The Volokh Conspiracy

You can watch the signing here.  The legislative success was the result, as in New York, of persuading a handful of Republicans and almost all Democratic state legislators to support marriage for same-sex couples.

It’s considered very likely that gay-marriage opponents will force a popular vote on this issue this November.  Same-sex couples won’t be able to marry until and unless that initiative is voted down.  Washington voters rejected an attempt to ban legal rights for gay families a couple of years ago, but “marriage” will be a tougher slog.

The Legal Adviser to the Department of State, Harold Koh, delivered the keynote address at a UVA Law School conference on issues of conflicts over sovereign equality on Friday morning.  Notre Dame professor Roger Alford (who delivered a paper on the Lago Agrio Ecuador dispute at the conference) comments on Dean Koh’s speech at Opinio Juris.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1985 when he was 31) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

Like Alford, I am sympathetic to all three and have no reason to doubt the first; his blog post goes on to other important observations.  But I want to add a comment on the question of where this notion that one speaks differently when one is in government than when one is purely an academic arises.  In Dean’ Koh’s speech, and in Professor Alford’s comment, the locus is the lawyer-client relationship.  Harold Koh is an advocate and, as he said in his UVA remarks (I was also in attendance), that distinct role sometimes means that he must accept that his clients will go for the “lawful but awful” alternative.  Moreover, there is a complicated question as to the hierarchy of legal advice – again, as he stressed, he is the Legal Adviser to DOS, but that makes him a very important lawyer amidst a group of also very important lawyers, including the DOD general counsel, the CIA general counsel, and many others – just in the national security field.

I am, as I indicated, very sympathetic to the position of the government lawyer or, really, policy-maker who must work to a position that is not entirely one’s own and must reflect other people’s views – and yet in the end be supported as the “position” of the administration.  That is hard for academics to swallow, as reactions to Harold Koh’s positions have sometimes shown; but, at the end of day, we academics live in David Lodge novels and have all the authority of the kibitzer. I of course include myself in that assessment.

One reason that the sense of betrayal and hypocrisy over positions that Harold Koh has taken as Legal Adviser has been so acute in some quarters, I believe, is that the academics indeed think of it as being a function of the lawyer-client relationship.  It’s a relationship that academics embrace, in one sense, but in another do not respect it – precisely because at bottom it seems somehow dishonest, insincere, and hypocritical even if a crucial aspect of an adversarial system.  In the context of “legal policy-making” in some loose sense rather than strictly part of the litigation system, it seems to be a bit of a dodge to reach conclusions at odds with one’s professorial declarations by reaching to advocacy for the client.

I don’t think this is the whole story, however.  The obligations at issue are more than just those of the attorney-client.  It is much more profoundly the obligations of a fiduciary – and those fiduciary obligations encompass policy makers in government who have no duties as attorneys.  One enters government at the senior policy-making role (including legal-policy of the kind that inevitably attaches to the general counsel positions, the senior DOJ and OLC positions, and others) as fiduciaries with a public trust.  It is democratically and constitutionally established by the election of the administration to which one belongs – and one is no longer a free agent, intellectually or politically.

One has to operate within the overall policies of this administration – and very often within the traditions, customary interpretations, formal and informal procedures, precedents, and prior decisions and understandings of the department and office.  This is not because it is legally binding strictly, because it might have nothing to do with “law” as such or “legal advice,” but because one is stepping into the shoes of, as Harold Koh once put it in remarking on his own office, a long line of predecessors upon whom others have relied.  The importance of fitting one’s own work within the long-run of the agency or department’s practices and judgments increases the legitimacy and trust that the public has in government; there are exceptions that require sharp breaks from the past, but the default position is that one operates as a fiduciary that looks to the past, sometimes long past, to the present administration and its decision-making, and to the preservation of the legitimacy of the office to the future and future administrations.

That is the obligation of a fiduciary – and it is far beyond the often merely instrumental obligations of the attorney-client relationship to advocate on a client’s behalf.  I have been impressed with Harold Koh’s concern to express that understanding of the role of senior government policy makers and lawyers.  I think he’s right about that, and right to emphasize it as a matter of good faith.  I hope that this understanding will carry over to future administrations, as well, of either party: it is part of the essential long-term coherence and legitimacy that makes democratic governance possible.  But it is far beyond the attorney-client relationship alone. It is a special form of agency, the agency of a fiduciary in a position of political authority.

