Thursday, June 30, 2005
A Korean woman is now infamous after refusing to clean up her dog's mess on the train. (Via Boing Boing). A quote from the Docuverse story about her:
It began in a subway train with a girl whose dog made a mess on the train floor. When nearby elders told her to clean up the mess, she basically told them to fuck off. A nearby enraged netizen then took pictures of her and posted it, without any masking, on a popular website which started a nationwide witchhunt. Within hours, she was labeled gae-ttong-nyue (dog-shit-girl) and her pictures and parodies were everywhere. Within days, her identity and her past were revealed.
This is disturbing. I'm as in favor of clean subway cars as the next guy. But internet vigilantism raises a host of serious ethical questions. This woman has, at worst, violated a minor municipal ordinance. The resulting huge publicity is probably far in excess of her offense.
However, internet vigilantism is on the rise. Some of it is probably relatively harmless, such as 419-baiting. Other instances, such as the public exposure of "Laura K. Krishna" (later changed to a pseudonym) as a plagiarism-seeking student, are more troubling. Internet vigilantism may seem cute, and it certainly satisfies the tastes of web surfers who are always eager to watch a villian get his comeuppance. But it manifests all of the problems of the classic lynch mob, including lack of appeal, lack of impartial hearing, and a definite possibility of excessive punishment. (Plus, in a world of photoshopped pictures, the possibility of an unjust conviction seems intolerably high).
I suspect that there are a lot more issues relating to the question of internet vigilantism. If only I knew of any experts in, say, privacy, or shaming punishments, who could comment further about this topic . . .
UPDATE: I need to do better pre-emption checks. Dan Solove already posted some great comments on this topic, over at Balkinazation. Dan's comments on the topic are spot-on, as expected. And Marcy Peek, here at Prawfsblawg, has a nice follow-up as well.
Gun control, genocide, Darfur . . . and the Mormon experience
Dave Kopel writes today at Volokh, suggesting that government controls on gun ownership are contributing to human rights abuses in Zimbabwe. He has similarly argued, along with others, that the genocide in places like Darfur is a result of gun control.
Proponents of this sort of argument suggest that if Darfur (Zimbabwe, Rwanda, etc) residents were armed, they would be able to fight back and prevent genocide. Dave Kopel writes in the National Review that "the Darfur genocide — like the genocides in Rwanda, Srebrenica, Cambodia, and so many other nations in the last century — was made possible only by the prior destruction of [the right to bear arms]."
My own cultural history makes me doubtful of Kopel's argument. As I've stated earlier, I'm a Mormon, and my views on modern instances of genocide, like Darfur, are colored by the Mormon experience with armed persecution.
Mormons were heavily persecuted during the 1830s and 1840s. A very condensed history of the persecution (thanks to Nate Oman for helping me get the details right; all errors are mine, not his) goes along these lines:
The church was founded in 1830 in New York state, and quickly came under intense persecution. Mormons were killed and driven out by armed mobs, first from New York and then from Ohio. They fled Ohio for cities in Missouri and Illinois.
The roots of Mormon persecution are complex. The church was growing rapidly due to missionary work, and tended to enter new communities with a large influx of newcomers. Mormons were perceived to pose political and economic threats to other residents because they often voted together.
Mormon beliefs were also controversial -- starting with a belief in a living prophet and new scriptures, and eventually expanding to include beliefs in polygamy and in communal ownership of property. Mormon millenialism was also a factor: Mormons tended to believe that Christ's return was imminent and that He would vent His wrath on the "Gentiles" (as non-Mormons were called) -- a belief that didn't much endear them to the locals. In addition, some of the persecution in some states, such as Missouri, arose from racial strife -- Mormons were abolitionists, and Missourians saw them as a threat to the "peculiar institution." Finally, a good deal of persecution everywhere no doubt stemmed from old-fashioned avarice. Successful persecution meant freedom to seize Mormon land, loot Mormon property, and rape Mormon women, and that goal motivated greedy mobs to attack Mormon settlements.
