Fighting the New Cold War and the Old One

No, the new Cold War is not a reference to chilly relations between Putin's Russia and the U.S., although some have warned of a new cold war on that front. The new Cold War I have in mind is the one to which Seymour Hersh refers in a scary article in the current New Yorker. Hersh explains that the saber-rattling at Iran is part of a larger Bush administration policy to side with the Sunnis against an emerging "Shiite crescent" in Iran, Iraq and Lebanon in a Middle Eastern cold war. Working behind the scenes with the Saudis, Hersh's sources say, the administration has been seeking to counter the spread of Iranian influence. The article is scary because it notes that many of the foot soldiers in the confrontation with the Shiites are al Qaeda or members of similar groups, such as the Muslim Brotherhood, and that these people hate Americans (whom they regard as crusading infidels) even more than they hate Shiites (whom they regard as apostates). With friends like these . . . .

From a certain, reality-based, perspective, the new Bush policy is reckless bordering on insane. Even while we're battling a mostly Sunni insurgency in Iraq, and after having eliminated the most effective bulwark against Iran (Saddam Hussein), we're confronting Iran in a broader war between Sunnis and Shiites. Under these circumstances, one only hopes that this confrontation remains a cold war, rather than becoming a very hot one. (Obviously, the part in Iraq is already boiling, and the piece in Lebanon is at least simmering.)

But from another perspective, there's a certain logic to the current policy. Recall that according to Richard Clarke, in the immediate wake of 9/11 Rumsfeld wanted to go after Iraq because it had more targets than Afghanistan. (In an interview with Jim Lehrer Rumsfeld denied making this comment or says he was joking if he did or that Dick Clarke must not like him or something.) Of course, that's insane. As Clarke notes, it would be like attacking Mexico in response to Pearl Harbor. Yet if your whole approach to military strategy is rooted in the cold war (the old one, that is) then you'll see nation-states as the main threat. That's why the Bush administration came into power and immediately shifted national security attention from al Qaeda to Iraq. That's why the administration has so botched the reconstruction jobs in Afghanistan and Iraq---because they see aggressive states as posing the real threat, underestimating the danger of stateless terrorists operating out of failed states. And that's why now, even as Iraq is in chaos, the focus has shifted to the most menacing nation-state threat (assuming the North Koreans remain bought out): Iran.

Or not. Perhaps psy-ops agents within the Pentagon deliberately sold Hersh a bill of goods so as to spook the Iranians, and thus improve the American bargaining position in the "neighbors conference" that the U.S. has just agreed to join. That would at least suggest a non-insane rationality behind the current policy.

Would Congress Confirm A New Vice President?

Today's assassination attempt on Dick Cheney raises the intriguing question of whether the 110th Congress would confirm a Republican as Vice President under the 25th Amendment. With South Dakota Democratic Senator Tim Johnson still unable to report for duty, the Democrats hold a razor-thin 50-49 advantage on the days when Joe Lieberman decides that he feels like being a Democrat. And with so many of the senators, both R and D, running for president, the outcome of actual votes in the Senate on any given day is a true toss-up. This is, therefore, one of those times when the Vice President's only constitutional duties -- presiding over the Senate and breaking ties -- actually makes a difference.

The last time that the 25th Amendment was called into play, the Vice Presidency was vastly different from what it is today. Nelson Rockefeller was the last Vice President who was really a seat-warmer. (Dan Quayle might have been a lightweight, but he had a West Wing office and Poppy Bush did give him an actual policy portfolio.) When Rockefeller left office, Jimmy Carter is rightly credited with having raised the profile of the VP office by giving Walter Mondale a West Wing office and relying on him as a trusted advisor.

Dick Cheney has vastly magnified the influence of the office, yet he operates in the shadows. I wonder, therefore, whether a Democratic Congress might rationally decide that it is better to have no Vice President at all than it would be to fill the office if it were to become vacant for the remainder of the 110th Congress.

Eleven Angry Men and Women

In permitting the Libby jury deliberations to proceed with 11 jurors rather than seating an alternate, the judge is gambling that there will be no further need to excuse jurors. An alternate could have been seated but that would have required the jury to start its deliberations from scratch.

The operative rule is Federal Rule of Criminal Procedure 23(b), which states:

Jury Size.

(1) In General. A jury consists of 12 persons unless this rule provides otherwise.

(2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court's approval, stipulate in writing that:

(A) the jury may consist of fewer than 12 persons; or

(B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.

(3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.

Apparently prosecutor Fitzgerald had urged the judge to seat the alternate, but exercising his power pursuant to 23(b)(3), Judge Walton plowed ahead.

So what happens now if another juror is excused because he or she is exposed to press coverage of the case or for some other reason, such as illness? Then the jury will be down to 10, at which point the existing jury would have to start over, unless both the prosecution and defense agree to a 10-person jury. Given that it takes 12 to convict but only one to hang a jury, with each dismissed juror the defense is more likely to request a mistrial. Starting over later would be worse than starting over now, obviously. But query whether a jury instructed to begin their deliberations anew with the substitution of an alternate juror really does that. Isn't it more likely that the jury would rush through issues it has already deliberated about, at most pausing to get the new juror up to speed and to allow him or her to ask questions and raise issues? If so, does that suggest that seating alternates after substantial deliberations is problematic?

The DePauw Sorority Purge and Truth in Advertising

It was widely reported over the weekend that the national organization of the Delta Zeta sorority "evicted" 23 members of the DePauw University chapter because they were less attractive than the unpurged members. The national organization denies that appearance was the basis for the purge but the incident drew fire from both within and outside DePauw. A few reactions:

1) To my knowledge, neither Indiana law nor DePauw's internal non-discrimination policy specifically forbids appearance discrimination, although the university may have rules requiring sororities and other student organizations to be open to all students. (Searches of the DePauw website yielded a large number of pages no longer available.) Certainly, federal law doesn't forbid appearance discrimination. The stories (including one in the NY Times) indicate that the purge also targeted minority students, which undoubtedly would violate various prohibitions. For my purposes, however, I'll focus on the legal, if odious, appearance discrimination.

2) When the Supreme Court held in Boy Scouts v. Dale that the Boy Scouts had a First Amendment right of (non)association to exclude members based on their sexual orientation, the majority allowed that an organization could crystallize a discriminatory membership policy in the course of litigation. I wonder whether a truth-in-advertising rule might not be a better way to trade non-discrimination against associative freedom. Under such a rule, you can be the Straight Scouts, but only if you acknowledge it up front. Likewise, Delta Zeta could be the "beautiful sorority" or the "beautiful thin white sorority" but again, only by telling the world that this is who they are. Many people in fact discriminate even if they're unwilling to admit it. Thus, to give two examples: a) white people are more likely to tell pollsters that they plan to vote for black candidates than actually to do so; b) politicians who support blatant discrimination against lesbians and gays (e.g., same-sex marriage bans) will say (when speaking to a national audience) that they personally oppose discrimination. Making people put their discrimination where their mouths are might lead to less discrimination.

3) Policing a truth-in-advertising policy would be tricky because organizations may not realize exactly what their membership criteria are until challenged. Before the first vegan or observant Jew applies to join Delta house, the frat may not have a policy of opposing vegan and observant Jewish members. But once they think about it, they conclude that a vegan or kosher member would be unable to contribute to or enjoy the nightly pig-roast that is the center of frat life. Just how far in advance must the frat decide upon the exclusion? I don't have a perfectly workable answer but perhaps it would be fine to allow ad hoc grounds to emerge for discrimination, but only if the organization fully owns them. Thus, a condition of the Boy Scouts winning their case is, or should have been, that they thereafter advertise their homophobia (or thereafter change the policy in a verifiable way). Likewise, in the Hurley case, the Boston St. Patrick's Day Parade should have been called something like "the all-heterosexual and closeted homosexual Boston St. Patrick's Day Parade."

4) The solution proposed above in 3 (which is not entirely serious but not entirely a joke either) is only necessary where some statute or other source of law provides for a right of access, of course. But with the truth-in-advertising option, it should be easier to enact broad public accommodations and anti-discrimination laws and policies without fear that they will unduly restrict freedom of (non)association.

The Pace of Litigation

My FindLaw column later this week recaps the DC Circuit opinion upholding the Military Commissions Act insofar as it eliminates habeas jurisdiction for enemy aliens outside the U.S. As I'll explain there, it is difficult to justify the assumpton in Judge Randolph's opinion that the constitutionally required scope of habeas is no greater than what it was in 1789. Here I'll just make one quick observation about pace.

The Bush administration first began detaining enemy combatants from the Afghanistan war in late 2001. Unless the latest case is expedited, it won't be heard by the Supreme Court until next Term, meaning a decision as late as June 2008. That will be the third time the U.S. Supreme Court will have heard a case challenging procedures for detaining alleged alien enemy combatants. And if the Court reverses the DC Circuit, that will undoubtedly give rise to further wrangling among Congress, the administration and the courts over what procedures are permissible. A policy of indefinite detention appears to be succeeding through infinite litigation.

Tom Vilsack, We Hardly Knew Ye

The departure of Tom Vilsack from the Presidential field means that we now have a Presidential trivia question to rival "who was Ross Perot's running mate in 1992?" (Answer: James "Who am I? Why am I here?" Stockdale). The new question, of course: Who was first to announce his candidacy for the 2008 Democratic nomination for President? What else can we take away from Vilsack's ill-fated campaign that barely was? Herewith, three small lessons:

1) If your name is "Vilsack," you start in electoral politics with a large disadvantage. Kudos to the former Governor for advancing as far as he did. (No, I don't have a good explanation for why "Obama" is less of a handicap. It just is, somehow.)

2) The favorite son phenomenon is basically a thing of the past. Remember 1992, when Iowa Senator Tom Harkin won the Iowa caucuses because the other candidates didn't bother to campaign there? Remember how Harkin's campaign completely fizzled afterwards? This should have been a clue to Vilsack that he was doomed from the start: Had he won in his home state, the victory would have been dismissed in the way that Harkin's was; had he lost, that would have been proof positive that his campaign was DOA.

3) There may be no logical stopping point to the ever-earlier start of the Presidential campaign. Vilsack quit because he couldn't raise serious money, given the crowded field. Partly that was due to domination by more charismatic candidates (read Obama) who didn't start any earlier than he did, but it was also partly due to the fact that other leading candidates started their fundraising campaigns much earlier. John Edwards has been running more or less since election day 04, and Hilary Clinton has been running more or less since election day 2000 (some might even say earlier). To the extent that the fundraising drives the schedule, even sensible reforms in the primary schedule (of the sort urged here by my co-blogger Craig Albert) won't affect the start date of the race (although they could affect who among the survivors of the "money primary" wins the actual nomination). Campaign finance reform could alter the dynamic, but it would likely take reforms too strong for the Supreme Court to uphold. Bottom Line: Jenna Bush and Chelsea Clinton should get started raising funds for their 2028 runs asap.

The Charter at 25, and Scalia and Binnie on Constitutional Interpretation

The Canadian Charter of Rights and Freedoms turns 25 this year, and the anniversary is being marked by a variety of conferences. This story reports on a dialogue between Canadian Supreme Court Justice Ian Binnie and U.S. Justice Antonin Scalia recently at one such conference. Both Justices made what I think are interesting and newsworthy comments.

Binnie, says the story, "extolled the virtues of measured judicial activism over an archaic notion of 'frozen rights' that do not evolve with the times." He added: "'The ability of the courts to move with the times has served this country very well. . . . I say that if you erect a silo over our court system based on a theory of originalism, it is a very good reason to throw it out.'" Finally, he said, "'[J]udges are as much a part of society as anyone else, and they can recognize a dead letter when they see one.'"

Scalia, for his part, derided the notion of living constitutionalism, saying, "'It is blindingly clear that judges have no greater moral capacity than the rest of us to decide what is right.'" Scalia suggested that living constitutionalism, in the story's words, "simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts." Scalia ridiculed Roe v. Wade for failing to decide when a fetus becomes human life. Finally, responding to a discussion of a Canadian Supreme Court decision involving criminal justice, he said, "'I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence.'"

A couple of thoughts, based on the story as quoted. First, whatever the virtues of "mov[ing] with the times," Justice Binnie is surely too simple in suggesting that the vehicle for doing so must be the courts. The Charter itself provides an amendment procedure, and of course its scope might be read narrowly to allow for legislative developments that the courts would then enforce, so there are lots of ways to move with the times that don't involve aggressive Charter interpretation. His "dead letter" remark raises the disturbing specter of judges not only expansively interpreting the Charter, but also selectively underenforcing it on grounds of social progress. And Binnie offers no metric to assess his claim that the Canadian courts have served the country well in the post-Charter era; at the least, he would have to weigh not only the direct effects of rulings, but also any damage to full and vigorous citizen participation in the political process caused by the judicialization of central issues of Canadian life. I might add one point in mitigation of Binnie's remarks, however: Canada's Charter also provides an override mechanism, so we might see courts there as having greater warrant to interpret the Charter in a more aggressive manner than they would in the U.S., since the Canadian system provides a mechanism for political intervention in court rulings that falls short of the demanding requirements for constitutional amendment.

Given those failings in Binnie's remarks, you might say Scalia takes the debate on points. And that would be true if "Good Scalia" -- the Justice who preaches a narrow judicial role for methodological and democratic reasons -- had shown up. But it looks as if "Bad Scalia" attended the conference. I don't mean that as a comment on his political views. Rather, I mean it in the sense of a Scalia who undermines his own view of the ideal judge as one who simply interprets the original understanding of the Constitution without injecting his own political views, by making arguments that appeal directly to those political views. Under Scalia's ideal vision of constitutional interpretation as I understand it, we ought not give a damn what the Justice thinks of "questionable groups such as bigamists and pederasts." (And, I'm sure Scalia would add sotto voce, "homosexuals.") The Constitution protects their rights or does not; and if it does not, the political process can decide whether to protect them or not. But he has little or no business selling his vision of the Constitution based on his own substantive views about who the "questionable groups" in our society are or what the Constitution ought to say about them. Such statements lend ammunition to those who argue that his supposedly loyal interpretation of the Constitution happens to favor views he doubtless holds personally. I'm not saying his interpretive method is therefore a ruse, nor am I critiquing his personal political views. But his arguments about the narrow judicial role would be much stronger if he could resist the temptation to share his own presumably irrelevant political views and use them as support for his substantive views on the Constitution, as he seems regularly to do at such conferences.

