Legal Education and Morality

Mike's post from this morning discusses comments by Philip Zelikow, a former Bush administration official who argued recently that law schools do not train future lawyers to think about moral or normative questions but only to think about technical legal arguments. Mike's response, with which I completely agree, is that law schools in fact do teach students to think about morality and justice. I'll add here some anecdotal observations as well as a comment about how Zelikow's attack is fundamentally at odds with the usual attacks on legal education.

When I was in law school at Michigan, there were a large number of students (thankfully not a majority, but still a sizable group) who would constantly grumble about how our professors wouldn't simply teach black-letter law and would "hide the ball." Their complaint was precisely that law school was NOT what Zelikow claims it is: a trade school where methods of legal reasoning are taught without consideration of alternative outcomes or normative standards. These students were correct that their professors were trying to get them to confront normative concepts underlying the law; but they were wrong to imagine that this was somehow inappropriate.

Having now taught at Rutgers-Newark and NYU, I've emphasized in all of my classes how much legal education is NOT about merely learning black-letter law. Indeed, to a surprising degree, there is no black-letter law, if by that term is meant a body of unambiguous rules that lawyers can apply without exercising professional judgment based on ethical and moral concerns. Given that I teach contracts and basic tax, this takes some students by surprise. I'm sure there are professors who proceed as if they can teach law as a trade rather than a moral and intellectual pursuit; but I think that those who do so are fooling their students and, quite likely, themselves.

What is perhaps most interesting about Zelikow's argument, though, is that it turns upside down the claims that political conservatives usually make about law schools and about liberal lawyers and judges. The usual complaint from the Right is that law schools are dominated by a bunch of wild-eyed liberals with no fealty to the text of the law, who simply take a 1960's if-it-feels-good-do-it approach to the law. Lawyers thus trained supposedly then go out and become advocates and judges who proceed as if the law is based on morality, not the text of constitutions and statutes. For example, Justice Alito's majority decision in this week's Title VII case sneers at the plaintiff's arguments (which Justice Ginsburg's dissent adopts) precisely because, Alito asserts, those arguments are merely "policy arguments [that] find no support in the statute."

Apparently, then, law schools are overrun either by a bunch of liberal idealists who do nothing but tell their students to ignore the law or by a bunch of technicians who tell their students to think only about scoring doctrinal points in court. Neither is true, of course. Legal education in the United States is most certainly not a monolithic institution, but Zelikow's claim that law students are not encouraged to think about the normative issues behind the law is beyond a stretch.

Lawyer Bashing by a Former Bush Administration Policymaker

Yesterday's NY Times story questioning the efficacy and morality of "enhanced" interrogation techniques employed by the CIA and US military since 9/11 noted that "[i]n an April lecture, Philip D. Zelikow, the former adviser to [Condolezza] Rice, said it was a grave mistake to delegate to attorneys decisions on the moral question of how prisoners should be treated." The full text of the speech to which the Times story refers has been posted here, and Zelikow's argument is not at all persuasive.

Zelikow contends that in the aftermath of 9/11, the Bush Administration turned to lawyers to assess the legality of various policy options on interrogation and other issues, and that these lawyers, per their training, asked the question whether the proposed policy options (including the "enhanced" interrogation techniques) could be accomplished legally without asking whether they should be undertaken. That focus on could but not should, Zelikow argues, is simply a function of the narrowness of legal education. Here is a crucial passage from Zelikow's speech:

Lawyers are not generally trained in legal policy. Even some of the finest lawyers cannot be considered expert in it. Confronted with a novel problem, the habit of thought developed in law schools, and practice, is to spot the legal issue and determine an authoritative, or at least arguable, position on what the law requires. It is important for lawyers, and those who use them, to know the strengths and limitations of these skills. [Consider] moral reasoning. Moral reasoning, which most people think has something to do with ‘right and wrong,’ is not taught in law school. The relationship of law to morality is an interesting question, wonderfully explored by thinkers as diverse as Edmond Cahn and James Q. Wilson. But, for better or worse, moral reasoning is not generally taught in law school.

This is simply false. Although not in practice, Zelikow did go to law school and should know better. From Lon Fuller through Ronald Dworkin, leading legal scholars have argued that law and morality are inseparable. Even those who disagree --- who follow in the positivist footsteps of Oliver Wendell Holmes, Jr., H.L.A. Hart, and my colleague Joseph Raz --- do not say that moral arguments play no role or even a small role in the formulation of legal rules. On the contrary, they say that when lawyers disagree about what the law requires, but nonetheless make normative arguments, those arguments are moral arguments rather than strictly legal ones. Importantly, even for positivists, it is lawyers who make these moral arguments. As for legal education, the whole point of the Socratic method is to bring out the moral and policy consequences of various rules of law, so that, to the extent permitted by authoritative sources, one can select the best rule under the circumstances. Socrates himself was (among other things) a moral teacher, who inspired his students to question received moral wisdom.

Zelikow has things exactly backwards when he taxes the legal profession with the moral blindness of Alberto Gonzales, Jay Bybee and John Yoo. He lets them and their ilk off the hook for DISTORTING legal analysis in the pursuit of immoral aims. The problem with the infamous torture memos is not that they dotted every legal i and crossed every legal t while missing the bigger moral questions. Quite the opposite. The problem is that the government lawyers who wrote them set aside the law --- including its moral commands --- to reach the policy outcomes that their political masters desired.

Aboriginal Whaling and RFRA

The International Whaling Commission is currently holding its 59th annual meeting in Anchorage Alaska. The big action scheduled for the meeting concerns Japanese and Danish efforts to increase their catch quotas. Both countries (and others) have been accused of masking commercial whaling programs as "scientific" or "traditional community" programs. Here I want to focus on a decision already taken. Yesterday the Commission, among other actions, renewed the five-year quota of 280 bowhead whales to be split between Alaska Natives and the indigenous people of Chukotka, Russia. Suppose that this quota is, by the lights of Alaska Natives, inadequate. Or suppose that it had been denied altogether. Would Alaskan Inuits have a valid claim under the Religious Freedom Restoration Act (RFRA)?

Although the Supreme Court struck down RFRA as applied to state and local governments in City of Boerne v. Flores (1997), the Court unanimously held in Gonzales v. O Centro Espirita (2006) that RFRA still validly binds the federal government. RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the burden satisfies what appears to be the familiar strict scrutiny test. In referring to "Government" rather than "laws," RFRA thus appears to limit all actions of the federal government, including treaties and actions taken pursuant to treaties, such as the whaling quota.

It's not entirely clear that whaling counts as a religious practice. For one thing, many Inuits are Christians (in large part because of programs of forced assimilation). For another, even within the traditional Inuit religion (commonly described as a form of shamanism or nature worship), whaling is not exactly a ritual in itself. Still, subsistence whaling (and the hunting of other large sea mammals such as walruses and seals) plays a sufficiently large part in the traditional Inuit way of life that a ban on whaling could be said to "substantially burden" that way of life, and with it, the religion of which it is a part. More broadly, although the First Amendment and RFRA expressly speak of "religion" rather than "culture," I suspect that the impulse to give the Inuit an exemption from the general ban on whaling is closely connected to the impulse to give Native Americans a prima facie exemption from the general ban on peyote use: Some notion that ethnic as well as religious communities, and especially communities of indigenous peoples who have suffered a history of oppression, are entitled to practice their traditional way of life without interference from the mainstream polity, absent a compelling justification for that interference.

So, can a whaling quota survive strict scrutiny? I would like to think so. In Church of Lukumi Babalu Aye v. Hialeah (1993), the Supreme Court applied strict scrutiny to Hialeah's prohibition on ritual animal sacrifice and found that it failed. However, the problem with the Hialeah ordinances was that they were not narrowly tailored. They targeted practitioners of Santeria while permitting animal cruelty if practiced for non-religions reasons. As Justices Blackmun and O'Connor noted in a concurrence in the judgment in Lukumi: "A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in [Lukumi] does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals." In my view the government has a compelling interest in preventing cruelty to animals, and that encompasses the deliberate killing for food, even by humane methods (which harpooning is not), of highly intelligent animals such as whales. Under this view, even a complete ban on whaling, with no indigenous peoples exception, would survive scrutiny under RFRA.

To be sure, it would be open to religious whale hunters to argue that the government does not prohibit the slaughter for food of other intelligent animals, such as pigs, and thus that the law is not narrowly tailored. But while that argument might succeed under constitutional strict scrutiny---which condemns underinclusiveness no less than overinclusiveness---it should fail under RFRA, which does not require "narrow tailoring" as such. Instead, it requires that a law substantially burdening religion be "the least restrictive means of furthering [the] compelling interest" it serves. On its face, that test forbids overinclusive but not underinclusive laws (and treaty provisions or applications).

A whaling quota might also be defended pursuant to some other interest, such as environmental protection. Although I'm confident that the courts would find that environmental protection is a compelling interest, questions of narrow tailoring would be quite thorny. Would the government need to show that the incremental damage done to the population of some whale species would make it vulnerable to extinction? Would it have to show that the particular species of whale sought to be hunted plays a vital role in an ecosystem? In the environmental health of the planet as a whole? Here, as elsewhere, we see that the strict scrutiny is mushier---and thus less likely to provide determinate outcomes---than the fatal-in-fact doctrine of a generation ago.

RAPE AND HIV TESTING II

One comment on my earlier post on this issue raises a very interesting and important point about rape and HIV testing. The comment notes that prophylactic HIV treatment must begin within 72 hours of exposure to the virus, which almost certainly means that by the time a suspect has been indicted for a particular rape, the window will have closed. It is true that the CDC recommends that prophylactic HIV treatment be started within 72 hours of exposure. For those unfamiliar with the distinction between HIV prophylaxis and treatment, the former allows a person who has had HIV introduced into her system to prevent infection (as opposed to simply managing it) by taking the cocktail every day for a month within a short time after exposure. This is distinct from using the medication to "treat" HIV, because if prophylaxis is successful, then the exposed person need not ever become HIV-positive.

There are some caveats however, which may affect how the 72-hour window bears on an assessment of the New York bill. First, the 72-hour window is based on laboratory tests performed on monkeys rather than on observation of exposed human beings. The window reflects the diminishing prevention rate in monkeys as the time between exposure and commencement of treatment lengthens: 100% of monkeys avoided HIV if treated within 24 hours; 52% avoided infection if treated within 72 hours. Therefore, prophylaxis could potentially be useful to human beings after the passage of a longer (or shorter) period of time post-exposure than it would be in a monkey. Clinical trials have yet to tell us, one way or the other. Even if the odds of prevention dip below 50% after 72 hours, moreover, they may not dip to zero (and some infections may still be stopped in their tracks). The second caveat is that a rape victim may be more willing to endure the side effects of the cocktail if she knows that if and when her alleged assailant is indicted, he will immediately be tested. She will then have the opportunity to revisit her decision to proceed with treatment on the basis of the new information available to her. Third, the cocktail administered after the window on preventing infection has firmly closed can still offer early treatment, and the earlier treatment begins, the better the prognosis could be. And finally, learning that her alleged assailant is HIV-negative could provide a measure of relief to a rape victim, and this is worth a great deal.

In short, the 72-hour window for HIV prophylaxis does reduce the utility of requiring HIV-testing for people indicted for rape. Nonetheless, existing uncertainty about the true size of that window for human patients coupled with the various ways in which the information could prove useful to a victim, even if the 72-hour window holds for human beings, may still justify the New York bill under consideration. As I said in my earlier post, I am not strongly committed to this position, but my inclination is still to favor the bill.

[Speaking of updates, I have more on the vegan issue in my FindLaw column today.]

Shoot the Freak

Because this is Memorial Day, I thought I would post a recommendation for some fun reading, along with a few stray comments of my own. (Because many people will spend this holiday at Coney Island, I titled this message with an obscure reference to an attraction at that famous tourist destination.)

The book Freakonomics became something of a phenomenon back in 2005. The book itself was a huge bestseller, the authors (Steve Levitt and Stephen Dubner) started to write a semi-regular column in the NYT Sunday Magazine, and of course a Freakonomics Blog was obligatory. A sequel, Super-Freakonomics, is reportedly on the way.

I was among those taken in, writing a positive review of the book (along with the book Blink -- which I still believe is very good) on FindLaw. Although I noted some overstatements in Freakonomics, particularly in its claims that Levitt's insights somehow derived uniquely from "the economic method of thinking," or some such pomposity, a fair reader would reasonably have called the review a rave.

Almost immediately after writing that review, though, I started to reconsider. In part, it was the follow-up pieces in the NYT Magazine, which seemed forced and unpersuasive. (One, discussing child safety seats -- with Levitt assuring people that the data did not support the wisdom of child safety seat laws -- turned out to have been based on a review of only a small fraction of the relevant safety data. Oops! Who cares if parents went away believing something unsupported by the data?! The article was a pleasure to read, wasn't it?)

I began to suspect that there was exactly one book's worth of interesting material of this sort, and Levitt had already jumped the shark by pushing it further. Mostly, though, I realized that I had been taken in by a breezy style and Levitt's self-assured tone. Yes, data analysis is interesting and important; but Levitt didn't invent it, re-invent it, or even do much useful with it.

I recently came across a much more acerbic review of Freakonomics by the economist Ariel Rubenstein, "Freak-Freakonomics," which was published in December of last year. (The link requires a free sign-on to an interesting on-line magazine called The Economists' Voice.) Suffice it to say that I agree with Rubinstein's review more than my own. In five short pages, Rubinstein sketches the outline of his not-forthcoming book, Freak-Freakonomics. Here is a sample:

"Freakonomics lashes out at the entire world from the Olympus of economics. My response is an outline of 'my new book'—Freak- Freakonomics. In my ('brilliant . . . ') book, I will borrow from the structure and text of Freakonomics. I will show that if one also looks upon economists, including Levitt, as economic agents, one can use the insights of Freakonomics to lash out against . . . economics and economists."

Also this, from (the nonexistent) Chapter 2 ("Why Do Economists Earn More than Mathematicians?"):

"The chapter is inspired by Freakonomics’ discussion of the question of why 'the typical prostitute earns more than the typical architect.' [J]ust as Levitt has never encountered a girl who dreams of being a prostitute, I have never met a child who dreams of being an economist. ... I offer a new explanation for the salary gap between mathematicians and economists: many economists are hired to justify a viewpoint. In contrast, I have never heard of mathematicians who proved a theorem to satisfy their masters."

Enjoy!

