Barbaro's Legacy

I confess I really do love thoroughbred horse racing. But while jockeys and trainers certainly deserve (and receive) substantial credit for their accomplishments, let’s face it -- the one doing the most work is the horse. I’m absolutely convinced that thoroughbreds love to race (if you’ve ever stood close to the edge of the track and felt the electricity when they pass, you know it’s true). But what happens to them after they can no longer race? Sadly, many see tragic ends because their owners either cannot afford to continue to care for them or choose not to do so.

Enter Barbaro. Barbaro, of course, was undefeated entering into the Kentucky Derby, won that race like nobody’s business, and then suffered a terrible injury in the first part of the Preakness. It was an injury that most horses would not have survived even briefly. But for eight months he hung on, undergoing surgeries and various other treatments, and gave us many periods of great optimism until finally a hoof infection proved too much for him to overcome. The effort was solely to save his life; Barbaro would plainly never race again. Indeed, in all likelihood he would not even breed -- Barbaro’s fragile legs would surely not have permitted him to mount a mare, and the rules of thoroughbred racing do not permit breeding in any other way. Barbaro’s career, either as a race horse or as a stud, was over the moment of the injury.

As I understand it, under applicable insurance policies Barbaro’s owners could have had him euthanized at any time and collected tens of millions of dollars in insurance proceeds. Instead, they spent enormous amounts of money to try to save him. There was no financial or business incentive for them to do this; it was purely an act of love and respect. Barbaro was ultimately cremated, and his ashes will likely be buried in a public setting.

This story is compelling, sad and noble. But it is not the story of all race horses. According to the website of the Thoroughbred Retirement Foundation (a charitable organization that rescues thoroughbreds from neglect or slaughter after they can no longer race), “Reality is a world where horse meat is in demand in many foreign countries and there are several slaughterhouses in the U.S., Canada and Mexico happy to create a supply.” It is reported elsewhere that thousands of horses, the vast majority of them healthy, are slaughtered in the U.S. every year for human consumption abroad. Descriptions of the inhumane conditions surrounding horse slaughter are too unbearable to repeat here, and numerous organizations have been lobbying Congress for years to try to outlaw the practice.

We make a bargain with these magnificent animals. They provide us with the great thrill of thoroughbred racing (and, for some, substantial monetary benefits as well). In return, they are entitled to decency, respect and kindness. Barbaro deserved every second of care he received; those who provided it behaved honorably, and the fans who grieve with them plainly appreciate everything they did for Barbaro. I hope, though, that in praising Barbaro and his caretakers we do not lose sight of the fact that his is story is not every horse’s story.

I don’t mean to suggest that the goal should be to get every horse the same kind of extraordinary care that Barbaro got. Many humans don’t even get that level of care. But at the risk of diverting us from the feel-good aspects of Barbaro’s touching story, I’d like to suggest that perhaps the best thing that could come of it is that it might shine some light on the tragic fate suffered by so many other horses. That would truly be a fitting legacy for Barbaro.

Kobe Bryant and Intent

The NBA suspended Los Angeles Lakers star Kobe Bryant for one game as punishment for elbowing San Antonio Spurs guard Manu Ginobili in his previous game. Bryant and the Lakers objected to the suspension because, according to Bryant, he did not intend to elbow Ginobili. League officials disagreed, noting that Bryant threw his arms backwards (striking Ginobili) after attempting a shot, an "unnatural" motion in basketball, according to Stu Jackson of the NBA front office. Bryant had an explanation: He flailed his arms as he did in an effort to draw a foul call. He hoped to draw attention to himself but did not intend to hit Ginobili. Bryant's explanation is credible because there is no known animosity between him and Ginobili.

I'm not especially interested in the merits of this dispute (except to the extent that Bryant's absence was the key to the Knicks' victory over the Lakers), but I do think it interesting that Bryant's exculpatory account was that he was trying to con the referees! And he's right in that assessment. Pretending to have been fouled is an important skill in the NBA. The generally acknowledged master was Reggie Miller, who after attempting a shot with an opponent in shouting distance, would frequently fall to the floor as though he had been shot by a sniper. Sometimes Miller would get the call; sometimes he wouldn't; but no one ever suggested that what he was doing was against the rules or even unsportsmanlike.

That's quite peculiar, isn't it? Well, yes and no. Consider parallels in the law. Sometimes deception merits special punishment. For example, a witness who lies on the stand commits perjury, a serious offense. Likewise a tax cheat who tries to disguise an illegal deduction by using the form of a transaction that is otherwise legal will not only have to pay the tax but could also be charged with tax fraud. Yet in other contexts, we seem to expect people to engage in deception. For example, a defense lawyer acts within his rights---indeed, probably has a professional duty---to challenge the veracity, perception or memory of witnesses that he knows are providing accurate testimony. What is cross-examination along these lines if not a deliberate effort to mislead the jury?

Is there a coherent account of when the law treats intent to deceive as relevant and when it does not? One might take the view that intent is never relevant because of the difficulties of proof---but of course the criminal law typically makes intent (or at least knowledge, which can be equally difficult to prove) highly relevant to culpability. Interestingly, although conventional wisdom holds that the difference between a category 1 flagrant foul and the more serious category 2 flagrant foul (which results in a player's ejection) is that the latter requires an intent to injure, the actual NBA rule does not draw a distinction based on intent. So apparently Bryant was relying on the common law of basketball in his defense.

Spaced Out About Taxes

In an Associated Press story that has been posted on a number of news sites (see, e.g., here), we learn that the lucky winner of a sweepstakes has declined to accept his award because of the tax consequences. Having won a "free trip to outer space," our lucky winner calculated that the award (which has a value of $138,000) would cost him about $25,000 in taxes. He concluded that this was more than he was willing to spend, and he declined the award with the philosophical comment: “I was, however briefly, a potential astronaut." The article reports that he "doesn't blame anyone."

That doesn't stop other people from blaming the IRS, of course. The sub-headline on MSNBC.com's website reads: "IRS brings hype over suborbital ticket giveaways back down to earth." Even TaxProf.com, which is notable for its even-handed treatment of tax issues, couldn't resist this headline: "IRS Grounds Prize Winner from Trip to Outer Space." The article, however, makes clear that the IRS did not get involved in this case at all. The prize-winner, having received news of his award, responsibly inquired into the tax treatment of such awards and learned that they are taxable as regular income. He then computed his potential tax payment and decided that he did not want to accept the free trip. This is not even a case where the IRS issued an advisory about a murky issue (such as celebrity "swag bags" at awards shows--which are taxable, by the way). The most that one can say is that the IRS, being the "tax cops," were known to be in the background if the prize-winner had tried to cheat. The IRS is everyone's favorite villain, even when it does nothing more than stand ready to apply the law even-handedly.

The IRS aside, why does the AP think it is worth saying that the prize-winner's dream "was crushed when he had to cancel his reservation because of Uncle Sam," or that space trips "can get mired in that most earthbound hassle: taxes"? As a legal matter, it's completely settled that free trips are "income" and thus taxable. (For that matter, they are also consumption and would be taxed under a consumption tax regime.) As a policy matter, why (and, for that matter, how) would we create an equitable exception for this? Other people have to earn and save $138,000 if they want to take this trip, after paying taxes on their income. This prize-winner was being told that he could take a $138,000 trip for $25,000. He also "became an instant celebrity, giving media interviews and appearing on stage at Oracle’s trade show."

Anyone who thinks that the poor guy should get an even bigger break is free to pay the taxes for him. Several companies that provide these types of prizes, including Virgin Atlantic and Microsoft, reportedly pay cash to cover the winners' taxes. (As the AP article points out, such payments are also subject to taxation, but there is a simple "grossing up" formula to determine how much the prize-winner would have to receive in cash to be able to pay his tax bill, take the trip to space, and not pay a dime out of pocket.) Installment payments are also potentially available. In the meantime, I'm glad that prize-winners are subject to paying taxes on their income under the same rules that apply to taxing everyone else's income, thus preventing the necessity of raising tax rates or increasing the deficit.

Benchmarks

What do the government of Nouri al-Maliki and under-performing New York public schools have in common? Each is likely to be subject to a new regime of performance benchmarks: If they don't meet specific targets on schedule, they'll lose support. In the case of Iraq, that means American troops. In the case of many New York City schools (and other schools throughout the state), that means dollars.

Let's take New York first. The state's new governor, Eliot Spitzer, announced yesterday that performance benchmarks would be part of a package of new financial assistance to schools throughout the state. Schools that do not meet the standards imposed by their "contracts" will lose funds, their principals will be fired, and in some instances the schools will be shut down. The approach is not new. Other states--and to a large extent federal assistance pursuant to No Child Left Behind--include performance benchmarks with incentives and accountability for failure. This can be have unwanted side effects, such as narrowing curricula (i.e., "teaching to the test") and even cheating, but there are ways to address these issues. A different problem is that withdrawal of funds hardly seems like a good way to improve a failing school. The students in the failing school pay the price. That's why students in such schemes are typically given an exit option. The basic idea is in some sense to mimic market forces: If a school fails, its students are given the option to choose another school, so the school and the people running it have an incentive to meet the benchmarks.

What is the incentive of the Maliki government to meet the benchmarks that Congressional supporters of the Bush troop increase want to set? The fear that if it does not, U.S. troops will be withdrawn. But the U.S. backers of this policy don't want to withdraw U.S. troops. If they did, they would withdraw them without first setting benchmarks. So the benchmarks become a game of chicken. If the Maliki government has independent reasons not to want to meet them -- e.g., it worries that a serious crackdown on Shiite militias will result in its losing political support -- then it will be tempted to test the U.S. By contrast, if the Maliki government does want to meet the benchmarks, but despite its best efforts, does not, will the U.S. then withdraw the troops anyway? That would seem undesirable from the standpoint of this policy. Where funds are withdrawn from a failing school, the students are given the chance to go to a different school, but if U.S. military support for the Maliki government is withdrawn, that support cannot simply be given to some other putative government. So benchmarks for progress by the Iraqi government may be unenforceable at best and counter-productive at worst. And I say that as someone who generally supports benchmark-driven accountability standards.

My FindLaw Column Today on Affirmative Action Bans

My column on FindLaw's Writ today is titled Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea? In it, I consider 5 approaches to boosting minority enrollment in states, like Michigan, California, Washington, and Florida, that ban race-conscious affirmative action: (1) Open or lottery-based admissions; (2) Class-based affirmative action; (3) Guaranteeing admission to all public high school students who graduate at or near the top of their class; (4) Considering "prejudice or discrimination overcome" as an admissions criterion; and (5) Improving the quality of secondary education.

I'd be quite interested in hearing about other approaches that have been tried or proposed.

Gates is Right That Congressional Opposition "Emboldens the Enemy" But So What?

On Friday, Defense Secretary Gates said that formal Congressional opposition to the Bush troop increase in Iraq "emboldens the enemy," leading, predictably, to condemnations of this comment by members of Congress. At some level, of course, the members of Congress are right. This sort of talk is not that different from the various efforts by Bush Administration officials over the last five years to label as unpatriotic any opposition to the administration's strategic goals or tactical decisions. But it's also likely that Gates is right: There probably are some Iraqi insurgents who will read Congressional opposition to troop increases as a sign that if only they (the insurgents) persist in their attacks, the Americans will pack up and go.

This is both common sense and a lesson of recent history. Lawrence Wright's The Looming Tower (an excellent read) makes plain how Osama bin Laden inferred from American retreats in Lebanon and later in Somalia that the U.S. was a paper tiger that would pack up and leave if hit hard. Likewise, Hezbollah inferred from the Israeli withdrawal from Lebanon that its persistent attacks had succeeded. Each was emboldened by their foe's retreat.

But it doesn't follow that the U.S. -- or particular members of Congress -- should therefore avoid every action that would embolden the enemy. It depends on the nature of the enemy and the nature of the emboldening. The violence in Iraq now stems from multiple sources, including but not limited to: 1) homegrown mostly Sunni former Baathists who simply want to destabilize the regime in the hopes of fomenting chaos and ultimately a Baathist restoration; 2) Shiite militias taking revenge on, and prompting further cyclical violence by, Sunnis; and 3) foreign (almost exclusively Sunni) jihadis who want to ignite a civil war that will engulf the region and ultimately spill into a global war between purified Islam and the West. Group 3 probably poses the greatest long-term danger to U.S. interests, and they would likely claim a propaganda victory by the U.S. withdrawal from Iraq, but their goals are better served by our forces continuing to remain there. So long as large numbers of American troops are in Iraq, al Qaeda and like organizations can recruit radical Muslims from the world over to fight jihad there. As for the groups that want us to withdraw our troops, they might well be emboldened by our doing so, but just because current enemies want us to do something doesn't mean it's against our interest to do it.

The ONLY real question is whether signaling an intent to withdraw sooner rather than later will make the post-withdrawal situation worse than it would be if Americans keep a united front behind President Bush's troop "augmentation" (in Secretary Rice's phrase) for another year before admitting that our presence is not helping matters. And because the members of Congress who oppose the troop increase think that the surge/augmentation/escalation only delays the inevitable while sacrificing more American lives, they should also think that enemy emboldenment is largely irrelevant, and certainly an acceptable price to pay for the American lives that will be saved if they manage to speed the withdrawal.

Obama @ Harvard

Today's NY Times has a fascinating story about Barack Obama's days at Harvard Law School, and especially his selection and tenure as the first African-American President of the Harvard Law Review. This could be a good opportunity to play "six degrees of Barack Obama" and point out that I was a year ahead of Obama in law school, that we took a seminar together, and that the Larry Tribe law review article referenced in the Times piece for which Barack served as a research assistant lists me in the same asterisk footnote. (The article is The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, 103 Harv. L. Rev. 1 (1989). The footnote states, in part: "I am grateful to Rob Fisher, Michael Dorf, Kenneth Chesebro, Gene Sperling, and Barack Obama for their analytic and research assistance . . . ." Yes, that Gene Sperling, who later became President Clinton's National Economic Adviser.) I could point all that out, but I won't.

Instead, I'll note a substantive disagreement with what I take to be the main point of the Times article. It indicates that at the Harvard Law Review, Obama's management style was to listen to what everyone had to say on contentious issues, and then say something that permitted all factions to come away thinking that he agreed with them. Several people quoted in the story say that Obama's own views were never quite known. This approach may have succeeded in gaining the law review Presidency, the story says, but to capture the Presidency of the United States will require Obama to take strong positions that reward specific constituencies.

