February 1, 2011

"I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before."

Orin Kerr kicks comment ass.

(And also explains the Necessary and Proper Clause in connection with the new health care law case.)

42 comments:

Richard Dolan said...

That's a form of kicking ass that often comes back to kick the kicker.

PatHMV said...

But Orin also says, essentially, that your earlier analysis, Professor, was utterly wrong. You said that Judge Vinson's opinion was a straight-forward application of existing precedent to the facts of this case. But Kerr says: "Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way."

I think Kerr's analysis reaches the point of almost being laughable. He does not in fact go into a case-by-case analysis of the precedents. The crux of his argument is that Justice Thomas, dissenting in Raich said that under the majority's opinion, there are "virtually no limits" to Congressional authority under the commerce clause (paired with the necessary and proper clause).

But of course Thomas was in the dissent, and I'm certain that Justice Scalia, at least, in the majority in Raich would disagree with his characterization.

Like much of Kerr's work of late, he seems intent on catching one side or the other in cutesy little "gotcha" points rather than engaging in actual analysis.

At any rate, personal opinions of Kerr aside, his analysis of the opinion is diametrically opposed to yours.

rhhardin said...

He believes that people read him in order to learn rather than teach.

This is not true.

edutcher said...

Hmmm, he takes a lot on himself, monitoring free speech.

1jpb said...

"Hmmm, he takes a lot on himself, monitoring free speech."

It's a property rights issue. His post is his property.

If you don't like it, you can create your own post. It's a free country.

Mark O said...

"Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits."
This is the sort of inarticulate concatenation of ambiguity that passes for intelligent thought among second-rate law professors.

edutcher said...

1jpb said...

"Hmmm, he takes a lot on himself, monitoring free speech."

It's a property rights issue. His post is his property.

If you don't like it, you can create your own post. It's a free country.


Coming from Kos, where they have to scrub the comment boards frequently, PB&J doesn't understand commenting on somebody's blog is still free speech.

The Crack Emcee said...

Sounds like that guy's got a great site.

Charlie Martin said...

Orin really doesn't like commenters, or comments that disagree with him.

Pastafarian said...

Maybe we commenters should contribute our usual boilerplate comment here just to annoy the hostess.

I'll say something stupid and violent, and laced with profanities:

This Kerr sounds like a typical lawyer -- a tyrant in short-pants. Fuckwit! Shoot all the lawyers.

There, that's about par for the course.

Now we need MadMan to come in and take a maddeningly moderate, middle-of-the-road position. (We could be arguing good versus evil, and he'd find a compromise). Garage needs to come in fuck up his argument by misquoting someone and actually proving the opposite of his point. ScottM, say something libertarian-ish. Trooper York, make a clever crack about the Giants.

Cedarford, I'm pretty sure this Kerr fellow is Jewish. "Orin" just sounds jewy, doesn't it?

ironrailsironweights, I don't even need to tell you what to do.

1jpb said...

"commenting on somebody's blog [against the blogger's will] is still free speech."

And, you might as well spray paint their house w/ red elephants, while you're at it.

Pastafarian said...

That's the spirit, 1jpb. A valiant defense of authoritarian censorship with hyperbole. That's perfect.

Who's next?

Ritzy, would you like to point out how stupid we all are compared to you?

1jpb said...

Pasta,

Irony much?

Turning of blog comments is authoritarian censorship, according to you. And, it's infringing on Ed's constitutionally protected free speech.

But, I'm hyperbolic?

You two are probably upset because Althouse's post could be considered supportive of kicking the asses of commenters who uninterestingly repeat themselves. I can see why you (mostly just Ed) would be defensive.

edutcher said...

In that case, we may never hear from PB&J again.

PatHMV said...

I absolutely support Orin's right to close the comments. That, and common courtesy, are why I don't bother saying what I really think of him at the Volokh site itself. It's his forum, his rules, and I'm absolutely fine with that. There are plenty of other places for me to say what I think about him and his shallow analysis and self-satisfied smugness.

Trooper York said...

Wasn't Orin Kerr the gay dude who was married to Doris Day in "Please Don't Eat the Dasiy's?"

Not that there is anything wrong with that.

sunsong said...

I said this on the other thread - but will repeat it. The mandate is NOT *necessary*. A tax would have been a more elegant and honorable choice. All you would have to do is show proof on your taxes that you had heathcare insurance and get a waiver for the tax.

The idea that the mandate is essential or necessary is just not true.

Christy said...

David Niven wasn't Gay, he was British.

EDH said...

"...it featured the same commenters making the same comments that they have each made several dozen times before."

Sounds like one of those "I think we should see other people" moments.

Trooper York said...

Christy said...
David Niven wasn't Gay, he was British.

Oh I know that. He was a war hero and a man about town. But he played a gay dude in the movie the old reviewer for the Times didn't he? I mean that was the subtext. And Doris always was going out with the gay dudes. See Hudson, Rock.

Trooper York said...

Not that there is anything wrong with that. It is just that gay guys get all hissy when you don't agree with every single thing they say. Just look at downtownlad. And Jeremy. Just sayn'

edutcher said...

Christy said...

David Niven wasn't Gay, he was British.

Not sure, but I think he means John Kerr.

David Niven owned a house with Errol Flynn when both were contract players at Warners in the 30s. Whatever he may have been when they started, he must have been one of the most hetero guys in TinselTown by the time he left.

D.D. Driver said...

As a conservative and alumni of GW law I really want to like Kerr, but he is just kind of a dick. He closed the comments thread because he didn't find the comments "interesting" enough for his liking. Douche.

