Stayin' Alive While Saddam Swung

In a year in which party control of the US Senate hinged on the utterance of a previously largely unknown racial slur, and in which the Supreme Court granted review in a case that poses the question of how much protection the First Amendment affords to the expression "bong hits for Jesus," perhaps the most surreal news came on the very last day. Having learned yesterday that President Bush went to sleep (at 9 pm EST) about an hour before the scheduled execution of Saddam with instructions that he not be awakened with news of the latter's death, I learned today that Tony Blair was unavailable for comment on the execution because he was busy vacationing at the Miami home of former BeeGee Robin Gibb. I don't have a distinctly "legal" take on this piece of news, which strikes me as mostly weird, and a little sad.

Happy New Year. I'll remember 2006 as the year I launched "Dorf on Law" and so let me thank my loyal readers, especially those who post comments, and my team of bloggers.

Polar Bears & Ice Shelves

There is something pathetic about the Interior Dept's proposed listing of polar bears as a threatened species while taking no position on whether the threat to polar bears is due to human-induced global warming. What greater threat can there be to polar bears? Is there a suddenly expanding market for polar bear meat? (If so, might cloned polar bear meat be the solution? See yesterday's entry.) No, of course not. In fact, Interior's polar bear press release identifies melting habitat as the principal threat to polar bear survival. That point was dramatically confirmed by the announcement yesterday that a 25 square-mile Arctic ice shelf broke free from the coast of Ellesmere Island in August 2005.

Despite acknowledging the proximate threat to polar bears, however, Interior denies any ability to address the ultimate cause of the threat, greenhouse gas emissions. The press release states:

While the proposal to list the species as threatened cites the threat of receding sea ice, it does not include a scientific analysis of the causes of climate change. That analysis is beyond the scope of the Endangered Species Act review process, which focuses on information about the polar bear and its habitat conditions, including reduced sea ice. However, climate change science and issues of causation are discussed in other analyses undertaken by the Bush Administration. The administration treats climate change very seriously and recognizes the role of greenhouse gases in climate change.

This is a masterpiece of misdirection. The two federal agencies with primary responsibility for environmental protection are Interior and EPA. Interior says that the Endangered Species Act only gives it authority to address species-level threats, while EPA says that the Clean Air Act does not authorize it to regulate greenhouse gases because they are not "pollutants." In what sense then does the administration treat climate change seriously? Suppose the Administration is right that neither the Endangered Species Act nor the Clean Air Act currently grants Interior or EPA the authority to regulate greenhouse gas emissions. Where are the Administration's efforts to urge Congress to enact new legislation granting authority to enact regulations commensurate with the problem? Where is the diplomatic initiative to secure worldwide cooperation in reducing greenhouse gas emissions?

FDA Approval of Cloned Animal Products

Yesterday the FDA released a draft document which, if made final, would permit the sale for consumption of animal products from cloned animals and the offspring of cloned animals. The FDA acknowledges that there are some difficulties associated with cloning but these typically either prevent reproduction entirely or pose risks to the cloned animal but not its offspring or those who consume the resulting animal products. The FDA is soliciting comments before putting the new rules into effect.

Some people, including yours truly, object to consumption of cloned animal products because we think it categorically immoral to consume sentient animals or their products (given the conditions in which food-producing animals are kept and the industries with which they are intertwined even if they themselves are not eaten: bull calves born to dairy cows end up as veal; male chicks that hatch from fertilized eggs of laying hens are often fed to the wood-chipper). But we vegans are only about one to two percent of the U.S. population (based on poll data analyzed here) and, in any event, we don't object to the consumption of cloned animal products on the ground that they're cloned but on the ground that they're animal products. I understand from news reports that the two main objections to the consumption of cloned animal products from non-vegans/non-vegetarians are: 1) Fear of Frankenstein's monster; and 2) Fear of the slippery slope to human cloning.

The Frankenstein's monster objection asserts that cloning is a new technology which could well have unanticipated side effects. That is, of course, always possible, but this objection applies to any new technology. Effects of cloning are studied over the course of multiple generations. Drugs for humans, by contrast, are subject to clinical trials for one generation. Long-latency problems seem much less likely to arise from consuming cloned animal products than from taking a new drug.

The fear of a slippery slope to human cloning strikes me as unrealistic as well. People permit themselves to kill sentient animals for food precisely because they do not think of non-human animals as entitled to ethical consideration. Indeed, even the suggestion (by people like me) that we should not deliberately kill non-human animals capable of suffering is deemed offensive by some of these people, for it equates humans with other animals, they say. (It doesn't. I don't say that cows should be able to vote or attend medical school, only that they shouldn't be made to suffer and die to satisfy someone's preference for beef over tofu or leather over pleather. But I won't pursue the point here.) It strikes me that the non-vegan/non-vegetarian majority will have very little difficulty saying that cloning is permissible for cows, pigs and chickens but impermissible for humans, on the ground that humans are, in their view, categorically different. As a vegan, I wish others perceived the the slope as slippery, but as a realist, I doubt they will.

Gerald Ford's Greatest Legacy: John Paul Stevens

As a Congressman, Gerald Ford notoriously stated, in connection with the unsuccessful effort to impeach Justice William O. Douglas, "that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." Read in context, this statement was not quite the "might makes right" manifesto which it is often taken to be. (Read Ford's full testimony here.) Nonetheless, because Ford was associated with a perceived attack on the independence of the Supreme Court, he was presented with a delicate situation when Douglas's seat opened up during his Presidency. Ford addressed that opening as a statesman, naming an extremely well regarded moderate: John Paul Stevens.

Although President Ford, may he rest in peace, left the national political stage long before his death, over three decades later, Justice Stevens is still going strong. In June, he authored the Supreme Court's most powerful rebuke of the Bush Administration's assertions of executive power, in the Hamdan case. Although the Military Commissions Act of 2006 reverses the specific outcome of that case, it vindicates the broad principle for which Stevens labored: that the President must seek authority from Congress for military tribunals. In the Rapanos case, his view of the authority of the Army Corps of Engineers under the Clean Water Act essentially won out over the much more restrictive view of the Court's conservatives. More broadly, although Justice Anthony Kennedy clearly holds the balance of power on the Roberts Court as currently constituted, when Kennedy swings liberal, he joins majority opinions of what can best be called the Stevens Court.

To be sure, even though Stevens is one of the most liberal members of the current Court, he was, at the time of his appointment, a moderate. As late as 1989 he voted (with the majority in the Croson case) to invalidate Richmond's affirmative action program and (in dissent in Texas v. Johnson) to uphold a flag-desecration prosecution. Whether Ford anticipated the evolution of Stevens from a moderate to a mostly reliable liberal is, in some ways, beside the point. Republican Presidents who have sought strong ideologues have had little difficulty finding them (as I argue in an article forthcoming in the Harvard Law & Policy Review). Ford chose Stevens knowing that he would exercise independent judgment, which would, in turn, often be used to frustrate policy goals of Republicans. That is to Ford's credit, not because I'm a liberal and so I like Stevens (although I am and I do), but because Ford recognized that, having come to power without having won a majority vote of his fellow citizens, he had an obligation to govern as a centrist. Would that our current President felt the same obligation.

Ramsey Clark and Lynne Stewart

I have been thinking about Michael’s and Neil’s posts, and I find both of them persuasive and compelling. Although I am not sure whether I agree with Michael’s “some” or Neil’s “almost all” characterization of U.S. foreign policy, I would like to add to the list of outrageous omissions that rightly includes Rwanda and Sudan the U.S. failure to lift a finger to slow down operation of the Nazi death camps during World War II (prior to the U.S. becoming a direct target of Axis aggression). Though the U.S. ultimately participated in liberating the camps, many people perished because it waited so long, clinging to its isolationism (a term that is now, disgustingly, invoked by some Bush supporters to characterize critics of our policy in Iraq – as though it follows if one opposes isolationism that one must support all military adventures, however ill-conceived). In keeping with the theme of those who exhibit foolish and reprehensible loyalties (i.e., Ramsey Clark), I recalled an experience I had after writing a column. The column discussed Lynne Stewart, the attorney who represented Sheikh Omar Abdel-Rahman in connection with the first World Trade Center bombing and who subsequently was tried and convicted for faciliatating Abdel-Rahman's communications with fellow terrorists after agreeing not to convey his messages to the public. I suggested in my column that if Lynne Stewart did what she was accused of doing, then she is not a hero. What she was accused of doing was pretending to discuss Abdel-Rahman's case through a translator, while actually permitting Abdel-Rahman to provide messages (encouraging the termination of a "cease fire" by a radical Islamic group in Egypt classified as a terrorist organization both by the U.S. and by Egypt) that would later be broadcast to his supporters. I argued in my column that behavior of this sort would qualify Stewart as an accomplice in any violence that might follow, much in the way that an attorney working for organized crime and relaying instructions for a "hit" would be. I received some very hostile email after that column posted, much of it from self-described "leftists" who believed that I had "lost my way" in not recognizing Lynne Stewart's heroism for challenging fascistic limitations on attorney speech. As Neil pointed out, Ramsey Clark is a great gift to Bush supporters who suggest that opponents of the war in Iraq must be supporters of Saddam Hussein. Lynne Stewart, I think, represents a similar gift to those who wish to censor attorney speech: she acted in a manner so irresponsible and reckless that it made then-Attorney General John Ashcroft's policy of silencing attorneys look sensible and wise. To paraphrase Voltaire, if Ramsey Clark and Lynne Stewart did not exist, right-wing extremists would have been forced to invent them.

More on Ramsey Clark and US Foreign Policy

In his post below, Mike wrote: "[L]iberal internationalists like myself would certainly concede that some U.S. military interventions have been unjustified, unwise and/or illegal under international law." Actually, one can agree with everything Mike says in his post even if one changes the word "some" in the above sentence to "almost all" and notes that some sins of omission (Darfur, Rwanda) are almost certainly worse than some sins of commission (Iraq, Vietnam)--though the ultimate body count in the ongoing disasters could tragically go either way in a contest that no one wants to win.

Again, even if one thinks that US foreign policy has been an unending stream of disasters and missed opportunities, Clark is still wrong and Saddam and Milosevic are still evil. Sadly, Clark makes the argument that Bush and his cheering section ascribe to everyone who disagrees with the war--that we're not happy to see Saddam out of power. Of course, any humane person would be glad to know that Saddam is no longer able to inflict horrors on the Iraqi people. That does not mean, though, that it was acceptable to do what we did to remove him from power, nor does it mean that we can blithely discount the evils that are being visited on the Iraqi people now. "But don't you agree that Saddam was evil?" turns cost-benefit analysis into benefit-only analysis, with anything that is a "good thing" justifying any means of achieving it.

It is always uncomfortable to reduce these questions to a crude utilitarian calculus, but that is what Bush's enablers have implicitly done. If they are to claim that the invasion and continued occupation are "worth it," they are implicitly weighing something against the mounting deaths and dismemberments (of both soldiers and civilians), the dislocations of thousands of families, the cost in dollars, the damage to the rule of law in the US and elsewhere, the US's loss in international standing, and all of the other consequences of this illegal invasion. In order to weigh such things rationally, though, one must be reality-based. Realistic analysts have given up on the flowering of democracy in the Middle East rationale, and the "fighting them over there so they don't come over here" rationale is a conveniently unfalsifiable argument. (If they don't attack in the US, then Bush is right. If they do attack in the US, then Bush is right, too, because it would obviously have been worse if we weren't fighting them over there.)

These are just my views of the consequences of Bush's decisions. In a democracy, we vote to express our views on whether to continue or to change policies. Apparently, that doesn't work, either.

What's With Ramsey Clark?

Since his days as a Justice Department lawyer in the Kennedy Administration and as Attorney General in the Johnson Administration, Ramsey Clark has become an object lesson in the flawed logic of "the enemy of my enemy is my friend." No doubt Clark became radicalized by his opposition to the Vietnam War, and came to see U.S. foreign policy as a force for ill in the world. I don't agree with that view in general, although liberal internationalists like myself would certainly concede that some U.S. military interventions have been unjustified, unwise and/or illegal under international law. But even if one takes the Clark (read Chomsky) view of American motives, that is hardly a reason to embrace all American enemies. Most critics of U.S. foreign policy should have learned this lesson the hard way in Vietnam, when some prominent anti-war activists embraced Ho Chi Minh's Communist Party, a totalitarian regime that was not qualitatively different from Stalin's Soviet Union or Mao's China.

Apparently, Clark learned no such lesson. To be clear, I have no quarrel with Clark's choice to represent radical anti-establishment figures. Such representation falls squarely within the honorable traditions of the legal profession. But Clark has gone much farther than mere zealous advocacy. He has actively identified with the causes of the unsavory characters he represents. Thus, Clark was quoted as saying of his client Slobodan Milošević: "History will prove Milošević was right. Charges are just that, charges. The trial did not have facts." Lately, he has taken not only to criticizing the procedures that were used to try and sentence his former client Saddam Hussein (which is fair enough), but to praising and excusing Saddam's actions while in power.

There are at least three plausible reasons one might have for objecting to the execution of Saddam. First, one might think that the death penalty is categorically immoral, even when imposed after a scrupulously fair trial that produced irrefutable evidence of monstrous crimes by an unrepentant evildoer. Second, one might legitimately question some of the procedures used in Saddam's trial. And third, on pragmatic grounds one might worry that executing Saddam will only make a martyr of him (although it seems at least equally likely that keeping him alive will inspire the hopes for a revival by his followers. Consider Napoleon.) But it should not count as an independent reason to oppose Saddam's execution that the original U.S. invasion of Iraq was illegal, even though it was in fact illegal. To borrow a concept from American constitutional criminal procedure, it makes no sense to treat Saddam's trial as the "fruit of the poisonous tree" of invasion, unless one is also prepared to invalidate every legal decision that has been reached by the Iraqi government since Saddam's overthrow.

President Bush and his congressional facilitators inflicted awful damage on the United States and thousands of Iraqis by starting this war. But that's no reason to whitewash the crimes of Saddam's regime.

Swearing on the Koran or the Bible? How About “Affirming?”

Congressman Virgil Goode Jr., a Republican from Virginia, recently wrote and then publicly defended a letter in which he warned that the election to Congress of a Muslim—Keith Ellison, a Minnesota Democrat—was a harbinger of the decline in traditional American (read Christian) values. The letter was prompted by the news that Ellison would take his oath of office (in a private ceremony) with his hand on a Koran. Goode’s letter provided politicians with a feel-good opportunity to show how open-minded they are by contrasting themselves with a genuine religious bigot, but it might also provide an occasion for noticing a quite different sort of religious bigotry—against atheists and polytheists—that has the official sanction of the U.S. government.

The Constitution requires oaths in two places. First, it specifies the oath of office the President must take: I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Second, it provides that all other state and federal officeholders “shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Note the careful secularism of both provisions. Neither refers to God, both provide non-believers the opportunity to “affirm” rather than “swear” their support for the Constitution, and the general oath provides further that there shall be no religious test for office.

Now consider the oath, prescribed by statute, that all new members of Congress, including Representative Ellison, must actually take. It states:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Like the Presidential oath, this one permits the new office holder to “affirm” rather than “swear” fidelity, but by expressly including “So help me God,” without expressly including an option of omitting these words, it could be said to violate the religious test prohibition, at least absent an implied opt-out for non-believers and polytheists (who would want the help of gods, in the plural). Indeed, even with an opt-out, one might argue that the Congressional oath is unconstitutional, although the lower courts have rejected this argument. It is nonetheless a sign of the taken-for-grantedness of monotheistic religiosity of 21^st Century America (by contrast with 18^thAmerica), that while Goode’s anti-Muslim bigotry is rightly condemned, the anti-atheist/anti-polytheist assumptions of the U.S. Code go almost completely unnoticed. Century

Engaging Iran?

