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Saturday, January 31, 2009
Jackie Robinson's Achievement:
As co-blogger David Post points out, Jackie Robinson's 90th birthday is an appropriate time to pay tribute to his impressive achievements. Baseball would probably have desegregated even without Robinson. If the Brooklyn Dodgers had not acted brought in Robinson when they did, other teams would likely have signed black players in the late 1940s, most notably the Cleveland Indians (who signed Larry Doby, the first black player to play in the American League a few months after Robinson first played for the Dodgers). What Robinson accomplished was to ensure that the desegregation of baseball went smoothly, with as little violence and turmoil as possible. The incredible self-control he exercised in not responding to the many racist taunts he got in that first year is difficult to imagine. Through the force of his example, Robinson also played a key role in creating a positive public image for black athletes. At a time when African-American baseball players were perhaps the most publicly visible blacks in the country and racial prejudice was far more prevalent than today, that was a very important contribution to racial progress.
With all the understandable hoopla surrounding his status as a racial pioneer, many people forget how great a player Robinson actually was. His offensive numbers show that he was probably one of the five or six best offensive second basemen of all time. He had a career .311 batting average and 883 OPS (32% better than league average, while playing a position then usually occupied by light-hitting defensive specialists). Sabermetrics pioneer Bill James has shown that Robinson was probably one of the the top defensive second basemen of all time as well. These stats understate his true abilities, however. Thanks to the combination of racial segregation and World War II, Robinson didn't reach the major leagues until he was 28. Baseball players tend to peak between the ages of 24 and 28, so Robinson probably lost most of his best seasons to segregation and war. Had he been able to play those extra 4-5 years and avoided serious injury, Robinson might have become the greatest second baseman ever. As it was, he left an even more memorable historical legacy by breaking down racial barriers. Related Posts (on one page): - Jackie Robinson's Achievement:
- Happy Birthday, Jackie Robinson!
Happy Birthday, Jackie Robinson!
Jackie Robinson would have been 90 today, had he lived, and that's an event worth pausing for and celebrating. There have been people who changed the country more than Robinson did -- but not many of them. If symbols matter -- and boy, do they matter! -- the sight of Robinson going on those fields and playing ball -- and not just playing it, but playing it the way he played it, the way it should be played, ferociously and with passion -- was one of the most important we've ever had. And I cannot even imagine the guts and the courage it took to pull it off. I know it's an old story, but I'm a Brooklyn boy, and Robinson has always had a special place in my heart -- deep down, as absurd as it sounds, I'm secretly proud to have grown up in the place where Robinson lived and where he worked his magic -- so you can forgive me for bringing it up today. Happy Birthday! Related Posts (on one page): - Jackie Robinson's Achievement:
- Happy Birthday, Jackie Robinson!
Freeman to White House Climate Office:
Via the new UC Berkeley-UCLA "Environment & Law" blog comes news that Harvard Law Professor Jody Freeman will join the Obama Administration as counselor to energy empress Carol Browner in the White House Office of Energy and Climate Change. More here.
[UPDATE: My initial post simply described the "Environment & Law" blog as a "UCal" initiative, which may have given some readers the mistaken impression that this was a Berkeley initiative. In fact, it is a joint project of environmental law faculty at both UCLA and UC Berkeley.]
Still Standing in the Roberts Court:
In my own remarks at the Case Western Reserve Law Review symposium on "Access to the Courts in the Roberts Era," I argued that the net effect of the Roberts Court's decisions on standing has been to liberalize standing rules, thereby increasing access to federal courts. I, of course, noted the problem of reaching definitive conclusions after only three years (particularly with a potentially significant standing decision Summers v. Earth Island Institute still to come this term), and also noted that most of the recent standing decisions have been relatively insignificant. But those that have changed standing law, in particular Sprint v. APCC and Massachsuetts v. EPA, have expanded Article III standing. More from my remarks below the jump.
In some areas the Roberts Court appears to have reduced access to the courts. For instance, the Roberts Court appears to be quite sympathetic to business arguments for federal preemption of state tort claims, particularly when the Solicitor General's office is on side. As Gene Nichol noted in his remarks, this is a court that interprets statutory limits on litigation strictly and is reluctant to recognize new implied rights of action or adopt new, broadened interpretations of statutory bases for suits against private firms.
What is interesting is that in each of these areas, the Court is effectively deferring to the legislature. Decisions in the relevant cases all turn on statutory language and legislative intent, and all are readily overturned by legislative action. Indeed, just this week Congress passed and the President signed legislation to overturn the Court’s Ledbetter decision.
Article III standing is another matter. Here the limits on the ability of private parties to bring suit is a matter of constitutional law. While Congress undoubtedly retains some ability to alter the bounds of standing on the margin, the Article III standing requirement is, at its core, a Constitutional rule . Congress may tinker on the edges, but it cannot confer standing on parties that completely fail to meet the constitutional requirements.
Focusing on the Roberts’ Court approach to standing thus allows us to refine our assessment of the Roberts Court. It enables us to distinguish between generic claims about "access to justice" and a more nuanced understanding of how the Court approaches different types of access questions. In particular, recognizing that the Court has not restricted Article III standing suggests that the Court is less hostile to "access to the courts" than it is reluctant to define the contours of such access itself, leaving the job of defining and delimiting citizen rights to sue to Congress.
While the Court has adopted miserly interpretations of relevant statutes, the Roberts Court has yet to tighten the requirements Article III standing in any meaningful way. To the contrary, insofar as the Roberts Court has worked any change in standing law over the past three years, it has made it easier for states and citizen groups to sue in federal court seeking enforcement of regulatory laws. While the Court’s decisions denying standing have largely reaffirmed prior holdings, warts and all, Massachusetts v. EPA and, to a lesser extent, Sprint v. APCC, have made it easier for litigants to demonstrate that they fulfill Article III’s requirements, and have thus expanded litigant access to federal courts.
Nichol on "The Roberts Court and Access to Justice":
The Roberts Court’s record on access to justice is more mixed than some critics recognize, and a greater (if rarely discussed) problem is that the economically disadvantaged lack equal access to justice in the United States, argued UNC law professor Gene Nichol in his keynote address at the Case Western Reserve Law Review symposium on “Access to the Courts in the Roberts Era.” While the Roberts Court has shown greater sympathy for federal preemption, refused to find implied causes of action in federal statutes, shrunken the availability of habeas corpus, turned away from facial challenges to federal statutes, and strictly enforced statutory limitations on suits, Nichol noted that the Roberts Court has expanded access to justice in other areas. In the enemy combatant cases, particularly in Boumediene, the Court bravely rejected the political branches’ attempt to limit detainees’ habeas claims, and cleared the way for a wave of gun rights lawsuits with D.C. v. Heller.
Turning to standing, an area in which Nichol has written several important articles, he noted that the Roberts Court has done relatively little to curtail Article III standing. In Hein the Court refused to overrule Flast v. Cohen (even if it “treated it rudely”), and expanded the ability of states to sue in federal court in Massachusetts v. EPA. This Court’s failure to limit standing is perhaps notable because it appears to be an issue of great concern to the Chief Justice. In 1993, Roberts wrote an article defending the Lujan decision (and, interestingly enough) disagreeing with Nichol’s work in the area. Roberts had argued that the injury requirement was a politically neutral limitation on jurisdiction, limiting conservative and liberal interests alike.
Nichol takes a different view, arguing that the Court has failed to develop and impose an Article III standing requirement in a neutral fashion. Application of Article III’s requirements has become little more than an “opaque labeling exercise.” Instead, the Court repeatedly goes through a “Bush against Gore shuffle” in which the standing requirements are loosened or tightened depending on the justices’ sympathy for the parties and views of the merits. In Nichol’s view, environmental plaintiffs and those challenging race-conscious government decisions have a relatively easy time satisfying standing requirements, while other plaintiffs with similarly diffuse or generalized concerns do not. In short, Nichol argued, standing, in practice, is not a neutral or apolitical limit on federal court jurisdiction.
Nichol closed suggesting that most discussions of “access to justice” overlook some of the broader systemic problems faced by the economically disadvantaged. No matter what the Court may do on standing, the poor will continue to face greater obstacles in bringing their claims forward. Insofar as wealth can purchase greater legal talent – and that the ability to hire higher priced lawyers influences legal outcomes – Nichol suggests that lawyers and academics should have greater concern for the underlying inequities of the legal system. Expanding standing for elite environmental interests may be all well and good, but it does not address what Nichol believes is the greater “access to justice” issue.
Left/Right bloggers agree on recession, split on "stimulus":
In this week's National Journal poll of leading political bloggers, the Left and Right have similar views on how much longer the recession will continue. A plurality expect 13-23 months. Zero expect less than six months. About a quarter expect 7-12 months, and about a third expect 24 months or longer. I was in the latter group, and wrote, "Like FDR/Hoover, Obama is pursuing policies that may deepen and extend the economic problem in the long run."
Would it be good if Republicans supported the "stimulus"? Left bloggers were evenly split, whereas Right bloggers unanimously said "no." I voted No, "For the same reason it would be desirable not to have significant Democratic support: borrowing an extra trillion dollars a year and spending much of it on pork is a continuation of the reckless borrowing and irresponsible spending (at both the federal and the personal level) that got us into this mess in the first place."
Why the Size of Government Matters:
In his inaugural address, President Obama said that "The question we ask today is not whether our government is too big or too small, but whether it works." This is a commonly heard argument in response to concerns about the growth of government. Who could possibly be against government when it "works"? Why not instead consider each proposed expansion of the state on a case by case basis, supporting those that "work" and opposing any that don't?
Taken seriously, this argument leads to the rejection of any systematic constraints on government power. Why should we have a general presumption against government regulation of speech or religion? Why not instead support censorship when it "works" by improving the marketplace of ideas, and oppose it when it doesn't? Think of all the misleading speech and religious charlatans that government regulation could potentially save us from!
The answer, of course, is that government regulation of speech and religion has systematic dangers that are not unique to any one particular regulation. Given those systematic flaws, it makes sense to have a general presumption against it.
The same holds true for government intervention more generally, including in the economy. It too has systematic flaws that justify a presumption against it. Three of those flaws are particularly relevant to current policy debates.
First, government officials have poor incentives relative to the private sector. Because the resources they spend are not their own money, they are more likely to waste them or divert them to favored interest groups. These poor incentives are visible in almost every major government spending bill, where large amounts of money are spent on porkbarrel projects and the like. The current stimulus bill is no exception, with its handouts for a variety of interest groups.
Second, as I have often emphasized in my academic work and on this blog, the quality of government policy is severely compromised by widespread voter ignorance. The majority of voters know very little about public policy and make poor use of the information they do have. Voter ignorance and irrationality are perfectly rational, because the chance that any one voter's knowledge will make a difference is infinitesmally small. Still, they routinely result in voters supporting flawed policies and doing a poor job of evaluating the performance of elected officials. For example, they blame politicians for bad weather, and routinely support protectionism despite the overwhelming evidence against it. The dangers of voter ignorance are likely to increase as government grows. The bigger government gets, the more of it there is for voters to monitor, and the more difficult it will be for them to have even a superficial knowledge of all its functions.
Third, even relatively well-informed voters and well-intentioned government officials will often lack the information they need to allocate resources more effectively than the market would in their place. As F.A. Hayek argued in his classic essay, "The Use of Knowledge in Society," government planners lacks the kind of information that the price system routinely provides to market participants. Thus, they usually have no way of knowing whether the projects they want to spend tax money on will yield benefits that outweigh their costs.
These systematic shortcomings of government are particularly dangerous in times of crisis, like the present. Given widespread voter ignorance and their own perverse incentives, government officials often use crises to justify harmful expansions of government power by selling them as emergency measures - even if they have little or no real connection to the emergency in question. This is why White House Chief of Staff Rahm Emanuel says that "[y]ou never want a serious crisis to go to waste" because it is "an opportunity to do things you could not do before."
The current spending bill before Congress is no exception. It is being marketed as a "stimulus." Yet only 8% of the new spending will occur this year, and only 41% in the next two years - too late to provide stimulus while the recession is still ongoing. This suggests that most of the new spending isn't really about stimulus and has more to do with other policy priorities that are being misleadingly sold as emergency measures.
These points don't prove that all government interventions are undesirable. It is possible for them to be outweighed by other considerations in any given case. They do, however, show that there is reason for systematic concern about the size of government, and for a strong but not insuperable presumption against its expansion. In the same way, we have good reason for a presumption against government regulation of speech and religion, even though that presumption cannot be absolute. We can, for example, ban shouting "fire" in a crowded theater, yet still have a general rule against censorship.
To put it in Obama's terms, our society will "work" a lot better if we can prevent government from getting too big. And that requires paying a lot more attention to the state's rapidly expanding waistline than the president wants us to.
UPDATE: I should have noted that the 8% figure is for the percentage of spending in the current fiscal year (which ends September 30), rather than calendar year. I don't think this difference of three months is critical, but I do want to correct the error.
Friday, January 30, 2009
Arms Trade Treaty's Purpose: Block Arms Sales to Israel:
A recent statement by the International Action Network on Small Arms, the world's leading gun prohibition lobby, states that the Arms Trade Treaty, currently being drafted in the United Nations, would prohibit arms sales to Israel and to Hamas. Rebecca Peters, the head of IANSA, accuses both Hamas and Israel of violating international law, and explained that the ATT would outlaw weapons sales to both parties. According to the press release:
[Peters said:] "Yet some states continue to supply weapons to the protagonists. Some of these transfers are 'legal', meaning approved by the exporting and importing governments. The most obvious case here is the continuing US supply of arms to Israel."
Last week IANSA reported that the US tried to ship 989 containers of ammunition, explosives and other munitions to Israel, through European ports.
A strong and effective global Arms Trade Treaty would have prevented these transfers, and more importantly would have prevented transfers in the past few years, reducing the protagonists' capacity to wage their deadly war.
Under the rules of war, attacks should not be indiscriminate, and precautions must be taken to minimise civilian casualties. Around 1300 Palestinians were killed in the recent attacks by Israel on Gaza. Most of these victims were non-combatants, including nearly 500 children. Israel claimed these attacks were militarily necessary, because the military targets were located within civilian settlements. But the massive number of casualties resulted in part because Israel failed to give sufficient warning to civilians.
