Out of Gitmo and Into Legal Limbo?

Under the headline, "U.S. Planning Big New Prison in Afghanistan," the NY Times reported today that, well, the U.S. is planning a big new prison in Afghanistan. The prison would hold Taliban an al Qaeda fighters from Afghanistan and elsewhere. It also could be use to hold prisoners now at Gitmo, should the U.S. close the prison there. According to a Pentagon spokesperson quoted in the story: "The driving factor behind this is to ensure that in all instances we are giving the highest standards of treatment and care.”

Perhaps, but let me suggest another possibility: If the government loses the Boumediene case, and the Supreme Court holds that Gitmo detainees are constitutionally entitled to habeas corpus because of the de facto sovereignty the U.S. exercises over Gitmo, the only way for the government to hold foreign captives without risking interference by a civilian court would be to hold them in a facility that is unambiguously located in the territory of a foreign sovereign. Hmmm.

Posted by Mike Dorf

The California Ruling and the Presidential Election

A few hours ago, the California Supreme Court ruled that the California Constitution protects the right of same-sex couples to marry. I haven't read the entire opinion yet, but it's crystal clear from what I have read that the Court relied only on the California Constitution, and not the U.S. Constitution. Because state high courts are the final authority on the meaning of state law---including state constitutional law---there is no way this case will go to the U.S. Supreme Court. The federal issues it raises involve what respect other states will owe California same-sex marriages (in light of the federal Defense of Marriage Act and the Full Faith & Credit Clause of the federal Constitution's Article IV), but those issues are not present in this case, and are no different from the ones raised by the Massachusetts ruling in Goodridge in 2003.

Apparently one can't (yet) be a serious candidate for President and say that one thinks same-sex marriage should be legal, but I'm not running for any office and so I'll say it here. Indeed, I'll go further and say that the Equal Protection Clause of the Fourteenth Amendment, best understood, forbids states from denying same-sex couples the right to marry for the same sorts of reasons that it forbids states from denying inter-racial couples the right to marry. As far as I'm concerned, the arguments advanced against same-sex marriage conflate religious and civil recognition of marriage or rely on ugly and false stereotypes of gay, lesbian and transgendered persons. The best that can be said for these arguments is that they typically are not arguments at all but stipulations: "Marriage is defined as the union of a man and woman" is no more an argument than is "marriage is defined as the union of a man and woman of the same race." It's the very definition that equality proponents challenge, and so reasserting it doesn't meet the objections.

Nonetheless, many hard-working Americans apparently disagree with me and the rest of the egghead class on this point, and that itself might be a reason for courts to go slow. Justice delayed may be justice denied, but justice rushed could be backlash accelerated. A state or U.S. Supreme Court Justice who said something like the following would be making a respectable point: "In my view, it's clear that prohibitions on same-sex marriage violate core principles of equality, but my conception of equality must be informed by the people living in the society around me, and those people are comfortable with discriminating on the basis of sexual orientation with respect to marriage." I'm not saying I would agree with such a ruling. I wouldn't. But it would be vastly preferable to an opinion actually rationalizing laws that deny the right to marry to same-sex couples. (Having skimmed the dissent in today's case, I can say that it's somewhere in between.)

But I digress. It would be more than a shame if the American people again became enflamed by this issue again, which may explain the Democratic strategy of waffling. Here's what Senator Obama said when he voted against a proposed constitutional amendment banning same-sex marriage:

I personally believe that marriage is between a man and a woman. But I also agree with most Americans, including Vice President Cheney and over 2,000 religious leaders of all different beliefs, that decisions about marriage should be left to the states as they always have been.

That was actually the same position that Senator McCain took: It's up to the states. He said:

The constitutional amendment we're debating today strikes me as antithetical in
every way to the core philosophy of Republicans. . . . It usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them.

Let's see how long this consensus that the definition of marriage is a matter for state law lasts.

Posted by Mike Dorf

PHI WiFi RIP

It's easy to read too much into the news that Earthlink will pull the plug on its Philadelphia WiFi network, once heralded as the future of internet connectivity. Free marketeers will say that this failed experiment shows the folly of government efforts to pick winning technologies. And they'll be wrong---or at least they'll be overstating their case greatly. In a great many areas, the government provides (either free or on a subsidized basis) the infrastructure on top of which private enterprise runs: roads, sewers, sanitation, fire protection and many other services can be---and at various times in various places have been---privately provided, but national, state and local provision of such services have also been extraordinarily successful.

All technologies eventually become outdated. The Roman aqueducts were a marvel of public engineering. The fact that modern cities typically use underground pipes as a means of obtaining their water hardly shows that the Romans made an unwise investment in aqueducts. Likewise, if, in a future as envisioned by Gene Roddenberry, teleportation replaces ground transportation as the principal means of travel on Earth, that will not mean that the orphaned roads will have been a failure. It will only mean that their time has passed.

The problem with municipal WiFi, by contrast, seems to be that its time never was. Limitations of the technology made it suboptimal. But that need not remain true forever. In the long run, wireless communications---whether bouncing off satellites or terrestrial relay stations---has at least one enormous advantage over any technology that requires hard-wiring: mobility. Just ask anybody under the age of 30 for his or her "home telephone number" for confirmation of this fact: Although land lines still deliver much higher quality sound, Generations Y and Z rely almost exclusively on mobile phones.

The free marketeers have a point, of course: In periods of rapid technological change, neither the government nor any single individual or firm can be counted on to successfully pick winners and losers. The problem with municipal WiFi was not that the government acted but that it acted too soon, before it became clear what the best means for connecting people to the Net was. Ten years from now, however, municipal, statewide or even national wireless internet service provision may be a much better bet.

