ProfessorBainbridge.com

Vacation

The good wife and I are off to Napa Valley for a week's vacation. (Can you say hog heaven?) I may do a little light photo blogging and/or post some wine tasting notes, but that'll probably be about it. Cheers!

20 Questions

I'm the latest to answer Crescat Sententia's 20 questions.

Quoted re Dow 10000

In the Christian Science Monitor:

Stephen Bainbridge ... points out that many short-term investors have learned to make money by speculating that the market will gyrate when it hits key levels. These investors use index futures and other devices to bet that stocks will sag as they hit a symbolic barrier like 10000, he says.

But, in the long run, Professor Bainbridge believes good economic news should eventually overcome the psychological barrier and let the Dow stay above 10000, just as it eventually managed to stay above 1000.

The article quotes some other experts, including some guy named Robert Shiller of whom you may have heard.

Catholic Voting

In her post Voting Catholic, Amy Lamboley raises a very important issue:

The New York Times has an article stating that "The Roman Catholic bishop of Colorado Springs has issued a pastoral letter saying that American Catholics should not receive communion if they vote for politicians who defy church teaching by supporting abortion rights, same-sex marriage, euthanasia or stem-cell research." This does not strike me as a good idea.

First off, it is not the case that in all elections voters will be offered a choice between a pro-life and a pro-choice candidate. In more liberal areas of the country, often both candidates are pro-choice, and disagree only to the extent to which abortion should be regulated and/or subsidized by the state. Must Catholic voters abstain entirely from the election?

Second off, these are not the only areas about which the church has politically relevant teaching. Capital punishment, just war theory, and various social justice issues are all areas in which Catholic teaching can reasonably be applied to American politics, and in a way that does not so squarely line up with the Republican party line, but which a Catholic may wish to consider in choosing a candidate to support. So, for instance, in an election in which both candidates are pro-choice, but one is for the war in Iraq and one against, a voter could well feel that it was vitally important to vote for the antiwar politician. ...

I certainly don't believe that Catholics should check their Catholicism at the door of the polling-place. In fact, I don't understand how one could fail to consult fundamental religious beliefs in deciding for whom one votes. It just strikes me that, given the seriousness of the sanction involved, and given the fact that there is no party in U.S. politics that takes the "Catholic line", many decisions on which politician to support will involve weighing a number of different factors, and making unfortunate tradeoffs, it seems terribly misguided to reduce the decision to a few-issue test.

I think Amy is basically right, although I would want to tweak the analysis a bit. First, let's remember that Bishop Sheridan did not say that Catholics who vote for, say, pro-abortion candidates will be denied the Eucharist. Nothing in his pastoral letter suggests that priests will be grilling their parishoners on their voting habits before administering the sacraments. Instead, I read the Bishop's letter as calling upon Catholics who do so to voluntarily refrain from participating in the sacraments (or, better yet, to be reconciled with the Church through renunciation and penance).

Second, while I applaud Bishop Sheridan for his strong message that the Church's Gospel of Life has pride of place in any faith-based analysis of public policy, I think he has failed to give adequate attention to the legitimate complexities Amy raises. The most authoritative recent Church treatment of these issues is to be found in the Doctrinal Note on Some Questions Regarding The Participation of Catholics in Political Life, which acknowledges that Catholics should not be single issue voters:

The Christian faith is an integral unity, and thus it is incoherent to isolate some particular element to the detriment of the whole of Catholic doctrine. A political commitment to a single isolated aspect of the Church’s social doctrine does not exhaust one’s responsibility towards the common good.

On the other hand, the Note does support Bishop Sheridan's view that the Church's Gospel of Life takes highest priority:

When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person. This is the case with laws concerning abortion and euthanasia (not to be confused with the decision to forgo extraordinary treatments, which is morally legitimate). Such laws must defend the basic right to life from conception to natural death. In the same way, it is necessary to recall the duty to respect and protect the rights of the human embryo.

Even so, however, the Church acknowledges that even as to abortion compromises may be necessary in the political arena:

As John Paul II has taught in his Encyclical Letter Evangelium vitae regarding the situation in which it is not possible to overturn or completely repeal a law allowing abortion which is already in force or coming up for a vote, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality.

