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The balance of power in the longstanding struggle between populist and establishment forces in American politics has shifted, which has resulted in a dramatic change in the conditions that had produced the Pentagon Papers settlement. To better recognize the legitimate claims of populist and establishment forces, we should therefore rethink the untrammeled power of the government to punish low-level officials who reveal government secrets and question the media’s practical immunity from government controls. The questions posed by the shift in forces need to be addressed in the way policy questions are best resolved—that is, humbly, pragmatically, and experimentally, with careful attention to empirical outcomes, a balancing of competing interests, and a recognition that no solution will be perfect or will last forever. This essay argues for such a practical, not constitutional, approach and, more specifically, proposes an end to press immunity, more robust defenses for leakers in criminal prosecutions, and improved whistleblower protection.

Are written constitutions evil? In his new book, Constitutional Idolatry and Democracy, Brian Christoper Jones argues that they are. He claims that written constitutions fail to unite societies, degrade democratic engagement, and obstruct necessary constitutional maintenance. This review of his book argues that he is mostly right about the effects of the American Constitution, but that the effects of other constitutions will vary depending upon local facts.

In Rucho v. Common Cause, the Supreme Court ended its long struggle to formulate constitutional standards to regulate political gerrymandering by declaring that it was not up to the job. The Court held that it could come up with no manageable standards governing the controversy and that it therefore posed a nonjusticiable political question. In this brief comment, I attempt defend this outcome. The task is not easy, and I hope that the reader will at least give me some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil and there is no defending Chief Justice Roberts’ dreadful opinion justifying the Court’s refusal to do anything about it. Still, I argue, on balance, we are better off without the Supreme Court mucking around with this problem. Moreover, the reasons why we are better off go beyond this particular issue and impeach some of the standard arguments for judicial intervention more generally.

Constitutional equality law has a two-way ratchet problem. When someone demonstrates that a government policy treats her unequally, the injury can be remedied by improving things for the claimant, but it can also be remedied by leaving the claimant’s status unchanged while making things worse for the people advantaged by the policy. If a court chooses the latter option, it diminishes the welfare of some people while arguably not improving welfare of anyone else. Why is that a good idea? Courts have often attempted to avoid hard questions like these by leveling up – that is by allowing advantaged persons to keep their advantage and extending that advantage to the previously disadvantaged class. But not always and not lately. In two recent cases, the Court required the government to level down, and the Court’s opinions hint that it may do so more often in the future. If one looks beyond these two cases, things are actually much worse. The first Part of this Article surveys the chaotic landscape. At various times, the Court has held or implied that: * Courts faced with an equality claim must level up; * Courts faced with an equality claim must level down; * Courts faced with an equality claim may level up or down; * Courts faced with an equality claim should guess whether Congress preferred leveling up or leveling down; * When a federal court lacks the power to order a state to level up, it should dismiss the case; * Because a court could theoretically level down, it should deny the equality claim entirely and therefore leave the original inequality undisturbed. How might we clean up the mess? A promising strategy is to map various solutions onto the functions served by equality claims in the first place. Part Two undertakes that task. The problem is that the Justices have been unable to agree on and consistently apply a single, normative justification. The ratchet wreck is therefore epiphenomenal. It is an external manifestation of the Court’s confusion about the reasons for equality. Confusion about reasons unsurprisingly begets confusion in outcomes. Part Three, concludes with the observation that our ratchet difficulties reflect a still deeper ambivalence about the equality requirement itself. The potential for downward ratchets is necessary to make that requirement meaningful, yet the seeming irrationality of this remedy obstructs a full-throated embrace of the equality norm.

Background Immunoglobulin E (IgE)-mediated anaphylaxis is a potentially fatal condition in which allergy effector cells rapidly discharge pre-formed inflammatory mediators. Treatments that address the immune component of allergic anaphylaxis are inadequate. Helminths have been previously shown to suppress effector cell function; however, their ability to treat pre-existing allergy remains unclear. Objective To evaluate the ability of chronic helminth infection to protect against anaphylaxis in previously sensitized mice. Methods A sublethal model of anaphylaxis was used, in which BALB/c mice were sensitized by three intraperitoneal (i.p.) injections of OVA/alum. Temperature drop was then monitored after systemic OVA challenge in uninfected mice and in mice infected chronically with Litomosoides sigmodontis, a tissue-invasive filarial nematode. Results Litomosoides sigmodontis-infected mice exhibited significantly lower serum levels of mMCP-1 and were less hypothermic at 30-minute post-challenge compared to uninfected OVA-challenged controls. Characterization of anaphylaxis revealed that FcԑR1 and mast cells were required for hypothermia and elevated serum mMCP-1. OVA-IgE and OVA-IgG1 serum levels were not significantly altered by L sigmodontis infection, and experiments with IL-10-/- mice demonstrated that IL-10 was not required for protection against anaphylaxis. However, peritoneal mast cell numbers were significantly lower in infected mice, and those that were present exhibited decreased granularity by flow cytometry and marked depletion of intracytoplasmic granules by light microscopy. Mast cells from infected mice had lower expression of the activation markers CD200R and CD63 and contained significantly lower basal stores of histamine. Conclusions Chronic L sigmodontis infection protects against anaphylaxis, likely due to reduction in mast cell numbers and depletion of pre-formed inflammatory mediators in remaining mast cells.