Of the many aspects of the Iraq Study Group report that President Bush seems intent upon ignoring, the one piece that he may well be justified in setting aside is the recommendation that the U.S. engage Iran in a multilateral effort to stabilize Iraq. The logic of the Iraq Study Group is straightforward enough: Iran, as the dominant Shiite power in the region, has sufficient influence over Iraq’s majority Shiite population and an incentive to see Iraq avoid civil war that could spill over its borders. And in response to charges that Iran’s provocative activities warrant isolation rather than engagement, the Study Group sounds a decidedly pragmatic note: Without Iranian cooperation of some sort, Iraq will remain unstable.

Three widely covered recent events should give pause. One is the Holocaust denial conference, demonstrating that Iran’s top leadership is irrational if not genocidal. A second is Iran’s continued pursuit of nuclear weapons, including a statement in defiance of the latest UN imposition of sanctions. And the third is the recent defeat of Ahmadinejad’s candidates in local elections, suggesting that the regime may moderate from within if further pressure can be kept on it. (Arguably this third point cuts the other way, however: Ahmadinejad builds support domestically by confronting the West, so cooperation may actually weaken him.)

On Friday, a fourth reason for hesitancy before engaging Iran emerged. Federal District Judge Royce Lamberth entered a default judgment for the estates of 17 U.S. service members killed in the 1996 attack on the Khobar Towers in Saudi Arabia. The principal defendants are Iran and the Iranian Islamic Revolutionary Guard Corp (“IRGC”). The full opinion can be found here. I wouldn’t say that this is the final straw, nor do I have any alternative policy recommendations. I just call readers’ attention to the findings to underscore that even if engaging Iran is a necessary element of our least bad approach to the mess in Iraq, doing is still odious. Below are the most dramatic findings of fact from Judge Lamberth’s opinion:

. . .

6. Defendant the IRGC is a non-traditional instrumentality of Iran. It is the military arm of a kind of shadow government answering directly to the Ayatollah and the mullahs who hold power in Iran. It is similar to the Nazi party’s SA organization prior to World War II.

7. The IRGC actively supports terrorism as a means of protecting the Islamic revolution that brought the Ayatollah to power in Iran in 1979. It has its own separate funding sources, derived from confiscation of the assets of the former Shah of Iran in 1979, when the Shah was deposed.

. . .

11. The attack was carried out by individuals recruited principally by a senior official of the IRGC, Brigadier General Ahmed Sharifi. Sharifi, who was the operational commander, planned the operation and recruited individuals for the operation at the Iranian embassy in Damascus, Syria. He provided the passports, the paperwork, and the funds for the individuals who carried out the attack.

. . .

13. The terrorist attack on the Khobar Towers was approved by Ayatollah Khameini, the Supreme leader of Iran at the time. It was also approved and supported by the Iranian Minister of Intelligence and Security (“MOIS”) at the time, Ali Fallahian, who was involved in providing intelligence security support for the operation.

. . . .

The Duke Sexual Crime Case and the Foibles of Memory (Including My Own)

Without having seen the evidence, I can’t speak to the wisdom of Durham D.A. Michael Nifong’s decision to drop the rape count but continue to pursue the kidnapping and sexual offense charges in the case against three Duke lacrosse players. I would note, however, the problematic nature of one reason offered by Nifong for possibly dropping the charges at a later date. The alleged victim’s original identification of the defendants was based on a photo array. The NY Times today attributes to Nifong the statement that if she expresses doubts about her assailants’ identities when she sees them at the pretrial hearing, then he could dismiss the case. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people,” Nifong reportedly said.

Now there may well be good reasons to doubt the alleged victim’s reliability as a witness, including the lack of any physical evidence linking the defendants and the fact that her account of what happened has apparently changed several times. In addition, the original photo array was arguably flawed and the accuser did not at first identify these defendants. But if one thinks, as Nifong does, that the evidence as it stands now is sufficient to go to a jury, then if the alleged victim expresses new doubts based on seeing the defendants live, that fact should not carry much if any weight. Although a live i.d. may be more accurate than a photo i.d., a witness’ recollection many months after the incident is almost certainly less reliable than her recollection closer to the event—regardless of whether the respective i.d.’s are via photos or live.

I could cite scientific evidence about the fallibility of memory, but instead I’ll simply relate my own experience as a crime victim. While I was living in Los Angeles in the early 90s, I was held up by a gunman after I (foolishly) took money out of an ATM one night. The man approached me and my wife as we left the ATM and asked me for the money I had withdrawn (which I provided), and then instructed me to return to the ATM for more cash. Because of the bank’s maximum withdrawal policy, the ATM was not cooperative, and so my assailant and I talked for a few moments about what amount of money to request so that it would provide any additional cash. Those roughly 30 to 60 seconds together afforded me a reasonably good look at his face, not that I was especially focusing on anything but surviving the incident. Eventually our robber gave up on getting more funds and let us go.

We reported the case to the LAPD and gave what I thought was a not-very-helpful description of the gunman. Much to our surprise we got a phone call a few weeks later that the police had a suspect in custody. (We later learned that he and his getaway man were apprehended when the two of them and a third man engaged in a gunfight with the police during another ATM robbery, resulting in the third robber’s death. So felony murder was among the charges my robber would ultimately face.) Because of the high crime rate at the time, the LAPD was able to conduct lineups in which every person in the lineup was a suspect, just for different crimes, with various victims sitting at separate desks writing down their own choices for their crime. It reminded me of taking the LSAT, except with criminals present. Anyway, I identified my robber, as did my wife. We were relieved when we discovered that we had each identified the same suspect. Then we didn’t hear anything for months.

By the time of the trial, nearly a year after the robbery, however, I was no longer able to identify the robber, even though it was pretty obvious that it could only be one of the two men sitting in orange jumpsuits at the defense table. One of these men was the getaway driver that I had not seen during the robbery, and I was about 80% sure who was who, but I had nothing like the feeling of near-certainty I had when I first saw the suspect in the lineup. Why not? Well obviously, my memory of the event had faded. I told the prosecutor and the defense attorney on cross that I remembered being confident in my i.d. near the time of the crime. Outside the courtroom, the prosecutor told me that my testimony had been very helpful, and I believed him. Surely jurors would understand that memory becomes less reliable over time. Bottom line: Based on my testimony and the testimony of other witnesses (including my wife) who did i.d. the defendant in court, he was convicted on all counts.

Q.E.D.

How Long Can One Punitive Damages Award Be Litigated?

I admit: I laughed at the "Dick in a Box" skit on Youtube. Alas, we don't even TiVo SNL anymore -- that's how lame we've become w/ 2 careers and 2 children under 2. (I even sent it to some colleagues who promptly ignored my giving gesture.) But something else in the papers caught my eye today. The AP reports that the Ninth Circuit has again remanded the punitive damages award against Exxon for its Valdez oil spill, finding that the district judge's $4.5 billion award was excessive. See the story here. Get this, though: in a 2-1 panel decision, the court reverses a Reagan-appointed district judge, H. Russel Holland, apparently because the punitive damages award, it said, should usually not be more than 9x the actual damages award and that that "rule" should apply in this case. Even supposing Holland has turned the thing into a personal blood feud against a corporation that last year cleared $36 billion, what gives? This was, no exaggeration, the third time the case had been up to the Ninth Circuit and, to listen to people who've lived through the ordeal, Exxon should've paid the $4.5 billion cash on the barrelhead and thought itself getting off cheap. Just for example: the thousand or so otter carcases they recovered meant that between 3500 and 5500 actually perished. The Prince William Sound fisheries may never fully recover and the workers who tried to clean it up are still developing nasty latent illnesses.

At issue in this appeal is the growing collection of "substantive" due process precedents from this Supreme Court attacking the unfairness of punitive damages awards like Holland's. In point of fact, the Court has held that "exemplary" damages awards 10x or more the actual damages are suspect as being "grossly disproportionate" and thus a denial of "due process of law." But it has also said that "[a] higher ratio may also be justified in cases in which the injury is hard to detect of the monetary value of noneconomic harm might have been difficult to determine." BMW of North American v. Gore, 517 U.S. 559, 582 (1996). This is what leads me to wonder: two months after Exxon announced its eye-popping quarterly profit of $10.5 billion, a year after one local scientist self-published her own account of the many latent harms now manifesting themselves in the Sound, and a century after Lochner, is this how our judiciary is safeguarding the rule of law? There must be any number of ways to justify an award of this size against the brand of malfeasance that brought us the Exxon Valdez, no?

Incidentally, that study is Rikki Ott, Sound Truths and Corporate Myths: The Legacy of the Exxon Valdez Oil Spill (2005)--available here.

bleep in a tivo

One more thought on the bleeping issue. One reader commented in response to my question about how bleeping "dick" protects anybody, that it could help if a 4-year-old happened to be watching. Better that the 4-year-old hear "bleep in a box" than "dick in a box."

I was about to reply that the concern for children leaves the mystery unsolved because the FCC rule requires bleeping during hours when young children are likely to be watching, while SNL bleeps even between 11:30 pm and 1 am, when young children would be asleep. Perhaps, however, the protect-the-children rationale still works for SNL because of the growing popularity of TiVo and other DVRs. Parents might watch a late-night show during daytime hours.

THAT possibility (which has, in some sense, been with us since the days of VCRs), in turn raises the question of whether the FCC should be able to expand the hours of its decency reg to cover all times. Would doing so go beyond the FCC's statutory authority because, even though nominally a regulation of a broadcast transmission, it would be predicated on the use of post-reception technology? Even if not, would extending decency regulation deep into the night and the wee hours of the morning run afoul of the First Amendment principle that an entire medium of communication can't be made to conform to standards appropriate to children? (As Justice Marshall put it: "The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.")

And finally (I hope), this whole episode reveals the oddity of a regulatory regime that will come under increasing pressure with increasing convergence of communications platforms.

Bleep in a box

Thanks to Marty Lederman for the clarification re the court rulings on the decency statute. (See comment 1 on my entry earlier today.). But if no law requires bleeping "dick," the mystery only deepens: Why would NBC think that bleeping makes any difference where the bleeped word is obvious?

Using the Internet to Circumvent Decency Regulation

As widely reported, NBC recently placed a version of a parody music video called “My Dick in a Box” on YouTube (enjoy it here) after having played the video on the broadcast version of Saturday Night Live with the word “dick” repeatedly bleeped out. This story raises many interesting questions, such as: How exactly does bleeping the word “dick,” when it is obvious from the context that this word (or perhaps an even more profane synonym) is being uttered, protect anybody’s sensibilities? And does anybody actually watch Saturday Night Live anymore? I’ll put these questions aside to get to a legal issue.

The news stories I’ve seen say that NBC put the uncensored version on YouTube as a way to circumvent FCC regulation, but this is perplexing. The relevant FCC reg (which you can find at 47 C.F.R. § 73.3999) states:

(a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene.

(b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.

Saturday Night Live airs after 10 p.m., and is thus subject only to the obscenity ban. Whatever else you might say about the lyric “my dick in a box,” it certainly doesn’t count as obscene under the Miller test.

The key here, I think, is that the relevant federal statute (which you can find at 18 U.S.C. § 1464), bans broadcast indecency regardless of what time it airs. It provides:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

(Television broadcasts count as “radio communications” under the Act.) So NBC was not worried about running afoul of the FCC but of Congress. Want to bet that the new Democratic Congress does nothing to reassure broadcasters that they won’t have to go to prison for uttering the word “dick?”

New York -- Worst State Government Ever?

Adrienne Koch's post from December 18, "Three Men in a Room," nicely describes the vagaries of New York State's Public Authorities Control Board (PACB), noting that the board has moved beyond its statutory mandate to allow each of its three members (the governor, the majority leader of the state Senate, and the Assembly Speaker) to exercise veto power over publicly funded projects in the Empire State. Unfortunately, the "three men in a room" phenomenon is not limited to the PACB. In fact, I believe that it might not be an exaggeration to say that New York is not a democracy. The governor is popularly elected every 4 years, but there is no serious possibility that the other two offices will change parties under the gerrymandered system that currently exists here. Moreover, the degree of power that the majority leader and the Speaker exert over their respective chambers is, as I understand it, unprecedented in this country. The rank-and-file in Albany are, by every report that I've ever read, simply irrelevant in the process of creating legislation.

Perhaps democracy is over-rated, but I certainly am an unhappy member of a polity that is so ruthlessly excluded from the process of lawmaking. What about the judicial branch? If anything, it's even worse. The parties have been fighting fiercely to protect the system by which judges are elected in the state, a system that is so tightly controlled by the parties (Democrats in the City, Republicans upstate) that it has been held by a federal district judge to violate the U.S. Constitution. Unfortunately, the result of this will apparently be to create "competitive" elections, which will simply invite huge sums of money into judicial politics, a process which has already led to particularly ugly judicial elections in Illinois, Ohio, and West Virginia in recent years. Changing the system to one of merit selection (along the lines of New Jersey's excellent, if imperfect, system) would require the approval of three men in a room.

Pushing New York far ahead of the pack (or far behind it, depending on one's perspective), though, is its system of municipal courts, which go by the Orwellian name of "justice courts." As a recent series of articles in the New York Times has shown, these local courts are a sick parody of a justice system. I have had direct contact with this system. A few years ago, I was living in the Hudson Valley, working for a small college in a tiny town. When I wanted to pursue a contract dispute against my employer, I learned that the local justice was the maintenance man for that same college. My lawyer (who, by the way, was also my state Assemblyman) told me not to bother bringing the claim. At least I only lost a few thousand dollars. As the Times reports, people are being incarcerated without even the most basic procedural protections by local magistrates who are not lawyers and who have received exactly one week of legal training. Blatant racism and sexism permeate many proceedings. Proceedings are not recorded, so review is nearly impossible. The chief judge of the state's highest court is imposing some new rules on the system, but fundamental change must come through legislation. Which brings us back to the three men in a room.

The Admissibility of Violent Rap Lyrics

Yesterday’s federal court murder conviction of Ronnell Wilson rested in part on the prosecution’s introduction into evidence of rap lyrics that Wilson had composed. A wire story explains that prosecutors nationwide have increasingly relied on rap lyrics in pursuing cases against accused criminals. The story does not, however, draw what should be some important distinctions.

In some of the cases, rap compositions by the defendant have been introduced essentially as confessions. This strikes me as appropriate. To be sure, there is a risk that someone who boasts in his song that he committed a particular rape or murder is puffing, but that risk is no different from the risk one encounters in a prosaic confession.

The more interesting cases involve prosecutors introducing lyrics composed by the defendant or to which the defendant listened prior to the crime he allegedly committed. Here I see two issues, one not serious, the other more serious. The not-serious issue is freedom of expression. We might worry that the evidentiary use of rap lyrics will chill their creation or enjoyment. I realize that there are many people who would deem that a positive result, but I’m going to assume that the First Amendment would deem it a negative. Nonetheless, it strikes me that the First Amendment simply does not protect against this sort of use of artistic taste or creativity. John Doe may have a First Amendment right to read American Psycho, but if he’s charged with committing a murder that is identical to one depicted in the book, the fact that he did in fact read it tends to show that he could have been the killer. This is even more clearly true where the author or composer of an obscure work stands accused of committing a crime much like one appearing in the work.

