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Does Michael Mukasey read the Yale Law Journal?

Friday, former Attorney General Michael Mukasey had an op-ed in the Wall Street Journal responding to Attorney General Eric Holder’s recent criticism of felon disenfranchisement law. The op-ed argues that those who proposed Reconstruction amendments affirmatively endorsed felon disenfranchisement as part of the same constitutional theory.

That argument sounded familiar to me, because I recently saw it in Christopher Re & Richard Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments in the Yale Law Journal. Of course it’s totally natural for those writing op-eds to draw on scholarly ideas, and the format can make citations awkward.

But then there is also this paragraph from the op-ed:

Abolitionists, viewed at the time as radicals, embraced what has been called a philosophy of formal equality. They not only insisted on the liberation and enfranchisement of former slaves, but also supported the disenfranchisement of criminals, rebels and other wrongdoers.

Which looks a lot like this paragraph from the YLJ article (p.7 of the pdf):

These egalitarian figures were profoundly influenced by what James Q. Whitman has called “the philosophy of formal equality” … The radicals drew on the philosophy of formal equality not only to insist on the liberation and then enfranchisement of former slaves, but also to endorse the disenfranchisement of criminals, rebels, and other wrongdoers.

That strikes me as a little more than it’s normally appropriate to borrow without citation or quotation. But in any event, who says law reviews have no influence on public debate?

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).



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