The sample, and more about mediator groups:
Several of you have asked me to say more about the method used to generate the sample of lawyers interviewed for my book, "Lawyers of the Right." Jack Heinz, Anthony Paik, and I relied primarily on the “issue-events” method to identify the organizations and lawyers for our study – that is, we selected seventeen legislative controversies involving issues that were important to different conservative constituencies in the late 1990s. The events included proposals regarding abortion, affirmative action, school prayer, tort reform, environmental policy, gay rights, civil rights, flag burning, funding for the National Endowment for the Arts, the minimum wage, compulsory union dues, property rights, gun control, criminal procedure, funding for the Legal Services Corporation, and cultural assimilation for immigrants. We then searched on-line archives for articles about these legislative controversies in eighteen newspapers and magazines, and we identified all non-governmental, nonprofit organizations that appeared in these articles on the “conservative” side of the issues. This method produced the names of 81 organizations. We searched a variety of sources — including organization websites, board lists, litigation records, and a database of legislative testimony — to identify lawyers who worked for these organizations as officers, litigators, board members, lobbyists, and senior scholars.
To compensate for the issue-events method's possible bias against litigation and research groups, we supplemented the list with five additional organizations that were particularly active in those policy arenas, using to two directories of conservative organizations: The Conservative Directory published by RightGuide.com, and the Heritage Foundation's list of “U.S. Policy Organizations” (Wagner et al. 2000: 681-789).
I requested interviews with 98 lawyers for the 86 organizations, and I interviewed 72 of them. (The 26 lawyers I attempted to contact but did not interview included seven who did not respond and three who had moved to other jobs. Scheduling problems (theirs and mine) prevented me from interviewing 16 lawyers who appeared willing to meet with me.)
In my last post, I noted that, in my set of interviewed lawyers, advocates for libertarian and mediator organizations were much more likely than social conservatives or business advocates to be active in the Federalist Society. My sample size is small, of course, but the trends were very strong: 82 percent of the libertarian and affirmative action opponents were active in the Federalist Society, and all of the lawyers for mediator groups said that they participated. In contrast, just over one quarter of the advocates for social conservative organizations and the same percentage of advocates for business groups were active in the Federalist Society. Perhaps these skewed results reflect the prominence of the interviewed lawyers; in the larger population of advocates for conservative and libertarian causes, the various constituencies might be more evenly represented. But maybe my numbers really do reflect broader trends in the Federalist Society’s reach and membership. As I noted previously, many prominent social conservative advocates do not work in major metropolitan areas, which would make it difficult for them to be active in Federalist Society events. It may also be that those lawyers see less value in the meetings and debates. In the book, I speculate about other possible explanations as well, but I really don’t know the answer.
I have one (surely naïve) parting question for readers. Why aren’t there more (any?) truly bipartisan mediator organizations? If the Heritage Foundation, Federalist Society, and other mediator groups that I’ve mentioned in previous posts use various strategies (including indirect ones) to build bridges within the conservative coalition and mobilize support behind the GOP, where are the organizations that might help promote consensus across political lines on the most important public policy challenges of our time?
Against Mandatory "Visits":
Legal academia has a somewhat strange institution known as the “look-see visit.” A professor is invited to a host school for a semester or two with the promise that if he sufficiently impresses the faculty, he will be offered a “lateral” position.
This institution of visits has its virtues: it not only allows the host school to “check out” the visitor, but allows the visitor the opportunity to discern whether he would likely be happier at the host school than at his current position.
For those reasons, visits can be a mutually beneficial endeavor. However, many law schools require that all lateral candidates "visit" before they can be considered for a lateral position, and this has significant downsides:
(1) In practice, it has a significant disparate and discriminatory impact on women. Some visitors spend three or four days a week at the host school, and then fly home for long weekends. Others pack up the family for the semester or the year. (And some just leave their family almost entirely for a semester or two.) Men are far more likely to be willing and able to do this than are women, because men (a) tend to be less intensively involved in child care, and (b) their spouses are more likely to be movable for the short-term. (Anecdotally, women professors are relatively more likely to be married to high-powered lawyers, doctors, or other professionals than are men professors.) I know of one women professor who received quite a few impressive visiting offers over the course of a few years--but she had several small children, and her husband was on the partnership track at a major law firm. Exactly how was she supposed to “visit”? Yet, none of these schools would consider her without a visit.
(2) The requirement of a visit reflects, more generally, a devaluation of family life. Even if a professor could leave his spouse and kids for three for four days a week, or the entire semester or year, or move them and disrupt their schooling and social ties for a semester or two, in favor of a career opportunity, should he be asked to?
These strong disadvantages could perhaps be justified if visits were truly invaluable to the host school in making employment decisions. But that is highly doubtful for several reasons:
(1) In other academic fields, faculties manage to make hiring decisions without requiring visits. Indeed, even within legal academia, many law schools make the bulk (or all) of their lateral hires without requiring, or even asking for, visits.
(2) In my anecdotal experience, many law schools that claim to require visits for lateral candidates only truly require visits for candidates who are coming from schools significantly lower down the food chain. If, however, top 20 school has a chance to land a scholar from top 10 school, or even from a similarly ranked school, a scholarly presentation and a day or two of interviews suffices in practice. This makes the mandatory visit seem less like an academic prerequisite for hiring laterals, and more like a hazing ritual imposed by the higher-ranking schools on their "lessers".
(3) Relatedly, judging from conversations with friends who have had look-see visits at a range of top 20 schools, the faculty of the host schools rarely make much of an effort to get to know the look-see visitor. For example, one friend tells me that only two professors actually spoke to her all semester during her visit. Another relates that he didn't know 3 of the 5 members of the appointments committee, and none of those three made any effort to get to know him during his two-semester visit. I've heard quite a few stories along these lines, but no stories that tend in the opposite direction. If the faculty, including the appointments committee, is going to judge a lateral candidate solely on the basis of his or her c.v. and a presentation anyway, as generally seems to be the case, why require the visit to begin with?
Finally, one anomaly of look-see visits is that they are usually arranged by year 1’s appointments committee, but the visitor doesn’t arrive until year 2, when the composition of the committee may have changed significantly, or even entirely. The committee, for example, may have gone from one committed to bringing in a critical race theorist to one devoted to hiring only law and economic ph.d.s. And thus the poor visitor, enticed by the previous year’s committee's blandishments, finds that the current committee just wishes he would go away. (Some law schools are trying to avoid this problem by having the entire faculty vote to invite a look-see visitor.) By contrast, if a lateral candidate is invited to do a presentation and one or two days of interviews, the same appointments committee that invited him will be deciding whether to forward his candidacy to the full faculty.
So, again, I have nothing against visits, look-see or otherwise, and I've enjoyed the three that I've done, and would do them again (but not now, when I have two small children). But I don't see any good reason why look-see visits should be mandatory for lateral candidates.
UPDATE: I forgot to mention that some law schools not only insist on look-see visits, but refuse to consider the candidate's candidacy until after he has gone back to his home institution. So, it's not uncommon for a school to ask a candidate to uproot his life to visit, reroot his life at his home institution, and only then learn whether he's going to be asked to uproot his life again to join the institution he visited.
Commentary on Obama White House Counsel's Staff:
A friend and former Bush Administration lawyer writes in with some interesting thoughts on the initial staffing of the Obama White House Counsel's Office:
The lawyers are all very accomplished, with pedigrees from elite universities and distinguished clerkships (Breyer and Stevens seem to be the biggest feeder judges). By my count, there are 4 Deputy White House Counsels, 1 Special Counsel, 14 Associate Counsels and 4 Deputy Associate counsels. The total numbers aren't particularly out of line with past offices except for the George W. Bush White House Counsel's Office at the start, which had a total of only ten lawyers - one counsel, one deputy and eight associates. Bush's Counsel's office was quite different, and much larger, at the end of his term, once investigations started.
Two things stand out about the new Counsel's Office staff. First, there are way more deputies than in the past, and the resumes of the deputies suggest that they will play a major role in policy development, possibly at the expense of the DOJ's OLC and other agencies. On the other hand, the Obama Administration has expanded the policy capacity of the White House staff in general (adding new policy czars in a number of areas), so perhaps the added number of legal deputies is simply necessary to address the internal White House needs of the new czars. Second and more puzzling, the new Counsel's Office will include a non-lawyer research director position -- staffed by a former campaign opposition research specialist. Hopefully journalists will press to find out why this position has been created. It could simply be a mechanism for rapid response on judicial nominations, but it could also signal a desire to run political opposition activity out of the legal shop, which would be very unfortunate.
En Banc Eighth Circuit Backs Off Holding Allowing Thermal Imaging Device With Reasonable Suspicion:
I had criticized the 8th Circuit's panel decision in United States v. Kattaria here, back in October 2007, and today the en banc court handed down a new decision that allows the evidence without reaching the issue of whether the police can get a "reasonable suspicion warrant" to use an imaging device (effectively removing the panel's holding from the books).
Chief Judge Loken, the author of the original panel decision, adds in a concurrence that partly sticks to his guns from the original panel holding but partly would amend it. Loken argues that the relevant Supreme Court precedents should be read relatively narrowly in a way that leaves open whether a lower standard than probable cause is allowed. He then writes: On further reflection, I have concluded that the panel was unwise to borrow the concept of "reasonable suspicion" to reflect the quantum of probable cause that should be required in this situation. Reasonable suspicion is not focused to the task at hand, and it has never been applied to the warrant-issuing process. Rather, the question for the issuing magistrate (and reviewing courts) when considering an application like Agent Perry’s initial warrant affidavit should be whether there is probable cause to believe that search of specific property -- the heat being emitted from a home -- in a specific manner -- by exterior thermal imaging -- for purely investigative purposes will uncover evidence of on-going criminal activity. Utility records showing abnormally high electric power usage are strong evidence supporting such an application but, without more, are unlikely to establish probable cause because of the many innocent uses of electricity. Cf. United States v. Olson, 21 F.3d 847, 850 (8th Cir.), cert. denied, 513 U.S. 888 (1994). But the “something more” should simply be enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search. I'm not sure I understand this. On one hand, the standard for probable cause is probable cause to believe that the actual search that will be conducted will uncover the evidence described in the warrant based on the actual place that will be searched. As a result, the normal probable cause standard to justify use of a thermal imaging device should be what Loken describes in the middle of the paragraph above: "probable cause to believe that search of specific property -- the heat being emitted from a home -- in a specific manner -- by exterior thermal imaging -- for purely investigative purposes will uncover evidence of on-going criminal activity."
But I'm not sure I follow the idea of permitting a warrant based on "enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search." Probable cause to issue a warrant to conduct a full physical search would mean probable cause to believe that a full physical search would provide the evidence described in the warrant. That won't necessarily be the same as PC to use the imaging device, of course. But it won't necessarily be a harder standard to meet, either: It depends on the investigation and what the police know, and it could be easier or hard to meet depending on the facts. To the extent Judge Loken would want courts to apply a lower standard of probable cause, one that factors in the minimial intrusion of imaging devices relative to full physical searches, I don't think the Fourth Amendment allows it.
Lawyer Networks:
Both the Federalist Society and the Heritage Foundation attempt to appeal to all strands of the conservative alliance and to unify and mobilize lawyers for conservative and libertarian causes. Heritage pushes lawyers (and other advocates) to find ways to contribute to the mutual success of the organizations they serve. The Federalist Society does not directly advocate cooperation on policy objectives, but it indirectly contributes toward that goal by engaging conservatives and libertarians in conversation and debate.
Do these organizations help to integrate the conservative coalition? If so, how effective are they?
The lawyers I interviewed for my book offered mixed assessments. They suggested that these organizations reach more deeply into some strands of the coalition than others. A religious conservative reported that Heritage meetings draw fewer social conservatives than libertarians. More than half of the interviewed lawyers said that they were active in the Federalist Society, but lawyers associated with libertarian and mediator organizations were much more likely than social conservatives or business advocates to participate.
On the other hand, an analysis of the communication network of the interviewed lawyers lends support to the idea that those organizations promote communication across constituencies. The network was divided by constituency, with lawyers in distinct parts of the network communicating very little with each other. In the core of the network, however, were seven lawyers who communicated with many other lawyers. Their central position in the network suggested they might help to link divided constituencies. All lawyers in the core were active participants in the Federalist Society. Although I did not have complete data about participation in Heritage Foundation meetings, four lawyers in the core indicated that they regularly participated in those meetings as well.
Is it true, as one lawyer told me, that the Heritage Foundation and the Federalist Society serve as the “crossroads of the conservative movement”? To what extent do they manage to promote understanding and cooperation within the coalition?
Board Games,Textualism, and the South Carolina Anti-Gambling Statute:
As both a Legislation professor and board game player, I am intrigued by the South Carolina anti-gambling statute discussed in Paul Cassell's recent post. The statute bans the playing of "any game with cards or dice" in a wide variety of locations, including "any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place."
A strict textualist reading of the statute suggests that South Carolinians are forbidden to play board games such as Monopoly and Risk in the listed locations. After all, these games have both cards and dice. Dungeons and Dragons is also apparently forbidden, since it has many different kinds of dice, ranging from 4-sided to 20-sided. No more playing Monopoly or D&D in your barn, stable, kitchen, or outhouse in South Carolina!
This textualist reading is reinforced by the statute's list of exceptions to the ban, which includes "the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game." Notice that Monopoly, Risk, Dungeons and Dragons, and so on, are not on the list of exceptions. That strongly suggests that they come within the terms of the general ban. Lawyers call this the rule of "expressio unius est exclusio alterius" (if something is not on a statutory list, that suggests it was deliberately excluded from it).
Of course, a purpose-based interpretation might suggest that the legislators simply didn't have these games in mind, and were instead focused on banning games that typically involve gambling. Not many people place bets on Monopoly and Risk. That possibility, however, is undermined by the fact that the banned games are forbidden even if no gambling is involved. The games on the list of exceptions are permitted so long as "there is no betting on any such game." The state legislature could have adopted the same relatively permissive rule for all board games - allowing people to play them so long as they don't do any betting. But South Carolina's legislative solons apparently rejected this approach.