The more serious worry, it strikes me, is one of ordinary evidence law: Prosecutors may be introducing rap lyrics to circumvent the propensity rule. The Federal version of that rule (Fed. R. Evid. 404(a)) provides: “Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . .” However, a prosecutor can introduce a rap song to show intent or plan or something else that’s relevant so long as it does not rely on the following chain of inference: This guy listens to or writes violent rap; therefore this guy is bad; therefore this guy is guilty. Where the same evidence is relevant both to character (and thus the “bad guy” inference) and to something legitimately contested, such as m.o., the trial judge is supposed to balance the legitimately probative character of the evidence against its unfairly prejudicial impact. The gist of the wire story linked above is that judges are generally striking that balance in favor of admission of rap lyrics. I’d need to know a lot more about the individual cases to say that this is the right balance, but given the popularity of rap, I’m dubious. Where it doesn’t tightly correlate with the particulars of the crime, the taste for rap may not actually tell us that a defendant has much more of a taste for real violence than does the taste for the violence of, say, Itchy & Scratchy. But for jurors who don’t themselves have the taste for rap (read “middle-aged white people” like me) the shock value may be so great as to trigger the bad guy inference.

An Open Letter to our Counter-Majoritarian President

Dear Mr. President:

Whenever the topic of the courts arises, you say that you favor judges who will “interpret the law” rather than “legislate from the bench.” I could quarrel with the claim that the conservative judges and Justices you have appointed actually follow this philosophy, but I certainly understand and sympathize with the core belief that motivates it: In our system of government, important decisions should be made by the elected representatives of the People, unless the Constitution clearly takes some particular decision away from them. With respect to the courts, you, sir, can proudly say that you are a small-d democrat.

Why then, I must respectfully ask, have you so little regard for the will of the People? I’m not referring here to the awkward circumstances in which you first won the Presidency. That’s water under the bridge in light of your victory in 2004. That latter victory was, as you said at the time, “an accountability moment.”

But while we’re on the subject of accountability moments, you may recall that we had another one just last month, and this time the People said - - about as clearly as they can say in a federal electoral system that does not have ballot initiatives and in which most citizens vote in politically gerrymandered districts - - that they disapprove of the conduct of the war in Iraq. Accordingly, you should reject the policy you are apparently considering: increasing troop levels in Baghdad for a “surge” of strength designed to secure the city.

I recognize that there are some military experts who think the surge plan could work, although there appear to be more military experts who think it won’t, and even some of its supporters think it probably won’t work but is worth a try before we just “cut and run.” Faced with tactical uncertainty of this sort, wouldn’t the right approach be to give some deference to the citizens who have made clear that any surge in U.S. troops should be directed towards, rather than away from, their bases back home?

Patriotically yours,
Michael C. Dorf

Sen. Brownback's (withdrawn) opposition to Judge Neff

Now that Senator Sam Brownback has withdrawn his opposition to permitting the nomination of Judge Janet Neff from being considered by the Senate, it's worth examining the grounds that were offered for criticizing his action.

First, of course, there is something deeply undemocratic about the Senate system of "holds" that permits a single Senator to block the confirmation of a judge who has the backing of a majority (not to mention a filibuster-proof majority) of the full Senate. It shares many of the flaws of the "three men in a room" system that Adrienne describes below.

Second, the substantive grounds of Brownback's opposition were ridiculous. Brownback wanted to "investigate" the facts surrounding Judge Neff's attendance at a same-sex commitment ceremony for the daughter of a close family friend. Brownback worried that this revealed Neff's possible bias should she be called upon to adjudicate a constitutional challenge to laws forbidding same-sex marriage.

And third, Brownback was harshly criticized for his proposed compromise in which he would permit Neff to be confirmed, but only if she promised to recuse herself in same-sex marriage cases. Such a commitment in advance would arguably violate separation of powers.

Although I certainly don't share Brownback's substantive commitments on this issue, I wonder whether the procedural criticism has been fair. Suppose an otherwise qualified judicial nominee had attended a ceremony that we liberals find offensive: Perhaps a judge attended a family friend's graduation ceremony in the Ku Klux Klan. (Humor me in assuming the Klan holds graduation ceremonies.) Even though attending in a "personal" capacity, wouldn't this act send a sufficiently alarming message about the nominee's views on civil rights to warrant further investigation before confirming him to a seat on the federal bench? And wouldn't a pledge that the nominee would recuse himself in civil rights cases be better than a simple confirmation without such a pledge?

Three Men In A Room

Those of us who live in New York state sometimes complain that the state is run by "three men in a room" -- the governor (currently George Pataki), the Senate majority leader (Joseph Bruno), and the Assembly Speaker (Sheldon Silver). An article on the front page of the Metro Section of today’s New York Times, entitled "Fate of Project in Brooklyn Hinges on Nod of One Man," highlights one reason for this phenomenon. The article reports that Speaker Silver could single-handedly shut down a redevelopment project for the Atlantic Yards in Brooklyn. No matter that the project has undoubtedly already been through all manner of administrative review; as the Times aptly puts it, "Sheldon Silver could always just say no."

What the Times is talking about is the fact that in New York, certain projects undertaken by certain public benefit corporations require the unanimous approval of a body called the Public Authorities Control Board ("PACB"), whose three voting members are Silver, Bruno and Pataki. As the Times reports, it was in this capacity that Silver and Bruno were able (somewhat famously) to block a proposal last year that would have resulted in the development of a new stadium on Manhattan’s west side. Similarly, it is this power that could enable Silver to block the Atlantic Yards project. This sort of thing happens -- or is threatened -- with some frequency in New York.

If it sounds strange that any one of these three individuals can stop a project that has already been reviewed and approved by all of the agencies and other bodies charged with reviewing every substantive issue it raises, that’s because the source of this power is something loosely akin to an urban myth. Under the applicable statute, the PACB actually has the authority only to confirm that there are sufficient funds committed to finance the acquisition and construction of the project. The PACB’s statutory authority does not "technically" permit it to disapprove a project based on any factor other than an absence of funding sources.* The reason for this review is historical: the PACB was created in response to a fiscal crisis in the 1970s, when (among other things) there was no across-the-board check to make sure that state agencies weren’t spending money they did not have (and, apparently, they were). This is, of course, a salutary purpose.

But somehow, over the years, the three voting members of the PACB began to exercise their authority to block projects that they did not like on the merits. And somehow, over the years, we have come to accept this. In light of the requirement that the PACB act unanimously -- which may have made sense in connection with the board’s original statutory purpose -- this tacit expansion of authority gives each these three individuals an extraordinary political trump card.

Unfortunately, as near as I can tell, although we grumble about this no one has yet challenged it in any meaningful sense. Hence we find ourselves governed by "three men in a room."

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*The only exception of which I am aware relates to the Long Island Power Authority -- the statute that regulates that body specifies that certain of its projects must first be reviewed by the PACB for financial feasibility and other factors. But in all other cases, the PACB is not charged with making any such determinations. Indeed, on at least one occasion Pataki himself vetoed legislation that would have expressly given the PACB the authority to review certain projects on the merits, stating: "I am particularly troubled by the broad policy-making role that the legislation confers upon the PACB. By requiring the PACB to determine whether an alternative use is an ‘appropriate’ one, the bill goes far beyond the PACB’s traditional role of opining on the fiscal soundness of the State and its public authorities." (N.Y. Bill Jacket, 1996 S.B. 6923, Governor’s veto message).

Cases Filed

The release of the Census Bureau’s 2007 Statistical Abstract of the United States on Thursday led me to poke around with some of the tables on courts, in particular on civil cases filed in federal district courts from 2000 through 2005 (12-month periods ending June 30). The statistics aren’t really new and in fact don’t include the 2006 numbers, which are available on the federal judiciary’s website, and which I tacked on to some of the 2000-2005 numbers. One thing I noticed right away is that there was a big drop in cases filed in federal district courts in 2006, from 282,758 in 2005 to 244,343 in 2006. That’s a fall of almost 14%. In part this results from a spike in personal property damage cases filed in 2005:
I’m guessing that the extra 20,000 or so cases in 2005 were 9/11 cases with statutes of limitations nearing. (Maybe a reader knows for sure.) That accounts for only about half the drop, though, and fewer total cases were filed in 2006 than in any of the preceding six years:
Not only that, but asbestos case filings increased by more than 7000 in 2006, presumably in anticipation of a change in the law. When you put aside that one-time jump, the drop in 2006 case filings appears even more dramatic and encompasses almost every category and subcategory of cases. Amidst the recent discussion of the Supreme Court’s shrinking docket, I haven’t seen much about the corresponding (though less dramatic) shrinking of the district courts’ dockets. I don’t know what the cause is. Perhaps an increasingly conservative judiciary is succeeding in discouraging a wide range of plaintiffs from filing actions. Alternatively, undecided legal issues might be disappearing, unreplenished by any major new legislation, resulting in less uncertainty and so more pre-filing settlements. If someone knows the answer, I’d be curious.

Violence Voyeurism

As sports fans are by now aware, during the waning moments of a Saturday night basketball game between the Denver Nuggets and the New York Knicks, a melee ensued among several players for each team. The league will shortly announce suspensions and fines for the players involved, including Nuggets star Carmelo Anthony, who connected on a sucker punch to Knicks rookie Mardy Collins (who himself had started the fracas by committing a hard foul). For much of Sunday, the sports tv news shows repeatedly replayed the fight, even as the commentators condemned the behavior.

There is a certain mystery here. Basketball purists say that fighting has no place in the game, but obviously the tv producers think it keeps the fans hooked. In light of that evident fact, why does the league itself strongly disapprove of violence? One reason is obviously to protect the teams’ investments in their players. Unlike fights in hockey, where players are well padded, season-ending or career-ending injuries could result in basketball. But that’s not all of it. Despite the evident fascination of the fans with fighting, the Indiana Pacers dipped in popularity when they were involved in an even worse melee in Detroit two years ago. Perhaps the difference there is simply that the Pacers players attacked fans, which made the gladiatorial aspect less comfortable.

There is also a strange disconnect with reality. Americans and especially Iraqis are dying horrible deaths in substantial numbers in Iraq; yet most such incidents get nothing like the attention that this basketball fight – which resulted in no serious injuries – garnered. Or maybe that’s the answer right there: We like our violence to be extreme but not to hit too close to home.

The Iraqi Legal System

Today’s New York Times contains a heartbreaking front page story about the shocking inadequacies of the legal system now operating in Iraq. The story raises numerous issues but I’ll just mention two here.

(1) The article demonstrates that a concern for due process is not, as get-tough types sometimes say, a kind-hearted but soft-headed gesture. With procedures that do little better than chance at distinguishing guilty from innocent, and corruption rampant, not only are innocent people suffering long terms of imprisonment and perhaps in some cases being sentenced to death, but guilty people are routinely released. Military commanders complain about continually recapturing the same insurgents who are turned over to the courts only to be released on the basis of insufficient evidence. It’s true, of course, that one tough-minded solution would be to convict everybody, but even without the fog of war, this method should be utterly unacceptable to all but totalitarians. More crassly, the Iraqi government stands little chance of winning hearts and minds if it routinely imprisons large numbers of innocent people.

(2) The story contains the following quotation from Paul Bremer, speaking in November 2003: “Evil doers will face justice in honest and fair Iraqi courts.” It is the legal equivalent of the Vice President’s prediction that American forces would be greeted as liberators. No wonder Bremer received a Presidential Medal of Freedom.

A Lesson from the Death Penalty Debate

The Times reported yesterday that the number of people sentenced to death each year in the United States has decreased almost 60 percent since 1999. As the Times pointed out, there are a number of possible explanations for this decrease -- a drop in violent crimes, better representation for capital defendants, Supreme Court decisions requiring juries to be told when a sentence of life in prison carries no possibility of parole. But it seems clear that one of the main reasons for the decline is a shift in focus by death penalty opponents from philosophical concerns to pragmatic ones. Instead of arguing that capital punishment is immoral -- as they often did in the past with little success -- opponents in recent years have been focusing on the unreliability of the criminal justice system. Aided by advancements in DNA technology and high-profile exonerations of death row inmates, they have persuaded many Americans that even if the death penalty is morally justified the system that administers it is so flawed as to be unsupportable. The result is that support for the death penalty is at its lowest point since the early 1970s; polls now show that half of Americans favor life in prison over execution as the punishment for murder.

The success of death penalty opponents offers a useful lesson for progressives. In a country as culturally diverse as the United States, imposing a moral vision on society is an extremely difficult task. Some views are so entrenched that only decades -- or even centuries -- of advocacy and education are likely to change them. But by shifting attention to more pragmatic, less theoretical, concerns, progressives may have more success in the culture wars. We have already seen this happen to some extent in the debate over affirmative action. In upholding racial preferences at the University of Michigan Law School, Justice O'Connor focused on the practical needs of the military and corporate America rather than on basic questions of equality. Of course, those basic questions of equality are important, and we should keep discussing them. But if we can obtain the results we want in the meantime by focusing on pragmatic concerns, it seems worthwhile to do so.

Exploding Offers and Other Hiring Abuses

I am so glad that Michael raised the issue of exploding offers, because it raises the general issue of the abuses that go on in the world of law school hiring. Exploding offers are arguably one example of such an abuse, but there are others that are worth highlighting. One key factor to consider in predicting whether abuses will take place at a particular school is the relationship between a faculty and its dean. If a dean perceives herself as working for the faculty in trying to recruit people about whom the faculty is enthusiastic, then she might play hardball, but she will do so in a way that increases the chances of bringing a happy new recruit into the fold. This in itself is an incentive against abuse. If, on the other hand, a dean views herself as a benign dictator who knows what is best for the faculty, then there is likely to be a problem.

The dean-as-dictator will attend a meeting at which the faculty votes an offer to a candidate and view that meeting as conferring absolute discretion on the dean to do with the offer what she sees fit. Such a dean considers as a first priority the importance of conveying to the candidate (if only implicitly) that joining the faculty means becoming her (the dean’s) subject. As you might have guessed from the way in which I speak of this, I long ago had an experience with a dictator dean. It happened about eleven years ago, when I went on the market again after only two years of teaching to facilitate my spouse’s lateral move to a new law school (consistent with our living in the same place). Since I had been teaching for a few years, I had areas in which I had already invested time and energy, both as a teacher and as a scholar, and wished to continue to pursue those areas. Though it limited my options, I made my plans on curriculum clear to each school considering me, to avoid any future misunderstandings.

At one school (which will remain nameless here), I was invited to interview and give a job talk. I gave my job talk and then waited. Ultimately, I heard through the grapevine that the faculty had voted me an offer. I was pleased and waited to hear officially from the dean. The dean called me and told me about the offer and said that she (I use the feminine pronoun here generically) was interested in what my ideal teaching package would be. I told her, and she said that the school could use those subjects but that I might also have to teach civil procedure. I explained to her that civil procedure is not one of my areas and that I had told all schools from the beginning that I wanted to continue pursuing the areas that interested me (and even some new areas that I had not yet taught) but that civil procedure was not among these subjects (no offense to people who teach and love civil procedure – it’s just not my cup of tea).

This dean responded that I might have to teach civil procedure if that is what the school needed. I asked whether my offer was contingent on my willingness to teach civil procedure, and she replied that if I were not willing to teach civil procedure, then I did not have an offer. I told her I would need some time to think about this unexpected turn of events, and she asked how much time I wanted. I said a week, and she responded that okay, we could talk in a week. I was not feeling very good about this school or its dean.

