Nelson Lund

Bio: Nelson Lund is an academic researcher from George Mason University. The author has contributed to research in topics: Supreme court & Constitution. The author has an hindex of 7, co-authored 57 publications receiving 167 citations. Previous affiliations of Nelson Lund include Georgia State University & Texas A&M University.

A Second Amendment Right to Be Negligent

Abstract: Professor Andrew Jay McClurg maintains that the Second Amendment has been used to create a right to store firearms negligently. It is conceivable that some such thing could happen, just as the Supreme Court has used the First Amendment to require plaintiffs who are public figures to prove more than negligence in defamation actions. But Professor McClurg presents no evidence to support his claim. To accept his claim that the Second Amendment has caused courts to distort the application of standard tort principles, we would have to believe that they secretly relied on the Second Amendment and that they undertook this insidious project before they believed there was a legal basis for what they were doing. This is completely implausible. Professor McClurg, however, makes two additional claims that require a more extended response.First, he maintains that courts have misapplied well-established tort principles in refusing to hold the victims of gun thefts liable for injuries subsequently inflicted with the stolen weapons. This is wrong. Courts are simply applying traditional tort doctrines — including proximate cause and limits on duties to protect strangers from wrongdoing by others — when they refuse to impose liability on a gun owner whose unsecured gun is stolen and subsequently used to commit a crime. Second, Professor McClurg contends that legislatures have irresponsibly failed to impose objectively reasonable safe-storage duties on gun owners. Unfortunately, he has conflated his personal policy preferences with what is objectively reasonable. He advocates a rule requiring gun owners to store their guns in a sturdy, non-portable gun safe whenever they are not within the owner’s immediate control. This rule simply assumes away the costs of safe-storage practices, which include the expense of gun safes and the risk of being unable to quickly access the gun in an emergency. Furthermore, the imposition of such a duty — whether by courts or legislatures — would raise serious Second Amendment questions.

Unleashed and Unbound: Living Textualism in Bostock v. Clayton County

Abstract: In Bostock v. Clayton County, Georgia the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits—and has always prohibited—discrimination by employers on the basis of homosexuality or of what the Court called transgender status. How so? The statute forbids employers to intentionally discriminate against any individual “because of such individual’s . . . sex.” The Court asserted that discrimination because of homosexuality or transgenderism violates the unambiguous text of the statute. This result in this case decision would not have been much of surprise in the period during which Justice Anthony Kennedy held the controlling vote on issues dealing with sex, and especially with homosexuality. But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. The majority opinion has virtually no policy analysis or political rhetoric, and it lacks the kind of inflated pseudo-philosophic pontification that Kennedy favored. Instead, the Bostock opinion presents itself as nothing more than a straightforward application of the legally binding text of the statute. Justice Gorsuch even goes out of his way to cast himself as the legitimate intellectual successor to the man whom he literally succeeded: the high priest of statutory textualism, Justice Antonin Scalia. Leaving others to speculate about judicial motives, I propose that Bostock is an extension of a theory commonly called “living originalism.” During the last decade, this approach to constitutional interpretation has been gaining steam in the legal academy. Bostock has now effectively extended that approach beyond the academy, beyond the field of constitutional interpretation, and even beyond the limits recognized by its academic adherents. Bostock is a demonstrably outlandish judicial performance. Outlandish though it is, Bostock might be used by the Court to correct one of its most egregiously mistaken lines of case law. Although Title VII unambiguously forbids employers to discriminate on the basis of race or sex, the Court has upheld quotas and preferences explicitly based on the race or sex of people in favored groups. In 1991, Congress amended Title VII by adding a new provision whose text unambiguously overruled the decisions that upheld these preferences. Even without using the peculiar new form of textualism deployed in Bostock, the Supreme Court should have recognized that the 1991 amendment deprived these precedents of any binding force they may once have had. The Court has not done so, but Bostock now imperatively requires the Court to declare that Title VII forbids, and has always forbidden, these illegal employment practices.

Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts

Abstract: In District of Columbia v. Heller, the Supreme Court finally decided that the Second Amendment really does protect the right of the people to keep and bear arms, and that this includes at least the right to keep a handgun in the home for self defense. Understandably, all eyes have turned to the next logical question. Is the right to arms protected only from federal infringement, as in Heller, or is it also good against state and local governments? Test cases have already been filed challenging Chicago's handgun ban, which is similar to the regulation invalidated in Heller. The "incorporation" issue - whether the Fourteenth Amendment protects the right to keep and bear arms from infringement by the states - may be virtually dispositive in those cases, and it will be a threshold issue in many others as well. This short essay reviews the principal precedents that the courts will have to confront. Part II concludes that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court's modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.

Promise and Perils in the Nascent Jurisprudence of the Second Amendment

Abstract: In Heller v. District of Columbia, the Supreme Court held that the Second Amendment protects the right of individuals to keep and bear arms for self-defense. In McDonald v. City of Chicago, the Court held that this right is also protected from infringement by the states under the Fourteenth Amendment. Thus, many important decisions about the reach of government’s regulatory authority will henceforth come from the federal courts. The scope of the Second Amendment right, however, has not yet been clarified, either by the Supreme Court or by a consensus of the lower courts.This short symposium contribution sketches out several possible approaches to defining the scope of the right, and argues that one of them is better than the others, at least for purposes of adjudication under the Second Amendment. The essay argues that Judges Diarmuid O’Scannlain and Diane Sykes have shown — more clearly than the Supreme Court has yet done — the right way to decide cases in this nascent area of constitutional law.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

Executive review : kontrola konstytucyjności prawa przez władzę wykonawczą w Stanach Zjednoczonych

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Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

My Struggles with the Block Universe

Abstract: This document is the second installment of three in the Cerro Grande Fire Series. Like its predecessor arXiv:quant-ph/0105039, "Notes on a Paulian Idea," it is a collection of letters written to various friends and colleagues, most of whom regularly circuit this archive. The unifying theme of all the letters is that each has something to do with the quantum. Particularly, the collection chronicles the emergence of Quantum Bayesianism as a robust view of quantum theory, eventually evolving into the still-more-radical "QBism" (with the B standing for no particular designation anymore), as it took its most distinctive turn away from various Copenhagen Interpretations. Included are many anecdotes from the history of quantum information theory: for instance, the story of the origin of the terms "qubit" and "quantum information" from their originator's own mouth, a copy of a rejection letter written by E. T. Jaynes for one of Rolf Landauer's original erasure-cost principle papers, and much more. Specialized indices are devoted to historical, technical, and philosophical matters. More roundly, the document is an attempt to provide an essential ingredient, unavailable anywhere else, for turning QBism into a live option within the vast spectrum of quantum foundational thought.

The Effect of Electoral Institutions on Tort Awards - eScholarship

Abstract: Politicians are not neutral maximizers of the public good, they respond to incentives just like other individuals. We apply the same reasoning to those politicians in robes called judges. We argue that elected judges, particularly partisan elected judges, have an incentive to redistribute wealth from out of state defendants (non voters) to instate plaintiffs (voters). The partisan electoral hypothesis is tested first using data on 75,000 tort awards from across the states. We control for differences in injuries, state incomes, poverty levels, selection effects and other factors that may cause awards to differ across the states. One difference which appears difficult to control for is that each state has its own body of tort law. We take advantage of a peculiar aspect of American Federalism to make this distinction. In cases involving citizens of different states, aptly called diversity of citizenship cases, Federal judges apply state law to decide disputes. Diversity of citizenship cases allow us to test whether differences in awards are caused by differences in electoral systems or differences In state law. The evidence from the cross state regressions and from the diversity of citizenship cases, strongly supports the partisan election hypothesis. In cases involving out of state defendants and in state plaintiffs the average award (conditional on winning) is 42% higher in partisan than in non partisan states; approximately 2/3 rds of the larger award is due to a bias against out of state defendants and the remainder due to generally higher awards against businesses in partisan states.