Saturday, April 23, 2005

New Volokh Conspirator:

I'm please to announce that Samuel Pereira Volokh joined The Volokh Conspiracy (or at least one of its branches) at around 1 am yesterday. I hope to post a photo or two in a couple of weeks.

Related Posts (on one page):

  1. New Volokh Conspirator:
  2. Congratulations to Eugene!:
State Median Incomes:

The means-testing provisions of the bankruptcy reform bill only apply to those who make above the state median income, adjusted for family size. For those interested in the list of state median incomes is listed here.

In the area where I live, for Virginia, the median income for a family of four is $69,616, in Maryland it is $82,879. New Mexico appears to be at the bottom at $46,596 (a few hundred behind Mississippi).

Atlanta Journal-Constitution Article on Bankruptcy Reform:

An article last week before the bill signing in the AJC, "Going for Broke Won't Be So Easy". The reporter actually went to a day of hearings (it doesn't say for sure, but it looks like they were probably section 341 hearings) and has some reports from the front lines:

A young woman in office attire was trying to hold on to her house and her car.

"Were you behind on your property taxes when you purchased the vehicle?" asked the trustee.

"Yes," she answered meekly.

Minutes later, a casually dressed, middle-aged couple took her spot at the hearing table.

They didn't say what had gotten them into trouble, but despite $60,000 in annual income and an additional $6,000 or so in estate money, they had fallen far behind on house payments and other debts. It was their second time in bankruptcy.

A trustee asked an elderly man, in his third trip through bankruptcy court, why he had racked up $18,000 in income tax debts over a period of several years.

"I forgot to pay," he shrugged.

An interesting thing briefly suggested here is the extent to which tax problems force people into bankruptcy (usually, however, not because they just "forgot" to pay their taxes). There aren't many good studies on this, but some have concluded that as much as 10% of bankruptcy filings are caused by tax liabilities (and that doesn't count those who would have alot more money available to pay their debts but for having to pay their taxes or pay their taxes because they are generally nondischargeable in bankruptcy). For those keeping score at home, this exceeds the number of bankruptcies traditionally thought to be caused by health problems, death in the family, college expenses, and gambling.

Given that most lawyers I talk to report that they often see tax problems as a primary cause of consumer bankruptcy, it certainly would be useful if someone had access to data to look at this question. For some reason, however, empirically-minded bankruptcy scholars seem to be largely uninterested in investigating the extent to which bankruptcies are caused by tax liabilities or excessive tax burdens.

Don't Bogart that marijuana case: The Supreme Court reporter for the UPI finds it odd that the Court has taken so long to decide our case, but still thinks we are going to lose. I thought you would find the story of interest. Here is how it begins:
Washington, DC, Apr. 22 (UPI) — A Supreme Court decision on medical marijuana is more than ripe for delivery. If the case hangs around any longer without a ruling, like ripe Camembert it will begin to smell. . . .

When the high court holds on to a case, without handing down a decision, for five months after hearing argument, something is up. . . .

Boston University Professor Randy Barnett, a fellow at the Washington-based libertarian Cato Institute, spoke for the challengers. He had to handle hostile questions from both the conservatives and the liberals on the bench.

As reporters compared notes afterward, the post mortem was unanimous. This case was going to be a slam dunk for the government.

So why haven't we heard already?

A quick turnaround between argument and opinion in the modern Supreme Court usually takes about a month. A turnaround of three or four months is more about average. Five or six months is really pushing it.

Which begs the question, what's holding up Docket No. 03-1454, Gonzales vs. Raich et al?

Perhaps the justices are having trouble settling on a majority opinion. Perhaps they disagree on the way they want to slap down the state laws. Or perhaps they have to scrape together a plurality in order to find a way to rule for the Justice Department. One thing they certainly will not do is rule against the government.. . .
You can read the rest here. Feel free to pass along any knowledgeable speculations.

PS: I know he used "begs the question" wrongly.

Do teachers have the right to change the Pledge of Allegiance?

I have no expertise in the legal issues here, but I was struck by a recent case in Wheat Ridge Colorado. A seventh grade teacher took out "under God" from the pledge and replaced it with "One nation, under your belief system...". This doesn't make sense even for extreme relativists. The teacher claimed to have been influenced by the sixth anniversary of the Columbine shootings (double huh?) and the need for all-inclusivity. The principal sent home a letter of apology to all parents.

Friday, April 22, 2005

President Signs Bankruptcy Reform Legislation:

I was lucky enough to be invited to the Presidential Bill Signing Ceremony for the Bankruptcy Reform Legislation on Wednesday, which turned out to be a real treat. After eight years of seeing defeat clutched from the jaws of victory, I half expected that the President would get lost on the way over or that the pen would run out ink while he was signing it. But everything went off without a hitch and it was quite a festive occasion. Needless to say, I was the only law professor in the room, but it was sort of funny seeing about 3 generations of Senate and House staffers who had worked on the bill over the past many years.

I thought the President's remarks at the ceremony were right on target:

Our bankruptcy laws are an important part of the safety net of America. They give those who cannot pay their debts a fresh start. Yet bankruptcy should always be a last resort in our legal system. If someone does not pay his or her debts, the rest of society ends up paying them. In recent years, too many people have abused the bankruptcy laws. They've walked away from debts even when they had the ability to repay them. This has made credit less affordable and less accessible, especially for low-income workers who already face financial obstacles.

And he concluded:

America is a nation of personal responsibility where people are expected to meet their obligations. We're also a nation of fairness and compassion where those who need it most are afforded a fresh start. The act of Congress I sign today will protect those who legitimately need help, stop those who try to commit fraud, and bring greater stability and fairness to our financial system. I'm honored to join the members of Congress to sign the Bankruptcy Abuse Prevention and Consumer Protection Act.

The Washington Times also noted yesterday that 73 Democrats voted in favor of the bill in the House, one of the more bipartisan bills among the important pieces of legislation enacted so far this session.

I sat next to a man and his son who own a small family-owned lumber store in rural southern New Jersey (250 residents in their town). The father testified before the National Bankruptcy Review Commission almost 10 years ago in favor of reform. They said that for their small family-owned business, losses due to bankruptcies often determines whether they turn a profit or end up losing money in any given year. They also talked about the unpredictability that they now face in trying to determine whether a consumer is going to end up buying lumber from them on credit (say to build a new deck) only to end up stiffing them in the end by filing bankruptcy. A consumer who buys $500 worth of lumber then doesn't pay up is a big loss for them, and it isn't that easy for them to just raise prices to offset it when they are competing against rivals like Home Depot and Loews.

A timely reminder that Citibank isn't the only creditor affected by this legislation rebalancing the consumer bankruptcy system.

Thank You Marquette:

A special thanks to the folks at Marquette Law School, who hosted me so nicely this past week. It has been a crazy week so I'm just getting around to thanking them now. Christine Hurt of Conglomerate fame was my tour guide, so a special thanks to her, and to Justin Longley, President of the Marquette Federalist Society.

Monday night we went out to a ballgame at Miller Park. The stadium is very nice too, albeit a bit peculiar. I had forgotten that it was a retractable dome stadium (which makes sense in the weather there, of course), which means that the outfield is enclosed and so you can't see out of the ballpark. Otherwise quite a nice park and the food really does live up to the hype (quite reasonably priced too). Maybe someday the Brewers will actually be playing in October so they will be able to use that retractable dome when it counts.

Relatedly, I went to my first Nationals game yesterday afternoon, played in a steady downpour at RFK. The Braves pulled it out 2-1 on a two-out, two-run throwing error by the Nats shortstop in the top of the 9th. There were twice as many people at RFK for a rainy Thursday afternoon game as there were for my Milwaukee game on Monday night on a beautiful evening!

AEI Lochner Event on Video:

If you couldn't make it to AEI today to watch the Lochner at 100 event featuring me, Jeffrey Rosen, and G. Edward White, you can watch a video of the event here. Jeff's controversial New York Times piece came up in passing several times, but mostly the panel involved me talking about the history of Lochner, Jeff ably defending judicial restraint as a principle both the left and right should endorse, and White eruditely discussing both the history of Lochner (he and I have some minor disagreements about the relative importance of "class legislation") and his view that no particular constitutionalist methodology (such as originalism) should be privileged. A very interesting discussion.

One issue I raised during the Q & A, which, as restated below, I think deserves some attention: if you are a liberal to moderate Democrat, would you rather have an outspoken libertarian like Justice Janice Rogers Brown on a federal appellate court, or even the Supreme Court, or a more typical cautious conservative Republican who got his position in part through pure political loyalty (cynics may say hackery)? Is Justice Brown's intellectual independence a plus from your perspective, because she is perhaps less likely to acquiesce to the wishes of the Bush Administration, or a minus, because she won't give a fig about what the New York Times editorial page says about her judicial opinions and is therefore less likely to "mature" in office? Does your answer change given that the most pressing constitutional issue of our times may very well be the scope of civil liberties during wartime (with wartime being, for now, indefinite)? Does it change knowing that someone like Brown would be the only Republican appointee to like Lochner, but my hypothetical political loyalist could be the fifth vote to uphold the evisceration of habeas corpus rights for those suspected of offenses connected with terrorism?

Of course, when it comes to the Supreme Court the choice is unlikely to as stark as a pure conservative political activist versus an independent-minded libertarian intellectual(though FDR managed to appoint a group of Justices who lacked much intellectual independence, at least on New Deal issues, see, e.g., Wickard v. Filburn (unanimously upholding a law that would likely have been easily invalidated under the Commerce Clause a decade earlier)). Rather, it's going to be a question of margins--a relatively more independent-minded libertarianish conservative versus a relatively more pro-Administration, pro-executive power conservative. I don't think even the hope of Bush appointing a relative "moderate" conservative in the Alberto Gonzalez mode is going to change the equation on the executive power issue.

UPDATE: Most of my scholarship on Lochner can be found here.

Congratulations to Eugene!:

I'm sure he'll fill VC readers in.

