Saturday, June 11, 2005

W.V. Court Vindicates Self-defense Right for Employees:

In Feliciano v. 7-Eleven, a masked woman with a gun attempted to rob the 7-Eleven where Feliciano worked. While the robber was distracted by another employee, Feliciano grabbed her gun, and held her captive until the police arrived. "Following this incident, 7-Eleven terminated Feliciano, who was an at will employee, for failure to comply with its company policy which prohibits employees from subduing or otherwise interfering with a store robbery."

The West Virginia Supreme Court cited numerous precedents showing that the right of self-defense is very well-established and substantial public policy. Accordingly:

we hold that when an at will employee has been discharged from his/her employment based upon his/her exercise of self-defense in response to lethal imminent danger, such right of self-defense constitutes a substantial public policy exception to the at will employment doctrine and will sustain a cause of action for wrongful discharge. Consistent with our prior precedent, we hold further that an employer may rebut an employee's prima facie case of wrongful discharge resulting from the employee's use of self-defense in response to lethal imminent danger by demonstrating that it had a plausible and legitimate business reason to justify the discharge.

Related Posts (on one page):

  1. Comment on Firings for Self-Defense:
  2. Firings for Self-Defense:
  3. W.V. Court Vindicates Self-defense Right for Employees:

Friday, June 10, 2005

Slow News Day at National Public Radio: Proof here, from today's "All Things Considered." My written testimony before the House Judiciary Committee is available here. My article explaining the need for a statutory suppression remedy is here.
Redefining "Sexual Torture":

What interrogation tactics should be allowed, especially for people to whom we should apply the Geneva Convention (because they are lawful combatants covered by the Convention, or unlawful combatants to whom we have unilaterally agreed to extend Convention protections) is a difficult question, on which I have little to add. But I do think that in discussing the subject, both critics and defenders of various practices should call things by their proper names.

Consider this item in The Guardian (UK):An American soldier has revealed shocking new details of abuse and sexual torture of prisoners at Guantánamo Bay in the first high-profile whistleblowing account to emerge from inside the top-secret base. . . .What's the "sexual torture" that the article then gives as an example? Here are the only materials that relate to sex:

Among the most shocking abuses Saar recalls is the use of sex in interrogation sessions. Some female interrogators stripped down to their underwear and rubbed themselves against their prisoners. Pornographic magazines and videos were also used as rewards for confessing.

In one session a female interrogator took off some of her clothes and smeared fake blood on a prisoner after telling him she was menstruating. 'That's a big deal. It is a major insult to one of the world's biggest religions where we are trying to win hearts and minds,' Saar said. . . .

This may or may not be acceptable. Giving porn as a reward hardly seems like a Geneva Convention violation; taking off one's own clothes doesn't seem particularly problematic, either, though it may well be embarrassing to the prisoners; rubbing up against to people may be more problematic; I don't quite know what to think about the fake blood. I also realize that they may have been taking advantage of the prisoners' sense of modesty, and of their religious taboos. One can debate to what extent this is proper, effective, or good policy given how it might look to outsiders.

But surely "sexual torture" is a pretty substantial exaggeration of what the article describes, even as to the most potentially troubling items.

Craziest Tort Ruling Yet Issued by a State Supreme Court:

My nominee, not surprsingly, is from New Jersey (which provides several other candidates), Canesi ex rel. Canesi v. Wilson 158 N.J. 490, 730 A.2d 805 (1999). Mother takes Provera during pregnancy. PDR tells physician to warn mother about possibility of congenital defects, including limb reduction defects. Doctor negligently fails to warn. Mother gives birth. Baby has limb reduction defect. Scientific evidence shifts. Evidence accumulates that Provera does not cause limb reductions. PDR drops warning. Mother sues doctor for "wrongful birth." None of mother's experts is willing to testify that there is any relationship between Provera and limb reduction defects. New Jersey Supreme Court nevertheless holds that mother should be able to recover the costs of raising her baby, because she likely would have aborted the baby had she been informed of the risks from Provera.

The majority claims that it would not approve the award of damages to a mother not apprised of a risk "completely unrelated" to the damage suffered by her baby, but they never explain why. If a mother can claim damages for not being warned of a limb defect not in fact caused by Provera, simply because other congenital defects are caused by Provera, why shouldn’t the mother be able to claim damages for, say, not being warned about a genetic risk of Tay Sachs when her baby was born with Spina Bifada? In either case, the mother might have aborted the baby if she had been informed of the risk, and in either case, the harm was ultimately not related to the risk not warned against. The majority and the concurrence suggest that the risk of limb defects from Provera is "not proven" not "nonexistent," but they provide no evidence that disputes the dissent’s contention that Provera does not cause limb defects.

Justice Pollock, dissenting, sums things up well: "Under the majority opinion, the parents of a child born with congenital defects may maintain a wrongful birth action against physicians who failed to warn the mother of the potential adverse effects of a drug that did not cause the defects. The import of the holding is that the parents need not prove that the drug was the proximate cause of the birth defects that give rise to the action. All the mother need prove is that she would have aborted the fetus if apprised of potential risks, even if the risks never materialized."

I'm currently writing an article responding to a piece that actually praises Canesi as a model decision.

Responding to Critics (1): A New Test of the Mismatch Theory:

The basic argument of Systemic Analysis is simple: if there is a very large disparity at a school between the entering credentials of the “median” student and the credentials of students receiving large preferences, then the credentials gap will hurt those the preferences are intended to help. A large number of those receiving large preferences will struggle academically, receive low grades, and actually learn less in some important sense than they would have at another school where their credentials were closer to the school median. The low grades will hurt their graduation rates, bar passage rates, and prospects in the job market. This is what I call the “mismatch effect.”

My paper tested this idea by comparing the outcomes of whites (who generally receive small or no admissions preferences from law schools) with blacks (who generally receive large, race-based preferences) to compare the outcomes of students who start with similar credentials. My results are robust and, as I’ll discuss in coming days, have withstood criticism pretty well. But I and everyone else agree that it would be preferable to compare blacks with other blacks. In other words, the ideal control group for examining blacks who receive large racial preferences would be a group of blacks who received smaller preferences, or no preferences at all.

As I discuss in my Stanford “Reply to Critics”, such a comparison group not only exists – we now even have data on their outcomes. After Systemic Analysis had gone to press, Ian Ayres and Richard Brooks at Yale pointed out that the Law School Admissions Council, in one of the surveys administered to students in its Bar Passage Study (a major source for my paper), had asked the students in detail about how they applied to, and selected, the law school they attended. About ten percent of the 1800-odd blacks in their study reported that they had chosen to pass up their “first-choice” school even though they had been admitted to that school. Most of these students apparently went to a lower-choice school because of financial aid offers or for geographic reasons. The data suggests that these black “second-choice” students had credentials substantially closer to those of their classmates. Compared to other blacks, these blacks closed nearly half the credentials gap.

These “second-choice” students are not a perfect control group, of course – no one was randomly assigned to attend schools offering different levels of racial preference – but it is about as good a chance to test the mismatch theory as we are likely to have for some time. If the theory is right, then the second-choice students should have better outcomes: higher graduation rates and more success on the bar. In the table below, I make predictions about how the blacks going to their second-choice schools should perform, based on simple linear assumptions (if blacks going to second-choice schools close one-third of the credentials gap with their classmates, they should close a proportionate amount of the outcomes gap, once one controls for index differences).

If the theory is wrong, in contrast, then of course the blacks going to second-choice schools should have about the same outcomes as blacks who took full advantage of the preferences they were offered. In the data presented below, we’d expect the blacks going to second-choice schools to do slightly better, since they somewhat better index scores than the average black law student (but this difference alone would only close about one-eighth of the gap in outcomes).

The actual outcomes look like this:


White Success Rate

Success Rate for Blacks Other Than Those Going to Second-choice school

My prediction of success rates for blacks going to second-choice school

Actual Success Rate for blacks going to second-choice school

Graduate from Law School





Pass Bar on First Attempt





Pass Bar Eventually





Proportion of Original Cohort Becoming Lawyers





These are pretty remarkable results. The “mismatch” predictions are either right on target or, in some cases, too low. The differences in success rates between black law students generally and those going to their second-choice schools are huge. As with everyone else, the black second-choice students’ outcomes depend heavily on their grades. But these blacks are substantially less mismatched than other blacks, and they get substantially higher grades (they average about ten percentile points higher in their classes – another outcome exactly in line with predictions).

Many critics of Systemic Analysis, when they come to the question of why black law students have such low graduation and bar passage rates, either offer no explanation or rather wearily suggest a “something about race” problem. These data offer a very clear example of how well blacks can perform.

There are two sorts of objections one might raise about this data. First, are the samples involved large enough to produce statistically significant, reliable results, or could these results somehow be a fluke? And second, is there some way that the blacks going to second-choice schools are systematically different (other than their slightly higher credentials) from other black law students? I think the answers are (a) the results are very reliable and (b) there are no alternative explanations for these results. But these require slightly longer explanations, and I’ll elaborate in my next post.

