Book Reading Tonight (for NYC readers)

Blogger Sherry Colb will be reading from, discussing, answering questions about, and signing copies of her book, When Sex Counts: Making Babies and Making Law, tonight, Tuesday, July 31st, at 7 P.M. BARNES AND NOBLE BOOKSTORE, at 2289 Broadway (at W. 82nd St.), Manhattan.

A Slight Cleavage on Cleavage

I found Sherry's post earlier today on the "cleavage" controversy interesting and thought-provoking, and was moved to write at length in response. Since that response is too long for either this blog or the comments section, I've posted it at my other blog, Prawfsblawg, here. In short, I agree in part and disagree in part with the drift of Sherry's post, and also like her, I think this debate is more important than the underlying subject. Let me sum up my views as follows:

1) I am in full agreement with Sherry's "consciousness-raising." I think she very usefully unearths and examines some important hidden assumptions in the story; I agree that cultural writers, like Givhan, who tread into the field ought to tread carefully; and I agree that readers, too, ought to read such stories carefully and self-consciously.

2) That does not mean stories about the cultural implications, semiotics, and so on, of politics and political candidates are unimaginable where they do not involve women. No male candidates for president that I can think of in recent years have worn beards or moustaches; I am sure one who did would attract attention, and such attention would not be illegitimate. That does not mean we should not watch for the kinds of loaded questions Sherry points out in the Clinton story, and especially for the application of uneven or double standards -- the ways in which a story about a beard would be different from a story about cleavage. But it does mean that it is not unreasonable per se to write a story about a candidate's beard (or cleavage), provided it is done well. It is perfectly natural for people (and newspapers) to care about politics as a cultural enterprise as well as a substantive one.

3) Relatedly, while newspapers and readers alike ought to care more about substance than about such cultural matters, that does not mean that anything that falls outside the scope of the substantive is "a trivial distraction from substance," or illegitimate for that reason. We read Plutarch or Suetonius not only because we're interested in ancient Roman history (there are more reliable guides, surely), but because many of us are also interested in culture, in character, and in the way that great figures serve as illustrations and embodiments of larger or smaller questions about human nature and culture. An interest in culture or character is not illegitimate, even in a newspaper, simply because it is not substantive. We may well care about how much time, space, and attention both newspapers and readers devote to such matters, and it is surely true that, in an ideal world, the substantive would predominate. But there ought to be room for both.

You're welcome to read the rest over at Prawfsblawg and comment in either place.

Epilepsy or Brain Tumor?

The initial reports that CJ Roberts was rushed to a hospital in Maine for a "fall" turn out, unsurprisingly, to be a half truth. He was rushed to a hospital because he had a seizure, causing him to fall and sustain a few minor injuries. This is his second such seizure. Experts interviewed for the Times' story narrowed the possibilities to two: late onset epilepsy (about 1% of the US population has the disorder) or a brain tumor. As one neurologist said, "[m]ost neurologists would start a patient like [Roberts] on one of a number of antiseizure drugs," because with such drugs the "seizures can be controlled." He did also point out, though, that "a very small number cannot be. People who have them are advised not to drive, to avoid heights and not to swim alone."

The Cleavage Controversy

In its Style Section Section, the Washington Post recently ran an article by Robin Givhan observing that Hillary Clinton had worn a cleavage-revealing top to the Senate chamber, where she spoke on the cost of higher education. Givhan stated that "[s]howing cleavage is a request to be engaged in a particular way," adding that "[t]o display cleavage in a setting that does not involve cocktails and hors d'oeuvres is a provocation." Numerous commentators have criticized the Post article as sexist and demeaning. Givhan defenders have countered that self-presentation is a crucial part of a candidate's message and, accordingly, fair game for reportage. Though seemingly irrelevant, the debate is, I think, an important one.

I understand Givhan's reportage as reflecting the valid observation that one's clothes say something about the message that one is attempting to convey. If, for example, Senator Clinton were to wear pajamas to a televised debate, one could fairly comment on her apparent failure to take the event seriously. For this reason, Givhan was right to report on Vice President Dick Cheney's decision to wear a parka, a knit ski-cap, and hiking boots to the ceremony at which world leaders had gathered in Poland to commemorate the 60th anniversary of the liberation of Auschwitz. While others wore dark overcoats, reflecting the solemnity of the occasion, the representative of the United States, as Givhan colorfully described it, "was dressed in the kind of attire one typically wears to operate a snow blower."

What distinguishes such examples from the "cleavage" case is, first, that the former represent major departures from customary behavior, while the latter -- even if a V-neck is relatively unusual -- really does not. Second, the former do not draw attention to the wearer's identity as a sexual being. This second point is important, because membership in a traditionally excluded group means that distinctiveness can be viewed as suspicious (or "provocative").

For a provocative example, consider beards. Just as as breasts are a "secondary sex characteristic" in women, a beard is a secondary sex characteristic in men, resulting from an interaction between sex hormones in the bloodstream and skin. Yet no one thinks of a man who grows a well-groomed beard as "immodest" or provocative. In a female-dominated world, one might imagine outrage at a man's willingness to "expose" his facial hair for public consumption. One might demand, in fact, that he "cover it up," particularly when in the presence of women.

I mean here to raise consciousness about our hidden assumptions, not to offer an actual policy or to insult readers who have beards (either as a fashion statement or because they find shaving uncomfortable). The reason we do not view beard-wearers as immodest or exhibitionistic is that beards represent one variant on the way that ordinary men appear. And ordinary men are the "norm" in public life. A beard will rarely if ever attract sexually charged critique in major newspapers (apart from, perhaps, an observation about whether the new look flatters the wearer or not). For a woman, however, any look is a gamble. As Senator Clinton knows, the wearing of bland pants suits can attract negative remarks because it seems to represent a masquerade of sorts -- a woman who dresses like a man even though she obviously is not a man. Is she afraid or ashamed of her femininity? If, on the other hand, she wears a v-neck, we hear that she has communicated a request to be viewed in a sexual way.

Almost by definition, the first woman president -- and the first frontrunning female candidate for president -- will be experimenting with fashion, no matter what she decides to wear. When the media highlights this experimentation, particularly in an obnoxious and nasty way, however, it forces women in politics to dedicate precious resources to what is ultimately a trivial distraction from substance.

BlawgWorld 07

If you want a good sample of the best law blogs, check out the newly launched BlawgWorld 07, a free e-book from TechnoLawyer, featuring a selection from Dorf on Law (and many others).

Contingent Fees For Government Lawyers, Part 2

Last month, I explained why the argument for treating contingent fee arrangements between state or local governments and private lawyers as violations of state separation of powers principles is unpersuasive bordering on frivolous---notwithstanding the fact that the Louisiana Supreme Court actually bought the argument. Now tort reform advocate Walter Olson accuses me of being "very dismissive of" these arguments, pointing out that a California judge recently threw out a contingent fee arrangement as inconsistent with the ethical obligations of a government lawyer. Mr. Olson points to his own May Wall Street Journal Op-Ed praising that ruling.

Note, however, that the California ruling does not rest on the separation of powers arguments that I disparaged. Rather, it rests on California principles about proper standards of conduct for government lawyers. It cites a 1985 California Supreme Court decision that invalidated contingent fees in government civil enforcement actions as sometimes analogous to criminal cases. Here is the key language of the Cal S Ct case:

The justification for the prohibition against contingent fees in criminal actions extends to certain civil cases. As discussed above, the rigorous ethical duties imposed on a criminal prosecutor also apply to government lawyers generally. “The county attorney is a county officer and as such is a representative of the people, although his duties relate only to civil matters.” (ABA Committee on Prof. Ethics, opn. No. 186 (1938).)

Nothing we say herein should be construed as preventing the government, under appropriate circumstances, from engaging private counsel. Certainly there are cases in which a government may hire an attorney on a contingent fee to try a civil case.

In the recent case, California Superior Court Judge Komar rejected the argument that the earlier precedent doesn't apply in a nuisance suit where the contingent fee lawyers are closely supervised by government attorneys. That may or may not be right as a matter of California professional responsibility law. But California doesn't even bar all contingent fee arrangements in civil cases, and it bars the ones it does on grounds wholly different from the separation of powers arguments that I find unpersuasive.

As I said in my earlier post, there may be good policy reasons to be skeptical about many of these contingent fee arrangements. Olson and other tort reformers are no doubt right that there are some bad contingent fee deals out there. Olson's Wall Street Journal op-ed also raises the disturbing possibility that contingent fee lawyers in Rhode Island got no-bid business as a result of campaign contributions. And guess what? That's a disturbing possibility for all sorts of other programs, including, I don't know, say, billions of dollars to Halliburton and KBR. I'm looking forward to the embrace of campaign finance reform by those who favor tort reform.

Is it Fair to Compare Eliot Spitzer to George Bush?

My FindLaw column for today notes the weird parallels between the respective abuses of law enforcement power and executive privilege controversies at the federal level and in New York State. (If you are not familiar with the NY issue, go read the column. Even if you are familiar with the NY issue, please read the column.)

The column's main point is to note the advantages of a separately elected---and thus independently accountable---Attorney General, as in New York. I explain that this "fractured" executive solves a problem for which there is no good solution at the federal level: How to address the inherent conflict of interest that arises when high-ranking executive officials are suspected of wrongdoing, without licensing an unaccountable special prosecutor? How, in other words, to prevent the Robert Bork problem (in his Saturday Night Massacre infamy) without creating the Ken Starr problem? Yes, I've deliberately chosen two conservative heroes as examples of the system run amok in opposite directions, not to irk my conservative readers---well, okay, not SIMPLY to irk my conservative readers---but because they really do exemplify the two dangers that seem to get traded off one another, or at least each did in his respective worst moment.

Of course, the column is especially likely to irk Democratic loyalists, or at least Spitzer loyalists, who think the idea of comparing Spitzer to Bush is outrageous. To be clear, however, I do not claim that Spitzer is as bad as Bush overall. Spitzer has not, for example, misled the people of New York into a disastrous war. And as I note in the column, even with respect to this one issue, Spitzer appears to have pretty quickly come around. Rather than protecting his loyalists, Spitzer has distanced himself from the people directly responsible and, after a bad start by his staff (and perhaps by Spitzer himself), seems ready to help the state legislature get to the bottom of the scandal. That's a clear difference with Bush, Gonzales et al.

Nonetheless, I draw the parallel in the piece because I think it's important to keep attention focused on what it was that was so wrong about the US Attorney firings, which is NOT the firings, but the use that the White House wanted to make of these US Attorneys before they were fired, and quite possibly did make of many of the other US Attorneys who weren't fired---namely, to set the nation's law enforcement priorities in a way that targeted the President's political opponents. And that is also what happened in New York. If State Senate majority leader Bruno had misused state resources, that would have been a legitimate subject for the state AG to investigate. It also would have been legitimate for the Governor's office to refer the issue to the AG. What was not legitimate was for the Governor's office to direct law enforcement attention to Bruno ON ACCOUNT OF the fact that Bruno is a political opponent of Spitzer. Because this is the main misdeed alleged to have been perpetrated by the White House in the plot that culminated in the US Attorney firings, the NY scandal really is directly parallel.