Related Posts (on one page):

  1. New Volokh Conspirator:
  2. Congratulations to Eugene!:
Krauthammer on Tom DeLay and Attacks on the Judiciary: Everyone will find something to agree with and something else to disagree with in this interesting piece from Charles Krauthammer in the Washington Post:
  Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.
How Does TV Impact Criminal Trial Practice?: Lawprof and former prosecutor Jennifer Collins, guestblogging at Prawfsblawg, links to an interesting U.S. News story about how TV shows like Law & Order shape juror expectations and influence criminal trial practice in the real world. Jennifer's verdict: the U.S. News piece is "right on the money."

Thursday, April 21, 2005

A Taxing Blog,

written by my friend and colleague Victor Fleischer, is back. (Victor, by the way, is also a fellow Kozinski law clerk, though I think it's fair to say that Victor is more a moderate liberal than a conservativish libertarian like me.) He has a particularly interesting post up now on The Google IPO as a Branding Event.

Laissez-Faire Books Sale:

Laissez-Faire Books is having its annual 15% off everything sale, which is quite good considering that its regular prices match or beat Amazon's. It's a great opportunity to pick up at a discount 2005 Spooner Award winner Randy Barnett's Restoring the Lost Constitution, or 2004 Spooner Award finalist You Can't Say That! (by guess who?)

Selective Appeals to Constitutional Decisions:

A reader objects to my D.C. statehood post by writing:

While the District of Columbia certainly has a lower population than most states, this is immaterial to the question of whether or not it deserves statehood. After all, Wyoming's population is even lower than that of D.C. Should Wyoming's senators be fired, and their duties delegated to those of, say, Colorado? The idea that states, regardless of population, are guaranteed a certain basic level of representation is controversial, but it's been the law of the land since the Sherman compromise was enacted. All other states are subject to that compromise; it would be quite unfair to treat D.C. differently.

I had thought I'd responded to this in my original post by saying "Ah, some may say, but the two-senators-per-state rule is an unfairness that's built into the Constitution. Indeed it is. But so is the no-senators-for-D.C. rule; both are constitutional rules." But let me elaborate on this further: The reader is trying to rebut my "unfair to give D.C. two senators" argument by appealing to the constitutional judgment that all states have two senators. If that works, though, then one can equally rebut the "unfair to deny D.C. senators" argument by appealing to the constitutional judgment that D.C. lacks senators. Thus, one might argue:

While the District of Columbia certainly has a population, this is immaterial to the question of whether or not it deserves statehood. The idea that D.C., regardless of population, is excluded from representation is controversial, but it's been the law of the land since the Constitution was enacted.

Of course, one could say that the mere fact that something is in the Constitution doesn't make it right: The denial of representation to D.C. residents is no longer necessary, and is unfair; the Constitution should therefore be changed to remedy this unfairness.

But then one should also pay attention to the argument that the two-senators-per-state rule is unfair, even though it too is part of the Constitution. One should try to come up with a remedy that's as fair as possible to big-state residents. One shouldn't remedy unfair underrepresentation for D.C. with unfair overrepresentation, and defend this remedy simply by arguing that the unfair overrepresentation is consistent with the Constitution (since after all the unfair underrepresentation is equally consistent with the Constitution).

And the fairest remedy, I argue, is not to give D.C. residents two Senators, but rather to give them a say in the election of a neighboring state's (e.g., Maryland's) two Senators.

D.C. Statehood:

People periodically complain — with some justification, I think — that it's unfair that D.C. isn't represented in Congress. Its residents deserve representation, so D.C. should become a state.

But as a California resident, I'm struck by the unfairness of the remedy the pro-statehood forces propose. D.C. has about 1/60 the population of California — and about 1/10 the population of the average state — but statehood proponents want it to have the same number of Senators as we Californians do. So instead of underrepresentation in the Senate, they want 10-fold overrepresentation in the Senate.

Ah, some may say, but the two-senators-per-state rule is an unfairness that's built into the Constitution. Indeed it is. But so is the no-senators-for-D.C. rule; both are constitutional rules. And just because there is some unfairness in the Constitution already (for instance, that Wyoming has two senators just as California does) doesn't mean that we should exacerbate it further.

It seems to me that the fairest solution is to give D.C. one representative — its population is not far from the population of a Congressional district — and have it share Maryland's two senators. As it happens, Maryland has roughly average population for a state, so that would be pretty fair; D.C. residents, as well as Maryland residents, would have a roughly average voice in the Senate and in the House.

Now naturally there may be political objections to this proposal, which would require a constitutional amendment: Maryland residents may not want D.C. residents diluting Marylanders' votes for Senate. But my argument is that Californians, New Yorkers, Texans, Floridians, and other big-state residents should make sure that there are similar political objections to any D.C. statehood proposal, since they too shouldn't want D.C. residents further diluting the big-state voters' votes for Senate.

Finally, of course I realize that the main political calculation behind D.C. statehood debates has to do with party power: Two Senators from D.C. would be Democrats, and likely very liberal Democrats. Republicans who oppose D.C. statehood, no matter how principled their official objections, may well be motivated, deliberately or subconsciously, by this partisan concern. But of course one can say the same about Democrats who support D.C. statehood. My point is simply that even if one sets aside the partisan considerations — purely for the purposes of argument, I suspect, since I doubt that the partisan considerations could in fact be set aside — and tries to argue in terms of democratic principle, the statehood solution is substituting one unfair situation for another.

All this assumes that the original reasons for denying representation to D.C. and for having two senators per state are no longer sound today. I tentatively think that they indeed are no longer sound; there is something still to be said for them, but on balance their minor remaining value is outweighed by the value of political equality of voters. But for purposes of this post I'll basically assert this rather than trying to demonstrate it, recognizing that this makes this post potentially persuasively only to those who share my assumptions that the denial of representation and the two-senators-per-state rule are both somewhat unfair today.

UPDATE: There are several ways in which my vote-with-the-Marylanders scheme might be accomplished. It's possible that Congress could retrocede all or most of the District to Maryland, just as it retroceded the Virginia part of the District (which originally included a chunk of Virginia) in the 1840s to Virginia. This wouldn't require a constitutional amendment by itself, I think, though I'm not sure whether it would require Maryland's permission; but it would probably require an amendment to repeal the 23rd Amendment, which gave D.C. special voting status in presidential elections. The scheme could also be implemented by a constitutional amendment that preserves D.C. as a separate enclave, subject to federal control, but lets it vote with Maryland; this might, under article V, require not just the usual supermajority for amendment purposes but also Maryland's pmerission. But I mention all this now only because some correspondents have raised the issue; I originally omitted it because my question is about what's the fairest thing to do, not how precisely it ought to be done. I'd still prefer to stick with that original question, and set aside the details for now.

Why Congress Should Pre-Empt Most Lawsuits Against Gun Manufacturers:

Still more evidence comes in District of Columbia v. Beretta, U.S.A., just decided today by the D.C. Court of Appeals — D.C.'s equivalent of a state supreme court. The court generally rejected various lawsuits against gun manufacturers, but held that victims of gun crimes were entitled to sue gun manufacturers under D.C. Code sec. 7-2551.01 (under a separate statute, the city is also entitled to sue manufacturers and dealers based on such crimes, for reimbursement for various health care costs that it has had to pay):

Any manufacturer, importer, or dealer of an assault weapon or machine gun shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District of Columbia.

To quote the court further,

The SLA defines “assault weapon” to include a number of specific products, and invests “machine gun” with the same meaning defined in D.C. Code § 7-2501.01 (10), i.e., “any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot: (A) Automatically, more than 1 shot by a single function of the trigger; [or] (B) Semiautomatically, more than 12 shots without manual reloading.”

The latter definition of "machine gun" is of course highly misleading. "Machine gun" means a gun that shoots more than one round per trigger pull; that's the nearly universal definition. Semiautomatic guns aren't machine guns.

What's more, this definition labels as a machine gun the overwhelming majority of all semiautomatic guns, since even those semiautomatic guns that come with a smaller magazine can generally be used with a larger magazine -- the only "conversion" required is simply slapping in the bigger magazine. But in any event, regardless of what labels the D.C. law uses, it likely covers about half or more of the guns that are sold throughout the country, including most standard handguns (other than revolvers) and most semiautomatic rifles.

And this law imposes liability for manufacturing and distributing semiautomatic weapons even if the manufacturers and dealers are distributing the guns far outside D.C., in a jurisdiction where the guns are perfectly legal -- and semiautomatic guns are legal nearly everywhere in the U.S. You may have the perfect right to buy such a gun in some state (let's say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun's price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee.

Now some people may think that such guns should be banned or taxed because some people use them illegally, or gun manufacturers should be held liable for that. Others (including me) think that this is no more proper than allowing lawsuits against car or alcohol manufacturers because some people drive drunk. (There are about as many alcohol-related and car-related deaths of innocent bystanders as of gun-related bystanders.)

But whatever you think of the bottom line, surely it's wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That's precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress's plenary power), and that Congress indeed should lift.

And I'd also say the same about similar liability rules imposed on other products besides guns. Say that some neo-prohibitionist state indeed decides to make alcohol manufacturers strictly liable for all alcohol-related crimes caused in that state, even if the alcohol is made and sold outside the state. It would be just as wrong for that state to impose its alcohol-prohibitionist rules on out-of-state manufacturers, distributors, and consumers as it is for D.C. to impose its gun-prohibitionist rules.

Finally, one can also argue that the relatively pro-gun-rights states are imposing their policies on other jurisdictions, by allowing the sales of guns that eventually leak out into places that are trying to restrict guns; and likewise in the alcohol hypothetical. But this too is an argument for Congressional decision about what's the best policy — decision by a body that, for all its flaws, at least represents the nation generally. (Perhaps there ought to be some constitutional limits on such Congressional action, if it involves purely in-state transactions; but under modern Commerce Clause jurisprudence, Congress would have the power to control even such in-state economic transactions, precisely because in-state transactions may have serious out-of-state effects.)

Federalism means leaving many matters to states, even when one disagrees with the decisions that particular states may reach. But it also means leaving Congress with the power to resolve those issues that involve genuinely interstate effects. When the D.C. City Council imposes its vision of proper gun control on the remaining 99.8% of the country, even a sincerely federalist Congress should step in.