No, claims the plaintiff in Wong v. Hard Drive Productions, in the Northern District of California. Here’s what Judge Young of the District of Massacusetts had to say about the issue recently:

[T]t is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854–55, 858 (5th Cir.1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant’s affirmative defense of “unclean hands”). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir.1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Compare Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 175–77 (S.D.N.Y.1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and “commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business,” holding that the films were “obscene” and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are “obscene” is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008).

Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05, — F.Supp.2d —-, 2011 WL 5161453 (D.Mass. 2011) (Young, J.).

If you happen to be around Charlottesville tomorrow, Friday, February 10, you might want to come over to a symposium on how to resolve conflicting legal norms in US and foreign courts:

The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries’ borders. ”Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship,” said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.

The keynote speaker for the conference will be the Honorable Harold Koh, Legal Adviser to the State Department, speaking at 9 am Friday; and the day’s panels feature many leading professors.  If the sponsors post up podcasts or video, I’ll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law.  The topic has always been around, but is an increasingly important one – conflicts of norms and how courts around the world should resolve them.  Leaving aside the much discussed question of constitutional norms and foreign courts, the whole body of “ordinary” law presents many conflicts questions in novel areas.

For example, the Second Circuit ruled against Chevron in its on-going dispute with Ecuadorian plaintiffs, and the US court talked about “comity” and respect for other legal systems in its opinion.  In other cases, on the other hand, many involving the Alien Tort Statute (which, as my earlier post noted, will be revisited by the Supreme Court), US courts essentially ignore local courts or courts that plainly have a closer nexus of jurisdiction in favor of jurisdiction of US courts found under the ATS.  As the amicus filings of Germany, the UK, and the Netherlands indicate in the Kiobel case – revisiting the ATS in the Supreme Court this term – this creates considerable friction with other states.  But there are many other situations that weren’t really seen in earlier periods – libel tourism, for example, and the clash of free expression and libel norms between the US and the UK.  So although the topic of conflict of legal norms appears quite abstract, it actually takes up some of the most pressing issues among court systems of the world.

I’ll be moderating one of the panels – and I had better get on the road down to C’ville.  Hope to see you there!

The Washington Post has an excellent front page story by Greg Miller today, “CIA digs in as Americans withdraw from Iraq, Afghanistan.”  The title largely sums up the story.  As uniformed military forces depart each of those theatres, the CIA will remain behind.  To do what?

The withdrawal of U.S. forces from Iraq in December has moved the CIA’s emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda’s affiliate in the country and countering the influence of Iran.  In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.

As President Obama seeks to end a decade of large-scale conflict, the emerging assignments for the CIA suggest it will play a significant part in the administration’s search for ways to exert U.S. power in more streamlined and surgical ways.  As a result, the CIA station in Kabul — which at one point had responsibility for as many as 1,000 agency employees in Afghanistan — is expected to expand its collaboration with Special Operations forces when the drawdown of conventional troops begins.

This seems to me the right strategy, particularly for addressing transnational terrorism, and in any case is almost certainly where the center of American public opinion stands with regards to both conflicts.  But we should probably add two things.  First, in Afghanistan – the strategically more important theatre – the CIA’s role is likely to be much more than simply gathering intelligence and engaging in paramilitary strikes, either using drones or its agents and Special Forces teams.  It is likely to be deeply involved in the coordination and funding of various local Afghanistan forces – in something that I suspect will look, in terms of the Agency’s historical role, much more like reversion to the mean.  Proxy forces integrated with gathering intelligence that enable drone and special ops strikes, but also utilized a forces able to help prevent consolidation of a regime that might provide safe haven for transnational terrorist groups, resurgent Al Qaeda or offshoots.

Second, it cannot be repeating sufficiently that the highly successful strategy of drone strikes and special ops owes its conversion from merely a tactic – and one that risked the “whack a mole” weakness of a tactic repeated serially – into a genuine strategy to the role of dense, often ground-level and human intelligence.  Leaving the CIA behind is a way of preserving that vital intelligence network, in addition to its paramilitary capabilities.  As someone once described it, the CIA in Afghanistan will be like the French Foreign Legion – last one to leave, if ever; the force that covers the rear of a strategic retreat under fire.  Or, going back to Miller’s article, as Navy Adm. William McRaven, remarked Tuesday, “I have no doubt that Special Operations will be the last to leave Afghanistan.” I have no doubt, either.

