crazydictator.com

While surfing for material for yesterday's post, I came across a strange blog indeed: The official page of Iranian President Mahmoud Ahmadinejad. Although M-Jad (as his hip-hop friends no doubt call him) doesn't blog as frequently as I do, he does have a country to run into the ground and half the world to freak out. What he does post is fascinating: replies to queries from his admirers all over the world, but especially Americans opposed to the Iraq war and the Bush Administration policies.There's even a feature by which readers can post comments, although judging by the near-uanimous praise in the comments, my guess is that if you were to post a critical comment it would either never appear or be removed post-haste. But maybe not.

For example, scattered among the glowing praise---e.g., "I support Iran nuclear program too. US is biggest danger for all Middle East;" "Keep it up Mr.President you are our hero;"---one finds a smattering of uncensored criticism---e.g., "Mr. President, use your brain and stop supporting terrorists and stop also the nuclear program. If you dont, your country will overcome the same as Germany in Hitlers time."---and even, oddly, criticism of the blog for censoring comments---e.g., "Its great to see the definition you have of a forum? Your censure is reviewing every message before posting it. Is that liberty of opinion?"

I didn't post a comment myself, even under a false name, out of fear that I or my IP address would end up on some scary list.By far the most astounding comment from a reader is the following: "Mr President - it will be great if you can tell the person whos maintaining this website not to use ASPx (Windows Technologies - American dictators) There are far better Open Source projects PHP etc." That's right, here we have someone who thinks it a good use of his time to read and comment on the blog of Mahmoud Ahmadinejad, and finding nothing objectionable in Iran's treatment of women, its Holocaust denial, its support for Hezbollah, or its nuclear program, complains about Microsoft!

Is Iran Subject to Reciprocal Threats and Promises?

Among the reasons that the Bush administration has given for not treating al Qaeda and other Taliban captives as prisoners of war is that as blatant violators of the laws of war themselves, these detainees forfeit the protections of the Geneva Conventions. In a 2002 FindLaw column, I explained why the claim was plausible, especially with respect to al Qaeda, but I should have noted then that even suspected al Qaeda members are entitled to the Geneva Conventions' protection until their status was determined by a competent tribunal, pursuant to Article 5 of the 1949 Convention. Since that time, my column has sometimes been cited in support of the administration's decision not to afford Gitmo detainees POW status, even though I made clear at the time that even if the administration's approach was legally justified, that didn't necessarily make it right as a matter of policy. The crisis over the captive British sailors and marines highlights the point.

Iran's parading of the British captives on television reading what were no doubt scripts would clearly violate the Geneva Conventions' prohibition on humiliating treatment---IF BRITAIN AND IRAN WERE AT WAR. But they're not, at least not yet, and so Iran can plausibly argue that its treatment of the British captives (though not their capture itself, if British gps readings are accurate) is legal. Yet what possible purpose is served by affording military captives less protection if their captors and their home country are not technically at war than they would be entitled to if there were a war on? To me, this sort of hairsplitting is all too reminiscent of our own administration's efforts to evade the Geneva Conventions and domestic law governing treatment of captives.

Is there a relation here? Is it possible that our own parsimonious interpretation of Geneva gives the Iranians cover to engage in similar shenanigans against our guilty-by-association British allies? One might think not on the ground that the Iranians don't care about public opinion or reciprocity. There's certainly something to that. Indeed, Ahmadinejad seems to enjoy defying world or at least Western opinion. Yet that doesn't make our own dancing around Geneva quite irrelevant. For one thing, Iran is not a completely irrational state. For years, the U.S. and Iran, as well as our respective nationals and companies, peaceably settled commercial disputes at the U.S.-Iran Arbitral Claims Tribunal. And for another thing, even if the Iranian government does not itself care about international law, the public in Europe and the rest of the world does. To the extent that perceived U.S. disrespect for international law lowers the bar for the adversaries of the U.S. and its closest ally, that weakens support for tough measures.

Maybe such measures are doomed because there's no way the Russians will go along in the Security Council under any circumstances. And maybe tough talk with Iran is actually counter-productive. But at least to the extent that we and our allies will sometimes want to be able to invoke international law credibly, the current crisis illustrates that we're less able to do so than we would have been had we generously observed its letter and spirit.

Reason, Reason Everywhere

When Dolly the sheep's life was announced in 1997, few thought of her as the Brave New World of meat consumption (itself a small cause for hope I guess). But many interesting posts to the blog recently on eating meat and responding to climate change have had me thinking about just how complicated being an omnivore is in our culture--and how much more complicated it is about to become. Companies like ViaGen have been arguing for years that cloning livestock might eliminate major sources of uncertainty in animal production and thereby reduce the moral and environmental costs that mass animal agriculture represents. For example, hatching only the chickens that are able to thrive in the confinement houses Pilgrim's Pride, Tyson, and the others maintain may be a way to reduce cruelty (it may even be the most profitable way). From my own experience with the Clean Water Act in the Chesapeake Bay watershed, I can attest that making the use of phosphorous- and nitrogen-reducing chickens feasible for growers can be a big positive for a watershed.

But it is experiences like that which have me worried lately. I may have just enabled a bad industry to last longer. Americans don't seem to understand it is their very existence that equals environmental and moral tradeoffs. You want to begrudge Al Gore a 10,000 square foot house? It smells a little envious to me. If you don't eat meat (and I don't either, for 12 years), how much fossil energy does it take to bring you avocados or apples in January? If you've ever eaten locally for a winter (and I did so once), how many Americans do you see doing it long term? How many could afford to? Should you feed your infant only locally grown food? If the answer is yes to all of those, does that make ending subsidies to energy-intensive agriculture into a moral issue? I think so, but I'll bet there is someone reading this blog who could convince me it is not. Of the few people I know personally who are within, say, 200% of the poverty line, none of them are vegan. We have complicated modes of being good citizens and respecting nature here: we buy Priuses and point out hypocrites--but usually only hypocrites who are richer.

When FDA found at the end of 2006 that, from its research, it had no basis for requiring the labelling of cloned meat, bloggers and others dwelled on the question for a few minutes. Lots of high rhetoric flew and people pontificated about the morality or efficiency of cloning, disclosure, and the spectrum of issues in between. Nobody I read came right out and admitted they were befuddled by the number of variables that were beginning to intertwine in our talk about "sustainability" and cruelty-free food.

Of course, FDA never said it was "safe" to shift US livestock markets to cloned subjects. And the truth is, our ability to manipulate genetic events at the molecular level is dwarfed by our ambitions to do so. It seems that clones, at least for now, have serious health problems and die prematurely at much higher rates than real offspring. Should these problems be worked out by an eventual "perfection" of cloning technology, how should the ethical omnivore respond? Is buying cloned meat an incentive for (or reward for having conducted) such lethal research or is it the support of a potentially more sustainable form of mass agriculture that reduces cruelty? In my view, practical reason may be losing its bite in the face of these dilemmas.

When Sex Counts

That's the title of a brand new book by Dorf on Law blogger and Rutgers Law Professor Sherry Colb. Actually, as you can see from the cover (left), the full title is When Sex Counts: Making Babies and Making Law. You can buy it from Amazon, Barnes & Noble or directly from the publisher.

Beginning with a riff on the Supreme Court's famously obtuse distinction between pregnant and non-pregnant persons in Geduldig v. Aiello, the book addresses a host of sex equality issues by observing the centrality of reproduction and pregnancy (or the capacity for pregnancy) to nearly all of them. I think this is a rare and successful effort to write across the spectrum of sex equality issues. But don't take my word for it. Here are the blurbs:

"With deft writing, clear thinking, and deep knowledge, Sherry Colb illuminates the dark intersection of law and sex. She displays both journalistic verve and scholarly rigor. The result is a wonderful book that makes advanced thinking about complex controversies nicely accessible to the general reader."—Randall L. Kennedy, Michael R. Klein Professor of Law, Harvard Law School, and author of Interracial Intimacies

"In her feisty and informative exploration of pregnancy, rape, and sex discrimination, Sherry Colb flips the familiar conclusion of 'no easy answers' to the more challenging premise of 'no easy questions.' Are pro-life feminists feminist? Is male circumcision gender violence? Should assisted reproduction be prohibited? In clear staccato chapters, When Sex Counts offers readers thoughtful and thought-provoking analyses of the toughest issues now confronting women and men as their lives intersect with law."—Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University Law School

"A beautifully written and brilliant exploration of gender in American society. Professor Colb tackles all of the hard questions in a series of provocative and insightful essays about some of the most important and intimate aspects of our lives. A must read for all who care about issues of gender, sexuality, and reproduction."—Erwin Chemerinsky, Alston & Bird Professor of Law, Duke University Law School, and author of Constitutional Law (2006)

Wait Wait, Maybe They Should Have Booked Justice Scalia

This past weekend, Justice Stephen Breyer was the guest on the "not my job" segment of Wait Wait, Don't Tell Me, the NPR weekly news quiz show (Click here for the show and then click on "not my job" to listen.) For those of you unfamiliar with the show, during this segment, accomplished people are asked ridiculous questions about subjects they don't know anything about. Breyer went 0 for 3 on questions about David Bowie, Iggy Pop and Ozzy Osbourne. Indeed, from his reactions to the questions, it appeared that Breyer had never heard of any of these people.

To his credit, Breyer showed good humor, mostly by just showing up, but he's clearly not ready for prime time. During the shmoozey part of the show, for example, Breyer gave his standard stump speech about how the Court decides hard cases and that while they often disagree, he has never heard a voice raised in anger. "The job is mostly reading and writing," he explained for no apparent reason.

Breyer's best line was actually his report of a quip by Justice Scalia. Breyer explained how, as the junior Justice for the dozen years before Justice Alito's appointment, it was his job to open the door when there was a knock during the conference. Once, he said, he opened the door to receive delivery of a cup of coffee for Justice Scalia, and brought it over. Scalia then said "well you have been doing this for a long time." Breyer replied, "yes, twelve years, I've gotten very good at it." To which Scalia jokingly replied, "no you haven't actually."

All in all, Justice Breyer acquitted himself reasonably well. He probably succeeded in humanizing the Court and projecting an image of good-natured earnestness, but I was left scratching my head about the point of his appearance. Perhaps the answer is to be found in the 1980s-era cartoons by Mark Alan Stamaty, featuring Congressman Bob Forehead, who, despite his political success, yearns to be a tv game show host. Who would have thought that Supreme Court Justices have similar ambitions?

Environmental Responsibility: How Much is Enough?

Mike's post from earlier today raises an issue that I've been thinking about for some time. Do Al Gore's choices to live in a large house and to travel extensively contradict his claims that reducing global warming is a "moral issue" and undermine his credibility as a spokesman for environmental causes? The right-wing press certainly thinks so. While channel-surfing earlier this month, I noticed that some talking heads on Fox News were criticizing Gore and his receipt of an Academy Award (R), with the words "Hollywood Hypocrites" emblazoned across the bottom of the screen.

Mike suggests a difference between "moral duties" and mere "policy matters" that is helpful for his exploration of the carbon offsets issue. To evaluate claims of hypocrisy, though, this difference is irrelevant. The question is whether one who advocates policies to mitigate environmental harms is a hypocrite if she continues to engage in activities that cause environmental harm. There is no satisfactory answer to that question, because this is one among many issues where even enlightened and committed people will not commit themselves to the most extreme action possible. Let's set aside the "Gore as Spokesman (and thus held to a higher standard)" angle and simply look at his actions as a consumer of energy. His house, we are told, consumes as much energy in a year as 20 Hummers. That's bad. Of course, he has enough money that he could build and heat an even bigger house and also own and drive many Hummers. Is he to be credited for being less wasteful than other very-high-income people or condemned for not doing more to reduce his energy consumption? Both. Let's not pretend, though, that he could ever satisfy everyone who might criticize him for not doing enough. If he stops flying, will he still own a car? If he owns an electric car, how dare he not remember that electricity is produced by burning coal or by splitting atoms! If he cares so much about the environment, after all, why doesn't he live in a cave?

This line of attack is a familiar one. On this blog, Sherry Colb has discussed how quickly meat-eaters attack vegetarians for any deviation from absolute purity. ("Oh, you think you're so morally superior!? Well, I see you have some leather trim on your shoes. So much for you!") Even vegans can be attacked for not setting aside everything else in their lives to devote themselves to saving animals. It's always possible to do more. Similarly, people like Warren Buffett who give large charitable contributions can plausibly be criticized (or their generosity diminished) by pointing out that they are still billionaires. Interestingly, if a person really did move into a cave, or spend her life saving animals, or give away every last penny of her wealth, she would be dismissed as a freak. Why should regular people listen to that nut, if she's willing to live in a cave and eat grubs?

Ultimately, when lines are impossible to draw, it comes down to good faith. Fox News shows no indication that it really wants Gore to be more environmentally responsible. They're just grabbing onto whatever convenient criticism they can. The rest of us can always aspire to do more -- for the poor, for the planet, for the animals, and for other good causes -- but we need not fall into the trap of setting an impossibly high bar. Gore should set his bar higher, but I'll take him over his critics any day.