Cheney at West Point: There He Goes Again

Vice President Cheney gave the Commencement speech at West Point on Saturday, and on this Memorial Day Weekend, I'm happy to join him in his conclusion: "Godspeed to the United States Military Academy Class of 2007," 70 percent of whom, according to the VP's speech, now go into combat. I'll even praise Cheney for not suggesting that those who question the conduct of the Iraq war are unpatriotic. He was almost gracious in stating: "Down in Washington, D.C., we air differences and argue back and forth on matters of policy. It's always that way, and there's nothing wrong with it."

Nonetheless, the speech was, at bottom, an artifice. As a stylistic matter, it was larded up with numerous insider references to persons and places at West Point. If one did not know the identity of the speaker, one would have guessed that it was a decorated veteran officer, returning to the place where his glorious military career began, rather than the beneficiary of five deferments during the Vietnam-era draft who had "other priorities" than military service when his generation was called. (To be clear, I don't fault the young Cheney for seeking those deferments or setting those priorities; I do fault the old Cheney for wrapping himself in the flag and demanding sacrifices of others that he himself was unwilling to make.)

But more important than the speech's stylistic bravado was its substantive shamelessness. Some news stories have already called attention to Cheney's derision of captured "killers" who "demand the protections of the Geneva Convention and the Constitution," while they themselves fight by no recognized rules of civilization. On this point I'll only say that even if one thought that norms of humane treatment of captives were solely about reciprocity, we might want to obey procedural niceties like those of the Geneva Conventions and the Constitution for no other reason than so we can sort out the killers from the innocent civilians who can get and have been swept up in the fog of war.

The real whopper in the speech was that the Vice President continues to link Iraq to 9/11. He said:

The terrorists know what they want and they will stop at nothing to get it. By force and intimidation, they seek to impose a dictatorship of fear, under which every man, woman, and child lives in total obedience to their ideology. Their ultimate goal is to establish a totalitarian empire, a caliphate, with Baghdad as its capital. They view the world as a battlefield and they yearn to hit us again. And now they have chosen to make Iraq the central front in their war against civilization.

In Iraq today, the al Qaeda network that struck America is one of the elements trying to destroy a democratic government. They are surging their capabilities, attacking Iraqi and American forces, and killing innocent civilians. America is fighting this enemy in Iraq because that is where they have gathered. We are there because, after 9/11, we decided to deny terrorists any safe haven. We are there because, having removed Saddam Hussein, we promised not to allow another dictator to rise in his place.

And we are there because the security of this nation depends on a successful outcome. The war on terror does not have to be an endless war. But to prevail in the long run, we must remove the conditions that inspire such blind, prideful hatred that drove 19 men to get onto airplanes and come to kill us on 9/11.

Think about that: "America is fighting this enemy in Iraq because that is where they have gathered." If the Vice President had even the slightest smidgen of humility, he would have left that line out, don't you think? Because, after all, "they" only gathered in Iraq after "we," at the VP's vehement behest, created the conditions that made it possible. That doesn't necessarily mean Cheney is wrong going forward. The war was a terrible idea in the first place and the civilian leadership badly bungled occupation planning, but still, it is what it is now, and the people who say that our precipitous withdrawal could make things still worse might be right. Those directly responsible for the initial misjudgments would have more, which is to say any, credibility in making that point, however, if they acknowledged their prior failures. But that's not the stuff of fine speeches, I suppose.

RAPE AND HIV TESTING

The New York State Assembly is poised to consider a bill requiring H.I.V. testing of suspects who have been indicted for rape. Governor Elliott Spitzer and a majority of the Assembly support the legislation. However, it is nonetheless controversial and may therefore stall before coming up for a vote. The question of whether such legislation properly balances the interests of rape victims and rape suspects is a difficult one.

Those who support the bill say that a rape victim should have as much information as possible in deciding whether to begin taking the combination of H.I.V. medications known as the "cocktail" after a sexual assault. These medicines play a crucial role in slowing down the multiplication of the virus and in strengthening a person's immunity, but they have many unpleasant and significant side effects. To ensure compliance, it is therefore useful for a patient to know that she has actually been exposed to the virus. The reason the victim cannot simply take an H.I.V. test herself right after an assault is that it takes about twelve weeks for an infected person's blood to become "H.I.V.-positive" for purposes of an antibody screen.

Opponents of such testing respond along two different dimensions. The first argument emphasizes the invasion of a suspect's privacy involved in testing his blood. Because a suspect indicted for rape is "innocent until proven guilty," he should not have to take a test the premise of which is that he did in fact rape the complainant. The second argument points out that such testing does not truly further the health interests of the rape victim. A victim who relies on a suspect's negative H.I.V. test to forego the cocktail could actually be making a life-threatening mistake: the victim could be mistaken about the identity of her attacker (and the actual rapist could be H.I.V.-positive) or the suspect, if he is guilty, could have only recently contracted the virus, in which case his negative result would be meaningless.

On the question of suspect privacy, I am quite sympathetic. A person who receives a positive H.I.V. test confronts the possibility of discrimination from many quarters, including the insurance industry and employers. The fact that many testing centers offer confidentiality of results is quite revealing, in this regard, and it is not necessarily realistic (or even fair) to expect a rape complainant to keep such information secret. An indictment does signify a grand jury's belief in "probable cause" to prosecute the defendant for rape. Still, the prosecutor runs the grand jury process, and it is therefore vulnerable to errors that a competent defense attorney could later expose at trial. Furthermore, because most of the rapes that are prosecuted (though not the majority of rapes that occur) are "stranger rapes," there is a real possibility that the victim unwittingly identified the wrong person. It would be quite unfortunate if a suspect were first wrongly accused of rape and then publicly exposed as H.I.V.-positive.

Nonetheless, the notion of "innocent until proven guilty" is primarily a presumption that governs the trial jury's consideration of the evidence. Beyond the conduct of the trial, the law does not treat a person indicted for rape (or murder, etc.) just like all other innocent people in society. For example, many people are held in jail pending trial on the basis of a finding that leaving them at large poses an unacceptable risk to the law-abiding population (and the risk of flight). If such suspects try to escape confinement, moreover, deadly force may be used to stop them. By comparison to jail (where suspects have virtually no privacy) and the possibility of deadly force, an H.I.V. test seems far less invasive.

I am less sympathetic still to arguments denying the utility of such testing. A doctor surely ought to tell her patient that a person indicted for rape could actually be innocent and that even if he is guilty, he might have contracted H.I.V. recently enough to "pass" an H.I.V. test. Such information is part of informed consent. It is nonetheless informative for a rape victim to learn how the person she believes attacked her fares on an H.I.V. test. For one thing, a negative result could give her some peace of mind during a very traumatic time in her life. For another, a negative test -- while, for reasons stated, is not foolproof -- can help her make an intelligent plan for how to address the possibility of infection.

In all, I think I have persuaded myself that a law mandating H.I.V. testing for people indicted for rape would be a net positive development. It does subject a defendant who has yet to be tried (and thus may be innocent) to an invasion of privacy that may well result in stigma and discrimination. Being indicted for rape carries its own stigma too, though. If available information about her indicted assailant could ease the severity of a rape victim's trauma or motivate her to undergo life-preserving drug therapy, it seems worthwhile (though not cost-free).

The Box

As the long weekend approaches a lot of New Yorkers are thinking about traffic. So Mayor Bloomberg showed good timing in announcing yesterday a new plan to increase enforcement against drivers who "block the box." Although I wasn't invited to join the him on the traffic island at Times Square where he made the announcement, I'd like to join my council member, Gale Brewer, who was there, in saying that "I fully support Mayor Bloomberg's efforts to control this nuisance."

The clever part of the plan is a proposal (requiring NYS approval) to "reclassify" the violation. Right now blocking the box (for those who don't know "Blocking the box is a common term for driving into an intersection as the light is changing without room to continue through it, thus blocking traffic") is considered a "moving violation," instead of a "non-moving violation." How this can be I have no idea; if you were moving, you wouldn't be blocking the box. Maybe it's the moving that you do getting into the box that's the violation. Whatever the reason, the legal consequence is apparently that penalizing the driver requires a police officer to waste ten minutes issuing a ticket on the spot, probably while holding up traffic. The practical consequence is that it's not practical to issue many tickets for blocking the box. For non-moving violations, in contrast, traffic enforcement agents other than police officers can just enter a vehicle registration number into a handheld device, causing a ticket to be mailed to the driver. With this change, more tickets will be issued (one hopes).

In other words, although the Mayor doesn't put it this way, the plan is to boost enforcement by downgrading the violation. While the penalty would necessarily be reduced (although the ticket would actually go up to $115 from $90, the total penalty would go down because the "moving violation" box-blocking also puts 2 points on the violator's license, which can raise insurance rates among other things), the procedural hurdles to applying the penalties would be reduced as well. Although I'm reluctant to take the focus off NYC Memorial Day traffic, it's a nice example of how the effort to control a certain type of misconduct can be hampered by treating the misconduct as more serious than it actually is.

Have a nice weekend, and if you're going somewhere, drive safely, and don't block the box.

What Would it Take for Bush to Lose Confidence in Gonzales?

That's not entirely a rhetorical question. After the AG's dismal performances in his testimony before both houses of Congress, President Bush praised him. Yesterday he stated that “Attorney General Gonzales has testified; he produced documents,” and demanded that Congress “move expeditiously to finish their hearings.” In response to a question about whether the Justice Department might not be better served by different leadership, the President invoked the Department's ongoing internal investigation. “This will be an exhaustive investigation,” he said. “And if there’s wrongdoing, it will be taken care of.”

This approach is reminiscent of the President's statements regarding the Plame affair. When it first became apparent that someone in the Administration had leaked the name of a CIA agent for the purpose of undermining her whistle-blowing husband, Bush took the high road, vowing to fire anyone involved. Then, as Special Prosecutor Fitzgerald's investigation proceeded, the President changed his approach. He said that "if someone committed a crime, they will no longer work in my administration." Leaking Plame's identity was no longer a firing offense; only criminal conduct was.

Can we now expect a similar effort to define malfeasance down for the AG? Suppose that the Justice Dept's internal investigation reveals that Gonzales did in fact play a substantial role in dismissing US Attorneys for partisan reasons but that this was not a crime, or not the sort of crime that warrants prosecution. Perhaps the President will then say that Gonzales has been cleared. If the investigation does lead to the conclusion that Gonzales should be prosecuted, well, the Justice Department itself couldn't bring the case, so we would need a special prosecutor. And of course, it wouldn't be fair to Gonzales to boot him from office just because of an indictment. Innocent until proven guilty, right? So at the worst Bush and Gonzales can run out the clock. Win/win.

Bargaining With Oneself?

This week, the Senate began debate over a massive immigration reform bill cobbled together by a bipartisan group of senators and the Bush administration, a compromise proposal that Arlen Specter has extravagantly dubbed the "grand bargain." As rumored several weeks ago, the bill includes a set of initiatives (apparently included at the behest of the Bush administration) that would radically accelerate the Clinton-era trend of eroding the place of family unity as a foundational principle underlying U.S. immigration policy. The system contemplated by the grand bargainers would eliminate most of the existing family-based immigration preference categories (and all of the existing employment-based preference categories) in favor of a new "points"-based scheme that prioritizes highly-skilled, highly-educated, and English-speaking professionals; under the points scheme, family ties would carry negligible weight. Immigration by spouses and minor children of U.S. citizens and lawful permanent residents would remain unchanged, but the grand bargain would eliminate family-based immigration for adult children of U.S. citizens and permanent residents and siblings of U.S. citizens. The proposal would also cap immigration by parents of adult U.S. citizens, who currently can immigrate without numerical restriction.

The proposal seems to come straight from the playbook of immigration restrictionists, who sometimes purport to welcome nuclear family-based immigration, but dismiss extended family-based immigration as privileging "kinship ties" over "actually making the United States better off." [link] Curtailing "extended" family-based immigration -- which in this context means parents, adult children, and adult siblings, not more "distant" relatives -- certainly would visit a real hardship upon many immigrants from societies in which the extended family is a basic social unit and caring for aging parents and other adult family members a basic social value. (Indeed, at least one international news report this week characterized the grand bargain as "challeng[ing] Asian family values.") But one need not view this issue exclusively in cultural terms to be concerned by the grand bargain's rather sudden move away from family unity, for opponents of extended family-based immigration also seem to underestimate its social and economic benefits to the United States at large. Studies indicate that family-based immigrants, perhaps aided by greater social capital, have the same earning potential over time as employment-based immigrants, play a leading role in the entrepreneurial sector, and provide economic, psychological, emotional, and cultural support that facilitates the integration of immigrants into U.S. society. Immigrant grandparents and other extended family members often also play a crucial role in assisting with child care, facilitating the workforce participation of many parents.

It is a bit odd to see a proposal to curtail family reunification -- which was not even on the table at all in the immigration debate last year -- as part of the opening bid in the debate before a Democratic Senate. It is one thing to see President Bush's statement that "American citizens [should] understand that family values do not stop at the Rio Grande River" evaporate, since the Bush administration has always devoted more energy to asserting broad principles in the area of immigration reform than to tangibly implementing those principles in proposed legislation. (The revised rhetoric coming from the White House this week maintains, less majestically, that the grand bargain's elimination of most family-based immigration categories "create[s] a new balance between family connections and our national interests and economic needs." [link]) But it is quite another to see Senator Kennedy signing on to this proposal, which appears in a bill that on balance seems more restrictionist, in some ways, than the bill which passed the Republican-led Senate by a wide margin last year. Not only did Kennedy strongly assert his commitment to family reunification less than two months ago, he also played a crucial role in placing family reunification at the heart of U.S. immigration policy in the first place, when the Immigration Act of 1965 was enacted. One has to wonder what the strategy is here. Some senators have said they will seek to amend the family unity provisions on the Senate floor, but it remains to be seen how those floor votes will play out.

* *

The New York Times efficiently summarizes and critiques the 347-page bill's main components (including its legalization and temporary guest worker provisions, and the "triggers" and "touchbacks" that might make it difficult for those provisions to take effect at all) in this short editorial. The American Immigration Lawyers Association adds its concerns about the grand bargain here, the Rights Working Group discusses due process concerns in the bill here, and SAALT executive director Deepa Iyer discusses implications for the South Asian American community here. And last but not least, Jon Stewart and Aasif Mandvi discuss the points scheme in the clip above.

The End of Notice Pleading?