What then should Catholics do? There has been an active debate of this topic over at Mirror of Justice. Michael Scaperlanda's recent post notes:

Oregon Archbishop Vlazny's statement on the reception of communion by pro-choice candidates and those who vote for them. Archbishop Vlazny says that pro-choice candidates and those who vote for them because of their pro-choice views should refrain from receiving the Eucharist. In contrast, the Archbishop says that those who vote for a pro-choice candidate despite the candidate's pro-choice position should not refrain. He says:

"Should Catholics who choose to vote for pro-choice politicians refrain from reception of the Holy Communion? If they vote for them precisely because they are pro-choice, I believe they too should refrain from the reception of Holy Communion because they are not in communion with the Church on a serious matter. But if they are voting for that particular politician because, in their judgment, other candidates fail significantly in some matters of great importance, for example, war and peace, human rights and economic justice, then there is no evident stance of opposition to Church teaching and reception of Holy Communion seems both appropriate and beneficial."

He goes on to say that those who vote for a pro-choice candidate should make their disagreement with the politicians stand on abortion abundantly clear.

I suspect Amy would find Archbishop Vlazny's position far more congenial than that of Bishop Sheridan. Personally, I come out where Archbishop Vlazny does. Out here in LA, I rarely get the chance to vote for a pro-life candidate. Instead, I am usually choosing between two pro-choice candidates. In such situations, Vlazny's analysis that voting for one of them could still be licit strikes me as analogous to John Paul's view of permissible compromises. Since my choice between two such candidates is made on grounds other than their position on abortion, I am comfortable that I am not acting in opposition to or derogation from Church teaching on these vital issues.

Endangering the Tax Exemption

From Tax Prof Blog:

Donald Tobin (Ohio State) raises the interesting question of whether the Bishop of Colorado placed his diocese's tax exemption in jeopardy by telling Catholics in a pastoral letter that that "any Catholics who vote for candidates who stand for abortion, illicit stem cell research or euthanasia suffer the same fateful consequences [as the candidates who support these issues]?" According to the Bishop, such people "place themselves outside full communion with the Church and so jeopardize their salvation." Professor Tobin writes:

[The Bishop] later goes on to say that "The Church never directs citizens to vote for any specific candidate," but the letter certainly appears to be telling people to vote against Kerry.

This letter appears to me to be very close to the line. In its recent notice, Charities May Not Engage in Political Campaign Activities, the IRS indicated that:

"These organizations [501(c)(3)s] cannot endorse any candidates, make donations to their campaigns, engage in fund raising, distribute statements, or become involved in any other activities that may be beneficial or detrimental to any candidate. Even activities that encourage people to vote for or against a particular candidate on the basis of nonpartisan criteria violate the political campaign prohibition of section 501(c)(3)."

Isn't [the Bishop's] letter political activity detrimental to a candidate? It is not just saying good Catholics oppose these issues, but is instead saying that when a Catholic balances the pros and cons of a candidate, he risks salvation if he decides to vote for Kerry over Bush.

Several questions. First, why would the guidance of a single bishop endanger the entire church's tax exemption? Second, if the Church truly believes that voting for a particular politician would endanger the soul of one of its members, doesn't the Church have a free speech/free exercise right to say so? Third, if so, why isn't conditioning the Church's tax exemption on refraining from such speech an unconstitutional condition?

I suppose the answer is that the current Supreme Court thinks that non-illustrated child porn stories deserve a higher degree of First Amendment protection than political and religious speech! As Scalia observed in his dissent when the Court upheld McCain-Feingold: "Who could have imagined that the same court which, within the past four years, has sternly disapproved of restriction upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."

Ramesh v. Andrew on the Communion Issue

Ramesh Ponnuru, my favorite Cornerite, responds to Andrew Sullivan's Time piece on the communion controversy:

We're given, in the linked piece, two arguments for why the bishops should offer communion to Catholic politicians who support legal abortion. First: "How many of us Catholics are completely worthy every Sunday of receiving what we believe to be the body and blood of Jesus? The church understands this and has long left it up to the individual to wrestle with his or her conscience as to whether going to Communion is appropriate. To turn the tables and make the giving of Communion contingent on a public, political litmus test would politicize a sacred ritual that is and always should be beyond politics."

