Mailbag: Majority Rule and Philosophy Majors

You'd never say 'naw-dog' at peak Law and Order.

By and
100

Sarah and David take a break from the news to answer listeners’ questions: How should fans approach the hosts in public? Does intent matter in constitutional law? Would making it easier to amend the Constitution fix everything? Also:

-Policy solutions vs. social solutions

-The issue with JD/MBAs

-The First Amendment and the Israel-Hamas war

-Ethics among lawyers

-Congressional review of judicial review

-Exclusionary rules

-Legal career changes

-Dworkinism

-Get a lawyer

-Civil asset forfeiture

-Most accurate legal procedural

Show notes:

-McKay Coppins interview

-AO episode with David’s plumbing experience

-AO episode on progressive legal philosophy

By and
Comments (100)
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  1. Avatar photo
    WKDawson

    Interesting on the search point. I would have thought "I have nothing to hide".

    Also the question about changing the representation of senators. My feeling is that the 2 senator rule has been abused in recent times, which does not serve the interests of the nation. However, it occurs to me that part of the reason for the two-senator rule emerged because the needs of the least of the states should also be considered. So, whereas presently, I feel the needs of the states with the largest populations are thwarted by petty penny-ante operators, changing the rules could mean that those states with small populations are unduly ignored.

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    Stomaino

    David, I am extremely disappointed in you for being one of those people who want to change equal representation in the Senate. There is one big problem with that. Article V of the Constitution explains how the amendment process works. It ends with an exception to the process: no State, without its Consent, shall be denied its equal Suffrage in the Senate. So you couldn’t change the Senate unless every state approved. It would need to be approved by all 50. Impossible! Unless you amended the Constitution to delete that clause. We have not had a substantive amendment to the Constitution ratified since 1971. We aren’t going to get that big a change.

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    Buzardmatt

    Mailbag question:

    Could you guys discuss tips for pivoting from a more traditional legal career to a career as a political writer or working in public affairs/communications? I've been considering moving into public affairs, speechwriting, or political commentary, but I'm also finding it difficult to break in without any prior experience. I'm a relatively recent law school graduate who has, so far, only worked in a state prosecutor's office.

    Love the show. Thanks!

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  4. Craigray1710

    I'm shocked, absolutely shocked that David and Sarah would consider allowing the police into their homes without a warrant. I can speak with the police very well from the front door, thank you very much. Who knows what violation of some obscure law lies hidden in plain sight within the confines of my house? Who knows what evidence they can plant? And the most persuasive argument: THEY CAN SHOOT YOUR DOG if he 'looks threatening.'

    NAH DOG, no police in my house without warrant.

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    Jstricklen

    David (or Sarah, but David said it), I’d love to hear your thoughts about what might replace the EC. I share your concern about minority rule given the uniquenesses of our population. But the concerns that led to the EC haven’t changed: majoritarian tyranny of pure democracy, erasure of the will of smaller states, etc. What do you think we might do to correct/replace the EC?

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  6. Wilson Whitaker

    Sarah and David, I suspect that the reason y’all have only met one JD/ MBA practicing law is your own area of practice. I can assure you there are plenty of JD/MBAs in transactional practices at Big Law firms. On the other hand, when we’re interviewing law students for our summer class, the fact that they’re getting a dual degree doesn’t really give them any leg up in the hiring process. 🤷‍♀️

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    1. Avatar photo
      PaulH

      Yes, there are certainly plenty of JD/MBAs in corporate and transactional practices. In that setting, having the business perspective can be quite useful. From the student perspective, having both degrees increases options for moving in-house and expanding beyond a pure legal career -- but it probably only makes sense if the person has a strong interest in business.

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  7. IHfraser

    It's not so much that "legal conservatives" don't look at legislative intent. It's that a certain segment of legal scholars and jurists (and, in the United States, especially those who view the late Antonin Scalia as a profound legal thinker) believe that it makes sense to ignore legislative intent as part of the interpretive exercise. For the rest of the common law world, the orthodox view is that legislative intent is one of the key elements of the proper approach to the interpretation of a statute. For example, here's an expression of the fundamental formula for statutory interpretation in Canada (which also starts with "text"), taken from the recent case of Vavilov, 2019 SCC 65 (available at CanLII.org):

    "A court interpreting a statutory provision does so by applying the 'modern principle' of statutory interpretation, that is, that the words of a statute must be read 'in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament'... " [citations omitted].

    Lord Sales of the U.K. Supreme Court gave a very good summary of the current state of thinking in the common law world in his 2019 Denning Society Lecture "In Defence of Legislative Intention" (accessible through BAILII.org, [2019] UKSpeech 191119).

    Ms. Isgur uses the case of a statute which passes with only one speech in the legislature as an example of why the use of "legislative intent" is unsatisfactory. The argument that multi-member legislatures cannot possibly have a discernible common intention is not a new one (in the U.S., it is often associated with Ronald Dworkin and Jeremy Waldron, but its origins go much further back), and the arguments in response are well set out in Lord Sale's speech, so there's no need to belabour them here.

    However. it is very important to distinguish between legislative intent and legislative history. Legislative history (i.e., what individual legislators said about a piece of legislation in debate) is simply one source of evidence that can be examined to help discern legislative intent.

    Finally, the idea that "original public meaning" history provides a more certain basis for discerning meaning than legislative history is, to use a polite term, naive. This approach (which Ms. Isgur treats as if it were a self-executing strategy) requires one to believe that it is easier to determine what a word or phrase meant to the entire population of the United States (which is, in a strict sense, what reliance on "original public meaning" requires) than it is to determine what that word or phrase meant to a select group of legislators, many of whom made contemporaneous public statements on the point when they debated the legislation. Using more limited populations as the group to be examined for "original public meaning" doesn't avoid the problem, because the interpreter is always required to select some group to be treated as the "public" and then determine what meaning that group agreed on. Moreover, no versions of the "original public meaning" approach provide any intelligible rationale for excluding legislators from the "public" that one would consider when searching for the "original public meaning".

    On a purely practical basis, reliance on "tradition" has the same difficulties. Whose tradition ought to be consulted? Where is the evidence for it to be found? How is its "meaning" to be discerned? None of these questions will have clear, straightforward, and irrefutable answers.

    The point is not that "history and tradition" should be excluded from consideration when searching for the proper interpretation of a statute. The point is that no interpretive formula should exclude any element that may shed some light on the meaning of a provision.

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  8. No one of consequence

    Mailbag question for you both....

    If I handed you a time machine, a pistol, and a bag of gold, what would be the first thing that you'd fix?

    And this assumes that either Goldberg or Stirewalt had stopped McCain/Feingold before it started so you have to pick something else.

    Thanks!

    -Mike

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  9. Avatar photo
    JustinC

    "South Korea’s fertility rate—a snapshot of the average number of babies a woman would have over her lifetime—slumped to 0.78 last year, from 0.81 in 2021, according to new government data. And the slide has worsened in recent months, falling to 0.70 in the April-to-June quarter."

    https://www.wsj.com/world/asia/worlds-lowest-birthrate-sinks-further-despite-cash-payouts-to-parents-23a92210

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  10. Avatar photo
    Ben Connelly

    If the police knock on my door my answer absolutely is that they can come back with a warrant. Even if you have done nothing wrong: “I want an attorney present. I have the right to remain silent. If you want to come inside my house you will need a warrant,” then shut up.

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    1. MathewA

      agreed, we must protect the erosion of our rights

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