Hunh?? Wasn't the whole point of W's 2000 packaging of himself as a "compassionate conservative" precisely to send different signals to different people: moderates and perhaps even some liberals who were not paying close attention heard "compassionate" while conservatives heard "conservative?" And didn't it work in that it got him elected (sort of)? Moreover, I was struck by how similar the characterization of the opacity of Obama's views was to those of John Roberts in his days as a young lawyer. No one knew where he stood, and Roberts benefited enormously from that ambiguity during his Senate confirmation hearings. Admittedly, that's not quite the same thing as a Presidential race. A Presidential candidate cannot refuse to answer questions on the ground that they implicate decisions he'll have to make as President, in the way that Supreme Court nominees can. Still, I would have thought that the great challenge for a Presidential candidate trying to win a general election is to appeal to a broad swath of voters, to straddle tough issues even while appearing to provide strong leadership. At most, the story raises doubts about the ability of Obama to get the Democratic nomination (because primary voters are more ideologically committed), but it suggests that if he does, he'll be a formidable general election candidate.

Greenburg on O'Connor on Bush v. Gore

I've ordered my copy of Jan Crawford Greenburg's new book on the Supreme Court, but since it hasn't yet arrived I've been contenting myself with the various reviews of the book, including David Garrow's in the LA Times. He's certainly a big fan, as are many other reviewers. One thing Garrow notes about the book is the incredible access Greenburg was able to get, both to current and former members of the Court and to former clerks. Justice O'Connor, for example, apparently spoke "on the record" with Greenburg for four hours. And it looks like she actually said some meaningful things. Garrow summarizes a few of the rather blunt things Greenburg reports O'Connor to have said about Bush v. Gore, including that the Florida Supreme Court was "off on a trip of its own." But that's not the most striking thing O'Connor said about the case. For that, check out this passage from Garrow:

O'Connor admitted to Greenburg that the written opinion was not "the Court's best effort" and that "given more time, I think we probably would've done better" in explaining the decision, but "it wouldn't have changed the result."

Everyone knows, of course, that the Court decided Bush v. Gore under incredible time pressure, and everyone also knows that the per curiam majority opinion wasn't "the Court's best effort." Wearing our realist hats, I suppose most or all of us also would have suspected that, no matter how long the Court had to decide the case, the outcome probably wouldn't have changed. But that last point is not something one would expect a member of the Court to acknowledge. When speaking publicly, members of the Court typically make an effort at least to pretend that reasoning itself matters, and that outcomes are not determined before the reasoning process has run its course. Members of the Court thus tend to deny that their decisionmaking process is outcome-driven, where they first settle on the desired outcome and then simply spend whatever time remains crafting the best defense of an outcome to which they are unalterably committed. Reflective reasoning, members of the Court typically say, matters. Contemplation can lead people to change their minds.

I'm relying here on Garrow's report of Greenburg's account of O'Connor's statement, and so it's certainly possible that something has been lost or misconveyed in the retelling. But if the above-quoted passage is accurate, it looks like O'Connor came perilously close to abandoning this commitment to reflective reasoning in her account of Bush v. Gore. (It's possible, I suppose, to read her quote as suggesting that the Court had actually thought its way through every possible argument and counter-argument in the case, but because of limited time wasn't able to write it up as well as the Justices would have liked. But I think that's implausible. There really wasn't enough time for anyone on the Court to think their way through every aspect and implication of the case, and pretty much all the opinions in the case reflect that fact.)

I don't mean to say that we should all cling to the fiction that the Court should or does decide cases without any attention to the consequences of certain outcomes. That would be both unrealistic and undesirable. But there's a difference between incorporating some consideration of consequences into one's reasoning and saying that (1) the Court really didn't have enough time to do its best work in a particular case, but that (2) even if it had had more time to think harder and more carefully about the case, there's no way the outcome would have changed.

Can We Talk About Mammograms For A Minute?

Yesterday it was reported, both on the "Today" show and in the Wall Street Journal (and probably in other places, but those are the ones I saw), that the CDC is somewhat concerned because the percentage of women getting mammograms has fallen over the past few years. I saw nothing in either report to indicate that anyone was advancing any theories as to why this would be the case, and I certainly have no real research to propose one myself. I will, however, make an observation. In my own experience -- which is limited to the greater New York City area -- it is actually not so easy to get a mammogram. Personally, I have "good" health insurance. If I want to get a routine mammogram that my insurance will cover, however, I generally have to schedule it months ahead of time. For a mammogram that is not routine (i.e., one that is recommended to investigate a specific potential problem), the wait is less; however, it can still be several weeks. I can get one faster if I am willing to pay out of pocket for it, but the test is certainly not cheap.

I am fortunate in that, as a partner in a law firm, I have the flexibility to take an hour or two in the middle of the day to go and have this test. I can also generally schedule things around the appointed date and time, so that I've never actually had to cancel and re-schedule the test (which would likely entail another long wait for a rescheduled appointment). But many (and I would venture to say perhaps even most) women are not as fortunate as I am in that regard.

A woman who does not have the kind of flexibility I have, and who cannot afford to "opt" for a more flexible appointment schedule by paying for the test out of pocket, may well be faced with a choice of either missing her appointment or missing a shift of work. If you factor in recently-reported trends among retailers such as Wal-Mart, who are now demanding more "flexibility" from their workers in lieu of giving them regular shifts (a trend I wrote about on this blog about a month ago), it would seem that there is likely a substantial population of people who could never possibly schedule this test without serious financial consequences. If you add to that the fact that those who lack insurance can only get the test on those occasions when it is offered for free, the problem becomes even more severe.

How would these factors lead to a decrease over time rather than simply a plateau? Again, I can offer only anectdotal theories. A few years ago one of the facilities that offered covered mammograms here in Manhattan stopped doing the procedure; this made it more difficult to get appointments at the others. I wonder whether anyone has investigated whether this -- or a shrinkage in the number of facilities that are accepting insurance -- is occurring more broadly. I also wonder whether trends in work schedules (including not only the number of hours people are working, but also the number of workers who have to keep two jobs in order to make ends meet) may have some bearing. And, of course, I would expect that trends in insurance coverage would be relevant as well.

My point, ultimately, is that I hope that the CDC's observation will result in something more than just another information campaign to try to "convince" women to get mammograms. I would suggest that what is needed is real progress toward making it feasible for women to follow that sound advise. Perhaps health care reform will help, but if the problem is that people's jobs are not giving them the minimum flexibility needed to take care of their health, then health care reform may be only half of the answer.

Iowa Political Markets and the Iraq Surge

Political insiders have long known that the best way to predict the results of American elections is to follow the Iowa political markets, on which anybody can buy "shares" in outcomes of particular races. Trading on the 2008 Presidential race has been open since June 2006, and the stock prices are quite interesting. For the category of winner-take-all, one buys shares in either the Republican or Democratic candidate. One share of the Democrat returns a dollar if a Democrat wins and nothing if a Republican wins, and vice-versa. If the odds were even money, then Democratic and Republican shares would both be trading at $0.50.

As it happens, the Democratic candidate has been ahead almost continuously since this market opened in June. However, in mid-November, the Republican candidate started to gain ground and essentially pulled even on November 19. Since then, the Republican price has fallen fairly continuously, while the Democratic price has risen. As of yesterday, the split was close to 55-45. What explains the rise and then the fall of Republican fortunes?

Although conventional wisdom holds that economic issues usually decide Presidential elections, there has been no major economic news in the relevant period. However, there have been significant developments with respect to Iraq policy. During mid-November, after Secretary Rumsfeld resigned and President Bush was indicating that he would take the advice of the Iraq Study Group, political investors may have thought that the U.S. would have sufficiently extricated forces from Iraq by November 2008 that the war would not be the decisive issue. Since then, as Bush has made plain his plans for troop increases, fewer investors believe this. If I'm reading the data correctly, people who are betting real money on the question think that Iraq will be an albatross for whoever is the Republican candidate in '08. And that means these usually-savvy investors do not think that the "surge" will be temporary.

Lawyers Prosecuting the Powerful

A couple of days ago Neil Buchanan posted a few ideas about how to sell the value of defense lawyers to the public. I don't have much to add directly on that thread, but three current cases do, it seems to me, show one great virtue of lawyers in a system of limited government: Because we lawyers consider ourselves guardians of the principle that no one is above the law, lawyers serve as a vital check against the accumulation of tyrannical power. That's conventional wisdom for defense lawyers putting the prosecution to its proof, but it's even more clearly illustrated in cases in which lawyers act to prosecute high-ranking government officials. Thus, Israeli Attorney General Menachem Mazuz sees it as his duty to prosecute the country's President, Moshe Katsav, for rape and other crimes. Likewise, special prosecutor Pat Fitzgerald is aggressively building his case against Scooter Libby, and there's little doubt that he would have gone after Rove or even Cheney if that's where the evidence led. In both cases, the prosecuting attorney has been accused of having a political ax to grind but the accusations ring hollow: Fitzgerald and Mazuz both have reputations for being tough prosecutors who follow the evidence.

The problem, of course, is that prosecutors have been known to go overboard in their pursuit of the powerful, whether it's Ken Starr's Inspector Javert-like obsession with Bill Clinton's completely inappropriate but ultimately private sexual misbehavior or Michael Nifong's single-minded quest to bring down members of the Duke lacrosse team, even if it meant withholding exculpatory evidence. How do we ensure that the likes of Fitzgerald and Mazuz are available to challenge the powerful when they need challenging without licensing Starr and Nifong?

The Madisonian answer is to counter aggressive prosecutors with equally aggressive defense attorneys. To be sure, it's hardly a perfect solution. The mere need to mount a defense can be devastating, and in cases against high-ranking public officials, the distraction of an investigation, even without a trial, can adversely affect public policy. But if supplemented by robust enforcement of professional norms -- e.g., Nifong faces the prospect of serious disciplinary action by the North Carolina bar -- setting lawyers against lawyers may be the best we can do to guard against the guardians.

Spanking and "Correction"

I am somewhat alarmed to learn from Paul that Canadian law protects the right of parents and teachers (?!) to use reasonable force against children for "correction." I would certainly acknowledge concerns about selective enforcement, though such concerns are hardly unique to spanking regulations (and perhaps are better aimed at laws that are affirmatively harmful, such as drug laws). However, I find unpersuasive the notion that anyone has a "right" to use physical force (however "reasonable") to "correct" a child. There is no evidence that hitting a toddler has any beneficial effects for the toddler, and older children appear to gain nothing from the practice either. Spanking (or, to use a less pc term, "hitting") children seems, therefore, to serve the parent's interests in retribution or in releasing pent-up anger rather than the child's interest in learning to behave properly. The law's choice of the word "correction," moreover, in referring to the use of force to subordinate one's "inferiors" in the household is unlikely to be an accident. Both husbands (who had proprietary rights over their wives) and parents (who had similar sorts of rights over their children) could historically use violence to keep their subordinates in line, and this function was called "correction" as well (specifically, a right of "moderate correction," if I remember correctly). I think it is a property conception of parenthood that makes anyone think it is acceptable to hit our children (even when we leave no marks) to teach them right from wrong. And any teacher who hits a child (with a hand or a ruler) to discipline him or her (rather than, for example, in self-defense) should be suspended and perhaps terminated from the job of school-teacher. I believe that we have evolved morally from the place where we exercised the prerogative to use violence in the privacy of our own home. Though spanking may be a less injurious form of assault than beating with a ruler or a belt, it is still violence and should not be encouraged. I fear that when a court awards protection for the "right" to use "reasonable" force, it (perhaps inadvertently) lends undeserved credence to the notion that the "head of household" is entitled to assert ownership over his human subjects. Incidentally, worries about selective enforcement and the disruption of households underlay the inexcusable exemption of marital sexual assault from the criminal law of rape in both the Model Penal Code and in most state codes until quite recently. Though a history of misuse is not a dispositive argument against the right to spank, it should give us pause, at the very least.

Primary timing

There's a new round of competition among states to leap-frog their primaries and caucuses over one another. (See today's NYT article.) The timing of primaries and caucuses is an almost incomprehensible amalgam of national party rules, state party rules and state laws. Some states, like New Hampshire, have exercised enormous clout in the past. New Hampshire has managed to retain its first-in-the-nation primary through national party rules that would refuse to seat delegates chosen through any primary held earlier than New Hampshire's. We need a national policy, not a state-by-state race to February.

Now, not surprisingly, some big states (California, Illinois and Florida) are pushing a move to the week after New Hampshire, so as to increase their influence in the nominating process. It seems to me that this year, in which no incumbent president or vice-president is seeking his party's nomination, would be an ideal year for bringing some order to the primary/caucus process. The ideas of national primaries, regional primaries and other modified versions of nominating procedures have been kicked around and debated for decades. We're not going to learn much more about their relative merits, and it's time to make some decisions about how to shorten up a process that's way too long, way too expensive and way too draining.

It's time for the DNC and the RNC to get together and agree on a sensible schedule, and then formalize the system in federal law. For example, we could have four regional primaries spread apart by two or three weeks, starting with the lowest media-cost region; or we could rotate the order of the regions in each election cycle so that the delegate-rich regions don't always appear at the same point. If one thinks that it's really valuable (or populist) to have one really small, inexpensive primary -- like New Hampshire -- at the outset to allow dark horses to emerge, then the new system could have one of those each cycle but that state could be chosen from a bigger pool, sort of like the 65-64 play-in game at the NCAA basketball tournament. For example, in 2008 the first primary might be held in sunny Arizona; the 2012 one might be in Montana.

Spanking Martha Stewart

I hope it's not too late to weigh in on Mike's earlier post about the proposed spanking bill in California. I haven't read the draft law, if one exists at this point, so I'm speaking from a somewhat general position. Mike asks why one might oppose such a law, and says that since religion doesn't seem to be the foundation for the opposition, a general fear of the "nanny state" might be behind it. I detect, though I may be wrong, a whiff of disagreement in his description of such a position.

Let me offer a few responses that don't necessarily depend on opposition to the nanny state as such, although they certainly may support wariness about "nanny state" legislation. They all amount to the same basic thing: that however commendable such a law might be in ideal circumstances, there is no guarantee that its application would be ideal. We might take three cuts at such an objection. The first is a basic vagueness/overbreadth objection: however carefully such a law is drafted, parents may well be concerned that their actions in disciplining children, however innocent and well-meaning, might be construed as falling under the application of the statute. Second, as is often the case with such laws, there might be a concern about selective enforcement: given the breadth of conduct that might be construed as falling under the statute, and law enforcement's tendency to use whatever tools come to hand, a parent might reasonably be concerned that law enforcement officials would use such a law selectively and unfairly when seeking grounds to lay charges against someone. Hence the reference to Martha Stewart in the title of this post, which is not (just) a cheap effort to increase our visitorship via Google search by drawing in fans of a special kind of Martha Stewart Living: a spanking law might serve the same prosecutorial bootstrapping function that 18 U.S.C. 1001 served in the Stewart case and other white-collar criminal cases, to the criticism of some. That leads me to a third and final possible objection: a parent might be reasonably concerned about the collateral consequences of such a law, as with other laws, also designed for the protection of children, that in some cases lead to collateral legal consequences for those who have been convicted under such laws that far outweigh the gravity of the conviction itself.