Actually, none of us are worthy to receive the Lord, and we even say so beforehand. If legislators voted on abortion by secret ballot and did not disclose their positions to the public, it would indeed be appropriate to handle the issue in the confessional rather than in public. But the sin under discussion--that of unjustly denying the unborn legal protections that everyone else has--is committed in public. A public denial of communion is thus necessary to prevent people from reaching the false conclusion that persisting in this sin is compatible with staying in communion with the church.

Second, the denial of communion would make the church seem to be allied with the Republican party. The article ignores the existence of two to three dozen pro-life House Democrats, which is not an insignificant faction of the entire caucus even if it gets little public attention. But leave that aside. The argument boils down to this: The bishops are supposed to let members of their flock endanger their souls without doing much to help them, because of a political calculation about the effects of this pastoral care. You don't have to be familiar with canon law to see that the bishops just can't follow this advice.

Yep. In the next two posts I explore the tax/constitutional issues raised by this debate and offer my own take on what Catholic voters ought to do. There's also a very active discussion of this issue over at Mirror of Justice.

Kling on Lasch

Must read TCS column by Arnold Kling on Christopher Lasch's The Revolt of the Elites, giving a hat tip to your truly for having flagged it.

Mark Helprin's Must Read Column

Mark Helprin's WSJ ($) op-ed, available to nonsubscribers via OpinionJournal.com, is a damning indictment of both political parties' handling of the war on terror/Iraq:

In a war that has steadily grown beyond expectations, America has been poorly served by those who govern it. The Democrats are guilty of seemingly innate ideological confusion about self-defense, the Republicans of willful disdain for reflection, and, both, of lack of imagination, probity, and preparation--and, perhaps above all, of subjecting the most serious business in the life of a nation to coarse partisanship. Having come up short, both parties are sorely in need of a severe reprimand and direct order from the American people to correct their failings and get on with the common defense.

I don't entirely agree with either his assessment of the facts or his proposed solutions, but it is a provocative must-read column.

Hard versus Soft America

Michael Barone in today's LA Times (R):

It has long been my observation that American 18-year-olds are more incompetent than 18-year-olds in other advanced countries, but that American 30-year-olds are the most competent 30-year-olds in the world.

...Why should this be so? I think it's because from ages 6 to 18 Americans live mostly in Soft America, while from ages 18 to 30 they live mostly in Hard America.

Let me define my terms. Hard America is made up of all those parts of American life where you have competition and accountability. Soft America is made up of those parts where you don't. Hard America includes, among other things, the high-tech private sector. Soft America includes, among other things, high school, at least for the large majority of kids who aren't applying to selective colleges.

You know what? I think he's right:

Two East County high school teachers were placed on paid leave yesterday after students in their classes saw images and heard American Nick Berg being beheaded in Iraq.

We're at war, folks ... a war that probably will be dragging on when those students are my age. They need to know what we're up against. We do them no favors by hiding them away from hard truths.

Two Approaches to Conservative Commentary

Hugh Hewitt's latest post is unabashed Bush cheerleading:

Newsweek has the latest poll that shows (1) a drop in President Bush's approval ratings, and (2) a dead-heat in the Bush-Kerry poll. Proving what? That Americans wish progress was quicker in Iraq, but that even in the face of the worst 45 days of news since 9/11, the president is still understood as a war leader and Kerry is an implausible replacement. There's a stature gap when it comes to dealing with the enemy which John Kerry will never fill, which is why I remain very optimistic about the fall vote. The American people know that a vote for Kerry will be a vote to cut-and-run, and they also know that there is no way to withdraw from a war we didn't start and we cannot end, as the execution of Nick Berg reminded demonstrated again this week. ...

November's choice cannot now be understood as other than a referendum on how America is going to conduct itself over the next two decades. The Bush path is clear, and means aggressive confrontation of the enemy up to and including invasion if necessary, versus the Kerry approach of talk to the Security Council and get some subpoenas issued. The Bush approach is hard and costly, both in lives lost among the military and huge appropriations. The Kerry approach is suicidal.

I have a lot of respect and admiration for Hugh, but all of this strikes me as far too glib. Contrast Hugh's unsquelched optimism about Bush with Jonathan Last's take in today's LA Times. Last is no lefty; he's an editor at the neocon Weekly Standard, but he sees Bush in a clear and harsh light:

The Republican theory of victory in November is that John Kerry will by then have become an unacceptable choice for voters because of his well-documented penchant for flip-flopping on issues. It's a smart theory with only one problem: George W. Bush would not be immune to the same charge.

