Tuesday, May 31, 2005
The New Bluebook (18th Ed): Rush to Get Your Copy
The new 18th edition of The Bluebook is out! I can hardly contain my excitement! I haven't obtained my copy yet (actually, I haven't used The Bluebook since law school), but this edition promises a “bold new look and a colorful, user-friendly design.” It also has “attractive new fonts.” Wow! I might just have to get a copy.
The Bluebook’s website says:
The Bluepages, new to the Eighteenth Edition, is a how-to guide for basic legal citation. Unlike the remainder of The Bluebook, which is designed in a style and at a level of complexity commensurate with the needs of the law journal publication process, the Bluepages provides easy-to-comprehend guidance for the everyday citation needs of first-year law students, summer associates, law clerks, practicing lawyers, and other legal professionals.
Apparently, The Bluebook really consists of two citation guides for the price of one – a Bluebook for the law journals and one for the rest of the world which is assumed to be too stupid to operate at the “level of complexity commensurate with the needs of the law journal publication process.”
Another goodie from the website:
Rule 18 (Electronic Media and Other Nonprint Resources) has been almost completely rewritten to account for increasing use of Internet citation. Major changes include the categorization into two kinds of Internet citations (direct and parallel), the expanded use of analogy in Internet citation, and the addition of citation formats for blogs.
Of course, just one kind of Internet citation won’t do, so more must be created. By the next edition, I expect at least a dozen different kinds of Internet citation. And there’s a new citation format for blogs. It is interesting that blogs are beginning to be cited in law review articles. I didn’t believe this at first, but my colleague Orin Kerr showed me numerous instances of articles citing to Volokh Conspiracy posts. Now that there’s a citation format for blog entries, please cite my blog posts with frequency and gusto.
I’ve always found The Bluebook to be an odd creature of the legal profession. First of all, students decide the citation formats that are used by professors, lawyers, and judges. Second, The Bluebook is an ever-growing system of rules. It is designed to be complicated. If the system were simple, then there would be little need for The Bluebook, as people could readily learn it. Perhaps all that would be needed would be a blue pamphlet. So the system is filled with complex rules that create tremendous busy work among student law review editors, who have the laborious task of making professors’ citations comply with these arcane rules. (Most professors only loosely follow the format, based on their fading memories of the rules, because they know that law review editors will diligently do the work.)
Additionally, The Bluebook requires many needless footnotes and parentheticals that add nothing much of value. Common sense would suggest a system of citation that just made sure that essential information about sources were included so that a reader would know how to find them. But, alas, lawyers crave rules. If The Bluebook didn’t already exist, it would have to be invented.
Also Going to LSA
It seems that half of our bloggers are going to the LSA conference. I, too, will be attending and presenting my paper (or as much of it as can be presented in 15 minutes!), Is There a Bias Against Education in Jury Selection? The paper was pimped here earlier by Dan back when I was anonymous.
To those of you who will be there, come on over to our panel, "From Voir Dire to Deliberations and Beyond: The Jury’s Experience and Capabilities." It is on the very first panel of the very first day of the conference: Thursday, 8:15 A.M. And yes, you guessed it, I'm the very first presenter.
As you can see, I haven't figured out how to post onymously, yet. But soon you will see my name, Hillel Y. Levin, up in lights. When I get back from LSA I'll blog regularly again, and I'll explain why I chose to reveal my identity.
Continuity Errors, Sci-Fi Movies, and Judicial Decisions
Todd Seavey has some interesting observations on consistency of fictional universes, such as Star Wars and Star Trek. After Star Wars Episode III recently came out, many fans lamented the contradictions and inconsistencies between the six Star Wars movies, myself included. Here is a taste of some of Seavey’s observations, which, as I will explain later, have some interesting parallels to judicial decisionmaking:
The fictional universes depicted in movies like the Star Wars or Star Trek series tend to get very complex. . . . That complexity means that—inevitably—the occasional “continuity error” occurs. In normal movie parlance, a continuity error means one of those embarrassing moments when, say, the bandage on an actor moves from the right hand to the left hand between scenes due to a mistake by the makeup department. For science fiction fans, though, continuity refers to the overall logical and historical coherence of our beloved fictional universes.
For you see, any story must have a certain amount of internal coherence if we are to achieve suspension of disbelief. And we must achieve suspension of disbelief. . . . It is only the grandeur and majesty of a fictional universe the size and complexity of one like the Star Wars universe, the Star Trek universe, the DC Comics universe, or the Marvel Comics universe (and perhaps soap operas) that is truly difficult to maintain.
Perhaps this is why it irks fans so much when so many obvious continuity errors pop up in the Star Wars films.
Continuity is also critical to the judicial decisionmaking process, as we have a system of precedent, where courts aim to achieve a consistency in judicial opinions which are written by different people over different time periods. Ronald Dworkin’s chain novel theory comes to mind. In A Matter of Principle (1985), he writes:
Suppose that a group of novelists is engaged in a particular project and that they draw lots to determine the order of play. The lowest number writes the opening chapter of a novel, which he or she then sends to the next number, who adds a chapter, with the understanding that the is adding a chapter to that novel rather than beginning a new one, and then sends the two chapters to the next number, and so on. Now every novelist but the first has the dual responsibilities of interpreting and creating because each must read all that has gone before in order to establish, in the interpretivist sense, what the novel so far created is. (p. 158)
Dworkin then analogizes this chain novel exercise to judicial decisionmaking:
Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does on the day. (p. 159)
It’s time to return back to Seavey on sci-fi movies:
Yet sometimes the editors and writers responsible for such series barely care about maintaining continuity, so busy are they with more mundane tasks such as writing entertaining dialogue and coming up with interesting new characters. That is why such universes desperately need the obsessive, crank-like fan, the fan willing to concoct rationalizations that make sense of the apparent continuity errors. Indeed, without such fans, I question whether the continuity of these universes could be maintained at all. The fate of entire fictional worlds, the very cohesion of the space-time continuum, hinges on the selfless efforts of fans like myself to keep track of what the hell is going on and explain the slip-ups by the so-called “professionals”!
What if we carry the analogy back to judicial decisions? Are we law professors like the “obsessive, crank-like fan, the fan willing to concoct rationalizations that make sense of the apparent continuity errors”?
Perhaps Star Wars does have something to contribute to legal theory after all.
Thanks to Xeni Jardin at BoingBoing for the pointer.
Just a quick note of appreciation and thanks to Orly Lobel and Paul Horwitz, who were guest blogging here until recently. We hope we'll see you back here soon.
I'm pleased to announce that the inimitable Christine Hurt (from Conglomerate blog fame) will be joining us as a guest blogger next week, or perhaps even later this week if there's any time at the Vegas conference, where Orin and Daniel and others will be. (I have to miss it because of a friend's wedding this weekend in gorgeous Annapolis: woe is me.)
Additionally Joelle Moreno will be joining us shortly from Boston, where she teaches at New England School of Law; Joelle will be illuminating various science and the law issues for us. Finally, Trevor Morrison will join us later this month from Cornell.
Upcoming attractions include Rick Bierschbach from Cardozo. Stay tuned.
Jews in Mormon Theology
I'm the token Mormon guest-blogger here at Prawfsblawg and I regularly blog on Mormon topics at Times and Seasons. One of my co-bloggers at T & S, political scientist Russell Arben Fox, recently posted a discussion of the place of Jews in Mormon theology, which I thought might be of interest to some of our readers here (especially since many Prawfsblawg's readers are Jewish).
Russell's take is that the Mormon view of Jews is a bit conflicted. On the one hand, Mormons, like all Christians, believe that faith in Jesus is necessary for eventual salvation. And Mormon belief could be characterized as quasi-supersessionist in nature -- in general, Mormons believe that God's covenants with Israel have been extended to righteous gentiles who accept the gospel of Jesus Christ (without, however, implying that the covenant was revoked with Israel, which would correspond to the stronger supersessionist beliefs held by some Christian groups).
On the other hand, Mormon prophets and Mormon scriptures emphasize the importance of the Jewish people in God's plan. And Mormon beliefs are quite Zionist in nature, emphasizing that God will bring the Jews back to the Holy Land. Mormon leader Orson Hyde was sent to the Holy Land, soon after the church was formed, to offer prayers to dedicate the land for the gathering of the Jews; and many Mormons believe that the creation of the state of Israel is in accordance with God's plans. Thus, the Jews hold a special place in Mormon belief.
I won't do further violence to Russell's lengthy post by further summarizing and editorializing it here. But I do recommend his post, which goes into further detail on many of the topics I've briefly mentioned.
The Next Supreme Court Nominee
Over at Debate Club, they've been wondering if any nominees could command unanimous support. No agreement so far. Volokh conspirators have chipped in helpfully, first suggesting John Roberts, but then realizing that he would likely face strong Democratic opposition. Meanwhile, Talkleft thinks that Ted Olson is likely to be the next candidate.
All this speculation leads me to a point that I've argued before (and that I've seen others argue before as well):
The best possible candidate for the next Supreme Court opening (assuming that it's a Bush appointment) is Richard Posner.
Let's start by suggesting that the best candidate is one who will be widely accepted. Bush may (or may not) have the political capital to force through a controversial candidate. But it is probably best for everyone if he goes with a less controversial candidate, one who is (to use a phrase mentioned at Debate Club) "approved by conservatives, lauded by moderates, and acceptable to liberals."
In addition to meeting those political requirements, a strong candidate omust be one who fares well in the measurements that will be used in evaluating nominees. These will include a judge's intelligence, understanding of law, prudence, ability to work with other judges, independence, and willingness to subordinate individual preferences to the rule of law.
Judge Posner is examplary in nearly every category. He is recognized as one of the greatest legal minds of his generation. He has been instrumental in the widespread use of economic principles in legal scholarship and in court decisions. He has also written extensively about jurisprudence and about substantive law in dozens of areas ranging from employment law to antitrust to torts, and everything in between.
Judge Posner's independence from any political thrall is unquestioned. There is no doubt that he calls the cases as he sees them. One may disagree with individual judgments -- I often disagree with his conclusions -- but his opinions are always articulate and well-reasoned. And on the critical question of "will this judge simply vote along party lines?", the answer is a resounding "no." Whatever one says about Judge Posner, he cannot be accused of simply voting a straight Republican ticket.
On the one hand, Judge Posner's jurisprudence and scholarship is often quite conservative in tone. He has argued that Title VII is inefficient; he has defended monopolies and criticized anti-monopoly laws; he has roundly critiqued former President Clinton for dishonesty. He regularly speaks in venues like the American Enterprise Institute.
However, Posner's conservatism has always included a healthy dose of independence. He refused to join the textualist-originalist ranks in the field of interpretation, instead offering an influential "tank commander cut off from radio communication" model that affords broad independence to judges. He has argued, with the left, against intellectual property restrictions like the DMCA.
Posner's independence is evident from his blogosphere presence as well. Posner blogs with "Nobel"-winning economist Gary Becker, and has also blogged with Larry Lessig and with Brian Leiter. If that's not a broad coalition, the term has no meaning.