Prescription Drugs and Drug Abuse:

A few days ago, I questioned Justice Thomas's statement that "[U]nder the [Controlled Substances Act], certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use -- drugs like morphine and amphetamines -- are available by prescription. No one argues that permitting use of these drugs under medical supervision has undermined the [Act's] restrictions."

I had meant to blog a link to Mark Kleiman's thoughts on the subject, but it fell through the cracks. But better late than never; check it out. Here are some excerpts:

It depends, both on the rigor of controls on prescription drugs and on the availability of non-pharmaceutical supplies of the drug in question or substitutes for it.

Dexamphetamine used to leak massively from the prescription market into the illicit market . . . .

Morphine doesn't leak much because there's not much illicit demand for it, but hydromophone (dilaudid) and miperidine (Demerol) are much sought-after as heroin substitutes.

The semi-synthetic opioids hydrocodone (Vicodin) and oxycodone (Percodan, Oxycontin) have thriving diversion markets. . . .

In the cannabis case, insofar as the "buyers' clubs" function as convenient retail outlets, they may do a little bit to increase the availability of pot for non-medical use, though of course the places most receptive to the presence of such clubs tend to be the places where strictly illicit cannabis is easiest to obtain. But the ubiquity of the illicit cannabis supply, in both geographic and social space, greatly reduces the impact of making it medically available. . . .

The Silence of Justice Kennedy: In my earlier post, I failed to link to my NRO article, The Ninth Circuit's Revenge. I have now done so below, and also here.

As for Orin's defense of Justice Kennedy, there is very much that could be said, but I will limit myself to the following. Justice Steven's opinion is a sweeping limitation of Lopez and Morrison. So saith Justice O'Connor and, by joining her opinion, the author of Lopez and Morrison, Chief Justice Rehnquist. Justice Kennedy had the means available to him of concurring in the result while explaining how the outcome in this case was consistent with his concurring opinions in Lopez and Morrison: He could have written a concurrence like Justice Scalia did. Had this been so easy a task as Orin believes, I would have expected him to have done so. But I think this would have been hard for him and his silence is circumstantial evidence I am correct.

Orin says that Raich would not "could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement." But by limiting the substantial effects/aggregation principles of Wickard to intrastate economic activity, Lopez and Morrison subtly undermined that "settled" understanding, which is why these cases have been so much discussed. Justice Kennedy's concurring opinions added an "external" rationale for checking federal power based on a respect for the traditional law enforcement function of states. By his silence, Justice Kennedy failed to explain why this rationale does not apply with even greater force in Raich than it did in Lopez or Morrison (as we argued in our briefs).

Justice Kennedy's concurring opinion in Lopez quoted by Orin is completely consistent with Chief Justice Rehnquist's interpretation of Wickard (and ours in Raich):
. . . it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.
Here there are NO commercial activities of any kind involved, along with ZERO connection to an interstate market.

It is not just the facts of Wickard that differ from Raich. It is every aspect of the case, including the scope of the statute in question, the nature of the economic activity involved, and the rationale of the Court for why it is within the power of Congress to reach this intrastate activity. There is only one respect in which Wickard resembles Raich: the way Wickard has been (mis)taught over the years by law professors. For years Wickard was mistakenly taught as though it authorized Congress to reach any activity that serves as a substitute for a market activity. Justice Steven's opinion in Raich now appears to adopt that misinterpretation of Wickard as law.

It is generous of Orin to defend Justice Kennedy, but Justice Kennedy should have been capable of explaining himself in a concurring opinion. My original point was that, for whatever reason, he chose not to.
Congratulations: Congratulations to our occasional co-blogger Michelle Boardman for her appointment as a Deputy Assistant Attorney General at the Justice Department's Office of Legal Counsel. Press release here.

Thursday, June 9, 2005

Commerce Clause Satire:

I'll bet you'd never seen those three words together before. (Neither had google, by the way.) In any case, it's at Fafblog (thanks to Hit & Run for the pointer). Excerpt:

"Insolent pot!" says Giblets. "Be more vendible!" "Giblets why are you yellin at that pot plant?" says me. "Giblets is trying to turn it into commerce," says Giblets. "But buying and selling it is too much work. He wants it to be commerce NOOOOOWWW!" "Silly Giblets, everything is commerce!" says me. "Let's step into this maaaagical schoolbus and we will learn all about Our World Of Commerce!"


When you hold a ball in the air it has POTENTIAL commerce. When you let it go the potential commerce turns into KINETIC commerce, which makes it faaaaalllllll through the air! It is caught by Congress or gravity. Classroom Learning Challenge: Levy a tariff on the ball before it hits the ground! . . .

Pressure on Companies to Pay Money for Someone's Participation in the Slave Trade:

Jeff Jacoby aptly criticizes this movement.

UPDATE: Eric Muller disagrees; I think there's something to his criticism of one point that Jacoby overstates, but I find Jacoby's argument to be generally quite sound. To quote Jacoby, "It would be unthinkable to make individuals responsible for the wrongdoing of their distant ancestors, or to require them to enrich the great-great-great grandchildren of the victims. The overwhelming majority of nonblack Americans have no family connection to slavery in any case -- most of us are descended from the millions of immigrants who came to this country after the Civil War." (I'd add to that the impropriety of making the great-great-great grandchildren of Northern soldiers who died or were crippled in the war pay for the harm done by Southern slaveowners.)

Quote Query:

Former Congressman Paul Findley, writing on The Huffington Post, writes:

As Condoleezza Rice once said: "We have an Israel-centric foreign policy." How true. . . .

This struck me as quite surprising, so I did a google and LEXIS search for this quote to get more context, but I couldn't find it. Searching for "Rice" near "Israel-centric," I found a Robert Novak column that said:

In private conversation, National Security Adviser Condoleezza Rice has insisted that Hezbollah -- not al Qaeda -- is the world's most dangerous terrorist organization. How could that be, considering al Qaeda's global record of mass carnage?

In truth, Hezbollah is the world's most dangerous terrorist organization from Israel's standpoint. While viciously anti-American in rhetoric, the Lebanon-based Hezbollah is focused on the destruction of Israel. "Outside this fight (against Israel), we have done nothing," Sheik Hassan Nasrallah, the organization's secretary general, said in a recent New York Times interview. Thus, Rice's comments suggest that the U.S. war against terrorism, accused of being Iraq-centric, actually is Israel-centric.

But that surely can't be it, since that's Novak characterizing Rice's attitude as being implicitly Israel-centric, and not a quote from Rice saying "We have an Israel-centric foreign policy."

Can any readers help me out? If you have any pointer to a place where Rice said this, please e-mail me at volokh at

Key to You're the Top,

in Slate. (I figure that since Sasha is off-blog due to clerking, I have to fill in for him now and again, and this is the sort of thing he'd link to.)

Scalia's Vote In Raich: I've read lots of speculation in the blogosphere that Justice Scalia voted in the government's favor in Gonzales v. Raich because he's a social conservative who wants the government to crack down on drugs. If that's true, though, why did he vote in favor of the marijuana grower in Kyllo v. United States? And why did he vote in favor of the crack dealer in United States v. Booker? Is the idea that Scalia is principled when he votes in favor of defendants, but is just a social conservative when he votes in favor of the government?
The Case for and Against Administrative Subpoenas: Michael Woods, a very smart lawyer who was at the FBI when I was at DOJ, makes the case for giving the FBI administrative subpoena power in terrorism cases in this op-ed today in the Washington Times.

  It's by far the best argument I have seen, but I'm still not convinced. I prefer the current solution offfered in part by Section 215: require agents to get a court order, even under a low threshold. I would then allow the same sort of judicial review as you would allow for a subpoena.

  The reason I would require a court order isn't that I think judicial review under a relevance standard puts up such a strong barrier. It doesn't. Rather, getting FISA court approval is helpful because only DOJ can go to the FISA court and apply for a Section 215 order. To get the court order, the FBI has to clear the application through another part of the executive branch, namely DOJ's Office of Intelligence Policy Review.

  To an outsider, this may not seem like a big deal. After all, technically it's one part of DOJ asking for permission from another part. But in practice, it creates a significant common-sense check on the FBI's power. DOJ can not only ensure that the application meets the legal threshold, it can also ask about the overall course of the investigation and ensure that the request for information is appropriate as a matter of judgment. That check is missing under the administrative subpoena standard.

  Finally, I can't help but wonder whether the push for administrative subpoena power has been eased by the overreaction to Section 215, the so-called library records provision of the Patriot Act. By singling out Section 215 as a target, critics of the Patriot Act made it seem sui generis. As a tactical matter, this let the FBI say that it was willing to eliminate the power in favor of the subpoena power instead. As best I can tell, the fact that the subpoena power is greater than the Section 215 power has been more or less lost in the shuffle, as the subpoena power is more familiar and harder to hype than Section 215. If I'm right about that, it may turn out that Section 215 hype will end up helping to expand the scope of government power rather than limit it.

Related Posts (on one page):

  1. The Case for and Against Administrative Subpoenas:
  2. Should the FBI Have Administrative Subpoena Authority?:
Is Resisting Genocide a Human Right?