Finally, I wonder whether readers or co-bloggers who are more expert on criminal law can assess Justice Scalia's claim that, in 20 years on the bench, he has not "not seen a case where I thought there was the slightest doubt about the person's innocence.'" Leaving aside his subjective views, may I ask: On a reasonably objective view, do you think he's right? Can any readers supply the names of cases either argued before the Court or in which cert. was sought in the past 20 years in which, in your view, any reasonable person would harbor more than "the slightest doubt about the person's innocence?"

A Muskie Moment

Do you remember your President Nixon? Yes? How about Ed Muskie, the onetime Democratic frontrunner, whose teary-eyed speech in response to attacks on his wife lost him the 1972 nomination? Muskie claimed that the supposed tears were merely melted snowflakes but it was too late; the damage was done. Readers too young to recall this bit of ancient history might usefully compare Muskie's undoing to the Howard Dean "scream" that may have had something to do with the room's acoustics.

But I digress. I bring up Muskie because of the news reports that in awarding custody of the remains of Anna Nicole Smith to the guardian ad litem of her orphaned daughter, Florida judge Larry Seidlin broke down in tears. Seidlin was moved by the realization that the media circus that his courtroom had become had been par for the course for Ms. Smith. "She had to live all her years under this kind of exposure,” Seidlin reportedly said. “I just get a week and half and this thing wore me out.”

Perhaps Judge Seidlin--about whom I know nothing other than what I have read about in the Smith case--is just a teary guy. But if not, might I suggest that there is something just a bit odd about breaking down in this particular case? Judges hear testimony about tragedies on a daily basis. One might expect a judge now and then to break down after presiding over a trial involving a brutal murder, rape or assault. Or perhaps a moistened eye might be appropriate (or at least understandable) when a judge must sentence a low-level criminal (a drug mule, say) to decades in prison under a statutory scheme that gives her no discretion to impose a lighter sentence. But what is so terribly tragic about the choice of what plot of earth will house the remains of a woman already gone?

To be clear, my quarrel is not primarily with Judge Seidlin. What is perhaps most disturbing about this story for me is its resonance with the reaction of the British public to the death of Princess Diana. I confess that I found even that reaction mystifying but at least it's explicable as the breaking of a kind of emotional dam. Brits, having for so long been conditioned to keeping a stiff upper lip, finally lost it when they lost the "People's Princess." Every premature death is, of course, a tragedy, but with thousands of Americans dead and wounded in a counterproductive war, not to mention much larger numbers of Iraqi civilians having suffered a similar fate, is it not the tiniest bit self-indulgent to focus our national grief so overwhelmingly on this one celebrity?

Gerhardt on the Catholic-Majority Court

Courtesy of Mirror of Justice comes a link to a paper by Michael Gerhardt of Duke, titled Why the Catholic Majority on the Supreme Court May Be Unconstitutional. Here are some relevant snippets from the introduction:

* * * * *

In this Essay, I examine two ways in which our national leaders may have damaged the rule of law in the ways in which they appointed the current Catholic majority on the Roberts Court. First, [in] their zeal to control the Court through their appointments to the Court our national political leaders demonstrated (perhaps unintentionally) a regrettable faith in the rule of law. . . . The problem with insisting that the maintenance of a government of laws depends on appointing people with the right kinds of ideological commitments is that it sacrifices another principle on which our faith in our system of government of laws in turn depends. I call this other principle the golden rule of constitutional law: On the Supreme Court, justices recognize that they must treat others' precedents as they would like their precedents -- the ones with which they approve -- to be treated.

A second, serious problem with the current Catholic majority on the Court is that the appointments which made it possible may have been unconstitutional. The selections of some if not all of these justices may have violated several constitutional prohibitions -- Article VI's express prohibition of religious tests for federal office, the Fifth Amendment's Due Process Clause, and perhaps the First Amendment's prohibition against the establishment of religion -- especially as these prohibitions would likely be construed by the current Catholic majority of the Court.

* * * * *

A short but interesting and provocative paper. I'm especially interested in the second argument, given that I have an article on similar themes, but which comes to very different conclusions, coming out shortly in the William & Mary Bill of Rights Journal. My own view is that the Religious Test Clause does not prohibit the kinds of activities Gerhardt talks aboout -- essentially, Presidents or others using religion as a proxy for or indicator of a particular kind of character, jurisprudential or otherwise, when selecting and approving Justices. I won't elaborate on that argument here. Suffice it to say for now that Gerhardt's argument here relies substantially on the view that the current majority would rely on a plain meaning reading of the Religious Test Clause, and that this clause unambiguously forbids the kind of conduct he is discussing here. I disagree that the clause is unambiguous in a plain-meaning sense. Like many constitutional provisions, it is a term of art, whose meaning must be filled in at least partially by a sense of the historical understanding of the phrase. And that history, along with a variety of policy arguments, counsel a narrower reading of the clause, and certainly don't suggest that Presidents or Congresses are forbidden to consider the moral and personal character of judicial nominees, for which religion is one valid indicator.

Those who are more sympathetic to his argument might consider that he generally appears to believe that Presidents and Congresses engaging in the fully discretionary selection and approval of Justices (and other government officials) are bound by not just the Test Clause, but by Fifth Amendment Equal Protection, at least in a Constitution-outside-the-courts way. So are Thurgood Marshall, Clarence Thomas, and Sandra Day O'Connor also potentially unconstitutional? Not to mention all the white male Justices throughout history who were chosen in the context of a broader unwillingness to consider members of certain races or genders as potential Justices? Or the Clinton cabinet, which its designers said should "look like America?" Or the Bush 43 cabinet, which does look like America?

Is the Supreme Court Final?

Last year, in Sanchez-Llamas v. Oregon, the U.S. Supreme Court held that a suspect's failure to raise his rights under the Vienna Convention on Consular Relations in a timely fashion under state law barred him from later arguing, in a habeas corpus petition, that the arresting officers' failure to inform him of his Convention rights rendered his conviction invalid. Although the ruling rested in part on the Court's conclusion that a Vienna Convention violation does not give rise to an exclusionary remedy, in the course of upholding the procedural bar, the Court rejected the argument that it was bound to accept as authoritative the interpretion given the Convention by the International Court of Justice in prior cases involving the United States. The ICJ had held that a state procedural bar would be ineffective under such circumstances. In rejecting the notion that the ICJ interpretation is binding, the Supreme Court (per CJ Roberts) appeared to invoke a principle of constitutional avoidance. Under Marbury v. Madison, the Court noted, the (U.S.) judiciary says what the law is, and that includes treaty law. Accordingly, the Court refused to construe the Vienna Convention as requiring binding deference to the ICJ. After giving the ICJ's ruling "respectful consideration," CJ Roberts concluded that his interpretation was superior.

Sanchez-LLamas thus left open the question of what would happen if a treaty required the Supreme Court to accept as binding the interpretation of that treaty by an international court such as the ICJ, even as its invocation of Marbury suggested that the Court would treat a requirement for such binding effect as unconstitutional.

Meanwhile, human rights lawyers have increasingly turned to international human rights tribunals for relief where the U.S. courts have failed them. Consider, for example, a case currently before the Inter-American Commission on Human Rights. Jessica Gonzales sued individual officers and the police department after they failed to enforce a protection order, resulting in her estranged husband's murdering their three children. Gonzales sued but her case was ultimately dismissed by the U.S. Supreme Court. She then filed her petition before the IACHR, which will hold a hearing on the case on March 2. Ms. Gonzales is represented by my former student (now a supervising attorney in the Columbia Human Rights clinic) Carrie Bettinger-Lopez and her students, as well as various public interest organizations. They have compiled the key documents here and here. Even if the petition succeeds, it will not directly "reverse" the Supreme Court, so that the Marbury power will undoubtedly remain intact. But in the long run, as cases of this sort proliferate, the United States Supreme Court will come under increasing pressure to find ways to give effect to the judgments of "higher" courts. Perhaps it will do so as a matter of comity, retaining the formal power to make its own independent decisions, or perhaps, more radically, it will accept a subordinate status, at least with respect to the meaning of international law.

Indian "Apartheid," Hidden in Plain View

Ten years ago this month, South Africa’s post-apartheid constitution went into effect, laying the foundation for the establishment of a non-racial democracy with a mandate to overcome the effects of decades of institutionalized inequality. The new South African charter has been widely heralded as among the world’s most progressive, entrenching a broad range of civil, political, economic, social, and cultural rights as foundational guarantees and explicitly mandating courts to consider international human rights norms when interpreting its fundamental rights provisions.

With formal South African apartheid receding into the past, however slowly, as South Africans work arduously to overcome its legacy, what does it mean to invoke the concept of “apartheid” in the world today more generally? Comparisons to South African apartheid have abounded for years, and have invariably been controversial. In recent months, for example, former President Jimmy Carter has argued to some controversy that Israel’s “rigid system of required passes and strict segregation between Palestine's citizens and Jewish settlers in the West Bank” is tantamount to apartheid. Later this week, when it meets to consider India’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the U.N. Committee on the Elimination of Racial Discrimination (CERD) could confront the contemporary significance of apartheid in another context: the systematic and well-documented discrimination against India’s 165 million Dalits, or so-called untouchables. The issue is suggested in the title of a comprehensive report issued last week by Human Rights Watch and the NYU Center for Human Rights and Global Justice, “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables.’” According to the report, to which students in the NYU International Human Rights Clinic contributed extensive research and analysis:

Dalits endure segregation in housing, schools, and access to public services. They are denied access to land, forced to work in degrading conditions, and routinely abused at the hands of the police and upper-caste community members who enjoy the state’s protection. Entrenched discrimination violates Dalits’ rights to education, health, housing, property, freedom of religion, free choice of employment, and equal treatment before the law. Dalits also suffer routine violations of their right to life and security of person through state-sponsored or -sanctioned acts of violence, including torture.

Caste-motivated killings, rapes, and other abuses are a daily occurrence in India. . . . A 2005 government report states that a crime is committed against a Dalit every 20 minutes. Though staggering, these figures represent only a fraction of actual incidents since many Dalits do not register cases for fear of retaliation by the police and upper-caste individuals.

Both state and private actors commit these crimes with impunity. Even on the relatively rare occasions on which a case reaches court, the most likely outcome is acquittal. Indian government reports reveal that between 1999 and 2001 as many as 89 percent of trials involving offenses against Dalits resulted in acquittals. [link]

Much of the factual information in the report is uncontroversial, coming directly from Indian governmental and nongovernmental sources and previous Human Rights Watch reports. Indeed, perhaps more noteworthy than any of the specific facts documented in the report is that a couple of months before its publication, in December 2006, the Prime Minister of India, Dr. Manmohan Singh, made a statement resting on similar premises — namely, that discrimination against Dalits is “fundamentally different from the problems of minority groups in general” and that South African apartheid may constitute “[t]he only parallel to the practice of untouchability.”

With such widespread acknowledgment of the pervasive and systematic nature of discrimination against Dalits, one plausibly might quarrel with the HRW/NYU report not for its characterization of that discrimination as “apartheid,” but rather for its suggestion that these abuses are in any sense “hidden.” To be sure, there are obvious differences between formal South African apartheid, which was lawfully enforced by the state itself, and substantive caste-based “apartheid” in India, which persists in the face of an extensive array of constitutional and statutory provisions that outlaw untouchability and caste-based discrimination and justify state intervention to eliminate those practices. But despite these laws, abuses against Dalits remain no less widespread or systematic for lack of formal legal sanction by the state. State actors remain complicit in countless abuses against Dalits and, at the same time, frequently fail to stop abuses committed by private actors. While affirmative action programs have played a significant role in improving the status of some Dalits, these limited government interventions have been inadequate given the overwhelming extent of caste-based discrimination in Indian society. Such abuses are hidden only to the extent that they “hide” behind their formal illegality while, in many contexts, remaining as visible as ever.

Analogies to South African apartheid not simply are potent rhetorically, but also have potential legal significance, if taken seriously, given the extent to which apartheid has been formally condemned by the international community. At the height of South African apartheid, the U.N. General Assembly adopted numerous anti-apartheid resolutions and effectively expelled South Africa from its meetings. An international convention against apartheid entered into force over thirty years ago and now has 107 state parties. Eventually, even the U.N. Security Council concluded that South African apartheid constituted a threat to international peace and security and adopted a number of anti-apartheid resolutions, including one mandatory resolution under Chapter VII of the U.N. Charter imposing an arms embargo against South Africa. Today, many years after the formal demise of South African apartheid, the Rome Statute expressly defines apartheid as a crime against humanity over which the International Criminal Court has jurisdiction.

Remarkably, India’s official report to CERD — which, in fairness, was submitted long before Prime Minister Singh’s recent statement — contains no information on discrimination against Dalits or other lower caste groups, which the Indian government had refused to acknowledge as encompassed within the Convention at all. This stance is unfortunately consistent with India’s more general resistance to meaningful engagement and cooperation with international human rights monitoring institutions — for example, by refusing to permit U.N. special rapporteurs to visit the country to examine various human rights concerns. There are poignant ironies in this resistance, which disregards CERD’s clear conclusion that caste-based discrimination falls well within the Convention’s protections against discrimination on the basis of “descent.” For one thing, when the Convention was being drafted, it was India which proposed to include discrimination on the basis of “descent” within its ambit, apparently with caste-based discrimination in mind. For another, it was India which first put the issue of South African apartheid itself on the international community’s radar screen. Around the same time that it was drafting its own post-independence constitution — which, like the new South African constitution today, was widely heralded at the time as a progressive model with a mandate to overcome past injustices and transform Indian society — India became the first nation to raise the issue of South African apartheid in the U.N. General Assembly. For many years thereafter, India continued to play a leading role in the global anti-apartheid struggle, during a period when many Western nations chose instead to make accommodations with South Africa’s apartheid-era regime.

Rather than regarding international human rights monitoring institutions as obstacles to be resisted, India could instead choose to regard greater engagement and cooperation with these institutions as a constructive means to help address what is widely acknowledged as a serious human rights challenge, as Meenakshi Ganguly has noted. Such an approach to the “hidden apartheid” of discrimination against Dalits would set an important example to other countries, and certainly would be more faithful to India’s own pioneering role in challenging the international community to help bring South African apartheid to an end.

Links: “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables’”; audio commentary by Professor Smita Narula, NYU Center for Human Rights & Global Justice and co-author of the report (English, Hindi)

It's Google. This Must Be Belgium.