So You Want to Be a Law Professor Part 1: Writing

In recent years, law schools have been doing more to support their alumni seeking legal academic jobs. For the coming year, I'm co-chairing---with my colleague Professor Carol Sanger, the founder of---Columbia's Program on Careers in Law Teaching. We'll be upgrading the site for a while, but I've spent the last couple of weeks writing new material for it. For now, I thought I'd post my tips on writing law review articles (also available here). I'll periodically cross-post other morsels from the site.

To get and keep a job as a (non-clinical and in some schools also as a clinical) legal academic, you need to produce legal scholarship. By the time you are ready to seek an academic job, you should be prepared to describe your methodology, your field (or fields), and your scholarly agenda. You may know your methodology, field and scholarly agenda before you start writing your first article, but more likely it will emerge organically from what you write. Methodology. A couple of generations ago, the vast majority of legal scholars produced what would today be called “doctrinal” scholarship: works that explain, analyze, and criticize judicial decisions, often proposing to substitute one doctrinal test (e.g., cheapest cost avoider bears the loss) for another (e.g., no recovery absent breach of a duty of care). Many legal scholars continue to produce excellent doctrinal scholarship, especially in areas in which common law methods of judicial decision making are dominant (such as constitutional law). However, the definition of legal scholarship also encompasses much more than just doctrinal analysis. Much fine legal scholarship analyzes law by bringing to bear the insights of other disciplines, including economics and other social sciences, history, literary theory, philosophy, and more. Some of this scholarship is purely descriptive; some is prescriptive; often scholars make both descriptive and prescriptive claims. How should you go about selecting a methodology? If you have special training in a field that is relevant to a topic about which you want to write, you may decide to exploit that training. For example, if you have an economics Ph D or masters, or even if you just majored in economics in college, you could write about bankruptcy, tax, or torts from an economic perspective. Or, if you previously studied philosophy, you might bring that to bear on a paper on professional responsibility. But beware of dilettantism. If you only have a B.A. in history, your efforts to do legal history may come across to serious historians—including serious historians on law faculty hiring committees—as amateurish. Likewise, if you have never had any training in empirical methods, you may end up spending months or years carrying out a study that was flawed from the beginning. Accordingly, most new scholars coming out of law school, a clerkship and/or other practice tend to write doctrinal scholarship, because that is what they are most qualified to do. Field. Aspiring law professors often ask what subjects they should write about. The best answer is what interests you most, especially if your training or experience gives you a leg up. So, if you have been working as a public defender for four years, and you are keen on writing about criminal law and criminal procedure, you should do so. Conventional wisdom holds that it is harder to get an entry-level job in public law (including subjects like constitutional law, public international law, and jurisprudence, even though jurisprudence also covers private law) than in fields on the “business side” of the curriculum (including subjects like corporations, securities, and tax). We repeat this conventional wisdom here, even though we have not conducted a study of the ratio of excellent entry-level candidates to job openings in each field. Beyond the evergreen conventional wisdom, there are fads (and perceived fads) in legal scholarship. During the first dot-com boom of the late 1990s, for example, a great many aspiring legal academics produced drafts breathlessly explaining why the internet was changing everything (unless they took the standard oppositional stance and said it didn’t really change anything fundamental). No doubt some people in this cadre of self-described cyber-lawyers got academic jobs. But many did not, or if they did, it was despite, rather than because of, their faddish choice of subject matter expertise. If you are truly indifferent about field—if, that is, you would be equally delighted writing about corporate tax as you would be writing about the Hart/Dworkin debate—then you might want to go into a field with greater demand relative to supply, assuming you can identify the right field. However, most people are not indifferent as to subject matter and have subject matter-specific expertise. Moreover, your work will be better and easier to produce if you write about what genuinely interests you. More broadly, the lesson here is something akin to the efficient capital markets hypothesis: If you go into a field simply because you think that it’s an area of high demand, others will do the same, and you will needlessly forfeit the comparative advantage you have when you write about what you really know and love. Topics. If you’re lucky, you’ll have more topics about which you want to write than papers you can complete before you’re on the market. The best topics will come to you organically. Perhaps you took a seminar that piqued your interest in a problem, or perhaps you worked on an interesting case that concerned an unsettled question of law. Often the best ideas arise out of confusion: You don’t understand how some doctrine (if you are a doctrinalist) operates, and the more you read, the more convinced you become that no one really understands it or it’s flawed in some other regard. Then you hit upon a way to explain or improve the doctrine. You can increase your odds of remembering ideas that arose organically by keeping a list (preferably as a computer file that you back up somewhere safe) of potential article ideas. Many of these will not pan out, either because someone else will have already written the definitive treatment of the issue, or because, on reflection, you conclude that your idea is wrong, obvious, or uninteresting. But some will pan out. You may have to start research and writing an article idea to determine whether it’s right for you. This is not wasted time, even if you end up not writing about any particular topic, as the research and writing process will help you find what you want to write about. There is no single answer to what makes a good law review article, but certainly it helps to have an original idea that you describe in engaging and persuasive prose. Some of the best articles argue for counterintuitive conclusions because ideas that are counterintuitive are more likely to be original than ideas that conform to most people’s intuitions. Of course, many counterintuitive ideas are simply wrong. (E.g., “Repeatedly poking yourself in the eye with a sharp stick improves your vision.”) The main point here is that you want to make a contribution to the scholarly literature by saying something that’s original, interesting, and at least arguably correct. Absolute claims tend to be indefensible. (E.g., “Because the process by which the Reconstruction Amendments did not comply with Article V of the Constitution, courts should treat them as illegal.”) You will often be able to make a watered-down but nonetheless still-interesting version of such a claim. (E.g., “Conventional accounts of constitutional change do not adequately explain how amendments that were adopted extra-legally can come to have the force of law. This article offers a new explanation.”) You also need to find a topic at roughly the right level of generality. As an unknown author (for now!) you should probably avoid the "hot topics" that many more senior scholars will be writing about. These included the O.J. trial, Bush v. Gore, and the Hamdan case when these events were news. However, you should also try to avoid writing about very obscure issues of interest only to specialist practitioners in a sub-field (such as the ambiguity in some new regulation governing some particular kind of tax shelter). At the same time, a new academic with a new “theory of everything” will not be taken seriously. Your challenge is to find an interesting and timely topic with respect to which you can say something novel and persuasive. If you’re still not sure what counts as a good topic (and even if you think you are), take a look at the last couple of years of the top law reviews, paying attention both to articles in your field and outside of it. This will give you a good sense of what kinds of topics are current. Remember, though, that a topic that may be appropriate for a senior scholar in your field (e.g., “Globalization’s Impact on Domestic Law”) may be too broad for you as a new scholar. Conversely, remember that Student Notes tend to be narrower than most good law review articles. Length. As a result of a 2004 study, eleven leading law reviews issued a joint statement indicating a desire to publish shorter articles than had become the norm. The new norm is no more than 40-70 law review pages, although individual journals have their own more precise guidelines. For example, the Harvard Law Review gives preference to articles under 25,000 words, while the Columbia Law Review is a bit more generous to the verbose, preferring articles under 32,000 words. Although some journals do not adhere to these guidelines, many do. Unless you have a very good reason, you should aim for the 25,000 word limit. Obviously, we have just barely scratched the surface here. For excellent and much more detailed advice on academic legal writing, consider Eugene Volokh’s book, Academic Legal Writing (which also contains tips on other aspects of the legal scholarship enterprise).

And the Winner is . . .

Alas, there is no clear winner of my contest to explain which athletes get the benefit of the doubt. The comments made considerable good sense. Employers care about: the marquee value of the athlete; the seriousness of the offense; how clearly guilty the athlete is; to what extent the particular athlete or the sport in general is trying to cultivate a positive image; and a host of other factors. In short, it depends.

Michael Vick, Barry Bonds, and Michael Rasmussen: Who Gets the Benefit of the Doubt?

Sports is supposed to be a distraction from the world of law and politics, and at least for a few hours it performed that function for Iraqis encouraged by the success of their national soccer team in the Asian Cup (before car bombs exploded in Baghdad, bringing them back to their terrible reality). But 'round these parts I'm hardly the first to notice how much of the sports page is taken up with law these days.

Let's start with Michael Vick. As a vegan and a dog lover, I'm certainly horrified by the acts that Vick stands accused of committing. And despite the presumption of innocence that I would be bound to apply if I were a juror in Vick's case, I strongly suspect that Vick knew what was occurring on his property. As Sherry Colb noted in this FindLaw column five years ago---in another sports-related case---the presumption of innocence does not apply to non-jurors.

Still, where an employee stands accused of committing acts that, while criminal, have no direct bearing on his fitness for the job, there are sound reasons for the employer not to suspend him. This, I take it, was the logic behind permitting Kobe Bryant to continue to play basketball when he was charged with rape. (The charges were ultimately dropped.)

Conversely, if an employee's alleged crime (or other misdeed) does affect his ability to perform, then a credible accusation may be all that should be needed to dismiss him. A day care center would be justified in suspending an employee indicted for child molestation. Likewise, Rabobank was within its rights in dismissing Tour de France leader Michael Rasmussen when it figured out that Rasmussen had been dishonest about his whereabouts when he should have been tested for doping.

But if the decisions to play Bryant and to bench Rasmussen made sense, then the decisions to bench Vick and to celebrate Barry Bonds as he closes in on Hank Aaron's career home run record do not make sense. Is an accusation of dog fighting so much worse than a rape accusation? Are performance-enhancing drugs so much more common in baseball than in cycling, where they appear to be in every racer's water bottle? I offer a (figurative) gold star to any reader who can offer a principle that rationalizes the treatment of these athletes. (The answer "these decisions were made by different people in different organizations," will not be a winning entry. That will be my conclusion if nobody has a persuasive rationalization.)

Contempt for Harriet Miers?

No, that's not a question about why President Bush's second nominee to fill the seat vacated by Justice O'Connor failed to gain confirmation. (Footnote: That's right, second. Roberts was the first. He was pulled from that nomination when Chief Justice Rehnquist died. So Alito was technically a third choice, just like Blackmun and Kennedy. But I digress.)

This post is about the House memo setting out grounds for holding Miers in contempt. It states five objections to the assertion of executive privilege. Two of them are highly technical: (1) the President himself must personally assert executive privilege, but he has not; and (2) Harriet Miers must, but did not, submit a "privilege log."

The third objection rests on what strikes me as a faulty understanding of executive privilege: (3) there has been no showing that President Bush himself received advice or was even involved in the underlying decisions regarding the U.S. Attorneys. I consider this a faulty view because we have a doctrine of "executive" privilege rather than "Presidential" privilege. Rooted in separation of powers, it protects the confidentiality of communications within the executive branch. To be sure, in United States v. Nixon, the Supreme Court talked about the "privilege of confidentiality of Presidential communications," but that's because the case itself involved such communications. In Cheney v. United States District Court, although the issue was not directly presented, the Supreme Court appeared to accept that the Vice President could raise a claim of executive privilege. (VP Cheney had not yet announced that he's a member of the legislative branch.)