Posner's scholarship is extensive, and he does not avoid controversial topics. This means that everyone can find something in his scholarship with which to disagree. I often find myself in disagreement with Posner's conclusions. But his conclusions are never sloppy or ill-thought, and never seem dishonest. He says what's on his mind, after thinking it through. And he typically says it well.
There are three potential bumps in the road for a Posner nomination: age, liberals, and conservatives.
Age may come into play. Judge Posner is not a young man. However, he is still, by all reports, sharp as a tack. I don't see age stopping a Posner nomination. (It may factor in, however, since conservatives will see a Posner nomination as providing less bang for the buck -- they will want to get 20 or 25 years out of this nomination, and Posner may, realistically, be more in the 10-15 year category).
Liberal opposition may materialize. And let's be frank: Because Judge Posner has written a lot of things, it will be easy to find something to use against him. The infamous baby-selling article, for instance, is likely to come up.
But will liberal opposition keep Posner off the Court? Probably not.
First, Posner is likely to be overwhelmingly supported (as McConnell was) by his fellow legal academics. Will Democrats really stand in the way of a Posner nomination when Posner's colleague (and politically connected liberal law professor) Cass Sunstein can, on the drop of a hat, produce a letter signed by hundreds of legal academics of all political stripes, supporting a Posner nomination? Not likely.
Second, Democrats know that Bush has a dozen hatchet men who he could nominate, and a Posner nomination is decidedly not a hatchet man nomination. Yes, he'll often vote with the court's conservatives. But he'll also break from them on some important issues. He'll likely become a key moderate-conservative vote on the court. That's not such a bad outcome for Democrats.
For precisely that reason, conservatives may oppose the nomination. The interest groups on the right don't want a moderate-conservative, they want a yes-man who will rubber-stamp their agenda. And they may feel that, with Republicans in power, they deserve such a nominee.
However, I don't know that they'll be able to stop a Posner nomination, either. First, Bush and Rove have a pretty good control on party machinery (much better than the Democrats have) and can exert muscle to bring wayward elements into line.
Second, Judge Posner brings a lot to the table for conservatives. With his mind and pen, he will be authoring lots of important opinions, and they will be mostly conservative in tone. He will frame issues in important ways. Conservatives could do a lot worse than putting one of the premier theorist judges of our time onto the Supreme Court and letting him write careful, lucid, well-reasoned opinions that will still be cited 100 years from now. He could become the conservative Brandeis, who was important as Court participant but equally (perhaps more) important for the concepts that he trumpeted from the platform of the Court.
And of course, Bush has a key weapon with which to beat any reluctant groups into submission -- the truth. "This is the greatest jurist of our time," he can say. "How can you oppose him? Such opposition could only be based on crass politics."
And he'll be right.
A Posner nomination would give Bush indelible proof that his nominations are not about politics, but about appointing the best person for the job. Law school faculties and the judciary would support the nomination overwhelmingly -- how could they not? And Bush would gain vast political capital as Posner sailed through the confirmation process. It's the choice of a uniter, not a divider, and it would go a long way towards rehabilitating Bush's once-important image as a moderate, "compassionate conservative."
Perhaps it's not a political reality. Very few of the media's "short lists" (such as this one) even mention Posner. If he's not on Bush's short list -- at the top of it -- it would be a shame. Judge Posner is clearly the right man for the next Supreme Court nomination.
Update from Dan Markel: Welcome Instapundit readers. PrawfsBlawg has been up and running for about two months now, and it's a forum where legal academics (both current and rising) discuss law and life. Some other recent posts you might enjoy while you're here include: reflections on leaving legal practice; pictures and thoughts on HinJew weddings; the comedy of the new Blue Book; this post on what Star Wars can teach legal theorists; this post on Israeli tourism and the evacuation from Gaza; and these posts on why the Bar Exam should be abolished. Since we're still new, please bookmark us and if you like our 'zine, tell your friends about us. Welcome again to PrawfsBlawg (home of raw law prof blogging).
Jim Rossi's new book
My friend and FSU colleague, Jim Rossi, has a new book out, which I thought I'd plug here, having seen the notice also on Larry Solum's website. Jim's book is called Regulatory Bargaining and Public Law (Cambridge University Press, 2005), and it has the ISBN no. 0521838924; it is available June 1, 2005. Here's some of the description. (Maybe we'll get Jim to blog a bit about the book here shortly.)
In this book, Professor Rossi explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries, such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies, as with the California electricity deregulation fiasco. However, Professor Rossi argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets.
Among the issues address in this book are consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. Professor Rossi’s book warns against a ‘deference trap’ leading courts to passive roles in conflicts involving political institutions, such as regulatory agencies and states. To address such concerns, Professor Rossi’s book suggests a unified set of default rules to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment.
The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents new opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative influences it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process.
Jim Rossi is Harry M. Walborsky Professor of Law and Associate Dean for Research at Florida State University College of Law.
Regulatory Bargaining and Public Law is a must-read for anyone with a
serious interest in the modern law of regulation. Rossi analyzes the new forms of regulation – misnamed “deregulation” in the popular press and in much academic work – using techniques originally developed for analyzing contracts. Rossi’s approach yields fresh, new insights.
- Matthew Spitzer, University of Southern California School of Law
Jim Rossi has thought long and creatively about the role of courts in our evolving deregulated economy. He warns against a “deference trap” leading courts to passive roles in conflicts involving political institutions like regulatory agencies and states. When doctrines like the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust, and federal preemption traditionally signal “hands off” to the courts, a new sensitivity to incentives and the context of institutional bargaining are sorely needed.
-Judge Richard D. Cudahy, U.S. Court of Appeals for the 7th Circuit
As Professor Rossi shows, the term "deregulation" may be the greatest misnomer in the legal lexicon, for rather than eliminating regulation it replaces one regulatory scheme with a new and even more complex one. Regulatory Bargaining and Public Law analyzes the resulting interactions between regulators, industry, and other groups, demonstrating that these interactions can either further or frustrate the goal of consumer welfare. Public policy analysts, legal scholars, and students of political economy will all find the book an invaluable resource.
-Daniel Farber, University of California, Berkeley
Jim Rossi's Regulatory Bargaining and Public Law should be on the bookshelf of everyone interested in the regulatory process, antitrust, and public law. Beginning with a historical perspective that stretches back to the 1830s and the Charles River Bridge case, Rossi carries our conception of regulated industry away from traditional neoclassical notions of natural monopoly and rate-of-return regulation to more Coasian ideas that each instance of regulation is a special kind of bargain with the sovereign. That is, rather than taking areas of enterprise out of the market, so to speak, regulation is simply a special case of market bargaining. In the process Rossi explores the consequences of deregulation and other alternatives to traditional cost-of-service rate making. Of particular concern is the divergence of public and private interests that can occur when firms and the interests groups aligned with them try to obtain the best deal that they can through the regulatory bargaining process. This model helps Professor Rossi develop a cogent set of explanations for what went wrong in certain cases of deregulatory failure, such as the California electric power crisis.
-Herbert Hovenkamp, University of Iowa
Law and Society Conference
Tomorrow, I’m off to Las Vegas for the Law and Society conference, so I’ll probably be doing very little blogging for the rest of the week. If you hear from me, it will be because: (1) there’s an absolutely amazing bloggable issue I discovered and I can’t contain my excitement and wait; or (2) I’m bored in Vegas, at which point, there’s something seriously wrong with me.
At the conference, I will be participating in an “author meets reader” panel in which a bunch of professors will be commenting on my book, The Digital Person. Besides myself, the panel will include Neil Richards, Joel Reidenberg, Orin Kerr, and Gaia Bernstein. After four critiques of my book, I hope that there’s a back door to the room so I can quietly slip out. I think it will be an interesting panel, and I hope I survive the experience. If you’ll be at the conference, stop by and say hello. In another version of “author meets reader,” it would be nice to meet some readers of this blog, at least to confirm that somebody somewhere is reading my posts.
It's the Circuit Courts that Matter
We still pay a lot of attention to the Supreme Court, despite the fact that it hears only 80 cases a year, of which only a small fraction are controversial and effectuate a significant legal change. At the federal level, the courts with the most significant power are the circuit courts. Consider this from a recent Knight-Ridder article:
The Supreme Court under
Chief Justice William H. Rehnquist has been intervening in only about 80 cases each year, down from about 150 a year two decades ago, leaving tens of thousands to be decided by appeals courts that are increasingly shaping the nation's laws.
"The appeals courts are critical decision-making bodies on a range of issues," said
Thomas Mann, a senior fellow at the Brookings Institution. "As the Supreme Court takes fewer and fewer cases, the appeals courts are more frequently having final say. Both sides know this, so it forms the backdrop for the entire fight."
Also in the background, experts say, is the overwhelming Republican dominance of the appeals courts, thanks to five Republican presidencies over the past three decades versus two Democratic ones. Republican-appointed judges now hold majorities on 10 of the 13 appeals courts, and the pace of appointments is accelerating as new seats are created and other judges retire. In five years in office, for example,
President Bush has managed to appoint a majority of the judges who now sit on the 8th Circuit Court of Appeals in St. Louis.
With a potential appointment looming, most eyes are on the Supreme Court. But the circuit courts, by and large, have the de facto final say for most cases and legal issues. And as the article points out, Republican-appointed judges are in the majority in 10 out of 13 circuit courts.
As the judiciary grows more conservative, I wonder whether liberal and conservative scholars will retool their positions on judicial review or the role of the courts. Inspired by the Warren Court, liberals sought to justify robust judicial review. Conservatives pushed for judicial restraint and attacked the legitimacy of judicial review. (These are broad generalizations of course.) But the courts have a very different complexion today, and I wonder whether liberal and conservative positions on judicial review will start to shift soon.
David Brooks is Not a Moron
You might think that a member of PrawfsBlawg (we have got to do something about that name!), that reliable bastion of the Left, is simply calling John Tierney a moron because he is from the Dark Side. However, I am pleased to -- in proper Brooksian fashion -- congratulate David Brooks for not being a moron, as evidenced in this Manifesto.
Reflections on Israel, Part II (Zimmers and the Gaza Evacuation)
When I last discussed my recent trip to Israel, I was exalting the virtues of Israel's improved infrastructure, which facilitated my trip with now-fiancee Wendi to Had Nes. One of the neat things about Israel is the proliferation of what are called (in the plural) zimmerim. Taken from the German, the name refers to inns that are similar to bed and breakfast places operated and owned by a single person or family in various scenic places in Israel. But they rarely provide breakfast, and they usually don't have more than one room/suite to rent out. Zimmers are a cheaper alternative to fancy hotels even though they have virtually all the amenities one might wish for, even more in fact. The zimmer where I proposed to Wendi, named Achuzat Ashtar (011 972 54 461 6554 for reservations), in the village of Had Nes, had an indoor jacuzzi, dvd player and satellite tv, as well as a kitchen and a hammock overlooking the Kinneret; the zimmer's owner generously includes a bunch of yummy sweets and a bottle of Golan wine, made in a winery scarcely 25 km away. All for less then 80 USD a night. I highly recommend them.
