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Very Funny Essay:
By Hillel Levin, and only 6 pages long:
Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), etc.--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

vassil petrov (mail):
I cannot download it.
10.13.2008 2:50pm
David M. Nieporent (www):
I hate activist judges who legislate from the bench. Er, sofa.
10.13.2008 2:53pm
kietharch (mail):
Needs registration, right?
10.13.2008 3:09pm
william (mail):
No registration. Just click "down;load" then the SSRN button.
10.13.2008 3:18pm
vassil petrov (mail):
Yes, I did just that and it didn't work.
10.13.2008 3:21pm
Ken Arromdee:
Most of this seems to be based on creating a precedent, and then later using the precedent in a situation where the precedent's justification doesn't apply. Of course, the application to real-life law is obvious.
10.13.2008 3:26pm
Gino:
So it's a metaphor for commerce clause jurisprudence, except that the supreme lawmaker has neither reacted nor clarified.
10.13.2008 3:37pm
Connie:
Vassil--if you are using firefox, you have to allow scripts.
10.13.2008 4:09pm
MS (mail):
Gino,

But they did:

10.13.2008 4:12pm
Sagar (mail):
Hilarious and very interesting!

so the "slippery slope" concerns are justified?
10.13.2008 4:31pm
Gabriel McCall (mail):
so the "slippery slope" concerns are justified?

If you compare the current courtroom application of any portion of the Bill of Rights to the written text of the Constitution, the answer to that question is obvious.

I've read more than one constitutional case decision which didn't actually discuss the text of the relevant portion of the Constitution at all; the decision was based entirely on precedents... which in turn were based on other precedents. Modern jurisprudence is a great big game of Telephone.
10.13.2008 4:47pm
William D. Tanksley, Jr:
Connie, it's more than "allow scripts"; I can't download the document even by using Internet Explorer. It's absolutely inaccessible. I've downloaded things from SSRN before.

The error given is on a page of its own, and says:

"SSRN Abstract Database Search Results

The abstract you requested was not found.
Please check your search criteria and try again."

When I search for papers by the same author, this one doesn't show.

It looks like it's gone from the database, only a stub remains.
10.13.2008 5:07pm
Oren:
I would have thrown out the legislation in the first instance for failure to be rationally related to a legitimate state interest.

Or does the Supreme Legislator in this constitutional system have the power to make laws, rational basis be damned?
10.13.2008 5:08pm
Joel Rosenberg (mail) (www):
Or does the Supreme Legislator in this constitutional system have the power to make laws, rational basis be damned?

Please, please don't take this as an insult, but I gotta ask, Oren: were you raised without a parent?
10.13.2008 5:35pm
Oren:
No insult taken and the answer is no. What's that got to do with it?

My parents confined their legislation to matters that were rationally related to their legitimate concerns. I figured all parents did (the alternative would be expending energy enforcing rules with no purpose -- why would you waste your time?)
10.13.2008 5:38pm
wm13:
We had that rule when I was in a child, and we have it in my house now: No eating except in the kitchen or at the dining room table. Of course there are various exceptions. It's rationally related to the need to confine eating to the kitchen and the dining room table.

(Also, of course, it is rationally related to the need to keep crumbs and spills out of the rest of the house. But your father does not need to explain the Rules, because they are the Rules.)
10.13.2008 5:48pm
Steve:
It is hard to argue that keeping the house clean and vermin-free is not a legitimate parental interest.
10.13.2008 6:22pm
Oren:

We had that rule when I was in a child, and we have it in my house now: No eating except in the kitchen or at the dining room table. Of course there are various exceptions. It's rationally related to the need to confine eating to the kitchen and the dining room table.


So a rule against X is rationally related to the need to do X? I'm confused.
10.13.2008 6:30pm
Sean M:
Has this been placed? If not, it should be.

Only problem is that the law review cite checkers will butcher it demanding footnotes for everything.

I think the Green Bag would eat this up.
10.13.2008 6:36pm
Karl (mail):
Why, this sounds like Karl Llewellyn. Seriously... go to the Chicago Faculty blog, and find the recording they posted of his family law class.
10.13.2008 6:46pm
Anderson (mail):
My firewall complains of the dread "octet stream."
10.13.2008 7:02pm
T Hart:
I'm having the exact same trouble as Mr. Tanksley. I've been able to download other papers from SSRN with no trouble before, hmm...
10.13.2008 10:25pm
one of many:
after hitting the download button at the top, click on the SSRN icon (download location) which pops up between the download button and the title/abstract.
10.14.2008 12:34am
just me:
Sure, you think you're taking the firewall down or enabling scripts just for this one purpose, one time, of obtaining this article. Then the settings become defaults, and other downloads slip through that weren't intended, and the whole purpose of the Commerce Clause -- er, firewall -- is lost . . .
10.14.2008 1:08am
r.friedman (mail):
I recall having cited foreign law: "Howie's mom lets us eat in the family room."
10.14.2008 9:24am
JosephSlater (mail):
r.friedman:

But isn't the standard competing canon of statutory construction, "if Howie's mom let you jump off the roof, should I let you jump off the room?"
10.14.2008 4:56pm
William D. Tanksley, Jr:
"So a rule against X is rationally related to the need to do X? I'm confused."

If you'd like to object, we can bring this to the Board for a peal.

-Wm
P.S. I was finally able to download this. And yes, I'd been clicking on the right places; it didn't work before, and now it works. It was ENTIRELY worth the trouble.
P.P.S. PEAL: "any loud, sustained sound or series of sounds".
10.14.2008 6:17pm