Moreover, precedent aside, it makes sense to extend executive privilege beyond communications directly with the President. In the same way that a claim of "judicial privilege" should protect (at least as a prima facie matter) case-related conversations among lower federal court judges or even their law clerks, rather than just those between Supreme Court Justices and their respective law clerks, so it seems that executive privilege ought to protect some discussions in which the President does not directly participate. This view may pose problems for those who believe strongly in the unitary executive—including the current occupant of the White House—but that's not a reason for the House of Representatives to adopt a faulty view of the privilege.

The heart of the House case is the fourth objection: (4) Even if the privilege were properly raised and applicable, it would be outweighed by the House's need for information relevant to investigating serious wrongdoing. As in the Nixon case, so too here, there is no plausible national security justification for keeping the material secret, and prior administrations have declined to assert executive privilege where Congress sought evidence of wrongdoing by the administration itself. Whether this objection is correct as a matter of case law depends on whether Nixon—with its demanding burden of persuasion on the administration—applies outside the context of a criminal prosecution. The Cheney case suggests that it may not, but this is an open question: We can grant that executive privilege is entitled to greater protection in civil cases than in criminal cases; it does not follow that it is entitled to less protection in a direct conflict between the House and the President.

The fifth and final objection appears technical: (5) When a private citizen faces a congressional subpoena and the White House asserts executive privilege, the proper course is for her to comply, unless the White House succeeds in obtaining a court order blocking her from doing so. This is not merely a technical objection, however. If correct, it would force the administration to go to court as plaintiff seeking a protective order rather than as a defendant against a motion to compel testimony. It's disadvantageous to be the plaintiff in these cases because a judicial decision to stay out benefits the defendant.

N.B. This post is a very slightly modified version of my opening salvo in the discussion for the Federalist Society to which I referred yesterday. The procedure we're following is a free-for-all email exchange, to be posted when it's over. I'm not posting my two follow-ups right now because, without the emails to which they respond, they don't make all that much sense.

Would a Special Prosecutor Circumvent the Executive Privilege Standoff?

During yesterday's Senate Judiciary Committee grilling of AG Gonzales, Senator Specter suggested that, in light of the Justice Dept's announced intention not to pursue a contempt prosecution against Harriet Miers or other current or former White House staff for their refusal to testify before Congress regarding the U.S. Attorney firings, a special prosecutor might be appointed. Specter implied that the appointment of a special prosecutor might circumvent the executive privilege impasse.

In a technical sense, Specter is probably right. Under United States v. Nixon, the existence of a criminal prosecution stands as a substantial obstacle to a successful presidential assertion of executive privilege. Conversely, Cheney v. United States District Court (the energy task force case) arguably says that absent a criminal prosecution, the courts will not override a claim of executive privilege. So a special prosecutor---and thus a criminal prosecution---could make a difference in how the courts rule on executive privilege.

But the Bush White House can read these cases as well as the Senate, and if they're unwilling to waive executive privilege directly, they're going to be equally unwilling to waive it indirectly by appointing a special prosecutor. And because the Independent Counsel Act was not renewed when it expired in 1999, the only way we could get a special prosecutor would be for the President or AG to designate one. It's true, as Justice Scalia noted in his dissent in Morrison v. Olson, that political pressure alone produced a special prosecutor during Watergate --- two actually, the one fired by Robert Bork and the one appointed to take his place --- but with President Bush's approval ratings already in the toilet, it's not clear that any political pressure can be brought to bear on him. So don't expect Specter's proposal to go anywhere.

Speaking of executive privilege, I'll be e-debating its merits on a Federalist Society soon. Watch for the links.

Why Do Some Republican Supreme Court Justices "Evolve" While Others Don't?

My article, Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" and Others Don't?, is now available at the Harvard Law & Policy Review website. (The HLPR should not be confused with the Harvard Journal of Law & Public Policy. The HLPR is the house organ of the American Constitution Society, while the HJLPP performs the same function for the Federalist Society. The articles in the two journals respectively slant left and right, but they both are committed to professional norms of scholarship.)

Here is the opening of my article:

Why do some Republican Supreme Court Justices “evolve” over time, becoming more liberal than they were—or at least more liberal than they were thought likely to be—when they were appointed, while others prove to be every bit as conservative as expected? For nearly four decades, one single factor has proven an especially reliable predictor of whether a Republican nominee will be a steadfast conservative or evolve into a moderate or liberal: experience in the executive branch of the federal government. Those who lack such experience evolve; those who have had it do not.
. . . Since President Nixon took office in 1969, the Senate has confirmed twelve Supreme Court nominees of Republican Presidents. Of these, six have had no substantial federal executive branch experience: Blackmun, Powell, Stevens, O’Connor, Kennedy, and Souter. The six successful Republican nominees who have had substantial executive branch experience are Burger, Rehnquist, Scalia, Thomas, Roberts, and Alito. Although it is too soon to make firm judgments about the two most recent appointees, it is notable that every one of the Justices on the first list has been less conservative than every one on the second list. And preliminary evidence indicates that the pattern will also hold for Chief Justice Roberts and Justice Alito.

The bulk of the article goes about proving these points and offering a causal explanation: I hypothesize that Republican Presidents and their legal advisers have been using prior federal executive branch experience to sort true believers from moderates. Because of the long lead time for law review publications, when the article went to press, I did not yet have data for the full 2006-07 Term, but this last Term now dramatically confirms the pattern: as predicted, Roberts and Alito proved to be very reliable conservatives.

However, the most recent Term casts some doubt on my claim that during the period under study, every Justice with prior federal executive experience has been more conservative than every Justice without such experience. In particular, the recently completed Term casts doubt on the claim that Chief Justice Burger was more conservative than Justice Kennedy. After all, it was Chief Justice Burger's majority opinion in Swann v. Charlotte-Mecklenburg Bd. of Educ. that said: "School authorities . . . might well conclude . . . that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." Justice Kennedy joined in part the opinion of Chief Justice Roberts striking down the efforts of Seattle and Louisville to do just that in the Parents Involved case. Moreover, Justice Kennedy voted with the conservatives in 13 of the 19 cases that split 5-4 along ideological lines (see chart on Scotusblog here). Thus, while Justice Kennedy is pretty clearly less conservative than Roberts, Scalia, Thomas, and Alito (as well as Rehnquist), it is not perfectly clear that he is less conservative than Burger was.

Like Kennedy, Burger voted for a right to abortion (in Roe), but later indicated that he thought the right narrower than his more liberal colleagues did (as indicated here). And as the dicta from Swann indicate, on race issues, Burger was arguably less conservative than Kennedy. In the other direction, Kennedy has been the Court's leader on gay rights, sweeping away Bowers v. Hardwick, including CJ Burger's (offensive) concurrence in that case. And Kennedy is a free speech liberal while Burger was not.

It's not entirely clear how one meaningfully measures whether, in the aggregate, Kennedy is more or less conservative than Burger was, but that's largely beside the point. At most this exercise shows that Burger is a possible counter-example to my thesis, but I do not claim in the Article to have discovered a law of nature, just a strong correlation in an admittedly small data set. And even then, I'm not willing to concede that Burger is a counter-example. Ideology, I think, needs to be measured in relative terms. On a Court that included William O. Douglas, William Brennan, and Thurgood Marshall---and on which Harry Blackmun and John Paul Stevens counted as moderates---Burger was very clearly conservative. Likewise, on the Rehnquist and Roberts Court, Kennedy is clearly a moderate/swing Justice.

Simple Civ Pro and Supreme Court Nominations

With the Supreme Court’s 2006-07 term concluded, the next big news might well be a vacancy on the Court. Whenever that situation arises, the confirmation process would be vastly improved if senators adopted an approach to evaluating future nominees that roughly corresponded to the basic process of a civil case: pleadings, discovery, trial. More accurately, each individual senator could and should assess his or her support of a nominee on a basis analogous to motions to dismiss for failure to state a claim (the familiar 12(b)(6) motion), motion for summary judgment, and only in very rare cases a verdict after the equivalent of a trial.

Before explaining the analogy, it is useful first to recall the farce that recent confirmation battles have become. Confirmation hearings have devolved into attempts to find gotcha moments, with the inevitable result that the nominees are reduced to mouthing meaningless blather like pledging to be “an umpire who calls balls and strikes.” A major factor contributing to this nonsense is the apparent belief that senators need to “keep an open mind” and not pre-judge a nominee before the hearings. For example, after the most recent nomination, Senator Kennedy said all of the now-expected things about withholding judgment until after the hearings, etc. During the hearings, Kennedy tried and failed to make an issue out of Judge Alito’s possible involvement with a possibly racist organization at Princeton, and the nomination ultimately succeeded (with Kennedy voting against the nomination anyway, even though Alito had met the basic standard of success in the absurd process that the hearings had become, i.e., he did not say anything outrageous).

Senators should simply drop this pretense. There is no reason to insist on withholding judgment until hearings are held, not merely because it is implausible to think that many senators have really not yet made up their minds, but because it is completely reasonable – and fair – to form judgments earlier in the process. Thus my analogy to basic civil procedure.

In a civil case, a party can request that a case be dismissed after the pleadings have been filed. This motion will be granted if a court concludes that the nonmoving party’s case cannot win, no matter what evidence might be found during discovery or presented at trial. For a Supreme Court nomination, the equivalent of a 12(b)(6) motion would be to look at what is immediately known about the nominee, including what the President asserts when submitting the nomination. The best recent example of a nomination that would fail a 12(b)(6)-equivalent motion is Harriet Miers (now back in the news for her possible involvement in the Gonzalez 8 Massacre). Bush nominated Miers for a seat on the Court, saying a few positive things about her and basically leaving everyone to look at her resume. It was not impressive. While it appears that her nomination ultimately failed because the conservative base of Mr. Bush’s party did not support her, it would have been completely reasonable for any senator to say, “I don’t need to sit through hearings to know that this nomination is unacceptable. I don’t even need to go through the equivalent of discovery. Giving every benefit of the doubt, this nominee does not possess the minimum qualifications to sit on the United States Supreme Court.”

A nominee who survives the 12(b)(6)-equivalent then proceeds to the equivalent of discovery. After all of the documents are in, it is then possible to get a very good picture of almost every nominee. In the cases of the two most recent successful nominees, it was completely obvious that both Roberts and Alito were movement conservatives who would decide cases in the way that they have, in fact, decided cases. Some commentators mused openly about pleasant or unpleasant surprises, but it was really beyond reasonable doubt what kind of justices these men would become. Why have hearings? The supposed reason was that people like Kennedy wanted to appear to be “fair,” where fairness in this context took on the odd meaning of giving someone the opportunity to put his foot in his mouth.