Monday's Supreme Court decision in Bell Atlantic Corp v. Twombly will be scrutinized carefully by both civil procedure scholars and antitrust scholars for years to come. Indeed, as a proceduralist but not an antitrustite, I can attest that the procedure side of the scrutiny has begun in earnest, at least as judged by the level of buzz on the civpro faculty list. For those of you who have more interesting things to do with your lives, here's a very capsule summary: The plaintiffs brought a class action against local telephone line operators, alleging that in violation of the Sherman Act, the local phone companies had colluded not to compete against one another in their respective areas. The complaint did not directly allege facts showing an actual agreement but instead included the bare allegation of a conspiracy and parallel conduct by the defendants which, the plaintiffs alleged, gave rise to an inference of an agreement. The Supreme Court held that this complaint was insufficient to survive a motion to dismiss, even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” The civil procedure mavens are abuzz because the case thus appears inconsistent with two relatively recent Supreme Court decisions rejecting a "heightened pleading standard"---i.e., a requirement that the plaintiff allege specific facts---except in the small number of circumstances expressly set forth in Rule 9.

Yet Justice Souter's opinion for the Twombly Court specifically disavows this reading. He states in footnote 14:

In reaching this conclusion, we do not apply any “heightened” pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished “ ‘by the process of amending the Federal Rules, and not by judicial interpretation.’ ” Swierkiewicz v. Sorema N. A., 534 U. S. 506, 515 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993)). On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than Rule 8 requires. Fed. Rules Civ. Proc. 9(b)–(c). Here, our concern is not that the allegations in the complaint were insufficiently “particular[ized]”, ibid.; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs’ entitlement to relief plausible.

The rough consensus coalescing among proceduralists seems to be that Souter's footnote 14 is simply false---not in the sense that the Court intends henceforth not to be bound by Swierkiewicz and Leatherman but in the sense that there's no way to understand the decision if it doesn't apply a heightened pleading standard. This emerging consensus is right but there may be a way to distinguish the case so that it does not do enormous damage to the 70-year-old regime of notice pleading in the federal courts.

Consider an analogy. Suppose that Nine Fingers Nate brings a tort suit against a surgeon who unsuccessfully attempted to reattach his severed thumb. The complaint includes a bare allegation of negligence and also makes clear that Nate will be relying on res ipsa loquitur. His factual allegations, however, merely state that the surgeon was unable to reattach the thumb. Applying the standards of the Federal Rules (let's say it's a diversity case), the district court would be right to grant a motion to dismiss because an allegation that the surgery did not achieve its desired outcome is hardly enough to support res ipsa. There are plenty of other reasons besides negligence for the surgery's failure. If the complaint makes clear that res ipsa is one of two possible theories of recovery, however, the other being direct proof of negligence, then dismissal of the entire complaint would be unwarranted. After all, a bare allegation of negligence is sufficient under the Federal Rules, as Form 9 makes clear ("On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.")

Accordingly, if the Twombly complaint meant the case to stand or fall on the allegation of parallelism, then the Court was right to affirm its dismissal. Like an unsupported claim of res ipsa, allegations of parallelism don't imply conspiracy absent unusual circumstances or additional factors. But if the Twombly plaintiffs instead alleged parallelism as simply one theory, then the Court should have permitted discovery to go forward based on the separate, albeit bare, allegation of conspiracy. The Court's bottom line decision could, therefore, be correct if it could be read as applying only in those cases in which the plaintiffs' complaint makes plain the intention to rely on parallelism as the sole basis for proving a Sherman Act § 1 claim.

Unfortunately, however, much of the Court's language makes clear that even absent any discussion of parallelism in the complaint, a naked allegation of conspiracy would be inadequate. The Court states, for example: "An allegation of parallel conduct is thus much like a naked assertion of conspiracy in a §1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of entitlement to relief."

There is almost no way to reconcile this language with Swierkiewicz, Leatherman, Rules 8 and 9, and Form 9. Perhaps all the Court means is that the Twombly complaint lacks even the sort of factual claims as one sees in Form 9---i.e., the equivalent of the allegation about the date and Boylston Street---but the complaint Twombly complaint itself does contain such details, as the dissent notes. So, the protests notwithstanding, the majority does appear to be requiring more fact pleading than everyone previously thought was required.

To be sure, the outcome of Twombly is easily reconcilable if one adopts the analogy to res ipsa I've suggested above. At least one hopes that the Court will be persuaded by this or some other distinction in the future so that Twombly can be treated as an antitrust case rather than a pleading case. But in the meantime it will likely do great damage in the lower courts. Plaintiffs' lawyers who hope to escape the newly heightened pleading requirement that the defense bar will now seek to impose across the board would be well advised to invoke Swierkiewicz and Leatherman, as well as the extremely important principle that when the Supreme Court does not expressly reject a precedent---as it most certainly did not reject Swierkiewicz and Leatherman in Twombly---lower courts must apply the precedent, even if subsequent cases appear to weaken it. (That principle is articulated in Rodriguez de Quijas v. Shearson Am Exp.)

Framed by Google

My FindLaw column for today (available here) discusses a recent Ninth Circuit ruling (available here) reversing a preliminary injunction against Google's image search engine on the ground that its thumbnail images infringed the copyright of the owners of the originals of those images. The 9th circuit found that the thumbnails were fair use, at least absent a specific showing that their economic impact on the owner's business---a porn website which also delivered low-res pics to cell phones---outweighed the transformative nature of the thumbnails when used as part of the image search on a conventional computer. The court also found no prima facie case of infringement from Google's "framing" of images from infringing websites, where those images resided on the infringers' servers rather than Google's. In other words, it applied what the district court called the "server test."

If that went by too quickly, read the column, which explains these issues in much greater detail. Actually, read the column no matter what. It's right here. Go ahead, read it. I'll wait.

Okay, glad to have you back. Anyway, as you now know from reading the column, I suggest there that the server test makes it too easy for copyright scofflaws to appropriate images without running afoul of the law, simply by embedding links to licensed images on other sites. My colleague Tim Wu points out that this is true but also agreed with my suggestion (not made in the column but available exclusively here on Dorf on Law!!!) that there ought to be a technological way to avoid this problem. If you don't want Google to index and/or cache your site, you just need to include a line of code so stating. As I discussed a while back (in a post here), a Belgian court has ruled that this opt-out system insufficiently protects copyrighted material, but Tim disagrees. He notes that the vast majority of site operators want to be findable by Google, and so a Googlable default makes sense.

That works if you're worried about Google but what if you're worried about every tom, dick and harry with a blog borrowing your content? One possibility would be a legal rule that says that use of the Google-don't-cache-my-page code also makes it illegal for anybody else to frame your content without specific permission, even if they don't copy your material onto their server. Absent such a rule, owners of copyrighted material may resort to self-help, embedding encryption in images and other content to prevent them from displaying when framed by non-licensed sites.

Death By Ignorance

Yesterday's New York Times contained an op/ed piece titled "Death By Veganism," by a woman named Nina Planck. Planck begins the column by referring to a case in which a baby died of starvation after his parents -- who were later convicted of murder and assorted other offenses -- claimed that they had simply fed the child a vegan diet of soy milk and apple juice. At the time of his death, Crown Shakur was six weeks old and weighed three and a half pounds (a dangerously low weight, even for a newborn baby). Planck uses this case as a springboard for arguing that a vegan diet is nutritionally inadequate for fetuses and children. The argument is deeply flawed and will needlessly frighten parents.

The first thing to note is that the prosecutor who brought the case against the parents rejected the defendants' claim that what distinguished their child's diet from that of other (surviving) children was the exclusion of animal products. The prosecutor argued that the parents were consistently underfeeding their child as he slowly and obviously starved to death. The evidence supported his argument, in which he emphasized repeatedly that the case had nothing to do with being a vegan and everything to do with not feeding a child. Despite the clarity of the case, Planck relies on the parents' transparently self-serving excuse to stir up the natural fear that people have of "unknown dangers" confronting their children.

No one (other than a murderer or a crazy person) wants to deny their children the nourishment they need. Even if we took the defendants' claims at face value (as Nina Planck appears to do), the parents were blatantly neglecting their child's needs. As any pediatrician whose patient's infant cannot tolerate dairy foods will tell you, the best choice is breast-feeding, and the second best choice is soy formula. Neither soy milk (which specifically says on its label that it should not be used as infant formula) nor apple juice would appear anywhere on any responsible professional's list of newborn foods.

Planck's larger point is not about starvation, though. She wants to persuade us that fetuses, babies, and children must have animal products and that plant foods are "inferior." As a vegan who is conscientious about my children's needs, I have consulted nutritionists, and they strongly disagree. They say that plant-based diets are extremely healthy for adults and children alike, that there is plenty of protein in such diets. The typical American diet (which consists of huge amounts of animal fat and protein, generally dosed with hormones and antibiotics) is, by contrast, a disaster. (Planck's own website describes her as "a food writer, entrepreneur, and the leading American expert on farmers' markets and local food." She apparently has no formal training in nutrition, biology, medicine or any related field.)

It is likely, as Planck suggests, that vegans need to take a vitamin B12 supplement. What she fails to mention, however, is that the diets of carnivornes and omnivores also leave them nutrient-deprived. We know this because prenatal vitamins decrease the rate of birth-defects across the population (most of which regularly consumes the products of slaughterhouses). Planck suggests that we crave animal products because we need them. But this argument would support the (incorrect) view that we should sit around eating ice-cream and burgers all day, because many of us crave this diet. Cravings are evolutionary adaptations to times of scarcity and intense competition for food. That is why so many of us suffer from obesity and diabetes in modern times. The fact that we "crave" something does not make it healthy.

Planck pretends to be courageous in attacking the vegan diet. She says that "food is more important than fashion," adding that "[t]hough it's not politically correct to say so, all diets are not created equal." Veganism, however, is not a "fashion." It represents opposition to the unnecessary and truly shocking cruelty and torture that turn sentient animals into edible corpses and milk-and-egg-making machines. Planck is also quite mistaken (if not disingenuous) about the politics of veganism. Nothing could be more politically correct than dismissing the vegan diet, and that is precisely because of the very "traditions" of meat-eating that Planck praises. Like meat-eating, of course, human beings have "traditionally" engaged in slavery, genocide, torture, and the violent subordination of females and gay people, all without apology. Change is often for the better.

No Confidence

With the possibility of a Senate vote of no confidence in AG Gonzales looming (and richly deserved), Bush Administration apologists have invoked the obvious but misleading point that a Senate vote of no confidence has no legal effect. This is a variation of the argument that was used during the Clinton impeachment effort. At the time, Democrats who agreed that Clinton had behaved inexcusably but thought that his conduct nonetheless did not warrant impeachment and/or removal from office, wished to see him censured instead. Republicans, wanting to prevent Democrats from having the "out" of a censure vote, insisted that because the Constitution describes the impeachment/removal procedure but does not mention censure, the latter option is unavailable. And likewise today, some Republicans who want to maneuver Iraq war critics into appearing not to support the troops insist that the only mechanism Congress has for stopping the war is a complete denial of funding.

The all-or-nothing argument is dubious in each context, although I'll restrict my analysis today to the Gonzales case. It's true that the only mechanism for removing a principal officer in the executive branch described in the constitutional text is impeachment. Yet that hardly proves that the Senate (or the House) can play no role in removal otherwise. If the textual argument were dispositive, then the President himself would not be permitted to remove a principal officer, except via impeachment. And yet Bush/Gonzales supporters plainly think that the AG serves at the President's pleasure. So the Constitution's reticence on this matter counts for precious little.

Nonetheless, there are sound structural reasons for believing---as the Supreme Court doctrine has more or less held---that while Congress can restrict the President's ability to remove some executive branch officials (as illustrated by the Independent Counsel case, Morrison v. Olson), Congress itself cannot retain the power to dismiss an executive branch official. A different rule would threaten the independence of the executive from Congress. But precisely because the President alone retains the ability to dismiss an executive branch official, absent the drastic step of impeachment, lesser steps by Congress are an entirely appropriate means of exerting political pressure. Withholding funding from agencies headed by sub-par performers is one method. Holding hearings at which executive officials publicly humiliate themselves is another. And a vote of no confidence is a third. If Congress can declare a "National Flag Week" or "Teacher Appreciation Week," as it has done, surely Congress can declare that "Alberto Gonzales is a lousy Attorney General," which is all that it would be doing in a vote of no confidence. Some might say it's the least Congress could do.

Bloomberg's Billions

Is there any better proof of the insanity of our campaign finance regime than the prospect of Michael Bloomberg spending a billion dollars of his own money---projected to be more than the combined sums spent by the Democratic and Republican candidates and parties, as well as third-party expenditures---to buy the Presidency? The "billionaire loophole" arises because Supreme Court doctrine since Buckley v. Valeo permits contribution limits but not spending limits. A wealthy person spending his or her own money to get elected is not contributing to any campaign, just spending, and thus avoids the limits.

Bloomberg's likely impact on the race is uncertain. If Rudy Giuliani captures the Republican nomination, Bloomberg could help the Democratic nominee. Christian conservative voters would be unhappy with the entire field and some would therefore stay home, while some number of moderate Republicans made uncomfortable by Giuliani's authoritarian style might stray to Bloomberg. On the other hand, if the Republican party nominates a candidate who is conservative on social issues, it's easy to see Bloomberg syphoning more votes from the Democratic nominee. Much will also depend on where Bloomberg stands on the Iraq war. His personal website has an issues section that does not mention the war. (I mentioned it once, but I think I got away with it.) That's forgivable, I suppose, in someone who is currently Mayor of New York and not an announced candidate for President. If Bloomberg does become a candidate, however, he'll have to take some position on the war, and whichever way he goes will likely have an impact on whether his candidacy hurts the Republican or Democrat more.

Notice that I'm talking about Bloomberg's impact as a spoiler. Given the track record of American third party candidates, it's just not plausible for Bloomberg to get elected as an independent. So what gives? The answer, I'm afraid, is the obvious one: ego. As a New York resident, I can say that on the whole, Bloomberg has been a very good mayor. If Giuliani proved that New York City is not ungovernable, Bloomberg has proved that the city is governable without the need to antagonize large numbers of people. At the same time, however, Bloomberg has shown himself to be fond of the big gesture for the sake of the big gesture. His quest to bring the Olympics to New York---an insane idea that would have been a financial, traffic and security nightmare---is emblematic. At some point, Bloomberg was persuaded that having the Olympics in New York City would be glorious, and no amount of reasoning would stop him. Likewise, I imagine that some sycophant said to Bloomberg that given what a good job he's done as mayor, he would be a terrific President, and because he would have serious problems capturing the nomination of either major party, he figured he could just self-finance.