Posted by Mike Dorf

Genes and Denial

My latest FindLaw column is about the Genetic Information Nondiscrimination Act (or "GINA"), which has passed both the House and the Senate, nearly unanimously, and now awaits the President's likely signature. In the column I discuss how unusually uncontroversial a path this legislation has taken by comparison to other nondiscrimination measures in the past. I propose that GINA places us in the position that John Rawls proposed for the creation of just rules: behind a veil of ignorance.

In this post, however, I want to focus on a different aspect of discrimination that is difficult to defeat: the role of denial. When healthy, wealthy, and wise people choose to spend their time with other people who are similarly blessed, they may do so in part to deny the reality of their own vulnerability to hardship and misfortune. Confronting the reality -- by being around people who have suffered -- makes more challenging the belief that everything works out for the best or that we will not have to face such painful circumstances. In a sense, such denial is a necessary component of survival -- if we were to feel a constant awareness of all that could go wrong and all of our vulnerabilities, we might feel too depressed to function. To the extent that seeing or spending time around the reality of suffering makes a healthy denial more difficult to sustain, we prefer to render the unpalatable reality invisible, often through discrimination.

Taking out insurance is, of course, to some degree, a crack in the foundation of denial. If we were truly sure that "that couldn't happen to us," then few people would want to spend their money on insurance. Yet most of us want to have insurance of all kinds and thereby evidence our covert recognition of realities that we otherwise choose to ignore. Interestingly, research suggests that some people construct insurance, irrationally, as a way to ward off the possibility of the undesired event occurring.

In the case of our genetic information, we aid in our own denial project by failing to be tested for genetic conditions. Yet at the same time, we tacitly acknowledge that our genes may have a prophecy of misfortune to reveal, by supporting legislation that protects against discrimination on the basis of flaws in our DNA. This raises at least one difficulty for those who have promoted GINA. If we are hoping --as some have said -- that more people will seek genetic testing once they are protected from discrimination on the basis of test results, we may be disappointed when people continue to avoid testing, to fortify their own denial, notwithstanding the legal shield. Many of us, in other words, may choose not to go to the Oracle of genetic information because we truly do not wish to "know ourselves" in all of our vulnerability. In that event, though GINA will have had the salutary effect of protecting people from an invidious (though financially quite rational) form of discrimination, it will not and perhaps cannot make us seek out the genetic information that could dash all of our hopes and dreams of invincibility.

Posted by Sherry Colb

Justices Scalia and Thomas Go to the Mat

Yesterday's largely inconsequential Supreme Court decision in Gonzalez v. United States confirms (once again) that Justices Scalia and Thomas are not simply conservatives. Each one has what we might describe as a Hillary Clinton-esque willingness to fight every conceivable battle as though it were Armageddon.

In a 1989 case, Gomez v. United States, the Supreme Court held that the Federal Magistrates Act did not permit a magistrate (rather than a life-tenured Article III judge) to preside over jury selection ("voir dire") in a federal felony case, absent the defendant's consent. Two years later, in Peretz v. United States, the Court held that the Act and the Constitution do permit a magistrate to preside over such jury selection if the defendant does consent. Yesterday's case raised the interstitial question of whether the consent necessary to validate the magistrate's role must be obtained directly from the defendant, or whether it is permissible for defense counsel to consent to a magistrate's conduct of jury selection on her client's behalf. Writing for everyone other than Justices Scalia and Thomas, Justice Kennedy said that this was the sort of tactical decision that was in the core of the lawyer's expertise, rather than the sort of "fundamental" issue (such as whether to plead guilty) that must be made by the client.

The stakes in Gonzalez appeared to be pretty darn low. Did the case look more like Gomez or Peretz? One might quibble with the majority's resolution of that question, but surely the issue must rank as fairly unimportant in the vast majority of criminal cases. And yet, to judge from the tone of the two separate critical opinions, one would have thought the sky was falling.

Justice Scalia---who agreed with the majority's resolution of the case---only concurred in the result because Justice Kennedy's opinion used what Justice Scalia regards as a dirty word: "fundamental." Justice Scalia doesn't know how judges are supposed to decide what trial rights are "fundamental" other than by consulting their own consciences, which is, in his book, a no-no, because that's how they decided that contraception and abortion are "fundamental" rights.

With respect, let me suggest that Justice Scalia is taking his own talking points too seriously. I get the objection to the Court recognizing unenumerated rights for purposes of substantive due process. I don't agree, but I understand the worry. But surely if there is any place where federal judges are qualified to "make up" the law, it's when the law consists of procedures to govern criminal trials in federal court. And in this particular case, of course, the majority isn't even blocking legislative action. If Congress wants to stop lawyers from consenting to magistrate-supervised jury selection, it can do so by amending the statute. That's why Justice Scalia concurred in the result, after all.

If Justice Scalia confused yesterday's decision with Roe v. Wade, Justice Thomas showed, once again, why he is the least practical Justice. He thinks that Peretz itself---the case that said a defendant can personally and expressly consent to magistrate-supervised jury selection---was wrong as an interpretation of the Federal Magistrates Act. He nominally acknowledges that if Peretz is wrong, Congress can fix the problem by amending the law, and that therefore stare decisis should be particularly strong in this case. Nevertheless, Justice Thomas thinks that Peretz is so clearly wrong that he cannot follow it.

Why is that impractical? Because stare decisis is a rule that reflects the cooperative nature of judicial decision making. In order for the Court's precedents to create stable, predictable law, they have to bind the members of the Court who disagree with them, at least prima facie, because in any given case, different Justices will have different views about how to decide the matter if everything is up for grabs. Yet Justice Thomas appears to attach very little weight to precedent (a point Justice Scalia often makes in explaining the differences between their respective judicial philosophies). Justice Thomas can get away with treating everything as up for grabs only because he is the only sitting Justice who takes such a view. A Court packed with Justices who gave so little weight to precedent could barely function.

