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As we segue to
May, the month set aside to mark Better Sleep, Good Car Care, Photography, Salad, Eggs, and Barbecue—I kid you not—let's end April's
Convictions Poetry Slam with one last post on law and poetry.
Turns out it's the subject of
Law and Poetry, 11 Roger Wms. L. Rev. 353 (2006), by
Edward J. Eberle and
Bernhard Grossfeld, law professors at Roger Williams and Universität Münster, respectively. In addition to discussing some of the questions that
Kenji and
I explored, the article includes a number of passages mentioned here this month. To talk of Justice Harry A.
Blackmun and baseball and of Chief Justice William H.
Rehnquist and the flag, the authors add Ninth Circuit Judge
Stephen Reinhardt's
quotation of the anti-lynching ballad
Strange Fruit in n.14 of his dissent in a capital punishment case. The article continues with many more examples of ways that law influences poetry and that poetry influences law. I leave you with one such quote, from "Variations on Variations on a Theme" by
Lawrence Joseph, a St. John's law professor:
And that's the law. To bring to light
most hidden depths. The juror screaming
defendant's the devil staring at her
making her insane. The intense strain
phrasing the truth, the whole truth, nothing
but sentences, endless sentences.
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Doug, since you brought up Jeremiah Wright ... I think the biggest insult to the Obama campaign was that Wright didn't go hide under a rock somewhere. The Wright issue had just about died until Wright started jawboning on national television—he had to know that his speaking out in any way was bad news for Obama. And worse yet, what he said confirmed our worst suspicions about him—especially at the Press Club, he was arrogant, self-obsessed, mugging for the cameras and the crowd he had obviously had trucked in from Chicago to pack the hall (old community organizer's trick—if you can't count on a friendly audience, bring one with you).
Maybe his worst moment came at the NAACP speech when he spouted the discredited and silly theory that black and white children learn differently due to differences in—get this—their brains (white kids are "right-brain" dominant—object-oriented, logical, and bookish—black kids are "left-brain oriented"—subject-oriented, creative, intuitive, and chatty). In other words, you white folks like empirical evidence and books, and we blacks rely on our guts and are good dancers. Thanks, Rev—we ought to get you in touch with James Watson—you'd have a lot to talk about.
One thing is clear—Wright has totally broken from Obama and is now determined to undermine him. You'd think the he was working for Hillary Clinton. I've suggested in the past that some people might be afraid that an Obama victory would undermine their worldview and their platform—now I think Wright is one of those people.
Interesting that your shunning examples all involve religion in some way—is the real problem here not the volatile politics of race as much as the absolutism of religion? Wright cites some pseudo-research for some of his crackpot ideas, but for the most part he wraps them in Scripture—you can't fault him for his crackpot conspiracy theories and angry tirades because he's just quoting the book of Jeremiah and if you do, you're insulting, not just him, but the entire "black church" (whatever that could mean).
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I just can’t muster up a lot of outrage about Indiana’s Voter ID law. Tim is right that we have a de facto national ID now. The Indiana law is nothing like a poll tax: This law may or may not be attacking a nonexistent problem of voter fraud, but either way, it’s attacking it by requiring people to do something almost everyone would do, anyway.
Jack, I thought David—like Deborah—was saying that one of the injuries the Indiana law is correcting is the perception—warranted or not—of voter fraud. David’s point: That perception may well be in the way of other reforms to make voter registration and voting easier (example: the most commonly voiced objection to voting by phone or by the Internet is fraud—an ID requirement might address such concerns and lead to sensible reforms that would allow more people to actually vote). Whether or not any such reform would be wise, maybe it’s better that the courts stay out of this and let the political processes at the state level work.
From this perspective, it’s a bad idea for the courts to require the state to show they’ve already implemented the reforms in order to“compensate” for the burdens of the voter ID law because 1) there’s little evidence of any more than minimal burden; 2) the point isn’t that the reforms would “compensate” for the burdens of the voter ID law—it’s that the reforms would be good in and of themselves (even if they, say, make it easier for different people to vote than the people burdened by the voter ID law); and 3) the ID law may be the precondition to the other reforms: If the state had to show that it had already taken steps to ameliorate the (possibility nonexistent) burdens, then it would never be able to generate the confidence that would smooth the way for the reforms.
Another way of looking at this—maybe a formal voter ID law is better than voter eligibility requirements that are enforced ad hoc—either at the polls by overzealous poll watchers or after the fact through litigation challenging the results. The ID law makes it simple to ensure that everyone who votes is who they say they are and to check and make sure no one votes twice, thus reducing the need for other types of (often discriminatory) enforcement and cutting the legs out from under potential litigation by the losers of the election. Echoing David: Shouldn’t the Constitution allow a state to make such a trade-off, at least unless someone can show actual and significant injury in the application of the law?
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First, Sen. Obama sort of half-shunned Jeremiah Wright—the video clips don't do justice to the man's good work as I knew it; then Wright surprise-shunned Obama—he's just a politician doin' what politicians do, which prompted Obama to double-shun Wright—say what again about roosting terrorist chickens and the government's spread of HIV? Not to be outdone, Bob Novak wants the Catholic Church to shun a good chunk of the Democratic congressional leadership by excluding them from communion.
This primary has definitely gone on much too long. I know it's not over until the Howard Dean screams, but. please, must we wait until November?
Sen. Obama—let the good Rev. Wright play out the "crazy Uncle Harry" routine; in this case, you are definitely not your brother's keeper.
And Mr. Novak, "judge not lest ye be judged and found unworthy."
So, now that we have transcended the politics of race and division, what's next?
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A colleague forwarded this memo from Deputy Defense Secretary Gordon England directing the promotion of the Army, Navy, and Air Force's top uniformed lawyers—giving them an additional star and promotion to lieutenant general or vice admiral, respectively. The promotion order will take some time to process, as it must be vetted, packaged, and formally submitted by the president for the advice and consent of the Senate, but this is now effectively a done deal as far as the Pentagon is concerned.
What's interesting is that Congress mandated these promotions last year in the National Defense Authorization Act. But as Scott Horton recounts, those promotions were delayed by former Pentagon counsel William "Jim" Haynes II, who wanted to maintain the dominance of senior political appointee lawyers over the services' uniformed lawyers—exactly what Congress wanted to reverse. Haynes sought a Justice Department opinion on the matter and slow-rolled the promotions as long as he could. However, Haynes left the Pentagon a few months ago with his own star in decline. It appears that Defense Secretary Gates ordered the promotions as a way to build bridges between senior political appointees and senior military officers and a way to move past the Rumsfeld-Haynes legacy on detention and interrogation policy.
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Ooof—well, Dawn, I certainly didn't intend to leave the impression there are no differences between Indiana Dems and Republicans. And perhaps I may be granted some dispensation for having lived in the district that elected Dan Burton, R-Ind., to Congress. Repeatedly. By overwhelming margins. My, I hope far less troubling, thinking was just that if one were to put the Indiana parties on a national scale of liberal to conservative, former Gov., say, Evan Bayh, would not fall very close to, say, Ralph Nader.
But my more serious point was to raise questions about how flawed Stevens' reasoning really is here. I'd like to think my bona fides in securing free and fair elections for all are decent, particularly after having spent the last two presidential elections, for example, doing poll monitoring in blistering Florida. And I've no doubt the Indiana ID requirement will pose a burden on some voters, most especially those at the economic margin. But I read the splintered decision to leave exactly those challenges open, no?
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Oh, Deborah! Writing that there are negligible differences between Hoosier Ds and Rs, just days before our election! Last night I co-hosted a fundraiser here in Bloomington, Ind., aimed at electing a Democrat to replace Republican Mitch Daniels as governor of our Hoosier State, while we still have some remains of a government he hasn't privatized. What a blow to come home and read your words. Shades of Nader!
Sure, it's a relatively conservative state. But if this were a political blog, I would (and could) post a lengthy list of major differences between the Ds and the Rs, both among our current candidates and among our previous officeholders—including in how our state was run under our three Democratic governors who immediately preceded Daniels. (Full disclosure: My husband was part of two of those three Democratic administrations.)
By the way, I can match your story of pressure to register as an R in Indiana with my own from the blue state of New York, where I first registered to vote. In my case, they came into our high-school classes to register us all, and our teacher explicitly advised that if we ever wanted a shot at one of those coveted, cushy summer jobs working on the beaches of Long Island, we had better register as Republicans.
But this is a legal blog, so let me say a few things about the Crawford decision. First, Indiana's votes in the presidential races of the last decades are not representative. We have many very close races here—local, state, and Congress—with frequent party switches. Just one e.g.: The Indiana House was evenly split twice in the last two decades. So, Rs don't have to suppress many votes—through this excessive and indefensible ID requirement and other tactics—for it to make a difference.
Second, I recall stories from poll workers last election about how sad and outrageous and punitive it felt to have to turn away honest citizens seeking to vote. Little wonder that young people and others often feel disaffected and discouraged from participating when the atmosphere is comparable to being sent to a high-school principal's office rather than being welcomed and encouraged to participate in our great democracy.
Reading some of the reactions here in Indiana to the Crawford decision, it struck me that many (by no means all) of the people who support the court's outcome simply don't feel that way. The point for some is that they really don't want certain kinds of people to vote, that they even feel if people won't take the "trouble" to manage the logistical and financial barriers our state has erected (which pose no problem for most), then they simply don't deserve to vote. Of course, everyone is against fraud, but who really thinks this is about fraud?
Finally, at that fundraiser last night, there actually was strikingly little discussion of Crawford. Intense and heated feelings about the presidential primary of next week was soaking up all of the oxygen, and I think muting the outcry the court's decision deserves.
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Earlier this month, I wrote about a lawsuit against the government brought by the family members of Francisco Castaneda, who was refused a biopsy for a lesion on his penis while in immigration custody, and then died after having his penis amputated. The government initially moved to dismiss the suit on grounds of immunity. Judge Dean Pregerson of federal district court in California rejected that argument after some neat statutory detective work, which makes it look as if a lot of other courts have been wrong to grant the government immunity under the Public Service Health Act, which addresses medical negligence by government doctors and nurses.
Now the government has in fact admitted negligence. That could mean up to $250,000 in damages for Castaneda's family. More importantly, it shows why Congress was right not to give blanket immunity to government health care providers, as Judge Pregerson found.The doctor who treated Castaneda (or rather, apparently failed to treat him) testified that she doesn't feel responsible for Castaneda's death. But now the courts can find otherwise.
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The "facial" vs. "as applied" distinction animates the minimalism of the Roberts Court. You may remember that Chief Justice Roberts gave a speech at Georgetown shortly after his confirmation, saying that what doesn't have to be decided in a case shouldn't be. But, of course, Chief Justice Roberts also said that he would be pursuing a larger number of unanimous outcomes—an aspiration that seemed to run aground in his second term when the court had one of the highest number of 5-4 opinions in decades. But the "facial/as applied" distinction that resurfaced in the Crawford voter-ID decision and that has played prominently also in areas of abortion (Ayotte; Carhart) and more recently in the lethal-injection case (Baze v. Ky) reveals that some may have dismissed the chief's efforts at achieving unanimity, or at least greater consensus, prematurely.
As the not entirely ideological 6-3 configuration in the Crawford case reveals, pronouncing an Act of Congress or a whole legislative enactment by the states to be unconstitutional on its face is strong medicine, and for that reason, it is especially unlikely to be pursued by any member of the court inclined toward preserving the idea of a more-tamed judicial posture. Justice Stevens may be substantively liberal, but in terms of his understanding of the judicial role, he is a moderate conservative. His dissent in Bush v. Gore, after all, was about keeping the court out of the presidential election. By distinguishing between the facial and as-applied challenge, Justice Stevens satisfies both sides of his personality: He can be conservative in facial outcome by upholding the statute's general contours while preserving and signaling that he would be substantively liberal in application—e.g., in Crawford being relatively quick to find in a later case that a specific election requirement was burdensome. For somewhat different but overlapping reasons, the "facial/as applied" distinction appeals to Justice Kennedy's Hamlet personality, since he can be for and against the statute at the same time—which may sound flippant, but it in fact reflects Justice Kennedy's commitment to particularized justice. See, e.g., his separate opinion in Rapanos (indulging a multifactored analysis of navigable waters under the Clean Water Act) or Parents Involved (similarly indulging the possibility of some uses of race that are not specifically visited upon the student, but might be used to lessen racial stratification by, for example, a siting decision of where to build a new school).
It should be noted that the "facial/as applied" distinction did not begin with Roberts, though it has been more successful under him. Chief Justice Rehnquist sought to use the distinction in the context of his handcrafted doctrine of 11th Amendment sovereign immunity, but there, he was using it not to sustain legislation, but to strike it down. Consider, for example, Rehnquist's proposed use of the distinction in Tennessee v. Lane. Rehnquist would have found the ADA to be invalid under the 11th Amendment on the theory that Congress had not legislated in a congruent and proportional way to address unconstitutional state behavior in a sufficiently targeted fashion. Rehnquist was able to reach this conclusion because he conceived of the proper focus to be facial rather than as applied. In other words, Rehnquist in essence told Congress that it could not legislate more broadly than necessary. In doing its legislative work, Congress had to think of the full range of applications of the statute as against the states and not just a particular application. As Professor Vik Amar once astutely pointed out, since Congress could not tell the states that they had a duty to accommodate the disabled in a public hockey rink as well as a state courthouse, the ADA, which had language that could cover both, was facially unconstitutional, even if in Lane it was properly applied to the denial of courthouse access. Note, however, how using the "facial/as applied" distinction in this way stands the general canon of constitutional interpretation that facial challenges are the most difficult to mount on its head. Rehnquist was effectively seeking to use that facial characterization to limit congressional power more easily, not to be more deferential to it.
It is sometimes said that the jurisprudence of John Roberts is a mere continuation of the Rehnquist era. There is some truth to that. But a closer examination of how the two chiefs employ the "facial/as applied" distinction differently—with Roberts setting a narrow compass of judicial activity and Rehnquist pursuing a more aggressive, less deferential judicial role—undermines that assertion.
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90 percent of white voters in Chicago, including ward bosses, turned their back on the Democratic Party. The atmosphere of the city became divisive and hostile in ways that would be difficult to imagine ... a quarter century later.
... It became a campaign of slurs, accusations, charges and counter-charges, and a contest dominated by the issue of race. ...
I remember it well. The election took place while I was a student at Chicago's
Northwestern University School of Law, from which Washington had earned his J.D. in 1952, a time when, according to campus lore when I was there, the school was considered "progressive" for setting aside two seats in each class, one for a woman, one for an African-American. (Washington's set-aside sibling also proved her mettle:
Dawn Clark Netsch graduated magna cum laude, became a politician and Northwestern law professor, and, in 1994, became the fist woman to receive the Illinois gubernatorial nomination of a major party.) Although decades had passed, in 1983 the city remained splintered, a metropolis of ethnic enclaves circled by unseen but well-known walls. Isolation fed bitter, overt hostilities.
Emblematic of the ugliness of the 1983 campaign was a button that my relative saw worn openly on the floor of the Chicago Mercantile Exchange: Beneath the circle-with-slash that's the universal sign of "NO" was a green watermelon against a black background.
Washington's four years as mayor
—he
died from a heart attack in 1987—were landmark. The city fared as it had under other mayors. That fact of competence eroded Chicago's entrenched ugliness. And though Daley eventually did become mayor, his way of running things proved far more inclusive than that of his father.
Harold's breakthrough, moreover, inspired a generation
—not only this onetime lakefront law student, but also a man who came to the city in the '80s to
work with poor people. That man was
Barack Obama, now himself a member of Congress, now
taking his own bruising as he endeavors to repeat in the national arena what Harold achieved in Chicago.
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I hate showing ID just as much as the next guy. (Well maybe not as much as John Gilmore, one EFF's founders, who sued the federal government when he was denied boarding because he refused to show any ID.)
But as everyone knows sometimes it is background facts - i.e., not the facts of the case, but the facts in society - that drive decisions. And here, the background is the changing state of ID requirements in the U.S. Over the last 30 years or so, the US has created what is more or less a de-facto National ID card system, of mixed private and public parts, as Michael Froomkin pointed out in a 2004 paper. As the ID-requirement has spread into so many areas, like the entry of public and private buildings, it makes Indiana's law look reasonable, or at least something hard to decide on assumed facts.
So in part, politics; but in part, a battle over ID already lost long ago.
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All the justices agree that states must "balance" the benefits and costs of voter ID requirements. The benefit is reduction in voter fraud; the cost is disenfranchisement of those who cannot obtain the ID. No one explains what an appropriate balance is, and the answer is far from clear.
To see the problem, suppose that a state can choose an ID requirement along a sliding scale from zero to maximal, where zero means something like "swear that you are eligible to vote and this is the only time you are voting" and maximal means something like supplying a birth certificate and a passport and a driver's license and thumbprints and dental records and retinal scans, etc. As the state increases the strictness of the ID requirement, the risk of fraud declines but the degree of disenfranchisement increases. The question is, what is the constitutionally permissible range on this scale?
It is tempting to think that the social cost of a single fraudulent vote is equal to the social cost of a single disenfranchised voter, and so the rule should be set at the point beyond which more voters would be disenfranchised than fraudulent votes prevented. But this conclusion would be hasty. We might think that even a little fraud throws the whole system in disrepute; or we might instead worry that disenfranchising people is much worse than tolerating a little fraud.
There are more complications. Suppose you think that the majority should rule, and so if a community has 100 eligible voters, then the candidate preferred by 51 should prevail. A strict ID rule, by excluding the poor, would bias results in favor of candidates supported by the rich. But what would be the effect of an insufficiently strict rule? Would the fraudsters favor the candidate of the rich or the candidate of the poor? If you are tempted to say that fraudsters would be paid by supporters of the rich candidate, then you should have second thoughts about supporting a weak rule. A weak rule would, along this dimension, hurt the poor by making it easy for the rich to finance voter fraud.
The current debate assumes that the majority party will choose a rule that keeps the minority party out of power. But once we agree that the majority party can enact anti-fraud rules, we again need to ask how to determine when the majority goes too far. Suppose that the majority belong to the Republican party, and that an incremental tightening of the rule eliminates 10 Democratic voters but also eliminates n cases of fraud. For the new rule to be permissible, can n be 10, or does it have to be 100 or 1000? Could n be 1? Does it matter who the fraudulent voters would have voted for? If they would have voted for Republicans, and n > 10, then the move injures Republicans. Perhaps the safest assumption is that fraud would favor neither party. But its cost would still need to be quantified; otherwise, it is impossible to choose a reasonable n. And how do we quantify the cost of fraud that, because it favors neither party, has no impact on the election?