(By the way, I am looking forward to reading Michael A. Innes’ new book on proxy warfare when it appears in May, Making Sense of Proxy Wars: States, Surrogates and the Use of Force, with a forward by the eminent national security law scholar William C. Banks.)

Reading the blog and media reaction to Judge Reinhardt’s opinion for the Ninth Circuit in Perry v. Brown, it’s interesting how much it resembles the reaction to Judge Walker’s opinion at the District Court level. Most agree that both opinions were written solely for an audience of one, Justice Kennedy. In both cases, a lot of the reactions focus on whether the opinions successfully figured out a clever way to get Kennedy’s vote.

After Judge Walker’s opinion, for example, a lot of commenters thought Walker was particularly clever for announcing rather aggressive findings of fact that seemed to bleed over into the legal issues; the thought was that Walker could force the higher courts to see things his way because facts ordinarily are reviewed under the “clearly erroneous” standard instead of a de novo standard. After Reinhardt’s opinion, a lot of commenters have suggested that Reinhardt was particularly clever because he framed the issue narrowly under Romer, avoiding the broader questions of gay marriage.

I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.

Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you’re Reinhardt, make the opinion “per curiam” so it doesn’t come to the Court with your name on it.

Daniel Holt of the Federal Judicial Center reviews Rehabilitating Lochner for the H-South discussion list. (“An important contribution to the history of constitutional law and the Progressive era. The book is a valuable corrective to the work of historians who might reflexively sympathize with the Progressives and the criticisms of the Lochner decision.”)  At H-South’s request, I wrote a short response, and Holt responds to my response here.

The book is also the subject of a more critical book review in Texas Law Review’s “Dicta” on-line journal.  Author Jamie Fletcher concedes that the book is “beautifully written,” but concludes that I ultimately failed in what he asserts are my normative goals.  Given that I actually disagree with many of the positions that Fletcher  attributes to me (such as believing that “libertarianism is the only legitimate theory of constitutionalism”–I doubt it’s even a legitimate interpretive theory for the American Constitution) and certainly didn’t advocate these positions in the book, I happily plead guilty to failing to persuade readers on those points.

The Houston Chronicle reports, via ATL:

Karla Ford and Jonathan Chan expected to be spending this year studying legal briefs and litigation as second-year law students at Texas Southern University’s Thurgood Marshall School of Law. Instead, last spring, both students were dismissed after getting a D grade in their Contracts II course.

Now, the two are suing the school and their former professor, saying their final grade was “arbitrary and capricious.”

It’s been a while since I blogged about the case of Professor Lawrence Connell, the Widener Law Professor who was brought up on disciplinary charges for the way he taught his criminal law class. Connell then filed suit in state court against Dean Linda Ammons, the law school, and the two students whose complaints formed the basis of the disciplinary charges.

Today I received the following e-mail from Connell’s lawyer, Thomas Neuberger:

“All claims amongst all parties have been resolved amicably and Professor Connell’s employment with the University and Law School has been concluded. Specific terms of the resolution are confidential. So, we have no further comment.”

So the civil case is over, and Connell has left Widener. I sure would like to hear more as to what actually happened at Widener that led to the charges in the first place.

News that a Supreme Court justice appeared on a TV show would normally make me cringe. But I think this appearance by Justice Sotomayor on Sesame Street is really terrific. Kudos to Justice Sotomayor for being a good sport about it.

Putting aside the lack of a federal question, it seems a tad unfair to ignore the trespass before pressuring the parties to settle in way so favorable to the trespasser. But I suppose it’s nicer to hear the case than just deny cert as factbound and splitless. Hat tip: How Appealing.

Having read Judge Reinhardt’s opinion in Perry v. Brown, it seems to me that the weight of the analysis hinges on an interesting question: What counts as a rational basis to enact a symbolic law? Reinhardt’s basic reasoning is that Prop 8 is unconstitutional because it was merely symbolic. The ballot initiative didn’t do anything substantive: It amended the California Constitution to say that “Only marriage between a man and a woman is valid or recognized in California,” but it left in place domestic partnerships with most or all the rights of marriage.