The equivalent of summary judgment would have solved this. No one who read the record on Roberts or Alito could have failed to make a reasoned judgment about their fitness to serve. Those senators who wanted to put movement conservatives on the Court could happily vote to confirm, and those who felt otherwise could vote no. The way the process actually played out was not just a waste of everyone’s time but a trap for those who had every reason (based on their viewpoints) to vote against confirmation. It should have been possible for any senator to announce the equivalent of his or her judgment about a summary judgment motion, saying that we knew enough to vote without the equivalent of a trial. And most importantly, doing so would have been “fair” in the very real sense that the whole notion of summary judgment itself is fair. That is, the legal system readily accepts the idea that many questions need not go to trial and that fair and disinterested adjudicators can reach conclusions on the basis of evidence short of direct testimony.

The most likely result of this approach would be the elimination of most confirmation hearings. Few nominees would be so borderline as to require hearings to fill in their views to satisfy senators’ curiosity. On those occasions when hearings were called, moreover, they might actually be interesting, because a president who could not count on 51 votes to confirm a nominee on the basis of the paper record might be compelled to nominate someone whose stated views during confirmation hearings would matter. Over-coaching and dissembling would still quite possibly be part of the process, but if the Senate convenes hearings only after determining that a nominee is really a close call, it would presumably be up to the nominee to make the case that she affirmatively deserves to be confirmed rather than resting on the current presumption that she can only be rejected if she commits a gaffe.

My argument, by the way, is nonpartisan. Senators of both parties should feel comfortable taking this approach, no matter the president’s party. My guess, in fact, is that Republican senators are likely to take the equivalent of this approach with any future Democratic nominee, rejecting nominees out of hand who appear to be too liberal. Many but by no means all Democratic senators have apparently taken this approach to Bush’s nominees. Being clear and honest about what they are doing, though, promises to improve the process by making it clear that senators are applying well-established approaches to legal decision making, clarifying where the presumptions lie and making it clear that Supreme Court justices should be chosen on the basis of the senators’ judgments of their merits and not on whether sufficient drama could be manufactured during televised hearings.

Bush's Colon, the 25th Amendment & the Constitutional Location of the Vice Presidency

Yesterday's 2-hour transfer of Presidential power from George Bush to Dick Cheney while the former underwent a colonoscopy is a useful reminder that the office of Vice President was substantially altered by the adoption of the 25th Amendment in 1967. Under that Amendment, a President can temporarily lodge his authority in the VP whenever "he is unable to discharge the powers and duties of his office." (Insert Bush joke here.)

Under the pre-25th Amendment Constitution, it was plausible to argue that the VP was part of the legislative branch, since his only function was/is to break ties in the Senate. Sure, he would become President on the President's death, but the line of succession also goes to others (such as the Speaker of the House, next in line) who are clearly not members of the Executive Branch. But there is something qualitatively different between holding a legislative job that might result in a promotion to the Presidency and holding a job that includes, as one of its constitutional duties, occasionally acting as the temporary President. Add to this analysis the tacit recognition in the 12th Amendment that the VP will have been elected on the same ticket as the President, and it's no longer plausible to say that the VP is not part of the Executive. Amusing, sure, but not plausible.

In the Fight Over Executive Privilege, Play Defense

Here's an idea I've been trying to sell to the various reporters that have called me about executive privilege in the last month or so: It's advantageous to each branch to try to position itself as a defendant if the case gets to court, because that way, a judicial decision not to intervene is a de facto victory. For example, suppose that (A) the House were to go to court to try to get an order compelling Harriet Miers to testify, and the President (on behalf of Miers) cited executive privilege. A decision that the case is non-justiciable would be a victory for the White House. On the other hand, suppose that (B) the House Sergeant at Arms seeks to arrest Miers for contempt of Congress, and Miers goes to court for a protective order, citing executive privilege (backed up by the White House). Now a judicial decision not to intervene is a victory for Congress. To be sure, there's nothing technically stopping the House from attempting scenario (B) after failing at scenario (A), but because these matters tend to play out in the court of pubic opinion, that would be much less advantageous than attempting (B) directly.

As I said, I've been trying to sell this "each branch wants to stay on defense in the courts" theory to reporters, but they haven't been biting. For example, this recent Time Magazine story quotes me saying that the courts like to stay out of these disputes, but omits my explanation of how, knowing this fact, the other branches behave strategically. Okay, so I'm publicizing this little theory here.

The Shortage in Large Animal Veterinarians

Earlier this week, I listened to an NPR interview of the newly elected President of the American Veterinary Medical Association, Gregory Hammer. Dr. Hammer discussed, among other things, the diminishing pool of applicants to veterinary school who want to become large animal veterinarians. More applicants than in the past are interested in treating companion animals rather than “food supply” animals, and this change has contributed to a shortage of medical practitioners for livestock. Dr. Hammer had some interesting theories about why things have changed, including the fact that fewer people live near farms or have any familiarity with the sorts of animals found on farms.

I have a different theory that probably does not account for much of the variance but provides a more hopeful philosophical account, from my perspective. I believe that there is something inherently paradoxical about a “food supply” veterinarian. The job of a doctor is to help heal her patients when they are ill and relieve their suffering when they are in pain. People who have a companion animal bring him or her to the vet out of love and attachment, the way we would do for any family member. And the veterinarian's practice revolves around accommodating that loving approach.

When my dog ate several boxes of raisins (toxic to dogs’ kidneys), for example, my veterinarian induced vomiting and kept her on an I.V. for days. And when she had a urinary tract infection, he prescribed antibiotics (the canine equivalent of amoxicillin). Dr. Fried is warm and affectionate toward my dog and has taken good care of all three canine wonders who have enriched my life over the years. He cares about and values his patients (independently of their relationship to their “owner”/parent).

“Food supply” animals are brought into existence and killed for their flesh (or first used for their reproductive fluids and later killed for their flesh). Farmers hire veterinarians to maintain these animals in a condition that will best serve this ultimate objective of creating marketable food. When a farmer hires a veterinarian to deliver a baby calf, for example, the point is to help facilitate the mother cow’s production of milk and to usher in the ingredients of veal. The “food supply” veterinarian may sincerely love animals, as James Herriot, author of “All Creatures Great and Small” appeared to. But he is invited into the lives of animals as a kind of mechanic, there to fix a machine that has temporarily broken down, not to heal a patient who has value in and of herself.

For an admittedly imperfect but useful analogy, consider the psychiatrist hired to restore a death row inmate to competency -- sufficient mental health to enable the State to execute him lawfully. A movie that addressed this very subject, Dead Man Out, did a great job of showing the inherent contradiction of a doctor occupying this role. Though the psychiatrist – played by Danny Glover – begins the process of psychotherapy thinking he can treat his patient without thinking about what happens once the man becomes well, in the end, he finds this impossible and acts accordingly.

In light of this paradox, it may be that at least a few of the people deciding not to become “food supply” veterinarians have done so out of principle. They sense that it is wrong to participate in a process that is more cruel to more animals than anything else on the planet and that is so utterly indifferent to the interests and wellbeing of intelligent, emotional, and innocent creatures. They understand, I hope, that it is wrong even if – maybe especially if -- in the short term, one’s only objective is to alleviate animal suffering.

Who's Your Master?

It’s been a good month for Scooter Libby. First, President Bush commuted his 30-month prison sentence. And now a federal judge has dismissed Valerie Plame’s suit against Libby and other administration officials, including Dick Cheney, Karl Rove, and former Deputy Secretary of State Richard Armitage.

In a decision handed down today, Judge John Bates did not address the merits of Plame’s suit, which alleges that Libby & Co. violated her constitutional and state law rights when they outed her as a CIA operative in 2003. Instead, he dismissed the suit on jurisdictional grounds. First, he ruled that the Constitution does not authorize Plame or her husband, Joseph Wilson, to collect money for violations of their First and Fifth Amendment rights. Second, he dismissed Plame’s state law privacy claim because a federal law – the Westfall Act – requires plaintiffs who are harmed by federal employees acting in their official capacity to sue the United States, not the employees.

Bates’ ruling on the first point is unsurprising. The Constitution does not explicitly provide remedies for individuals whose rights are violated, and the Supreme Court has been very reluctant in recent years to recognize “implied” constitutional remedies. But his analysis of the Westfall Act is questionable. In order to conclude that the Act preempted Plame’s state law claim, Bates had to determine whether Libby et al. were acting within the scope of their employment when they outed Plame. Plame argued that they were not because outing undercover CIA agents is not within the job description of high-ranking executive officials. But Bates disagreed:

The alleged means by which defendants chose to rebut Mr. Wilson's comments and attack his credibility may have been highly unsavory. But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush Administration's handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants' duties as high-level Executive Branch officials.

Bates appears to think the means used by officials to carry out their duties are irrelevant to determining whether they are acting within the scope of their employment. But the distinction between means and ends is not always helpful. What if Libby had ordered a hit man to kill Wilson as a means of rebutting public criticism of the administration? Surely, we would not say he was acting within the scope of his employment simply because rebutting public criticism is one of his duties. On the other hand, I agree that an official does not act outside the scope of his duties just because he violates the law. If that were the case, the Westfall Act would provide little protection to federal employees. The key question should be whether the employee’s actions were within the range of what might reasonably be expected of someone in that position. And sadly, under that standard I think Bates is right. For a top official like Libby, leaking classified information to damage political opponents has become commonplace. Not only is it within the scope of employment; it is the scope of employment.

Bates did make one mistake. As part of the Westfall analysis, he had to determine whether the defendants were “actuated by a purpose to serve the master,” meaning their employer. Bates concluded that they were, writing that “attempts by high-ranking officials to discredit a critic of the Executive Branch’s policies satisfy the purpose requirement.” Bates is right that the defendants’ actions served the purposes of the Executive Branch. But their “master” for purposes of the Westfall Act is not George Bush. It is the United States government. And it is hard to see how outing an undercover CIA agent could be said to serve the purposes of the United States.

Who is Judge Bates, by the way? For starters, he’s a Bush appointee (which may explain why he thinks Bush is the master). He was also Deputy Independent Counsel for the Whitewater Investigation from 1995-97. And last year, he was appointed by Chief Justice Roberts to serve on the Foreign Intelligence Surveillance Court, which is now monitoring the administration’s domestic wiretapping program. Feel safer? I thought not.

Unconstitutional Pardons

During the discussion of the commutation of Scooter Libby's sentence, one of the Republican talking points was that the pardon power (and implicitly, the power to commute sentences) is constitutionally committed to the President. That's right as far as it goes. Neither Congress nor the courts can reverse the President's decision to pardon someone (or, presumably to commute his sentence). See United States v. Klein. However, it doesn't follow that the President can pardon anyone he wants for any reason.

Suppose, for example, that the President decided to pardon all self-declared born-again Christians (but no one else) doing federal time for white-collar crimes. Surely that would violate the Establishment Clause. Likewise, a decision to pardon women (but only women) doing time for bank robbery would clearly violate the equal protection component of the Fifth Amendment's Due Process Clause.

There might be no remedy for these constitutional violations, short of impeachment, but then again there might be. In my first example, imagine that a non-born-again-Christian brought a habeas petition, alleging that his continued detention violates the Establishment Clause. If the judge agrees, Klein and the unreviewability of the pardon power would prevent him from ordering that the born-again criminals be re-imprisoned, but ordering the petitioner released would not interfere with the pardon power.