As cyber-geeks the world over know, last week a Belgian appeals court upheld the order of a Belgian trial court forbidding Google News from including Belgian newspaper content on its website. (I have been unable to locate an English-language version of the most recent decision. The link above includes an English version of last year's trial court ruling.) The latest decision includes fines of a few million dollars for the time during which Google was unlawfully linking to the Belgian news sites, which is real money to normal people but not to Google. I admit to not following this story quite as closely as some of my more teched-up friends, and thus I could be getting this all wrong, but with that disclaimer, I must say I don't have much sympathy for Google's argument in this dispute.

Google News aggregates news stories from newspapers around the world and displays them on a single web page. Clicking on a given story directs you to the website of the newspaper from which the story is drawn. There are 4 potential copyright violations here, and based on the terse trial court opinion, it's hard to tell whether Google was found liable for all of them, but it's worth noting them in any event.

1) Deep-linking. Some European courts have found that so-called "deep linking," in which one site links to sub-pages rather than homepages of other sites, is an unlawful appropriation of the linked site's intellectual property. Google News clearly deep links. I don't know much (read "anything") about Belgian copyright law, but as a general matter, it strikes me as unwise for copyright law to forbid deep-linking, which is essential to much of the work of internet search engines.

2) Copyright in blurbs. The very short descriptions of news stories that appear on the Google News homepage may contain copyrighted info, at least for "lead stories," which typically contain the first one or two sentences of the linked story. I think copyright law ought to treat this as fair use, but perhaps Belgian law doesn't.

3) Robotic copying. In order to generate the content for Google News, Google's own servers need to make electronic copies. That act of copying may itself be deemed illegal. This is similar to a provision of the Digital Millennium Copyright Act in the U.S., which makes the playing of a legally purchased CD or DVD by a computer technically illegal, because the copyrighted code is first loaded into RAM, i.e., copied. This is just stupid, in both contexts. Whether via fair use doctrine or some doctrine of implied license, this shouldn't count as a violation, so long as a new copy is not made available to others.

4) Cache. Many of the Belgian newspaper plaintiffs have a policy of posting their content free on their websites for a limited period and then making it unavailable or charging for it after that. However, Google News makes available a free cached copy of material on its own website even after the newspapers have taken the free material down. I don't see how that isn't a blatant copyright violation. Case closed.

To be sure, Google could rationally have a policy of only posting links to a news source on Google News if that source agrees thereafter that Google News will be able to post the story via cache even after the source removes it from its own free site. But it hardly follows that Google gets to impose that policy on Belgian (or other) news sources without their consent, or that Belgian (or other) news sources should be presumed to consent unless they include lines of code in their pages that block Google from aggregating. I think I agree with those observers who say that the newspapers have more to gain than to lose from inclusion in Google News, but the point here is that it should be their choice to make.

Unless I've misunderstood this whole case. If so, never mind.

The Newly Constitutionalized Code of Civil Punishments

Philip Morris is remarkable on a number of levels it seems to me, the most immediate of which is how the Court divided: what issue would you have predicted that Breyer, Roberts, Kennedy, Souter and Alito would line up against Stevens, Thomas, Ginsburg and Scalia?

On a somewhat more substantive level, it seems remarkable for how quickly the Court is stealing the "tort reform" thunder from the Republican Party.

On a clearly more substantive level, this decision continues the growing "jurisprudence" that has accreted, in about a decade (since BMW v. Gore (1996)), establishing firm constitutional limits on the "jury system" across the states. That jurisprudence is now quite substantial: TXO Production v. Alliance Resources (1993) (awards that are "grossly excessive" can violate fundamental fairness and therefore DP); Honda Motor v. Oberg (1994) (punitive damages awards by juries must be subject to judicial review); BMW v. Gore (awards can be grossly excessive if they bear no reasonable relationship to the damages caused by the tortfeasor, if the tortfeasor's conduct isn't sufficiently "reprehensible" or if the award is excessive compared to like cases); Cooper Industries v. Leatherman Tool (2001) (the judicial review of jury verdicts awarding punitives must be "de novo"); State Farm v. Campbell (2003) (an award where the ratio of punitives to consequential damages award was 145-to-1 is presumptively excessive). . . .

What has been of deepest interest from a constitutional perspective in this line of cases, imho, is the evolving justification for limiting punitive damges. What the Court has said, as far as I can tell, is that because civil defendants are not accorded the protections afforded criminal defendants, punitive damages pose an acute danger of arbitrary deprivation of property, which is heightened when the decisionmaker is presented with evidence having little bearing on the amount that should be awarded. Thus, in Philip Morris where some of the instruction may have been interpreted as directing the jury to base the award on harm done to other victims (not the one then in court), this majority seemed hell bent on protecting Philip Morris's "property" from the potentially arbitrary deprivation an excessive damages award would represent. This is both a curious definition of "property" and a curious use of the Supreme Court's increasingly scarce capacity to resolve cases.

Of course, complicating this "code" is the fact that the head counts in a couple of these decisions (and some others not mentioned) muddled the results issued and that the justifications for these holdings have, when characterized in subsequent opinions, well, drifted substantially. As for Philip Morris, my colleague Bill Childs at TortsProf puts it this way: the decision seems "prone to causing confusion and difficult to imagine trial courts finding helpful."

Punitive Damages Decision

I don't usually use this space just to post news but I thought it worth pointing out that the Supreme Court today issued a remarkable ruling on punitive damages. In Philip Morris USA v. Williams the Court held that the due process clause forbids a state from including in the measure of punitive damages harm done to persons other than plaintiffs. Among other things, the case produced an interesting alignment. Breyer wrote the majority opinion, which was joined by Roberts, Kennedy, Souter, and Alito. The dissenters were Stevens, Scalia, Thomas, and Ginsburg. Discuss amongst yourselves.

Student Happiness

In her column in this morning's New York Times, Ann Althouse criticizes John Jay Osborn Jr.'s call to law professors to stop "making our students so unhappy; stop calling on them; listen only to volunteers; don't dictate how they should think; let them tell their own stories." (Althouse and Osborn are both law professors. Osborn is also the author of the Paper Chase.) Althouse thinks that the best way to respect students' "individual autonomy" is not to try to make them happy but to "teach them what they came to learn: how to think like lawyers." She believes that's best done by teaching from cases rather than devoting class time "to the personal expression of law students."

I'm doubtful of the conventional wisdom that law school is mostly about "learning to think like a lawyer." Certainly there are ways of thinking that are especially important to lawyers. A reasonably well educated young adult has already had plenty of experience with them all, though, with or without law school. To the extent that law school is about a "way of thinking," it's mostly about learning to rely on certain ways of thinking consistently in the appropriate situations.

I think Althouse has it right on the personal expression issue, though--although only on Osbornian pro-happiness grounds. A law school class is usually a lot of fun when a talented instructor in good form guides the discussion in interesting directions. Especially in big classes, long expressions of personal views by students--who are usually new to the issues--are often excruciating.

Marriage and Procreation

A Washington State gay-rights group calling itself the Washington Defense of Marriage Alliance has taken an innovative approach to protesting that state's refusal to recognize same-sex marriage. Late last month, the organization successfully filed a petition for a ballot initiative that, if passed, would make procreation a requirement for legal marriage. As stated in the organization's press release, the measure would:

add the phrase, “who are capable of having children with one another” to the legal definition of marriage; require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled; require that couples married out of state file proof of procreation within three years of the date of marriage or have their marriage classed as “unrecognized;” establish a process for filing proof of procreation; and make it a criminal act for people in an unrecognized marriage to receive marriage benefits.

The organization also has in the works two more ballot initiatives. One would prohibit married couples with children from divorcing or separating. The other would automatically confer married status on a couple that has a child. As the WDMA freely acknowledges, these are all idiotic proposals. Their point is to dramatize the hypocrisy of the argument---accepted by the Washington Supreme Court last July in Andersen v. King County ---that marriage can be restricted to straight couples because of the state's interest in child rearing. The WDMA states: "By getting the initiatives passed, we hope the Supreme Court will strike them down as unconstitutional and thus weaken Andersen itself."

That's a nice idea, but there's no chance that the voters of Washington will actually pass the initiative. It's best seen as a means of focusing attention on the flaws in the argument accepted by the Andersen court.

However, the initiative does raise an intriguing possibility for inter-state manipulation of Supreme Court precedent. Experienced impact litigators know that timing often matters for a successful litigation strategy. If you want the Court to strike down abortion restrictions, it helps first to establish a precedent invalidating contraception prohibitions. Likewise, if the Court rejects the "protect the children" rationale for restricting marriage to procreative straight couples, it will have a harder time accepting that rationale as a basis for sustaining same-sex marriage bans. So suppose that the population in some state strongly opposed some law of type X, so much so that it is not enough for voters in that state simply not to have X-type laws, but that they pass a law of type Y, which is the reductio ad absurdum of X. Then, when someone successfully challenges Y, the precedent makes it that much easier to go after X. Care would have to be taken to avoid having the lawsuit against Y be deemed collusive, but we can imagine circumstances in which the strategy would work. For now, though, same-sex marriage bans are almost certainly not among them.

Sports and the Rule of Law

Yesterday's New York Times Sports section carried a front-page article describing a rules crackdown by NASCAR. I confess up front that I know virtually nothing about NASCAR or the particular rules that are at issue. The article noted, though, that NASCAR officials had decided to try to distance their sport from its outlaw past (apparently, the sport started with moonshiners outrunning "revenooers" on country roads in the states of the old Confederacy) in order to broaden its already considerable appeal to suburbanites both inside and outside the South. The theory, evidently, is that a sport cannot be taken seriously by modern Americans if it is well known that the rules are winked at and that cheating is even expected.

I do know something about professional basketball. One of the accepted truths among NBA types is that the league's explosive growth from the 1980's onward has been based on emphasizing the superstars. Magic, Bird, Jordan, Shaq, and their heirs are able to put fannies in the seats and increase TV ratings and merchandise sales. The corollary to this is that the league openly allows and even encourages unequal enforcement of the rules. When Larry Bird was fouled, he could get a three-point play by a "continuation" of his move that defied reason. Magic Johnson could take three or four steps so long as he was making a spectacular pass. Michael Jordan could draw a foul in a key situation simply by being near someone. And Shaq is allowed to commit offensive fouls with impunity apparently because he is so big that it is unreasonable to notice that he flattens men who have established their defensive positions.

What is extraordinary about the NBA is that these player-specific violations of blind justice are not only acknowledged but even celebrated. Hubie Brown, a former coach and broadcaster, would laugh and say things on official NBA broadcasts like "He hasn't been in the league long enough to get that call against Kobe," and "The refs aren't gonna make that call in Chicago." Such comments never, to my knowledge, evoked denials or discipline from the league. (The league does crack down on some things, though, such as unacceptable clothing choices and fighting with fans.) Contrast this with the NFL and MLB. Even though there is a lot of complaining in football about the rule called "roughing the passer," I have never heard anyone claim that certain quarterbacks get special treatment, only that all quarterbacks are either too exposed or too coddled. In baseball, you'll occasionally hear muttering that certain pitchers and batters receive the benefit of the doubt on balls and strikes; but this is denied by the leaders of the sport and is officially prohibited.

Although something of a reach, I find the political slant on this interesting. What might be the ultimate red-state sport (stock car racing) is now embracing the rule of law as a way of legitimizing itself in the eyes of swing voters. Meanwhile, the ultimate blue-state sport (i.e., the sport most closely associated with African-Americans and with urbanism) celebrates its choice to openly ignore its own rules. Maybe the NBA's legitimacy is not yet suffering for its lack of adherence to the rule of law, but I view NASCAR's choice as something to celebrate (even if I will never actually watch the sport).

Equal Time for the Flat Earth Theory?

If you have ever wondered why American religious fundamentalists object to the teaching of evolution in public school but not to the teaching of geology, cosmology and other sciences that make findings contrary to the Biblical account of creation, wonder no more. Some such fundamentalists, it turns out, do object to the whole shebang, especially the big shebang that started it all off. Texas legislator Warren Chisum recently made headlines when he circulated to his colleagues a memo from Georgia legislator Ben Bridges that claimed, among other things, that evolution cannot be taught in public schools because it is a religious viewpoint. And not just any religious viewpoint, but specifically a Jewish viewpoint. According to this fact sheet from a group affiliated with Representative Bridges, hundreds of years before Charles Darwin set foot on The Beagle, Kabbalist rabbis had formulated the modern tenets of science, including the Copernican theory, the age of the universe, the Big Bang, and an expanding universe.

The principal reaction to Chisum's circulation of the Bridges memo has been sadly predictable: condemnations of Bridges and Chisum for anti-Semitism. I say sadly because I read the Bridges view as a spectacular compliment to medieval rabbis. Without modern mathematics or scientific equipment, they managed to get an astounding number of details right. Add the names of Maimonides and Nachmanides to the honor roll of philosophers and scientists who were way ahead of their time. Until reading about the astounding accuracy of the Kabbalist predictions, my personal favorite had been pre-Socratic philosopher Democritus, who postulated an atomic theory of matter.

Despite its obvious oddities, the Bridges view of the world has a certain internal logic to it. The fact sheet does not explain how Kabbalists converted Charles Darwin and thousands of other non-Jewish scientists to their cause. Indeed, it barely mentions Darwin except to claim (wrongly) that modern biologists are not Darwinian. But the causal argument is implicit: The Kabbalists couldn't possibly have just guessed right, and as non-Christians, the Jewish mystics couldn't have had access to actual revealed Truth, so the only explanation for the supposed agreement between medieval Jewish mystics and modern science must be a vast conspiracy to substitute the false Kabbalist view of the universe for the true Biblical one. Can you picture the Oliver Stone movie? No? How about Mel Gibson?

"Academic" Freedom for All

In response to Paul's interesting post on the distinctive characteristics of universities, I'd like to register a vote for their non-distinctiveness. My point has both a constitutional dimension and a policy dimension.

As a matter of constitutional law, I think it would be very difficult to make an argument that an institution denominated a university, or the faculty thereof, is entitled to First Amendment protection for academic freedom beyond the freedom from government censorship enjoyed by all speakers. In general, First Amendment doctrine rejects such institution-specific protection. Thus, the Supreme Court has (essentially) rejected any constitutionally obligatory privilege of reporters to protect sources, and while the decision so holding, Branzburg v. Hayes, may have been subject to legitimate criticism when it was handed down in 1972, it seems more correct today, when millions of people can call themselves journalists in virtue of blogging. Any attempt to provide a distinctive shield to the institutional press would necessitate speaker-based distinctions that would be constitutionally dubious themselves.