Thus, it seems to me that even if one believes spanking is never justified -- and much will depend on how one defines "spanking" in these circumstances -- one might still reasonably believe that such a belief ought to be enforced as a social norm rather than through law, even if one is not inclined to condemn the proponent of such a law as a would-be "nanny."

Finally, for those who are interested in such issues, let me fulfill my function as one of the Canadians on this blog (actually, we seem to be legion on this blog) by pointing out that the Supreme Court of Canada kinda got there first, in this opinion. The opinion actually comes at the issue from the other side: the Court upheld a section of the Criminal Code that "justifies the reasonable use of force by way of correction by parents and teachers against children in their care."

Shut Up and Write Scholarly Articles

Paul Krugman has a very interesting piece on Milton Friedman in the current New York Review of Books (not yet available online). Krugman praises Friedman's work as a positive economist, especially his demonstration that inflation and unemployment are not inversely correlated over the long run -- Friedman successfully predicted stagflation. Krugman notes that real-world trials discredited Friedman's claims for the power of steady-as-she-goes monetarism but concludes that overall Friedman's reputation as a giant on the order of (and in opposition to) Keynes is largely deserved. At the same time, Krugman criticizes Friedman's accomplishments as a popularizer and public intellectual. The arguments Friedman made for deregulation were not derived from Friedman's academic work and, in some instances, Krugman says, downright dishonest.

Although I share Krugman's views on the merits of Friedman's brand of laissez-faire, I want to put in a word in tepid defense of Friedman and indeed, of Krugman himself. Krugman's complaint sounds to me a bit like Laura Ingraham's contention that (liberal) celebrities who have earned their fame through their talent in entertainment should not opine about public issues but should instead "shut up and sing." One difference, I suppose, is that when Danny Glover, Susan Sarandon or the Dixie Chicks make policy proposals, most reasonably well-informed observers understand that they are using a platform that they were given for one purpose to promote issues on which they have no special expertise. By contrast, one might think that when Friedman, or for that matter, Krugman, writes a popular article about economics, the public will assume that it is thoroughly grounded in his technical expertise in economics, but like the actors and musicians, Friedman, Krugman and other scholars who also write for a popular audience (like yours truly) will sometimes use their expertise to support positions they favor mostly out of an ideological commitment. So the experts writing in this mode could actually be thought to be more dangerous than the celebrities speaking out on political issues.

But surely the conclusion cannot be that therefore anyone with serious expertise in a field should refrain from commenting on issues of public concern for fear that his or her views will be given too much weight. Instead, I think Krugman is probably best read to say that in writing for a lay audience, scholars can dumb down their arguments but shouldn't slant them. That's a sound prescription, but I doubt that those on the other side of any contentious issue will tend to see the resulting necessary over-simplifications as the result of a good-faith effort to popularize. At least that's the upshot of the nasty email I sometimes receive from some of my most conservative readers.

Why Do People Need Lawyers?

Returning to some themes discussed recently by Michael Dorf (Are Lawyers UNIQUELY Amoral?) and Paul Horwitz (Attacking Firms that Represent Guantanamo Detainees), I'm intrigued by the public's continuing dismissive attitude toward defendants who ask for lawyers. TV cop shows, including the best ones ("Homicide: Life on the Street" being my all-time favorite), always present a lawyer as an impediment to achieving justice. "He lawyered up" is a common complaint from investigators. Along similar lines, the New York Times recently ran an article describing how criminal suspects almost compulsively feel the need to talk. The article quoted a criminal attorney saying that she always tells her clients simply to shut up--but they rarely do.

From the public's perspective, this is apparently good news. If guilty people feel the need to confess, after all, why are those amoral lawyers telling them not to do so? Those of us who have been through law school know the answers in the abstract, but I've been pondering whether it is possible to find a compelling example that would make it clear that justice can be advanced when people refuse to talk to the police until a lawyer is present. In order to penetrate the public's consciousness, such an example would ideally either appear in a popular movie or TV show or be something that people could simply relate to intuitively.

I can think of two candidates that have already appeared in popular media. In an episode of "LA Law" (back in the day), a mentally retarded man was being questioned about a sex crime. He said that he was guilty, but it turned out that he was confessing his guilt about something else (something that his mother told him not to do, but which was not a crime). Only when Arnie Becker came in and cleared things up did the police back off. Similarly, in the movie "My Cousin Vinny," one of the suspects confesses, thinking that he is confessing to having taken a can of tuna, not to killing a convenience store clerk. When he realizes what is happening, he says incredulously: "Wait. I killed the clerk! I killed the clerk." The sheriff takes this as an even more direct confession.

The question is whether there is a way to make people understand viscerally that lawyers can prevent injustice by having their clients clam up. Maybe not, but it probably wouldn't hurt if lawyers had at least some real or hypothetical examples to support the principle that the accused is entitled to counsel. (And, of course, it would be nice to have another example of why even guilty people should have lawyers.) The principle is sound. Can we make it sing?

The Scapegoat Defense

Some Democrats were apparently gleeful that Scooter Libby's lawyer chose, in his opening argument, to claim that Libby was being made to take the fall for Karl Rove. The celebration, I want to suggest, is not just premature, but fundamentally misguided. This is almost a no-lose proposition for the White House.

The argument -- as I understand it -- is that Rove came up with the idea of outing Valerie Plame as a means of discrediting or at least downplaying the importance of Joseph Wilson. Nonetheless, Scooter was the one who was sent to talk to the press to sell the story, and because Scooter was a busy guy with important things to do like keeping us safe from terrorism, he got confused about what he learned about Plame, from whom, and when. But really Rove -- who also talked to the press about Plame -- was the bad guy.

I fail to see how this will harm the White House (any more than it already had before the trial began). Rove apparently acknowledged in his grand jury testimony that he mentioned Plame to reporters. That's why he wasn't charged with perjury. He wasn't charged with blowing her cover because Fitzgerald concluded that this wasn't criminal.

If the jury convicts Libby, that can be read as a rejection of the fall-guy defense. On the other hand, if Libby is acquitted, it will be spun as simply a case of faulty memory. It's not as though Libby's acquittal would result in Rove's indictment. The scapegoat defense is basically a non sequitur.

Lincoln, Jackson(s), Habeas, and Torture

Abraham Lincoln famously complained that in insisting on the availability of habeas corpus in the midst of the Civil War, his critics were advocating that "all the laws, but one, go unexecuted, and the government itself go to pieces, lest that one be violated." Along with Robert Jackson's "The Constitution is not a suicide pact," Lincoln's line has become something of a motto of those who advocate limiting civil liberties in times of war and other threats to national security. In fact, another Jackson got there first. In defense of his refusal to comply with a habeas order, Andrew Jackson, then the American major general charged with defending New Orleans against British attack in the War of 1812, asked: "Is it wise to sacrifice the spirit of the laws to the letter, and by adhering too strictly to the letter, lose the substance forever, in order that we may, for an instant, preserve the shadow?"

Caleb Crain quotes Jackson's question in a fascinating book review in the current New Yorker. As Crain explains, Jackson imprisoned Louis Louaillier, a state legislator who had written a newspaper piece critical of Jackson's continuance of martial law in New Orleans even after the defeat of the British force in New Orleans and the conclusion of a treaty ending the war (news of which had informally reached New Orleans). Jackson also imprisoned the federal judge who ordered Louaillier freed. After martial law was lifted, Jackson was tried for his acts, resulting in a fine, but almost 30 years later (and after Jackson's Presidency) Congress voted to reimburse Jackson for the fine.

One lesson Crain draws from the episode is that habeas corpus has never been especially popular in times of actual or perceived national crisis. A second lesson we might draw bears on current debates not only about habeas but also torture. The argument against an absolute ban on torture typically relies on the ticking bomb scenario: If you knew to a certainty (or even a high probability) that a terrorist in your custody had planted a ticking bomb in a major population city, it would be immoral not to torture him to find the bomb's location. Some people oppose the argument on deontological grounds, rejecting the utilitarian calculus, but many others think that deontological side constraints lose their force where great harm is threatened and where the object of torture is himself a bad actor. Some of these utilitarians nonetheless resist the conclusion that torture is sometimes justified by pointing out that in the real world, government authorities will be prone to mistake. They also note that torture often leads to faulty information. Whatever the relative force of these arguments, the Jackson episode reminds us of another ground for resisting the ticking-bomb argument: Government officials not only make mistakes but also become drunk with power. No realistic assessment of the threat posed by Louaillier's letter, much less the habeas order of the federal judge, could have warranted their imprisonment. We can expect (and have seen) similar abuses where government officials have the power to torture.

A pretty good day for the Supreme Court

The Justices decided 3 cases today and got 2 of them pretty clearly right (IMHO). In Jones v. Bock CJ Roberts wrote for a unanimous Court that lower federal courts can't impose additional procedural hurdles on habeas petitioners beyond those contained in the Prison Litigation Reform Act (and other statutes). For admin jocks, think of this as the Vermont Yankee of habeas.

In Osborn v. Haley Justice Ginsburg wrote for the Court that a federal court ruling remanding to state court a case removed under the Westfall Act is reviewable, despite the existence of a statute that says it's not reviewable. Justices Scalia and Thomas dissented on the ground that, well, the statute says the case is not reviewable. Justice Ginsburg's majority opinion seems to rely on a kind of implied "obviousness exemption." The Westfall Act makes the AG's determination that the facts justifying removal authoritative on the federal courts, and the lower court here disregarded the AG's determination. Count this case as a defeat for textualism if you're keeping score at home.

And then there's Cunningham v. California, in which the Court once again invoked the Apprendi line of cases to strike down a sentencing scheme that permits the aggravation of a criminal sentence based on a factual finding made by a judge on the basis of a preponderance of the evidence, rather than by a jury based on proof beyond a reasonable doubt. There were some distinctions between Cunningham and the prior cases, which Justice Alito (joined by Kennedy and Breyer) gamely argued, but for the most part the case was a straightforward application of Apprendi (which Kennedy and Breyer insist was wrongly decided). For my money, this whole line of cases is hopelessly confused because it permits judicial determinations to authorize a sentencing reduction but not an increase. Thus the rulings are easily rendered irrelevant by a sufficiently clever legislature.

In today's decision, for example, the Court invalidated a scheme in which the baseline sentence for the offense is 12 years, with the judge capable of going downward to 6 years if mitigators outweigh aggravators (if any), and capable of going upward to 16 years if aggravators outweigh mitigators (if any). (There are no in-between sentences.) So suppose California now amends its law to make 16 years the baseline offense, permitting a judge to depart downward to 12 years if she finds that no aggravators outweigh mitigators and to depart downward to 6 years if she finds that mitigators outweigh aggravators. That would be functionally equivalent to the scheme struck down today, but under the Court's assumption that judges can be given the power to reduce sentences w/o jury participation, it would be valid. I'll wait for the test case.

Exploratory Committee Fluff

I decided to check out the websites of the exploratory committees for some of the announced candidates. I discovered that they're almost entirely about fundraising and fluff. For example, if you go to the Clinton or Obama official Senate sites, you'll find quite a lot of information under "issues," but on their respective exploratory committee sites (here and here ), you'll find no "issues" heading at all. Likewise for Rudy Giuliani, Mitt Romney, and Tom Vilsack, to name just a few of the thousands of candidates. The pattern seemed so consistent that I wondered whether there is some FEC rule barring mere "exploratory committees" from officially taking stances on issues. But it turns out that's not the case. Apparently the FEC treats an exploratory the same as an actual campaign committee. And not every exploratory committee avoids issues. The Denns Kucinich site has an issues section, for example, as does the Sam Brownback site.

But Kucinich is different from most of the others. Because his main obstacle is the perception that he is not a serious candidate, he needs to establish credibility sooner rather than later. Likewise, since Brownback is trying to position himself as the candidate of the religious right, and so it's to his advantage to display his bona fides early on. Plus, his "issues" aren't long on specifics. For example, here's the Brownback Issues point on Iraq:
"After my recent trip to Iraq, I am even more convinced that the situation there is precarious, but hopeful. I see hope in the Iraqi people. I believe this hope will be the foundation of a new Iraqi society. Much remains to be done, and I think we need a plan to turn this country over to its citizens. I will continue to work with the leaders in our country, as well as leaders in Iraq, to find a solution that protects the future of Iraq, and the pride and dignity of its citizens."
Great, a policy based on hope. I suppose that's better than one based on wishful thinking. But at least Brownback has an "issues" section.

The question is why most of the others do not. The answer, I take it, is the nominally "exploratory" nature of their campaigns. They're still "exploring" and so they haven't yet formulated official positions. This is silly, of course, because each of the websites lists the candidate's accomplishments and showcases individual speeches etc, that take positions on issues. But given that all of the candidates' websites will undoubtedly have "issues" links (or the equivalent) as we get closer to actual primaries, it's striking that they've all decided to forego them at this early stage in the process. That's especially interesting given that this is at most the third presidential cycle in which the internet will play a significant role in fundraising and connecting candidates to supporters. Apparently the netiquette of Presidential campaigning has already largely stuck on this point. I'll be interested to see when in the cycle the websites start to change.

Seventh Amendment & the PSLRA

Provisions of the federal securities laws don’t frequently produce constitutional disputes. The heightened pleading standard of the Private Securities Litigation Reform Act of 1995, which transformed securities fraud complaints and redefined the battleground on motions to dismiss, didn’t seem to be an exception. Now, though, the Supreme Court has granted cert on a late-blooming Seventh Amendment issue, in Tellabs, Inc. v. Makor Issues & Rights, Ltd.

The provision at issue, enacted apparently in order to make it easier for corporations and corporate officers to defraud shareholders, requires complaints in covered actions to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” Put simply, it extends the particularity requirement of Federal Rule of Civil Procedure 9(b) to allegations of scienter. (Rule 9(b) expressly permits plaintiffs to allege scienter generally, although some courts haven’t interpreted it that way.)

