So the South Carolina Democratic party has concluded that Stephen Colbert may not appear on the Democratic primary ballot. It did not think his candidacy was a laughing matter, and it thought this precisely because the Colbert candidacy was a laughing matter. Colbert could not be serious, hence not a serious candidate; and yet his candidacy was only viable—it really only made sense—if it was not taken seriously. And yet it was serious enough, this candidacy, that the federal campaign finance laws (and the Federal Communications laws) applied with full force and quite seriously.
For those who, like me, take an inordinate interest in all things Italian (I spent a semester in Bologna during the run-up to last year's Presidential election, and hope to spend a good deal more time in that extraordinary country in years to come), a couple of recent books have caused a sensation in Italian political circles and may herald a real sea-change in the political culture there. One, La Casta: Così i Politici Italiani Sono Diventati Intoccabili (The Caste: How Italian Politicians Have Become Untouchable)
by two journalists from Milan's Corriere della Serra, Sergio Rizzo and Gian Antonio Stella, is the subject of a very interesting review in this month's issue of Foreign Policy.
According to Rizzo and Stella, Italian political life has been hijacked by what they have termed “the Caste,” a political class of thousands of lawmakers who have devised rules that enrich themselves at public expense with little fear of oversight, accountability, or, in some cases, prosecution. The Caste, they claim, extends all the way to the president of the republic. But the breadth of the Caste is far greater than any one person or office. Rizzo and Stella report that members of Parliament continue to belong to the Caste even after they have resigned from office; that at least 16 of them have criminal records; and that Italy’s presidential palace costs more than four times as much to operate as Buckingham Palace. The Caste is full of such charges, which the authors unearthed from hundreds of pages of official, unclassified documents. It is a stunning indictment of the privileges, costs, abuses, and waste in Italian politics.
(There's also a useful interview with Rizzo and Stella posted here)
And today's New York Times has a profile of Roberto Saviano, author of "Gomorrah," an enormously powerful indictment of the continuing strength and influence of the Neapolitan mafia (known as the Camorra").
What is perhaps most interesting about these two books is how phenomenally popular they've become in Italy; each has sold almost 1 million copies, a stunning figure in a country of 50 or so million people, even one with as well-developed a literary culture as Italy has. It's an enormously hopeful sign. The corruption in Italian politics, and Italian life, runs very deep, and saps an enormous amount of energy and enterprise out of Italian public life; it is a problem, or a series of inter-related problems, that obviously can only be solved by the Italians themselves, and the attention that has been drawn to these two books is probably the most hopeful sign in recent years that the political will to challenge decades and decades of entrenched power might finally be emerging. Worth watching, and hoping.
Fred Thompson vs. The UN's anti-self-defense campaign
Earlier this week, Sen. Fred Thompson wrote to Field & Stream magazine, criticizing the UN's campaign against the human right of self-defense. The Thompson campaign touted the letter on its website, and the letter got a favorable reception among many pro-Second Amendment bloggers.
The Thompson letter, including its quotation of the great Dutch philosopher of international law, Hugo Grotius, appears to have used as a source the Kopel/Gallant/Eisen article "The Human Right of Self-Defense," which is forthcoming in volume 22 of the BYU Journal of Public Law. (We're in the middle of the cite-check right now, so the draft on my website is not the final version. And kudos to the BYU staff for its hard work on a monstrous cite-check with hundreds of sources, many of them not in the collection of an ordinary law library.)
Sen. Thompson's letter prompted criticism from Kevin Drum of the Washington Monthly and Stephen Benen, both of whom relied on a refutation written by UN Dispatch, a weblog funded by the UN Foundation.
Today, the Knoxville News reports that it was UN Dispatch that got the facts wrong. The Special Rapporteur's Report which Thompson criticized (and which was adopted and endorsed by a submcommission of the UN Human Rights Council) quite explicitly says that personal self-defense is not a human right.
It's been a long time since a major presidential candidate quoted Grotius, and my view is the more Grotius in America's public debates, the better. I hope Pufendorf starts to get some attention too.
It's rather telling that the UN's American defenders fail to directly address an indisputable fact: U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense, and the subcommission, pursuant to the report, has declared that all national governments are required by international human rights law to implement various gun control provisions--provisions which, by the UN's standards, make even the gun control laws of New York City and Washington, DC, into violations of international law because they are insufficiently stringent. (See page 14 of the draft BYU article.)
President Bush vetoed the pork-laden $23.2 billion water project bill yesterday. The bill was the product of compromise between the House and Senate. According to the WSJ, the House passed a $14 billion bill, and the Senate passed a $15 billion bill. Each house sought to preserve its own earmarks, so at conference they compromised, producing a $23.2 billion bill.
Acting assistant attorney general Dan Levin apparently asked to be waterboarded when evaluating its legality, according to ABC News.
After the experience, Levin told White House officials that even though he knew he wouldn't die, he found the experience terrifying and thought that it clearly simulated drowning.
Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use.
UPDATE: Marty Lederman has more thoughts on this story here.
The Transportation Security Administration promotes its programs to ensure security by using undercover operatives to test its airport screeners. In one instance, however, the agency thwarted such a test by alerting screeners across the country that it was under way, even providing descriptions of the undercover agents.
The government routinely runs covert tests at airports to ensure that security measures are sufficient to stop a terrorist from bringing something dangerous onto an airplane. Alerting screeners to an undercover officer's timing and appearance would defeat the purpose.
But that's exactly what happened on April 28, 2006, according to an e-mail from a top TSA official who oversees security operations.
I wasn't following the comments on my "In Defense of Usury" post, since it was primarily just an excerpt from Karlan and Zinman's argument. I confess that I was surprised to see that there were so many comments and so much controversy about the study described in the Wall Street Journal column. Also, I apologize for the fact that I didn't realize that we had a spam filter that would interfere with comment postings (which apparently blocks out words like "loans"--looks what happens when I hang around with a bunch of constitutional law bloggers).
Several of the commenters raised the challenge that nothwithstanding the authors' conclusions, very high interest rates are still "immoral" and should be banned. But I don't really follow the logic of the critique--if there are no externalities, and those that borrow are better off as a result, what exactly is the argument for why high interest rate loans are immoral and should be prohibited?
The whole point of the column is that under a consquentialist theory, this is socially beneficial. It also certainly seems consistent with autonomy theory. And if the borrowers are generally better off overall from this and appear to understand what they are doing, I don't understand why it would be a problem under a paternalistic theory.
I've heard this argument pronounced previously--that certain interest rates are simply "too high" and shouldn't be tolerated. I'd genuinaly like to understand--what exactly is it that supposedly makes this transaction "immoral" such that it shouldn't be allowed? What is the theory?
Moreover, as the authors suggest, those who don't get this credit often will turn to even worse forms of credit, such as pawnshops or even illegal lenders. Or as one of the commenters notes, bounce a check, which may amount to as much as $50 in penalty fees. Paige Skiba's research suggests that those who use pawnshops often are those who wanted a payday loan and were turned down for it. So eliminating payday loans will force them to use pawnbrokers. And research by Gregory Elliehausen and others suggests that those who use payday loans are often those who can't get access to a credit card or are maxxed out on the credit cards they have. And Donald Morgan has found that increased competition in the payday lending industry leads to lower prices on payday loans.
Moreover, interest rates are just one of many price terms in a credit contract. Thousands of years of economic history has demonstrated one central point--if you regulate interest rates, then lenders will try to clear the market by repricing other terms of the contract, such as requiring larger downpayments, higher fixed underwriting fees, more onerous default criteria, etc. Retail stores, by contrast, simply bury credit prices in the cost of the goods they sell then increase the costs of the goods.
So usury regulations have three predictable consequences: (1) a cap on interest rates or regulation of other terms leads to a repricing of other terms of the credit contract to try to adjust, (2) Substitution to other, less-preferred credit products such as pawnshops and loan sharks, and (3) if none of that works to clear the market, credit rationing results. I discuss this extensively in my article "The Economics of Credit Cards."
For what it is worth, Karlan and Zinman have written a number of articles applying behavioral economics to consumer credit--that's the whole hook for the article. Notwithstanding the fact that people make errors, they are still better off by having access to regulated high-priced credit. At least some of those who are unable to get access to this regulated credit will end up borrowing in the black market from illegal lenders--at much higher cost (and perhaps not just financial).
Karlan and Zinman suggest, therefore, that we should avoid policies that end up forcing consumers to deal with illegal lenders. Instead we should focus on policies that will improve the working of the legal lending market, such as improving on the current disclosure regulation scheme (as suggested by the FTC's mortgage study published this summer). That certainly seems like a more sensible approach to me.
Once all of these unintended consequences are taken into account, and assuming that consumers are sufficiently well-informed that we can draw the sort of welfare conclusions Karlan and Zinman draw, it isn't evidence to me what the theory is that justifies prohibiting these sorts of high-cost loans.
Whether or not the Bush Administration is making bad arguments in defense of Judge Mukasey's nomination, it now looks likely he will be confirmed as the next U.S. Attorney General. The Washington Post is reporting that Senators Charles Schumer and Dianne Feinstein will vote in favor of his confirmation.
Jack Goldsmith's book is quite possibly the first sober account of the pressures that a post-9/11 president faces in the attempt to respond under the rule of law to the security threats facing this country. The book is largely a memoir of Goldsmith's service as an assistant attorney general for the Office of Legal Counsel (OLC), and of his terrible predicament as he found himself in the midst of an extraordinary debate among administration officials about how best to respond to the threat of terrorism. While OLC operates in relative obscurity for most Americans, it is in fact a genuinely significant institution of American government: all thorny legal questions within the executive branch are supposed to be submitted to this tiny elite office. OLC is the "decider" of these questions, and its judgments bind the entire executive branch.
In the fulfillment of his duties at OLC, Goldsmith said no to the White House on various matters, including torture and electronic surveillance. As a result, he soon left his Justice Department position and decamped to Harvard Law School. Now he has written this remarkable book--a book that anyone concerned about civil liberties in the war on terror must read. Goldsmith is not a civil libertarian. And this is not a kiss-and-tell book. It is a serious book with a serious lesson: that the war on terror is here to stay and will continue to pose extraordinary challenges to our current legal framework. Those inclined to think that the next administration will instantly shut down mass detention centers such as Guantanamo, or promptly terminate massive electronic surveillance under the Patriot Act, are likely to be sorely disappointed, no matter who sits in the Oval Office.
I agree with Katyal that The Terror Presidency is a must read, as much for those (like myself) who are inclined toward a more "conservative" view of international law and expansive view of executive power as anyone else. Combining first-hand accounts with thoughtful analysis and explanation of the relevant legal context, Goldsmith provides a quick tour of the central legal issues confronting post-9/11 counter-terrorism efforts. He also provides ample reason for those who have supported the administration on such issues to reconsider their position.
Among the many interesting points in Katyal's review is his cautionary discussion of the relevance of contemporary academic theories to the real world of governing and policy.
Reading Goldsmith's account of his experience of an academic theory applied to public policy in a time of crisis, one comes away with some rueful thoughts about the larger question of the relationship between the legal academy and the practice of law. The various events depicted in Goldsmith's book were set in motion by a wild notion dreamed up in America's law schools. Yoo's unitary-executive-on-steroids idea was not the first crazy theory to emerge from the legal academy; but it is likely the first to have achieved a secret stranglehold on the levers of government.
Law professors at elite universities today are predominantly theoreticians, paid to come up with large and original ideas. In the real world, if you came up with an idea like the John Yoo version of the unitary executive theory, you would get laughed out of town, because such a theory does not comply with the traditions and the values of this country. But in the legal academy, you get tenure. This trend in the modern law school, where practice has been subordinated to theory, has several consequences, but the most important one is that law professors can get sold on a theory with little understanding of how its implementation would work and what it would actually mean. There is little or no field-testing of these theories: legal scholars are rewarded mainly for cleverness and originality. The phenomenon is exacerbated by the fact that many top law schools are increasingly hiring faculty with no significant experience in legal or government practice.
Given the ideological leanings of most legal academics, I suspect this could be as great a problem, if not greater, in a prospective Democratic administration. It is a problem nonetheless.
I am not convinced by every point in Katyal's essay. For instance, I am not sure about his proposal to reform OLC. Still, those interested in these issues should read the review and, if they have not already done so, read Goldsmith's book.
I'm pleased to say that we're among the ten finalists in the Best Law Blog category for the 2007 Weblog Awards; the awards are currently being voted on.
In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be. That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method. On the other hand, I agree with Ann about the federalism point.
Oh, Please:President Bush is now complaining that Attorney General nominee Michael Mukasey is being treated 'unfairly' because some Senate Democrats are opposing his nomination based on his failure to state a position about the lawfulness of waterboarding:
The White House began a campaign Thursday to save the candidacy of Michael B. Mukasey for attorney general, with President Bush defending him in a speech and in an Oval Office interview, where he complained that Mr. Mukasey was "not being treated fairly" on Capitol Hill. With Mr. Mukasey’s confirmation in doubt over his refusal to state a clear legal position on a classified Central Intelligence Agency program to interrogate terrorism suspects, Mr. Bush took the unusual step of summoning a small group of reporters into the Oval Office to preview remarks he planned to make later in the day at the Heritage Foundation, a conservative research organization here. "I believe that the questions he’s been asked are unfair," Mr. Bush said. "He’s not been read into the program — he has been asked to give opinions of a program or techniques of a program on which he's not been briefed. I will make the case — and I strongly believe this is true — that Judge Mukasey is not being treated fairly."
I find this response absurd. To be clear, I support Michael Mukasey for Attorney General; I think he is an excellent candidate. And as I have mentioned before, I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.
But last I checked, the Constitution creates three branches of government, each with the ability to check the powers of the others. And given the six year history of the relationship between the Bush Administration and Congress since 9/11, objecting to Mukasey on these grounds strikes me as not only absolutely fair but even healthy for the Constitution.
Consider the context. The Bush Administration asserts that Congress has only limited powers to control the Executive through the traditional tools of legislation. As its many signing statements indicate, the Administration takes the view that it won't follow some kinds of laws that Congress passes but that Congress isn't allowed to know which laws it will or won't follow.
This is what happened with the laws on torture. When Congress passed a law banning torture in late 2005, the President's signing statement announced vaguely that the Executive branch that must apply the law in secret would do so "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." So what does that mean? The Executive Branch won't say.