According to Reinhardt’s opinion, this dooms Prop 8. The rational basis test requires some theoretical reason to think that the Amendment might improve society in some way. The gist of Reinhardt’s opinion is that a symbolic law like Prop 8 can’t improve society because it doesn’t make any actual difference. As a result, even if there are lots of rational reasons to ban same-sex marriage generally, it is irrational to forbid only the symbolism of the word “marriage.” Finding no rational utilitarian reason to forbid the word “marriage,” Reinhardt concludes that the law fails the rational basis test and must have been passed to express animus towards or disapproval of homosexuality.

I don’t find this argument persuasive. Prop 8 was a direct response to a judicial decision by the California Supreme Court. One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To see this, imagine you’re a California voter and you’re not sure if you think the state should recognize same-sex marriage. Then the California Supreme Court hands down the Marriage Cases, announcing by judicial fiat that the state constitution protects same-sex marriage. “There goes that activist California Supreme Court again,” you think to yourself, “interfering with the rights of the people to pass laws the democratic way.” You decide you want to teach the Justices a lesson. How can you do it? One way is the Rose Bird strategy: You can wait until a future retention election and vote the Justices out of office. But a second way is to support a voter initiative overturning the decision, even if only as a symbol that the California Supreme Court overstepped its bounds.

This is not only a hypothetical. Although I’m no expert on Prop 8, a quick google search confirms that this argument was made by at least some influential supporters of Prop 8. Here’s Newt Gingrich making the case that Californians should support Prop 8 to stop the imperial tyranny of activist judges and to restore democracy in California:

Different people will disagree on whether Gingrich’s argument is persuasive. But I would think the argument is at least rational under the standards of the rational basis test. And it doesn’t seem to have anything to do with animus towards or disapproval of homosexuality.

Why bother with the headlines of today when you can offer the headlines of tomorrow? Judge Reinhardt’s amicus brief in favor of striking down Prop 8 — aimed squarely at Justice Kennedy, naturally, and based largely on his opinion in Romer v. Evans — is available here.

UPDATE: Based on a quick skim, Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer AMK a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.

(Note: I think the link is fixed now. Thanks for the alert.)  Excellent feature article in New Scientist on the many, many ways in which drones are being used today in different places and functions around the world.  They include flying grids over Brazilian fields to see which ones need to be re-sown, in France to monitor tiny but important perturbations in high speed rail lines, and many more.  Drones are going to take on more and more functions in ordinary civilian life, private and governmental ones.  Both the FAA and European agencies are getting set to issue rules on drones that will regulate access and safety in airspace.  But in the meantime, the article notes:

[L]ast week real estate agents in Los Angeles, California, were ordered to stop using helicopter drones to shoot aerial movies of properties they are selling. “Although the FAA allows hobbyists to fly model airplanes for recreational purposes, that authority does not extend to operators flying unmanned aircraft for business purposes,” the Air Division of the Los Angeles police department reminded the California Association of Realtors.

I would be interested if readers knowledgeable in the regulatory law in these areas would let us know in the comments whether the LAPD is correct or not in this view.  I’m not expert in these areas and have no reason to believe it is not a perfect valid order, but would be interested in what expert readers have to say about it.  But the whole of the New Scientist article is well worth reading, to understand just how far drones are already entering civilian, and not only military, uses and how far they will go in the near future. (And I see now that Instapundit has linked the same article – that’s because great minds think alike.)

And don’t forget the commercials!

UPDATE: And speaking of commercials, some have already sparked controversy. Ford is unhappy about GM’s 2012 Mayan Doomsday ad. Also, an ad GOP Senate candidate Pete Hoekstra is running during the Super Bowl on Michigan stations has also sparked controversy.

This is the litigation I mentioned when the judge allowed it to go forward earlier this year; the judge has now ruled on the merits that the fact that President Obama’s father wasn’t a U.S. citizen doesn’t keep President Obama from being a natural-born citizen: Anyone born in the U.S., with narrow exceptions (such as that for the children of diplomats) is a U.S. citizen from birth, and therefore a natural-born citizen.

I’m not an expert on this area of the law, but the Georgia judge’s reasoning, which echoes the reasoning of a 2009 Indiana Court of Appeals decision strikes me as quite persuasive, as does the much more detailed reasoning in a Nov. 2011 Congressional Research Service report, which reaches the same result.

UPDATE: I originally accidentally omitted the link to the Georgia administrative judge’s ruling — I’ve now added it above.