UPDATE: My original post said that Congress "represents the nation as a whole"; reader Elliot Reed pointed out that Congress of course doesn't represent D.C. Nonetheless, whatever one thinks of the merits of D.C. residents' not being represented, that decision is a deliberate judgment in our Constitution; and even if it's wrong for the representatives of 99.8% (I set aside here the territories) to make rules for 100%, surely having representatives of 0.2% make rules for 100% is not the right remedy.

FURTHER UPDATE: I realize that there are also other arguments for federal action, for instance that such lawsuits jeopardize the right to bear arms, and thus that it's legitimate for Congress to protect this right. My point here is limited to the federalist concern about one U.S. jurisdiction effectively banning, restricting, or taxing conduct that's perfectly legal in other jurisdictions. (I speak here of the propriety of the action, and not just its mere constitutionality under either the Commerce Clause, the Federal District Clause as to D.C., or conceivably the Fourteenth Amendment Enforcement Clause as to states.)

YET FURTHER UPDATE: When first writing this, I foolishly missed the fact that the law covers nearly all semiautomatics. Instead, I wrote only that it applies to those designed to be used with large magazines -- this even though my post last year on this statute got it right. The theoretical point is the same, of course; but it's good to keep in mind just how practically broad the law is, and how it makes potentially actionable probably about half or more of all nationwide gun sales. I've therefore corrected the post accordingly; thanks to a reader for reminding me of this.

Related Posts (on one page):

  1. Federal Preemption of Some Product Liability Lawsuits, and States' Rights:
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Academic Freedom Problem?

A columnist in the Rocky Mountain News writes:

Remember the proclamation of 29 professors at the University of Denver College of Law denouncing the inquiry into Ward Churchill because "the critique of conventional wisdom, or the accepted way of doing (or seeing) things, is essential to fostering the public debate that is necessary to prevent tyranny"?

Remember the ringing declaration of 199 faculty at the University of Colorado at Boulder, also in defense of Churchill, on the importance of an "environment in which ideas may be exchanged even in the face of widespread doubt, incomprehension and hostility"?

Does such an unfettered intellectual environment actually exist on any Colorado campus?

In the journal Academic Questions, former Gov. Richard Lamm recounts an incident that suggests, once again, the answer is emphatically no.

Lamm, who is a tenured professor at DU, tried to publish an article in The Source, a newspaper run by the administration there, "in response to a particularly offensive screed on white racism by one of our affirmative action officials."

Yet despite personal pleas he took up the DU ladder right into the chancellor's office, his essay was repeatedly rejected.

It is now online at . . . [I]f Churchill can call for violence and the destruction of America, surely Lamm can argue that the cultural component in personal success is much larger than many of us wish to concede.

Or can he?

A couple of people, including InstaPundit, have also suggested that the refusal to publish Lamm's piece is an academic freedom violation (whether or not a serious one). But I don't think it is, nor do I think it is an attempt to "fetter" the "intellectual environment"; and it seems to me that the analogy to calls for Churchill's firing is quite unsound.

The Source is run by the administration, and is basically the voice of the administration — it places a quite direct imprimatur on everything it runs in this publication (as opposed to the outside publications of university faculty members, which have historically not been seen as having the university's imprimatur, and which universities often distance themselves from). The administration is entitled to choose what goes in this publication, just like other editors are entitled to choose what goes into their publications.

The administration may be faulted for being a bit closed-minded, or for not serving its readers well, if it refuses to publish important and interesting commentary. But the administration may also respond that, important and interesting as the commentary may be, it's not commentary to which it wants to give its stamp of approval. The intellectual environment would still remain free if the administration refused to publish Gov. Lamm's piece — Gov. Lamm could publish his articles in student newspapers that choose to carry them, or give speeches on campus about this topic, or publish the articles elsewhere. It's just that the administration's own publication would in this instance not be adding Gov. Lamm's article to that intellectual environment.

Likewise, if the publication is a means of building goodwill among potential donors and others the administration may reasonably want to not publish things that may undermine this goodwill. The Source is not a scholarly journal aimed at advancing knowledge, but seemingly part of the university's public relations effort. (As I read Governor Lamm's preface to his online article, The Source had published what it saw as "a particularly offensive screed on white racism by one of our affirmative action officials," which might mean that the administration is willing to sacrifice public goodwill in the service of its favored ideologies; but if so, then the administration should be faulted for that, not for alleged interference with academic freedom.)

Of course, the administration would have been equally free to refuse to publish Ward Churchill's speech — and the administration is equally forbidden by academic freedom principles from punishing Lamm for publishing his essay elsewhere. But I think that we must distinguish (1) decisions not to publish something in an administration-run publication (and a publication that is a public relations vehicle rather than a scholarly journal) from (2) decisions to punish a faculty member for publishing his work elsewhere. The decisions in category 1 aren't violations of academic freedom.

UPDATE: InstaPundit blogs further on the subject.

Althouse on Brooks:

David Brooks suggested that American politics will be hopelessly bitter so long as Roe remains the law in the land. (See my post here.) Ann Althouse doesn't think it's that simple:

it's not possible to redo the last 30 years. We already are where we are, and those who think abortion should be legal have spent these decades -- or their whole lives -- thinking abortion was not only legal but a constitutional right. To take that right away now would not give us a chance to have the democratic debate we never had. It would be a wholly different experience of taking away a right, after the bitter politics had built to the level where the side opposed to the right has finally gotten its way, after we have already become polarized. What makes you think that won't be insanely bitter?

I think she makes a very good point. It is one thing to suggest that the judicialization of controversial policy questions helped embitter American politics. It is quite another to suggest it is possible to reverse course. History moves ever onward.

Related Posts (on one page):

  1. Althouse on Brooks:
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Law Professor Letters:

A letter in opposition to the "nuclear option" is currently circulating among law professors. Drafted by the Alliance for Justice, the letter appears to have a few hundred signatories from law schools around the country. (See letter draft and signatory list here.) No doubt this letter will be presented to demonstrate an academic "consensus" in support of the constitutionality of the filibuster, the importance of protecting a partisan minority's role in the advise and consent process, and the harm of altering long-standing Senate rules by majority vote.

I find the law professor's letter quite troubling, but not because of its substantive claims. I have been quite critical of the unprecedented filibuster of President Bush's appellate nominees. Yet I remain unconvinced that eliminating the filibuster is either a prudent or principled response.

My misgivings about the letter derive from another concern. The letter makes numerous claims about constitutional history and original intent about which there is substantial debate. Academics and other scholars disagree on the Framers' intent with regard to the judicial confirmation process. By signing on to the letter, law professors signal that they agree with a particular side in this academic debate; they are holding themselves out as academic authorities and saying, in effect, "We, as scholars, believe this is wrong for historical and constitutional reasons." The letter enables opponents of the nuclear option to cite non-political grounds for their opposition. This is what's wrong with the letter.

It is clear to me that many of the signatories (including several I know rather well) have signed onto the letter without any particular knowledge or expertise on these issues. That is, I believe many who have signed the letter did so not because they believe the specific historical and constitutional claims are accurate but because they support the end result: Maintaining the filibuster so as to block President Bush's nominees. In other words, they are asserting their academic expertise and reputational capital in an area about which they have no particular academic expertise. This is not true with all of the letter's signatories, to be sure, but it is true of enough to taint the entire project. There are many fine scholars on the list, but their expertise on gender equality, human rights, or wetlands regulation hardly make them qualified to speak with academic authority on the history and desirability of the filibuster.

The willingness of so many academics to stake their academic reputations on claims about which they have no expertise is troubling. It is but one example of how many in the academy put politics over scholarship. Alas, the costs are not solely born by those who sign such letters. In the end, the stain from acts like these tarnish the reputation of legal academia as a whole.

The Symbiosis Between the MSM and Bloggers: A really nice column on the how the MSM needs bloggers and vice versa by Phil Boas, the deputy editorial page editor for The Arizona Republic: Bloggers: The light at the end of the newspaper's tunnel. Here is how it begins:
Engaged bloggers are voracious newspaper readers, too.

It's customary for anyone writing to the uninitiated about blogs to define them. This is a journalism trade publication and you are no ordinary reader, so I'll spare you the customary definition.

Instead, I'll define blogs as they relate to you.

They are your Nemesis in the making.

If you've remained nonplussed as they took down Dan Rather and four of his Black Rock colleagues, if you haven't the slightest interest in acquainting yourself with the blogosphere, don't move an inch. You won't have to. Bloggers will be knocking on your door any day now. Or knocking it down.

To many of you, bloggers are a presumptuous rabble—amateurs elbowing their way into the publishing world. You may not know them, but they know youyour face, your manners, your prejudices, your conceits.

They're your readers. And, God help us, they've become the one thing we've always begged them to become . . .

Here is how it ends:
If you listen closely, tuning in to the conversation beyond the oft-expressed contempt for mainstream media, you'll find the blogosphere actually needs mainstream media. We provide most of the coverage that starts the conversation. And by carrying the conversation further than we do, the blogosphere makes mass media vital.

The bloggers are demanding better standards and less bias—not unreasonable demands given journalism's current track record. But they're also creating stimulating and often irresistible discussion around the news we produce.

Journalism tomorrow, thanks to forces like the blogosphere, will grow more competitive. The best journalists will flourish. The mediocre will be exposed and washed out.
Everything in the middle is worth reading too, such as this:
We are headed to the Web in a big way, and our readers—especially our most engaged readers, the bloggers—are going with us. They are giving us a taste now of what our new environment will be like.

They will challenge and cajole us to confront our biases and our mistakes. And if we don't confront them, they'll clean our clocks.

They'll be our competitors and our colleagues and they'll force us to dig deeper into issues, think harder about them. They'll show us how to coalesce expertise on a breaking story and drill deeper for the more complete truth.
Whenever I blog about blogging, I often get an email insisting that bloggers need the MSM and are no replacement for it. I agree with this and this column, written to legacy journalists by a journalist, describes the symbiotic relationship between the MSM and blogging as succinctly as I have seen. (Hat tip Little Green Footballs and a commentator on Roger L. Simon who led me to LGF)
Nuclear Harry:

Justice Harry Blackmun is ultimately responsible for ending the Senate filibuster? That is what David Brooks suggests in today's column.

