12 May 2005

Yet More Disjointedness

There's a whole bunch of stuff to discuss today. In no particular order:
  1. Gee, what a surprise: The evangelicals appear to be running the Air Force Academy. (Disclosure: Although I cannot be 100% certain, I believe that Chaplain Morton and I were both in ROTC together. The Melinda Morton I remember was an eminently sensible divinity student preparing to be a navigator—which fits with her attire in the photo in the article.) I've advocated the end of the academies for years, and this is just another example of self-defeating "indoctrination" occurring in that environment. I find Chaplain Morton's conclusions and assertions not just credible, but merely descriptive of longstanding problems.
  2. Over at Appellate Law & Practice, Gene Vorobyov has posted an interesting summary of the AEDPA oral argument in the Ninth Circuit. The problem is not that Judge Reinhardt is now challenging the constitutionality of the AEDPA—it's a close question, but I think that it probably is unconstitutional, at least in part, and it's certainly unwise—but that it's being done in the Ninth Circuit, where circuit law is most generous to habeas applicants. I would actually rather see this come out of the Fourth Circuit, if only to highlight that circuit's increasing disjuncture from the mainstream of legal doctrine on criminal law issues.
  3. Eric Goldman describes some problems with and implications of a Sixth Circuit decision on personal names as trademarks. One issue that he didn't discuss bears some careful consideration: The mark in question is for designating a business subject to professional regulation, and probably some unique-to-the-profession rules that limit the firm names available to the losing individual. Particularly since—unlike, say, fast-food hamburgers—professional services are not truly fungible as between providers, I find this decision troubling from outside the traditional trademark box.
  4. Jack Balkin analyzes the so-called "nuclear option" on confirmations, remarking that:

    The first goal—reshaping constitutional law—is particularly important. Most constitutional change occurs not through Article V but through Article III—not by explicit amendment but through judicial interpretation. Stocking the courts with ideological allies allows a President to reshape constitutional doctrine in line with his beliefs or with those of important constituencies in his party.

    I'm not certain I entirely agree; a lot of constitutional change occurs as social, technological, linguistic, and international contexts alter. Certainly much more purposeful constitutional change occurs through Article III than through the amendment process, though.