That's the title of the law review article in progress that Paul Gallant, Joanne D. Eisen, and I have posted as a Working Paper. Conducting an in-depth study of the genocide in Darfur, Sudan, and also discussing other genocides, the article details the inadequacy of many of the international community's response to genocides, including "targeted sanctions" or international peacekeeping forces. Examining international legal authorities such as the Genocide Convention, the Universal Declaration of Human Rights, and the International Court of Justice, the article demonstrates that groups which are being subjected to genocide have a legal right of self-defense. International treaties, Security Council arms embargoes, or national gun control laws cannot lawfully be enforced in a manner which prevents self-defense resistance to a genocide in progress, because under international law, the prohibition against any form of complicity in genocide takes legal precedence over lesser laws. We welcome your comments, which can be sent to the e-mail address at the lower left of my home page.

Chicago Public Radio, Odyssey Program:

Henry Farrell of Crooked Timber and I are about to be on it for about an hour (until 11 am Pacific), talking about blogging.

Justice Kennedy's Vote in Raich: In his National Review piece on Raich, co-blogger Randy suggests that Justice Kennedy's vote in the case was inexplicable:
  Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy [voted to reverse in Raich because he] has a zero-tolerance approach to drugs. Justice Kennedy's deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. . . . How [Kennedy] reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to.
  But is Kennedy's vote in Raich really such a mystery? Justice Kennedy broadcast a decade ago in his Lopez concurrence that while he valued federalism, and he was going to enforce federalism values in a number of contexts, he was not going to favor any positions that upset the basic settled view of the scope of the Commerce Clause:
[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.
  I realize that Randy believes his argument in Raich successfully distinguished Wickard v. Filburn, such that it was possible to rule in his favor without overruling any cases. But the relevant question is not whether Raich can be distinguished from Wickard on its facts; the question is whether Randy's argument in Raich could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement. On the latter question, I think the answer is plainly no. The Raich case asked the Court and Justice Kennedy to shift the settled understanding of post-Wickard Commerce Clause doctrine in a very real and important way. Justice Kennedy indicated in 1995 that he was going to decline such an invitation, and that's exactly what he did a decade later in Raich.
Ninth Circuit Reverses Supreme Court! My column on Gonzales v. Raich, The Ninth Circuit’s Revenge, is now up on National Review Online. Here is how it begins:
The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit's ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.

Of course, my clients and I were betting the other way. Either all five federalist justices would hold to their principles, or a few of the more liberal justices might decide to follow the "precedents" of Lopez and Morrison and make an exception to their principled stance in favor of federal power out of concern for the tens of thousands of suffering patents who acted through the democratic processes of their states to enact compassionate use acts. It was not to be.

I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent. I agree that unconstitutional precedent should not be followed (see my take on precedent here). I credit even more the three dissenters. . . .
Raich does nicely illustrate why originalists need not be too bothered with the charge that they would reverse "precedent." The four dissenters in Lopez continued to dissent five years later in Morrison and maintained their opposition to Lopez even ten years later in Raich. During oral argument I confronted the same arguments made by Justices Souter and Breyer in their Lopez and Morrison dissents long after they had been rejected the Court.

What about the "precedent" of Wickard v. Filburn so stressed by the Court in Raich? I won't rehash all the ways that, as we argued, Wickard was distinguishable. For on thing, even the New Deal Congress did not attempt to reach backyard gardens; the Agricultural Adjustment Act even exempted small commercial(!) farms. Nor does the rationale that was used to justify reaching Roscoe Filburn's wheat apply to Angel or Diane. Justice O'Connor explains all this in her dissent. The only justices who purported to be compelled to follow the precedent of Wickard were those who, for whatever reason, wanted to reach the result they did. Following Wickard was simply a means to that end. We asked the Court to reverse Wickard if it thought it was a barrier to ruling for us (this was included especially for Justice Thomas who won't reconsider precedent unless specifically asked) but we honestly did not think that reversing Wickard was at all necessary.

To insist that originalists must follow precedent when no one else does (when they don't want to) is less than compelling. Especially when there is good reason to conclude that no precedent should stand in the way of correcting a mistaken interpretation of the Constitution. Like many others, I think Wickard was wrongly decided. The fact that it is a precedent should provide no barrier to its reversal. But, as I said in my oral argument, Gonzales v. Raich now replaces Wickard v. Filburn "as the most far reaching example of Commerce Clause authority over intrastate activity" ever decided by the Supreme Court. For this reason, it will be studied by generations of Con Law students until the day it is finally reversed in favor of the correct reading of the Commerce Clause and Necessary and Proper Clause.
Suitably Flip:

New libertarian/conservative blog looks pretty interesting--here.

Would a Conservative Court Roll Back the New Deal?

Putting the debate over judicial nominees in perspective, an important Federalist Society white paper says "No".

The addition of strict constructionist or "conservative" justices to the Supreme Court will not undermine the basic tenets of the new Deal and will not sound a clarion call for the renewal of pre-New Deal jurisprudence.... Even if certain justices might want to invalidate certain pieces of legislation, the Court's strong adherence to stare decisis further ensurese that economic and civil rights laws will remain Constitutionally valide.

Related Posts (on one page):

  1. Would a Conservative Court Roll Back the New Deal?
  2. Mike Greve on the "Constitution In Exile":

Wednesday, June 8, 2005

Unusual Motive For Computer Hacking: The Drudge Report links to a story of an arrest in an important computer hacking case in London:
  A London man described as the "world's biggest computer hacker" has been arrested.
  Gary McKinnon, 39, was seized by the Met's extradition unit at his Wood Green home.
  The unemployed former computer engineer is accused of causing the US government $1billion of damage by breaking into its most secure computers at the Pentagon and Nasa. He is likely to be extradited to America to face eight counts of computer crime in 14 states and could be jailed for 70 years.
Why did he do it, you wonder? According to his friends,
  [McKinnon] was desperate to prove that the Americans had mounted a huge cover-up to deny his belief that aliens had visited earth.
  Andrew Edwards, who has known McKinnon since their days together at Highgate Wood comprehensive, said in 2002: "Gary told me all he was doing was looking for proof of a cover-up over UFOs.
  "He's been interested in UFOs for some time and believes the Americans are holding back information - although he didn't find any proof."
Maybe he just didn't look hard enough.
Bill O'Reilly Cancelled For Lack of Interest: No, not his show; his week-long Caribbean cruise. The story's clever ending:
"I'm very, very disappointed," said liberal political comedian Al Franken. "My wife and I had made it our vacation, and we really had been looking forward to the cruise and hearing Bill O'Reilly talk about the American values all while sailing the high seas."
Thanks to Punch & Judy for the link.
Still Outrageous: Mark Kleiman has an update in the disturbing case about the four white men in Linden, Texas who brutally beat a retarded African-American man and received only light sentences. Fortunately, the Chicago Tribune is on the case.
Systemic Analysis of Affirmative Action in American Law Schools: Responding to the Critics

Although my article on affirmative action appeared in the Stanford Law Review less than five months ago, a legion of critics has sprung into print, publishing rebuttals with very non-ivory-tower speed. By my (probably incomplete) count, eleven articles entirely devoted to “debunking” Systemic Analysis have been published or accepted for publication in legal or education journals, and dozens of more informal critiques have appeared in the media and a variety of websites.

Through most of this period, I’ve tried to focus on taking the criticisms to heart – understanding the arguments, looking closely at the evidence, and trying to separate the wheat from the chaff. I am publishing a lengthy response to critics in the May issue of the Stanford Law Review (which probably won’t be out for another four weeks) and a shorter response in the June issue of the Yale Law Journal (which should be out in two or three weeks). These responses tend to be pretty technical and very detailed. What I would like to do in this space, for the next couple of weeks, is something more informal and, I hope, more interactive.

So starting Friday, June 10th in this space, I will examine seriatim the fallout and controversies that followed in the wake of Systemic Analysis. I will leave an open comments section at the end of each post, and on the following workday I’ll both cover a new topic and address significant questions raised in the last day’s comments. If any of the major critics or commentators on the article is willing, I’d love to arrange an on-line debate on this or any other site. My goal is to have a substantive, issue-driven discussion that goes into some depth while avoiding arcane terminology.

In the first column this Friday, I will discuss a new data source which no one, including myself, had looked at before Systemic Analysis was published, and which provides the most definitive test yet devised for the arguments I’ve advanced about racial preferences.

Janice Rogers Brown has been confirmed by a vote of 56-43. It will be interesting to see how the fiery rhetoric of her speeches fits with the DC Circuit's docket; can you decry the collectivist Kleptocracy in a FERC opinion? Time will tell.
I Am Glad To Live in a Country

in which the President does not say things like:

Let us stop drinking from the enchanted waters of Lethe, which strike with amnesia those who want to quench their thirst, and let us dare to taste those 'fresh waters that run from the Lake of Memory' -- as the words say on the golden bars of the disciples of Orpheus, that bard of metamorphosis and of ascending reincarnation.

(The Telegraph (U.K.), quoting the new French Prime Minister, Dominique de Villepin; thanks to Best of the Web for the pointer.)