Posted by Mike Dorf

Dreams & Nightmares

As it becomes increasingly clear that Senator Obama will be the Democratic nominee, speculation will focus---as it inevitably does between the primaries and the convention---on who his running mate will be (and who Senator McCain's running mate will be). Obama will be under considerable pressure to offer the slot to Senator Clinton, as a means of healing the rift that the primary contest opened between their supporters.

The arguments against a so-called "Dream Ticket" are strong: 1) Clinton probably doesn't want the VP job; she doesn't need it as a stepping stone to the White House; the best reason for her to take it would be the hope that the ticket would lose in 2008, so that she'd be well positioned for a run in 2012, rather than having to wait until 2016; if so, Clinton might take the slot and not campaign with full vigor, which is a reason not to pick her; 2) Clinton has very high negatives, so that adding her to the ticket would energize Republicans and turn off independents; 3) Part of the argument for Obama is that he can tie McCain to the Bush Iraq war because Obama opposed it early on. Pairing him on the ticket with Clinton undermines Obama's ability to make that argument. 4) Despite the trope of "change" versus "experience," neither Obama nor Clinton (nor McCain for that matter) has any substantial executive experience, which argues for picking a governor. 5) Clinton doesn't help with a potential swing state in the way that, say, Jim Webb might help Obama carry Virginia.

So there you have a whole lot of conventional wisdom. And yet, I wouldn't bet a lot of money against an Obama/Clinton ticket. The traditional role of the VP candidate is attack dog and if the last 6 weeks have proven anything, it's that Hillary Clinton can play that role effectively. Plus, once Clinton fully realizes she's not getting the No. 1 slot on the ticket, she's going to look at the damage she has done to the Democratic Party and herself, and realize that the best way to undo that damage is through a gesture that allows her to claim she was never trying to be racially divisive; she was only pointing to the uncomfortable fact of existing racial divisions; she can then offer herself as a bridge-builder, and potentially bring her supporters along. To be sure, vigorous campaigning by Clinton for an Obama-led ticket that does not include her could also have this effect, but not in as large a degree.

Those are reasons why Clinton might sincerely want to take the VP slot if offered. But what does Obama gain by offering it? Many of the Clinton supporters who have told exit pollsters that they would support McCain in the general if Obama gets the nomination will likely change their minds between now and November, especially those that usually vote Democratic. But some won't, and Clinton's presence on the ticket will bring some of them around. It's also quite likely that the economy will be a more important issue for voters than the war (although obviously they're related; the expenditure of dollars in Iraq limits options at home). An Obama/Clinton team could be very effective on economic issues.

There is also the Rovian truth. Turdblossom showed that you can win general elections by doing just enough to stay viable for independents while massively mobilizing your base. I have a hard time believing that an Obama/Clinton ticket would not lead to huge voter turnout for Dems---especially given its historic nature. True, it will also inspire Republican turnout, but given the way turnout has been going in the primaries (even when the Republicans still had a live contest), and given the fundamentals, turnout has to favor the Democrats.

Bottom Line: I have no idea whom Obama will name as his running mate, but I no longer think the "Dream Ticket" is a crazy idea. The bigger Hillary's victory in West Virginia, the more likely it becomes, so long as she stays in her more restrained mode of campaigning (i.e., directs her fire at McCain). Of course, I'm a lawyer and law professor, not a politico, so what do I know?

Posted by Mike Dorf

Was the Long Primary Fight Inevitable?

With press coverage of the Democratic presidential intramurals (finally) recognizing the impossibility of a Clinton nomination, the post mortems have begun in earnest. Today's New York Times Week in Review section includes a discussion of the argument that this will all turn out to have been good for Obama, by ____ (fill in the blank with: toughening him up, forcing him to be more of a populist, etc.). A friend, however, recently sent me an email suggesting a more fundamental question about the nominating process: "Did the Democrats set up a situation that couldn't be resolved until very late in the primary season?"

The arguments for this conclusion are pretty convincing. The Republican primaries and caucuses were to a large degree winner-take-all, while the Democrats use a system of proportional representation all but guaranteeing that multiple candidates will receive at least some delegates. In addition, the winner of the popular vote in some states receives less than his or her proportional share of delegates. (The oddest of these was Texas, with its "primacaucus" hybrid, by which Obama ended up with a majority of the delegates even though Clinton was the winner of the popular vote in the early March primary.) That alone suggests that getting to over 50% in delegate count probably could not happen until quite late in the process. Add in the mysteries of the superdelegates and the Michigan and Florida messes, and you seem to have a recipe that assures a long process with no clear winner.

Why, then, was I as surprised as almost everyone else by how long this nominating fight has dragged along?

The easiest answer, of course, is recent history. There has not been a seriously dragged out nominating fight for either party in many years, so people assumed that these battles had been relegated to discussions in political science seminar rooms. There are, however, explanations with a bit more content.

First, the real contest in running for president before the primary season officially begins has become the so-called money primary. Locking up the big donors (and thus the best advisors and consultants, and inevitably the most prominent endorsements) can turn an apparently drawn-out process into a pro forma exercise. Indeed, the entire early Clinton strategy was based on making her candidacy look so formidable that it would be foolish to donate to anyone else. It was all supposed to be over by Super Tuesday.