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.
It's actually a serious argument (even if Brooks might overtstate the case). Justice Blackmun's Roe opinion removed the issue of abortion from democratic politics. The result, Brooks argues, is a rechanneling of pro-choice and anti-abortion fervor into the fight over judicial nominees. Instead of a series of state-by-state compromises over abortion, there is one national, all-or-nothing battle in federal courts, and each side has rushed to the brink of nuclear armageddon.
Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.
Brooks is making a serious point, but I think it's a mistake to think the war over judges is all about abortion. There are plenty of other sensitive issues that judicial decisions have removed from the democratic process, and plenty of pro-choice Republican Senators who seek to end Democratic obstruction. It is also important to note that overturning Roe, by itself, would not be a pro-life victory. All it would accomplish is returning abortion policy to the states, many of which would never severely restrict, let alone prohibit, the practice.

Despite his hostility to Roe, Brooks is luke-warm about the nuclear option, and I share his misgivings. The Democratic filibuster of appellate judicial nominees is unprincipled and unprecedented, but so too is the proposed Republican response. End the filibuster for judicial nominations, and eventually it will disappear for substantive legislation as well — and that will not be a good thing. As Brooks notes, "Minority rights have been used frequently to stop expansions of federal power, but if those minority rights were weakened, the federal role would grow and grow - especially when Democrats regained the majority."

So killing the filibuster means confirming a few more judges (and justices), but could also mean the further erosion of limited government. That doesn't seem like such a good deal. Can we really blame it all on Harry Blackmun?

Related Posts (on one page):

  1. Althouse on Brooks:
  2. Nuclear Harry:
Law Review Articles From I just noticed that has begun to sell html copies of law review articles for $5.95 a piece. The availability seems to be very uneven -- for example, when I checked my own stuff only two of my articles were available. Still, it's an interesting development. (Maybe every one else knew about this, but it was new to me.)
A remarkable interview

with a former BBC Middle Eastern correspondent who actually thinks BBC coverage is too pro-Israel. Among other things, he (1) justifies suicide murders; (2) compares Ariel Sharon unfavorably with Yasser Arafat; (3) claims that the Syrian occupation of Lebanon (a sovereign country) was not really an occupation, unlike the Israeli occupation of "Palestine" (a country that did not exist when Israel "occupied" the land in question); and (4) criticizes the BBC for what he considers an attempt to have balanced coverage of the conflict--instead, he thinks the BBC should openly side with the Palestinians.

I have no idea whether this guy's sentiments are, or have been, widely shared among BBC correspondents, but if so it explains a lot. (Via Little Green Footballs)

Wednesday, April 20, 2005

Deputy Attorney General Stepping Down: Deputy AG James Comey has announced that he is resigning. The Deputy Attorney General is the #2 person at DOJ and has day-to-day control over the Department. My sense of things is that Comey was highly respected among the career lawyers at DOJ; his departure will be a loss for the Department.
Law Review Article Length -- Real Changes?: A few months ago, a bunch of the top law reviews announced a change in their submission policies that introduced a preference for shorter articles. There was lots of commentary about the new policies both here and elsewhere. Now that the spring law review season is winding down, I'm wondering if the new policies made any difference. Did authors submit shorter pieces? Did the editors actually prefer shorter pieces, or did the change in policy exist only on paper?

  We'll get an idea of the answer in a year or two, when the new articles come out and readers can see whether they are on average shorter than the articles in recent years. We'll also know in a year or two whether journals beyond the initial group adopted the same or similar preferences. In the meantime, I thought it might be helpful to get a jump on that by asking for reader feedback. If you either submitted an article to a law journal this spring or were an editor at a law journal, please consider posting a comment below.

  Authors, please begin your comment with "AUTHOR:", and then say whether you shortened your submission in response to the new policies. Editors, please begin your comment with "EDITOR:", and then fill us in on whether editors at your journal were attentive to article length and whether you think your journal preferred shorter-than-average pieces. (Also, please include whether your journal was one of the journals that signed on to the change in submission policies.)

  Thanks to everyone for participating. The results are obviously going to be impressionistic at best, but I think it's better than nothing.
Survey on Food Labeling:

Michael McCann, who will be joining the faculty at Mississippi College School of Law (where I started my career, incidentally), is conducting a survey on nutrition labeling and related issues. He invites anyone would would like to participate to take the survey. It only took me a couple of minutes to complete it.

You can find the survey here.

My Ex-Girlfriend and I Had a Baby

a year and a half ago, and my former fiancee will soon (cross my fingers) give birth to my second baby.

This brings up an interesting linguistic point: It is true that my lovely wife (the woman to whom I'm referring in the preceding sentence) is in one literal sense my ex-girlfriend, and also my former fiancee -- she used to be my girlfriend and then my fiancee, and now isn't, so I suppose she must be ex- and former. Yet of course one would never say that she's my ex-girlfriend or former fiancee, unless one wants to be amusing (I set aside whether one is likely to succeed in being amusing).

And then the question: What similar phrases can you point to in which a word's (or very short noun phrase's) literal sum-of-the-parts meaning is amusingly different from the meaning that is likely to be understood by normal users of the English language? I'm not just looking for literal inconsistencies (e.g., "ice cream" isn't cream made of ice, but that's not amusing) or for gags based on people's not understanding the components of the phrase (e.g., telling a 10-year-old that he's a homo sapiens, that his actress sister is a thespian, and that his epidermis is showing).

Please post examples in the comments, but please read the rules carefully before doing so. Also, try to make them funny!

More on Blackmun.--

My co-blogger Orin Kerr politely disagrees with my characterization of David Garrow's article on Justice Blackmun as "fair, insightful, and scathing." Kerr does not think that Garrow is "fair" to Blackmun, but then Kerr mainly argues that the evidence in Garrow's piece is unpersuasive.

Of course, "fair" and "persuasive" are different things. Indeed, one reason that I used the words "fair" and "insightful" to describe Garrow's article is that I think the examples he selected on clerk involvement accurately match other descriptions of how Blackmun did business, but might look selective without a broader knowledge of views of Blackmun in his later years. In other words, Garrow provided documentary evidence for what some clerks have said was the way Blackmun's chambers generated opinions. It was precisely because VC readers might think Garrow's evidence unpersuasive (how persuasive can a few examples be?) that I expressed my opinion that his account, while "scathing" (and thus ungenerous), was fair.

Before I had read Garrow's account, I had long heard stories from clerks on the Supreme Court in the late 1980s that by then, Blackmun was not writing his opinions, that he was diligently doing substantive cite-checking on his clerks' opinions.

A couple of weeks ago, again before reading Garrow's account, I asked a late 1970s clerk if these stories were true. The clerk first said that Blackmun never changed a single word in the opinions that this clerk wrote for him, that Blackmun just checked the cites and published the opinions unchanged. Then the clerk qualified his statement slightly to say that maybe Blackmun occasionally changed a word here or there in the recitation of facts, but never in the legal argument. I find this appalling.

For what it's worth, I just called another late 1970s Blackmun clerk, who said that Blackmun himself actually wrote the first draft of one majority opinion that this clerk worked on, but that on other cases the clerk had "pretty much a free hand." The clerk also suggested that there were other justices semingly more troublesome in their involvement in opinion-writing than Blackmun.

I think that the evidence that Garrow describes is more telling than Kerr does--in particular, the passage I bolded, where a clerk revises her opinion, informing Blackmun: "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy."

But I agree with Kerr that the examples Garrow uses are by themselves unpersuasive. I have no reason to think that Garrow, a Pulitzer Prize-winning historian, is making unrepresentative selections. I do think that some of them nicely illustrate a larger problem--that (in some terms of the Court or with some clerks) Blackmun was shockingly uninvolved with the basic task of writing opinions, serving more as a substantive cite-checker for his clerks' writing the opinions. Garrow's piece makes this point, and supports it with evidence that points in that direction. The picture that Garrow paints seems a fair one to me, given accounts from some other Supreme Court clerks.

Tip to Students (and other readers): A student wrote concerning my post on Sai Prakash and John Yoo's article on judicial review:
I was a little surprised to see your recent post asserting that judicial review was not "made up" in Marbury v. Madison.

As I understood it after taking ConLaw, the idea of judicial review had been around before that case. For example, Federalist #78 was written to say that it wasn't that bad (so someone must have criticized it). I think most critics are saying that it was inserted into the Constitution by Marbury v. Madison, or that its inclusion in the Consitution was made up. The reason that there was little dissent on both sides of the aisle at the time was that the Federalists and Anti-Federalists both saw it as a great power that they could exploit. However, that doesn't mean that the Constitution provides for that power.
A similar comment showed up on a website here.
I'm no scholar... just a 1L, but if you read closely, judicial review does not necessarily equal judicial nullification. In fact, even 78 does not explicitly make the jump that interpreting the constitution and evaluating legislation is the same thing as nullifying legislation. I say this not to argue against "judicial review" - I'm a Hamiltonian - but to question whether the "even one participant" assertion is valid.
Here is the tip: When it is suggested you read an article because it presents comprehensive textual, structural, and historical analysis in support of a particular conclusion about original meaning, do not dispute the conclusion on the basis of a few teaser quotes in a blog post. If you really care enough about the issue to write an email, then take a look at the article.

WARNING: One of the burdens of being an originalist is that it obligates you to reserve judgment until you read the evidence, rather than merely speculate about what a particular passage might have meant.

Related Posts (on one page):

  1. Tip to Students (and other readers):
  2. Simply Devastating:
Adler on Conservative/Libertarian Public Interest Groups: My friend Jonathan Adler has a very interesting piece in Legal Affairs on conservative and libertarian public interest legal organizations such as the Institute for Justice and the American Center for Law and Justice. An excerpt:
  There is no right-wing legal monolith, no cohesive, unified "freedom-based public interest law movement" . . . . The groups collected under this moniker lack a single, overarching agenda. For every I.J. advancing libertarian notions about government power, there is a more traditional conservative group seeking to protect Judeo-Christian moral values and preserve or expand religion's place in the public square. Although such groups may see a common enemy in the liberal elites that they believe still dominate the nation's legal culture, the organizations have different goals, different funding sources, and different constituencies—and sometimes they even go toe-to-toe against one another.
Defending Janice Rogers Brown:

Good post by Jonathan B. Wilson defending Justice Brown's opinion in Aguilar v. Avis Rent A Car System, although, if anything, Wilson concedes too much to Brown's critics. Wilson writes, "[n]o one wants to encourage or permit the use of racial epithets in the workplace." Well, I certainly don't want to encourage it, and I wouldn't permit it in my workplace (if I owned or managed a workplace), but I don't agree that it's wrong for the government to ever "permit" it. First, I can easily see circumstances where the use of racial epithets in the workplace, not directed at a particular party, would be privileged by the First Amendment. Moreover, current federal law requires a hostile environment claimant to prove a "severe and pervasive" climate of hostility. A singular use of a racial epithet by a coworker is almost certainly not sufficient to satisfy that standard (though there is a New Jersey case, decided under more expansive state law, that holds that a single use of racial epithet did create an actionable hostile enviroment.)