In fact, maybe that should be our reaction any time President Bush is mocked for misspeaking: "Hey, at least it's not 'Let us stop drinking from the enchanted waters of Lethe . . . .'"

NPR Stations in the Same Market Running the Same Programs at the Same Time:

I like listening to All Things Considered and other NPR shows; I'm not wild about their political bias, but I like their tone and style. Another example of cultural affinity trumping political affinity, I suspect.

But here's my question: In L.A., two radio stations (KCRW and KPCC) both carry All Things Considered, but they generally carry it at the same time. That means that if there's a story on one station that bores me, I can't just switch to the other station, since the other station is generally carrying exactly the same story at the same time.

Now of course neither station wants to give up the optimal time slot -- but why doesn't one station (perhaps the one that has fewer listeners and thus more of an incentive to try to get some) play the segments in a different order? Unless I'm mistaken, the NPR news feed is 2 hours long. Why doesn't the less popular station play the second hour first and the first hour second, and thus suck in the other station's listeners who want to switch away from some boring story? And if they're above mere listener-grubbing, why don't they just provide such an alternative as a public service?

Is there some technical or contractual twist that I'm missing? (I don't think there's any antitrust problem, because there'd be no need to have any agreement between the two stations; either station can do this unilaterally.) Please respond in the comments.

The Supreme Court Nomination Blog:

This is the blog put up by Goldstein & Howe, a major Supreme Court litigation boutique and the operator of SCOTUSblog. My question: How influential is the blog likely to be during the Supreme Court nomination season?

My conjecture: Very. I don't know how many hits it will get, but I suspect that:

  1. Most journalists who are covering the debates, and politicos involved in the debates, will check it routinely, and will be influenced to some extent by what is written there.

  2. People who want to influence the debate will dearly love to get their points picked up by the G&H bloggers.

  3. As with all editors and reporters, the bloggers will occasionally have opportunities to influence the process, for instance by deciding what to stress, what things to cover more than other things, what to investigate further, when to post certain things, and so on; it will be up to the G&H people to decide whether they want to use the opportunities, and how much.

Of course, this raises another point: What other Supreme Court Nomination Blogs will there be out there? And how will they persuade reporters and politicos to read them, as well as the G&H blog?

UPDATE: Jonathan Adler reminded me that NRO has Bench Memos, and also told me that there's's and the National Women's Law Center's But my guess is that the influence of these blogs will be in some measure limited by their having positioned themselves as fairly partisan voices. They may still be influential because people on those sides can use them for talking points, and journalists who are interested in what one side is thinking could find them helpful. Still, I wonder whether there will be other blogs that aim at providing news and relatively balanced analysis, and thus try to get a broader range of journalist and politico readers, including ones who aren't that interested in political advocacy as such.

Mike Greve on the "Constitution In Exile":

Must reading, as always, here. The abstract:

Liberal academics and newspapers have proclaimed that the Rehnquist Court and conservative intellectuals are attempting to resurrect a pre-New Deal “Constitution in Exile.” This absurd campaign illustrates the intellectual impoverishment of what now passes for “progressive” constitutional thought. Still, liberals are right in suggesting that conservatives may not have thought as sharply and constructively about constitutionalism as they should. This Outlook discusses the liberal constitutional project. The next Outlook will outline a conservative response.

Related Posts (on one page):

  1. Would a Conservative Court Roll Back the New Deal?
  2. Mike Greve on the "Constitution In Exile":
Law Review Summer Submissions:

I am just about finished with an article I plan to submit to law reviews. The conventional wisdom is that if one finishes an article during the Summer, it's better to wait until mid-August to send it out to law reviews, because many law reviews shut down for the Summer. The counter-argument is that with so many law professors submitting articles in August that they wrote during Summer break, it's better to submit an article earlier, when editors for law reviews that are functioning can give submissions more attention.

So, is the conventional wisdom correct? Do most law reviews shut down (at least in terms of accepting new articles) during the Summer? Is it possible to get expedited review during the Summer? I've opened comments.

Many Thanks to Friends and VC Readers: I want to thank all my friends from around the country, and Volokh Conspiracy readers, for their many emails expressing support and words of encouragement to me following the Supreme Court's disappointing decision on Monday in Gonzales v. Raich. I have also taken solace in the outpouring of disapproval for the Court's decision from every ideological quarter of the blogosphere.

As you can imagine, after investing over two years litigating this case in the District Court and Court of Appeasls, and almost the entirety of my fall semester preparing for three moot courts and oral argument, Monday was a pretty tough day. All these expressions of support, which I have yet to individually acknowledge, really did help--as did the clarity and potency of the dissenting opinions by Justices O'Connor and Thomas. I was grateful as well that Chief Justice Rehnquist, the author of the opinions in Lopez and Morrison on which our arguments were based, completely endorsed our reading of those cases by joining Justice O'Connor's cogent opinion that adopted our arguments in their entirety. This was not what experienced court watchers expected from him. Perhaps it is worth noting that the three justices who did not ask me any questions in oral argument ultimately sided with us.

When the decision came down, I was in the middle of six hours of lectures on Contracts at NYU for LawPReview. I used my hour for lunch to skim the opinion and participate in a telephonic press conference with 50 reporters. Then I had to return to the classroom to teach contract law. The students were very understanding of the fact that I was probably not quite the same teacher as I had been for the first 2 hours of the day. After that, I faced a several hour delay returning to Boston due to thunderstorms at LaGuardia. My parents arrived from out of town to visit hours before my return to Boston, so I am now preoccupied with spending time with them.

For all these reasons, I have been too drained and distracted to blog on the decision, and it continues to be difficult to write about it dispassionately. Today, however, I did manage to pen some brief comments that I expect will appear on National Review Online tomorrow. When they do, I will link to them here and, perhaps, add some additional thoughts. In the meantime, thanks to everyone who wrote to me or who blogged their support. It really meant a lot.
Blogging Can Change Your Life: Daniel Solove reflects on his first month as a blogger.
Tennessee Elementary School Students Barred from Discussing a Certain Subject During Recess:

A 10-year-old student and his friends were barred from engaging in a certain kind of speech during recess at Karns Primary School. The recess in that school, I'm told, is about 30 minutes long, and students are generally allowed to play, sit and read, talk, and do lots of other things. But this student and his friends were barred from engaging in one particular kind of speech. What is this speech that a Tennessee school has decided must be banned?

  1. Wearing black armbands to protest the war.

  2. Displaying a confederate flag.

  3. Discussing the Wiccan neo-pagan religion.

  4. Wearing insignia that depicted firearms.

  5. Something else.

And the answer is . . . #5, specifically discussing the Bible. Those are the charges levied in a lawsuit filed by the student's parents (see the Complaint here). And to my knowledge, the charges seem accurate: The Principal's letter to parents specifically says that "children could not have a Bible study class" — which apparently includes an informal group of a few kids sitting around and talking in the schoolyard — during recess; I have seen a copy of it myself.

I've long been appalled by the willingness of government officials to discriminate against religious speech this way. It's true that under the Court's Establishment Clause caselaw the government generally may not itself engage in religious speech (especially in K-12 schools), nor may it give preferential treatment to religious speech. But this ban on government preferences for religious speech doesn't require or authorize discrimination against private religious speech. Such discrimination is itself unconstitutional; it violates the Free Speech Clause, and in my view the Establishment Clause and Free Exercise Clause as well (though that's less clear than the Free Speech Clause violation).

Here, the students were trying to talk religion on their own, in a time and place in which students were perfectly free to talk about other subjects (sports, television, politics, and so on). This wasn't an organized class activity. (School officials naturally are entitled to more control over speech in such activities, for a variety of reasons.) Any students who weren't interested in talking or hearing about the subject were free not to talk or hear about it. There was, to my knowledge, no evidence that the speech would cause material disruption. And ten-year-olds are perfectly capable of distinguishing what their classmates say on their own from what the school is saying or endorsing as true, and the speech in this instance was clearly on the "classmates say on their own" side of the line.

Unless there's something seriously missing from the news story and the Principal's letter, there seems to me to be no justification for this, except an assumption that "separation of church and state" (a rather misleading phrase) requires the state to suppress speech by students, who are clearly not the "state." The Supreme Court has repeatedly rejected this assumption, for over two decades in education generally, and over a decade as to K-12 education in particular; and so have lower courts. It bothers me that so many school officials still haven't gotten the message, and continue to violate students' First Amendment rights.

So What Percentage of America are White Christians?--

The latest Howard Dean flap is over his claim that Republicans are "pretty much a white, Christian party."

Since about 63% of the adult public in the US are white Christians, it would not be surprising if at least the majority in any party were white Christians. Here is the breakdown of white Christians in the 2004 General Social Survey by party adherence:

41% Strong Democrats (eg, 41% of Strong Democrats are white Christians).
52% Other Democrats.
52% Independents, Leaning Dem.
57% Independents.
78% Independents, Leaning Repub.
78% Other Republicans.
89% Strong Republicans.
57% Other Party.