Many people say that fraud undermines voters' confidence in the system. But so what? Do voters with less confidence vote less? If both the rich and the poor, or Republicans and Democrats, vote less, then reduced confidence won't affect the outcomes of races. And how do we decide how much fraud has to occur before confidence is seriously weakened?
The fact is that no one agrees on what voting systems are supposed to do, nor does anyone really understand how much voting fraud is tolerable and how much is too much; so no one can agree on what the costs and benefits of anti-fraud rules are. Perhaps this is the real reason that the Court is signaling that it wants to have nothing to do with this problem.
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A few modest additions to the early word on voter ID. First, for all those who would prefer to insist that Justice Stevens is easily pegged as a dyed-in-the-wool liberal, the Stevens-Roberts-Kennedy opinion in Crawford v. Marion County Election Board is Exhibit Q in a long list of decisions in which Stevens, for reasons entirely his own, votes against the liberal line. (His passionate dissent in Texas v. Johnson, in which the majority rejected on First Amendment grounds a Texas anti-flag burning law, is another one that leaps quickly to mind.) The great Justice Stevens is many things, but predictably "liberal" is not one of them.
Second, on Marty's discussion of the paucity of evidence of fraud - Marty is of course right the evidence that fraud has been an actual problem is thin indeed. But I read Stevens' opinion to say that addressing actual fraud isn't the sine qua non of legitimate state interests. Rather, a state measure that promotes the perception of election fairness - whether or not fairness is actually a problem (even in a truthiness sense), or whether the measure will do anything to help the putative problem itself - is an interest itself sufficient to survive facial challenge (assuming the burdens on voters are not too great). That's the upshot of the lengthy passage from the Carter-Baker Federal Election Reform Commission findings Stevens quotes: "The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important." And it's of course the import of the separate section the Stevens opinion devotes to the state's interest in "safeguarding voter confidence." Especially given the hit voter confidence has taken in the post-Bush v. Gore world, I admit I can't see anything wrong with acknowledging this as a legitimate state interest.
As for the burden side of the equation - how much of a burden is an ID requirement? - Stevens, relying heavily on the district court's finding of fact, concluded that he just didn't see the evidence of the statute's generally burdensome nature (although burdensome in specific cases, absolutely possible). So given a legitimate state interest and the possibility that remains of proving the law too burdensome in the next case down the road, I'm not sure Stevens was actually that far out on a limb here.
Finally, having registered to vote for the first time as a resident of Indiana (I attended a fine public high school just outside Marion County), and being asked upon registration to repeat twice (in all friendliness and sincerity) which non-Republican party I wished to associate myself with ("You want to register with what party?"), a word on Indiana politics. The Republicans are conservative. The Democrats are conservative. The difference between them is, conservatively speaking, negligible on a great many matters of state concern. Now it could well be that things have changed a lot in the past, um, number of years since I registered to vote. But I wouldn't put much stock on the view that the outcome of this particular case is likely to rock the Indiana political landscape anytime soon. For that matter, I'm not entirely sure how much a splintered Supreme Court opinion leaving open a host of other possible challenges to such laws does to change anything either - other than to launch a new wave of litigation that should keep us here at Slate occupied well beyond election day.
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David and I agree that we would like constitutional rules that would facilitate political bargains between people with different political interests; as David puts it: "if you ensure voters are who they say they are, we'll let you register more of them." But there is little reason to believe that the decision in Crawford facilitates such political bargains. Indiana's voter ID laws were among the strictest in the nation without any corresponding investment in government programs that would have made it easier for disenfranchised persons to comply with the law's requirements. It's worth noting, as Justice Breyer points out in his dissent, that the Carter-Baker commission conditioned its acceptance of voter ID laws on the requirement that states also make it very easy to obtain photo ID's and that these ID's would be issued free of charge. Doing so would help ameliorate the predictable effect of these laws acting as the equivalent of a poll tax by other means.
If you want to create incentives to achieve the sort of reforms envisioned by the Carter-Baker commission, you wouldn't want minimal judicial scrutiny of the sort the Court adopts. Rather, you would want a more searching judicial scrutiny that asked whether the state compensated for the difficulties it imposed on particular groups by creating methods of ameliorating those difficulties. Knowing that harsh laws would be struck down unless ameliorating programs were put in place would give legislatures incentives to strike precisely the sort of bargain that David favors. In contrast, the form of scrutiny the Court adopts in Crawford gives legislatures few incentives to strike such a bargain, because majorities can adopt voter ID laws that disenfranchise a significant number of voters who would vote for the opposite party without fear that the courts will strike these laws down.
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JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join.
That's from Crawford v. Marion County.
It reveals yet again just how influential Justice Kennedy is: He's such a swinging justice that the opposite poles now won't even let him swing.
And it reveals yet again just how fractured the Court really is. The Chief can stave off division in important cases only by deciding as little as possible. But now it appears, that approach doesn't even really work: it only gets you three, rather than nine. So much for dreams of a new era of good feelings.
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Marty nicely describes the paucity of evidence supporting Indiana's claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land. After all, the Court long ago held in Croson that Richmond could not rely on experiences eslewhere to defend it's affirmative action policies. Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?
Fair enough. But consider the other side: just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks? After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can. That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court's reluctance to decide this facially. Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls. But an identification requirement is a burden only if in practice it actually operates that way. So, one would think there would need to be a pretty substantial showing first to support a facial attack.
Plus: it's not clear that the politics of this ruling are as bad as Jack or Marty indicates. Here, the state has on its side election monitor extraordinairre - President Carter -- who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate. As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier -- which could substantilly increase voting by the now disenfranchised -- if strict anti-ftraud measures are also in place. I'd be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks. It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement. In other words, if you ensure voters are who they say they are, we'll let you register more of them. Don't we want a Constitution that would facilitate such a trade?
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Forgive me for interrupting the conversation about the Supreme Court's decision today upholding Indiana's baleful voter ID law, which I hope will continue. But another topic for a moment: Depressing findings from the Chronicle of Higher Education. Even though well-off colleges say they're trying hard to recruit low-income students, the numbers are going in the wrong direction. At the 75 schools with endowments over $500 million, the share of students who received Pell grants, which means they come from families that make less than $40,000 a year, dipped from 14.3 percent in 2004-05 to 13.1 percent in 2006-07. The trend is the same at the 39 tippy-top richest schools: 19.6 percent of students there were low-income in 2004-05, compared with 18 percent two years later.
The time frame under study is short, to be sure. But it also matches a period in which colleges have been talking up class diversity, and in which the idea has been floated as an alternative to race-based affirmative action. The falling numbers show that well-qualified poor applicants don't submit applications in droves to the well-endowed schools, and that the schools haven't really figured out yet how to find them. A few campuses have shown that it's possible to improve at that task: The Chronicle noted schools that are exceptions to the rule because they have posted small gains: Amherst, Holy Cross, Williams, Princeton, and the Universities of Richmond and Texas at Austin. At Smith, 25 percent-plus students are low-income; at UCLA, 35 percent. What are those schools doing differently?
That's the big question, I think. I'd love to hear other people's thoughts, but my own sense is that the answer is not the big feel-good initiative that Harvard and Yale announced this winter: expanding financial aid so that it covers families that earn up to $180,000 or $200,000 a year. As this persuasive NYT op-ed points out, most schools don't have the money to give aid to upper-middle-class families (I hope that $200,000 a year still gets you into that category) as well as truly needy ones. And so, as the op-ed by former Columbia Dean Roger Lehecka points out, the Harvard and Yale move "sets an example that is likely to make it even harder for low-income students to attend the best college for which they are qualified." So forget Harvard and Yale—among the private colleges, what's Smith doing? Or Princeton or Williams or Holy Cross or Amherst?
(Cross posted at XX Factor.)
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continue reading at Balkinization . . .
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I'm just beginning to read through the opinions in today's decision upholding the facial validity of Indiana's voter-ID law. Along with many others, I have argued that the law is unconstitutional because it imposes burdens on voting without advancing any governmental interest. Thus, to my mind, the most noteworthy paragraph in Justice Stevens' lead opinion is the one in which he tries to adduce evidence of an actual problem that this law would address:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
The third piece of evidence (Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor) is not really on point, as Justice Stevens more or less acknowledges, because it was "perpetrated using absentee ballots and not in-person fraud," and thus such a fraud scenario would be unaffected by the Indiana law. So what we are left with is (i) "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation’s history by respected historians and journalists" and (ii) "occasional examples [of such fraud that] have surfaced in recent years."
For the first proposition, what does the opinion cite? Only this: an anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second—occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud.
So we have an anecdote about Boss Tweed and a single modern voter engaged in the sort of fraud at issue here. If that's the best case that can be made in favor of the law ...
[UPDATE: Much more—characteristically excellent—analysis from Rick Hasen here. On the issue I discuss above, and a terrific summary of the holding, Rick writes:
In a nutshell, the approach [of the governing plurality opinion] boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin—either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless "such considerations had provided the only justification for a photo identification requirement." So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn't impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an "as applied" challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges—part of a recent trend of the Court—is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court's approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter's dissent: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."
* * * *
I am disappointed by how cursory that [plurality] opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.
(Read more from Convictions contributors about the Supreme Court's voter ID decision.)
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Adam Liptak's article in The New York Times described America's extraordinary incarceration rate, a rate clearly outstripping that of any industrialized country. But Liptak overstates the case when he talks about the relationship between incarceration and the crime rate. He notes that, there is "little question" that the high incarceration rate here has helped drive down crime," while conceding that "there is debate about how much." He quotes former Judge Paul Cassell as saying that a "good case can be made that fewer Americans are now being victimized" because of tougher crime policies. The implication of this statement and others in the article is that while the incarceration rate may be too high, it is somehow a necessary cost of controlling crime.
While I don't pretend to be an expert in crime statistics, the relationship between crime rates and incarceration is not remotely clear and to many lead to a conclusion opposite to that of former Judge Cassell's. See The Sentencing Project, "Incarceration and Crime: A Complex Relationship." and "Lessons of the Get Tough movement in the United States." Violent crime, which increased in the 60s, has experienced a sustained declined over the next three decades, a decline which does not necessarily correlate with onerous incarceration policies, but rather with a host of other factors -- the economy, the extent to which the crack epidemic simply ran its course, community policing, demographics. In any case, incarceration rates increased not because they were somehow essential to control crime but because criminal justice issued had become politicized, fodder for political campaigns and news stories. Murder stories, for example, increased even when the murder rate decline in the 1990s.
Some have even improperly identified the federal sentencing guidelines as a cause of crime rate reduction. 54% of federal prisoners are serving time for drug offenses, according to The Sentencing Project, with only 11% for violent crime. Drug crime rates have increased regardless of the increase in imprisonment. In any event, even assuming increased incarceration contributes to the drop in crime, federal sentencing comprises only a fraction of the sentences meted out in courts around the country. And while some states have guidelines, many do not, and none have copied the federal system's mandatory approach.
Apart from the crime rate, we ought to be looking at what some have called the criminogenic effects of mass incarceration, particularly of African Americans, about which Liptak has written on other occasions. We should be considering whether the mass incarceration of African Americans, particularly for non violent offenses, has wreaked more havoc to those communities than their crimes have. Large numbers of people are reentering communities which have little or no ability to absorb them. While prisoners are not committing crime in their communities while they are incarcerated, they also are not functioning as parents, workers, consumers or neighbors. As Marc Mauer (of The Sentencing Project) reports, there are now about 1.5 million children in the U.S. who have a parent in prison: "The effect on these communities is compounded by the fact that imprisonment has become an almost inevitable aspect of the experience of growing up as a black male in the U.S." an attitude which contributes to repeating the cycle in the next generation.
In short, it is not remotely clear that the blunderbuss approach to crime -- imprisoning everyone for as long as possible -- works, much less in proportion to its considerable costs.
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Statutes of limitations reflect a reasonable concern that as time passes, evidence becomes stale and memories fade, so that at some point potentially valid legal claims should be barred. Barring valid claims just because they are old seems harsh, but the legal system has all kinds of rules that penalize people with valid claims who do not act on them promptly and carefully; these rules are needed to keep the system running smoothly. Virtually all civil claims are subject to statutes of limitations, usually in the range of a few years.
Rich says that the Supreme Court erred in the Ledbetter case by deciding that the relatively short statute of limitations begins to run at the time of the initial discriminatory act, such as a decision to give a female employee a low salary because of her sex, rather than restarting with every subsequent payment, when no discriminatory intent exists. Rich argues that the purpose of antidiscrimination laws is not to ban discriminatory intent but to ban discrimination, and discrimination continues even if subsequent bosses do not intend to discriminate but just pay wages on the basis of a pay schedule established by predecessors who did intend to discriminate. Maybe so, but a disparate treatment claim can succeed only if discriminatory intent is proved, which means that the litigation will necessarily involve evaluation of the initial act. If the purpose of the statute of limitations is to ensure that evidence is fresh at the time of trial, and a valid claim depends on proof of discriminatory intent, then the traditional rationale for statutes of limitations implies that the clock should begin at the time of the intentionally discriminatory act, and not be restarted whenever wages are paid.
It is true that it will often be difficult for victims of discrimination to discover the discrimination within 180 days of the initial act. But it is not a sufficient criticism to say that some valid claims will be barred. Courts and legislatures have struggled with this issue for centuries, and while they have developed some rules that take the edge off the harshness of statutes of limitations—for example, equitable tolling of the statute when the victim could not reasonably have discovered the injury, the doctrine of continuous tort when the activity is ongoing, and so forth—these rules are controversial and not applied in all settings because they introduce uncertainty, requiring courts to make case-by-case judgments about what is reasonable and what is not, possibly undermining the administrative values that statutes of limitations are designed to serve.
None of this is to say that the 180-day limit is necessarily correct as a matter of policy. Perhaps Congress should amend the law in order to bring it into line with state statutes of limitation for torts and breaches of contracts, which usually run for a few years. The problems of proof that arise from pay discrimination seem similar to those for a range of fraudulent acts, where an underpayment of some sort is concealed from the victim. In many states, the clock for a fraud claim does not begin to run until the violation could have been reasonably discovered. Perhaps this approach would work for antidiscrimination law. But the Ledbetter Act goes farther than this. If I read the law correctly, pay-setting discrimination that occurs when a worker is 20 years old could be litigated 30 or even 50 years later, as the statute of limitations can be restarted by retirement benefits as well as the most recent wage payment.
Opposition to the Ledbetter Act need not be based on sexism, as Dahlia claims, though she is certainly correct to mock the frivolous arguments of many of its critics. The Civil Rights Act balances costs to victims and costs to businesses. Concern for the cost to business can be the only explanation for the unusually short 180-day statute of limitations, which would continue to apply as before to discrete acts like terminations, unaffected by the Ledbetter Act, if it were passed. Presumably, the fear is that if judges and juries second-guess business decisions too closely and frequently, employers will be unwilling to make reasonable hiring, termination, and wage decisions that minimize labor costs but that are hard to justify before third parties who are confronted with claims of sex discrimination.
So one can't avoid doing a cost-benefit analysis in order to evaluate the Ledbetter Act. Would the gains for pay equity exceed the costs to business? To answer this question, one can't just say that anyone in favor of pay equity must be in favor of the act. People who care about pay equity and business costs must consider both factors.
With respect to pay equity, notwithstanding the ugly facts of the Ledbetter case itself, there is relatively little solid evidence that the 20 percent to 30 percent pay gap between men and women is due to intentional sex discrimination on the part of employers. The problem is that it is difficult to observe and measure all relevant characteristics that play a role in the setting of pay. A typical study will control for obvious factors such as age, education level, geographic location, and college major. Such a study will show that a 30-year-old female stock analyst with a B.A. in economics earns a wage about 20 percent to 30 percent lower than that of a 30-year-old male stock analyst with a B.A. in economics. Suppose, however, that the woman took time off to have a child in her 20s and stayed home with the child for a couple years before returning to work. If, as a result, she has less experience and is therefore less productive at the age of 30 than the man, it would not be unlawful discrimination to pay her less. Yet most studies cannot control for this possibility because most data sets do not include information about work experience.
A few recent studies have made progress, however. This study analyzes a data set consisting of college-educated men and women, and finds that much of the wage gap is explained by differences in experience; see also this study. Another study I have read (I have lost the link) looks at the wages of men and women who have recently graduated from college—before the experience effect can set in—and finds no difference between the wages of men and women with the same jobs. These studies dovetail with an emerging popular view that, either because of sexism or because of personal choice, women are more likely to take time off from their jobs to care for children than men are; sexism or personal choice also affects such "premarket" factors as the choice of major, and women tend to choose less remunerative majors than men do—English rather than engineering. If employers should pay people according to their qualifications, if taking time off reduces one's productivity relative to those who do not take time off, and if women are more likely to take time off for childcare than men are, women will continue to be paid less than men. If this conclusion is not acceptable as a matter of public policy, then new laws need to be enacted. The length of the statute of limitations for existing antidiscrimination law is almost completely irrelevant.
What of the costs to business? Unfortunately, these costs are also hard to measure. Businesses claim that they will be overwhelmed with litigation if the Ledbetter Act passes, but the main effect of laws that expand the rights of employees is not to create litigation but to cause businesses to change their behavior in order to avoid litigation. The only legitimate concern is that businesses will start paying workers the same amount even though their productivity differs because they fear that judges and juries will not be able to understand how productivity is determined. This would raise labor costs and hence prices for consumers; but as far as I know, no one has any idea whether these costs are high or low.
Given the tremendous uncertainty on both sides of the equation, the case for the Ledbetter Act is an uncertain one. Certainly, sex discrimination continues to occur, and as long as it continues to occur, it makes sense to give victims a legal remedy. But the implications of this observation for the statute of limitations question are, at best, complicated. If it is true that victims have trouble discovering that their wages are the result of discrimination, and employers are adept at concealing this information, that would be a better argument for equitable tolling than for the provisions in the act.
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Earlier this week, National Review's excellent "Bench Memos" blog featured Gerard Bradley's thoughts on Justice William Brennan's "curious rise to the Supreme Court." I dare say that Bradley omits the most "curious" aspect of Brennan's appointment—namely, a case of mistaken identity that apparently led to his nomination.
Al Regnery included this account on pages 217-18 of his recent book, Upstream: The Ascendance of American Conservatism.* He writes that Attorney General Herbert Brownwell, desperate to find an alternative to Robert Taft-supporter Judge John Danaher, discovered Brennan at an ABA conference.
Witneessing Brennan's ABA speech, Brownwell concluded that he was the sort of "judicial conservative" that they wanted, and "hurried back to the White House to tell Eisenhower that he had found the perfect candidate: the fact that Brennan was a Democrat only made him more appealing, as Ike wanted to demonstrate that his administration was bipartisan."