In any case, the Mormons did not find a safe haven in either Missouri or Illinois. They were instead driven out of both states, within a few years, suffering massive losses of life along the way. Church founder Joseph Smith was imprisoned by complicit government officials and then assassinated by a mob, and other church leaders were imprisoned, attacked, or killed. Across both states, Mormon homes were burned, families killed, women raped, property seized.
And this expulsion took place despite the right to bear arms, which the Mormons used in vain.
The failure of the right to bear arms to protect the Mormons is instructive. The Mormon settlers armed themselves, formed protective militias, and planned defenses. They organized the Nauvoo Legion, which was a powerful local army. At many points in time, the Mormon militias including the Nauvoo Legion outnumbered the anti-Mormon militias in size and armament.
However, the powerful Mormon militias seldom engaged in pitched battle with their foes. This was due to a number of factors. First, church leaders were eager to defuse tensions and avoid a destructive all-out war with the anti-Mormons, so they held their own army in check much of the time. Second, the anti-Mormons were at times successful in allying themselves with state and federal military units, knowing that the Mormons could not attack government troops without suffering unbearable political consequences. (For example, Joseph Smith's assassination was made possible by the collaboration of local officials). In addition, the anti-Mormon raiders sought to avoid direct combat with the Mormon militias, opting instead to ransack unprotected outlying settlements. It was not until 1846, after the Mormon city of Nauvoo was being evacuated, that the militias actually met in battle. (At that time, due to the ongoing Mormon evacuation, the Mormons were badly outnumbered).
And so the Mormons were driven out of their cities in Missouri and Illinois, as thousands perished. The right to bear arms did not enable them to protect their property, their families, or their lives.
Of course, there were instances in which Mormon guns helped some Mormon settlers survive. The threat of the Nauvoo Legion's power helped keep many of the raiders at bay for portions of the evacuation of the city of Nauvoo, for example, which no doubt prevented that retreat from causing an even greater loss of life.
Some settlers were aided by their guns in individual confrontations with anti-Mormons. Famous Mormon gunslinger Porter Rockwell made his name in part by killing anti-Mormon raiders and defending Mormon settlers. Rockwell even, if one rumor is to be believed, tried to assassinate the rabidly anti-Mormon governor of Missouri -- a governor who had issued an "extermination order" stating that "the Mormons are to be driven from the state, or killed" -- and nearly succeeded. (The governor's would-be assassin, who evaded pursuit and was never positively identified, succeeded only in injuring the governor. Rockwell denied being the gunman; his defense was "He's still alive, a'int he?").
Overall, however, the right to bear arms didn't much protect the Mormons. They were only eventually saved by the decisive actions of Brigham Young, who led the survivors out of the United States altogether, to live in unsettled territory in then-northern Mexico.
The Mormon experience makes me wonder about the confident assertions of Kopel and others that a right to bear arms could prevent genocide. Yes, it's possible that a right to bear arms would have saved oppressed groups in Rwanda or Cambodia or Darfur. But I'm doubtful. After all, that right couldn't even save an oppressed minority group right here in America.
What the heck do people really want?
I think we all agree that the Supreme Court should not be in the business of making law. We recognize, of course, that the line between interpreting and legislating is a fuzzy one; and we may disagree--vehemently--on when the Court is engaging in which. (See Bush v. Gore, Roe v. Wade, Miranda, Goodridge, Lemon, Brown. . . .) But as a general principle, we agree that the Court should not be in the business of substituting its own policy and philosophical preferences for the legislature's.
I, of course, made this argument recently in defense of the Court's opinion in Kelo. Where the language and early history of a constitutional clause is subject to debate, the Supreme Court should defer to precedent/settled expectations, states, local governments, and the general democratic process--even if it results in horrible policy.
I'm also a little surprised at the reaction to the Court's decision to effectively uphold the principle that there is no "journalist-source privilege," at least not an unqualified one. Almost everything I have seen has been critical of courts' analysis of this issue.