So about 84% of Republicans are white Christians, compared to about 47% of Democrats. Neither party is a good cross-section of the American public.

Who Wants to Draft Judge Prado?: Both How Appealing and SCOTUSblog provide links today to a new website,, that claims to be part of an "independent grassroots campaign" to encourage President Bush to nominate Fifth Circuit Judge Ed Prado to the Supreme Court.
A Supreme Court Justice for All Americans

Imagine a Supreme Court nominee with a mainstream approach to the law who has earned the respect of both Republicans and Democrats. Imagine a nominee for the Supreme Court of unquestioned stature with decades of judicial experience.
Stop imagining...

Meet Judge Ed Prado.
  The idea that some average Americans might come together to push a little-known judge for a seat on the Supreme Court is pretty interesting, so I figured I would look into it and see who is behind the campaign. The campaign's website states that it is being run by people who, "[i]n an era of intense partisanship, . . . believe the time is right to come together around a highly qualified consensus nominee." It lists a few names in particular: Arkadi Gerney, Marc Laitin, and Tim Cullen.

  I googled Arkadi, Marc, and Tim to see if I could find out more about who they are. It turns out that Arkadi, Marc and Tim have together led at least three other campaigns in the last two years, the goals of which might give you at least a little perspective on this latest independent effort:
Run Against Bush: A Movement to Defeat George W. Bush in 2004
Launched late 2003, the Run Against Bush campaign raised over $450,000 in small donations from over 11,000 runners across the country.

The KerryConnector
Started in July 2003, the Kerry Connector was an online grassroots meeting and house-party tool that was partially integrated into the Kerry campaign website in October 2004 and was a model for the John Kerry Volunteer Center ( that premiered in June, 2004.

Concerts for Kerry / Concerts for Change
Launched in March 2004, the Concerts effort raised more than $370,000 to support John Kerry from 16,000 concertgoers at events around the country.

Tuesday, June 7, 2005

Kentucky Lawyers Must Pay $50 for Each Post They Blog:

That's what the Kentucky Rules of Professional Conduct seem to literally say. Rule 7.02(1) says, in relevant part:

For purposes of this Rule, the following definitions shall apply:

"Advertise" or "advertisement" means to furnish any information or communication containing a lawyer's name or other identifying information, except the following: . . .

That would literally cover any op-ed, law review article, book, blog post or anything else that the lawyer writes (unless he does so truly anonymously). Fortunately, exception (1)(g) (the only one potentially relevant to such situations) specifically exempts
[a]ny communication by a lawyer to third parties that is further distributed by a third party who is not in any way controlled by the lawyer, and for which distribution the lawyer pays no consideration
-- which nicely exempts most traditional writings, but not self-published writings. Until the advent of blogging, this posed relatively little problem, but since blogs are self-published, any blog post that identifies the lawyer-author becomes an "advertisement."

And for any "advertisement" that goes beyond certain boilerplate information (name, address, fee schedule, certain credentials, and the like) would then have to comply with Rule 7.05(2), which says:

Three (3) copies of a fair and accurate representation of any advertisement . . . shall be delivered to the [Kentucky Attorneys' Advertising] Commission, c/o the Director, at the Director's office, during normal office hours on a work day, at the same time the advertisement is used or published. . . . A filing fee of $50.00 for each advertisement filed under this subsection shall accompany each filing . . . .
So if you're a lawyer in Kentucky, blogging from Kentucky (see Rule 7.01), and you want to blog using your real name, you must pay $50 per post. (Each post is a separate instance of "furnish[ing] . . . written, printed or broadcast information.")

And in fact, the Kentucky Attorneys' Advertising Commission is seriously considering applying the rule exactly as written, according to Ben Cowgill's Legal Ethics Blog:

I submitted an information copy of this blog to the Commission on the very day it was launched so that we could proceed to discuss any question about how it should be treated under the regulations mentioned above. We have not yet reached a final resolution, but I have received a "green light" to continue posting, without paying a filing fee for each post, until the matter is resolved. . . .

It is my sincere hope that we will be able to agree on a sensible interpretation of the regulations that permits other Kentucky lawyers to launch law-related web logs. Several Kentucky lawyers have told me that they are very attracted to the idea of creating web logs as on-line journals about the areas of law in which they practice. But each of them has expressed concern about the filing fee mentioned above. I am hopeful that the time and attention I have devoted to the issue will resolve the problem for everyone and pave the way for other web logs by Kentucky lawyers. . . .

I hope the Commission quickly recognizes that it has no business restricting lawyer speech this way. Commercial advertising may indeed be restricted in certain ways, perhaps including these submission and filing fee requirements. But lawyer speech that isn't advertising — such as a lawyer's self-published book, or a magazine run by a lawyer in which the lawyer has a publisher's column — is fully protected. (I realize that any statement by anyone who's in any line of business may be indirectly a means of promoting his business; but that can't be enough to deny full First Amendment protection to books, scholarly articles, op-eds, and the like that are published by any lawyer, doctor, engineer, or business owner.)

Even in the past, the rules were therefore somewhat overbroad. But in the era of blogging, where self-publication is a routine form of fully protected speech, and the presubmission and payment requirements are especially burdensome, the unconstitutional overbreadth of the restriction is especially glaring.

Thanks to David Giacalone (f/k/a . . .) for the pointer.

CORRECTION: When I first posted this, I erroneously said that the Kentucky Rules require not just a $50 filing fee, but also submission of the "advertisement" 30 days before it's published. It turns out, though, that I was consulting an old version of the Rules; the Rules were changed (last year, I'm told) to eliminate the presubmission requirement. I've corrected the post accordingly, but my objection still stands — a $50 filing fee per post is surely unconstitutional.

Related Posts (on one page):

  1. Will New York Law Bloggers Find It Much Harder To Blog?
  2. Kentucky Lawyers Must Pay $50 for Each Post They Blog:
Right, Left, and the Legal Blogs: Over at PrawfsBlawg, Hillel Levin is asking an interesting question — why is it that an unusual number of popular legal blogs tend to be right-of-center? I'm not entirely sure the trend exists, and if it does, I'm not quite sure the reason is other than random chance. But it's an interesting question.

  UPDATE: That reminds me -- someone needs to come up with a name for discussions about the blogosphere's gender/political/racial breakdown. These sorts of questions seem to pop up pretty frequently, and always lead to lots of discussion. Ideas, anyone?
Happy Hour Reminder: Just a reminder that this Thursday, June 9th, from 6:30pm to 8:30pm, the VC will be hosting its first Official VC Happy Hour at Karma Lounge (19th and I Streets) in DC. All are welcome. Among the bloggers likely to be in attendance are 3 or 4 Conspirators, a few PrawfsBlawgers, and I think some SCOTUSbloggers, too.

n. -- A state in which we are governed by our baby's nap schedule.

Raich and Prosecutorial Discretion: Bloomberg has an interesting story about the consequences (or lack thereof) of yesterday's Raich decision:
  Federal law enforcement officials in San Francisco said they don't intend to crack down on medical pot users, who under California state law are allowed to buy and smoke marijuana with a doctor's permission. About 40 marijuana clubs in the city, which operate without interference from local police, are likely to continue in the wake of the Supreme Court decision that federal drug laws ban use of medical pot.
  "We respect the state law," said Javier Pena, special agency in charge at the San Francisco office of the U.S. Drug Enforcement Agency. "I can't tell you we are going to shut down all those clubs tomorrow. Our efforts will remain targeted at the trafficking organizations. We've never targeted the user, the sick people, the dying people."
  The DEA in San Francisco has shut down two of the city's pot clubs and arrested two people in connection with club operations in the last two years, said Casey McEnry, an agency spokeswoman.
  . . .
  California Attorney General Bill Lockyer said the U.S. has always been able to prosecute medical marijuana users for violating federal drug laws and has rarely done so.
  "This doesn't represent a big change for the potential for federal enforcement," Lockyer said in a telephone interview. "Our medical marijuana users were always exposed to the possibility of federal prosecution; there haven't been that many."
  This is an important point, I think. The idea of the federal government going after very ill people who are growing marijuana for medical purposes strikes many (including me) as an obvious misuse of power, if not an outrageous one. But the reality is that prosecutions, while not nonexistent, are rare. Giving the feds the power to bring cases doesn't mean that they actually will, and history suggests that they usually don't. As a result, Raich doesn't mean the difference between a world with home-grown medical marijuana for the very ill and a world without it. Rather, it means a world in which home-grown medical marijuana is advertised and public versus a world in which the practice is more quiet and the feds mostly look the other way.

  UPDATE: Judging by trackbacks and my rapidly filling inbox, enough VC readers are sufficiently upset about the Raich decision that I think some additional explanation may be helpful. To be clear, I'm not saying that I think Raich was correctly decided. (I am not a constitional theorist, and in this kind of case I'm not sure I know what it means for a case to be correctly decided.) Nor am I saying that broad laws are a good thing; to the contrary, I have written long and heavily footnoted articles arguing against broad constructions of federal criminal statutes precisely because I distrust overreliance on prosecutorial discretion. I am only making the pragmatic point that, no matter how strongly you feel about the constitutional or policy issues raised in the case, the sky actually is not falling.
The Web of Law: A post by Dave Hoffman at PrawfsBlawg reminds me of Tom Smith's very cool draft article on SSRN that I have been meaning to mention: The Web of Law.