What can’t be put simply is what Congress meant by requiring that the arising inference be “strong.” The circuits soon split on this issue and, eventually, found a constitutional issue in it, in an unusual way that isn’t described in the cert papers. In what some have characterized as the most defendant-friendly interpretation of the “strong inference” requirement, a complaint survives only if the defendant’s culpability is the most plausible inference that could be drawn from the allegations. The Sixth Circuit adopted and applied this construction en banc in 2001. Then, in 2005, while applying that construction, a Sixth Circuit panel suggested in dictum in a footnote that the “strong inference” standard might be unconstitutional, because it requires the court to weigh competing inferences, a role the Seventh Amendment reserves to the jury. The parties had not raised the issue, however, so the court didn’t decide it. Later, the Seventh Circuit, which had not yet construed the provision, relied on that footnote and avoided the constitutional concern by interpreting the provision to require only that the complaint allege facts “from which, if true, a reasonable person could infer that the defendant acted with the required intent.” That’s the case that’s on its way to the Supreme Court.

Whence the Opposition to California's Proposed Spanking Ban

A proposal by California Assemblywoman Sally Lieber (D) to make spanking of a child under three years old a misdemeanor has drawn sharp opposition from state Republicans, although not from the new kinder gentler Governator (himself a frequent spankee as a youth). Developmental psychologists are virtually unanimous that spanking very young children is ineffective or counter-productive, as it teaches them to resort to violence themselves. So why the opposition?

One possibility is religion. "Spare the rod, spoil the child" is a Biblical maxim, and in fact, some religious conservatives continue to promote spanking. However, based on my brief web-surfing of conservative Christian websites, it appears that even most religious conservatives believe spanking should be used rarely, that other forms of discipline should be preferred, and that spanking should never be administered in anger. I don't see the opposition to a proposed spanking ban as primarily based in religion.

My own guess, based on quoted statements of opponents of the proposed ban, is that opposition has less to do with its specifics than with general opposition to, for lack of a better term, "the nanny state." If the government can ban spanking, it can ban smoking in the home (probably worse for children's health than infrequent spanking), and even require that children be fed healthy food (which, as one conservative commentator helpfully explains, will make your kids gay.)

At least I hope that opposition to the spanking ban simply reflects a more general embrace of parental rights, rather than Californians' desire to hit infants and toddlers. But if the spanking controversy gets traction, look for it as a wedge issue in the '08 Presidential election!

John Roberts Speaks

Jeffrey Rosen has an article in this month’s Atlantic in which he reports on an interview he conducted with John Roberts last July. The article is largely uncritical and covers many of the same themes Roberts emphasized in his confirmation hearings: the importance of judicial modesty, the value of narrow rulings, and Roberts’ asserted lack of an overarching agenda. But there were a couple aspects of the interview I found noteworthy.

First, I was surprised that Roberts was so candid about his desire for unanimity on the Court and his frustration with justices who care more about their own records than about the credibility of the court. Though he didn’t identify anyone by name, Roberts did criticize justices who act like law professors and seem "concerned with the jurisprudence of the individual rather than working toward a jurisprudence of the Court.” The reference to law professors might be read as a swipe at Justices Scalia, Ginsburg, and Breyer, who were all academics before joining the Court (though to be fair, Breyer, in spite of his professorial demeanor on the bench, is much more driven by pragmatism than theory). And the reference to “the jurisprudence of the individual” seems clearly directed at Justice Thomas, who more than any other member of the Court has charted his own path. Is it wise to publicly rebuke the very justices one is hoping to pacify? I’m not sure. It’s possible that Roberts' candidness will backfire and provoke some justices to dig in their heels further.

Second, I was struck by how formalist Roberts sounded. He complained about the “personalization of judicial politics” and appeared nostalgic for an era in which judicial decisions were accepted as the true, impartial statement of the law. Now, it is possible that Roberts does not really believe in this kind of objectivity, but simply views it as a goal to which the Court should aspire. Even many non-formalists agree on this point. Still, his tone seemed quite different from that of Chief Justice Rehnquist, who never pretended that the law was anything other than what the Court said it was. (See his opinions on retroactivity.) In that sense, Rehnquist was a true representative of his generation, which had been educated by the Legal Realists. Most of us are still Legal Realists, of course, but in recent years some academics have been advocating a return to formalism. And if Roberts’ interview is any indication, they may now have a representative on the Court.

Oh, Brother

Time for a break from these trivial conversations about supposed Asian invasions, supposed Muslim invasions, intimidation (by government officials) of white shoe lawyers, intimidation (of potential jurors) by white shoe lawyers, Canadian parliamentary maneuvering, New York legislative non-maneuvering. Enough with all of this frivolity, already — it’s time to talk about something consequential. Yes, it’s time to talk about Bollywood, Reality TV, and the Law. (And no, despite how it sounds, that’s not a course that I have either taken or taught.)

Now that the “Celebrity Bigot Brother Big Brother” kerfuffle has hit the paper of record, some of you may already know a smidgen about the drama rocking the UK, the Subcontinent, and the South Asian diaspora this week. (Primers here and here, and for the pathologically obsessed, up-to-the-minute updates here.) The show features a couple of Hollywood has-beens low on media attention these days — Jermaine Jackson, of those Jacksons, and Dirk Benedict, of the old Battlestar Galactica. But more importantly for our purposes, the lineup also includes Shilpa Shetty, a significant Bollywood star, and three fading British luminaries, Jade Goody (famous for being famous), Danielle Lloyd (a former Miss Great Britain), and Jo O’Meara (of the band S Club 7). To make a long story short:

Jackiey [Jade’s mother] called Shilpa “the Indian” and asked if she lived in a shack, and then Danielle told Jade that she thought Shilpa was a dog and then Jo refused to eat the chicken that Shilpa had cooked because she had only put it on for 45 minutes, and she didn't know where her hands had been, and now, well, now she knew why all Indian people were so thin, because they couldn't cook properly, ... and then Danielle said that Shilpa wanted to be white... [link]

Oh yes, and Jade’s boyfriend may or may not have called Shilpa a “Paki,” Danielle definitely did say that Shilpa “should f*** off back home” because “she can't even speak English,” and Jade told Shilpa to “go back to the slums” and later called her a “pappadum.” Shilpa, though not exactly speechless, was left to ask (in English) “Is this what today’s UK is? It’s scary. It’s quite a shame really.” Faster than you can say “Michael Richards,” all hell breaks loose — effigies burning in India, official protests by the Indian government to the British government, calls for the show to be cancelled immediately, front-page headlines screaming about the possibility of a “bitter race war” between the UK and India, colloquies with Tony Blair about racism on the floor of the Commons during Question Time....

Hai rabba, stop the madness! Believe it or not, however, there is more to this story than celebrity gossip, political opportunism, and tabloid sales. As Booker Prize winner Kiran Desai has noted, for many British South Asians, who now constitute 4 percent of the UK’s population, the episode touches a nerve because it vividly calls to mind their own day-to-day experiences with racism in the UK over a period of many years. The public hangama has resulted in tens of thousands of formal complaints, more than any TV show in British history and enough to shut down the website of Ofcom, the British broadcast regulator. Ofcom and the police are investigating possible violations of (among other things) laws banning broadcasts intended to incite racial hatred. These reality shows are notorious for manipulating the social dynamics among their participants — remember the “Law & Order” episode covering this ground? — and if the show’s producers have deliberately provoked racial conflict on the show, an investigation might be useful in bringing that to light. Still, all of this seems to fall well short of incitement, and people calling for the show's cancellation are probably missing the point. Certainly the entire obsession with l’affaire Shilpa misses more than one point, since there are far more consequential issues involving racism and inequality in British society than the bullying of a multimillionaire actress. But given the choice between shutting the show down and letting the spectacle unfold for everyone to see, it’s better for Britain to hold up a mirror and see just how ugly what the Independent has called its “barely submerged xenophobia” can sometimes get.

Chief Justice Barak's Revolution

Chief Justice Barak has been the dominant figure in the Israeli Supreme Court for over 20 years. Prior to his appointment, the Israeli Supreme Court was perceived as marginal to the politics of the state. Chief Justice Barak's value laden rhetoric and his so called activism have transformed the Israeli Supreme Court and its public image. The Court is perceived as an independent actor with its own (moderate liberal) agenda. This perception generates two kinds of opposition. On the one hand, the religious and conservative forces perceive the Court as an enemy of religious and conservative values. Consequently there are persistent attempts at limiting the Court's powers and/or changing its composition. On the other hand, the radical left perceives the Court as a means of legitimating the practices characterizing the brutal occupation of the territories. The willingness of the Court to examine and review issues such as targeted assassinations, demolition of houses and torture and to affirm the legality of some of these practices is in the view of its left wing critics pernicious.

These facts are often provided as evidence that Chief Justice Barak defended a liberal ideology supported by the established elites against the newly emerging powers in Israeli society. It was even claimed that legislation establishing the powers of the Court was deliberately created in order to protect the interests of liberal elites. This inference is flawed. The fact that Barak’s decisions were often supported by traditional liberal elites is more an indication that these elites are more committed to values of equality and the rule of law than other sectors rather than an indication that the Court has a liberal ideology.

Irrespective of what one thinks of the Barak Era, it is clear that Chief Justice Barak has changed Israeli law in fundamental ways. Barak revolution transformed a “black letter” legal culture” into a justice-based or policy-based legal culture. It has also transformed the Court into an active force in the political life of the country.

Cyberlaw 2.0

At the height of the first dot-com boom, it seemed like nearly every twenty-something aspiring law professor held himself or herself out as an expert in "cyberlaw," by which they meant the law governing the internet. Some of these budding scholars took the view that the internet changed everything, so that legal rules and standards about intellectual property, antitrust, personal jurisdiction, you name it, had to be rethought from the ground up when applied to transactions in cyberspace. Others took a more modest view, seeing the internet as merely the latest in a long line of technological transformations to which legal doctrine could and would adapt. But whether they advanced revolutionary or evolutionary models, most of those writing about cyberlaw were writing about the regulation of the internet.

Problems of the interaction between the internet and the real world continue to arise. For example, tax law has struggled with the question of what jurisdiction has authority to tax a transaction in an online fantasy world like SecondLife, which can result in real dollars changing hands. Likewise, my civil procedure exam last semester posed jurisdictional and choice-of-law questions based on interactions in a fantasy world inspired by SecondLife. Problems of this sort are likely to be with us for quite some time, but with the increasing popularity of internet fantasy worlds, we're also likely to see more examples of what I'll call cyberlaw 2.0. Cyberlaw 2.0 problems concern regulation in the internet. An early example was the "rape" that occurred inside LambdaMOO (a text-based virtual world), which did not and could not have resulted in prosecution in the real world but led to new "law" within the online community. There is a temptation, I think, to assimilate all such law to contract: You sign up for some service and click "accept" on the EULA, thereby agreeing to be bound by whatever rules the organizers of the website have created. But this vastly oversimplifies the richness of the rules, standards and social norms of such places. We no more fully understand Cyberlaw 2.0 as contract law than we understand all real-world law as contract law in virtue of the fact that it can all be traced back to a social contract.

I've been thinking about cyberlaw 2.0 because yesterday I received an email from Marc Edelman, a New York lawyer by day, who also runs a website called Sportsjudge. For a modest fee, Edelman provides written legal opinions resolving disputes among competitors in fantasy sports leagues. When Marc (whom I know through a recreational softball league in the real world) sent me a link to his site, my first reaction was that it was, well, silly. I mean it's odd enough that grown men (and some grown women, but let's face it, most of these people are men) spend so much of their time living vicariously through the exploits of professional athletes who nominally represent their city but might represent some other city the next day. It's odder still that fantasy sports players spend still more time constructing artificial teams of "their" players whom they pretend to "manage." And oddest of all is the idea that in the course of such a twice-removed-from-reality game, players would develop a conflict so intense that they could not resolve it amicably but would need to enlist the services of a fake judge.

And then I thought, well maybe not so odd after all. Most of law in what we call the real world involves make-believe ideas, like the notion that someone can "own" a piece of land or a car. Isn't a chief lesson of early 20th century legal realism that property in things is wholly a social construct? When you think hard about it, the idea that the law confers upon me a property right in my iPod is every bit as strange as the idea that Joe Blow rather than John Doe owns the rights to the stats generated by Albert Pujols. To be sure, fantasy sports leagues pre-date the internet, but I suspect that people are more willing than ever to take them seriously now that the internet has made the notion of fantasy worlds so commonplace. Maybe the people who said that the internet changes everything were wrong, but not because the virtual world is humdrum. Maybe they were right that the internet is a strange world but wrong in thinking that made it different from the real world of law.

Less Than Half a Loaf for AG Gonzales

In his testimony before the Senate Judiciary Committee today, AG Gonzales said he couldn't provide the operational details of the warrant application process the Bush administration had worked out with the FISA court. This did not sit well with the Senators.

Interestingly, had the administration never initiated warrantless wiretaps, it almost certainly could have kept these details secret. As I noted in my previous blog entry, warrant applications are typically ex parte and while FISA requires the Justice Dep't to provide Congress with an annual report, that report almost certainly would not have included details of any novel procedures.

But by circumventing the FISA court in the first instance, the administration raised suspicions which may now lead to political pressure to provide greater details. Had the administration been willing to settle for the half a loaf of FISA court approval for its electronic eavesdropping in the first place, it would have been assured of greater secrecy than it will likely get now, having gone for the whole loaf of warrantless surveillance.

FISA Court Negotiations

A year ago, the Justice Department issued a "fact sheet" detailing what it called the "myth v. reality" of its warrantless surveillance program. Among the supposed myths rebutted by the document was that "the Administration could have used FISA but simply chose not to." The Department explains that it could not have used FISA because its multiple layers of approval take too much time to respond to the fast-moving needs of counter-terrorism. Maybe that's right; maybe not. It's impossible to know given that the government has not revealed operational details of its surveillance program, claiming national security reasons.

But if the FISA process was too slow a year ago, why is it fast enough today? In announcing that henceforth the govt would seek FISA warrants for the wiretaps that, to this point, it has performed without a warrant, the Justice Department stated that it had worked out with the courts an "innovative" approach that would permit greater speed and flexibiilty. This leads to a number of questions that, one hopes, will be answered at least to the satisfaction of those in Congress investigating the program. To wit:

1) Why didn't the government go to the FISA court at the onset of the program to propose its innovation?

2) If, as the Justice Department claimed in its fact sheet, the cumbersome FISA mechanism is set forth in FISA itself, where does the FISA court get the authority to innovate around that?

and

3) What are we to make of the suggestion --- at least in some of the news stories --- that the administration negotiated with the FISA court over how these applications would be handled? To be sure, warrant applications are inevitably made ex parte (because to include the target in discussions would tip him, her or it off), but here it is suggested that the administration lawyers negotiated with the FISA court judges over the program as a whole, rather than making the case for particular warrants. Did any members of Congress participate in this process? If not, why not?