If you're in the Senate and you actually want to have a role in "making the law" or even just want to know how it's being interpreted — kind of a traditional view, I would think — that leaves you with limited options. One option would be to take the appropriations route and try to cut off any funding for waterboarding or similar practices. But the same President who issued the signing statement presumably would veto that. So unless you have a veto-proof 2/3 majority, that isn't likely to work.
Your only other option is to fall back the one check that the President can't veto or interpret out of existence: Article II, Section 2's "Advice and Consent of the Senate" condition on senior Presidential appointments. If the Executive says its officers will interpret your laws only "in a manner consistent with . . . the unitary executive branch and [the] Commander in Chief" power, but won't actually tell you what that means, your one and maybe only straightforward tool for finding out what that means is refusing to confirm Presidential nominees who won't take a stand and tell you what position they will take. It's a modest tool, because there are always recess appointments. But at least it's something.
I think it's unfortunate that Mukasey's confirmation could be blocked by this. He's not the problem, and I think he will be a very good Attorney General if confirmed. But checks and balances are a good thing, not a bad one, and the Framers designed the Constitution that way for a reason. Given that, the idea that it is somehow "unfair" for the Senate to exercise this one modest tool Bush has left the Senate to have a role in interrogation policy strikes me as absurd.
UPDATE: Some commenters seem to have misinterpreted my post, so let me clarify. First, President Bush has every right to nominate who he wants as Attorney General. Second, President Bush has every right to make absurd arguments in support of his nominee to try to pressure Senate Democrats to confirm his nominee. My point is not about "rights," but about whether the President's argument is weak or strong. I think the argument is very weak, and that point has nothing to do with the "rights" of the President.
I'm pleased to say that we seem to be teaming up in a pretty systematic way. The kickoff event for the partnership is today's conference on secrecy and transparency in the civil justice system; California Supreme Court Chief Justice Ron George and 9/11 compensation fund Special Master Ken Feinberg will be speaking, among others. Cool.
U.S. Magistrate Judge Wayne Brazil issued a temporary injunction against the CSU system Wednesday, in which he struck down a portion of the CSU conduct code that mandates students "be civil to one another." That language would likely not survive First Amendment scrutiny at trial, the magistrate found.
"It's fine to say, 'We hope you're civil to each other,'" Brazil said from the bench. "It's not fine to say, 'We'll punish you if you're not.'"
The magistrate also told the CSU system it can only discipline students for "intimidation" or "harassment" when the health or safety of another person is threatened. In addition, Brazil struck down language in the San Francisco State University student handbook that holds out the possibility of corrective action against student groups if their members behave in opposition to SFSU goals and principles.
The case grows out of an anti-terrorism rally held last year by College Republicans at SFSU. The event turned testy when the Republicans stomped on Hamas and Hezbollah flags bearing "Allah" written in Arabic script. Onlookers from the school's Muslim community objected, and one started to climb on stage to remove the flag, according to the university's court filings. The two sides engaged in heated debate.
After the protest, the school received a complaint alleging the Republicans had violated the student code by attempting to "incite violence" and create a hostile environment, the school says in its court filings. After an investigation, the complaint against the Republicans was dismissed....
In considering Thomas Miles and Cass Sunstein's effort to measure "judicial activism" and the criticism it has generated, I am increasing persuaded that it is impossible to define "judicial activism" in a way that is both 1) useful, and 2) not simply a synonym for incorrect decisions. My tentative sense is that any ideologically or politically neutral definition of "activism" is unlikely to be useful in shedding light on the normative debate over what judicial review should be used for. On the other hand, normatively useful definitions of "activism" will tend to coincide with the analyst's definition of "incorrect decision."
It is certainly possible to define judicial activism in a neutral way. For example, Miles and Sunstein define "activism" in the context of judicial review of regulatory agency decisions as any judicial decision to overrule an agency. Similarly, one can define "activism" in the constitutional law field as any judicial decision to invalidate a statute enacted by a legislature. Such definitions of activism are objective, but not very helpful. Most critics of what they call "judicial activism" don't claim that any judicial decision that invalidates an action by the other branches of government is activist. Instead, they condemn such decisions only if they think they exceed the courts' legitimate authority or misinterpret the relevant law. Thus, knowing that Judge X votes to strike down statutes or overrule agencies more often than Judge Y tells us very little that is useful in determining who is more "activist" in any sense relevant to normative debates about judicial power.
Moreover, both liberal and conservative critics of "activism" often denounce as activist not only decisions that strike down laws, but also those that fail to do so. For a recent liberal example, see here; a recent conservative example is the denunciation of Kelo by some on the right as "judicial activism" (I personally agree that Kelo was wrongly decided, but not because it was "activist").
Of course, we could instead define "judicial activism" not as overruling other branches of government but as doing so without adequate justification. For example, originalists might argue that judges are "activist" when they strike down laws that are not forbidden by the original meaning of the Constitution. In that case, however, the real intellectual work is being done not by the concept of "activism" but by whatever interpretive theory is used to determine whether a given law violates the Constitution or not. For the originalist, the key analytical concept is original meaning or intent; "activism" becomes just another label to attach to decisions that aren't justified on originalist grounds. I don't object if people want to use the word "activist" in this way. But I also don't see how it adds anything to the argument.
There is one group of critics who can use the concept of "judicial activism" in a coherent and analytically useful way. A few scholars - including Robert Dahl and Mark Tushnet on the left, and Lino Graglia on the right - want to abolish judicial review altogether, regardless of the interpretive methodology the judges use. For writers in this camp, it indeed makes sense to define all judicial overruling of the political branches' actions as "activist" and to denounce any such decisions. For the rest of us, however, debates over "activism" are likely to add little of value to the deeper underlying debate over when courts are justified in using their power to strike down the actions of other branches of government.
A thought about Cryptonomicon I had from reading the comments on the Yamamoto thread, and that was confirmed by the poll results: It's hard to argue with those who love it, or those who hate it. But lots of people — at last count, 158, including me, out of the 459 that voted — say that it's one of their favorite novels (and that doesn't count the ones who said that it's merely excellent but not one of their favorites). My guess is that there are few novels that arouse such enthusiasm, even if many novels arouse less hostility.
So if you spend $9 plus sales tax in a bookstore, or $5-$6 or so (including shipping) from an amazon used book seller, plus 30 minutes or however long it takes for you to get a sense of whether you like the book, you have a decent chance of getting a novel that will become one of your favorites. Since I get tremendous pleasure from novels I really love, don't much care about the $5-$6, and am often willing to risk the 30 minutes, that sounds like a good gamble to me.
More broadly, many choices are not just about how likely you are to like something, but how much of a benefit you're likely to get out of it if you like it, and how much of a cost it will be if you dislike it. With some forms of entertainment, the downside is unlikely, but the upside is pretty low. With others, including certain kinds of books (or for that matter with trying a new restaurant), the downside may be more probable but not very expensive, and the upside can be great. If so, it's worth a try.
Thomas Miles and Cass Sunstein have now responded to critics of their study of judicial "activism" and ideological bias in Supreme Court review of administrative agency decisions. To briefly recap the Miles-Sunstein methodology, they code as "activist" justices' votes to overrule agency decisions instead of defer to them, and they characterize the justices as ideologically "partisan" if they are more likely to vote to strike down "conservative" agency decisions than "liberal" ones or vice versa.
In an earlier post, which Miles and Sunstein kindly cite in their reply, I criticized their approach on three grounds: that it fails to control for the underlying distribution of agency decisions (ignoring the possibility that an agency may make more flawed "conservative" decisions than liberal ones, or vice versa); that it ignored the fact that some justices may have centrist ideologies that skew their decisions just as much liberalism or conservative ones; and that their praise of Justice Breyer as the most "restrained" and "humble" justice may be misplaced in so far as he may actually have ideological reasons for maximizing the autonomy of agency bureaucrats.
Miles and Sunstein respond to the first of these points as follows:
If the distribution of agency decisions were skewed in a liberal direction, as some critics allege, we should have observed few or even no challenges from public interest groups. Instead, we observed a fair number of such challenges. Moreover, our study period included many decisions from both the Clinton and the Bush administration, and it would be a big surprise if decisions by the latter were mostly “liberal.”
I don't think that if agency decisions were skewed in a liberal direction, it necessarily follows that there would be "few or no challenges from [liberal] public interest groups." The agency could skew in a liberal direction, but the public interest groups might want it to be skewed that way even more. Moreover, an agency skewed in a liberal direction may be more likely to be influenced by challenges from liberal groups to change its policies than one that is conservative. After all, a liberal agency is more likely to sympathize with the agenda of outside liberal critics. Thus, far from preventing challenges to its actions by liberal groups, a liberal-biased agency might actually attract them.
Moreover, the issue in question is not so much whether an agency makes "mostly liberal" decisions as whether it is more likely to err in its interpretation of the law in a liberal direction than a conservative one. If it does, than justices who are more likely to overrule liberal decisions than conservative ones may not be acting in a "partisan" manner, as Miles and Sunstein contend. For example, it's theoretically possible that an agency makes 80% "conservative" decisions, but that half of the 20% that are "liberal" are misinterpretations of the law, while none of the conservative ones are. In such a scenario, the agency makes many more conservative than liberal decisions, but the direction of its errors would still be skewed in a liberal direction. Contrariwise, we might get the opposite result if an agency is more likely to make conservative errors tahn liberal ones.
I am also not convinced that including the Bush administration necessarily protects against the possibility that erroneous agency decisions will skew in a liberal direction. The Bush Administration is a "big government conservative" group that has not paid much attention to regulatory reform, and that has strongly supported massive increases in domestic spending. It would not be surprising if in many agencies, a lot of decisions were left to the permanent bureaucracy (which is often liberal) and if many of those decisions would tend to skew liberal. Such a skew might even be acceptable to those Bush political appointees who approve of the massive growth of government that the Administration has presided over and (for the most part) supported. Probably, any such skew would be smaller than in a Democratic administration, but it may not be nonexistent.
I should emphasize that there are also theories that suggest that agency decisions are systematically skewed in a conservative direction rather than a liberal one. The Miles-Sunstein framework fails to address those theories either.
Lastly, I should note another problem with the Miles-Sunstein categorization scheme. As they note in their response to critics, "[a]gency decisions challenged by industry were deemed liberal, and those challenged by public interest groups were coded conservative." Since Adam Smith, free market advocates have recognized that business interests often favor government regulation when it suits their self-interested purposes. For example, businesses often favor regulations that hobble their competitors. Thus, the fact that an agency decision was challenged by "industry" doesn't necessarily mean that it was "liberal" (at least in the sense of being anti-free market). Similarly, a decision challenged by public interest groups isn't necessarily "conservative." There are now many libertarian and conservative public interest groups such as the Washington Legal Foundation that often challenge agency actions. As Miles and Sunstein correctly note, their coding methodology here is fairly standard in the field. But that doesn't mean that it is unproblematic.
UPDATE: Ed Whelan of the Ethics and Public Policy Center has also written a rejoinder to Miles and Sunstein's reply to his original critique of their study. See here.
There is a brilliant column in today's Wall Street Journal by Dean Karlan and Jonathan Zinman, "In Defense of Usury". Here's an excerpt, but of course the whole thing is worth reading.
The authors note the behavioral economics critique of consumer credit use, i.e., that consumer may lack impulse control and the like. But they observe:
But even consumers making flawed decisions may be better off when they can borrow from regulated financial institutions at "excessive" rates.
Our organization, Innovations for Poverty Action, tested this proposition. We worked with a successful finance company in South Africa to randomly choose some just-below-the-normal-approval-bar applicants to receive a four-month installment loan. The lender charged its normal rate: 200% APR. The remaining, just-below-the-normal-approval-bar applicants (the "control group") were rejected in line with the lender's normal credit policy.
We then tracked both groups over the next six to 27 months, measuring their well-being based on a range of economic, social, health and mental health measures. Applicants who were randomly approved for a loan had higher incomes, less hunger, better credit scores and more positive outlooks than their control group counterparts -- even after paying the high interest rate. Though they had higher than normal default rates, the borderline loans were also profitable for the lender.
The new borrowers did report higher stress and depression levels than the control group. But overall, the borderline loans objectively did more good than harm. Our findings are striking because governments that restrict credit access do so on the premise that consumers make themselves worse off by borrowing at high rates.
How can it be that consumers get preyed upon in the market, yet still end up better off? One possibility is that returns to borrowing swamp the cost of consumer mistakes. Rolling over payday loans repeatedly might cost you big bucks; but it can turn out to be a good deal if you need the initial loan to fix your car, hold on to your job and avoid losing even bigger bucks in after-tax earnings.
Another possibility: The alternative to being gouged by a financial institution is being gouged more expensively by an unregulated lender.
Karlan and Zinman's findings are consistent with those of Adair Morse, who found in her article, "Payday Lenders: Heroes or Villains?" that communities that allow payday lending are more resilient in responding to natural disasters in terms of the overall welfare of individuals who live there in terms of foreclosures, births, deaths, and alcohol and drug treatment.
I hope to blog something that's nonobvious — or at least not entirely obvious — based on the results of this poll (of course, if the results are as I expect them to be); so if you can participate, I'd be much obliged.
Oral Argument in Danforth v. Minnesota:
Yesterday the Supreme Court held argument in a fascinating habeas case, Danforth v. Minnesota. It's a pretty rich and important case, so I wanted to offer some thoughts about it.
The issue in Danforth is whether state courts are bound by the limitations the Supreme Court imposed on federal habeas jurisdiction in a 1989 case, Teague v. Lane. In Teague, the Court held that when the Supreme Court changes the law in a pro-defendant direction, criminal defendants sitting in jail can't come into federal court to take advantage of the new pro-defendant rule. The basic idea is that federal habeas corpus relief is only about being unfairly imprisoned based on the rules that existed at the time you were charged and convicted; you don't get more bites at the apple if the Supreme Court decides to change the law and make an old procedure that used to be okay now unlawful. (Teague is actually much more complicated than that, but that's the basic idea.)
The question in Danforth is what to do about habeas claims brought in state courts. Let's say the U.S. Supreme Court creates some new rules that help criminal defendants, and a prisoner wants to come into state court and try to get the benefit of the new rules. Does the Teague limitation apply? Or can can individual state courts craft broader rules of jurisdiction that give defendants another bite at the apple in state court even if Teague bars that in federal court?