  Smith's article looks at legal citations from the standpoint of network theory, and presents the results of a citation study performed on Tom's behalf by the people at Lexis Nexis that looked at the citation structure of nearly 4 million American legal precedents. According to Smith, the study reveals that the citation of legal precedents creates a scale-free network, and that allows for all sorts of modeling from network theory that can shed light on legal dynamics. From the introduction:
  What determines whether a case makes it into the elite of cases that are cited hundreds or thousands of times, instead of just a few, or never? By studying the statistical dynamics of citation over time, scholars using network theory could shed significant light on what accounts for the success of a legal authority. How much, for example, does a case’s merely being decided earlier account for its citation frequency? How much of a difference does a case having been decided by a higher court make? What about the "fitness" of a case, in terms of its persuasiveness or analytical acuity? Do these attributes explain in part a case’s flourishing, survival, or extinction as a precedent? Do cases have a natural life span? Does their authority tend to wax and wane, and does this depend on the type of case? It is possible that if we study the evolution of the legal network, the "Web of Law," we will discover unsuspected historical dynamics in legal authority. Perhaps the characteristics of legal evolution themselves have changed over time. If there have been changes in the dynamics of legal evolution, or other noticeable changes, perhaps they correspond to recognized watersheds in legal history. As I discuss briefly below, using network theory to analyze law may enable us to understand, in a much more rigorous way than previously possible, the dynamics by which interpretations of important laws, such as the Constitution and landmark statutes, change over time.
  Very interesting stuff, and also both well-written and relatively short (with lots of cool graphs, too). I'll enable comments in case readers want to discuss the argument.
Blame Canada:

From the Allentown Morning Call:

The 17-year-old Bucks County boy charged with having bomb-making equipment in his bedroom and threatening to blow up his school is a Canadian who hates Americans, prosecutors say. . . .

District Attorney Diane E. Gibbons said police are trying to determine the boy's motive but added, "He is very unhappy with Americans and would prefer to be in Canada." . . .

What next? Rampaging Norwegians? (Yes, I know, but that was a thousand years ago.) Mad Swiss bombers? Can no-one be trusted?

All-Raich Super-Blog and the Future of Law Reviews: SCOTUSBlog's one-day experiment as an all-Raich super-blog has ended. I thought it was really cool, in a turbo-law-geek sort of way. Indeed, I wonder if law reviews will get into the act and start hosting their own versions of this. It seems to me a fantastic opportunity for them to capitalize on the blog movement. If you're an editor, all you need to do is ask a bunch of blogger/lawprof types if they will blog on your journal's website the day a big case comes down. On the day of the big decision, you contact all of your authors and hand over the keys, er, passwords, and let them blog away. By the end of the day, your journal will be the host of a mini-symposium about the brand new case. Of course, you won't actually publish the contributions, but you can keep your mini-symposium online and available for future scholars to peruse. By the time the law reviews start publishing case comments and Supreme Court Term overviews, the blogged scholarship posted on your website will have framed the commentary long ago.

Monday, June 6, 2005

The Rehnquist Court and the Mathematics of Federalism: Ernie Young's post at SCOTUSBlog raises a good point: while commentators tend to refer to "the Court" as a single entity, the Supreme Court consists of nine people with different views. In nonunanimous cases, "the Court" beomes a shorthand for the group of Justices in the majority.

  In federalism cases, moreover, there is no clear majority on the current Court. Four Justices — Stevens, Souter, Ginsburg, and Breyer — more or less share the same basic view that the Court has little to no role enforcing federalism constraints. The other five Justices would impose some limits on the scope of federal power, but don't really share common ground on exactly what those limits should be.

  Although classifying each Justice is quite difficult, a very rough first cut might be that Justice O'Connor tends to focus most on preserving a role for the states; Justice Kennedy on recognizing the dignity of the states and preventing federal overreaching; Rehnquist on restoring pre-1960s limitations on federal power; Scalia on finding and enforcing textual principles for limiting federal power; and Thomas on restoring an originalist vision of the Constitution. These approaches can overlap, and Justices might sign on to opinions that aren't exactly their cup of tea. But often they don't.

  The mathematics of federalism on today's Supreme Court, then, is that the four Justices who do not favor judicial enforcement of federalism constraints only need one additional vote to form a majority. Conversely, for the Court to rule in favor of a federalism limitation, common ground must exist that ties together the differing viewpoints of all five of the right-of-center Justices. The odds are that the former will happen more often than the latter, which is why victories for federalism principles have tended to be rare and on relatively narrow (that is, symbolic) issues.

  (Cross-posted at SCOTUSblog; leave comments here.)
Careful With Those Studies:

Dr. Jay Gordon (Huffington Post) discusses a recent study:

Nearly every one of 253 adults asked said that their doctors should ask them about family stress and conflict, even when that conflict extended to violence.

In contrast, only about a third of these people said that their doctors actually did inquire about these crucial aspects of physical and emotional well-being.

And indeed the summary he links to reports:

In a survey of 253 male and female patients, nearly all (97 percent) believed physicians should ask patients about family stress and conflict, and most (94 percent) thought physicians could be helpful.

Despite this, only one third of the respondents remembered ever being asked about family conflict by their physicians.

But if you look closely at the study itself, and in particular table 1, you see that 67% of respondents said that family doctors should "sometimes" ask about family conflict, and only 29% said that doctors should "often" ask about this. This suggests that there may not be much "contrast" there: 67% of respondents think that the doctor should only ask about this sometimes -- presumably under certain circumstances, though each respondent may have a different view of what those circumstances might be. Many doctors might well take a similar view, and simply conclude in many cases (whether rightly or wrongly) that this particular patient's circumstances don't justify such an inquiry.

If the summary carries an implicit claim that doctors are being too reticent, and aren't doing what patients really want them to do (which is how I read the summary and Dr. Gordon's reference to it), such a claim doesn't really seem to be supported by the facts. The claim may still be right, but this study just doesn't really support it.

Nothing earth-shaking, I realize; if people misread this study, we're not going to see a disaster of Biblical proportions. But it is, I think, yet another a reminder to be careful about summaries of studies, which often omit qualifiers (e.g., "sometimes") that are quite important.

Prescriptions for Otherwise Illegal Drugs:

I'm not a federalism maven; though I've followed the Court's jurisprudence here, I can't claim deep expertise. Also, all four opinions in today's case strike me as thoughtful and plausible, so please read my criticisms of specific details of some opinions with an eye towards that.

This having been said, let me note a small item: Justice Thomas, dissenting, writes that "[U]nder the [Controlled Substances Act], certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use -- drugs like morphine and amphetamines -- are available by prescription. No one argues that permitting use of these drugs under medical supervision has undermined the [Act's] restrictions."

Can that possibly be right? I had thought that prescription narcotics often do make their way into the illegal market, because the doctors or the patients break the law in ways that are made easier by the availability of prescriptions. Sure, Congress is willing to run that risk, but despite the fact that the availability of prescriptions has undermined the broad prohibitory goals of the Act.

Naturally, people may disagree about the degree to which the availability of morphine and amphetamines by prescriptions facilitates the broader illegal traffic. But I would imagine that this would be true to some degree, and that there's no reason to think that it's a tiny degree.

Windmills v. Birds:

The irony: Environmentalists are suing wind power generators because their windmills kill birds.


May apologies, apparently the link is only available to subscribers (and since I subscribe, I was able to link through on my computer). Sorry--that's the first time I tried to link to that source.

The nonfunctioning link did generate this amusing email from a reader, however:

You mention the irony of environmentalists suing over windmills because they kill birds (no surprise or news there, honestly). Sadly, the link you gave does not work (the article is for subscribers only), hence I went to Google and entered the phrase in your post - "Environmentalists are suing wind power" - in the hopes of finding the article through the search engine. Google helpfully suggested: Did you mean: Environmentalists are using wind power

if you didn't know any better, you might think google believes it's ridiculous that environmentalists might sue wind power...

The Rehnquist Court and Symbolic Federalism: In response to my earlier post, Tom Goldstein writes:
  I agree with Orin's comment . . . that Raich on one level seems unremarkable. But I suppose that it has received enormous attention within constitutional law circles because of the continuing uncertainty about whether Lopez and Morrison repesented just outlying data points in the structure of the Constitution or instead a serious theme that would emerge and contradict much of the previous conventional wisdom about federal powers. It looks like today's opinion pretty decisively answers that question in favor of the former.
  I agree. At the same time, I don't think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it's been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.

  More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

  As soon as the issue takes on practical importance, however, the votes generally aren't there. If anything, the surprise today was that there were three votes for the pro-federalism side.