Then, after three days (note here that three days is less than a week, a fact whose significance will become apparent in a moment), I received a call from the dean. She told me that my reservations about civil procedure had given her reservations about me. I said that she had given me a week to think about things and asked whether she was now revoking my offer. She responded that at this moment I no longer had an offer but that if I had something to say about the whole matter, I could call her and let her know and things might change. Shortly thereafter, I received calls from concerned members of the appointments committee who tried to persuade me to visit the dean and tell her that I would love to teach civil procedure. One faculty member assured me that the dean was only like this with recruits but was a “pussycat” with actual faculty. I responded that I would sooner take a two-hour train ride every day to continue teaching at my old institution than join a faculty with the sort of dean I had just had the misfortunate to meet.

Sadly, this person remains dean, even after all this time (which confirms that monarchs rule until death). When -- after about a year had passed -- I asked a member of the faculty in question how the dean had explained my disappearance from the scene, I was told that an email had gone out from her office explaining that the dean and I could not figure out a teaching package that worked for me. Nothing was said about the attempt unilaterally to impose a particular subject or the revocation of my offer. The dean, in other words, had lied to the faculty about having bullied a candidate to whom the faculty had voted to extend an offer. This should not be surprising. Dictators lie all the time about what they’re doing and why, and they lie about why things did not work out at the end.

A good dean does not bully and abuse potential recruits, and a dean who does so can be expected to abuse the faculty as well.

For people who are now on the market, I recommend that you keep my story in mind as a cautionary tale. If your gut tells you that there is something creepy about the way that a dean is treating you, don’t ignore it. And don’t wait eleven or twelve years to talk about it. I invite people to post their stories of hiring abuse as comments here so that others can learn from your experiences. The legal academy should not be exempt from norms of civility that govern everyone else. (Sorry for such a long post).

Exploding Offers

A number of my current and former students have lately been dealing with the nasty phenomenon of the “exploding offer,” whereby the offeror gives the offeree a deadline to decide whether to take the offer that is so imminent as to make it impossible for the offeree to explore other options seriously before she must decide whether to accept or reject the offer. I have no doubt that exploding offers exist in many contexts, but the three with which I’m most familiar are these: Offers of clerkships from judges to students; offers of publication from law journals to authors; and offers of tenure-track positions to entry-level legal academics.

Let’s begin by defining an exploding offer. Clerkship applicants sometimes get on-the-spot take-it-or-leave-it offers, which clearly count as exploding for my purposes. So do 24-hour deadlines from law journals, since 24 hours is usually not enough time to have an article expedited at other journals.* For entry-level tenure-track offers, even a one-month or longer deadline could count as exploding if it is made sufficiently early in the hiring season, say a month before the annual hiring conference. And indeed, in recent years, a small but growing number of schools have taken to interviewing and making offers well in advance of the conference. They do so, pretty clearly, to prey upon the risk aversion of candidates. A candidate with an offer from Law School X that expires on November 1 may accept it, even though she would much prefer to end up at school Y or Z, simply because of the risk that Y and Z will not make offers.

There are, nonetheless, legitimate reasons for schools to make exploding offers. Elite schools tend to be relatively unconstrained by budgetary factors year to year. Thus, if Harvard, Columbia, NYU or Yale, to name a few, decides that there are four terrific newcomers, it will make offers to all four. However, many schools have a discrete number of hiring lines in any given year. Say school Z has one line, and that candidate A is Z’s top choice. If Z gives A as much time as she wants to make up her mind, then if A waits until the end of the season to decide to go to Stanford over Z, Z is now out of luck. Their second choice, candidate B, may have by now accepted another offer (even if B would have preferred an offer from Z had one been made in a timely fashion), as may have third choice C and fourth choice D. To avoid being stuck in this position, it strikes me as not unreasonable for Z to ask A to use whatever leverage she has with the other schools that are pursuing her to make a relatively quick decision. Even a deadline would be reasonable as a way of ensuring that if A turns Z down, Z can still get to B before it’s too late.

But that’s a far cry from deliberately scheduling interviews, offers and deadlines in a way that artificially pressures candidates simply based on their risk aversion, even where substantial extra time will not jeopardize the offering school’s ability to make an offer to its second-choice candidate. And yet a growing number of schools are doing just this. I would have hoped that this would be a self-limiting phenomenon. A new faculty member who arrives at a school she believes unfairly played on her risk aversion may be more likely to look to make a lateral move sooner rather than later. But unfortunately, initial jobs are sticky, both because of the vagaries of the lateral market and because relocating has costs.

Finally, I realize that this whole post has a bias for individual prospective faculty members. Why, one might ask, should the faculty member’s choice be more important than that of the school? The answer, I think, is that where an individual faculty member begins her professional career makes a much greater difference to her than it does to the school. By contrast, in the clerkship context, the stakes are at least as high for a judge as they are for a law clerk, which is why I find the practice of exploding offers less problematic there.

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* Note to academics in other fields. Most law journals permit multiple, simultaneous submissions. Given the very large number of law journals and the still larger number of articles submitted to these journals annually, a system of exclusive submissions would probably not be practical without delaying publication of most articles until they cease to be timely. That said, some peer-reviewed law journals do require exclusive submissions, and so it’s possible that the system could adjust.

On the Contemporary Challenges to Judicial Review

About a year ago the Knesset (the Israeli parliament) passed one of the most despicable laws ever enacted by it. Despite its innocent sounding name "The Civil Damages Law (State Responsibility), Amendment 7," this law sweepingly denies any Palestinian residents living in areas defined by the defense minister as confrontation zones of the right to compensation, apart from a few exceptions. Thus, for example, a Palestinian passerby who is blinded by negligent Israel Defense Forces' gunfire (a bullet accidentally discharged during non-operational activities, for example), and who lost his livelihood due to the incident, will receive no compensation. Even if it is proved that the bullet was fired maliciously, the victim will receive no compensation unless the guilty soldier is found and convicted, which is highly unlikely.

A few days ago, the Israeli Supreme Court found the law unconstitutional. In addition to the regular protests against the so-called activism of the Israeli Supreme Court, Israeli politicians ignorant of the changes brought by the basic laws in 1992 have challenged the power of the Court to declare laws unconstitutional. This power was not explicitly specified in the basic laws passed in 1992. Yet, in 1995 the Supreme Court declared it has such a power on the basis of the provisions of the basic laws.

Even if the Court was wrong in its decision in 1995, the power to review legislation has become since then a basic feature of the Israeli system. Challenging this important declaration is equivalent to challenging the American decision in Marbury v. Madison. Debates concerning the scope of the justified interference in legislative decision-making are of course important and legitimate. It is undesirable however that the question of whether courts have the power to review statutes is still debatable. Furthermore, unlike the American Constitution, Israeli basic laws can be amended relatively easily. If politicians wish to deprive the Court of its powers to review legislation, they can do so. Fundamental debates concerning the power of the Court undermine the legitimacy of the legal system as a whole.

Tim Johnson and our Deontological Politics

Even as the press and bloggers speculate about the ramifications of Senator Johnson's health crisis, politicians of both parties have studiously avoided any such discussion, out of the understandable impulse to avoid seeming utterly callous to Johnson as a person and to his family. This strikes me as the utterly correct political (and human) judgment, but it's worth inquiring why.

It certainly would matter enormously if, through death or incapacitation, a Democratic Senator were replaced by a Republican, even where, as in Johnson's case, the Senator is among the most conservative members of the party. Control of the Senate carries with it enormous consequences, including, among other things, the ability to control the legislative agenda on Iraq and to schedule judicial confirmation hearings in the Judiciary Committee. Certainly partisans of both parties believe that who controls the Senate has life-and-death consequences for a great many people.

The politicians' reluctance to talk in such terms, however, reflects a kind of repulsion towards crass utilitarianism of the sort one encounters in reactions to the trolley problem and other puzzles. It is why Pat Robertson seemed like such a ghoul when he prayed for the "retirement" (read "death") of liberal Supreme Court Justices. Whether it's good or bad (and how to judge that) for our public life to be deontological in this way I won't say (nor do I know). But the fact of it seems hard to deny.

It's Thursday, this must still be Belgium

In an era when the most hard-hitting journalists in the U.S. work for Comedy Central, when a genuine team of reporters from Kazakhstan in the U.S. to cover the November election could not conduct interviews because people assumed that they were working with Sacha Baron Cohen, and when the President's staff deride reality-based thinking, it was perhaps a miscalculation by Belgian television to broadcast a mockumentary with the premise that the federal government had dissolved. Apparently Americans are not the only people in the world who mix truth and fiction, or who have a hard time telling which is which. In any event, so far, no word of lawsuits.

Hamdan Loses a Round in the District Court

Yesterday, federal district Judge James Robertson dismissed the habeas corpus petition of Salim Ahmed Hamdan (yes, that Salim Ahmed Hamdan) on the ground that the Military Commissions Act (“MCA”) eliminated jurisdiction. (Read the decision here.) Judge Robertson usefully summarized the issues thus:

The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid “suspension” of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are “yes” to number (1) and “no” to numbers (2) and (3).

The court's answer to question (1) is hardly surprising, as the language of the MCA clearly makes it applicable to pending cases. There are, however, some interesting nuances in the answers to questions (2) and (3).

As to question (2), Judge Robertson arguably rejects the view expressed by Justice Thomas that Congress is the sole judge of whether the constitutional conditions necessary for a Suspension of the Writ, “rebellion or invasion,” are present. I say “arguably” because while Judge Robertson says flatly there was no rebellion or invasion justifying suspension, he also says that Congress itself did not believe that there was an actual rebellion or invasion. Also noteworthy is Judge Robertson’s decision even to answer question (2). In light of his answer to question (3), he could have assumed without deciding that there was no valid suspension.

Judge Robertson’s conclusion with respect to question (3) is plausible but does not, in my view, adequately answer the Supreme Court’s dicta in Rasul. There, the Justices suggested without deciding that several distinctions between the facts of detention in Eisentrager and the facts of detention at Guantanamo should make a constitutional difference. (The Court did not decide the issue, however, because it resolved the case on statutory grounds.) Judge Robertson does draw one salient distinction with Rasul, however: He says that the expectation that Hamdan will be tried by a military commission with the blessing of Congress means that he, like the Eisentrager petitioners, will be afforded access to a proper tribunal. Whether that is enough to put the case squarely within the rule of Eisentrager remains to be seen. Surely the courts have not heard the last of Mr. Hamdan.

Is Borat Bad for Lawyers?

Borat made more legal news this week, first as a court denied the request for an injunction by the two South Carolina fraternity brother plaintiffs. No great surprise there, given the waivers and the free speech defense. Meanwhile, earlier today, another South Carolina man sued over a scene that did not make the final cut of the film but was floating around the internet, and which I include here. The plaintiff claims that he was humiliated both by the original encounter and by the publicity it subsequently received. (He is not identifiable in the version I've posted, although for all I know, even this version may soon be scrubbed from Google Videos.) In following the lawsuits and the public reaction to them, I can't help but think that Borat is likely to reinforce negative views about plaintiffs, lawyers and our civil justice system. The overwhelming reaction of the public goes something like this: "Oh, come on. Lighten up. Borat didn't make you say or do anything that didn't come from you. And you signed the waiver." That may well be a sensible reaction with respect to the Borat suits--although whether or not it is would depend on the facts of each case--but it reinforces a generally negative stereotype of civil plaintiffs, who, many people think, should just tough it out like the rest of us. Interestingly, this corporate-defendant-friendly view is generally NOT the view of most Americans when they actually sit as jurors, but in thinking about the civil justice system in general terms, people tend not to be very sympathetic to plaintiffs and are especially unsympathetic to the plaintiffs' bar

Ignatieff vs. Canada: Implications for Law and Development Theory

One interesting by-product of Harvard Law Professor Michael Ignatieff failure in his bid to take over the federal Liberal Party of Canada (discussed by Cristie Ford here) is its implications for ‘law and development’ theory, and in particular Yves Dezalay and Bryant G. Garth book on The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago: University of Chicago Press), which details how the US has been so successful at exporting our distinctive neo-liberal model of economic and legal development – such as the ‘Washington consensus’ in the realm of economic development, and a detached and court-centric “rule of law” in the realm of legal development – to the developing world

Dezalay and Garth’s story is that American success in this area is due to a confluence of two factors. The first, and most obvious, is American political and economic power, and the social prestige that power brings. The second, and heretofore unrecognized factor, is the pronounced hierarchal social and political environments of the relevant American academic fields. This pronounced hierarchy caused the immense social prestige that derives from American power to focus on a very, very small collection of very elite academic departments. And insofar as these departments’ international programs are concerned, they tend to be dominated by the distinctly American neo-liberal perspective described above. Future political and intellectual and legal elites in Latin American and other developing countries attend these elite American departments in order to increase their own political and social prestige, and consequently they develop strong ties with these departments and their perspectives. When the future elites return home, they in effect become agents of these departments’ America neo-liberal viewpoints. (The paradigmatic example of this as explored by Dezalay and Garth is Vicente Fox, neo-liberalist President of Mexico who received a Diploma in Upper Management from the Harvard Business School in the 1980s.)

One aspect of this theory has is yet to be explored, but which I think is relevant, is the social-hierarchical nature of the recipient country. My impression is that like Mexico, most Latin American countries are also very hierarchically organized – socially, intellectually, and politically. I suspect that just as a sharp social hierarchy works to winnow the diversity of relevant viewpoints with regards to law and development projected by the relevant American academic environments, so to does it facilitate intellectual and policy ‘capture’ by a small group of American-trained elite within the recipient country.

This is where Ignatieff in Canada becomes an interesting test case. Dezalay and Garth identify the Harvard Law School as one of the principal elite exporters of the American vision of law and development. My impression is that Canada has a much flatter social, academic and intellectual environment than found in Mexico and the developing countries of Latin America and elsewhere. Ignatieff’s inability to take over the federal Liberal Party in Canada suggests that it may indeed be the case that the less socially stratified the intellectual, social and political environments of the recipient country, the more resistant that country will be to the kind of capture by American models of law and development described by Dezalay and Garth.

Victim Buttons and the Depths of Jurisprudence

Much of the frustration expressed by myself and others regarding Monday’s extremely terse Supreme Court opinion in Carey v. Musladin is rooted in the provision of the Anti-Terrorism and Effective Death Penalty Act that forbids a federal court from granting post-conviction habeas relief to a state prisoner unless the prisoner’s custody rests ultimately on a state court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” That means that a state prisoner cannot get federal habeas relief even if the state courts did make a constitutional error, so long as the error was not unreasonable, in light of Supreme Court precedents on the books at the time of the state court rulings. The provision, which is codified at 28 U.S.C. § 2254(d)(1), is meant to protect state courts that try in good faith to follow Supreme Court precedents but reasonably fail to anticipate rights-expanding decisions, by not requiring retrials under such circumstances (subject to a couple of narrow exceptions).

There is a large literature on the virtues and vices of this provision, but here I want to focus on a different feature of 2254(d)(1), its embrace of legal positivism. H.L.A. Hart famously wrote that where the law has an “open texture,” it confers discretion on judges and others who act in its name. 2254(d)(1) is one of several places in which the law recognizes its own open texture. Other examples include the qualified immunity of enforcement officers who violate the law but do not violate clearly established rights of which a reasonable officer would have been aware, and the case law interpreting Federal Rule of Civil Procedure 11, which forbids the filing of objectively frivolous claims, defenses and other papers, but which permits lawyers to be reasonably wrong on the law (and/or facts). These legal tests are easy enough for followers of Hart: where someone acts within the space of the law’s open texture, he or she does not need to predict exactly how a future court will resolve the legal ambiguity. But what can Ronald Dworkin and his followers make of such legal tests? Dworkin famously denied that open-textured legal rules confer discretion. He argued (and continues to argue) that even in the hard cases governed by such rules, there really are right (and thus also wrong) answers.