The question is tricky because it hinges on difficult question of what Teague meant or should be construed to mean, which in turn hinge on all sorts of contested questions about retroactivity and even the nature of judicial decisionmaking. The Teague opinion is an oddity; Justice O'Connor played legislator to address an issue the parties in Teague hadn't even addressed, and now we have to figure out just where those limitations came from and what they mean. Are the Teague limitations part of federal common law? Some sort of construction of the federal habeas statute? If so, then they shouldn't be binding on the states. That's Danforth's argument: He argues that teague was for federal courts only, and that it has nothing to do with state court jurisdiction.
Alternatively, was Teague some sort of constitutional background rule intended to be a general constitutional principle that attached to new criminal procedure decisions? In particular, does Teague stand for the notion that if a defendant is convicted and his sentence finalized based on the law as it stood, does that mean that the Constitution wasn't actually violated even if the Court later changed the law to something else? If so, then the Teague rule should be binding on the states.
The question is particularly difficult because it's not clear how Teague relates to the broader question of retroactivity of Supreme Court decisions. My own sense, after having re-read Teague and the briefs in the case, is that the defendant Danforth characterizes Teague accurately. Justice O'Connor's opinion in Teague was all about good policy and hardly at all about the Constitution. Given that, I think of Teague as being the rule for federal court but not the states. But that prompts the broader question: beyond the confusing opinion in Teague, is retroactivity a question of federal constitutional law or just federal common law? That's trickier. My instinct is that the states should be able to do what they want, but it seems an unsettled question.
Based on the oral argument transcript, it looks like there are probably five votes for the view that the Teague rule reflects general federal constitutional principles. The one to watch here is probably my former boss Justice Kennedy, and his view seemed unusually clear: He sees retroactivity as a matter of federal constitutional law, and he suggested that if states want to give defendants broader rights they can read their own state constitutions more broadly. He asked four or five questions expressing concern with the finality of judgments, suggesting that he saw Danforth's position as undercutting the power of the Supreme Court to define the meaning and scope of the Court's own decisions. (see, e.g., page 21, question to Danforth's counsel: "You want us to write an opinion which begins with the sentence, 'This Court has no interest in the extent to which its constitutional decisions upset final judgments'?" ; see also p.31, p43). While you can never tell where a Justice may end up based on his argument questions, I think Kennedy's questions in this case are unusually revealing.
If that view prevails, I wonder how states and state courts will respond. In particular, states would have an easy work-around if they wanted to take it. A state Supreme Court could simply say something like this: "We interpret our state Bill of Rights to mean exactly what the U.S. Supreme Court says the federal Bill of Rights means. However, we interpret our state constitutional law of retroactivity to be broader than the federal constitutional law of retroactivity recognized in Danforth v. Minnesota." I don't know how likely state courts are to do this; I don't know anything about retroactivity of the different state constitutions. But such a decision by a state court would replace the "federal" label attached to the right with a "state" label without changing the right one bit. It would make the Danforth case a matter of form more than substance.
Refusal to Be on Panels, Israeli Soldiers, and Obstetricians:
The post about the University of Delaware professor who seemingly refused to be on the same panel as an Israeli ex-soldier led some commenters to defend the professor. In the professor's view, the commenters reasoned, Israeli soldiers do (and not just advocate) very bad things; if the professor thinks that those things are so bad that they put the soldiers beyond the pale, then we shouldn't condemn the professor for refusing to share a panel with the soldiers, even if we disagree with his view.
I don't think this is quite right; I agree that professors are entitled to decide which panels they'll be on and which they won't be on, and to refuse to be on panels with people they see as especially evil. But I think that it's proper for us to judge their decisions, and condemn them for narrow-mindedness if we disagree with their judgment about this evil.
Here is an analogy that came to my mind; I realize it's not perfect, but it seems to me helpful. (Note that the analogy focuses only on evaluating a professor's refusal to be on the panel; I am not claiming that the students' reaction to this refusal would be the same in this hypothetical as it was in the real Delaware case.)
Say Professor X writes about medical ethics, including matters related to abortion, and say he believes that abortion is murder (or something morally close to it). He therefore believes that anyone who has performed an abortion, or who has participated in performing it, even indirectly, is a murderer. Assume that in Professor X's country, a medical education as an obstetrician and gynecologist requires people to learn how to perform abortions, including by participating in actual abortions.
Professor X therefore refuses to be on any panels with anyone who has been educated as an obstetrician, or who is involved in an organization that performs abortions (such as Planned Parenthood, or for that matter virtually any hospital in this country). He also suggests to people that they disinvite such other panelists if they want to keep him (X) on the panel. And this is so even though many of the people who have interesting and useful things to say about abortion ethics, abortion law, and reproductive law, ethics, and policy more broadly are obstetricians or are associated with organizations that perform abortions.
What would we say about Professor X's decision, especially if we disagree with his views about abortion? Well, we surely wouldn't try to legally force him to participate on the panels, or threaten him with losing his job as a professor (which in any case doesn't require participation on panels at all). He should be free to choose whom to share a table with.
But I think we would condemn him in some measure, because his decision undermines useful academic debate, and because it reflects an improper narrow-mindedness. I take it we'd say that he should engage with people whose views and actions he disagrees with, and try to persuade them (and, more likely, their listeners) that his views are better.
Nor would we be much moved by his argument that "I think people who perform or assist in abortions are like Nazi concentration camp guards; you wouldn't fault me for refusing to be on a panel with an unrepentant Nazi -- likewise, don't fault me for refusing to be on a panel with someone I see as morally tantamount to a Nazi." I think we'd acknowledge that some views and actions are beyond the pale morally, and it's not improperly narrow-minded for an academic to refuse to engage them. But I think we'd say that this is so only as to those views and actions that really are beyond the pale; and if someone has what we see as the wrong view about where the pale is to be drawn, then we can properly condemn that person's judgment.
The same, I think, applies here to Khan. If he thought that Israeli ex-soldiers are morally beyond the pale, and he were right on his moral judgment of Israeli ex-soldiers, then I would accept (perhaps even praise) his decision not to share a conference panel with them. But he has to be right on that moral judgment. If he's wrong, and I think he is, then his position is as narrow-minded and as improperly undermining of scholarly debate, as an abortion ethics scholar's decision not to share a panel with anyone who was educated as an obstetrician and therefore performed or assisted in abortions.
Asaf Romirowsky and Academic Freedom on This Blog:
A reader mentioned to me that Asaf Romirowsky, whose disinvitation I condemned earlier this week, is also the author of a column that I condemned on academic freedom grounds earlier this year. I don't see much of a logical connection between the two, but the reader suggested that I note this, and I thought others might be interested in the link as well.
University of Chicago law professors Thomas Miles and Cass Sunstein further explain their analysis of judicial "activism" on the Supreme Court, and respond to criticisms, at the University of Chicago Faculty Blog.
The critics contend, rightly, that we do not look at the high-profile constitutional cases. But the number of such cases is small, and it isn’t easy to test competing hypotheses about partisanship and restraint. Whelan argues that we fail to examine whether the agency ruling is correct. We agree that an ideal measure of judicial activism would identify the situations in which judges pursue their own ideological goals at the expense of the “correct” legal outcome. Many studies have demonstrated that ideology influences judicial decision-making in a vast range of legal contexts. But these studies generally provide no measure of the correctness of the judges’ decisions. The absence of a “correctness metric” shows that it is most difficult to measure correctness in a way that can produce empirical studies of competing hypotheses.
We chose to investigate the justices’ votes in challenges to administrative agencies’ interpretations of law because this context provides an excellent way of testing for both partisanship and activism. The Court’s own decision in the Chevron case strongly suggests that a justice’s willingness to uphold an agency’s interpretation of should not depend on whether the agency’s decision was liberal or conservative. We think that our approach is an innovation over the existing academic literature, and we know that it is a vast improvement over unsubstantiated, anecdote-driven claims about judicial behavior.
The critics allege that the design of our study is flawed because the distinctive context of agency decisions makes it more likely that conservative judges will appear activist. If the data sets include mostly liberal decisions, then of course a liberal justice will show a higher validation rate than a conservative justice. But this objection is misconceived. In addition to measuring overall rates of agency validation for the justices, we also examined whether each justice was more likely to favor an agency when the agency decision was liberal rather than conservative. We coded the political orientation of each agency decision according to an objective method used by several prior academic studies. Agency decisions challenged by industry were deemed liberal, and those challenged by public interest groups were coded conservative. If the distribution of agency decisions were skewed in a liberal direction, as some critics allege, we should have observed few or even no challenges from public interest groups. Instead, we observed a fair number of such challenges. Moreover, our study period included many decisions from both the Clinton and the Bush administration, and it would be a big surprise if decisions by the latter were mostly “liberal.”
When we looked at the data, we observed two key facts. (1) Certain justices’ rates of validation – but not others — varied widely with their own political leanings. (2) Certain justices’ rates of validation – but not others — rose when the agency interpretation agreed with their political leanings and fell when it disagreed. These two patterns suggest that certain justices are, according to this imprecise metric, reaching decisions that were likely not correct. Moreover, the patterns strongly suggest that partisanship or ideology influenced certain decisions. (Justice Thomas is the prize-winner for partisanship, but Justice Stevens is a close second.) Judicial ideology appeared to influence some justices’ votes in the very context in which courts ought to defer to agencies. By our measure, these patterns smack of judicial activism.
How can someone as intelligent and informed as Krugman concoct an interpretation of the post-World War II era that does such violence to the facts? How can someone so familiar with the intricate complexities of social processes convince himself that history is a simple matter of good guys versus bad guys? Because, for whatever reason, he has swapped disinterested analysis and scholarship for ideological partisanship. Here, in a revealing choice of phrase, he paraphrases Barry Goldwater’s notorious line: “Partisanship in the defense of liberty is no vice.”
To be a partisan is, by definition, to see the world partially rather than objectively: to identify wholeheartedly with the perspectives of one particular group and, at the extreme, to discount all rival perspectives as symptoms of intellectual or moral corruption. . . .
I understand the us-versus-them pleasures of ideological partisanship. In my younger days, I indulged in them with gusto. But at some point, ideology joined Santa Claus and the tooth fairy in my attic of discarded beliefs. Firm values, yes; definite points of view on contested empirical questions, to be sure — but to see a country as diverse, yet blessedly prosperous and stable, as this one as an ongoing war between angels and devils is to live in a fantasy world.
Just spotted an error in my post a few moments ago. Jeff Fisher (who remains as before an excellent lawyer) was on the opp in Exxon. My mistake. Too much Halloween candy, perhaps.
These second set of comments are just terrific. I am going to select out just a few for response.
1. It is certainly true that the impact of the advocate is greater at the cert stage than on the merits. I draw that distinction in the article and explain the reasons why, which largely relate to the amount of time the nine chambers are able to devote to cert (relatively little) as compared to the merits (much more, especially with the smaller docket). But the two cannot be completely severed because the cert stage sets the table these days for the merits. The percentage of affirmances has gone down over time. So success at the cert stage tends to become success on the merits, especially when the expert petitioner effectively repitches the case by raising issues differently than done below and the less effective respondent fails to object and becomes subject to a Rule 15.2 waiver.
2. Several comments raised the question whether the reputation of the counsel, wholly apart from the actual quality of the brief in a particular case, makes a difference. Based on my own experience and accounts of interviews with Supreme Court clerks, the answer seems clearly to be yes at the cert stage. Certain briefs are read more carefully and have more threshold credibility because of their author. This is true for petitions and certainly true for amicus briefs.
Of course, in most instances, the quality of the brief and the counsel’s reputation are aligned. After all, that is why the counsel has such a strong reputation. But I am less persuaded that reputation alone, apart from the quality of the presentation, is controlling on the merits. At that point, actual quality not theoretical quality is what counts. Still here, when many amicus briefs are filed on the merits and only some are read closely, those authored by counsel whose names the Justices and clerks know are more likely to get a careful look.
3. I don’t think there is much question that the vast majority of the top private Supreme Court Bar won’t take on a pollution control case, whether pro bono or not (and most are pro bono). I frequently find counsel for folks with cases before the Supreme Court. For most types of cases, it is simply not a problem to interest, literally within two hours, some of the top Supreme Court lawyers. They will compete vigorously for these cases, agreeing to lengthy interviews, outlines of arguments, for the opportunity to take on a case. This competition extends to classic pro bono cases: death penalty, Free Exercise and Establishment Clause, Fourth Amendment criminal defense cases.
But give me a pollution control case and they will almost all beg off. Not because they would not like to do the case. Or because they like pollution. These folks love Supreme Court work and frequently chafe under their firm conflict policies. But they can’t take them. It is bad for business as one comment pointed out.
Now, as one other comment suggested, this may prove to be a transitional moment and, if the Bar concludes that there is money to be made on the plaintiff’s side, we may well see such a practice develop. There are already a handful of excellent SCT lawyers who have shown a willingness to take the plaintiff’s side in business cases. David Frederick of Kellogg Huber.. is one obvious example. If the demand and paying clients develop, the Bar over time will respond.
Finally, one comment asked if I was deliberately using “pollution control” in talking about environmental cases. I was. There is far less of a conflict problem presented by natural resource law issues (e.g., public lands, national forest management) than by the kinds of air, water, and hazardous waste issues that implicate much of industry.
4. On the Exxon case, I knew I was going to get into trouble on that one, but provocation has its upside. The responsive comments were great. But I do have a few responses.
The first is that I was careful to say that cert might have been denied not just if an expert had written the opp but if BOTH an expert had written the opp AND a nonexpert had written the petition. I was not saying that changing just one of the variables would have made the difference. Note that petitioner was able to do the heavy lifting necessary to get 13 amicus briefs filed in support, in addition to putting the case in its strongest possible light in the petition. It takes great connections in the Bar to get that accomplished. A poorly drafted petition from the same ruling, without that amicus support, met by an effective opp, would, I still believe, likely have been denied. And that is all I was saying.
But now let me say more. I agree that Jeff Fisher is a great Supreme Court lawyer. I did not, however, see his name, however, listed on the brief in opposition. So I am not sure why the comment supposes he worked on the brief.