The bottom line: This South Carolina statute is either an example of ridiculous puritanism run amok or an example of extremely poor drafting. It's also possible that there are some complex public choice machinations involved (e.g. - manufacturers of the exempt games lobbied for the statute so that South Carolinians would be incentivized to buy those games rather than those that are now banned).
UPDATE: This article suggests that the law in question dates back to 1802, a time when there were far fewer dice and card board games on the market than today. However, the state legislature has revised the law on various occasions since then, and hasn't changed the ridiculous wording. Indeed, the article indicates that the state legislature defeated an effort to liberalize the law just last year. Thus, it seems that today's South Carolina legislators (or at least a majority of them), not just the benighted ones of 1802, are satisfied with the statute's wording.
The article also notes that the state attorney general interprets the law as banning only games where "chance" plays a larger role than "skill." That isn't as comforting as you might think. It can easily be argued that chance matters more than skill in Monopoly, for example; the outcome of a game is often determined by which player managed to land on certain key properties first, which is in turn determined by dice rolls. Games of Risk between mediocre players are also often decided by chance dice rolls. The same can be said for many common dice-based boardgames where chance plays a large role (e.g. - Parcheesi, Life, etc.).
Is Texas Hold 'em a Illegal Game of Chance or Permissible Game of Skill?
According to this link, some college buddies nabbed in a poker bust are asking a South Carolina judge to decide whether Texas Hold 'em is an illegal game of chance or permissible game of skill. Here is the text of the South Carolina criminal statute that appears to be at issue:
If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.
Apparently poker players have recently had some luck arguing that poker is a game of skill rather than a game of chance. This recent press release from the Poker Players Alliance says that a Unviersity of Denver statistics professor testified that poker is a game of skill, leading to a Colorado jury acquitting the organizer of a poker league.
I think the South Carolina defendants will have a harder chance escaping, as the law quoted above bans "any game with cards." Hard to see a game of skill defense given the plain language of the statute.
Thursday, January 29, 2009
Chutzpah:
The traditional example of chutzpah is someone who murders his parents and then pleas for mercy because he is an orphan.
I can't top that one, but here's one that comes close: being Prime Minister of a country that has violently suppressed its Kurdish minority for decades, and, in an attempt to put down a violent rebellion by Kurdish "militants" in the 1990s, killed an estimated 20,000 people and displaced hundreds of thousands, and decrying Israel's military operations in Gaza as a "crime against humanity." (And it's not, as far as I can tell, as if the current prime minister of Turkey has expressed any regret for his country's recent actions, much less referred past military and civilian leaders for prosecution for "crimes against humanity"; heck, Turkey still hasn't exactly expressed remorse for--or even acknowledged--what it did to the Armenians during WWI.)
Obama Administration Attorneys Defend John Yoo:
The Politico reports that Justice Department attorneys are defending John Yoo and other former Bush Administration officials in civil suits filed by Jose Padilla and other former detainees.
Next week, Justice Department lawyers are set to ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a “dirty bomb.”
The suit contends that Yoo’s legal opinions authorized Bush to order Padilla’s detention in a Navy brig in South Carolina and encouraged military officials to subject Padilla to aggressive interrogation techniques, including death threats and long-term sensory deprivation.
That’s not all. On Thursday, Justice Department lawyers are slated to be in Charleston, S.C., to ask a federal magistrate there to dismiss another lawsuit charging about a dozen current and former government officials with violating Padilla’s rights in connection with his unusual detention on U.S. soil, without charges or a trial.
The defendants in that case are like a who’s who of Bush administration boogeymen to Obama’s liberal followers — former Defense Secretary Donald Rumsfeld, his deputy Paul Wolfowitz and former Attorney General John Ashcroft.
The story notes the irony that Obama Administration appointees, potentially including some who have been quite critical of Yoo and other architects of the Bush Administration's counter-terror policies, could have to help defend the former Bushies in federal court. Yet, as the story notes, this situation could also raise a potential conflict of interest.
A leading authority on legal ethics, Stephen Gillers, said the incoming officials’ criticism of the former Bush officials has been so withering that they should press to be defended by their own lawyers — at government expense.
“If I were counseling Yoo or Rumsfeld, I would certainly advise them to have private counsel or shadow counsel,” Gillers said. “The defense has to be put in the hands of people who have not been vocal in condemning Rumsfeld and Yoo and who have not taken a public position on the legality of their conduct.”
Blago Is Out:
By a vote of 59-0.
Rush and the Republicans:
Over at Obsidian Wings, Eric Martin offers an interesting post on Republican politicians falling in line behind Rush Limbaugh. I suspect the problem is that those who care most tend to love Limbaugh, and those who don't love Rush tend not to care. Given that, it takes a conservative who stands on principle and won't be bullied to take a strong public against something Rush says. And sadly, the GOP is in short supply of those these days.
UPDATE: This post seems to have confused some readers, who are apparently reading it as a post on what it means to be a conservative, who is a "real" conservatve, and what is the proper conservative view on the stimulus bill. I didn't intend the post to be on any of those topics, however: My interest is in the general unwillingness of Republican politicians to publicly disagree with Limbaugh over the years, quite apart from the specific issue that happens to be in the news today. (Indeed, I agree with Limbaugh on the stimulus bill, so it would be weird if I were criticizing folks for taking a position I myself have.) In light of the confusion, I'll close up the comment thread.
Law Student Blogs:
Back in the early days of law blogs, around 2002-04, law student blogs were a really important part of the blawgosphere. Law prof blogs regularly linked to law student blogs, and for the most part there wasn't a sharp line between them in terms of readership.
Am I right that law student blogs play a less important role today? Perhaps the best is Nuts & Boalts, which has been around for years and is still going strong. But by and large the law student blogs seem to have dwindled in number and importance: Fewer law students write for general interest law blogs, and fewer general interest law blog readers regularly visit student law blogs. That's my impression, at least.
I'm not exactly sure what changed. Perhaps the blawgosphere has matured? Perhaps the student bloggers of the old days were unusually good, and when they graduated no one replaced them? I don't know. Either way, it seemed like a shift worth noting.
More on Section 7 of the Torture Convention.
Mark Kleiman rebuts an argument of mine:
Eric Posner says that since the other parties to the Convention Against Torture are unlikely to do anything to enforce its provisions, Holder has full discretion to decline prosecution on political or policy grounds. But a duly ratified treaty is the law of the land, and Holder is sworn to uphold the law. Could he get away with not prosecuting, in the face of enough evidence to convict? Sure. But he'd be violating his oath of office.
Andrew Sullivan chimes in: “And unlike under the Bush administration, that is no longer actively encouraged.”
There are two problems with this argument. First, if my premise is accepted, that a treaty obligation ceases to have binding force when other states fail to comply with it, then neither the attorney general nor the president would violate his oath of office to uphold the law by failing to respect that treaty obligation. One might contest my premise, of course; but Kleiman does not.
Second (and more interesting), Kleiman’s argument rests on doubtful premises about American law. “Oath of office” arguments are derivative: they implicitly make claims about what the Constitution means. Here, Kleiman advances a syllogism, which I would reinterpret as follows: treaties are “the law of the land,” the president has the duty to “take care” that the law be executed, therefore, the president has a duty to take care that treaties be enforced. This is, at best, a controversial interpretation of the law.
For 200 years, the supreme court has recognized a distinction between “self-executing” treaties and “non-self-executing” treaties. Self-executing treaties have the force of domestic law; non-self-executing treaties do not. The Convention Against Torture is a non-self-executing treaty, according to a Senate reservation. The president and the Senate chose to incorporate the treaty through domestic law, and Congress duly enacted the anti-torture statute. That statute incorporates, in modified form, the CAT’s ban on torture but does not incorporate section 7, and thus does not try to constrain prosecutorial discretion (and it is not clear that it could).
Section 7 of the Convention Against Torture thus is not judicially enforceable. Could it not still be a “law” that binds the president? It could be; no court has resolved this question, no doubt because the question could never appear before a court in the first place. However, there are strong reasons for doubting that the president, and hence, the attorney general, have any constitutional obligation to “take care” that a non-self-executing treaty be enforced. It is a generally accepted proposition in foreign relations law that the president has the authority to terminate international treaties. President Carter did just that when he terminated a treaty with Taiwan, an act that led to a famous Supreme Court non-decision in 1979 that left his act undisturbed. Such a power cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Presidents also violate treaties. Consider President Clinton’s military intervention in Serbia in 1999, in violation of the UN Charter. Treaty violations at the orders of the president—and the U.S. has a long history of them—also cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Perhaps one might argue that President Carter and President Clinton violated their constitutional duties and hence their oaths as well, as did many of their predecessors and successors. But given the long history of presidential discretion in this area, it is a bit late to make this argument.
Developing a Comment Culture:
In the last few days, Balkinization and Above the Law have introduced new comment policies. Balkinization is mostly turning comments off, in light of the fact that its comment threads were pretty much unreadable: Above the Law is hiding them a bit and taking a somewhat more aggressive approach to moderation. Over at CoOp, Dan Solove comments: It seems to me that different blog commenting cultures arise on different blogs. I bet that the readership for Balkinization and Concurring Opinions overlaps quite a bit, yet I have noticed that the comments at Balkinization are much as Jack describes them [that is, nasty and nonsubstantive]. Why have commenting cultures developed so differently at different blogs? I don't really know the answer, and it would be interesting to figure out why commenting cultures develop in the ways that they do. I suspect the explanation rests largely on the different moderation practices at different blogs. If a blogger doesn't moderate comment threads at all on a widely read blog, people who want to be shocking, mean, or just irrelevant realize they can do their thing and reach a decent-sized audience. They eventually push out the more thoughtful people: You end up with a mess, or, as Brian Leiter would put it, a "cess pool." In contrast, if bloggers moderate their threads reasonably well, deleting irrelevant or abusive comments — and in some cases, participating in the comment threads themselves to carry on the debate — then you end up with a shift in culture over time. Readers begin to expect that the comment threads will be reasonably good, or at least entertaining, and more thoughtful people consider commenting themselves.
Over time, comment moderation practices end up having a profound impact on who comments, and different approaches either attract thoughtful commenters or keep them away. I think this explains the largely unreadable comment threads at Balkinization, for example; My sense is that Balkinization threads were lightly edited if not unedited altogether, with the bloggers themselves generally not participating in comment threads.
Discretionary Licensing Requirement for Speech on a University Campus Is Unconstitutional:
Jews for Jesus, Inc. v. City College of San Francisco, 2009 WL 86703 (N.D. Cal. Jan. 12), so holds, concluding -- as was not disputed in the case -- that "sidewalks and plazas on a publicly-supported college campus constitute a [traditional] public forum." Therefore, the court rightly reasons, it's unconstitutional for the college to require a licensing scheme under which "college officials ... review literature before it is distributed and [may] deny permission to distribute it at their unfettered discretion." (Of course, many content-neutral restrictions that do not involve discretionary licensing schemes may well be permissible on university sidewalks, just as they are on public sidewalks.)
Sounds generally quite right, given current First Amendment precedents, though note that "publicly-supported" should probably have been "publicly-run." The Supreme Court has made clear (see, e.g., Rendell-Baker v. Kohn (1982)), that government funding of an institution doesn't subject the institution's decisions to First Amendment scrutiny -- only actual government control does (for instance, when the institution is run by a government body, or when a government body pressures a private institution to impose certain speech restrictions).
Fake Photographs of Plaintiff "Posing in a Friendly Manner with Kim Jong-Il, a Dictator of an Enemy Country"
"clearly represent imaginative expression, rather than assertions of objective fact" -- in the circumstances of the case -- and are thus not libelous. Duran v. Andrew, 2009 WL 113382 (E.D. Mo. Jan. 15).
Sounds right to me, other than in unusual circumstances not present in this situation.
Wednesday, January 28, 2009
That Paper Criticizing Sunstein:
Via Prawfsblawgs, I discover that the paper authored by several "progressive" law professors criticizing Cass Sunstein contains the following extraordinary statement, defending the precautionary principle: "It is difficult to think of a single public health or environmental threat that with the benefit of additional research has not proven even more dangerous over time."
Now that's a fun game! Let's see, off the top of my head, here are some things that turned out to be a lot less threatening than many, including at least some "experts," thought:
Mercury in vaccines;
Bendectin;
Silicone breast implants (and medical grade silicone in general);
PCBs;
Asbestos in buildings;
Flouride in water;
Birth control pills;
Occasional marijuana use;
High fat diets;
Exposure to low level nuclear radiation;
New carpet fumes;
"Toxic waste dumps"/Superfund sites;
Moderate overweightedness;
Moderate alcohol consumption;
Spermicides;
Metal fillings (for teeth);
Cancer from physical trauma;
Masturbation;
Predictions in the 1970s of worldwide food shortages;
"Overpopulation";
Global Warming (the predictions of the level of man-made warming have decreased dramatically, even among strong advocates of the theory);
Miscarriage from video display monitors;
Cancer from electromagnetic field radiation;
Radon;
Dioxin;
Pesticides commonly used on fruits and vegetables causing cancer to "eaters";
Feel free to add more, below.
The Problem With Purpose in Statutory Interpretation:
In the comment thread on yesterday's thread on Ledbetter v. Goodyear Tire & Rubber, commenter Dilan Esper explains why he thinks the Ledbetter case is very easy despite the text of the statute: Fundamentally, I don't think Lebetter is a hard case at all, and that's why I think the Roberts Court defenders are full of it.
The Civil Rights Act is a remedial statute with a remedial purpose. Obviously, the purpose of any limitations period in it cannot be to ensure that an employer who intentionally covers up wage discrimination will be able to get away with it.
Anyone who reads the statute differently is OBVIOUSLY motivated by a hatred for employment discrimination laws, either because they don't believe in civil rights or because they simply don't like government imposing this sort of regulation of business. You don't read statutory language so contrary to its purposes otherwise. Dilan Esper's comment nicely illustrates why it doesn't work to take such an abstract view of a statute's "purpose" as a guide to interpret statutes. The problem, it seems to me, is that every statute has multiple purposes: Different parts of different statutes are products of different influences, and they all get pressed through the legislative process as products of compromise.