Dworkinians have two unpalatable options with respect to tests like those of 2254(d)(1), qualified immunity, and FRCP 11. First, they could say that these rules are in some sense wrong, or in the case of the statute and rule, at least wrongheaded. These rules mistakenly assume that judges have discretion in hard cases, the Dworkinian might say. The difficulty with this approach for the Dworkinian, however, is that the whole aim of Dworkin’s philosophy is to provide an interpretive account of law that makes it hang together as well as possible, and dismissing whole bodies of law as “wrong” or “wrongheaded” does not do very well by that standard.

The second option available to Dworkinians is to acknowledge that when the law appears open-textured, it’s not fair to hold states, enforcement officers and lawyers to an impossibly high standard in guessing how the ambiguity will be authoritatively resolved, but the fact that people disagree about the right answer in some case does not mean that there is no right answer. The problem with this approach is that it reduces Dworkin’s disagreement with Hart to a matter of semantics or metaphysics. What good is it for the very practical activity of law for us to know that there exist—somewhere beyond the stars?—really right answers to hard questions, if there is no reliable mechanism for us agreeing on what they are? Students of philosophy will hear in my critique of Dworkin an echo of the pragmatism of William James and Richard Rorty.

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Footnote: For an excellent academic treatment of the relation between jurisprudence and the judge-made precursor to 2254(d)(1), see Linda Meyer, “Nothing We Say Matters”: Teague and New Rules, 61 U. Chi. L. Rev. 423 (1994).

The Perils of Being a Senator

In Mike's post from Dec. 2, Is Barack Obama a Lightweight? (Yes, but in a good way), he argues persuasively that not being "weighed down by long tenure in the Senate" would be politically advantageous to potential presidential candidate Barack Obama. This argument hinges on the idea that having "an encumbering paper trail" in the Senate gives opponents too many votes to distort in attack advertisements. Another way that a long Senate career can hurt a presidential aspirant was demonstrated by the Republicans' attack on John Kerry in 2004 as not having "accomplished" anything in a long Senate career. For example, Rep. Henry Gonzalez went on "The Daily Show" during the campaign and challenged the audience to name one major accomplishment for which Kerry was responsible. When no one answered (from an audience that was given no opportunity to reply), Gonzalez's satisfied grin showed that he clearly felt that he had scored a huge point. This ignored Kerry's important leadership on POW-MIA issues, but why should the facts stand in the way of a good smear?

Of course, it's possible (even desirable) to have a long Senate career without having sponsored signature legislation. For my tastes, Howard Metzenbaum of Ohio was an extremely good Senator for many years. So far as I know, there's no Metzenbaum-Smith Act or any such thing on the books. But he was always on the side of an issue that I wanted him to take. Had he run for president, though, we would have had a hard time saying what he had "accomplished." The Senate is simply not a place where one can run up a list of accomplishments for which one can take major credit, in part because everyone is so jealous of each other that they all get their fingers in each other's pies.

Interestingly, this logic could end up being applied to current Republican front-runner Sen. John McCain. Other than McCain-Feingold, for which the Right vilifies him (and which some on the left view as a mixed blessing, at best), what has he accomplished? "Being extremely conservative while becoming known as a centrist" is entirely a different kind of accomplishment.

Will Hevesi's Confession Bring Him Absolution?

We have ourselves a bit of a situation here in the Empire State. In November, we elected Alan Hevesi as state comptroller, despite the fact that he had admitted to using a state employee to drive his wife to and from doctor’s appointments. Apparently, he was supposed to reimburse the state for any work by this employee that was not security-related, but did not do so -- until some time over the summer, when his opponent in the election made Hevesi’s actions public and accused him of breaching the public’s trust. According to an article in this week’s New York Magazine, Hevesi has since repaid over $80,000 for the employee’s time (covering a period of three years), and may be required to reimburse as much as $200,000 more.

In what was left of the election campaign by the time the story became public, Hevesi’s strategy became one of aggressive admission. He launched an ad campaign in which he confessed his missteps, apologized, and asked for the voters’ forgiveness. Perhaps it worked; in all events, the voters reelected him by a seven-point margin, although reportedly 92% had heard about the scandal. But perhaps at least some portion voted for him with some expectation that he could very well be removed or forced to resign. Such a vote would have been not so much a vote for Hevesi, but rather an expression of a view that whomever Eliot Spitzer (whom everyone expected to with the governorship quite handily) would nominate to replace Hevesi would be more appealing than Hevesi’s opponent.

Now, however, several news sources (most of which refer back to the same report in this week’s New York Magazine) are citing an article that State Senator Michael Balboni co-authored for the Fordham Urban Law Journal in 1987, which reportedly concludes that if the public has received full disclosure of a politician’s misconduct before an election and elects him or her anyway, the election works as an “exoneration” and the politician cannot be impeached or removed based on that misconduct. According to these reports, Hevesi could use this argument to resist attempts to remove him, perhaps even suing in court to block impeachment proceedings.

Senator Balboni’s article predates the coverage of the Fordham Urban Law Journal on Lexis and Westlaw, and I have been unable to find a single document that cites it prior to the recent articles about Hevesi. But if it turns out that Hevesi’s pre-election confession was complete -- that is, if his transgressions went no farther than what he publicly admitted in advance of the election -- then Balboni’s argument undoubtedly raises a difficult issue. It does seem inherently undemocratic to remove someone duly elected by the people based on alleged wrongs that the people fully knew about when they elected him. On the other hand, what precisely did the people “know”? Did their knowledge include, for example, the fact that it was widely believed that if Spitzer was elected governor (as he was, by a margin of victory greater than Hevesi’s), he would seek Hevesi’s removal or impeachment? If Hevesi is indicted (as he reportedly may be), will that constitute an additional “fact” that the voters cannot be said to have agreed to accept?

As big a fan as I am of courts, it is not at all clear to me that they are suited to resolve these kinds of questions. Rather, I strongly suspect that if the matter goes that far these issues will have to be decided by the state legislature, in the context of an impeachment proceeding. Hopefully, the members of that body will be able to find a way to deciper what we, their constituents, were actually thinking.

Actionable Injury

I have to admit, Mike’s posts awhile back, a few other blogs, and some listserve chatter I’ve read lately have me dwelling on the oral argument in Massachusetts v. EPA. I keep coming back to the notion of an “injury in fact” as if this is supposed to be distinct from an “injury in law.” I admit I don’t think it makes much sense at all, unless it stands for something very different from judicial self-restraint.

The “Hohfeldian” plaintiff is usually welcome in federal court as someone with an intuitive gripe, someone whose motives can’t but be personal, pecuniary, and, thus, well, pure. They seek only to redress the wrongs done to them, wrongs with a definite cash value or easily imaginable injunction, easily pled and used to motivate a bipolar litigation. Ever since Lujan v. Defenders of Wildlife (1992), the concept of injury in fact has become the chief mechanism of excluding everyone else. It is a notion that, when convenient, becomes loosely federated with the “separation of powers,” supposedly as a way to keep “cases” and “controversies” tied to litigants with pure motives. Other plaintiffs, the ones who might also “seek” a remedy from the “Executive branch” through better or different administration of the law, are not as welcome—at least most of the time. But where in the Constitution does it say that the "judicial Power" is locked into what it was in 1789?

The real target of this case law is Congress’s ambition that wrongs to the public at large be judicially redressable. Recall that Lujan v. Defenders involved plaintiffs well within the class of persons Congress meant to empower to challenge the Interior Secretary’s administration of the Endangered Species Act. Recall also that the Administrative Procedure Act, 5 U.S.C. § 702, empowers persons “suffering legal wrong because of agency action.” In all of the cases where the Rehnquist (and now perhaps the Roberts’) Court denies standing to non-Hohfeldian plaintiffs, the “injury” in question is usually very clear--and it is usually environmental in nature. It is no less clear than the injury to an atheist stemming from the public display of a crèche this time of year. Judicial refusals to acknowledge these injuries or efforts to erect new proof burdens that are practically impossible to overcome are an abusive refusal to judge and to vindicate the legal interests Congress creates when it legislates.

Granted, it is not always just about the extension of the rule of law when Congress legislates causes of action into existence. But the selectivity with which the modern Court has received Congress’s efforts is arresting when surveyed. In any event, I invite readers in the DC area to a panel discussion I’ll be moderating tomorrow at the Environmental Law Institute on L Street at noon, here.

RSVP'ing to The Iranian Holocaust Conference: To Attend, or Send Regrets

The New York Times today reports on a conference being hosted by the Iranian Foreign Ministry titled "Review of the Holocaust: Global Vision." The conference is the brainchild of the president of Iran, Mahmoud Ahmadinejad, whose own views on the Holocaust have been widely reported. Speakers at the conference include such notorious deniers of the Holocaust as David Duke and Robert Faurisson, although the Times report suggests that the conference organizers provided enough contrary information to offer at least a window-dressing version of diversity of viewpoint (if one can even speak of diversity of viewpoint concerning the historical existence of the Holocaust). Let me make a couple of observations about this conference; it may be giving undue attention to what is undoubtedly a parliament of knaves, but so be it.

The first is to note that part of the ammunition for such a conference stems from European and Canadian laws restricting or criminalizing the denial of the Holocaust altogether. Thus, some of the conference participants from Western nations effectively described the very existence of such a conference as liberating, noting that, for instance, "We are forbidden to have such a conference in Germany." Of course, these speakers could have pointed to these laws for purely opportunistic reasons. Nevertheless, as a matter of optics, it might be said that this is a conference underwritten not only by the Iranian Foreign Ministry, but also by the existence of laws in otherwise openly speech-loving and epistemically agnostic societies that criminalize the very fact of Holocaust denial. among other forms of dangerous speech. Of course, notwithstanding the efforts of the conference organizers to equate "Western taboos [concerning the Holocaust] and the restriction imposed on them in Europe," any pressures against Holocaust denial in the United States come solely from social forces, and not from any legal restrictions. By avoiding any legal penalty for stating such wrongheaded ideas, American law both permits such ideas to circulate and strips from their adherents the dignity of martyrdom. They are protected, but they are also at the mercy of the marketplace and likely (one hopes) to be generally ignored as a lunatic fringe. If David Duke were a German, he would be an insurgent and a champion of free speech; here, he is reduced to his natural state -- laughingstock. I'm glad he has to travel to Teheran to get any attention.

One might ask a separate question, though: What would be the proper response to such a conference for someone who writes and speaks in the area of Holocaust studies -- who, in other words, quite rightly understands the Holocaust as a historical event? Is it better to ignore such a conference altogether, or would it be more beneficial to take advantage of the conference's pretense of fair-mindedness and show up to refute the denialists? I can't definitively answer such a question, and there is much to be said, of course, for ignoring the conference altogether, so as to avoid giving the appearance of controversy to what ought to be uncontroverted. But so, too, there would be something to be said for appearing: for showing up long enough to squarely address and definitively refute the claims made by denialists -- not for the sake of the conference audience, but for the sake of the world at large, and also out of a sense of defiance, a will to demonstrate that the truth just is, and demands to be heard anywhere and everywhere. Such issues of course also arise when considering debates on intelligent design, race, and a variety of other issues. But they are certainly raised in a particularly striking fashion in this case.

Victim Buttons in the Courtroom

The Supreme Court’s decision today in Carey v. Musladin is potentially troubling. During Musladin's state criminal trial, relatives of the victim wore buttons bearing the victim’s picture on them in the courtroom. The trial judge denied Musladin’s motion to require the buttons to be removed on the ground that they would not prejudice the trial. Musladin was convicted and his conviction was affirmed on appeal, but the 9^th Circuit, reversing a district court ruling, ordered relief on habeas. The Supreme Court reversed.

Justice Thomas wrote for the majority. Applying the prohibition on the application of “new rules” in habeas cases contained in the Anti-Terrorism and Effective Death Penalty Act, the majority found inapplicable two earlier cases. In Estelle v. Williams, the Court found a constitutional violation in the state requiring the defendant to be tried wearing prison clothes. In Holbrook v. Flynn, by contrast, the Court found that the presence in the courtroom of uniformed state troopers was not so inherently prejudicial as to deny the defendant a fair trial. Neither of these cases, Justice Thomas said, involved the conduct of private parties, and so the extension of their standard to such parties would be a new rule.

That is either arguably right or obviously absurd. If Justice Thomas means to say that Williams and Flynn don’t require the exact same standard for judging the prejudicial effect of courtroom spectators as for the effect of state actors, perhaps he’s right. Among other thins, as Justice Souter points out in a concurrence in the judgment, the spectators have some free speech rights that the state lacks. But if Justice Thomas and the majority mean to say that there is no clear rule forbidding any private displays in criminal trials, this is absurd. As both Justice Kennedy and Justice Souter point out in separate concurrences in the judgment, a long line of cases forbids the trial of a defendant in a courtroom pervaded by an atmosphere of coercion or intimidation, even where—indeed especially where—the fear of mob violence or its equivalence comes from general public. Unfortunately, the terse majority opinion does not make clear that it only adopts the former, narrow approach, rather than the latter, preposterous one.

Penguin Update

Having now viewed Happy Feet in its entirety, I must say that I’m surprised that its conservative critics have focused on the environmental message, which concerns overfishing and not global warming. My main impression of the film’s “message” was that here we have a rare children’s film that actually challenges religious authority. The religious leader of Emperor Land (who also seems to be its political leader, as penguins apparently live under a theocracy) insists that the decline in fish stocks is due to the wrath of the Great Guin, who is unhappy at the dancing of Mumble, the main character. In the end, Mumble’s search for a rational explanation exposes the folly of those who put their faith in the Great Guin. I’m not saying that religious conservatives (or religious liberals or religious folks of any political stripe) would be justified in taking issue with the anti-religious message of Happy Feet, given that the typical children's movie is either silent on religious questions or vaguely monotheistic. But it surprises me that this has not been the principal line of attack.

Thus ends my brief career as a film critic. I shall return shortly to addressing issues related to law.

Wesley Snipes and the Perils of Relying on Counsel

According to an AP wire story, Actor Wesley Snipes plans to blame his lawyers for his alleged tax misdeeds, such as failing to file returns from 1999 to 2004. Snipes was represented by American Rights Litigators, a well-known tax protester firm that has argued, among other things, that no one needs to pay taxes because the IRS wasn't really created by Congress. (It was.) It's not difficult to find this sort of thing on the web. I leave to the interested reader the exercise of finding the most insane tax protester website.

The Snipes case raises the question of when a client's reliance on the advice of counsel vitiates criminal responsibility. In some instances, the law spells out the answer. For example, the Military Commissions Act of 2006 makes reliance on opinion letters from the likes of the Office of Legal Counsel under Jay Bybee and John Yoo a relevant factor in assessing culpability for acts of inhumane treatment occurring during the period that their "torture memo" was circulating. (Lovely.) Other laws explicitly make reliance on counsel a non-defense. Sarbanes-Oxley, for example, makes CEOs and CFOs take the heat, even if they relied on counsel.

But what about circumstances in which the law in question is silent? Certainly there are easy cases. Suppose my lawyer says that contrary to conventional wisdom, stealing isn't really a crime, and in reliance on this advice, I take my neighbor's car. Too bad. I'm clearly guilty. At the other extreme, suppose that I rely on my lawyer's advice in some incredibly complex transaction and am prosecuted for fraud. Because fraud typically requires a specific mental state, namely an intent to defraud, I would likely not be guilty. Tax cases can be tricky because a conviction requires specific intent, and we can imagine an extraordinarily naive client saying that, based on the advice of counsel, he really believed he didn't owe any taxes. But it's hard to imagine this working for Mr. Snipes or others who sought out tax protester firms.

