Telling Miller’s Tale: A Reply to David Yassky

A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard model and has started to generate alternatives to the Standard Model. Denning and Reynolds critique that part of Yassky\u27s theory dismissing United States v. Miller as providing the basis for an individual rights interpretation of the Second Amendment

Is Democracy Like Sex?

Despite the end of the Cold War, democracy seems to be in bad shape these days. In fact, there has been a modest boom in books and commentary proclaiming either the inadequacy of democracy or its imminent demise. According to at least one commentator, we face the possibility that American democracy will turn out to be a failure. Much has also been made of the gloomy assessments of American democracy contained in recent books by Christopher Lasch and Jean Bethke Elshtain. Such gloom seems a natural follow-on to the generally negative evaluations of democracy as a decision-making device provided by the works of decision theorists such as Kenneth Arrow, and, more recently, by public choice theorists. It has even been suggested that democracy may be a victim of its own success: too much democracy, we are warned, may be the death of America as a vibrant and productive society. I would be the last to argue that this concern is entirely misplaced. As I have suggested elsewhere, there are real problems with the way our society addresses and resolves important issues. Those problems undoubtedly incorporate the shortcomings of democracy (at least as it is currently practiced) in some ways. But I also believe that things may not be quite as bad as pictured, for some surprising reasons. In short, I believe that some of the characteristics of democracy that are often portrayed as shortcomings may actually be strengths. If properly appreciated, these characteristics may even be seen as protections against the very kinds of problems that today\u27s commentators describe. Furthermore, a proper understanding of the role of democracy in our constitutional system suggests that many of the structural reforms being urged by some who complain about special interest dominance are likely to make things worse, rather than better. To explore this idea, I have chosen as an analogy or metaphor another widely criticized and misunderstood institution-sex. In short, some discoveries resulting from the application of complexity theory to the question of evolutionary fitness among biological systems have important implications for our discussion of the fitness of the body politic. Both kinds of systems face a similar problem-main- taining a balance between adaptability and stability on the one hand, while resisting parasitism on the other. In essence, democracy can be viewed as serving the same function in political systems that sex serves for biological systems-enhancing resistance to parasites. As it turns out, this approach raises important questions regarding the merits of many proposals for fixing current democracy through, for example, electronic town meetings, in which citizens vote directly on issues, or term limits for elected officials. This Essay will first summarize some contemporary thinking about the role of sex in evolutionary biology. Next, it will briefly outline some reasons why the conclusions reached by evolutionary biologists regarding the advantages of sexual reproduction are likely to be applicable to complex dynamic systems that are not biological, including political systems. It will then apply this construct to analyze the outcomes of two recent Supreme Court cases. It will conclude with some observations about what the similar roles of sex and democracy can tell us regarding our American constitutional system, including various proposals for its reform

Congressional Control of Presidential Pardons

The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act is even complete? These are interesting questions, but I intend to address a related, but broader, question: To what extent may Congress, via legislation, regulate the president’s pardon power? Though it is well established that the power is plenary, does that insulate the pardon power from any Congressional regulation or oversight at all? And if the answer to this question is “no” (and it likely is), then what sort of Congressional regulations and oversight are permissible? I will address these issues in this short Essay and offer some suggestions for how Congress might lawfully regulate, or at least regularize, the pardon power

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

Penumbral Reasoning on the Right

The use of penumbral reasoning in cases like Griswold v. Connecticut has received considerable criticism from so-called conservative constitutional commentators, most notably Robert Bork. This essay demonstrates that penumbral reasoning is also widely used by courts in service of results generally regarded as conservative, with much less controversy. Penumbral reasoning, it suggests, is an essential implement in the judicial toolbox, and worthy of more respect, and use, from courts that care about fidelity to constitutional text and structure

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

International Space Law: Into the Twenty-First Century

In this Article, Professor Reynolds addresses the space law issues likely to be of most importance in the next several decades. Pressing issues include those of orbital debris and geostationary orbit crowding, private property rights in outer space resources, conflict over international trade in space goods and services, the danger of ballistic-missile technology proliferation, private remote-sensing systems, and the law of international cooperation in space. Professor Reynolds concludes with a philosophical and practical discussion of some more remote issues, including the legal systems that may govern future human societies in outer space and the legal issues that might be associated with contacting extraterrestrial intelligences

Pulsed Nuclear Space Propulsion and International Law: Some Preliminary

Pulsed Nuclear Space Propulsion, researched in the 1950s and 1960s by such eminent physicists as Freeman Dyson, Ted Taylor, Theodore von Karman, and Hans Bethe, involves propelling large spacecraft using compact nuclear explosions from specialized atomic devices. This technology is often known by the name of the Air Force project in which it was developed: Orion. It has long been believed that the 1962 Limited Test Ban Treaty prohibits the use of nuclear pulse space propulsion. After a survey of the Orion project and its results and a review of the applicable law, this Article concludes that language in the 1967 Outer Space Treaty may override the Test Ban agreement to permit non-weapons use of nuclear explosives for propulsion. With a new space race taking place and with important actors such as China not subject to the Test Ban Treaty at all, the subject of pulsed nuclear space propulsion deserves another look