In addition, briefs in opp are a special talent and knowing how to write a good cert petition is not knowing how to write an effective brief in opp. An opp is a truly odd device. The opp’s goal is to take an extremely important significant lower court win and make it seem incredibly boring, technical, insignificant, and uninteresting. One has to avoid the temptation to get sucked in to a deep discussion of the merits. Good opp writing is a peculiar skill.
Now, perhaps the brief in opp in Exxon is as good as it could have been. The firm on that side is certainly an excellent law firm and maybe Dellinger’s skill (including the bringing together of 13 amici) made it a fait accompli. I can not know for sure. And, as before, I still have not had time to read the opp in detail.
But one reason I have not is that the opp is 30 pages, the max allowed by the Rules. I must confess that the page length alone causes me a little concern. When in the SG’s Office, we learned that a long opp was often (not always) a mistake, because it unavoidably suggested that the case was interesting and invited the clerks to think long and hard about the merits and spend more time on it. The purpose of an opp is not to persuade the clerks that the decision below is right and truth and justice have been vindicated. It is to persuade them that it is uncertworthy and that can typically be done in a very few pages and when done in that manner, the short page length underscores your claim that cert should be denied.
Less in opps is almost always more. My goal for opps was 10 pages and, if at all possible, no more than 15, and I loved 5-10. A complete diss.
As for Allison Engine, the comment may well be right that the case was a slam dunk cert grant. As I said before, I have not looked at the case closely. My only point here is that what often looks like a slam dunk from the cert petition has taken a lot of work to look that way. I have read some lower court opinions, followed by a Carter Phillips cert petition, and been quite amazed at how the case has been effectively transformed to seem certworthy (and then cert is in fact granted). And, while it looks easy once it is written, that is only because of the expertise reflected went within it. And, conversely, a certworthy case in the wrong hands quickly becomes cert denied. It happens all the time.
One more caveat about Exxon and Allison Engine, which is to start where I began with them. I do not want to hold them out as poster-cases in support of my thesis. That would require far more study of their details than I have given and the opps in both cases might well have in fact been spectacular.. My article already contains enough internal support to warrant my conclusions and I would encourage those interested to take a look at it. What has been inevitably simplified for the purpose of this blog is treated in a far more nuanced and careful way in the full article. I mentioned those two cases only because the timing of two more grants from two leading members of the bar just as my blog was undergoing was too irresistible to go unmentioned.
Finally, it is important to stress that one can be a spectacular lawyer without being a spectacular Supreme Court lawyer. And, many of the best Supreme Court lawyers would be truly miserable trial lawyers. They don’t have the correct skill set. And, yes, of course, there are some trial lawyers who would also be excellent Supreme Court lawyers. Some of the best arguments before the Court are by the trial counsel who handled the case the entire way. They tend, however, to be the exception just as the excellent Supreme Court lawyer who can be an excellent trial lawyer is also the exception. Specialization in the practice of law, including litigation in general and Supreme Court litigation in particular, has its advantages. And, what we are witnessing right now is a group of lawyers effectively exploiting those advantages to an extent not seen before the Court since the early 19th Century.
When Law Students Set the Curve:
After reading this New York Times story about a Stanford Law School student group that is rating law firms on lawyer diversity, I visited the website and was immediately struck by something: When grading the law firms, the students used a flat C curve. Ouch!
Richard Pierce on Law School Curricular Reform:
The New York Times has a story today on curricular reform in law schools. My colleague Richard Pierce, who has taught for 30 years at several different schools (Kansas, Tulane, SMU, Columbia, and GW) and briefly was the Dean of one (Pittsburgh), e-mailed around a skeptical response. I thought it was worth passing on, so I have reprinted it with his permission (with a few minor edits and paragraph breaks added by me):
The Times story is a laugher for those of us who have been around for a while. It reports on "curricular innovations" that are being adopted by many schools. Number one is a required first year course in legislative and administrative law. Jerry Mashaw and I were just yuching it up about this innovation. Jerry, Dick Merrill, and I were victims of this new idea when UVA adopted it in 1969. UVA abandoned it after 5 years. Students hated it, and profs complained that students learned much less ad law when they were required to take the course and when they lacked basic building blocks like civ pro and con law. I was victimized a second time by a variation on this theme when Columbia hired me in 1989 to teach its new required first year course in foundations of the regulatory state. That was one of 3 new required first year courses Columbia introduced that year. None of the 3 survive today. A student poll ranked them 3 of the 4 courses students disliked the most. (Thank God for Trusts & Estates). The second most popular innovation mentioned by the Times is a mandatory externship. [GW Law has] had a successsful externship program for many years, probably because of the quality of the people who have run it combined with a legal community that provides unrivaled opportunities for good externships. The long history of externships around the country is rich and not particularly encouraging, however. When I was at Tulane, we had a fascinating debate about a proposed externship program. The ABA had just concluded an investigation of externships that found that most students were not supervised and were assigned tasks like copying documents or acting as messengers. Moreover, two student externs at a Florida law school had just been indicted for playing minor roles (basically bagmen) in extensive operations run by high-ranking state officials who were engaged in narcotics distribution. Our debate at Tulane focused on nice questions like: how could we explain a decision to refuse to provide externs to various important state agencies that we had reason to believe would use the externs to participate in criminal conduct? We concluded that we could not adequately explain such decisions, and we rejected the proposal to create an extern program.
Asaf Romirowsky, a fellow at the Middle East Forum and an Israeli Defense Force (IDF) veteran ... was invited to speak at a university forum sponsored by the College Republicans and College Democrats on the topic of anti-Americanism in the Middle East. Others scheduled to appear on the panel included Clinton-era National Security Council official Stuart Kaufman, University of Delaware political science professor Muqtedar Khan and a graduate student.
But upon learning that the university had invited Mr. Romirowsky, who is also manager of Israel and Middle East affairs for the Jewish Federation of Greater Philadelphia, to appear at the forum, Mr. Khan wrote a letter to one of the panel's organizers, identified only as "Laura," expressing displeasure at having to appear publicly with a former IDF soldier.
—— Original message ——
Date: Tue, 23 Oct 2007 20:02:29 -0400
From: "Muqtedar Khan"
Subject: Re: Understanding Anti-Americanism Panel
To: [Names redacted]
Laura, I have to speak at the Pentagon tomorrow. My
workshop is from 12-4. I hope to catch the 5 pm
Acela from DC and will be back in town by 7 pm. I
will come directly, but may be late. I am also not
sure how I feel about being on the same panel with
an Israeli soldier who was stationed in West Bank.
Some people see IDF as an occupying force in the
West Bank. I am not sure that I will be comfortable
occupying the same space with him. It is not fair to
spring this surprise on me at the last moment.
Panel organizers subsequently told the IDF veteran, a citizen of both the United States and Israel, that he ought not attend the panel but that he would find himself welcome speaking to university students at a later date. Mr. Romirowsky said he would rather not do so....
Mr. Romirowsky, currently working toward his Ph.D. in Mediterranean Studies at Kings College in London, has called attention to the ties Mr. Khan has forged over the years to groups allegedly affiliated with Islamic terrorists. [Details omitted. -EV]
Khan said he was only expressing his discomfort and that he would not have suggested anyone be excluded. He said that when he arrived at the event, he assumed Romirowsky would be there. He added that people who received his e-mail had missed the humorous tone, in which he said he was trying to be “cute” with references to “occupying the same space” intended as an ironic reference to Israel’s occupation of the West Bank.
A few thoughts:
1. From what I know, it seems to me a mistake to say, as The Bulletin and Michael Rubin said at the start of their items, that "the University of Delaware" disinvited Romirowsky. As best I can tell, the student groups decided to put on the event, they decided whom to invite (though I imagine they might have gotten some advice from faculty members), and they decided how to react to the Khan e-mail. I'm unaware of any decision that the University of Delaware or its departments or leaders made here; perhaps the University administrators should have counseled the students not to withdraw the invitation (not required them, which would itself have interfered with the students' right to select their speakers, but counseled them), but it's not clear that the administrators were even given an opportunity to do so.
2. The decision to disinvite strikes me as wrong. First, it's rude; it pretty clearly conveys a message to the disinvited person that he's less important than the person who doesn't want to share the stage with him, and while that's often said implicitly simply by the decision about whom to invite in the first place, good manners generally precludes doing this expressly, once the invitation has been given. Second, it shows a willingness to give in to someone's desire to exclude a wide range of important contrary speakers (more on this shortly).
3. At the same time, remember that these are college students in mainstream college organizations, who are trying to put on a successful event but are facing the prospect of losing one speaker. They're likely not very experienced in such matters, and easily spooked, especially by professors at their own institution. It's thus pretty easy for them to get buffaloed into doing whatever it takes to keep the more illustrious speaker, even when such an action is wrong for the reasons I mentioned above. They were put in a difficult position by Prof. Khan's message, and while they reacted the wrong way to it, I wouldn't condemn them as harshly as I would an academic department that did the same.
4. The main fault here, I think, is Prof. Khan's, but the matter is a bit complex. It's not inherently wrong for a person (including an academic) to refuse to share the stage with some other person, even when the refusal is based on the other person's speech. Sometimes this happens, and properly so, when one person thinks another has been intolerably rude, or academically dishonest. Sometimes it happens when one person thinks another has views that are just beyond the pale.
But if one draws the pale in a way that excludes a vast range of people who have important things to say about one's field, that suggests an unwillingness to engage in serious debate about the field. And if one draws the pale based on the excluded people's supposed moral failings, then outsiders will have to judge if your moral sense is right, and can rightly condemn you for academic narrow-mindedness if your moral sense is mistaken.
It seems to me that Khan's message strongly suggested — despite his later characterization of it — that he would not willingly share the stage with any former Israeli soldier, which basically means pretty much any Israeli (since pretty much all Israelis had to participate in the military). That's a huge chunk of the people who have important things to say about the very topic in which he specializes. The position strongly suggested by his message thus undermines the possibility of serious and helpful debate on the subject. And his moral judgment, which seems to be that mere past membership in the Israeli army makes someone unworthy of debating, strikes me as quite repugnant, for all the familiar reasons. True, others may disagree with me for all their familiar reasons; but I think they are mistaken, and mistaken in a way that undermines serious academic debate.
Relatedly, Khan should have realized — and perhaps did realize — that there was a good chance that his message would be read as more or less a demand that students disinvite Romirowsky. I think it would have been unduly narrow-minded, in a way that's especially unsuitable for an academic, for Khan to say, "I'm sorry to hear Mr. Romirowsky was invited; given this, you of course have to keep Mr. Romirowsky on the panel, but I have to withdraw." But it's worse when one sends a message to students that complains about the "unfairness" of the invitation to Romirowsky, that strongly suggests one will be uncomfortable sharing the panel with him, and that, in my view, implicitly suggests that the author will quit the panel if the other invitation continues to stand.
An academic sending such a message should, I think, realize that students may well panic and improperly withdraw the invitation. If that was Khan's intention, that's especially bad; but even if it wasn't his intention, any academic who deals with student groups should have recognized that this would be the likely result of such a message.
All this talk of Admiral Yamamoto of course reminds me of one of my favorite novels, Neal Stephenson's Cryptonomicon, and of one of my favorite passages from that novel, a passage written in Admiral Yamamoto's voice and set just before his death. I stress that this is not relevant to my argument about Justice Stevens and his reflections -- it's just what my cranial database always brings up when I see "Yamamoto."
To those Army fuckheads, [the decision not to deliver the declaration of war until after the Pearl Harbor attack] is nothing -- just a typo, happens all the time. Isoroku Yamamoto has given up on trying to make them understand that the Americans are grudge-holders on a level that is inconceivable to the Nipponese, who learn to swallow their pride before they learn to swallow solid food. Even if he could get Tojo and his mob of shabby, ignorant thugs to comprehend how pissed off the Americans are, they'd laugh it off. What're they going to do about it? Throw a pie in your face, like the Three Stooges? Ha, ha, ha! Pass the sake and bring me another comfort girl!
Isoroku Yamamoto spent a lot of time playing poker with Yanks during his years in the States, smoking like a chimney to deaden the scent of their appalling aftershave. The Yanks are laughably rude and uncultured, of course; this hardly constitutes a sharp observation. Yamamoto, by contrast, attained some genuine insight as a side-effect of being robbed blind by Yanks at the poker table, realizing that the big freckled louts could be dreadfully cunning. Crude and stupid would be okay -- perfectly understandable, in fact.
But crude and clever is intolerable; this is what makes those red headed ape men extra double super loathsome. Yamamoto is still trying to drill the notion into the heads of his [Army] partners in the big Nipponese scheme to conquer everything between Karachi and Denver.... Come on guys, Yamamoto keeps telling them, the world is not just a big Nanjing. But they don't get it. If Yamamoto were running things, he'd make a rule: each Army officer would have to take some time out from bayoneting Neolithic savages in the jungle, go out on the wide Pacific in a ship, and swap 16-inch shells with an American task force for a while. Then maybe, they'd understand they're in a real scrap here.
This is what Yamamoto thinks about, shortly before sunrise, as he clambers onto his Mitsubishi G4M bomber in Rabaul, the scabbard of his sword whacking against the frame of the narrow door. The Yanks call this type of plane "Betty," an effeminatizing gesture that really irks him. Then again, the Yanks name even their own planes after women, and paint naked ladies on their sacred instruments of war! If they had samurai swords, Americans would probably decorate the blades with nail polish....
They are approaching the Imperial Navy airbase at Bougainville, right on schedule, at 9:35. A shadow passes overhead and Yamamoto glances up to see the silhouette of an escort, way out of position, dangerously close to them. Who is that idiot? Then the green island and the blue ocean rotate into view as his pilot puts the Betty into a power dive....
They enter the jungle in level flight, and Yamamoto is astonished how far they go before hitting anything big. Then the plane is bludgeoned wide open by mahogany trunks, like baseball bats striking a wounded sparrow, and he knows it's over.... As his seat tears loose from the broken dome and launches into space, he grips his sword, unwilling to disgrace himself by dropping his sacred weapon, blessed by the emepror, even in this last instant of his life....