To be sure, the Supreme Court has suggested that universities have some special status, most prominently in dicta in Rust v. Sullivan, the 1991 case upholding the "gag rule" that forbade doctors receiving federal Title X funds from even mentioning abortion to their patients. In response to the worry that the ruling would permit a state to fund its universities only on the condition that they teach or research from a particular perspective, the Court invoked a still-earlier decision for the proposition that the First Amendment places special limits on the ability of government to condition funding of universities on sacrifices of academic freedom.

As a professional academic, I'm grateful for the special protection the Court purports to afford me and my employer, but as a constitutional lawyer, I don't think it justified. Nearly every enterprise would benefit from a rule of law that forbade employers or the state from stifling free expression. And conversely, as Paul's post notes, some universities may choose to define themselves in ways that limit traditionally protected academic freedom where the special mission of the university or its subdivision--be it religious, military or philosophical--demands agreement on some principles.

Does this mean that the state can, for example, insist that biology professors only teach and write from the perspective of "intelligent design?" No. But the reason is not that university faculty have a special First Amendment right. The reason must be that the First Amendment limits certain coercive uses of the funding power. Universities can, and in my view should, provide their faculty and students with a measure of academic freedom beyond what the First Amendment alone provides, and in doing so they can create obligations that are binding as a matter of contract law. But employees of other sorts of entities would also benefit enormously from a right to speak their minds on matters both related and unrelated to the workplace, and any attempt to carve out "universities" strikes me as arbitrary. Non-academics also should have "academic" freedom.

What is the "University?" What is a FAIR University?

At Prawfsblawg, my co-blogger Rick Garnett has a wonderful post discussing Prof. Geoff Stone's discussion of the Kalven Report and the role of the university. Let me add some unduly lengthy thoughts.

First, Prof. Stone's argument ultimately sets much store in defining "the university." A university, in his view, has a broad but ultimately static function: to create a forum for fearless speech and inquiry, and not "to proclaim the truth." Thus, "once a university takes sides, it is no longer a university." I have been thinking a good deal about universities and the First Amendment these days, and it seems to me that there is a tension between basing First Amendment rights inhering in and around the university on academic freedom, and the non-legal concept of academic freedom itself, which is hardly as fixed and uncontested as the courts' depiction of it might suggest. One way to resolve this is to just come up with a definition of what "the university" is for constitutional purposes, or of what "academic freedom" is for constitutional purposes, and stick with it. But I am not convinced the courts should simply draw a line around what they think the university is, or what they think academic freedom constitutes, and argue that anything beyond that definitional boundary is irrelevant. Rather, they -- and we -- ought to understand that within the broad grouping of institutions that we understand, family-resemblance-style, to constitute "universities," there will inevitably be different views on what the university mission entails, and how it ought to be carried out. An institution whose understanding of that mission, or of academic freedom, that falls sufficiently outside of that family may eventually lose the support of adherence of academics, students, and others. But within the fairly broad scope of our intuitive of what constitutes a university, there is surely room for universities to vary in their understanding of their mission. To say of such institutions that they are "no longer [ ] universit[ies]" seems to me to be unhelpful, and to settle by fiat what should be a productive discussion about the potentially plural nature of universities, and about whether there are core principles that unite the university or the concept of academic freedom. So I cannot agree with Prof. Stone that a university that opted to make a statement about Darfur through divestment would cease to have earned the title of "university"; rather, such a university would demonstrate that there is room in the academy for varied and conflicting understandings about what any individual university's academic mission entails.

I should add that I have conflated here, to some degree, questions about what courts should do about the university, and questions about how we, and Prof. Stone, should think about the university outside the courts. But the two are related and shed light on each other, I think: for if we are willing as academics to acknowledge that there is no fixed definition of "the university" and its mission, we might urge courts to proceed less on the basis that they are protecting some fixed definition of "academic freedom," and more on the basis that they ought to defer to the actions of universities as largely autonomous institutions, allowing them to proceed to determine for themselves what their academic missions require of them.

Second, I am guessing (though I might be wrong!) that lurking behind Rick's examination of Prof. Stone is a question that has been much discussed in certain academic precincts lately: the nature of the religious university (often the Catholic university, although such debates have also taken place at Baylor and elsewhere). Such institutions are, I would guess, used to the slings and arrows of comments from without suggesting that a university that has a religious mission in some sense is "no longer a university"; and those schools have also engaged in vigorous good-faith internal debate about what it means to be a religious university, and also what it means to be a religious university. Speaking from within the snowy and sunless grounds of Notre Dame, I can attest to the value and power of such discussions -- and I can attest with equal confidence that this is a university, albeit one whose mission may (and perhaps must) ultimately differ from that of the University of Chicago. So, like Rick (I think), I would hesitate to engage in line-drawing that says that particular recognizably academic institutions are not "universities." As he says, we may each argue about when, and whether, a university should take a stand, what its academic mission is, what academic freedom entails, and so on. But we should have that discussion rather than engage in a somewhat artificial act of boundary-drawing.

Of course, Rick also rightly points to Prof. Stone's argument that universities may "take a stand" on particular issues in "exceptional circumstances," including action where the university's "own conduct would otherwise directly and materially cause serious injustice." Prof. Stone's example of this is that universities "may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation." Rick sees this as an argument jury-rigged to clear a space for the position taken by many law schools in the FAIR case, arguing against the Solomon Amendment. I am no fan of the Draconian nature of the Solomon Amendment, and I think the Court ought to have given far more serious consideration to the arguments raised by the FAIR plaintiffs than it ultimately did. But I also see Prof. Stone's effort to draw a distinction between Darfur divestment and the exclusion of military recruiters as unpersuasive. First, I am not sure that the direct/indirect distinction Prof. Stone draws is really present here. Second, I am not sure which way it cuts; after all, universities do not offer any choice to their students whether or not to participate in sending investment monies flowing to a region of the world in which genocide is taking place, but students to have every freedom not to participate in on-campus recruiting, by the military or any employer. Moreover, it is certainly arguable that the injustice involved in genocide, albeit it is a more indirect consequence of investment, is far more "serious" than the wrong involved in the military recruitment case. Third, as Rick has already suggested, it won't do to distinguish the two cases because the divestment crowd was urging the Univeristy "to make a statement about what is morally, politically, and socially 'right,'" as Prof. Stone writes. This sort of "message" argument was precisely what most of the plaintiffs in FAIR were arguing was at stake in the military recruitment context; if a university can make a "statement" in that context without losing the right to be called a university, it is not clear to me why it cannot make a similar statement in the Darfur context. Moreover, as many of the commenters to Prof. Stone's post suggested, there are other ways in which universities can send "messages" of this type which do not closely resemble what the law schools and universities did; most prominently, they could continue their policies of exclusion and accept the financial penalties.

I have much more to say about the relationship between Prof. Stone's views and the FAIR decision, which should be of some interest given past discussions of that case on this blog, but let me respect the usual word limits here by pointing interested readers to the full-length version here.

Deans' Letter on Judicial Pay

Echoing calls for higher pay for federal judges by Chief Justice Roberts, Justice Kennedy and others, 140 law school deans sent a letter to the Congressional leadership essentially piling on. The letter, which was the idea of and authored by my own beloved dean, David Schizer, does not make any new arguments, and, from a public relations perspective, seems like a no-brainer for any particular dean--an essentially cost-free way to ingratiate his or her school with the federal judiciary. I don't mean to be cynical. Despite my own observations about income inequality, I don't disagree with the letter. Were I a law school dean (heaven forbid), I would sign it. All I'm saying is that it's not surprising that so many deans signed on. The mystery is why some deans didn't sign.

And some didn't. Most of deans of the top law schools signed, but there are a few notable absences. For example, the deans of 3 of the 4 elite California law schools (Berkeley, Stanford and USC) did not sign, although the UCLA dean did. Arguably we can explain Stanford dean Larry Kramer's refusal to sign by the fact that Kramer is a populist who does not have very high regard for what he considers the federal judiciary's self-appointed role as guardian of our liberties. But that doesn't explain why USC dean Ed McCaffery and Berkeley dean Chris Edley didn't sign. Both are quite mainstream figures. Two further unexplained absences are University of Chicago dean Saul Levmore and University of Virginia dean John Jeffries. So we are left with a puzzle: Why do Ed McCaffery, Chris Edley, Saul Levmore, and John Jeffries hate freedom?

;-)

What Public Servants Earn

The recent attention paid to judicial salaries on this blog (here, here and here) raises a baseline question. Granted, Supreme Court Justices are underpaid relative to law firm associates and even faculty at leading law schools, but then why are those the relevant comparisons? Consider the following take-home pay numbers:

Chief Justice of the United States: $212,000

Active duty Army sergeant with 4 years of experience: $25,495 (Source here.)

Richard Grasso's 2003 take-home pay as CEO of the NY Stock Exchange: $139,500,000

Grasso was not a government employee as head of the NYSE, but NYSE is a non-profit organization, and thus under New York law, can only pay compensation that is "reasonable" and "commensurate with services provided." Accordingly, Grasso and NYSE are defendants in a civil suit brought by the New York Attorney General to rescind much of his pay. Grasso will certainly argue that these terms must be defined by reference to industry standards, and can point to comparable compensation for CEOs of the firms that list their stocks on the NYSE. (Click here for a list of top-paid CEOs.) It is likely that in making its case against Grasso and NYSE, the NY AG will argue that the NYSE Board was partly in Grasso's pocket and partly incompetent. But beyond that, the case may well come down to a battle of what the relevant standard of comparison should be: Corporate CEOs versus heads of other non-profits such as university presidents.

I can't predict what will happen in the NY litigation, but I can say that our public discourse seems to favor Grasso in at least one sense. The relevant comparison seems always to be market-driven: What could/would this person earn in some other job? Yes, there is an important debate over what exactly the relevant comparison should be: Law firm partner or law school professor? Corporate CEO or university president? But it doesn't seem to occur to anyone to make cross-sector comparisons. Indeed, even the army tries to persuade recruits that its pay for a sergeant is more like $42,376 when you figure in all the benefits like food, housing and medical care. (And that's not even counting additional benefits like free air travel to Iraq and free use of night-vision goggles while on patrol in Baghdad!) Thus, the army explains that total compensation for a job as a sergeant compares favorably with compensation for working as a civilian police officer. Notably, the army does not compare salaries for its sergeants with take-home pay for corporate CEOs or even merely upper-middle-class lawyers.

Why not? Well, for one thing, that would expose our extraordinary income inequality. But more deeply, I think, Americans have so completely accepted the notion of market valuation that (with the notable exception of John Edwards and a few other economic populists) we have lost the vocabulary with which to make or even understand the argument that an army sergeant deserves to be paid more than one three thousandth of what the head of the New York Stock Exchange earns.

Choose Your Poison

Regarding Jamison Colburn’s post on Thursday regarding nuclear power ('Who Can We Blame?' Is Always A Game Played Best From Afar), I think the lesser-of-evils question in energy production is one of the most difficult questions we face. Nuclear power is undeniably a very dangerous way to produce energy. Yet it is also true that not using nukes means we use more fossil fuels, which without question causes death and disease (as well as economic damage) on a tragic scale.

Still, I have always been convinced that even the less-than-certain catastrophes that can only be associated with nukes (meltdowns, theft of deadly materials, unsafe disposal of waste) are simply too horrible to risk. An article in Harper's many years ago made the further point that nuclear power plants themselves have finite lives, meaning that we ultimately have to worry about how to mothball what amounts to a huge chunk of radioactive concrete. Too dangerous to disassemble and move, they present us with the engineering challenge of creating a mausoleum on site that is impermeable and cannot be vandalized. Perhaps it is now possible to keep plants running forever. I haven't kept up with that debate; but at the very least, the difficulties of doing so safely and economically must be added to the anti-nuclear side of the ledger.

Now that global warming's risks are better known and understood, though, it's possible that the calculus has changed enough to tip the balance. It’s no longer a matter of weighing a statistically certain number of lung- and heart-disease-related deaths every year against a statistically uncertain nuclear catastrophe that could kill millions (or the entire planet). Use of fossil fuels now also at least increases the possibility of the deaths of millions of people living in coastal areas along with the longer-term disruption of entire eco-systems. How to choose between that and possible nuclear Armageddon? Happily, conservation is still an option. What an easy choice!

A Blue-Collar Reaction to a White-Collar Defense

Further to the issue of the Libby defense, I'd like to point out that this is another tried and true example of how blue collar criminal defendants are treated differently from white collar criminal defendants.

Consider the typical blue collar criminal case where evidence is circumstantial. When have you ever heard of a blue-collar case in which the defense has been permitted wide latitude to rebut evidence of intent with third-party testimony of what a busy man the defendant is? When have you ever heard of a blue-collar case in which the defense is allowed to rebut evidence of intent with the argument that what the defendant is alleged to have done is stupid and no one would be stupid enough to do what the defendant is alleged to have done? The prosecutor's rejoinder to those arguments on closing is that the criminals we tend to catch are the stupid ones; the really smart ones get away.

Here, Libby's lawyers argue that a busy man like Scooter, who holds down "the equivalent of two full-time jobs" and whose head is filled with the important information of state has a reputation as a brilliant but forgetful man, so it is entirely conceivable that he simply forgot the truth when he testified both to the grand jury and gave an interview to an FBI agent. I can accept the idea that Scooter -- far busier than I am with a far more demanding job than I have -- might not remember all of the details of a particular event that took place weeks or months previously. Heck, I often forget things that happened two minutes ago on the way from the kitchen into the bathroom. But in order for me to believe that Scooter's brain is so full of something that the something pushed out the memory of who outed Valerie Plame, I think that I would need to know what else was in his head, and the defense certainly tried to offer evidence of that.

Imagine how your typical judge would deal with the issue of a blue-collar defendant seeking to put his friends and family on the stand to testify about how busy and distracted the defendant was at the time that he allegedly formed the conspiracy/bought gun/entered the convenience store. If your answer was, "inadmissible", then you win.