A few months ago, I asked if anyone could recommend a site that can provide an audio spelling quiz for kids. One of the commenters recommended SpellingCity.com, and we tried it with great success. You (using your parent or teacher account) can set up spelling lists for your kids — there are many you can download from other sites — and then it will pronounce them for the children (who are using their child accounts). The children then type what they think is the right spelling; they get feedback; and you get to see the results on your parent account. There’s a modestly priced pay version, which is the one we’re using, but also a free version, which seems to have the necessary features as well. So it seems like a very nice teaching tool, and I thought I’d pass along my recommendation.

These days the defense of the products and output of the humanities – literature, criticism, the academic study of the arts and letters, etc. – is not an easy task.  At least it is not an easy task if one’s position is doubly, or even triply-conditioned:  First, a defense would have to be of critical thinking in reading and writing, verbal skills, in a forward sense that engages with a changing, technologically driven world, asserting the value of generalist skills in thinking in a world that prizes technical specialization as the key to wealth and success. Second, however, it would have to be a defense of a “traditional” conception of the humanities as a realm of close reason – but without saying that it was better how we “used to do it” and that arts, literature, and criticism should return to how they were when the critic was in college, because by and large it wasn’t so great then.  Third, it would be no defense at all of the humanities in their current academic incarnation, because they aren’t very much about critical thinking, teaching it to students or deploying it in its production; no defense of the current humanities academy, while at the same time urging that its reform does not mean a project in reaction and nostalgia.

The task of defending the humanities is difficult not merely because its academic guardians have by and large failed or given up on the intellectual underpinnings, however.  A big part of the problem is that the collapse of the disciplines in their traditional sense has convinced many that the basic problem of the humanities is not that they are badly taught, but that they do not, or no longer, speak to the ‘truths’ of the world.  One economist friend who shares my love of Stendhal remarked to me that it is not that Stendhal is not revelatory of the “world”; it is, rather that literature, as revelatory of human nature and the human world is anecdotal and personal, whereas today we have social science and data. The taste for story, narrative, and literature remain, but merely as taste, not truth. Indeed, he might have continued, we could probably come up with good evidence that our undeniable taste for story and narrative is the product of a biological wiring that seeks to impose order on the world in the form of a narrative; how, then, are we to see Julien and Mathilde as “revelatory,” given that they, too, are narrative par excellence? The same for criticism and the genres of thinking associated with the academic disciplines of the humanities that seek to explicate and interpret; one might as well return to Freud.

This is not, note, the customary criticism of the “useless” humanities that these are disciplines that don’t produce an obvious rate of return. This new dismissal of the humanities is distinct from the problem of trying to see their value in commercial life. After all, as Tyler Cowen pointed out in one of his finest early books, the most vibrant pursuits of the humanities – pace the prejudices of many humanities professors – are often the product of the most vibrant commercial societies.  Why?  Apart from having a society rich enough to support so complex a division of labor in a strictly material sense, I suppose it’s the relation of sense and sensibility. So much of a vibrant commercial life seems on the surface to consist of “sense” – doing the accounting and figuring the rate of return. Yet the stuff for sale, from ephemeral fashion to the design of the great public infrastructure, is actually “sensibility.”

The role of the humanities in this kind of vibrantly commercial society, one which celebrates the high arts and the low arts, high culture and pop culture, is to bring to bear sense upon sensibility, to provide the tools by which to analyze sensibility.  Part of which is culture for its own sake, but part of which serves, intentionally or collaterally, to more effectively sell sensibility.  Making sense of sensibility seems to me the fundamental task of the humanities; for one to care about that task, really care, one has to think that sensibility is something more than merely ephemeral and contingent taste.  Something more than exogenous preference, if you like.  One of the biggest problems today, in other words, is that we simply don’t much believe that the analysis of sensibility says very much, not merely because the humanities disciplines aren’t very good at their own traditional tools, but instead because there isn’t much at bottom to say about preference and taste.  Curation and categorization?  Sure. Analysis? Not really.

There are two different currents here. One is the humanities as disciplines giving up on delivering answers and, in their academic emanations, coming very close to giving up on reason as such. Apart from anything else, it is a position that leaves academic departments ill-equipped to accomplish the proposition on which universities sell these departments, the ability to teach broad analytic and thinking skills to undergraduates, both as a practical life skill and as a public good.