Note that this script played out almost exactly as planned. The surprises were Obama's emergence and Clinton's refusal to walk away. Had there been no Obama phenomenon, it seems pretty clear that all of the narratives about Edwards's well-meaning-but-quixotic candidacy, Biden's gaffe-in-waiting candidacy, Kucinich's pointless-but-at-least-his-wife-is-good-for-reaction- shots candidacy, etc. would have played out exactly as planned for Clinton. Her ex post disastrous presumption that she could wrap it up by early February would have been confirmed as brilliant political maneuvering. Indeed, as late as early February, I was telling friends that I simply could not see how Clinton could lose, no matter how weak she was turning out to be as a candidate. Like many people, I didn't see the Obama candidacy's popular -- and especially nontraditional financial -- potency.

Once that emerged, I doubt that anyone could have predicted that Clinton would refuse to give up for as long as she has. Like virtually every candidate from both parties in all recent election cycles, Edwards dropped out when the writing was on the wall but well before he had to do so. People have been pointing out for months that Clinton simply did not have a prayer other than to hope for (and to help create) a melt-down of her opponent's candidacy. Hoping for disastrous missteps by front-runners is as American as uncounted ballots, but no one prior to Clinton in '08 ever showed the willingness and ability to keep going for this long.

Finally, I was surprised by the change in voter psychology this year from "go with the winner" to "rally around the underdog." One of the reasons that John Kerry so easily won the nomination in '04 was that he became inevitable after Iowa and New Hampshire. The voters in that year did not fight that idea but ratified it. This year, Clinton managed to find a way to rally surprising support to what had become an impossible candidacy.

In short, I do not think that anyone was wrong to imagine that the nominating process adopted by the Democratic Party would again end quickly and that we would have had a general election season running from early February through November. Although the fight has been ugly along the way, I am happy to have been wrong.


Posted by Neil H. Buchanan

Gaffes and Journalism

In alphabetical order, here are what I regard as the leading Presidential candidates' leading gaffes (although I don't have a measure for saying what counts as the gaffiest):

Clinton: "Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again."
McCain (singing): "Bomb bomb bomb, bomb bomb Iran."
Obama: "it's not surprising then that they get bitter, they cling to guns or religion . . . ."

I want to begin by acknowledging that there is at least some prima facie reason to pay attention to these sorts of statements---and to these three in particular. Each one suggests that the rap on the candidate is right: Clinton is consciously trying to sell herself as the white Democrat, thus deliberately damaging a coalition at the heart of the Democratic Party; McCain is a hothead who will get us into yet another war; Obama is an egghead who doesn't connect with socially conservative working-class Americans. A gaffe of this sort is thus a kind of Freudian slip. It reveals the candidate's true identity, what he or she really thinks when not staying precisely on message.

To mention two unsuccessful candidacies of the recent and less-recent past, Joe Biden's description of Barack Obama as "clean" and "articulate" betrayed a measure of racism that he will probably never be able to get past, and Jesse Jackson's reference to New York City as "Hymietown" betrayed a measure of anti-Semitism that has limited his mainstream appeal ever since. It is legitimate to report on gaffes for what they reveal about a candidate's character and what that candidate really thinks.

But it's one thing to pay some attention to gaffes. It's quite another to make them a major focus of campaign coverage, as the media have done in this election cycle. I'll bet more people can identify the candidates' gaffes than their proposals on the Iraq war.

It is commonplace to complain about horserace rather than issues-based coverage of political campaigns. Here I want to suggest---and invite discussion on the hypothesis that---the cause of excessive attention to gaffes is the same as the cause of horse-race coverage: In a long campaign, gaffes and primary results are events that can be covered as news, whereas policy positions are not.

That explanation, however, lets professional journalists off the hook too easily. It may be understandable for the evening news to lead with a gaffe story or a horse-race story, but when a journalist has an opportunity to interview a candidate or a campaign spokesperson, the journalist has an opportunity to make policy into news. By asking a candidate how he or she plans to pay for some new spending program, for example, and then asking tough follow-up questions, a good journalist can elicit actual new statements about policy. Of course, to do this effectively requires the journalists to know something about the underlying policy issues, which is a lot harder than asking candidate Y whether he or she was offended by what candidate X said about candidate Z's latest gaffe.

Posted by Mike Dorf

A Counterintuitive Democratic Strategy on the Courts

By now, others have picked apart the substance of Senator McCain's recent speech about the judiciary. (For one particularly good analysis, see Jack Balkin on his eponymous blog.) Here I want to ask what strategy the Democratic candidate should use in combating what is almost certain to be a frequent attack theme from the McCain campaign in the general election: that the Democratic nominee is extremely liberal for having voted against the confirmation of both CJ Roberts and Justice Alito (as both Clinton and Obama did).

The obvious response would be to try to paint McCain as the true radical, both by pointing to actual decisions of Roberts and Alito, and by tying them to Scalia and Thomas (who tend to be regarded by as much further to the right). The Democratic candidate could say something like this:

I believe that it's the job of the President to nominate consensus-building moderates. President Clinton did that with Justices Ginsburg and Breyer, and Republican Presidents have often done that too. I would have gladly supported President Ford's nomination of Justice Stevens, President Reagan's nomination of Justices O'Connor and Kennedy, and the first President Bush's nomination of Justice Souter. But a President should not be given a blank check to name Justices who are at the ideological extremes, even if they have excellent professional credentials, and that's what President George W. Bush. In this regard, as in so many others, Senator McCain offers himself as serving a third term for George W. Bush.

In fact, Obama did say something very much along these lines in an interview on CNN yesterday, and if asked the question directly, perhaps this is the right answer, but I have a nagging feeling that this sort of answer plays into McCain's hands.

Here's why. The base of the Republican party cares much more about the courts (including the Supreme Court) than does the base of the Democratic party, and the vast middle of the country doesn't seem to care at all about the courts (or if they care, it's way below issues like the economy, education, health care, and national security). The base of the Republican party is also suspicious of McCain. Accordingly, a Democratic strategy that attempts to paint McCain's support for Roberts and Alito as far to the right is unlikely to have any substantial impact on voters, except perhaps to persuade the Republican base that perhaps McCain is a reliable conservative after all.