No Valentine's Day Sex Toys in Birmingham

Yesterday---in honor of Valentine's Day?---the Eleventh Circuit upheld an Alabama law banning the commercial distribution of sex toys, or as the statute describes them, devices "primarily for the stimulation of human genital organs." (Read the opinion here.) This was the third time this case was before the 11th Circuit, with the same result each time. First, the court said the law survived rational basis review; then it said that despite Lawrence v. Texas, there is no fundamental right to sexual privacy; and then yesterday the court said that Lawrence also didn't undermine the conclusion that the law serves no rational basis. The 11th Circuit distinguished Lawrence on the ground that "while the statute at issue in Lawrence criminalized private sexual conduct," the Alabama law "forbids public, commercial activity." There's certainly something to that. Lawrence doesn't, for example, call into question laws that forbid prostitution (commercial) or having sex in a courtroom while it's in session (assuming there are such laws, which I certainly hope there are). But the Alabama law makes it a crime to sell sex toys even if done discreetly so as not to offend those with delicate sensibilities, and if there were no rational basis for banning sex toy use, then it would be difficult (albeit not impossible) to find a rational basis for banning their sale. So the distinctions the court drew don't necessarily do the work the court seemed to think.

More troubling, however, was the 11th Circuit's reliance on an additional line of argument. Lawrence, the court said, does not undermine the proposition that "public morality" can serve as the rational basis for a law. For that proposition, the court cited its own post-Lawrence decision in Lofton v. Sec’y of the Dept. of Children and Family Servs., upholding a Florida law that forbids same-sex couples from adopting children. Of the two cases, Lofton is obviously the more pernicious in its effects. The Alabama law does not treat anyone as a second-class citizen, while the Florida law pretty clearly does. Indeed, the Alabama law is not especially effective, since it can easily be circumvented by, among other things, internet purchases of sex toys.

Both cases raise a larger worry, however. Insofar as judicial rhetoric enters public debate, I fear that we will increasingly hear invocations of "morality" or "public morality" as a justification for various laws, especially those forbidding same-sex marriage. What the courts and those who will echo the courts' talking points mean by "morality" in such circumstances is really something like "tradition" or "religious values," but whereas "tradition" does not, by itself, sound like a justification for legislation, and "religious values" are, in a still nominally secular society, not supposed to be the sole basis for legislation, "morality" is a perfectly good basis for legislation. It is legitimate to prohibit theft, murder and rape because these are "immoral" acts. Of course, what we mean in saying that is that theft, murder and rape harm people, but by using the same word---morality---to condemn harm and to condemn non-traditional or religiously proscribed practices, those who would defend laws like Alabama's and Florida's can substitute a label for a reasoned argument.

'Who Can We Blame?' Is Always A Game Played Best From Afar

In watching and reading the coverage of the deal with North Korea, I've been struck by the degree of caution with atomic technology everyone agrees is appropriate where someone like Kim is concerned. This crazy cannot be trusted and we don't have the resources to verify proper handling and disposal of fissile material as a mere outside monitor. There seems to be no question whatever that preventing the entire country of North Korea (or others) from making use of one of humanity's most advanced sources of energy is a necessary price for the increment of global security that will come from a non-nuclear North Korea. If North Koreans wish to curse someone for the degree of their poverty attributable to their lack of cheap, reliable electricity, they should curse Kim, of course. Debate here ends before it might lead to a wider accounting of how North Korea came to be the regional (and perhaps global) problem it is.

The script seems to be in reverse when it comes to the degree of care due atomic technology here at home, though. Suddenly, now that global warming is all of a sudden admittedly a scientific consensus, it is time to blame the "environmentalists" who opposed nuclear proliferation here at home in the 70s out of safety and other concerns. This is not a script limited to Chris Matthews or O'Reilly, either. See, e.g., Kerry Emanuel, Phaeton's Reins: The Human Hand in Climate Change, Boston Review (Jan./Feb. 2007).

The fact is, "environmentalists" are no more monolithic today where nuclear energy is concerned than they were then. Many of the most powerful political coalitions then were anchored by NIMBYism--as will be the new ones when actual nuclear reactors are proposed here at home. Some of the smarter objections will retell our unending saga to find a place to store all the waste. (A shameless plug for a findlaw column I did on that here.)

But I'll wager that no one who has to stand up in a face-to-face meeting and actually try to hash out our energy crises today or in the future will be eager to blame the other people in the room. That would be poor form, to say the least. For some reason, when you're in that kind of environment, blame is usually the worst strategy. Unfortunately, those environments seem increasingly rare in our national politics.

Document Review for the Chief Justice

Justice Kennedy testified before the Senate today that federal judicial salaries are too low and are hurting judicial morale and independence. This is an old issue, and Kennedy didn’t say anything that he and others haven’t said many times before. But with law firm salaries on the rise again, I began to wonder: Is it possible that first-year associates might soon make more than Supreme Court justices? And sure enough, the answer is yes.

Simpson Thatcher recently raised starting salaries to $160,000, and the expectation is that other major firms will match, if not beat, that number. A typical bonus is about $25,000, but with a little effort and luck a first-year associate could receive $50,000 to $60,000. Add it up, and that 25-year-old who still doesn’t understand the hearsay rule is making $210,000 to $220,000. The salary of Supreme Court justices? $203,000. And the Chief’s salary? $212,000. Can you say document review, John Roberts?

Scooter Libby & George Costanza

Scooter Libby's defense goes something like this: Okay, mabye I did tell the FBI that I learned Valerie Plame was a CIA agent from Tim Russert, but that's because: a) In general I'm a really really busy guy who can't remember details from hour to hour; and b) I spoke to lots of journalists about the Joe Wilson business and didn't tell them anything about Plame, so I can't be expected to remember that my conversation with Russert went differently.

As Richard Nixon famously observed, it's not the crime that does you in; it's the cover-up. For reasons that have not yet been made clear to the public, Fitzgerald decided not to charge Richard Armitage, Ari Fleischer or Karl Rove with leaking Valerie Plame's name to the press, even though they have all now admitted doing so. Perhaps Fitzgerald concluded that they did not thereby break the law. In any event, in keeping with the pattern in cases of this sort (think Martha Stewart, Bill Clinton's impeachment, etc), the case Fitzgerald did bring charged lying to investigators. Conventional wisdom holds that prosecutors bring obstruction/lying cases because they're often easier to win than charging the underlying offense. But should Libby's defense prevail, that might challenge the conventional wisdom.

When a defendant is charged with lying to the FBI, to a grand jury or to other investigators, one way he can deny the charges is by showing that the underlying statement is true. Libby's gambit is a variation of the George Costanza dictum: "It's not a lie, if you believe it." By admitting that his statement was or may have been false but claiming that he believed it, Libby makes the case about his subjective mental state. And while subjective mental state can be proved through objective evidence, that's not always so easy.

The puzzle, then, is why Libby isn't testifying. He doesn't have any prior convictions that would come in for impeachment. And while the jurors will be instructed not to draw any adverse inferences from Libby's failure to testify, they've got to be wondering why he doesn't get up and say, point-blank, "I thought what I said to the FBI was true. I guess I might have remembered incorrectly." Presumably Ted Wells, Libby's lawyer, thinks that his credibility would be damaged by cross-examination. Which leads those of us in the observing public---who are not governed by the Rules of Evidence---to wonder whether Libby was deliberately lying to the FBI after all, and not just failing to remember. For if that's true, and if Wells knows it, he can't put Libby on the stand. To do so would be to suborn perjury.

Violinists For Choice

In response to Adam S.’s comment criticizing my analogy between forced intimate altruism and forced pregnancy:

I too find the violinist hypothetical case unhelpful, primarily because it is so strange and improbable that it fails to trigger powerful intuitions on my part that would help illuminate the issue of abortion. On the other hand, I do want to clarify that there is a world of difference between leaving a baby in a dumpster, on the one hand, and terminating a pregnancy, on the other. What I propose distinguishes pregnancy is not, as Adam S. implies, the fact that the fetus is dependent on the pregnant woman for its continuing survival (in the way that a baby is dependent on a caretaker). It is instead the fact that a fetus’s dependency consists of occupying a woman’s body in a highly intrusive, risky, often painful, and intimate way for an extended period of time. Perhaps it is difficult for some men to imagine the degree to which an unwanted pregnancy imposes on a woman, because so many pregnant women appear to go about their business as though nothing especially taxing is going on.

A woman who has already given birth to her baby and who does not want to take care of him or her anymore, however, may generally surrender the baby to someone else – either a friend or loved one, or in desperate circumstances, the local department of children and family services. As I have said before, if a woman could easily terminate her pregnancy without simultaneously killing the fetus, then the debate would come to center – quite properly – on the status of the fetus (the issue that drives Adam S.’s position on abortion). This is because turning over the dependent creature to an alternative caretaker would, by hypothesis, require so little of the mother. The same cannot be said to describe taking an unwanted pregnancy to term.

Faith, Abortion, and Mike Huckabee

Sunday, on "This Week" with George Stephanopoulos, former Arkansas Governor Mike Huckabee presented himself as the "paradoxical Republican" candidate for the 2008 Presidential nomination. (Watch the video here.) He enjoys music (even plays in a rock band) and believes in taxes to support social services (such as building roads). Yet he is also pro-life and otherwise a social conservative. He comes across very well -- sounds moderate, reasonable and pleasant, but -- for those of us who believe in a secular system of government -- he is dangerous. He said two things that, alone and together, might be cause for alarm.

The first comment was about Mitt Romney, a rival Republican presidential candidate and a Mormon. Stephanopoulos pointed out that as a Baptist minister, Huckabee might view a Mormon as belonging to a "cult." Huckabee did not dispute this suggestion but responded that he is far less disturbed by a candidate of a different faith (i.e., not a Baptist) than by a candidate who claims that his faith will not influence the decisions he makes as a public official. Why does this disturb him? Because it would mean that the candidate's faith is not very important to him. Better, in other words, to be strongly committed to a false magical belief in a deity who demands unquestioning obedience than to be only weakly committed to such a false belief (or, heaven help us, to be an agnostic or an atheist). Being pro-life, explained Huckabee later, is not a political position but one that properly arises from his faith.

The second interesting comment was Huckabee's assertion that his pro-life perspective is more consistent with American values than Rudolph Giuliani's expressed pro-choice approach. How so? It is Islamic fascists, said Huckabee, who celebrate the deaths of their children when the latter strap explosives onto themselves to carry out suicide bombings against the infidels. Americans, by contrast, value their children and believe that their lives are sacred and should not be sacrificed. Though quite subtle, the implication is that people (including Giuliani, so far) who believe that women should not be compelled by the criminal law to remain pregnant against their will are very much like the parents of suicide bombers who believe that their children should volunteer themselves as ammunition against civilian targets of the wrong faith. If you believe either that a zygote is morally distinct from a baby or that women should not regularly be conscripted into a physiologically intimate altruism, then it follows that you don't care about children. Though this suggestion should need little in the way of rebuttal, I would point out in passing that the Islamic fascists who celebrate their children's deaths as martyrs -- the group to whom he compares pro-choice Americans -- nicely fit the bill for Huckabee's more trustworthy candidate for office here in the United States: they openly acknowledge that their religious faith plays an important role in their decision-making process.

Textualism Shmextualism: It's About the Merits

Thomas offers a plausible account of why the public would be receptive to slogans like "judges should interpret the law, not make it," but I'm not persuaded that the vast majority of voters pay enough attention to questions of jurisprudence even to distinguish between the bumper sticker versions of originalism/textualism on the one hand and living constitutionalism on the other hand. What people care about is results. That's why, as Barry Friedman has argued, criticism aimed at the countermajoritarian character of the Supreme Court has tended to erupt at just those moments when the Court's decisions have been especially unpopular on substantive grounds.

This explains why news coverage of the use of terms like "strict constructionist" tends to emphasize that this is a code phrase for "overturn Roe v. Wade." It is intended as such code, even though one could actually be a strict constructionist or textualist or whateverist on a whole range of issues. Lawyers, party activists on social issues, and some well-educated non-lawyers may understand these differences in ways that go beyond their implications for a handful of particular issues, but the vast majority of Americans simply don't follow the courts closely enough to have a clear view about jurisprudence. (See my May 2002 column on the issue of Americans' understanding of our Constitution here.)

Indeed, on those extremely rare occasions when the public does become engaged in matters of jurisprudence, textualism/originalism doesn't fare very well. I have in mind the Bork confirmation hearings, although admittedly that was two decades ago and Bork didn't play well on tv as a matter of style, so perhaps even that event wasn't about jurisprudence. It is instructive, though, that successful Republican nominees have done well by emphasizing their pragmatism rather than textualism/originalism as such. Roberts is the paradigm here. To be sure, he didn't embrace the living Constitution as such, but nearly all of what he said as a matter of general jurisprudence could have been said by Ginsburg or Stevens, and much of it by Brennan or Marshall.

The Popular Appeal of Textualism

As a follow-up to Mike’s post below, I agree that Giuliani’s explanation of why he likes strict constructionists makes little sense. The main criticism of “loose” construction is that it undermines democracy by substituting the preferences of unelected judges for those of the majority. Perhaps that is what Giuliani was trying to say. But his claim that broad interpretation hurts liberties is odd, given that most judicial departures from the text have strengthened individual liberties.

But does it really matter if Giuliani’s statement makes sense? I’m not sure it does. The catchphrases he is using – “judicial restraint,” “strict constructionism,” “applying the law, not making it” – have such popular appeal that he can’t really go wrong. In the public relations war, the textualists have won. It’s hard to imagine a presidential candidate these days promising to appoint judges who will apply the “living Constitution.” And even though Justice Breyer has offered a thoughtful alternative to textualism in his book “Active Liberty,” I don't anticipate that phrase gaining a lot of traction on the cable news shows.

Part of the problem is that “strict constructionism” is such an oversimplified response to a complex issue that it’s difficult to counter in a sound bite. In this way, it’s like the “War on Terror.” Well, of course no one is opposed to stopping terrorism. But it’s hard to explain why one might have doubts about the “War on Terror” before someone like Bill O’Reilly accuses you of being French. Likewise, it takes time to explain why one might have doubts about strict constructionism: because the framers used broad language, because the Constitution was meant to endure for the ages, because the Amendment process has fallen out of favor, because even strict constructionism doesn’t prevent judges from reading their personal views into the Constitution. These are not arguments one hears very often in the 24-hour news cycle, and so someone like Giuliani can simply say the words "strict constructionism" or "judicial restraint" without having to coherently defend his position. The interesting thing is, for all the rhetorical appeal of strict constructionism, it still doesn't command the support of a majority of the Supreme Court. At least there, the complexities of the issue are still appreciated.