I may well agree as a policy matter that a journalist-source privilege is a good idea, at least in some cases. But please show me where The People have passed a federal law on the issue. For the Court to recognize such a privilege would be for it to make law based on a mixture of its own preferences and hints found in precedent and common law. That's not a very good recipe for good or legitimate policy-making.
UPDATE: Ethan Leib raises an excellent point, even as he rhetorically attacks me unnecessarily. Sayeth Ethan:
I'm no evidence scholar, but I thought Fed R Evidence 501 specifically asked courts to fashion privileges. Now Federal Rules don't quite emerge from the Voice of the People. But then neither do most federal laws, whose democratic pedigree cannot be questioned from your worldview.
First, let me brush aside the attack. I've never claimed that the democratic pedigree of a law--federal or otherwise--cannot be questioned. Never. Not once. I am well aware of the major problems associated with lawmaking. And the courts are a valued and necessary check on the excesses and limitations of such lawmaking. But it does not follow that the courts should be in the business of lawmaking. I would expect that a proponent of popular/populist lawmaking such as Ethan would embrace that view.
But Ethan's substantive point is very well taken and deserves discussion. Discussion after the jump. . . .
Rule 501 states, in pertinent part:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
Undoubtedly, this rule grants the courts well more latitude to fashion policy in the sentencing context than in most other areas of the law. Ethan's case is even stronger than he realizes. The history of Rule 501 shows that Congress considered delineating specific privileges, thereby limiting courts' ability to expand or contract those privileges--but ultimately rejected such an approach in favor of the ultimate text of Rule 501. This again suggests that judges have a great deal of latitude.
However, I don't think this grants courts the authority to create a new privilege--one apparently not found in the common law. Courts are directed to adopt the privileges contained in the common law at the time of enactment and interpret those privileges in light of reason and experience. As I read it, this means that courts have the authority to expand and contract established privileges according to reason and experience. For instance, if courts recognize the need for additional limitations or expansions of the spousal privilege, they are empowered to modify the common law privilege accordingly.
But I do not read this to mean that courts may create what amount to entirely new privileges.
Nevertheless, Ethan's point is well taken, and this is not quite so clear-cut as I originally considered it.
National Forgiveness and Moral Takings
While I've written in the past to explain why I am "Against Mercy," I have also spent a good amount of time thinking about and trying to explain why particularized amnesty regimes in states recovering from mass atrocities are defensible from a retributivist perspective.
Thanks to Rick Garnett over at Mirror of Justice, I have just came across an interesting op-ed by my friend and former teacher Dan Philpott in the South Bend Tribune entitled "Pope's greatest legacy could be forgiveness."
In the piece, Dan argues that Benedict XVI should undertake the mission of conceptualizing and implementing an ethos of national forgiveness as part of his mission as Pope. Specifically, Dan P. argues that Benedict 16 should expand upon the initial efforts by JPII on the forgiveness front.
[JPII] became globally famous for mercy and forgiveness when he pardoned his would-be assassin, Mehmet Ali Agca, in a personal meeting in 1983. His strongest teaching of forgiveness as a political ethic, though, came in the wake of the terrorist attacks of Sept. 11, 2001. In his subsequent "Message for the World Day of Peace," he appended to Paul VI's famous aphorism, "no peace without justice" the phrase "no justice without forgiveness."
He astutely points out the potential ambiguities associated with the ethical sloganeering from the Vatican.
In the din of commentary following Sept.11, John Paul II's call for forgiveness arrived like a Renaissance holy fool -- cheekily provocative, but also enigmatic: Who exactly was to forgive? President Bush? The American people? And who were they to forgive? Osama bin Laden? Islam? Is it possible to forgive while also warring against one's attackers, which John Paul II, after all, affirmed was just?