  (Cross-posted at SCOTUSblog; to leave a comment, do so here.)
Raich as Constitutional Law Doctrine: There's lots to say about the Raich opinion, but let me start with a tentative thought: Whatever normative views you have about the proper scope of the Commerce Clause, or of the merits of medical marijuana as policy, isn't the opinion by Justice Stevens relatively unremarkable as an application of existing constitutional law doctrine? At least based on my initial read, the majority opinion doesn't seem to break much new ground. It accepts the preexisting doctrinal framework for interpreting the Commerce Clause, and it reasons by analogy to Wickard and distinguishes Lopez and Morrison. Every majority opinion adds a new data point, of course, but this data point seems less surprising and new than many others. Indeed, my initial sense is that the most interesting parts of Raich are the concurring and dissenting opinions rather than the majority opinion. Any thoughts?

  (Cross-posted at SCOTUSblog; to leave a comment, please do so here.)
SCOTUSBlog Becomes RAICHBlog: Marty Lederman of SCOTUSblog has come up with the interesting idea of getting a bunch of bloggers together to blog about today's Raich decision. We're all going to be guest-blogging at SCOTUSblog, and most of us (myself included) will also be cross-posting our contributions at our home blogs. Guest-bloggers include Ann Althouse, Larry Solum, Mark Tushnet, Eugene Volokh, and David Barron, together with permanent SCOTUSbloggers Marty Lederman and Tom Goldstein. More guest-bloggers will be added throughout the day. I'm not sure how different it will be from the usual blogging, but I think it's a worthwhile experiment.
Thoughts on Ashcroft (Gonzalez) v. Raich:

Despite my blogging hiatus, I cannot resist making a few quick comments about Raich.

(1) The five-member majority of the Court simply does not take federalism seriously. Justice Stevens writes that Congressional factual findings are required when there is a "special concern such as the protection of free of speech." Apparently, however, the Constitution's limitations on federal power--critical by any measure to the American system of government--are not a "special concern," or even especially important.

(2) Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

(3) I predicted the outcome of this case (and think it's remarkable and a testament to his talents that co-blogger Randy got Rehnquist and O'Connor to vote in favor of his clients) on the theory that wavering Justices such as Kennedy, who voted with the majority, would be affected by political trends apparent in the United States. When Kennedy voted with the majority in Lopez, congressional Republicans were making serious (albeit hamhanded) efforts to limit the federal government, and their rhetoric was even more strongly devolutionary. A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930's and 1960's as the biggest supporter of increased federal power in American history. Scalia's vote was also likely affected by the sense that the Court should not expend political capital, especially with new Republican nominees soon to be voted on, on trying to limit federal power without any support from the political branches.

(4) There are essentially two strategies for those who are concerned with civil liberties for limiting the government's ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government's general power to begin with because the government cannot abuse power it does not have. The drug war provides a least one example of the superiority of the libertarian strategy. The drug war has run roughshod over the civil libertarian accomplishments of the Warren Court, leading to a weakening to various degrees of the First, Second, Fourth, Fifth, Sixth, and Eighth amendments, not to mention a huge increase in the prison population, and the denial of the basic right to use relatively innocuous recreational drugs, even for medicinal or health purposes. Far better to have denied the federal government the power to regulate intrastate use of and sale of drugs to begin with, as, I recall, Justice Van Devanter advocated on Commerce Clause grounds way back in the "dark ages" of the 1920's.

(5) I was both amused and angered by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.

Larry Solum Summarizes the Medical Marijuana Case (Raich)


Key Sections in Gonzales v. Raich: I'm reading through the opinions in Gonzales v. Raich, and I thought I would post the key sections as I go. Justice Stevens' majority opinion, joined by Justices Souter, Breyer, Ginsburg, and Kennedy, is here. The key sections:
  As we stated in Wickard [v. Filburn, 317 U. S. 111, 128–129 (1942)], “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154–155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927) (“[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so”)). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E.g., Lopez, 514 U. S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968)).
Stevens found this case on all fours with Wickard:
  Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
  The similarities between this case and Wickard are striking.
Applying the general principles to this case, Stevens concluded:
  Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U. S. Const., Art. I, §8. That the regulation ensnares some purely intrastate activity is of no moment.
The opinion distinguishes Lopez and Morrison:
  Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.
Justice Scalia concurred, offering a somewhat more textual grounding for the same result. According to Justice Scalia, the key was that Congress's ban on even intrastate possession was "necessary" and "proper" as a way to regulate interstate commerce:
[T]he authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
Scalia continued:
That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.
  By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market— . . . .
Justice O'Connor wrote the primary dissent, joined by the Chief Justice and Justice Thomas. O'Connor's dissent is pretty heavy on the policy arguments — she clearly wants the states to regulate this stuff, not the federal government — and relatively light on legal reasoning. Much of the argument comes in the form of a slippery slope; if we allow this, then Lopez and Morrison will be gutted. O'Connor suggests that this is as much about spheres of state sovereignty as the technical question of the scope of interstate commerce
Whatever the specific theory of “substantial effects” at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress’ excursion into the traditional domain of States be justified. That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles.
. . . [T]hat authority must be used in a manner consistent with the notion of enumerated powers— — a structural principle that is as much part of the Constitution as the Tenth Amendment’s explicit textual command. Accordingly, something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not selfevident.
She concludes:
  Relying on Congress'’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one'’s own medicinal
use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California'’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.
Finally, Justice Thomas filed a solo dissent that cites no fewer than three different Randy Barnett articles (not a bad way to lessen the sting of defeat, I suppose), and argues that the ban on intrastate possession is neither a regulation of interstate commerce, necessary nor proper to effectuate such a ban. From the dissent:
[I]n order to be "“necessary,"” the intrastate ban must be more than “a "reasonable means [of] effectuat[ing] the regulation of interstate commerce.”" Brief for Petitioners 14; see ante, at 19 (majority opinion) (employing rational-basis review). It must be “plainly adapted” to regulating interstate marijuana trafficking— — in other words, there must be an “obvious, simple, and direct relation” between the intrastate ban and the regulation of interstate commerce.
He continued:
[N]either in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress'’ goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress’ aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.
  Why did the Raich case take so long to hand down? This is sheer speculation, but the most likely explanation to me is that it probably took awhile for Justice Stevens to secure a majority opinion. Stevens assigned the case to himself and probably had the 6 votes to uphold the statute at the outset, but he needed to get four other Justices to sign on to his opinion to make a majority. Getting three Justices to sign on was probably easy; Souter, Breyer, and Ginsburg have views on these issues pretty similar to Stevens'. The trick probably was getting the fourth vote. In the end, Scalia decided to break off and write separately, but Kennedy agreed to join the Stevens opinion. My guess is that the delay was caused by the time it took for those votes to settle. As I said, though, this is just a guess. (Another explanation may just be that four opinions were filed in the case, none of them short, and perhaps it just took awhile for everyone to finish.)
People Who Don't Shop at Wal-Mart Oppose New Cleveland Wal-Mart:

From today's Cleveland Plain-Dealer:

This is why so many job-starved Clevelanders have voiced concerns. Consider the coalition that is building: civil rights groups, elected officials, labor unionists, ministers, small business owners, and, most recently, Cleveland bloggers. We raise our voices in opposition because of the negative effects of a Wal-Mart Supercenter on our town.

In other words, Cleveland's elites who don't shop at Wal-Mart are opposed to allowing other people to shop at Wal-Mart. And those with jobs are raising their voices on behalf of "job-starved Clevelanders." Real profiles in courage. Good thing they weren't around when the dry goods stores and blacksmiths were feeling competitive pressures many years ago from supermarkets and the "horseless carriage".

Instead of a Wal-Mart, some propose a new "barter" system among downtown businesses (to prove I'm not making this up, I quote):

Instead of a Wal-Mart why not:

Use the steelyard site to set-up a bartering community between local businesses. Some years ago I was in Connecticut visiting a college friend for a time. Local businesses had joined together and created a bartering system which allowed small business owners to spend real money on other things. An example:

A portrait painter needed some film developed. Instead of going to the nearest big box, she took it to a local developer who was part of the barter network and used some barter points to pay for it. The photo guy might have needed a birthday cake for his daughter and will use his barter points to purchase the cake from a local baker that is part of the barter network. The baker needs his car repaired and so uses his barter points at a local mechanic. The mechanic has been saving up her barter points and decides to get a portrait made for her sister and so she goes to the original portrait painter.

When I was working on my graduate degree in Economics at Clemson, many of the small businesses around Clemson actually had a flourishing barter system, like that described. But the operative term to describe it there was "tax dodge." Barter and in-kind contributions among various local businesses was a system for buying and selling goods and services without having to pay taxes on it.

And I doubt that it was justified as an alternative to Wal-Mart.

Brooks on Gunners: David Brooks has an interesting essay on the peculiar ways of overly ambitious recent college grads looking to "make it big" in the world of politics, journalism, and the like. I assume Brooks is a being more than a little autobiographical; he identifies the type with unusual accuracy.
Media Rights, not Journalists' Rights:

The argument that "bloggers cannot wear two hats simultaneously: that of journalist and that of partisan activist," which I referred to Friday makes a basic mistake; it assumes that the media exception to campaign finance law and the privilege to conceal the identities of anonymous sources only apply to people who are somehow nonpartisan: "Just as previous generations of offline activists at various stages in their careers assumed different roles -- those of activist, journalist, even officeholder -- bloggers must realize that they cannot avail themselves to the rights and privileges of journalists in any election in which they choose to participate as a partisan activist."