So, is it a constitutional violation to pardon high-ranking executive officials as a means of obstructing an investigation into potentially criminal wrongdoing in the executive branch? And if so, might Andy Borowitz have been inadvertently onto something when he jokingly suggested that thousands of people might be able to take advantage of Scooter's deal?

The answer to that second question is almost certainly "no," but NOT because, as Bush apologists claim, there was nothing constitutionally suspect about Bush's highly selective empathy for Libby. The fact that discretion is unreviewable does not render proper every exercise of that unreviewable discretion.

Federal Rule of Civil Procedure 1 and Twombly

My FindLaw column today highlights the pending stylistic changes in the Federal Rules of Civil Procedure. For those of you without sufficient motivation to read the column but who nonetheless read my blog entries, here's the executive summary: The new rules are easier to understand than the old ones, which will help novices, but may actually create more problems for experienced lawyers: The new rules are supposed to make only "stylistic" changes, so if there's a question about the meaning of a rule, lawyers will still have to consult the old rules, only now there will be the additional possibility of a conflict between the old and new rules.

I am thus skeptical about the re-styling project. My preference would have been for the new rules to replace the old ones, tout court, although admittedly that would have created more issues under the Supersession Clause of the Rules Enabling Act. (See the column for a further explanation if that sounds like gibberish to you, and if so, you should have paid more attention in your civil procedure class!). Given that the new rules will be a reality, my suggestion in the column is that the Supreme Court should interpret them liberally, in the spirit of Rule 1. Both the old and new version of Rule 1 encourage what might be called purposive, common-sense interpretation, as opposed to rigid formalism. I thus conclude the column by worrying about recent Supreme Court decisions like Bowles v. Russell (the outrageous ruling that a habeas petitioner lost his right to appeal because the district court timing order---with which he COMPLIED---was based on the judge's error that the petitioner could not have reasonably discovered, as I discussed in an earlier column here.)

Oddly, the best hope for a more purposive approach to the Federal Rules may come from another recent decision that the civil proceduristas (myself included) have also been denouncing: Bell Atlantic v. Twombly. Recall that in that case the Supreme Court appeared to abandon notice pleading for at least one category of antitrust conspiracy claim, in seeming contravention of the fact that Rule 9 sets out a list of the sorts of facts that must be averred specifically, and conspiracy is not on the list. As I noted in this earlier post on the Twombly case, Justice Souter's decision appears to depart from the approach that the Court took to the Rules in two earlier cases that reject a heightened pleading standard on the ground that a heightened pleading standard can only come "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)). Note that in this context, the approach of Swierkiewicz and Leatherman seems unduly formalist: Given that the Supreme Court plays a crucial role in making the Federal Rules, would it really be such a bad thing if the Court also interpreted them loosely? If it turns out that there are sound case management reasons to treat conspiracy allegations differently from other sorts of allegations---at least in complex antitrust cases---why not permit lower courts to impose a heightened pleading requirement?

To be clear, I'm NOT saying that it's actually desirable to have a heightened pleading standard in antitrust cases or qualified immunity cases or any other category of cases not specifically covered by Rule 9. Maybe it is; maybe it isn't. What I am saying is that a Court that thinks that a heightened pleading standard makes sense seems to be fetishizing the Rules by invoking (as the Leatherman Court does) the Latin maxim "expressio unius est exclusio alterius," as though the Rules were the work of God rather than the Court itself, wearing a different hat.

So, if Twombly were departing from the formalist spirit of Swierkiewicz and Leatherman, that might not be a bad thing, and it would be useful for interpreting the new rules. However, the Twombly Court specifically denied that it was even imposing a heightened pleading standard, and since Twombly, the Court has cited Swierkiewicz and Leatherman as the law. Accordingly, Twombly won't provide a basis for escaping the Court's new formalism on procedural matters.

Jury Duty in NYC and the Land of the Rising Sun

Last Friday's Second Circuit decision in Husain v. Springer, reversing in part the award of summary judgment for the defendants (the President and other officials of the College of Staten Island) against a lawsuit stemming from alleged improprieties with respect to a student government election ten years ago, prompted a fairly remarkable dissent (on this point) by Judge Jacobs. He wrote:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.
. . .
[T]his is not a case that should occupy the mind of a person who has anything consequential to do. In a nutshell, the editors of the College Voice student newspaper used it as a campaign flyer to promote the self-styled radicals of the “Student Union” party in a long-ago student election, and the college president, finding that the partisan use of student-activity funds made a mockery of the election rules, directed that the election be re-run. The gist of the complaint is that the editors' speech was chilled, which is deemed to be a bad thing.
This is a case about nothing. Injunctive relief from the school's election rules is now moot (if it was ever viable); and plaintiffs' counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

Unfortunately, the dissent contains some gratuitous red-baiting of the plaintiffs. Judge Jacobs laments "that the majority opinion (44 pages of typescript) will only feed the plaintiffs' fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island." Judge Jacobs calls the publication of the plaintiffs "illiterate piffle," which may well be right but is a completely inappropriate judgment to make in a free speech/free press case. If Jacobs is right on the merits, then it shouldn't matter whether the College Voice is the work of H.L. Mencken, Che Guevara or Edmund Burke (assuming any of them were alive).

Of course, on the main issue, Judge Jacobs does seem to have a point. A jury trial in this case does sound like an incredible waste of everybody's time. Indeed, it's a wonder that any country that doesn't already have a jury system would adopt one, but there was the NY Times yesterday pointing out its pending adoption in Japan (in criminal cases). The Times piece explains that Japanese cultural norms make disagreements among jurors unlikely. Indeed, even discussion appears difficult. That ought to cut down on jury deliberation time, so if Japan ends up with the decade-long delays we sometimes have between contested event and jury trial (in our civil cases), at least they'll be able to reach a verdict quickly.

Physics Analogies and Law

Among my claims to truly minor (aka "nonexistent") celebrity status is (as I snidely observed back in January) that, as a law student, I was one of a team of five assistants to Larry Tribe on a law review article, with Barack Obama one of the other four. The article is The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, 103 Harv. L. Rev. 1 (1989), and my recollection is that I didn't do all that much work on the piece, in part because I thought the exercise somewhat ill-conceived.

The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands. This is why the famous Judith Jarvis-Thomson hypothetical case---in which you inexplicably wake up one day with your circulatory system intertwined with that of an unconscious violinist who will die if disconnected (reproduced seemingly without permission here)---is not all that helpful in breaking deadlocks about the moral status of abortion. Most people have much clearer moral intuitions about abortion than they have about unconscious violinists.

And likewise with modern physics. The interconnectedness of space, time and gravity that general relativity posits and the seeming paradox of the two-slit experiment at the quantum level are hard enough for people with serious training in physics to wrap their heads around. For most lawyers, even most very-smart-but-not-physics-trained lawyers, the answer to the question "what can lawyers learn from modern physics?" is "not much," I'm afraid. Tribe's admittedly elegant article is, like Thomson's violinist, an analogy going in the wrong direction.

Or so I long thought, until I happened across this wonderful Tom Tomorrow cartoon, which explains VP Cheney's hilarious claims that he is both entitled to executive privilege and not part of the executive branch by reference to quantum mechanics, with a reference to black holes thrown in. If only Tribe had posed the question "What can lawyers learn from cartoons about modern physics?"

We Need Instant Runoff Voting

Now that Ralph Nader is once again contemplating running for President, surely the statute of limitations has run on respect for the man's past work as a consumer safety crusader. He has clearly devolved into egomania. Indeed, it seems unlikely that Nader would have any effect on the 2008 election, unless we have a replay of 2000, with the vote in a decisive state so close that a tiny percentage of "spoiler" votes is able to turn the tide. But Democrats---and depending on the Republican nominee, perhaps Republicans---have much more to fear from a Bloomberg candidacy, both because of his ability to spend huge sums of his own money and because he won't be dismissed as a fringe candidate.

The obvious solution is "instant runoff voting," (IRV), in which voters rank their choices for candidates. That way, if in some state, say, the Republican candidate gets 45% of the vote, the Democrat gets 44% of the vote, and the remaining candidates get 11% of the vote, the votes of ballots that gave first place to those 11% are redistributed to their second choice (or if neither of the two major candidates is second, then third, fourth, etc), so that the ultimate winner actually is the choice of the electorate in a head-to-head race between the two most popular candidates. Various U.S. jurisdictions already use IRV, as do many other countries, and unlike some other reforms, there is a decent chance that the major parties could get behind it, because it virtually eliminates the spoiler problem (and there's no reason why spoilers are more likely, a priori, to hurt Dems more than Repubs or vice-versa). To be sure, IRV helps third-party candidates because it allows voters to rank a third-party candidate first without worrying that she is wasting her vote, and for that reason, would help third parties to build support over time. So from the perspective of the major parties, IRV is at best a mixed bag.

Even with IRV, a third-party candidate can still play the role of spoiler by winning one state, and IRV makes it somewhat MORE likely that a third-party candidate would throw the election into the House of Representatives. As noted above, IRV lowers the cost of voting for third-party candidates, so a very strong one (like Bloomberg) could conceivably win a state or two, leaving no candidate with a majority of electoral votes. But that defect is probably best laid at the door of the Electoral College, for which the cure is either a constitutional amendment or the intriguing idea of a national popular vote interstate compact.

Alas, we're probably already too far into the 2008 campaign for these inherently non-partisan reforms to be adopted, because the parties and the candidates will ask whether they will benefit in the next election. But if timed properly, perhaps these ideas could get some traction, especially if there's anything resembling a replay of 2000.

Making Gideon Real

A new study finds that public defenders do a better job for their clients---as measured by average sentence length and other outcomes---than do court-assigned private lawyers. The study attributes much of the difference to the greater experience and better credentials of public defenders. It also notes that public defenders give a better bang for the buck. They obtain better outcomes for their clients by spending less time, and thus costing less per client.

Win-win, right? So should we expect those jurisdictions that use assigned counsel rather than public defenders to switch to the latter? Don't count on it. Better outcomes for clients means criminals spending less time behind bars. Any politician who works to switch from court-assigned private counsel to public defenders will find a challenger eager to label him or her soft on crime. Reformers' best hope would be to hook their proposed changes on the expected cost savings, but even then there will likely be holdouts.

Senate Anti-Hindu Hecklers Are No More Intolerant Than Justice Scalia

Yesterday Rajan Zed became the first Hindu clergyman to offer the official morning prayer in the U.S. Senate, but not before he was interrupted by three Christian protesters from the gallery, who objected to what they called an "abomination." (Washington Post story, via AP, here. NY Times story, via Reuters, here.) According to the AP story: "For several days, the Mississippi-based American Family Association has urged its members to object to the prayer because Zed would be "seeking the invocation of a non-monotheistic god." (The AFA has posted a complete audio of the prayer and the interruptions on its website, available here.)

As one would expect, Americans United for Separation of Church and State (and no doubt other groups), disapproved of the disruption. The group's executive director, Barry Lynn, condemned the "intolerance of many religious right activists. They say they want more religion in the public square, but it's clear they mean only their religion."