Right now, the Republican base thinks McCain is soft on the courts, as evidenced by his willingness to join the gang of 14 in conditionally renouncing the nuclear option. He gave his recent Wake Forest speech precisely because he hoped to calm their fears. A concerted campaign by Democrats to portray McCain's views on the courts as far to the right would only help him. A better strategy might be to ignore the issue except for mouthing platitudes about how it's important to have an independent judiciary.

Posted by Mike Dorf

Patent Chaos and "Dorf's Law"

Writing in the NY Times on Tuesday, Adam Liptak reported that, as a result of analysis by GW Law Prof John Duffy, the courts may have to "undo thousands of patent decisions concerning claims worth billions of dollars." Duffy's analysis is excellent, but I want to suggest here that the bigger the problem is, the smaller the problem will be. How's that? Let me explain.

In a little-noticed provision of a 1999 appropriations measure, Congress changed the way that patent judges of the Board of Patent Appeals and Interferences are appointed. As a result, all such administrative judges appointed since 2000 have been named by the Director of the Patent and Trademark Office, but the Director is not the Head of a Department (since he serves under the Commerce Secretary). Thus, these judges were appointed in violation of the Appointments Clause of the Constitution, Art. 2, sec 2, cl. 2. And thus, cases on which they have sat are invalid. Duffy argues that because of the breadth of standing the Supreme Court has permitted in Appointments Clause challenges, and the automatic nature of the remedy, there is no good way for the government to avoid this result---although prospectively, Congress can vest appointment authority of the patent judges in the Commerce Secretary.

I would argue that the government may indeed have a way out, which I'll call "Dorf's Law." Dorf's Law states that courts do not provide a remedy for really really big constitutional problems where doing so would create chaos. One example of Dorf's Law in the United States may be McCleskey v. Kemp, in which the Supreme Court refused to invalidate Georgia's death penalty despite evidence showing with statistical significance that the race of the victim was a determinative factor in whether a defendant was sentenced to death. The Court feared that invalidating the death penalty on this basis would, among other things, require acknowledging that racial considerations pervade the criminal justice system, and the Justices couldn't imagine invalidating the entire criminal justice system. As a result, Justice Powell wrote a majority opinion that is, to put it kindly, innumerate. It says (nonsensically, for anyone who understands statistics) that proof that race infected death penalty decisions in Georgia in general doesn't count as proof that race infected the death penalty decision in any particular case. (This is nonsense because the Court was NOT saying that there is a higher persuasion burden where statistical proof is used, nor was it saying that there was something about McCleskey's case that made it atypical.)

As McCleskey illustrates, it's possible (perhaps likely) that examples of Dorf's Law will not be expressly acknowledged as such. Towards the end of his opinion, Justice Powell does candidly say that the Court can't give McCleskey the relief he wants because doing so would open the floodgates, but he offers this as an "additional concern" that is meant to bolster his decision nominally based on the statistical (non)argument.

My favorite illustration of Dorf's Law is the Supreme Court of Canada's decision in the Manitoba Language Rights Case. Manitoba was obligated to enact all laws in French and English, but from 1890 until 1985, the Province only enacted laws in English. The Supreme Court had little difficulty finding that practice invalid, but balked at the suggestion that as a result, all laws in Manitoba since 1890 were null and void. Such a legal vacuum, the Court said, would itself violate the rule of law. Thus, the Court continued in effect the prior laws for a temporary period while Manitoba translated and re-enacted its laws.

Dorf's Law suggests a legal strategy for the government in the patent imbroglio: Emphasize the utter waste and chaos that would ensue from declaring void all the decisions rendered by the improperly appointed patent judges. The courts (that's the Article III courts that would adjudicate this issue, presumably including, eventually, the U.S. Supreme Court) could either follow the McCleskey route and make up some nonsensical reason why the Appointments Clause isn't really violated, or they could follow the (more honest) Manitoba route and say simply that the remedy is too costly. This is a risky strategy primarily because the chaos that would ensue from invalidating eight years worth of patent decisions isn't quite on the scale of the chaos of having no law at all in an entire Canadian province or no criminal law in the United States.

Still, the Supreme Court did something a lot like this once before in a context that looks quite similar. In Northern Pipeline Co. v. Marathon Pipe Line Co., after finding that bankruptcy courts had been improperly constituted, the Court decided that its ruling only applied prospectively, and gave Congress a few months to fix the problem. In the ensuing years, the Court has ruled out pure prospectivity, but if there's enough at stake, look for something like it to re-emerge in the patent cases.

Posted by Mike Dorf

Got Indiana?

Yesterday, I wondered how perverse it would be for Senator Clinton to win the Democratic nomination in good part because of her appeal among voters who, in a general election against Senator McCain, would just prefer McCain. Some of the comments (when they weren't supposing I was naive or misinformed or something worse) inferred that I was arguing the DNC is irrational for trying to involve less ideologically committed voters in a nominating process. That is not what I argued at all. What I argued is that individual voters are only asked to make a highly constrained choice in our (mostly ordinal) elections and that that is no way to "reveal preferences" or to aggregate them into some kind of "collective will." Moreover, there is good reason to believe that what nominees for President need most is a committed base to whom they will not have to pander or communicate at all in the general election.