Al Gore, Global Warming and Vicarious Veganism

In my FindLaw column yesterday, I argued that Al Gore undermines his ability to act as a spokesman for combating global warming by living in a very large house and jetting around the world --- even though he "carbon balances," i.e., pays green causes to plant trees, cover landfill and take other actions that compensate for his own generation of greenhouse gases. I compare these compensating measures to the purchase of papal indulgences and the payment of substitute soldiers by Civil War draftees. (I go on, however, to praise Gore's policy proposals.)

Here I want to add another example. Suppose I think that it's wrong to eat animals and animal products (as in fact I do) but that I really like the taste of meat. Could I discharge my moral obligation (as I see it) to be a vegan by continuing to pack away the hamburgers and steaks but pay a carnivore to convert to veganism so that I "meat balance?" The very idea seems absurd.

But I've been wondering whether this sort of comparison is unfair to Gore. Perhaps his real mistake was in referring to global warming as a "moral issue," and thereby implying that each of us has a moral duty to future inhabitants of the planet. If global warming is just a policy matter, then all we should really care about is the bottom line. Or perhaps there is a species of moral actions that we should evaluate simply by our net impact. So that maybe it is morally permissible to buy one's way out of some obligations but not others. I certainly have the intuition that this is so. I also have the intuition that vicarious veganism clearly doesn't work, while vicarious carbon neutrality is closer to the line of the permissible. Another clear example: I can't discharge my duty not to commit murder by going on a killing spree and then saving an equal number of other lives. However, I am quite unclear about what exactly the criteria should be for deciding when a moral duty can be discharged by payment rather than directly. Or perhaps I'm simply wrong, and all duties can be discharged vicariously? (Don't worry; I'm not armed.)

One Last Bong Hit for Jesus

No doubt we'll revisit Morse v. Frederick when the Supreme Court decides it, but for now I just want to note one small irony and a hilarious moment from the oral argument. CJ Roberts gave the respondent's lawyer a hard time for seeking damages against the principal. How was she supposed to know exactly what was and wasn't permitted by the First Amendment, given that the Justices and lawyers themselves were having a dickens of a time parsing the prior precedents? The lawyer gamely offered to accept only nominal damages. (He couldn't completely forgo damages because that would moot the case.) But Roberts wouldn't let go because of the larger point at stake and thus the impact on other cases.

Thus the irony: It's certainly true that the Court's precedents governing student speech are less than crystal clear and that this probably justifies a finding of qualified immunity here. But the reason the Court's precedents are unclear is that since Tinker affirmed a right to non-disruptive student speech, a series of fairly conservative decisions have muddied the waters. If the Court valued student free speech to a greater extent, it could have articulated a clearer rule.

And now the hilarious moment: At one point, Justice Breyer referred to the fact that Frederick had unfurled a 15-foot banner. Frederick's lawyer corrected him, pointing out that the banner was only 14 feet. To which Breyer replied, "good point." You gotta pick your battles.

Public Opinion's Potential Impact on the Executive Privilege Standoff

I've been telling reporters who ask about executive privilege that if Congress and the President ultimately strike a deal about the conditions under which Karl Rove, Harriet Miers and/or others testify about the Gonzales Eight Massacre, the terms of the deal will likely reflect the parties' relative bargaining power, which in turn will depend on how the issue is playing with the public. The latest Pew poll shows that most people aren't paying much attention to the story. To my mind, such inattention favors the administration. If people think that the scandal is much ado about nothing very much, they're unlikely to regard efforts by Congress to get to the bottom of the story as especially important.

To be sure, public apathy could cut the other way: If people think the issue is no big deal, they might think the administration is overreacting by not just revealing everything there is to know about it. But I think that's unlikely. I would expect that the "prosecuting" side of an investigation benefits from public interest. This may be why Whitewater --- which almost nobody ever understood and therefore which almost nobody cared about --- lacked legs as a scandal, while the Lewinsky Affair, with its prurient appeal, played well for a Republican Congress. Conversely here, absent some salacioius revelation, apathy favors the administration.

In any event, even if we judge the public yawn as a wash, Bush's own commitment to executive privilege as a matter of ideology may be enough to ensure a genuine stalemate. My fellow FindLaw columnist John Dean has an interesting analysis of that aspect of the issue here.

Perhaps Bush is the Decider After All

Yesterday we learned that almost immediately upon taking office, Defense Secretary Robert Gates attempted to persuade President Bush to close Guantanamo Bay's Camp X Ray and hold trials of detainees within the United States. Gates, with support from Secretary of State Rice, argued that Gitmo is a PR disaster that is undermining U.S. foreign policy throughout the world. As the story has been reported, VP Cheney and AG Gonzales strongly objected, and have, for now at least, prevailed. This episode thus fits a familiar storyline that goes back to 2002-2003: the moderates in the Administration (then including Colin Powell), especially at State, make their arguments, only to be tuned out because of Bush's reliance on Cheney.

Here I want to suggest a different reading: Bush is actually making these (disastrous) decisions. After all, it's not as though Bush has been doing Cheney's bidding on EVERY foreign policy question. The decision to strike a deal with North Korea is the prime example of Bush turning away from Cheney's views, and though it's hard to know what went on within the White House, it's certainly possible that Cheney also objected to the dismissal of Rumsfeld (given their longstanding connection). So, if Bush doesn't always bend to Cheney's (presumed) will, perhaps he just happens to agree with Cheney most of the time. And if that's so, Bush should get credit for not simply succumbing to his neocon svengalis. And more importantly, he should get the blame for . . . well, you know, everything.

Polar Bear Polar Bear, What Do You Hear? I Hear a German Planning to Kill Me

Continuing the animal rights theme from yesterday, I bring you polar bear cub Knut, left. Knut's mother refused to care for him, so he is being hand-fed by zookeepers at the Berlin Zoo, despite the objection of self-described animal rights activist Frank Albrecht, who says Knut should be killed because "[h]and-rearing a polar bear is not appropriate and is a serious violation of animal rights." This is the sort of stupidity that gives animal rights -- indeed, people called Frank -- a bad name.

How might it be a violation of Knut's rights to be hand-fed by humans instead of killed? Of course, there are some fates worse than death. Perhaps being in a zoo at all is such a fate. But if so, why does Albrecht object to hand-feeding rather than zoo-ing of Knut? Moreover, it's not clear to me that zoos are contrary to the interests of animals. Most modern zoos affiliate with and raise consciousness for organizations that aim to conserve the wild habitat of the kinds of animals on display. That may not justify capture of wild animals for zoo display, but it hardly warrants euthanasia of animals born in captivity.

More broadly, I can't help but wonder whether this story has gotten the press it has because it provides an opportunity to ridicule an animal rights activist. The argument goes like this: This fellow Albrecht is a nut. He loves animals in theory but in fact he wants to kill this adorable polar bear cub. Thus, animal rights is bunk. Well, as someone who believes we have moral obligations to non-human animals, let me just say that Albrecht does not speak for me. It's possible to believe in animal rights and to support the wellbeing of particular animals like Knut.

Economics, Slavery, and the Humane Treatment of Animals

Wednesday’s New York Times contained a letter to the editor responding to a recent article attacking modern methods of pork production. The letter, composed by the President of the National Pork Producers Council, asserts that “America’s 67,000 pork producers treat their animals humanely. They do so because it’s the moral and ethical thing to do, and it’s in their best economic interest.”

Before even considering the merits of the claim, it is worth noting -- as I do in teaching my Evidence students about the impeachment of witnesses generally -- that the letter-writer has a bias that might render anything positive she says about the production of pork suspect. Beyond this general point, it is important to respond to the claim that those who traffic in animal flesh have an economic incentive to treat their animals humanely. For many well-meaning people who consume meat and other animal products, this argument has some appeal: why would one want to treat animals cruelly? Wouldn't such cruel treatment degrade the quality of the animals’ meat?

The flaw in this argument lies in the assumption that treating a large group of living creatures humanely increases their economic value to others. To put it most basically, those who raise animals for slaughter or other use have two separate economic goals: to produce as much meat (or cheese or eggs) as possible per dollar of investment, and to produce a high-quality product. Intensive farming methods -- which produce most of the meat and other animal products consumed in the U.S. -- emphasize the former goal over the latter. Per dollar of investment, intensive farming produces an enormous amount of meat. Even if many of the animals involved die in the process, enough survive to make the "yield," in terms of meat brought to market, more profitable than it would be at an analogous but less cruel farm in which the animals all survived until slaughter. (This calculus does not take account of externalities such as pollution, let alone the animals’ suffering, because others bear these costs.)

One farmer, quoted in the very readable The Way We Eat: Why Our Food Choices Matter, by Peter Singer and Jim Mason (2006), explained that he might pay for an anesthetic when castrating his bulls if it only cost a penny or so, but it costs more than that, so he doesn't. Just think about that for a moment: in one small part of the process of producing the beef that people eat, bulls are castrated without anesthesia. If such pain were inflicted on a human terrorist suspect, it would fall easily within the definition of "torture," even under the Bybee memo's stingy definition.

To see that economics will not generate the humane treatment of farmed animals, one need only look to a relatively recent institution in the U.S. in which sentient, intelligent and emotionally advanced human beings were bought, sold, and used involuntarily to serve the needs of other human beings, much as sentient, intelligent, emotionally advanced animals continue to be used today. I speak here of slavery. Some suggested, during the time of slavery, that slave-holders could not possibly be engaging in the sorts of brutality of which they stood accused by abolitionists. Slave-holders, they argued, had a built-in incentive to treat their slaves humanely, because a person who is beaten and injured cannot be as productive as a person who is treated well. As it turned out, however, maximizing the utility of slaves did not appear to entail their humane treatment, and brutality was a routine part of a slave's existence. Indeed, as I learned recently from Harriet A. Washington, the author of Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present, some perpetrators of slave torture continue to be celebrated today. For example, James Marion Sims, the "Father of Gynecology" and the first doctor in the U.S. to have a statue built in his honor, made many of his important discoveries while performing unanesthetized surgeries on African-American female slaves. He could have given many of them (along with slaves whom he used in other medical experiments) ether, but he did not think it was worthwhile to do so. If one is concerned only with the cost to oneself, then, the moral difference between using anesthesia and using manual restraints becomes inconsequential.

What slavery does -- whether the slave is a human being or an animal -- is to render the subjective experience of the slave irrelevant. The reports of people outside the industry who have observed and examined feedlots, slaughterhouses, and other such places confirm the irrelevance of animal suffering to the industry.

Public Schools as First Amendment Institutions?

I've been reading the oral argument transcripts in Morse v. Frederick. Interesting reading. With the luxury of a Wednesday-morning quarterback, I'm not blown away by Kenneth Starr's argument (not that I could do better!); he seems to suggest that while Tinker's rule protecting student political speech should be maintained, there should be some kind of per se carve-out for drug-related speech, presumably for the reasons so eloquently offered by Mr. Mackey. I don't think those two principles sit together well. But let me move past that and focus on a related but different aspect of the argument. In effect, Starr and Edwin Kneedler, the Deputy SG, argue that public schools should be able, "under our policies of federalism . . . and democratic theory[,] to fashion [their] educational mission[s] subject constitutional safeguards." Pursuant to this principle, "a school does not have to tolerate a message that is inconsistent with its basic educational [mission]."

Sound familiar? To those few valiant readers who have struggled through my most recent paper, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, it should. This is very much the sort of argument I have advanced in the university context, as to both public and private institutions. I have argued that under some circumstances, universities ought to enjoy substantial autonomy to shape their own institutional missions and to regulate speech and other aspects of campus life in accordance with those missions. Leaving aside Mike's thoughtful earlier critique of that approach in an earlier post, let me ask: Does the fact that I have championed such an approach make me a fan of the arguments advanced by Starr and Kneedler? If universities are entitled to be treated as First Amendment institutions and granted substantial autonomy accordingly, are K-12 public schools similarly entitled?

My tentative answer is, not exactly. I am not averse to treating public schools as First Amendment institutions in a variety of ways. But there are important distinctions between public schools and universities, and those differences should shape our legal treatment of those distinct institutions. First, universities are sites for the exchange of ideas, and for the production of free speech, in the form of research, publication, speeches, conferences, and so on. Public schools, on the other hand, primarily serve the First Amendment as sites for the production of the facility for free speech: that is, they teach children so that they will have the capacity to be engaged and active citizens elsewhere and later in life.

