Role of Strategic Reasoning in Constitutional Interpretation: In Defense of the Pathological Perspective

A Wiener model consists of a linear dynamic block followed by with a nonlinear static block. When identifying the parameters of such a system, the Prediction Error Method (PEM) can be used. Depending on how noise enters the system, the predictor can be difficult to express, and an approximate predictor may be interesting. The estimate obtained from using this approximate predictor is however not always consistent. In this report we investigate this inconsistency

Six Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing

The future of political freedom in the United States hardly turns on whether women have a First Amendment right to dance in the nude in bars and peep shows. The future of artistic freedom is perhaps implicated by this question, but only if the law\u27s demand for general principle prohibits judges from treating expressive nudity in those environments as fundamentally different from expressive nudity in ballet performances, museum exhibitions, and films. Barnes v. Glen Theatre, Inc. is an interesting and potentially important case not because of the significance of the specific issue it decided, but because it provoked a lively debate among several articulate judicial conservatives. By looking closely at that debate, we may discern some of the themes and tensions that will be played out as the First Amendment enters a period of conservative dominance of the federal judiciary. Between 1937 and 1941 President Franklin D. Roosevelt appointed seven Justices to the Supreme Court. As a result of this rapid change of personnel, the Court seemed dangerously monolithic. Its dialogue on the great constitutional issues of the day ran the risk of becoming impoverished due to the lack of ideological diversity. Of course, nothing of the sort happened. The Court of the 1940\u27s and 1950\u27s was deeply divided, probably fractious to a fault. The divisions of those years produced a clash of judicial philosophies that continues to set the terms of modern constitutional debate

Harry Kalven, Jr.

The first week of law school is for most students an intimidating experience. Everyone is so serious. My first week was leavened considerably by Harry Kalven. A group of students and Kalven were watching the seventh game of the 1964 World Series in the student lounge of the University of Chicago Law School. The broadcast was interrupted by a news bulletin: Nikita Khrushchev had just been deposed. Viewers were treated to several minutes of political and diplomatic analysis, with correspondents around the globe speculating on what this might mean for East-West relations. One of my classmates, an amateur Kremlinologist no doubt, expressed surprise: “I can’t understand why they would do this now.” Kalven agreed: “Yeah, in the seventh inning.” Though well liked and greatly respected, Harry Kalven was not the most popular teacher in the law school during my time as a student. Some classmates thought his classes moved too slowly, that he belabored and repeated points. Everyone warmed to his wit, his imagination, and his generous spirit, but not everyone found in Kalven’s classes the crackling intellectual tension, the rigor, the sense of analytic closure that some other teachers provided. By any measure Kalven was a good, effective teacher. But was he a great one

Hate Speech, Public Assurance, and the Civic Standing of Speakers and Victims

Part of Symposium: Hate Speech and Political Legitimac

Teaching Reasoning

Reasoning skills of a certain sort are taught well in the traditional law school curriculum. No matter how good her previous education, the typical law student surely acquires an improved facility at testing propositions by considering hypothetical applications. Many students learn a lot about linguistic indeterminacy, unintended consequences, the allocation of decision-making responsibility, and how much turns on which questions are asked and how they are framed. It is a rare, indeed obtuse, person who completes a legal education still temperamentally inclined to refute unwelcome ideas when distinguishing them will do. Where legal education falls short, I think, is with respect to reasoning skills that require patience, attention to detail, selectivity, and a sense of argumentative architecture. Surprisingly, law graduates are not noticeably better than persons trained in other disciplines at constructing or criticizing complex arguments. Even the brightest of fledgling lawyers seldom produces a well formulated appellate brief in her initial efforts. Tenure articles written by young law professors are notorious for their distended proportions, reflecting the determination of the untrained writer to leave none of his thoughts or research findings unreported.\u27 Law schools teach many skills effectively but sustained analysis and argumentation are not among them

The Intellectual Integrity of Ed Baker

John Stuart Mill was not one of Ed Baker’s favorite authors, although Ed knew his Mill well and drew on him for some of his important work. But I know Ed Baker would have been a particular favorite of John Stuart Mill. I say that not generically, but specifically. Mill said that what an adaptive, improving society needs most of all — even more than technological expertise — is the hardest thing to achieve: independent thinkers who have the courage to follow their thought wherever it leads, even when that journey risks unsettling their cherished beliefs or damaging their credibility.1 Ed Baker was that rare specimen, a truly independent thinker. Courage is hard to come by, not least in academia. It is not easy when a scholar discovers that where his thought leads him will disappoint his intellectual compatriots or cause his ideas to be profiled unfairly. It is not easy when he learns that where he needs to go entails additional research or self-training that will require much more time and effort than he had planned to devote to a project. Genuine curiosity can lead a scholar out of his comfort zone, into domains where he lacks intellectual capital and/or credentials. In that circumstance, he may need months or years to get up to speed, all the while not knowing whether the effort will yield anything of value. But if he is going to explore a subject or problem or idea in the right way, sometimes that kind of risky, arduous, patient undertaking is requisite. Most of us, when we confront that hurdle, find ways to redefine our project. Ed Baker did not do that. He put in the time and took the risk

School Vouchers and Religious Liberty: Seven Questions from Madison’s Memorial and Remonstrance

In the immediate aftermath of the Revolutionary War, many upstanding citizens of the fledgling state of Virginia were not pleased. They were, in fact, appalled by the decline they perceived in the state of public morals. Newspaper editorials, sermons, and speeches in public assemblies resounded with references to the recent upsurge in gambling, whoring, cockfighting, and public drunkenness. That such departures from the straight and narrow are not uncommon in postwar periods, following all the social dislocations of military mobilization, was no consolation to Virginians eager to show a doubting world that government by the people could work. The root of the problem, in the view of many, was that the churches of the new commonwealth no longer enjoyed the influence or support they had taken for granted during the colonial period. In particular, the Episcopalian Church, formerly the colony\u27s established Church of England, was suffering. Many of its splendid edifices had been damaged in the fighting; fully half of its clergy were now exiled or discredited former tories. Those ministers who remained were having trouble eliciting sufficient voluntary contributions from congregations unaccustomed to that method of ecclesiastical support