It's worth noting, if only as an aside, that Zed's bland prayer was in fact consistent with monotheism. This was no offering to Vishnu, Shiva or Krishna. Zed said: "We meditate on the transcendental glory of the Deity Supreme, who is inside the heart of the Earth, inside the life of the sky and inside the soul of the heaven. May He stimulate and illuminate our minds." As the rest of the audio confirms, no minister, priest, rabbi, or imam would be kicked out of the monotheism club for offering such a prayer. One might therefore conclude that the protesters objected to the fact that a Hindu was praying on their behalf, quite apart from the prayer's content. But let's give them the benefit of the doubt, since they probably did not know in advance whether Zed would take the ecumenical route or ask for the blessings of Ganesha AND Hanuman.

So, is it intolerant to proclaim that tolerance of other faiths does not extend to polytheists? Well, of course it is. But the American Family Association is not alone in this tolerance-only-for-faiths-enough-like-ours view. Here is Justice Scalia (joined on this point by the late Chief Justice Rehnquist and Justice Thomas) in McCreary County v. ACLU, responding in that 2005 case to the majority's argument that the display of the Ten Commandments in Kentucky courthouses violated the Establishment Clause because, among other things, the practice endorsed monotheism:

The Court thinks it “surpris[ing]” and “truly remarkable” to believe that “the deity the Framers had in mind” (presumably in all the instances of invocation of the deity I have cited) “was the God of monotheism.” This reaction would be more comprehensible if the Court could suggest what other God (in the singular, and with a capital G) there is, other than “the God of monotheism.” This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not); but it is inescapably the God of monotheism.

Justice Scalia has also written, with respect to official worship of that God of monotheism, as follows (in 1992, dissenting in Lee v. Weisman, which invalidated an official public high school graduation prayer):

The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration-no, an affection-for one another than voluntarily joining in prayer together, to the God whom they all worship and seek.

Unless, that is, you happen to worship no God or multiple ones. In that case, affection be damned.

So fear not, you monotheists who worry that Hinduism may become the official religion of the United States: You have at least two votes (and by now probably four votes) on the Supreme Court for making this an officially monotheist country in which polytheists and atheists are not directly persecuted but are excluded from participation in public rituals that monotheists lead and enjoy.

Can Lost Norms of Reciprocity Be Restored?

The latest revelation about the Bush Administration treating the official levers of power as mere extensions of the Republican Party concerns the Surgeon General. (My personal favorite in pettiness is the admonition that he not mention the Special Olympics because of its association with the Kennedy family.) This continues the disturbing pattern we see throughout this administration: Many important positions are doled out to loyal hacks (something that happens in all administrations but that GW Bush has raised to an art form) and then the hacks pressure the professionals with integrity to toe the party line. From FEMA to Justice to the Surgeon General and beyond, the signature of the current administration is to put the partisan (and not just policy) agenda first.

Which brings me to my question: Is it possible for the prior informal norms and boundaries to be restored in the next Democratic administration? (I'll put aside the equally interesting question of what would happen if a different kind of Republican were to follow Bush as President.) One possibility would be that a President Clinton or Obama would decide that it's payback time and do the same things in the other direction. If we regard Presidential politics as a repeat-player game, the expected strategy would be for a Democratic President to engage in his or her own "partisanization" of government for a short while, and then go back to respecting norms of reciprocal respect (such as selecting prosecution targets based on the severity of their alleged crimes, rather than their party affiliation or which party benefits---the true scandal of the US Attorney firings, if true). But even if this tit-for-tat approach works in the computer models, somehow in Presidential politics it seems unlikely to succeed. A new Democratic administration could come in and say it was going to respect the old norms, or it could ape the Bush tactics and further undermine those norms, but if it starts off doing the latter, it seems doomed to continue to do so.

Perhaps a third possibility would be for a Democratic administration to pay lip service to the old norms but in practice further undermine those norms. This is pretty much what the Bush administration has done. E.g., they deny that US Attorneys were fired for being insufficiently partisan in selecting targets and they deny that they pressured the Surgeon General to treat the health of the Republican Party as more important than the health of the nation. Eventually, the notion of following professional expertise in government administration may come to look like adherence to precedent under CJ Roberts (and arguably under his predecessors going back a long way): something that everybody praises and professes to practice but that they actually ignore.

The Bush Department of Education Tries to Gut Grutter Below the Radar Screen

Last month's decision in the voluntary public school integration cases purported to interpret rather than overturn Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action program in admissions. Moreover, Justice Kennedy's separate opinions in both Grutter itself and in the schools cases make clear that there are at least 5 votes on the Supreme Court to permit narrowly tailored programs of race-based affirmative action that aim to achieve and maintain student body diversity in law schools (and higher education more generally). Now the Bush Administration's Department of Education is trying to undermine that result indirectly.

In order to be eligible for federally backed student loans, a law student must attend an accredited law school. The Department of Education has long designated the American Bar Association as the accrediting body for law schools. Recently, however, the Bush Education Dept renewed the ABA's status as the accrediting body for only 18 months rather than the usual 5 years. The Education Dept is unhappy with (among other things) ABA Standard 212, which requires accredited law schools to make affirmative efforts towards student body and faculty diversity. The standard allows schools in jurisdictions (like California) that bar expressly race-based measures to comply through race-neutral means.

That's not good enough for the current administration, however. The Department of Education has pressured the ABA to change Standard 212 and from a certain perspective---albeit not mine---I suppose that could be defensible. Voluntary affirmative action, the Administration might say, should be voluntary. If an institution wants to pursue student body and faculty diversity, then it should be allowed to, but so long as affirmative action is not constitutionally required as a remedy for adjudicated past acts of discrimination---which it no longer is at any major American law school---a law school shouldn't be required to pursue diversity. Yet the ABA Standard, which has the de facto force of law via the Dept of Education's recognition of the ABA as the credentialing body for law schools, requires law schools to do just that.

That's a plausible position, but it's not the position of the Dep't of Education. Its pressure on the ABA is designed to make it hard for law schools to pursue diversity, not to make it voluntary. Under that pressure, the ABA now proposes to make bar passage rates an element of accreditation. (Read the details here.) Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end.

The proposed changes are objectionable in at least four ways. First, bar passage rates are a very crude measure of the quality of a legal education. Second, to the extent that the issue is consumer protection, simply publicizing bar passage rates should be sufficient to warn prospective students that admission into law school as a 1L does not guarantee admission into the profession after graduation. Third, under the pressure of US News rankings, law schools already have ample incentive to pay attention to their bar passage rates, so the pressure of the new standard would only be felt at those schools that fare poorly in those rankings and/or have made a commitment to taking a chance on students with weaker numbers notwithstanding the price they thereby pay in the rankings. So long as students know what they're getting into (see "Second"), there is no good reason to limit schools' flexibility to pursue such an approach to admissions. And fourth, whether accreditation ought to turn on bar passage rate should ultimately be a matter for the judgment of the legal profession and legal academy, not the ideologues of the Bush administration.

Contingent Fees Do Not Violate Separation of Powers, Period.

In a story in yesterday's NY Times, Adam Liptak reports on what he seems to think is a new phenomenon and a new objection to it. (You can read the story here if you have Times Select.) In states with limited enforcement budgets, Attorneys General have been awarding contingent fee contracts to private lawyers who sue violators of various legal obligations. In his opening example, Liptak notes that the Oklahoma AG struck such a deal with private law firms to sue poultry farms for polluting waterways. Overall, the story reads more like a talking points memo by the U.S. Chamber of Commerce than like Liptak's usually reliable news analysis.

Critics of the contingent fee practice say that it violates principles of separation of powers, either because it vests executive power in private parties or because it appropriates funds (the private lawyers' cut of a successful verdict) without the express consent of the legislature. These are very weak objections. The federal constitutional doctrine of separation of powers has no force in the states. Although most state constitutions have their own principles of separation of powers, most are weaker than the separation-of-powers principle applicable to the federal government. And that principle certainly would not bar this practice.

How do I know that? Well, for one thing, despite Liptak's belief to the contrary, this is not a new phenomenon. In a continuing tradition that pre-dates the American republic, private parties, called "relators," have been able to bring so-called qui tam actions on behalf of the government and recover part of the proceeds. These days, qui tam actions are brought to enforce the False Claims Act, but at the time of the Founding private suits, including even private criminal prosecutions, were brought to enforce a wide variety of legal duties. Moreover, we can think of much ordinary contemporary civil litigation---in which private parties sue in their own name---as private enforcement of public obligations. Indeed, there's a very common term for such cases. They're called "private attorney general" actions. There is no constitutional difference between, on the one hand, qui tam and private attorney general suits, and on the other hand, private attorney contingent fee cases, at least so far as derogations from executive power are concerned.

What about the claim that contingent fees to private lawyers infringe on the legislature's role in appropriating funds? This claim is equally silly, unless the legislature must individually approve all individual contracts of every sort. Of course, a legislature could pass a law forbidding contingent fee arrangements---or perhaps more sensibly, setting guidelines for them---but absent legislation, it's simply bizarre to think that the general principle of separation of powers forbids such arrangements. Bizarre, and yet one state supreme court, has accepted this argument. In 1997, in Meredith v. Ieyoub, the Louisiana Supreme Court held that the state constitutional principle of separation of powers bars the state Attorney General from entering into contingent fee arrangements unless specifically authorized to do so by the state legislature.

The Meredith case contains almost nothing that counts as analysis. (Don't believe me? Read the opinion yourself.) It simply equates a private firm's collection of its contingent fee with an appropriation, even though, of course, such funds do not come out of revenues raised by taxation. No other state high court has yet adopted the Meredith rule, but the Times article makes clear that lawyers are pushing it.

Whether government should hire private lawyers working on contingent fees, and if so, on what terms, is a difficult policy question that depends on many factors, including other available resources for enforcement. The Bush administration has barred contingent fee arrangements by executive order under the preposterous pretext that it is "protecting American taxpayers." This is a preposterous pretext because there is no reason to assume that contingent fee arrangements will always cost the government more than hourly wages paid to government employees. Indeed, one might think that conservatives and certainly the Bush administration---which has privatized such seemingly essentially governmental functions as fighting much of the Iraq War (as explored here)---would be enthusiastic about the idea of contingent fee arrangements for civil justice enforcement. After all, they bring the discipline of the profit motive to the government. But apparently privatization ceases to be a good idea when it results in too many businesses being made to comply with the law.

Whether hypocritically or not, the administration is entitled to eschew contingent fee arrangements for federal law enforcement, except where statutes like the qui tam provisions of the False Claims Act specifically require their equivalent. But that policy judgment is a far cry from the far-fetched constitutional arguments against contingent fee arrangements that Liptak and the Louisiana Supreme Court take seriously.

Fearing too much democracy

A few days ago, Mike posed the following question regarding Pakistan:

Is it possible to support the pro-democracy forces without risking the replacement of an autocratic but friendly regime with a fanatical hostile one?