Ours is a badly flawed system for nominating Presidential candidates. Under the right circumstances---if, say, both parties nominated racists or extremists of one stripe or another---a viable third-party candidacy would be a welcome safety valve. But we have nothing of the sort here. On most major issues on which he has taken a position, Bloomberg's views place him in the mainstream of the Democratic Party, which is not surprising, given that he was a Democrat before running for NYC mayor as a Republican (because he figured he couldn't get the Democratic nomination). Bloomberg would add precious little to the race except uncertainty and the possibility that a majority of voters actually oppose the winning candidate. That didn't work out so well the last time it happened.

Air America(n) Constitution Society Radio

Both Air America Radio and the American Constitution Society should have been abject failures, and for the same reason. Each was an attempt to do for left/liberals what a similar entity---Rush Limbaugh and his clones in one instance; the Federalist Society in the other---had done for the right. Yet in both cases there was an important difference. Right-wing talk radio gave voice to a political constituency that was previously largely voiceless, just as the Federalist Society provided a haven for conservatives who felt outnumbered by liberal faculty and students at nearly all prestigious law schools, a place for them to meet, network, and plan their eventual ascension in a real world in which conservatives held considerable power. By contrast, before there was Air America Radio, there already were NPR for the latte liberal set, a network of African-American stations for the Democratic Party's most loyal constituency, and Spanish-language radio for the largest ethnic minority group in the country. About the only part of the Democratic base without an identifiable radio home was organized labor, and there was never anything in the format of Air America Radio that seemed designed to appeal specifically to union types. I'm not sure whom one would hire for UAW Radio, but Al Franken and Janeane Garofolo would not be at the top of the list. Likewise, the American Constitution Society entered what was already a crowded niche. Liberal law students did not feel marginalized and if they had a thirst for ideologically charged engagement, they had plenty of other options: they could become active (and many still do become active) in student branches of the ACLU, the Lawyers' Guild, and other organizations, or they could (and many still do) engage in activist lawyering through legal aid, clinics and externships.

How then to explain that while Air America Radio has been largely a flop, the ACS seems to have caught on? Air America Radio went bankrupt last year but has been kept afloat by an infusion of cash from real estate mogul Stephen Green and is in the process of re-launching under the leadership of his brother, perennial New York political candidate Mark Green. Whether it succeeds under the Greens remains to be seen. Meanwhile, the ACS website accurately describes itself as "a rapidly growing network" that is already "one of the nation's leading progressive legal organizations."

I don't have a perfect explanation for the different paths that Air America Radio and ACS have thus far taken. There is, to be sure, the obvious fact that despite the parallels I have identified here, the markets for talk radio and for law student/lawyer networks differ substantially. But there is another factor, I think, and it has to do with temperamental differences between liberals and conservatives, and between lawyers and others. Conservative talk-radio is an angry, strident medium, and, with important exceptions (including Al Franken himself), Air America Radio tried to emulate that style. That doesn't seem to work with most liberals, who generally prefer their political red meat laced with irony rather than vitriol. That's why the leading TV alternatives to Limbaugh, O'Reilly and Hannity are satirists like Stewart, Olbermann and Colbert. Indeed, Colbert is pretty obviously a direct parody of O'Reilly.

By contrast, the intellectual style of the Federalist Society has always been cordial, almost genteel. Thus, by adapting the means of the Federalist Society to liberal ends, ACS has adopted a style---that of the high-minded debating society---that liberals already find congenial.

Mars Needs Ozzie and Harriet!

In an interview on NPR earlier this week, Berkeley Breathed, author of the comic strip "Bloom County," talked about his new children's book, "Mars Needs Moms!" The main character of the story is a little boy named Milo who, according to Breathed, sees his mother from a very limited perspective (much as Breathed's young son sees his own mom) -- as a bossy broccoli bully. Milo does not understand why mothers are nonetheless "worshipped" all over the world.

Martians looking at our planet, however, see how "cool" moms are and kidnap Milo's mom (the premise is evidently that the inhabitants of Mars reproduce asexually and therefore have no moms). When the boy visits Mars and watches his mom's activities there (which, I gathered from the interview, includes chaperoning little martians to soccer pratice, cooking, cleaning, and tending to scrapes and cuts), he gets a "new perspective" on his mom that he lacked before and now appreciates her more.

If I didn't know better, I might have thought I was listening to an interview recorded in 1957 instead of 2007. Breathed sheepishly acknowledges the potential offense that one might take to such stereotyping of mothers by saying that he got into a little trouble over the domestic emphasis and suggesting with a giggle that he should have made the mother an IBM executive by day. The trouble with the story, as described, however, does not lie primarily in the fact that the main character's mom appears to be a full-time homemaker. Plenty of women perform (without assistance) the very sorts of selfless tasks that Milo's mom does. The problem is that Breathed seems to define motherhood by reference to these exhausting and thankless tasks. He seems to believe, moreover, that a "different" perspective -- that of the martians -- can help illuminate this praiseworthy maternal essence for Milo. Breathed uncritically accepts and celebrates mothers' consignment to domestic drudgery and asks us to teach our children simply to appreciate their sacrifice.

Perhaps Breathed could next write "Why Mars Needs Undocumented Aliens," the story of an ungrateful young aristocrat who learns to appreciate the smiling men who do back-breaking, off-the-books labor for dirt wages on his father's plantation.

What disappoints most about the idea of Breathed's story is the unfulfilled promise of such an interesting premise. An inter-planetary fantasy could have provided a wonderful opportunity to expose the limited nature of sex-role assignments, perhaps by contrasting our planet with a more enlightened one on which fathers share in the drudgery of domestic labor and women spend more of their childcare time reading to their children, bathing them, and taking them to the museum. Or maybe the story could have shown how martians, without the nagging of loving parents, grow weak and sick. With all of this possibility, however, Breathed chose instead to pay homage to mothers by suggesting that even if they were to exit our planet, they would still drive their minivans to soccer practice, as though programmed in the town of Stepford.

Make Mine a Double

In my post on Tuesday morning, I quoted from a recent interview in which Rudolph Giuliani made some cryptic and misleading comments about the estate tax, which he of course insisted on calling the "death tax" -- a phrase that was focus-group tested to be as unappealing as possible to average voters, even though over 98% of all people's deaths do not result in any estate tax liability. (In fact, even "estate tax" is an inaccurate description of the tax. For a person's estate to be liable for the tax, a person must die with an exceptionally large estate that the decedent did not reduce through gifts to charities, etc. But the title "tax on exceptionally large estates of uncharitable decedents" wouldn't fit on the forms, I guess.)

Because it was not the focus of my Tuesday post, I merely noted parenthetically that "there is no 'death tax,' and the estate tax is not a double tax." The notion of double taxation has become such a key talking point for so many conservative politicians, though, that it's important to revisit a few simple points that are too often overlooked when the term "double taxation" is invoked:

-- Double taxation is a technical concept. It means imposing tax more than once on the same "base." A tax base is the economic activity or other objective concept used to determine tax liability, such as property, income, consumption, wealth, miles driven on a highway, population, etc.

-- The estate tax is not a double tax. The usual argument is that incomes are taxed, after which prudent savers deposit after-tax dollars in the bank and accumulate estates, at which point the estate is taxed. Even if this were true (and it almost never is, since that is not how sufficiently large estates come into being), that is still not a double tax. The tax base for the income tax is annual income. The tax base for the estate tax is undistributed wealth held at death. (One easy test is this: Can I earn income and not pay the estate tax? If so, then it's not a double tax.) That some of the wealth held at death might have been accumulated by saving from income doesn't mean that there is double taxation.

-- One could argue that this technical argument is beside the point. If a person saves their money and their estate pays taxes on the accumulated estate, that "feels" like double taxation, in Stephen Colbert's think-from-the-gut style of logic. If you want to be truthy about it, though, then everything is double taxation. Follow a dollar of income long enough, and it will be used in different transactions that qualify for different tax bases. I earn income in a year, some of which (depending on exemptions, etc.) is subject to the federal income tax, some to state and local taxes, FICA/Medicare, sales and excise taxes, etc. If everything is double taxation, though, then what is unique about the estate tax that makes its type of truthy-double-taxation especially bad? Why not repeal sales taxes for being double taxation? If you really want to have nothing but an annual income tax, let's talk about what that would require. Our current mixture of taxes on different bases might start to look pretty good.

-- There is nothing good or bad about double taxation. I'm hardly the first person to say that I'd rather pay tax on the same base at 10% twice than 50% once. Sometimes, we might choose to impose a tax twice to reduce cheating, since it's less likely that a person can evade paying taxes twice than once. The administrative costs have to be weighed against the taxes collected, along with respect for the law, etc. The point, though, is that "it's a double tax" -- even if a true statement -- tells us nothing about efficiency or fairness.

I once wrote up a slightly longer version of this argument in a FindLaw column. There is plenty out there written by other tax scholars as well. I don't expect the term "double taxation" to go away, because it is simply too juicy rhetorically. Even by our loose political standards, though, this particular bit of rhetoric is uniquely meaningless.

Basketball Formalism Prevails

After my post yesterday afternoon, the NBA decided to suspend Phoenix Suns Amare Stoudemire and Boris Diaw one game each for leaving the bench during what, NBA executive Vice President Stu Jackson said, clearly was an "altercation." Watching the video again, I can't say I that Jackson was wrong under the rule as written. Even granting that some element of subjective judgment necessarily enters into determining what counts as an "altercation," clearly what was occurring when Stoudemire and Diaw left the bench was much more of an altercation than what was occurring when San Antonio Spurs Tim Duncan and Bruce Bowen left the bench earlier in the game.

Continuing the parallels with the arguments for formalism in law, Jackson stated: "No one here at the league office wants to suspend players any game, much less a pivotal game in the second round of a playoff series. But the rule, however, is the rule, and we intend to apply it consistently." Then, echoing Hart on the separation of law and morals, Jackson added: "It's not a matter of fairness, it's a matter of correctness, and this is the right decision at this point in time." Or as Oliver Wendell Holmes, Jr. reportedly said in response to Learned Hand's urging that he, Holmes, "do justice": "That is not my job." Then, in various versions of the story, Holmes adds either that his job is to apply the law or, perhaps more aptly here, to play by the rules.

The NBA's Version of the Hart-Fuller Debate

Monday night, in the closing moments of Game 4 of the NBA Western Conference semifinals, San Antonio Spurs reserve forward Robert Horry committed a hard foul on Phoenix Suns point guard (and two-time league MVP) Steve Nash. Various players confronted one another angrily, but no punches were thrown. Horry was ejected, Suns guard Raja Bell received a technical foul for his reaction to Horry's initial foul, and the Suns won the game. In the meantime, however, it was observed that two Suns players--first-team-NBA star Amare Stoudemire and reserve Boris Diaw--had temporarily wandered off the bench, in seeming violation of NBA Rule 12(VII)(c), which provides: "During an altercation, all players not participating in the game must remain in the immediate vicinity of their bench. Violators will be suspended, without pay, for a minimum of one game and fined up to $50,000." (Read all the rules here.) The NBA has not yet announced any formal action.

As a basketball fan AND a law professor, I've been enjoying how the familiar rules/standards debate has been playing out over the question of how the NBA should resolve this issue. (A similar debate involving the same rule erupted a number of years ago during a Knicks/Heat playoff series.) Suns fans and others point out how unfair it would be for the league to suspend one of the two best players on the Suns and a key reserve, even if Horry is also suspended, given that Horry was the instigator and that neither Stoudemire nor Diaw actually hurt or even tried to hurt anyone. Enforcing the letter of the rule, they say, would completely undermine its purpose, as it would reward violence by mediocre players directed at stars. (Footnote for Horry fans: Yes, he has made a career in recent years of hitting very big shots in crucial situations, but he is clearly less important to the Spurs than Stoudemire and Diaw are to the Suns.)

Meanwhile, Spurs fans and others have been providing the standard response: The main point of having rules as opposed to standards is to follow them regardless of whether their background justification obtains. A firm, no-discretion rule requiring a mandatory suspension for leaving the bench gives players a very strong incentive to stay put, and thus helps prevent incendiary circumstances from escalating out of control. Indeed, it could be argued that the rule did its work in this very case: Remembering the rule (albeit a tiny bit too late), Stoudemire and Diaw quickly returned to the bench, and other players from both teams remained on the bench. Thus, there was no fight.

So far, it looks like the Spurs fans win this debate, but the Suns are pretty good lawyers, and so they've come up with two inter-related counter-arguments. First, they argue that Stoudemire and Diaw did not violate the rule because there was no "altercation." The Horry/Nash/Bell incident was just a hard foul, a technical foul and an ejection. Nobody received a "fighting foul," and so Rule 12(VII)(c) did not come into play. Second, they note that if the Horry/Nash/Bell incident counts as an "altercation," then so should an incident earlier in the game, when Spurs center Francisco Elson accidentally landed on Spurs forward James Jones, as Elson swung down from the rim after dunking. Jones momentarily took offense, and in that moment Spurs superstar Tim Duncan stepped off the bench, followed by teammate Bruce Bowen, who brought him back. If the league suspends Stoudemire and Diaw, Suns fans say, it must also suspend Duncan and Bowen. And since that would be roughly a wash in terms of talent, some might conclude, the better decision by far would be to conclude that neither incident was an "altercation," and just let the teams play at full strength.

As a legal scholar I don't have a strong intuition about the right answer here, although as a basketball fan I'd like to see the teams play at full strength. (My main rooting interest in this series is for former Knick forward/center Kurt Thomas, who been doing a more-than-respectable job for the Suns in defending the almost-impossible-to-stop Duncan, while hitting his mid-range jumper at the other end of the court.) I would note how the Suns' response to the Spurs' a-rule-is-a-rule argument follows the familiar path of legal realism. Yes, the Suns say, the rule itself provides the league no discretion if there is an altercation, but the triggering term "altercation" is itself ambiguous. Henceforth, the Hart-Fuller Debate shall be known as the Horry-Nash (Non?)Altercation.

What About Giuliani's Stands on Other Issues?