For example, the part of the statute at issue in Ledbetter was the part of the statute designed to stop people from bringing claims from long ago. The very purpose of that section was to cut off valid claims after 180 days had passed. So if you're going to play the "purpose" game, you get to chose your purpose: Either you can say the purpose of the statute as a whole was remedial, and anyone who reads it contrary to its purpose is "OBVIOUSLY motivated by a hatred for employment discrimination laws," or else you can say that the purpose of the section cutting off claims was to cut of claims after 180 days, and any one who reads to let claims survive for years and even decades is "OBVIOUSLY motivated by a hatred" of limits on employment discrimination law. That doesn't seem like a very principled approach to statutory interpretation.
CWRU Symposium on "Access to the Courts in the Roberts Era":
This Friday, the Case Western Reserve Law Review is hosting a symposium on "Access to Justice in the Roberts Era." Topics to be covered include preemption, standing, and arbitration requirements. Here's the write-up:
The Case Western Reserve Law Review Symposium will explore the access individuals have had to the courts since the appointment of Chief Justice Roberts to the United States Supreme Court, as well as the future of access issues in what has been called the “Roberts Era.” Keynote speaker Gene Nichol will address emerging trends concerning access to the courts and standing rights. Symposium panelists, who are among the country's leading experts in the field, will examine a wide array of issues critical to an accessible judiciary system.
In addition to Prof. Nichol, other speakers will include Roderick Hills (NYU), David Vladeck (Georgetown), Michael Solimine (Cincinnati), Catherine Sharkey (NYU), and Robert Glicksman (Kansas), as well as several of us CWRU folk. Here is the full agenda. The event will be webcast for those unable to attend.
Funk on Eurodif & Chevron:
Among the decisions handed down on Monday was United States v. Eurodif, in which the Supreme Court held unanimously that certain contracts for enriched uranium are sales of goods subject to federal anti-dumping laws. The case may seem obscure, it is potentially important for administrative law, as Lewis & Clark's William Funk explained in a recent e-mail to the AdminLawProf e-mail list-serv. I thought this might be of interest to any admin-law junkies out there, so I reproduce it below (with Bill's permission):
Monday the Supreme Court decided US v. Eurodif (2009 WL 160582), in which the Court unanimously reversed the Federal Circuit in an anti dumping case. The case turned on whether the court should give Chevron deference to a determination made by Commerce in an adjudication. Justice Souter, who with Justice Breyer, has done more to screw up Chevron law than anyone else, spent some time explaining why the statute in question was ambiguous and why Commerce’s interpretation in its antidumping decision was reasonable. Unfortunately, he nowhere identified what sort of adjudication it was – formal or informal. He suggested it was formal by dropping a footnote saying “The specific factual findings on which an agency relies in applying its interpretation are conclusive unless unsupported by substantial evidence. 5 U.S.C. § 706(2)(E),” which by its terms is limited to reviews of formal adjudications. However, the factual findings in an antidumping case are not subject to 706(2)(E), they are subject to the specific requirements of the judicial review provisions of the antidumping act, 19 U.S.C.A. § 1516a(b)(1)(B)(i), applicable to “determinations on record.” My quick search has not been able to disclose the procedural requirements attendant to these antidumping determinations. If it is formal adjudication, then Eurodif breaks no new ground. On the other hand, if the adjudication is not formal adjudication, then the decision breaks new ground at least in the sense that it assumes an “adjudication” by itself is entitled to Chevron deference.
SCOTUSBlog has more on the Eurodif decision here.
The Case against Impeaching Rod Blagojevich:
Over at Legal Insurrection, Cornell's William A. Jacobson is making some excellent arguments against an Illinois Senate conviction of Governor Blagojevich. To wit: the evidence against Blagojevich consists almost exclusively of an FBI agent affirming the authenticity of highly selective excerpts from surveillance tapes which he provided via an affidavit. Notably, Agent "Cain refused to answer whether the excerpts in the affidavit put events in 'the proper context' (Tr. 293) or whether he has learned anything in the seven weeks since he signed the affidavit which 'would make any of the statements in your affidavit untrue?' (Tr. 299)."
Put me in the camp that is reluctant to ruin someone's life just because Patrick Fitzgerald says so. I thought the Scooter Libby prosecution was wrong. And it seems clear that Fitzgerald's press conference against Blagojevich was an extreme violation of Illinois Rule of Professional Conduct 3.8(e). (For a discussion of the prosecutor's ethical duty not to make unnecessary statements against the accused, see my 2002 NRO article on Attorney General Ashcroft's remarks about John Walker Lindh. Compared to Fitzgerald's remarks, General Ashcroft's comments were relatively mild.)
Do I think that Blagojevich could well be guilty? Yes. Do I think that Blagojevich has any merits as a public servant? No. How well do I know Blagojevich? Only slightly, having debated him on ABC Nightline (about gun shows) when he was a U.S. Representative in 1998.
So if I were in the Illinois Senate, I might well, with great personal regret, vote against the conviction of Governor Blagojevich on the articles of impeachment.
Was Lochner Right?
On Friday, I will be giving a talk on "Was Lochner Right? Natural Rights and the Fourteenth Amendment" at a conference on Natural Rights and the Constitution sponsored by the The Tocqueville Forum on the Roots of American Democracy. I will share a panel at 11:15am with Princeton Professor Robert George. The conference is being held at the main campus of Georgetown and lasts from 9:30am to 3:30pm. Here is the program: 9:30am-11:00am Panel 1: The Origin and Nature of Natural Rights and the U.S. Constitution
Brian Tierney, Cornell University: Sources of the American Idea of Natural Rights: Some Competing Narratives
Robert Kraynak, Colgate University: Ordered Liberty at the American Founding: Natural Rights in Cultural Context
Respondent: Steven Brust, Georgetown University
11:00am- 11:15am Break
11:15am – 12:45pm Panel 2: Perspectives on the Constitution, Natural Rights, and Natural Law
Robert George, Princeton University: What is Natural Law?
Randy Barnett, Georgetown Law School: Was Lochner Right? Natural Rights and the Fourteenth Amendment
Moderator: Patrick Deneen, Georgetown University
12:45pm-2:00pm Lunch with Keynote Address
Michael Novak, American Enterprise Institute (begins at 1:00pm):
Belief in a Certain Type of God as a Foundation of the Natural Right of Conscience
RSVP required for Lunch
2:00pm – 3:30pm Panel 3: Natural Rights, the Bill of Rights and Judges: Theory and Practice
Christopher Wolfe, McInerny Center for Thomistic Studies: Natural Rights, the Constitution, and Judicial Review
Charles Lugosi, Ave Maria Law School: Why Judges Should Understand the True Nature of the Rule of Law to Effectively Interpret the Constitution to Protect the Rights of All Persons.
Respondent: Phillip Muñoz, Tufts University It looks to be very interesting and is open to the public. You can RSVP for the lunch to tocquevilleforum@georgetown.edu.
I will be giving the same talk in Chicago next Wednesday at DePaul & Chicago-Kent and Thursday at University of Chicago & Loyola. When I have the exact times and room locations, I will post them.
In the Mail: A New Collection of Writings by Bruno Leoni:
 Bruno Leoni (1913-1967) was an Italian libertarian philosopher and lawyer whose book, Freedom and the Law, was required reading in the 1970s for libertarians interested in law. Leoni's blend of law and economics insights with his view of the common law as a spontaneous order influenced--and was in turn influenced by--the work of Friedrich Hayek.
In 2003, the Bruno Leoni Institute was founded in Italy to preserve and develop the libertarian approach to law that was so dear to Leoni's heart. In 2007, on the fortieth anniversary of his death, I spoke at a marvelous conference they held in Turin on Leoni's thought.
Now, for the first time since Freedom and the Law appeared in 1961, comes a new collection of translated writings by Leoni entitled, Law, Liberty and the Competitive Market, edited by Carlo Lottieri (pictured below), an Italian libertarian philosopher and co-founder of the BLI. The volume begins with a major new piece by Richard Epstein on the significance of Leoni's thought that appears as the Foreword.
 Related Posts (on one page): - In the Mail: A New Collection of Writings by Bruno Leoni:
- In the Mail: Hamburger's "Law & Judicial Duty":
International Law and the Gaza Conflict, Redux:
One thing that's clear from the recent Gaza conflict is that to many leftists, "violations of international law" is simply shorthand for "a country is engaging in military action that I don't approve of."
A case in point is a statement, via Brian Leiter, by self-styled "American Jewish progressives" (some of whom, I note, seem to assert their Jewish identity only when its useful for bashing Israel) on Gaza. The statement claims that Israel acted "with little or no consideration for human rights or the laws of war."
As usual with such statements, not a single documented violation of the laws of war is mentioned. Say what you will about the wisdom, or even morality, about the IDF's actions in Gaza, the idea that it acts "with little or no consideration for the law of war" is absurd. Not only does the IDF have strict internal rules promulgated by its version of the JAG, but it knows it has the entire international left breathing over its shoulder, looking for any violations of rules that could be exploited for propaganda purposes.
We could review for many paragraphs the various actions Israel took to limit civilian casualties, such as calling people living in Hamas weapons depots (also serving as apartment buildings) to warn them that a bombing raid was imminent, even though this also allowed the "bad guys" time to escape. And I can once again refer to the retired British army colonel who remarked that there has bee "no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the IDF."
But the argument against such broad indictments of Israel is even simpler. Even Israel's harshest critics claim no more than 1,400 or so deaths in Gaza, with a significant fraction of those Hamas fighters. If Israel truly "little or no consideration for human rights or the laws of war," why were the casualty figures that low? Surely Israel could have unleashed far greater devastation, while also achieving more of its military objectives. Israel could have, for example, demolished Shifra Hospital, which has underground bunkers that served as a command center for the Hamas leadership. That leadership survived the war because Israel wouldn't demolish a working hospital to get at them.
In any event, I'll lay down the challenge to the signators of the statement that one should issue whenever one sees similarly ignorant statements: Precisely what "laws of war" do you claim Israel violated in Gaza, what is your evidence for these violations, what treaties or legal precedents can you cite to support your claim, are you aware of legal authorities that disagree with your interpretation of international law, and under what legal theory is Israel bound by whatever particular international law principle that you are purporting to apply (e.g., if you are citing a treaty that Israel specifically declined to be a party to)? Comments are open below for the signators. [UPDATE: One more: Specifically, what could Israel have done differently in Gaza that would lead you to acknowledge that it had complied with the laws of war. If the answer is, as I suspect for many signators it would be, "not go into Gaza to begin with," then obviously we can go back to the first sentence of this post."]
Near as I can tell, only one law professor signed this statement, but surely he wouldn't have signed it without having answers to those questions readily at hand, so perhaps he can enlighten us. And note, while it's possible (though not yet proven) that there were isolated violations of international law by a unit here or there, such as the controversy over the alleged failure to allow Red Crescent ambulances to reach a certain neighborhood for several days [update: this article suggests that Israel may have known that Hamas was hijacking ambulances to transport its fighters], proof of isolated violations of international law, contrary to army policy, would still not support the claim that there was "little or no consideration," overall, of the laws of war.
John Updike, R.I.P.
I don't have much to add to the many Updike obituaries out there, except to say that I'm sorry to see him pass. I was never a enormous Updike fan, personally -- but his prose could achieve incandescence at times, and there can never be too many people about whom that can be said. To my eye, his greatest works are ones that hardly anyone mentions -- "The Coup," a truly hilarious and outrageous look at Africa through an American's eyes and American through an African's, and his true masterpiece, "In the Beauty of the Lilies," a sprawling family saga that brings the turn of the century (19th to 20th) to life in a way that no other book I've ever read has done. He was a true "man of letters," in the best old-fashioned sense of the term -- reviewer, essayist, letter-writer, poet, novelist, etc. A real writer's writer, and, as someone who likes to think of himself as a writer, I give him a last salute.
Tuesday, January 27, 2009
Will former Bush administration officials be prosecuted in foreign countries?
Phillipe Sands says yes, here and here. He might be right, but there are grounds for skepticism.
First, some background. International law carves the world into states; within each state, the national government takes primary responsibility for enforcing the criminal law when crimes occur on its territory. States also claim jurisdiction when nationals commit crimes in foreign countries and sometimes when nationals are victims in foreign countries—leading to overlapping jurisdiction that is sorted out in various ways. States typically do not exercise jurisdiction over foreigner-against-foreigner crimes that occur in foreign territory. If a Russian murders another Russian in Russia, then travels to the United States, American authorities will not prosecute him, no matter how horrible the crime.
There is an exception to this rule—the principal of universal jurisdiction, which applies to certain international crimes. In the old days, the rule applied to piracy, which took place outside the territory of any state, and hence did not naturally fall within any state’s jurisdiction. Today, many international lawyers claim that universal jurisdiction applies to a poorly defined group of crimes that includes genocide and probably torture. Thus, in principle, Spain could exercise jurisdiction over certain international crimes committed by Americans against Afghans in Guantanamo Bay. A former Bush administration official or soldier or CIA agent who travels to Madrid in order to take in the splendors of the Prado could conceivably find himself staring at a cell wall.
I write with more hesitation than most international lawyers would. They have been persuaded by the Pinochet case that universal jurisdiction is now an accepted part of international law. In 1998, Pinochet, the then-former, now-dead, Chilean dictator, traveled to Britain for medical treatment, where he was detained on account of an extradition request filed by the Spanish judge, Baltasar Garzón. The British high court ruled that the extradition request was valid, rejecting the argument that Spain’s assertion of universal jurisdiction violated international law. Riots ensued in Chile, where a fragile democracy existed thanks to a tenuous amnesty program that protected Pinochet and his supporters (many in the army), who had killed and tortured thousands during Pinochet’s regime. Despite the high court’s ruling, the British government sent Pinochet home, claiming that he was too ill to stand trial. Pinochet would linger on for another six years after his release in 2000.
The denouement was a disappointment but the precedent had been set, and it is on this basis—plus the existence of laws in various countries that claim universal jurisdiction, and a handful of treaties—that the principle of universal jurisdiction rests.