The other is partly an independent phenomenon and partly a move to fill a disciplinary vacuum created by the humanities’ academic collapse. It is, unsurprisingly, the rise and rise of social science as a claim to empirical explanation of human nature, on the one hand. And rationalist economics, on the other, providing a deductive structure that applies an elegant (in one sense) and brutalist (in another) reductivism that strips human motivation down to a simple machine that takes the raw materials of desires and runs it through, first, a narrow rational choice modeling, finally to be polished up and modified a bit by a little behavioral economics to adjust for “real” human beings. It’s as though the way to explain human beings is to put together a model that mimics the behavior of a human being and tweak until it can’t be distinguished from the human being: a Turing Test for social science modeling. Or maybe a Turing Test for being human. It’s only the humanities that gave up on the search for truths about human beings in the world. The economists and the geeks of social science never gave up the search, and they (and we) seem to have concluded that the answers are located in purely technical subjects through purely technical thinking. Or at least we behave that way.

It is possible, of course, that this turns out to be true.  Human psychology explained by increasingly ramified forms of behaviorism.  I doubt it – I think, rather, that one of these days we will conclude that our current reductionist forms of explaining human beings are too reductionist, and that today’s austere and “on the surface” behaviorism turns out to be as mistaken as the baroque multiplication of psychological entities that characterized Freud and psychoanalysis.  But leave that aside; the consequences for the humanities of turning to purely technical subjects for human understanding are grave.  To start with, the new social scientists and economists, working within the deliberately flat and barren propositions internal to their disciplines, strongly bounded rationality, have no larger frame of intellectual history in which to situate themselves, as part of the history of ideas, as something which is not entire of itself.  There’s a name for the temptation to which it gives rise, one we learned in classes in literature and classics: hubris.

It means, for another thing, that the humanities as disciplines, while they might still (barely) be a way of teaching certain forms of reasoning, don’t provide “content” in the intellectual reproduction of commercial culture – at least, not at the fundamental level, at the level of science and applied science.   They are not part of the production of new knowledge.  Success and advance for society lie in the innovations of technical and applied sciences alone – and the humanities lose a place in the production of these innovations, and become relegated to the status of mere items of consumption.  Literature, the arts, criticism, the essay – their social significance lies solely in their role as entertainment.  Entertainment is what one does in one’s free time, for fun. It is dispensable, and the humanities, too, their raw materials and their analytic products, likewise are dispensable. We didn’t use to think this about the humanities, its products, disciplines, and academic efforts. But that’s where we are now: fantastically produced and expensive, but their deliverances no longer can claim to reveal anything very important about the world.  That role has been ceded to STEM; and, well, The Rest is Noise.

With sadness I report the closure of one of the world’s great stand-alone book reviews, the Revista de Libros de la Fundacion Caja Madrid.  For the past twenty years, it has served as the leading literary review in the Spanish-speaking world – edited in Spain, and possessed of a genuinely global grasp of intellectual and cultural affairs.  It united deeply informed review essays together with unparalleled contemporary Spanish prose – exquisite and lapidary.  I was honored to serve as the Review’s political sciences editor.  I also authored several essays for it, on the United Nations and global governance, Francis Fukuyama on neoconservatism, Philip Bobbitt on terrorism and the state, that were translated into a Spanish that made me out to be much smarter than I am.  (The translator, the Revista’s Luis Gago, won awards for his translation, most recently, of The Rest Is Noise.)

The Revista closed because its patron, the Caja de Madrid, is one of the regional Spanish thrifts that has run into trouble – Spain having a particular economic trouble in that its national banks weathered the crisis well, but its regional thrifts financed Spain’s construction boom and bust. The economic trouble is linked to a particular political trouble in that the national banks were well supervised by national authorities, while the regional thrifts benefited from the perennial conflicts between national authority in Spain and the regions.  I suppose that if I were, say, British, and given my general views on the necessity of a demos for democratic governance, I would probably be a Euroskeptic.  But in fact the European project has pulled off several near-miracles, one of which is the integration of post-Franco Spain back into, well, civilization.  Elite cultural institutions like the Revista are part of that consolidation and its closure is an enormous loss.

The Revista’s closure prompts me to one general comment about book reviews.  The collapse of so many stand-alone book reviews as well as newspaper book sections has left a gap in the intellectual genre of criticism.  The kinds of book discussions that we often have in blogs is great – inviting authors to present their new books in blog posts, or online roundtable discussions with an author of a new book.  These are terrific new ways of presenting the ideas in books made much more accessible by blogs and online resources.  But they also have limitations, and one of the most important of these is, to put it baldly, the presence of the author directly on the stage of discussion.  Offering a comment on a book in which the book’s author will immediately respond changes considerably the sensibility that one brings to making the comment.

