we think deeply about the issues that are confronting us today. Our representative system of governance is based on an informed citizenry and informed public servants. From international issues such as the war on terror and energy challenges to more local but equally important topics such as sustainable development and education, we must commit ourselves to understanding all challenges free of partisan rhetoric. Only then can we confront them together. It is my hope that this Journal will add to that understanding and will speak to many audiences. From the classroom to the boardroom, from city hall to the halls of our legislatures, I believe the work put forward in our journal will be useful for everyone who wants to be informed and engaged. It is an exciting undertaking, and I thank you for your support

Nanotechnology and Regulatory Policy: Three Futures

This Article outlines the basic characteristics of nanotechnology as it is currently understood and will briefly describe some of the technical - and social - consequences likely to arise as nanotechnology matures. Next, it examines three potential approaches for regulating nanotechnology and the likely consequences of each. The Article concludes with suggestions for further study, as well as a list of dos and don\u27ts for regulating nanotechnology

It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing

In this Essay, the authors demonstrate that Communitarians and militias actually have more in common than it might at first appear. Summarizing the Communitarian agenda, the authors note that Communitarians speak a language that would be readily understood by the Framers, who saw militias as an important vehicle through which civic virtue could be transmitted