He realizes something: The Americans must have done the impossible: broken all of their codes. That explains Midway, it explains the Bismarck Sea, Hollandia, everything. It especially explains why Yamamoto -- who ought to be sipping green tea and practicing calligraphy in a misty garden -- is, in point of fact, on fire and hurtling through the jungle at a hundred miles per hour in a chair, closely pursued by tons of flaming junk. He must get word out! The codes must all be changed! This is what he is thinking when he flies head-on into a hundred-foot-tall Octomelis sumatrana.
Let's have a bit of perspective: Today's Justice Stevens is by historical Court standards a moderate liberal. He's not nearly as liberal as Justices Brennan, Marshall, or Douglas were, for instance. He's not a death penalty abolitionist. His views on criminal procedure are generally moderate liberal to moderate. He's on the liberal end of this Court just because all the serious liberals (ultra- or not) are gone.
On a very few subjects, he might be "ultraliberal"; the Establishment Clause might be one such example, though even that's unclear. On racial preferences, he seems to have moved left, but he voted with the majority in the landmark 1989 Croson case, which set strict scrutiny as the constitutional test for racial preferences aimed at benefiting nonwhites; he may have moved from there, but I don't think he's moved very far. On federalism issues, he's solidly with the moderate liberals. On abortion rights, he's with the moderate liberals and not far from Justice O'Connor; his position is similar to that of much of the public (and not just "ultraliberals").
On punitive damages, he has often though not always taken a pro-business view (largely alongside Justices O'Connor and Kennedy, and much more so than, for instance, Chief Justice Rehnquist and Justices Scalia and Thomas). On sexually themed speech, he has tended to be in the middle, often voting to protect it but often voting to allow some regulations (more than Justices Marshall, Brennan, Blackmun, and Stewart). On Free Exercise Clause religious exemption questions, he has largely joined the conservative and moderate conservative Justices (though Justice O'Connor split from Justice Kennedy and the more solid conservatives on this). Even on war against terror questions, he has been joined by the other moderate liberals, and in one leading case, Hamdi v. Rumsfeld, by Justice Scalia.
Of course, if you're far enough left, Justices Kennedy and O'Connor would look ultraconservative, and if you're far enough right, Justices Stevens, Souter, Ginsburg, and Breyer would look ultraliberal. But that's why I suggest a bit of perspective -- a bit of looking using more objective standards (such as the makeup of the Court, the makeup of the country, or whatever else). And under those standards, Justice Stevens as a judge is a moderate liberal. (As a voter, he might still be more conservative, as he suggests in his interview with Jeff Rosen, but I can't speak with confidence about that.)
The existing sugar subsidy program costs American consumers an estimated $1.5 billion per year. Congress is revising the sugar subsidy program this year. That would be good news, except it's making it even worse.
Williams Transcript:
The transcript of the oral argument in United States v. Williams is now available here. Clement goes first. Diaz, counsel for Williams, starts on page 29.
Oral Argument in United States v. Williams:
I attended the oral argument this morning in United States v. Williams, the case Eugene blogged about a bit involving First Amendment challenges to 18 U.S.C. 2252A(a)(3)(B), a child-porn-related statute enacted as part of the 2003 PROTECT Act.
Overbreadth challenges to federal statutes often hinge on how the Court construes vague terms; the narrower the construction, the less of an overbreadth problem the statute raises. Given that, it wasn't surprising that much of the SG's argument time was spent on figuring out what the statute meant. Clement was willing to concede as much as needed to get the Justices to see the statute as narrow enough to uphold. By the end of his argument, there appeared to be wide support on the bench for reading the statute narrowly and then upholding it as narrowly construed.
Counsel for Williams had a hard time. He did a bit better than I expected from his brief, but he was not successful at answering the Justices' questions. He responded to questions either with general platitudes or else he would say something noncommittal or irrelevant. Sometimes the exchanges were just odd: For example, when asked if he really thought the conduct prohibited by the statute was protected by the First Amendment, counsel responded that he wouldn't say it was protected by the First Amendment but that a 5-year mandatory minimum sentence was too severe for such conduct. (This was particularly frustrating to Justice Ginsburg, who pointed out that the First Amendment issue was the only one before them.) After a while the Justices just started offering general comments to each other about possible ways they might resolve the case. It was a long 30 minutes.
Perhaps the most interesting substantive aspect of the argument was the extensive attention the Justices gave to liability for someone who accidentally possesses child pornography. Justices Souter and Breyer (if I recall correctly) wanted to know what happens to someone who gets a bunch of child pornography in the mail that he didn't ask for and then either tells the neighbors about it or calls the cops to report it. Breyer seemed to believe that such a person couldn't be liable because they didn't intend to receive the images; Clement noted that the person would still be in possession, subject to the affirmative defense in 18 U.S.C. 2252(c). But at least some of the Justices seemed to suggest that the affirmative defense in 2252(c) was too narrow, and that the First Amendment wouldn't allow a prosecution in a true case of accidental possession. I don't know of any circuit court precedent that suggests this, but there seemed to be some interest in the position (and if I recall correctly, Clement agreed that such a challenge might be successful on an as-applied basis).
UPDATE: Lyle Denniston offers a very good summary of the argument here. Lyle gives considerable attention to Justice Kennedy's discussion of limiting overbreadth challenges in cases like Williams'. I would guess that Justice Kennedy is not so much interested in limiting overbreadth as he is concerned with allowing facial challenges as defenses to criminal prosecutions. Facial overbreadth challenges in civil litigation are common and uncontroversial. But a facial challenge in a criminal case may lead to an unfair result if the government chooses to prosecute a defendant under one statute instead of another and the charged statute is later struck down as facially overbroad. In that case, the defendant will be set free even though he could have been prosecuted under the other statute.
To be clear, I don't think this is a huge problem, as the government can simply bring charges under all the applicable statutes instead of just the one with potential overbreadth. Still, it's a theoretical possibility. I wonder if Justice Kennedy is interested in a new doctrine that would require facial overbreadth challenges to be brought on the civil side, essentially requiring criminal defendants to make only as-applied First Amendment challenges. I guess we'll see when the opinions come out.
[Justice Stevens] won a bronze star for his [World War II] service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.
Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.
I recognize that much can get lost in such pieces, even when they are written by experienced, thoughtful, and sympathetic interviewers such as Rosen. Perhaps Stevens gave some further explanations that were omitted, or perhaps Rosen's paraphrases are not quite right. But what I see in the article strikes me as a perplexing chain of reasoning.
1. First, killing an enemy military leader -- and apparently a highly competent one -- in the middle of a war almost always is the humanitarian decision. It takes little consideration, it seems to me, for our military to properly come to this conclusion. That Yamamoto was "highly intelligent" and that he had lived among us might have emotionally humanized him to people who are considering his fate. But it surely didn't entitle him to any exemption from military attack. If anything, it made him only more dangerous to us and our soldiers (living among us made it more likely that he would understand us better).
There's nothing humanitarian about preserving an enemy military leader -- and instead focusing only on killing enemy line soldiers -- when that means more likely deaths for our soldiers (and possibly more likely deaths for his soldiers as well, though that's harder to tell). There's everything humanitarian about killing him to protect our soldiers, and to win an indubitably just war. The man's military job was trying to kill our soldiers, using others' weapons even if not his own personal ones. We got to him first, likely saving our soldiers' lives. That's pretty much the end of the story.
(I only say "pretty much" because in some situations preserving a smart leader on the other side, especially a relatively dovish one -- as Yamamoto was -- might help the other side recognize the need to promptly surrender. But that wasn't that much of an issue in April 1943, especially considering the likely damage that a smart military leader could do. And in any event it hardly seems like the sort of "humanitarian consideration" that Stevens was referring to.)
2. Nor is there anything "humanitarian," it seems to me, in distinguishing the deliberate killing of "a particular individual they went out to intercept" from "killing a soldier in the line of fire." You kill the enemy soldier (even before he starts shooting at you) because he is part of a military machine that is trying to kill you and yours, and defeat your country. Enemy military leaders are parts of the same military machine, except that they are more dangerous parts and generally more morally culpable parts. Nor is there any "heat of passion" requirement to justify killing in war; "thinking about killing an individual" who's an enemy military leader doesn't make you more morally culpable -- it makes you smarter, and, to the extent it saves more of your soldiers' lives, morally praiseworthy.
3. And where exactly is the connection to the death penalty? Consider the chief arguments against the death penalty: the person being executed might be innocent; it's just wrong for the state to kill people; others can be kept equally safe by locking the person up for life; the death penalty is likely to be applied in arbitrary or prejudiced ways. None of them work here.
Yamamoto's responsibility for killing many Americans, and working to kill more, was clear. There was surely a chance that we'd miss him and kill other Japanese soldiers instead (because our intelligence or our shooting was faulty), but that's a commonplace risk in all war, it was likely less here than in many military operations, and in any event the people we would have killed were enemy soldiers whom we were entitled to kill in any event. All war is premised on the notion that it's permissible for the state to kill enemy soldiers (even in situations where they aren't at that moment shooting at us or about to shoot at us); as I argue above, killing enemy admirals is at least as morally proper. We couldn't safely incapacitate Yamamoto in any way other than killing him. We were killing him because he was an enemy military leader, not because of his race; and while in war life or death often turn on accidental factors of who's in the wrong place at the wrong time, those factors were if anything much less as to Yamamoto than as to some random Japanese soldier.
Indeed, if Yamamoto's killing were analogous to the death penalty, then the death penalty should be acclaimed as a high moral imperative: Rather than wondering whether the death penalty saves innocent lives, we'd be nearly sure of it. Rather than wondering whether there are less lethal alternatives that would protect society, we'd know that other alternatives would be vastly less reliable and more dangerous. Rather than wondering whether the target is innocent, we'd be sure that killing him is entirely morally proper. I generally support the death penalty, but I do see strong arguments against it -- arguments that flow precisely from the fact that the death penalty is extraordinarily unlike the targeted killing of Yamamoto.
Solum on Leiter (and Me) on Originalism:
Larry Solum has an important new post on the New Originalism responding to Brian Leiter and my recent posts on the subject. Semantic and Normative Originalism: Comments on Brian Leiter’s “Justifying Originalism” It is far too long and complex to summarize here, and I cannot even find a single excerpt that captures its entire analysis. Still, here is an excerpt that might get you to read it as anyone interested in originalism should do:
[snip]
The Case for Semantic Originalism
[snip] The meaning of an utterance is simply a fact about the natural world. For this reason, semantic theories might be called “descriptive” or “positive.” Simplifying greatly, we might say that there are two leading theories of legal meaning in general, which we might call “textualism” and “intentionalism.” These theories of natural meaning correspond, more or less, to the distinction made by philosopher Paul Grice between “sentence meaning” and “speakers meaning.” In the context of constitutional theory, textualism is the view that the natural meaning of the constitutional text is its conventional semantic meaning—the meaning that the words and phrases would have conveyed to the public at the time the relevant portion of constitutional text was drafted, proposed, and adopted. Borrowing from Grice, we can call this sort of meaning “clause meaning.” Similarly, the constitutional version of intentionalism is the view that the natural meaning of the constitutional text is meaning intended by the authors (framers and/or ratifiers) of the relevant constitutional provision. Following Grice we might refer to this kind of meaning as “framers meaning.”
From what I have said so far, one might infer that we can choose between framers meaning and clause meaning, and that this choice would have to be justified on normative grounds. But this is not, in fact, the case. That is because the meaning of legal texts in general (and the Constitution in particular) cannot be understood as speakers meaning (or framers meaning). For speakers meaning to be possible, the audience of an utterance must have knowledge of the speaker’s intentions and the speaker must know that the audience has this knowledge—call this the “reflexivity condition.” But in the case of legal texts like judicial opinions, statues, and constitutions, the reflexivity condition is not met. This is most obviously true in the case of the United States Constitution, where the framers believed the evidence of their intentions (the proceedings of the Philadelphia Convention) would be kept secret. Recognizing that there are conditions under which speakers meaning is impossible, Grice recognized the existence of sentence meaning—the meaning that would be conveyed by the conventional semantic meaning of the expressions that constitute an utterance. In the context, of the Constitution, this is the “clause meaning” or the conventional semantic meaning of the constitutional text. In other words, “clause meaning” is the “original public meaning” of the New Originalism.
Of course, there might be other semantic theories of constitutional meaning. For example, someone might argue that the semantic meaning of the clauses is the conventional semantic meaning they have at the time of application—call this “contemporary public meaning.” For example, the phrase “domestic violence” might have referred to “rebellion or insurrection” at the time the Constitution of 1789 was adopted, but it could refer to “spousal, child, and elder abuse” today. Or it might be argued that the meaning of the Constitution is whatever meaning a judge wishes to assign to it—on this theory, the Constitution is an empty vessel into which judges can pour any semantic content they wish. Or one might be a semantic skeptic, and deny that there is any semantic meaning at all. Although I won’t make the arguments on this occasion, even a moment’s reflection reveals that there are serious problems with contemporary public meaning or judge’s meaning as semantic theories. Semantic skepticism faces even more serious problems, including the obvious one that it is self-effacing because it implies that it is not even meaningfully assertable.
How might one argue against semantic originalism? There are at least three strategies. First, one could argue for some particular alternative semantic theory. Second, one could argue for semantic pluralism—the view that the constitutional text has a “meta-ambiguity” between the meanings assigned to it by alternative semantic theories. Third, one might argue that the constitutional text lacks semantic content at all—that despite the superficial resemblance of the text to a meaningful utterance, the Constitution simply does not mean anything at all. Perhaps there are other strategies. But any argument that clashes with semantic originalism must assume a stance either about or from within a semantic theory. What won’t work is to make a normative argument against semantic originalism. Normative arguments address a different question, and the attempt to argue against semantic originalism on the basis of a normative claim involves a category mistake.
Reframing the Normative Debate
The truth of semantic originalism, by itself, has no normative implications. Even if the semantic content of the constitution is the original public meaning, it could be the case that constitutional practice should deviate from that meaning. For example, one might argue that precedent should trump the original public meaning. Or one might argue that the difficulty of constitutional amendment so undermines the democratic legitimacy of the Constitution that the political branches are justified in “amending constructions” that give the text new and different semantic content. Or one might believe that the constitution is so undesirable or unjust that judges are justified in ignoring the semantic content of the constitution and deciding cases on the basis of their own beliefs about what the Constitution should have provided.