It doesn’t count, as far as the international lawyer is concerned, that the British government engineered Pinochet’s escape and hence that he was never tried. Nor does it count that Spanish courts refrained from relying on universal jurisdiction when reviewing Garzón’s legal moves. It doesn’t count that when Garzón turned his sights on Spain itself, and sought to scare up Franco’s ghost, which had been so carefully laid to rest in Spain’s transition, the Spanish government showed as much enthusiasm for this inquiry as the Chilean rioters showed for Garzón’s earlier effort, and squelched it. It is all very well to prosecute a traveling foreigner from a developing country whose political system rests on a fragile compromise between authoritarians and democrats, but when it comes time to investigate our (much worse) crimes, well, forget about it!
Nor does it count that the various statutes that assert universal jurisdiction are, by design, limited, to say the least. The Belgian parliament emasculated its statute when Donald Rumsfeld pointed out that western governments would not want to hold NATO meetings in a place where government officials might be indicted—at the time, Ariel Sharon was under investigation, and (possibly frivolous) complaints had been filed against American generals and President George H.W. Bush, on account of the first Gulf War. Other countries, like Germany, ensure that complaints can’t lead to investigations without the consent of government authorities, in a departure from civil law criminal procedure. Amnesty International claims that most countries recognize universal jurisdiction in domestic statutes, but the number of successful prosecutions based on that principle is extremely low. The political risks of prosecuting foreigners for their crimes against foreigners on foreign soil are usually just too high.
All of this suggests that the hoped-for foreign trials of former Bush administration officials will not happen anytime soon. But this is not to say that such trials are impossible. Pinochet’s lawyers did not expect his apprehension in Britain. European countries have independent judiciaries, and they are capable of acting in ways that their governments—which, for reasons I explained in my last post, have no interest in prosecuting former Bush administration officials—disapprove. Still, the short, undistinguished history of universal jurisdiction so far might give pause even to crusaders like Garzón.
Small-Government Egalitarianism:
Harvard economist Edward Glaeser has a nice piece on what he calls "small-government egalitarianism." I don't agree with all of his specific points, but I do agree with the general theme that an underemphasized aspect of the case for limiting government is the tendency of big government to benefit the politically powerful at the expense of the poor and disadvantaged. This issue has been a theme of much of my own work on property rights (e.g. here and here) and political ignorance (e.g. - here). Glaeser's view and mine go against the still-dominant conventional wisdom of the last 75 years, which holds that big government is the best way to promote the interests of the poor. Nonetheless, I think that the poor have a lot more to gain from limiting the power of the state than is often assumed.
Congress Passes Legislation Overturning Holding of Ledbetter v. Goodyear Tire & Rubber:
The Associated Press reports that Congress has finally passed legislation overturning Ledbetter v. Goodyear Tire & Rubber: Congress sent the White House Tuesday what is expected to be the first legislation that President Barack Obama signs into law, a bill that makes it easier for women and others to sue for pay discrimination, even if the discrimination has prevailed for years, even decades.
White House press secretary Robert Gibbs said Obama would sign the bill, a top priority for labor and women's rights groups, Thursday during a public ceremony in the East Room.
The bill is a response to a 2007 Supreme Court ruling that said a person must file a claim of discrimination within 180 days of a company's initial decision to pay a worker less than it pays another worker doing the same job. Under the bill, every new discriminatory paycheck would extend the statute of limitations for another 180 days.
The measure, said House Speaker Nancy Pelosi after receiving a congratulatory phone call from Obama, is "a bold step to move away from that parsimonious interpretation" of the Supreme Court. After reading that news I took a quick nap, and I had a dream that it was 20 years from now and I was at a law school conference called The Right-Wing Roberts Court: How Bad Was It — Pretty Cruddy, or Really Super Awful Terrible? In my dream, I overheard the following conversation between a critic of the Roberts Court and a first-year law student who was unfamiliar with its history in the early days of the 21st Century: Critic: The Supreme Court of the early 21st Century was perhaps the most conservative, most activist Supreme Court ever.
Student: Oh, really? What did they do?
Critic: Well, they had one outrageous case in particular, Ledbetter v. Goodyear Tire & Rubber, that became a real cause celebre for civil rights activists. That was really a huge case — the worst of the worst.
Student: Did they strike down an important law as unconstitutional?
Critic: Well, no, it was a statutory case resolving a 2-1 circuit split.
Student: What was it about?
Critic: It's kind of technical, actually. An employment discrimination law required claimants to file their claims 180 days “after the alleged unlawful employment practice occurred.” The employee, Ledbetter, was discriminated against in her pay many years earlier. But she didn't find out that she had been underpaid until years later. So the question was whether she could still sue despite the 180 day rule. The employer argued she was too late, because the alleged unlawful employment practice was discriminating against her years before. Ledbetter argued that her pay in the present still reflected the impact of the discrimination she faced years ago, so that her current pay was also an "unlawful employment practice" and she could still sue.
Student: Sounds like a great question of statutory interpretation! And a pretty tough one — I can see why there was a circuit split.
Critic: Well, it doesn't seem that hard to me. Think about it from a policy perspective: It guts the law if an employee can't sue just because the employer hid the discrimination for more than 180 days. But we had a rightwing activist Supreme Court back then, and the Court ruled 5-4 that the "unlawful employment practice" was the discrimination in the past. Because the actual discrimination had occurred years earlier, Ledbetter was too late.
Student: Well, I definitely don't like that as a matter of policy, at least. I hope the Supreme Court will overturn that case someday: It's terrible that we have been suffering under that rule all these years!
Critic: Oh, Ledbetter didn't last very long. Congress overturned it about 19 months later: It adopted Ledbetter's view in the case, so Ledbetter could then sue. That's been the law for the last 20 years, so the Ledbetter case didn't actually stop anyone from suing in the end. But there was a window of 19 months in which we weren't sure if the legislation would pass. It was terrible, and it was all caused by the archconservative Roberts Court resolving that circuit split the wrong way. That's why I think the Roberts Court was beyond just Pretty Cruddy, and was genuinely Really Super Awful Terrible.
Divided Constituencies and Their Lawyers:
I devote two chapters of the book (3 & 4) to exploring differences among lawyers for the different constituencies. One chapter focuses on social background and values, and the other considers professional identity. It is difficult to summarize those chapters; they draw heavily from qualitative interview data to develop group portraits. But a few additional details might help answer some of the excellent comments I’ve received thus far – without, I hope, dampening readers’ willingness to delve into the book.
The suggestion that the lawyers I interviewed must work in Washington, D.C. is (roughly) half true. Thirty-four of the 72 interviewed lawyers worked in D.C. and D.C. suburbs, while 38 worked elsewhere. The geographic distribution of lawyers varied by constituency. Especially striking was that very few of the lawyers for social conservative organizations worked in D.C. Instead, they were heavily concentrated in the Southeast, Midwest and West, with many of them working outside of major metropolitan areas. Advocates for libertarian groups were mostly in D.C. and the West. All but a few of the lawyers for mediator groups and business organizations worked in major metropolitan areas — most of them in D.C.
There were also notable differences in the credentials held by these lawyers. The religious conservatives and abortion opponents were much more likely than lawyers for other constituencies to have attended religiously affiliated schools and less likely to have gone to schools ranked in the top twenty in the 2000U.S. News& World Report rankings. At the other end of the spectrum were lawyers for the mediator organizations, almost all of whom had attended top 20 law schools — mostly very elite ones. The educational backgrounds of the lawyers for libertarian and business organizations were more varied.
The book also includes an analysis of foundation funding for the organizations served by the interviewed lawyers. I found that the organizations drew systematically from different sources of foundation funding, suggesting that the institutional patrons of conservative advocacy organizations are divided by constituency, just as the lawyers are. For example, there was no overlap among the top five foundation supporters of religious and pro-life groups on the one hand and business and libertarian groups on the other. Differences in the foundations’ causes, in turn, reflected pronounced differences in the commitments of the founders and/or current administrators of the foundations, as reflected in the foundations’ mission statements. By far the largest amount of foundation funding went to the mediator organizations, and the patrons of these groups were ideologically mixed.
Another chapter of the book (5) identifies factors that might provide bases for understanding and perhaps cooperation among lawyers for the different constituencies: generational effects, shared disapproval of liberals, overlapping policy agendas, a common interest in remaking the judiciary, the Republican Party, shared professional status, and perceived disadvantage in the legal establishment. But I conclude that none of these elements of common ground is sufficient, independently or in combination, to overcome the differences in ideology and values documented in previous chapters.
The especially elite and prominent lawyers working for mediator organizations, and the disproportionate amount of foundation money invested in those groups, suggest that they deserve a close look as possible sources of glue among lawyers for the different constituencies. I devote a whole chapter to these organizations, and I will focus on them in my next post.
P.S. The “order maintenance” label refers to several organizations that did not fall into the other categories and that seemed to share a focus on social order – on issues such as criminal law, immigration, and promoting the use of the English language. I interviewed just four lawyers who worked for organizations in this category. My previous description of this group prompted a comment asking whether I was suggesting that these advocates were major players in the culture wars. They clearly were not. I believe that the book is clear on this point, but my first post was not.
Journalist Carla Main Responds to Developer Who is Suing Her Claiming that She Defamed Him in Book Chronicling His Effort to Acquire Property Through Eminent Domain:
A few weeks ago, I blogged about a lawsuit in which Texas developer H. Walker Royall is suing legal journalist Carla Main for alleged defamation. Royall had previously acquired property through the use of eminent domain by the city of Freeport, Texas, so that he could in turn use it to build a luxury marina. Main wrote a compelling book about the case, and now Royall is suing her for defamation because she described his role in the case in an unflattering light. Even more absurdly, Royall is also suing University of Chicago law professor Richard Epstein for writing a favorable blurb for the book.
In this recent op ed coauthored with her publisher, Roger Kimball, Main gives her view of the case and the threat it poses to property rights and freedom of speech.
It is highly unlikely that Royall will actually win this case. However, such lawsuits can still serve to stifle criticism of questionable takings by imposing steep litigation costs on critics. Main and Epstein are fortunate to have free representation from the Institute for Justice, the libertarian public interest law firm that has litigated numerous property rights cases, including Kelo v. City of New London. Most other eminent domain critics and threatened property owners are not so fortunate.
CONFLICT OF INTEREST WATCH: Richard Epstein and I have worked together on various eminent domain issues, though not on this case. I also have done a variety of eminent domain-related pro bono work for the Institute for Justice, which is representing Epstein and Main.
UPDATE: I accidentally got Royall's first name wrong in the first version of this post. The mistake has now been corrected.
"Ciceronian or Jaffanese?"
Tim Sandefur (Freespace) discusses the mythical origin of "extremism in the defense of liberty is no vice."
Blind Justice:
Commenter LawClerk points to S.C. Code Ann. § 14-7-1060, which until 2006 provided that juror choices be made “[by a] child under ten years of age, or by a blind person.” This has now been changed to the much less colorful requirement that the drawing be by a “responsible and impartial person designated by the clerk of court, with the approval of the presiding judge.”
"Crack Babies: The Epidemic That Wasn't":
This is fascinating in light of the tremendous concern about "crack babies" in the 1980s: When the use of crack cocaine became a nationwide epidemic in the 1980s and ’90s, there were widespread fears that prenatal exposure to the drug would produce a generation of severely damaged children. Newspapers carried headlines like “Cocaine: A Vicious Assault on a Child,” “Crack’s Toll Among Babies: A Joyless View” and “Studies: Future Bleak for Crack Babies.”
But now researchers are systematically following children who were exposed to cocaine before birth . . . . So far, these scientists say, the long-term effects of such exposure on children’s brain development and behavior appear relatively small. Hat tip: Jonathan Simon.
The Coming Climate Policy Clash:
I have an article on NRO today explaining why greenhouse gas controls of some sort are inevitable under current law. As I explain, a practical consequence of the Supreme Court's Massachusetts v. EPA decision is that the EPA is required to treat greenhouse gases as pollutants and regulate them accordingly. The agency has never made a formal endangerment finding, but this is a mere formality. The agency has reiterated its view of the threat of greenhouse gases so often that it would have little chance defending any effort. As a consequence, whatever discretion over whether to regulate the Court's decision appeared to give the agency is a mirage.
A memo distributed by new EPA Administrator Lisa Jackson to agency staff suggests the EPA shares my assessment of Mass v. EPA. In it, Jackson writes: The President has pledged to make responding to the threat of climate change a high priority of his administration. He is confident that we can transition to a low-carbon economy while creating jobs and making the investment we need to emerge from the current recession and create a strong foundation for future growth. I share this vision. EPA will stand ready to help Congress craft strong, science-based climate legislation that fulfills the vision of the President. As Congress does its work, we will move ahead to comply with the Supreme Court’s decision recognizing EPA’s obligation to address climate change under the Clean Air Act. This creates an interesting conundrum for those (like me) who think regulating greenhouse gases under the existing Clean Air Act would be a colossal mistake. The Act is barely able to deal with its intended goal of reducing traditional air pollutants. Its various provisions are an exceedingly poor fit for the threat of climate change.
So, if implementing current law is bad, what would make a good alternative? I'd gladly take a revenue-neutral carbon tax in exchange for exempting greenhouse gases from the Clean Air Act. I suspect others may disagree. Yet what those who oppose a carbon tax (or cap-and-trade or whatever) need to recognize is that support for the status quo is support for regulating greenhouse gases under the existing Clean Air Act -- and I doubt that's an alternative many carbon tax or cap-and-trade opponents would find more agreeable.
NY Times Needs a New Columnist:
So you do you think should replace William Kristol? If I were at the Times, I would hire five columnists instead of one -- paying them very little, because hey, they're getting terrific exposure -- and promise them that their columns would be posted on the Times website and then considered for inclusion in the paper version. I would then pick the best column written that week for inclusion in the paper version. Over time, a great columnist might emerge from the pack. And even if no great columnist emerges, at least you would avoid the problem of columnists who have the gig and are just coasting.
Whatever Happened to the Last Big Infrastructure Bill?