One of the juicy political stories last week was Rudolph Giuliani's decision to come out in favor of abortion rights, challenging the prevailing notion that one cannot win the Republican nomination without echoing the social agenda of the religious wing of the party. See, for example, this article. In the days leading up to Giuliani's decision, another article quoted a conservative writer as follows: "One of the big ironies for him is he doesn’t care about abortion." That is easy to believe, given how much flip-flopping and pandering Giuliani has done on abortion and other social issues (including his bizarre engagement with the Confederate flag as an issue).

What does he care about -- or, more accurately, what is he hoping Republican voters will care about enough to vote for him? In a recent interview in Business Week, Giuliani said that he could win over Christian conservatives on two big issues: "I think I'll do well with conservative voters because they will see that I'm one of the most fiscally conservative candidates in the race. I'm the one who has just about the strongest record on tax cuts. And I think they will be in pretty close to total agreement with me on how to handle homeland security and deal with terrorism."

It's actually quite interesting that he did not mention terrorism first, since he is basically running on the basis of having stepped forward on 9/11 when George W. Bush was nowhere to be found. (Of course, it's not at all obvious why handling the aftermath of an attack proves that someone would be good at dealing with terrorism. More broadly, his opponents might well want to figure out a savvy way to make the substance of the following announcement: "When I am president, if I am ever AWOL reading 'The Pet Goat' during a crisis, Rudy Giuliani will be authorized to stand in for me at the scene. Otherwise, I'll be the president." What other reason would anyone have to want him as president?)

If Giuliani is really planning to run on fiscal policy and taxes, though, he has a lot of work to do. Consider this gem: "I don't think the government has had that kind of fiscal discipline, at least in my memory, since the Reagan Administration." It is hard to know what to make of that statement, given that Reagan-era deficits were the largest as a percentage of GDP since WWII. (I often argue that deficits are not the root of all evil, but here I'm simply using the typical political standard for measuring "fiscal discipline.") The best that one can say is that Giuliani has decided to invoke Reagan as often as possible, no matter the subject.

What about his specific views on taxes? He now uses Steve Forbes as an advisor, so is he for a flat tax? "I support simplifying the tax code. ... These days it would be unrealistic to go all the way to a flat tax. But you can use it as a guide to figure out how you're going to simplify taxes." It's a good thing he has over a year to fill in the blanks. He mostly says that he is against raising taxes and in favor of decreasing taxes, which hardly distinguishes him from anyone.

Finally, on the estate tax: "And the death tax is just a great example of what's wrong with Washington. The death tax is going down to 45% in 2009. In 2010, it's going to zero. Then in 2011 it goes back to 55%. That is ludicrous. Only Washington could create a tax incentive for death. We've got to either eliminate the death tax—it's a double tax, anyway—or reduce it to something sensible." Although he memorized the numbers correctly, just about everything in that statement is absurd or a distortion. Economists such as Paul Krugman have joked about the phase-out (referring to the 2010/2011 oddity as the "Throw Momma From the Train Act"), but that has nothing to do with estate taxes per se. The phaseout was a result of the Bushies' decision to hide the true cost of the 2001 tax bill by sunsetting its provisions, hoping that later Congresses would do the dirty work of paying for outright repeal. (And by the way, there is no "death tax," and the estate tax is not a double tax.)

None of these inanities sets Giuliani apart from his competitors -- in good or bad ways. They're all invoking Reagan. They're all against taxes and in favor of budget cuts. If Giuliani thinks that he can divert attention from his stands on social issues by invoking terror and taxes, he had better hope that his views on terror really, really connect with voters. His statements about taxes are nothing to write home about.

Forever Stamps: Convenience or Scam?

Postal rate increases go into effect today, including a rise in the cost of mailing a first-class letter from 39 to 41 cents. But this time, there's a twist: the "Forever stamp," which will be sold for 41 cents so long as that is the rate, and then increase in price when the price of mailing a letter increases, except that Forever Stamps purchased at the old rate will still be valid for mailing a letter after the next increase. A good deal, right? Maybe, maybe not.

You might be tempted to buy Forever stamps as an investment vehicle, especially if you wait until the announcement of the NEXT rate increase. But as explained in this Washington Post story, that's not likely to generate an especially strong return.

Of course the Post Office isn't offering the Forever stamp as an investment vehicle. Its value is convenience and possibly some small cost savings. If you buy Forever Stamps now and through the next postal rate increase, you won't have to buy and affix a batch of 2 or 3 cent stamps when the rate next increases (to 43 or 44 cents, respectively, in these examples). Avoiding these small nuisances is certainly worth something. In addition, if you're the sort of person who forgets to buy the small-value stamps, or finds that the post office is out of them when you seek them, you could save money with Forever stamps. Instead of a pile of old lesser-value stamps for which you paid but never used, you just keep buying and using Forever stamps.

So what's the catch? The problem is that some significant portion of the population will start buying stamps in larger batches, no longer worried that the stamps will become insufficient to mail a letter before they have a chance to use them. And bulk purchases of stamps are an interest-free loan to the Post Office. The Post Office gets the money for the stamps (which cost very little to produce) long before it has to perform the service of delivering letters in exchange. Likewise, instead of keeping $41 (say) in the bank for an extra six months (or whatever) until the postal customer needs more stamps, buying a hundred extra Forever stamps on the theory that they last forever deprives the customer of the time value of that $41 (or whatever) for six months (or whatever). (Actually, ALL purchases of stamps are an interest-free loan to the Post Office, with the term varying depending on the time between purchase and use of stamps. My point is that Forever stamps will tempt people to keep the loan open longer.)

To be sure, consumers often make this sort of decision when they buy other sorts of goods in bulk. Stocking up at Costco on a twelve-pack of pickle barrels saves the customer the cost of making daily or weekly trips to the local grocery store for a daily or weekly supply of pickles. However, in the pickle case, the customer receives a volume discount for the purchase of large quantities of pickles that more than compensates for the lost time value of money (unless the customer ends up not eating most of the pickles or, as in my case, lives in a Manhattan apartment where space for pickle storage is at a premium). Not so with the Forever stamps, which cost the same amount whether you buy one or one thousand of them. (At the same time, even notoriously small Manhattan apartments probably have enough space so that a few dozen extra stamps aren't noticed.)

That's not to say that Forever stamps are a bad deal for everyone. As I said, the foregone time value of the money spent to buy lots of Forever stamps may be less than the savings from the combination of 1) avoiding the drawer full of outdated stamps and/or 2) avoiding the nuisance of buying and small-denomination stamps---what we might call the money value of time. So, for some people, Forever stamps are a good deal. Indeed, for just about everybody, Forever stamps are a good or no worse than neutral deal, so long as they don't alter their behavior to buy too many stamps too far in advance.

The real issue, then is awareness. So long as people understand the downside of stocking up on stamps (or pickles or anything else for that matter), they can make a rational choice about how many Forever stamps to purchase.

Yankees Follow-up: Private Threats to Constitutional Values

As I noted in my post Friday, the fact that the Yankees are not the state---and thus not bound by the Constitution---does not justify their taking action which, if undertaken by a state actor, would be a constitutional violation. Indeed, as I argued a few weeks ago in a FindLaw column about Don Imus, private acts can threaten the values underlying constitutional guarantees. And that's true even when the underlying action would not amount to a constitutional violation if there were state action.

Take the Yankees example and let's assume arguendo that the Yankees were owned and operated by NYC. (Goodbye George Steinbrenner, hello Mike Bloomberg). It's pretty clear that the Yankees would still be entitled to demand respectful silence during the playing of the national anthem and God Bless America. Notwithstanding the reference to God in the latter, the singing of the song would not violate the Establishment Clause because it would amount to mere "ceremonial deism" rather than an actual prayer. Moreover, unlike contexts such as a high school graduation or even a high school football game, attendance at a Yankees game is on a purely voluntary basis, and once there, fans are not required (either literally or by peer pressure) to participate. (Contrast the Supreme Court's decisions in Lee v. Weisman and Santa Fe Indep. School Dist. v. Doe, finding graduation and high school football prayers unconstitutional). The argument that the Yankees practice violates the First Amendment would have to claim that it amounts to coerced speech of the sort found invalid by the Supreme Court in the 1943 flag salute case (West Va Bd. of Ed. v Barnette). But the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen. If subject to First Amendment scrutiny, the Yankees policy would almost certainly survive as a reasonable time, place or manner restriction.

But again, that's not to say that the policy is a good idea, whether or not it's subject to First Amendment scrutiny. Sporting events tend to elicit a kind of militaristic patriotism, even without official encouragement from the powers that be. Perhaps I'm reading too much into the atmospherics of the game, but when I hear Yankee public address announcer Bob Sheppard ask for the crowd to stand in honor of those who are fighting and those who have fallen to defend "our freedom" and "our way of life," I can't help thinking that the message conveyed is not merely that the members of our armed services signed up for and have made enormous sacrifices because they believed they would thereby be defending American ideals, but that these sacrifices actually have achieved something in the direction of these goals. Someone who thinks, as I do, that the colossal policy mistakes of the civilian leadership have in fact harmed these causes, is meant to feel marginalized. George Steinbrenner is legally and even morally entitled to think whatever he wants about the Iraq war and the best way to support our troops. He also has the legal right to leverage his ownership of the Yankees to make thousands of fans who hold very different views about what patriotism entails listen to his viewpoint. However, in these circumstances, no plausible account of the value of free speech counts that legal right as anything other than a cost of protecting the expression of private views. A more humble team owner would understand that fans come to the game united (mostly) in their support of the Yankees but divided about how best to support the troops. Treating us as a captive audience disserves the values of free thought and viewpoint diversity that underwrite the First Amendment.

Meanwhile and not entirely unrelatedly, as Anil more or less warned in the post immediately preceding this one (and thus right below) it now appears that pro-government forces in Karachi, Pakistan have used the visit of Chief Justice Chaudhry as an opportunity/excuse for violence, which will in turn be blamed on the very people protesting the authoritarian tactics that will now be argued are justified to stop the violence. I say not entirely unrelatedly because General Musharraf has used the with-us-or-against-us approach to global terrorism of the Bush Administration as a means of prolonging his own rule and resisting any pressure the U.S. might try applying for him to reform (or step down). It's true that things could go worse for us in Pakistan; a nuclear-armed fundamentalist Islamist regime is the standard nightmare scenario. And the experience in Iraq should be sobering about what happens when you topple a secular dictator in the hope of fostering democracy. Still, the fact that it would be insane to invade Pakistan doesn't mean we have to be happy about Musharraf's contempt for democracy and the rule of law.

The Looming Clouds of Emergency?

UPDATE: An updated discussion of the issues in this post may be found in my column for AsiaMedia on May 18, 2007.

**

It's been an eventful week in Pakistan. A recap for folks who get most of their news from American media outlets may have missed it:

• In a speech on Saturday, President Pervez Musharraf once again accused "non-functional" Chief Justice Iftikhar Chaudhry's supporters in the Pakistani legal community of "trying to give political colour to a judicial issue." He warned "that they would not succeed in their designs," and again defended his decision to suspend Chaudhry. [link]


• In response, tens of thousands of Chaudhry's supporters and Musharraf's opponents rallied in support of Chaudhry's motorcade on Saturday and Sunday as it proceeded through towns along the Grand Trunk Road from Islamabad to Lahore — a four-hour trip that took Chaudhry's motorcade approximately twenty-six. "Nations and states which are based on dictatorship instead of the supremacy of the constitution, the rule of law and protection of basic rights get destroyed," Chaudhry warned in a speech to lawyers in Lahore. The government apparently blacked out news coverage of the demonstrations and arrested many activists in advance of Chaudhry's yatra. [one, two, three]
  


• In response to the demonstrations, Musharraf's Prime Minister Shaukat Aziz, a former Citibank executive in New York, warned that the government reserved the option under the Pakistan Constitution to declare a state of emergency. He also warned the media to "use its press freedom with responsibility" and "avoid inappropriate reporting." [link]


• On Wednesday, the Supreme Court of Pakistan "strictly prohibited" any "discussions, comments or write ups which may interfere with the legal process, or ridicule, scandalize or malign the Court or any of its Judges/Members of the Supreme Judicial Council or touching the merits of cases pending both before the Supreme Judicial Council/Supreme Court" and warned that violators would be punished for contempt of court. [link] Meanwhile, that same day in Karachi, government officials sealed the law office of Munir Malik, President of the Pakistan Supreme Court Bar Association and one of the lawyers defending Chaudhry. Within hours, the Sindh High Court ordered Malik's office unsealed, and early on Thursday morning, shots were fired into Malik's home by unidentified gunmen. [link]

Leaving to one side the merits of the charges against Chaudhry, about which I have nothing to say, Musharraf's repeated attempts to draw a line between politics and law in this case — and at that, to do so in the course of his own political speeches and press conferences — seem a bit naive at best. Indeed, the highly politicized manner in which Musharraf and Aziz initially handled the referral of the case back in March, as summarized in a preliminary report released on Tuesday by the International Bar Association, seems to have intertwined the case with politics from the start. And clearly, the case has touched a nerve implicating issues bigger than anything to do with Chaudhry himself. Given the Supreme Court's gag order, the cabinet has now asked Musharraf and other government officials to stop talking about the case. [link]

Aziz's talk of emergency seems more ominous, evoking not only earlier moments in Pakistani history but also the notorious Emergency declared in India during the 1970s. Facing growing political opposition and an unfavorable judicial decision that would have tossed her from office, Indira Gandhi instead tossed Indian democracy itself to one side, manipulating constitutional provisions authorizing the declaration of emergency to suspend fundamental rights, censor news coverage, detain tens of thousands of political opponents and others, and effectively rule by decree. Pakistan seems to be facing a similar moment. With elections required by the end of this year, Musharraf has been maneuvering for a way to remain President while retaining his post as Chief of Army Staff, which would appear to violate the Pakistan Constitution. (Indeed, Musharraf has already violated his own promise to give up either his post as Army Chief or his civilian post as President by December 2004.) A state of emergency could provide a convenient pretext for Musharraf to postpone elections and prolong his hold on power. At the same time, given the depth of political opposition that the Chaudhry affair has exposed, one has to cringe at the thought of what it might take for the Pakistan Army to meaningfully enforce any declaration of emergency.

So far, there seems little basis for even a pretextual declaration of emergency. But the Chaudhry Yatra proceeds this weekend to Karachi, where Chaudhry is scheduled to address the Sindh High Court Bar Association. Chadhury's supporters have scheduled an anti-Musharraf demonstration, and in response the pro-Musharraf MQM has scheduled a counterdemonstration to take place at the same time nearby, which Musharraf opponents allege has been planned in a deliberate attempt to stir up violence. (Musharraf also has scheduled a political rally of his own to take place at the same time in Islamabad.) Karachi is understandably on edge in advance of the competing demonstrations, for which the government is planning to deploy 15,000 police.