So Brennan was offered the job. And then:
... Eisenhower got a call from his old friend Arthur Vanderbilt, chief judge of the New Jersey Supreme Court, a Republican, who wanted to know why Ike was appointing a liberal Democrat to the high court. No liberal, Ike replied, and referred Vandenberg [sic] to the speech Brennan had delivered before the ABA. After a long pause, Vanderbilt told Eisenhower that Brennan had not written the speech, he had; Vanderbilt had sent Brennan to deliver it in his place, as he had laryngitis.
Whoops. I dare say that such mix-ups wouldn't occur today. Long gone are the days when a Brennan or Holmes or Souter can get that job without a thorough ideological background check by the president's men.
* Unfortunately, Regnery cites a secondary source (Chronicles magazine) for this story, so I can't say for certain that this story isn't too good to be true.
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But since they're not, Ben is of course right that pirates should be detained if they've done bad things. That said, I'm not sure it's fair take the U.K.'s apparent move not to detain some pirates to be the human rights law failure Ben does.
For one thing, the flip side of the story of this particularly silly decision out of the British Foreign Office is the larger story about the United States and (wait for it) France working vigorously together (with the U.N.) to crack down on (and detain) pirates off the Somalia coast. For another thing, it'd be reasonable to ask whether Britain's skittishness about anti-pirate coalition efforts here is bound up with its ongoing discomfort working with the United States in detention operations generally (in light of our recent track record of torturing folks we detain). In any case, I wouldn't claim the U.K. decision as an unalloyed victory for human rights. But I always balk a bit at generalizing from this kind of one-off case. Just because the occasional O.J. Simpson trial makes the criminal justice system look loopy doesn't mean we throw the whole thing out and start from scratch.
Now, Ben's larger question about the potential dilemma posed by nonrefoulement obligations is an important one. (Nonrefoulement generally refers to treaty obligations not to send individuals back to countries where they're likely to face some horrific abuse of their own human rights.) The U.K. is right that they have treaty obligations not to send detainees back to places where they're likely to be tortured. So what's a well-meaning nation to do with the pirates (or Gitmo-bound terrorists) it arrests? Here, I'd say piracy is a much easier case. It could be that there's some important law-of-the-sea rules I don't know about (so guidance here most welcome), but my guess is piracy pretty much everywhere is a crime. And if there are regulatory gaps in maritime security law that make it not a crime (or not prosecutable except in the home country of the pirate), then those laws need to be fixed. Not a fix: setting them free in any country where they'll either be tortured or be set free and go about torturing folks themselves. In all events, I'm not sure it's possible to blame human rights law for much complicating this.
Gitmo, as Ben well knows, is a whole other kettle of fish because, among other reasons, many of the detainees there don't seem to have committed any crime or, it is often asserted, haven't committed any crime we can reasonably prove. So without wading into those treacherous waters (happy to get back to that debate in another post sometime, Ben), let's focus on the folks who actually pose the nonrefoulement question. These are the detainees we've decided we want to let go from Gitmo but just don't know where to put them when they're freed—because they face torture in their home country and because no other country in the world is willing to take in a former resident of Gitmo even after the U.S. government has publicly concluded he poses no threat to us.
Here I'd say this isn't a dilemma, it's where the human rights rubber meets the road. When the United States, the United Kingdom, and a host of other nations signed onto the treaties that create asylum obligations, they were making a commitment to take in those facing gross human rights abuse overseas. It's possible that the United States would be having more success placing some of these (dare it be said, innocent) Gitmo detainees with other asylum hosts if we hadn't spent much of the past seven years telling the rest of the world that they were all the worst of the worst. Or making it clear to the rest of the world how little we care what they think. But feel free to come back at me on this. ...
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Diane’s post highlights an excellent example of the often perverse consequences of human-rights policies for, well, human rights.
There is no doubt that modern pirates commit horrible crimes against civilians; that's their chosen profession. Yet because of the combination of British asylum law and the international obligation not to return people to countries that may mistreat them, the Foreign Office has apparently instructed the Royal Navy not even to detain them on the high seas. Diane acknowledges that this solicitude for the human rights of pirates "will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today’s treatment of persons caught up in what the Bush Administration calls its 'Global War on Terror.' " But it seems to me it should also trouble those concerned with the human rights of the civilians whom these pirates kill, rob, and terrorize.
The basic problem is that while we evaluate government actions in human rights terms, we generally don’t evaluate government inactions in human rights terms. So the decision to detain a pirate we see as potentially infringing on his human rights in any number of ways. The decision, however, willfully to ignore him—knowing full well what he is doing to innocent people—we perversely see as a victory for human rights. The government, after all, has declined to detain him. In the example Diane cites from the Sunday Times of London, it has declined to return him to Somalia, where he could "face beheading for murder or having a hand chopped off for theft." But the result is a disregard for the human rights of the civilians unlucky enough to be terrorized by non-state, as opposed to state, actors. This is not a good trade in human-rights terms.
This is not a problem limited to piracy. We consistently talk about releases from Guantanamo as a human-rights good—without much consideration for the human-rights consequences of releasing admitted combatants (as many detainees there are) who may then go on to kill civilians (as some have). Such releases should present a human right puzzle, not an easy call. In Afghanistan, some European militaries go so far as to generally decline to detain Taliban fighters for any length of time—the result being that unless the Afghan government or the U.S. military takes custody of them, people committed to killing Afghan civilians get turned loose to do so. I can’t see by what calculation—moral, legal, or pragmatic—such human-rights policies represent a simple net human-rights gain.
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Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.
So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him—or, in the case of pirates like Grace O'Malley—her. Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st-century pirates about whom my IntLawGrrl co-blogger, Naomi Norberg, posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's nonrefoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:
The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.
Not all Britons share this view. The Times quoted Julian Brazier, a Conservative Member of Parliament:
'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'
No doubt the notion that even hostes humanis have human rights also will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today's treatment of persons caught up in what the Bush Administration calls its "Global War on Terror."
(Cross-posted at IntLawGrrls blog; thanks to Berkeley Law student Lindsay M. Harris for the heads up on the Times story.)
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Jack argues that one of the government's legal approaches to terror threats-bring early cases against people who pose remote threats, rather than waiting for them to act, so as to disrupt terror plots even at the risk of failing to secure convictions-is characteristic of the new National Surveillance State that we now live in, an idea that is discussed in this paper by Jack and Sandy Levinson. Orin says no big deal about "National Surveillance": in the modern world, governments use computers in the course of detecting criminal activity, but government use of computers is not the same as living in a "surveillance state." Jack says he was not criticizing the FBI in particular, or the government's use of computer technology for surveillance in general; he was just pointing out that this modern trend calls for careful thought given its possibly disturbing implications for privacy and civil liberties. Orin says that this claim is also no big deal. A few further thoughts:
1. People want both to control information about themselves and to obtain information about others. Various customs, practices, institutions, and laws reflect these general preferences. When technologies change, it can become easier or harder to control information about oneself. The Internet, in particular, seems to make it easier to obtain information about others, and harder to control information about oneself. Is this change good or bad? It is hard to say in the abstract. Certainly, people who are very private are worse off, while people who seek information about others (employers, colleagues, potential mates, potential friends, and so forth) are better off. Law and policy will not try to turn back the clock to 1990; but it will attack problems piecemeal, for example, the risk that computerized medical records will fall into the wrong hands can be addressed (and has been addressed) with regulations directed at hospitals.
2. There is a technological arms race between governments and criminals. Every new technology gives criminals new methods to commit crimes, and governments new methods to detect them. For example, computer technology enables criminals to obtain personal information that can be exploited for illegal ends, while it allows governments to improve tracking of criminal behavior, surveillance, and so forth. There is no rule that a technological advance must benefit one side or the other, or keep the balance of power constant. When technological change favors criminal activity, it will be impossible to maintain the existing crime rate without handing government new powers.
3. In the battle between government and criminals, innocents can be victims. If the government needs to be able to monitor email messages because criminals conspire by email, then the government will have the capacity to monitor email messages of innocent people. Unavoidably, this power will be abused by some agents, and innocent people will be harmed.
4. As Jack seems to be aware, the constitutional implications of these trends are highly ambiguous. If technological change hands the government a highly non-invasive, hard-to-abuse, and effective means for solving crimes and preventing criminal behavior, then we might want to restrict the government's powers along other dimensions where abuse occurs. If technological change favors criminals, we might need to strengthen the government's hand (for example, weaker search warrant rules) so that it can keep up with criminals. I doubt that one can say much beyond this; one must look at problems as they arise, and make the tradeoffs as best one can in light of the specifics of a particular case.
A final point concerns Jack's initial post, which claims or implies that in the national security state, preventive measures will take on additional significance, relative to the traditional law enforcement model of waiting for crimes to occur and then investigating them. Although it is true that technological changes might increase the relative value of preventive measures, it is also true that it can have the reverse effect. DNA matching technology, so far, has been useful for investigation of crime, not preventive measures. Computer technology makes surveillance more effective, but it also helps traditional law enforcement. Recent advances in computer technology can be exploited under both the prevention and the law enforcement model; there is no reason to believe that government will shift resources from one to the other.
The recent preventive detention measures have less to do with technology than with the nature of our current security environment. Preventive measures are more important for large-scale threats than law enforcement is. That is why during wartime, preventive measures are always used. During the early cold war, we lived in a national surveillance state: the government monitored suspected communists, and this practice also led to monitoring of the civil rights and anti-war movements. The government used the technology that was then available; it would make no sense to say that technological changes of that era caused the government to engage in surveillance, or more than it would otherwise have, using older technologies. Surveillance has become more important again in the wake of 9/11, but if the threat posed by international terrorism ever declines, then we can expect surveillance of potential terrorist threats, along with incidental abuse that harms innocents, to decline as well.
But there is a reason to believe that relatively intense level of surveillance is here to stay. That reason is not so much the threat of international terrorism, but technology's recent contributions to instruments of death. As it becomes easier for criminals to manufacture highly destructive explosives and deadly biological and chemical agents, we might all decide that a high degree of government surveillance is a price worth paying for a reasonable level of security. After-the-fact investigation and punishment are wholly inadequate when criminals seek to cause mass destruction and (as criminals frequently are) they are willing to risk their lives in order to achieve their illegal goals.
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Thanks Emily for pointing out the wrongheadedness of McCain’s opposition to the Equal Pay Bill.
This very mild piece of legislation would have undone an incredibly bad Supreme Court decision in Ledbetter which held that the filing period to bring a Title VII action for discriminatory compensation begins running when the employer first discriminates, even if the employer continues to in fact discriminate for years afterward. The Court in Ledbetter wrongly focused on an discriminatory state of mind—which, contrary to Justice Alito’s assertion in that case is not the sine qua non of unlawful discrimination but rather simply evidence of it---rather than the actual discrimination: differential treatment because of sex.
As I wrote in Slate last year, it’s pretty obvious that the actual discrimination is ongoing as long the employee is in fact receiving lower pay because of her sex, even if the subsequent low paychecks are simply the carryover result of the initial discriminatory decision. It doesn’t (or shouldn’t) matter if the person setting later salaries based on the original discriminatory salary isn’t motivated by discriminatory intent—the employer is discriminating as long as it is in fact paying the woman less because of her sex. The point of Title VII isn’t just to punish bad actors with evil intentions—it’s also to prevent discriminatory actions and the injuries that result from them.
And, contra McCain, far from encouraging frivolous litigation, the Equal Pay Act might even discourage it. As Emily points out, in many cases it take a while for the employee to find out that she’s being paid less than other people doing the same work (employees rarely discuss their salaries with each other and of course management has every incentive not to publicize pay disparities)—but Ledbetter says that’s tough—if you don’t find out after until after the quite short filing period ends (either 180 or 300 days), your action is time barred. This actually encourages anyone with a potential claim to hurry up and file—waiting until you’re sure you’ve been discriminated against will, under Ledbetter, often mean your case is time barred.
I have to say it’s hard for me to believe that anyone who is really committed to equal pay would oppose this mild and sensible piece of legislation-- it doesn't open us up to lawsuits for "all kinds of problems"-- only for the problem of discriminatory pay. Opposition suggests that McCain is most concerned with reducing the absolute number of cases filed—whether or not they have merit.
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Thanks to Marty and Phil for highlighting the recent NYT report that the U.S. incarcerates more of its people-and for longer periods-than any other nation, bar none. I was disappointed, though, that the story did not discuss the devastatingly disproportionate rates of imprisonment of racial minorities.
The U.S. Department of Justice's Bureau of Justice Statistics estimates that 32 percent of African American males can expect to be imprisoned during their lifetimes, compared to 5.9 percent of White males. The explanation is complicated, and much relates to how we treat drugs: the crack/cocaine disparity and beyond that, the fact that African Americans face disproportionately higher rates of arrest, prosecution, and conviction and disproportionately longer sentences. And those disparities, of course, translate to amazingly high rates of African Americans who subsequently are prohibited from voting, unable to find jobs, ineligible for student loans . . . the ramifications go on and on and on.
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Last night, Senate Republicans killed the Equal Pay Bill, which would have undone the Supreme Court's bad deed in a case last term called Ledbetter v. Goodyear Tire and Rubber Co. Lily Ledbetter sued Goodyear for sex discrimination because she earned less than men in similar positions--a fact she proved in court. But on appeal, the Supreme Court found that Ledbetter's suit was too late, by setting the clock according to Ledbetter's first unfairly low pay check, rather than the ongoing low salary she continued to receive years later. It didn't matter when she found out she was being shortchanged--only when Goodyear started doing so.
John McCain said Wednesday that he supports "pay equity for women," but opposes the fix for Ledbetter's plight in the Equal Pay Bill because it "opens us up to lawsuits for all kinds of problems." That has a nice anti-litigation ring, but does it make sense? As Rich Ford pointed out in Slate after the Supreme Court's decision, the clear lesson the case holds for employees is "Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure." The Equal Pay Bill might give rise to more meritorious law suits. But couldn't it also stave off some losers--Rich or anyone else, thoughts? And what does it mean to be for pay equity for women while opposing what's on offer to actually help achieve it?
(Cross posted on Slate's women's blog, XX Factor.)
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A new poll that shows that 16 percent of Pennsylvania white voters who were asked whether “the race of candidate was important” said yes—80 percent saidno. Of those who answered “yes” 54 percent said they’d support Obama in the general election—27 percent said they’d defect to McCain and 16percent said they’d stay home on election day and polish their guns, cuddle up with their bibles and nurse their bitterness.
The New York Times says that this means “Obama’s race could be a problem in the general election.” First reaction: a hearty “no duh”. Butlet’s also unpack those poll results and ask what they really tell us. Of course his race will repel, well, racist voters, of which no one doubts there are some. But before we conclude that 16 percent of Pennsylvania whites are racists, notice that of the 16 percent who said race mattered, 54 would support Obama, which suggests that for some Obama’s race is a plus. But what about those that won’t support him—about 7 percent? All racists? Isn’t it at least possible that some won’t support him despite, rather than because of his race?
I tried this thought experiment: if asked whether the sex of the candidate is important, I would answer “yes” because I think all things being equal it would be great to have a woman President. But sex is not enough to convince me to support Clinton over Obama—I support Obama despite his sex and because of his other virtues. Truth be told, alot of people I know-- including a lot of feminists--are pretty sick of Hillary Clinton, Bill Clinton, even Chelsea, who, unlike her parents really hasn’t done anything to deserve their contempt, and they'd probably have it in for Socks the cat too if he turned up on TV. Now I suppose some of them mightwell answer a poll: yes I think sex is important (I’d love to have a woman President--just not Hillary Clinton)---and no if Hillary is the nominee, by gum I’ll vote for McCain, or Ralph Nader, or stay home on election day and cuddle up with a cold martini and my warm, fuzzy Northern Californian sense of superiority. And the Times would take that answer as evidence of voter sexism. I imagine some Clinton supporters are beginning to feel equally irritated with Obama as this nasty campaign drags on. So maybe a lot this polling data is evidence of the costs of a protracted fight for the nomination, rather than inveterate racism on the part of voters.
Another piece of potentially misleading poll data: Clinton supporters are much more likely to defect to McCain or stay home if Obama is the nominee than Obama supporters are to defect or stay home if Clinton wins. Isn’t is possible that this result is skewed by the fact that Clinton is losing and Obama looks like the inevitable nominee? If my candidate is poised to win, I can afford to be magnanimous: “of course Hillary Clinton is a fine candidate and if she were to win (but of course she won’t) I’d support her energetically.” But if my person is losing, I might start to get a tiny bit, well, bitter. And maybe I’d even say things like “if that old school, politics-as-usual beltway insider steals the nomination in a brokered convention with her insider connections and underhanded politics—well, I’ll be dammed if I vote for her! I’d rather have Attila the Hun (or JohnMcCain) than continue the corrupt Clinton dynasty!” You haven’t heard alot of this because Obama is the presumptive nominee, but post-Pennsylvania you’re already hearing rumblings of defections to the Green party among Obama supporters should Clinton get the nomination.
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Phil says "And, the fact that America still leads the world in violent crime raises fundamental questions about whether we're getting it right." The premise is not correct. According to the United Nations world survey (the latest I could find was 2002, so a little dated, but probably still roughly accurate), the U.S. murder rate is 5.62 per 100,000 inhabitants, well below that of lots of other countries. The data are assembled in an easy-to-read graph here. Clearly, your chance of being murdered in the United States is higher than in Europe, Japan, and Saudi Arabia (!), but you would be worse off in Mexico or Thailand.
What is true is that the United States is more dangerous than any other rich country, and maybe this is what Phil meant. But I'm skeptical that one can draw any inferences about incarceration policy from the differences between these countries and the United States. There are just too many confounding variables; empiricists who do cross-country studies of crime, gun control, and the like, are well aware of this. Because the United States is richer than Mexico, it can build more prisons and incarcerate more people. It does not speak poorly of the United States that we imprison more people per capita than Mexico does. Because the United States is wealthier than Mexico is, it can devote more resources to the crime problem. Within the United States, it seems to be true that when incarceration rises, crime falls. As long as violent crime remains a significant problem in this country, it is logical to have a large prison population, though to be sure there are no doubt many ways that prison policy can be improved at the margin.
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Marty, I agree with your suggestion that yesterday's story by Adam Liptak in the New York Times may be the biggest legal story of the last several years -- notwithstanding all the ink and electrons we've spilled about torture, executive power, and so many other subjects. The fact that America leads the world in incarceration is a huge statement about how we view the rule of law, and the role of criminal justice in our society. And, the fact that America still leads the world in violent crime raises fundamental questions about whether we're getting it right.
However, I was a bit taken aback by Adam's statement regarding the link between jail time and crime:
There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much. [emphasis added]
Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.
Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.
Little question? Really? I think this assumes facts not in evidence about the relationship between incarceration and crime. Adam alludes to this later in the story, but there are big questions about the ex ante and ex post effects of incarceration (and particularly the length and quality of incarceration) on crime. There is an enormous body of literature discussing these questions in the drug crime context, and there is also literature to suggest that incarceration for minor crimes may increase violent and serious crime by hardening criminals inside the joint and networking them with other criminal actors.
Clearly, incarceration has some effect on crime. As the saying goes, a thug in prison can't rob you. But I think there's a lot more to this than what the story reports. What do you think?
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The accounts in recent days of the Vice President and several agency heads and other high government officials (Ashcroft, Rice, Powell, Tenet, Gonzales, Rumsfeld, et al.), convening meeting after meeting at which they carefully and dispassionately reached a consensus that the United States should establish a systematized, bureaucratic regime of officially sanctioned waterboarding and other plainly proscribed war crimes have struck me as old news -- not terribly surprising: After all, last year the President himself publicly boasted of having personally authorized the CIA black sites program and its "enhanced interrogation techniques," which we know to have included waterboarding, hypothermia, stress positions, severe sleep and sensory deprivation, threats to detainees and their families, etc. -- all conduct that is prohibited by several legal norms and that this nation has traditionally prosecuted as war crimes when engaged in by others. If the President authorized it, well then it should come as no shock that there would first have been principals meetings at which this all-important program was discussed and recommended.
What is alarming -- grotesque, even -- is not that such meetings occurred, but that, as far as we know, no one at such meetings interrupted the flow of discussion to point out the obvious --
-- continue reading at Balkinization.
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. . . would almost certainly have to be this one.
And the problem is so gargantuan, so intractable, that despair seems to be the only possible response -- particularly if, like me, you've recently finished watching the gut-wrenching Season Three of The Wire on DVD.
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Anyone happen to catch ABC’s Boston Legal last night? I’ve never watched the show, but somehow found myself gaping through an episode in which James Spader argues what turned out to be last week’s Louisiana capital rape case before an astoundingly good simulation of the current high court. They found actors who looked enough like the justices to be credible, Spader pretty much argued the brief in Kennedy, and the writers allowed an entire 15 minute segment just for his oral argument. I can’t recall another time I’ve seen anything as close to the real justices represented on prime time television, or a moment in which someone in the popular culture – outside an op/ed -- really took on the Roberts Court as a collection of political actors rather than an abstract blur of black robe.
To be sure, David E. Kelly’s brief against the Roberts Court (too pro-death, too pro-business, too pro-Bush . . .) was more than a little overheated. The four conservative justices looked a little too smug and jowly. When Spader segued from arguing capital rape, to Bush v Gore and then the Exxon case I nearly threw a shoe at him. And when he cowed the conservatives into silence by reminding them of the court’s role as the nation’s “conscience” and its duty to the ideal of "mercy" I actually laughed out loud. Still, I am guessing ABC’s viewers learned more about the Supreme Court – how it looks and feels inside, how argument happens, how the various Justices behave, and how ideology is at least part of what they do – than they would have done in anything short of an actual visit to the court. And I can’t help but think that if more television and movies actually dealt with the court -- even a fictionalized one -- the public would better understand why the court matters and why elections matter.
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With the Pennsylvania primary too close to call, the New York Times focuses our attention on the otherwise unnoticed John McCain.
Once again, the Times is implicitly questioning Senator McCain's bona fides as a political reformer. Supposedly after his near-death ethics experience in the "Keating five" Savings and Loan scandal, the Senator has been careful to avoid according special privileges to the well-heeled. There seem to have been exceptions, however, including a notable one for well-heeled "friend" who has also arranged for donations to Senator McCain's presidential campaign in excess of $250,000.
Today's profile by David Kirkpatrick and Jim Rutenberg of wealthy Arizona real estate developer Donald R. Diamond reveals that Senator McCain has been pivotal to Mr. Diamond's real estate success, much of it achieved by exchanging properties with the United States on very favorable terms.
It appears Senator McCain helped Mr. Diamond acquire, among other properties, Fort Ord, the former military base in the extraordinarily beautiful Monterey California. When the deal ran into trouble, Senator McCain assigned an aide who facilitated matters with the Pentagon and sped things up. Mr. Diamond described by Senator McCain as "a close personal friend" was of course grateful -- well, to a point.
Referring to the help he received from Senator McCain and about which he bragged to local officials would allow them to "get through some of the red tape in dealing with the Army," Mr. Diamond felt more or less entitled. In a startling, yet revealing, comment Mr. Diamond contended "I think that is what Congress people are supposed to do for constituents. When you have a big, significant businessman like myself, why wouldn't you want to help move things along? What else would they do? They waste so much time with legislation."
In the various endorsements of Mr. Diamond used to intervene with other government officials, John McCain calls his friend -- and it would seem modern-day commentator on American democracy -- "a citizen's, citizen" -- yeah, he's a veritable Alexis de Tocqueville.
So here's hoping that Pennsylvania will not be afraid to nominate someone for president of the United States who at least promises with some plausibility to roil the existing order that passes itself off as congressional ethics.
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Jack is right to point out that the privileges or immunities clause of the 14th amendment was indeed, as Senator Howard at the time explained, intended to incorporate Corfield's partial listing of natural rights as well as the Bill of Rights, including the Second Amendment, as against the States declaring the body of these rights to be the true deposit of U.S. citizenship. Were the Slaughterhouse Cases and its misinterpretation of the privileges or immunities clause to be overturned, I concede that the people in the several states would no longer have an unfettered legislative ability under the 10th amendment "either to broadly protect individual rights of gun ownership or the opposite," at least insofar as "the opposite" -- that is, restriction would need to comport with the incorporated Second Amendment.
It is not clear to me however how the 14th amendment is relevant to the scope of Congress's authority over the District of Columbia, or the District's power which it has by delegation. As I mentioned in my earlier post, Congress is directly limited by the Second Amendment in terms of its regulation of the several states, but is it contended that there is a reverse incorporation of the 14th amendment privileges or immunities clause as against the Congress in its governance of the District of Columbia? If that is what is being contended, more than Senator Howard's Corfield and Bill of Rights reference in the legislative history would be needed to establish that fact and what it means -- at least for me. For now, as I see it, with or without the 14th amendment and the proper interpretation of the privileges or immunities clause, the District of Columbia may ban handguns or do something less.
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I wanted to follow up Doug's post about originalism and the Second Amendment with a question: What effect does he think the Fourteenth Amendment had on this issue? The Fourteenth Amendment, while directed primarily at states, nevertheless also speaks of the privileges or immunities of citizens of the United States. Such privileges or immunities of national citizenship, if they truly are such, must bind the federal government as well as the states. The framers of the Fourteenth Amendment assumed that the right to keep and bear arms for self defense was one of those privileges or immunities. If we are truly to be originalists, can we disregard other points of origin and their impact on our reasoning? Surely 1787 and 1791 are not the only moments that matter. The Supreme Court, it is true, wrote the Privileges or Immunities clause out of existence in the Slaughter-House cases of 1873. But as Doug himself puts it, "to the extent it is consistent with the original understanding [N.B., I would say original meaning], precedent must be respected." That cannot be said of Slaughter-House.
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The Supreme Court is cogitating over the meaning of the Second Amendment. I have previously suggested that it might wish to research and draft the opinion first before voting. It is an important case not just for the scope of a largely under-interpreted provision, but also for the legitimacy of the Court.
The oral argument, which of course is not a sure guide, suggests that a majority of the Court may be contemplating a ruling that will be incapable of withstanding examination under originalist methodology, and once again, expose the Court to the claim that it is a political body robed in law's clothing. The Court should avoid this, especially in a political season.
An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble. Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution. Third, an originalist interpretation must be honest about the possibility of obsolescence -- namely, that something is in the Constitution which may have no modern analog. Fourth, to the extent it is consistent with the original understanding, precedent must be respected.
What do these principles suggest is the meaning of the Second Amendment? Just this:
The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states. The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite.
It may be interesting to speculate how the Second Amendment in its protection of the states limits the authority of the federal government under either Article I or the commerce power, but since there is no state in the litigation, as a matter of prudence and restraint, the Court should refrain from such speculation. Since I'm not a court, however, and the Court may disregard the above understanding of the Second Amendment, let me briefly speculate for academic purposes on what Congress' authority is vis-à-vis the states.
Were D.C. a state, which is not, Congress's ability to encroach upon the right of individuals to keep and bear arms for militia related purposes would necessarily be limited by the Second Amendment. However, contrary to some of the speculation at the oral argument, there is no free standing right of self-defense codified in the Second Amendment, even as that may well have existed as a common law right at the time the Second Amendment was drafted and ratified. However, insofar as those serving in a local militia within a state at the time of ratification would ordinarily be expected to possess weapons that could also be employed in self-defense, the interpretation of the words "keep and bear arms" would modernly support that right as well.
This interpretation would be entirely consistent with the Supreme Court's prior ruling in Miller and the abundant circuit court precedent applying Miller that, with two recent exceptions, overwhelmingly construed the Second Amendment as protecting only militia-related arms as they might be employed by someone eligible for militia-related status. Giving the broadest gloss on history, militia-related status at the time of the Second Amendment could have theoretically included all able-bodied men and women.
So what would that mean in this case for the DC handgun law, were that law enacted by Congress to restrict a state? First, it might be plausible to find this particular case to be non-justiciable if Mr. Heller is not militia eligible. Assuming there is someone with standing in the case, a congressional ban on handguns, a commonly used weapon for militia service at the time of the Second Amendment, would be unconstitutional. While such a handgun ban by Congress against the states might be argued to be within Congress' Article I militia authority as an aspect of "organizing, arming, and disciplining, the militia," which is a power expressly given to Congress limited only in the un-amended text by the power of the states to make the appointment of officers and the states' authority to follow the training regimen for the militia as prescribed by Congress, that argument would leave the Second Amendment without meaning. It is here where the amendment was intended to be a limitation upon congressional power.
So let me be clear: had the DC law been enacted by Congress and applied to a militia eligible individual within the several states, it would be unconstitutional. But there is one further complication, and it cannot be overlooked. Modernly, the Second Amendment may be no limitation upon federal authority so long as there is no analog to the founding generation militia in the several states (the National Guard not operating on a bring your own weapons basis). The problem of constitutional obsolescence here is real and in an appropriate case could not be avoided.
It is interesting to speculate about all this, but again, since none of it is before the Court in Heller -- Congress not having chosen to regulate individual rights within the states -- there is absolutely no reason for the Court to give an answer as to the constitutionality of the DC handgun ban had it been enacted by Congress as against the states. Likewise, Solicitor General Clement will have to wait for another day to have the definitive assessment of what standard of review should apply to federal gun regulation as applied to the states.
As to the authority of the Congress of the United States, including the derivative authority of the City Council of Washington, DC, to ban handguns or do something less, the Second Amendment is no limitation. Congress is free to empower or revoke the DC City Council's authority as it sees fit on this subject. Since Congress has not revoked the power of the DC City Council to legislate upon this issue, Washington, DC is free to ban handguns generally.
Given the vibrant empirical debate over whether the possession of handguns within the home deters violent crime, this fortuitously allows Washington, DC to be a genuine case study, thereby contributing in its own way, to the laboratory value of federalism.
By the way, two of the nation's most preeminent champions of both federalism and individual liberty, Bob Levy and Chip Mellor, have contributed a different individual rights view of the Second Amendment at least as it applies to the District of Columbia in their new book, The Dirty Dozen, which I recommend not just for an opposing point of view, but also for its splendid writing including the untold back story of how the Miller case was argued only by one side.
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To the "more pie" metaphor advanced today by Adam and years ago by Orin, let me add the "more homework" spin on same.
It's a favorite aphorism of U.S. Supreme Court Justice Stephen G. Breyer; I've heard him use it 2, maybe 3 times, so it's not surprising the phrase has a life on the web. Here it is:
"The working life of the Supreme Court justice is reading briefs and writing opinions. So a lot of it is spent here at the desk, with my word processor. I usually say to students what I told my son when he was growing up: If you do homework very well, you will get a job where you can do homework the rest of your life."
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Today I encountered two insights simply too good not to reprint here. First, from Jack W Burtch, Jr.'s essay [pdf] in the new issue of the Virginia Lawyer:
"Becoming a partner is a decision, not a reward. . . . Becoming a partner in a law firm is like winning a pie-eating contest where the prize is more pie."
Second, from the latest installment of John Dickerson's peerless Slate coverage of the presidential campaigns:
"94.3 percent of the time Obama never really tells the audiences
anything uncomfortable though he boasts that he will 100 percent of the
time. What he promises them instead is to tell people they don't like
(auto executives and Wall Street fat cats) what those groups don't want to hear."
Update: Unsurprisingly, my esteemed colleague traced the origins of the "pie" quip long ago.
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As Jack mulls over a response to Orin on computers in the "national surveillance state," I'd like to raise a different set of beefs with the Jack-type response to today's Washington Post's story about the government's recent failures in terrorism trials. Two points.
First, it seems awfully easy to come up with spin either way in interpreting what a mistrial or acquittal in any particular terrorism case really means. Jack looks at the Post story and sees a trend in counterterrorism criminal justice toward "violating people's legal rights by bringing prosecutions too early and with insufficient evidence to convict." (I'm not actually sure what rights Jack thinks it violates if a prosecutor brings a case she believes in good faith amounts to criminal activity and the jury later acquits.) Others (including others quoted in the Post) as plausibly see mistrial or acquittal in such cases as just a sign of the great jury trial system at work. More broadly, for as many administrative spokespeople as I've heard say the approach changed after 9/11, and the FBI is newly in the "prevention" business now, I've heard other FBI officials say that their approach to crime (and terrorism in particular) has always been prevention. Both sets of arguments seem to me far easier to make than to prove.
But that brings me to point two: anecdotal reports like the Post's are anecdotal. They may be a signal of the phenomenon Jack fears. Or not. We'd have to know more about what's going on - a lot more - to say for sure. How many of these (for lack of a better term) ‘preventive' prosecutions post-9/11 have been brought? What statistics exist about what we were doing in this realm (or one closely analogous) before 9/11? What's a typical win/loss record in some control set of criminal cases? What's the total win/loss record in this particular set? And inflated rhetoric of attorneys general notwithstanding, on what basis have prosecutors decided to bring these cases - because they were desperate for some way to lock these guys up, or because they actually thought these guys had committed a crime?
Theory can be enormously helpful in the realm of counterterrorism, but answers to these particular questions (unlike so many others in this field) are actually knowable. I'd thus particularly applaud the work of folks like Bobby Chesney, one of the few scholars I know who is studying what's actually happening in more than one case at a time, and who is described by the Post as painting a "complicated" picture about the federal record in pursuing such ‘preventive' cases. Jack, you'll no doubt berate me, too, for not reading enough of your work, but I guess I suspect Bobby's right - the real "trend" picture is more complicated than the one you paint.
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Jack suggests that I have misunderstood his argument about a "National Surveillance State," but I'm not so sure -- and I'm pretty confident he has misunderstood my criticism.
To be clear, my point is not specifically about responding to threats, or security issues more generally. Rather, my argument is about perceptions of computerization. As we increasingly move from physical conduct to digital equivalents, the computerization of everything increases. What we are observing is a general shift to increasing computerization by everyone -- individuals, groups, businesses, even governments -- not necessarily a shift to greater surveillance or greater surveillance powers. My claim is that it is easy to confuse these two possible trends; what looks like a shift to greater surveillance powers is really just one small part of the societal shift to increasing computerization.
Perhaps the basic claim of "the National Surveillance State" is just that as we all use computers more and more, there will be more computerized information, and that we need to think about where all that data is going and what it is used to do. The shift can alter the balance of power among individuals and institutions in many complex ways, and we need to constantly reassess the balance. If that's the argument, I agree with it. Moreover, I'm not sure anyone would disagree -- although one might object that the label "National Surveillance State" is not a very descriptive way to make the point. But I had thought based on Jack & Sandy's article and Jack's blog posts that the claim was much more government-specific than that.
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Eric, nothing that the pope said Friday favored one set of rights over another. Indeed, as my post stated, his speech to the U.N. General Assembly included "a tacit reprimand to those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa." (emphasis added) The point I'd intended to underscore was that the pope had reaffirmed the indivisibility of both sets of rights, the civil/political, on the one hand, and the economic/social/cultural, on the other. Indivisibility was inherent in the 1948 Universal Declaration of Human Rights, but frayed when Cold War geopolitics pushed the U.N. Human Rights Commission to separate the 2 sets as it began the process of drafting treaties designed to make binding all those rights that states had endorsed in the nonbinding Declaration. That separation, which seemed essential at the height of the Cold War, may be less so today: 160 countries are full members of the 1977 International Covenant on Civil and Political Rights, while 157 countries are full members of the 1977 International Covenant on Economic, Social, and Cultural Rights. That means that 3/4 of all the United Nations' member states are firmly in each Convenant's camp. Vestiges of Cold War concerns may be found, however, in the fact that the United States is not party to the latter Covenant and China is not party to the former.
As for China: application of the concept of indivisibility means that China is no more a "champion" of human rights than any other state. The role that the Chinese state has played in alleviating poverty deserves attention. Indeed, how each country addresses the basic needs of persons within its jurisdiction deserves note, as I've argued with regard to the United States in a forthcoming essay just posted at SSRN. But the costs of such programs also must be assessed, respecting matters as wide-ranging as the health problems and the repressions of civil liberties that may result from economic development at all costs. (Here, too, insert a "vice versa.")
On 2 points, it seems, we agree. 1st: Athletes honored to carry the torch a bit of the way toward the 2008 Olympics should not have to fear anger and assault as they run through the streets of their home country. 2d: Comprehensive, critical comparison of the nature and extent of states' programs to protect human rights rarely will yield a clear "winner."
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Convictions blogger Eric Posner debates National Security Network executive director Heather Hurlbert over at bloggingheads.tv on a range of subjects from Bush's climate change speech to executive power to what President Obama might do if a country like Spain were to arrest John Yoo on charges relating to the torture memoranda.
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Orin has not read all of my work on the National Surveillance State, so perhaps he may be forgiven for not recognizing that I emphasize the very points he mistakenly believes to be a critique of my argument: I argue that as times change, increasingly powerful information technologies are placed in the hands of governments and private parties alike. Governments must therefore increase investments in and methods of surveillance in order to meet new threats and new abilities to escape detection through traditional methods. There is no disagreement here. At the same time governments also face pressures to use increasingly powerful techniques of information collection, collation and analysis not only to provide security but also to deliver social services. Finally, it is important to realize that much, if not most, of the new information gathering, analysis, and surveillance in the National Surveillance State is in private hands.