That distinction may actually point in favor of the approach that Starr and Kneedler propose. But there are other differences that may point in the opposite direction. One aspect of my institutional approach has tended to be that a variety of speech institutions deserve greater autonomy because they are highly self-regulating, and that self-regulation takes place through a variety of norms and traditions that tend to be fairly stable, fairly disciplined, and fairly protective of and conducive to free speech values. It is not clear the same can be said of public schools and public school administrators, and there may therefore be a greater need to subject them to a greater level of constitutional constraint. Moreover, I tend to assume that there is greater room for a variety of distinct educational missions among universities, and thus greater room for a varying approach to speech rules among those universities. By contrast, it may be that the "institutional mission" of the public school is more uniform, and that this mission requires a more uniform approach to student speech, and thus calls for less deference to a public school's "autonomy," even if there are still substantial reasons to defer to a school administrator's on-the-ground judgment about particular facts. I note that the growing number of magnet schools and other mission-specific public schools might change the validity of this second argument.

In short, I don't think we should discount Starr and Kneedler's argument out of hand, but I think their particular focus on deference to a public school's "institutional mission" is more misplaced in the public school context than it would be in the university context. Deference to a public school administrator's factual judgment in particular cases is different from deference to a public school's general educational mission, and we ought not conflate the two, which I fear their argument does. There is room for a variety of educational missions and corresponding speech regimes in the wider universe of universities, and we can be somewhat assured that deeply settled norms of self-regulation, as well as market forces, will offer meaningful constraints in these circumstances; it is less clear that the same is true in the public school world.

What's my sense of how Morse itself should come out, regardless of the First Amendment institution issues? I think the focus on drugs, or even on some kind of per se rule against advocating illegal conduct, is a dead end. I certainly do not think schools should be free to suppress any and all such messages in any public school location. For example, I think a rule saying that a teacher in a lunchroom can punish a student for telling a table of classmates that he thinks the drug laws should be reformed, or that the President should authorize assassinations even where not legally authorized to do so, would be wrong, although it seems to me Justice Scalia's comments at oral argument almost seemed to favor such a rule. Certainly such an approach would eviscerate Tinker. I would rather see the Court focus on two questions: location (or context) and disruptiveness. Future conduct like that of Frederick in this case could still be prohibited under a reasonable consideration of those factors, it seems to me, without giving administrators a roving license to selectively and clumsily punish student speech in a content- or viewpoint-based manner based on their own, often dim understanding of their educational "mission."

Show Trials & Fall Guys

One would think that an Administration that has tried at every turn to substitute unreviewable military tribunals for regularly constituted courts in its foreign policy would be skittish about using the term "show trials," especially in a week in which the confession of Walid Muhammad bin Attash to the bombing of the USS Cole was subject to uncertainty due to lingering concerns that it was the product of abusive treatment during his time in CIA custody. Yet there was the President yesterday warning Congressional Democrats not "to head down the partisan road of issuing subpoenas and demanding show trials" in their investigation into the facts of the Gonzales Eight Massacre. And that was in the prepared portion of his remarks.

The President offered what he called a "reasonable way to avoid an impasse." Attorney General Gonzales would testify before Congress, while White House staff, presumably including Karl Rove, would meet with members of Congress in private without taking an oath. In what sense would it be a "show trial" for Rove to go before Congress in public and under oath? The oath can't make a difference but appearing in public certainly could. Bush fears that Democrats would simply use Rove as a whipping boy. But if that's the worry, why isn't there the same worry about Gonzales? Perhaps Bush has more confidence in the ability of Gonzales to deflect Senators' questions, based on past experience. Or perhaps, more darkly, Gonzales is the designated fall guy for this scandal, and sending him up to the Hill for a "show trial" keeps the attention on Gonzales rather than Rove or Bush.

One other possibility is that Bush (or Cheney or someone else advising Bush on these matters) actually believes in the principle he has been citing. That principle, recall, is that the President needs to be able to receive candid advice from White House staff, and that public testimony undermines the incentive towards private candor. But this explanation doesn't wash because disclosure of the emails --- which has already occurred --- has the exact same impact. Given the content of the emails disclosed, there is no way that their authors thought they would ever be read outside of the White House (except perhaps by historians decades later). Here, as in other contexts in which Presidents have invoked executive privilege or its rationale, the invocation is selective, thus undermining the underlying principle. Accordingly, for now I'm going with the Gonzales-as-fall-guy theory. If Gonzales does join Libby in that category, then the Administration may soon have to start worrying about running out of fall guys.

Punishing Contempt, Part 2

As Marty Lederman notes in a comment to my earlier post today, Congress has the power to punish contempts directly, although it hasn't exercised that power in decades. In the 1935 case of Jurney v. McCracken, the Court upheld the Congressional contempt power even when it was exercised after the fact, which is the usual distinction between criminal contempt and civil contempt. So Marty may be technically right that the power is civil in nature, but in substance it's not different from criminal contempt. That in turn suggests that my invocation of the Bill of Attainder Clause is at best technically accurate: Because the contempt is nominally civil, there's no problem under the Bill of Attainder Clause, but the spirit of the Clause is certainly violated by imprisonment after the fact for "civil" contempt of Congress. Could that explain why the practice has fallen into disuse? Or is it possible that notwithstanding the old tradition of Congressional power to prosecute contempts directly, modern understandings of criminal procedure do not permit this practice?

Note that in McCracken, the witness was an attorney who originally refused to comply with a Senate order on grounds of attorney-client privilege. Justice Brandeis justified the upholding of the imprisonment in part on the ground that judicial review would be available. Presumably that would mean that judicial review of a claim of executive privilege would also be available if, say, the Senate were to imprison Karl Rove for contempt without referring the matter to the Justice Department or if the Justice Department declined to prosecute.

From the perspective of separation of powers, direct prosecution by a house of Congress, followed by judicial review, seems the preferable mode of proceeding, as it makes each branch put its money where its mouth is. But it does raise serious due process concerns of the sort addressed by the Bill of Attainder Clause.

Executive Privilege, Contempt of Congress & One More Thought on "Partisanship"

You can listen to my segment on NPR's All Things Considered here. The most interesting thing I say in this segment involves the penalty for refusal to testify before Congress. I was asked what happens if the Senate subpoenas Karl Rove and Rove refuses to testify, invoking executive privilege. I said that one possibility would be for Congress to hold Rove in contempt. By statute, contempt of Congress can result in up to a year in prison, but Congress does not itself bring the prosecution. Instead, it refers the matter to the . . . wait for it . . . Justice Department. Ouch! Could Congress argue that just as executive privilege exists (to the extent that it does) to protect the President's independence from Congress, so Congress should be able to prosecute contempts directly, in order to protect it from over-dependence on the executive branch? If Congress itself acted as the trier of fact, that would likely violate the Bill of Attainder Clause because, except for impeachments (which do not carry criminal penalties), Congress cannot act as a court. But what if Congress were to establish a mechanism whereby it alone, without input from the executive branch, chose a prosecutor to bring a contempt prosecution in the federal courts? In upholding the since-lapsed Independent Counsel Act in Morrison v. Olsen, the Supreme Court attributed some significance to the limited role that the President, through the Attorney General, played in the appointment and removal of an independent counsel, so one might think that cutting out the executive completely would be impermissible. But the Morrison case is so conclusory in its reasoning that it's hard to extrapolate from it --- and personnel changes on the Court since 1988 have led to greater sympathy for the unitary executive theory that Morrison rejected.

Meanwhile, one of the commenters on my post on partisanship versus politics objected that he didn't buy my distinction "between 'political' and 'partisan' in this instance. If 'partisan' simply means 'benefitting the party,' then of course what Clinton did was partisan. He rewarded loyal party members with prestigious appointments, thus ensuring loyalty and dangling a carrot for the next generation of loyal dems (in that case) who want to enjoy the spoils of some future victory." This objection suggests that for my buzzword to catch on, I need to be a bit clearer. Here goes.

My claim was NOT that partisanship is never appropriate in the executive branch. Much as I dislike the spoils system, it is deeply entrenched in our political life: Presidents get to reward their political friends with plum appointments, subject to Senate confirmation for principal officers. My claim is that U.S. Attorneys are not supposed to be partisan in how they choose cases to prosecute. Likewise, it's improper for the President or AG to pressure a U.S. Attorney to act in a partisan manner in deciding which cases to prosecute, by firing or threatening to fire those who don't make prosecutorial decisions on a partisan basis. This is simply not open to reasonable debate, which explains why neither the Administration nor Republicans in Congress has flat out said anything resembling: "It's fine for prosecutions to be brought on a partisan basis." Instead, they either contend that the Gonzales 8 were fired for some other reason or obfuscate by defending the power to fire rather than the reasons for the firings. Capice?

Dorf on Dorf

Adam Liptak has a piece in today's New York Times that refers to my reaction to the DC Circuit opinion in Parker. Liptak doesn't expressly mention the blog but he does quote my conversation with him -- on the declining citation of law review articles by courts. Here are the relevant three paragraphs:

Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month’s decision striking down parts of the District of Columbia’s gun control law. On the one hand, Professor Dorf said, “there’s no such thing as bad publicity.” On the other, he said it was vexing to see his article caricatured rather than engaged.

The District of Columbia Circuit had, he said, at least tried to engage the legal scholarship on a difficult and important question. He had less sympathy for judges who have given up on the academy.

“The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable,” Professor Dorf said.

That ought to win me friends in the federal judiciary!

Meanwhile, I'll be on NPR's All Things Considered this afternoon talking about executive privilege -- unless I get bumped. I'll report back on the conversation tomorrow.

Don't Say "Political." Say "Partisan."

Much of the debate about the Gonzales Eight Massacre has been muddied, sometimes through deliberate obfuscation, because the word "political" has several different meanings. When we say that U.S. Attorneys are "political" appointees, we mean that they get their jobs through political connections and that once in office they can be required, even by threat of firing if necessary, to adopt the policy priorities of the administration in Washington. A U.S. Attorney who resisted the White House decision to seek the death penalty with greater (or lesser) frequency, or to devote prosecutorial resources to drug cases rather than insider trading cases, could be legitimately sacked for reasons of politics in the sense of policy. A U.S. Attorney cannot legitimately be fired for failure to prioritize corruption cases of Democrats over Republicans (or vice-versa). The distinctions can blur where a seemingly legitimate policy objective is used as a pretext for partisan aims. Democrats tend to be the target of voter fraud prosecutions (because of the assumed preference for Democrats of the new voters likely to register en masse, i.e., immigrants, the poor, and minorities), while Republicans tend to be the target of bribery and extortion prosecutions because supporters of Republicans tend to have more money than supporters of Democrats. These are broad generalizations which may not even be true, but to the extent that they are, a policy of targeting a particular kind of corruption case could be pretextual and would, if so, be highly problematic.

The underlying distinction between politics as policy preference and partisanship is broadly familiar from the controversy over Bush v. Gore. Some hard-core legal realists (I have in mind Jack Balkin and Mark Tushnet but there were others) took the case as simply confirming what they had always thought: that judges make political decisions. But most critics of the decision did not endorse this sweeping critique. They thought that there is a difference between a judge deciding a case involvingthe constitutionality of abortion restrictions or affirmative action in a way that lines up with her policy views on these issues, and a judge deciding a case based on which political party would benefit in the particular case---as many of the academic critics and even more of the general public thought the Supreme Court did in Bush v. Gore.

It's possible that I'm over-reading the reaction to Bush v. Gore. Perhaps the public generally hold a highly formalist view of the law but don't pay much attention to Supreme Court decisions. Then, they tune in and observe partisan politics and are horrified, but had they tuned in sufficiently for other cases they would have been almost equally horrified by the ordinary politics of judging. That's possible but I actually give the public more credit. The periodic references to the judicial appointment power in Presidential campaigns suggest that at least a substantial portion of the public are at least aware of the difference that individual values make to judging. Yet (rightly or wrongly) they sensed that something different was happening in Bush v. Gore. If that's right, then the public can be made to understand the difference between politics as policy choice and politics as partisanship. But to make it work in the current context, Democrats and other critics of the Gonzales Eight Massacre need to stop calling the firings "political" --- a word that invites double-talk from the likes of Tony Snow, FoxNews et al --- and start referring to the firings as "partisan."

Pakistan's "Internal Matter"

The crisis in Pakistan over General Pervez Musharraf’s “suspension” of the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, has only deepened since Mike first posted about it earlier this week, but it continues to garner surprisingly little news coverage in the United States. Musharraf has still offered no details of the allegations against Chaudhry, but his suspension came one day after the now “non-functional” Chief Justice gave notice that he intended to investigate allegations of disappearances at the hands of Pakistani security forces, which have increased dramatically since 2001. (On the surge in disappearances, the Guardian has chilling details.)

The move to dismiss Chaudhry is hardly the first time in the postcolonial history of the subcontinent that judicial independence has been threatened. In each of Pakistan’s four periods of military rule, the coup leaders have moved with some success to legitimize their usurpation in the courts, which have elaborated what Tayyab Mahmud has aptly termed a “jurisprudence of successful treason.” Nor has interference with judicial independence in Pakistan come solely from the army. Only two years before he was deposed by Musharraf, former Prime Minister Nawaz Sharif’s ugly dispute with (and effort to remove) one of Chaudhry’s predecessors as Chief Justice culminated in a physical attack by a mob of Nawaz’s supporters on the Supreme Court building.

