Tuesday, January 31, 2006

Off The Backboard, Nothing But Net

I went to a talk this afternoon given by Richard Epstein, one of the most prolific writers on legal matters over the last twenty years. He's a typical libertarian - loves small government and thinks the market should be left well enough alone. Though, for all his genius, even he couldn't find a reliable leg for the Bush administration to stand on in the controversial domestic wiretapping programming.

Sitting in the audience was Professor Con Law, Larry Lessig. Lessig, on the issues, is generally liberal. He's an authority on intellectual property and has several times argued before the Supreme Court in favor of narrowly interpreting copyrights. He's a 1st Amendment lover and thinks that books in the public domain should be reproduced verbatim on the internet.

It was inevitable that the two minds would clash. Even if they both agreed the President likely overstepped.

Two seconds after Epstein opened up for questions, we were off to the races. It was like watching Magic and Bird go 1-on-1. Prison rules. No fouls. You make it, you take it.

Richard: On the matter of power, I think the stronger arguments weigh against the President.

Larry: Perhaps you haven't gone far enough if you consider one of your less than favorite clauses.

Richard: The commerce clause?

Larry: It's such an unfavored clause your writings ignore it and you're doing it now. It seems that the 'necessary and proper' clause might also constrain Presidential authority here.

Richard: Marshall's interpretation of the 'necessary and proper' clause in McCulloch is scandalous (Note 1: Most of Lessig's two last lectures were spent interpreting the "brilliance" of the legal reasoning found therein).

Richard: Also, I also think we ought to have a new standard for blogging. One which seeks to have writing meet the standard of academic publication. (Note 2: Lessig is author to one of the most widely read legal weblogs on the internet).

Those were some rather friendly swipes, but Lessig maintained his ground. Though, it does raise the question whether I'm learning Constitutional Law this term or one (brilliant) man's take on it.

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