Although we largely escaped the barrage of news that feeds Israel's news junkie society, we were not entirely successful. One of the things that kept coming up during our trip was the increasing domestic tensions surrounding this summer's evacuation of the Israeli settlements in Gaza. Though I expected the demonstrations and the supporters wearing the rebellious color orange, I was surprised to see signs posted on the highway signs that boldly stated that "Jew doesn't expel Jew." I wasn't surprised to see the sentiment itself expressed, but I was amazed at how the supporters of the settlers actually placed these orange and black banners on highway signs, and that they weren't removed immediately since they were defacing state property. (I guess it's an interesting question whether leaving these signs up on government property would create an Establishment Clause issue if the same situation arose in the US!) I should note also that when I came back to DC last week, and that morning saw Hillary Clinton and Ariel Sharon speak at the DC Convention Center, Sharon's speech was interrupted by frumpy old women protesting the evacuation before they were themselves led away by security.
Even though there is an overwhelming popular mandate for Sharon's plan to withdraw from the Gaza settlements, time spent with a variety of Israelis helped illuminate why the issue was so painful for the minority position. Returning from a day at Masada, Ein Gedi and the Dead Sea, Wendi and I gave a lift back to Jerusalem to a couple "national religious" girls. Their grandmother had a place in Gush Katif, which they informed us was their choice as "the most beautiful place" in Israel, with great views of the beach. What's more, many of the residents of the various settlements were encouraged and/or heralded as heroes for going to Gaza to establish residences there, indeed even at the behest of Ariel Sharon in earlier ministries he led.
Even if they recognize the claims of the government that evicts them and appreciate the squalor in which many Palestinians in Gaza live, some settlers are being forced to relinquish homes after living there decades, in a place that speaks to one's sense of courage, patriotism, and aesthetic beauty. This is no doubt heart-rending for those involved, and it is easy to see how sympathy can be created. And, as you know, the homes there are likely to be razed to make room for development of apartment buildings for the overcrowded Palestinian population nearby. So the sadness is palpable even if the settlements were wrong to begin with.
But the evacuation of the settlements itself is the immediate focus for Israelis. While the settlers are supposed to turn over their weapons in advance of their departure, the concern of course is that not all weapons will be confiscated. More pressing is that while the local Jewish population in Gaza is thought to be law-abiding, scores of ultra-nationalists from other areas in Israel or the territories might try to disrupt the disengagement with violent means. (See, e.g., this recent interview with a local police chief.)
I was told that the evacuation forces will be unarmed during the process of evicting those settlements' residents who refuse to leave voluntarily. Additionally, Israel plans on embedding journalists with its forces to make sure the government position is presented in the media too, and not just that of settlers. That the soldiers or police will go in unarmed is a fascinating (albeit risky) use of moral power. We will see then what strength rule of law and democracy carries. I wonder if other governments have used non-violent means to achieve their goals this way. It's quite a twist on Weber's description of the state as the sole possessor of legitimate force.
John Tierney is a Moron
His first idiotic piece, What Women Want, resulted in a promise that I would never read his column again. I violated that promise because I thought his latest, The Urge to Win, might be a recantation. No luck. It seems that he really believes that women just don't have what it takes to sit and memorize 7 letter words because they are too busy gathering in lobbies to chase sexy male rock stars and male Scrabble champions. I really can't quite believe the New York Times publishes this shit.
E. Volokh is arguing at the VC and at The Huffington Post (here and here, respectively) that people need to have the right to make their political decisions for purely religious reasons and that it is a mistake (constitutionally and otherwise) to criticize citizens or leaders who vote for policy outcomes to enact their religious viewpoints into law.
I appreciate Volokh's point. It must be the case that people should be free to develop their opinions consistent with their consciences. It could only be a flaccid politics that would disallow people to make decisions according to the principles they hold most dear.
Still, I wonder if this line of reasoning doesn't make it too easy for the religionists. It has to be the case that there are demands of public reason in secular liberal societies that prevent policies from being enacted when, at their core, they are nothing more than a religious preference. So we have to build in a constraint or two. We couldn't, I take it, allow a majority of leaders or citizens to enact a public policy for religious reasons only because there are potentially secular reasons that may have motivated some of the policy's adherents. If a majority of an enacting Congress appeals to the Bible to justify a law, that must run afoul of Establishment Clause principles, despite our deep commitment to freedom of conscience. What if a majority of voters in measures of direct democracy (say, banning same-sex marriage) are motivated almost exclusively by religious reasons? Would that not also seem to run afoul of the Establishment Clause and impermissibly mix religion and law? In short, Volokh is right that it is too facile to condemn all whose political beliefs emerge from a religious viewpoint; but we must be careful before we allow religious reasons to justify actual policy enactments.
Arthur Andersen conviction overturned today
The opinion was unanimous, although that is probably little comfort to the thousands of Andersen employees who lost their jobs.
Practice and Theory
Some thoughts on my last week of practicing in a large NYC law firm before becoming a full-time academic.
I didn't want to practice law. For that matter, I didn't really want to clerk either. With clerking, it was a means to an end: even though I was getting a Ph.D., a clerkship is more or less a prerequisite for an academic job. I only wound up practicing because my first year on the job market was unsuccessful. Still, these two years being a real part of the practice of law were truly invaluable for my understanding of the social practice that I am used to studying from the distance of an academic. As someone mostly interested in theory, I rarely found myself very close to the law even while writing about it. These years have been extremely educational and I am certain my scholarship and my teaching will be enriched by them.
Just what have I learned? That legal realism is at least partially true; that the law is at least partially autonomous; that the judiciary has severe institutional limitations; that clerks have a lot of power and those who teach them can have immediate impact; that politics is only relevant in the marginal cases in the lower courts; that being an advocate can be redemptive; that ethical questions pervade the profession; that practicing can be as intellectual and rigorous as any theoretical enterprise; that serving clients can make one feel extremely useful and selfless; that representing the poor or thinking through the cases of the dispossessed is an ennobling experience; that hierarchy and commitment to it is very damaging to legal institutions. These aren't huge insights, of course. But practicing helps one internalize these lessons in a manner more convincing than any article can possibly be.
Monday, May 30, 2005
A Coming Out Party
Just a note to announce that Amos Anon1 has decided to reveal his identity. His name is Hillel Levin, and he will continue to write for PrawfsBlawg for the foreseeable future. Hillel is a former YLS grad, clerk on the Second Circuit and district court, and a native of Memphis. He currently practices law in Hartford, where he lives with his wife and children.
The identity of AA2 is still undetermined...
Why I Write
There have been many interesting posts about what motivates us law professors to write. The discussion was created here, on this blog, by Paul Horwitz. Orin Kerr writes to work through a tough problem or make the world a better place (further thoughts here). Eric Muller writes for fulfillment. Michael Froomkin notes several reasons, such as furthering an understanding of an issue, sharing a cool idea with others, replying to a critic, suggesting social reforms, or being required to in order to participate in a conference. Michael Madison writes to share ideas with others.
I agree with all of the reasons mentioned above, but for me, the thing that most invigorates me about writing is the creative process. I write because I like creating things and because it gives me joy (and some candy for the ego) when my work has an impact on others. It’s great when people agree, but I even enjoy when people disagree – at least I’ve started an interesting conversation. In other words, I like creating things, launching them into the world, and watching what they do.
If I could paint, I’d paint. If I could write novels, I’d write novels. But I believe that I’m better able to write about the law than create paintings or novels. And I’m too old to be making Lego creations . . . well, I guess you can never be too old, but it’s just not a realistic way to make a living.
How Many Blogs Are There? How Many Read Them?
Carl Bailik has an interesting article in the Wall St. Journal (no registration required to read this article) about measuring the importance and impact of blogs. The basic point of the article is that calculating the number of blogs and blog readers is fraught with peril:
The numbers of the blogosphere range widely. Are there 10 million blogs, or 32 million? Do a quarter of online Americans really read blogs, as one oft-cited survey found? And why do rankings of the most popular blogs vary so much?
Adding to the confusion: disagreement over exactly what a blog is. In our young era of blogging, there's still no consensus. "Blog" derives from "Web log," and everyone agrees that a blog should be regularly updated, with new entries in reverse chronological order -- and that the entries can be about anything. But millions of people establish blogging accounts with free software providers like Google Inc.'s Blogger, Microsoft Corp.'s MSN or Six Apart Ltd.'s LiveJournal -- it takes mere minutes -- and then never post to their blogs. Others password-protect their blogs and use them to share photos and data with a small group of family members, friends or colleagues. Whether or not you count all those represents a big chunk of the swing from 10 million (cited recently in the New York Times and USA Today) to 31.6 million blogs (Ottawa Citizen and the Ann Arbor News). Both are world-wide estimates.
Bailik contends that the number of blogs is not a meaningful statistic because many are abandoned after they are launched (such as a blog I started back in March and abandoned after just two posts). Bailik then turns to counting blog posts statistics, with Technorati estimating about 800,000 to 900,000 blog posts a day and BlogPulse estimating about half that amount -- 350,000 to 450,000 per day. Bailik writes:
The total number of active blogs -- those with a post in the past 30 days -- was 3.5 million on May 1, according to BlogPulse. That was up just 30% from last September, even as the site found that the total number of blogs increased nearly 200% over that time. That suggests there's a lot of dead air out there.
But the number of blogs doesn't say a lot about the relevance of blogs. Bailik turns to calculating the number of people who read blogs. A Pew poll has 25% of Internet users saying they read blogs, but Bailik points to reasons why this statistic may be dubious. If one were to rely on the 25% statistic:
Multiplying the results with Pew's estimate for the total number of Americans online yields an estimate of about 32 million American adults who read blogs.
What about measuring the popularity of particular blogs? One method is to count links to a particular blog, "but this measure fails to take into account the prominence of the site doing the linking." Another method is to count visitors to the blog, but total visits does not capture "unique visitors" which is "the standard currency for many kinds of online advertising (advertisers don't want to pay twice to reach the same reader)."
I believe that statistics about the total number of blogs or blog readers are not very helpful. Stats about the readership of particular blogs can be quite helpful, as right now, it is a small group of the blogs out there that are gaining a sizeable audience. The WSJ article focuses mainly on how advertisers might view the statistics, but in terms of influence, I believe that total visits is an important stat. If people are visiting a blog routinely throughout the day, it measures the fact that the blog is of great interest to these visitors. Unlike the mainstream media, blogs are more interactive, where readers can post comments and have discussions. Debates occur between different blogs. In short, blogs are more akin to an ongoing conversation than a mainstream media publication or broadcast, so perhaps trying to calculate similar statistics (total readership) will not tell the whole story. Perhaps the best statistic would be finding out from people how often they read blogs, which blogs they are reading, and how meaningful they consider blogs to be are in their lives. (Thanks to beSpacific for the pointer.)