When asked to legitimize the army’s interventions into domestic politics, Pakistani judges have frequently acquiesced — as judges have, to be sure, in other countries during emergency-like moments, such as the United States in the face of internment and India in the face of Indira Gandhi’s Emergency. While such acquiescence has usually been discredited over time in other countries, in Pakistan the result seems to have been the validation of a central role for the army in domestic affairs. Those Pakistani judges who have tried to resist typically have been sidelined by the military regime; when Pakistani courts have acted somewhat more assertively in response to the army's claims, it has tended to happen after civilian rule has been restored, and without repudiating the notion that military intervention into politics is valid and legitimate.

So far, that basic script has been followed once again under Musharraf's regime, with the Supreme Court validating his coup in a March 2000 decision. However, during Chaudhry’s twenty-one month tenure as Chief Justice, the Supreme Court of Pakistan has increasingly shown the potential to become a thorn in the regime’s side. Since Musharraf already has significantly weakened the civilian bureaucracy and provincial governments, the judiciary is, along with the media, one of the few institutional power centers with the capacity to pose a challenge to the role of the army.

In Pakistan, the clichéd adage goes, politics is often driven by three As: Army, Allah, and America. Here in the United States, we like to focus (that is, if we are paying attention at all) on the first two, variously condemning the army’s interruption of the democratic process and raising the specter of Muslim extremists using Pakistan as a staging area for terrorism or even ascending to power in Musharraf's place. As Americans, however, perhaps we should be devoting greater attention to the third A, and in particular how the role of the United States may be interacting with the role of the army and of religion in Pakistani affairs. Here’s what U.S. officials initially had to say about the current crisis in Pakistan:

The US State Department on Monday described the government’s action against Chief Justice Iftikhar Mohammad Chaudhry as Pakistan’s ‘internal matter’ and refused to comment on the development. “We won’t be offering any comment on that. It is an internal matter,” a State Department official told Dawn when asked for comments. [link]

In this particular instance, however, it is an “internal matter” whose triggering event -- an investigation into post-2001 disappearances -- may well have been influenced or more directly shaped by U.S. policy:

[U]ntil 9/11, disappearances were rare. Then, in late 2001, as al-Qaida fugitives fled from Afghanistan into Pakistan, Musharraf ordered that the agencies show full cooperation to the FBI, CIA and other US security agencies. In return, the Americans would give them equipment, expertise and money.

Suddenly, Pakistan's agencies had sophisticated devices to trace mobile phones, bug houses and telephone calls, and monitor large volumes of email traffic. "Whatever it took to improve the Pakistanis' technical ability to find al-Qaida fighters, we were there to help them," says Michael Scheuer, a former head of the CIA's Osama bin Laden unit.

* * *

The al-Qaida hunt became a matter of considerable pride for President Bush's close friend, the president of Pakistan. "We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars," wrote Musharraf in his autobiography last year. (The boast sparked outrage at home in Pakistan and was scrubbed from later Urdu-language versions of his book.) Prize captures included the alleged 9/11 mastermind Khalid Sheikh Muhammed, who has apparently confessed to a string of terror plots after four years as a captive, and Abu Faraj al Libbi, another alleged bin Laden lieutenant. But certain innocents were also swept up in the dragnet.

* * *

The truth is that the American government still quietly supports the disappearances of al-Qaida suspects, says Ali Dayan Hasan of Human Rights Watch, which has documented many cases. "The abuse has become even more brazen because of US complicity," he says. He claims that American officials are regular visitors to ISI safehouses in Islamabad, Lahore and Rawalpindi where torture has occurred. They have supervised interrogations from behind one-way mirrors, he says. In FBI internal documents, he says, torture is referred to as "locally acceptable forms of interrogation".

For some detainees the safehouses are the back door to the mysterious world of CIA "black sites" - secret prisons in Afghanistan, eastern Europe and across the Arab world where torture is allegedly rife. [link]

There is some irony that, in a week in which Khalid Sheikh Muhammed’s confession has received so much media attention in the United States, the deepening political fallout in Pakistan triggered by an investigation into the very policies and practices associated with his capture have received so little. It seems possible that, like the investigations in Italy and Germany into extraordinary rendition, an investigation into post-2001 disappearances in Pakistan could reveal information that the U.S. government would prefer the public not to know. The broader point is that there are many ways in which Pakistani political developments are being shaped by what the United States is doing, even though those influences may often be far from our public consciousness.

* * *

To echo Mike’s comment about the courage of Pakistani lawyers and others resisting Chaudhry’s suspension and house arrest, the scenes in Pakistan are quite remarkable. (Here is a particularly vivid set of photos.) Prominent and distinguished lawyers in India have expressed their solidarity with the “courageous lawyers in Pakistan who are opposing this frontal assault on the judiciary,” and they deserve the active support and encouragement of American lawyers as well.

John Yoo in the Montreal Gazette

The Montreal Gazette has an interesting interview with John Yoo, which has already drawn some incisive responses from Marty Lederman and Jonathan Adler. As Marty notes, among other things Yoo seems to confirm that the CIA does indeed use waterboarding. And as Jonathan notes, Yoo's overall defense of torture seems to depend in part on a highly contestable (but apparently entirely unexamined, by Yoo) assumption that death is always worse than torture. Both Marty's and Jonathan's posts are good reading.

I want to stress a separate point reflected in these two paragraphs:

Yoo's memo was leaked to the press in the summer of 2004, in the aftermath of the publication of pictures of U.S. soldiers torturing Iraqi detainees inside Abu Ghraib prison. Overnight, he became a celebrity - but for all the wrong reasons. He was held personally responsible for Abu Ghraib's horrors: The disgusting behaviour of U.S. service personnel was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo.

"That was totally absurd," he told me when we meet for lunch in a restaurant opposite his office at the Boalt School of Law in Berkeley, Calif. "Two bipartisan congressional reports and several military investigations showed that the Pentagon hadn't even read the memo. Disgraceful behaviour of the kind which took place at Abu Ghraib had nothing to do with interrogation policy. Similar things have happened in practically every war. What was different was that this time they had cameras on their cellphones to photograph it. ... But the idea that what went on in Abu Ghraib would never have happened without that memo is just silly."

I tend to agree that those who depict Yoo's OLC "torture memo" as the but-for and proximate cause of the events at Abu Ghraib are likely overstating things. It's possible, I suppose, that we might ultimately be able to find evidence establishing that sort of causal link, but I don't see it now and I doubt we ever will.

I'm not sure that's the point, though. For me, the point is that if one adheres to the reasoning in the torture memo, it's not at all clear that conduct of the sort that took place at Abu Ghraib is always forbidden. The author of the Gazette piece seemed to get this. As he described, "The disgusting behaviour of U.S. service personnel [at Abu Ghraib] was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo." To put the point more directly, whether or not stuff like Abu Ghraib happens in every war, Yoo's memo makes it harder to condemn.

Yoo calls the actions at Abu Ghraib "[d]isgraceful behaviour," but the logic of the torture memo and of his statements in the interview is that such actions are perfectly permissible if undertaken against an alleged unlawful enemy combatant as part of a program of, ahem, "aggressive" interrogation. And that's the problem: under the logic of the Yoo memo, we lose the ability to say that the "disgraceful" treatment at Abu Ghraib was categorically and in all instances wrong.

Quantifying Scholarship

A controversy emerged earlier this week regarding the use of the F-word in an academic paper. Actually, the controversy about the paper itself played out some time back; but the new controversy was over whether a provocatively-titled paper, "Fuck," by Ohio State law professor Christopher Fairman, 28 Cardozo Law Review 1171 (2007), should be disqualified when counting the number of downloads for which a law school should be credited. Say what?

The Social Science Research Network (SSRN) is a central repository into which scholars in many fields place their written work, where other scholars can then easily search for working papers on particular subjects and download papers that are interesting and/or potentially useful in one's own scholarly work. This provides a nearly ideal internet-era medium through which scholars can interact with each other at the draft stage of their writing, soliciting feedback from both supportive and skeptical critics and basically enhancing the scholarly process in every way. I don't mean to be glib. This is truly a wonderful resource.

The problem comes from our seemingly irresistible desire to count and rank things. (Rankings can be fun, of course. See "High Fidelity" for a wonderful portrait of dysfuntional men who have a "Top 5 All Time" list for everything: breakups with girlfriends, songs about death, etc.) SSRN downloads have become a method by which individual scholars and their employers are evaluated: a large number of downloads of one's papers moves a person up the rankings, and the presence of many heavily-downloaded professors on a law school's faculty moves that law school up in such rankings. The theory is evidently that multiple downloads imply "importance" or "influence" or something that makes a scholar appear to be having a useful professional impact.

One such use of SSRN to rank faculties was Brian Leiter's "Most Downloaded Law Faculties, 2006," posted on March 6 of this year, in which Leiter compiled rankings of the top-15 law faculties based on total downloads of all papers by all of a school's faculty and on downloads per paper of all of a law school's faculty. The immediate controversy has revolved around Leiter's decision to exclude Ohio State and Emory from the rankings because their high download numbers are overwhelmingly the result of Fairman's one famous paper. (Fairman is visiting at Emory.) Paul Caron reports on the controversy on the TaxProf blog here. For what it's worth, I agree with Ann Bartow, who criticized Leiter's decision on the Feminist Law Professors blog. She points out, among other things, that Fairman's paper is a very serious piece of scholarship about the impact of language on society, noting the irony that Leiter's decision reflects one of the very issues that Fairman discusses. Fairman has also posted a commentary about the controversy, which one can download from SSRN. (I love irony.)

The more interesting issue to me, though, is the notion of using SSRN downloads as a measure of scholarship in the first place. Others have offered varying critiques, including Leiter himself, who has pointed out that SSRN tends to be used more by scholars writing in certain areas of law than others and suggesting various ways in which the results can be gamed or at least skewed. All true, I have no doubt. Even more fundamentally, the problem with download counts as a measure of importance (or quality or whatever) is essentially identical to the older practice of counting citations to assess scholarly impact. If Mike Dorf, say, writes an article that everyone thereafter cites, that must mean it's important, right? Mike (whose articles are heavily cited, for all the right reasons) will be the first to tell you that that is simply not a valid conclusion. I have seen plenty of papers in economics and in law that are downloaded heavily apparently because they're so silly or so dangerous that they need to be debunked and exposed to ridicule. That's one type of "importance," I suppose, but it seems odd to give someone credit for saying something that other people find ridiculous or scary. It is odder still because the only people who are likely to be able to say something silly yet still be cited rather than simply ignored and dismissed are scholars who already have big reputations. So a big name at a big school can enhance one's scholarly reputation by being cited (and now downloaded) for writing something absurd. Put more simply, quantity measures are not quality measures.

There is an important difference, though, between how citation counting distorts behavior and how SSRN download counts distort behavior. Citation counting has almost surely led scholars to cite their own papers and their friends' papers extensively (even when those papers are not on point), to refuse to cite high quality articles with which they disagree, etc. That is a bad result, and it makes the citation-based rankings even less well-suited to measure importance or quality than they would otherwise be.

For SSRN, though, this distortion is especially poignant. When people browse SSRN, they now know that every decision to download a paper is a vote. If I see an abstract for a paper that might or might not make a ridiculous point, for example, I would normally want to download the paper to see what the author is really saying. If the author seems to be writing in good faith but is making a point poorly or has apparently not thought about some implications of an argument, I might even try to contact the professor to discuss the paper. I hope that others will do the same for me. If I do download a paper, though, I'm voting blind. I may find myself enhancing the measured importance of a paper that turns out not to be a worthy piece of scholarship (or even coherent). Decisions to download thus become strategic, discouraging scholars from even engaging with one another because of each scholar's subjective decisions about who and what one wants to support.

And that is especially troubling, because the promise of SSRN was that it would allow scholars to interact at the stage where their work would benefit from the views of others. Counting downloads from SSRN has led to rankings based on those counts, and that undermines -- perhaps fatally -- SSRN's greatest contibution to the academic enterprise.

Raich, Pregerson & Prediction

Yesterday I presented a couple of papers at the Georgetown Constitutional Theory colloquium (or whatever they call it exactly). One of the papers I distributed as background included substantial discussion of the Raich case in the Supreme Court. As it happened, one of my hosts was Randy Barnett, who argued the case in the Supreme Court and in the Ninth Circuit, and so naturally our discussion turned at some point to Wednesday’s Ninth Circuit ruling, about which I posted yesterday. We were puzzling over why Judge Pregerson insisted on reading Glucksberg’s requirement that courts begin substantive due process cases with a “careful” description of the right as meaning that the right should be described “narrowly.”

