The Richard Posner foreword I discussesd a few days ago is now online.

Unrelatedly, classmate David Pozen has an interesting note forthcoming in the YLJ about the "mosaic theory" and FOIA.

Sunshine - Robin McKinley

I'm a big fan of Laurell Hamilton's early Anita Blake novels, but the series has become an unreadable demonstration of the fact that there is such a thing as too much sex in a novel. Sunshine is my attempt to find a replacement source of vampire chick lit. So far as these things go, it's not bad, but it's not outstandingly good either. The story suffers from the author's failure to adequately define the rules by which her world operates, so the heroine is constantly discovering new, unexpected magical powers to get her out of difficulty. The result is a story that seems forced and arbitrary, rather than believable.

Admittedly, Lewis is quite a bit older (by nearly thirteen years) than my grandfather, but the truth still stands: there are things I'd be much happier not knowing, and thus my reaction to Gopnik's recent article.

I berate too much: Gopnik is none to blame, and if he is, it's solely for doing his own job; the cross belongs to A.N. Wilson and other Lewis biographers. And, to be sure, I berate because I'm not a true Lewis scholar. My point of contention is this: that Lewis has become picked over as a racist, religious zealot and sexual deviant, and for some reason this has lent readings to his works¹, as Gopnik subtly and implicitly picks up on.

The question is this (and an old one): does that affect our reading of his works now? Are the Narnian Chronicles anything less when exposed as a Christian allegory? To be short, I was slapped when I found out they were. Of course, I was ten, and was fully engaged in the series when some jerk told me. But the slap repeated itself when I was a teenager and began to read Lewis's academic works. Here I was, sixteen and beginning an entry into the beautifully frustrating world of words and language, facing an onslaught of unwarranted information on the Vicar Philomatrix.

I've grown past it and still respect Lewis greatly as not only an academic, author, but also classicist, theologian, and overall human being, but I obstinately turn around and ask: why the scrunched noses? why delve so deeply and (sadly) publicly to the details of man that has educated many and inspired the imagination of many more for crimes not even of the criminal? why scan for Wormwood of Screwtape? why beckon the winter's White Witch?

In Chittister v. Department of Community and Economic Development, the plaintiff sued the Pennsylvania commonwealth government for alleged violations of the Family and Medical Leave Act; his claim was that the government had, in his case, violated the provision guaranteeing a certain period of unpaid personal sick leave. The 3rd Circuit, in an opinion by Judge Alito, unanimously held that regardless of the facts of the case, Chittister's suit was barred by state sovereign immunity to suit under the Eleventh Amendment.

In certain ways, Chittister is relatively straightforward. The basic legal standard on sovereign immunity was determined by recent, directly on-point Supreme Court precedent. Personal sick leave is not nearly as obvious a response to gender discrimination as, say, family leave (cf. Nevada Dept. Human Resources v. Hibbs) or maternity/paternity leave. Since it is not clearly a response to discrimination prohibited by the 14th Amendment, it is difficult to see how Congress' 14.5 power to abrogate state sovereign immunity could be used in this case.

That said, I think Chittister can still tell us some interesting things about Judge Alito's jurisprudence. For one thing, the opinion in this case strikes me as quite different from, say, Planned Parenthood v. Farmer, where Alito was at pains to say that his vote in that case was dictated by controlling Supreme Court precedent. Here, he merely says that Congress may not abrogate the immunity of unconsenting states via its Article I powers, and cites to the relevant cases. One does not get the sense of a judge applying controlling precedent with which he disagrees.

More concretely, Alito's analysis of the FMLA remedy at issue mirrors (or more accurately, foreshadows) the dissents in Hibbs. Alito's argument (and Justice Kennedy's) is that the FMLA creates a substantive entitlement to unpaid leave disproportional to any the gender discrimination the FMLA is intended to remedy; a proportional remedy would, for example, simply have forbidden discriminatory leave practices. This is quite different from the position of Chief Justice Rehnquist (and Stevens, Souter, Ginsburg, and Breyer) that a formal non-discrimination provision, without more, would lead to substantive discrimination and lack of opportunity for women. Alito's rejection of the idea that a substantive entitlement to leave is a necessary and proportional remedy for discrimination places him solidly with the conservative bloc on Hibbs and on sovereign immunity more generally.

Via Dan Markel, I find this review by Peter Berkowitz of Justice Breyer's Active Liberty. (I reviewed it here.)

Markel complains notes that Berkowitz goes too easy on Breyer. I agree, although I was pleased by the last two pages, which included this line:

“The primarily democratic nature of the Constitution’s governmental structure has not always seemed obvious,” he gently notes. That’s because it’s not true . . . .

It looks like my habit of hoarding books has finally come back to haunt me. I discovered last week that there is a limit of 75 books per patron at Yale's Law Library. 75 seems incredibly low to me-- do law professors face the same limit?

At any rate, I am currently working to find ways to reduce my law-library-book-count (I am currently 13 books over quota). There are books I checked out from other libraries that are erroneously on my law library record, books checked out for law professors and the law journal that could go on their account rather than mine, and so on.

This has also served as the impetus for me to finally try and buy my own copies of David Currie's wonderful books. But now that I no longer have a co-blogger who works at the University of Chicago Press, I can't figure out how to get the 4 volumes of the Constitution in Congress and the 2 volumes of the Constitution in the Supreme Court for under $225. Even the online used-book market, which normally takes the fun and challenge out of used-book shopping is remarkably thin.