Of Penguins, Politics & Propaganda

It appears that various conservative news analysts are miffed at the children's film Happy Feet for failing to disclose to parents that it contains a message about the harmful effects of human activity on penguin habitat in Antarctica. "An animated version of An Inconvenient Truth" is how at least two such analysts described the film. Contained within this preposterous complaint is an actual interesting legal question about regluation of speech.

The particular complaint is preposterous, of course, because Happy Feet is no more (or less) a message movie than standard children's fare. Pocahontas (noble savage), Finding Nemo (persevere for family), Shrek & Shrek 2 (it's inner beauty that counts), and the Lion King (lions good, hyenas bad) (okay, maybe not the Lion King), contain messages. Indeed, even the penguin flick much beloved of the right, March of the Penguins, was political in its failure to address global warming as a threat to the penguin way of life. To be sure, I haven't yet seen Happy Feet. I'll have the pleasure of accompanying my eager daughters to view it tomorrow, and if it turns out that the film is appreciably more political (a kind of Fahrenheit -11, if you will), I'll recant afterwards. Don't hold your breath.

Meanwhile, the interesting legal issue is when, if ever, the government can require labeling of speech on truth-in-advertising grounds. In the 1987 case of Meese v. Keene, the Supreme Court upheld a federal law classifying as "political propaganda" material produced by foreign governments. The case was decided by a 5-3 margin, with Justice Stevens, then not yet a reliable liberal, writing for the majority, and I regard the decision as highly problematic. But even if one thinks, as I do, that Meese v. Keene was wrongly decided and that any government effort to label Happy Feet as political propaganda would violate the First Amendment, there are stronger cases for requiring disclosures. The FTC regularly and appropriately regulates the content of speech known as advertising, for example. Arguably, an intermediate case may be presented by Kevin Trudeau's run-ins with the FTC. Trudeau is the author of a book of "Natural Cures 'They' Don't Want You to Know About," to which the FTC objected on the grounds that his "cures" were in fact, well, not cures at all. What makes Trudeau's case a bit tricky is that it involves the double regulation of speech: Not only is the FTC going after what Trudeau says to sell his product, but the product itself, a book, is speech.

The Insider's Outsider

This past weekend, Harvard Professor Michael Ignatieff failed in his bid to become the next leader of the federal Liberal Party of Canada. The Liberal Party is sometimes referred to as Canada’s “natural governing party,” and according to wikipedia, every federal Liberal Party leader since 1896 has gone on to serve as Prime Minister. (Stephane Dion, the party’s new leader, may run against current Prime Minister Stephen Harper in a general election as early as spring 2007.) Mr. Ignatieff’s leadership run, and its failure, say a good deal about Canadians’ ambivalent sentiments toward their prodigal sons and daughters who try to return home after success abroad. It also says a good deal about the “in-group” culture of Canadian politics, and the Liberal Party in particular – something that Mr. Ignatieff knows about, has written about, and ought to have been wary of.

Every country has its democratic foibles – think of electoral boundary gerrymandering in the United States, for example – but one of Canada’s greatest ones is a certain tradition of “backroom” governance, within which elite groups cut deals with each other, on very important issues, without public input. The Liberal Party, naturally, knows all about this kind of operation. According to the Canadian media, Mr. Ignatieff was essentially hand-picked for the leadership run by a small group of Liberal Party powerbrokers, at a dinner party in North Toronto in 2004. (Here's the standard story.) The not-unreasonable idea behind Mr. Ignatieff's run was that his intellectual heft, international profile, and photogenic good looks could recapture some of the spark the Liberals knew under Pierre Elliott Trudeau. From the beginning, though, his campaign was marred by hubris and inexperience. Most obviously, there were the inexplicable gaffes surrounding Israel’s bombing of Qana, Lebanon last summer. (First, Mr. Ignatieff stated that he was “not losing sleep” over the civilian deaths. A few months later, in an interview on French-language Radio Canada, to an audience sometimes thought to be more anti-Israel than the rest of the country, he did an about-face and labeled the bombings “war crimes.” Specifically, what he said was “I was a professor of human rights and I am also a professor of the laws of war, and what happened in Qana was a war crime and I should have said that.”)

Ultimately, though, what killed Mr. Ignatieff’s leadership bid was that none of the other leadership candidates threw their support his way at the Liberal Leadership Convention, as successive rounds of voting winnowed the candidates down. They did not do so, in large part, because of the impression that Mr. Ignatieff had been parachuted into a star leadership role by a group of Liberal Party insiders behind closed doors. Mr. Ignatieff’s leadership run triggered Canadian frustration at the persistence and seeming impenetrability of the country’s “insider” political power structure – and few convention delegates who were not actually at the famous dinner party in North Toronto wanted anything to do with the candidate those diners chose.

The irony is that Mr. Ignatieff wrote a book in 2000 called The Rights Revolution, which discussed the ways in which Canadian “executive federalism” had broken down in the 1990s in the face of more and more persistent demands for democratic inclusion by a broader range of interests. (This is my review of his book.) Speaking of national unity, Mr. Ignatieff colorfully suggested that the “high priests of federalism,” who for 125 years had “interpret[ed] the sacred texts and wave[d] the incense of rhetoric in the direction of the congregation,” had completely lost control of the “rituals of unity” by the time of the 1995 Quebec Referendum. Mr. Ignatieff should have realized, too, that the high priests of the natural governing party of Canada could no longer count on the obeisance of its members. They could, perhaps, even count on their rage.

The etymology of “bong hits 4 jesus”

Derek commented on my last post that, contrary to Ken Starr’s assertion, it’s not entirely obvious that “bong hits 4 jesus” is a pro-drug statement, noting that “Jews for Jesus doesn’t seem to be a blatantly pro-Jewish message.” This in turn got me wondering about the phrase’s origin. If you Google “bong hits 4 Jesus,” nearly every entry that comes up refers to the case, and many of these stories assume that the plaintiff, Joseph Frederick, came up with this motto. But some further sleuthing definitively shows this not to be true.

I found a website that sells “Bong hits 4 Jesus!” bumper stickers which include not only the phrase but also a picture of, what else, Jesus taking a bong hit. Did the people at the website got the idea from the Juneau case? Possibly, but if so, Frederick and his fellow free speakers in turn got it from someone else. I found a story on each of two consecutive days in two different Florida newspapers describing a VW van at a Grateful Dead concert that was festooned with, among other things, a Bong Hits for Jesus bumper sticker. The stories date from April 1994. So we can be certain that Joseph Frederick did not invent “bong hits 4 jesus.”

Note, though, that the placement of the sticker on a VW van at a Grateful Dead concert is about as clear proof as one could require in this life for the proposition that Bong Hits 4 Jesus is a PRO-drug statement. And no, Ken Starr, if you use that fact in your merits brief or in the oral argument, you don’t need to credit me for the research. Knowledge is its own reward.

Bong Hits 4 Jesus

My main hesitation in starting "Dorf on Law" was the question of whether I could find something to say every day. I shouldn't have worried. America is a wondrous country, in which each morning promises some legal question weirder than anything a law professor could dream up for a final exam. Today did not disappoint, as the Supreme Court granted review in a student speech case, Morse v. Frederick. (Read the 9th Circuit opinion here and read the cert petition here.) An Alaska high school suspended a student for 10 days for his refusal to stop displaying a banner that said "Bong Hits 4 Jesus," during a public gathering to watch the Olympic torch go by. The event took place on a school day, and the school had released students to attend the procession, so the school argued that Frederick's speech was within the purview of its regulation. Interestingly, the 9th Circuit agreed but ruled against the school anyway. Citing Tinker, the court found no serious risk of disruption of the school's educational mission.

There will be time, no doubt, for serious discussion of the important First Amendment questions the case raises. But for now, I just want to say thank you. Thank you to young Mr. Frederick for his decision to exercise his free speech rights in this most eloquent way. Thank you to the principal and school board for having the good sense not to ignore the banner and thereby make the issue go away in a few minutes. Thank you to Ken Starr, you who are so concerned about the use of coarse or offensive language in public settings, for taking this case on behalf of the school board to the Supreme Court. And of course, a giant thank you to the Justices of the Supreme Court, who, when criticized for their shrinking docket, made sure to take a case that is sure to provide countless hours of entertainment to everyone. Thank you all!

More Scalian Slips

Mike's discussion about Scalia's "Freudian slip" re the 14th Amendment reminds me of a similar phenomenon one sometimes sees in Scalia's approach to statutory interpretation -- or, to be more precise, in Scalia's statements during oral argument in statutory cases. Consider the oral argument in Nevada v. Hibbs, the 2003 case involving a constitutional challenge to certain aspects of the Family and Medical Leave Act (FMLA). Among other things, the FMLA requires essentially all employers to grant all employees 12 weeks of family leave, and it enables employees to enforce this provision in actions for both equitable relief and money damages. Given the Court's sovereign immunity doctrine, the money damages provision is only valid against state employers if that part of the FMLA is a valid exercise of Congress's legislative authority under Section 5 of the 14th Amendment. The Hibbs Court upheld the FMLA on precisely that ground, and in doing so it stressed the ways in which the FMLA promotes gender equality and fights gender discrimination. In other words, the Court held that the FMLA is not simply a workplace benefits program enacted in the interests of interstate commerce.

Predictably, Justice Scalia dissented. For present purposes I'm less interested in what he said in his dissent than in what he said during oral argument. Inclined to view the FMLA as illegitimate Section 5 legislation, Justice Scalia told counsel for the federal government that he knew, from his own memory, what the FMLA was all about:

.... I was around at the time [the FMLA was enacted], and I remember the big -- the big discussion was whether there ought to be a Federal law that requires all employers, not States in particular, but all employers to give all workers 12 weeks of family leave if they wanted it. That was what all the discussion was. I didn't hear any discussion at the time of sex discrimination, and you present it to us as though this was the motivating factor of the legislation. I find that hard to believe.

Viet Dinh, who argued the case for the government, had a great answer: Although an earlier, unenacted precursor to the FMLA did not say anything about discrimination or equal protection, the bill that ultimately became the FMLA did stress a concern for equality. Indeed, the statement of statutory purpose explicitly says that one of the FMLA's purposes was "to promote the goal of equal employment opportunity for women and men."

My point here is not simply that Justice Scalia was wrong about the motivations underlying the FMLA, but that his own preconceptions led him to overlook even explicit statutory text that contradicted his purported memory of the statute's purpose. This is a nice example, then, of how a commitment to textualism in statutory interpretation does not necessarily solve the problems often attributed to purposivism and reliance on legislative history. If the problem with using legislative history is that it's like looking across a crowd and picking out your friends, the problem with textualism is that it does not necessarily stop a judge from ignoring his enemies even when they are standing right in front of him. Indeed, one might even go so far as to say that it's cases like this where recourse to legislative history could be especially useful, since it could tell the judge what Congress was actually debating and trying to address with a piece of legislation so that he is not left to rely on what he thinks he "remembers" from "being around at the time."

There you go again (Justices Scalia and Breyer)

As I noted this morning, Justices Breyer and Scalia had a discussion about how they view their role, available as streaming video here. Here's my report of the Breyer/Scalia colloquy: I've now watched and listened, and must confess that I didn't learn very much (although I especially enjoyed Justice Scalia's comment that he doesn't expect his dissents to convince his colleagues, but he hopes that they'll persuade future generations, who will read them in the casebooks).

While they talked a little bit about statutory interpretation, the heart of the conversation concerned constitutional interpretation, with Breyer defending a pragmatic/purposive/dynamic approach, and Scalia defending originalism. Scalia did a better job of defending his position, mostly because Breyer mostly let him get away with it (except for Breyer's invocation of Brown v. Bd in response to a question). Scalia's basic position (which he has expounded many times before) is that while the original understanding does not resolve all questions, it does resolve many of our most contentious questions: So, he says, that no one who voted for the Bill of Rights or Fourteenth Amendment thought that Due Process or Equal Protection forbade the states from forbidding abortion, assisted suicide, sodomy, or same-sex marriage. Fair enough, but the obvious and unasked follow-up question is the one Thomas Healy asked a couple of days ago: Did anybody who voted for the Fourteenth Amendment (or, for goodness sake!) the Fifth Amendment, think it prohibited states and localities from using race as a factor in promoting racial integration? Or that it forbade affirmative action? Why do you ignore original understanding on this question (or on the First Amendment, for that matter)?

Tellingly, on the rare occasions when Justice Scalia has been asked this question, he has answered with a kind of Freudian slip. The Fourteenth Amendment's Equal Protection Clause, he says (and here I'm quoting from memory of at least two of his speeches) is an "explicit" prohibition on race discrimination. This is of course false. The Equal Protection Clause doesn't mention race or any other specific criterion. I call this a Freudian slip because I think it shows that the dangers that Scalia attributes to Breyer's reliance on purpose and consequences also lurks in his origjnalist/textualist approach: One will tend to see one's preferences even in a text that clearly does not contain them.

One further and unrelated thought: In response to a question that had nothing to do with his answer, Justice Breyer said that the Justices get along with one another very well, a point he has been making in public for at least the last 6 years (since Bush v. Gore). The frequency with which he has publicly made this point strikes me as bizarre. Either it means that maybe the Justices don't get along well at all (he doth protest too much), which I doubt, because I don't think Justice Breyer is a liar. Or it means that Justice Breyer thinks the public thinks the Justices don't get along, and he wants to reassure us all. But why would he think this? And even if the public thinks that the relations among Justices are sometimes testy, so what? Why is this misimpression, among all the misimpressions that people have about the Court, one that it's important to correct.

Scalia & Breyer discuss their work

In a discussion jointly hosted by the American Constitution Society and the Federalist Society, Justices Breyer and Scalia talked about the similarities and differences between their approaches to their jobs. You can see the audiovideo stream here. I'll post my reaction later today (after I've seen it myself). Meanwhile, a snarky observation: Perhaps there is a relation between the Court's shrinking docket (see today's front page story in the NY Times) and the free time they have available for this sort of gig.

More on Integration and the Honesty of Debate

An article entitled “Dividing Lines: Why Book Industry Sees the World Split Still by Race”, which appears on the front page of today’s Wall Street Journal, dovetails with some of the previous posts concerning integration in a way that may be of some interest. The article notes that, in many book stores (Barnes and Noble being a notable exception), novels that are written by African-American authors and/or feature African-American characters are shelved in a separate “African-American” section, rather than in the general fiction section. In the main, the article discusses the pros and cons of this approach from the standpoint of the authors, many of whom -- at least as represented in this particular piece -- view it as a positive thing. The claim is that displaying these works in a way that makes them easily found by audiences who are specifically looking African-American fiction helps their sales. The article adds that many “[m]erchants and publishers say such sections also brighten the chances for new, undiscovered writers.” Others, however, see this practice as a two-edged sword, noting that although it may help launch an author to a certain point, it is not likely to enable him or her to compete with the most successful authors of the day, whose audiences may not frequent the African-American section of the book store.

As I was getting toward the middle of this somewhat-lengthy (by WSJ standards) article, I finally came upon the paragraph I suspected was lurking in there somewhere -- the one that discusses a lawsuit that has been filed to challenge this practice. The article reports that Pearson PLC’s Penguin Group has been sued by author Nadine Aldred, who writes as Millenia Black. Ms. Aldred reportedly alleges that the publisher asked her (among other things) to change certain characters in a recently-published novel from white to black or “race-neutral,” in order to make the novel more appealing to African-American readers. The article indicates that these requests were not ultimately implemented, but that the lawsuit proceeded anyway. I have not been able to lay hands on a copy of the complaint, but the article reports in general that Ms. Aldred claims that the publisher’s policies are racially discriminatory.