Last then cites a bunch of examples, of which a number go directly to Hugh's claim that the "Bush path is clear":

In the immediate aftermath of Sept. 11, Bush spoke as if the war on terrorism would be waged against all terrorist organizations, saying, "Anybody who houses a terrorist, encourages terrorism, will be held accountable." On another occasion he said, "We are planning a broad and sustained campaign to secure our country and eradicate the evil of terrorism." And later the president proclaimed, "If any government sponsors the outlaws and killers of innocents, they have become outlaws and murderers themselves."

By November 2001, however, Bush had modified his position: "Where terrorist groups exist of global reach, the United States and our friends and allies will seek it out, and we will destroy it." The important clause "of global reach" was added to justify ignoring regional terrorism in Ireland, Spain, Chechnya, the Philippines and Israel.

In March 2003, the president was asked if he would call for a vote on the proposed U.N. Security Council resolution backing the use of force in Iraq, which faced near-certain defeat. "No matter what the whip count is," Bush said, "we're calling for the vote. We want to see people stand up and say what their opinion is about Saddam Hussein and the utility of the United Nations Security Council. And so, you bet. It's time for people to show their cards, to let the world know where they stand when it comes to Saddam." The vote was never taken.

The list goes on. After saying the U.N. would have only a perfunctory role in rebuilding Iraq, Bush went back to the world body seeking aid in September and more recently looked to U.N. special envoy Lakhdar Brahimi to help form an interim government in Iraq. After announcing he would file an amicus brief opposing affirmative action at the University of Michigan, Bush instructed his solicitor general to file a last-minute brief that essentially punted on the issue.

Personally, I have no doubt that I'll vote for Bush in November. But don't count on me for a ton of rah-rah cheerleading. The Iraq mess daily raises serious new questions about the competence of the Bush administration. As Fouad Ajami argues: "We have been doing Iraq by improvisation, we are now "dumping stock," just as our fortunes in that hard land may be taking a turn for the better." Ajami further raises the competence question by observing "the confusion--and panic--of our policies in the aftermath of a cruel April."

Conservatives do their cause no good by ignoring those questions; instead, we are going to have to make the case that Bush deserves reelection despite those legitimate questions. We also need to hold Bush 43's feet to the fire, so that the Bush 2.1 administration runs the war more competently than this one has.

Gotcha Politics in the Supreme Court

The LA Times (R) continues to act as a mouthpiece for left-liberal groups in attacking conservative members of the supreme court over bogus conflict of interest charges. In the latest round, the Times "reports" that the Ohio Supreme Court wanted Chief Justice Rehnquist to speak at its building dedication. The Ohip Supreme Court arranged for Rehnquist to fly on a corporate jet, with the Ohio court reimbursing the firm. Rehnquist had nothing to do with it. In our regulatory state, of course, no corporation can escape the government's web. The firm in question is being sued for Clean Air Act violations. As such, there is the barest (near zero) possibility that the firm may end up before the supreme court at some point. All of which leads the Times to accuse Rehnquist of a conflict of interest for a flight he didn't arrange and for which the inviting agency will pay.

Regular readers know that I've been going around with Larry Solum and Randy Barnett recently on the question of judicial activism. This story illustrates precisely why I oppose judicial activism of either the left-liberal or libertarian version. Under either variant, the Supreme Court becomes a super-legislature. Inevitably, the gotcha politics that have pervaded our system since Watergate are being extended to the courts.

James Joyner on Iraq

Making typically good sense:

I’ve never been confident that Western-style democracy was going to be the end game in Iraq, especially in the short term. Not so much because Arabs are somehow unsuited for democracy—although I do think fundamentalist Islam and our vision of democracy are mutually exclusive—but because that change needs to come from internal forces rather than imposed from outside. I thought—and still maintain—that the gamble was worth taking if we were committed to the excercise. President Bush emphasized time and again that this was a long-term struggle and I fully expected us to maintain a heavy presence in Iraq for years to come. The signals have become decidedly mixed on this front in recent weeks, however.

