Wickard

[Lynne]

Alan Ides forthcoming (?) article in Constitutional Commentary that he
attached to an e-mail on the listserv discusses the many ways in which this
is econimic or could be--you dont have ot go as far as Posner's argument
that rape is the result of an inefficient market for sex (88 Colum. L Rev.)
to make it economic, although that is one approach.  A remedy for rape is
money damages, and he suggests that means there are economic components to
the assault. He notes\ the argument argument that rape is  a form of theft
(Donald Dripps makes this argument also in Columbia L Rev., and West
disputes some but not all of the propositions in  a response)  A study
released in the las tweek or so on effects of relationship violence
demonstrates loss of productivity, lost wrok days, costs to employers, etc.
(But those are consequences, so if you go with the narrow "wife beating is
not an exconomic activity" you have to demonstrate that it has economic
dominion components) I agree that stating not economic and immediately
switching to "crimin al" provides no understandingf for what the COur
tthinks is economic activity.
Monday, when I started MOrrison, however, all the students who spoke said it
is a cirme, period, or "inference upon inference" despite the direct
economic effects pointed out in part i nSouter's dissent.   This may be
willingness ot accept at face value whatever a majority says, and perhaps
today when I poke and prod further, they will begin to see the fuzziness of
the test.  I have an uphill battle, because Justice Kennedy assured them in
class early in the semester (he was here for the dedication of the new
building) tht the economic test, unlike tests in the past, was clear an
deasy to apply.  So they've had a Justice of the Supreme Court tell them
this, which makes questioning authority a bit harder for me this time
around, I  think.
SIncerely
Lynne

hendersl at ix.netcom.



Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV  89154
702-895-2625
----- Original Message -----
From: "Sanford Levinson" <SLevinson at MAIL.LAW.UTEXAS.EDU>
To: <CONLAWPROF at listserv.ucla.edu>
Sent: Wednesday, November 20, 2002 7:42 AM
Subject: Re: Wickard


> Preparing once again for the annual ordeal of teaching Morrison, I read
the
> Court (through Rehnquist, CJ), saying that "Gender-motivated crimes of
> violence are not, *in any sense of the phrase," economic activity"
> (emphasis added).  I take it that no member of this list would agree that
> they are not "ecomic activity" "in any sense of the phrase," given Gary
> Becker and, for that matter, Friedrich Engels.  It's simply that the Court
> doesn't wish to recognize it as "economic activity."  I find the use of
"in
> any sense of the phrase" a wonderful example of judicial bullying, similar
> to some of Marshall's enunciation's in McCulloch (and elsewhere) about
what
> language "clearly" means.  Renquist could have written, "not economic
> activity in any sense recognizable to the Framers or to most non-Chicago
> (or Marxist-) trained economists, etc." but that, of course, would vitiate
> the force of his assertion.
>
> sandy