Brian Tamanaha on Problems with Instrumental Views of the Law
Brian Tamanaha (law, St. John’s), has written a provocative article called The Perils of Pervasive Legal Instrumenalism. He observes that "[a]n instrumental view of law--the idea that law is an instrument to achieve ends--is taken for granted in the United States, almost a part of the air we breathe." Such a view, however, creates a serious problem:
[I]n situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law, to serve their own ends. What results is a contest over law itself, a contest in which all sides seek to enlist the power of law on their behalf, spawning a Hobbsean conflict of all against all carried on within and through the legal order.
Tamanaha observes that one of the dangers is “that a judge would cross over from abiding by the binding quality of law, sincerely trying to figure out what the law requires (however unclear), to instrumentally manipulating the legal rules to reach a personally desired end, much as a lawyer does in service of the client. . . Most every case they decide will be what they personally prefer, to further the aims of the groups that support them, notwithstanding what the law says. This is no longer a system in which the legal rules have any binding effect on judges. It would no longer be a system of law.”
Tamanaha notes that the Realists would be “aghast at the scene today. . . . The Realists understood that legal rules have a built in binding, non-instrumental aspect which defines them as law . . . Despite their intentions, the implications of the ideas they espoused may turn out to undermine the binding quality of law.”
Tamanaha raises some very provocative questions. He doesn’t purport to suggest the answers, but his questions are worth serious thought.
However, I do have some important disagreements with the paper. At the end, Tamanaha argues that “[t]he legal Realists were progressive law reformers who wanted to stop formalist judges from erecting barriers to the social welfare state. . . . The Warren Court tried to bring about greater social justice, but they generated a backlash both in the political and judicial arena in which the progressive values they supported are now threatened by a conservative judiciary.” Further, he contends: “If a mistake was made in the critical attacks of reformists, it was that, in the pursuit of victory, their attacks went too far. Their attacks were wholesale, taken to an extreme.”
This strikes me as a description that might fit the CLS movement, but it is hardly apt for the Legal Realists or Warren Court. Neither the Realists nor the Warren Court engaged in an “all-out destructive attack” and neither neglected to seek to “construct new foundations.”
Additionally, I take issue with his characterization of legal pragmatism.
Tamanaha notes the divergence of substantive viewpoints among legal pragmatists such as Richard Posner, Morton Horwitz, Martha Minow, Margaret Radin, and Mari Matsuda and contends that “[t]his convergence on pragmatism . . . did not reflect a sudden reconciliation among contesting views. They remained as far apart as ever in their substantive vision. The very fact of this convergence confirmed what had been a source of criticism early in the Century: pragmatism is empty with respect to ends, offering no particular guidance or values.” Tamanaha goes on to observe:
The popularity of pragmatism was short-lived, for it was not evident what insight, if any, pragmatism offered to law. Pragmatic philosophy was primarily a negative critique of absolutist theories of truth. When Pound, Dewey, and the Realists invoked pragmatist thought in the legal context in the early 20th Century they were combating prevailing non-instrumental views of the law as abstract principles that were applied in a logical fashion with no attention to social consequences. Pragmatism had real bite then. By the 1960’s and 1970’s, as indicated, a pragmatic approach to law reigned and legal instrumentalism was “the ordinary religion of the classroom.” It is routine for judges today to consider the social consequences of their decisions. Philosopher Richard Rorty concluded that pragmatism in law today is “banal,” as its insights have already been absorbed.
In Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, Prof. Michael Sullivan (philosophy, Emory) and I argue that Posner’s view of pragmatism does indeed fit Tamanaha’s description. But we also argue that Posnerian legal pragmatism diverges significantly from the views of the classical pragmatists, which we contend were hardly banal and went far beyond being merely a critique of absolutism:
Posner views ideals as useless and philosophical theorizing as empty. Lacking any meaningful approach for scrutinizing social goals, pragmatism thus devolves into an efficiency exercise. The task of the pragmatist becomes merely finding the appropriate means to achieve our given ends. While this search for means may take a critical form, Posner’s account has little to say about the selection of ends. Accordingly, his attack on abstract ideals becomes, in effect, an endorsement of such ideals, since it leaves unreconstructed the dominant moral ideals of present society.
It is not surprising, therefore, that in his theory of democracy, Posner is not interested in promoting methods for the community to develop shared ideals. Rather, the pressing need is for a set of elite managers to serve as efficiency experts, whose goal is to find the most efficient means to achieve our inherited ends. Posner’s view has significant consequences for thinking about the nature of democratic community. Since people are not encouraged to make any effort to form a community on the basis of shared ideals, the dominant normative ideals of society are left to drift haphazardly. Society becomes little more than the collective actions of atomistic individuals. Thus, as with the market, Posner views the equilibrium that emerges from individuals who pursue their own private interests as sufficient to generate the larger social ethos.
Posner’s pragmatism, having eschewed attempts to evaluate ends critically and having effectively pronounced its agnosticism about community ends, leads naturally to a vision of democracy as principally an efficient mechanism for dispute resolution. This vision of democracy is conservative not only because it privileges the inherited demands of the present, but even more because it rules out as misguided the projects of reconstructing community identity through public deliberation. In contrast, the pragmatism of the early pragmatists, especially Dewey, encourages us to approach our present problems more radically. We should subject both means and ends to critical inquiry and empower communities to engage in self-formation by reconstructing the settled habits and ideals that constitute the status quo. For Dewey, “The end of democracy is a radical end. For it is an end that has not been adequately realized in any country at any time. It is radical because it requires great change in existing social institutions, economic, legal and cultural.”
Posner is right in his general view that pragmatism has much to offer to law, as well as to democracy. Its contribution, however, is not a rejection of philosophical theory but a transformation of how we relate theory to practice. Far from being banal or timorous, far from accepting our current practices and institutions as given realities, pragmatism subjects them to criticism and reconstruction. . . .
Sullivan and I argue that pragmatism need not be a neutral method, empty as to ends:
Pragmatism refuses to accept on face value claims about methods being “neutral.” Rather, pragmatism recognizes that our critical investigations are infused with value commitments. No neutral determination is possible. Under this account, the point of philosophy is less a matter of securing objective truth and more a matter of facilitating effective growth in the face of particular problems. Pragmatism is not a method purified of experience. Pragmatism does not start out from some Archimedean point; it begins with commitments, which have certain valences. Pragmatism asks particular kinds of questions and suggests we abandon other types of questions. . . .
While Posner’s thin account of pragmatism seems insufficient for generating substantive ends, a thicker account of pragmatism recommends that a community pragmatically reconstruct its ends. On this thicker account, democracy and pragmatism go hand in hand. As Hilary Putnam observes, for Dewey democracy was “not just a form of social life among other workable forms of social life; it is the precondition for the full application of intelligence to the solution of social problems.” Certain characteristics of democracy facilitate the community’s engaging in pragmatic inquiry about the future shape of its democracy. Pragmatic inquiry enables a community to make itself more democratic. Pragmatism and democracy are thus mutually reinforcing. . . .
Pragmatism is not neutral, and although pragmatism does not strongly lead to a specific and detailed set of ends, it does have valences. We contend:
In order to ask what political future does pragmatism recommend?, we must also ask in what political culture can pragmatic forms of inquiry about the political future best be carried out? The answer to this latter question leads us in the direction of what we call a “general democratic culture.”
First, . . . pragmatism subjects existing institutions and the status quo to ongoing critique, since it recommends that we critically examine our ends. When one commits oneself to a thoroughgoing use of pragmatic method, certain conclusions are ruled out in advance, such as a politics informed by supernatural or transcendental ideals, or a politics that arbitrarily excludes particular viewpoints. Supernaturalism and absolutism conflict with the general approach of the pragmatic method, which is to subject our ideals, ends, and conclusions to the test of experience. Indeed, it is this commitment that in part motivates Posner’s rejection of philosophical theory, for much philosophical theory has traditionally harbored ideological commitments that were then foisted upon the unaware from the altar of theory. But the fear of ideology can lead to cures that are worse than the disease. Although Posner claims to adhere to a neutral pragmatic method without political valences, the results of his application of this method are deeply ensconced in ideology. Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo. The result is that while Posnerian pragmatism rejects supernaturalism and absolutism, it starts with an unquestioning acceptance of current institutions. Ironically, it winds up in a similar posture to supernaturalism and absolutism, for in each of these instances certain issues are insulated from critical scrutiny. . . .
. . . [I]n contrast to Posnerian pragmatism, the account of pragmatism we offer openly acknowledges that it is not completely neutral. Although pragmatism does not point to precise resolutions for our debates, it does send us in a particular direction based on the types of questions it recommends we investigate. It puts on the table for debate a wide range of issues, especially the identity of a community and its ends. It requires dialogue, for the task of determining a community’s ends cannot be achieved without communication. And it relies on the participation of the community, not merely upon a group of elites who impose their own ends upon the community. . . .
Therefore, while Tamanaha has diagnosed a significant problem with many current instrumentalist views of the law, the problem is created by certain kinds of instrumentalist theories of law, not by instrumentalism in general. This might appear to some to be a subtle distinction, but I believe that it makes all the difference in the world.
Far from abandoning an instrumentalist view of the law, the answer lies in a richer understanding of legal instrumentalism beyond the simplistic and dead-end accounts that are currently pervasive. The answer, I believe, is to return to the project begun by the philosophical pragmatists (such as John Dewey and William James) and the Legal Realists (who were heavily influenced by the pragmatists). Their project ought to be revisited, as it need not necessarily lead to Tamanaha’s stark vision of legal instrumentalism today. In fact, a return to exploring the ideas of the pragmatists and Realists might show us the different paths instrumentalist theories of law can lead to, and how we might move from the path we’re on to a better more productive path.
Disagreements aside, Tamanaha’s article is quite thought-provoking, and he is asking essential questions about the future of legal theory and of law in general.
Thanks to Larry Solum for the pointer.
Saturday, May 28, 2005
Justice Brandeis and Yoda
Eugene Volokh explains the connection over at the VC.
Friday, May 27, 2005
Reflections on Israel, Part I
Various readers have asked for some more details about my recent trip and I thought I’d share some highlights of the recent trip to Israel and some of my impressions of that continually astounding country.
We started off our Israel trip in Jerusalem , enjoying the extraordinary hospitality of my cousins Tzippi and Elad, who live in the Kiryat Yovel section of Jerusalem. Notwithstanding the fact that I had lived for a year in Jerusalem ten years ago on a Dorot-Harvard fellowship and had been there many times before a few times since, Elad took Wendi (whose first trip to Israel this was) and me to a few neighborhoods that undergone extraordinary renaissances during the last ten years.
Ein Kerem in particular is a place that few foreign travelers get to because it’s a bit hard to find, and not easily accessible through public transit or by foot from the heart of Jerusalem. But it’s a magnficent place, with winding roads, cafes whose outdoor seating is layered with lush overcover from the trees, and hidden oases of quiet and space in an otherwise bustling and teeming city.