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.” There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of private markets. The solution to this problem is government regulation by elite experts shielded from popular control. Bernie Sanders speaks as a populist when he complains about the billionaire party; he speaks as a progressive when he advocates Medicare for all; and he speaks as a liberal when he fails to notice the tension between these two views. This article’s primary focus is on how this contradiction plays out in the context of constitutional law. Populists and progressives had different conceptions of the corruption that constitutional law should address. For progressives, corruption consisted of contamination of government expertise by ignorant and prejudiced mass opinion. In contrast, populists distrusted rationalistic, elite opinion. The corruption they feared was elite government control that led to the oppression of ordinary people by “their betters.” This article examines the dispute between populists and progressives in the context of the Scopes Monkey Trial, Buck v. Bell, Skinner v. Oklahoma, West Virginia State Board of Education v. Barnette, the Warren Court era, and our present period. A conclusion explores ways in which the conflict between populists and progressives might be resolved.

This conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions.

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".Part I of this article quarrels with the Chief Justice's assertion that the Constitution "had nothing to do with it." It argues that it is the dissenting justices, rather than their colleagues in the majority, who have ignored the traditions of American Constitutional law.Part II argues that the Chief Justice is exactly right when he says that we should celebrate the Obergefell decision, but not the Constitution, but he is right for reasons that he, himself, would disagree with. The Court's decision marks a partial and flawed but nonetheless important advance toward inclusion and decency. The majority's opinion, replete with invocations of the supposedly binding force of constitutional obligation, belittling of the large and growing number of Americans who are unmarried, and mischaracterization of the nature of the movement for gay rights, is exclusionary, reactionary, and authoritarian. Even as the Court demonstrates its (concededly limited) capacity to advance the cause of social justice, it unwittingly also demonstrates the failure of constitutional law to serve its core purpose of providing a just ground for cooperation among people who disagree about fundamentals.A brief conclusion discusses the implications of this failure.

This paper is on a constraint-based analysis of morphological processes in Ibibio (Lower cross language of Niger Congo: Nigeria). The study seeks to determine the phonological processes that condition and restrict the position of an affix while specifying where an affix may appear in a string of affixes; examine the influence of a morphological form on the phonological conditions that regulates affix placement in the Ibibio language, as well as determine the constraints that account for the appropriate placement of affixes on reduplicative forms. Leaning on the optimality framework, it was revealed that nouns in Ibibio accept only vowel prefixes which provides an enabling environment for vowel processes to occur in compounding and affixation. We observed that certain phonological forms, like the productive suffix –ke which has differing phonological realisations depending on the structure of the verb in Ibibio, are influenced by the morphological structure of a word while others are not. Certain constraints like the intervocalic constraint, the *[CC] constraint and the harmony constraint are some of the constraints that account for full reduplication in Ibibio. Also, partial reduplication in the Ibibio language adheres to the *complexons and the NO CODA constraint.

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints. It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there is too much state action for the Constitution to apply. The Constitution takes hold only in a middle band—the Goldilocks band—sandwiched between these two domains. For constitutional limitations to have force, the government must act just enough—but not too much. This Article’s first aim is to identify and describe this puzzling structure. It also examines a variety of doctrinal principles that produce and, perhaps, justify the state action doctrine’s three bands. The Article then argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle band of government regulation. Finally, the Article concludes with some brief speculation about whether the modern tripartite structure can survive.

Health information system sustainability interview questions. (DOCX 18 kb)

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime -– aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that the various strands share a common core. At base, all forms of constitutional skepticism rest on doubts about whether moral and political disagreement can be bridged by a legal text. Those doubts, in turn, are grounded on a rejection of global moral skepticism and on deep strands of American thought that emphasize the possibility of moral knowledge. In Part III, I very briefly suggest some preliminary conclusions about how we should view constitutional skepticism. I argue that there are reasons to think that a dose constitutional skepticism might mitigate some of our current political dysfunction.