Voir Dire in the Libby Case

According to a story in today's NY Times, Scooter Libby's lawyers are asking prospective jurors their views about the Bush Administration in an effort to ferret out biased jurors. This may seem a legitimate line of questioning. For example, one woman said “'nothing that could be said here'” would make her believe anything good about the administration." That should probably result in a dismissal for cause, although perhaps not if a follow-up question revealed that this woman meant she wouldn't believe anything good about the administration's policies but she would base her verdict on the evidence.

The questioning of another juror presents a still harder case. The story reports: "Another man, after about 15 minutes, acknowledged that his low regard for Mr. Cheney might figure into how he evaluated his testimony if it was in conflict with other witnesses." Is this disqualifying? What if the witness in question were a convicted perjurer? Surely a prospective juror's low regard for such a person would legitimately affect his evaluation of the witness's testimony. Is it bias, or just good sense, that would lead one to question the reliability of statements by Cheney, who said in 2002 that "there is no doubt that Saddam Hussein now has weapons of mass destruction."? (That quote is taken from the White House website.)

Perhaps the most disturbing line of the story is its final one: "Potential jurors were also asked if they believed that the administration distorted intelligence to bolster the case for war with Iraq." I would think that a negative answer to this question could be disqualifying, because it could reflect a pro-Administration bias. (I say "could" because such an answer could just reflect ignorance.) But undoubtedly the question was asked in the hope of using positive answers to disqualify jurors, either for cause or peremptorily.

Isn't it abundantly clear that there is only one legitimate question to ask regarding jurors' political views? Namely: "Are you able to put aside your favorable or unfavorable views of President Bush, Vice President Cheney and their Administration, and evaluate this case solely based on the evidence presented?" And since it's hard to imagine anyone answering "no" to this question unless he or she wishes to avoid jury service, the Libby voir dire ends up as an object lesson in the problems with our jury selection system. I say we should adopt the English approach: absent a strong personal connection to a party or other very pronounced bias, the first 12 people called end up on the jury, full stop.

Cheerio!

The Problem(s) with Decapitation

What makes the fact that Barzan Ibrahim al-Tikriti was decapitated so disturbing? (I'm assuming others were disturbed. If you weren't, you'll disagree with nearly all of this post.) Here are three candidate explanations:
1) Coming so close on the heels of the taunting at Saddam's execution, the botching of al-Tikriti's execution will likely fuel suspicions among Sunnis in Iraq and beyond that the Shiite-led government is deliberately abusing its power to humiliate Sunnis. This in turn will further fuel sectarian violence.
2) Decapitation is a cruel method of execution. Although the guillotine was promoted in its day as humane, there is plenty of anecdotal evidence that the severed head sometimes remains alive for a small period. This is certainly one of the reasons why the hangman is supposed to try to avoid decapitation.
3) Decapitation has been used by terrorists in Iraq and elsewhere as a particularly brutal form of murder. The accidental decapitation of a murderer like al-Tikriti is of course not as revolting (to a person holding reasonable moral views) as the deliberate beheading of an innocent like Daniel Pearl, but the former nonetheless evokes the latter.

I think all of these concerns are in play here, but I also think there's a primal revulsion that goes beyond these particular consequences. One possibility is religious. Orthodox Jews oppose autopsy on the ground that when the Messiah comes, the dead will be resurrected bodily. Muslims permit autopsy if strictly necessary but would certainly regard unnecessary decapitation as profoundly disrespectful. Nonetheless, I don't think religious feelings explain the revulsion. For one thing, there's my own intuition; I'm not religious but I find the prospect of decapitation more revolting than other methods of execution, even controlling for pain (to the extent that such a thought experiment is possible). Moreover, unless one holds the view of bodily resurrection, religious convictions ought to make one care LESS about the body than otherwise: the immortal soul, in such views, is what matters.

So, assuming that I'm correct that there is a residual unexplained revulsion here, I don't have an explanation for it. My own subjective report is that this is something on the order of the revulsion against cannibalism. That revulsion probably evolved as a defense against the spread of prion disease. (See Chapter 13 of The Family that Couldn't Sleep, by D.T. Max, for a fascinating account.) Could the revulsion against decapitation be rooted in the same period of pre-human history? We know that brains are among the most infectious portions of cows and sheep infected with BSE and scrapie, respectively. Perhaps before pre-humans learned not to eat the corpses of one another, they learned not to eat their brains, which would have been facilitated by a taboo on decapitation, one that remains with us to this day. A just-so story, I freely admit, but the closest thing to an explanation that I've got.

Of holidays and strikes

Here's a thought loosely inspired by the official commemoration of the birthday of Dr. Martin Luther King, Jr.

I'm increasingly dubious about the wisdom and propriety of marking the significance of a person's accomplishments through an official holiday. We don't yet have "Martin Luther King Day Sales" but it seems only a matter of time. No doubt early celebrations of Lincoln's birthday (now merged into "Presidents' Day") were not wholly commercialized, but as the event recedes in time, the commemoration becomes increasingly disconnected from the achievements commemorated.

Relatedly --- or at least it seems to me that there is a relation here --- I do not understand the notion of a "strike" as a form of political protest. I recently received an email calling for a "student strike" to protest President Bush's planned troop increase and the Iraq War more generally. Now I certainly understand that in order to hold a protest march and/or rally on a weekday, student participants need to skip school and employed adults need to skip work. But in such circumstances I would not characterize the skipping of school and work as a "strike." Rather, the skipping of school or work is a side-effect of being somewhere else. Nonetheless, genuine "strikes"---in which the protest CONSISTS IN skipping school or work---occur (more so among students than workers, I believe), and that is what was suggested in the email I received.

This seems misguided in the extreme. The point of a traditional labor strike is to make the employer suffer via lost profits (or, in the case of a public sector employee, to make the public suffer and thus exert pressure on the authorities to settle on terms favorable to the workers). This I get. But I don't see how junior high or high school students ditching school---but not attending a rally, march or even a "teach-in"---exerts pressure on anyone. Perhpas it makes a point in itself, but that point is likely to be muddled by the fact that many of the strikers experience the strike as a boon rather than a sacrifice.

Catfight Between Rice and Boxer?

The New York Times reported on Saturday that an exchange between California Senator Barbara Boxer and Secretary of State Condoleeza Rice has led to much critical commentary – largely from conservative bloggers – accusing Boxer of being anti-feminist. The controversy surrounds Senator Boxer’s comment to Secretary Rice suggesting that neither woman was in an ideal position to appreciate fully the consequences of committing more troops to this war, because Senator Boxer’s children and grandchildren are, respectively, too old and too young to serve, and because Secretary Rice does not have children. Rice was apparently offended by these remarks and responded later that she thought it was okay to be a single woman and not to have children, implying that Boxer had impugned the legitimacy of her life choices. Commentators have similarly characterized Boxer’s remarks as turning the clock back on women’s rights.

In one sense, we might view all of this commentary quite cynically. The very people who accuse Boxer of turning back the clock – including the likes of Rush Limbaugh, who reportedly said that Boxer had “lynched” Rice and hit her “below the ovaries” (whatever that means) – would like nothing better than to turn the clock back on advances of feminists (or, as Limbaugh has called them, “Feminazis”). Furthermore, the substance of Boxer’s argument is sound – the people committing troops in this war are largely disconnected from the loss of life that troops have suffered, (mostly because their children are privileged enough to avoid service, despite their falling into the appropriate age group for deployment). That disconnect validly raises the concern that the Bush administration may far be too ready to dedicate troops because they (and others in positions of power) have so little invested -- at a personal level -- in troop survival. Many have claimed persuasively that if all of the young people in this country were equally likely to die in this war, it would have ended quite some time ago.

Despite the merit of Boxer’s point and the hypocrisy of her critics, it is nonetheless worth considering the claim of sexism. The problem, of course, is more complicated than Rice and her backers suggest. A stigma continues to attach to single women, along with pressure to marry and have children. At the same, however, the career ladder can be quite punishing toward those women who give in to the pressure. While the wage gap between men and women has been closing over time, the wage gap between women without children and women with children has been simultaneously growing. This suggests that women, as a general matter, cannot “have it all.” They must choose between a family and a highly successful career. This is unfortunate and wrong.

If women in general must make this choice, then it might legitimately gall someone like Secretary of State Rice to hear people express doubts about her ability to make sound judgments about the war on the ground that she does not have children. It may indeed be precisely because she does not have children that she has been able to ascend to the position she currently occupies, where she is charged with making the sorts of judgments whose validity are now called into question. Perhaps it would have been better, then, if Senator Boxer had said that almost no one in the room (including the senators and the secretary of state) have loved ones serving in Iraq; it was unnecessary to that point to highlight Rice's childlessness (and, for that matter, the age of Boxer's family members). Though I have little sympathy for Rice and her politics, there is a grain of truth in what she says. It is easy to question the ability of single women to understand the circumstances of women with children. If we believe, however, that having children is an important part of being a well-balanced person suited to a life in public service, then it is incumbent upon us to do a far better job of making it possible for mothers to thrive in the work force.

Are lawyers UNIQUELY amoral?

One of the comments on Paul's post regarding Stimson's attack on the law firms representing Gitmo (and other) detainees notes that the view expressed by Stimson is fairly widespread. The comment (by Caleb) points to the fact that laypeople commonly ask aspiring or practicing lawyers how they would or do approach representing someone guilty of a heinous crime. I would add to the evidence of the public's discomfort with the seeming amorality of legal practice the fact that tv and movie dramatizations frequently show lawyers facing such moral dilemmas---and that often the "right" thing for the lawyer to do is to find some way to rat out or otherwise turn on his client. In the more sophisticated versions of these dramas, someone makes the rule-utilitarian argument, explaining that everyone has a role to play in our adversarial system of justice, and that even if a lawyer's skills occasionally spring a guilty person, that is a small price to pay for keeping the government honest and avoiding a descent into totalitarianism. That argument is made in such dramas, but rarely successfully.

The question I'd like to pose (as the title of this post indicates) is whether lawyers are uniquely, or even unusually, amoral? The answer is almost certainly not. People in sales, marketing, advertising, and similar fields must frequently pitch products that the public does not need, and that may well be of inferior quality to those of their competitors. Others design and market products---gas-guzzling SUVs, say---that impose substantial negative externalities on society as a whole. I could be wrong, but I don't think that people in these or other professions (e.g., the accountant who figures out how to save the wealthy client millions of tax dollars that would otherwise go towards public projects), come in for nearly the harsh treatment as lawyers do. And when they do---as in Thank You For Smoking, say---one sometimes gets the sense that the critical treatment works because it trades on negative stereotypes about lawyers (even when the person criticized is not technically a lawyer).

So why is the amorality of the legal profession singled out as especially problematic? The answer, I think, is that unlike advertisers, accountants, engineers, and salespeople, we lawyers claim to serve justice. If that's right, then the fascination with the particular injustices achieved by lawyers committed to justice resonates with the public in the same way that sex scandals involving the clergy do. Despite the low esteem in which the public hold lawyers, they expect better of us. And therein lies the rub: A homophobic minister who has a same-sex affair or a supposedly celibate priest who molests minors really has betrayed the ideals he preaches; but a lawyer who represents a guilty client has, by the rule-utilitarian standards of the legal profession, acted honorably. We cannot expect public condemnation of lawyers to abate because the criticism aims at the ideals of the legal profession rather than at deviations from that ideal. And that in turn is what makes Stimson's comments so despicable. As a lawyer, he ought to know better.

Attacking Firms That Represent Guantanamo Detainees

At the Volokh Conspiracy, Jonathan Adler notes a Washington Post editorial discussing an interview given by Deputy Assistant Secretary of State Cully Stimson. According to the report, Stimson pointed to a recent FOIA request seeking the names of law firms representing detainees in Guantanamo, adding, "You know what, it's shocking . . . . I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms . . . ." Not content to rest there, Stimson suggested that while some firms would "maintain" that they were taking these cases "out of the goodness of their heart," "others are receiving monies from who knows where, and I'd be curious to have them explain that."

Adler expresses the hope that Stimson was "shooting from the hip, rather than expressing official policy." So do I -- although I would note a piece of the story Adler misses: that the Wall Street Journal ran a column today by a member of its editorial board, in which "a senior U.S. official I spoke to" toes a similar line. The writer, in his words, says the official "speculates that this information [about white-shoe firms representing detainees] might cause something of [a] scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500." (emphasis added) Of course, the nameless official might be Stimson yet again. Still, let us hope, again, that this is not someone's idea of a government talking point, or a device to rally hardcore supporters.

I admit to flirting with the view that big firms should either cease doing pro bono work, while effectively paying others to do it for them, or at least limit themselves to pro bono work closer to their areas of specialization. And I certainly think there are reasons of self-interest, having to do with training, associate hiring and retention, and the need to ease cognitive dissonance, that are involved in firms taking on pro bono work of particular kinds; those reasons have nothing to do with the dark motives Stimson suggests, but are not exactly about "the goodness of their heart[s]" either. But I can only share Adler's view that Stimson's attack is just plain wrong. As Adler says: "All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent."

Adler notes one irony in Stimson's insinuating attack on those firms representing the detainees: that this administration has defended its judicial nominees from similar attacks by arguing that an attorney should not be judged by the position of his clients. I would add a second, targeted particularly at views like that of the WSJ editorialist above, who glibly describes these firms as working to "tilt the playing field in favor of al Qaeda." That suggests that providing counsel within the legal process to a person accused of acts of terrorism is nothing more than a collaboration with wrongdoing. Presumably, then, when a lawyer or law firm represents a "reputable firm" that is similarly accused of wrongdoing, it is again nothing more than an agent of wrongdoing, never mind that the process has not yet reached any final conclusion about the wrongness of the underlying conduct. Yet I doubt the editorialist, or the Wall Street Journal, would take a similar position with respect to law firms representing white-collar defendants. Indeed, that paper has been vociferous in attacking government tactics, like the Thompson Memorandum, aimed at undermining the provision of legal defenses for individuals and firms accused in white-collar cases. Of course, the alleged conduct at issue with respect to the Guantanamo detainees is much graver than that at issue in the white-collar cases. But so, too, the hurdles to the provision of legal process are far graver in the detainee cases, and papers like the Journal have been outraged by even the far more limited obstructions of legal process involved in the white-collar cases.

No, the principle remains the same either way. One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Cully, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.