These days, we are repeatedly told that we have to pass a massive new infrastructure spending bill in order to fix our "crumbling" roads and bridges. Everyone seems to have forgotten that just three years ago, in August 2005, Congress enacted the biggest federal public works program in American history, spending a massive $286.4 billion on the 2005 highway bill. At that time, President Bush and congressional leaders from both parties told us that the new highway bill was needed to fix our infrastructure problems.
Before passing a new and potentially even bigger infrastructure spending bill, I would just like to know what happened to all that money Congress appropriated for the same purpose back in 2005? If that act succeeded in its purpose, it's not clear why we need another huge federal infrastructure bill now, less than four years later. If it failed, we need to know why.
One reason why the 2005 bill may have failed is that much of the money was spent on various porkbarrel projects, such as the notorious "Bridge to Nowhere," which is the only thing most people now remember from that bill. It's certainly possible that the 2005 money was largely wasted because most of it went to politically connected interest groups and districts rather than genuinely valid infrastructure priorities. But if the 2005 bill indeed failed for that reason, why would we expect a different result this time around? You have to be a very committed partisan to believe that today's Democratic Congressmen and senators are any less committed to lining the pockets of their favored interest groups than their Republican predecessors were in 2005. Certainly, Democrats such as Barney Frank have been more than willing to do that with the funds allocated in the bailout bill. Whether Congress is controlled by Democrats or Republicans, it is almost inevitable that much of the money appropriated in in large spending bills will be allocated on the basis of political power rather than economic rationality. Congressmen who refuse to channel money to politically influential constituents are unlikely to hold onto power long.
I know, of course, that many argue that we need an infrastructure bill today in order to provide economic stimulus. Economists actually disagree among themselves over the question of whether a stimulus bill would do more harm than good. I personally lack sufficient expertise on macroeconomics to adjudicate this debate intelligently. But even if we assume that stimulus is necessary, there are lots of ways to provide it without enacting a massive infrastructure bill where much of the money is likely to be diverted to pork and other inefficient projects that consume more wealth than they produce. My George Mason colleague Alex Tabarrok has a good summary of the alternatives.
I'm not categorically opposed to all federal highway spending. But before we enact a massive new infrastructure bill, we need a clear explanation of why the 2005 highway bill wasn't enough, and why if it wasn't we should expect better results this time around. So far, these questions have hardly been asked, much less answered.
UPDATE: For clarification, it should be noted that the current draft of the Obama stimulus bill contains much less infrastructure spending than the 2005 highway bill. However, state and local governments, and many commentators are advocating much higher levels of new infrastructure spending. It is unlikely that the current bill will be the end of the issue.
An Odd Sort of Age Restriction:
An 1800 bill that would have mandated the random selection of federal juries would have required that jurors be chosen by lot "by a child not exceeding ten years of age." North Carolina law so provided as late as 1902. This was also a practice under some wills, for instance,
That my lands be divided into six equal parts, as near as can be done, by not less than three respectable freeholders, chosen by my executor. After being so divided, the tracts or divisions to be numbered and put into a box or hat and drawn out by a child not exceeding ten years old ....
See City Gazette, June 28, 1800; i>Moore v. Navassa Guano Co., 41 S.E. 293 (N.C. 1902); Evans v. Evans, 4 Rich. Eq. 334 (S.C. App. Eq. 1852).
Related Posts (on one page): - Blind Justice:
- An Odd Sort of Age Restriction:
Belmont Ban on Smoking in Apartment Buildings:
The New York Times reports on this, and a reader asks whether this is constitutional. Sure: State and federal governments are constitutionally permitted to ban even the possession of alcohol or drugs anywhere, so there's no constitutional barrier to the government's banning of smoking in apartment buildings. (It's possible that such a city law would be preempted by state law, but I don't know California preemption law enough for that.)
This doesn't make it right: It seems to me that it should be up to private landlords to decide whether smoking should be allowed in their buildings, and up to tenants to move to those buildings whose policies they prefer. But that's a matter of libertarian policy, not current U.S. constitutional law.
The Attack on Sunstein.
Barack Obama’s plan to nominate Cass Sunstein to the position of head of the Office of Information and Regulatory Affairs has been attacked by some on the left, as Jonathan Adler notes. Over the course of his career, Sunstein has taken many controversial positions that have offended people on both the right and left, but his support for the regulatory state has not wavered, nor has his concern for protection of the environment, the health and safety of workers, consumer protection, and other regulatory goals that we associate with New Deal liberalism. Sunstein has strong liberal instincts—his work is animated by his concern for the rights and well-being of poor and vulnerable people and oppressed groups—and he believes that government is there to help. But what makes his work so interesting and influential is that he has a hard-headed appreciation of the problems of government, and has explored, with extraordinary imagination, approaches to regulation that harness the power of government without unduly infringing on people’s freedom or in other ways producing bad outcomes.
The approach that has received the most attention recently is Sunstein’s argument (with Dick Thaler) in support of what they call “libertarian paternalism,” government policies that help prevent errors that people predictably make because of cognitive biases (Sunstein is a prominent critic of the rational actor model used by economists) without interfering with the choices of sophisticated people who know their interests better than the government does. This book is a perfect example of how Sunstein thinks. He shares the liberal-friendly view that people do not always act in their rational self-interest and therefore benefit from government regulation, but he rejects the strongly paternalistic policies that have done more harm than good and are in any event politically unpopular and have led to backlash. His middle way is a sophisticated attempt to support a kind of regulation that might do some good and enjoy political support from both sides of the spectrum, and hence actually have a chance to persist across administrations and vicissitudes in public opinion.
What appears to have gotten Sunstein into trouble among the left is his support of cost-benefit analysis. Cost-benefit analysis, like libertarian paternalism, is a middle way between the deregulatory impulses of conservatives and the traditional regulatory agenda of those on the left. It is by no means a perfect instrument of regulation, and legitimate concerns about it have been raised—leading to a long-running academic debate about how it can be modified and improved. Unfortunately, cost-benefit analysis is a red flag for environmentalists, who associate it with the deregulatory philosophy of the Reagan administration, when it was first introduced in OIRA as a mechanism for screening most types of government regulation. And it is true that some in the Reagan administration saw cost-benefit analysis as nothing more than a bureaucratic hurdle, a measure for slowing down regulation. But from the beginning, cost-benefit analysis has had the support of moderates and liberals (prominently, Ricky Revesz, for example, who has recently published a great book urging progressives to drop their opposition to it) who see it as a tool of good governance, not as a means for strangling regulations at their birth. Reagan himself was goaded into regulatory action when a cost-benefit analysis showed that ozone depletion generated enormous costs, and could be addressed with a cost-effective treaty, which has been a considerable success.
Sunstein’s own views of cost-benefit analysis are much more nuanced than the writings of some of his critics acknowledge. As his numerous writings on the topic make clear, he does not believe that the well-being of future generations should be ignored. On the contrary, Sunstein strongly supports a climate treaty because cost-benefit analysis shows that the costs of climate change will be considerable for future generations and are already substantial for poor people living in developing countries today--as every cost-benefit analysis shows, the benefits of greenhouse gas abatement vastly exceed the costs. (The Center for Progressive Reform mystifyingly claims that he is not particularly concerned about climate change, based on a misreading of a paper he wrote (with me).) And he is well aware that cost-benefit analysis can produce misleading evaluations when the rich and poor have different valuations for regulatory benefits. The main advantage of cost-benefit analysis is that it introduces transparency into an opaque regulatory process, forcing regulators to be clear about the nature of the tradeoffs one unavoidably must make. Some of these tradeoffs are ugly and do not have obvious answers—when scarce resources force one to choose between a regulation that reduces mortality risk for the elderly and a regulation that provides greater benefits for children, which should one choose? Not everyone will agree with Sunstein’s conclusions on these issues, but he should receive credit for his intellectual honesty and academic integrity.
But isn’t cost-benefit analysis hopelessly manipulable? That is another argument of CPR. In fact, like any decision procedure, it can be manipulated, but when it is manipulated, it is not hard to tell and cry foul. Indeed, the critics of cost-benefit analysis have produced paper after paper showing that OIRA or independent economists have produced defective cost-benefit analyses—which would of course not be possible if it could be so easily manipulated to produce the results one wants. What is true is that the government has not performed cost-benefit analyses very well over the last twenty-five years. This is a reason to improve its efforts, not to abandon them.
The critics of cost-benefit analysis have been trying for thirty or more years to come up with a better decision procedure, and have failed. They usually say that regulatory agencies should just do what Congress asks them to do; but the problem is that Congress gives extremely vague guidance that has to be interpreted one way or another, and in the absence of a clear decision procedure, it is too easy for agencies to rationalize whatever they think might make sense or be politically saleable at a particular time. Cost-benefit analysis, done properly, should strengthen the case for regulation by showing people that it actually serves their interest, rather than the agendas of interest groups. At a time when public support for environmental protection measures appears to be waning, the importance of this objective can hardly be exaggerated.
Sunstein is one of the most talented academics around. With his deep knowledge of government regulation, he would be the perfect head of OIRA. Among the many people I have met in academia and government, he is one of the least ideologically rigid, one of the most open to argument and evidence. His critics should at least admit that he will give a fair hearing to their concerns. He would be an extraordinary asset for the Obama administration.
"Of the People, by the People, and for the People"?
My earlier query about the antecedents of this phrase yielded this comment:
The prologue to John Wycliffe's English translation of the Bible, dated 1384, includes this observation:
The Bible is for the Government of the People, by the People, and for the People.
And indeed many sources, including The Columbia Dictionary of Quotations, so state.
This provenance, though, smacked of myth to me, and it appears likely that it is indeed a myth. I haven't checked the prologue myself, because it's long, the only version I could find was in a very bad font and not searchable, and the matter is too tangential to my article to track down. (The article is about Thomas Cooper, and I decided just not to mention the possibility that his earlier version might have been the indirect source for Lincoln's famous quote.) But here's what our reference librarian Stephanie Plotin reports:
[T]hree sources ... say that they’ve read the whole General Prologue and can’t find anything remotely similar to the “government of the people ...” quote.
For example, see Wolfgang Mieder, Proverbs are the Best Policy: Folk Wisdom and American Politics, Utah State University Press, 2005: Chapter 2, “Government of the People, by the People, for the People”: The making and meaning of an American proverb about democracy: p. 16: “The British journal Notes & Queries included several short paragraphs between 1908 and 1916 on the phrase, starting with the question whether anybody could verify the claim that John Wycliffe included the following declaration in the preface to his Bible translation of 1384: ‘This Bible is for the government of the people, by the people, and for the people.’[fn2] This matter came up again in 1916, but once again nobody was able to find the statement in the various editions of the Wycliffe Bible.”
FN2, p. 248-249: “Dewitt Miller, ‘Abraham Lincoln: Wycliffe Bible,’ Notes and Queries, 10th series, 9 (1908), 10. The claim was made by Ward Hill Lamon, The Recollections of Abraham Lincoln (Chicago: McClurg, 1895), p. 176 ... I have checked the entire preface of the Wycliffe Bible, and the statement is nowhere to be found.”
See Also Stephen Booth, Precious Nonsense: The Gettysburg Address, Ben Jonson’s Epitaphs on His Children, and Twelfth Night, University of California Press, 1998, p. 33: “Lincoln scholars have long hoped to find a specific source for the prepositional triad in government of the people, by the people, for the people; they have not found one [fn 7], but the number of similar locutions they have come up with testifies both to the cause and the justice of their search.” FN7: “Mark Womack points out to me that The Columbia Dictionary of Quotations (New York, 1993) gives the following s.v. “Bible”: “The Bible is for the Government of the People, by the People, and for the People” and cites its source as the “General Prologue to the Wycliffe Translation of the Bible (1384).” The Columbia Dictionary’s confidence about the date and its apparent indifference to the distinction between the early version of the Wycliffite Bible and the later one are surprising. I have not found the quoted sentence in any printed text of any of the Wycliffite prologues.”
Finally, see also Hoyt’s New Cyclopedia of Practical Quotations, Completely Revised and Greatly Enlarged, by Kate Louise Roberts, New York: Funk & Wagnalls, 1923. p. 332, “The phrase ‘of the people, for the people and by the people’ is not original with Lincoln. There is a tradition that the phrase, ‘The bible shall be for the government of the people, for the people and by the people,’ appears in the preface of the Wyclif bible of 1384, or in the Hereford Bible, or in a pamphlet of the period treating that version. See Notes and Queries, Feb. 12, 1916, p. 127. Albert Mathews, of Boston, examined the reprint of 1850 of the Wyclif bible, and finds no reference to it.”
I did find a print version that included the whole text of the General Prologue to the Wycliffe Bible, edited by Josiah Forshall & Frederic Madden, Oxford University Press, 1850 (in 4 volumes). I read the Preface and there is no reference to any such quote. I read the supposedly “controversial” chapters referenced in the Dove book, below, but found nothing similar.
I looked at the sections on Wycliffe in the following books and found nothing referring to the quote:
Benson Bobrick, Wide as the Waters: the Story of the English Bible and the Revolution in Inspired, New York: Simon & Schuster, 2001
Margaret Deanesly, The Lollard Bible and other Medieval Biblical Versions, Cambridge University Press, 1920
Mary Dove, The First English Bible: The Text and Context of the Wycliffite Versions, Cambridge University Press, 2007
F.F. Bruce, The English Bible: A History of Translations, London: Lutterworth Press, 1961.
I did see all the info on the internet, including the Wycliffe organization, stating that Wycliffe had made this alleged statement. However, if so, it’s odd that none of the books above would mention it. The Preface to the Forshall & Madden 1850 reprint mentions earlier writings of Wycliffe, some of which are quoted, but none of those mentions the alleged phrase, either. One of those writings (a commentary on Luke) includes the phrase: “Crist Jhesu, for thyn endeles power, mercy, and charitie, make thi blessed lawe knowun and kept of thi puple, and make knowun the ypocrisie and tirauntrie and cursidnesse of Antecrist and his meynee, that thi puple be not disseyued by him.” But that’s a big stretch (and missing 2 prepositions).