A Different Take on Blackmun and His Clerks: I just read David Garrow's piece on Justice Blackmun and his clerks, and I have to tentatively disagree with my co-blogger Jim Lindgren's characterization of Garrow's piece as "fair." My initial reaction is that Garrow's piece seems rather unfair. The fault may lie in the length requirements of a magazine article; perhaps Garrow has a lot more evidence for his conclusions but couldn't pack it all in to such a short piece. But based on his Legal Affairs essay alone, I don't think Garrow has made his case.

  Garrow offers three basic reasons why he thinks Justice Blackmun is guilty of "a scandalous abdication of judicial responsibility." First, law clerks to Justice Blackmun wrote memos to Blackmun that Garrow finds insufficiently deferential in tone. Second, in several key cases, Justice Blackmun adopted the recommendations of his law clerks. Third, Justice Blackmun made statements indicating his lack of understanding of one his most prominent opinions.

  I don't think the evidence quite adds up, though. The tone of a law clerk's memos seems a weak proxy for whether the Justice is doing his job. Some bosses like their employees to be blunt and assertive; others like them respectful and deferential. I don't think that preference corrrelates with anything important. Similarly, the fact that Justice Blackmun accepted his clerks' recommendations in a few key cases doesn't tell us very much. It would be one thing if a clerk kept changing his or her recommendation, and Justice Blackmun flip-flopped along with the clerk. But my understanding is that Justice Blackmun tended to hire very talented clerks who shared his view of the law; given that, the fact that Blackmun accepted the advice of his clerks in a number of cases isn't particularly surprising.

  The most persuasive evidence Garrow finds that Blackmun had "abdicated" his duties are the rather puzzling comments Blackmun made in 1995 about about his 1986 dissent in Bowers v. Hardwick. Blackmun's law clerk on Bowers was Pam Karlan, now a very distinguished professor at Stanford Law School. Garrow writes:
In his 1995 oral history, [a series of interviews with former Blackmun clerk Harold Koh], Blackmun recalled that, in Bowers, Karlan "did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct." . . . . Did Blackmun's position in Roe [v. Wade], Koh asked, lead him to the Bowers dissent? "Never thought about that one, but maybe they go together," Blackmun responded. . . . In another interview five months later, Koh again asked about Bowers: "Did you see it as an explicit link to Roe v. Wade and the right-to-privacy arguments in Roe v. Wade?" Blackmun answered, "No, I would hesitate to say that I did."
  It's a troubling anecdote, as you would hope Blackmun would be more engaged and self-aware. But I find it hard to go from this one anecdote to a general conclusion that Blackmun had abdicated his duties. By the time of the interview, Blackmun had retired from the Court, was in his late 80s, and was recalling an opinion written a decade earlier; I'm not so sure it's fair to construe these comments in as negative a light as Garrow does.

  Garrow may be on to something, but I don't think the evidence in his Legal Affairs piece quite measures up to his rather sweeping claim.

  UPDATE: Mark Tushnet and Jack Balkin offer some interesting thoughts.
Dan Markel on the Justice Blackmun Story:

Dan Markel (Prawfsblawg) has some interesting (though I think not very severe) criticisms of the David Garrow piece. Here's one point that I thought I'd mention, because it's an important question -- and a difficult one -- regardless of how one comes out on the Justice Blackmun controversy:

[O]ne has to wonder whether clerks of that generation, or this one for that matter, expect their memos to become part of the public record, especially while in the midst of their careers. . . . [Supreme Court clerks] now have to worry that whatever they write for their SCOTUS bosses may be fodder for historians like Garrow during their active career. That might both chill the frank advice they give to the Justices and diminish the texture of the relationship between the clerks and judges. That might not be bad, but at least let's recognize the consequences.

Randy Barnett Wins Spooner Award:

No, not for supposed spoonerisms, which he isn't prone to, and which are named for a different Spooner. Laissez Faire Books awarded him their 2004 Lysander Spooner Award for Advancing the Literature of Liberty, for his Restoring the Lost Constitution. Congratulations to Randy!

Laissez Faire Books' blog also has a post on Randy and that New York Times Magazine article.

Tuesday, April 19, 2005

Religion Clause Blog: Please join me in welcoming Religion Clause, a new blog about the religion clauses of the 1st Amendment from lawprof Howard Friedman.
If You're A First-Year Law Student, be sure to check out the symposium on the pros and cons of law review over at DeNovo.
Tom Delay Hates the Internet: Oh, and he doesn't much like my former boss Justice Kennedy, either. This via Drudge:
  House Majority Leader Tom DeLay intensified his criticism of the federal courts on Tuesday, singling out Supreme Court Justice Anthony Kennedy's work from the bench as "incredibly outrageous" because he has relied on international law and done research on the Internet.
According to the story, DeLay said the following:
  We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous. . . . And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous.
  What's next? I fully expect DeLay to introduce H.R. 8615, The Stop Anthony Kennedy From Using the Internet Act of 2005. Stay tuned.
Eugene Volokh, Top 20 Legal Thinker and "Boy Wonder": Eugene Volokh is one of the Top 20 Legal Thinkers in America! Or at least, he's one of the Top 20 most prominent and respected legal thinkers that blawg readers know about. The rest of the results of the Legal Affairs "poll" is available here. Of course, take the poll results for whatever they're worth.

  Eugene gets special billing in the poll results as a "Boy Wonder":
  Richard Posner was once the guiding light for legal academics charting a path to public intellectualism. His model: Augment a stellar scholarly reputation with a second career as a judge or lawyer; contribute regular commentary to places like The New York Times and The New Republic; please the media with a strong opinion on practically everything; and churn out a new book every six months (or at least make it feel like every six months). The rapid rise of Professor Eugene Volokh, however, suggests a new path. Not yet 37, Volokh has become famous enough to appear on our list despite never having written a general-interest book or taken a high profile case to court.
  Volokh, whose family emigrated from Kiev not long after his seventh birthday, is undeniably prodigious. By age 15, he had a B.S. from UCLA and was holding down a job as a computer programmer. He returned to UCLA to complete law school, landed two coveted clerkships—Ninth Circuit rabble-rouser Alex Kozinski followed by Justice Sandra Day O'Connor—and then joined the faculty of his alma mater. In a little over a decade, Volokh has produced a steady stream of provocative law review articles, establishing his bona fides in such disparate fields as gun control (which he vigorously opposes), free speech (which he feels is being squeezed by sexual harassment laws), and Yiddish (which he believes is "supplanting Latin as the spice in American legal argot"). He has been a visiting scholar at Stanford and Harvard and has literally written the book on being successful at academic legal writing. According to those who track such things, Professor Volokh has been cited by his peers over 800 times, putting him in a league more or less of his own.
  Impressive stuff, but enough to place him ahead of old-timers like Cass Sunstein, Ronald Dworkin, Larry Tribe, and Richard Epstein? Probably not, save for the fact that Volokh is also the founder of the eponymous Volokh Conspiracy, a blog launched in 2002. Not everything Volokh blogs about is strictly legal (posts like "Black Russian Cake" and his tireless, and tiresome, crusade against Slate's Bushisms come to mind), but in contrast to the approach of Glenn "Instapundit" Reynolds, a fellow law professor who is the USAToday of internet commentators, Professor Volokh avoids writing on topics outside his expertise. His site is now visited over 10,000 times per day. It's a pretty safe guess as to who most of those visitors are: law professors, judges, lawyers, and apparently our readers.
Thanks to Howard for the link.

  UPDATE: I just noticed that the Legal Affairs site notes that the magazine was "roundly criticized" for the list in the blogosphere, and concludes: "Look for bloggers to change their tune when they see how well-represented they are on our list." Huh? No change of tune from here. As I noted above, take the poll results for whatever they're worth.
My Senate Testimony on the Patriot Act: The Senate Select Committee on Intelligence held a hearing today on the USA Patriot Act, and I was invited to submit written testimony. I have testified about the Patriot Act once before, and was delighted be involved again: you can find a copy of the testimony I submitted today here (the document is 11 pages double-spaced). My testimony covers a number of issues, but mostly addresses the legal framework of the Foreign Intelligence Surveillance Act and the constitutionality of orders to compel evidence under the Fourth Amendment.
Stuck in the Middle: An amusing post from Stephen Bainbridge:
There I was sitting in my office peacefully preparing for class and listening to Who's Next, when one of my senior colleagues wandered in and asked: "When are you going to grow up and give up that rock crap?" I was sitting there wondering the same thing when one of my junior colleagues wandered by a bit later, stopped, listened for a moment, and asked: "Boy, you really like that old shit, don't you?" And then he too wandered off. Ah, the joys of being a late Boomer in middle-age, caught between Scylla and Charybdis.
Consecutive Vowels:

A recent post led me to notice that "obsequious" has four consecutive vowels. What not very rare English word has five vowels in a row? It's not a really common word, but it yields hundreds of thousands of hits on google (unlike, say, "miaoued"), and it's not a proper noun.

Loyal Former Supreme Court Clerks:

David raises an interesting question, though I wonder whether "obsequiousness" is quite the right term.