We stayed in Jerusalem for a few days, where we saw, among other things, the fantastically powerful and newly renovated Yad Vashem, the Holocaust Museum
that Marty Peretz wrote elegantly about a few months back here. We stopped by to say an impromptu hello to Shimshon Zelniker at the Van Leer Institute on our walking tour of Talbiye, and ended the day with an extraordinary meal and conversation at the bookstore café, Tmol Shilshom, with my friend David Ehrlich, the writer who, eleven years ago, decided Jersualem needed a magical reprieve where ideas and yummy food could commingle among foreigners and Yerushalmis alike. During our stay in Jerusalem, we also took the very instructive and fun tunnels tour at the Western Wall in the Old City (take note that reservations are necessary).
This trip marked the first time I rented a car in Israel. Sadly, Israel is known for having lost more people on its roads in car accidents than during wars or acts of terrorism. But I can see that things have improved markedly over the last ten years. Although I speak Hebrew reasonably well, I found the roads incredibly well-marked in English for tourists and the maps are very helpful in avoiding getting lost (too often). I was also impressed by the quality of the roads and highways: Israel has spent lots of money on developing a good infrastructure for travel, and especially if you avoid travelling at peak hours, you can traverse a great deal of the country in surprisingly short amounts of time, which allows you to enjoy a good amount of Israel’s variegated geography without having to lose a ton of time in travel.
Ok, enough for now. In Chicago for Wendi’s brother’s wedding. Must be sociable now…
Further Thoughts on Abolishing the Bar Exam
I received many thoughtful comments on my earlier post about abolishing the Bar Exam. Most of the arguments for retaining the Bar Exam involve the need for erecting a barrier to attorneys being licensed.
Hardly any of the Bar Exam supporters contend that the Bar Exam is a good metric for merit as an attorney. If we want to block people from becoming lawyers, there are many ways to do it, but why use a test that doesn't do a very good job of it? If we want a barrier, why not make applicants go through an obstacle course? Or have a silly competition in something? The Bar Exam is a hurdle that mainly functions as a hurdle, not as a meaningful way to distinguish competence from incompetence. Passing the Bar Exam reflects at best: (1) whether you have enough money to pay for BarBri; (2) whether you have a decent memory to remember the rules; (3) whether you are willing to waste many hours studying. The Bar Exam doesn't test legal thinking; the rules it tests on are not useful to the practice of law or much of anything else.
Over at Conglomerate Blog, Christine Hurt notes that Wisconsin allows students from Marquette or U. Wisconsin to be admitted to the Bar without taking the exam. However, she writes in favor of a Bar Exam requirement:
I wish that Wisconsin had a bar exam requirement, although that wish may be because other states do. As Dan Solove pointed out, bar exams inhibit the movement of lawyers in and out of states. Being almost the only state that does not require a bar exam has the reverse effect of inefficiently retaining and attracting lawyers to Wisconsin. I think that the absence of a bar exam heavily weights in favor of our graduates staying in Wisconsin rather than venturing out and seeing the country. Of course, Wisconsin has a lot to offer a lawyer, but so do other places.
The absence of a bar exam also shifts the role of "barrier to entry" back to the law school, which is not an easy role for law schools to play these days in the competitive law school market. If either Marquette or Wisconsin took up the role of keeping 10% of all prospective attorneys out of the market, then we would find ourselves losing applicants.
This argument, like many others, is to praise the Bar Exam simply because it is a barrier. I strongly disagree with Christine about the Bar Exam serving as a better barrier than law schools. Some students spend three years of their lives and go into massive debt only to be stopped from practicing law by failing to pass the Bar Exam. This is not where the barrier should be, at the end of such a long and expensive commitment for students.
In a thoughtful post, Paul Horwitz writes: "[E]ven if for non-invidious reasons, entry barriers will -- and likely should, if they are aimed at quality control rather than maintenance of guild privileges -- remain. The bar exam does some things well, and can be a reasonable quality control."
I query whether the Bar Exam does anything well. It is not a test of legal reasoning or skill; it is simply a test of whether one has remembered the rules.
In the end, the fact that the Bar Exam serves as a barrier does not strike me as a valid reason to exclude people from the practice of law unless it functions as a meaningful barrier. It doesn't. To the extent it correlates to effort in studying or memory or standardized testing skills, I'm not sure that these are the best skills that we should be looking for in members of the profession. And also consider that there is not a large social benefit to all the hours that people expend studying for the Bar Exam. All the hours spent on the Bar Exam could be used for a more productive purpose, such as helping people in need.
Thursday, May 26, 2005
Democratics Serve in Iraq, Too
Tom Smith, The Right Coast's funniest blogger (indeed, arguably one of the funniest bloggers around altogether), points to an interesting op-ed in USA Today. It is worth a quick read before Memorial Day; I assume most of our readers overlook USA Today.
British Boycott of Israeli Universities Revoked
The Association of University Teachers in England has voted today to revoke its previous decision to boycott 2 Israeli universities, Bar-Ilan and Haifa. The association released a statement: "UK higher education has a long and proud tradition of defending academic freedom. The struggle to maintain academic freedom whenever it is under threat is one that AUT will always support and this principle will continue to guide our work."
As I wrote a few days ago, the boycott was misdirected and misguided and I am glad that this large association of United Kingdom professors has voted to revoke it.
Congratulations to new (so) American idol Carrie Underwood! Underwood has a sweet soulful country sound and I will definitely buy her record. Americans showed once again that they do have a taste for voting, just not for political politics. Pop politics received this season on idol a striking record of one half-billion votes!
Tallying Up the Data Security Breaches
The Privacy Rights Clearinghouse has tallied up all of the data security breaches that have been announced following the ChoicePoint security breach back in February. It has created a very helpful chart of the breaches (there are about 30 in all). The chart indicates when each occurred; the company, organization, or agency involved; how each breach occurred; and the number of people affected. The total number of people whose personal information was compromised is 5,476,150. Wow!
Tough Acts to Follow
While I was away, FSU's law school has been the site of some interesting developments. First, and perhaps of special interest to PrawfsBlawg readers, my colleague and buddy in the making, Jon Klick, was named the Jeffrey A. Stoops Professor of Law after only one year of being an assistant professor. Klick received his J.D. in 2003 and his Ph.D. in economics in 2002, both from George Mason University. One of his many interesting articles is available here and it's about terror alerts in DC and their effects on crime rates.
Additionally, Curtis Bridgeman, who just finished his first year teaching at FSU also, was named Professor of the Year by first year students at FSU, and his paper was selected for the Stanford-Yale junior faculty forum.
Finally, and due in no small part to Curtis and Jon's productivity and Jim Rossi's management, FSU's law school now stands in the top 20 of the SSRN recent downloads "tournament. " See here for details.
Pos' and the MSM
One thing I want to commend about Posner's post, which I discuss below, is that it doesn't adopt the all-too-common blogosphere meme of demonizing the so-called MSM -- it's terrible, it's too liberal/conservative, it's on its last legs, etc. He does suggest that "a conventional journalist's career appeals disproportionately to liberals," an assertion that he does not substantiate but that, based on personal experience, I don't find implausible (for the major urban print media he and I both read; I can't vouch for broadcast, or for media outlets in further flung locales). But that's the extent of his dismissal. I find the MSM meme questionable for two reasons. First, as is typical of other Internet bubble moments, it is vastly over-enthusiastic about the nature and importance of the blogosphere (Posner's description of almost instantaneous correction may be an example of this enthusiasm), even while it probably fails to appreciate the full applications and implications of the phenomenon.
Second, whether the MSM are bad and/or getting worse is an empirical question, and it is, for the most part, sloppily addressed in the blogosphere. Is the error rate higher for the mainstream media now than it used to be -- and is it increasing, in a way that corresponds to the heated complaints made on-line about the bankrupt nature of the enterprise? Maybe, although I doubt it. But anecdotal evidence won't go far toward proving the point; indeed, given the availability heuristic and other cognitive limitations, it is likely critics will focus unduly on high-profile mistakes, and that they will tend to underplay the error rate in prior eras. The shouting about the MSM will be just that -- shouting -- unless and until it is backed up by far harder data. If the shouting speaks to anything, it speaks to the phenomenon of political polarization in the blogosphere and the larger society, and the
My intuition, based on my experiences and on some facts, is that the print media, at least -- both the major papers and many of the smaller ones -- are probably higher-quality institutions now, because of the general increase in the intelligence of the public, the increased educational level of the reporters and editors, the increased professionalization of the press and its ethical standards (as compared to, say, Chicago newspapers of the 1920s), and the fact that major print outlets are competing for an increasingly sophisticated and smaller readership. I could be wrong. In either event, these are empirical questions, as I say.
Not that I think the blogosphere hasn't an important role to play in monitoring and competing with the conventional mainstream media; I just think that role can be played without a spate of increasingly cliched denunciations. There is surely some irony involved in the fact that, in my reading, the blogs that cry the loudest about the MSM are the ones -- blogs that discuss current affairs, rather than fan sites, etc. -- that rely most heavily and parasitically on the MSM, including print opinion journals but also lots of standard MSM reporting, for their material.
As if we needed another ranking system, along comes this website, which has categorized bloggers into an A-list, B-list, and C-list. For example, Eugene Volokh of the Volokh Conspiracy is on the B-list. Other bloggers on the VC don't even make any list (sorry Orin). And nobody from PrawfsBlawg . . . outrageous! I searched in vain for some kind of criteria for these lists, but there appears to be none. The whole thing seems to be a way to drum up interest for a magazine about blogging. Instapundit (Glenn Reynolds) writes: "THIS IS A PARAODY, RIGHT? Please let this be a parody." Glenn Reynolds, FYI, is an A-lister.
Owen the Softie
The New York Times profile of Judge/Justice Owens as a softie was not very convincing:
Her private life showed a softer side. She cherished her two Belgian sheep dogs and served on the board of Texas Hearing and Service Dogs, which trains unwanted dogs.
This is the best they could find? I'm all for kindness to animals. But--as my wife will tell you--I really resent people who can only connect with the other species. Unless they are autistic and can do no better. See, e.g., An Anthropologist on Mars.
Some Reactions to Reactions to the Filibuster Compromise
I'll try not to run this issue to death now that there's at least a temporary compromise on the table. But I thought a couple of links were worthwhile here.
First, law professor Douglas Kmiec criticizes the compromise, but does so, I think, on principled grounds -- that judicial filibuster is unconstitutional, so any compromise that allows it to remain must perforce be opposed. I disagree with his constitutional view but certainly commend the principled nature of his disagreement. Note that Kmiec correctly notes that if the constitutional argument is based on the advice-and-consent provision, then any form of blocking nominees from an up-or-down vote should be equally constitutionally problematic -- and both parties, as he notes, have exercised such tactics. From a constitutional standpoint, I fail to understand efforts to argue that a minority is barred from preventing an up-or-down vote, but the majority may deny the President's nominee from getting a vote in the full Senate. One thing I would question in Kmiec's article is his apparent distinction between "judicial filibusters" and filibusters of other advice-and-consent nominees; I think no such distinction is tenable on the basis of the constitutional text. Still, I think the article is a fair and principled one. I would also point out Professor Bainbridge's posts, linked to in part here.