Please see corrected post below

In the original version of my post of early this morning (see immediately below) I initially omitted the opening paragraph. I've corrected the error below.

De-Funding the War

Give President Bush at least this much credit: He seems to believe sincerely that his Iraq policy makes sense. How else to explian his decision to ignore the recommendation of the Iraq Study Group and add troops at a time when most Americans want them brought home?

Unfortunately, the same sincerity cannot be attributed to most Congressional Democrats and those Congressional Republicans who say they oppose the escalation/surge but are not willing to cut off funding because their standard talking point just won't wash. They say they don't want to make the troops pay -- through inadequate funding -- for a disagreement between the branches. But the troops would not bear the cost of a targeted funding cutoff, one which said that funds could not be spent for troop increases or, better yet, one which said that funds could not be spent in Iraq for any purpose other than ensuring the safety of the currently deployed troops during their expeditious withdrawal. To be sure, at some point, an extraordinarily specfic set of conditions on war funding would interfere with the President's prerogatives as Commander in Chief, and we might expect this particular administration to push the point. Because the courts would likely resist adjudicating such a dispute, there is a real chance that the administration could get away with pursuing its policy in violation of conditions set by Congress. Yet no funding cutoff will guarantee that congressional opposition to Bush's war plans will be ignored. Why not try a funding cutoff?

The answer, I fear, is political calculation. Hiding behind the bogus argument that they do not want to harm our armed forces in the field, those Senators and members of the House who oppose the Bush plan but also oppose a funding cutoff mostly fear the political consequences of taking a decisive measure. There are no good options for the United States in Iraq today, only terrible ones and disastrous ones. A conscientious legislator has a responsibility under these circumstances to pursue what he or she regards as the least terrible option. However, should the Senate and House succeed in foiling the Bush plan and/or bringing the troops home, they will share in the responsibility for the terrible (but hopefully not disastrous) consequences that follow; by contrast, if they merely make noise but permit Bush to do what he wants, they can continue to point fingers. Thus we have the sad spectacle of Harry Reid trying to outmaneuver Mitch McConnell so that the Senate can pass a non-binding resolution opposing the Bush plan.

This sort of political advantage seeking got us in the Iraq mess in the first place. Democrats who voted to authorize the use of force in Iraq back in 2002 claimed that they only did so to give the President leverage to put together an international coalition that would pressure Saddam either to come clean with UN weapons inspectors or peacefully cede power. But they also feared that a vote against authorizing war would subsequently be used to portray them as soft on national security. Those who voted for the war on that ground thus displayed political cowardice in an effort to ward off charges of insufficient patriotism. Then, as now, true patriots would put the lives of our fighting men and women ahead of political calculations.

New York Times suggests that Asians are Taking Over American Colleges

An article appeared in last Sunday’s New York Times, entitled “Little Asia On the Hill.” The story discusses the changing face of the undergraduate student body across the U.S., focusing primarily on the fact that Asian-American students hold a disproportionate number of seats at the elite colleges. At U.C. Berkeley in particular, the article points out, the undergraduate population is 41 percent Asian. This demographic development among California schools and colleges across the country is interesting, no doubt. It reflects a variety of developments, as the story observes, including the decline of affirmative action admissions in higher education. One might even note the irony that although many plaintiffs in lawsuits challenging affirmative action have been white, the beneficiaries of its demise have not been white students. This suggests that it was the very color-blind standards that opponents of affirmative action urged – and not affirmative action -- that was keeping large numbers of white applicants from gaining the admission to which they felt so entitled.

Notwithstanding the legitimate news value of the article, its tone – not to mention its title – suggests that the rising number of Asian Americans on college campuses might be something that we should evaluate critically for whether it represents a positive or negative development. The implicit message, moreover, is that if people do not like the new numbers, they should perhaps decide to do something about it. One cannot help but wonder, then, what exactly schools would do – perhaps enact the sorts of anti-Asian and anti-Jewish quotas that elite schools did institute not that long ago to limit admission of qualified applicants of the “wrong” race? Hinting at the potential downside of a disproportionately Asian Berkeley campus, the writer notes that “[w]hat is troubling to some is that the big public school on the hill certainly does not look like the ethnic face of California, which is 12 percent Asian, more than twice the national average.” One need not read too much between the lines to see that “some” are troubled both by how many Asian people live in California (“more than twice the national average”) and by how many of them attend the University of California schools.

When people debate the merits and demerits of affirmative action for African American and Latino students, those who favor it typically cite “diversity,” a somewhat nebulous concept that has come to mean the inclusion of racial groups that might – in the absence of affirmative action – have little presence in an educational or work environment. One of the problems with discussions of diversity, however, is that it can become (as it was in the past) a smoke screen for exclusion rather than inclusion. That is, if the complaint is that blindly applying the standard admissions criteria result in too many Asians, then calls for “diversity” cloak a desire to keep Asians out of the spaces with which a blind application process might have otherwise have supplied them. When affirmative action moves from promoting inclusiveness to promoting exclusivity, it ceases to distinguish itself meaningfully from conventional, old-fashioned race discrimination.
This recalls a discussion that Michael initiated earlier on this blog regarding moral progress. At times, looking at the number of people – or even the number of civilians – who have died on either side during a war does not tell the whole story of right and wrong. We want to know whether each side deliberately targeted civilians or, instead, made a special effort to avoid killing civilians, consistent with its objective (which should itself undergo moral evaluation). In the same way, the intention of affirmative action may be as important as its consequences. Expanding or altering the criteria on the basis of which undergraduate institutions select applicants as a means of giving African American students and Latino students greater access to the American Dream is quite different from changing criteria as a means of resisting “Little Asia On the Hill” -- preventing Asian Americans from disproportionately populating our nation’s colleges. I am quite troubled to see the comfort with which an article appearing in the New York Times seems prepared to conflate the two and to gaze upon the success of Asian Americans as a potential cause for alarm.

More Minimalism from the Roberts Court

Yesterday's Supreme Court decision in Norfolk Southern Railway Co. v. Sorrell was unremarkable in what it said, but striking in what it did not say. The case presented the question of whether the same standard of causation applies to the defendant's negligence and the plaintiff's contributory negligence in actions under the Federal Employers' Liability Act (or FELA). The Missouri Court of Appeals had said a different standard applies and the Court reversed.

So far so good. Yet the Court, in a majority opinion by Chief Justice Roberts, declined to address the question of what that standard is, going so far as to chide the railroad's lawyers for trying "to smuggle additional questions" into the case beyond those expressly described in the cert petition and grant. There is something to be said for not deciding difficult issues not squarely before the Court, but the question of how one proves negligence is not exactly a novel legal issue. It's something covered in nearly every first-year torts class, often in the first few weeks of law school. Moreover, as Roberts himself acknowledged, one can fairly characterize the question of what the standard is for plaintiffs and defendants as part of the question of whether they're the same. To say that this is outside the scope of the cert question is a little like saying that someone who used a scale to weigh a pail of apples and then to weigh a pail of oranges has gone beyond a mandate to ascertain whether the two pails (and their contents) are equal in weight. Yes, you could put the pails on opposite ends of a balance and thus determine their equality or inequality without determining their weights, but determining the actual weights is a perfectly valid alternative approach.

The Roberts opinion in Norfolk Southern is thus a rather extreme (albeit fairly harmless) example of the favorite maxim of Chief Justice Roberts: If it's not necessary to decide an issue, it's necessary not to decide the issue. The case shows that the maxim is at best an overstatement.

Democracy's Privileged Few

Josh Chafetz is a student at the Yale Law School, a frequent figure in the legal blogosphere, and the author of a new book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions. Wow! Pretty heady stuff for a still-student, and due cause for congratulations. They must put something in the water over New Haven way. Josh is flogging the book at Balkinization; take a look.

One thing Josh's book reminds me of that's long been of interest to me is a seemingly anti-democratic norm built into the daily routine of Congress itself. Under congressional rules, as one report notes, "Observers in the galleries may not take notes; pencils and pens can be confiscated; photographs are forbidden." That citizens (and others) are forbidden from exercising what in most circumstances would be a fundamental right to gather information and record it, in the very place in which the spectacle of open government is enacted daily (when in session), is a curious phenomenon and well worth noting. One can trace this norm well back into Parliament itself, and it's worth observing that the Senate itself operated initially behind closed doors, and the publication of debates and votes from that body was highly limited at first. Of course, that norm has long since faded in favor of open deliberations in both bodies (although from time to time the Senate, at least, holds a rare closed session, famously so during the Clinton impeachment). And yet the prohibition on note-taking remains. Perhaps Josh can speak to this if he gets the chance, although it may be rather far afield from his concerns. Surely some citizen-journalist, or just plain citizen, out there must be interested in testing this rule, although I would not bet on his or her success.

Equally interesting, although still further afield from Josh's book, is the fact that the rule does not apply to credentialed journalists in the press galleries -- one more way in which, despite the commonly accepted notion that the First Amendment consists of a set of generally applicable rules, both constitutional and statutory regimes do, in fact, privilege various "First Amendment institutions," including but not limited to the press.

[Cross-posted at Prawfsblawg.]

Trafficking in Formalism Redux: The Scalian Version

Last week I pointed out the utter formalism of requiring--as apparently, the traffic courts in New York and elsewhere do--that the prosecution introduce proof of such self-evident propositions as that a stop sign is a red octagon with the word "STOP" on it. (Post here). Yesterday's Supreme Court decision in United States v. Resendiz-Ponce is a nice counter-example. There, the Supreme Court acknowledged the general rule that an indictment must set forth the overt acts that the defendant allegedly committed, but held that the word "attempt," standing alone, was sufficient to connote both that the defendant intended to commit the offense (here, entering the country illegally) and took a concrete step toward doing so.

But to vindicate my use of the term "formalism" to describe the contrary approach, the Supreme Court's formalist in chief, Justice Scalia, filed a solo dissent. Scalia's dissent cites substantial prior precedent regarding the requisites of a valid indictment for attempt offenses and other offenses, and unlike the magic words approach of the "you didn't say octagon" traffic court cases, the underlying rule in Resendiz-Ponce has some functional value: It puts the defendant on notice of the specific charge against which he must defend. But even that functional purpose is more theoretical than real, since it appears that even Scalia would allow that an indictment would satisfy him if it stated that the attempt consisted of something as vague as "physical crossing of the border." That would give the defendant slightly more notice than the general allegation of "attempted entry," but it is hard to see how the inclusion of these only slightly more specific words in the indictment would ever make a real difference in the conduct of a case.

Interestingly, Justice Thomas, who typically agrees with Justice Scalia's formalism, did not join him in this one, and indeed, Justice Thomas was the lone dissenter in another case decided yesterday, Medimmune, Inc. v. Genentech, Inc. There, the issue was whether a patent licensee can bring a declaratory judgment action for invalidity where the licensee has paid royalties. The Court said yes in an opinion by Justice Scalia. Justice Thomas, invoking the highly formal doctrine of Article III standing, dissented. A parting of the ways for the Court's 2 leading formalists?

Marbury and Miranda

Here's a thought inspired by the fact that I'm teaching Marbury v. Madison in my federal courts class today: Much recent scholarship in the vein of popular constitutionalism, especially Larry Kramer's The People Themselves, makes the point that in its day, Marbury v. Madison was not the manifesto of judicial supremacy that it has since become. Kramer and others argue that John Marshall's point in Marbury was that the courts were not uniquely disqualified from making constitutional judgments; Kramer says that Marshall did not intend to say that the courts were uniquely qualified to make such judgments.

I'm not entirely convinced by Kramer (although I have sympathy for the view that political actors have an important role to play in filling out the meaning of the Constitution, as Barry Friedman and I argued in an article called Shared Constitutional Interpretation some years ago). But let's set that aside. Here I want to suggest that even if one buys Kramer's historical argument, Marbury may have legitimately BECOME a precedent for judicial supremacy because it has come to stand for that proposition in the public imagination. To the extent that the public have any views at all about the Constitution (and surveys repeatedly show that most people haven't a clue), they tend to treat Marbury as standing for the proposition that the Supreme Court has the final say about what the Constitution means. In light of that fact, for the Supreme Court, or worse, Congress or the President, to reassert the supposed original version of Marbury would be widely perceived as an assault on not just the Court, but the Constitution itself.

Something like this phenomenon occurred when, in 2000, the Supreme Court reaffirmed Miranda v. Arizona, holding that it was "a constitutional decision" that Congress could not change. Even though Miranda contained language that could plausibly be read to permit Congress to displace its requirement of warnings, the Court, including former Chief Justice Rehnquist, who had formerly criticized Miranda, understood that to rely on that language would be to miss what Miranda had become in the public imagination: namely, a precedent for the requirement of regularity and the rule of law in police practice. The Chief's actual opinion in Dickerson (the case that reaffirmed Miranda) had a variety of technical defects, but it correctly captured this "public" dimension of the case. Kramer and some of the other popular constitutionalists, I think, overlook such symbolic aspects of Supreme Court decisions in their call for a return to the original version of Marbury.

The Unitary Post Office?

Here's a further thought regarding Thomas's very interesting post on Saturday (and the follow-up in the comments) regarding the President's claimed authority to open mail without warrants, notwithstanding the law that prohibits the practice. As the comments note, at least with respect to the "foreign" mail, there is a familiar, if not very persuasive, argument that Bush's authority as Commander in Chief excludes congressional limitations on his ability to engage in necessary military tactics, including espionage, and thus including intercepting mail of foreign origin. To be sure, that argument is itself undermined by the signing statement's reference to specific authorization for such Presidential snooping. If, as the Administration claims, this sort of thing is an inherent and unlimitable power of the President, then he should be able to do it with or without specific authorization. But let's put that issue aside. I'm more interested right now in the claims regarding the exigent circumstances exception, which are not limited to foreign-origin or national-security-related mail.

With respect to exigent circumstances, the signing statement does not, so far as I can tell, claim any inherent unlimitable authority. Bush doesn't argue that his powers as "Postmaster in Chief" cannot be limited by Congress, and for good reason. The Constitution does not make him the Postmaster in Chief. So his claim is simply that, as Thomas suggests, the statute's silence with respect to exigent circumstances should not be read to preclude warrantless searches justified by exigent circumstances. That claim sounds in the idea--fashionable among conservative activists as well as conservative and even some progressive/centrist legal academices--that whenever Congress writes an ambiguous statute, federal administrative agencies, rather than courts, should resolve the ambiguity. This idea is closely connected to the theory of the "unitary" executive because the chief argument is that agencies are politically accountable through the President, in a way that courts are not. (One could also justify the preference for agency decision making over judicial decision making on expertise grounds, but this approach has been out of fashion for a couple of decades.) Thus, in this case, the theory would go: the post office is a federal executive branch agency; therefore the Executive, rather than the courts, should construe the scope of its authority to conduct warrantless searches of the mail.