[snip] In a wide variety of legal contexts, the notion that officials are obligated by the semantic content of legal texts is simply not controversial. Quite the contrary, our usual assumption is that in a reasonably just society, the semantic content of valid legal texts creates obligations for judges, other officials, and citizens. The corresponding obligations of fidelity to the law attach to the semantic content and not the mere syntactic form of the texts.
Again, I should be very clear. I am not claiming that I have produced a normative argument for originalism. The aim of this discussion of the normative case for originalism has been very modest. My goal is to put the normative question in a new frame. Leiter is right to observe that many originalists—but not Balkin, Barnett, or Whittington—seem to beg the normative question. If I might be allowed to restate Leiter’s observation in my own terminology. Many originalists seem to believe that by producing arguments for semantic originalism, they have provided a prima facie normative case. By reframing the debate, I think we can see how they made this mistake. These originalists believed that it was obvious that the correct theory of constitutional meaning entailed normative conclusions. I believe that was a mistake. “Obviousness” is in the eyes of the beholder. Once the normative claims of originalism are questioned, an argument must be produced.
But what is good for the goose is good for the gander. Nonoriginalists have their own burdens of persuasion and production. If nonoriginalists want to admit the truth of semantic originalism, but deny its normative force, they should do so explicitly. If they want to contest the truth of semantic originalism, they should lay their arguments on the table and make them explicit. If they want to deny the normative significance of the semantic content of the Constitution, but claim that the semantic content of other constitutional texts has normative authority and creates obligations of fidelity, they should produce the arguments that justify this distinction. And if they want to argue that some nonoriginalist theory of constitutional interpretation is justified on normative grounds, they need to produce the arguments.
Advocacy Matters: An Update and A Few Responses to Comments
One threshold note. The Court granted review yesterday (Monday 10/29) in only two cases: the Exxon Valdez damages case and the Allied Engine qui tam case. The petitioners in both cases were the business defendants and, consistent with my thesis, petitioner’s counsel of record in the first case was Walter Dellinger and the second case was Ted Olson.
This is not a question of liberal and conservative lawyers. This is simply excellent work performed by expert Supreme Court advocates on behalf of their business clients, knowing how best to pitch their cases to the Justices (and their law clerks). Knowing how to use amici at the cert stage, Dellinger secured the filing of 13 amicus briefs in support of the petition, filed by other leading members of the Bar. I have not reviewed the opps filed in the two cases, but I would expect that if less skilled lawyers had drafted the petition in each case and Olson and Dellinger had been representing the respondents in each (rather than the petitioners), they might well have persuaded the Court to deny review.
One comment pointed out that the advocacy gap is greater in many lower courts. I don’t deny that. My point only is that the precedential impact of the gap in the U.S. Supreme Court is clearly greater and, for that reason, even small gaps can have a very large practical effect. And the advocacy gap is not small before the High Court, although as the article explains there is reason to believe it may be temporary in some areas of the law.
Several comments wondered why law firms generally don’t handle environmental cases and questioned whether the Court’s ruling in MA v. EPA undermines my thesis. As a general matter, the top Supreme Court litigators won’t take on environmental pollution control case on behalf of an environmental plaintiff. They will do lots of classic criminal pro bono work, but not the kinds of classic pollution control cases that might upset the business community that serves as their client base for possible high-paying cases before the Court. You likewise won’t see hardly any of those firms on the plaintiff’s side of a torts case.
MA v. EPA certainly provides a counter-example in part to the trend I describe in the Court’s docket. But, at the end of the day, its aberrational nature underscores how remarkable that trend in fact is. When the Court granted review in MA v. EPA and a few weeks earlier in ED v. Duke Energy, those two cases represented the first time that the Court had granted review on behalf of environmentalists over the federal govt’s opposition since Sierra Club v. Morton in 1971. That’s a long time.
One comment points out that advocacy alone cannot explain the NEPA cases and another argues that perhaps the environmentalists simply lost because their cases were weak on the merits. With regard to the first, clearly the makeup of the Court plays a role. If the Court had 9 Justice Douglases, environmentalists would not have lost any of those cases. My point here is just that absent such an extreme Court, advocacy makes a big difference and not of course that it is the only significant factor.
Addressing the second point, it was the SG’s Office skill as advocates that prompted them to be selective in picking the NEPA cases to take up to the Court and in choosing what legal issues to raise and not to raise. There were many lower court NEPA losses the SG’s Office did not take up even though their client agencies sought SCT review. And, in many of the NEPA cases the SG took up, the SG was careful to abandon losing arguments pressed in the lower courts. The best advocates know how to pick their cases and their arguments. That is how one can turn losers into winners.
As part of the Federalist Society's "Originally Speaking" on-line debate series, I participated in a debate on the U.S. Court of Appeals for the D.C. Circuit's decision in Abigail Alliance v. Eschenbach. A divided three judge panel initially held that terminally ill patients have a fundamental right under the Due Process Clause to access potentially life-saving medicines that are only part-way through the FDA approval process. Sitting en banc, the D.C. Circuit reversed the panel's decision 8-2.
Although I am highly sympathetic to the Abigail Alliance's policy arguments, I do not accept their legal arguments. Joining me in the debate was Ed Whelan of the Ethics and Public Policy Center. Taking the other side were Roger Pilon of the Cato Institute and Curt Levey of the Committee for Justice. The full debate is available here.
Interesting "Economic Liberty" Decision:
The Institute for Justice has just posted this press release about an interesting decision in Minneapolis today about taxi cab reform. I have posted a copy of the decision here. Seems pretty clearly correct to me.
After reading the article, I found myself wondering if the uneven distribution of top advocates is more a result of unsophisticated clients or the gap between economic "haves" and "have-nots." I tend to think it's more the former than the latter. There are many Supreme Court lawyers eager to help out for free on viable cases (or better yet, granted cases), so I think the role of resources is actually smaller at the Supreme Court than elsewhere. But the most sophisticated clients know that Supreme Court advocacy is a weird art, and that you often get better results when you have a trained artist helping you out. This isn't always true, obviously, and to be clear I don't think it's is a good thing. But for better or worse it's often the case. So the most sophisticated clients will pick their lawyers carefully and will aim for experienced counsel with a deep understanding of the Supreme Court. Unsophisticated clients are less likely to realize this, and their interests sometimes suffer as a result.
I would guess that's the major problem in criminal defense cases. Lazarus states at the top of page 95 that criminal defense lawyers sometimes decline assistance from Supreme Court experts, preferring to "go it alone," and that this can lead to a major gap in advocacy quality between the government and the defense. But the underlying problem is that the clients will tend not to know any better. A young and uneducated criminal defendant serving 30-to-life in a maximum security prison isn't likely to be a specialist in appellate practice. He isn't likely to know that he should ask his trial lawyer to step aside and find top-notch appellate advocates out there eager to represent him for free.
Of course, making more clients more aware of the effectiveness of different types of lawyers is no easy task. Maybe it's an impossible one. But perhaps the attention to Professor Lazarus's article is itself a start.
Leiter on Originalism:
A few weeks ago, I spoke on "The New Originalism" at a colloquium sponsored by the Philosophy Department at the University of Texas. Brian Leiter was there and he now has posted Justifying Originalism in which he thoughtfully and respectfully comments on my talk. After a nice summary of my oral presentation, he offers this critique:
[Barnett] thinks that the writtenness of the Constitution is a fact supporting the New Originalism, becaue the original public meaning as written is something that binds those who make laws that, in turn, purport to bind us as citizens. At this point, I confess I don't follow the arguments. If "constitutional legitimacy" in Barnett's terms (or "authority" in Razian terms) is the benchmark for the method of interpretation we should apply to a text, then I can not see how the writtenness of the text figures as an independent consideration.
Indeed, it seems to me a stronger conclusion is suggested: namely, that once we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original "public" meaning, and so on) drops almost entirely out of the picture: the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutiona legitimacy). In other words, Barnett's theory of constitutional interpretation, because it (unlike most theories--Ackerman's, Amar's, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces "legitimate" (i.e., morally authoritative) outcomes.
In my book, Restoring the Lost Constitution: The Presumption of Liberty, I present a normative argument for originalism. Here is a clearer breakdown of my argument for originalism that I believe shows why constitutional interpretation should not be reduced to whatever results accord with whatever background conception of justice accounts for a constitution's legitimacy. Note that each step in the following description requires further elaboration and defense. My goal here is simply to clarify the structure of the argument so as to advance the discussion.
(1) In Restoring, I begin by denying that the legitimacy of a constitution of the sort that governs a territory like the United States could ever be grounded on the "consent of the governed" because such consent is and must always be a fiction. If such a constitution is ever legitimate at all (and perhaps none can be), it must be because it is warranted in imposing its commands on nonconsenting members of the public.
(2) I then distinguish between the justice of a law and the legitimacy of a law-making process. A law is just and entails a duty of obedience if it does not violate the rights of the persons on whom it is imposed (with or without their consent) and is necessary to respect the rights of others. In contrast, a law-making process is legitimate if it offers procedural assurances that laws imposed on nonconsenting persons are likely enough to be just as to impart on these laws the benefit of the doubt. In other words, the fact that laws have been produced by these rights-protective procedures provides a prima facie reason why they ought to be obeyed. A just law could be illegitimate because not produced by such a process and a legitimate law could be unjust if the process has failed in a particular case to produce a just law.
(3) A written constitution, like such constitutional features as separation of powers, federalism, bicameralism, regular elections, varying terms of office, etc., should be considered just another structural feature of our constitutional order that defines a law-making process. All these features are means to the end of achieving (among other ends) a legitimate constitutional order in the absence of real consent. They either conduce to this end or they don't. Of course, it is easy to imagine constitutional orders without this structural feature--just look around the world--just as it is easy to imagine law-making systems without the other structural features of the U.S. Constitution. By the same token it is easy to imagine a system in which its written constitution is ignored or "updated" by the courts--just look at the U.S--but whatever enhancement of legitimacy is provided by writtenness, as described below, will be absent.
(4) The device of a written constitution was developed as means of imposing law on those who impose law on the people. In particular, it was a means both to authorize the use of lawful power and at the same time limit the scope of those powers to imposing laws that are both necessary and proper. It defines the process of lawmaking more particularly than an "unwritten constitution" does, and provides express limits on government power that are lacking in legal systems in which the governing parliament is considered sovereign.
(5) This normative defense of a written constitution is based on the claim that the people (either collectively or as individuals) retain their sovereignty or rights. They are the principals and the government as a whole, including Congress, are mere agents or "servants" of the people. In a principal-agent relationship, the principal retains some or all of her rights while delegating certain powers to the agent, who must exercise those powers on (a) on the principal's behalf and (b) subject to the principal's control. It is no coincidence that the Ninth Amendment refers to the "rights . . . retained by the people," while the Tenth Amendment refers to the "powers . . . delegated to the United States" by the Constitution.
(6) A written constitution defines the nature of this agency relationship and, by so doing in writing, helps police it. It is easier to see where the agent exceeds its proper powers when these powers are defined in writing. In Lon Fuller's terms, writings serve the evidentiary, cautionary and channeling functions of formality.
(7) The agents — the Congress, the President, the Judiciary — whose powers are defined by the written constitution, should not be able to change or expand the scope of their own powers, even in combination with each other. As Isaac Penington wrote in 1651: "They who are to govern by Laws should have little or no hand in making the Laws they are to govern by."
(8) So that they do not define or alter the scope of their own powers, some other body besides these government agents must approve any alteration or amendment, whether that other body be a "convention" or state governments. This principle is reflected in the procedures described in Article V. We could also imagine a referendum scheme to ratify amendments of the sort urged by Akhil Amar but the written U.S. Constitution does not provide for this process.
(9) Therefore, in the absence of a proper amendment, the meaning of the written Constitution should remain the same until it is properly changed. This is another way of describing original public meaning originalism.
To reiterate, each step in this argument merits additional explanation and defense, but this is a blog post that is overly long as it is. My objective here is simply to clarify the structure of the normative argument being made on behalf of originalism.
Notice that, while "justice" is the ultimate normative justification for originalism, the intermediate steps are crucial. If a written constitution is valuable for the reasons identified--to define and police the principal-agent relationship--then one cannot simply dispense with it in pursuit of greater justice. More precisely, agent-judges cannot on their own authorize agent-legislatures to exceed their proper powers as defined by the written Constitution in pursuit of greater "justice" than that document provides.
This implication is analogous to defenses of "rule" over "act" utilitarianism, or what Larry Alexander has called "indirect utilitarianism." Or if you think that rule utilitarianism always collapses into act utilitarianism, then consider another analogy: Placing the burden of proof on the prosecution as a means to the end of justice, especially the end of preventing the wrongful conviction and punishment of the innocent. Acknowledging that the presumption of innocence is ultimately justified as means the achievement of justice does not justify dispensing with the presumption in particular cases to convict someone we "know" is guilty. The presumption of innocence is a systemic way of dealing with a problem of knowledge--the problem of enforcement error--as well as a problem of interest--the problem of enforcement abuse. (I discuss both in my book, The Structure of Liberty: Justice and the Rule of Law.) By the same token, judges should not allow the legislature to exceed its powers by changing the meaning of the Constitution because doing so would better serve what they personally believe is justice. Once again, adhering to a written constitution is a way to address the problem of knowledge (judicial mistakes about what justice may be) as well as the problem of interest (judges who knowingly disregard justice). This normative defense of originalism is a special case of the normative defense of the rule of law I offered in The Structure of Liberty. Although the rule of law is ultimately dependent on a conception of justice, it functions independently and is normatively warranted as a means of solving pervasive social problems of knowledge, interest, and power.
Of course, one could contest the desirability of limiting the power to convict the guilty by means of a presumption of innocence or of limiting the powers of government by means of a written constitution. The latter is often the underlying objection being made by critics of originalism. But the nature of the objection is obscured by claims that the written constitution is merely being "interpreted" rather than frankly admitting that the Constitution is being amended for the better by judges. Perhaps this use of language is an homage that constitutional vice plays to constitutional virtue.