So the results are finally in and Senator Clinton won Indiana -- some of it by wide margins. An area with one of the most lopsided margins (70/30), Pike County, makes my point. Pike County is 99.1% white, disproportionately poor, older than normal, under-educated (this is a demographic profile, mind you, and all this means is that most college educated people leave and don't come back) and clearly a place that has suffered in a post-industrial economy. It has about 12,000 people (down from 20,000 in 1900) and about 3,000 of them voted last night. Is this the sort of victory the DNC should pay attention to in picking the nominee? I'm betting there are WAY more registered Republicans there than about 3,000. More importantly, though, virtually no one even puts Indiana in play this fall. Bush/Cheney states in 2004 that could go "blue" this year include Colorado (9 electoral votes), New Mexico (5), North Carolina (15), Virginia (13), and Missouri (11) and they all seem more likely to go for Obama according to people more knowledgeable than I (although even I can fathom the power of popular home state backers like Richardson, McCaskill, Webb and having won those primaries by wide margins).

Thus, when some suppose that Senator Clinton would be a stronger nominee because a few national polls put her further ahead of McCain than Obama, I am, shall we say, floored. Obviously, the general election is still an eternity away, we don't vote for President as a nation, and THERE ARE STILL THREE CANDIDATES BEING PUT UP IN THESE POLLS. Now readers of this blog will all know (thankfully) that the electoral college is what shapes the Presidential race. Getting to 271 is all that matters. George W. Bush proved that twice (and, in his case, it didn't even matter how he got to 271 in one of them (sorry - couldn't resist)).

But before we think the nominating process is anything other than a crude approximation of what it supposedly accomplishes, ask yourself why more Americans voted for GWB in 2004 than for any other President in history. It wasn't because of his popularity or because Bush was a centrist or because he had been nominated in a process designed to get at those two qualities. He was a presumptive nominee of a tightly organized party, running in a year in which the nation was extremely polarized, he and the RNC ran an extremely polarizing campaign in the "swing" states, and Senator Kerry was close in a lot of the polls leading up to the election.

There are plenty of good reasons to want someone with broad appeal to be a party's nominee. But it is exceptionally unlikely you will nominate that person by just opening primaries up to anyone or making the delegate counting "proportional." (Incidentally, Senator Clinton certainly isn't that person. She the kind of politician Chris Matthews idolizes: she has surrounded herself with professionals whose only expertise is in how to exploit the flaws of an ordinal election and those of our mass media-driven electoral process at the national level. They have "sliced and diced" the voters they need by coming up with "winning" strategies like a gas tax holiday, for example.)

Now imagine Senator Clinton trying to run a race that wins the swing states she might even possibly win. Is she really going to campaign to win places like Pike County, IN? That would be a terrifically stupid strategy because it would cost her (in opportunity costs, if nothing else) dearly to have to triangulate her message for so little voter payoff.

Finally, having the nominating contest end swiftly very well could be means/ends rational for a party. More and more of Senator Clinton's voters have been answering in exit polls that they will not vote for Senator Obama should he be the nominee. I can only surmise that that trend line is a function of the primary campaigning - assuming, of course, that these voters are Democrats at all.

Posted by Jamie Colburn

America, Where Every Day is a Tax Holiday

In my latest FindLaw column, I explain why the proposed gas tax holiday is such an idiotic idea. The point has been made in other places, but I thought it worth a short sustained argument that actually addressed the feeble arguments that could be made in its favor. I then turn to the question of whether the attraction of such measures for politicians undermines democracy. Because the column went to bed before yesterday's primaries, I don't address the impact this issue had on Indiana and North Carolina voters.

Here I want to raise yet one more argument against the gas tax holiday, one that I did not make in the column. You can bet your bottom dollar that if Congress is foolish enough to enact the gas tax holiday (or if one of the state legislatures contemplating a similar measure at the state level does so for state fuel taxes), then when the expiration of the holiday approaches, someone will make the argument that the McCain campaign now makes about the Bush tax cuts: Permitting the officially temporary tax break to expire is, from the perspective of the taxpayers, a tax hike, and so the gas tax holiday should be made permanent.

It's tempting to think there's nothing at all to this argument. Branding one's political opponents as tax hikers is partly just a GOP marketing strategy, like calling the estate tax the "death tax." But it's also true that people paying zero federal gas tax on Sept 1 and 18.4 cents per gallon on Sept 2 does experience a tax increase. The problem is assuming that's the end of the argument. In general, the law sensibly protects people's reasonable reliance and nobody can reasonably rely on not paying a tax that he is scheduled to pay, simply because he hopes that the legislature will enact a new law relieving him of that duty.

Unless, that is, anti-tax legislators repeatedly state their intentions of making permanent nominally temporary tax cuts. Then a reasonable citizen could be led to think that the tax is going to be permanently repealed and it would be reasonable for such citizen to experience the expiration of the tax cut as a tax increase. Of course, I would still say: So what? People experience disutility from tax increases, but if the utility of the revenue (and any Pigovian effect of the tax in the case of a tax on harmful activity such as driving) outweighs that disutility, the tax should not be permanently eliminated.

Bottom Line: 1) There is something to the point that people (with high incomes) will experience the non-enactment of legislation making the Bush tax cuts permanent as a tax increase; but 2) that's mostly because Republicans have been deliberately inducing expectations that the tax cuts will be made permanent; 3) in any event, changes in the tax law routinely upset expectations but that's not by itself enough to oppose all changes (or non-changes) that leave people paying more in taxes than they expected; and 4) lawmakers who oppose a tax cut as unsound long-term policy should be very wary of voting for it as a "temporary" measure, given that other lawmakers will then try to make it permanent.

Posted by Mike Dorf

The Rational and the Reasonable In Voting?