The book review as a genre of “criticism,” by contrast, depends upon a critical distance from the author in order to focus upon the book.  It is hard if not impossible to do if the author as a living presence is hovering nearby.  All these genres, the new and the old, have their places, but it is harder than it used to be in part for lack of outlets, especially when the new online resources see their advantage in the ability to bring the author into the discussion directly.  I’m unusual in the academic world in liking to write book reviews; I like to read books and like to write about them.  And I like reading and writing the sophisticated, polished reasonably short book review essay as its own genre.  Most academics see book reviews as a waste of time – not taken seriously in the academy, and are not worth the effort.  I agree that is all how it is – but alas, if I were honest about the writing I’ve done that I most like, it’s the highly polished, sentence by sentence edited and revised, review essays I’ve written for the Times Literary Supplement in particular.  I don’t think it has ever done anything for my academic career, even in the handful of cases when the essay was widely noted in the academy, but I think it’s much of my own best work and the stuff I most like.

So I was excited when the Lawfare national security law blog invited me to become the book review editor; short of becoming editor of the TLS or the Boston Review, this is something I’ve always wanted to do.  But Lawfare is not really a blog; it’s a highly edited online journal, run by a long-time journalist with serious editorial skills, and the editors agreed that we should aim in this particular subject area to reinvigorate the traditional book review essay, at whatever length.  I’m really pleased with this; reviewers have enthusiastically welcomed the instruction to write as though for a traditional book review, and to expect serious substantive and copy editing.  My larger point, however, is that the traditional book reviews cultivated a particular genre with a particular sensibility.  The best of the genre had a certain analytic toughness, and it has been harder to come by with changes in media platforms.

Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.

Philip Bobbitt is an old and dear friend, and I was privileged to meet his bride, the marvelous Maya Ondalikoglu, at a dinner in California last month.  This Above the Law story on the romance and wedding is not a gossip piece.  Professor Bobbitt agreed to be interviewed for the story, and it’s a quite lovely wedding announcement.  For those who don’t know Professor Bobbitt, take my word that the announcement he had wed took those of us who do know him, um, somewhat by surprise, save for the fact that the unexpected is so … so characteristically Philip Bobbitt. On behalf of the Volokh Conspiracy, congratulations and best wishes to the newly-weds.  Long life and happiness.

Here’s my favorite comment on the FOXnews.com story about the holding of Jones, in which I pointed out that the Supreme Court opted not to rule on whether a warrant was required:

every common citizens KNOWS what the SCOTUS ruled. leave it to the know nothing know it all lawyers to think they’re better than you.

And I would have gotten away with it, too, if not for commenter Christopher K.

I’ve been light on blogging for the past while, due to a relentless travel schedule and still-more relentless editors on several projects.  However, I did not want to let the day go by without congratulating my Beloved Wife, Jean-Marie Simon, for the online exhibition and commentary in the New York Times Lens photography blog today.  It’s an astounding number of photographs from a book forthcoming in Guatemala of photographs taken during that country’s 1980s civil war.  One interesting feature of this book is that it was produced with $20,000 raised from the crowd-sourcing fundraising site Kickstarter. Also, Beloved Wife, despite some initial skepticism when she began this project to republish her photographs from the 1980s, concluded that the book and photographs could be produced with as high or better quality in Guatemala.  The book by its nature is highly political; Beloved Wife covered a civil war, combat, many military and guerrilla operations, and the whole campaign of state terrorism and disappearances of that conflict; the photographs are sometimes graphic and violent.  Congratulations, Jean-Marie.

So concludes the Oregon Attorney General, in Op. 2012-1 (Jan. 19, 2012):

The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana….

Based on the reasoning in Emerald Steel [a recent Oregon Supreme Court decision], the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution…

Question …: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual’s marijuana along with the individual’s other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual’s release from custody, does the jail staff member or the individual, or both, violate federal law?

Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.

Sounds right to me, given the continuing federal ban on marijuana possession and distribution, with no medical marijuana exception. A state may, by excluding possession for medical purposes from state marijuana laws, choose to ignore medical marijuana possession (and distribution, to the extent that is legal under state law). But it can’t affirmatively give medical marijuana to someone, even in the process of returning the property to its owner.