Rudy Giulianisprudence

A front-page story in yesterday's NY Times explains that in preparing to run for the Republican nomination for President, former NYC Mayor Rudy Giuliani has been tacking to the right on abortion. He has declared that he would nominate "strict constructionists" to the federal bench. My FindLaw column this week will explore the nuances of Giuliani's abortion position. (He was for it before he was against it, but his current position nonetheless coheres.) Here I'll just note that Giuliani still needs to rehearse his explanation a bit. Here's what he said in justification of his strict constructionism:

"On the federal judiciary I would want judges who are strict constructionists because I am. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret, not invent, the Constitution. Otherwise you end up, when judges invent the Constitution, with your liberties being hurt. Because legislatures get to make those decisions and the Legislature in South Carolina might make that decision one way and the Legislature in California a different one."

How might our liberties be hurt by courts broadly construing the Constitution to find rights not expressly enumerated there? One possibility---a favorite point of Justice Scalia---is that if judges are free to add constitutional rights they are also free to subtract constitutional rights. Living constitutionalism, Scalia warns, risks disentrenching just those expressly enumerated rights that a constitution is meant to entrench. So suppose a loosey goosey Supreme Court reads an important right---habeas corpus, say---out of the Constitution. Then maybe you could be held in executive detention without judicial recourse in South Carolina but not in California.

Scalia's key examples of an evolutionary Court contracting textually enumerated liberties involve protection for property rights and the Sixth Amendment's Confrontation Clause. Scalia treats the latter literally: To con-front a witness means to go against the face of the witness, so he once wrote an opinion for the Court invalidating a conviction obtained based on a child's testimony against her attacker from behind a protective screen. But even if we grant that there are some cases in which evolutionism produces fewer rights than textualism---the term Scalia much prefers to strict constructionism---it hardly follows that textualism is in general likely to protect rights better than evolutionism. After all, the Supreme Court Justices who like to "invent" rights also tend to be the ones who give relatively expansive interpretations to the expressly enumerated rights. Consider that it is Justice Scalia, not the Court's liberals, who contends that the Suspension Clause confers no substantive right to habeas corpus.

Whatever you think of Scalia's argument, Giuliani's version of it is bizarre at best. It seems to have the following steps: 1) When the Justices invent rights, they also constrict rights; 2) If they constrict rights, they expand the domain of legislative freedom; 3) Different legislatures will then adopt different policies; 4) That's bad; 5) So Justices shouldn't have the freedom to invent rights either; even though 6) That means that legislatures will adopt different policies on issues like abortion; 7) But somehow, notwithstanding 4), that's not bad. In fact it's good. QED.

Maybe there's a more plausible way to parse Giuliani's statement, or maybe in giving a spontaneous answer, he simply misspoke. It will be interesting to see whether his answers become more polished as the campaign proceeds.

Harvard's Faustian Bargain

Okay, I admit that I gave this post that title for no reason other than the name of Harvard's new president, Drew Gilpin Faust. I've got nothing whatsoever against Faust. Indeed, until yesterday I had never heard of her, which undoubtedly says more about me than about her. That all said, I was a little surprised that Elana Kagan, current dean of the law school, didn't get the nod. Here's why:

1) The obvious. Like Faust, Kagan is a woman. Fairly or not, Larry Summers will be remembered as the President whose two principal accomplishments were driving Cornel West back to Princeton and questioning women's aptitude for science. The easiest way to distance Harvard from the Summers legacy was to name a woman (or possibly a member of a racial minority group) as President.

2) Kagan has been a very successful dean. Her predecessor, Robert Clark, was a good fundraiser and stopped some of the worst political infighting among the faculty. But throughout his deanship, faculty politics lingered, to the point where every significant faculty appointment was an ideological test: To appoint a conservative, the school had to appoint a corresponding liberal, and vice-versa. Kagan largely ended that practice, and as a result has been able to increase the size of the faculty. To the extent that Kagan's success has been a matter of getting a fractious group to work together, that would have boded well for the university.

3) Successful law deans generally make good university presidents, as Harvard's return to Derek Bok as interim President showed. More broadly, the modern university is a highly complex institution that requires at least as much of a business or government sensibility as an academic sensibility. Not all law professors have that, but those who have been successful law deans tend to. Kagan also has government experience from the Clinton administration.

4) Kagan was generally thought to be philosophically not that distant from Summers, without his style and baggage. Summers' tenure was not entirely a failure. For example, by most accounts, his initiative to create more classroom contact hours between top faculty and students was, unsurprisingly, popular with students and many alumni. A substantial minority of faculty supported what they regarded as the more general effort by Summers to stop coddling some of their colleagues. Faculty who resisted these changes were able to seize on Summers' gaffes and his abrasive management style to oust him, but there are reasons to think that for at least some faculty, these were pretextual. To the extent that much of the Summers program remained popular with students, alumni, and some faculty, Kagan would have been a perfect choice: essentially the Summers philosophy without the Summers negatives.

But obviously the selection process went differently. As an alum, I wish President Faust good luck.

Solomon Amendment Amelioration

Every member school of the Association of American Law Schools has a non-discrimination policy that both includes a prohibition on sexual orientation discrimination and applies to employers recruiting on campus. These policies would forbid military employers from recruiting on campus because of the military's "don't ask, don't tell" rules, but under a provision of federal law known as the Solomon Amendment, schools must nonetheless permit the military to recruit on the same terms as non-discriminating employers, or risk losing millions of dollars in federal funds for themselves and the parent universities with which they are affiliated. Last year, in Rumsfeld v. FAIR, the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association. The Court reasoned that the presence of military recruiters on campus could not reasonably be understood to communicate a message of agreement by the schools with "don't ask, don't tell." To underscore the point, Chief Justice Roberts, speaking for a unanimous Court, made clear that "[s]tudents and faculty are free to associate to voice their disapproval of the military’s message."

Taking the Chief Justice at his word, students, faculty and administrations at law schools around the country (including Columbia, where I teach), have taken the occasion of military recruitment on campus to express their disagreement both with "don't ask, don't tell" and with the Solomon Amendment. They hold fora, publish letters, and so forth. Some students here at Columbia and, I suspect, at other law schools, have suggested that students who do seek military employment should try to arrange interviews off campus, to show respect for the school's non-discrimination policy. That is a perfectly appropriate suggestion coming from a student group, but what if it comes from a school administration or the faculty? At the urging of a colleague who feared that official discouragement of students from interviewing on campus could be construed as non-compliance with the Solomon Amendment itself, I left this suggestion out of the Columbia faculty letter that I co-wrote. However, this strikes me as far-fetched. All official events protesting military recruitment on campus can have the effect--indeed, may be intended to have the effect--of discouraging students from interviewing with the military recruiters. Official encouragement to interview off campus is just one more form of First Amendment-protected speech by the law schools.

Indeed, one would think that, in the face of the sorts of protests invited by the Supreme Court's opinion in FAIR, military recruiters would prefer to interview off campus. A straight student who wants to serve his country in the JAG Corps but disapproves of "don't ask, don't tell," or simply doesn't want to earn the ire of his classmates, might well forego the interview if it means running a gauntlet of protesters; the same student might well be willing to interview unobserved a few blocks away. Of course, that doesn't mean my colleague was wrong to worry about the way in which official discouragement of on-campus interviewing would be received by the Department of Defense or Congress. An undermanned military fighting wars in Afghanistan and Iraq that fires Arabic language translators because they are gay cannot be expected to act at all rationally when it comes to this issue.

The Case against 'Interdisciplinarity' in Law

This week, in the course of one day I ran across three people who expressed some degree of existential crisis over their efforts to approach law from an interdisciplinary perspective. Over the last decade, interdisciplinarity – i.e., ‘law and . . .’ – has become all the rage, at least in American law schools. And I am increasingly of the belief that this fascination is unwarranted.

The problem, as I see it, lies not the borrowing of ideas and even theories from other disciplines. The problem lies in the self-conscious identification of doing ‘interdisciplinary work.’ The problem is that interdisciplinarity actually strives to bring into harmonic synthesis epistemic communities that in fact do not want to be synthesized. Academic disciplines define themselves in opposition to one another. And they guard their boundaries very jealously. I personally know of a number of scholars who were dismissed from their respective departments, not because they were not accomplished scholars, but simply because it was determined (by others) that their scholarship lie in some other discipline. The disciplinary need to distinguish in this way is so strong that it even extends to socialization – different disciplines also adopt their own distinctive dress codes and vocabularies that serve, at least in part, to identify members as insiders rather than outsiders.

For this reason, I would argue, a self-conscious interdisciplinarity is institutionally impossible. To seek consciously to do “law and . . .” is like trying to speak English and Arabic at the same time, because the vocabularies and styles of presentation that identifies one as a “legal scholar” will also simultaneously identify one as not being something else, and vice versa. Hence, the existential crises alluded to above.

This is not to claim that legal scholarship should return to the days of an autonomous logical positivism. Other disciplines do indeed have a lot to offer legal scholarship. My complaint is simply against the self-conscious identification (and advertising) of some forms of scholarship as ‘interdisciplinary’. In fact, all legal scholarship is, I would suggest, interdisciplinary to some degree or another. So there is really no analytic advantage to being self-conscious in being so. In fact, efforts to consciously distinguish interdisciplinary legal scholarship from let’s call it ‘ordinary’ legal scholarship can even threaten the opposite of what they want to accomplish. At least in some cases, the effort to establish interdisciplinarity as a distinctive analytic methodology can devolve principally into the introduction of some other discipline’s distinctive socializing features – its particular vocabularies and modes of presentation – into the law. When this happens, the effect is not to link the two disciplines, but simply to create sub-disciplines within law that are themselves seem, at least to the outsider, more exclusive and exclusory than integrative.

I think that true, interdisciplinary work is probably more like zen – you do it best when your not consciously trying to do it. It’s also like prose – in that legal scholarship (and that of other disciplines as well) has been doing it for a long time without actually knowing it.

That having been said, I might also note that I work for an organization called “The Clarke Program in East Asian Law and Culture.” So our obsession with interdisciplinary does have at least one up-side in that it keeps me off the streets – that is, of course, unless my boss happens to read this.

Wex v. Wikilaw or Wikipedia v. Google?

Wex, a project of Cornell's Legal Information Institute, aims to do for law what Wikipedia does for knowledge generally. It is a collaboratively-created site that acts as a kind of legal encyclopedia for novices. On the assumption that useful information should come from people who have some expertise, one needs to be certified as an expert in order to contribute to Wex. As a consequence, it is pretty incomplete. For example, type "state action" into the search engine and you get nothing. Type "Joseph Story" and you get nothing on Story and one article on the Commerce Clause, which includes a link to an external site with an excerpt of Story's Commentaries on the Constitution.

The basic problem with Wex, it might appear, is not enough contributors. Or maybe not. A Wex competitor, Wikilaw, permits anyone to create and edit. It also produces nothing relevant for either "state action" or "Joseph Story." That's not surprising. Someone who's writing for a general audience would be much more likely to contribute to Wikipedia than to a specialized wiki. Thus, while there's no "state action" entry on Wikipedia, there is a "state actor" entry which captures the concept, if briefly, and a short but basically accurate entry for Joseph Story.

Neither Wex nor Wikilaw has been in existence long enough to declare either a failure, but their experience thus far suggests that publishers of legal treatises and the like have little to fear from competition from wiki's. Wikipedia itself may eventually pose threat, but not yet. The real competition may one day end up being between Wikipedia and the web itself, as searched via Google or its competitors. Wikipedia provides the advantages of a single consensus entry but also the risk of bad information crowding out good, at least on controversial topics. The web offers the advantage of potential expertise --- you can end up at a site with real depth --- but the corresponding disadvantage of choice among sources. For example, searching "state action" turns up much irrelevant material along with some relevant sites. Searching for Joseph Story turns up a great many sites, including some that have a clear ideological slant, but at the top of the list is the Wikipedia entry. None of this bears precisely on what authorities lawyers or scholars should be able to cite, but insofar as future lawyers and scholars will grow up using these and other web-based research tools, developments like the failure of Wex and Wikilaw (if they do indeed fail) will be worth watching.

Let's Talk About Sex, Baby

An article in yesterday's Science section of the NY Times discussed the ethical dilemmas facing fertility doctors asked by couples to select the sex of their embryos. The process of in vitro fertilization allows the doctor -- who harvests eggs from the woman's ovaries -- to select which embryos to implant after fertilization on the basis of their chromosomes. The most common use of this chromosomal selection process is to weed out embryos that contain chromosomal anomalies. Like abortion after an amnio, this selection process is controversial in its own right, as I discussed in a FindLaw column. But utilizing in vitro fertilization just to choose the sex of one's child when one could reproduce the conventional way seems a bit frivolous. Though less invasive than it used to be, in vitro fertilization generally involves injecting women with hormones to induce hyper-ovulation, followed by surgery, fertilization and attempted implantation after a few days. Such interventions make sense for people having a difficult time achieving a pregnancy or a live birth without them. But the notion that women in the U.S. should be subjected to hormone treatments and surgery (while men "undergo" masturbation into a cup) to enable couples to exercise consumer choice in reproduction risks unduly commodifying babies (not to mention the bodies of their mothers). It is uncomfortably suggestive of cosmetic surgery. Parenthood is often fun and gratifying, but ideally it also entails the suppression of some of one's own needs in favor of those of a dependent baby/child/adolescent/live-in 35-year-old. The more that embarking on parenthood comes to resemble the purchase of a sports car, however, the less equipped people may be for the reality of being parents.

Can't Buy Me Love

When I read in today’s Wall Street Journal about a settlement of certain “trademark-infringement litigation” between Apple Corps Ltd. (the company founded in 1968 by the Beatles, whose logo is a granny smith apple) and Apple Inc. (we all know who that is and what their logo looks like), I got the feeling that something was missing. Granted, I have not seen the court papers, and since the case was brought in England (presumably under English law) it might not do me all that much good to see them. But as big a Beatles fan as I am, I was taken aback at the notion that anyone could possibly think -- today -- that the Beatles had anything to do with Apple the computer company. What gives?