It’s hard to conceive of a situation in Iraq worse than we faced with Saddam or his sons in charge. Regime change was worth the price paid. But we’ve paid a far higher price for the follow-on mission of stabilization and democratization, goals which we are a long way from achieving. I hope our commitment to finishing the job remains strong. I don’t expect to turn Iraq into Norway, but a stable country with a government and some reasonable measure of freedom for its citizens has to be in place before we can leave.

Interesting Blawg Prompts Bout of Navel-Gazing

Adam Smith, Esq., is mostly about law firm economics. Makes very interesting reading for anybody interested in the business of law. The latest post, however, makes a claim about blogs that particularly interested me:

We want people who are experts in particular fields, who are thoroughly up-to-date, and who have at least a passing ability to express themselves, to be a blog publisher. Blogs globalize the familiar phenomenon, "Ask Sally; Sally will know."

Smith's take on blogs seems most appropriate for a law firm blog that's being done in large part to drum up business. My own blog was never limited to corporate law, but lately it has wandered particularly far afield. I've debated starting a spin-off blog that would be devoted solely to corporate law, but, like the Girl of Cyndi Lauper's song, I just want to have fun. Blogging's my hobby; a pure corporate law blog sounds too much like work! I think I'll stick to my eclectic mix.

Condi at Vandy

Clayton Cramer has a great post excerpting and commenting on Condalezza Rice's speech at Vanderbilt:

Make no mistake about this. This is not a struggle over money, or oil, or land, or any of a number of relatively minor matters. This is a struggle over whether or not we want to live in a world where Nick Berg's killers continue their operations of death and torture.

Yep. Go read the whole thing. (Please!)

Krispy Sued

Sean Hackbarth on the investor suits against Krispy Kreme:

This suit stems from a company statement last week telling investors that earnings would be "10% lower than previously announced guidance." Krispy Kreme is being sued because they may have misjudged their expansion plans and not realized how much the low-carb craze would effect them. It sounds to me that this is a case of business error. There's a big difference between lying and being wrong ....

It's an old, old story I'm afraid. The top empirical work on private securities litigation is being done by a law prof named Michael Perino, who has documented the existence of a "race to the courthouse," by which he means "class actions filed soon after significant stock price declines, apparently with very little pre-filing investigation" by the plaintiff lawyer. Unfortunately, he's found that the PSLRA hasn't solved the problem.

Menu Blogging: Helen's Birthday Dinner

Pan seared scallops with baby greens and vinaigrette
Veuve Clicquot Ponsardin Brut (Champagne) NV----<>----Filet of lamb en croute with truffles and red wine sauce
Truffled potatoes au gratin
Baby carrots
Chateau Lafite-Rothschild (Pauillac) 1981----<>----Chocolate souffle
Disznoko Tokaji Aszu 6 Puttonyos (Hungary) 1997

Disznoko Tokaji Aszu 6 Puttonyos (Hungary) 1997

Outstanding dessert wine, although not quite ready. Probably should have spent a few more years (5?) in the cellar. Lemon, orange, apricot, honey, and vanillla, with a note of grapefruit on the finish. Very rich, but the considerable sweetness is well-balanced by the strong acidity.

Chateau Lafite-Rothschild (Pauillac) 1981

A truly spectacular wine. The bottle was in excellent condition, showing very modest ullage (still in the neck).

A lovely ruby with modest brick at the edge. The bouquet was glorious when opened, but continued to grow and evolve for over two hours in the decanter. Deep, old leather, cedar, tobacco, and dried dark fruits. Fully mature, but doubtless would have held for several years to come.

Busy Day

I'm out of the office today to give a talk to the LA County Bar based on my paper Managerialism, Legal Ethics, and Sarbanes-Oxley Section 307, which argues that Sarbanes-Oxley Section 307 was well-intentioned. As a practical matter, however, Section 307 seems unlikely to effect significant changes in corporate governance. In our view, the nature of legal practice, the largely unchanged relationship between lawyers and managers, and the problematic approach taken by the SEC to implementing Section 307 suggest that the new legal regime is unlikely to result in significantly better information flows within the corporate hierarchy.

After which, I've got to get home to start working on the good wife's [redacted]th birthday dinner. Other than some late Vodkapundit-style food blogging and some wine tasting notes, there won't be much activity here today.

Porsche upgraded to a buy

With the official announcement of the new 911, stock market analysts have upgraded Porsche to a "buy" recommendation. Meanwhile, I wonder if I can sell enough BlogAds to ... well, you know.