Thus, though I can't say from personal research that the attribution to the Wycliffe prologue is spurious, there seems to be at least good reason to doubt the attribution. Don't rely on it unless you can check it yourself. Related Posts (on one page): - "Ciceronian or Jaffanese?"
- "Of the People, by the People, and for the People"?
Heinzerling to EPA:
Another legal academic is reportedly signing up with the Obama Administration. According to this report, Georgetown University's Lisa Heinzerling is joining the Environmental Protection Agency to advise EPA Administrator Lisa Jackson. Heinzerling was the lead author of the Commonwealth of Massachusetts' merits brief in Massachusetts v. EPA. While I disagreed with much of her argument, I recognize that the brief was a sterling example of effective legal advocacy -- and her side did win the case, which should say something.
One interesting aspect of this appointment is that Heinzerling is a prominent opponent of reliance upon cost-benefit analysis to evaluate environmental regulations. She has written several articles (many of which are available here) and a book criticizing cost-benefit analysis and testified against confirmation of John Graham to be Administrator of the Office of Information and Regulatory Affairs in the Bush Administration. Heinzerlng's views on cost-benefit analysis put her at odds with President Obama's own pick to head OIRA, Cass Sunstein. Heinzerling has critiqued Sunstein's support for cost-benefit (as in this paper), and Sunstein has critiqued her work as well. Concluding a review of Heinzerling's book Priceless (written with Frank Ackerman), Sunstein wrote: In the end, Ackerman and Heinzerling's argument seems to me to suffer from the authors' anachronistic and even Manichaean view of the regulatory world. In their rendition, regulators can either stop evildoers from hurting people or prevent serious threats to human health and the environment. That is the right way to think about some environmental problems, to be sure--but most of the time environmental questions do not involve evildoers or sins. They involve complex questions about how to control risks that stem both from nature and from mostly beneficial products, such as automobiles, cell phones, household appliances, and electricity. In resolving those questions, we cannot rely entirely on cost-benefit analysis, but we will do a lot better, morally as well as practically, with it than without it.
Tips for Organizing Conferences:
I recently thought of a few tips for organizing conferences, which might be especially useful for law review editors, since they come and go each year and often can't learn from the experiences of their predecessors:
1. Print people's names on their name tags in a large font. One function of a name tag is so that people who have forgotten other people can pretend to recognize them. Having to squint at the name tag and then say "Oh, Pete, great to see you again!" defeats this purpose.
2. Enforce time limits for panelists (which is to say by telling them the time is up, and expecting them to take no more than a minute or two to wrap up after that), though give several warnings at fixed times before the time limit.
3. Don't leave this time limit enforcements to the moderators: They're generally on the same podium as the speakers, and it's distracting to the speaker and the audience for the moderators to keep passing pieces of paper labeled "5 minutes," "2 minutes," "Time," and so on to the speaker. Instead, have someone in the audience in the speaker's field of vision putting up "X minutes left" signs. (Having a counting second timer at the lectern is an alternative, but they need to be reset after each speaker, and it's possible that speakers will tune them out in a way that they're not likely to tune out the signs.)
If you have more suggestions, please post them in the comments.
Monday, January 26, 2009
Waiving Bush EPA's Waiver Decision:
Today President Obama instructed the EPA to reconsider the Bush Administration's denial of California's request for a waiver of Clean Air Act preemption for the state's first-in-the-nation regulations limiting greenhouse gas emissions from new motor vehicles. This decision was expected, and is largely symbolic. Allowing California to regulate vehicular GHGs will have little effect on overall emissions, even if the dozen-or-so states that pledged to adopt the Golden State's standards as their own make good on their commitments. Yet the decision does signify that the Obama Administration will adopt a more aggressive posture on climate change than its predecessor. Perhaps it also indicates that the Obama Administration will have a greater interest in state environmental initiatives as well -- one can hope.
I have a brief comment on Obama's announcement at the NYT's new "Room for Debate" opinion blog. Other commenters include former EPA Administrator William K. Reilly and the Cato Institute's Jerry Taylor. I also blogged extensively about the Bush EPA's decision here and here.
Legal Writing Job Candidate Files Lawsuit Claiming that She Was Rejected by the University of Iowa Law School Because of Her Conservative Views:
Teresa Wagner, Associate Director of the University of Iowa College of Law Writing Resource Center, has filed a lawsuit claiming that her application to become a legal writing professor at the law school was rejected because of her conservative political views. Press accounts say that she is arguing that denial of this kind of job on ideological grounds violates the First Amendment.
I personally don't believe that ideological discrimination in government hiring violates the Constitution. Quite often, "personnel is policy," and both conservative and liberal administrations have a legitimate need to hire people who are ideologically committed to carrying out their programs. If Barack Obama appoints mostly liberal Democrats to staff his administration, that surely doesn't violate the First Amendment.
There is far less justification for ideological discrimination in faculty hiring at state universities then for many other government jobs. After all, universities need ideological diversity in order to further intellectual inquiry and debate. Still, I think there are rare circumstances when a professor's ideology can legitimately be considered in faculty hiring.
Be that as it may, I don't believe that state universities that engage in more ideological discrimination than I would approve of violate the Constitution. Government involvement in ideologically-driven curriculum and hiring decisions is an inevitable result of having public schools and universities in the first place. Some of this discrimination is ill-advised and unfair. But that doesn't make it unconstitutional.
UPDATE: A few commenters and readers seem to assume either that I am denying the existence of ideological discrimination against conservatives in academia or that I think the overwhelming preponderance of liberals in academia is a good thing. Neither is true. Indeed, I devoted a whole series of posts to showing that there is a large ideological imbalance in academia, and suggesting that ideological discrimination is one of the causes of it (though not the only one). In this post, however, I am arguing that ideological discrimination in faculty hiring by state universities doesn't violate the Constitution. That is not the same thing as saying that I approve of it. There are many bad policies that still aren't unconstitutional.
UPDATE #2: A copy of Wagner's complaint is available here, courtesy of senior Conspirator Eugene Volokh. From it, I learn that Wagner was a legal writing adjunct professor at George Mason University Law School from 1997 to 1999. I should therefore note that I don't know Wagner (her tenure at GMU was several years before I arrived), and that her previous affiliation with GMU does not affect my judgment of the merits of her claim.
Concerned about Cass:
The LA Times reports that some liberal activists are concerned about President Obama's decision to nominate Harvard law professor (and one-time VC guest blogger) Cass Sunstein to be the administration's "regulatory czar" as head the Office of Information and Regulatory Affairs within the Office of Management and Budget. While Sunstein is quite liberal on some issues, and inflamed some on the right with his attacks on "extreme right-wing" judges, his work on administrative law and regulatory issues is more moderate and quite well-respected. From the LA Times: Though he is generally described as left of center, Sunstein's academic interests in regulation have led him to raise questions about the constitutionality of liberal favorites such as workplace safety laws and the Clean Air Act. He has embraced a controversial "senior death discount" that calculates the lives of younger people as having a greater value than those of the elderly.
Until recently such debates have taken place largely in the world of legal scholarship. But now that Obama has named Sunstein to serve as his regulatory czar, environmentalists and labor activists are digging into his voluminous body of work -- and wondering what policies might emanate from a man so dedicated to calculating the dollar value of every regulation. . . .
"If a Republican nominee had these views, the environmental community would be screaming for his scalp," said Frank O'Donnell, president of Clean Air Watch, a Washington-based advocacy group.
Instead, the response has been muted, as environmental and labor groups question the wisdom of criticizing the nominee of a popular president who has promised to support their agenda. The Center for Progressive Reform, a non-profit institute "working to protect health, safety, and the environment through analysis and commentary," was among the first to express concerns about the Sunstein nomination, and today they released a report critical of his approach to regulatory policy. CPR President Rena Steinzor says the group won't support or oppose confirmation as "because we’re not in that business," but they will likely be a source of ammunition for any who do decide to oppose Sunstein's confirmation, and several CPR member-scholars opposed the confirmation of Bush OIRA nominee John Graham.
My own view is that pro-regulatory groups have little to fear from Sunstein's confirmation. Whatever questions Sunstein may have raised about the desirability (or even constitutionality) of various regulatory programs, I cannot think of anything he has written that challenges the idea of an aggressive regulatory state. Sunstein's administrative law expertise and analytical rigor is likely to translate into greater regulatory authority for this administration, particularly insofar as he is able to goad federal agencies to strengthen the analytical and legal justifications for their proposed regulatory initiatives. In this respect, Sunstein could make the Obama Administration's regulatory initiatives more formidable and less vulnerable to judicial review, and that is an outcome I would think environmental activists and their allies would cheer.
Constitutional Mystery Explained!:
Last month, I happened to be at a gas station in Bloomington, Minnesota, just south of the Twin Cities, when I went inside to get a diet Coke and saw the following name on the door of the gas station:
Yes, that's right, the gas station was called Dred Scott Automotive. How could this be?, I wondered. Was it just a coincidence, and perhaps the gas station owner just happened to have the name Dred Scott, like the slave suing for his freedom in the infamous Dred Scottt v. Sanford? (It's happened before, although it may be a stage name.) Or maybe the gas station owner was a con law junky, and he thought it would be funny to name the station after one of the most infamous cases in all of constitutional law? Or maybe he was a very subtle racist, and he was trying to send a message that the station offered first class service — at least for the white man?
The answer turns out to be kind of interesting, at least to me. Scott's claim to freedom was based on his having spent years as a free man before being forced to move back to a slave state. Most of his time as a free man had been spent in the area of Fort Snelling, where he had traveled with the doctor who had purchased him in Missouri. From the opinion: The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the United States. In the year 1834, he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838. It turns out that Fort Snelling, then described as "situate[d] on the west bank of the Mississippi river, in the Territory known as Upper Louisiana," is in territory that is now part of the state of Minnesota: pretty near Bloomington, Minnesota, to be specific.
As I understand it, then, the area near Fort Snelling has a number of businesses that honor Dred Scott and the region's role in trying to give Dred Scott his freedom. As a result, when you're in Bloomington, you can get your car fixed at Dred Scott Automotive, and you can even play put-put at Dred Scott Minigolf. (Might want to wait for the spring on that one, though.)
"Scalia Judges Moot Court Competition":
The GW Hatchet has coverage of last week's moot court finals at GW. Justice Scalia presided, and he was joined by Judge Jeffrey Sutton of the Sixth Circuit and Judge Marsha Berzon of the Ninth Circuit. It was a terrific argument, I thought. I was particularly interested in this year's competition because half of it was a computer search and seizure question modeled roughly on United States v. Andrus. (I also helped write the problem and was a judge in the semi-final round, which was lots of fun.) The law school home page has more coverage here.
No Stimulus for Blago:
The current text of the House stimulus bill includes the following interesting provision:
None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois. The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.
Related Posts (on one page): - No Stimulus for Blago:
- Read the Stimulus:
Lords on the Take?
The London Times reports that four members of the British House of Lords are being investigated for possibly having taken bribes in exchange for legislative favors. To me, the interesting thing about this scandal is that any interest group would spend money and risk criminal prosecution by bribing the lords, since the House of Lords has only very limited influence on legislation.
For Harry Potter fans, a funny aspect of the scandal is that one of the accused lords is Lord Snape. Perhaps Snape only took the money to convince Lord Voldemort that he was truly evil and thereby further his efforts to infiltrate Voldemort's organization for the Order of the Phoenix. Voldemort himself has so far avoided investigation. Those who bribe the Dark Lord are probably too scared to rat him out.
Public Opinion Still Skeptical About Big Government:
The combination of an economic crisis and unified government is almost always a bad time for limited government. Recent events have already demonstrated that in spades.
However, there is a small ray of hope for free market advocates: public opinion data show that the majority of the public remain skeptical about big government. Question 19 on this recent Washington Post/ABC News poll shows that 53% of the public prefer "smaller government with fewer services" to "larger government with more services" (supported by 43%). Note that this question wording is slightly biased against the small government side because it lists a negative consequence of smaller government (a reduction in services), while omitting any negative consequences of larger government (such as higher taxes or increases in the national debt). Other surveys show that the majority of the public was opposed to the October bank bailout and also to the auto bailout. On the negative side, surveys show that a majority supports increased government spending to stimulate the economy, especially if the plan also includes tax cuts.
Public skepticism probably won't stop Obama and Congress from enacting significant expansions of government over the coming months, even though it probably did lead Obama to promise a "net spending cut" during the campaign. However, it could help free market advocates limit the damage. By appealing to the public's still strong suspicion of government, they might be able to force Congress and the administration to expand government somewhat less than they would otherwise. They might also be able to persuade the Democrats to increase the proportion of tax cuts in the stimulus plan and reduce the role of spending - as may already have happened to some extent.
To avoid confusion, I should emphasize that I am not claiming that the fact that majority public opinion coincides with my views on some of these issues proves that I am right. I have often emphasized that public opinion about political issues is heavily influenced by ignorance and irrationality. And that remains true even in cases where the public happens to agree with me.
Lawyers of the Right:
I am grateful to Eugene Volokh for this opportunity to post some findings from my book, Lawyers of the Right: Professionalizing the Conservative Coalition (University of Chicago Press 2008) and to seek your reactions.
The book is an account of lawyers’ roles in the conservative movement and class and cultural conflict among them. It analyzes these lawyers’ characteristics, values, professional identities, and strategies, and the extent to which they, and the organizations they serve, operate as a coordinated whole.
The lawyers examined in my book serve several strands of the conservative alliance that has coalesced behind the Republican Party during the past few decades. Most prominent among those elements are social conservatives, libertarians, and business interests – constituencies that pursue competing and sometimes contradictory goals. Despite their differences, these groups formed a successful coalition for many years, although the future of that alliance now seems uncertain.
One might expect lawyers to influence the likelihood of cooperation. In fact, lawyers may be among a relatively small set of occupational groups -- along with politicians, public intellectuals, political patrons, and perhaps religious leaders and journalists --who are well positioned to play such an integrative role. Lawyers’ common characteristics and interests might draw them together and link the constituencies they serve. Alternatively, they could be sharply divided along the lines of the interests they represent and thus contribute little to coordinating the alliance. One of the book's purposes is to assess the likelihood of those competing possibilities.