So I did a little more digging, and came up with what appears to be the answer. According to BBC News reports, Apple Corps asserted or threatened trademark claims against Apple Computer shortly after the computer company was founded in the late 1970s. In 1981, the parties entered into settlement in which Apple Computer basically agreed to stay out of the music field. But later in the 1980s, Apple Computer began to make its machines compatible with Musical Digital Interface devices, which allowed the machines to be used to create and edit music. Apple Corps sued, and that suit resulted in a 1991 agreement pursuant to which Apple Corps reportedly retained exclusive rights to use the name and logo for “any current or future creative works whose principal content is music and/or musical performances, regardless of the means by which those works are recorded or communicated”. The latest lawsuit was commenced in 2003, when Apple Corps claimed that Apple Computer’s iTunes music store -- whose principal content is, after all, music and/or musical performances -- was an impermissible use of the name under the terms of the agreement.

The judge in the case ruled that Apple Computer’s activities did not violate the agreement because the iTunes site is essentially a “market” and has nothing to do with the creation of music. The parties settled to avoid an appeal; the terms are largely undisclosed, but they reportedly do include a transfer of all of the trademark rights to Apple Computer and a license back of some of them to Apple Corps. Which seems to mean that the fight is finally over.

I’m guessing that reasonable minds could differ as to whether the judge was correct in his interpretation of the parties’ 1991 agreement, but to me the moral of the story is something else. I suspect that when Apple (Computer) agreed to the initial restrictions in 1981, it had no idea that it would ever want to enter into the music field. Similarly, when it agreed to the revised restrictions in 1991, it did not anticipate that one day it would actually want to use the name to sell music over the internet. On each of those occasions Apple (Computer) probably thought it was offering Apple (Corps) the contractual equivalent of ice in winter. And when that assumption later turned out to be wrong in each case, the provision ultimately did not deter Apple (Computer) at all from doing precisely what it wanted. All it had to do in each instance was pay the right price.

Now Apple (Computer) has all the rights in these marks. But strangely, it has not yet been able to score the real prize: a license to sell Beatles music on iTunes. Steve Jobs created some buzz when he used the Beatles’ “Lovely Rita” as part of a demonstration of the iPhone at a Macworld conference last month, but I’m thinking that a different Beatles song may have been more fitting.

Aqua Teen Hunger Settlement

Turner Broadcasting, parent company of the Cartoon Network, and ad agency Interference, Inc., have agreed to pay Boston $2 million to reimburse the city for costs associated with the latter's security measures in response to what city and state officials thought was a terrorist attack. This is pretty much win-win. Turner avoids litigation and more importantly, gets more publicity. Boston officials get to point to the settlement as evidence that Turner and Interference must have done something illegal or at least very wrong in placing their electronic ad devices in various locations throughout the city. That may deflect attention from the gross overreaction to a collection of light bulbs giving Bostonians the finger.

Of course, the $2 million will not go to reimburse the thousands of people who missed meetings and were otherwise inconvenienced by the city's near-shutdown. Presumably they are the ones who would otherwise be clamoring for accountability. Or perhaps I have it exactly backwards. Maybe Bostonians are justly proud of their vigilant law enforcement officers for perceiving a potential threat where officials in nine other cities did not.

A Modest (and Binding) Proposal

More on Iraq.

If we want the Senate to vote on something that's binding, rather than non-binding, then I have a couple of proposals. First, let's attach a rider to the current appropriation bills to restrict the President's ability to jaunt around the country for photo ops on Air Force One. Unless he needs to go abroad to go on a diplomatic mission, make him sit in Washington, on his butt at the Oval Office, actually doing serious work. Lock him up in the White House until he goes stir crazy. No Crawford. No Camp David.

Second, you know how Congress loves to phase things in and phase them out? I say that we adopt a sliding scale for funding the war: there's only 100% funding if X percent of the members of Congress have kids or siblings who enlist and are on active duty in Iraq. If only 0.8 X meet the criteria, then funding is cut by 20%. Heck, since Congress doesn't really want the war, substitute Cabinet secretaries for members of Congress. Somebody needs to put some skin in this game.

Perhaps, while the President is sitting around in the White House under a curled-up "Mission Accomplished" poster, he could spend his time writing an essay called "What I Told Barb and Jenna About Why They Should Enlist in the Army and What They Said Back To Me." That's one I'd actually like to read.

Talking About the War

With Mitch McConnell threatening a filibuster of the Warner compromise resolution on the "surge", I'd like to make a pitch for the majority to hold the minority to a good old-fashioned talking filibuster, rather than the namby-pamby affairs that have passed for filibusters over the last 30 years. Indeed, I can't recall a full-fledged talking filibuster since the time at whcih the Senate began broadcasting its proceedings on TV.

The modern practice has been to filibuster by consent. In other words, the filibustering senators announce a filibuster, and then the Senate moves on to other business, occasionally taking up the filibustered bill or resolution as time permits. Eventually, senators get sick of waiting (or not), and a cloture motion is presented, which may or may not pass. In any event, the business of the Senate doesn't grind to a halt; rather, the filibustered matter is ignored for a while.

It doesn't need to be that way, though. The majority leader effectively controls the flow of business through the Senate, usually on unanimous consent agreements with the minority leader. Frankly, I would like to hear the Mitch McConnell-and-minions of the Senate talk themselves to death over why the President's Iraq policy is the right policy. I think that they would sound ridiculous, but I think we need to have a full and public airing of the issues. And I'm betting that they wouldn't really have the guts (as Huey Long did in the 1940s) to talk about Cajun cooking, rather than about the issue at hand.

So, really, folks, let's have thhe Senate talk about Iraw. Keep talking until there's nothing more to say. Then vote.

Constitutional Law without Constitutional Judgments

Over the past couple of months, I’ve been looking at how courts can promote constitutional development outside of the formal realm of constitutional law. Perhaps the paradigmatic example of this are the courtmartial trails of Alfred Dreyfus in late 1890s. As is well know, these trials ultimately gave birth to the aggressive secularism that is even today characteristic of French constitutionalism. But these trials themselves did not revolve around a question of constitutional law. They were for the most part all criminal trials, in which the issue was generally whether or not Dreyfus passed secret information to the Germans.

What happened was that the procedures that underlie these trails were flawed. And in popular discussions of the flaws of these trials, people began to attribute these flaws to French anti-Semitism. The flaws were themselves never corrected – Dreyfus was pardoned, but never acquitted. So the constitutional transformation that these trials provoked lie outside its formal ‘doctrinal effect’.

In fact, once one starts looking, it is not hard to find cases like this – they are ubiquitous, even appearing in places like one-party China. But curiously, I am finding it difficult to find examples from the United States. The two that come readily to mind are the Scopes Monkey Trial, which ultimately completed the secularization of American political discourse (up until recently) and the Leopold & Loeb trial, which some have argued was the first trial to make people question whether capital punishment might itself be cruel and unusual (and more broadly introduced the idea that compassion was a valid factor in criminal sentencing). (Another example would be Zunger, but I’m interested in more recent cases)

But maybe I’m not looking hard enough. Therefore, I would like to ask readers to suggest additional American cases that might fit this bill. Cases affecting state constitutions would also be most welcome. If I use your example in my book, I’ll make sure to give you credit.

Wikipedia Redux: Don't Know What a Sliderule is For

My post on Wikipedia generated an interesting set of comments and an email from USC law professor Mary Dudziak, pointing me to her own entries (here, here and here ) on Legal History Blog. Dudziak notes that colleges and universities discourage undergrads from relying on Wikipedia and asks why judges can't be held to at least the same standard. That's a fair question, assuming that on any given subject there is a more reliable source than Wikipedia and assuming as well that a generalist judge and her law clerks can identify with confidence which book on, say, the history of firearms regulation in colonial America is by the well-regarded scholar and which book on that subject is by someone with an ideological axe to grind (on whatever side of the issue). To repeat what I should have made clearer in my earlier post, an objection to Wikipedia based on its unreliability is valid insofar as Wikipedia is (relatively) unreliable. But the way to investigate its reliability is by periodic empirical testing, not by a priori assumption. (I'm not attributing a priori reasoning to Dudziak, just considering a possible line of argument).

That said, even if it turned out that Wikipedia were, on average, as reliable as or more reliable than other sources upon which courts or even scholars routinely relied, there might nonetheless be valid reasons to discourage students from citing Wikipedia. The idea goes something like this: Students need to learn standards of evidence, how to work with original sources, etc., and Wikipedia is a short cut that will leave them unprepared or underprepared for making these sorts of judgments. Banning citations of Wikipedia by students, in this view, is a little like the practice of forbidding grade school children from using calculators for simple arithmetic until they have mastered the concepts of addition, subtraction, multiplication, and division, because these are building blocks for other mathematical skills that cannot be performed on a calculator (or cannot be performed on a calculator without some serious thought about what functions one asks the calculator to perform).

That practice strikes me as sound, but it's hard to know whether and to what extent it should apply to Wikipedia. When calculators were first becoming available cheaply, some schools reacted by requiring mastery of not only manual arithmetic but also a sliderule as a prerequisite to using a calculator. Likewise, when I learned legal research as a first-year law student in 1987, we were forbidden from using Lexis and Westlaw--even for Shepardizing--until we had first mastered the laborious process of researching in hard copy compilations. Both of these requirements now seem quaint, not to say foolish. Neither the sliderule nor the book version of Shepard's was a building block of other concepts, and so, in retrospect, there was no good reason to require mastery of either in a world in which calculators and electronic databases were becoming ubiquitous. Whether that will be true of the materials for which Wikipedia substitutes remains to be seen. We can imagine a not-too-distant future in which just about every Wikipedia entry contains links to original source material courtesy of Google Books and other internet databases. In such a future, much of the current technology by which historians and other scholars track down original sources might be as outdated as the sliderule. Or maybe not. We just don't know in advance. My point here and more generally is that it's easy to confuse technologies with which we're familiar with fundamentals about how we understand the world. The question of whether to permit citation of Wikipedia, like the question of whether to permit laptops in classrooms, should be answered with regard to our best estimate of the real-world consequences at any given moment in time.

Speaking of the damn First Amendment

State-sponsored Yoga may or may not violate the First Amendment, but arresting somebody for uttering the phrase "God damn lawsuit" at a town board meeting is protected by the First Amendment. So ruled a panel of the 6th Circuit on Friday, holding that the police officer lacked qualified immunity for arresting a citizen who uttered that phrase. To me the most astounding feature of the case is the quotation of Michigan Compiled Laws § 750.103, which provides in part:

CURSING AND SWEARING—Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.

The arresting officer had relied upon this provision (and others) for the proposition that he did not violate clearly established rights of the speaker, but the 6th Circuit said that any reasonable officer would have known, in light of Cohen v. California (the 1971 Supreme Court case voiding a criminal conviction for wearing a jacket with the phrase "Fuck the draft" on it), that the simple utterance of a profanity, without any intimation of violence or obscenity as defined in the Court's cases, could not be the basis for an arrest. That's a perfectly good basis for finding no qualified immunity, but it's unfortunate that the Sixth Circuit did not also take the opportunity to point out that a state law making it a crime to "curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost" obviously violates the Establishment Clause.

Citing Wikipedia

A NY Times story last week noted that judicial opinions increasingly cite Wikipedia as a source of facts, although mostly for background or tangential information. A few courts, however, have cited Wikipedia as a factual source on more central questions. The article raises three principal objections to such citations. None, it seems to me, is persuasive.

First, the article notes that citations of Wikipedia are ephemeral because entries change. Someone looking for a source a year or more after the opinion cited it might find something substantially different. For example, the link above to the NY Times story will go dead after the Times removes it from its complimentary site, per its policy of charging for older articles.

Well, so what? As Larry Lessig points out in the Times story, it's easy to create permanent caches of any webpage at any given time for future reference by using Webcite. (Check it out. It's very cool.) Moreover, while Lessig's point makes sense for most web pages, it's not even necessary for Wikipedia, which includes a "history" feature for each entry, so one can look up an earlier version if needed.

The second objection is the obvious one: Wikipedia is the product of sometimes anonymous volunteers who may not have any special expertise. Therefore it's just not reliable. This would be a good objection if it were true, but it isn't. A 2005 study in Nature found that Wikipedia is about as accurate as the Encyclopedia Britannica, although Britannica claims that the study was flawed (as detailed here.) Even if Wikipedia isn't quite as accurate as Britannica, over time it will become more so, as the market for Britannica disappears. (Can you imagine getting a young student a set of encyclopedias in the way that kids in my generation were given them as gifts?) Moreover, even right now there are undoubtedly hundreds of sources that are less accurate than Wikipedia that courts routinely cite. Take, for example, judicial precedents from many years ago that were based on information that is now hopelessly out of date.

A third objection is that once Wikipedia becomes a source for judicial decisions, litigants and lawyers will try to game the system by writing their own entries. This simply can't work given the open-source nature of Wikipedia. For example, a few days ago, in an effort to demonstrate the truthiness of knowledge, Stephen Colbert urged his viewers to edit Wikipedia to state that the population of elephants has tripled in the last ten years. (In fact, elephants are highly endangered.) This worked for a few seconds, whereupon the page reverted to the accurate version, and re-reverted each time a Colbertista made the change again. (You can read the changes in the History tab.)

The real objection to citations of Wikipedia thus appears to be a kind of doctrinaire epistemology in which knowledge only counts as such if certified by certified experts. But if the wisdom of a sufficiently large crowd turns out to be better, on average, than the wisdom of experts, then there is no good reason to insist on the latter.

Public Perceptions of Lawyers

Last month, there was some discussion on this blog relating to Mike's post, Are Lawyers UNIQUELY Amoral?, my follow-up post, Why do People Need Lawyers?, and others. A key point in the discussion was how to get the general public to appreciate the importance of lawyers to society. One of my former students, Tam Ho, who is now a judicial clerk, offers the following insights:

"It seems to me there are two distinct issues - (1) how lawyers are beneficial, and (2) that lawyers are beneficial. I hope I'm wrong here, but I think it may be the case that it will be impossible to explain the first question, because the answer involves some fairly rigorous thinking about philosophy (rule utilitarianism, as Mike's post points out, epistemology, ethics, etc.). I think it may be somewhat like trying to explain to a lay person how tensor calculus is beneficial to society -- can't do it.

"But I don't think that the lawyer bashing comes exclusively as a result of the public's lack of understanding for what lawyers do. After all, the public doesn't have any problems at all accepting the fact that tensor calculus is beneficial to society, even though they don't even know what a tensor is. They understand that without it, we wouldn't have cars, planes, and electronic voting machines, even though they don't understand the way calculus is used in those products.

"So -- and I think this is perfectly consistent with the question posed -- perhaps it would be better to focus on how to convince the public that lawyers are beneficial, and forget about the other, more ambitious question. Maybe they can understand that without lawyers, we can't have safe cars, cheap airfare, and a right to vote, even though they may not understand how that is."