My first cut was straightforward: That’s more or less what Rehnquist meant by “careful” as he used the term in Glucksberg. I worked with the plaintiffs in that case and we took great pains to make clear that we were not asking the Court to recognize a right to suicide, but instead a right of a terminally ill patient to control the timing and circumstances of his or her death. Nonetheless, Rehnquist framed the case as seeking a right to suicide that includes a right to physician assistance. Once framed that way, the case was effectively over, and so Judge Pregerson could have plausibly read Glucksberg as requiring rights to be framed in a way that defeats them. (Note that I say “in a way that defeats them” rather than “narrowly” because the Glucksberg Court actually framed the right more broadly than we wanted or asked it to.)

But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs’ claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs’ framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn’t exactly say that there is such a right, because it’s unclear what level of scrutiny the Court applies, but it also doesn’t adopt the Glucksberg framing. So what gives with Pregerson?

Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that’s probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs’ arguments.

For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9^th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I’ll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."

Ninth Circuit Rejects Necessity Defense and Substantive Due Process Right to Medical Marijuana

Yesterday the 9th Circuit, in an opinion by Judge Harry Pregerson, affirmed the denial of a preliminary injunction against the enforcement of the Federal Controlled Substances Act to Angel Raich. Raich had previously lost a Supreme Court case in which she had argued that Congress lacked the power under the Commerce Clause to regulate purely intrastate cultivation and use of marijuana for medical purposes. Yesterday's ruling rejected, among other things, a necessity defense and a substantive due process claim.Actually, that's not quite right. The court actually acknowledged the validity at law of Raich's necessity defense but said that it didn't entitle her to a preliminary injunction as opposed to a jury instruction should she be criminally charged. According to the court, Raich might make a miraculous recovery or a medical breakthrough might provide an alternative to marijuana as a means of treating her chronic pain and wasting disorder -- even though the court acknowledged that on the current record she appeared to have a good necessity defense.

The court also rejected her substantive due process claim, largely on the strength of Washington v. Glucksberg. The court plausibly read Glucksberg to require a narrow "careful" definition of the right in question, which it defined as the right to use medical marijuana. Not surprisingly, it found that society had not yet recognized any such right as fundamental.

To my mind, this only shows the poverty of the Glucksberg approach. The real question is whether the government can ban a medical treatment necessary for sustaining life on the ground that Congress by fiat declares that the medical treatment is unnecessary or not efficacious, without granting a litigant any right to present factual evidence to the contrary. The answer to that question could be yes. We might think that Congress, or a state, or an administrative agency, is better situated to make medical judgments -- even if sometimes those medical judgments are politically motivated -- than are the courts. Or we might think that the judgment of Congress is entitled to a rebuttable presumption of correctness. But under the Glucksberg approach, we don't even ask the question.

That's probably why the two post-Glucksberg cases to recognize "new" substantive due process rights, Troxel v. Granville and Lawrence v. Texas, do not define the right in its narrowest possible terms. Indeed, Justice Kennedy, speaking for the Court in Lawrence, said that doing so in that context was demeaning. Judge Pregerson -- who is as liberal as the day is long -- might have said with justification that the Glucksberg approach is not the law.

For the full version of this argument, see my 1991 book with Larry Tribe.

Presidential Candidates Say the Darndest Things

Here's the most preposterous reaction I've yet seen to General Pace's comments in support of keeping gays, lesbians and bisexuals out of the military. Rudy Giuliani told the NY Observer: "We're at war and now isn't the time to question our military's admissions policy."

That might make some sense if there were a proposal to restrict eligibility for military service. Even if the restriction were otherwise reasonable, you could see someone thinking that during active warfare you don't want to deprive the military of fighting men and women. But given the extended and repeated tours, wouldn't this be exactly the time to question a policy that restricts service?

I'm not naive enough to think that Giuliani actually meant what he said. Obviously he was trying to say something that would appeal to religious conservative primary voters but would not be utterly inconsistent with his record as a gay-friendly mayor. My guess is that he failed on both counts.

One Cheer For Alberto Gonzales

Just in case you thought I have something against AG Gonzales, you can read my latest FindLaw column, which addresses the Inspector General's report on National Security Letters. I give Gonzales credit for acknowledging the problem.

All Credit to Heathu, Whoever You Are

Mea culpa. In my previous two posts, I mistakenly credited Thomas Healy with the winning entry in the "Name the Scandal" contest. It was actually Heathu. Now if only I knew who Heathu was, I could send him or her the prize. So, Heathu, please click here to provide personal details that I can use to send you your prize.
;-)

The Gonzales Eight Massacre -- Pakistan Edition

Has anybody else noticed the parallel between Pakistani strongman Pervez Musharraf's attempted suspension of Supreme Court Chief Justice Iftikhar Mohammad Chaudhry and the Gonzales Eight Massacre (as named by Dorf on Law blogger and Seton Hall law professor Thomas Healy)? For those who haven't been paying close attention, last week Musharraf "suspended" Chaudhry on vague charges that most observers believe to be trumped up pretexts to eliminate a jurist who has shown himself willing to follow the law. Chaudhry was taking seriously charges of government human rights violations and had the audacity to suggest that eventually there should be an election to choose Musharraf's successor.

To be sure, a threat to judicial independence is a greater threat to the rule of law than is a threat to prosecutorial independence. As noted on this blog and elsewhere, there is at least a plausible argument that prosecutors ought not to be independent of the President. It's noteworthy, though, that even AG Gonzales now acknowledges that "mistakes were made" rather than claiming that "the unitary Executive was at work." (Insert your own joke here about who made the mistakes and what made them mistakes rather than, say, impeachable offenses.)

From the Bush Administration's perspective, the coincidental timing of the Chaudhry firing and the Gonzales Eight Massacre is awkward at best. The Administration has been trying to pressure Musharraf to take more (some?) serious action against the Taliban and al Qaeda in the tribal areas bordering Afghanistan and has even been reconsidering the long-held assumption that without Musharraf, Pakistan would become an Islamic fundamentalist state. The Chaudhry affair would offer a perfect excuse to cut Musharraf loose---or at least to increase the pressure on him---were it not for the fact that, in light of the Gonzales Eight Massacre, any invocation of this particular scandal would appear hypocritical.

Meanwhile, one can only marvel at the bravery of the bar in Pakistan. Lawyers took to the streets en masse to protest Musharraf's shabby treatment of Chaudhry. Having had the good fortune of meeting with a number of visiting law students and legal scholars from Pakistan over the years, I can attest to their commitment to constitutional democracy, even in the face of repeated coups and the threat from the Islamists. More on this story later in the week from Dorf on Law South Asia expert and Fordham Visiting Assistant Professor Anil Kalhan.

And the winner of the Name the Scandal Contest is . . .

The Gonzales Eight Massacre, by Thomas Healy (with an assist from me inserting "eight" to match the rhythm of "Saturday Night Massacre")

First Runner Up: Eight Prosecutors Ousted by Eric Garber (again with an assist from me changing "men" to "prosecutors" because two of the fired prosecutors are women)

Honorable Mention: GOP for "Gonzales' Ousted Prosecutors" by Trevor Morrison (clever and catchy but ineligible because the mainstream media would never actually call a scandal by an acronym that implicates an entire political party).

Consolation Prize for Most Dogged Effort goes to Octopus Grigori for the following entries:

Pink Slip Pickle [or Prosecutor Pink Slip Pickle]

The Wrath of Miers [or The Wrath of Harriet]

The War on Justice

D.O.J.-gate

Thanks to everyone for playing. Be sure to refer to "The Gonzales Eight Massacre" constantly until it catches on.

Name the U.S. Attorney Firing Scandal

A few months ago I suggested that there needs to be a scarier term for global warming, something along the lines of "death tax." Now it's time for a new contest: Name the developing scandal involving the firing of the eight U.S. attorneys. Last week I referred to them as the "Justice Department Eight," and the same day Paul Krugman called them "the Gonzales Eight," which is probably more effective as agit-prop. But still, neither term refers to the scandal itself. It would be a shame if this scandal went unnamed, the fate of the great scandal of the Clinton years. (I favored "The Lewinsky Affair" for its double meaning but it never caught on.)

Before I get to the contest, here's one thought on the merits. I noted in my Friday post on this subject that in principle the President, acting through the Attorney General, can fire a U.S. Attorney without providing a reason. In his piece yesterday on FindLaw, Carl Tobias makes a similar point. He writes that "numerous Republicans claim the events are politics as usual, pointing out that, after all, U.S. Attorneys do serve at the pleasure of the president, but ignoring the long tradition of independence that has meant U.S. Attorneys are, in practice, generally not fired for political reasons." Tobias suggests that the limitations on the President's power to fire a U.S. Attorney are simply a matter of tradition, albeit one he would like to see respected. What Tobias overlooks--and what I overlooked in my earlier post--is that the Constitution, not just politics, constrains the President's ability to fire government officials. For example, if Gonzales had fired one of the Eight because the U.S. Attorney had converted to Islam, that would have violated one or more of the Religious Tests Clause, the First Amendment's Free Exercise and Establishment Clauses, and the equal protection component of the Fifth Amendment's Due Process Clause. (Justiciability might present a problem for separation-of-powers reasons but that doesn't go to legality.) Whether firing a U.S. Attorney for his failure to bring partisan-politically motivated cases, or failure to dismiss other cases based on partisan political pressure, is another forbidden ground set against the background presumption of employment at will, is not entirely clear. It's possible that the Justice Department Eight were not entitled to keep their jobs, but that firing them as part of a plot to use the government's prosecutorial power for partisan ends--if that is what happened--violates criminal laws and/or constitutes an impeachable offense. If, for example, the President told the Attorney General to fire all U.S. Attorneys who were not disproportionately prosecuting corruption cases against Democrats rather than Republicans, that would seem a fairly clear violation of the President's duty to take care that the laws are faithfully executed.

But enough about the merits. Now for the naming contest. I confess that I've got nothing on this. Over at Daily Kos they seem to be calling it "Prosecutor Purge," which is okay but I believe we can do better. Nothing with "gate" in the end quite does it anymore. Perhaps someone can come up with something using the word "Justice" from the Department of Justice, but I've been unable to do so. Now that I've confirmed that I would not have had a successful career on Madison Avenue, I turn the matter over to commenters. I'll pick a winner (and give proper credit) tomorrow.

OpenCongress.org & Legal Materials Online

Featured on the most recent broadcast (and podcast) of the WNYC show On the Media is a terrific website called OpenCongress.org which is a very user-friendly site for tracking Congress. You can find out how any Senator or Congress member voted on any bill, and you can readily search pending legislation. You can even get RSS feeds updating you about action on particular bills. OpenCongress pulls much of the underlying material from Congress's own website, Thomas, which is a terrific resource but not quite as easy to use and a bit more staid. For example, it's easy to use either site to find pending bills and what bills an individual Senator or Representative has sponsored, but OpenCongress also gives juicy tidbits such as trends in the overall voting record of individual members of Congress. It also has a comment feature which should become valuable as the site grows.

That said, the OpenCongress guest on On the Media was a little unfair in suggesting that Thomas is an inadequate tool. It's pretty useful by itself and, more importantly, likely to incorporate features of OpenCongress on its own as time goes by. Interestingly enough, the Sunlight Foundation (the people behind OpenCongress) would be happy for Congress itself to provide this information, and that seems to be the standard path to govt-maintained websites. For example, by now most courts maintain websites where they post recent decisions, but in the early days of the web, such materials could be found only on third-party sites. As the courts' own sites became more useful, many of the third-party sites disappeared. WestLaw and Lexis still have pay sites, mostly, I think, because of the ability to search across multiple databases simultaneously and because the official sites rarely include materials going back more than a decade. But eventually, I suspect, the business model of WestLaw and Lexis will not be viable.

In the medium term, organizations like the Sunlight Foundation are making real what had formerly been only stylized assumptions about the openness and accessibility of the legal system. As someone who follows the courts, I hope the next step will be a free, easy-to-use version of PACER, the program for accessing filings (such as briefs, exhibits, etc) in the federal district courts. I'm ambivalent about the ultimate fate of WestLaw. Because West owns FindLaw and Foundation Press, which pay me for some of my work, I have a financial interest in its continued success. But as a matter of public policy, I like the idea of freebies.

The Second Amendment and Incorporation

Unlike Mike, I have not thought seriously about whether the Second Amendment protects an individual or collective right, so I won’t enter that debate. But I do want to raise an issue that could be equally important if the Supreme Court agrees to review the D.C. Circuit’s decision in Parker: Even if the Second Amendment protects an individual right to bear arms, does that right apply against the states or only against the federal government?

In two late 19th Century decisions, the Supreme Court held that the Second Amendment only restricts the federal government. These decisions were consistent with the Court’s broader position – announced in Barron v. Baltimore – that the Bill of Rights did not apply to the states, and they were reaffirmed by two early 20th Century decisions. Of course, the Court soon afterward began the process of incorporation that resulted in the application of nearly all the Bill of Rights against the states. But it has still not incorporated the Second Amendment through the due process clause of the 14th Amendment. This is irrelevant in Parker because the regulation in that case was passed by the District of Columbia, and the Court has held that the Bill of Rights applies directly to the District. However, if the Court affirms Parker, its decision will not have any effect on state or local gun regulation unless the Court decides that the Second Amendment is also incorporated.