Will the unfolding events provide Musharraf with a convenient excuse to declare an emergency? And what are U.S. diplomats saying to Pakistani officials behind closed doors? In the words of the Faiz Ahmed Faiz ghazal that has been much quoted in connection with this week's events, "hum dekhenge."

Dorf on Baseball (and state action and non-mutual offensive issue preclusion)

A story in the sports section of yesterday's NY Times quoted yours truly as stating that the New York Yankees, as a private organization, act lawfully when they use chains to block the main aisles in the lower portion of the stadium to produce a proper sense of decorum during the playing of the national anthem and (during the seventh inning stretch) God Bless America. The only plausible legal impediment to this tactic would be the First Amendment, which only bars the government. (I didn't say this was a good idea, mind you, just that it wasn't illegal.)

A couple of readers of the story emailed to ask me whether there might not be state action either because Yankee Stadium is publicly owned (and leased to the Yankees). My buddy from summer softball games Marc Edelman (aka "Sports Judge") called my attention to the 1978 ruling in Ludtke v. Kuhn, 461 F. Supp. 86 (SDNY), in which Judge Mottley ruled that the Yankees ARE a state actor, relying on the Supreme Court's 1961 opinion in Burton v. Wilmington Parking Authority. In Burton, the Supreme Court held that a privately run coffee shop's acts of race discrimination were attributable to the state where the coffee shop was located within a publicly owned and operated facility, and where the public entity had in effect jointly participated in running the coffee shop.

Regardless of whether Judge Mottley interpreted Burton rightly or wrongly in concluding that the Yankees were a state actor in 1978, Burton has been so effectively gutted by subsequent Supreme Court cases like American Manufacturers Mutual Insurance Co. v. Sullivan, that the "intertwining" theory of Burton cannot be successfully invoked anymore. Moreover, the decision of a single district judge sets no precedent anyway, so that the Ludtke decision was never binding precedent.

Nonetheless, Ludtke could in theory be binding as a matter of issue preclusion (or collateral estoppel for you oldtimers). The Yankees were a party to Ludtke, and thus could, in principle, be estopped from relitigating their status as a state actor in a suit against them by a current fan claiming a First Amendment violation. However, such a case would be an instance of non-mutual offensive issue preclusion, and while that is permitted under the Supreme Court's ruling in Parklane Hosiery Co. v. Shore, it is a doctrine of discretion: It would be a very unwise (indeed abusive) use of a trial court's discretion to estop the Yankees from relitigating a three-decade-old determination that they are a state actor, where the governing law has changed and today's plaintiff is a stranger to the original litigation.

Okay, now that I've taken all of the fun out of baseball, I'll go back to grading federal courts exams so my students can get their degrees on time.

Genetic Testing and Abortion

On the front page of Wednesday's New York Times appeared an article about some potential consequences of the wider availability of low-risk Down Syndrome (DS) screening for pregnant women. Such screening can routinely be made available to women who fall outside of the "over 35" age group whose chances of carrying a DS child are much higher than they are for younger women. The reason that pregnant women under 35 have not ordinarily been screened in the past is that amniocentesis was, for a long time, the only method of testing for the mutation that causes DS, and an amniocentesis carries a risk of miscarriage that -- for younger women whose odds of giving birth to a DS child are exceedingly small -- outweighed the benefits of testing.

Now, however, reasonably accurate screening is possible early in pregnancy by means of two blood tests and an ultrasound examination, each of which is a relatively ordinary and low-risk event for pregnant women in the U.S., regardless of whether or not they are screening for genetic disorders. We know that approximately 90% of the women who learn that they are carrying a DS baby choose to terminate their pregnancies. This suggests that if nearly every pregnant woman screened for DS, the population of individuals with Down Syndrome could fall precipitously.

Many parents of children who have Down Syndrome are quite alarmed at this possibility and say that they do not want their children to live in a world where there are almost no more people like them coming into existence. Such an absence could mean that legislatures would no longer take the interests of people with DS into account. When a condition is rare, the constituency for accommodating those who suffer from it is accordingly small and relatively powerless. To help pregnant women and their families reach different decisions, such parents are therefore opening their homes to people who have received a prenatal diagnosis of DS and showing them that life with a DS child can be a rich and meaningful experience.

I have a few reactions to this story, which -- in the online version -- includes moving testimonials by families with a DS child and footage of such children and the blessings and joy they bring to those around them. My first reaction is empathy. I empathize completely with a parent's desire to have people out there in the world who will fight for the interests of her children and who will form a community into which her children will feel at home and valued. I also respect the fact that parents of children with DS are not all attempting to prohibit abortion but are instead reaching out to pregnant women and genetic counselors in an effort to inform the choices being made.

I do have a competing reaction, however, that is less charitable and empathic than the first. That reaction is to say that a DS child's parents' wish that more DS children be born is a a bit like a parent's wish that other children be sick like her child is. In other words, a parent whose child suffers from heart disease might hope that more children are born with heart disease so that resources are allocated to addressing the needs of sufferers. In a world of scarce medical resources, such a wish is understandable, but it is not one that we would necessarily want to encourage or support. Wouldn't it be better if very few children were born with heart disease?

The matter of genetic screening is, of course, somewhat different from the facts in this example, because a pregnant woman has a specific fetus inside her womb, and that fetus will either live or die. To say that it would be better for her to have a child who does not have DS, then, is not only to recommend preventing a condition but to recommend preventing a particular person from being born. It is, to use a loaded term, a kind of personal "eugenics." And eugenics raises distinct ethical problems, however one views the morality of abortion.

To take the abortion issue out of the equation altogether, consider the following thought experiment. Imagine that scientists develop (as they some day might) a gene therapy that makes it possible to "cure" a baby of Down Syndrome in utero, perhaps by "turning off" the extra chromosome so that it has no effect on the growing human being. If and when such a day comes, I suspect that virtually every pregnant woman who receives a prenatal diagnosis for DS will want to utilize the treatment, even though it will fundamentally alter the "person" who would have emerged into the world absent intervention. Would such tinkering be wrong? Perhaps. Would it represent a loss, to existing DS sufferers, to people who could have loved and enjoyed the company of people with DS and to the world? Absolutely. It is hard not to feel sorrow at this prospect if one has been lucky enough to know a person with DS. But as long as we consider Down Syndrome a disability, one that carries with it special medical needs and hardships and a significantly shorter life expectancy than most of the population enjoys, I am troubled by the aims of a movement whose objective is, explicitly, to increase (or at least prevent a decrease in) the frequency of this condition in the population.

Churches as Sanctuaries

The Times reports today that several religious congregations around the country are planning to offer sanctuary to illegal immigrants who face deportation. This is the second article in two days describing efforts by religious leaders to oppose some of the more draconian immigration policies advocated since 9/11. Yesterday, the Times reported that a coalition of evangelical Christians is asking Congress to approve a guest worker program for illegal immigrants. Although the coalition also supports increased border security, its endorsement of a guest worker program – along with the sanctuary initiative – is a welcome instance of religious leaders rejecting conservative ideology and exercising independent judgment.

Whether the sanctuary initiative will have any effect is another matter. The Times article states that “it was not immediately clear whether the government would send agents into churches that harbor immigrants or what legal standing they would have to do so.” But I think it’s perfectly clear that government agents can enter church property to apprehend illegal immigrants or any other suspected criminals. The Supreme Court has held that the free exercise clause only prohibits government action that singles out religious organizations for discriminatory treatment. So as long as the agents are simply following a general policy of arresting illegal immigrants, churches (as well as temples and mosques) would have no constitutional basis for keeping them out. Nor would they have a valid claim under the Religious Freedom Restoration Act. That act prohibits the federal government from burdening the free exercise of religion when doing so is not necessary to further a compelling governmental interest. But the government certainly has a compelling interest in arresting illegal immigrants. And if those immigrants are hiding in churches, it would seem necessary to enter church property to arrest them.

Interestingly, this is not the only recent example of churches being used as sanctuaries. Last year, Congress approved the Fugitive Safe Surrender program, which encourages fugitives to turn themselves in at local churches in exchange for favorable treatment, including the possibility of leniency. The goal of the program is worthy – to get fugitives off the streets by giving them a safe place to surrender. But as one of my students, Jeffrey Gruen, argues in his student note, it almost certainly violates the establishment clause. In the words of the legislation, the program “temporarily transforms a church into a courthouse,” complete with judges, prosecutors, and public defenders. It would be hard to find a better example of religion and government becoming excessively entangled.

Oops! FindLaw column correction coming soon

Thanks to Marty Lederman for pointing out to me that I had over-read the Bush Administration's federalism objection to the pending hate crimes bill in my column for FindLaw today. (Read Marty's own analysis here.) I don't think my misreading of the OMB statement changes my ultimate analysis, but for completeness, I've asked the powers that be at FindLaw to post a corrected version. The corrected version makes a few small editorial changes regarding the Administration's objections, and then adds the following new section:

The Thirteenth Amendment Side Issue

There is, to be sure, one way in which the pending bill does raise a genuine issue of constitutional federalism. One provision of the bill would impose criminal liability for hate crimes on the basis of race, color, religion, or national origin (but not gender, sexual orientation, gender identity, or disability) even without the establishment of a link to interstate commerce, and even without state involvement in the crime. The OMB statement singles out this provision as raising constitutional doubts.

What is the authority for this provision? According to the legislative history, Congress can penalize private violence motivated by racial and similar animus under its power to enforce the Thirteenth Amendment—which bans slavery and, under the Court’s precedents, the “badges and incidents” of slavery.

That’s a fair reading of the Supreme Court’s cases interpreting the scope of Congress’s enforcement power, but the relevant cases pre-date the Rehnquist Court’s decisions narrowing the scope of Congressional power to enforce the Fourteenth Amendment, and so there is some doubt about their continuing vitality and scope.

Nonetheless, this is a side issue because, even if the contested provision is beyond the power of Congress under the Thirteenth Amendment, in the vast majority of cases, it will be easy to satisfy the jurisdictional element, and so the law will fall within the power of Congress under the Commerce Clause, as discussed above.

Hate Crimes and Symbolic Legislation

My FindLaw column for today is called The President's Disingenuous Arguments Against Expanding the Federal Hate Crime Law, and (as the title suggests) it argues that the objections offered by the Bush Administration to pending legislation that would expand the federal hate crime law to cover, inter alia, crimes motivated by bias on the basis of sexual orientation, are disingenuous: The objections, if taken seriously, would do away with all hate crime legislation. I do indicate in the column that there are nonetheless legitimate reasons to oppose all hate crime laws, although I don't ultimately evaluate the strength of those reasons.

Here I want to raise a related issue that I don't address in the column. The following objection to hate crime laws is sometimes made: These laws are purely symbolic because the underlying crimes---which can be offenses like murder or aggravated assault---already carry severe penalties, including life imprisonment or even death. Adding an extra couple of years for a forbidden motive of hate has no practical impact. To this objection, one then hears the following response: Even if that's true, so what? Expressing the community's added moral outrage over hate-motivated murder or aggravated assault is itself a valid basis for legislation. Symbols matter.

What can we say about this argument? Notice first that it's not clear which way the argument that these laws are "only symbolic" cuts. If that's true, as the objectors state, then what's the harm in enacting a hate crime law?

But notice also that symbolic legislation can be dangerous. In my first post on Gonzales v. Carhart, I quoted Judge Posner's objection to a state partial-birth abortion ban: "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue." Of course, in the partial-birth abortion cases, the plaintiffs argue that the bans are not "merely" symbolic; on the contrary, they complain that these bans have real costs in terms of women's health.

Yet I'd be willing to object to some laws that are "merely" symbolic---in particular, to state laws that grant same-sex couples in state-sanctioned civil unions all the formal rights of marriage but withhold the term "marriage" from them. Such purely symbolic harm can have no purpose other than to treat persons in same-sex couples as second-class citizens, even if they do not withhold any tangible benefits. That strikes me as an illegitimate state purpose, even if no additional concrete harm befalls same-sex couples as a result.

To be sure, it's possible, even easy, to distinguish civil-union-only laws from hate-crime laws: Designating same-sex couples second class-citizens is an impermissible message for a legislature to express through its laws; by contrast, treating one category of despicable crime---those motivated by hatred on the basis of any of a list of characteristics of the victim---as worse than the other despicable crimes within that category, is a permissible message to convey through legislation.

Accordingly, to defend hate-crime legislation on the ground that symbols matter need not send courts sliding down the slippery slope to upholding partial-birth abortion bans and civil-unions-only-for-same-sex-couples laws. Nonetheless, even if symbolism is sometimes a legitimate basis for legislation, too frequent reliance on symbolism risks opening the door---if only as a matter of politics---to symbolic legislation of the more dangerous sort.

Wisdom, Judicial and Otherwise

The New York Times Magazine this weekend, in an unfortunate flurry of Boomer-related articles on aging, has a quite interesting piece on the scientific study of wisdom. Although the piece notes that one of the difficulties of this area of study is the definition of wisdom itself, it offers this start:

Certain qualities associated with wisdom recur in the academic literature: a clear-eyed view of human nature and the human predicament; emotional resiliency
and the ability to cope in the face of adversity; an openness to other possibilities; forgiveness; humility; and a knack for learning from lifetime experiences. And yet as psychologists have noted, there is a yin-yang to the idea that makes it difficult to pin down. Wisdom is founded upon knowledge, but part of the physics of wisdom is shaped by uncertainty. Action is important, but so is judicious inaction. Emotion is central to wisdom, yet detachment is essential.

The article goes on to note that, to the extent that wisdom is associated with age, it appears to "plateau" in middle and early old age, and to decline around the age of 75, perhaps in tandem with cognitive decline.