I have a few reactions to these intriguing thoughts, but I'll save them for another day. I wanted to post Tam's arguments here to give other readers and bloggers a chance to respond, enhance, etc.

More on Yoga

I took a special interest in Anil's excellent post on yoga in classrooms
in India and the United States, as my 5-year-old has been doing yoga
regularly in his NYC public school kindergarten, and, in another class in
the same school, learned a Hindu prayer that he performed as a song with
the other kids in his class. Both the yoga and the prayer were taught as
part of his regular, mandatory curriculum, although I have no idea whether
either would have been mandatory in the strong sense that he couldn't have
sat them out if we'd complained. My wife and I, both practicing Jews, are
fans of the yoga and weren't troubled really by the prayer, either, even
though it was in fact a mantra in Sanskrit that could have been recited as
an element of Hindu religious practice. Constitutional or not, as Anil's
post suggests, it wasn't intended to be coercive, and given the context of
our little boy's school and his society, it plays no part in any larger
coercive environment. Had they been singing Christmas carols, in
contrast, we might have objected.

For a different reason we might also have objected had it been a prayer
from his own (also minority) tradition. In that case we might have been
troubled by the secularizing effect on the prayer itself, at least in our
child's experience of it. In church-state fights of the establishment
varieties, the potential negative effects on the religion actually being
espoused by the state don't get most of the airplay, but concerns about
them have a venerable tradition. Madison made much of them in his
Memorial and Remonstrance, for example. Anil mentions that some Hindus
and other yoga purists have objected to the new American varieties of
yoga. I wonder whether some yoga practitioners might also object to
yoga's association with state authority.

Is Yoga Unconstitutional?

Earlier this week, Somini Sengupta reported in the New York Times on the controversy in the Indian state of Madhya Pradesh over an initiative by the BJP-led state government to conduct a mass yoga program in the schools. The program has caused opposition by some Muslim and Christian groups, who apparently object less to the yogic exercises themselves than to the recitation of Hindu religious verses as part of the program. (One Australian reporter wrote that the plan “enraged India’s 160 million Muslims,” but that’s self-evidently ridiculous.) When it comes to trying to keep yoga out of the schools, Indians are hardly alone. In the United States, Christian groups have been attacking school yoga programs for years, echoing the words of the current pope, who admonished back in 1989 that yoga can “‘degenerate into a cult of the body’ that debases Christian prayer.”

There must have been something in the air in January, however, for the Global War on Yoga seems to have intensified surged everywhere these past few weeks. In the United States, Christian groups have renewed their concerns that “yoga’s Hindu roots conflict[] with Christian teachings and that using it in school might violate the separation of church and state.” And in Canada — that’s right, even in Canada — concerns over the potentially satanic influence of yoga have also been increasing in recent days:

“Supposedly, we do not allow religion in schools — and yoga is a religion,” said cattle rancher Audrey Cummings, 68, who filed a complaint with the Quesnel school board and the Education Ministry over the Action Schools program. Quesnel is in the B.C. interior, about 90 kilometres south of Prince George.

* * *

Yoga turns kids’ minds toward Hindu gods, Cummings said.

“If you’re not seeking the God of the Bible, His power, then by default you’re in the other camp,” Cummings said. “The other source of supernatural power is Satan.” [link]

The social and legal contexts in which these disputes have arisen are different in ways that seem significant. In Madhya Pradesh, the initiative is part of a broader program by the Hindu nationalist BJP to promote yoga across the state. For the first session, the Chief Minister himself served as yoga-instructor-in-chief, broadcasting instructions by radio to state-sponsored programs not only in public schools and colleges, but also in private schools, government offices, and even prisons across the state. (They apparently didn’t get the memo from Norway, which scrapped prison yoga when officials discovered that it made inmates irritable and aggressive.) Especially given past efforts by the BJP and its affiliate organizations to “saffronize” education — for example, by rewriting textbooks to include chauvinistic perspectives on Hinduism and denigrations of other religious groups — it’s understandable that some would suspect the true motivations behind the program and raise concerns about its potential effects. Secularism is an entrenched part of the Indian Constitution’s “basic structure,” but religion and the state are not meant to be completely separate. Rather, Indian secularism protects freedom of religion within a broader constitutional framework that demands equal respect for all religions, on the one hand, and at the same time contemplates state intervention to constrain and reform some religious practices that violate fundamental rights, on the other. Of course, yoga is not an example of the latter, although some popular American variants seem pretty close to cruel and unusual punishment to me. (“Hot yoga”? Competitive yoga??) But institutionalizing it on such a broad and comprehensive scale — and more importantly, if this is in fact true, with a self-consciously saffron tinge — may raise understandable concerns about the state’s commitment to affording all religions equal respect. The Madhya Pradesh High Court has ordered the state to make the program voluntary, and according to at least one news report, the government has dispensed with the recitation of Hindu hymns as part of the program. But depending on the remaining details, that might or might not be enough to ensure a non-coercive educational setting in which all religions are afforded equal respect.

In North America, by contrast, the school yoga programs seem not to involve much religious content at all, much less any intent to promote Hinduism or coerce acceptance of Hindu values. At least I’d be awfully surprised if they did — in 2007, yoga in America seems mostly about health, fitness, and keeping up with the Joneses. (Indeed, both conservative Hindu organizations and yoga purists have objected to some of the ways in which yoga has morphed in America.) It’s also not clear if these programs are a mandatory part of the physical education curriculum or entirely elective. But even assuming these school programs necessarily and unavoidably incorporate some religious content, albeit implicitly, is that necessarily a constitutional problem in context? If the programs were being implemented to promote particular religious values — for example, if they were “PraiseMoves” programs — that would of course be one thing. But coercion or promotion of religion seems pretty unlikely in this context. Especially since Hinduism is almost certainly a minority religion in just about every school district in North America, Hindus are probably not in much of a position to be coercing anyone, and since the proponents of these programs are almost certainly not even Hindu themselves, it’s not all that likely that their goal is to promote Hinduism. If, in context, both the purpose and primary effects of these programs are basically secular, then maybe the folks getting exercised about all of this should just close their eyes, relax, sit quietly, and take a few deep breaths using their diaphragms.

Now, on to more serious religion-state issues — can we talk about how today, all over the country, we are coercing schoolchildren to participate in the rituals of that major religious holiday, Groundhog’s Day?

Joe Biden, of course

I REALLY would like to write that Senator Biden's comments about Senator Obama will actually HELP Biden get the nomination. They have, after all, gotten him much more attention than the announcement of his candidacy otherwise would have. There's no such thing as bad publicity, right? I would like to write that, but that would be nuts. So the question is: who benefits? And the answer is: Hillary Clinton and John Edwards.

If Biden does stay in the race, he might actually get a small, temporary bump from the added exposure, maybe moving him to the front of the pack of second-tier Democratic candidates, ahead of Dodd, Kucinich, Richardson, and Vilsack. But if all of the leaders stumble badly, Biden will then be passed over for somebody else, if not one of the other second-tier candidates, then perhaps Al Gore. There is just no way a major political party will nominate a candidate with the kind of baggage Biden now has. Ask George Allen. (Yes, yes, I know that the Republicans nominated W with a different kind of baggage in each of the last two elections, but for whatever reason, his baggage wasn't so visible in 2000, and in 2004 he was the incumbent.)

Biden never really had more than a very long shot at the nomination anyway. Oddly, I think the real loser here may be Obama, because in reacting to Biden's comment, he fell into a bit of a trap. Obama's initial response was that this was a non-issue, that Biden is not a racist, and let's move on. Then, in response to an outcry, Obama made the fairly obvious point that there are other articulate African Americans, some of whom have run for President. That's right, of course, but in seeming to change his stance from one of "this is silly gotcha stuff" to "I'm not offended personally but the remark is offensive," Obama appeared to morph from a post-modern uber-candidate into a fairly typical identity-politics-driven politician. If so (and I hope I'm wrong) that could hurt him a bit, and thus benefit the other plausible candidates, Clinton and Edwards.

Native American Sovereignty And Successive Prosecutions

An interesting article in today’s Wall Street Journal discusses a problem that is apparently faced by many Native Americans who are prosecuted by tribal courts. As sovereign nations, the tribes have the power to prosecute offenses committed within their borders; however, they share that power, at least to some extent, with the federal government. The tribes have their own prosecutors, judges and jails. But they lack something very important -- sufficient resources to provide legal counsel to indigent defendants. This lack of resources does not hamper prosecutions because, as sovereign nations, the tribes are not subject to the Sixth Amendment right to counsel. As a result, many defendants are convicted in tribal courts without counsel.

One could debate whether this is something that should bother us (on the one hand, those who live on reservations are also U.S. citizens; on the other, it may not be up to us to impose our view of what is appropriate on the tribes, who under our current system have quite rightly been afforded at least some modicum of self-government), and I do not take a position on that issue here. The thing that caught my eye relates to what happens after a tribal conviction. As the Journal reports, although the federal government is responsible “for prosecuting major crimes committed by Native Americans on tribal land, such as murder, rape and arson”, “federal prosecutors regularly decline these cases” and leave them to the tribes to prosecute. This might not be such a big deal, except that apparently sometimes the federal prosecutors come back to charge a federal crime after the defendant has been convicted (without counsel) in the tribal court.

The Journal article refers to a 2004 case in which the Supreme Court ruled (7-2) that such a second prosecution does not constitute double jeopardy. The case, U.S. v. Lara, 541 U.S. 193 (2004), turns primarily on a conclusion that the source of a tribe’s authority to prosecute offenses on tribal land is its inherent sovereignty, rather than a delegated federal power. Because the successive prosecutions are carried out by separate sovereigns, there is no double jeopardy problem. Any objection to the absence of counsel in the first trial would be a due process objection to the first proceeding that has no bearing on whether or not that prosecution was undertaken by a separate sovereign. Although this is unfortunate for the defendant, in the end I don’t think it’s terribly controversial as far as it goes.

But within the Lara facts there seems to lurk a problem, to which the Journal article also alludes, that is not addressed in any of the five opinions issued by the Court (one majority, three separate concurrences, and one dissent). Mr. Lara was a member of the Turtle Mountain Band of Chippewa Indians, who married a member of the Spirit Lake Tribe and lived on that tribe’s reservation with his wife and children. He got into various trouble there, and the tribe ultimately issued an “order excluding him from the reservation.” He ignored this order, and was in the process of being arrested by a federal officer when he assaulted that officer. He was prosecuted by the tribe, without counsel, and pleaded guilty to the tribal crime of “violence to a policeman.”* The federal government thereafter charged him with assaulting a federal officer, a crime whose elements “mirror” those of the tribal crime. The uncounseled guilty plea in tribal court thus essentially made the case for the federal prosecutors.

This is quite plainly not a matter that failed to come to the attention of federal prosecutors until after the tribal conviction. A federal officer was the victim of the crime. The federal government’s interest in prosecuting the offense was at least as strong as that of the tribe. Yet the federal prosecutors let the tribal proceeding go first, with the result that when it was their “turn” they had a nice (uncounseled) plea allocution that apparently gave them all they needed for a federal conviction. Could that possibly be fair?

The fact that a person can be prosecuted by a tribe and by the federal government is in theory no different from the fact that a person can be prosecuted at the state level and at the federal level. I agree that double jeopardy is not the problem here. Maybe the right question is whether the results of the uncounseled prosecution should be usable in a subsequent federal proceeding if the federal authorities had the opportunity to prosecute first and specifically deferred to the tribe. In any event, in light of the manner in which tribal proceedings are conducted, it seems to me that a strategic decision to let them go first and then use their results to support a subsequent federal prosecution raises constitutional questions that are not addressed in Lara, and may well find their way back to the Court.

-------------------------------------------------------
*For a further discussion of the issues raised by the fact that the tribes can prosecute a member of any tribe (as opposed to only their own members) but cannot prosecute anyone else, see Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005).

More on Congress and War

Following up on Mike's post about the possibility of a congressional undeclaration of war, I thought I would note that he and I were among the 23 law professors who signed this letter to House and Senate leaders. The letter expresses the view that "the Constitution vests in Congress . . . . authority [that] is more than ample for Congress to give legal effect to its will with respect to the troop increase" in Iraq. More generally, the letter contends that Congress has the constitutional authority to play an active role in determining the parameters of our involvement in military conflicts.

Undeclaring War

A couple of days ago the Senate Judiciary Committee began hearings on the scope of Congressional authority to rein in a President's conduct of a war that Congress has previously authorized. Not unexpectedly, White House allies played the troops card. Here's Orrin Hatch on the prospect of cutting funding for the war or aspects of it: "The message to our troops is that we no longer support them." This is misleading rhetoric, of course. A conditional cutoff of funds could and would be structured so as to provide actual service members on the ground with all necessary equipment, pay and other support needed during a withdrawal. Senator Hatch may be right that Congressional use of the de-funding option would be perceived by many Americans as undercutting the troops, but that's partly because people like him are deliberately fostering this misunderstanding.

On the merits of the separation-of-powers question, it's notable how weak the argument is for Presidential unilateralism is. The Constitution authorizes the President to "suppress Insurrections and repel Invasions" even without prior Congressional authorization, and given the conditions of modern warfare, this language can plausibly be read to authorize the President to commit troops to combat overseas even where the military threat does not technically count as an "invasion." But beyond responding to threats on an emergency basis, the President does not have power to authorize military action without congressional support.

Is there an argument that once Congress has authorized military action, it can't take back that authorization? It's hard to see what functional purpose such a one-way ratchet would serve. Congress was given the war declaration power precisely so that the branch of the federal government most directly answerable to the People would need to assent to the sacrifice of lives and treasure. That logic would appear to be just as strong for continuing a war as for starting one. The only argument I can see to the contrary is a textual one: The Constitution expressly grants Congress the power to declare war but grants Congress no power to undeclare war: expressio unius est exclusio alterius. There are some contexts in which an argument of this sort makes sense. For example, the Senate can confirm but can't unconfirm cabinet members and judges. However, there is a good functional reason for treating the confirmation power as not including its opposite: once a person becomes an executive official or judge, separation of powers demands that he or she be independent of Congress. By contrast, there is no good reason why the President, once given the power to wage war by Congress, should be able to ignore a congressional decision to withdraw that power.

So Congress, what do you say? How about repealing the authorization for use of military force in Iraq to make clear who the real decider is?