What are the chances that will happen? I’m not sure. Under the Court’s modern incorporation doctrine, a provision of the Bill of Rights will be incorporated only if it is essential to “fundamental fairness.” However, the modern incorporation cases deal with issues of criminal procedure, so the fundamental fairness standard may be inapt. As an alternative, the Court might fall back on an earlier formulation of the incorporation test, which asked whether the right at issue is “among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” I think it’s a stretch to conclude that gun ownership is a fundamental aspect of liberty akin to the right of free speech or free exercise. But gun advocates will surely point out that the right to bear arms is guaranteed in 43 of 50 state constitutions. They will also likely note – as Justice Thomas did recently in a concurring opinion – that Justice Story once referred to the right to bear arms as "the palladium of the liberties of a republic.”

There is another, intriguing alternative. A few scholars have argued that the Second Amendment is actually incorporated through the privileges and immunities clause, not the due process clause. According to these scholars, the privileges and immunities clause was designed, in part, to ensure that freedmen had access to arms so they could not be re-enslaved by the southern states. The obvious weakness in this argument is that the privileges and immunities clause has been moribund since the Slaughter-House Cases were decided more than 130 years ago. But it is not unthinkable that the Court could breathe new life into that provision. Its decision in Saenz v. Roe might be viewed as an initial step in that direction. And Justice Thomas has indicated his willingness to revisit the Slaughter-House Cases. Thus, a decision affirming Parker might revive not only the Second Amendment, but the privileges and immunities clause, too.

Gun Rights in D.C.

A story in yesterday's NY Times notes that homicides, after falling nationwide to forty-year lows, have been increasing in the last couple of years, and cites as a prime cause the greater willingness of young men to use guns to resolve disputes that formerly would have been resolved with fists. Thus it was at best awkward for the D.C. Circuit to hand down its decision in Parker v. District of Columbia on the same day the story ran. In Parker, the DC Circuit holds that the Second Amendment protects an individual right, and that the District's restrictive gun control law violates that right. One other circuit, the Fifth, has likewise held that the Second Amendment protects an individual right, but in that case, United States v. Emerson, the court's Second Amendment discussion was dicta because it upheld the conviction on the ground that Emerson's particular act of gun possession fell within the zone of regulation even the individual right view of the Second Amendment permits. Because the Second Amendment discussion in Parker is a square holding, there is now a real circuit split with the many circuits that have rejected the individual right view, and so the Supreme Court is likely to take the case.

In reading Parker yesterday, I was struck by the one-sidedness of the analysis. In my one sustained academic foray into the politically fraught area of the Second Amendment, an article I wrote for a symposium in 2000, I acknowledged what I think any fair-minded reader of the relevant materials must: that the text and original understanding of the Second Amendment are unclear, and that the Supreme Court cases which appear to reject the idea that it protects an individual right are quite conclusory in their reasoning. Nonetheless, because my bottom line in that article was skepticism towards the individual right view, it typically gets cited as supporting the "collective right" view.

I can live with that, I suppose. (There's no such thing as bad publicity, right?) But it is a bit vexing to have my views cited simply for the purpose of being dismissed, which is what Judge Silberman's opinion in Parker does. See for yourself. Here's the key excerpt from yesterday's decision in Parker:

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. Compare Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998), with Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291 (2000). However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07.

Translation: The District of Columbia and Professor Dorf think that the operative portion of the Second Amendment must be read in light of its preamble, but had they bothered to read Volokh's article -- which appeared two years before Dorf's article -- they might have noticed that such preambles were common in state constitutions without suggesting that they limited the operative portions of the rights protected in those constitutions. So the Second Amendment Preamble can be safely ignored as hortatory. (And isn't that Dorf character a doofus?!)

Well, your honors, I'm scratching my head as to how you could have made this point if you really read my article. If you did, you would have noticed that I not only read Volokh's (excellent) article; I also had a response. Here's what I said:

Volokh points out that provisions of state constitutions of the founding era commonly contained preambles of the sort we see in the federal Constitution’s Second Amendment. Those provisions involved not only the right to bear arms, but a diverse collection of other rights, including freedom of speech and the press, the right to trial by a local jury, and many more. Volokh draws two inferences from the existence of these provisions: first, the framers’ decision to include a preamble in the Second Amendment was mere stylistic happenstance, to which virtually no significance can be attributed. Second, reading the contemporaneous state constitutional provisions alongside the Second Amendment drives home the lesson that even when a constitutional provision’s operative clause is over or under inclusivewith respect to its justification clause, it is still the operative clause, and not the justification clause, that controls. Although we might not think “that entirely unfettered freedom of speech in the legislature” is, in the words of the justification clauses of the Speech and Debate Articles of the Massachusetts, New Hampshire, and Vermont constitutions, “essential to the rights of the people,” we would nonetheless be obliged to give full effect to the operative language of those provisions. Volokh argues for similar treatment for the Second Amendment: even if we no longer believe that “A well regulated Militia” is “necessary to the security of a free State,” we nonetheless must respect “the right of the people to keep and bear Arms.”

Although I agree with the overall thrust of Volokh’s argument, it does not, in my view, carry us very far in the direction of the individual right interpretation of the Second Amendment. I should begin by noting my substantial disagreement with Volokh’s first inference. As a matter of textual interpretation of the Second Amendment, it is largely irrelevant that clause preambles are commonplace in other documents. In the United States Constitution, the inclusion of a preamble marks the Second Amendment as extraordinary. The frequent use of clause preambles in contemporaneous documents does, I concede, shed some light on the subjective intent of those who drafted the Second Amendment as well as, perhaps, the most common understanding of the political community at the time. However—and here Volokh’s second argument undermines his first—it is the text itself, not the subjective intent of the drafters nor even the background understanding of the time, that was enacted. In the case of the Second Amendment as it appears in the federal Constitution, that text is striking for containing its own preamble.

More broadly, as the title of my article states, the key question is not what the Second Amendment may have been understood to mean in 1791, but what it means today? And on that question, the Supreme Court has said pretty clearly that its "right" language needs to be read in light of its preamble, a point made at length in dissent by Judge Henderson. As I acknowledge above, the Supreme Court opinions on point are under-argued, but the standard rule is that lower courts must follow Supreme Court precedent unless the Supreme Court itself overrules that precedent. Having violated the spirit if not the letter of that rule, the DC Circuit has now teed the issue up for the Justices to take a fresh look at the question.

Okay, that's a longer-than-usual post, and since I get a large volume of "fan" mail whenever I say anything about the Second Amendment, I'll have enough to do tomorrow without posting again. I'll post again Monday (and perhaps one of my co-bloggers will post before then). Meanwhile, I'll be working on my FindLaw column for Wednesday on the Justice Department Inspector General's Report on the use of national security letters.

The Unitary Executive & The Justice Department Eight

Could there be any clearer indication that the public rejects the "unitary executive" than the behavior of the Bush Administration in the brouhaha over the fired federal prosecutors? The "Justice Department Eight" did not enjoy civil service protection and engaged in a quintessentially executive function: Deciding whom to prosecute and then prosecuting. The unitary executive theory holds that because the Constitution vests the entire Executive power in "a President," all persons exercising executive power must be answerable to the President. Although the Supreme Court rejected the strong form of this argument in the 1988 independent counsel case, Morrison v. Olson, the Bush administration has continued to champion it, in signing statements and more broadly. Given that the AG undoubtedly had the technical legal authority to dismiss the Justice Department Eight, why didn't he just say something like "these are fine attorneys but the President, through me, wanted to take the department's priorities in a different direction, with different people?" Why, instead, did AG Gonzales feel the need to insinuate that the Justice Department Eight had performed deficiently?

The answer, pretty clearly, is that the public would have found the unitary Executive answer quite unappealing. We expect prosecutors to exercise independent, professional judgment, rather than to pursue a political agenda. We certainly don't want them pursuing a partisan agenda.

Thus one hopes (or at least I hope) that this latest episode comes to be regarded as the pendular reaction to the left's too-eager embrace of Justice Scalia's solo dissent in Morrison. He wrote there, in condemnation of the Independent Counsel Act:

An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute?

A decade after Scalia wrote these prescient words, liberals saw in Ken Starr's investigation of President Clinton the vindication of Scalia's warning. And perhaps Scalia was right. Perhaps the old Independent Counsel Act did not provide adequate safeguards against partisan uses of prosecutorial power. Yet Scalia's solution--rely on politics itself--has also been known to fail. It was, after all, the abuses of Watergate that gave rise to the Independent Counsel Act in the first place. That's not to say that politics will necessarily fail now. Perhaps Congress will be able to hold the Justice Department to account. But if so, it will only be because of the fortuity that the firing of the Justice Department Eight occurred during the one quarter of the Bush Presidency when Congress happened to be controlled by the Democratic Party.

I, Robot

According to this report from the BBC, the South Korean government plans to establish ethical guidelines for interactions between robots and humans. The article indicates that the guidelines will govern both how robots should behave towards us and how we should behave towards them. It speculates that the guidelines governing behavior of robots may resemble Isaac Asimov's Three Laws of Robotics, which is fitting enough, given that the "Robot Ethics Charter" is being drafted by a team that includes a science fiction writer. Asimov's Three Laws are:

1. A robot may not injure a human being, or, through inaction, allow a human being to come to harm.
2. A robot must obey orders given it by human beings, except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Anybody who's seen The Matrix or Terminator movies could think these rules more than prudent. We want robots to serve us rather than enslave or eat us, and consistent with those goals, it would be a shame if robots started committing suicide en masse. The assumption that we need to program robots with something like Asimov's Three Laws suggests that, absent such inhibitions, robots would develop wills of their own (and would of course want to destroy us or at least use our bodies as an energy source). Yet if robots do have minds of their own, might there be something immoral about implanting in their robot brains imperatives that are not the product of their own mental processes? At least some robotophiles so worry.

I'm not so sure myself. For one thing, it's conceivable that a robot could have artificial intelligence without a subjective sense of self. It could be a "ghostless" machine. In that case, there would be no immorality in denying the robot the ability to act on its "will," because the robot wouldn't have a will or any sensations whatsoever. Moreover, even if the robots did have a subjective sense of self, it's not necessarily immoral to program them with certain overriding behavioral laws. Much human behavior is "hard-wired." For example, try as I might, I cannot override the signal my brain sends to my heart to pump blood throughout my body (and a damn good thing too!). Even more sophisticated and largely voluntary behaviors--like craving sweet, salty and fatty foods--are products of our evolutionary history that, in circumstances of plenty, work against our interests and even our (weak) wills. It is not at all clear that a robot hard-wired with Asimov's Three Laws suffers any greater loss of autonomy than we suffer in virtue of our genetic programming.

Finally, there is something pathetic about devoting serious thought to the moral rights of hypotethically sentient robots against being made the Foucauldian vehicles of their own oppression, when human societies afford not even minimal rights against the enslavement, torture and killing of beings we know to have a subjective sense of self and the ability to suffer, namely the other animals with which we share the planet. So, robotistas, I'll make you the following deal: I'll take seriously the possible immorality of Asimov's Three Laws when you become vegans.

Stuck

Dedicated to secrecy, the Bush administration reveals itself mainly through scandal. Yesterday’s most amazing discovery was the inflexibility of the administration’s political tactics. Who could have imagined that, as recently as the week before last, a DOJ official would have been threatening the fired U.S. Attorneys with public humiliation if they didn’t keep their mouths shut? (For those who haven’t seen Bud Cummins’s e-mail to other former U.S. Attorneys describing his conversation with Michael J. Elston, chief of staff to Deputy Attorney General Paul J. McNulty, find it here, courtesy of Talking Points Memo.) Not that anyone would have expected scruples from these people—we’re long accustomed to this sort of behavior from them. But how could they have expected this threat to work with the opposition in control of Congress, an investigation underway, and hearings scheduled? It turns out that the administration’s political game is as inadaptable as its policies.

Scooter Libby, The Press, Free Speech, and The Big Lie

Now that Scooter Libby is on his way to prison, we might pause to reflect on any number of impacts of the Wilson/Plame/Libby affair. Here I'll make a couple of observations about the impact on freedom of speech and the press.

1) The case went a long way towards discrediting the perennial proposal for a federal reporter/source privilege. That proposal was already losing ground due to the erosion of any principled basis for limiting such a privilege to "professional" news gatherers in an era when any idiot with an internet connection can call himself a journalist by writing a blog. (Ahem.) But it got another kick in the teeth from Judith Miller, who showed that reporters will not just be interested in providing confidentiality to whistle-blowers. Well-connected members of the press will also try to shield sources whose very disclosures of information aim to manipulate the public. Most of this damage was done before the trial, but the trial showed the cozy relationship between the elite Washington press corps and high-ranking govt officials in a way that reflected badly on both.