My sense is that clerks have tremendous loyalty to their former Justices. Generally speaking, this loyalty comes from a mixture of (1) genuine affection -- to my knowledge, virtually all the Justices who have sat in the last 15 or so years (and possibly even further back) have been very nice to their clerks -- (2) gratitude, and (3) a social norm among Supreme Court clerks, under which many will interpret criticism as disloyalty, ingratitude, or lack of affection. This is a very broad generalization, so I'm sure it has many exceptions; for instance, I suspect that there are some ex-clerks who don't subscribe to the norm mentioned in item 3, and don't enforce the norm. The generalization also generally does not extend to polite criticism of the Justice's opinion or jurisprudential philosophy. (Note also that the duty of confidentiality as to in-chambers conversations or happenings is a separate matter.)

This loyalty may be good, bad, or a mix of both. Loyalty generally has pluses and minuses, because it usually shows itself when the loyal behavior is different from the behavior that one would otherwise think is most correct -- most candid, most law-abiding, most respectful of the rights and interests of others.

If I fail to report my son's (purely hypothetical!) embezzlement, my loyalty to my son is keeping me from helping enforce the law, helping remedy the wrong, helping protect the victim of the embezzlement, and helping prevent and deter future bad conduct on my son's part. That's why some people would criticize such loyal behavior; and yet it seems to me that there is value to such loyalty, too (though I haven't thought hard about the theoretical framework for analyzing such matters, and in any event wouldn't have the time to elaborate on any such framework here). Likewise, former Supreme Court clerks' loyalty causes some problems -- it keeps discussions about the Justices from being as candid as they could be -- but may also have some merit.

But the bottom line, I think, is that such loyalty doesn't deserve the more or less unalloyed condemnation that the term "obsequiousness" suggests. Obsequiousness tends to refer to a desire to ingratiate oneself, and to win benefits through flattery. And while loyalty might involve a desire not to lose benefits (to the extent that perceived disloyalty may lead to social, personal, or professional punishment), there's more going on there than just this desire -- and some of what's going on ranks in the better portion of human nature rather than the worse.

Related Posts (on one page):

  1. Loyal Former Supreme Court Clerks:
  2. Obsequious Former Supreme Court Clerks:
Blackmun a Clerk to His Clerks.--

David Garrow’s long-awaited analysis of Justice Blackmun’s papers is finally up on Legal Affairs. It seems fair, insightful, and scathing. It appears that Blackmun lacked the talent to serve on the Court, deferring to clerks much brighter than he was to an extent that is unacceptable. Further, things got worse in his last few terms (term limits, anyone?). Garrow depicts how Blackmun sometimes served as little more than a cite-checker of his clerks' work—a division of labor that effectively made the judge a clerk to his own clerks.

Some excerpts from Garrow on the role of clerks in Blackmun’s chambers:

[Clerk Michelle] Alexander gave Blackmun a note that read, "This morning at breakfast you mentioned that you would like to release the death penalty dissent by the end of the calendar year. I think that is wise," because several pending cases offered appropriate opportunities. In particular, "there is little chance that a better vehicle for your dissent will come along before the end of the year" than Schlup v. Delo, an "extraordinary" capital case. In closing, she stated, "I would love to hear your thoughts."

Schlup was postponed, however, and Alexander reported that she had reviewed all petitioners with scheduled execution dates. "I recommend that you plan to release your dissent when Malcolm Rent Johnson is executed on January 31," she wrote. Alexander once again concluded her note by saying, "I'd love to hear your thoughts." One week later, with Johnson's execution indefinitely delayed, Alexander advised that "[i]nstead of searching for the ideal vehicle for the dissent, the dissent should be tailored for any death case," so that it simply could be issued whenever the next execution occurred. Two days later, she told Blackmun that she had revised the existing draft to remove the Gary Graham references, but explained, "I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy."[WOW!!] . . .

Readers of Alexander's and [clerk Andrew] Schapiro's memos may rightly wonder who was functioning as a justice, and who as a clerk. Alexander twice told Blackmun, "I would love to hear your thoughts" about the opinion, yet her memos suggest that Blackmun was most concerned with whether he should "recheck the cites."

No public evidence exists that Blackmun experienced the type of mental decrepitude that marred the final terms of Justices Hugo L. Black, William O. Douglas, and Thurgood Marshall, as detailed in several scholarly studies of the justices' lives. Nor is there any evidence that a clerk ever determined or altered any of Blackmun's votes in a case, as did occur with Justice Frank Murphy in the 1940s, or that Blackmun ever voted while failing to understand what he was doing, as Marshall's case files reveal that he did on at least one occasion. But what transpired in Blackmun's chambers, especially after 1990, was nonetheless a scandalous abdication of judicial responsibility. . . .

Blackmun must now be seen not only as a justice who evolved toward a more compassionate jurisprudence but as a justice who increasingly ceded far too much of his judicial authority to his clerks.

Some excerpts from Garrow on the lack of respect for other justices:

DURING THE 1991 TERM, TWO OF THE DECADE'S PREMIER CASES, Lee v. Weisman and Planned Parenthood of Southeastern Pennsylvania v. Casey, came before the court. Clerks Molly McUsic (who is now a senior fellow at a Maryland-based conservation foundation) and Stephanie Dangel (who is now a lawyer in Pennsylvania) played notable roles in both cases. . . .

[On Casey] Dangel confessed that she was "somewhat ambivalent about what has happened in this case," for while "there is much to be admired in the formation of the troika and the substance of their opinion, . . . given the middle ground that they have taken, I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the re-election of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to overrule Roe." Sketching a three-part outline, Dangel explained that the specifics of the third section "cannot be worked out until AS [Antonin Scalia] has circulated his monstrosity" of a dissent. She explained that "while there may be something to cheer in the troika's opinion, there is much more to fear from the right. And the difference between the two positions is a single vote a single vote that is up for grabs in the coming election. As you have no doubt gathered, this opinion is more rhetoric than research."

Dangel concluded by telling Blackmun, "I plan to give you a draft of this opinion late Thursday or early Friday," but she added, "I think it is preferable to circulate after the conference on Friday," since the opinion "should ruffle some feathers on the right" and it would be "better to give them a few days to cool off before you have to meet with them again." She gave Blackmun a partial draft on Sunday, explaining that it was incomplete in part because "the evil nino [Scalia] has yet to circulate."

Revisions continued during the ensuing week, with Dangel telling Blackmun that "[t]he one 'substantive' decision you will have to make is whether you want to go with an ending that links the future of reproductive rights to the upcoming election (or confirmation process) in the manner that my earlier draft did. It's pretty radical. . . ." A day later, Dangel notified Blackmun that she had changed the ending so that "it now reads less as a battle cry, and more as a lament," and she followed up with another memo reporting that a Stevens clerk had said the Blackmun opinion would further politicize the decision. "I hope you don't feel that we were pressuring you too much on the final section of this opinion. You certainly should not include it if you feel uncomfortable," Dangel wrote. She added, however, that "this is not just about abortion or this Term," because "the Justices who get appointed in the next few years are going to make up the Court for most of my life!"

Dangel closed by remarking that "while this is completely inappropriate, I cannot help [but] be disappointed with JPS [John Paul Stevens]" both in Casey and in two other cases where he diverged from Blackmun. "The people of America need someone to tell them the truth. And, as the author of Roe, I think you're the only person who can do it." Later that day, Dangel informed Blackmun that Kennedy had had a clerk pass along his concern about how the Blackmun draft referred to Rehnquist simply as "the Chief." "While I have my doubts as to whether he deserves to be call[ed] 'Justice' on this one," Dangel told Blackmun, "I guess there's no need to ruffle feathers needlessly."

The partisan politics evident in McUsic's and Dangel's memos should not have been tolerated by any justice, liberal or conservative, and no similarly intemperate statements appear in clerks' memos to Brennan, Marshall, or Powell. In addition, the hostile and sometimes harshly sarcastic references to other justices--and Blackmun's failure to stop such comments--appear to indicate that the justice himself lacked respect for some of his colleagues.

There is much more on Blackmun in the print version of Legal Affairs. And then Linda Greenhouse’s Bernstein links a story about Garrow's piece on

Simply Devastating: One of the things I really enjoy about a pool-side vacation is how much work I am able to get done. The highlight of this weekend in Tucson was reading two articles, each of which devastates its target, which in both cases happens to be Larry Kramer.

The first is "The Origins of Judicial Review" [70 U. Chi L. Rev. 887 (2003)] by Sai Prakash (San Diego) and John Yoo (Boalt) (prepublication version available on SSRN here). Given the state of the historical record, it now amazes me that anyone can still argue that judicial review was made up by John Marshall in Marbury v. Madison. Among those who have is Larry Kramer (now the Dean of Stanford Law School) in a much discussed 2001 Foreword to the Harvard Law Review. Recently, I offered what I thought was a persuasive case for concluding that judicial review was included in the "judicial power" here. But Sai and John go way beyond what I presented in this comprehensive treatment of text, structure, and historical context. I was particularly struck by these claims which comport with my research:
[N]o scholar has been able to cite any Federalist or Anti-Federalist who declared that the Constitution did not permit judicial review of federal legislation. (928)

[N]o scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of federal statutes. This silence in the fact of the numerous comments on the other side is revealing. (974)
This reminds me of the debate over the Second Amendment where no proponent of either the "collective right" or "militia-conditioned-individual right" position can cite a single contemporary before, during or immediately after ratification who actually held the view of the Second Amendment they claim everyone held at the founding.

In his recent book, The People Themselves: Popular Constitutionalism and Judicial Review, Dean Kramer no longer makes the argument that judicial review is contrary to the original meaning of the Constitution. The arguments he does make are brilliantly critiqued by Larry Solum and Larry Alexander in "Popular? Constitutionalism?" 118 Harv. L. Rev. 1594 (2005). (prepublication version available on SSRN here.) Their analysis is substantively rich, but I like the rhetoric too. My favorite is:
Constitutional theory necessarily operates at a high level of abstraction. Things become cloudy up there in the troposphere, and some vagueness and ambiguity are likely unavoidable. But as articulated by Kramer, "popular constitutionalism" lacks even the articulation and relatively sharp definition of a cumulus cloud in the lower atmosphere. Instead Kramer's "popular constitutionalism" is the cirrus cloud of constitutional theory: floating in a rarefied atmosphere at the very highest level of abstraction, popular constitutionalism is thin and wispy. (1618-19)
Followed up later by:
We have looked at popular constitutionalism from both sides now, from up and down, but still somehow, it is cloud illusion we recall; we really didn't find a theory at all. (1628)
Ouch. If you have access to Lexis or Westlaw, check them out. Or read the SSRN versions linked to above.