This research looks like a "law and" article in waiting. (For those running pre-emption checks, consider this my effort to stake a claim for priority with respect to any future work on the subject.) Among the questions one might ask: Are the qualities of wisdom identified by the researchers profiled in the article also relevant aspects of judicial wisdom? If forgiveness, humility, and emotion are central aspects of wisdom, does that suggest that a wise judge who possesses these qualities should eschew a more mechanical, formalist approach to legal reasoning -- or is wisdom so rare a quality that formal reasoning is, a la Vermeule, still the best "second-best" approach to judging? Do these qualities make more sense at the trial level than the appellate level, or are they desirable qualities in both cases? And do the researchers' findings on the imperfect and ultimately diminishing correlation between wisdom and age suggest anything about the proper age at which federal judges should be appointed to the bench, notwithstanding the evident desire of Presidents to appoint judges at ever younger ages -- and the ongoing debate about the desirability of eliminating judges' lifetime tenure and instead fixing a retirement age for judges?

Finally, a bonus feature: The online version of the article links to a questionnaire used to assess how wise people are. Test yourself! How wise are you? I will wisely refrain from reporting my own score.

Super-Duper-Nova: Is it Cool or the Worst Thing Ever?

Two astronomy post-docs at Berkeley announced yesterday that they had discovered the brightest supernova ever, a supernova of the sort that may have been common in the early universe, and would have played an important role in generating and dispersing the heavier-than-hydrogen-and-helium elements necessary for the formation of planets and evolution of life, but that is quite rare in the more recent past. The super-duper-nova (as I'll call it) occurred in a galaxy about 240 million light-years away, which means that it occurred about 240 million years ago (because that's how long it took for the radiation from the super-duper-nova to get here).

The news coverage of this story has had a "gee whiz" feel to it, which is largely appropriate, I suppose. This is, after all, a very important discovery.

Still, it's possible that the super-duper-nova destroyed all life on one or more planets in its vicinity. If so, should that not be sobering? When we learn about the extinction of Earth's dinosaurs 65 million years ago, we can't feel that much regret, partly because, had the dinosaurs survived, they would have likely continued to occupy the niches that our early mammalian ancestors came to occupy. No dinosaur extinction; no us.

But that's not true with the inhabitants, if any, of the planets, if any, incinerated by the super-duper-nova 240 million years ago. Because of the great distance in space and time, nothing that occurred there and then could have had any effect whatsoever on Earth until now, and the current effect is utterly harmless. Suppose we learned that the super-duper-nova in fact did wipe out life on a nearby planet (never mind how we might learn this, or if you care, look here or rent the film Contact.) Should we not be utterly horrified by this news?

Intellectually, I'd say yes, and yet I'm having difficulty actually feeling anything for the wiped-out inhabitants of the hypothesized planet. Maybe that just reflects my own moral failings, but I suspect that my (lack of) feeling would be widely shared by most people who gave the question any thought. If so, it's interesting to speculate as to why I/we can't feel much for the victims of this ancient and distant tragedy. The answer, I think, is that a time scale of hundreds of millions of years feels unreal. It's just so hard to wrap our little minds around the notion that 240 million years ago on Planet XYZ, billions of highly intelligent and emotionally sensitive bug people were incinerated. Even to state the issue sounds ridiculous.

And that brings me to my legal point, sort of. (Dorf on Law, I know.) The preposterously large stage on, and long time-scale in, which our universe unfolds gives it an unreal feeling, even to rational, scientifically oriented secularists like myself. The wonder, in light of this phenomenon and how religious most Americans are, is that only 3 out of the 10 Republican Presidential candidates at last week's debate said they don't believe in evolution.

Scholarship and the Second Amendment in the Courts

Yesterday's front page of the NY Times included a story by Adam Liptak arguing that the conversion to the individual right view of the Second Amendment by liberal constitutional scholars over the last two decades played a role in the movement of the courts towards that view. The principal exhibits for this proposition are Sandy Levinson, Akhil Amar, and Larry Tribe. Although I'm more or less on the other side of this issue, I won't use this post to object to the substance of their respective arguments. Instead, I want to question the causal claim Liptak makes.

In a Times article on March 19 of this year (no longer available for free on the web, but you can read my brief discussion of it here), Liptak reported on an academic conference on legal scholarship featuring academics and judges. The takeaway point of the conference (and the Times article) was that judges have little use for law review articles. So what gives? Are judges indifferent to legal scholarship, as Liptak reported in March, or is legal scholarship a moving force behind the judicial sea change we may be observing with respect to the Second Amendment?

In fairness to Liptak, it's possible that the influence of legal scholarship on courts is declining overall but that in the area of the Second Amendment scholarship plays an important role. Possible, but doubtful, I think. To be sure, there are areas of the law in which a new academic paradigm clearly drives doctrinal change. The shift to an efficiency rationale in antitrust law is the clearest case. But such examples are rare. More commonly, I think, academic scholarship, even when cited by courts, plays a non-causal role: At least in hard cases, judges decide the case first and then look for support for their conclusions, taking it in academic work if they can.

Even when a court cites legal scholarship in a less opportunisitc fashion, it may be a mistake to attribute specific decisions to the influence of scholarship as such. Sometimes social attitudes or material conditions change and this change then gets reflected in both academic writing and judicial decisions. A nice example of this phenomenon, I think, is the shift between Bowers v. Hardwick in 1986---denying recognition to a constitutional right to same-sex sodomy---and the Supreme Court's decision in Lawrence v. Texas in 2003---overruling Hardwick. The Lawrence opinion cites a number of books and articles in support of its conclusion, but one need not be a cynic to see that the real change was in social attitudes, including the attitudes of the Justices. My point is not that intellectual movements in and about the law have no impact, nor am I a crude Marxian. My point is simply that in general, social movements and social and economic conditions play a larger role in shaping the law and academic trends than vice versa.

An interesting question for me would be why the political/legal movement for an individual right view of the Second Amendment has gained as much traction as it has. For my explanation why, despite that traction, this movement probably won't succeed in the Supreme Court (at least absent one or two more Republican appointments), see my article, Identity Politics and the Second Amendment, 73 Fordham Law Review 549 (2004) (sorry, no web version available).

[Full disclosure: I spoke with Mr. Liptak last week and expressed skepticism (along the lines described above) about his causal claim. I guess I didn't say anything quote-worthy.]

Gonzales v. Carhart and Vasectomies

A friend posed the following question to me: Under the Supreme Court's recent ruling in Gonzales v. Carhart, could a law banning vasectomies be upheld on the ground that a vasectomy is never necessary? Great question, friend. Were I teaching constitutional law this semester, I'd pose it on my exam for my students. But because I'm teaching federal courts instead, I'll take a crack at it here.

Before Gonzales v. Carhart, I would have said something like this: A law banning vasectomies pretty clearly infringes the Griswold right to decide whether to procreate. It's true, of course, that there are other ways men can have sex with fertile women without incurring a large risk of fatherhood. They can use condoms or they can require their sexual partners to use some other form of birth control. But to borrow from another area of constitutional law in which the Court applies strict scrutiny, namely the First Amendment, the availability of alternatives does not render the particular prohibition valid, unless it itself satisfied strict scrutiny. And pretty clearly this law wouldn't. It's hard to come up with even a legitimate reason for the law, much less a compelling one. (More on this point below.)

Whether Gonzales v. Carhart changes this analysis is unclear but I think probably not. I wrote in a 1996 article in the Harvard Law Review that the PP v. Casey undue burden standard is best understood as an application of the strict scrutiny standard to the unusual context of abortion, rather than the repudiation of strict scrutiny. I think I was right at the time, but I no longer believe this is a tenable interpretation of Kennedy's view of the undue burden standard in Gonzales v. Carhart. For him, the standard seems to mandate the following inquiry: Has the state completely banned a category of pre-viability abortions? If not, then a regulation falling short of a ban will be upheld so long as it is reasonable, and at least in the context of a facial challenge where there is even arguably conflicting expert evidence, the Court will defer to legislative judgments that regulate abortion in the interest of expressing respect for the life of the unborn.

So why do I say that this doesn't affect the analysis of the vasectomy case? Although there is language in Gonzales v. Carhart that purports to apply general principles, the case is best understood, I think, as limited to a context in which strict scrutiny does not apply. This is clearest when we evaluate the Court's analysis of the government interest. Even though the Partial Birth Abortion Ban Act will not save a single fetal life, and even though it may put some number of women's health at risk, the Court finds that the government interests in maintaining the line between abortion and infanticide, in the integrity of the medical profession, and in protecting women against later regret (even absent evidence of such a phenomenon) suffice to take the Court to the second step of its analysis, whether the law imposes a substantial obstacle to abortion.

Accordingly, unless the Court meant to do away with strict scrutiny for previously recognized fundamental rights other than abortion, the anti-vasectomy law would have to be subject to strict scrutiny, which it would undoubtedly fail. I can't give this answer with 100% confidence, however, because there is some evidence that the Court is in the process of axing the general proposition that infringements on fundamental rights lead to strict scrutiny. Notably, Lawrence v. Texas (Justice Kennedy again!) strikes down the Texas anti-sodomy law without ever saying that same-sex sexual intimacy is, or is encompassed within, a fundamental right, and does not even purport to apply heightened scrutiny of any sort.

Thus, there is at least a non-frivolous argument that mere rational basis scrutiny applies to the anti-vasectomy law. Is there a rational basis for it? Sure. Perhaps it aims to increase the population. Or perhaps it's meant to slow the spread of STD's: men with vasectomies are less likely to use condoms than men without (or at least a rational legislature could so conclude). Under the traditionally toothless rational basis test, either interest suffices.

Nonetheless, I'd bet a lot of money against this outcome, because it's hard to see how Griswold survives if this argument works. It's true that the Connecticut law in Griswold banned all contraceptive drugs and devices, but nothing in the Court's analysis of the case seemed to turn on that fact. Had the state just banned condoms or the pill, it's hard to imagine a different outcome.

Maybe a harder case would be presented if the state offered a health justification for the ban. E.g., a ban on IUDs based on FDA studies showing that they lead to toxic shock would probably survive even if there was some dispute about the medical evidence on which the FDA relied. Likewise, conventional birth control pills might be banned on the ground that some studies show they lead to an increased risk of breast cancer. But in these cases, I have a hard time imagining the Court applying as deferential a test as it applied in Gonzales v. Carhart. At the very least, even if it would apply a deferential test, that would have to be because the government came in with a claim that the banned device or procedure itself posed health risks. It would not be enough to say, as the Court says in Gonzales v. Carhart, that the procedure can be banned because there are other safe methods. Likewise for vasectomies.

Q.E.D.

Obama's Sixty Percent Solution

I had the good fortune to attend a speech by the junior Senator from Illinois yesterday. (Okay, it was a fundraiser. I paid for the privilege, but it was still good fortune.) In response to a question about his red state appeal, Sen. Obama referred to a very positive profile by Lisa MacFarquhar in the current issue of the New Yorker. The article, which Obama himself acknowledged was quite insightful, suggests that he is by nature a conciliator because he values dialogue and compromise for their own sake. He took issue with this point. To paraphrase loosely, Obama said something like: Sure I think it's better if people get along than if they don't, but the main reason I want to broaden my appeal is because a strategy of appealing to 50%+1 of the voters wins you an election, but it doesn't enable you to do anything once in office. To govern effectively you need more like 60%. (To be clear, that's my rough recollection of the gist of what he said; not an actual quotation.)

The 60% figure is a reference to the votes necessary for cloture (i.e., to end a filibuster) in the Senate, but I don't think Obama meant the point in a strictly technical sense. After all, given the equal representation of each state in the Senate, you can win the support of more than 60% of the People and still not have 60% or even a majority of the seats in the Senate. I think that what Obama had in mind was something a little different.

Political scientists have noted how, in recent elections, the major parties have pursued a strategy of polarizing the electorate and then aiming to turn out the base, rather than what for years had been the standard strategy of trying to appeal to the median voter. The new strategy has, in turn, contributed to the appearance of a highly polarized electorate. Yet while there are regional differences of opinion on various policy issues, these tend to be small. (For a good account of how small, see Culture War? The Myth of a Polarized America, by Morris Fiorina, Samuel Abrams and Jeremy Pope.) Only by making these issues salient precisely along the axis of greatest disagreement do politicians pursuing a polarize-and-turn-out strategy create the appearance of a red state America and a blue state America. Obama offers the promise of a kind of politics in which the cultural divide (gun rack on red-state pickup versus save the whales sticker on blue-state volvo) is simply not relevant to the great issues of the day.

Whether anybody can accomplish the sort of political transformation/realignment that Obama seeks remains to be seen, but he pretty clearly is better suited for the job than either of the other top-tier Democratic candidates. Edwards, in talking about two Americas, is not trying to polarize, and certainly does not imagine that the divide between the two Americas is red/blue; it's rich/poor. But the very trope invites a kind of polarization. Meanwhile, Clinton's anti-base of about 40% unfavorables means that right off the bat she needs to hold the base to win election, and even though she has been a fairly centrist Senator and as much of a triangulator as the first President Clinton, she is, fairly or not, a polarizing figure. By contrast, Obama, from his first entry onto the national political stage, has been deriding the idea of a polarized America. In the wake of Howard Dean's controversial but successful midterm election strategy of trying to compete nationwide rather than securing the base and going after the most winnable swing states and districts, the Democratic party may be coming to realize the wisdom of a depolarizing strategy.

George Bush said he was "a uniter, not a divider," but Barack Obama means it. And that's the closest Dorf on Law will come to endorsing a Presidential candidate!

More on Race and the NBA

Yesterday, Mike summarized the findings of an academic article that found that white NBA referees call fouls more frequently on black players than on non-black players. (The finding works in reverse, but not nearly as strongly.) The NBA's defense against this academic paper, according to the Times article, is that they commissioned an analysis that uses a proprietary dataset which found no evidence of discrimination. The mere fact that that's what the NBA wanted their study to find doesn't automatically mean that the study was biased, but I'm skeptical.

The academic article was based on publicly available data, which limited them to counting fouls called in a game and matching that to the race of the refereeing crew. Thus, they correlated fouls called on black and non-black players by referee crews that are all-black, 2 blacks, one black, and no blacks. The evidence of race-based calls is, thus, indirect. It would be nice if unconflicted researchers could look at a data set that is based on individual refs and their calls. The NBA claims that they cannot release the data that they collect on each ref because of privacy concerns -- the refs could be personally identified from the data. This strikes me as nonsense. Researchers in tax policy, for example, can avail themselves of a process by which they are given access to data on taxpayers that are detailed enough to reveal the identity of the taxpayer (corporate or individual) so long as the researchers maintain taxpayer confidentiality in their use of the data and so long as the published results are sufficiently aggregated to conceal taxpayer identities.