As voters in Indiana and North Carolina go to the polls, I can't help wondering: how perverted has our electoral system become? Senator Clinton is, by most measures, still in the race for the Democratic nomination at all because of her support from voters who are not "vocal" or "caucus-going" Democrats. They lack, in other words, any kind of ideological loyalty to the Democratic party. They are just as likely to vote for a Republican candidate or not vote at all when the general election comes around as they are to vote for the Democrat. One could even say, as this story in the Times almost does, that Clinton has duped the voters who should have such loyalties into thinking she's their candidate even while, in reality, she was pro-NAFTA, pro-Democratic Leadership Council, and is herself now fabulously wealthy.

How perverse is it, then, that our nominating process might allow such voters to defeat the Democratic candidate that most "true-blue" Democrats are for, only to put Senator Clinton against a Republican candidate that those same voters would then prefer over Senator Clinton? Given the rules pitting Senators Clinton and Obama against each other in this primary election, it is perfectly rational for voters to choose their "preferred" candidate in one election who then is not the preferred candidate in another election. (It could be strategic or just plain short-sighted.) It would be, however, unreasonable of a party to nominate someone by ignoring these defects in elections and it would be just as unreasonable for observers to conclude that Senator Clinton's victories in the primaries are at all reflective of her chances in an election against another opponent.

Posted by Jamie Colburn

“Holocaust Movies” and Holocaust Denial: Creating False Images

Yesterday I watched “The Counterfeiters,” which recently won the Oscar for best foreign film. It is a tale of a group of Jewish prisoners the Nazis forced to forge foreign currency. This past week was the annual memorial day of The Holocaust, an apt time to point out certain problems in some “Holocaust movies.”

Movies about the Holocaust are often thought important in battling Holocaust denial, teaching and introducing the Holocaust to many who otherwise would have never learned of it and are thus susceptible to revisionist falsehoods. To an extent this is true. However, at times these movies function as a two-edged sword, serving those accounts of the Holocaust that attempt to present it as an aberration in human history, existing out of time, having nothing to do with normal people, improbable, monstrous and inhuman yet still always filled with fantastic stories of perseverance. This might lead some to believe not only that it could never happen again but also that the false claims of its exaggeration, fabrication and even impossibility contain an element of truth. Not all Holocaust movies suffer from these ills, but many of the more famous ones do.

Examples: (1) The main theme of many popular Holocaust movies is one of survival. While survival may make for better drama and storytelling, survival is not the story of the Holocaust, it is the deviation. (2) German characters often appear in Holocaust movies in one of two pairs: the sadistic monstrous Nazi vs. the brave benevolent German, and the perverted evil Gestapo officer (often with a limp or one eye) vs. the German solider who is simply fighting for his country. In fact, the Holocaust has little to do with these archetypes; the story of the Holocaust is the story of the vast majority of Germans who occupied the space between these two caricatures. It was normal people like you and like me who carried out the crimes and allowed them to happen. Once again, both the sadistic monsters and the angelic saviors were the digression. (3) Some of these movies have dramatic shower scenes – the protagonists are led into a structure, told they are about to shower. The suspense is built on the audience’s expectation that the characters are in fact led into a gas chamber, but then, rather than deadly gas, water pours out of the ceiling. In fact, the Nazis would lead their victims into gas chambers under the pretext of having them shower. These movies reverse the facts – the lie is turned into the reality and the historic reality remains an unrealized fear. While perhaps good for dramatic suspense, these images, implanted in the minds of the viewers – many of whose only encounter with the Holocaust is through such widely distributed movies – are known historical falsities. In reality the gas chambers could not even function as showers at all. It is a fallacious image.

These narrative structures, images and character types, when presented to those who are ignorant of the Holocaust, fit much better with the narrative of denial than with the historical truth. For the great majority who learn most of their history from film, if the main images they are offered of the Holocaust are of inhuman acts, non-realistic monsters, gas chambers that turn out to be showers (rather than the other way around) and where the protagonists survive, for all the good intentions the more plausible story might turn out to be the false one, that of denial, exaggeration and fabrication. At the end people remember the drama, the images, the main narrative and characters, not the background.

Posted by Ori Herstein

Sentencing in Europe and the U.S.

Austrians are currently agonizing over whether the maximum sentence of 15 years for Josef Fritzl---the man who kept his daughter captive in a windowless, sound-proof vault for 24 years, fathering 7 children by her---is sufficient punishment for such monstrous crimes. As a practical matter, the answer is probably yes. Fritzl is currently 73, and so, based on the most recent Austrian life-expectancy data, a 15-year sentence is more likely than not a life sentence. It's very much more likely than not a life sentence if Fritzl is convicted of "murder through failure to act" in connection with the death of one of the children his daughter bore him. That crime carries a potential 20 year sentence.

I strongly suspect, however, that Austrians are not so much outraged at the small possibility that Fritzl might emerge from prison at 88 or 92 and commit further crimes. Rather, the worry is over the apparent inadequacy of the moral condemnation expressed by a 15 or 20 year sentence.

That's not to say there is no practical dimension to too-lenient sentences---even in this case. According to Fritzl's sister-in-law, he had previously served time for a 1967 rape conviction. How much time? 18 months. A substantially longer sentence for that earlier offense might well have eliminated Fritzl's opportunity to commit the rapes of his daughter or, after his release, might even have specifically deterred him (although the recidivism rate for sexual offenders is high even in the U.S., with its much more substantial sentences).

Here in the U.S., we generally have the opposite problem: Too many people in prison for too long. As a recent NY Times story reported, over one percent of the adult population in the United States is in prison or jail. One in nine black men between the ages of 20 and 34 is incarcerated!

Does the juxtaposition of the Fritzl case and the bursting-at-the-seams story of American incarceration show that you're damned if you do, damned if you don't? Must societies either under-incarcerate or over-incarcerate? Almost certainly not. Seen properly, these are not tradeoffs but the same problem: In both Europe (in cases like Fritzl's) and in the United States (in large part, but not exclusively, as a consequence of the disastrous war on drugs), we have a failure to make the punishment fit the crime.