The book draws primarily from semi-structured interviews in 2001 and 2002 with seventy-two lawyers for conservative and libertarian nonprofit organizations. The interviews grew out of a project that I pursued jointly with John P. Heinz of the American Bar Foundation and Northwestern University and Anthony Paik of the University of Iowa. To define the set of lawyers to study, we drew a sample of conservative and libertarian nongovernmental organizations, using several complementary methods. I requested interviews with ninety-eight prominent lawyers for these organizations and interviewed seventy-two of them.
The “interviewees” included many of the best-known lawyers of the conservative movement, representing all of the major constituencies. They worked for conservative religious groups, abortion opponents, libertarian organizations, groups devoted primarily to business interests, affirmative action opponents, "order maintenance" groups (i.e., organizations concerned with crime and/or preserving the established social and cultural order), and mediator organizations -- which seek to appeal to all elements of the conservative alliance and to promote communication and cooperation among them. The lawyers served these organizations in various roles -- as organizers, officers, litigators, scholars, and consultants. The largest number were in Washington, D.C., but others worked in the South, Midwest and West.
There are striking differences among the lawyers who serve the primary constituencies of the conservative coalition. They work on different issues for different clients in different practice settings, and they are divided by social characteristics, educational background, values, geography, and professional identity. Religious conservatives generally are from rural and less economically privileged backgrounds, and many of them openly invoke God as a source of inspiration and guidance. Lawyers for libertarian groups, like their social conservative counterparts, tend to come from modest backgrounds and appear to be personally invested in the causes they serve, but they are less religious and more enamored with markets and personal liberty. Most of the business representatives come from economically secure backgrounds and describe their advocacy for business-oriented causes as work rather than activism. Lawyers for mediator groups differ from advocates for the other constituencies in their especially elite educational backgrounds, prominence, ties to the legal establishment, and commitment to identifying common ground.
If lawyers for the core constituencies come from different social backgrounds and hold different political commitments and professional identities, what social forces and institutions, if any, bring them together? The book considers experiences, interests, and organizations that may help forge common ground among lawyers who are divided by ideology, geography, and class. It focuses particularly on lawyers’ shared interest in promoting strategies in which they play leading roles and on the function of several important “mediator” organizations -- the Federalist Society and the Heritage Foundation.
Arizona v. Johnson:
Back in December, I blogged about the oral argument in Arizona v. Johnson, a Fourth Amendment case on the stop-and-frisk power. As I wrote at the time, "[a]t its broadest level, the case raises the question of whether a police can 'pat down' a suspect for weapons if the office reasonably believes the suspect poses a danger to him but there is no evidence that there is criminal activity afoot."
This morning the Supreme Court handed down the decision in a unanimous opinion by Justice Ginsburg. The Court limited its opinion to how this power applies in a traffic stop setting. It held first that the Terry v. Ohio power to detain is met in a traffic stop setting "whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation." Second, "To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." That is, the police can pat-down the passenger in a lawful traffic stop if the passenger is reasonably suspected of being dangerous regardless of what other crimes are suspected.
This is a very short opinion, but off the top of my head I think there are some interesting issues going on here. First, there is the question of the constitutional status of traffic stops: Are they essentially Terry stops, or are they just regulatory stops justified by probable cause to believe a traffic violation occurred that don't trigger the Terry rules? This opinion suggests that the Court largely sees traffic stops as largely equivalent to Terry stops. Second, there is the question of when a traffic stop ends: The Court finds "nothing" to lead the passenger to believe the traffic stop had ended, which to my mind suggests that traffic stops are ordinarily going to be considered ongoing until the officer affirmatively indicates that it is over. There's more in there, but I'll put this post up for now and may return to the opinion later today.
UPDATE: Am I right that under Johnson, an officer who makes a traffic stop now has the clear authority to order all the passengers to remain either in the car or near the car for the duration of the stop? The Court writes: "The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further needto control the scene, and inform the driver and passengers they are free to leave." (emphasis added).
Obama speaks strongly about American energy independence through conservation.
In his brief speech on energy today, President Obama addressed the conservation side (i.e., car mileage standards, weatherizing homes and government buildings, better transmission lines), saying nothing about nuclear power or offshore drilling. Further, he proposed to saddle the auto industry with increased fuel economy standards.
As it becomes clear that Obama’s nod last summer in favor of drilling was a feint, oil prices are rising. According to CNBC, at over $50 a barrel, they are now above their 50-day average.
UPDATE: Most oil futures have now dropped below $50 a barrel, down (so far) for the day.
Rubenfeld on Lochner:
In Revolution by Judiciary, Yale Law professor Jed Rubenfeld notes that the "Lochner era" Supreme Court invalidated several federal labor statutes on the seemingly reasonable grounds that they were beyond Congress' delegated power under the Commerce Clause. The Court held that Congress was regulating intrastate labor, not interstate commerce. But, Rubenfeld adds,
The embarrassment was that when the Lochner Court dealt with state labor statutes of the very same kind, the Court would strike down these measures too. The implication of the Lochner Court's "federalism" cases was that the regulation of bargaining, of wages, or of the hours of employment was constitutionally confided to exclusive state legislative control. Yet when the states attempted to exercise this control, the Lochner Court did not let them.
To support his claim, Rubenfeld cites Lochner itself, plus a case in which the the Supreme Court invalidated a state ban on "yellow dog contracts" (as it had also done to a similar federal law), and one in which the Supreme Court invalidated a D.C. (not state) minimum wage law.
Rubenfeld concludes that Lochner era jurisprudence was a "constitutional joke" that "did not deserve to be taken seriously as constitutional interpretation." Rather, the Court was simply "anti-anti-capitalist," and especially fearful of the socialistic tendencies of labor unions (something of an odd claim, given that few successful American labor unions were ideologically socialist during the AFL and Railroad Brotherhood-dominated Lochner era).
Rubenfeld's thesis is a bit of a challenge for me. I'm writing a book on Lochner in which--while certainly not denying the influence of ideology and historical circumstance on Supreme Court decisionmaking--I do take the Lochner line of due process cases seriously as constitutional interpretation, and in which I treat the federalism cases as entirely jurisprudentially separate from that line. Moreover, Rubenfeld's harsh view of Lochner era jurisprudence, while perhaps expressed more pungently than others have, seems to be reasonably common on both the liberal left and the conservative right.
[click below to continue reading]
To prove his case that the Court's jurisprudence was purely a mask for a substantive political agenda, Rubenfeld needs to show not simply that the Supreme Court invalidated an occasional state labor law on due process grounds--there is, after all nothing inherently inconsistent about holding certain federal labor laws are beyond the commerce power, and certain state laws violate the Due Process Clause. Rather, he needs to show that just about any law that was considered unconstitutional when passed by Congress to regulate the national labor market would also have been unconstitutional when passed by a state to regulate the state labor market.
There is at least one obvious counter-example to Rubenfeld's claim. The Supreme Court twice invalidated, by 5-4 votes, attempts by Congress to indirectly regulate child labor. But when the issue of direct state regulation of child labor reached the Court, the Court upheld it unanimously. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320(1913).
Beyond that, after Lochner, the Supreme Court upheld many state labor laws, sometimes unanimously, including, most prominently, workers' compensation laws, laws regulating the hours of labor of women, and maximum hours laws for all industrial workers. Less prominent state labor laws upheld by the Court included laws requiring washhouses or washrooms for mine employees; requiring that coal miners' pay be based on the prescreened weight of the coal that they produced; requiring railroads to pay their employees semi-monthly and in cash; requiring a minimum width pillar of coal between adjoining coal properties for safety; requiring a minimum width for entries of bituminous coal mines; requiring the enclosure of certain shafts or openings of bin building during construction; and holding mining companies liable for the negligent actions of their mine managers.
Congress did not pass analogous laws applying to the national labor market, in part because it's likely that almost no one thought that such laws would pass constitutional muster under the Commerce Clause. And it's nearly certain that if Congress had passed such laws, the Supreme Court would have invalidated them as beyond Congress's commerce power, even though the Court upheld the state laws.
One could point to additional problems with Rubenfeld's thesis. For example, Rubenfeld claims that the Lochner era Justices were not motivated by general anti-statist (or libertarian) sympathies, yet the most "Lochnerian" Justices were also the Justices most likely to argue in the Insular Cases that residents of U.S. territories were entitled to invoke the rights protected by the U.S. Constitution. Nor is it at all obvious that Rubinfeld could explain such early "civil liberties" cases as Meyer v. Nebraska or Pierce v. Society of Sisters via his "anti-anti-capitalism" thesis.
In short, Rubenfeld can sneer at Lochner era jurisprudence all he wants, and it certainly had its flaws. But the argument that Lochner era constitutional doctrine was simply a mask for the sort of narrow ideological considerations he identifies is not supported by the historical evidence.
Prof. Ann Southworth Guest-Blogging This Week:
I'm delighted to report that Ann Southworth will be guest-blogging this week about her new book, Lawyers of the Right: Professionalizing the Conservative Coalition. Prof. Southworth -- now of the new UC Irvine School of Law, but for 15 years before that a colleague of Jonathan Adler's at Case Western -- is a leading scholar of public interest lawyering, and her new work is to my knowledge the first scholarly study of conservative and libertarian cause lawyering.
I've long known and much admired many of the people in this movement, and I'm very glad to see that scholars are taking them seriously, and thinking about them seriously. I'm much looking forward to seeing Prof. Southworth's posts, and I'm sure many of you will find them equally interesting.
Sunday, January 25, 2009
Goldstein Speculates on Supreme Court Appointments:
You can find his post here. None of us have any idea, of course, but I would think that Kagan's nomination to be the Solicitor General hints that a future slot is hers to lose. (I stick by my election night prediction as to timing, incidentally.)
Big Government Bush:
Nick Gillespie offers a highly critical assessment of the Bush presidency in yesterday's WSJ. As Gillespie shows, Bush was a "big government" conservative, and even conservatives who supported the Bush Administration's foreign policy and counter-terror measures should be disappointed with other aspects of his legacy.
If increases in government spending matter, then Mr. Bush is worse than any president in recent history. During his first four years in office -- a period during which his party controlled Congress -- he added a whopping $345 billion (in constant dollars) to the federal budget. The only other presidential term that comes close? Mr. Bush's second term. As of November 2008, he had added at least an additional $287 billion on top of that (and the months since then will add significantly to the bill). To put that in perspective, consider that the spendthrift LBJ added a mere $223 billion in total additional outlays in his one full term.
If spending under Mr. Bush was a disaster, regulation was even worse. The number of pages in the Federal Registry is a rough proxy for the swollen expanse of the regulatory state. In 2001, some 64,438 pages of regulations were added to it. In 2007, more than 78,000 new pages were added. Worse still, argues the Mercatus Center economist Veronique de Rugy, Mr. Bush is the unparalleled master of "economically significant regulations" that cost the economy more than $100 million a year. Since 2001, he jacked that number by more than 70%. Since June 2008 alone, he introduced more than 100 economically significant regulations. . . .
Mr. Bush's legacy is thus a bizarro version of Ronald Reagan's. Reagan entered office declaring that government was not the solution to our problems, it was the problem. Ironically, he demonstrated that government could do some important things right -- he helped tame inflation and masterfully drew the Cold War to a nonviolent triumph for the Free World. By contrast, Mr. Bush has massively expanded the government along with the sense that government is incompetent.
That is no small accomplishment -- and its pernicious effects will last long after Mr. Bush has moved back to Texas.
Debate at USC:
I'll be at USC Law School tomorrow debating Prof. Clare Pastore, former Senior Counsel for the ACLU of Southern California, on legislative v. judicial paths to achieving same-sex marriage. I'm inclined to the former. It's being co-sponsored by the student chapters of the Federalist Society and the American Constitution Society. The debate begins at 12:30 pm and should go about an hour, with questions from the audience. If you come, stop by and say hello.
Public Environmental Concern in Decline:
The NYT reports on a recent poll that shows declining public concern about environmental problems, including global warming. This confirms that environmental problems remain "second tier" public concerns that are easily overshadowed by other issues, such as the economy or national security.
In the poll, released Thursday by the nonpartisan Pew Research Center, global warming came in last among 20 voter concerns; it trailed issues like addressing moral decline and decreasing the influence of lobbyists. Only 30 percent of the voters deemed global warming to be “a top priority,” compared with 35 percent in 2008.
“Protecting the environment,” which had surged in the rankings from 2006 to 2008, dropped even more precipitously in the poll: only 41 percent of voters called it a top priority, compared with 56 percent last year.
In contrast, dealing with the nation’s energy problems ranked sixth in the poll — just behind education and social security — with 60 percent of voters endorsing it as a top priority. . . .
Social scientists say that environmental concerns are often the first to fall off the table when any more immediate threat surfaces. Andrew Kohut, the president of the Pew Research Center, said a similar pattern was seen in the Pew poll after the attacks of Sept. 11, 2001, when second-tier issues faded in voters’ minds.
Of course, some advocates of aggressive climate change policies remain undaunted, and hope to spin such poll results in support of their policy positions.
some experts in climate and energy policy say, given Americans’ continuing concern about filling their gas tanks and lighting their homes, Mr. Obama might still succeed in shoring up public support by packaging his climate policy as part of a larger push for a safer, cleaner menu of energy choices.
The problem with this view is that public concern about energy security and the like tends to focus on energy prices. Yet any climate change policies that meaningfully limit greenhouse gas emissions will necessarily cause energy prices to rise. This will be a problem for climate change policy proposals until the public believes that global warming fears justify higher energy prices -- and I don't see many political leaders yet willing to make this case.
Sunday Song Lyric:
David's great post below inspired this week's song choice: The Clash's "Should I Stay or Should I Go" — a great song by a great band, off of their best-selling (though hardly best) studio album, Combat Rock. Here's one of the verses, without the Ecuadorian Spanish backup. This indecision’s bugging me
If you don’t want me, set me free
Exactly whom I’m supposed to be
Don’t you know which clothes even fit me?
Come on and let me know
Should I cool it or should I blow? I can still remember The Clash's performance of this song on SNL. A whole bunch of performances of the song are available on YouTube. The full lyrics can be found here.
[NOTE: Lyrics fixed]
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