Note: If you want to condemn — or praise — the AG’s analysis, please read the opinion first. The AG’s job, after all, is to describe what the law is, given the existing precedents, not to revert to first principles about what the law ought to be.

Here’s a revised version of an op-ed I published on the potential importance of the SOPA fight.  The original appeared in Hollywood Reporter (caution: paywall; free version is here)

What went wrong for SOPA, the entertainment industry’s proposal for stopping international piracy? And what does it mean for Hollywood’s future clout in Washington?

I had a ringside seat for the battle over SOPA, though not as a supporter.  I thought it would make Internet users more vulnerable to cybercrime. That was a problem that could have been fixed.  Instead, after a brief halt and some modest changes, the entertainment industry decided to press for a showdown.

And a showdown, of course, is what it got.

Why did it turn out so badly? The entertainment industry’s first mistake, then and now, is believing that its adversary is a group of other companies — Google, Internet service providers, and others — who are somehow hoping to profit from the Internet travails of the entertainment industry.

In fact, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture, this one is largely independent of the music, movie, and broadcast industries. In fact, people who spend hours on line instead of watching TV or going to movies will probably encounter the entertainment industry only when Youtube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood’s bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry these episodes may seem like collateral damage in the fight to stop piracy.  To the new pop culture, though, collateral damage and misuse of enforcement tools is everywhere, and it threatens everyone.  The content industry has made itself into the villain. Increasingly it looks like an occupying power; obeyed at gunpoint, despised for its hamhanded excesses, and resisted from every dark corner.  Unfortunately for the entertainment industry, as its customers migrate to the Internet, it loses not just their money but their hearts and minds as well.

The industry’s miscalculation about the source of the resistance to SOPA may have led to an even bigger mistake.  As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where both Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the last 25 years.  But when the fight went from the committees to the floor, and Wikipedia went dark, every member of Congress was expected to take a stand.

The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the Administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood had been a reliable source of funding for Democratic candidates, and that it would not tolerate defections.

But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second’s thought to intellectual property enforcement before coming to town. But many had drawn support from conservative bloggers.  They began to ask why they should vote against their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called “Internet freedom.”

That’s what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars, and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley.

We’ve seen this movie before.  Immigration reform and the DREAM Act, free trade agreements, and the USA PATRIOT Act all commanded impressive bipartisan support. For a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass email. The same could soon be true of intellectual property enforcement.

With SOPA, the entertainment industry pushed a generation of Republicans into choosing sides between Hollywood and the Internet.

They may never look back.

While I’m on the subject, talk about culture clash: I’ve written two SOPA op-eds, for Politico and Hollywood Reporter, and both have been put without notice behind paywalls. That’s never happened to me before, and it seems a little odd. Sure, it must sound good to the publishers, at least for a while.  But they aren’t paying op-ed contributors in gobs of cash, or in massive circulation.  They’re giving circulation to the contributors’ ideas.  Or not, in the case of the paywalled publications.

Contributors who actually care about communicating to the public have to wonder why they should offer content to an outlet with such a policy.  That only makes sense to contributors who have a strong reason to communicate just to the elite audience that pays to get these highly specialized publications — lobbyists or studio execs in the case of Politico and Hollywood Reporter. It makes sense, in other words, only to contributors who see their op-eds as an alternative form of targeted advertising.

Nothing wrong with that, either, except that it means the subscribers who pay for the publications have to read even the op-eds with their hands on their wallets, wondering, “Now why did he want me, and only me, to read that?” Ironically, then, in the long run the paywalled op-eds are less valuable than op-eds that appear for free.

UPDATE: The Hollywood Reporter assures me that the paywall is temporary — likely to last only a day or two while they’re promoting the new issue.  So, uh, never mind.  When the public link is available, I’ll add it.

UPDATE 2: Done.

Because of numerous conflicting commitments, I have not blogged as much as I would have liked over the last two weeks. In addition, blogging has been impeded by the fact that our recent transition to a new platform has (hopefully only temporarily) wrought havoc with the VC archives. I rely heavily on links to old posts in many of my new ones, so as not to have to repeat in detail in-depth arguments that I have already made elsewhere. We hope to have these issues resolved soon, and then I have a large number of topics I intend to get to. So please bear with me for what I expect will only be a brief additional delay.