The difficulty with the foregoing argument is that the Post Office is a so-called "independent" agency, specifically designed by Congress NOT to take orders from the President. (See the statute here.) But for those, like the true believers in the Bush White House, who adhere to the strong form of the "unitary Executive" theory, the very notion of an independent agency is anathema. As part of the Executive Branch, they say, the Post Office must ultimately be controllable by the President. The Supreme Court bought a related argument with respect to a first class postmaster in the 1926 case of Myers v. United States but subsequent decisions have essentially gutted that ruling. Accordingly, it's not plausible to attribute to Congress the intent of making the President the authoritative interpreter of ambiguity in a statute limiting searches of mail.

Ultimately, at least with respect to the exigent circumstances point, this is probably a case of the President who cried wolf. We are so accustomed to Bush signing statements that either gut the statute passed by Congress or construe it to mean the exact opposite of what Congress likely intended that we have a hard time recognizing a reasonable interpretation when one comes along. It strikes me as utterly appropriate to say that there is an exigent circumstances exception to the requirement of a warrant to open mail. The statute does not rule one out and we can easily imagine an exigency in which it would be madness to delay for even a second to obtain a warrant: e.g., a piece of mail that smells of gunpowder and is ticking. To continue the wolf metaphors, this signing statement -- or at least the exigent circumstances portion of it -- may be a sheep in wolf's clothing.

Global Warming Legislation

I’m all with Mike on the need for a “death tax”-like name for global warming. While we’re working on it, Congress could make fast progress with some “Patriot Act”-like legisation titles. With 2007 predicted to be the warmest year ever and Al Gore chasing an Oscar, the timing couldn’t be better. My suggestion to the new leadership of both houses is that they cue up a series of bills, aimed to be enacted at regular intervals--maybe one a month--each titled with a variation on the same basic name. I’m not sure what the name should be, but it probably ought to be something scary but optimistic, and not too Greenpeace. One possibility might be “The Natural Disaster Prevention ____________ Act of 200_.” Thus, for example, “The Natural Disaster Prevention Power Plants Act of 2007,” “The Natural Disaster Prevention Renewable Energy Act of 2007,” “The Natural Disaster Prevention Oil Importation Act of 2007,” etc. The Republicans might manage to kill some of it in the Senate, and the President might veto everything that made it to his desk, but as long as the proposed legislation stayed “on message,” it could push the debate in the right direction and keep the bad guys on the defensive.

Academic Freedom at the AALS

I've just returned from the annual meeting of the Association of American Law Schools (AALS), where one of the more interesting and well attended plenary panels addressed issues of academic freedom. The panel contained some impressive people: Elena Kagan, Geoffrey Stone, William Van Alstyne, and Stanley Fish, with Robert Post as moderator. And some of them addressed some interesting issues, including the recent imbroglio over the University of Minnesota Law School's decision to hire Robert Delahunty as a one-semester visiting professor to teach constitutional law. Now on the faculty at St. Thomas, Delahunty is formerly a longstanding senior attorney in the Justice Department's Office of Legal Counsel and is reportedly one of the architects and co-authors of some of OLC's "torture memos." Many readers are probably familiar with that particular controversy by now, and I won't review its specific details here. (Short version: a bunch of students became distressed when they heard Delahunty had been invited, and circulated a petition demanding that he be disinvited; that led to some public disagreements between members of the Minnesota faculty over whether there was any legitimate basis for objecting to his visit; as far as I know, the visit is still on.) Instead, I want to focus on a couple of related, though more general, points in Dean Kagan's presentation.

In essence, Kagan's position was that it would not violate principles of academic freedom for a university not to hire a professor (whether as an adjunct, a visitor, or on the tenure track) on the basis of moral opposition to things he has done or said in his earlier academic or other professional work. But it would violate those principles, she said, for a university to fire a tenured (or tenure-track, I think she said) professor on the basis of that same sort of opposition. On this view, there would have been no academic freedom problem with not inviting (or disinviting) Delahunty to teach as a visitor at Minnesota, based on opposition to his prior work at OLC. But there would be a problem if, e.g., Boalt Hall were to fire tenured faculty member John Yoo on the basis of the things he did and wrote at OLC while he was on leave from his faculty post. Before expressing those opinions, Kagan took an informal poll of the audience on these questions, and a show of hands revealed that the the overwhelming majority of the audience took the same position.

What do readers think? Does the distinction work? Kagan herself concluded her talk by expressing some qualms about it, noting that the percentage of non-tenured or tenure-track faculty members (i.e., adjuncts, visitors, etc.) at universities nationwide has increased dramatically over the past few decades. Does that make us uncomfortable with the distinction she would draw? If so, what's the remedy -- to extend academic freedom principles to short-time visitors, adjuncts, and the like, or to restrict tenured and tenure-track professors' enjoyment of those freedoms?

We Need a Scarier Term for Global Warming

With record-high January temperatures in my hometown of NYC and elsewhere yesterday, the words "global warming" were on many people's minds. Judging by overheard conversations, however, people do not appear to be adequately worried or even worried at all. And why should they be? With the exception of skiers and ski-slope operators, most people (myself included), enjoy a Balmy January day. What we who recognize the urgent need for action to avoid the truly catastrophic impact that global warming will likely have, we need is a much scarier term. We need the environmental equivalent of "death tax."

So far the main alternative to global warming is "climate change," which is preferable in that it doesn't sound affirmatively desirable, but at best neutral. Here are my (admittedly-not-very-good) candidates:

Coastal Flooding

Radiation Retention

Longterm Drought

Fossil Fuel Fiasco

Impending Doom

Carbon Death Blanklet

Where is Richard Nixon When You Need Him?

The Daily News reported this week that when President Bush signed a postal reform bill in December requiring government officials to obtain a warrant before opening first-class mail, he issued a statement reserving the right to forego a warrant in emergency situations. The President’s “signing statements” are well known by now. Whenever a bill contains a provision he dislikes or thinks might restrict his power, he accompanies his signing of the bill with a statement intended to nullify the provision. So far, he has challenged more than 750 provisions, far more than the number challenged by all other presidents combined. Perhaps the most famous Bush signing statement is the one accompanying the McCain Amendment, which banned torture of detainees by U.S. troops. That statement asserted that Bush would construe the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.” Although written in coded language, the message was clear: Bush did not view the law as binding.

Bush’s latest signing statement is more explicit. In signing the Postal Accountability and Enhancement Act, he wrote that he would construe the warrant requirement “in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.” The reference to “exigent circumstances” comes from Supreme Court cases interpreting the 4th Amendment, which generally requires police to obtain a warrant before conducting a search. Under an exception the Court has carved out, police can search without a warrant in “exigent circumstances” – meaning that immediate action is required and it would be impracticable to obtain a warrant. Bush appears to be claiming that officials can rely on the same exception when it comes to first-class mail. But it’s not clear they can. The exigent circumstances exception is an inference from the 4th Amendment warrant requirement. The postal bill imposes its own warrant requirement, and I have seen no evidence that Congress intended to permit exceptions to that requirement for exigent circumstances. It may seem odd that a search permissible under the 4th Amendment could violate a federal statute, but in truth it’s not. The Constitution establishes the floor for individual rights, not the ceiling. Congress is free to provide greater rights if it chooses.

Still, one might argue that Congress assumed the exigent circumstances exception would apply and that the view of the president signing the bill is evidence of that assumption. But that leads to a bigger problem with Bush’s signing statement. The warrant requirement imposed by the postal reform bill is not new. It has been part of the law since 1970 when Congress passed the Postal Reorganization Act. The bill signed by Bush merely moved the requirement from one part of the United States Code to another. Indeed, it was only mentioned in the bill under a section entitled “Technical and Conforming Amendments.” So even if one thinks the view of the president who signs a bill should be relevant to its interpretation, Bush’s view of the warrant requirement is worthless. Instead, we should be asking Richard Nixon what he thought. And unfortunately, tricky Dick isn’t around to tell us.

Rehnquist Redux

In private correspondence and comments on the blog, some readers questioned my dismissal of the impact of the late Chief's drug addiction on his work. Here I want to explain why I think it's ultimately not the real story and then suggest how it nonetheless might be thought relevant to an evaluation of his tenure.

It's true, as some have observed, that we can't ever really know what impact, if any, the meds had on Rehnquist's jurisprudence, but here are 2 reasons to think that the impact was negligible. First, one sees no evidence of any change in Rehnquist's opinions or behavior on the bench in 1981, when he detoxed and ceased taking the pills, or for that matter, at any earlier or later point. Second, the only evidence of bizarre behavior in the FBI files is of how he behaved after he had checked himself into the hospital. This behavior, including paranoia and disorientation, was apparently caused by withdrawal from the drug, rather than the drug itself. The condition that led Rehnquist to check himself into the hospital in the first place was slurred speech. That's an effect, but hardly one that warrants hand-wringing about the incapacitation of a Supreme Court Justice.

The real story, if there is one, in the drug episode, is about hypocrisy. As a Justice, Rehnquist showed little sympathy for criminal defendants caught up in the war on drugs. Yet he himself was using medication in a way that may have been illegal. If so, that would indeed be a source of concern, but it's not clear that his use of pain meds was illegal. I haven't read the file itself, but according to the NPR story, it's possible that Rehnquist was taking an extraordinarily high dose because the original prescribing physician hadn't placed a limit on refills.

Bottom line: There are many reasons for liberals to be troubled by the impact on American law of William Rehnquist. There is no reason, other than prurient interest, to worry (or worse, to revel in) the fact that he became addicted to pain meds and then had a rough time taking himself off them.

The Rehnquist FBI File

A wire story (available here) discloses two disturbing tidbits about the judicial confirmation of the late William Rehnquist, first to be an Associate Justice in 1971, and then to be Chief Justice in 1986. First, it appears that in preparation for both sets of confirmation hearings, the FBI was instructed to dig into the backgrounds of witnesses who were going to testify against confirmation. That might be okay, I suppose, if the FBI routinely did such checks on all witnesses, pro as well as con. We could imagine that the Senate would want to know homw much credence to give various witnesses. But focusing the FBI only on opposition witnesses is a clear misuse of law enforcement.

Second, the files reveal that the FBI was aware in 1971 of the racially exclusive covenant in a deed for a property that Rehnquist owned. That fact wasn't disclosed until Rehnquist's second confirmation hearing, 15 years later, when Rehnquist testified that he had only very recently learned of the provision. But if the FBI knew about it in 1971, it's at least a plausible inference that Rehnquist did too. If so, then he lied during his second confirmation hearing. Absent further details, it's nearly impossible to say anything definitive about what he knew and when he knew it.

Unfortunately, most of the media attention to this story has thus far focused on a wholly different (non)issue: the fact that Rehnquist was addicted to painkillers and briefly became delusional when, in 1981, he was detoxing. It would be a shame if this admittedly salacious but ultimately unimportant detail were to garner all the attention here. Political use of law enforcement is a serious abuse of public power; the fact that a person suffering pain became addicted to his meds is completely understandable.

The "Negative" Virtues of Democracy

Isaiah Berlin famously described two concepts of liberty, one negative, the other positive. Negative liberty consists of rights against state interference with basic human activities: freedom of movement; freedom of speech; freedom of religion; etc. Although the notion of positive rights is now commonly used to refer to rights to affirmative assistance from government in achieving certain minimal material benefits (as under the South African Constitution but not the U.S. Constitution), Berlin used the term positive liberty to refer to the liberty of self-governance. Berlin worried about abuses of authority in the name of positive liberty (e.g., an autocrat claiming to act on Rousseau's general will), and so liberal democracy in the sense of majority rule with protections for individual rights was the natural consequence of his view.

Inspired by Berlin, I wonder whether we might not distinguish two concepts of democracy--or perhaps two functions of democracy might better capture what I have in mind. In mature democracies, we are accustomed to gauging the success of our political life by asking how well our lawmakers govern: Do they respond to the views of a majority of citizens? Do they legislate in the public interest? (These two do not always go hand in hand but let's put that issue aside.) These sorts of questions fall within what I would call a positive concept (or function) of democracy, to distinguish it from a much more basic, but often overlooked, negative concept (or function) of democracy. The negative function is taken for granted in mature democracies: to avoid periodic anarchy.

In autocratic societies, the death of the leader can be a perilous time, as rivals jockey for power. Sometimes open warfare breaks out among supporters of various candidate rulers. To be sure, there are systems of succession other than democracy for ensuring a smooth transition to power. Hereditary monarchy is the most obvious. Oligarchy is another solution; the death of one leader does not deprive the governing group of power. But neither of these is perfect, as intra-familial or intra-oligarchic violence can erupt. More broadly, in non-democratic regimes, the absence of a democratic pedigree does not deprive a ruler of legitimacy, and so there is a constant risk of a succession crisis. Somali warlords who, only a month ago, supported the Islamists, now pledge their loyalty to the Ethiopian-backed transitional government. With no democratic criterion for distinguishing legitimate from illegitimate regimes, it pays to back a winner. The risk of chaos is also high in nominal democracies in which the military lacks a strong commitment to civilian rule. Perhaps the best one can hope for in such circumstances is that periodic military coups are taken as almost part of the established political order, so that they can occur bloodlessly, as in Fiji.

During the post-election contest of 2000, The Onion ran a piece describing actual civil war between red and blue states. What made the article funny was the sheer preposterousness of the idea that open warfare would erupt. Our commitment to democracy--including obeisance to judicial rulings--was and is just too strong. That doesn't mean that our democracy works perfectly, or even very well, along the positive dimensions, but it is a credit to the negative strength of democracy in America, and as tragic events around the world illustrate, that's worth quite a lot.

Trafficking in Formalism

The Talk of the Town section of this week's New Yorker magazine carries a story about a lawyer who specializes in fighting traffic tickets for drivers of limos and taxis. The story relates, among other things, a case in which a police officer testified that he pulled over the defendant after he (the officer) "observed the vehicle go through a marked stop sign . . . ." The defense attorney moved to dismiss the case against her client on the ground that the officer had not given a sufficiently detailed description of the stop sign. The judge granted the motion. "A stop sign's an eight-sided red sign with the word 'STOP' on it, has to face oncoming traffic, has to be posted near the corner," the savvy defense attorney explained to the New Yorker writer.