Related Posts (on one page):

  1. Tip to Students (and other readers):
  2. Simply Devastating:
Left2Right on Hayek: I just ran across two interesting old posts on Left2Right using Hayek to make leftist points (I use "leftist" advisedly as the posts are on "Left2Right.") One is How Not to Complain About Taxes (III): "I deserve my pretax income" by Elizabeth Anderson (there are a LOT of links to this one). The other is by Don Herzog on Market Fundamentalism and begins with a quiz.
Obsequious Former Supreme Court Clerks:

This story, on David Garrow's criticism of Justice Blackmun for relying too heavily on his clerks, is quite typical in quoting adoring former clerks who strongly defend Blackmun. Have you ever seen a story about a Justice where the clerks are portrayed as anything but adoring? Have all the Justices for the last fifty years really been so adorable? Just once, I'd like to see a former clerk quoted along the lines of, "yes, my Justice was slipping a lot there toward the end, and let us clerks do too much of the work. He could sometimes be an obnoxious jerk, often went into partisan tirades against the president, and was occasionally known for drinking too much and embarassing himself in front of young female clerks. But he tried his best, and he's only human, you know."

Related Posts (on one page):

  1. Loyal Former Supreme Court Clerks:
  2. Obsequious Former Supreme Court Clerks:

Monday, April 18, 2005

Stellar Resumes, Congressional Delay: The Christian Science Monitor has an interesting article about Jon Lott's study of credentials and judicial confirmation rates. To make a long story short, the study suggests that more credentialed nominees to federal courts of appeal take longer to confirm.
  "It is pretty much the dumber you are, the easier it is to get on the court," [Lott] says.
  A presidential nominee to an appeals-court post who attended one of the nation's top 10 law schools, served on that school's law review, and clerked for a US Supreme Court justice takes twice as long to win Senate confirmation than an appeals-court nominee with none of those qualifications, Lott says.
  The question is, why?

  I think the answer lies in the recognizable correlation, at least in the last 20 or 30 years, between the credentials of lower court judicial nominees and their eventual influence as judges. An unusual number of the most influential judges had extremely impressive credentials as judicial nominees, including Judges Posner, Easterbrook, Kozinski, Luttig, and W. Fletcher, just to name a few. These judges tend to have unusual influence on their colleagues, on academics, and on their clerks, a number of whom go on to clerk at the Supreme Court. They are also more likely to be in the running themselves for future openings on the Supreme Court.

  Given this, it's understandable that there would tend to be more Senate opposition to more highly credentialed nominees. On average, the stakes are higher.

  Thanks to Michael Cernovich for the link.

  UPDATE: Lawprof Avery Katz writes in with an alternative explanation that strikes me as quite possible. Avery suggests that selection effects might explain the difference:
Judges with weaker academic credentials are likelier to have been chosen for their political connections, often including connections with Senators. Judges with stronger academic credentials are likelier to have been chosen by young hotshots at the Office of Legal Counsel.
Over at Left2Right, Don Herzog has a rather witty post defending liberalism. (Another approach would have been just to reprint the Koons post with "conservatives" replacing "liberals" -- isn't that how ideologues on each side see the other?)
Dark Horse Supreme Court Nominees:

By now, liberal interest groups no doubt have extensive dossiers on the non-squishy frontrunners for the next open Supreme Court seat, and will be ready with attacks immediately if one of these individuals is nominated. In turn, it would make sense for the Republicans to outmaneuver these groups by nominating a "dark horse" who hasn't received extensive attention. My personal dark horse favorite is my colleague Ron Rotunda, one of the nation's leading scholars on both legal ethics and constitutional law. I'm sure Ron and I would have many disagreements on various things, but he'd be a superb Justice. I'm sure folks have other ideas for dark horse nominees, so I'm opening comments.

Rosen Channeling Schwartz:

Back in March 1987, Prof. Herman Schwartz wrote an article for The Nation that bears striking resemblance to Rosen's N.Y. Times piece (to be clear, I'm not accusing Rosen of plagiarism, or even of ever having read Schwartz's article; it's just that 1987 seems like a time of similar hysteria over perceived libertarian influence on conservative judicial thought prompted, as in 1987, by a forthcoming vacancy on the Court, and by the nomination of a libertarian (Bernard Siegan instead of Janice Brown) to a Court of Appeals seat. Of course, Siegan got voted down, and the next USSC nominee was the very unlibertarian Robert Bork):

A new breed of theorists is calling for vigorous judicial activism in defense of--what else?--property rights. Concurrently, the pre-New Deal Supreme Court, which struck down federal and state laws against union busting, child labor and other abusive business practices, is back in favor. . . . This neo neoconservatism has been most thoroughly developed by University of Chicago Law professor Richard Epstein, one of the administration's most influential legal advisers. . . Epstein argues that those clauses of the Constitution that forbid the government to take over private property except for public use and wit fair compensation, and that bar the states from excessive interference with contracts, where intended to ensure that private property remained virtually sacrosanct. He then reads those clauses as rendering unconstitutional most welfare, environmental, is stating gift tax, renewal, zoning and then control laws, along with almost every other piece of social legislation of the past two centuries. Unlike most constitutional lawyers, he thinks the Court decided correctly in Lochner v. New York, when, in the name of property and contract rights, it struck down an attempt to limit working hours for bakers. . . . Such judicial activism is usually condemned in the administration circles. . . . Nevertheless, this new faith in an activist judiciary is gaining ground among some on the right who are normally its harshest critics.

Schwartz's concerns about a libertarian takeover of the federal judiciary were, alas, seriously premature, as are, undoubtedly, Rosen's. In fact, though libertarians are a growing (though still miniscule) presence in legal academia, their political influence has probably decreased where it counts. Republican honchos are more concerned than ever about their religious conservative base, and the relevant folks in the Justice Department--who in the Reagan years were a highly intellectual group that took ideas, including libertarian ideas very seriously--are undoubtedly very bright, committed conservative lawyers, but show, as far as I can tell, few signs of similar intellectual ferment (in practicalterms, e.g., other than McConnell, where are the Borks, Winters, Easterbrooks, Ginsburgs, Williamses, and Posners on the judicial nomination radar screen?)

Living in Harmony With Nature:

Don Boudreaux (Cafe Hayek) has a post on this (thanks to Gil Milbauer (A Reasonable Man) for the pointer). Here's an excerpt (paragraph breaks added) that I especially liked:

Pre-Columbian peoples lived simply, to be sure, but let’s stop mistaking ignorance and poverty with harmony. It’s an utter myth –- we might say an urban myth -– that primitive peoples lived with nature harmoniously.

Nature devastated them. Nature battered them into early graves. Their ignorance of nature prevented them from achieving much material wealth. To dance to imaginary rain gods or to chant and pray for a child dying of bacterial infection is not to live harmoniously with nature; it is to live most inharmoniously. Nature is doing its thing -– failing to water the crops, growing bacteria within a child’s lungs -– while human beings who are as ignorant of nature as nature is of human beings, moan, chant, pray, dance, build totems, burn leaves and twigs, all in fruitless, inharmonious efforts to solve the problems. . . .

Belva Lockwood: Prologue has an interesting essay up about Belva Lockwood, the first woman to argue a case before the U.S. Supreme Court. The essay is available here (part 1) and here (part 2). (Hat tip: Howard)
Accurate But Fake: Over the past few weeks, I have had two interesting experiences with the fact checking process of the MSM: the New Yorker and the New York Times to be precise. The New Yorker was the first to contact me to fact check Margaret Talbot's story on Justice Scalia. In order to show that the Justice was exaggerating the history of originalism, the original story contained some questionable claims. I found it interesting, and reassuring, that the fact checkers sought out a professor like me who subscribes to originalism to double check these claims. All the errors I noted were corrected in the final story, though of course this did not unduly affect its overall negative slant. A week later, I was having dinner in Princeton with a group of professors and graduate students after my talk there. When I asked if anyone had seen the article, Keith Whittington (author of
Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review) piped up that he had been contacted to fact check it. So not one but TWO originalist scholars had been contacted. Very impressive indeed.

Last week, I was contacted by the NYT to fact check what was going to be said about me in Jeff Rosen's Sunday Magazine story on the so-called "Constitution in Exile" movement. Like others, I had never heard this phrase until long after it was being used by "moderates" like Cass Sunstein. As the blogosphere is already effectively dismembering the substance of Rosen's in-depth report on the VLC (Vast Libertarian Conspiracy), I thought I would confine myself to my experience with the Times fact checking process.

Almost all the claims the fact checker wanted to confirm had some sort of minor defect, most of which had nothing to do with the obviously negative slant of the piece. For example, it described Angel Raich as formerly paralyzed; it had the wrong number of states adopting medical cannabis statutes.

One erroneous claim, however, was definitely part of the story's slant that I was a part of an organized "Constitution In Exile" movement: that the Cato Institute had either paid for or published my book, Restoring the Lost Constitution. This claim was removed from the finished article after I explained that the book had been published by Princeton in its normal acquisition process, but that Cato had assisted me during my university sabbatical year when I wrote the first draft of the manuscript (as I acknowledge in the book). Score one for the fact checking process.

The only accurate but misleading claim that remained was that my "book identifies a series of regulations that he says the courts should consider constitutionally suspect, from environmental laws to laws forbidding the mere possession of ordinary firearms, therapeutic drugs or pornography."

I knew about the environmental law issue, of course, as I mentioned it to Jeff and offered it in the book as an example of an "unhappy ending" that I think represents an oversight in the original Constitution. Jeff had tried very hard to get me to say what laws would be unconstitutional under my approach. As my approach is presumptive, however, this is hard to answer in the abstract, as the success of any challenge to a particular law will depend a lot on specifics. An analysis of the constitutionality of any particular law would require a lengthy analysis.

So I pointed to the section of my book where I discuss what I think is the unfortunate consequence that some environmental activities would be within the jurisdiction of state not federal regulation. In the book, I offer this as one of the very rare instances in which the Founders did not anticipate a genuine cross-border national problem properly handled at the national level. He ended up using this in his story, of course, as I knew he would—albeit without my disclaimer that I offered this as an example of a bad consequence I would like to see corrected by constitutional amendment (that would pass in a week if the Court ever held Congress to its Commerce Clause power on this issue).