2) In the current period of national-security crisis, the Bush administration deserves credit for not attempting to silence its critics with the most forceful means at the disposal of a nation-state. We have had no prosecutions for sedition or the like, nor any blacklists. In its official statements, the administration has even said that dissent is not unpatriotic.

At the same time, only a fool could miss the implications of numerous statements by the administration and its political allies that in fact do question the patriotism of their critics. The Libby trial revealed that these statements were part of a larger campaign to discredit administration critics regardless of the validity of their criticisms. I don't actually believe that Armitage, Rove, Cheney, or anybody else in the Bush administration leaked Plame's identity as a means of "outing" her as a spy and thus putting her in danger. Rather, the point was to discredit Joe Wilson as simply a careerist who was trying to exaggerate his own importance so as to push his own critical view of the administration's case for war. If this strategy had not involved the arguably illegal disclosure of a CIA agent's identity, it would not have led to the Fitzgerald investigation and the Libby conviction. But it still would have been troubling. The government is entitled to speak out in favor of its view of facts and policy, and that includes robust criticism of the arguments of those who disagree. In some circumstances, even ad hominem attacks (in the literal sense of ad hominem) would be appropriate. (E.g., "Mr. X denies that Saddam has WMDs, but Mr. X also denies that human beings evolved from other animals, so he can't be well informed." No, wait, the administration wouldn't have made that argument, but you get the basic idea.) But one would hope for something in addition to ad hominem attacks on critics.

The picture of the administration that emerged from the Libby trial strongly resonates with Ron Suskind's quotation of a Bush staffer denigrating administration critics as part of the "reality-based community." The Bush administration's efforts to manage public debate about the case for the Iraq war, both then and now, have had the same divorced-from-reality quality. Or, more precisely, those efforts have aimed to, in the words of the same staffer, "create [their] own reality." At every turn, deliberately create the misimpression that there was an operational connection between Saddam and 9/11; cherry-pick and selectively present the evidence of WMDs; then deny that you ever did either; and cite the enemy's exploitation of the chaos your own policies unleashed as justification for those very policies.

Government by The Big Lie is not by itself a violation of freedom of speech. Critics can and do unmask the lie. But as Churchill said, "A lie gets halfway around the world before the truth has a chance to get its pants on." And by then, the administration operating, outside the reality-based community will , in the words of Suskind's source, "act again, creating other new realities."

Gerald Ford on John Paul Stevens

In a memorial to President Ford on this blog I opined that his greatest legacy may well be Justice Stevens. It turns out that President Ford agreed. The March 2006 issue of the Fordham Law Review (which was either published very late or only recently emerged from a pile of books in my office) is a symposium on the jurisprudence of Justice Stevens. The introductory piece by Fordham Dean Bill Treanor contains a letter from President Ford, that includes the following:

I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case[s] and on the constitution's broad grant of regulatory authority to Congress.

I can think of no clearer example of how far to the right the national Republican Party has drifted on matters of jurisprudence than the contrast between Ford's endorsement of Stevens on the one hand, and the obligatory denunciations of liberal judicial activism by the current President Bush and even a socially liberal Republican like Rudy Giuliani, on the other.

Maricopa County, the Death Penalty, and Ring v. Arizona

Yesterday's New York Times included an article reporting on some fairly striking death penalty developments in Maricopa County, Arizona. The elected county attorney there, Andrew P. Thomas, has apparently "doubled the number of times that the office has sought the death penalty [compared to the rates that existed before he took office two years ago], even though the number of first-degree murder cases prosecuted by the county has remained more or less the same for a decade." Among other things, this practice has "crippled the county's public defender system [and] left roughly a dozen murder defendants without representation." Oh, and as a result of the new policy, Maricopa County "currently has 138 capital cases pending or awaiting trial, surpassing the total number of defendants who received the death penalty nationwide last year." As Doug Berman points out on his excellent Sentencing Law and Policy Blog, that's more than six times the number of people Arizona has executed in the last three decades.

As striking as these statistics are, most notable to me is one of the county attorney's apparent justifications for his charging policy: "In light of a 2003 decision by the United States Supreme Court that juries rather than judges must make the factual determinations in sentencing criminals to death, Mr. Thomas said he had concluded that juries should be given broader latitude over who receives the sentence." The Supreme Court decision in question must be Ring v. Arizona, which was actually decided in 2002. Ring held that because, under Arizona law, a defendant convicted of first-degree murder is not eligible for the death penalty unless at least one statutorily enumerated aggravating factor is found to exist, the aggravating factors operate as the functional equivalent of an element of a greater offense. Thus, under the Court's earlier decision in Apprendi v. New Jersey, a defendant's Sixth Amendment right to a jury applies to the finding of aggravating factors. In other words, given the structure of Arizona law, a defendant can only be sentenced to death if the jury, not the judge, finds the presence of at least one aggravating factor.

So Ring was about the appropriate constitutional role of judge and jury in capital cases. It had nothing to do with the exercise of prosecutorial discretion. If County Attorney Thomas sees in Ring an invitation to dispense with that discretion, he's misreading the case. Beyond Ring, if Thomas is suggesting that juries should have the option of imposing death in more cases so that they can rank the cases against one another and impose death in only the worst ones, the suggestion makes little sense. Any particular jury serves in only one case. It does not look at multiple cases and make comparative judgments of their heinousness. The prosecutor, on the other hand, is a repeat player. He can, and should, make comparative assessments, committing his office's, defense counsel's, and the court's resources to a capital trial only in the most serious cases. It appears the county attorney in Maricopa County has forgotten that part of the job description.

Mistaken and Wasted

Two small words -- "mistake" and "waste" -- have played a big role in the political rhetoric of the past several weeks. Working on the assumption that smart people can always learn from their mistakes (heck, even the mouse finds the cheese in the maze), I'm baffled by why three reasonably bright senators -- Obama, Clinton and McCain -- found themselves in various degrees of trouble over their use or non-use of these words.

Obama: " . . . and have seen over 3000 lives of the bravest young Americans wasted."

McCain: "We've wasted a lot of our most precious treasure, which is American lives."

The Clinton Exchange:

Roger Tilton: "I want to know if right here, right now, once and for all and without nuance, you can say that war authorization was a mistake. I, and I think a lot of other primary voters — until we hear you say it, we're not going to hear all the other great things you are saying."

Sen. Hillary Clinton: Well I have said, and I will repeat it, that knowing what I know now, I never would have voted for it. But I also (applause), I mean obviously you have to weigh everything as you make your decision. I have taken responsibility for my vote. The mistakes were made by this president who misled this country and this Congress into a war that should not have been waged.

The first entry in the American Heritage Dictionary of the intransitive verb "waste" is "To use, consume, spend, or expend thoughtlessly or carelessly. " In that sense, not only were Senators Obama and McCain correct in their description, but they were being charitable toward the Bush Administration. It would be hard to argue with the proposition that the thousands of soldiers who have been killed, not to mention the many more who have been physically and psychologically maimed, suffered those fates at least as a result of Neocon thoughtlessness, and I would argue that the losses were affirmatively reckless. Criticism of Obama flew quickly, and Obama recanted, saying that he had misspoken; there was less criticism of McCain, but he backtracked as well. Soundbites can quickly shift the dynamic of political discourse, and in this case the subtle shift was to pretend as though Obama and McCain had said something different from what they actually said. The discourse assumed that each had said that the lives themselves, or the people who lived them, were "waste", in the sense of "garbage" or "trash" (the fifth noun definition). But look closely at what the paradigm shift did: it moved the debate from the issue of who did the wasting -- the Bush Administration did that -- to a debate of whether the soldiers themselves were "waste".

Why then, is Senator Clinton tied up in such knots over whether to concede a "mistake"? After all, we all make mistakes; it's no shame to admit that you've made one, and John Edwards' MO these days is to introduce himself as though he were in some kind of 12-step program, where you start off by saying, "I'm John Edwards and I made a mistake." The first definition of mistake -- same source, as it's the one that's readily available at dictionary.com -- is "An error or fault resulting from defective judgment, deficient knowledge, or carelessness." And it seems to me pretty clear that while she didn't exercise either defective judgment or carelessness, she readily admits that she made "an error . . . resulting from . . . deficient knowledge", which is a mistake in the sense that most people understand it.

Senator Clinton certainly paid attention in her first-year Contracts course, where she learned the two different types of factual mistakes cognizable in law: the unilateral mistake and the mutual mistake. The unilateral mistake doctrine -- where she gave her vote in support of the war authority resolution on the mistaken belief that there was [feel free to fill in your own version of the Administration's war rationale here] -- offers a defense where the Administration knows that the senator is acting under a mistaken belief and then takes advantage of that mistake. It doesn't seem to me, though, that Senator Clinton is harking back to that kind of mistake, because she says that " [t]he mistakes were made by this president who misled this country and this Congress into a war . . . ." In other words, there wasn't really a mistake; there was fraud in the inducement. But if you attribute slightly less animus to the Administration, then you're in the realm of mutual mistake, and then Senator Clinton's defense to formation needs to be that both she and the Administration were mistaken. But in either event, there has to be a mistake on her end.

So why is she so resistant to the idea of using the word "mistake"? I think that she is confusing the erroneous outcome with the process that resulted in that outcome. The mistake that the public seems to want her to acknowledge was the vote itself, which was arrived at as a result of deficient knowledge. Instead, she focuses on her own thought processes with respect to that vote, and then rejects the idea of a mistake either because she rejects the notion of having exercised "defective judgment" or "carelessness", or she rejects having had a "misconception or misunderstanding". (defn 2.) In other words, in perceiving the use of the word as an attack on her as a thoughtful person, rather than an attack on the process, she's doing to herself what the critics of Obama did to Obama in the "wasted" debate. Indeed, you can see the shift in the Tilton question and her response. Tilton asks whether "war authorization was a mistake". He didn't ask, "Did you make a mistake in voting for the war authorization?" Yet Senator Clinton seems to have assumed that he asked the unasked question of whether she made the mistake, because she answers, "The mistakes were made by this president", leaving unarticulated the words, "I did not make that mistake." By either misinterpreting or recharacterizing the question, therefore, Senator Clinton has created a problem for herself where none existed before.

Notice & Comment Versions 1.2 and 2.0

Federal administrative agencies have long permitted the public to provide comments on proposed regulations after having received notice via the Federal Register. In recent years, the agencies have accepted comments via the internet, a development that we might call Notice & Comment Version 1.1. It's a small step but a useful one.

Today, the Washington Post reports that the Patent & Trademark Office will accept comments on patent applications (formerly walled off pre-approval for fear of revealing proprietary information). What makes the PTO program distinctive is that individual commenters will receive reliability rankings based on how useful the information they provide turns out to be over time. The story expressly compares the system to Wikipedia and customer ratings systems like those used by eBay.

Nonetheless, I would call the PTO project Version 1.2 rather than 2.0 because it does not cede any meaningful control from the agency personnel to the interested public. It views comments in much the same way as the Notice & Comment process has always viewed them --- as a means of better informing the agency's expert staff about potential problems with various courses of action. For the PTO those issues are largely going to be technical, but for other agencies they will include political issues as well. Indeed, even for the PTO, we can envision the comment process as yielding info re political issues, such as the patentability of human genes, etc.

What would Notice & Comment Version 2.0 look like? I have in mind some means of aggregating and distilling public knowledge in which the wisdom of crowds plays more than a merely advisory role for the agency. I don't think agencies could simply cede control to the public entirely, for fear of sabotage. The Google page-rank system is vulnerable to "google-bombing" (Google "Santorum" if you don't know what I'm talking about) and Wikipedia can be victimized by vandalism (Check out the Stephen Colbert-inspired vandalism on the entry for "Elephant" by viewing the history tab for late January of this year). For agency rulemaking, where billions of dollars are at stake, we would have to worry about corporations and their agents trying to game the comment system. But of course, "agency capture" by regulated entities is already a problem, and the increased transparency and decentralization that going to a genuinely user-based system of rulemaking would yield might be a way to combat such capture. I myself haven't figured out just how to do this, but it strikes me as a pressing question for administrative law and policy, one not unconnected to what Chuck Sabel, Bill Simon, I, and others call "democratic experimentalism."

Foie Gras and Animal Suffering

The Metro Section of the New York Times on Sunday featured an article about the Upper West Side Fairway Market and Farm Sanctuary. The paper reported that Fairway had, until recently, had signs in their stores making jokes about the "supposedly" cruel methods by which pate de foie gras (diseased liver paste made by forcefeeding ducks and geese through a tube until their livers are several times normal size and then killing them) is made. The import of the signs was that despite all of the "pressure" not to sell this product, Fairway would continue to carry it. Farm Sanctuary, an animal rights group that protests the cruelty of animal farming (particularly factory farming, through which most meat in this country is produced) has been doing publicity in New York lately on -- among other things -- the cruelty of pate de foie gras production, so Fairway has taken down the signs, though it continues to sell the product. The Times article quotes a senior manager who calls the Farm Sanctuary Folks "weirdos." The article closes with the following line: "Nearby [the expensive foie gras containers, focus of the controversy], a plastic tub of chicken livers, $1.59 a pound, kept a relatively low profile."