Neuhaus on Graglia

I love First Things, the mostly Catholic opinion journal, not least for Father Richard Neuhaus' monthly Public Square column. Neuhaus has been banging the End of Democracy drum for over a decade, including this December 2003 column. I particularly liked Neuhaus' summary of Texas law professor Lino Graglia's take on the problem:

In instance after instance, [Lino A. Graglia] writes, the Court is addressing not constitutional law but “policy choices,” and, in instance after instance, the Court decides that it knows best. Here is Graglia at cruising speed: “Virtually every one of the Court’s rulings of unconstitutionality over the past fifty years—on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools, government aid to religious schools, public display of religious symbols, pornography, libel, legislative reapportionment, term limits, discrimination on the basis of sex, illegitimacy, alien status, street demonstrations, the employment of Communist-party members in schools and defense plants, vagrancy control, flag burning, and so on—have reflected the views of this same elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political left. Appointments to the Supreme Court and even to lower courts are now more contentious than appointments to an administrative agency or even to the Cabinet—matters of political life or death for the cultural elite—because maintaining a liberal activist judiciary is the only means of keeping policymaking out of the control of the American people.”

Graglia notes that in some of its most controversial decisions, the Court appeals to an “emerging democratic consensus.” But, by preempting the role of the legislature, it prevents that putative consensus from being put to the test of democratic debate and vote. Surveying the ways proposed for countering the imperial judiciary, Graglia thinks it comes down to political will: “The system of checks and balances set up by the Constitution has broken down where the Supreme Court is concerned; that institution now checks but is not checked by the other branches. President Lincoln dealt with the abuse of judicial power by announcing that although he would not defy the Court’s Dred Scott decision, neither would he accept it as settling the slavery issue. Congress and the President could similarly make clear that contemporary Supreme Court rulings of unconstitutionality without basis in the Constitution deserve not respect but censure. If the political will were there, means could be found to return the country to the experiment in popular self-government in a federalist system with which we began.”

Yep. I just wish I thought it would be that easy, even if we could find the requisite political will.

Can Shareholders use the Bylaws to Limit Director Compensation

A friend called to my attention a shareholder proposal pending at Post Properties, which would amend the firm's bylaws so as to require annual shareholder approval of director compensation:

The Board shall recommend to shareholders at each annual meeting the amount and form of compensation proposed to be paid to Directors for service on the Board and its committees for the year commencing at that meeting, which recommendation shall be approved by the Corporation’s shareholders holding a majority of shares entitled to vote in the election of Directors. Directors also shall be reimbursed for reasonable expenses to attend Board and committee meetings. This provision may not be altered, amended or repealed by the Board.

Interestingly, the proponent is the firm's founder, former CEO, and largest shareholder, which suggests that there might be a very interesting backstory. Anyway, the legal question of the day is whether this is a proper amendment to the bylaws. Although Post is incorporated in Georgia, I'm going to look at the problem from a Delaware law perspective, since the latter will have greater general applicability.

Continue reading "Can Shareholders use the Bylaws to Limit Director Compensation"

Harumph

I do NOT drive like a "drunken teenager." I drive like a sober teenager.

New Porsche 911

Autospies has a three part series on the new Porsche 911: Part 1, Part 2, Part 3. Great pictures of both the 997 series Carrera and Carrera S.

The Nick Berg Video

You can find it at Wizbang or Outside the Beltway. [Update: Apparently James has taken it down at OTB. Kevin's got an updated list of links here.] Appalling. This is a war we must win, because our foes will show us no mercy.

Sigh

Randy Barnett thinks it's all about sex. Then how does he explain this? Long before Lawrence v. Texas was ever decided, key participants in that symposium were staking out a principled position that judicial supremacy threatens to undermine the legitimacy of both the Constitution and, indeed, representative democracy itself. In sum, it isn't just about sex, it's about how we are going to live together as a society and the extent to which those of us who aren't on the Supreme Court get to have a say in making those decisions.

Cramer replies to Barnett

Clayton Cramer chimes in on my latest go-round with Randy Barnett:

Barnett just doesn't get it. As much as Bainbridge considers abortion evil, he believes that the states should be left free to pass laws, including laws allowing abortion. Bainbridge is showing a lot more restraint than Barnett gives him credit for.

Thanks! Go read the whole thing.