In the National Surveillance State, the government increasingly uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State-- a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information. The characteristic features of the National Surveillance state are increasingly information-rich techniques of governance, the increased power of privately held information technologies and surveillance, increased cooperation between public and private enterprises in collecting, collating and analyzing information, and the increased adoption of information collection, collation, and analysis techniques for the provision of a wide range of of social services (not just criminal prosecution). The National Surveillance State is a further evolution of the Administrative and Welfare State, on the one hand, and the National Security State on the other. (I hope Orin doesn't think those are also merely fads!). I regard the development of these new forms of governance as the likely if not inevitable consequences of long term technological and social change. The central question is how to structure these developments so as to guarantee civil liberties under changed conditions.
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As a matter of rhetoric, maybe. In substance, skepticism is called for. One searches in vain for concrete plans advanced by the candidates for improving America's international law compliance. They do all say that they will respect the Geneva Conventions, but the Bush administration has said the same, and none of candidates explain how they will modify America's counter-terror tactics in order to bring them in line with U.S. treaty obligations. The candidates realize that the voters they seek to attract don't care much about international law or international institutions, so they have no reason to promise to tie their hands with ambitious commitments. It is likely that our next president will think of international law in instrumental terms, just as all our previous presidents have done. To be sure, the next president will have different policy goals (more enthusiasm about reducing greenhouse gas emissions, less enthusiasm about free trade, for example), and these different policy goals will require different types of international cooperation (more for a climate treaty, less for trade treaties), but it's hard to think of a reason why a (say) Democratic president will show more enthusiasm for international law per se than a Republican president or even President Bush, though one can expect that the rhetoric will be more careful and sophisticated.
I discuss this issue with Heather Hurlburt (who disagrees), of democracyarsenal.org, at bloggingheads.tv.
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Jack has written before about what he sees as a growing "National Surveillance State," and I thought I would explain why I think Jack is wrong. What Jack perceives as a "National Surveillance State" is actually a shift from physical world activity to network activity that creates a false impression of increased surveillance powers.
Here's the context. In the old days, co-conspirators met and plotted in person, and the government tried to find out what they were up to by trailing them in person (think "follow that car!") or using undercover agents. These days, though, co-conspirators more often meet and plot online: They use the Internet as a tool to bring them together without having to go and meet in person. This creates a substitution effect: Internet technology takes what would have occurred in public or out in the open and makes it something hidden, bits and bytes crossing over computer networks.
The switch stacks the deck against the government, as it takes away the power it used to have to watch crimes and terrorist plots in the open. For the government to get back the rough degree of power it used to have in the physical world, it now needs to tap into those lines of Internet traffic to collect the information that is the equivalent of what it used to get by open-field surveillance. For example, these days collecting the IP addresses of Internet connections could be the equivalent of the G-man getting in the taxi and ordering the taxi driver to "follow that car"; in both cases, the government is getting information about the whereabouts and conduct of suspects.
To some observers, this will look like massively increased surveillance, even (to add a snappy title) a National Surveillance State. Look, they will say, the government has added computers, and surveillance; they used to leave networks mostly alone and now they tap them. But in truth the government will be merely getting back the kind of power it used to have before the bad guys took advantage of the Internet's substitution effect.
Of course, different people will disagree about what powers the government should have, either in the setting of criminal law or terrorism. And the actual translation from physical environments to virtual ones is extremely complicated. But I think it's quite misleading to look at the increased use of computers by the government and see this as part of a new "Surveillance State."
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continue reading at Balkinization . . .
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The D.C. Circuit's Judge Douglas Ginsburg recently returned to his old stomping grounds, Harvard Law School, to speak on the subject of Law & Economics.
He reflected on the history of the study of Law & Economics -- a
course of events in which he played a substantial part -- and then,
moving from the campus to the courthouse, he turned to the question of
what role Law & Economics plays in his work as a judge:
Careful to not oversell the effect and future use of law and Economics
Ginsburg ended with these personal views of the usefulness and best
practices for law and economics in the courtroom. . . . Judge
Ginsburg cautioned on how much law and economics should factor into the
final decision making process of a judge. He stated very simply that
"economic insight can be very helpful, less so in deciding cases, but
to help the judge spot economically dubious arguments along the way."
He laid out his concept that it is the "tools of law and economics"
that are important and offered that "a few simple receipts would carry
the judge, the counselor, and the statesman a long way."
Judge
Ginsburg is (rightfully) one of the federal bench's most
highly-regarded judges, and his recognition of the limits of Law &
Economics befit his judicial temperament. That said, I can't help but
think back to a 1997 article by Judge David Sentelle, the new Chief
Judge of the D.C. Circuit (and for whom I once enjoyed the great honor
of clerking): Law and Economics Should Be Used For Economic Questions (Harvard Journal of Law & Public Policy, vol. 21, p. 121).
In
that article, then-Judge Sentelle argued that "[t]he more judges use
economics to decide cases that do not turn on purely economic
questions, the more their resulting conclusions tend to be utterly
irrelevant to the real questions before the court or so blindingly
obvious that they could better be described as stemming from common
sense than economic analysis." Judge Sentelle's analysis focused on
the example provided by a concurring opinion in the D.C. Circuit's en banc decision in Crawford-El v. Britton,
93 F.3d 813, 838 (1996), in which a judge relied on a Law &
Economics analysis -- including a discussion of demand curves! -- to
resolve the question of what evidentiary standard a plaintiff must
satisfy to defeat an assertion of qualified immunity.
Ever
the gentleman and colleague, Judge Sentelle never identified the author
of that concurrence. Of course, by now you'll guess that the author
was none other than ... then-Chief Judge Ginsburg.
Did Judge
Sentelle's article dampen Judge Ginsburg's enthusiasm for Law &
Economics analyses? I suppose it's impossible to say. But now you know the rest of the story.
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If Diane and the pope are right that we shouldn't privilege civil and political rights over social, economic, and cultural rights, and maybe they are right, then we should give credit where credit is due, and crown China the human rights champion of the last thirty years. During that time, the authoritarian Chinese government has raised more than 400 million people out of extreme poverty through its enlightened pursuit of capitalism at all costs. Its indifference to the civil and political rights of Tibetans and other minorities, not to mention those of its own people, detracts from this achievement, but no one can say with any confidence that China could have come so far, so fast, if it had snapped its fingers in 1980 and become a democracy. The only other contender for the human rights crown is the group of western powers that brought down the Soviet Union, and Mikhail Gorbachev, for not standing in the way, an accomplishment that freed a great number of people living in Soviet-dominated satellite states and finally discredited forever a malign ideology, but did much less for the poor than China has. We needn't declare a winner; but out of respect for China's achievement, we should at least let it relay its Olympic torch in peace.
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Setting aside John Paulson, few have benefited from the subprime meltdown more than Nassim Nicholas Taleb, author of Fooled By Randomness and, more recently, The Black Swan. For the past couple of years, Taleb has made waves by challenging Wall Street's approach to risk management: at risk of dramatically simplifying his analysis, I'd suggest that Taleb argues that people over-expose themselves to the risk of catastrophic events by evaluating information through biased lenses. (We rely on hindsight narratives to order random information, for example, and pay more attention to history's visible winners than to history's invisible losers.)
For a month or so I've hoped to post a note tying Taleb's work to recent writings of Cass Sunstein and Richard Posner, as well as Francis Fukuyama's excellent edited volume and so forth. The question of how best to order regulatory institutions to protect against truly unforeseeable catastrophes is perhaps the most exciting aspect of administrative law today, and if I were a professor it would constitute a substantial part of my research agenda. Unfortunately, briefing deadlines and the like have kept me from writing even a blog post worthy of the subject.
In the meantime, to those of you looking for some Sunday evening reading material I wholeheartedly recommend two still recent profiles of Taleb (which triggered my interesting in posting a substantive blog item on Taleb):
1. A recent profile of Taleb [pdf] in the Financial Times's weekly "Lunch With FT" series; and
2. Bloomberg Magazine's current cover profile [pdf].
Also, Malcolm Gladwell profiled Taleb at length [pdf] in the New Yorker back in 2002. And Taleb summarized his arguments in a recent lecture before the Long Now Foundation.
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There is a paradox at the heart of Senator Obama's presidential campaign. Senator Obama is campaigning one way -- as a figure who transcends the old, tired politics of division -- and has voted almost entirely the other -- as reliable, down the line member of his party. This anomaly has been noted by the New York Times and one can expect that it will be regularly pointed out by Senator McCain. Asked to explain, Candidate Obama -- with some plausibility -- has pointed out that many of the votes he has been asked to cast in the U.S. Senate are deliberately ideological, aimed more at political statement than practical resolution.
Fair enough, but perhaps now that the Senator's campaign has run somewhat aground thanks to a "bitter" verbal misstep and the heckling of George Stephanopoulos and Charlie Gibson, it might be wise, especially on the eve of the Pennsylvania primary, for the prospective President Obama to supply a good-faith illustration of how he might achieve common ground and build bridges over the religious and cultural divides of the past.
There is no better topic for doing this than abortion. This is a topic of profound religious and philosophical divide, properly called by my friend Laurence Tribe as a "clash of absolutes."
For the last several days the leader of the Catholic Church has extolled his flock in America and all Americans "to set aside all division" to work for a conception of freedom built upon the truth of the human person. The Jewish community in America is once again keeping Passover commemorating the great Exodus of the Israelites from slavery to freedom. In the arc of these historic and traditional Judaic Christian moments both celebrating authentic freedom could there possibly be a better time for Senator Obama to demonstrate a tangible manifestation of the unity of purpose upon which he has been standing throughout the campaign?
How?
By embracing a proposal equivalent to what the leaders of his own counsel of advisors have already endorsed: the so-called 95-10 legislation. This idea satisfies neither side of an absolutist clash completely - how could it and still be common ground? - yet it strives for a 95% reduction in abortion over 10 years, not by legal mandate that would contradict the Senator's belief that this decision must remain that of the mother, but instead by ensuring that no woman faces such decision without having already had the benefit of responsible information about abstinence and contraception. In the event of a pregnancy, the proposal would supply objective information about fetal development, the proper guidance of a parent if the prospective mother is a minor, and the public's assurance of necessary economic support to carry the pregnancy to term, and if it be the mother's informed choice, the adoption of her child.
No doubt the Senator will want to put his own distinctive mark on such legislation, but for now, it is the general endorsement of the idea that is important -- since it conveys what many in the Keystone State and beyond truly wish to believe; namely, that behind the eloquence of leadership is a person prepared to lead - yes -- even before "day one."
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shows that entrusting exclusively to individual States, with their laws and institutions, the final responsibility to meet the aspirations of persons, communities and entire peoples, can sometimes have consequences that exclude the possibility of a social order respectful of the dignity and the rights of the person.
Benedict looked, rather, to transnational and international institutions as vehicles to promote human dignity, using a "common language" and not "a relativistic conception." For the pope religion is one such transnational vehicle, of course; "relativist" is, after all, an antonym of "catholic," itself a a synonym of "universal." Yet he devoted much of his address to a vehicle typically expressed on the temporal plane: human rights, the promotion of which Benedict called
the most effective strategy for eliminating inequalities between countries and social groups, and for increasing security.
Even as he found traces of human rights in the centuries-old writings of Catholic scholars like
Augustine and
de Vitoria, the pope found its contemporary source in a 20th C. secular instrument, the 1948
Universal Declaration of Human Rights. In tacit reprimand of those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa -- Benedict reaffirmed the 60-year-old decision to intertwine those rights:
[E]fforts need to be redoubled in the face of pressure to reinterpret the foundations of the Declaration and to compromise its inner unity so as to facilitate a move away from the protection of human dignity towards the satisfaction of simple interests, often particular interests. The Declaration was adopted as a 'common standard of achievement' (Preamble) and cannot be applied piecemeal, according to trends or
selective choices that merely run the risk of contradicting the unity of the human person and thus the indivisibility of human rights.
Perhaps most notable was the pope's embrace of "
responsibility to protect," the international law concept that each nation-state has the primary duty to protect persons within its jurisdiction and control, but if it does not do so, the international community as a whole has a duty to protect those persons against, as the pope put it, "grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made." Use of means permitted by the the law of the
U.N. Charter is not "an unwarranted imposition or a limitation of sovereignty," the pope maintained, for "it is indifference or failure to intervene that do the real damage."
Some approach the "responsibility to protect" with skepticism, wondering whether the energy spent on pushing a new concept with a catchy acronym --
R2P -- might be better spent on working to strengthen the U.N. Security Council and other pre-existing mechanism that in the end would have to effect any such intervention.
I'm among those skeptics,
so too José Alvarez, Columbia law professor and immediate past president of the American Society of International Law. Despite disagreement on means, however, we all agree on the ultimate goal, greater enforcement of human rights. And so yesterday's strong statement in support of that objective, from one of the globe's premier norm-shapers, is welcome.
(cross-posted at IntLawGrrls blog)
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I think Judge Gertner's right -- there are some things which flatly shouldn't be a federal case.
I'm reminded here of the so-called "felon in possession" cases I saw while working as an extern in the U.S. Attorney's Office in Los Angeles. Under federal criminal law, it's a crime for a previously-convicted felon to possess a gun which has moved in interstate commerce (i.e. any gun). The cases I watched came as part of a massive Justice Department initiative called "Project Safe Neighborhoods" which aimed to reduce gun-related crime in America through various means, including the federal prosecution of persons arrested with a gun who had a prior felony conviction. Many were initially arrested by local law enforcement; some were even tried first in state corut. However, they eventually made it into federal court because the feds wanted to take advantage of stiffer federal sentencing laws, more prosecutorial resources at the federal level, and the comparitive advantage of the federal court jury pool versus that in Los Angeles County.
The strategy has worked. PSN has locked up a lot of gun-carrying felons for a very long time. In general, I applaud that outcome, because I want streets that are free of gun violence too. But, I agree with Judge Gertner that we should be concerned about the larger implications here, especially the stark differences between the federal and state criminal systems which create the incentive to make a federal case out of everything.
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On April 18, the L.A. Times reported the United States Attorney was facing criticism from line prosecutors who said that they were being pressured to file "relatively insignificant criminal cases" for the purpose of driving up statistics that would lead to increased federal funding. The United States Attorney denied the accusation.
Whatever the facts, the question of how prosecutors exercise their considerable discretion to bring federal charges is critical. With mandatary minimum sentencing, prosecutorial decisions effectively determine the outcome. Federal substantive criminal law is chaotic -- with overlapping offense categories that can apply to the same charged conduct, some with mandatory minimums and some without. And those decisions, unlike the decisions of judges that are regularly reviewed and criticized, are not transparent; they are the classic low visibility decisions, accountable for the most part only to the hierarchy within the local office and no further. Given that power, and lack of transparency, every effort must be made to keep the process from becoming politicized either to beef up statistics -- the allegation here -- or to go after political enemies --as was claimed in connection with the U.S. attorney firings.
Justice Scalia said it best dissenting in Morrison v. Olson, the case in which the Supreme Court upheld the independent counsel statute, the statute that later allowed Ken Starr to investigate President Clinton. "Law enforcement", he noted, "is not blind." No one can investigate everything, so the prosecutor has to pick his cases. And if he can choose his cases, he can choose his defendants, the "most dangerous power" of all. The risk is that the prosecutor will go after the people he thinks he should get, not the cases that need to be prosecuted. The "who" before the "what"."
But another, perhaps even more important issue, is whether federal court is the appropriate place for the "relatively insignificant criminal" cases. There is certainly an important role for federal law enforcement. But, this effort must be done carefully. If not, it will only deepen the perceived inequities in the criminal justice system, inequities that lead one person to get a long federal sentence, while another is prosecuted in state court facing a lesser penalty for the same conduct, while one person faces a federal jury which may well be far less diverse than the state juries, etc. Moreover, too much reliance on federal prosecutions can undermine over the long haul the critical role of local law enforcement, which has the best intelligence and the closest ties to the community. And federal resources, as a colleague on my court has noted, are often best saved for more complex cases.
So whatever the facts in this case -- and we only know the accusations -- federal prosecution decisions are simply too important to the public, to the defendants, to be subject to in appropriate, external pressures.
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Eric, perhaps your reference to the EPA is a veiled reference to Massachusetts v. EPA,
but if not then I would note that the Supreme Court considered
your line of reasoning in its April 2007 decision, and flatly rejected
it in the context of its standing analysis. Citing the EPA's argument that global warming is fueled in large
part by China and India, it responded (at 20-22):
EPA overstates its case. Its argument rests on the erroneous
assumption that a small incremental step, because it is incremental,
can never be attacked in a federal judicial forum. Yet accepting that
premise would doom most challenges to regulatory action. Agencies, like
legislatures, do not generally resolve massive problems in one fell
regulatory swoop. ... "[A] reform may take one step at a time,
addressing itself to the phase ofthe problem which seems most acute to
the legislative mind" . . . . They instead whittle away at them over
time, refining their preferred approach as circumstances changeand as
they develop a more-nuanced understanding of how best to proceed.
... While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.
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In his speech yesterday on climate change, Bush made one good point among many other not-so-good points:
As we approach this challenge, we face a growing problem here at home. Some courts are taking laws written more than 30 years ago -- to primarily address local and regional environmental effects -- and applying them to global climate change. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate global climate. ...
Decisions with such far-reaching impact should not be left to unelected regulators and judges. Such decisions should be opened -- debated openly; such decisions should be made by the elected representatives of the people they affect.
Several federal district judges have made a similar point in the course of dismissing tort suits based on global warming. In these suits, people whose lives have been affected by adverse weather conditions of various sorts, argue that energy companies, by contributing to global warming, have caused the harm and ought to pay them damages. Rather than addressing the scientific basis of these claims, the judges have pointed out that climate change is an international problem and judges are powerless to develop a sensible approach to address that problem. They lack expertise, but, more important, they have no power to compel Chinese and Indian polluters to reduce their emissions. Successful tort suits would raise the cost of greenhouse-gas emitting activities in the United States, but in an ad hoc way that does not address the problem effectively, and would interfere with negotiations between the United States and other countries.
If these judges are correct, their logic applies to agency regulation as well, and it is wrong to criticize the EPA for failing to aggressively regulate greenhouse-gas emissions under the Clean Air Act and other environmental statutes. The EPA can probably do a better job of developing standards than courts can, but it is still hampered by its limited jurisdiction (effective climate regulation must apply to all major sources of emissions), its limited remedial tools (it has no power, for example, to levy a tax on carbon emissions), and its lack of power to regulate industries in foreign countries. Court or agency-generated regulation of greenhouse gases in the absence of a climate treaty that binds all major economies will have little impact on the overall problem, while producing costs, with one particularly bad scenario being that of polluting industries migrating from the United States to countries with weaker regulations, and exporting goods back to Americans. Whatever the merits of its legal position in ongoing litigation (see David Barron on this issue), the EPA has good reasons to hold off regulating until a climate treaty and implementing legislation have been put into place.