Posted by Mike Dorf

The Peltz Complaint and the Rule of Recognition

Thanks to a reader for emailing me a copy of the complaint filed by Professor Peltz against his former students for calling him a racist. The complaint does assert that the students made false statements of facts, although it doesn't specifically identify which statements of fact---other than the accusation of racism, which as I observed yesterday, is not really a factual claim so much as a normative/evaluative opinion---are supposedly false. The student letter complaining to the law school administration about Professor Peltz does contain at least one clearly false statement of fact. It describes The Onion as "conservative," whereas it pretty clearly is an equal-opportunity satire magazine. Would a conservative magazine print this piece? Or this one? Would an ape make a human doll that talks?

But I digress. Anyhoo, I'm currently attending/participating in a conference at the University of Pennsylvania Law School on the Rule of Recognition and the Constitution. The "Rule of Recognition" is a term coined by the late Oxford legal philosopher H.L.A. Hart. According to Hart, law consists in primary rules (like speed limits, murder prohibitions, civil obligations of contracts, etc.) that apply to citizens and other primary actors, and secondary rules (like rules saying when the police can arrest suspects, how a bill becomes a law, etc.) that apply to government officials. If we ask why some primary rule is part of the law, the answer will typically be some secondary rule. (E.g., SEC Rule 10b-5, governing insider trading, is the law because the SEC was authorized by a federal statute, the SEA, to create it.) We can then ask why that secondary rule is law and typically point to another secondary rule that stands behind it. (E.g., the SEA is a law because Article I, Section 8 of the Constitution authorizes federal regulation of interstate commerce.) And so on, until we come to a rule that has nothing standing behind it other than the fact that government officials observe a social practice of treating it as obligatory. This end-of -the-line rule (or set of rules or principles) is what Hart calls the "rule of recognition," and the aim of this conference is to explore the relation between the U.S. Constitution and the rule of recognition in the U.S.

Or at least that's what I thought when I wrote my paper (which I'll post in a month or so, after I fix the footnotes). But it turns out that much of the disagreement over how to understand Hart's theory and whether it makes sense concerns the question of what it means for a society to have law. Hart thought that wicked societies could have law but that the mere orders of thugs are not law, even if they demand compliance. Which brings me back to the Peltz case. If we can't even agree on what the concept of law entails, is it surprising that the meaning of "racist" would be highly contested? Or, is it only pointy-heads like myself and my equally pointy-headed chums who worry over the meaning of such concepts?

Posted by Mike Dorf

Why Didn't I Think of That?

In March, University of Arkansas-Little Rock Law Professor Richard J. Peltz sued two of his students for defamation after the latter accused him of being a racist, a charge he denies. (Although the lawsuit was filed in March, I just learned about it from the NY Times story that first ran today.) I have been unable to find an online copy of the complaint but the core of the case appears to be this: (1) Professor Peltz is an outspoken critic of affirmative action. (2) He also least insensitive to student concerns about racial justice, as evidenced by, among other things, his in-class display of this article from The Onion. (I would note, by the way, that the piece, as satire, could easily be read as supportive of the civil rights movement, given the implausibility of its central point---that American society has finally moved beyond race. However, given the other views of Professor Peltz, his students may well have been right to read his use of the piece as meant to belittle the civil rights movement. Context matters). (3) Students in Professors Peltz's class and the school's chapter of the Black Law Students Association accused him of racism. (4) Thus, he sued them. Although other stories around the web suggest that Professor Peltz also thought that the school administration did too little to defend him against the charges, the school is not a defendant.

Where to begin? The man-bites-dog quality of the story is delightful, of course. Surely every law professor has at some time worried that an ill-considered comment he or she made, or a bad grade he or she conferred, would result in a lawsuit by a student, but I'll bet it had not occurred to most law professors---it certainly hadn't occurred to me---that we could be the plaintiffs suing our students for, say, lousy course evaluations.

There is also the double irony of this case:

Irony 1. Professor Peltz was not well-known outside of Arkansas legal circles before the filing of this lawsuit, but he is well-known now, and what he is known for is being the law professor who sued his students for accusing him of racism. Arguably, his reputation suffers a much greater injury from the bringing of the lawsuit than from the underlying charges. That's often true of defamation suits by people who are not previously well known.

Irony 2. Professor Peltz teaches First Amendment law and, judging by the titles of his publications and the news of the lawsuit itself, appears to believe in free speech as an affirmative good. It is not hard to see him arguing that the students, in branding him a racist simply for strongly disagreeing with their policy views---for his political incorrectness, in other words---were trying to shut down his expression of those views. But of course, suing students for expressing their own views is not exactly a speech-friendly act.

I don't know nearly enough about the underlying facts to form a clear view about the merits of the suit, but I'd still be surprised if it succeeds. It's almost always a bad idea to call someone a "racist" unless he's an active member of the Klan, defender of slavery or segregation, or what-have-you, but that's as a matter of the social rules of discourse.

The students will almost certainly argue that in calling Professor Peltz a "racist" they were expressing an opinion, rather than making a claim of fact, much in the way that one of my students could defend himself if I sued him for calling me, say, an "asshole." The student-defendant in my hypothetical lawsuit would not be obliged to show that I am, literally, an anus, or even that I am, on balance, a mean person. "Racist," like "asshole," is an all-things-considered evaluative term meant to express the speaker's negative judgment. And the First Amendment overlay on defamation law protects such opinion statements that are not meant to be taken as fact. So unless Professor Peltz can show that the defendants made false statements of fact---e.g., stating he attended Klan rallies when he did not---his lawsuit faces serious obstacles.

Posted by Mike Dorf