The article is clearly meant as comic relief. The message is that New York is filled with all kinds of quirky folks, including the protesters and the foodies, and that is what makes it so interesting and lively. The writer even makes a potentially useful point about inconsistency -- while everyone is focused on one product of animal cruelty, another receives barely any notice. I say "potentially" useful because in fact, the writer gives no evidence of taking seriously the argument that it is wrong to pay people to torture animals for one's own gustatory pleasure (which is what one does as a consumer of nearly all animal products). By pointing out the chicken livers, the writer thus implies that because animal cruelty is ubiquitous at the store, the animal rights activists might as well just shut up and eat like everyone else. One could, of course, make a very different argument -- chicken livers are wrong too, so our moral discomfort with eating (and thereby financing the production of) foie gras should perhaps awaken in us a more general discomfort with consuming animal products.

When I first began telling people that I was a vegetarian, they would often ask whether I wore leather. It happens that I no longer wear leather, although moving away from relying on dead animals has been a relatively long process for me, so I did wear leather for a while even after I stopped eating meat. The question, however, -- like the writer's suggestion in the Times article -- seemed aimed at suggesting that I might be a hypocrite and that my interlocutor therefore need not give her carnivorous lifestyle a second thought. In that sense, the question resembled "so what do you eat, then -- salad?" or "did you know that Hitler was a vegetarian?" (incidentally, he wasn't) -- ways of dismissing the notion that eating animals is wrong by suggesting that a cruelty-free diet is either empty and thoroughly impractical or that the most famous proponent of cruelty-free eating was a genocidal maniac. Interestingly, such comments are usually not responses to my condemning or even questioning their food choices. I virtually never ask anyone to explain why he or she eats (or wears) animals. The comments instead follow the simple statement that I am a vegan (which I generally say only because I am at a restaurant and need to inquire with the waiter before I order off the menu).

Though some people truly believe that animal suffering does not matter at all, most of us feel empathy toward animals and do not want them to suffer. Nonetheless, as a society, we consume more animals (mammals, birds, fish, etc.) than we ever have before, notwithstanding the mounting evidence that animals feel pain, fear, and grief, just as we do. Learning, for example, of a cow taken away to slaughter, while a neighboring cow bellowed for days, looking vainly in the missing friend's direction disturbed me enough years ago to make me give up "red meat" (mammals). Those who market animals to us try to make it easy to consume the products, by hiding the suffering (and even depicting life on the farm as happy). But it should not be easy. As Isaac Bashevis Singer says through a character in his story, "The Letter Writer": "They [humankind] have convinced themselves that man, the worst transgressor of all the species, is the crown of creation. All other creatures were created merely to provide him with food, pelts, to be tormented, exterminated. In relation to them, all people are Nazis; for the animals it is an eternal Treblinka."

Lives of Others Part 2 (a stream-of-consciousness rant including thoughts about student activism and the Danish Riots)

1) If assigned a place on the political spectrum, the East German dissidents portrayed in the film "The Lives of Others"(discussed in yesterday's post) would have to be labeled "rightist" because they opposed a Communist regime. Yet they closely resemble the contemporary counter-culture of western Europe, which is conventionally understood as "left." Both movements were/are dominated by artists, intellectuals and other counter-cultural types. But labels like left and right seem less important than a certain oppositional style.

2) Speaking of that style, it's noteworthy that since some time in the 1970s, university students in the United States have become career-oriented relative to students in Europe---and most of the rest of the world. Despite efforts of groups like Reed Irvine's Accuracy in Academia to portray the American academy as a bastion of politically correct French-accented Godless terrorist-coddlers, American students are largely apolitical, at least by comparison to students around the world. The point is not left/right political. Yes, European and Latin American student movements skew left, but the anti-communist democracy movements in China and in the former Soviet satellites were largely student-led.

3) That's not to say that political activism of students, or more broadly, "youth", is necessarily a good thing. The recent rioting in Denmark by young people who are outraged that the government wants them to stop squatting in one building and start squatting in another testifies to the universal narcissism of the young---the identification of their own desires with some ill-defined conception of justice and entitlement.

4) I won't shed any tears if the Danish riots discredit the cause of young people's right to squat, but it would be a shame if the plainly illegitimate means of protest---the rampant destruction of property and threats to safety of the police and protesters alike---delegitimate the notion of street protests more broadly. As recently as the Ukraine's "orange revolution" of late 2004/early 2005, we saw the power of a peaceful mass protest movement in which students played a leading role.

5) Perhaps the problem with the contemporary student movement in western Europe is that it has adopted an oppositional stance to governments that pursue policies with which they have no major disagreements. Consider, for example, the preposterous overreaction of French students to the horrifying notion that after graduation from university, their first job might not come with tenure. Judged by this standard, American students show good sense in being politically inert.

6) Except, of course, that over here there are real grounds for a vibrant protest movement. The chief candidates are the war in Iraq and the Bush administration's gross recklessness with respect to climate change.

The Lives of Others

Having delved into philsophy and science fiction yesterday, for today I'll post on the German film, "The Lives of Others," which won the Oscar for best foreign-language film, and which I saw last night. I'll return to "serious" law-related material no later than Monday, but for now another digression.

I'll start with a plug. I liked "The Departed" a great deal but there's really no comparison. "The Lives of Others" is a profound piece of filmmaking. And who should know more about movies than a professor of constitutional law? Now, a few observations, with an effort to avoid spoiling any important plot twists.

The story centers around the activities of Stasi, the feared East German secret police. It's hard not to see the film as a metaphor for something else. For one thing, most of the action occurs in the year 1984. This not-so-veiled reference to Orwell makes "The Lives of Others" seem like a universal tale of totalitarianism and what it does to people's spirit. It is that, but it's also about a distinct historical place and time.

With that disclaimer, I can't help thinking of the film as a kind of sobering lesson for the emerging cold war between the west and radical Islam. (Yes, this is the third cold war I've mentioned in the last few days. Here I'm glossing over what might be the cold war within Islam---between Sunni and Shia---which I discussed on Wednesday ). Jacques Chirac got a lot of bad press for saying that a nuclear-armed Iran would be no big deal because it would be subject to deterrence. Yet despite categorical statements by western politicians, and especially American and Israeli politicians about how it would be "unacceptable" for Iran to get the bomb, in fact, it appears that many in strategy circles assume that it is inevitable. And some, like Chirac, view this prospect as manageable, if distasteful. We can deter the use of nukes by Iran and whatever other nuclear-armed fundamentalist regimes emerge in much the same way that we deterred a Soveit attack during the original cold war, they argue. I think (or at least I damn well hope) that's right, but a portrait of the grimness of life under totalitarianism such as "The Lives of Others" stands as a reminder of the cost of such a strategy, even if it works.

More directly, I think, it underscores the tragedy of Iraq. Bush and the neocons were not wrong to despise Saddam's regime. Saddam openly admired Stalin and built a state very much along the East German model. Each day his regime persisted was a calamity. Of course, that doesn't mean the U.S. invasion was legally or even morally justified, especially given how badly we've botched the reconstruction job (which may well have been impossible from the start). But in this case, as in the cases of Hungary and Czechoslovakia during the Cold War, the fact that we didn't have a good military option should not blind us to the cost for people living under the regimes or the understandable fact that those people would look to the west for help.

"The Lives of Others" strongly suggests that European Communism was doomed to implode because by the 1980s, almost no one believed in the system. The party became a shell for corruption and the few true believers in socialism became disaffected by the regime's venality and brutality. The same might have happened in Iraq eventually, although I don't want to minimize the price that would have been paid by those living under the system in the meantime, while waiting for Saddam to die or for a coup. Still, that said, what now appears likely to replace Saddam's Stalinism, at least in large parts of the country, is Islamic totalitarianism on the Iranian model. Whether that kind of regime will also be doomed to implosion remains to be seen. The periodic democracy boomlets in Iran in the years since the Revolution suggest that religion-based totalitarianism is no more lasting than other forms of totalitarianism. But I fear that the appeal to a Higher Power gives religious totalitarianism a degree of popular legitimacy that was lacking in the old eastern bloc, and thus gives it a greater durability. That is especially sobering when one realizes that it took 70 years for the Soviet Union to collapse under its own weight.

Even if I'm wrong about all of this, however, I still recommend the movie.

Don't Beam Me Up, Scotty

In my Federal Courts class earlier this week, I advised my students that, in the event that teleportation technology of the sort used in Star Trek ever becomes available, they should avoid it, because for all we know, teleportation kills the person entering the teleporter while creating a replicant at the other end with that person's memories and the false belief that she is the same person. From the outside, no one would be able to tell whether the person emerging from the teleporter at the destination is really the same person who entered it at the point of embarkation, but that is hardly sufficient reassurance. (Never mind how this was relevant to Federal Courts. It had something to do with whether the meaning of habeas corpus was fixed in 1789. On that question, see my column here.)

And now the legal question. Suppose that a teleportation device is invented. Could the state prosecute the operator of the teleporter for murder? For assisted suicide? Does the state get to decide that a person consists of consciousness/memories plus physical substrate rather than consciousness/memories alone? There is a substantial, if inconclusive, body of philosophical literature of personal identity based on this and other science fiction examples. Does the state just pick one of the philosophical theories? Would that run up against the claim by the Supreme Court in Roe that the state can't simply pick a theory of when life begins? Or is that statement itself basically robbed of all jurisgenerative force by the Court's view in Cruzan that the state can decide on a conception of life as against an individual's view about the dignity of life?

On the merits, I'm moved by the following difficulty: Suppose that teleporter 1.0 destroys the matter comprising the teleportee's body at departure point and then reassembles new matter to reconstitute deportee at arrival point. Now suppose that someone invents teleporter 2.0, which doesn't need to destroy teleportee's body. Isn't it now perfectly clear that the assembled teleportee at arrival point is simply a very good copy rather than the original person herself? And if that's true in the case of 2.0, shouldn't it be true in the case of 1.0? In the philosophical literature, some people have made the argument for a "closest continuer" account of identity, such that the reassembled transportee IS the same person in case 1.0 but not in case 2.0, but that seems bizarre to me. I have no difficulty with a relative or even stipulative conception of identity for inanimate objects (like the ship of Theseus), but for a person or other sentient being it seems there is a subjective fact of the matter. In other words, it's not just important to me that a consciousness that experiences itself as continuous with me exist in the future but that I be the one who has that consciousness.

Maybe I'm just confused in thinking that way. Maybe in the ordinary course, me at time T+∆ is a person with the memories and the subjective but mistaken impression that he is the same person as me at time T. In this view, which has been espoused by David Hume and some Buddhist philosophers, each of us is constantly dying and being replaced by new, very similar, people. And maybe the difference between my intuitive sense and the Humean/Buddhist sense is simply one of semantics. But I'm still not getting into the transporter booth and I'd even go further to say that the state would act legitimately by banning its use.

There, I've solved that pressing legal issue.

Jose Padilla: Combatant, Criminal or Crazy Guy?

Yesterday federal judge Marcia Cooke ruled that Jose Padilla is competent to stand trial, notwithstanding the claims of his lawyers that, as a result of the abuse he allegedly suffered while in military custody, Padilla has become unable to assist in his own defense. Padilla's lawyers said that, as a result of his trauma, Padilla refused to discuss his case with them, making him, almost by definition, not able to assist. The government argued that this refusal was deliberate. Cooke evidently thought Padilla sufficiently lucid to understand the nature of the charges, and thus to assist in his defense, regardless of what he was saying or not saying to his lawyers.

For my part, I'm a bit disappointed by the ruling, if for no other reason than that a finding of incompetence might have made Padilla the first person in U.S. history to be imprisoned under just about every possible legal theory. Recall that Padilla was: first, held as a material witness; second, moved to military custody; and third, transferred to the civilian criminal justice system. A finding of incompetence to stand trial would have resulted in psychiatric evaluation and possible treatment, but had Padilla's condition not improved, he then might have been fourth, civilly committed as mentally ill and dangerous.

Note that the legal standard of proof differs in each of these contexts, as does the nature of the detention. The fact that our legal system has been sufficiently malleable to permit Padilla to slide among them suggests that there is something seriouisly amiss, either in this case or more broadly with the legal categories. At the very least, one would have hoped that by now the government would have proffered some reason why Padilla was classified as an enemy combatant and why---other than fear of a loss in the Supreme Court---he was then reclassified as an ordinary criminal defendant.

Of course, the legal system is not done with Jose Padilla. Should he somehow be acquitted, perhaps he will then be found to have avian flu, requirng that he be quarantined.