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One of the most interesting aspects of the fractured opinions in yesterday’s Baze v. Rees decision on lethal injections is that they almost read like an elaborate MMPI result. Some are almost stunning for how much individual judicial temperament and personality shine through. Justice Stevens concurrence is remarkable, for instance, for its late-in-his-career assessment that in the wake of “extensive exposure to countless cases for which death is the authorized penalty” which (quoting Justice White in Furman) makes only “marginal contributions to any discernible social or public purpose,” he’s concluded that capital punishment violates the Eighth Amendment. Justice Scalia concurs separately just to respond that Stevens’ conclusion is “insupportable as an interpretation of the Constitution” and that his “policy analysis . . . fails on its own terms.” He then holds out Stevens conversion on the death penalty as the height of “rule by judicial fiat,” and closes by scoffing that Stevens has subordinated legal scholarship, the work of legislators, and the preferences death penalty supporters to his own personal experience which “reigns over all.”
You all probably remember this movie from the first time we saw it, in Kansas v. Marsh. Still, I wonder whether it’s the death penalty itself that brings out these very pointed, personal reflections and stinging personal attacks from the justices, of if there is something about the rather dishonest way we are having the whole conversation about it that gets them so riled up.
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The impending sentencing of Wesley Snipes on his misdemeanor tax convictions nicely frames an interesting question about celebrity and sentencing.
In celebration of Tax Day, the government filed its sentencing memo today, urging (not surprisingly) that the judge send Snipes to jail for the full three years he's facing. There are plenty of reasons a sentence like that makes sense—his acquittal on the felony charges seems a matter of anti-tax sentiment, potentially allowing a judge to sentence him for acquitted conduct, and, of course, the sums in question clearly merit a substantial sentence—but let's put those aside for now.
Instead, I'd love to hear from my fellow bloggers about these two bits from the sentencing memo:
"In the defendant Wesley Snipes, the court is presented with a wealthy, famous, and inveterate tax scofflaw"
and
"The multifarious nature of his schemes and the deterrence value of a substantial prison sentence for this truly notorious offender call for a full 36 months in prison."
Basically, what the government is arguing here is that Snipes needs to be hammered for his celebrity. The clear suggestion is that because he's a high-profile defendant, sending him to prison for a long period of time is like a deterrent bonanza. The thing that strikes me, though, is that unlike political trials, or those of thieving cops who abuse a position of trust, Snipes is an actor who never took an oath to serve, protect, or do much of anything else other than look out for No. 1. So here, unlike those other high-profile or political cases that involve an abuse of trust or authority, we really are talking about a sentencing enhancement purely on the basis of notoriety.
Having been a public defender for more than a decade, I'm not so naive as to think that high-profile defendants don't get hammered all the time just because they have the misfortune of having their crimes make the paper, but I haven't often seen quite such a direct and unabashed plea for a harsher sentence grounded in this particular reasoning.
So, should celebrities get hammered for having chosen to live such a public life? Is this an argument we think the court will actually countenance? Any guesses as to what happens on the 24th?
I'll go on record as saying Snipes is going in, and going in for a while. Probably north of a year and very possibly for the statutory maximum.
Guesses anyone?
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That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of
Kennedy v. Louisiana.
Yes.
Or so said a majority of the court, in almost the exact same words, when it invalidated a death-penalty-for-rape in
Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the court, and in the interim three decades, concerns about crime have pushed to the fore.
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I'm inclined to agree with Orin that John Yoo's memos, while wrong and at times pathetic in their attempt to defend the indefensible, would not be anything close to grounds for termination of a tenured professor had they taken the form of a law review article. I don't agree that such ends-driven argument is the norm in legal scholarship—here I agree with Deborah—but it's certainly not unheard of, and it's unimaginable that anyone would propose firing a professor for a really bad, ends-driven law review article.
What makes Yoo's memos so troubling isn't that many of the legal arguments are bad—it's that it looks like he was basically writing a brief in favor of executive power when his job and his ethical duty was to offer a balanced interpretation of the law that considered the broader public interest. That's what Tim Wu was getting at when he wrote about Yoo sucking up to Donald Rumsfeld on the squash court. That's what several people meant, I think, when they said Yoo undermined the rule of law.
I always cringe a little when anyone talks in weighty tones about "the Rule of Law" because I worry that we conflate two distinct ideas, one of which is often wrong. One is the idea that complex legal questions have right and wrong answers that are apparent to people with sufficient professional competence. I'm often quite skeptical of this claim, for reasons I won't detail here. The other idea is that our legal system requires people in certain positions (judges, counsel to governmental agencies, and officials) to act and decide legal questions in the public interest rather than in the narrow interest of some specific client or constituency: In the old days, people spoke of "the rule of law" as opposed to "the rule of men." This commitment goes the very heart of what it means to be a profession (and I think you can believe believe this without believing that what the professionals must do is find the "correct" interpretation of a legal text or arrive at the "correct" resolution to a legal dispute).
The concern is that the Yoo memos undermined the rule of law in this latter sense. As Phil suggests, such a breach of professional ethics might make him unfit to train future lawyers—it would certainly make him unfit to teach legal ethics. That is different than a bad law review article, where it's arguably consistent with the job (though not the job at its best) to write ends-driven work—at any rate, it certainly isn't a breach of any ethical duty. But we'd need to know whether Yoo was in fact simply writing a brief for executive power, or whether his was a sincere—but failed—attempt to interpret the law. That's why Chris Edley's letter noted that Yoo believes his arguments are sound. If that's true, then there's no ethical breach—only a bad argument. And bad arguments, as Orin points out, aren't all that uncommon in legal scholarship and certainly aren't enough to get you fired.
So, Yoo's memo may not be enough to discipline him under Berkeley's standards (and they probably shouldn't be enough: I'd hate to see the types of witch hunts that could get whipped up if we started trying to decide whether lawyers in government service who made very unpopular arguments were sufficiently sincere to merit keeping their tenured appointments after they leave government service). But there are sanctions that collectivities can impose other than formal ones. I bet students and colleagues will make Yoo's life sufficiently unpleasant that he won't want to stay: I give him two years at most before he resigns voluntarily.
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When the Supreme Court decided the global-warming case last year—rejecting the Bush administration's claim that it had no legal power to issue rules regulating greenhouse gases to combat climate change—it seemed to be a landmark ruling. And in some ways, it was. But it has now turned into a case study of how an agency committerd to doing nothing can fend off the courts and the public. Ever since the court’s decision, the EPA has been engaged in a pitched battle not only to refrain from exercising the authority the court has conclusively held it has, but also to refrain from explaining why it's not exercising it. And so far, the administration has been pretty successful. Of course, the state of California did seem to force the agency’s hand when it asked the EPA to waive a federal law that otherwise would have prevented that state's own greenhouse gas rules from going into effect. If the feds weren’t going to act, the states seemed to be saying, they would! Although it appears the administrator's legal staff strongly favored granting the state waiver request, the EPA denied it on Dec. 19 of last year, touching off a mini-firestorm regarding agency politicization and teeing up the state’s court challenge of the waiver denial Turns out, though, that the EPA’s delaying tactics know no bounds. Now that the state of California is trying to challenge the agency’s action in court, the agency is arguing that it did not actually reject the waiver request on Dec. 19. It merely corresponded with the governor of California as a courtesy. But given the statement the Governator issued that same day, it sure sounded to him a lot more like a formal denial than a friendly letter.
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A guest post from Jonathan Hafetz at the Brennan Center:
Even as criticism of Guantánamo mounts, Guantánamo’s underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as “enemy combatants,” al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health.
Judge Bates denied relief, finding the treatment al-Ghizzawi had received was adequate. But his reasoning highlights the fundamental injustice at the heart of Guantánamo: Bates suggested that al-Ghizzawi’s claim should be analyzed under the same legal standard applied to convicted prisoners under the Eighth Amendment, which prohibits “cruel and unusual punishment.” That requires a prisoner to establish that government officials were “deliberately indifferent” to his “serious medical needs”—in other words, that the officials “knowingly and unreasonably disregarded an objectively intolerable risk of harm to the prisoner’s health or safety.” Negligence does not suffice. This heightened standard is justified because convicted prisoners are being punished for crimes and cannot expect the same level of care as those living in the world outside. But that justification falls apart at Guantánamo, where hundreds of detainees, like al-Ghizzawi, have been jailed for years without even being charged with any wrongdoing, let alone convicted of any offense.
Bates’ opinion ignores the underlying injustice that pervades al-Ghizzawi’s case and Guantánamo generally: The United States has imprisoned him for more than five years without charge or a fair hearing. Worse, after the Defense Department’s status review tribunal initially found al-Ghizzawi was not an “enemy combatant,” the Defense Department ordered a “do-over.” (Where, lo and behold, the tribunal found al-Ghizzawi an “enemy combatant.”) So, if, al-Ghizzawi is distrustful of Guantánamo’s medical staff, as Bates noted, he has good reason: He knows the status review tribunals are a sham and the results rigged.
Bates treated al-Ghizzawi like any other prisoner in any American jail who has been afforded his right to a trial under the U.S. Constitution. What Bates ignored, and what others too often forget, is that Guantánamo detainees have never had their day in court.
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Having just emerged from a period of reading many more law review articles than is no doubt good for my health, I guess I just have to dissent from your view, Orin, that "what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read" in legal scholarship. Yoo's memos certainly fit what one might describe as bad legal scholarship. But unless there's some law-faculty oath I don't yet know of, it sure doesn't seem to me like that's the "prevailing academic standard."
Part of our disagreement may just be identifying what's wrong with Yoo's work. You suggest that all of legal academe is filled with "result-oriented" work, as if this is the central failing of Yoo. The memos are indeed result-oriented. But it seems to me quite possible to write a memo/article that reaches a result the author prefers while still making a useful contribution to scholarship—either because the article sheds useful light on the historical, philosophical, pragmatic, etc. underpinnings of the theory she supports, or because it honestly engages an existing debate and makes an original case for her side's view, or for a host of other reasons. Electing to pursue research one believes will ultimately support one's views—as long as the research itself is honestly pursued and contrary results accounted for—doesn't necessarily doom the work.
It's thus your later criticism that's the key—i.e., that the work isn't "real, honest, or serious." By that metric, Yoo's memos just don't fly. I haven't read everything in the law reviews this year (heaven forbid). And I'm willing to buy results-oriented as a descriptor. But do you really think the prevailing standard is also dishonest or false? If so, we may be in the wrong business here.
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I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly: Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?
The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no." That seems to be the answer Senator Obama wisely supplied.
Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture. In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.
Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position. Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks. And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.
The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."
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Last week, I discussed the lawsuit of N.Y. Courts vs. N.Y. Governor and Legislature. Judith Kaye, the Chief Judge of the N.Y. Court of Appeals, has brought suit on behalf of the court system, arguing that the political branches have violated the principle of separation of powers and the compensation clause by failing to raise judicial salaries over the last nine years, a period during which the real value of those salaries declined by 25 percent.
The separation of powers argument is that if salaries do not keep up with inflation, they eventually become "inadequate," in which case the judiciary cannot perform its functions, becomes ineffective, and thus cannot check and balance the political branches.
Does the complaint prove that the N.Y. judiciary has become ineffective? It quotes a few judges who say they are unhappy and are likely to resign because of inadequate pay. But it does not try very hard. If the plaintiffs are right, then they should be able to come forward with statistics that show that N.Y. judges resign before the end of their terms in increasing numbers; that N.Y. judges enjoy less respect among practitioners; that trials and appeals are taking longer; that judges are committing more errors than in the past; that judges are less likely to rule against the N.Y. government; that they are more likely to be disciplined for improper behavior; and so forth.
Why doesn't the judiciary come forward with evidence that it is ineffective? Let's put aside the obvious PR implications of such an admission, and also the very likely possibility that, in fact, there is no such evidence of ineffectiveness. The real problem is that if there is such evidence, it would only undermine the plaintiffs' case. After all, if the N.Y. judiciary has become ineffective and lost its independence, why would it be appropriate for that same judiciary to resolve an interbranch dispute about judicial pay?
So here is the conundrum. Either the judiciary is effective, in which case it cannot successfully argue that the N.Y. government has rendered it ineffective by underpaying judges; or the judiciary is ineffective, in which case it cannot persuasively claim that it should hear the case! Heads the judges lose; tails the government wins. If the judiciary had lost its independence to the governor and the legislature, would it really have brought suit against them, and with the expectation that one of its non-independent members would rule in its favor?
In an effort to extract themselves from this dilemma, the plaintiffs style their argument as one about the future (the judiciary "cannot long remain an independent and co-equal branch of government ... if judicial compensation is permitted to decline by virtue of inflation"). So the argument is not that the real decline in pay has rendered the judiciary ineffective; it is that, at some point in the future, the decline in pay will render the judiciary ineffective. For that reason, the pay raise should occur now. But why shouldn't the government be able to put off any pay raise until the date, which may be years from now, when the judiciary is not yet ineffective but closer to being so than it is today? Without a theory about the minimum salary level that is necessary to ensure that the judiciary is effective (and the plaintiffs conspicuously lack such a theory) and evidence that this point is imminent (and the plaintiffs provide no such evidence), the N.Y. courts lack grounds for granting themselves relief.
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Will Bunch, columnist for the Philadelphia Inquirer, asked Sen. Barack Obama about the question we've been batting around for the last week or two on Convictions -- whether some Bush administration officials might face a criminal investigation or prosecution for ordering certain detention and interrogation practices. Sen. Obama has made his opposition to torture and the administration's detention regime a recurring point in his campaign speeches. (Full disclosure: I am a volunteer adviser for the Obama campaign on defense and veterans policy.) However, this response to Mr. Blunt goes further:
What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve. [emphasis added]
So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.
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To basically concur with Eric's post on the Constitutional Commentary article and the New York Times op-ed on the confirmation process, I think the article is banal and the op-ed is confused.
First, let's do the article. To advert again to the Casablanca line popular in this forum-I am shocked, shocked!-that justices are being cagey about their methodological and substantive commitments in their confirmation hearings and then diverging from them after being confirmed. Of course they are. No rational person who wished to get confirmed today would pull a Robert Bork, and ordinary people in fact do change their views over time.
The confirmation hearing is best compared to a job interview. Interviews give those privy to them a sense of the person's integrity, quality of mind, personality, ability to work with others, and so on. Interviews also introduce the candidate to the people who will be affected by their work-in this case the entire nation. But in my experience, job interviews are generally a less accurate predictor of a person's future performance than past performance in a similar job.
If that is true, a better predictor of what a Justice will do is what she or he did as a federal circuit judge, as this is the job closest to being a Supreme Court Justice. So it's no surprise that all nine Justices currently on the Court logged some time as federal circuit judges before they were elevated to the Supremes. (For some, like Thomas or Roberts, this was for a very short period of time, but I attribute the brevity of the stints to competing values-such as the countervailing concern that judges with long paper trails are harder to get confirmed.) I would therefore have been more interested in a study showing that judges dramatically changed their substantive and methodological priors after being elevated from the circuit to the Supremes.
Now let's do the New York Times op-ed. The op-ed states that the fact that Supreme Court nominees don't follow through on what they say in their confirmation hearings "makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process." I can see that it doesn't help, but I don't think it makes it "difficult." The fact that Supreme Court nominees have to be cagey does not, as mentioned above, mean that the hearings don't give the senators a lot of important information. And even if the senators are only voting for a justice to uphold a particular methodology or substantive commitment, confirmation caginess just means senators should ignore the hearings, as Eric suggests, and go to the paper trail. The op-ed even suggests as much when it states that "[s]enators should examine a nominee's entire legal career."
This raises a deeper problem with both the op-ed and the article-the unarticulated assumption that Justices who say one thing in a confirmation hearing and then do another are necessarily acting in bad faith or being inconsistent in an indefensible way. At the risk of stating the obvious, Justices who sit on the court for decades are likely to change their minds about some views they hold.
To take one of many examples, then-Justice Rehnquist was a vigorous dissenter in the 1970s cases that sought to give gender-based classifications heightened scrutiny. In the 1996 VMI case, though, Rehnquist voted with the majority to force an all-male college to open its doors to women. And of course, in the 2003 Hibbs case, he surprised a lot of people when he writes the majority opinion upholding the Family and Medical Leave Act.
At one point in his VMI concurrence, Rehnquist says state institutions should not be held liable for sex discrimination until they have received a clear signal from the Court that such discrimination is unlawful. That comes to my ear like autobiography-"don't hold me responsible for my prior views on sex discrimination because I didn't have a clear sense of its harms until a certain point in time." Rehnquist didn't say one thing and do another-he did one thing and then did another-or, to put it more bluntly, he changed his mind.
Of course, if I am to defend Rehnquist's drift from right to left on this issue, I must also be willing to defend drift from left to right. But that's not a problem for me for these purposes. To the contrary, I think it's inevitable that we as human beings will, in complete good faith, change, vacillate, and grow. It doesn't puzzle me that a person can't say in one slice of time (however important that slice is framed to be) what the stream of her future decisions will look like. What puzzles me that anyone would believe that she could.
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I tend to agree with Kenji that the overt
mixing
of poetry and law can be ill-advised: adding the former often will
not enhance analysis in the latter. Yet the deployment of poetry – or any
literary reference, for that matter – serves to reveal something about the
legal writer who deploys it. Justice Harry A.
Blackmun's homage to Casey
at the Bat, no less than Chief Justice William H.
Rehnquist's tribute to
Barbara Frietchie in the 1st flag-burning case, told much about each
author's approach to the subject matter at bar. Some observers may not welcome
what is revealed; these 2 examples, for instance, might be seen as evidence that
a Justice lacked detachment and thus engaged in less than rational reasoning.
(That conclusion is not inevitable – consider those studies that refute the
commonly held assumption that emotion clouds jurors' judgment.) Adding
literature to law may serve, moreover, to make more humanly accessible a process
seldom understood by those humans whom it most affects.
Kenji's right, too, that the
best
law poetry may be those lines that we commit to memory not because of some
intentionally catchy cadence, but rather because their simplicity belies a
deeper social meaning. The warnings set forth in
Miranda
v. Arizona surely qualify. Another nominee jumps to mind. It is the
essence of another opinion by Chief Justice Earl Warren, a line on which
Brown v. Board of
Education and all its progeny depend. If I may be indulged a bit of
verse, it is:
Separate
educational facilities
are
inherently unequal.