I had to ask the fact checker for the pages where I discuss "firearms, therapeutic drugs, and pornography" as I did not recall having done so. Sure enough all three examples are in one single sentence as illustrations of the sort of pure "possessory" laws that would be suspect under the conception of the state police power that I defend in the book. When I read the fact checker the entire paragraph (he did not have the whole sentence or a copy of the book), I stressed that it applied only to pure "possessory" crimes. I told him that, contrary to what the use of these examples implied, I never claimed that the manufacture or sale of these items could not, constitutionally, be regulated. He said that he would consult with the editors and get back to me. Over dinner, it occurred to me that if they added "mere" possession, this would ameliorate (though not entirely eliminate) the implication that my approach ruled out all regulation. After dinner, the phone rang and the fact checker informed me that the editors had decided to insert the word "mere" in front of possession (without my even suggesting they do so).

What is interesting about having experienced this fact checking process first hand is that, in both cases, there was a sincere effort by the fact checkers to verify suspect claims--claims that really were inaccurate. In each case, where I explained my objections, these claims were then corrected. Yet the overall misleading slant of the NYT story was preserved. None of this is the fact checker's fault, or even the fault of the fact checking process, which I found to be admirable. With both the New Yorker and NYT, the fact checkers were sincere in their desire to get the facts correct. Both were very impressive and the resulting articles were more accurate as a result.

But an important lesson here is that accurate facts can still be used to compile a highly distorted story like the one by Jeff Rosen, a person I have known and respected for many years—dating back to his very useful student article on the founders' conception of unenumerated rights. It was out of this respect for Jeff that I gave him a long and candid phone interview last February, but I could tell from the questions what the slant would ultimately be.

Despite the MSM's claim to greater accuracy than blogs, fact checkers cannot alter the spin an author can put on what the National Lampoon used to call "true facts"—especially when this is the very spin the editors had in mind when they solicited the article. Apart from the inaccurate constitutional history noted by David, I cannot quarrel with any of the facts reported in Jeff's piece. They are true, even if the impression given by the story to credulous readers of the New York Times is false. Fittingly, the "accurate but fake" nature of the "Constitution in Exile" story is best illustrated—literally—by the unrecognizable morgue photos of Richard Epstein and Michael Greve—both would be completely unrecognizable to me had I not read who they were supposed to be—and the "Snidely Whiplash" picture of Chip Mellor.

Yes this Really is Richard EpsteinMichael GreveIJ's Chip Mellor AKA

While all were certainly actual photos taken of these three men by the Times photographer, at the same time they all were fake. How fitting.
Should We Repeal the 17th Amendment?

I will be speaking this afternoon (Monday April 18) at Marquette Law School on the question, "Should We Repeal the 17th Amendment?" The talk is at 3:30 and will be sponsored by the Marquette Student Chapter of the Federalist Society.

I wrote a couple of law review articles on this a few years back; unfortunately, neither is generally available on line. Accessible summaries of my arguments can be found in this column by Bruce Bartlett and this one by John Dean.

Hope to see you there.

DOJ Report on the Patriot Act: The Justice Department has released a 70-page defense of the Patriot Act, available in .pdf form here.
Stuart Taylor on the Patriot Act: Stuart Taylor has a very good essay on the debate over the Patriot Act. A taste:
  [T]he Bush administration has engaged in grave abuses, both at home and abroad, beginning with its unduly prolonged post-9/11 detention and (in many cases) abuse of hundreds of visitors from the Muslim world. Most alarming have been the administration's claims of near-dictatorial wartime powers to seize and interrogate — even to the point of torture — anyone in the world whom the president labels an "enemy combatant."
  But contrary to many a newspaper account, these abuses and overreaching claims of power had nothing to with the PATRIOT Act, about which so many people have cried wolf that the real wolves have received less attention than they deserve.
  . . .
  . . . [T]he big news is that for all the Sturm und Drang, we may be seeing the emergence of a remarkable expert consensus: For the most part, the USA PATRIOT Act is a good law.
Stuart also provides a link to the now-complete essays over at
The NY Times and the Hunt For the "Constitution in Exile": Given that the Constitution in Exile movement doesn't seem to exist, some may be wondering why the editors at the New York Times commissioned Jeff Rosen to write a long and detailed cover story about it for the Sunday Times magazine. I've been mulling it over, and have come up with four possible explanations for their interest:
1) Any old newspaper can report on a real trend, but it takes the paper of record to invent one. Feeling emboldened by their successful invention of "man dates" last week, the editors wanted a greater challenge.

2) The Times editors have been reading lots of Hayek recently and have become fascinated with libertarian thought. Their library stopped subscribing to Regulation back in 1996, however, so they didn't know about more recent developments.

3) Any story that features a hot picture of Richard Epstein is going to sell a lot of newspapers. 'Nuff said.

4) Tainting future Bush judicial picks with some kind of shadowy extremism might just influence a future Senate vote. All the better if the shadowy movement doesn't actually exist: the harder it is to find the movement, the harder it is to prove that Bush's pick has no connection to it.
  I'm sure other possibilities exist, but these four seem the most plausible to me.

Sunday, April 17, 2005

Reconsidering Rendition:

Georgetown University's Daniel Byman suggests that rendition is poorly understood, particualrly by its most strident critics.

There is no question that renditions are a flawed instrument, especially when used recklessly and without exploring other options first. But it is a mistake to focus on the tool without understanding the problem it is used to solve: What does the U.S. government do when it has the opportunity to detain, question and gain information from a suspected terrorist who isn't an American citizen, but does not have enough evidence to bring charges against the suspect in a U.S. court?

Rendition can be justified, Byman suggests, even if it presents the risk of torture or other abuses.

Because renditions lie in that gray area between the rule of law and the nation's security, a more honest debate about the practice would serve the country well. Liberal voices must answer the painful question of whether suspected terrorists who are not U.S. citizens should be allowed to escape without hindrance when we have some evidence of threat or wrongdoing, but not enough to try them in U.S. courts. Conservatives, in turn, must confront the moral problem of torture and the political consequences of angering our allies. Only then can the worst abuses common to the program be curbed without jettisoning an important counterterrorism instrument.

The whole piece is worth a read.

Related Posts (on one page):

  1. Reconsidering Rendition:
  2. "Rendition" Realities:
Amber Taylor on the "Fictitious" Constitution-in-Exile Movement: Over at Class Maledictorian, Harvard law student Amber Taylor comments on claims that there is a libertarian Constitution-in-Exile movement:
As someone who pretty much agrees with Richard Epstein on everything, I would be a card-carrying member of this movement if it existed. But it doesn't.
In light of Amber's post, it seems safe to predict that future New York Times coverage will claim the movement is thriving at Harvard.
The Constitution-in-Exile Myth Returns: I just finished reading the New York Times piece by my friend and colleague Jeffrey Rosen on the alleged "Constitution in Exile" movement. Having written on this topic a few months ago, see here and here, and also having discussed it a bit with Rosen during his research into the piece, I wanted to add a couple of thoughts.

  In my view, the problem with Rosen's essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential "movement." I don't think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn't.

  Rosen downplays this problem, but I think a close look at the evidence reveals that Rosen is stretching. For example, here is what Rosen says about the influence of the alleged C-I-E movement in the current administration:
  The influence of the Constitution in Exile movement . . is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.'' According to the former official, during Bush's first term, David S. Addington, the vice president's counsel, would often press the Justice Department to object that proposed laws and regulations exceeded the limits of Congress's power. ''People like Addington hate the federal government, hate Congress,'' the former official said. ''They're in a deregulatory mood,'' he added, and they believe that ''the second term is the time to really do this stuff.''
  So the best we can do is get the view of one anonymous person that other mostly unnamed people believe in a set of principles that the anonymous person says match the views of this alleged movement? Surely the last four years of Bush 43 would have provided more concrete evidence than that. As for Addington, note what Rosen does not: that while Addington in the Vice President's office urged DOJ to take a position that may or may not have reflected the influence of the alleged movement, DOJ apparently refused all of these urgings. So much for influence.

  Rosen also overplays his hand in describing the development of the alleged movement. Consider his description of Douglas Ginsburg's 1995 essay that apparently contains the only known use of the phrase "Constitution In Exile" by a conservative or libertarian. Rosen portrays the essay as a manifesto urging an eager audience to take action:
  By 1995, the Constitution in Exile movement had reached what appeared to be a turning point. The Republicans had recently taken over both houses of Congress after pledging, in their Contract With America, to rein in the federal government. And the Supreme Court, by rediscovering limits on Congress's power in Lopez, seemed to be answering the call. For conservative advocacy groups and public-interest law firms, the possibilities for litigation looked encouraging.
  In a reflection of the new mood, Douglas Ginsburg wrote an article in Regulation, a libertarian magazine published by the Cato Institute, calling for the resurrection of ''the Constitution in Exile.'' He noted that for 60 years, proper constitutional limits on government power had been abandoned. ''The memory of these ancient exiles, banished for standing in opposition to unlimited government,'' he wrote with a hint of wistful grandiosity, ''is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty — even if perhaps not in their own lifetimes.''
  If you go back and read the actual article, though, a different picture emerges. Ginsburg's alleged manifesto was a review of a book by David Schoenbrod arguing for the return of a strong nondelegation doctrine in constitutional law. The bit about the Constitutution in Exile is a two-sentence paragraph at the end of Ginsburg's introduction, before he turns to Schoenbrod. Ginsburg doesn't applaud Schoenbrod's Constitution-in-Exile-ish proposal, however; he is quite critical of it. Ginsburg's review argues that the answer to the policy concerns raised by excessive delegation is not constitutional law, but statutory law: he embraces an idea introduced by Justice Stephen Breyer in a 1984 article in the Georgetown Law Journal that expensive regulations should require affirmative Congressional approval. While Rosen says Ginsburg called for a resurrection of the Constitution in Exile, Ginsburg actually recommended Congressional adoption of a proposal made by that right-wing radical Stephen Breyer.

  I have enabled comments. As always, civil and on-point comments only.