Academic Round-Up

I would like to wish all of our readers a happy new year, and specially thank those of you who have contributed with questions or comments on our “ask the author” and academic roundup series. I would also like to say how much I appreciate those of you who have sent along your most recent articles as I have really enjoyed reading and sharing them with our readers. Finally, I would like to thank my co-bloggers for allowing me to participate in this blog, which I have enjoyed tremendously. Now on to the articles:

I have posted a new piece on SSRN entitled “Understanding the New Politics of Judicial Appointments,” which will appear in a spring issue of the Texas Law Review. This piece, which is part of a two-part series I am writing on judicial appointments, is a product of what I consider to be a hole in the literature on appointments. Most articles on the subject are quick to make normative recommendations on how to improve the judicial appointments process (i.e., eliminate confirmation hearings, force nominees to answer the questions posed to them, etc.), but almost nobody has attempted to figure out why the process has changed so much over the past couple of decades. With the exception of some work by Michael Gerhardt, that is true with respect to both political scientists and law professors. In fact, just this weekend on C-Span’s America and the Courts, NPR’s Nina Totenberg asserted that the process, especially with respect to Supreme Court appointments, has clearly changed, but she could not really identify the reasons behind the transformation. In this piece, I attempt to identify three categories of factors that have contributed to an increasingly politicized appointment process, including what I call judicial, external and structural factors. I hope to do a short series of posts about my findings following the conclusion of the January sitting, but in the meantime you can download the paper here.

For those closely watching the D.C. guns case, Nelson Lund (George Mason University School of Law) has posted “D.C.’s Handgun Ban and the Constitutional Right to Arms: One Hard Question” on SSRN, see here. As an initial matter, Professor Lund thinks that it “is more likely than not” that the Court will affirm the D.C. Circuit opinion, though he does not think that such as result is “inevitable.” In addition, he addresses the one question that he thinks was otherwise “not adequately refuted” in Judge Silberman’s opinion: whether the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. For a variety of reasons, including the “grammatical structure of the provision” and “the public records of the founding period,” Professor Lund concludes that the Second Amendment protects the right of citizens generally to keep arms for self-defense purposes. Although there are a lot of Second Amendment articles out there, Professor Lund does a nice job of writing a short and readable article with a view towards addressing a question that will surely be important in the disposition of the Heller case.

Finally, the Stanford Law Review has posted the final version of Rick Hasen’s (Loyola Law School-Los Angeles) article entitled “The Untimely Death of Bush v. Gore,” see here. Of particular interest, Part III of the article addresses Judge Posner’s opinion in Crawford v. Marion County Election Board, which the Court will hear on January 9, 2008. Aside from having a very helpful election law blog, see here, Rick is one of the most knowledgeable election law scholars out there.