As for
W., the
verbal contributions that Kenji cites link this President with another
W. besides Shakespeare. To this ear, the inestimable "
misunderestimate"
inevitably recalls "
normalcy,"
the once-abnormal word for which America owes a debt to President
Warren G.
Harding.
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Deb, I'm puzzled by your argument that John Yoo's OLC memos are somehow inconsistent with prevailing academic standards. You write that it is "painful to accept that one of the top law schools in the
country embraces the idea that one of its professors could teach
students a course in Introduction to Constitutional Law while advancing
a view of the Constitution that is simply without support in text,
history, logic, or life."
But isn't this true for lots of law schools, and lots of law professors? As I see it, what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read in law reviews. Most legal analysis on "hot button" con law issues found in law reviews is blatantly result-oriented. The entire idea is to come up with a clever argument for why the law is what the author wants the law to be. If the argument had support in traditional sources, then there would be no need to write an article on it. (To be clear, I'm not defending this practice: But that does seem to be quite common.) Yoo's memos were similar; they read like the work of a professor who has picked the result and is trying to fit the law to it without much succeess.
From that perspective, what makes Yoo's work so deserving of condemnation is that it settles for prevailing standards of academic legal scholarship instead of real, honest, serious doctrinal analysis. Yoo should have known better: OLC is no place to act like a law professor.
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With all due respect to Chris Edley, whom I admire, and the University of California, to which I owe a great deal, I think
Edley's position on John Yoo gets it exactly wrong
—and epitomizes why people deride the "Ivory Tower" as insulated from reality.
Law schools have an obligation to do more than teach lawyers to offer legal advice without regard for the
consequences of their counsel. I also think that law schools ought to model behavior for their students and think very seriously about the pedagogical impact of retaining a man on the faculty whose legal advice and scholarship produced such disastrous
policy, to say nothing of the suffering of
those on the receiving end of Yoo's ideas.
And I think Edley's position wrongfully absolves lawyers, and the legal academy, of responsibility for when they get things wrong
—or when their counsel produces terrible outcomes. As my colleague Deborah Pearlstein
points out, we wouldn't accept that result in molecular biology or medicine or many other disciplines. I don't think we should accept it in the law, either
—not in practice and not in law school, either. Academic freedom should not be a dodge for personal or professional responsibility.
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A New York Times editorial, citing a recent study, complains that Supreme Court nominees don't tell the truth during their confirmation hearings, which makes it hard to predict how they will behave on the bench. The study measures the degree to which a nominee expresses a commitment to respecting precedent during confirmation hearings and finds little relationship between that measure and the actual propensity of that person, once confirmed, to respect precedent. The Times is troubled: "Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process."
But, as the study notes, there is a correlation between ideology and willingness to overturn precedents: The five more-conservative members were those who were more likely to overturn precedents. There is a simple reason for this. The conservative Rehnquist Court inherited the liberal precedents of predecessor courts, especially the Warren Court. We know from other studies that justices tend to vote their political preferences. So if Republican justices are to vote their political preferences, and the precedents that they inherit are liberal, they are going to have to overturn those precedents.
The New York Times has little to complain about. It is easy to predict how nominees will vote once they are on the court. Just look at their party membership and other evidence of their ideology and ignore what they say at their confirmation hearings.
See also Volokh.
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As Melinda Henneberger notes, Sen. Obama is being accused of displaying a profound misunderstanding of so-called Midwestern or small-town values based on a recent comment. The senator explained how voters—angry and demoralized by their economic circumstance and the inability of politicians to improve rather than worsen their plight—"cling to guns or religion or antipathy to people who aren't like them."
With due respect to the good people in Melinda's hometown of Mount Carmel and with fond remembrance of my two decades in South Bend, Ind., I doubt anyone in those places is offended until Clinton and McCain ride into town and rile them up with falsehood and fear.
This is merely the inverse formulation of Obama's positive message to not fall prey to politicians of either party who seek support by dividing us. Instead of seeking peace, we have a president and his first cousin barely removed perpetuating an unnecessary war. Instead of addressing the poverty or immaturity or insufficient learning that can lead a young woman to terminate a pregnancy, partisans on both sides mystify us into thinking the next Supreme Court justice (so long as she is "our" nominee) will make it all better. Instead of working to limit crimes of violence by strengthening families, the polemicists of old politics construct the myth that when Madison penned "well-regulated militia," he meant ample home arsenal. Instead of honoring people of faith whose gospel motivates them to teach or ladle in soup kitchens or staff hospitals and nursing homes, candidates gratuitously stoke racial and religious hatred by constant replay of a minister's overheated rhetoric.
Now, having stirred up intense hate and suspicion toward each other, the message of Sen. McCain is: Cling to those hates, my friends. Woe be to anyone who would have the hopeful audacity to tell you to stop. Why, says Mrs. Clinton, you should have known all along that anyone who tells you, "Yes, you can" is a fraud. You know you can't. Insist on your right to see yourself as a victim. Don't vote your freedom—vote for me!
No, Sen. Obama, no apologies needed. When you call upon us to set aside divisions based on faith, you do not dishonor religion but rebuild its immunity from political manipulation. Like Pascal, you are reminding us that faith is "of another order which surpasses all the rest in depth and height."
It's a good reminder even if it did prompt Mrs. Clinton to reminisce about how her father taught her to shoot when she was a young girl in the Chicago suburbs. "Incoming!"
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continue reading at Balkinization ...
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I agree with Marty that the questions raised about Yoo's position at Berkeley are complex. I do not hesitate to hold Yoo ethically and morally culpable for what he did as a government lawyer. I am skeptical but I suppose open to specific persuasion that there is a clear case under existing law for his criminal culpability as well. Every employer has its standards for measuring its employees against these matters. And while I suspect Berkeley was mistaken to take him back for a variety of reasons, it seems to me inesapably the employer's decision about whether Yoo's behavior in these regards violated the standards they have.
What I find perhaps most troubling for a deep believer in academic freedom is that Yoo's most infamous legal memos (in particular, the argument that congressional statutes cannot constrain the president's exercise of his powers as commander in chief) are blatantly, embarrassingly wrong under the law.
I keep wondering what Berkeley (or Harvard or Princeton, etc.) would do if a professor of molecular biology had written a medical opinion while in government employ disclaiming the truth of evolution—and not only that, had continued to vigorously defend his rejection of evolution once returned to his full-time employment teaching university students a course in molecular biology. Is academic freedom the freedom not just to be wrong (which of course it is) but also to be, in this sense, false? Or perhaps academic freedom extends as far to continue the professor's employment but to insist that he retitle his course not Molecular Biology but rather something to the effect of Professor Smith's Imaginings of the Biological World?
Law, of course, is not science—as much as it might pain some of us to admit. It is difficult in the extreme to declare a legal proposition false with the same kind of certainty with which one can declare evolution a reality. But as one who clings (so to speak) to some belief in at least the semi-autonomy of law, it is at least painful to accept that one of the top law schools in the country embraces the idea that one of its professors could teach students a course in Introduction to Constitutional Law while advancing a view of the Constitution that is simply without support in text, history, logic, or life. Because law is not science, and because academic freedom is part of the kind of world I want, in the end I suppose I'll just have to learn to accept it. Would I pay for my kid to attend this law school? Not in a million years.
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In addressing whether Professor Yoo should be open to revocation of tenure or other academic status inquiry, Dean Edley and Marty Lederman have thoughtfully defended academic freedom and the rule of law. I concur. That does not free us from the lessons to be learned and taught, including pondering for contemporary purpose the meaning of Aeschylus, who wrote, "In the lack of judgment great harm arises, but one vote cast can set right a house."
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This seems to be on the mind of many of my friends since my endorsement of the senator.
Frankly, given the nonpartisan, always-open-to-debate approach of the society, I saw no necessary incongruity, but then, sometimes I have been known to miss entire cities looking at a map.
So here's the thing: Taking Sen. Obama's expressed desire to transcend petty party division to be entirely genuine (please accept that as a given and don't wrestle with the premise) and believing the values of separated powers and federalist structure to be essential toward achieving good outcomes in matters of foreign policy, economy, and the environment (same stipulation), why is it not possible to see these timeless principles as being of service to either Democrat or Republican? The question has special relevance for folks like me who in the past operated on the largely mistaken supposition that there would be overlap between Federalist Society values and a Republican political administration.
Not wanting to be snookered again, I await your counsel.
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Audience member
Jason Dominguez, a law professor at Texas Southern University, raised with panelist and U.S. Department of Defense lawyer
Sandy Hodgkinson a question comparing the U.S. drive for rapid accountability against leaders of the former Iraqi regime with the rather different approach to domestic accountability for the abuse that Iraqi detainees endured at U.S. hands in the prison in
Abu Ghraib. She answered the first part, then stopped. Dominguez's reply—"And as for Abu Ghraib?"—prompted Hodgkinson to a recitation of positive changes in U.S. treatment of the tens of thousands of Iraqis now detained in Iraq. On the list was this:
We have detainees who are making teddy bears to give to their children when they come to visit.
Indeed.
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In response to many calls for possible dismissal (or at least investigation) of John Yoo at the Boalt (Cal Berkeley) School of Law, Dean Chris Edley yesterday issued a memorandum strongly rejecting the idea (albeit reserving some harsh words for Yoo's work in the government).
Although I have been among the most vociferous critics of both John Yoo's work in the government and his scholarship, I largely agree with most (though not quite all) of what Dean Edley says here, and I, too, am uneasy with the notion of Boalt taking any serious steps with respect to the employment of a tenured professor. (Full disclosure, for what it's worth: I worked both with Chris Edley in the Clinton administration and with John Yoo in the Bush administration. I have not spoken to either of them about this matter.) For an alternative view, see this provocative post (and the resulting comments thread) from Henry Farrell.
Especially because I don't have any special insight on this question, I'm very interested in what my co-bloggers have to say about it and, more broadly, about whether there are other steps that members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing.
Continue reading at Balkinization ...
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By way of Dan Slater, we learn that Chief Judge Judith Kaye and the New York state court system she leads have brought suit against the legislature and governor of New York. The complaint argues that the legislature and executive have violated the principle of separation of powers—violated judicial independence—by failing to provide "adequate" compensation for judges.
The strangely coy complaint doesn't actually tell us what New York judges' salaries are. But they are easy to find. In 2007, trial judges earned $136,700; intermediate appellate judges earned $144,000; and high court judges earned $151,200. The nationwide medians for state judges for that year were $128,953, $139,694, and $143,669, respectively. So in nominal terms, New York judges do reasonably well compared with other state judges. They make well above the median family income of around $60,000 (in New York) and are lodged comfortably in the right tail of the income distribution.
The complaint makes a number of arguments. The cost of living in New York state is about 25 percent above the national average; taking the cost of living into account, New York trial judges are ranked 48th or even 49th (this source ranks them 42nd). New York judges used to be among the most highly paid, but they haven't received any salary increase since 1999, and since then inflation has devoured about 25 percent of their salaries. But under what principle of law do New York judges have to be paid more than judges in other states? Or for that matter, why shouldn't they be 50th? Someone has to be 50th! The complaint has a distinctly Lake Wobegon-ish air: If judges in all states have to be paid above average in order to preserve their judicial independence, then all judicial salaries will rise inexorably toward infinity. That, or the laws of mathematics will have to be struck down.
The complaint notes that other New York employees have received salary increases, and so today many earn more than judges. New York judges also earn less than many lawyers, deans, professors, and other people in the legal profession in New York, including some first-year associates at law firms. New York judges used to earn the same amount as federal district judges but now earn $30,000 less (of course, federal judges also think they are underpaid). And everyone in New York appears to agree that judges deserve pay increases, even the governor and legislative leaders; but bills to increase pay have been tied up, and meanwhile the legislature has managed to spend millions of dollars on pork projects.
All of this seems lamentable and bad policy, maybe, but a violation of separation of powers? How exactly? The complaint harps on the threat to judicial independence, but how would a modest (by legal standards) salary interfere with judicial independence? No one argues that the legislature has threatened to deprive judges of adequate salaries unless they rule in certain ways, or that the failure to raise salaries is payback for some unpopular ruling. The more alarming scenario is one in which judges set their own salaries by adjudicating lawsuits brought by other judges.
The complaint also argues that by refusing to grant cost-of-living increases to judges, while granting them to virtually all other state employees, the political branches have engaged in discrimination. The complaint cites a Supreme Court case that struck down a discriminatory tax that fell on federal judges; here, we have a failure to grant judges cost-of-living raises that were given to others. The argument here is really a Compensation Clause argument that failing to give judges cost-of-living raises is equivalent to reducing their salaries, in violation of that clause, but oddly the argument seems to be that such a failure is a violation only when other state employees do receive cost-of-living raises. I suspect that the plaintiffs presented this argument as a discrimination claim because there is plenty of law already that says failing to raise a salary to keep up with inflation is not the same as reducing a salary; but it doesn't seem like discrimination unless one can show that judges were not already overpaid relative to employees back in 1999, when they were among the best-paid in the nation. And how would one show that?
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Via the ABA Journal and Newsday, I learned today about a New York City-area law firm that has banned BlackBerry usage (and presumably that of other similar devices) by its attorneys and staff at major meetings. Meltzer, Lippe, Goldstein & Breitstone LLP made the move because it found people just weren't focusing on the subject at hand—they were too busy reading e-mail and thumbing out messages. Partner Ira Halperin told Newsday that "[w]e like everyone to be connected to clients and to be very responsive to their needs" but not at the expense of being BlackBerry-toting zombies who were unable to focus on anything other than their e-mail.
In my practice, and my work in/around government, I've seen this problem too. Big time. I'm certainly guilty of excessive BlackBerry usage. I even have colleagues (including some at Slate) who read their BlackBerries and thumb out messages while driving—a massive risk for them and for their companies, which may be held liable for anything that happens while they're reading/sending work e-mail.
I'm curious what my Convictions colleagues think of this phenomenon. I think we've gone too far—and that the quality of our counsel actually suffers because we are moving too fast and responding too quickly. We need to slow down. But what do you think? Have BlackBerry devices really become CrackBerry devices—such that we're so addicted to e-mail that we can't do anything else? Should law firms take a Draconian approach like Meltzer, Lippe? Or should they try a softer touch?
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David, your point about home rule is well taken, but even in cities with broad home rule, local authority is often quite limited.
Two examples from the city that knows how (but still can’t, as it happens).
California cities have very broad home-rule powers—among the most generous in the nation. But the courts often interpret ambiguous state laws as implicitly preempting local ordinances. San Francisco voters passed a handgun ban by initiative in 2005. Unlike Washington, D.C., which is at least getting the chance to test its ban against the Second Amendment, San Francisco just has its ban invalidated in state court as preempted by a state firearms regulation. The state laws the court relied on are actually silent as to local regulation—they’re laws that establish statewide regulation of firearms. The courts found that these laws occupied the field and implicitly prohibited the local regulation.
Another example of aggressive preemption hobbling local government: San Francisco’s attempt to provide for universal health care for local residents has run into federal preemption problems in court. The city wants to extend its existing coverage provided through SF General Hospital and a network of local clinics to all residents who don’t already have coverage. But it also wants to be sure employers don’t just drop health insurance and dump their employees on the city in response. So it’s added a mandate that most employers either offer coverage or pay a fee to contribute to the city health-care plan. This is not a regulation of employee benefits—the city isn’t making anyone provide health-care benefits. It’s just making those who don’t offer coverage to pay the fee (or better put, it’s making every business pay a fee for local health care and exempting those business that provide coverage for their employees) in order to ward off the free-rider problem. But this initiative is being challenged as preempted by ERISA, which regulates employee benefits and preempts almost any state of local law in the field. Is San Francisco’s ordinance even within the field of employee benefits, or is it just a fee levied on local businesses (which the city is otherwise entitled to levy) coupled with a city-provided service? A broad interpretation of field preemption will kill the city’s health-care initiative.
Now you might think the city has no business trying to mandate universal health care—it’s not really a local issue, right? But consider this: The city already operates a large health-care system because, as a consolidated city and county, it’s responsible for public health care for the indigent. The city discovered that it spent a fortune treating poor people in the ER of SF General for conditions that really should be treated cheaply in routine doctor's-office visits. So it set up a network of free neighborhood clinics to provide preventative and routine care in order to keep those people out of the ER. At this point, the city already has a health-care network in place. But what about people who have jobs and aren’t indigent but who still don’t have health care? When they get really sick, they wind up at SF General, too. So the city wants to cover them in the clinics. This led to the push for universal health care and to the contested employer fees.
I’m not at all certain this is good policy. It’s possible that, as the small-business owners and restaurant owners argue, the mandate will put people out of business and make everyone worse off. Restaurants have gotten together and decided to tack a fee onto every bill to cover the costs of the new health coverage. They want the consumer to know why they’re paying extra for their five-course tasting menu and wine flight. Maybe the extra costs will drive away consumers and put the marginal restaurant out of business. Maybe it will even destroy the foodie culture here and consign us all to have to eat at Red Lobster and Outback. But isn’t this just the kind of local effect we should expect a city to be sensitive to and adjust to? And mightn’t it be a good idea to let a local government experiment with universal health care to give Hillary Clinton and Barack Obama some actual information to work with when they argue about it?
These aren’t home-rule issues, but they are examples of how we hobble our cities from doing what cities ought to do—experiment with new policy ideas that might not occur to legislators or bureaucrats at the state or national level—or might not get past the special interests there.
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Adam, you're right to point out that the process for joining a law faculty as a tenure-track junior professor is not family-friendly at all. But once you're hired, a law-teaching job is pretty much the model of a family-friendly job—the schedule is extremely flexible. Other than classes and some light committee work, individual faculty are pretty much in charge of when they come into the office and when they work from home and how much they work—at least in the short run.
True, tenure is typically up-or-out after a fixed number of years, and pay tends to be lockstep or close to it, but as I suggested vis-a-vis firms, that's not necessarily a bad thing overall. It prevents faculties from stringing junior faculty along and makes faculty life more equitable. And, in fact, the tenure rate at law schools (not university departments, just law schools) is quite high—I'd guess better than the rate at which associates are promoted to partnership at big firms. The tenure clock is also stopped for paternity leaves, and unlike firm practice, you can usually simply pick up where you left off with the type of research and writing most professors do.
This isn't because law schools are somehow more virtuous than firms. Rather, it's because what we do is different, because we aren't as immediately and directly disciplined by market forces and because we've all already decided to make the lifestyle-for-income tradeoff. As for options, one can join a law faculty as a clinical professor or teaching professor at many law schools with dramatically reduced expectations for scholarly output, and one can teach part-time as an adjunct professor.
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continue reading at Balkinization ...