Two final points. First, my normative defense of originalism is not the only one out there. Keith Whittington defends originalism on popular sovereignty grounds that I reject. Second, Larry Solum makes the important distinction between descriptive originalism and normative originalism. According to this distinction, as a purely descriptive matter, original public meaning is simply what a text does mean according to the Gricean theory of language, which Larry thinks is the best available theory of meaning in this context. This may be the sort of assertion of meaning to which Brian reacts negatively, but needs to be hashed out as matter of the philosophy of language. Whether and to what extent judges or others ought to adhere to this meaning is what Larry calls "normative originalism" and here Brian might get back on the train. Larry has yet to write about this distinction, but I wanted to identify it as relevant perspective on this issue. I plan to address this matter in future work and am open to adopting it, but that is a separable argument than what I am presenting here today.
Confidential and Anonymous Speech / Confidential and Anonymous Complaints:
People are often troubled when the government and universities solicit confidential or anonymous complaints; the William & Mary Bias Reporting system controversy is the latest example. I think such systems are principle necessary and legitimate, so long as they are properly run. True, there's a risk that they'll be abused, but that's true of most enforcement systems -- the risk alone should not lead us to reject them, though it may lead us to look careful about how they actually operate.
1. Anonymous Speech: To begin with, note the similarity between anonymous speech in public (such as on blogs) and anonymous speech to the government. Requiring that people reveal their identities may deter them from saying things that will open them to retaliation. Allowing anonymous speech will diminish this "chilling effect." It will encourage people to blow the whistle on what they see as misconduct, whether they're revealing (a) government misconduct to the public, (b) nongovernment misconduct (say, by their corporate employers) to the public, (c) government officials' misconduct to the government (for instance, if they are complaining about alleged misbehavior or poor performance by their public university professors), or (d) nongovernment actors' misconduct to the government.
At the same time, anonymity encourages falsehoods as well as accurate whistleblowing. This is why we as readers should be extra cautious about charges levied by anonymous speakers (though we should be cautious about charges levied by named speakers, too). Likewise, government officials should be extra cautious about charges levied by anonymous complainers.
2. Confidential Speech: The William & Mary system seems to be encouraging confidential complaints -- which is to say complaints for which the complainers' identity will be shielded from the target, and even from many of the investigators -- rather than purely anonymous complaints. (Of course, one can always submit even purely anonymous complaints to any agency, and William & Mary seems likely to consider them; but its system, which requires a William & Mary user name and password, is intended to solicit confidential complaints, not anonymous ones.)
The effects, both good and bad, of confidential speech seem likely to be moderate versions of the effects of anonymous speech: The system encourages both accurate and false complaints more than a your-name-will-be-revealed system but less than a purely anonymous system. (The system could discourage false complaints more if William & Mary takes aggressive steps to investigate whether a complaint is not just unproven or mistaken but a deliberate lie, punishes the liars, and publicizes such actions; but I doubt that William & Mary is likely to do this. Unfortunately, such a system would also discourage true complaints to some extent, though if the system is trusted, it will discourage false complaints more than true ones.)
3. Anonymous/Confidential Speech Systems in Practice: Because of this, many institutions routinely rely on anonymous or confidential evaluations. Most universities, for instance, have student evaluations be anonymous. Likewise, most universities assure outside tenure reviewers that their names will be kept confidential from the person being reviewed, and while this assurance isn't ironclad -- there's always the risk of leakage, and of the rare subpoena.
Naturally, the anonymous evaluations are treated with some extra skepticism because of their anonymity. But the sense is that the university will get far fewer accurate criticisms of the professor if the students knew that their names will be revealed; and the risk of some extra inaccurate criticisms is seen as being worth running, especially given that the anonymous evaluations are read skeptically.
A few states, by the way, expressly require by statute that evaluations of government employees not be based on anonymous criticisms, and thus require that students sign the evaluations. I don't know of any empirical comparisons between such systems and the anonymous evaluation systems. Still, my tentative sense is that the anonymous evaluation systems are better, despite the slightly higher risk of unfairness to the person being evaluated. What do you think?
And note that these confidential and anonymous evaluations are directly used in deciding whether certain employees are to be promoted, hired, or even dismissed. My sense is that confidential and anonymous complaints are even more commonly used when it comes to looking into something, and seeking tangible or nonconfidential evidence.
4. Investigating Based on Anonymous/Confidential Speech: Let me elaborate a bit more on this, and bring in point 1 above. Say that someone e-mails you some anonymous allegation about a politician. You'd often be reluctant to believe the allegation, and act (even if it just means publicizing the allegation with your endorsement) without further investigation. But you'd often be quite willing to start that investigation based on the anonymous allegation, since you expect that the anonymous and possibly unreliable tip may lead you to uncover highly credible evidence.
The same is true, I think, with regard to anonymous (and especially nonanonymous but confidential) complaints about an employee or patron of your establishment. If you run a restaurant, and a patron tells you that a waiter has insulted him but insists that his name be kept confidential (maybe he's afraid the waiter will beat him up, or spit in his food if the patron visits again), what would you do? Would you tell the patron that due process prohibits your taking the complaint?
I take it you wouldn't; you probably wouldn't fire the waiter on the spot (unless you've heard a lot of such complaints, and have little cause to think they're part of a general campaign to unfairly malign the waiter), but you might watch the waiter more closely, or ask the waiter's colleagues if they'd heard the waiter insulting this customer or others. The university context is not quite the same as this, for various reasons; but in both situations, the employer may be acting wisely -- and properly -- in paying attention to confidential or anonymous complaints, and even in encouraging them.
The same, of course, is true of law enforcement. The police naturally prefer nonanonymous and nonconfidential complaints. But in many situations, the complainants are naturally worried about retaliation. To minimize the chilling effect on valuable speech (here, complaints to the police about likely criminals), the police should, to the extent possible, allow anonymous and confidential complaints. They generally shouldn't be admissible evidence at trial; but they can be useful tools for tracking down evidence that is admissible.
5. Severity: Finally, some commenters tried to distinguish systems for encouraging anonymous or confidential reports of possible terrorist planning, or even of street crime, on the grounds that those are serious crimes that justify such measures.
But the crimes also lead to severe penalties, and can involve extremely intrusive investigations. So while the upside of allowing anonymous or confidential complaints as to such crimes (the encouragement of accurate complaints) is greater than the upside of allowing such complaints as to "bias incidents" on campus, the downside (the encouragement of false complaints) is greater, too.
6. The Bottom Line: So, as I've said, the William & Mary policy should be faulted to the extent that it seems to allow the punishment of protected speech. Even to the extent that it aims to punish unprotected attacks, vandalism, or threats, it should generally reject the use of anonymous or confidential evidence in the actual quasi-judicial disciplinary proceeding. And campus authorities should be especially skeptical about anonymous or confidential complaints. But such complaints are a legitimate, and often necessary, part of enforcing campus rules -- or for that matter criminal laws -- just as anonymous speech is a legitimate, and often necessary, means of promoting public debate and whistleblowing.
Record numbers of Britons are travelling abroad for medical treatment to escape the NHS - with 70,000 patients expected to fly out this year.
And by the end of the decade 200,000 "health tourists" will fly as far as Malaysa and South Africa for major surgery to avoid long waiting lists and the rising threat of superbugs, according to a new report.
The first survey of Britons opting for treatment overseas shows that fears of hospital infections and frustration of often waiting months for operations are fuelling the increasing trend.
UPDATE: For those interested in some of the legal and policy questions related to "medical tourism," particularly by Americans, see this paper by Professor Nathan Cortez.
On reflection, I think I should have faulted William & Mary more for what sounds like an unconstitutional speech code (quite independently of whether it is to be enforced using confidential complaints).
The college's "What is Bias?" Web page defines as a "bias incident" all "hostile behavior", including "verbal (whether spoken or written) [behavior]," "that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status." The "Bias Reporting" page acknowledges that expression of even offensive ideas is generally protected, but concludes that "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities" is not protected — this seems to suggest that all the statements that are labeled "bias incidents" are indeed punishable.
Thus, for instance, condemning a particular student's or professor's religious or political views in any way that is "hostile" — even if it isn't threatening or "fighting words" — would seemingly be punishable, if it's "aimed at" or "directed at" the person. This might be limited to statements said to a particular person; but it might also be read as covering statements said to the public at large in a newspaper or a Web post about a particular person (depending on how "directed at" and "aimed at" is read). The Statement of Rights and Responsibilities seems considerably more speech-protective, and the "Bias Reporting" page restricts its statement about unprotected speech to speech that violates the Statement of Rights and Responsibilities. But the Statement is not crystal clear about what is protected, and the "Bias Reporting" page may be seen as an elaboration on the Statement that makes certain speech punishable.
So William & Mary should, I think, be faulted for seemingly instituting a speech code that potentially forbids a wide range of protected and important speech — or, at best, leaving students unclear about what speech is allowed. I continue to think that the William & Mary initiative's solicitation of confidential complaints is sound, and I'll try to elaborate a little more on this shortly; investigating properly punishable conduct (such as physical attacks, vandalism, and threats) often requires considering confidential complaints. But constitutionally protected speech ought not be punished whether based on confidential complaints or otherwise.
Note also Stanley Kurtz at the National Review Online has some interesting posts in response to my earlier post on this matter, here, here, and here; they're much worth reading. Kurtz also argues that the current William & Mary administration is untrustworthy in other (but related) contexts; I agree that if this is so (I don't know enough about it to be sure), then observers might justifiably be skeptical about how the college's policies are likely to be implemented.
Berman on the ABA's Death Penalty Moratorium Implementation Project:
Over at Sentencing Law & Policy, Doug Berman offers this post on the efforts of the American Bar Association's Death Penalty Moratorium Implementation Project. Doug's bottom line: "In short, someone wanting to feel good about their pre-existing opposition to the death penalty will enjoy reviewing the thousands of pages produced by the ABA's research. But someone who is genuinely agnostic about capital punishment is likely to find the ABA's work more frustrating than enlightening."
This article originated in some research I was doing on the dismal record of environmentalists in Supreme Court cases involving the National Environmental Policy Act. Not only have environmentalists failed to persuade the Court to grant a single petition (in more than 150 tries), but on the 14 (depending how one counts certain cases) occasions when their opponents have obtained plenary Supreme Court review, the environmentalists have lost all 14 times. In fact, they have not received a vote of even one Justice since 1976 in Kleppe v. Sierra Club.
What I discovered in examining all the papers filed in those approximately 200 cases (including jurisdictional and merits briefs, the private archival papers of Douglas, Marshall, Powell, and Blackmun (bench memos, pool memo, inter-chamber correspondence) was that the environmentalists’ unenviable record was largely the product of two things: (1) They had been systematically outlitigated by the other side’s (primarily the Solicitor General’s Office) better advocacy at both the jurisdictional stage and on the merits; and (2) Those within the Court favoring a narrower view of NEPA (esp. Rehnquist) were far more effective advocates for their position during the drafting of opinions than those who might have been receptive to a more expansive view of the law.
The contrast was so striking upon close examination that I decided about 18 months ago to switch gears and consider the related implications for the Court of the emergence in the past twenty years of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. The article, accordingly, strives to describe and explain the rise of a modern Supreme Court Bar and then to explore both theoretically and empirically its significance. By "significance" in this context, I do not mean just significance for the legal profession, which is of course interesting, but its significance for the Court: both the Court’s plenary docket and its rulings on the merits.
Going in I had a good sense of the extent of the Bar’s expansion, largely based from my vantage point of directing the Supreme Court Institute at Georgetown, but what I had less of a handle on was both how they had maintained that increase during a time when the Court’s plenary docket was otherwise dramatically shrinking and the corresponding extent to which the experts were dominating the docket at both the jurisdictional and merits stages. The increase is quite dramatic both in terms of cases granted review (the hardest thing a Supreme Court advocate does), oral arguments presented, and, I further posit, their impact on the Court’s formal judgment and the substantive content of the opinions. I further contend that the private Supreme Court Bar has become so effective that they have not only overcome the dominant advocacy role that the Office of Solicitor General enjoyed before the Court for much of the 20th century, but in many instances surpassed it.
In certain respects, the conclusions themselves should not be especially startling. After all, the ability of these expert advocates is obvious to anyone who follows the Court’s docket closely, as are the inevitable limits faced by the Justices and the clerks in deciding cases, especially at the cert stage. There is tremendous potential within any case to pitch a case different ways to the Court and the way that a case is pitched and the depth of the accompanying legal analysis often determines how the Court views and frames the case before it. This is a real skill, like other kinds of skills.
Nor should it be so surprising that the private bar is successfully challenging the SG’s dominant position. The private bar consists, of course, largely of alums of the SG’s Office who, as a result, are frequently more experienced advocates than the OSG attorneys themselves and, when backed by paying clients, have more time to spend on the cases.
For some, perhaps the most controversial part of my article is when I take the next step and contend that the success recently enjoyed by the business community before the Court is likely a reflection of the effectiveness of the newly-emerged Supreme Court Bar that represents that community. Here too, I think the theoretical (most simply stated, you get what you pay for) and empirical support (e.g., antitrust cases) for this position are quite powerful. And, while I am sure that some private sector folks will pooh-pah their success either out of false modesty or for strategic reasons, I doubt that is what they are saying to their private sector clients at the time they are seeking to be retained for work before the Court. My only point is that when those lawyers are telling their clients that they are indeed effective, they are telling the truth. And, they are in fact worth what they are paid.
On the whole, better Supreme Court advocacy is a good thing for the Court and for the development of the law, with an important caveat. What also emerges from my analysis is a significant concern that, notwithstanding the pro bono work that many of these private sector attorneys conduct (including in increasing coordinate with law school "Supreme Court Clinics"), there is a real risk of a skewing of the Court’s docket and the rulings on the merits in favor of those who can pay top dollar for these advocates.
Most of the significant pro bono work is done only after the Court has granted review, which limits its ultimate effectiveness. And there is a distinct group of significant cases related to business liability in which the private sector bar has generally been unwilling to support those favoring expansive theories of liability, whether antitrust, securities, environmental protection, or tort in nature. There is not necessarily any strict professional conflict, just a desire not to fall in disfavor with potential business clients who pay top dollar. The article concludes by recommending several initiatives that both the Bar and the Court could undertake to begin to close the otherwise increasing advocacy gap.
I checked out the piece, and quickly agreed. This is a very interesting article, and one that I think many of our readers will enjoy hearing about: It's about the Supreme Court, about legal advocacy at the highest levels, and also about a question that I've often seen raised in the comments -- whether quality of lawyering affects outcomes much, especially at the Supreme Court level.