My own initial reaction was that intense fear of that prospect, which Mike described as "terrifying," might often cause Americans to overestimate the actual risk. (Yes, John Edwards, I'm talking to you.) Now, over at Chapati Mystery, our colleague Sepoy goes a step further, arguing not simply that it is possible to support the pro-democracy forces without that feared outcome materializing, but that doing so in fact offers the best hope of avoiding it. His essay offers some useful background on the current standoff in Islamabad at the Lal Masjid (and in particular, its roots in the Islamization policies implemented during the 1980s by the last military dictator in Pakistan supported by the United States, General Zia ul Haq). The full post is well worth the read, but here's the punch line:

The strengthening of miltant forces in Pakistan - and their inward gaze - has not come from any radicalization of Pakistani society but from the incomplete operation of US forces in Afghanistan. The war in Iraq drained away any plan for a viable and functioning Afghanistan. The defeated troops carried their tribal allegiances back across the border into the Northern and Western regions of Pakistan - and turned their attention onto Pakistani state. Musharraf, busy consolidating the military’s dominion had no viable way of combating these tribes - he has no legitimacy. I could be writing an alternative version of this recent past, if democratic tendencies had actually been allowed to develop in Pakistan since 2001. You may call it ‘paradoxical’ but the only solution to de-Islamization of Pakistan is democracy - not the support of dictatorships.

* * *

While many western observers praise Musharraf’s brave decision to side with the United States, the truth is that it was a no-brainer for him. The majority of Pakistan’s population has long maintained a healthy distaste for the involvement of religious leaders into statecraft - taking perhaps as axiomatic Bulleh Shah’s old verse: Mulla tay mashaalchi dohaan ikko chiz / Loukan karday chananan, aap anhairae vich [The Cleric and the Light Bearer are both the same / Trying to illuminate others, but in darkness themselves]. The outpouring of support for the Chief Justice is just one indication that the country is hungry for relief - note, please note, that Chaudhry Iftikhar is not some bearded mullah with any agenda for Shari’ah implementation in Pakistan. And yet, that old canard is forever being bandied about that if given democracy, the insane mullahs will control Pakistan. The choice has never been between Musharraf and the Mullah or the Mosque and the Ballot. The truth is that there never has been any choice. And the Pakistani public demand a choice. And they can be trusted to make the right decision just as much as any other citizen in any other democracy in any nation of this world [cf. 2000 and 2004, United States of America.] [link]

Pakistani military analyst Dr. Ayesha Siddiqa, author of the recent book "Military, Inc.," offers a related perspective here.

(Oh, and that photo at the top of the post? It's not from yet another stop on the Chaudhry yatra, but rather from a 100,000 person rally in Karachi against the Lal Masjid clerics back in April.)

Is it Possible to Teach the Meaning of Precedent in the Era of the Roberts Court?

In an insightful article in the 1996 Michigan Law Review, Harvard law professor Carol Steiker argued that the Burger and Rehnquist Courts had made their peace with the liberal criminal procedure precedents of the Warren Court by maintaining their form and in some cases even extending them, but rendering them mostly toothless through a variety of procedural devices. (The article is Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466 (1996), available at Hein, WestLaw and Lexis, but only by subscription). Here is Steiker's own summary of her thesis:

The Burger and Rehnquist Courts have not altered radically - and indeed, occasionally have bolstered - the Warren Court's constitutional norms regarding police practices. The edifice constructed by the Warren Court governing investigative techniques under the Fourth, Fifth, and Sixth Amendments remains surprisingly intact. Rather than redrawing in any drastic fashion the line between constitutional and unconstitutional police conduct, the Supreme Court has revolutionized the consequences of deeming conduct unconstitutional. This revolution has not taken the form of wholesale abolition of the Fourth Amendment's exclusionary rule, or the Fifth or Sixth Amendments' mandates of exclusion; rather, the Court has proliferated a variety of what I would term "inclusionary rules" - rules that permit the use at trial of admittedly unconstitutionally obtained evidence or that let stand criminal convictions based on such evidence. Examples of "inclusionary rules" are the doctrines regarding standing, the good-faith exception to the warrant requirement, the "fruit of the poisonous tree," impeachment, harmless error, and limitations on federal habeas review of criminal convictions.

I want to suggest that the emerging modus operandi of the Roberts Court will make the Burger and Rehnquist Courts look like pikers when it comes to below-the-radar counter-revolution. For one thing, the Roberts Court is not going to limit itself to criminal procedure or any discrete area of the law. For another, the Court has added a new technique: now the ascendant conservative majority does not even acknowledge that what it is doing is completely inconsistent with prior liberal precedents, thus at least requiring at least a new exception; rather, the new technique is simply to assert fidelity to the prior precedents and then rule the opposite way.

Here I want to register a parochial complaint against this particular brand of what is charitably called minimalism: It's going to make it hard to train new lawyers about what it means to reason from or even follow precedent. Suppose I gave students an exam question in which they were asked whether a federal statute banning partial-birth abortion was valid if it contained no health exception, or if federal campaign finance regulation were valid if it limited union- and corporate-funded speech that mentions specific candidates during an election period. Prior to this year's cases, the answers would obviously have been no and yes, respectively. If a student wrote that the existing precedents were wrong and cogently offered reasons for overruling them, then, whether or not I agreed with the student's bottom line, that would earn her a good grade (assuming I didn't set the case in a lower court), but if she gave the answers yes and no, respectively, as the Court did this past Term, while not arguing for overturning the earlier precedents, I would have to give her a very poor grade. Indeed, I wouldn't even ask such ridiculously easy exam questions because the most important skill students acquire in law school is the ability to distinguish hard from easy questions. An easy question does not permit students to show off their legal reasoning skills. In getting easy questions wrong, the Roberts Court makes it nearly impossible for us law teachers to demonstrate the difference between easy and hard questions.

A Film Recommendation AND A Title VII/ADEA Question

That's right. 2 for the price of 1. First the film rec: El Método (imdb page here) is a wicked little Spanish film (originally a play) that was released in Spain in 2005 but only now is hitting the U.S. arthouse circuit (with English subtitles). The plot outline is simple enough: 7 finalists for an exec job with a Madrid firm in an unspecified industry, with the winner to be determined by an unspecified tournament that is a cross between an episode of Survivor and the Milgram experiment.

And now the Title VII question (modest spoiler alert): At one point the 6 then-remaining applicants are asked to imagine themselves in a post-nuclear holocaust bomb shelter that can accommodate 5 people for 20 years. Whom do they exile? They are further told that each applicant must make an argument for staying in the shelter based on his or her "demonstrable" skills. Their c.v.'s are then shared. The group quickly allocates 3 slots, leaving a competition for the remaining 2. A woman who appears to be in her twenties says that her demonstrable skill will be mothering their children. (Nobody seems to notice that this will violate the only-room-for-5 rule as the kid grows up but it would be churlish to make much of that point.) At that point, the other woman in the group says that she can provide the same service (she had earlier said she could cook, but as this skill was not on her c.v., it was discounted). She is challenged on this point in light of the fact that she is over 40, and she is eventually voted off the island.

While packing up her briefcase, the forty-something woman makes clear that she resents having been rejected for the job by her fellow applicants because of her sex and age. One of the other applicants denies that this is true, claiming that she was booted out of the bomb shelter because she failed to make persuasive arguments. So now the question: Suppose this occurred in the U.S. Title VII and/or Age Discrimination in Employment Act (ADEA) violation?

My instinct is pretty clearly yes. Even though the company itself did not employ a sex-based selection device, it delegated power to the applicants, who proceeded to do just that. The idea that she lost because she couldn't make a persuasive argument completely overlooks what she was asked to make an argument about: her worth as a human being notwithstanding her at-best-limited capacity for pregnancy. Note that while the Pregnancy Discrimination Act prohibits discrimination against pregnant women rather than discrimination on the basis of pregnant/non-pregnant status, it does so because of the link between pregnancy discrimination and sex discrimination. I'm quite comfortable saying that discrimination against infertile women but not infertile men is sex discrimination and thus illegal (unless fertility is a BFOQ, as it would be if the job were, say, gestational surrogate but little else). This is also pretty clearly age discrimination prohibited by the ADEA.

But who knows? If people complaining that they may have been subject to illegal secret wiretapping lack standing to complain because they can't show that they were in fact wiretapped--because the wiretapping is SECRET -- then one can't rule out the possibility of our beloved federal courts reaching all sorts of other counterintuitive conclusions.

Interrupt the Pardon?

The controversy over the Libby commutation raises a question that has been with us from the framing of the Constitution: Does the vesting of the pardon power in the President lead to corruption, as Presidents use it---or the lesser included power to commute a sentence---to reward their friends and cronies? The issue is all the more acute since the 22nd Amendment ensured that second-term Presidents would pay no direct political price because they know they don't have to face the voters.

By way of comparison, it's worth noting that many states have gone away from the traditional system whereby the Governor in his or her discretion grants clemency, and towards vesting the power to grant clemency in a Pardon & Parole Board. Even in states where the Governor maintains the nominal power to pardon or grant clemency on his or her own motion, that power is often not exercised so as to avoid "politicizing" the process. Indeed, even at the federal level, pardons are generally handled through the Office of the Pardon Attorney, except of course, when they're not.

It's clear from Article II and Supreme Court precedent that the President has the power to pardon on whatever grounds he deems appropriate, regardless of the criteria and advice of the Department of Justice. Only a constitutional amendment could eliminate or curtail this residual discretionary power. I don't kid myself that such an amendment is in the offing, but it's worth asking whether it would be a good idea if possible.

On the plus side, taking politics out of the pardon/clemency process would foster fairness and prevent lame duck Presidents from abusing the power to undermine independent prosecutions. On the minus side, there are probably some worthwhile pardons that would not satisfy any generally desirable criteria and are such hot potatoes that ONLY a President can take the heat for them (whether or not he's a lame duck). Ford's pardon of Nixon was, in retrospect, probably an example. On balance, that's not enough to justify our current system, so count me as mildly favoring tinkering with the pardon power if and when there's a Constitutional Convention.

The (Im)Practicality of a Rape Exception

My FindLaw column for next week will tackle the subject of the "rape exception" that some abortion opponents would recognize to a proposed abortion ban. This exception provides a useful opportunity to glimpse what pro-life advocates find objectionable about abortion.

One aspect of the rape exception that I will not discuss in the column is the practicality of such an exception, assuming that one favors it in principle. If only rape victims are allowed to have an abortion, many women who are desperate to terminate an unwanted pregnancy will feel forced to lie and say they were raped. One could respond to this "moral hazard," of course, by requiring a woman to report to the rape to the police before she may terminate on that basis. As everyone knows, however, rape victims often choose not to report the crime because of the stigma and humiliation associated with victimization and the often-callous treatment they face as they navigate the criminal justice system. The result of requiring a report would therefore be to drive rape victims away from a desired abortion -- at least by a lawful practitioner. Perhaps some abortion opponents would find this consequence tolerable, but for those who think the "rape exception" is a workable compromise, such pragmatic realities might lead them to think again.