Clearly, the NBA -- which has known about this paper for over a year -- could have done something like this on an ad hoc basis. Why wouldn't they? From the discussions on ESPN yesterday, my take is that everyone is simply afraid of the results. The concern, of course, is that the NBA does not want to be labeled a racist organization. Given that the racial composition of the referee corps is overwhelmingly white (68%), while the players are overwhelmingly black (83% of minutes were played by blacks), their concern is perhaps understandable. Players and league officials alike were quick to say that they've never even suspected racism among officials, which is good to know but explicitly not the authors' point.

One might ask why the NBA should not want to find out whether calls are race-based, if for no other reason than to reconsider their recruitment and hiring strategies for referees. According to the authors of the paper, after all, the differences in calls can amount to a two-game difference in won-lost record over the course of a season. Ask this year's LA Clippers if that difference matters. My guess is that the league's ignorance-is-bliss policy could simply be based on the belief that implicit bias is almost inherently impossible for them to correct, precisely because it is unconscious and automatic. If they cannot fix it, even in good faith, maybe they'd rather not have to admit that it exists.

The Visa "Loophole" and the Pakistani Penalty

According to the New York Times, U.S. officials are concerned about what the Times calls a "visa loophole": the ability to enter the United States as a short-term, temporary visitor without a visa. The headline does not make clear precisely what the supposed "loophole" is. If the Times means to refer to the Visa Waiver Program as a whole, which authorizes visa-free entry of visitors from 27 countries that extend the same privilege to U.S. citizens, then that must be one of the biggest "loopholes" in human history, since approximately 13-15 million people — representing roughly half of all nonimmigrant admissions — enter the United States under the program every year. So surely the Times' characterization rests on a more particularized, irregular, and unanticipated concern?

In recent months, the homeland security secretary, Michael Chertoff, has opened talks with the government here on how to curb the access of British citizens of Pakistani origin to the United States. . . . Among the options that have been put on the table [by U.S. officials], according to British officials, was the most onerous option to Britain, that of canceling the entire visa waiver program that allows all Britons entry to the United States without a visa. Another option, politically fraught as it is, would be to single out Britons of Pakistani origin, requiring them to make visa applications for the United States.

Oops. Maybe not all that particularized, since (according to the Times) approximately 800,000 UK citizens are of Pakistani descent. And not the least bit irregular, since the government has implemented the Visa Waiver Program pursuant to criteria established under a series of statutes dating from the mid-1980s. A wag of the finger to the Times, and a tip of the hat to Siddhartha Mitter — as he notes, to characterize as a "loophole" the ordinary application of U.S. immigration laws to UK citizens of Pakistani descent in precisely the same manner that they apply to any other UK citizen seems, "wittingly or not, an appeal to prejudice and an insult to intelligence." It's as much a "loophole" as my entitlement, as a U.S. citizen of South Asian descent, to get one of those kitschy new U.S. passports that Mike wrote about on Tuesday.

* * *

Let's leave to one side debate over the Visa Waiver Program in general, which provides significant economic and fiscal benefits to the United States but also has raised security concerns. What should we make of the specific proposal to discriminate against Pakistani UK citizens? Despite the Chief Justice's statement in a 2006 voting rights case that "it is a sordid business, this divvying of us up by race," the Supreme Court might well uphold an official policy discriminating against Pakistani, South Asian, or Muslim UK citizens. Just as it relied upon and reaffirmed the Civil Rights Cases when striking down the Violence Against Women Act, the Court could rely upon and reaffirm the cases from the same era upholding Chinese exclusion, which never have been overruled; while more recent Supreme Court cases require some limited constitutional scrutiny over substantive admissions criteria, they probably don't require strict scrutiny.

But it also doesn't strike me as a "slam dunk" case, given the proposal's rather questionable rationality. Indeed, the very fact that this discussion is taking place at all might be an illustration of Bernard Harcourt's suggestion (which he also makes in his recent book) that profiling in defensive counterterrorism measures might, counterproductively, lead to substitution in the form of either recruitment from non-profiled groups or use of methods that may be more immune to such profiling. The first generation of post-2001 profiling-based initiatives by the United States largely targeted natives and citizens of predominantly Muslim countries. The possible shift now to a second generation of profiling-based initiatives, this time instead targeting citizens (presumably including both naturalized and native-born) of largely non-Muslim countries in the West, might be a response to precisely the sort of substitution that Harcourt discusses. Why shouldn't we expect further substitution in response to this proposal as well? After all, UK citizens suspected of terrorism in recent years have not exclusively been Pakistani, but also have included individuals of Jamaican and East African descent. And there are 26 other countries in the Visa Waiver Program.

According to GAO, the biggest potential vulnerability in the Visa Waiver Program is the misuse of lost and stolen passports by individuals seeking to conceal their true identities or nationalities. Some visa waiver countries may not be monitoring and reporting lost or stolen passports as effectively as they should, and U.S. border officials may lack sufficient resources and capacity to detect the misuse of passports from visa waiver countries. But assuming these are the principal concerns here, it seems odd and misguided to respond by requiring Pakistani UK citizens alone to apply for visas. After all, holders of false, manipulated, or fraudulently-obtained British passports probably could manipulate their identities rather easily to indicate that they are of, say, Indian or Lebanese descent. Even if the profile were broadened to include all Muslim UK citizens, a determined would-be terrorist could similarly conceal their religious identity.

So a wag of the finger to Chertoff as well. Like most of the post-2001 initiatives that have adopted blanket, categorical rules that profile and discriminate against individuals perceived to be Muslim, this proposal strikes me as symbolic "security" on the cheap, a sign that perhaps the government does not understand all that well the phenomenon it seeks to prevent. In the short term, the proposal seems unlikely to provide more than a false sense of security and could visit real hardships upon many UK citizens of Pakistani descent, given how much red tape many Muslims face in the visa application process nowadays. (See here for a particularly cringeworthy story.) In the longer term, the proposal represents yet another discriminatory initiative with great potential to fuel the alienation and anger of Muslims throughout the world, by once again forcing them to endure the indignity of imputed responsibility for wrongdoing with which they have absolutely nothing to do.

Race Discrimination by Basketball Referees

As reported yesterday in the NY Times and elsewhere, a new study by Joseph Price and Justin Wolfers finds statistically significant "own-race preferences" in the calling of fouls by NBA referees. In other words, white referees call fewer fouls on white players than black referees do, and black referees call fewer fouls on black players than white referees do. (Because of the small number of Asian and Latino NBA players, they get coded as "white.") The study also finds that on average opposite-race referees result in poorer performance of players in every statistical category except free throw percentage, suggesting that the bias affects not just foul calls but other aspects of the game.

These results are arresting in part because they indicate that the form of racial bias at work here is simple affinity bias rather than stereotyping. NBA fans (of which I count myself one) are familiar with racial stereotypes from basketball's tv announcers: Black players are more likely to be described as "athletic," while white players are more likely to be described as getting by on "effort" or "basketball IQ." But if stereotyping were at work, one would not necessarily expect the race of the referee to matter. Indeed, one might think that the stereotype of white players as clever, hard-working oafs would lead to more foul calls: Regardless of the referee's race, he or she (yes there are some female refs) would likely be inclined to see the typical white player as committing clumsy fouls against the more-graceful typical black player. Yet the numbers don't bear that out.

Instead, the authors of the study find a simple matter of affinity. The white refs "like" white players more than they like black players, and vice-versa (though less markedly) for the black refs. These feelings appear to be quite deeply rooted and are almost certainly sub-conscious. The authors cite a 1988 study that found that referees call a larger number of fouls on teams wearing black jerseys! It's hard to imagine a professional referee saying to himself: "That looked like it may have been a foul. Yes, it must have been because the player's jersey is black."

What should we make of these findings? Here I'll give the last word to Price and Wolfers, who conclude as follows:

These results are striking given the level of racial equality achieved along other dimensions in the NBA and the high level of accountability and monitoring under which the referees operate. Thus, while the external validity of these results remains an open question, they are at least suggestive that implicit biases may play an important role in shaping our evaluation of others, particularly in split-second high-pressure decisions. That is, while these results may be of interest to those intrigued by the sporting context, we emphasize them instead as potentially suggestive of similar forces operating in a range of other contexts involving rapid subjective assessments.

As-Applied Challenges to the Partial-Birth Abortion Ban and McCain-Feingold

This afternoon I'll be giving a talk on Gonzales v. Carhart jointly sponsored by the Yale Law School Students for Choice and the Yale chapter of the American Constitution Society. In preparation for that talk, I re-read the decision and found myself puzzling over an issue that is undoubtedly not at the top of the list of concerns of most people interested in this case: Implications for as-applied and facial litigation. (This topic is a longstanding academic interest of mine.)

Justice Kennedy's majority opinion in the case rejects the facial challenge to the Partial Birth Abortion Ban Act's failure to include a health exception because, he says, the circumstances in which intact D&E is the safest medical procedure are sufficiently unusual, if they exist at all, that they do not constitute a "substantial fraction" of the cases to which the ban applies. Dissenting, Justice Ginsburg says that the majority uses the wrong denominator, but I want to set that issue aside and assume arguendo that Justice Kennedy is right about the fractions. Still, what is the point of rejecting a facial challenge in favor of an as-applied challenge?

The notion that a law can be valid on its face but invalid in particular circumstances is certainly familiar. Indeed, that's the argument of the respondents in a case argued last week, FEC v. Wisconsin Right to Life, and during the oral argument, the Justices who comprised the majority in Gonzales v. Carhart gave it a sympathetic hearing. But the question is whether there's any practical difference between, on the one hand, facial invalidation of a law followed by severance of the invalid portion (an option that the majority rejected in Gonzales v. Carhart) and, on the other hand, what Justice Kennedy says is available after the decision: a "pre-enforcement, as-applied challenge[]."

One possibility might be that in the as-applied posture, the law's challengers would have to wait for an actual pregnant woman seeking a medically necessary but banned pre-viability intact D&E. There's a hint in the majority opinion that this is what's required: The penultimate paragraph states that "no as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception." That could be read to suggest that the as-applied challenge on health grounds must await a health-but-not-life-threatening circumstance for a particular woman. But this would be virtually worthless given the slow pace of litigation and the potential urgency of the medical condition, and indeed, elsewhere the majority opinion indicates that the pre-enforcement as-applied challenge would point to "a particular condition" rather than any particular woman.

It will be interesting to see how long it takes for pro-choice groups to file new as-applied challenges. Although I haven't seen any news coverage of it, perhaps they already have.

New York State Of Mind

Last night while watching Keith Olbermann (in the interest of full disclosure), I saw a commercial for KFC. The point of the commercial was to tout the fact that their product now has no trans fat. This prompted an interesting discussion at my house (where, again in the interest of full disclosure, both of the adult family members write for this blog).

We speculated that, because KFC’s franchises in New York City had to comply with the city’s recently-implemented ban on trans fats in restaurants, a corporate decision was made that it would be easier just to change the formula across the board rather than to create a separate formula for New York City locations. Having done so, KFC now gets to boast to its customers nationwide that its products have improved in this respect. Since it seems that people in this country are indeed becoming increasingly concerned about such things (a concern that seems to flourish even as our body types are reportedly becoming increasingly endomorphic, but that’s a different topic), I would imagine that this change earns KFC some points that may translate into market share, at least in places where its competitors are not required to do the same thing. Certainly it looks like that’s what KFC is hoping.

This stands in contrast to what I understand goes on in the automobile market where, due to stricter emission standards in California (and perhaps a few other places), cars made for sale there are actually different from cars made for sale in other states. Auto makers apparently have so far found it more appealing to comply with multiple sets of standards, rather than to comply with the strictest one and tout their cars as more “green”. But, at least at the moment, it’s almost as trendy and desirable to be “green” as it is to be “fat-free”.

If KFC’s marketing campaign bears fruit, I wonder if it is translatable to other areas -- auto emissions is one that comes to mind; smoking restrictions is another; undoubtedly there are others. If so, seemingly unique or outlying regulations from left-leaning places like New York City or California could have a much greater impact on consumer goods and services than their geographic limits would suggest. And this impact will be caused by, of all things, the fact that maybe it turns out that market forces “like” these regulations after all. I have to say it makes me smile.

Live Free or Don't

As reported in the NY Times Week in Review on Sunday (p 5), the U.S. State Department has begun to issue new passports that contain an electronic security device and patriotic images on every page. (See an animated sample here.) Most of the critical discussion of the new design---including in the Times article---has focused on aesthetic considerations. Here I want to raise an issue of free speech.

One of the visa pages includes a background image of Mt. Rushmore and the following quotation from President Kennedy: “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.” Suppose that a pacifist disagrees with this sentiment and objects to the government conditioning his ability to travel abroad on his acting as an involuntary messenger for what he regards as jingoism. Following the example of George and Maxine Maynard, he places a thin piece of opaque tape over Kennedy’s words on his passport. The Maynards were prosecuted for deliberately obscuring the phrase “Live Free or Die” on their New Hampshire license plates, but the U.S. Supreme Court held in Wooley v. Maynard (1977) that in so doing they were protected by the First Amendment.

Would my hypothetical pacifist passport holder have a First Amendment defense to the federal crime of altering or mutilating his passport (assuming the statute would be construed as applying to this conduct)? The Court ruled for the Maynards even though no reasonable observer would think that the state’s motto on a license plate connoted agreement with the motto by the car’s driver. (In 1977, specialty plates with a variety of mottoes, were unavailable. For my account of an interesting free speech conundrum arising out of specialty plates, see my 2003 FindLaw column here.) Nonetheless, the Wooley Court reasoned that the speaker has an interest in refusing to mouth the state’s message, regardless of whether anybody would impute sincerity to the exercise.

Dissenting in Wooley, then-Justice Rehnquist argued that there was no compelled speech because the Maynards “could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto ‘Live Free or Die’ and that they violently disagree with the connotations of that motto.” Although that option didn’t satisfy the Court then, in last year’s Solomon Amendment case, Rumsfeld v. FAIR, a unanimous Supreme Court thought that the ready ability of law schools to distance themselves from the anti-gay message of military recruiters on campus (due to “Don’t Ask, Don’t Tell”) was a sufficient basis for concluding that the law schools were not, in virtue of the requirement that they inform students of the opportunity to interview with military recruiters, being made the involuntary bearers of the government’s ideological message. So the question for my hypothetical challenge to the new passports is whether a passport is more like a license plate or more like information about military recruiters and the money (presumably permissible despite containing such charged messages as “E Pluribus Unum” and “In God We Trust”). Test case, anyone?