I'm delighted to say that Prof. Lazarus has indeed agreed to guest-blog about this piece this week. I'm also delighted that the law firm with which I'm affiliated on a part-part-part-time basis, Mayer Brown LLP, and three of its top lawyers -- Andrew Frey, Andrew Pincus, and Stephen Shapiro -- were all mentioned in the article.
It appears that co-blogger Jonathan Adler and I have a slight disagreement over the degree to which the Supreme Court's decision in Gonzales v. Raich allows Congress to use its Commerce Clause powers to regulate "commerce . . . among the several states" to regulate or ban abortion. Despite Jonathan's thoughtful comments, I continue to believe that, post-Raich, Congress has the power to regulate or forbid abortion in virtually any way it sees fit - at least in so far as as federalism concerns are at issue. Obviously, there will still be individual rights constraints on abortion regulation for as long as Roe v. Wade remains in force.
Jonathan correctly points out that Raich (like previous decisions), gives Congress the power to regulate anything that might be considered "economic activity" and also any noneconomic activity that is part of a "broader regulatory scheme" that incorporates economic activity.
However, both of these categories of congressional power under Raich are even broader than Jonathan supposes. Not only did the Court allow Congress the power to regulate anything that counts as "economic activity," it also defined "economic" to include any activity that involves the "production, distribution, and consumption of commodities." That definition is broad enough to include virtually any abortion because all abortions involve the consumption of medical supplies that surely count as "commodities." Moreover, abortion itself could be considered a "commodity" under Raich, since it is a service usually provided by professionals who work for pay (unlike the marijuana in Raich, which was grown by volunteers working for free). The "economic activity" test would not only be enough to uphold regulations banning or restricting all abortions, but also those that ban or restrict a specific abortion procedure. After all, such procedures also use medical supplies and are also often provided through market transactions involving paid professionals.
But even if there is some small subset of abortions that don't count as "economic activity" under Raich (e.g. - the abortion is performed for free by a doctor who doesn't use any perishable medical supplies in the process), it could probably still be regulated or banned by Congress as part of a "broader regulatory scheme." In this regard, it is important to recognize that Raich significantly watered down the standards for including noneconomic activity in a broader regulatory scheme relative to the Court's previous decisions in United States v. Lopez (1995) and United States v. Morrison (2000). While these earlier cases suggested that noneconomic activity can only be swept into a broader regulatory scheme if its inclusion is "essential," Raich holds that the it is enough for Congress to have a "rational basis" for believing that its inclusion is desirable. As constitutional law mavens know, the "rational basis" test in this context is a virtual blank check for Congress to do as it pleases. It need not even come up with the needed "rational basis" ahead of time, but can rely on government lawyers or judges to invent one after the fact.
Under this permissive standard, it would be very easy for Congress to link any abortion restrictions it chose to enact to a "broader regulatory scheme." For example, it could tie the restrictions to preexisting medical safety regulations, to laws regulating the distribution of medical supplies, and so forth. Jonathan supposes that the need to tie abortion regulation to a broader regulatory scheme might seriously inhibit Congress because "in the abortion context it is far easier to produce an effective legislative majority on narrow questions — e.g., prohibiting "partial-birth" abortion, etc. — than on abortion policy more broadly." This however, assumes that narrowly targeted abortion regulations could only be enacted as part of a new broader regulatory scheme. In reality, they could simply be linked to preexisting federal laws regulating medical safety or related issues. Under the rational basis test, it would be simple for Congress to find a connection between the new regulation and the old ones close enough to pass judicial scrutiny.
For a more detailed discussion these aspects of Raich, see my article on the case. Ironically, Jonathan himself also wrote an article on Raich, where he explained why that case essentially wipes out the possibility of judicially enforced restrictions on Congress' powers under the Commerce Clause. Jonathan has every right to change his mind about Raich. But, so far, I find his excellent earlier article more persuasive than his recent blog post.
Finally, I agree with Jonathan that Congress should exercise restraint and forego unconstitutional legislation even in cases where the Court is willing to permit it. But I have very little confidence that either political party will actually do that. There is ample evidence to suggest that both Democrats and Republicans are willing to enact legislation of dubious constitutionality when it suits their political purposes to do so.
While I agree with Ilya that Gonzales v. Raich re-expanded the scope of the federal Commerce Clause power (as I argued here), I do not believe that it "gives Congress ample power to regulate or ban abortion in pretty much any way it sees fit." Specifically, I believe that some potentially meaningful limitations on Congress' use of the Commerce Clause power remain that could, as a practical matter, prevent extensive federal regulation or prohibition of abortion.
A key element of the Court's holding in Raich was that the prohibition on the possession of medical marijuana was an essential part of a broader, comprehensive regulatory scheme governing the distribution and production of marijuana. To maintain this scheme, the Court held, Congress could reach all possess of marijuana, for whatever purpose. For this conclusion, the Court explicitly relied upon Wickard v. Filburn, in which the Court upheld the regulation of wheat production not intended for sale as a necessary component of a broader effort to regulate agriculture markets.
While the Court adopted an expansive understanding of "economic" activity subject to the the commerce power in Raich, it did not hold that Congress could independently regulate non-economic activities that do not, in themselves, have a substantial effect on interstate commerce. Nor did the Court suggest that a stand-alone federal prohibition on medical marijuana possession would be constitutional. To the contrary, it repeatedly noted that Congress could regulate medical marijuana possession because Congress believed such regulation was necessary to control and limit illegal drug markets.
For these reasons, I accept the proposition that Raich supports the regulation or prohibition of abortion as part of a broader, comprehensive federal regulatory scheme governing certain medical procedures, particularly insofar as such a scheme were focused on regulating the the market for medical services. In my view, however, Raich would not support the constitutionality of legislation that solely limits or prohibits specific medical procedures. Why does this matter? Because, as a practical matter, it might be easier for Congress to pass specific legislation targeting a specific procedure than to pass a broader regulatory regime of which a given abortion regulation or prohibition is a part. The need for Congress to regulate more broadly in order to regulate at all might serve to limit the likelihood of regulation.
I am also aware that this rule could have the perverse effect of inducing Congress regulate more in order to reach a given target of regulation. In some contexts, I believe this is a serious threat. In the case of abortion, however, I think that this rule would most likely serve to make federal regulation less likely. One reason for this is that in the abortion context it is far easier to produce an effective legislative majority on narrow questions -- e.g., prohibiting "partial-birth" abortion, etc. -- than on abortion policy more broadly.
What about the current federal partial-birth abortion ban? Is that law constitutional? In my view, the current law, as enacted, would survive Commerce Clause scrutiny, but not because the regulation of this procedure, as such, is within the scope of the Commerce Clause after Raich. Rather, I believe the current law would pass muster because it contains a jurisdictional element. By its express terms, the law only applies when a partial birth abortion is performed "in or affecting interstate or foreign commerce." This is not -- and should not -- be a meaningless limitation on the assertion of federal power. Rather, it should be taken to limit the act to cover only those instances of the activity that would, in themselves, substantially affect interstate commerce, and thus lie within the scope of the Commerce Clause power, leaving some instances of the procedure outside the scope of the federal prohibition.
The Court has taken precisely this approach before, and not so long ago. In Jones v. United States, for example, a unanimous Supreme Court construed the jurisdictional element in the federal arson statute quite narrowly to avoid a construction that was potentially problematic. I see no reason why the Court would not apply a similar approach to the federal partial birth abortion act were it presented with this argument in an appropriate case. The result would be a federal partial birth abortion ban that would be less than a complete, nationwide ban on this controversial procedure. Similarly, were Congress to attempt to prohibit other abortion procedures with statutes containing jurisdictional elements, these statutes would be so limited as well.
Of course, courts would not even need to consider these questions if so many Republicans were not fair weather federalists. As I've argued for years, members of Congress should consider for themselves whether given legislation offends the principles of federalism embodied in the Constitution, and not simply whether a given enactment will pass muster with a majority of the current Court.
Clark Byse:
I was saddened to learn this weekend that the legendary Harvard Law professor Clark Byse died earlier this month at the age of 95. Byse is often said to have been the inspiration for Professor Kingsfield in "The Paper Chase." Harvard's press release is here.
I came to know Professor Byse in my third year of law school in the Spring of 1997 when I was writing a seminar paper on the Socratic Method. (That seminar paper later became a short article, The Decline of the Socratic Method at Harvard, 78 Neb. L. Rev. 113 (1999).) Byse had been a famously Socratic professor at Harvard before he retired from teaching there, and I visited Professor Byse in his office and asked if he was willing to be interviewed as part of my seminar research. He didn't know me from Adam, but I explained to him that I was interested in his views of different teaching styles as a student and how his views as a student had influenced his style as a young professsor.
I'll never forget his response. "As a young professor?!?!", he proclaimed. "That was 1939!!!! Do you think I can remember all the way back to 1939?!?! Up yours, Buster!!!" After about a second of surprise I burst into laughter. Here was this legendary professor, still obviously quite with it, poking fun at his own age and proclaiming "up yours" to a student he had never seen before. I sensed that it was a test, and I was right: Upon seeing my open laughter, Professor Byse immediately softened and a big smile broke across his face. He asked, "Are you free for lunch sometime? I'd be happy to talk about it."
About a week later, he and I met for lunch at the Hark and he charmed me with stories about his career, about teaching, and about how legal academia had changed in his five decades as a law professor. It was an extraordinary treat for a student interested in academia, and I enjoyed every minute of it. Byse was somewhat saddened that his rigorous Socratic approach had gone out of style; he thought that being absolutely demanding in class was the best possible way to sharpen the minds of students and teach them how to "think like a lawyer." He saw it as something like Marine Corps boot camp: very tough, but very tough for a very good reason. He thought it unfortunate that the modern approach was "kinder and gentler," as he feared that rigor had been sacrificed along the way.
I occasionally kept in touch with Professor Byse to let him know how I was doing. I remember being particularly proud when I wrote to tell him I had been hired at GW; he wrote me back a very gracious letter in return that I still have in my files. Anyway, I'm sure many VC readers knew Professor Byse much better than I did; I hope some readers who knew Byse will consider leaving a comment or two about him.
UPDATE: One recollection from a former student is here.
Death Penalty Opponents Still In Charge at the ABA:
Mark Sherman of the Associated Press has the breaking news here. The ABA's new report is particularly newsworthy because it is a compilation of past reports.
Jonathan Adler is right to suggest that George Will too readily concludes that presidential candidates' positions on abortion should be largely irrelevant to voters. Will claims that a Supreme Court decision overruling Roe v. Wade would restore "moral federalism," a system under which each state could adopt its own preferred policy on abortion. Thus, prochoice voters living in states with prochoice majorities have nothing to worry about (at least so far as their own states are concerned).
I wish that were true. But under the Supreme Court's recent federalism jurisprudence it simply isn't. The Supreme Court's 2005 decision in Gonzales v. Raich held that Congress can regulate any activity with even the slightest, extremely tenuous connection to "commerce." For the detailed explanation why, see my article on Raich. I also explained how Raich gives Congress the power to regulate abortion in this November 2006 post.
In my view, Raich is a severely flawed interpretation of Congress' Article I power to regulate "commerce among . . . the several states." Nonetheless, six Supreme Court justices signed on to it, and all six are still on the Court. Thus, if Roe v. Wade were overruled, current Supreme Court federalism doctrine gives Congress ample power to regulate or ban abortion in pretty much any way it sees fit. Sadly, Will's "moral federalism" has been rejected by the Court and is unlikely to be embraced by Congress of its own accord. Witness their 2003 law banning partial birth abortions, which the Supreme Court recently upheld in Gonzales v. Carhart.
So long as Congress is controlled by the Democrats, it is unlikely that any more federal laws restricting abortion will be enacted. However, the Democratic majority in Congress is narrow and it is not impossible that they will lose it sometime in the next few years. Thus, presidential candidates' positions on abortion are potentially much more important then Will suggests.
George Will has an interesting column arguing that a Presidential candidate's position on abortion should be irrelevant to many voters, particularly those who support abortion rights and live in states where the majority shares that view.
Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation's most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation. But because Californians are content with current abortion law, their legislature probably would adopt it in state law.
It is not irrational for voters to care deeply about a candidate's stance regarding abortion because that stance is accurately considered an important signifier of the candidate's sensibilities and sympathies, and of his or her notion of sound constitutional reasoning. But regarding abortion itself, what a candidate thinks about abortion rights is not especially important.
While Will makes some important points, he also overstates his case. For instance, insofar as voters care about the legality of abortion in other jurisdictions, a candidate's views on abortion -- and the expected likelihood that a candidate's views will result in Supreme Court appointments influence Court jurisprudence on this issue -- would be quite relevant.
Sunday Song Lyric:
When I was 10, I somehow convinced my father to take me to a Kiss concert at the Spectrum. It was the Dynasty tour, the last with the original line-up and make-up (until the 1996 reunion). Judas Priest opened. I had an amazing time. My father says he enjoyed it, but I'm not so sure.
I recalled this because a law professor friend of mine just took his adolescent daughter to the Young Wild Things Tour, featuring Fall Out Boy, Gym Class Heroes, and Plain White Ts, MTV-faves all. He says he enjoyed it too, but I suspect his experience was much like my Dad's.
Of the Young Wild Things Tour bands, I am most familiar with Fall Out Boy, what I would describe as a clever-but-juvenile, hard-edged blend of Panic! at the Disco and Bowling for Soup. Interestingly enough, they also have some legal-themed song titles (if not actual lyrics), such as "Our Lawyer Made Us Change The Name Of This Song So We Wouldn't Get Sued" (in which they tell listeners to "put this record down" because "it's not worth the hearing you'll lose") and their new single, "I'm Like A Lawyer With The Way I'm Always Trying To Get You Off." The lyrics of the latter begin:
Last year's wishes
Are this year's apologies
Every last time I come home
I take my last chance
To burn a bridge or two
I only keep myself this sick in the head
Cause I know how the words get you
We're the new face of failure
Prettier and younger but not any better off
Bullet proof loneliness
At best, at best
Me and you
Setting in a honeymoon
If I woke up next to you
If I woke up next to you
The full lyrics are available here. The video is on YouTube here. And, for whatever it's worth, here's them covering a Killers song at their recent Columbus show.