But while "journalist" is sometimes used to refer to people who are (ostensibly) nonpartisan and impartial, neither the federal election law media exception nor the anonymous source privilege is so limited. Federal election law exempts from various regulations and prohibitions "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication." Both nonpartisan news stories and opinionated editorials (including ones that endorse candidates) are protected. Both newspapers that strive to maintain maximum objectivity and magazines that overtly and consistently advocate a particular ideology are protected. Likewise, privileges to conceal the names of anonymous sources don't turn on whether the claimant writes opinionated pieces or objective ones.

Bloggers are indeed much like journalists, though we tend to be more like journalists who provide opinion and analysis, rather than those who purport to provide just the facts. But more importantly for legal purposes, we are members of the media, the analogs of opinion magazines, even if not exactly of daily newspapers.

To claim that certain bloggers aren't entitled to the same legal rights as journalists because they are "partisan activists" is a mistake. Journalists' rights do not turn on their being nonpartisan -- writers for The Nation and National Review are as protected as the most studiously apolitical of journalist. And bloggers, whether partisan or not, should likewise be entitled to the same protections.

Ashcroft v. Raich: SCOTUSblog is reporting that Ashcroft v. Raich has been handed down (finally), and that the Court ruled 6-3 in favor of the federal government in an opinion by Justice Stevens. Stay tuned for lots of Raich-blogging today here at the VC when the opinion is available.
Scientific American on Obesity "Epidemic":

Hard-hitting article in Scientific American raises some serious questions about the existence and implications of the obesity "epidemic."

The Center Abandoned:

Terrific editorial in the Washington Post today beautifully summarizes the case for CAFTA. Opening paragraph:

NOBODY IS saying that the proposed free-trade deal with Central America and the Dominican Republic will work miracles. Yes, regional free-trade deals boost prosperity much less than global ones. Yes, free trade by itself is not a wonder cure for Central America's poverty. And, yes, the deal could cause some dislocation to workers in the United States, though 80 percent of Central America's exports to the United States are duty-free already. But these legitimate reservations do not change the bottom line: The deal promises important economic and foreign policy advantages. The fact that nearly all Democratic members of the House oppose this bargain -- even the traditionally pro-trade New Democrats have come out in opposition -- is a depressing sign of the party's abandonment of Clintonite centrism.

Slow News Day at the Supreme Court?: Life as a Supreme Court reporter must be really frustrating right now. You've been waiting for a retirement for years, and you think one is coming any day now, but until the announcement is made you don't have something big to report. The question is, what can you report about in the meantime?

  Instead of just recycling stories repeating the same old speculation about who might replace the Chief, Charles Lane of the Washington Post seems to have come up with a novel approach: write a story about a childhood photograph of one of the Justices (in this case, Justice Stevens) that you found on the Web via a Google search. From the story:
  In cyberspace, Stevens remains forever young but also anonymous. The photo archive included no identification of the boys [in the photograph]. Leslie Martin, a research specialist at the Chicago Historical Society, says that no one there had recognized the justice until she was contacted by a Post reporter who had stumbled upon them in a Google search.
  Robert V. Allegrini, a spokesman for the Hilton Chicago, which now operates the former Stevens Hotel, said that he, too, was unaware of the photograph.
  But in a brief interview, Justice Stevens confirmed that he is, indeed, the boy on the left. The two others are his brothers, William K. Stevens, then 11, in the center, and Richard James Stevens, 13, who died in 2001. The oldest brother, the late Ernest S. Stevens, is not pictured.
  The boys were working a jigsaw puzzle, Stevens recalls.
  . . .
  To be sure, when people hear the words "Supreme Court justice" these days, they probably do not think "youth." The youngest justice is Clarence Thomas, 56. The eight others are 65 or older. Yet each of them was once a child.
  Indeed. (Hat tip: Howard)

Sunday, June 5, 2005

Whatever Happened to Larry David?

Honestly, the only reason I ever gave a damn about the Huffington Post (except now that Eugene is there occasionally) was because I thought that Larry David would be hilarious as a blogger. And I thought his first post on Bolton was quite funny. But as far as I can tell, that was his only posting, weeks ago. So here's a request for more Larry David.


Joe Malchow is right, of course--but I'm just trying to fill the time until Curb returns.

Challenges Facing Liberalism:

Eugene notes Geoff Stone's column on the challenges facing liberalism. Stone correctly notes that conservatives in the 1970s (actually beginning with the New Deal) were equally adrift, but that a "movement" was born from the ashes. How this came about is a fascinating story that I won't retell here (one source I have previously recommended is Nash's "Conservative Intellectual Movement in America Since 1945").

In a nutshell, though, I think the key story here is the rise of conservatism as a movement that was larger than its doctrinal differences--i.e., an umbrella that enabled libertarians, traditionalists (and later religious conservatives), and anti-communists (today, supporters of the "War on Terror") to work together in common cause both intellectually and politically. The unifying theme, however, was a discussion of fundamental questions of the relationship between the individual and the state, and a willingness to do so in an empirically-informed and reality-based context. Think about the problems that eventually overwhelmed liberalism--Communism, the crime explosion of the 1960s and 1970s, the decline of the American economy in the 1970s, etc. "Conservatism" offered a vision of man and his relation to the state and community that reached back to traditional American values, and provided a unity that was able to pull together the disparate strands of the conservative coalition.

Looking at liberalism today, I honestly don't see how liberalism can replenish itself. Assuming that liberalism can articulate an overarching vision, I am at a loss to see what this vision possibly could look like, especially in light of the failure of liberalism in the 1970s. Most fundamentally, I don't see how liberalism it can simultaneously stand for its traditional focus on individualism as well as the rise of modern "identity politics," which is focused on group rights. Stone says, for instance, "In truth, it is much easier to see the injustice in racial segregation than it is to justify affirmative action." Of course it is--the two positions are inherently contradictory. Either one's rights flow from their status as individuals, or as members of particular racial or other groups--it can't be both. This isn't a question that can be compromised or finessed. And even this dichotomy leaves aside other movements within liberalism such things as radical environmentalism, with its deep pessimism, elitism, casual attitude toward coercion, and dismissal of economic prosperity.

So, unless I'm missing something, it seems to me that the project of restoring liberalism is going to be much more difficult than it was for conservatism. Conservatism circa 1945 was an intellectually bereft movement, empty of ideas. But liberalism today seems to have it worse--it seems to have too many mutually-incompatible ideas, many of which are deeply contrary to the American tradition of individualism, optimism, and economic growth.

Incidentally, I think Stone probably overstates the role of the Federalist Society, which came along pretty late in the game. Legal issues are (or should be) fundamentally issues of implementation of a vision, rather than formative of a vision. In fact, this conflation may be part of the problem with liberalism's malaise, I suspect. Legal issues are (or perhaps more accurately, should be) inherently parasitic on a larger political and ideological vision, primarily a vision of the relationship between the individual and the state. The key players here are actually Friedman, Hayek, Rand, Kirk, etc.--Bork and Scalia come along later, and the conservative legal philosophy arises out of the intellectual construct of conservatism. Of course, this relates profoundly to the discussion that David Brooks triggered a few months back that liberalism today is "bookless," in the sense that it has no coherent animating ideas that knit together the liberal vision of the world. Even the questions that Stone poses are basically programmatic, not philosophical.

I think that one reflection of the robustness of a conservative intellectual philosophy is that it is not uncommon at all for a libertarian to be personally pro-choice, but to oppose Roe v. Wade as a legal doctrine, or to be opposed to school prayer or the Pledge of Allegiance yet recognize it as a legitimate sphere for majorities to hold sway. The position of conservative jurisprudence flows pretty easily from distrust of elitist power and the empirical record of the mischief spawned by prior generations of judges. Perhaps there are similar examples on the liberal side of the line, but my sense is that the conflation between political preference and constitutional policy is much closer.


A reader reminds me that Stone also overstates the role of Scalia and Bork when he says, "In a period of conservative crisis, conservative law professors (including Antonin Scalia and Robert Bork) established the Federalist Society in order to reevaluate conservative positions and define a new strategy for articulating and explaining their views." The Federalist Society was almost entirely the result of efforts by law students, not professors.


A reader asks whether one implication of this is that liberalism may have to jettison some of its internally-inconsistent ideas, even if this means losing some short-term political support. For what its worth, this is what the conservative movement did, first by jettisoning the John Birch society (which was huge at that time) and later by overwhelming the isolationists during the Cold War (for better or worse). Both of these decisions, I think, turned out to be largely correct in retrospect.

At some point there are some big questions where a movement may have to have the courage to choose--and hope that you choose correctly. To make these tactical decisions, however, requires having the courage of one's convictions to know what the benchmark for decision is. For conservatism, the touchstone has been the preservation of individual freedom, which has provided the overarching vision, even if there are squabbles about how this plays out in the details.