While on the subject of abortion, rape, and women's freedom, I recommend that readers check out Professor Kim Yuracko's review of my book, When Sex Counts: Making Babies and Making Law, which appears today at the FindLaw site.

Of Revolutions, Then and Now

During the period of July 4 -14, it seems appropriate to reflect on an all-too-common pattern followed by popular revolutions against rotten regimes: after the old regime is toppled, the various factions that overthrew it begin to fight among themselves, often with the least democratic faction prevailing. That is certainly how things played out in the French, Russian and Iranian revolutions, with the American revolution of 1776 standing as a rare exception. How to prevent this path is of more than theoretical interest now that nuclear-armed Pakistan appears to be under siege from several sides: tribal revolts in the hinterlands, an Islamist challenge in Islamabad (and elsewhere), and a movement for democracy and the rule of law among those who rightly object to the regime's treatment of the judiciary. Is it possible to support the pro-democracy forces without risking the replacement of an autocratic but friendly regime with a fanatical hostile one?

The Bush administration pretty clearly thinks not and is thus, as documented here in prior posts by Anil Kalhan, supporting Pervez Musharraf to the hilt. There is a conspiracy theory floating about that Musharraf has manufactured the Red Mosque crisis to quiet any Western criticism of his handling of the Chaudhry issue by reminding us here that, well, apres Musharraf, le deluge. But even if the immediate crisis is manufactured, the risk of an Islamist government coming to power in Pakistan should Musharraf fall---or even should he peaceably step aside for free elections---is real and terrifying.

Nonetheless, the U.S. track record of backing friendly autocrats to stave off unfriendly totalitarians (whether Communist or Islamist) is not good. The friendly autocrats tend to lose power anyway, and the resulting regime then has one more reason to hate us. I'm not suggesting that U.S. foreign policy should have, as an official aim, the removal of Musharraf. I am suggesting that we might want to moderate our support for him and that all of our foreign policy options here are very risky. This would be a hard job even for a competent administration.

When in the Course of human events . . . .

In honor of the Fourth of July, I commend to my readers the Declaration of Independence. Yes, its fine language about equality must count as rank hypocrisy, written and consented to, as it was, by slaveholders, but one can nonetheless see clearly in the broad language and the specific grievances the skeletal charter of a quite attractive liberal democratic regime. Indeed, some of the grievances against George III are eerily relevant to our own time and our own regime headed by a man named George. To wit:

. . . He has affected to render the Military independent of and superior to the Civil power.
. . . For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
. . . For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments . . . .

Happy Independence Day (to readers in/from the U.S.).

NPR Roundup

Nina Totenberg's (excellent) Supreme Court roundup piece for NPR's Morning Edition is now available (in both audio and a transcript) here. Totenberg talks with a lineup of some of the usual academic (and other) talking heads (including yours truly).

Meanwhile, if you somehow missed my shameless self-promotion over the last few days, you can find the Talk of the Nation story here, and last week's All Things Considered story on executive privilege here.

Ted Olson, the Attitudinal Model, and Me

During our Talk of the Nation segment yesterday, Ted Olson repeatedly returned to the theme that the labels "liberal" and "conservative" over-simplify the various positions taken by the various Justices on various issues, a point with which I agree. Indeed, if you listen to the full show, you'll hear that I actually made this very point in response to the first question I was asked, even though Olson then proceeded to "disagree" with my supposed claim that such labels are fully accurate (although he otherwise agreed with most of my analysis).

Nonetheless, Olson turns out to be right that we disagree about the accuracy of the terms liberal and conservative. We disagree about the degree to which political labels over-simplify. Olson said that the Court's decision in FEC v. Wisconsin Right to Life, Inc. could be characterized as liberal because it upheld a free speech claim, even though the 5 most conservative Justices were in the majority and the four most liberal Justices were in dissent. There is something to this point: The issue of campaign finance reform tends to scramble political alliances, or at least tends to scramble politics on the liberal/left. The ACLU, the unions, and some NGOs that engage in considerable political speech oppose campaign finance limits, while more "left" as opposed to "liberal" organizations and "good government" groups tend to support such limits. But if Olson's point was that the Justices have jurisprudential rather than merely political commitments, he chose a very peculiar case to make the point. For note that on the very same day that the Court split 5-4 to uphold the speech claim in FEC v. Wisconsin Right to Life, it split 5-4---with the same 5 and the same 4---to reject the free speech claim in Morse v. Frederick (the "Bong Hits 4 Jesus" case). I don't want to say that the results (or the dissents) in the two cases are irreconcilable, but the mirroring of the two cases does sorely test Olson's claim that what we really have here are nine Justices with differing levels of commitment to the principle of free speech. If so, how do we account for the fact that all 5 of the Justices in the majority were more protective of speech in Wisconsin Right to Life than all 4 of the Justices in the dissent, but that the same 5 were less protective of speech in Morse v. Frederick than all 4 dissenters? Isn't it much more plausible to attribute the outcomes in these cases to the overall ideological leanings of the Justices? That is, after all, what the large-n statistical studies of the Court consistently say.

To be clear, as I have noted in my academic work, the so-called "attitudinal model" of Supreme Court decision making---which says it's basically all just politics up there---is an over-simplification. There are actual jurisprudential debates that don't neatly track political ones, and Justices (of all ideological persuasions) do bow to clear law that goes against them. So I agree with Olson that the labels "liberal" and "conservative" leave out important nuances. But as anybody paying attention can plainly see, such labels do capture a great deal of what is going on.

It's Not About Scooter; It's the Other Inmates

I'm possibly one of the few liberals who agrees with President Bush that "the prison sentence given to Mr. Libby is excessive." Two and a half years in prison is a lot of time for a non-violent crime. The problem is not Bush's decision to commute Libby's sentence; it's his failure to take similar action for the federal inmates serving still longer sentences for nonviolent offenses, especially drug offenses. It's also not obvious that Libby should do no time at all. In other words, Bush may have been right (inconsistency aside) to reduce Libby's prison time but wrong to reduce it to zero.

Of course there's another dimension to this case: the suspicion that the Libby commutation was a reward for his keeping the administration's secrets (thus far and into the future). But for that offense, Libby was only ever going to be the fall guy.

Radio Update - Updated Again!

I'm still not sure when my phone interview with Nina Totenberg will air, but the Talk of the Nation website now has audio for the live program I did this afternoon (with the host, Totenberg again, and Ted Olson). Listen to it at this link.

Meanwhile, for my post tomorrow, I'll have a reaction to the question---raised by Olson, Totenberg, a caller, and (though none of them seemed to notice, first by) me---of whether we should be using the labels "liberal' and "conservative" to describe the current Justices.

Liberty vs. Equality

My FindLaw column for today describes the difference between the majority and dissent in Parents Involved in Community Schools v. Seattle School District No. 1 as playing out the tension between the "anti-caste" and "color-blind" principles of Justice Harlan's dissent in Plessy, with Justice Kennedy straddling the divide. I link these respective positions to egalitarian and libertarian conceptions of anti-slavery. Although I don't put the point quite this way in the column (because of the nature of the audience), I might have also associated these respective views with the "anti-subordination" and "anti-discrimination" understandings of the Fourteenth Amendment. I suggest that there is no clearly right answer in a debate between these pairs of principles, but I nonetheless conclude that the Parents Involved dissent has the virtue of leaving this unanswerable conundrum to the democratic process.

Here I want to respond to an objection I anticipate from those who favor the color-blind/libertarian/anti-discrimination side of this debate. The objection goes like this:

You people on the other side of this question are full of it. You don't believe in judicial restraint in other contexts. Indeed, you don't even believe in judicial restraint in this context. If you had the votes you would impose your own views in the name of the Constitution.

To which I respond:

1) Don't blame me. I actually prefer a version of the anti-discrimination principle to the anti-subordination principle. See my article on the subject here.

2) Actually, it really isn't true that the anti-subordination folks have simply beat a tactical retreat. They did not say that race-based affirmative action by institutions with no prior history of race discrimination was constitutionally required, nor did liberal Justices ever push hard for a constitutional rule that would have treated racially disparate impact as triggering some sort of heightened scrutiny. The charge that the liberals don't care for judicial restraint more generally is certainly true, but that's true of the conservatives too. So the name-calling is a wash.

Dorf on (the) Radio

I'll be on NPR's Talk of the Nation live today from 2 to 3 Eastern time, discussing the recently concluded Supreme Court term. I'm also recording a shorter segment on the same subject with Nina Totenberg for use in one of the NPR news shows. (I'll post links to the actual sessions once they're available.) Some sort of plague must have struck constitutional law professors, leaving me the only one available for NPR these days. ;-)

Is Politics Like Making a Child Custody Decision?

The current issue of The New York Review of Books includes a wonderful (which is not at all to say "positive") review of the latest books about Hillary Clinton (A Woman in Charge by Carl Bernstein and Her Way by Jeff Gerth and Don Van Natta Jr.) Early in the piece, the reviewer, Michael Tomasky, asks a rhetorical question that Democrats who support a candidate other than Clinton on the ground that she can't win because she starts out with high negatives:

After an unprovoked war built on lies, the deaths of tens and possibly hundreds of thousands of Iraqi civilians, illegal domestic spying, government-sanctioned torture, the indefinite incarceration of suspects, a scandal surrounding efforts by the nation's highest-ranking law enforcement officer to install prosecutors willing to undertake blatantly political prosecutions, and astonishing tales of congressional corruption, is it not at least demeaning and superfluous to be presented with one-thousand-plus pages revisiting such questions as how many hours of billable work Hillary Clinton actually performed for Madison Guaranty?

The answer, of course, is of course. It's not just demeaning. It's also insulting. If Clinton ends up as the Democratic nominee, and if she ends up losing the general election because some number of voters who find her otherwise more qualified than the Republican nominee vote against her because they are turned off by the largely bogus scandals of the 1990s, that will be a profound failure of democracy.

Still, what are Democratic caucus and primary voters to do? If you support another candidate because you think that other candidate would make a better President than Clinton, there is no issue. But suppose you think that Clinton is actually best for the job but you worry that for a variety of bad reasons---including sexism as well as Clinton fatigue---the general electorate would be more likely to vote for some other Democratic nominee than for Clinton, and that this could be the difference in the overall race. Should you therefore support this other Democratic candidate?

In part, this is simply the familiar issue of electability. I do not mean to suggest that it's never legitimate to consider electability in deciding whom to nominate. But where electability tracks affirmatively bad reasons, we might worry about the Palmore v. Sidoti factor. In that 1984 case, the Supreme Court ruled that a family court judge could not choose to award custody to a single-race couple over a mixed-race couple on the ground that a child raised by the latter would face racial prejudice. To do so, the Court said, would be to adopt that very prejudice. To make the issue as sharp as possible, suppose that you think Clinton (or Obama) is the best candidate on the merits but you also think that if she (or he) got the nomination, enough voters would go for the Republican on sexist (or racist) grounds to tip the election. Could you in good conscience decide to support a different candidate (Edwards, say), without thereby effectively acting as a conduit for sexism (or racism)?