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do – limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to pushing against those limits. Third, despite this effort, the limits ultimately defeated some of his most important initiatives. Finally, Wright should nonetheless be celebrated for his dogged insistence on accomplishing as much as was possible given the legal, political, and cultural constraints under which he operated.

Jon Elster's subtle and richly illustrated argument raises more avenues of inquiry and application than one could possibly explore in a short comment. I will therefore confine myself to addressing three interrelated questions:First, can the distinctions among interest, passion, and reason on which his analysis depends really be maintained?Second, what implications does his work hold for some republican and liberal theories that insist on a public sphere purged of interest and passion or that defend a private sphere providing the space necessary to indulge interest and passion?Finally, what does his analysis tell us about the possibility of a meta-theory that would mediate among interest, passion, and reason?With regard to the first question, Elster's own argument suggests that the boundaries among interest, passion, and reason are at least permeable. Each motive masquerades as the other or becomes transmuted into the other. Moreover, once one takes the consistency and imperfection constraints into account, the external manifestations of the different motives will often be identical. A positivist, who believes that all that matters are external manifestations that can be measured or observed, might therefore hold that the distinctions Elster analyzes are ones that are hardly worth worrying about.

This thesis is based on a body of work completed between 2001 and 2009, comprising performance/installations that addressed the impacts of global financial speculation and the mechanisms of a free-market economy. Arguably, financial speculation has either driven, or profoundly influenced, political policy and social behaviour ‘from Wall Street to Main Street’ from the corporate boardrooms of developed nations to the informal markets of nations still struggling to come to terms with the demise of classical socialism in the postmodern world. Each 24-hour cycle of global financial markets, comprising millions of transactions, represents not only objectively calculated risk management, but also a spectrum of speculators’ emotions ranging between greed, fear, and ‘irrational exuberance’. The performance/installations included in this thesis address the motivations behind speculative market activity, as well as the interaction between the human and technological processes embedded in the markets. Art and cultural critic Brian Holmes posits this interaction as ‘deep play’, or ‘the aestheticized exploration of the actions and gestures unfolding within a global microstructure’. The microstructure referred to in this thesis is that of the global financial market, its foundations, development and impacts on contemporary society. My exploration will unpack aspects of the history and current manifestations of the free-market economy, and while it is not the intention of this thesis to theorise economics, nor the phenomenon of globalization, certain premises will be addressed as relevant to the projects. In the process, shared borders between the financial market and art practice have inevitably become blurred. The methodological enquiry that underscores this thesis does not reject the free-market economy, nor speculative financial activity. Instead, I have suggested that they might be critiqued by means of cultural intervention. I imply that by direct participation in capital flows, and through exposure to the fears and anxieties bred in the financial market’s domain, the complex elements that have produced, and continue to produce significant impacts on society, might be better understood.

In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet's effort to defend popular constitutionalism in his powerful and subtle book entitled "A Taking the Constitution Away from the Courts," I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist. And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet's proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can.

Suppose that you were Colin Powell. Would you have resigned your office rather than go before the United Nations Security Council to make the case for the invasion of Iraq? Or would you have remained silent, swallowed your doubts and, like a good soldier, obeyed your orders?This essay argues that the resignation decision is hard and that words like "duty," "ethics of public service," and "sound public policy" do not capture all of the difficulty. Instead, the best defense of public resignation conceptualizes it as a radically free act -- a rebellion against normal constraints, including the constraints of duty and ethics.Part I of the essay sets out the plausible alternatives open to public figures who find themselves in disagreement with the policies pursued by the government. It also provides historical examples of officials who have chosen each of the alternatives. Parts II and III explore the case for each of the alternatives on instrumental and non-instrumental grounds. Part IV defends the concept of resignation as radical rupture. Part V discusses the role that law and legal institutions play and should play with respect to resignation.

A contradiction lies at the core of the modern law of speech and property. The contradiction is captured by four propositions, all of which are widely accepted, but all of which cannot be true. Proposition 1: Freedom of speech is not subject to political revision. Proposition 2: Within broad limits, property entitlements are subject to political revision. Proposition 3: The freedom of speech does not include the right to use another person's property in order to convey one's message Proposition 4: All speech requires the use of some property. These four propositions cannot be reconciled. If it is true that economic entitlements, including most property rights, are subject to political revision, and if it is true that there is no right to use another's property for speech, and if it is true that speech requires property, then it cannot also be true that speech rights are immune from political revision. This article explores the ramifications of this simple but puzzling syllogism, using the Supreme Court's decision in Boy Scouts of America v. Dale as a central example. It concludes that contradictions in Supreme Court doctrine at the intersection of property and speech law make both our speech and property regimes less stable than they might at first appear to be.