Anybody with an ounce of common sense will recognize this case as either a travesty or a farce. It is reminiscent of medieval trial by ordeal or at least of what Roscoe Pound termed with appropriate derision, "the sporting theory of justice." Let us indulge the remarkable assumption that there was some doubt about what the officer meant by a stop sign. Perhaps it was not only his first day on the job but his first day in the country, and where he came from, the word "stop sign" means what we call "fire hydrant." Or perhaps just before writing the ticket he had suffered a blow to the head, thus causing him to mistake a man wearing a large red hat for a stop sign. If so, a rational legal system would permit the defense to challenge the officer's testimony on cross-examination or to offer independent evidence about the limits of his perception, memory or veracity. But it is simply ludicrous to dismiss a case because the officer used the phrase "stop sign" to describe a stop sign.

Nor does it make matters better that in this instance hyper-formalism was being used to serve the interests of a criminal defendant. For one thing, running a stop sign is a "violation," an offense deemed less serious than a misdemeanor. The maximum penalty is a fine and therefore, no one's liberty is at stake. But even if the case were much more serious, that would hardly be a reason to dismiss it on the ground that the chief prosecution witness failed to utter the requisite magic words. Suppose the defendant had committed involuntary vehicular manslaughter as a result of running a stop sign. Would that somehow make it MORE justifiable to dismiss the prosecution because of the officer's failure to mention the stop sign's octagonal shape? On the contrary, it would convert farce into tragedy.

The New Yorker article suggests that the court's hyper-formalism in the stop sign case is actually typical, and my own admittedly limited experience suggests that this is true in other places as well. When I was a third-year law student in 1990, I externed for a semester in the Somerville, MA district attorney's office, prosecuting relatively low-level offenses, including drunk driving cases. I distinctly remember my supervisor explaining to me the importance of offering evidence of every element of the charged offense, lest the judge dismiss the case for failure of proof. She gave the following example: Drunk driving means operating a motor vehicle under the influence of alcohol on a public way. Suppose your chief witness testifies that the defendant was weaving in and out of traffic on Middlesex Avenue and that a breathalyzer test showed he had a blood-alcohol level of twice the legal limit. The judge will dismiss the case if your witness does not also testify that Middlesex Avenue is a public way. She made clear that this was an actual example. And the courthouse was located just off Middlesex Avenue!

Are there any broad lessons to be drawn from the idiocy of the rules of proof employed in at least some local courts? Perhaps just one. Formalism in law was thought to have been discredited by the middle of the twentieth century but it has lately made a comeback among some judges and academics. They argue that adherence to rules that do not appear to do justice in particular cases will often lead to better results over the long run, because of various distortions that occur when judges are free to make all-things-considered judgments. That's true as far as it goes, but the traffic examples may show a distinctive pathology of formalism: judges socialized in the virtues of formalism will adhere to rules that have no plausible chance of serving justice in the aggregate. Formalism for ultimately pragmatic ends may inevitably devolve into formalism for formalism's sake.

Welfare for Wal-Mart

In her compelling book Nickel and Dimed, Barbara Ehrenreich chronicles her experiences working “under cover” in various low-wage jobs, including a stint as a clerk in a Minneapolis Wal-Mart. She reports in general that workers in such jobs, which at the time of her research (1998-2000) made roughly $6-$7 per hour, face many economic hurdles beyond the obvious fact that if they have any dependents then they are living below the government’s definition of the poverty level. (One of the things that I must admit had not occurred to me until I read the book was that on this salary few people can afford a security deposit for an apartment, and therefore many live in single room occupancy situations where the cost of living is increased by such factors as the absence of a kitchen.) Depending on which reports one reads, it appears that roughly half of Wal-Mart’s employees cannot afford even the cheapest of the health care benefit plans offered to them by their employer.

All of this is in keeping with a strategy that I understand Sam Walton emphasized in his memoirs -- maintaining and increasing profit margins by working to ensure that the growth of workers’ productivity exceeds the growth of their wages and benefits. Today’s Wall Street Journal reports on another tool that Wal-Mart is employing to implement that strategy: a computerized scheduling system that will move many of its workers away from predictable shifts in favor of staffing based on the number of customers in the store at particular times. The front-page article indicates that workers in Wal-Mart stores where this system has been implemented complain that it deprives them of the ability to “know when or if they will need a babysitter or whether they will work enough hours to pay that month’s bills.” Some also have asserted that it has been used to cut back on the hours of the highest-paid sales associates. But it does improve the efficiency of staffing, which the retailer apparently hopes will translate into greater customer satisfaction, presumably leading to higher profits.

Many who criticize Wal-Mart’s employment practices rail against the unfairness of practices that enable the nation’s largest private employer to optimize its profits by pushing its workers toward (and in some instances below) the poverty level. I agree. But a company that profits in this manner is doing so not only on the backs of its employees, but also on the backs of all taxpayers -- who, among other things, foot the bill for the public assistance for which many of these workers undoubtedly qualify. It’s really nice that Wal-Mart is now selling fancy light bulbs that use less electricity, in an attempt to give more people the choice to become more environmentally conscious (as reported, coincidentally, this morning on the “Today” show). But I would suggest that no corporation of Wal-Mart’s size and profit levels should be permitted to pay employees so little that they qualify for public assistance.

Perhaps companies the size of Wal-Mart should be subject to a separate, meaningful minimum wage. Perhaps (as some have proposed) they should be fined when they “dump” employees into Medicare and other public programs by cutting back on wages and benefits. Or perhaps the answer is something else entirely. But in all events, it seems clear that despite its recent, highly-publicized efforts to improve its image, Wal-Mart is not going to fix this problem voluntarily. I hope, therefore, that we can move toward dealing with Wal-Mart’s labor practices as the public problem that they are, and take steps to address this problem on a national scale.

The Jurisprudential Critique of Moral Progress

My post for yesterday suggested that we as a society, and the international law of war, have made substantial moral progress since WWII and even since the Vietnam War. Moving more closely to my area of expertise, I want to explore a linkage between disbelief in moral progress and jurisprudence.

No prominent thinker in American law has been more critical of the notion of moral progress than has Justice Scalia. He has repeatedly ridiculed the notion of "evolving standards of decency" used in the Supreme Court's 8th Amendment jurisprudence and not just because he sees this concept as a way for liberals to import the (squeamish) values of Western Europeans into the interpretation of OUR Constitution, but also because he appears to question the fact of progress. Justice Scalia regards it as a mistake to assume that societies evolve from worse to better. Societies sometimes don't improve; they rot.

There are at least two versions of this point that are consistent with Scalia's overall jurirsprudence. The textualist/originalist version goes like this: Moral progress may well be possible and perhaps over the long run it occurs. But insofar as the law responds to moral progress, it should do so through legislation, not judicial interpretation of open-ended constitutional text. The point of a written Constitution, in this view, is to prevent backsliding. It is an insurance policy against rot, rather than a judicial license to act as the agent of progress. Thus, a good textualist/originalist need not have a view about the possibility or likelihood of moral progress; he only needs a view about the proper institutional setting in which it should be recorded.

One can easily find Scalia (and his fellow travelers) making the textualist/originalist argument against judicial decisions based on moral progress but one can also find him (and some of them) making a stronger point about moral progress. (I leave the finding of the relevant quotations as an exercise for the reader.) The stronger point denies even the possibility of moral progress. Interestingly, there are in turn two versions of the stronger point, and they are dramatically contrary views. One is moral skepticism, a view that questions whether there is any objective reality to statements about morality. On this view, the proposition that slavery is wrong is a proposition not about slavery itself but about (if anything) the tastes, preferences and moral sentiments of persons living in a society that condemns slavery as wrong. Richard Posner advances something like this view in his Holmes lectures and the book based on them, although, as the respondents to the lectures noted, Posner uses the philosophical categories in an unorthodox and somewhat sloppy way.

Whether or not Posner is a moral relativist or a moral skeptic, you can bet your bottom dollar that Scalia is neither. Although he nowhere states the point, Scalia's opposition to the idea of moral progress may well stem from his religious faith. For if you believe that the source of morality is God's Holy Word, then you would be highly unlikely to regard value innovations like equal treatment for those who engage in same-sex intimacy as moral progress. Change in values, insofar as that change moves away from traditional religious values, is, by definition, not progress but rot. (Those who doubt that Scalia believes that religious values define his moral values should review the oral argument in the Ten Commandments cases, in which he asserted that "our laws come from God.")

Judicial Pay and Basic Economics

Mike's post below regarding judicial salaries roused the economist in me. Although I believe him when he says that "the Court would not hold that failure to increase salaries, even in the face of rapid inflation, violates Art. III," I have to ask how that could be true. Having taught the difference between "real income" and "nominal income" to eager undergraduates too many times to count, I find it stunning that there is no judicial recognition of the difference.

What could the reasoning be? Article III states, in relevant part: "The Judges ... shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." On "plain meaning," this clause is ambiguous at best, and it even leans slightly toward the interpretation favoring the protection of judges' real incomes, not just their nominal incomes. Note, for example, the use of the term "compensation" rather than, say, "sum of dollars." When we move to virtually any other interpretive crutch, though, how could this language not protect judicial compensation from inflation-induced diminution? Doesn't substance over form mean anything? And what about the drafters' intent? The purpose of the provision, so far as I am aware, is to protect the judiciary from being punished by the political branches for its decisions, thus protecting judicial independence. Given that my first partisan thought on this was that now would be a bad time to raise judges' salaries, given that I personally don't like the current composition of the federal judiciary on ideological grounds, I find it pretty easy to imagine that politicians might think along similar lines. Interpreting Article III to require the maintainance of judges' real incomes (adjusted for inflation, not relative to academic or other salaries) seems like a slam dunk, to borrow a phrase. Again, I know that the law says otherwise; but the law can be such an a--.

On the merits, Mike suggests that Roberts might be arguing "that the President and the Senate can make idealism a criterion for judicial selection, but they can't use a de facto pay decrease as the mechanism for ensuring such idealism." If that is what Roberts is arguing, though, I don't get it. I'm still enough of an economist to think that the best--and maybe the only--way to ensure that someone is doing something idealistically is to pay them poorly or not at all. (Of course, given that judicial salaries are still well over $100k, we're not talking about poverty wages.) If they're being paid well, what other mechanism would we use? Personal testimony? I guess we have actually been expected to believe judicial nominees who have claimed that they have not pre-judged certain issues (or, perhaps, have not even thought about Roe v. Wade), so we might be expected to smile and nod when a nominee says, "The new $400,000 salary of a federal judge in no way motivates me to want this job," but forgive my skepticism. If we really do want to require idealism of our judges, I cannot think of a better way to enforce that than by letting their real salaries decline. (Again, though, I think that doing so violates the only reasonable reading of the Constitution.)

Death Tolls and Moral Progress

There is no silver lining in the grim news that over 3,000 members of the U.S. armed forces have now died in the Iraq war. Iraq Body Count estimates that 55,000 Iraqi civilians have died and a Lancet/Johns Hopkins study that uses statistical sampling methods (and which has been roundly criticized but nowhere debunked) estimates excess civilian deaths at over half a million. These are horrifying numbers which no amount of historical perspective can diminish, certainly not for the individuals who experience the loss or for their loved ones. Nonetheless, it is instructive to compare and contrast them with other wars.

The most salient U.S. comparison is probably Vietnam. The Vietnam Memorial has over 58,000 names of Americans killed. Reliable estimates of Vietnamese casualties are hard to come by, but they are certainly in the hundreds of thousands if not millions. Perhaps more importantly for my purposes here is the shift in American targeting strategy. In World War II, the U.S. bombed civilian population centers for the express purpose of breaking the enemy's will: some of these targets also included heavy industry, but that was not always the primary objective of "strategic" bombing. The same was largely true of Operation Rolling Thunder in Vietnam, which, at some point, came to include, as part of its objective, destroying enemy morale by killing civilians.

In the current war, by contrast, it really is accurate to describe nearly all civilian casualties caused by American forces (as opposed to insurgents and militia) as "collateral." As Richard Dawkins notes in The God Delusion, by the standards of relatively recent history, Donald Rumsfeld was a soft-hearted liberal in his concern to avoid inflicting civilian casualties. That should count as moral progress, even if it leaves us in a place that is only less awful by comparison.

I shall have more to say about the idea of moral progress, and the role it plays in American jurisprudence, tomorrow, but I'll limit this post to the observations made thus far.

Judicial Pay

In his 2006 end-of-year report , Chief Justice Roberts calls the failure of judicial salaries to keep pace with inflation--and their falling way behind salaries for elite private practice lawyers--a "constitutional crisis." The report cites statistics marking this relative decline, as well as a decline in federal judges' salaries relative to those of all workers, and then spins the following argument:

"In the past six years, 38 judges have left the federal bench, including 17 in the last two years. If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers‘ goal of a truly independent judiciary will be placed in serious jeopardy. Inadequate compensation directly threatens the viability of life tenure . . . ."

The Chief Justice goes on to state:

Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase. Do not get me wrong–there are very good judges in both of those categories. But a judiciary drawn more and more from only those categories would not be the sort of judiciary on which we have historically depended to protect the rule of law in this country.

These are two somewhat different sorts of arguments. The first argument strikes me as truly "constitutional" in the sense that a decline in the real value or perhaps even in the relative value of judicial salaries can be deemed a salary decrease in violation of the salary protection that Art. III affords federal judges. The Court would not hold that failure to increase salaries, even in the face of rapid inflation, violates Art. III, but Roberts appears to be saying that even if there is no judicial power to mandate a cost-of-living adjustment, Congress has a duty to ensure that inflation does not effectively reduce the salaries of Art. III judges. In Larry Sager's language, the obligation of Congress to ensure that federal judicial salaries keep pace with some benchmark (the Chief Justice uses legal academic salaries) is an "under-enforced" constitutional norm.

The second argument--that federal judges should not simply be the very wealthy or those who are used to lower pay--has something to be said for it, but it is not obviously of constitutional dimension. Such persons, by hypothesis, do not regard federal judicial salaries at current levels as a disincentive to serve, and thus their independence is not threatened by current salary levels. Indeed, one could imagine that Congress might, on policy grounds, want to keep federal judicial salaries where they are precisely because it wants to attract judges motivated by a sense of selfless idealism. The Chief Justice says in his report that federal judges, even with a salary increase, would continue to be motivated by a sense of service, and I tend to agree with that, but Congress could draw a contrary conclusion on policy grounds. Perhaps we can understand Roberts to be making a constitutional argument if we interpret him to be saying that the President and the Senate can make idealism a criterion for judicial selection, but they can't use a de facto pay decrease as the mechanism for ensuring such idealism.