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The Beijing Olympics are offering the world a nice look at what Chinese State PR looks like.
A good example came yesterday, when Sun Weide, deputy director for communications for the Beijing Organizing Committee, presented this view of how the torch relay is going: "I think the operation of the torch relay has been very smooth and very safe."
Indeed. Perhaps the relay was sponsored by American Airlines.
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"Removing Saddam Hussein was the right decision early in my presidency, it is the right decision now, and it will be the right decision ever." —President George W. Bush, Washington, D.C., March 12, 2008
"Let me live here ever / So rare a wondered father and a wise / Makes this place Paradise."—William Shakespeare, London, England, circa 1610.
Our presidents have always loved Shakespeare. In April 1786, John Adams and Thomas Jefferson visited Shakespeare's birthplace at Stratford-upon-Avon. "They shew us an old Wooden Chair in the Chimney corner, where He sat," Adams wrote in his diary. "We cutt off a Chip according to Custom." Adams lamented that "[t]here is nothing preserved this great Genius," with no apparent recognition that more might have been preserved if tourists had not taken away chips of the fixtures.
Lincoln could recite hundreds of lines from the plays by heart. Along with the Bible and U.S. Statutes, a volume of Shakespeare graced his White House desk. While steaming up the Potomac in April 1865, Lincoln read aloud lines from Macbeth describing the peaceful postmortem sleep of the good King Duncan. After Lincoln was assassinated five days later (by an actor who had played some Shakespearean roles), Lincoln further cemented the reputation of Macbeth as an unlucky play.
Passing to more recent times, Shakespeare scholar Stephen Greenblatt writes about attending a 1998 White House event in which Clinton mentioned being forced to memorize passages from Macbeth in junior high. It was not, Clinton said wryly, the most propitious beginning for a political career. When Greenblatt shook his hand afterward, he asked the president: "Don't you think that Macbeth is a great play about an immensely ambitious man who feels compelled to do things that he knows are politically and morally disastrous?" Still holding his hand, Clinton replied: "I think Macbeth is a great play about someone whose immense ambition has an ethically inadequate object."
It might be hard to see George W. Bush's place in this great presidential tradition. Internet searches reveal no evidence that Bush has ever quoted or referred to Shakespeare. But while others only parrot Shakespeare, Bush emulates him.
Shakespeare is famous for having introduced more words into the English language than any other individual. Those words have become so much a part of our vernacular that we no longer associate them with the Swan of Avon. Words used above—like birthplace, fixture, and assassination—originate with him. Perhaps Shakespeare's most enduring legacy lies in his unseen mark on our semantic stock.
Along this metric, Bush stands alone among the 43 presidents. His coinages are the stuff of legend, including terms such as misunderestimate, mential, and embetterment. Many critics lament how busybody editors "corrected" Shakespeare's Quartos because they did not conform to their pedestrian notions of proper usage. For the same reason, we should not let stenographers "correct" Bush's contributions to our literary heritage. Bush's words do not belong to us. We hold them in trust—for our childrens, and for our childrens's childrens.
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Jack, I gather from the end of your post on whether Bush administration officials will be charged with war crimes that if it were up to you, you would want some members of the administration to be so charged. So, which officials would you want charged, and why?
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Watching the debate on family-friendly firms, I can't help but think that the conversation's focus is a bit too narrow.
A midlevel associate at a large law firm who moonlights as a father and husband, I'm familiar with the difficulty of maintaining "work-life balance." (I use that goofy term under protest.) That said, I've found that pursuit of partnership is no more daunting than pursuit of an academic post. Let me explain.
As much as I genuinely enjoy my job, I will confess that from time to time I've longed to pursue an teaching position. Such a move, however, seems almost impossible to pull off without imposing substantial burdens on my family. Because a fairly substantial body of written work is now a prerequisite to applying seriously for academic posts, a young associate's path to the ivory tower now nearly requires a one- or two-year stint in a research fellowship, "VAP," or other pre-teaching program.
Thus, pursuit of an academic post requires, above all else, mobility—the ability to move among perhaps three cities in three years. Combine that with the financial burdens of spending one or two years in fellowships/VAPs and the geographical flexibility favored in the AALS "meat market," and you get a nightmare scenario for a young father or mother.
Granted, my observations are not from experience; I've not subjected myself to the trials of pursuing an academic post. That said, I'd be curious to see the demographic data on the last couple of years' hires. I would bet that the last few years' new professors tend not to have kids older than 3. I would love to be proved wrong, but I strongly suspect that I'm right.
These family-unfriendly aspects of the teaching-job market don't strike me as nefarious; they're fairly predictable. After all, there are only so many teaching jobs to go around, so of course they'll go to the applicants best-suited to endure the trials necessary to build up CV and move to the available jobs.
Of course, such are the very reasons why big-city, high-salary law firms are relatively family-unfriendly: There are only so many jobs to go around, and the attorneys willing to put in the hours and effort are the ones who will collect the prestige and paychecks. People looking for less job responsibility can find it in smaller cities or in big-city firms with lighter workloads (and smaller paychecks).
I've managed to find a job that offers me interesting work, good pay, and a manageable workload. I could move to a firm that pays more and expects more, or I could move to a firm (like the one pitched to me by a headhunter recently) that offers a much lighter workload with a concomitant reduction in pay. Neither option has tempted me.
What's the comparable set of options when it comes to the entry-level teaching market? I've not yet seen it.
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ABC News reports that Condoleezza Rice, Colin Powell, and John Ashcroft were part of a Principals Committee that discussed in great detail and specifically approved harsh interrogation techniques for detainees held by the CIA.
Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects—whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.
The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.
John Ashcroft, it appears, repeatedly signed off on the legality of the techniques but was squeamish about going into details, arguing "that senior White House advisers should not be involved in the grim details of interrogations." "According to a top official, Ashcroft asked aloud after one meeting: `Why are we talking about this in the White House? History will not judge this kindly.' "
Morever, the committee's approvals, it appears, continued even after Jack Goldsmith disavowed the Yoo torture memos:
[T]he CIA had captured a new al Qaeda suspect in Asia. Sources said CIA officials that summer returned to the Principals Committee for approval to continue using certain "enhanced interrogation techniques."
Then-National Security Advisor Rice, sources said, was decisive. Despite growing policy concerns—shared by Powell—that the program was harming the image of the United States abroad, sources say she did not back down, telling the CIA: "This is your baby. Go do it."
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continue reading at Balkinization ...
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Phil—to echo Orin’s skepticism about part-time at law firms, I wonder whether flexibility isn’t actually part of the same phenomenon that also accounts for heavier and heavier workloads. While it’s true that firms are becoming more flexible in terms of part-time arrangements to accommodate working parents and flexible partnership tracks, isn’t a lot of this just a move toward an eat-what-you-kill system generally? The demise of lockstep for partnership, for instance, does mean people who take time off aren’t fired (so long as they are otherwise productive and valuable to the firm), but it also has meant longer probationary periods before partnership generally and the rise of a whole range of demi-partnership statuses (such as the somewhat puzzling status of “non-equity partner”—basically a glorified associate who gets to pay self-employment tax). Large firms now routinely fire or demote partners (technically vote them out of the partnership) who fail to perform to expectations; conversely, rainmakers demand salaries that rival those of investment bankers and necessitate higher billable-hours requirements across the board for associates and partners alike.
This has made things more equal in a sense because there’s less room for favoritism and gender bias in a world of ruthless competition and an unyielding focus on the bottom line—as any economist will tell you, highly competitive markets tend to punish irrational discrimination. But they reward rational discrimination. For women and men who want more time off, this means they can get whatever they can negotiate in a competitive market. Maybe this is better than a system where part-time is out of the question, but it’s not exactly “family friendly.” And even if you do take leave or swing a part-time schedule, the bottom line is still the bottom line: If you’re a partner, you can’t just take three months off and forget about your clients; if you’re an associate and you check out for three months, someone else is going to be doing all of what used to be your work (or at least all of your good work) when you get back, and you’ll have to scramble to make your billables. Obviously this all affects women disproportionately, but little of it is sex discrimination.
Official firm leave and part-time policies don’t mean much in this context—they set a tone, but in the end your schedule depends on your relationship to clients and partners. Suppose you go on paternity leave, and two weeks later a partner you enjoy working for asks if you can help out a little bit from home on an exciting new matter. “I just want to be sure you’re in the loop so when you get back from leave you can take the lead on this.” You could, of course, forbid this type of request and insist that parents take their leave. But is that really better for women? That partner is doing you a favor—she could have just gotten someone else who’s not on leave to take the case and they’d have the plum assignment. Ditto a long-hours assignment for someone supposedly working part time.
My wife for instance, who works for a large firm in San Francisco, was in the office a week after she gave birth to our daughter (and without an epidural, no less!). No one forced her to come in, and in fact, she was roundly chastised for it. A week later, a courier delivered five banker boxes of documents and a laptop to our home so she could keep up while out on “leave” (for the last two years she's also been "part time," which is roughly 40 hours a week, plus the inevitable weeks or months "from hell" when something explodes and she has to take care of it). Again, this was her decision—she’d have a job in three months even if she did no work on her leave. But there’s no way she can just come back to the same job she left while doing nothing—her clients and relationships require some ongoing maintenance, many of the relationships are personal and can’t be transferred back and forth, it takes time to get up to speed on a client’s portfolio, etc. If the firm had more people working on a given matter, one person could take up the slack for someone on leave without taking over entirely. But except for huge deals and make-or-break litigation, firms tend to staff leanly. Given the hourly rates big-firm attorneys charge, clients understandably demand it. And given the salaries attorneys earn, firms can’t afford to write off too much idle time.
So the bigger problem is, as Phil and Orin suggested, the general crazy upward spiral of salaries and hours. No one is really to blame for this—or everyone is. Maybe it’s a collective action problem—firms think they need to offer larger and larger salaries to get the best students out of law school; status-conscious law students think high salary is an indicator of prestige and pick firms accordingly, even though they’d prefer less pay and lower hours. If so, there should be solutions, such as the initiatives among law students to rate firms based on lifestyle and social responsibility in order to change what counts as high status. On the other hand, it could be that people like to complain about their hours, but in fact they prefer long hours and high salaries to the alternative (it might be a bit like airlines: Everyone gripes about the lousy amenities, delays, and tiny seats, but they choose almost exclusively based on price).
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Jack tries to reconcile his commitments to originalism and to living constitutionalism by arguing that originalism supplies general principles that later constitutional interpreters (judges and others) must obey even while they update constitutional rules to reflect changing times. Whereas Scalia-style originalism determines the entire "skyscraper," Jack's originalism supplies only the "framework" of the constitutional edifice; others fill in the architectural details.
Jack's right to think that Scalia's skyscraper originalism is impractical; and, as he notes, Scalia himself recognizes that the court can't, as a practical matter, overturn certain highly established precedents in order to recover the original meaning. But Jack's own style of originalism raises questions as well. The 14th Amendment does not so much establish a principle of equality before the law but, as Jack notes, reflects a compromise between those who held a stronger version of that principle and those whose weaker version permitted what we today would call exceptions to that principle—such as denial of suffrage on the basis of race. In his work on originalism, Jack draws on the principle of equality in its strong form, but on what basis can he ignore the beliefs of those who made sure that the principle would be so watered down, that discriminatory suffrage laws would not be constitutional violations? It is a crooked, ugly framework, but on Jack's view, we are committed to it (and I don't understand how he gets around this problem).
An even more limited version of originalism would treat it as, at best, the blueprint (a word Jack also uses) for the building. In the years immediately after the blueprint is ratified, a constitutional edifice is constructed along the lines it lays out. But as more years pass, new wings are added, the façade is replaced, new stories are piled atop the roof, walls are relocated—and eventually one has an elaborate structure whose origin in the blueprint can be found only by a talented archeologist, in an odd wall here, or some old ductwork there. The blueprint is of antiquarian interest only. The originalist, like a fanatic preservationist, laments the loss of the blueprint authors' original vision and seeks to destroy the structure so that the original modest little country manse can be rebuilt. It makes no difference that the building has evolved to meet interests and circumstances that the original authors never imagined.
I think this version of originalism is truer to Jack's commitment to living constitutionalism. There is no particular reason to look back to the original understanding except in narrow conditions—perhaps to understand an ambiguous precedent, for example, or perhaps to maintain some useful piece of institutional design that is largely arbitrarily but settles things. But why be bound by someone else's principles? The original Constitution's lasting impact results from its role as starting point, and it should become less and less relevant as time passes, precedents pile up, norms and interests evolve, and institutions change.
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Thanks to Bob Litt for correcting the error in my earlier post. I don't agree with him, however, that you can't deter corporations by threatening to punish them. True, they are artificial entities, but they are controlled by managers, who can spend more or fewer resources to screen out employees who are likely to commit crimes, and to monitor employees so that any criminal activity can be detected before it causes too much harm. Whatever the weaknesses of shareholder control, it remains true that managers suffer when their firms do badly. What does seem to be case is that criminal liability has excessively bad consequences for many corporations, which can't and won't expend infinite resources to prevent their employees from committing crimes, so that the costs are just passed on to consumers. Ordinary civil liability for torts committed by employees, which, unlike criminal prosecution of corporations, is extremely common, is premised on the reasonable assumption that corporations will take steps to avoid legal liability.
So the question raised by the Times article is just whether the increasing use of DPAs, in lieu of plea agreements (not, as I was trying to explain, in lieu of trials, as the Times said), represents good policy. Everything depends on the terms of the deals, and whether the monitors effectively ensure that they are carried out. If the strictness of the deal is reasonable in light of the seriousness of the criminal activity, then they will clearly be an improvement over criminal prosecution or plea agreements, for the reasons given by Bob Litt. Also as he notes, they could be too strict, the result of corporations agreeing to anything in order to avoid the destructive effects of a conviction. Unfortunately, the Times article sheds no light on these questions.
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Bob Litt, a former federal prosecutor and Justice Department official who now practices with Arnold & Porter LLP in Washington, sent me this note in response to Eric's post today on corporate prosecutions:
While trying to clear up confusion engendered by the New York Times article, Eric actually creates more confusion. By suggesting that a deferred prosecution is a "plea agreement plus," he misses the essential point of a deferred prosecution agreement, which is that it precisely is NOT a plea agreement. In a plea agreement, a corporation enters a guilty plea and is convicted of a crime. In a deferred prosecution agreement, criminal charges are filed but the corporation does NOT enter a plea. Instead, it agrees to undertake certain reforms and to be on probation for a period of time, and if it successfully completes that period, the charges are dismissed and the corporation is never convicted.
The real policy change is not a shift from "trial" of corporations to DPAs. It has always been very rare for a corporation, particularly a public corporation or a corporation in a regulated industry, to go to trial. (How many can you think of?) When criminal charges are actually filed against a corporation the result is almost always a guilty plea. The right question to ask is not the one Eric asks - whether cases resolved by a DPA would previously have ended in "plea bargains or in trials." The right question is whether the Department of Justice is using DPAs in cases that it would otherwise have prosecuted, or whether it is using its substantial leverage to coerce a corporation to accept a DPA in cases that it would previously have declined to prosecute at all.
Many people believe that Department of Justice policy has softened -- that instead of insisting upon agreements that require guilty pleas and convictions it will accept agreements that do not. This shift is extremely beneficial to corporations because of the collateral consequences that can result from a criminal conviction -- ranging from debarment from federal contracts, to exclusion from participation in health care programs, to civil liability in private lawsuits. A DPA carries none of these consequences. So there is a reason why corporations prefer DPAs to plea agreements.
But that's not to say that the change is bad as a matter of policy. There are substantial arguments in favor of a policy that forgoes prosecution of corporation, at least so long as the government pursues vigorous prosecution of responsible individuals. A corporation, of course, is an artificial entity. You can't "deter" or "punish" a corporation effectively. Particularly in the case of a public corporation, it is almost invariably the case that the effects of corporate prosecution fall most heavily on innocent individuals who had no ability to control the criminal behavior, namely shareholders and employees. Witness the case of Arthur Andersen (actually a partnership but the same principles apply), where the company went out of business, and thousands lost their jobs, when the government insisted on prosecuting the company as well as the responsible individuals. If we had more vibrant corporate governance in this country there might be greater justification for prosecution of corporations. But since shareholders have almost no power over the actions of a corporation or its management, it seems peculiarly unfair to punish them for the malfeasance of management.
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Orin, you're quite right to call me out on the "part time" fiction at big law firms. Quite simply, it ain't true. This is clearly a function of the profit motives you cite, and the all-consuming quest to maximize billable hours among lawyers. However, I also think it's a function of how law firm billable requirements have exploded over the last several years as part of an upward-and-upward spiral of associate compensation, partner compensation, billable hours requirements and hourly fees. These requirements have been inching upwards for years, to the point where I have many friends at large firms who work the hours of 1.5 lawyers, or even 2 lawyers in some cases. For these associates, going to a "part time" schedule means downsizing to only 40 hours a week -- a significant reduction from the crushing workloads they carry now, but certainly nothing like what most people think of when they say "part time."
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A front-page article in the New York Times today discusses what it calls a "shift" in Justice Department policy: "corporate deals" are replacing "trials," as the headline puts it. The tenor of the article is that corporations are getting away with murder, thanks to the lax prosecutorial policies of the Justice Department. The article, however, rests on a simple confusion about what is going on.
The article confuses two overlapping but conceptually distinct phenomena: a plea agreement, where the defendant avoids a trial and the risk of a conviction by paying a fine (sometimes, pleading guilty to a lesser charge, sometimes not); and a deferred prosecution agreement, where a similar deal is made (including payment of a fine) but, in addition, the corporate defendant agrees to undertake internal reform that will be monitored by an outsider appointed by the government. If the monitor declares that the firm has failed to make the necessary reforms, then the agreement is off, prosecution and trial will proceed. A DPA is just a tough version of the plain-vanilla plea agreement.
The article (read the headline) implies that the Justice Department prefers to coddle corporate defendants with DPAs, rather than subject them to trial, conviction, stigmatization, and destruction. So trials are being abandoned in favor of DPAs. But, in fact, the article provides no evidence that this is what is happening, nor does it quote anyone who says this is what is happening. (The article quotes a law professor, Vikramaditya Khanna, who quite reasonably says that corporations prefer DPAs to trials (after all, if they didn't, they wouldn't agree to DPAs). But Khanna's work does not establish that DPAs are replacing trials; he's interested in how DPAs should be structured. Others quoted in the article worry about whether DPAs may be too lax but none says that they have replaced trials.)
In fact, what appears to be happening is that the Justice Department has decided that DPAs are often more appropriate than ordinary plea agreements. That's the policy "shift"; not a decision to stop trying corporations. And it's a policy shift that should make corporations cry rather