I would venture to say that in plain terms they probably are; books are being expressly categorized by race. The question of whether this kind of sorting results in any kind of discrimination against people (rather than books) is something about which volumes could undoubtedly be written by people who are much smarter than I am. Indeed, some might argue that this kind of sorting is essential to provide appropriate service to certain audiences -- which the publishers, booksellers and authors apparently assume are largely African-American -- and is therefore necessary to ensure equal treatment of all customers. (I must say this sounds vaguely familiar). And some might argue that the compromise should be to display the books in question both in an African-American section and in the general fiction section, just as many other types of books are presumably double-referenced in such a manner, until the point when there are so many of them that this becomes truly impracticable -- at which point, the argument would go, neither the books nor their audiences “need” a separate section anymore. (Also a little familiar). In all events, with respect to books and their presumed audiences it seems that we do still know how to debate honestly the question of whether and under what circumstances race should be taken into account in order to achieve a desirable social purpose. Of course, with respect to books the debate is over whether to consider race in order to maintain a species of “segregation,” whereas with respect to schools the purpose of considering race is to achieve integration. Is that the difference?

NYC Bd of Health Abandons Plan to Let People Define their own Sex

A page B1 story in (the NYC version of) today's NY Times reports that the NYC Bd of Health dropped a plan that would have permitted individuals to designate their own sex, regardless of anatomical and biological considerations. The article is notable in part for its bizarre use of the words "sex" and "gender" interchangeably. Sex is a biological category; gender is a social category. Some queer theorists argue that even sex is socially constructed, and there is something to that claim, but in most cases it's easy enough to distinguish the two. To be sure, there are intermediate cases with respect to "sex." E.g., the protagonist in the Jeffrey Eugenides novel Middlesex, whose recessed penis was mistaken for a large clitoris at birth, and was thus raised as a girl even though he was in other respects male; or androgen-insensitive males, who appear outwardly to be female but are chromosomally XY and thus lack female reproductive capacities; XXY's; XYY's; etc. But I understand the point of the proposed change as meant to address the circumstances of people whose genetic sex matches their phenotypical sex, yet who identify as the opposite sex: pre-op transsexuals, for example (regardless of whether the individual actually intends to have surgery).

The Times article cites a number of concerns that led to abandonment of the plan. For example, if a biological male self-identifies as female, does that person get a (conventional) female roommate in a hospital? If such a person is arrested for or convicted of a crime, is "she" (quotations used not pejoratively but simply to note the poverty of our language) housed with male or female inmates? The problems that arise tend to concern two principal issues: privacy and security. And they tend to trade off the security of transgendered persons (who are often at risk of assault from queerophobes) against the security and privacy of women (who may be at risk from the predatorial men that would take advantage of a rule that de facto integrates facilities like public restrooms to commit acts of sexual assault.

In a deeper sense, however, we should probably understand these tradeoffs as costs we bear simply in virtue of the continued sexism of our society. Aggressive feelings towards transgendered persons (and gays and lesbians) undoubtedly are rooted in normative views about the "proper" roles of men and women. Meanwhile, women's special concern about privacy/modesty are themselves a product of a kind of sexism. (I say "special" concern in recognition of the fact that men too are socialized to feel uncomfortable being exposed in front of members of the opposite sex--but substantially less so, I suspect.) And it's hard to believe that the vulnerability of women to assault by men is simply a matter of the on-average greater physical strength of men relative to women. Outside of prison, where they are, tellingly, coded as female, slight men do not generally face the same risks as women.

Of course, to recognize that this set of issues (one of which I wrote about in an April 2005 FindLaw column) pits claims of sex/gender justice against each other, is not to say that there is an easy solution in the short run. In the long run, at least on the sexual modesty side, the U.S. might eventually move in the direction of most of western Europe, in which integrated changing facilities, nude beaches, etc., are much more common than in the United States. The greater religiosity of the U.S. population may make that unlikely, though, and if anything, we might expect that Europe will move in the direction of the U.S., in light of its growing religious Muslim population.

A strong argument for dishonesty in race matters

There is also strong argument for dishonesty in race matters. It is an argument that one see not infrequently in labor history -- I myself recall first seeing it in the work of U. of Texas Law Prof. William Forbath. This argument says that our present-day conceptualization of racial issues are to some extent themselves the product of a certain innate, historical dishonesty.

In the late 19th century, America’s rapid industrialization created ‘class conflicts’ very much like it did in Europe. But in America, there was a great fear, particularly with the political establishment, of the emergence of class-based politics in American society. This fear was manifested in two ways. First, people – and particularly politicians – simply did not talk class or raise class-based political arguments, and so the actual dynamics of emerging class distinctions did not enter American political consciousness. At the same time, the argument goes, industrial interests started exploiting white working class animus against and economic fear of blacks, as a means of deflecting workers’ attentions away from development of a distinct political self-identity. (An alternative argument is that since the white working-class populated could not conceptualize itself as a class, it tended to perceive blacks rather than management practices as the principal threat to its security and well-being.)

So, the argument goes, much of our history of race politics is really a history of supressed class politics. If this is the case, then a significant aspect of race discourse is innately dishonest, and paradoxically, this means that in order to really understand the complexity of the problem, we too have to speak of it dishonestly (or, I would prefer the Habermasian characterization of ‘strategically’). Because that’s the only way that we can the conversation to the class-based dymanics that comprise an important aspect of this problem.

Please note that I am not arguing that race is nothing but (economic) class by a different name. I do believe that there are some critical aspects of race relations and race politics that cannot be captured by economic, class-based analyses. But I also suspect that at the end of the day, we cannot adequately understand or address this issue without addressing its parallel status as a surrogate for class-based politics.

What Would Bork Do?

Given that oral argument in the integration cases seems to have focused on Brown v. Board of Education, here’s an interesting question: how would a committed originalist decide these cases?

According to the originalist account, the 14th Amendment was not intended to prohibit racial segregation in public schools. Originalists point out that the Reconstruction Congress permitted segregation in the D.C. public schools, that the spectators in the gallery listening to Senate debate on the 14th Amendment were separated by race, and that the sponsors of the Civil Rights Act of 1866 – which served as the model for the 14th Amendment – disclaimed any intent to interfere with segregated education. Therefore, originalists argue, mandated racial segregation in the public schools is permissible under the 14th Amendment. If this is true, doesn’t it follow logically that mandated racial integration is also permissible under the 14th Amendment?

Many originalists have accepted Brown out of respect for stare decisis. But stare decisis only requires an acceptance of Brown itself; it does not require that Brown be extended. Striking down the school integration plans in Seattle and Louisville would seem to extend Brown beyond its holding, which was limited to school segregation. So shouldn’t a committed originalist vote to uphold the Seattle and Louisville plans? Maybe that explains why Justice Thomas didn’t ask any questions yesterday: as the Court’s most devoted originalist, he had already decided to uphold the plans!

Roberts and the problematic legacy of Brown

Sherry Colb’s discussion of the Integration Cases and Robert’s use of Brown provides opportunity for me to throw out one of the things that I’ve been exploring recently: which is how the common law doctrine of precedent distorts our understanding of constitutional history, and the lessons we might draw from that history (an idea first articulated by Frederic Maitland in his inaugural lecture as professor of English legal history at Cambridge in 1880) (no, I wasn’t there).

The common law doctrine of precedent effectively requires us to conflate constitutional development with formal judicial decisionmaking. And, I believe, this prevents us from learning as much as we can from our constitutional history, and its true constitutional meaning. To my mind, one of the paradigmatic examples of how the common law’s use of precedent can prevent effective constitutional understanding is Brown. Brown is, it doesn’t need to be said, a iconic case. It is the case, we are told, that transformed the constitution by wiping out the separate-but-equal doctrine, and replacing it with a new, post-apartheid constitutional order in the form of the anti-discrimination principle.

The problem is, this isn’t true. The separate-but-equal doctrine was already largely discredited, juridically and socially (at least in the North), by the time Brown was issued. Brown expressly did not overturn Plessy, and it certainly did not articulate a successor constitutional test. Perhaps most problematic, Brown and its succeeding line of cases had no actual impact on American segregation. In fact, American society actually became increasingly more segregated after Brown was decided

The growing segregation of American society would not reverse until Congress passed the Civil Rights Act of 1964. In this sense, it was the Civil Rights Act of 1964 that really overturned Plessy. And, I would argue we should therefore be looking first-and-foremost to that Act, not than Brown, in our continuing efforts to conceptualize, construct, or even just celebrate our still very-much-up-in-the-air, post-Plessy constitutional order. Certainly, at the very least, the 1964 Act provides a much more robust description of what that order might look like than anything found in Brown.

But we can’t do that, because the doctrine of precedents causes the common-law mind to look more or less exclusively at judicial decisions for defining constitutional doctrine, and thus for defining changes in the constitutional order (a point I also made earlier in critiquing Ackerman’s particular notion of constitutional moments). The real reason we worship Brown, I suspect, is because Brown is the last, full judicial opinion on the constitutional meaning of race to issue prior to the flowering of the civil rights movement. This causes us to attribute the civil rights movement, and it transformative vision of race, to Brown, when in fact, Brown was – I would at least be willing to propose – really epi-phenomenal to this movement. In short, the reason why Robert’s vision of both Brown and the lessons of constitutional history are so simplistic is that this is precisely the view of constitutional and legal development that the common law foists upon us.

The (weak) argument for dishonesty in race matters

I don’t disagree with the points made by Sherry, Trevor and Justices Ginsburg and Souter, but I do want to suggest (in an almost-but-not-quite-Swiftian vein) that sometimes there is something to be said for dishonesty. I think it’s no accident that only Justices O’Connor and Breyer voted in the majority in both Grutter and Gratz. The liberals on these issues tend to think that while honesty is the best policy, dishonesty is okay too: so it’s okay, according to the liberals, for a state institution to pursue diversity, integration, etc., through a variety of means. Conversely, the conservatives disdain these programs whether or not they’re open about the use of race. It’s only the middle that really think that some covert uses of race are better than overt uses of race. What can be said for that?

The best explanation comes from Justice O’Connor herself, in Shaw v. Reno:

we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes

Perhaps one could say the same thing about certain forms of affirmative action in higher education. Where a mechanism is “too honest”—expressly different numerical cutoffs for standardized tests or GPAs depending on race, for example—uncomfortable messages will be communicated. But even if one buys this argument, it’s hard to see how it works in the context of public elementary and secondary schools. If the Court strikes down the Seattle and Louisville plans, the most patent appearance will be the appearance of segregated schools, which will, to paraphrase Justice O’Connor, bear an uncomfortable resemblance to American apartheid of the Jim Crow era. As relatively conservative circuit court judges like Alex Kozinski and Michael Boudin recognized, the Seattle and Louisville cases should be stronger candidates for upholding the use of race than was Grutter; yet we may be headed for the opposite result.

More on Honesty and Race

Building on Sherry's interesting post, I would note that Justice Souter's point about honesty being the best policy is reminiscent of a passage in Justice Ginsburg's dissenting opinion (which Justice Souter joined) in Gratz, the Michigan undergraduate affirmative action case:

"One can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment--and the networks and opportunities thereby opened to minority graduates--whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished. . . . If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises."

That seems exactly right to me. And by the same token, I think Justice Souter was right yesterday when he said that if racial integration is a worthy goal, we might as well be honest about our attempt to achieve it.

The Integration Cases from today

I just read Linda Greenhouse's article from tomorrow's New York Times summarizing today's Supreme Court arguments in the racial integration cases. It sounds as though the parties initially expected to be arguing over whether to characterize racially-based distribution of students at public schools as affirmative action or as something less controversial, but a majority of the Court instead appeared to view racial distribution for the purpose of achieving integration as no different from the segregation outlawed in Brown v. Board of Education. As in Brown, Chief Justice Roberts pointed out, every student is assigned to a school, and as in Brown, the assignment is based on the race of the student. Predictably, Justices Stevens, Souter, Ginsburg, and Breyer did not see the two as equivalent. (And frankly, I believe it is frighteningly shortsighted to see the two as equivalent). The "swing" Justice Kennedy appeared unhappy with racially based allocation of students (which perhaps struck him as comparable to the racially gerrymandered districts in Shaw v. Reno), but he would have liked the idea of creating a public school in a location that would foreseeably result in an integrated student body. Justice Souter aptly pointed out that this seemed like a game of hide-the-ball, because acting in a way that is intended to achieve racial balance (without explicitly classifying students by race) is just a less candid way of doing what the districts did in this case. If the outcome is desirable, then why not just be honest about it? Why indeed. After all, the infamous literacy tests that were purposefully adopted to disenfranchise African Americans were neutral on their face. (Of course, the other Justices in the majority might well object to the placement of the school in a location that would maximize integration, so perhaps Justice Kennedy is the only member of the majority who actually believes an integrated public school system is a desirable objective).

In addition to the obvious implications of these colloquies for debates about integration, they struck me as bearing as well on the lively and interesting discussions about purpose and knowledge with respect to Alon's post regarding the German Constitutional Court's decision invalidating legislation authorizing the shooting down of a hijacked airplane. If a school district builds a school in a location that maximizes integration (due to existing housing patterns), then it has acted in a nominally race-neutral manner with the knowledge and purpose of achieving integration. Similarly (though not so similarly), the government that shoots down an airplane to prevent hijackers from using it to kill people on the ground is acting in a way that it knows will kill passengers but which it does not intend to kill passengers. Is there a difference between knowingly killing passengers by shooting down their plane and deliberately killing passengers by shooting down their plane? Yes. The difference is that in the first scenario, someone else, namely the hijackers, have created the circumstances under which doing nothing will result in greater civilian casualties than doing something, and the government does not have the luxury of doing nothing and then claiming no responsibility. One could say the same thing of the effects of our toxic history of race in this country that have led to segregated housing patterns, etc. But it is not clear that there is any difference between deliberately placing particular students in particular schools to achieve integration and deliberately placing a school in a location that will attract an integrated student body in order to achieve integration. If the school district learns that this location does not achieve integration, it will be unhappy and try something else. On the other hand, if it turns out that the passengers survive the downing of the plane and only the hijackers die, then so much the better -- everyone wins. It does, in other words, make sense in some contexts to distinguish between purpose and knowledge (especially when acts and omissions are not sensibly distinguished), but it strikes me (and, apparently Justice Souter) as foolish to distinguish between purpose and purpose, depending on whether the purpose is explicit or not. Nonetheless, I suppose I should be glad that Justice Kennedy -- alone in the majority -- did not see the attempt to integrate schools in areas that had been until recently under court-ordered desegregation decrees as the equivalent of Jim Crow and mandatory segregation of the races that preceded 1954.

One more thought on abstract versus concrete judicial review

In my column today on FindLaw's Writ, I argue that denying standing to the plaintiffs in the global warming case, while arguably warranted under existing doctrine, would only expose the perversity of that doctrine. Although I have some hope that the Supreme Court will actually reach the merits, I think there is virtually no chance that the Court would modify its standing doctrine in the ways that I suggest would be both beneficial and more consistent with Article III. I would add here that the Supreme Court's narrow view of standing and similar doctrines ostensibly rooted in the case-or-controversy requirement is virtually unique among constitutional democracies. It's worth contrasting the German case that Alon discussed over the weekend with the standing doctrine in the U.S. Because the German Constitutional Court has the authority to hear abstract (what we here would call "advisory") cases, it was able to rule, in advance, on the constitutionality of shooting down a hijacked plane containing innocent passengers. In the U.S., it is hard to imagine a federal court finding standing, because no plaintiff would be able to show that he or she was sufficiently likely to be a passenger on a hijacked plane. The Court ruled in Los Angeles v. Lyons that a past victim of an allegedly unconstitutional chokehold lacked standing to seek an injunction against the LAPD's continued use of chokeholds, on the ground that he hadn't demonstrated a sufficient likelihood that he would be subject to another chokehold, so what are the odds that it would approve standing where a random prospective passenger alleges that he or she might be shot out of the sky?