But, on the merits, Kerr's problem is he is using the dissent's characterization of the majority opinion to say that Vinson is wrong. Would Scalia (who drafted a concurrence to the plurality decision) agree with Thomas's (or Kerr's)characterization?

Bruce Hayden said...

This is why Orin drives me crazy some times. When I started reading the comments, I had some ideas that I wanted to post, but he had cut off the commenting by the time I got there.

Roger J. said...

People who run blogs get to set the rules--the rules may be a bit wierd but its their fora--dont like it? start your own blog and ignore the other chaps blog.

seems pretty easy to me. The world will go on quite nicely with or without mr kerr's blog

D.D. Driver said...

Yeah. We get it. Kerr has the right to be a pompous asshole. Absolutely. No doubt about it.

And we have the right to call him out on it (just not on his blog).

Luther said...

Christy...

I 'think' I got your joke, at the least I laughed when I read it.

And 'Emcee'. If you're still around. You're welcome, anytime. And thanks.

traditionalguy said...

Oh no! A comment Kill Switch in action.I sure hope the Professor doesn't have one of those. We'll be better, we promise.

DaveW said...

I think it's a safe bet that if the SCOTUS rules against Kerr's position on Zerocare we won't see an "I was wrong" post from Kerr.

Speaking of what's wrong, I didn't see anything approaching objectionable comments in that thread when I read it earlier. Threads over there deteriorate quickly sometimes just like on any other blog, but this one was pretty interesting I thought.

/shrug

Belkys said...

Sounds like that guy's got a great site.
The site is great , Volokh Conspiracy . I came from there. But since Obamacare , libertarians lost him. There are two liberals , unreadable too.
There are two ," libertarians "that dont believe in free speech either. One is Randy Barnett, i agree with him about Obamacare but its an extremist. The other is Kenneth Obscure Anderson. His yesterday post need and editor.
Somyn, was quoted yesterday. He is a private property defender but if he shares the rule of law as technicality preposterous affirmation
That means you only has Volokh , chief conspirator, Baker( Bush aide), and Post ( he is a Barca fan but everyone has a flaw)
And yes, commenters specially some who calls himself sarcastro ( a favorite there) are annoying. Most are lefties

Christy said...

Thanks, Luther. Yes, it was a joke.

I loved Please Don't Eat the Daisies when I first saw it on TV. I hunted down Kerr's reviews and enjoyed them, too.

As to Orin Kerr, I learn much from reading him, but IANAL and have nothing to offer. Thus, I violate the "be interesting" directive.

Sloanasaurus said...

The difference between Justic Thomas's dissent and this case, however, is that Justice Thomas was referring to regulating "anything" as regulating something - i.e., an economic activity, noting that the economic activity in Raich was so small..... In this case, however, Judge Vinsen said not buying insurance is not an activity. Therefore, it is not equivilent to Raich, it is the opposite... it is nothing. Mathematically it is worth ZERO. Thus, what Judge Vinson is actually saying is that the Congress has no authority to regulate nothing, no authority to regulate zero activity. The Congress under the commerce clause cannot regulate you for doing nothing...

Thus, the regulating of "anything" in Justice Thomas's dissent and Judge Vinsen's case have two distinct meanings. Justice Thomas' "anything" encompasses all activities. Judge Vinsen's "anything" encompasses all activities and all non-activities.

This makes a huge difference. The government cannot draft someone into the military under the reasoning in Raich because "not" being drafted is not an activity. Instead, the government must rely on its war powers authority to draft people against their will.

However, if Obamacare is successful, the government could legally draft someone into the army under the authority of the Commerce clause because who goes into the army impacts the economy in the same way that not buying insurance impacts the economy.

stevenehrbar said...

Of course it was the same commenters making the same comments; the post was the same "The mandate is constitutional under existing precedent" post as Kerr had made multiple times.

Kerr complaining about the predictable comments is like a comedian complaining that every time he says "Knock knock", the audience responds "Who's there?"

Eric said...

The idea that the mandate is essential or necessary is just not true.

And yet that's the way the law is written. The Democrats are unlikely to get the same bill with your small tax change through the 112th congress.

murgatroyd666 said...

Orin Kerr is a very intelligent man, quite learned in the law and very clever in expressing an argument.

However ... perhaps I am mistaken, but I can't think of an issue on which he's stated an opinion that didn't interpret a grey area of the law as an opportunity to increase the scope and power of the federal governmment and didn't increase the status and power of people who sign "Esq." after their names.

I thought this discussion, for example, was illuminating.

Fen said...

"The same people posting the same thing will make the comments section boring. So we'll have no comments, because thats less boring?"

"We had to burn the village to save it"

Bloggers should really be all or nothing. Like Insty or Powerline with no comments ever, or like Althouse with comments always.

Switching them on and off makes it look like you are afraid of having your ideas challenged.

Fen said...

Libtard; It's a property rights issue. His post is his property.If you don't like it, you can create your own post.

To be more precise: if I don't like it, I'll simply stop reading him.

MikeR said...

I thought Kerr's second post from today was fascinating. If I understand him right, he is rejecting the parts of Vinson's argument that take the straightforward meaning of the Constitution into account - because we all know that the current understanding of the Commerce Clause has nothing to do with the straightforward meaning. Wow.

Trooper York said...

Having no comments means you are afraid of what you are gonna hear.

murgatroyd666 said...

You know ... if refusing to engage in economic activity is itself economic activity, then wouldn't it be accurate to say that refusing to engage in religious activity is also religious activity?

As a devout agnostic, I think I've hit on something here! All the time I'm failing to engage in religious activity, I actually amengaging in religious activity! Twenty-four hours a day, 365.2422 days a year! And since it's religious activity, it's all non-taxable!

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