One set of posts I disagree with is from Mike Rappaport, my erstwhile colleague at USD and a serious writer on these issues. His posts are here and here. Mike writes: "Bainbridge argues that he favors the filibuster as a matter of principle, not as a means of benefitting conservative nominees. I am in favor of following principle also, but it does not necessarily make sense to follow principle when the other side doesn't. . . . Principle is fine, but reciprocity is fairer and can often help to sustain principle. If the Democrats are going to use the filibuster in an excessive way, then the Republicans should use the nuclear option -- or at least threaten it to get an acceptable deal, such as one that applies in 2009 when neither party knows who will be the President."
Well, I think following principle is an intrinsic good, not an instrumental one. Moreover, it seems to me we have some data to gauge the effectiveness of reciprocity with respect to congressional practice, and it has not been a ringing success: it simply leads to an endless regress in which each side blames its unfortunate innovations (certainly including increased Democratic use of the filibuster) on the wrongdoing of the other side. If reciprocity were measured and genuinely responsive, it might be a fine tool; but it is not. That, it seems to me, is one of the many reasons we ought to remain loyal to principle. To put it in Posnerian terms, it is a pragmatic justification for loyalty to rule of law values, which certainly include respect for process -- including the process of changing the Senate rules.
Nor should we take violations of principle lightly simply because they involve legislative practice and not something else. I take it Mike doesn't think courts ought to ignore the rule of law for similar reasons of reciprocity over principle; why, then, should we be sanguine about the Senate's exercise of the unclear option, at least if that exercise would violate Senate rules?
Finally, Mike writes: "Bainbridge argues that saving the filibuster was a good thing. Perhaps. But what makes him think that President Hillary Clinton, with a Democrat Senate, won't use the nuclear option when Republicans filibuster?" Well, as far as HRC, I'm not holding my breath on her winning that office. And I certainly would go on record as opposing a Democratic Senate and/or President either arguing on constitutional grounds that the filibuster is impermissible, or employing the specific rule-change tactic contemplated in this last go-round. But Mike, as I understand it, believes that although the filibuster may be constitutional, entrenching Senate rules changes against a majority vote is not -- so on his view, the current Senate or a future Democratic Senate could always change the rules.
Wednesday, May 25, 2005
My Dispensability Has Been Proven
As some of you have noticed, I've been away for the last ten days, but I'm glad to see (and of course hardly surprised) that the blog has flourished in my absence. I won't speculate about which ways the arrows of causation are running here, though I do want to thank Ethan and our guest bloggers for running the asylum so proficiently...
Anyway, lots to catch up on, but I thought I'd report first on the most important development in my life that occurred recently. Last Thursday night, in a little village called Khad Nes (aka Had Ness) , which overlooks the Kinneret (Sea of Galilee), I became the luckiest guy on earth.
Wendi Adelson agreed to marry me. She now wears what she likes to call a "big girl ring," which I find has proven a worthwhile investment in terms of its deterrent powers alone. All I can say is: Wow, did I win the lottery of life. And it is a sentiment with which my friends and family eagerly share.
Of Amici, Ethics, and Blogging
So I was talking to Julian Ku yesterday. He's a foreign relations law expert at Hofstra and blogs about international law and the like at Opinion Juris. Of late, he has spent a lot of time blogging about the Supreme Court's Medellin case. His various views can be found, e.g., here, here, and here.
When the case was before the Supreme Court, he also submitted an amicus brief in the case, along with other law professors (see it here). I got to thinking about what ethical responsibilities an amicus author might have to his "client," whomever he/she/it may be. Say I submit or sign an amicus brief on behalf of the American Society for International Law to the Supreme Court. Are there ethical duties that may prevent me from freely blogging about my thoughts on the case? Julian: can you ask Monroe or other legal ethicists? Can someone write in with the answer?
From the Department of Needlessly Inflammatory Comparisons, Volokh.com Division
Comes now a post by Volokh conspirator Dave Kopel, which begins:
In 1924, after Lenin's death, the Communist Party of the Soviet Union introduced the concept of " socialism in one country." Recognizing that the hoped-for Communist revolutions elsewhere in Europe would not take place, the Soviet Communists set about building their version of "socialism," and then adding other nations to their "socialist" sphere of hegemony whenever possible. Today, many international gun prohibition advocates have recognized that, even though world-wide gun prohibition is not achievable in the near future, gun prohibition can be advanced in individual nations.
This is shocking news, of course: Modern gun control proponents want to work incrementally. This is outrageous because the Communist Party also once worked incrementally. Such (shocking!) similarity is apparently more than enough justification for tying together these two entities -- one of which invokes strong negative connotations -- within the same paragraph.
The comparison is gratuitous. There is no discussion of the merits of Communist incrementalist strategy or of any partcular similarities between Communist incrementalist strategies and gun-control incrementalist strategies. There is no mention of the numerous relevant disparities between the groups. Perhaps most importantly, there is no hint at all that every political group on the face of the planet uses incrementalist strategies at various times. This is the equivalent of saying "Lenin used pen and paper, and so does Handgun Control, Inc." It's an incredibly irresponsible comparison, and frankly, I'm surprised that Eugene Volokh, who is normally a stickler for fair argument standards, is putting up with it. My guess is that he simply didn't notice it.
Eugene, of course, is well-known for his use of "substitute in another party's name" hypotheticals to illustrate unfair arguments. I can't claim the same dexterity with the form that Eugene regularly displays, but I think that even my own less agile attempt at this kind of adaptation makes clear the extent of the problem:
When he was in charge of Fascist Italy, Musolini used to meet with his followers and rile them up. This was an important Fascist tactic. Today, the NRA meets with its members and riles them up.
Is that really a fair comparison?
And if not, then what on earth are Lenin and the Communist Party doing at the beginning of Kopel's post?
A conference on "ASSESSING THE FUTURE OF THE LEGAL PROFESSION"
Oklahoma City University School of Law is hosting a september 2005 conference focusing on the future of the American legal profession, including judicial ethics, transnational practice, the Ethics 2000 reforms, the regulatory framework for the legal profession, and legal education. Participants include Monroe Freedman, Geoffrey Hazard, Lisa Lerman, Tom Morgan, Ted Schneyer and the always exciting David Wilkins.
Frankfurter Spectacular, and other Gastronomic Monstrosities
So, 30-year-old Weight Watchers recipes are, it turns out, extremely bizarre and easy to mock. And also apparently (at least on the surface) unaffected by analysis of health or fat content or other things that might make sense on a Weight Watcher's recipe.
And did I mention that they're bizarre? Fish tacos? "All you need is toast and quotation marks!" Frankfurter spectacular? Damn. (I wonder if future generations will have this much fun at the expense of the Atkins diet. I'm thinking that they will).
As silly as these recipes are, I wonder if there's not a subversive kind of weight-loss scheme going on here. Make the food so repulsive that no one will want to eat it . . . and voila, you're losing weight!
On Abolishing the Bar Exam (Dubitante)
Daniel Solove has provided an interesting post, below, on the bar exam. Let me add my two cents on this issue, because I think it raises various complicated issues, and as regular readers now know, the overlong, equivocating post is my local specialty. (The "hat tip" -- and Lord, how I tire of blogologisms -- for the title goes to Mark Tushnet's article on the accommodation of religion.)
I readily grant that the bar exam is cumbersome and difficult. I also grant that, in practice, the bar exam serves as an entry barrier -- especially, because of differing state reciprocity rules, as a barrier on movement between states. I should note in fairness that it is only one of many barriers to membership in the bar, along with the (generally but not universally applicable) requirements of an LSAT, a four-year degree, and a degree from an ABA-accredited law school. Having correctly pointed out that the bar exam often serves guild-restrictive practices, I think Daniel is right to question it.
But I'm not convinced it should be abolished. Consider the relationship between the bar exam and legal education. The bar exam takes the heat off of law schools with respect to the expectation that they teach everything, and teach it with a practical orientation. (It does not completely remove the burden, because bar passage affects both ABA accreditation and US News rankings. But it ameliorates it.) And, Harry Edwards notwithstanding, that is not entirely a bad thing. Law schools have moved far more firmly into the broader academic environment of the university, although they still retain a substantial element of pure professional education, and I think removing the bar exam requirement would tend to push schools back into the practical education camp. That has its merits, but I think it would be a backwards move.
Daniel proposes a term of pro bono service as a substitute, and I suppose that's why I was moved to write, because I am a member of both a US bar and a Canadian bar (the Law Society of Upper Canada, to be snooty) and have some experience with versions of both approaches. Canadian provinces generally favor something like the approach Daniel mentions: a prerequisite for membership in the bar is a term of service, known as articles of clerkship, with a law firm or some other legal entity involving work under a supervising lawyer. It is (generally) paid work and it can involve private, public, or non-profit entities. Obviously, you can get much hands-on experience, and that's to the good.
But requiring an articling experience is itself an entry barrier. Not every student finds a position. As you might expect, the difficulty of finding a position is often greatest for minority students, older students, and otherwise disadvantaged students. If the proposal were limited to pro bono positions, the availability problem would be even more acute, and students without financial resources would find the entry barrier -- working for free prior to entry to the bar -- quite meaningful. (If, by "pro bono," Daniel means not only "free" but "public-service-oriented," I would also question that, for ideological reasons, but perhaps that issue can be set aside for now.) In addition, not every lawyer wants to accept the responsibility of an articling student; perhaps not every lawyer should, since a proper articling experience (and not all of them are) would involve a meaningful investment of time to design appropriate assignments and supervise. In short, although there are good and bad reasons to erect barriers to entry, some form of barrier cannot be avoided.
Moreover, unlike the bar exam, an articling experience may cover only some areas of practice. That, I suppose, is one reason that most Canadian bars require both articles and some form of examination. It is not clear from the post, but I take it Daniel isn't looking for anything like a year's pro bono work. If so, what a student learns in a more limited time may fall far short of the mark in giving them useful training and opportunity for monitoring -- unless the bar designs a rigorous set of requirements for the training period, in which case the availability of willing supervisors will drop considerably.
Don't get me wrong. I think Daniel's questions are good ones; and I also think I benefited a good deal from my articling year, although my first year of legal practice in the US, with a law license, served similar purposes. But I would not rush to replace one experience with the other. There are compelling reasons to think about requiring all law students to do some pro bono work, or an externship, etc. (Although this will require cutting back on coursework, and throw us back to the question of whether we should eliminate the 3L year.) But either way, even if for non-invidious reasons, entry barriers will -- and likely should, if they are aimed at quality control rather than maintenance of guild privileges -- remain. The bar exam does some things well, and can be a reasonable quality control.