In the extraordinarily unlikely event that the Constitution were amended to permit the federal courts to hear abstract cases, we would have to decide whether to give the power only to the U.S. Supreme Court or to permit abstract cases to be filed in any federal district court. European and other constitutional courts that permit abstract judicial review tend to require that cases be filed only in the constitutional court itself, but these courts operate on the "Austrian" model, in which the constitutional court is not exactly seen as part of the judiciary itself. In theory, abstract judicial review could be decentralized, with further review by writ of certiorari (or even by mandatory appellate jurisdiction) in the Supreme Court. I'll explore these issues at length in my chapter for Vik Amar's and Mark Tushnet's comparative constitutional law reader.

Old Technology In The Classroom

In a general way, Mike and Sherry are right about laptops in the classroom. (Mike’s post; Sherry’s column.) A technology that helps a student record what’s happening in class--even when used for that purpose--can leave the student less engaged with the material. More focused on getting it all down than on thinking it all through, the student learns less from the class, and contributes less to it. To blame one particular technology, laptop computers, misses the mark, however. The note-taking technologies that laptops replace--pens and pencils--have the very same deleterious side-effect, and roughly to the same degree.

Whether it’s ever done in a law school classroom I don’t know, but as a graduate student in another field I studied with a professor--a really excellent teacher--who discouraged his students from taking notes at all. I don’t remember any express “policy” on note-taking; certainly he didn’t ban writing utensils in his classroom. Instead, he kept the scribbling to a minimum by an occasional ostentatious display of exasperation--throwing his hands into the air, he would exhort us to “Stop writing!” I don’t recall whether he ever told us his reasons, but I imagine he felt that we couldn’t be paying full attention to what he was saying if we were also writing down what he’d already said. If so, he was correct. It’s true, as both Mike and Sherry suggest, that good note-takers try to figure out what’s important in the discussion, so that they can get that down at least. Students who don’t take notes at all, however, can also try to figure out what’s important--and they’re more likely to succeed, because they aren’t multitasking.

Nonetheless, I wouldn’t necessarily advocate a no-note-taking policy in a law-school classroom. That’s not because of the potential benefit of class notes at exam-prep time. Better notes could be e-mailed around by the instructor after class (or, as Sherry arranges, by one or two students designated as note-takers for the day). It’s rather because of the cultural context. My best guess is that the anti-note-taking professor I refer to above was influenced by his own experience studying in a very different setting, one in which formal knowledge was typically transmitted orally, and stored mainly in human memories, rather than in writing. Whether I’m right about that influence, the material he was teaching us was traditionally studied in such settings, and to some degree still is; and he himself was a great memorizer of texts. A total focus on listening and speaking somehow fit with the material. Modern U.S. legal knowledge, in contrast, is a decidedly literary tradition, in storage and transmission (despite oral argument, the so-called Socratic method, and other pockets of talk). So is most of everything else that most law students have previously studied in high school and college (although in some fields video and other non-literary forms may be gaining ground). Banning writing from the classroom could seem incongruous--inappropriate to the material and disorienting to students. Literary though it remains, however, law is fast becoming, more specifically, a digital literary tradition. If that trend continues, laptop bans may begin to feel strangely out of place as well. When you add it all up, there’s a good argument for banning all note-taking tools, and a good argument for allowing them all. The only really strong argument for allowing pens and pencils but not laptops is that laptops come with all kinds of entertainment that have nothing to do with what’s happing in class.

Catch 22 of becoming a legal academic

Increasingly over the last decade, law schools have looked for entry-level faculty candidates who have not just the potential to produce excellent scholarship, but have already produced such scholarship. For candidates with PhD's, the dissertation or a spinoff of it will usually do the trick, but regular lawyers--who still make up a majority of new academic hires--must find a way to write and publish at least one, better two or more, journal articles before they go on the market. A student Note, if well done, can help, but it's hardly enough. The problem for many lawyers aspiring to be academics, therefore, is how to find the time to write while working a day job. Some have the discipline and stamina to write in their free time, but long hours at lawyer jobs and family commitments make this implausible for a great many otherwise qualified candidates. The solution for some has been to apply for teaching/scholarship fellowships, like Columbia's Associates Program, the University of Chicago's Bigelow Program, and Harvard's Climenko fellowship. (There are others, as well.) I'm partial to the Associates Program, because this is my third year chairing the committee that selects and welcomes our Associates, but I have noted an expected but unfortunate trend even in the short time that I've been involved in this enterprise: As admission to these programs becomes increasingly competitive, we (meaning all the schools) tend to favor those applicants who have already written something that, just a few years ago, would have itself landed them a tenure-track position. So now this means that applicants to writing fellowships must find the time to write so they can get into the program that will give them to write.

For my part, I've tried to combat this trend by looking for "diamonds in the rough" for our Associates program, that is, candidates who don't have any (or many) publications but really do have great potential. But there is a tension between taking that approach, which in my view is true to the purpose of the program, and the temptation simply to hire/admit people that we can predict, based on their track record thus far, will land good jobs down the road. So far I've been delighted with the Associates we've hired, but I do understand how a lawyer looking for time to write can find the admissions criteria for these programs to present a bit of a Catch-22.

Finally, a plug for the Associates program: If you're an aspiring academic and haven't yet applied, the formal deadline is Dec. 15. Use the "Admissions Procedures" link on the left-hand menu of the page for the link I provided above, and fill out the graduate legal studies application (even if you don't plan to pursue a degree; we use one form for convenience and uniformity).

Taxpayer Standing and Faith-Based Initiatives

It was a big week at the Supreme Court for standing doctrine. First, on Wednesday the justices debated whether the states and environmental groups have standing to challenge the EPA's refusal to regulate carbon dioxide emissions. Then yesterday the Court agreed to decide whether taxpayers have standing to challenge the Bush Administration's support for faith-based initiatives. Mike has already pointed out the weakness of the government's position in the EPA case, so let me explain why I think its argument in the religion case is equally unpersuasive.

The Court's cases on taxpayer standing are not wholly coherent, but they have resulted in the following rule. Taxpayers generally do not have standing to challenge government spending because the harm they suffer is too minor and indistinct from the harm suffered by all taxpayers. But they do have standing to challenge congressional appropriations to religious groups under the Establishment Clause. The reasoning behind this rule is that the Establishment Clause was intended as a specific limit on Congress' power to tax and spend. Therefore, it makes sense to permit taxpayers to sue to enforce this limit even if their injury is slight and generalized.

In the case accepted by the Court yesterday, the government argues that this rule does not support the plaintiffs' standing. The plaintiffs in the case -- Hein v. Freedom From Religion Foundation -- argue that the White House has violated the Establishment Clause by funding a series of conferences designed to teach religious groups how to compete for federal grants. The money used for these conferences, however, was not appropriated by Congress specifically for that purpose. It comes from general funds provided by Congress to the White House for its discretionary use. Thus, the government argues, the plaintiffs lack standing because they are not challenging an exercise of Congress' power to tax and spend. They are merely challenging the White House's discretionary use of funds appropriated by Congress for general purposes.

The government's argument is formalistic in the extreme (which is not to say that it won't appeal to the Court; it has previously denied taxpayers standing to challenge the grant of government land to a Christian college on the theory that the action was taken pursuant to Congress' power under the property clause, not the spending clause). Under the government's theory, the president could use discretionary funds to build a national church, and no taxpayer would have standing to challenge that action as long as Congress did not specifically appropriate the money for that purpose. This makes no sense. If Congress is prohibited from earmarking money to support religion, the president is prohibited from using discretionary money for the same purpose. And if taxpayers have standing to challenge the former, they should also have standing to challenge the latter. Judge Posner recognized this logic in his opinion for the 7th Circuit upholding the plaintiffs' standing, and it is unsettling that the Court has decided to review that decision. If it accepts the government's position, it will effectively bring an end to taxpayer suits under the Establishment Clause. What Congress would be dumb enough to earmark money for religious purposes when it could simply give the president discretionary funds with a wink and let him violate the Constitution instead?

Defending the Indefensible: Why the German Federal Constitutional Court Got it Right

In a remarkable decision the German Federal Constitutional Court struck down an anti-terrorism provision which empowered the minister of defense to order that a passenger airplane be shot down, if it could be assumed that the aircraft would be used against the life of others and if the downing of the plane would be the only means of preventing the present danger.[1] Under the Court’s reasoning, shooting down a plane violates the fundamental right to life and the right to dignity enshrined in the German Constitution. The treatment of the passengers as objects without proper legal protection is in the Court’s view unconstitutional.

The Court’s decision is interpreted as asserting that the power granted to officials under the law to shoot down planes is unconstitutional. Under this view the dignity of the (innocent) passengers on such an airplane is violated by the (legal) powers granted to officials under the law. What makes the law therefore unconstitutional is the content of the law which is incompatible with the dignity provision.

It is hard, however, to defend such a position. Most contemporary Kantian deontologists agree that deontological injunctions can be overridden under certain circumstances. Even if one concedes that shooting down a plane with 50 passengers in order to save an estimated 50 victims is not justified, it is likely that there is a number of victims which would indeed justify the shooting of the plane. This observation is not merely an observation of moral philosophers. The duties to protect are an established component of the German Federal Constitution. It seems reasonable that the duty to protect may include a duty to protect the potential victims of a terrorist attack and that such a duty grounded in the Constitution requires, at least under certain circumstances, the downing of a plane. Furthermore the Court’s assertion that by shooting the plane passengers are used as a mere means is highly misleading. The death of the passengers is a foreseen consequence of shooting the plane; their death is not a means to save the potential victims of the terrorist activity. In fact their death is not even necessary to achieve the desirable end since even if none of the innocent passengers were present in the plane, shooting the plane would have achieved the same desirable end.


I believe, however, that the decision is justified. While officials have a power to down planes under these dire circumstances, this power ought not to be enshrined in a statute. This power is derived from the constitutional “duties to protect” – duties which have long been recognized in the German system. Section 14 of the Air-transport Security Act is invalid not because the powers granted to officials in this section are too broad and therefore unconstitutional, but because it is important that an official who makes such a decision could not back his decision by pointing out to a legislative authorization. Instead such an official ought to confront her own conscience and face the consequences. Prior legislative authorization is a means of “legalizing” and “normalizing” what ought not be “normalized” or “legalized”.

[1] For a good description of the case, see Oliver Lepsius, Human Dignity and the Downing of an Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-Transport Security Act 7 German Law Journal No. 9 (1 September 2006) (http://www.germanlawjournal.com/article.php?id=756)

Is Barack Obama a Lightweight? (Yes, but in a good way)

In her NY Times column today, Maureen Dowd notes the incipient effort of some conservatives to discredit Senator Barack Obama by noting that not only is his last name a mere one letter different from “Osama,” but his middle name is Hussein. Dowd quotes Hussein-dropper Ed Rogers as denying that he was trying to link Obama to Saddam: “The context was, this guy’s a lightweight. Never have I seen so much swoon for so little biography.”

Lightweight? The guy was President of the Harvard Law Review. Although I haven’t been in touch with him in years, Obama was a year behind me in law school, and we took an advanced constitutional law seminar together. I have a hard time naming someone who had broader intellectual range or better judgment. To be sure, great academic minds have sometimes done poorly in public office. That’s the take-home point of David Halberstam’s The Best and the Brightest. And it’s clear from the context that Rogers meant that Obama’s national political experience renders him a lightweight, not that Obama isn’t super-smart.

But of course, as numerous pundits have noted, additional Senate experience will only handicap Obama. The last sitting Senator to run successfully for President was John F. Kennedy. Indeed, since Nixon and Johnson did it, even Senators who became Vice President (Mondale, Gore) have been unable to seize the brass ring. The conventional wisdom says that a career in the Senate leads to an encumbering paper trail on national issues, and that’s likely to be true in 08 as well. Unlike potential rivals Bayh, Biden, Clinton, Edwards and (God help us) Kerry, Obama has the good fortune not to have been in the Senate when the resolution to authorize the use of force in Iraq was up for a vote. (Roll call here). If, as looks increasingly likely, the war continues to be an issue in 08, Obama will not be handicapped by having to explain why he was for the war before he was against it.

In a way, then, a very brief term in the Senate may be the ideal resume for a Presidential candidate. It provides enough national exposure to gain recognition but not enough of a record to tie the candidate down. Yes, I know that governors have done remarkably well in recent Presidential elections (Carter, Reagan, Clinton, Bush 2), but I find it hard to believe that Tom Vilsack or Bill Richardson will out-poll Obama. Of course, anything can happen, and Dorf on Law doesn’t endorse candidates (as if the candidates wanted such a kiss of death!), but from where I sit, it looks like being a lightweight Senator—in the sense of not being weighed down by long tenure in the Senate—is just the ticket, especially against a likely Republican nominee whose 20+ years of mostly very conservative votes will be hard to characterize as “maverick” once they come under close scrutiny.

Global Warming, Intelligent Design, and Moo

[With apologies for the use of mild profanity in this post. . .]

In one of my favorite novels, Jane Smiley’s Moo, there is a scene in which an economist is giving a lecture extolling the virtues of commercial exploitation of what had been a delicate ecosystem in Central America. In the audience, the novel’s main character, the Chairman of the Botany Department (called Chairman X), sits fuming at the economist’s utter disregard for any notion of value other than short-term dollars and cents. Chairman X is so filled with rage that as his hand shoots up to ask the first question after the lecture, he feels himself unable to form any query other than “What kind of ignorant asshole are you?” Yet somehow, when he does open his mouth, he asks a more conventional, less rude question.

In working on my next FindLaw column, which will use the oral argument in Massachusetts v. EPA, the global warming case, as an illustration of what’s wrong with the Supreme Court’s standing doctrine, my eyes fixed on the following piece of double-speak from the Deputy Solicitor General (who shouldn’t himself be blamed for it, since he’s only representing the position of the Bush Administration):

I think one thing that we ought to be able to agree on is there is that there is uncertainty surrounding the phenomenon of global climate change. I think the debate is on which areas are more uncertain than the others. But certainly I think the agency was entitled to conclude, particularly if you take into account the deference this Court should give to that kind of determination, that the scientific uncertainty surrounding the issue of global climate change, surrounding issues of the extent of natural variability in climate, surrounding the issues of impact of climate feedbacks like ocean circulation, and low cloud cover, are permissible considerations for the agency to take into[account].

This statement was offered in defense of EPA’s decision that it is too early even to make a judgment about whether man-made carbon dioxide emissions are a threat warranting regulation and it reminds me of nothing so much as the view of creationists (oh, I’m sorry, I mean intelligent designists) who say that because there is uncertainty over such matters as exactly which Australopithicenes were human ancestors or what all of the intermediate stages were in the development of various complex organs among vertebrates, there is therefore substantial uncertainty about evolution itself. But more directly to the point, the Deputy SG’s argument that “ooh this stuff sure is complicated, better not worry your pretty little lawyer heads about it and leave it to the expert agency, which is patiently waiting to be absolutely sure that global warming has caused catastrophic and irreversible damage” left me wondering how the Justices could bring themselves to ask anything other than “what kind of ignorant asshole are you?” Yet, like Chairman X in Moo, Justice Stevens in fact asked a polite question in response to the above-quoted mush.