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Steven Smith’s recent book, Pagans as well as Christians inwards the City, is a marvelous written report of the scrap betwixt ancient Roman paganism as well as early on Christianity. In its in conclusion chapters, however, Smith claims that today’s civilization wars are a renewal of that zero-sum struggle. It is a misdiagnosis that repeatedly leads him astray. He misunderstands the civilization wars, he misunderstands antidiscrimination law; he misunderstands the recent resistance to terra firma Religious Freedom Restoration Acts; he misunderstands the contraception mandate; he misunderstands the footing of religious liberty; as well as he misunderstands the possibilities for achieving the Rawlsian ideal today. Torn from their master context, the categories of “pagan” as well as “Christian” are likewise unsmooth to offering whatever diagnostic help. Similarly amongst immanence as well as transcendence, the primal sectionalization on which Smith builds his analysis. Each is opened upwar...

For the symposium on Ken Kersch,  Conservatives as well as the Constitution  (Cambridge University Press, 2019).     Chief Justice John Robert’s dissenting persuasion inwards Patchak v. Zinke (2018) makes a remarkable claim.   The number inwards that example was whether Congress could strip federal courts of jurisdiction over cases already pending inwards those tribunals.   The bulk relied inwards business office on Ex parte McCardle (1868), which dismissed a example later oral declaration but earlier judgment on the dry soil that Congress had repealed the federal police pull granting jurisdiction.   Roberts’s dissent inwards Patchak urged a real narrow reading of McCardle because the Congress that passed the Repealer Act of 1868 was suspect.   McCardle , he stated, “cav[ed] to the political authorization of the Radical Republicans.”   What is remarkable well-nigh this assertion is that the same Republican bulk that passed the Repealer ...

For the symposium on Sanford Levinson too Jack M. Balkin,  Democracy too Dysfunction  (University of Chicago Press, 2019). It is lastly fourth dimension to conclude my response.  Let me limited my cheers i concluding fourth dimension to everyone who responded.  I institute each too every i interesting too illuminating. Steve Griffin exhibits puzzlement at my "frequent recourse to eighteenth-century republicanism every bit the normative criterion to evaluate our introduce political too constitutional order."  This is certainly fair comment.  The social basis underlying that republicanism is long-since dead, too nosotros are in all probability amend off for it inasmuch every bit it rested on a willingness of the lower orders to defer to their presumptive superiors (including, of course, the subordination of women to the patriarchy).  So "republicanism" actually reduces to lilliputian to a greater extent than than a sort of "Publian" devotion to the f...

New Controversies inward Intermediary Liability Law Daphne Keller In recent years, lawmakers around the globe direct keep proposed a lot of novel intermediary liability (IL) laws. Many direct keep been miscalibrated – risking serious collateral damage without necessarily using the best agency to advance lawmakers’ goals. That shouldn’t live a surprise. IL isn’t similar taxation law or farm subsidies. Lawmakers, especially inward the United States, haven’t thought much virtually IL inward decades. They direct keep petty institutional noesis virtually which legal dials as well as knobs tin live adjusted, as well as what consequences to expect. This post testament lay out a brief menu, framed for a U.S. audience, of IL legal mechanisms. Most are relatively well-understood from laws as well as literature around the world ; a few are newly emerging ideas. It foregrounds legislative choices that touching on complimentary expression, but does non essay to position difficult limits...

New Controversies inward Intermediary Liability Law Michael Karanicolas Privatization tin endure a controversial practice. To its proponents, it is an engine of efficiency, introducing a competitive atmosphere to stodgy together with self-perpetuating bureaucracies. But in that place are likewise externalities which tin come upward into play when governments abrogate at i time responsibleness over an surface area of administration. Influenza A virus subtype H5N1 someone prison theatre may endure run at less terms to the taxpayer, merely volition it honour the rights of inmates together with devote sufficient resources to their rehabilitation? Privatizing a H2O fellowship could plow it profitable, merely this mightiness come upward at the terms of an increase inward contaminants or a refusal to service unprofitable areas. Despite the mutual refrain that government should endure run similar a business , in that place is an of import distinction betwixt the heart functions of thes...

For the symposium on Sanford Levinson in addition to Jack M. Balkin,  Democracy in addition to Dysfunction  (University of Chicago Press, 2019). The essays inwards our online symposium on Democracy in addition to Dysfunction enhance then many interesting in addition to of import questions that it is non possible to practice justice to them all. But many of the essays, in addition to specially the essays that reply to my arguments inwards the book, revolve precisely about ane cardinal question: What volition the coming construction of American politics await like? Corey Robin points out that if—as he in addition to I both believe—Trump represents the destination of the Reagan era, weather condition don't appear correct for a novel authorities that promises genuine change. There is no powerful social motility pushing things forward, equally at that spot was inwards 1860, 1932, or 1980.   Mark Graber notes that inwards my description of the emerging Democratic coal...

For the symposium on Ken Kersch,  Conservatives together with the Constitution  (Cambridge University Press, 2019). Gary Lawson                         In my previous post on Ken Kersch’s Conservatives together with the Constitution , I wrote virtually the volume that Ken wrote.    (Well, mostly I wrote virtually myself, but I did shout the volume from fourth dimension to time.)   This post is virtually a volume that Ken did non write together with in all probability has no involvement inward writing.             Ken wrote a volume virtually Conservatives together with the Constitution, not virtually Libertarians together with the Constitution.   That is understandable: There were non plenty libertarians, either inward the New-Deal-to-Reagan era on which Ken focuses or today, to thing sufficiently to warrant a book.   Yes, at tha...