What should we do, apart from contemplating some degree of practical experience before graduation? Well, we could rationalize this entry barrier better than we have. The bar is moving toward complete reciprocity, and with the possible exception of Louisiana it should move the rest of the way. To ensure ongoing monitoring, we could make CLE requirements more meaningful; after all, doctors often have to requalify in their specialties. The bar exam could ask more practical- and skill-oriented problems -- a trend that is, in fact, occurring. And to the extent some states set a fixed passage rate, it should be eliminated, since the question ought to be one of the threshold level of competence and not the number of entering professionals. I welcome other suggestions.
You May Have To Watch How You Drive After All
But here is even newer technology that is bound to catch on among rental companies and even insurers.
Look, I'm anonymous, so I can freely admit that I speed. But I also support the use of technology to improve the market. Insurers already use crude tools to figure out who is a bad risk: gender, age, driving history, car model, car color, etc. Why not let them use actual monitoring instead? Why should you subsidize people who drive dangerously?
The Gurus of Our Lives
Commencement events, the occasion of saying goodbye to my students at Yale and preparing for my courses next year, and a breakthrough during my daily yoga practice (unassisted handstand) have all inspired me to reflect upon and share some of the early meanings of the Guru, i.e., the teacher. In Sanskrit, Guru comes from the words Gu = darkness or heaviness (like gooey or deep hole) and Ru = lifting or removing. The word Guru thus means the remover of darkness or something that lifts away obstacles. Fortunately, we all have many Gurus is our lives, whether or not we know it. But it is better to know and to acknowledge their existence.
Who are our Gurus of our lives? The Guru Mantra goes something like this:
Guru Brahma Guru Vishnu Guru Devoh Maheshwara,
Guru Sachyat Para Brahma Tasmai Shri Guruve Namahe
A rough translation describes four types of Gurus. Brahma, meaning creation, is everything in our past that contributed to what we are today, our parents, our past relationships, our day care teachers, our ancestors, the city in which we grew up, the hospital where we were born. Vishnu is what sustains and grounds us. It represents our current attachments, our partners, children, professors, colleagues, assistants, bosses. Maheshwara means destruction and refers to negative experiences and interactions. It signifies that the irritating person at the checkout counter or the smelly snoring person sitting next to you during a 12-hour flight is also your teacher. In order for us to flourish, we must know the good and the bad; the Yin and the Yang. Finally, the mantra ends with the Guru that cannot be described. In a way it functions as a legal disclaimer: everyone and everything that we forgot to thank in the three prior categories is acknowledged in the fourth category. For those who believe in a higher being, it also refers to the divine that has no name and cannot be captured in words.
Why do we chant and thank our Gurus? In modern Western traditions, bowing to others has gone out of fashion. In the Jewish religion, bowing to any physicality is basically forbidden. But in many ways, we do have the concept of bowing embedded in our everyday life. The English word name, for example, comes from the same root as the Sanskrit “Nam,” meaning “to bow.”
To give up your name is to receive from others (and in Hebrew, the word name is also the word we use for the divine being, acknowledging that it rests within us). In order for us to grow and to flourish, to be able to learn and to develop our original thinking, and to build our own name, we need to open ourselves and acknowledge the power our teachers have over us. We develop our experience of gratitude and recognition (kinda like nodding to a reference, usuing footnotes, citations and quotes). The ultimate recognition is that, for each of us, our highest teacher is ourself.
Interesting Blog on Anonymity Issues in Cyberspace
Allow me to provide a link to and commendation of blog*on*nymity, a blog linked to a larger Web page run by On the Identity Trail, a multi-person, multidisciplinary project that aims to examine "the multiplicity of issues, concerns and innovations surrounding online anonymity, identification and authentication." This is a little outside my usual field, but its coordinator, Ian Kerr, is both a friend and (notwithstanding his friendship with me) a very sharp guy who's been toiling in these areas for a decade. Lots of interesting things, both on the blog and on the rest of the site. I note that project members will be taking prominent speaking roles at the 15th Annual Conference on Computers, Freedom & Privacy, at which my fellow guest-blogger Daniel Solove will be a keynote speaker.
anonymous Paul Horwitz
Abolish the Bar Exam
Despite my enjoyment of the Bar Exam as a work of jurisprudence, I believe that the Bar Exam should be abolished. It prevents mobility among lawyers, making it cumbersome and time consuming to move to different states. It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter. In short, the Bar Exam is an unproductive waste of time.
My guess is most all lawyers would agree. So why does the Bar Exam persist?
Perhaps as a way for states to restrain competition among lawyers . . . but this would be an impermissible purpose. Perhaps inertia. Perhaps because of the “we suffered, now you must suffer too” mentality. I can’t think of good reasons for retaining the Bar Exam. Yet this misery-creating, time-wasting ritual survives -- even thrives -- despite the fact that it has no valid justification and has achieved near universal enmity.
In lieu of the Bar, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain amount of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers. I think that this is much better than wasting most of a summer studying for a meaningless test.
Feminism, humanism, and powerlessness
Provocative piece in the NYT.
"Blog Post Solves Murder"
This fascinating story from Orin at VC:
Blog Post Solves Murder:
Go ahead and read those links. The first contains the full text of the victim's final post, which is quite chilling.
As to the question posed, my expectation would be that whatever rule governs the admissibility of personal journals would apply here as well.
Posner on Blogs and Journalism Ethics
The Pos has blogged interestingly on whether blogs ought to be governed by ethical standards. There are some interesting ideas in there, as usual, but I must register a partial dissent. I think the post muddies and conflates a number of ideas. I agree that there is "no pressing need for imposing ethical standards on bloggers." But I don't think that is the question, and I do think ethical standards and norms -- a multitude of them, in fact -- are emerging and will emerge in the blogosphere.
The first thing to note is that although there have been some questions concerning the status of blogs for shield law and tax purposes, no one I know of is credibly proposing "imposing ethical standards on bloggers." How could they? Ethical standards for blogs, as for the press, are necessarily self-imposed, given the First Amendment. (The way these norms interact with some definitional laws, like press access or shield laws, and with constitutional norms, is an interesting question but outside the scope of this post.) The real questions, then, are: how and why do ethical standards emerge for self-regulating professions? Are they emerging, or should they emerge, for blogs? And should blog ethics be the same as press ethics?
Posner has some interesting things to say about why the press developed ethical standards. But I think he is too instrumental in his thinking. Ethical standards are sometimes encouraged by advertisers, but in other cases ethical standards persist despite their interference with the profit motive (maintaining a wall of separation between editorial and business operations in a newspaper is one example, although in the broadcast media the separation may be becoming less firm for the national networks than it was in the last 30 years or so). More to the point is that newspapers and other news media are institutions, which over time develop a sense of sound practices that become a norm not just enforced by the bosses but internalized by individual actors. This is part of the phenomenon of professionalization.
Will some set of ethical norms develop among bloggers? For a variety of reasons, I think it will. Blogging is not just a discrete individual action but a participation in a culture, and cultures naturally develop ethical norms. ("Hat tip," "MSM," linking, and a variety of other practices and neologisms are all a part of this culture, and some of them are quasi-ethical in nature: linking to the piece you criticize, for instance, which gives the reader an opportunity to scrutinize the basis for your criticism.) Since I think ethical norms will develop, there's little point asking whether they should. But the should question is implicitly addressed in answering the next question: should ethical norms for bloggers be the same as those for the conventional press?
Posner raises a number of arguments against ethical "parity" between blogs and the press, and against suggesting any blog ethical norms generally. He says errors in a blog "are corrected almost instantaneously," either by other bloggers or by the bloggers' readers. This, though, depends in turn on other "ethical" norms, such as the idea that a blogger should allow comments. And why, even if true, would this assertion counsel against ethical norms? Newspapers correct errors quicker than pre-printing-press media such as handwritten manuscripts, but that didn't mean ethics were unnecessary for newspapers. Posner says the "self-correcting machinery of the blogosphere is more efficient than the internal fact-checking departments of conventional media enterprises." This is an inapt comparison, because conventional media, like blogs, not only correct themselves internally but are also subject to correction by their competitors. Moreover, the on-line "network" he discusses is vast; errors corrected in one sector may not propagate elsewhere on the network -- particularly if the people posting don't maintain the "ethical" norm of linking.
What I find most questionable is the move he makes of treating conventional media ethics as uniform, and then suggesting that there is no way a single set of ethics could apply to the blogosphere. But the conventional media don't observe one set of ethics; many common principles have emerged, but they differ in their details, often from newspaper to newspaper. And it should not be surprising that common ethical norms have developed; for many sectors of the conventional media are institutions which share broad institutional cultural norms and practices.
The point I want to make is that just as there are a variety of blogs -- some that simply link to other news, some that collect reports in a specific subject area, some that spread opinions or gossip -- so we can expect a variety of ethical norms to organically emerge for different types of blogging. The question is a functional one. Particular kinds of blogs establish and rely on particular kinds of trust. We may not expect much of pure opinion blogs, although even here I have suggested that some norms are emerging -- such as linking to the writing you're reacting against. For other blogs, stricter and more numerous ethical norms might emerge. If Howard Bashman linked to fictional appellate cases, readers would feel wronged and would reject him, or diminish his stature in the blogosphere. Knowing this, Bashman is unlikely to do so. And other bloggers engaged in similar endeavors, without having to ask or to count the costs, will soon have a sense of what is or isn't done, as a matter of course. By internalizing these norms, both writer and reader establish a level of trust that is more efficient for not having to expend the time to worry unduly about reliability on each and every occasion.
The function will determine the scope of the ethical norm, but ultimately we can expect that certain kinds of online activity will breed certain kinds of ethical expectations, which will be internalized by the participants. The novelty or immediacy of the medium isn't the relevant factor here; the New York Times meets the same ethical standards on-line or in print because its reporters and editors have internalized the same sense of how one properly fulfills the function of reporting, editing, and publishing.
So I am with Posner in saying that conventional media ethics should not be "imposed" on the blogosphere -- if there were a monolithic set of conventional media ethics, if anyone was suggesting imposing them, and if it could even be accomplished. And because many blogs perform different functions from many conventional media outlets, we can expect that the governing ethical norms will and should be different. But I think we can expect a variety of ethical norms to emerge in the blogosphere, differentiated according to the familial resemblances of different kinds of blogs, as the phenomenon of blogging becomes more established and routinized. And that, I think, is not only inevitable, but reasonable.
Why same-sex marriage (or equivalent civil unions) are necessary
The California Supreme Court is currently considering whether to extend parental rights and responsibilities to same-sex former partners who raised children together prior to separating. Two adults of the same gender raise children together, and then they separate. In one case (also described in this NYT Magazine article from last year), the custodial adult refuses to allow the other adult to see the child. In another case, the non-custodial adult refuses to pay child support. These cases present both sides of the parenting coin: rights and responsibilities.
A number of thoughts:
1. This would be much less of an issue if states recognized same-sex marriage or civil unions (as California now does). If the couples had married or unioned, their rights and responsibilities would have been clear. And if they had chosen not to marry or union, their rights and responsibilities would have been clear as well: the very same rights and responsibilities as heterosexual couples in similar situations.
2. These cases demonstrate precisely why heterosexist marriage laws are not simply discriminatory on the basis of sexuality, but also on the basis of gender. The rights and responsibilities of one adult depend on nothing other than the gender of the other.
3. My concern is less for the adults here than it is for the children. Adults make difficult (and sometimes poor) decisions all the time. If they alone had to suffer the consequences of their decisions, then so be it. But the primary people suffering here are the children. For those who believe that marriage is primarily for the welfare of children, what would you say to the children of these relationships? These are children who are lacking financial support, and children who are no longer permitted to see a parent who has raised them. I understand that many conservatives believe that children do better when raised by two heterosexual parents. (I won't take the time now to attack that claim; for the purposes of this discussion, I will accept it.) But wouldn't the children in these cases be better off with two homosexual parents who are responsible for them than they would be with just one parent? The reality is that there are thousands upon thousands of same-sex couples who choose to raise families together; and there is nothing that can stop them. By denying them the opportunity to marry or union, their children lose.
Marriage is a conservative institution. Society has an interest in encouraging people to become legally and socially responsible for one another, and especially for children whom they choose to bring into this world together. That is the role that marriage plays, and that is why it should be provided to same-sex couples. And yet, for social conservatives, virtually the only thing that matters in determining whether a couple may marry is the relative contours of each partner's genitals.
Tuesday, May 24, 2005
Airport screeners will soon be able to see your nipples and genitals.
I think that headline says it all. Read this NYT aricle for more info.
Hat tip: Saletan.
Airport screeners will soon be able to see nipples and genitals through your clothing.
British Boycott of Israeli Univerisities
As many of you know, on April 22, 2005 the Association of University Teachers in Britain (a trade union and professional association for over 48,700 UK higher education professionals) voted to boycott 2 Israeli Universities, Haifa and Bar-Ilan, and to blacklist their faculty (further inquiry was made to boycott the Hebrew University). The two Israeli Universities were not represented and were not requested to provide their reaction. The resolutions call on all members of AUT to "refrain from participation in any form of academic and cultural cooperation, collaboration, or joint projects" with the two universities. It excludes from the ban only "conscientious Israeli academics and intellectuals opposed to their state's colonial and racist policies."
On May 3, 2005 the American Association of University Professors (AAUP) issued a statement against the boycott. In Israel, Palestinian intellectuals joined Jewish Israelis to condemn the boycott. The boycott comes at a moment when Israel is preparing for a summer of retreat. As an academic boycott it is particularly problematic and a dangerous precedent, which threatens intellectual freedom and the free exchange of scholarship, scholars and ideas. AUT is supposed to vote on various dissent motions on May 26.
Monday, May 23, 2005
It appears the Senate, driven by a passel of moderates, has reached a compromise that will obviate, at least for now, any rule change on the filibuster. The details are here.
Those of us who believe the rule change was bad for the Senate, at least under the procedure contemplated by the leadership, and that the constitutional arguments raised by the leadership and its proxies were flawed, should be very glad indeed. I won't indulge in partisan analysis, both because I am simply glad for the result and because I think it is too early to figure out how it will be viewed. The Democrats can depict this as the leadership blinking, but the leadership is equally able to say that it won immediate votes for three nominees only by applying this kind of pressure. (In reality, as I suggested in my last post, it is not clear how much pressure either side ever really applied. At little cost, both parties can now send out more annoying fund-raising letters.) Really, this is not a victory for either the Republican or the Democratic leadership: it is a fragile victory for Senate moderates and/or "institutionalists." May there be more of them from both parties in years to come.
For those who genuinely thought the judicial filibuster unconstitutional, this compromise ought not resolve anything. I have made clear I think they are wrong. But regardless, I think they and I ought to be able to agree that, merely because the Senate has agreed on a practice, that does not make it constitutional. If the judicial filibuster was unconstitutional yesterday, it will still be unconstitutional tomorrow. So they should reject this compromise. If they do not, it will certainly call into question the sincerity of their constitutional arguments. As I have said, I think the filibuster, whether or not it is wise, was constitutional yesterday and will be tomorrow. I will celebrate tonight by reading galleys of an article and grading exams.
Son-in-Law of Filibuster
A few more separate observations on the filibuster debate. One issue that occurs to me, and that again is particularly salient given Ethan's area of expertise, is what the current Senate debate says about the importance of deliberation. There are two perspectives on this point: internal and external. Externally, although the Senate debate has focused attention on the issues swirling around this debate, it is obviously impossible to convey the volume of discussion in the Senate -- even if the discussion were all of equally high quality, which it is not -- to the public. I have said I favor requiring that filibusters be "real" -- that is, that they actually require both sides to expend the political energy involved in mounting indefinite debate -- rather than nominal. But why? If the discussion ultimately is less important than the employment of raw power or the deployment of procedural tactics, why should it matter? I think it should, partly because "real" filibusters involve the expenditure of more energy and political capital and partly because there is some deliberative wheat amidst all the chaff. But it is worth questioning myself on this point. The other perspective is internal: it is possible that the focused debate in the Senate has permitted a genuine exchange of views among the members themselves. I can't say for sure. It seems possible to me. And even if neither side is listening to the other, at least each side is forced to marshal its own arguments. But it also seems to me that the real deliberation here is going on in the compromise discussions among the moderates. Although I think Senator Frist was right to reject his request, because the issue is important to the public, there is actually something to be said for Senator Reid's earlier suggestion that the body move into closed conference to discuss the filibuster issue; it likely would have led to more sincere and productive deliberation.
A separate issue is one the newspapers have written about some: the changing character of the Senate, which in some ways has come to resemble more closely the House of Representatives. (See here, for instance, and here.) I think this is both true and cause for regret, although I think the extent to which it is true can easily be overstated: remember that just about all of the Senate's business continues to proceed apace on the basis of unanimous consent, so the character of the Senate has not changed completely. But it has changed at the margins, I think. Part of this is due, I think, to the hardening of ideological positions on both sides. Part of it is due to the influx of former House members (Senator Santorum is a prime example, but so arguably is Senator Schumer) who bring the spirit of the House with them and, perhaps, take a more short-term than long-term view of particular debates.
A third aspect of this change, and I don't know why it is so, is that the senators are simply less knowledgeable about, and less interested in, the Senate as an institution. They are less protective of Senate prerogatives -- a tendency that cannot simply be blamed on single-party government, because even in a politically unified institution there are still reasons for one institution to be jealous of another. Part of this, I think, can be attributed to the changing mechanics of politics, in which Senate seats are less safe, particularly against primary challenges, and Senators operate in the national as well as the local media. The role of the national media is, I think, one reason (though not the only reason -- let me not discount simple agreement) why GOP Senators tend to be less defensive of their turf against the Executive Branch. Perhaps part of it has to do with the presidential ambitions of some sitting Senators, or with the sense that presidential politics are too close right now to privilege the institution ahead of the issues, or with the sense that potential donors and interest groups are more likely today to punish members who compromise for institutional reasons. I truly don't know the answer. But I do think the phenomenon is real, unfortunate, and starkly captured in Senator George Allen's comment, in the NYT piece linked to above, distancing himself dismissively from those who "worship process." Count me as one who unrepentantly worships process.
A third note, related to my first one: Senator Frist has apparently scheduled an all-night debate on the issue tonight, prior to tomorrow's development -- rules change, compromise, chaos, or all of the above. To the extent this tracks my interest in reviving "real" filibusters, I approve. But don't take it at face value quite so easily. The story I've linked to describes tonight's session as having been called to "dramatize" the debate, and indeed tonight's events may be no more than a dumb show, willingly participated in by both sides. Will the majority require the minority to hold the floor all night to forestall an immediate vote? If not -- if they cannot resist the urge to take the floor and speak themselves -- it will be hard to call it a real filibuster. Similarly, if the minority is willing to yield the floor, their complicity in a sham filibuster may be equally apparent. We'll see; it's possible that tonight will represent a real filibuster, but I wouldn't bet the ranch on it.
This raises an interesting point about last week's debate: it was not itself a filibuster. Normally, if debate on a pending issue ends, the immediate next step is supposed to be a vote. In fact, if you look at last week's record of proceedings, there were a number of occasions on which debate did end. Rather than call the vote, a number of quorum calls were held -- a traditional means by which the chamber postpones a vote. This means both that the Republicans were not prevented from calling a vote last week, and that the Democracts were not intent on forestalling a vote last week. In other words, both parties have engaged by mutual consensus in a dumb-show of virtual filibustering so far. Is a rule change necessary right now? We don't know, because neither side has really forced the issue in the five years, at least, in which this debate over judicial nominations has taken place. I think this is further evidence that both sides have screamed at each other over the filibuster issue without actually being willing to expend the political capital involved in actually holding filibusters.
That does not, as I have argued, alter the underlying constitutional and procedural questions. But it does cast the proceedings of the last several years in a more cynical but perhaps accurate light: as a sound-and-light show, tied closely to fund-raising and the courtship of interest groups, rather than a meaningful commitment by senators of either side to the substantive issues involved.
Jury Nullification News
I am currently working on a paper relating to (though not exactly focusing on) the question of jury nullification. And so I was interested to see this en banc opinion from the Ninth Circuit. The divided court ruled that model grand jury instructions that preclude grand jury nullification of criminal laws are constitutional.
[Thanks for the pointer, Howard.]
There is a recurring debate as to why juries are valuable. Those who favor the "task-oriented" view of the jury basically believe that juries are valuable because 12 heads (or six, or whatever) are better than one. That is, they believe that juries tend to get the answer right. Whether proponents of this view will demand juries that are representative of the larger community's race, gender, politics, and education will depend on the kind of case. This group opposes nullification as beyond the jury's purview and violative of rule of law concepts. Most importantly, this group believes that in cases in which juries are unlikely to do "better" than judges, we shouldn't have juries--and that these cases are becoming more and more common. This is the impetus behind proposals to do away with juries in complex cases; and it is the dominant theory today.
On the other hand, there are those who believe that juries are desirable not simply because they are technically proficient, but because they have democratic and deliberative legitimacy. I call this the populist view. Populists may support jury nullification and generally demand representation of the community in all cases, including those in which non-representative juries may actually be more technically proficient.
Both views go back to the very earliest incarnations of the jury. At that time, they were not really at odds with each other. Over time, however, as the nature of trials, juries, and society in general has changed, these two views are increasingly at odds. Most interestingly, it is, in part, the success very of the populists in advocating for representative, non-elitist juries (think Batson and the 1968 Jury Selection and Service Act) that precipitated the rise and dominance of the task-oriented critique.
The story, of course, is more complex than I have made it out to be here; which is why I am writing a paper on it. The paper is at its earliest stages, and any thoughts, comments, references, and citations are welcome and appreciated.