Philpott then issues the precatory statement Benedict is the type of smart and moral figure who can furnish a "social ethic of forgiveness, one that explains when, how and under what circumstances nations ought to practice the principle." He observes that
Forgiveness in politics is rare, critics will point out, and for good reason: It is utopian. But one day before Benedict XVI was elected, The New York Times carried the following headline: "Atrocity victims in Uganda choose to forgive." In the mid-1990s, South African Archbishop Desmond Tutu proposed that wounded countries have "no future without forgiveness" and encouraged it through his country's Truth and Reconciliation Commission. Half a decade earlier in Chile, President Patricio Aylwin called for national repentance for the torture and killing of thousands during the dictatorship of Augusto Pinochet. Militants and civilians, politicians and prelates have also granted and received forgiveness in El Salvador, East Germany, Northern Ireland, Guatemala and elsewhere.
Most of these voices advocate forgiveness as one of several practices in a larger process of reconciliation, complementary to the public telling of the truth about past injustices, reparations, apologies and, most of all, accountability for offenders. These are the ingredients of an ethic of forgiveness. Weaving them together and passing the product along to the world is a job for which a global moral leader with an impressive intellect -- like the new pope -- is uniquely suited. In an era when war is fueled anew by the deepest sorts of identities -- religious, ethnic, national, and civilizational -- forgiveness may well prove Benedict's greatest legacy.
My sense here is that recovering nations may have duties of reconcilation (in ensuring domestic peace and stability) and of repentance for past wrongs they have caused, but it is not likely to be the case that nations themselves should be in the business of forgiveness. If the State of Ames wrongs specific persons in Freedonia, it is not the government that was wronged, but the persons, and therefore Freedonia lacks standing to forgive on behalf of its citizens--for there are (and ought to be) limits to what Freedonia can stand for and forgive, even in democratic societies. On the other hand, if Ames wrongs Freedonia as a state in 1944 (say by violating their political airspace or by sending spies to engage in espionage against Freedonia), and Freedonia decides to forgive Ames through an official letter in 2005, there's some form of historical discontinuity because the people of 2005 don't occupy the same moral space that Freedonians of 1944 do.
For Freedonia to forgive here might work a "moral takings" violation. (I suspect these initial thoughts are inadequate and I'll want to develop and/or revise them a bit more, but thought I'd get the ball rolling here at least.)
The upside of anger
Others will have more to say about this, and my breezy approach to guest-blogging hardly makes me an expert on orneriness, but I think he's on to something. The blogosphere is full of yelling, sure, but the acadosphere is full of caution - even when there are plenty of examples of successful academics who threw caution to the wind.
What's so great about being nice? If you do the reading - a big if - I equate a stinging critique with an engagement with the ideas. We all have the ability to distinguish between unsupported ad hominem attack and insightful criticism. So why censure the former for abstaining from the bow and scrape?
Next week: I assault the Wiggles.
Brian Leiter has posted an apologia for his blog here, which really is a fascinating read. He makes a distinction between easy and hard questions and acknowledges that he likes blogging about the easy questions: these are the questions about which no "honest," "reasonable," or "intelligent" person could disagree with him. In this category are such no-brainers as:
Was the U.S. justified in invading Iraq?
Are Bush's economic policies in the interests of most people?
Is Darwin's theory of evolution by natural selection a well-confirmed scientific theory?
In short, Leiter says quite clearly--consistent with the standard critique of cyber-deliberation--that he aims to be a balkanized echo chamber and he doesn't really believe he can persuade anyone who does not already agree with him.
I happen to be someone who tends to agree with him substantively on many political matters--but I confess to be disappointed by his complacency. I may be as intemperate as he is from time to time--but I'm embarking on this project at least partially because I hope to change some people's minds and engage them in a conversation where my mind may even be changed in the process. I am confident that there are ears out there that have an open mind between them. Leiter should have more faith in the readers that spend their time linking from blog to blog to get engaged in ideas.
Wednesday, June 29, 2005
Would Madison have hated Kelo?
I'm seeing lots of statements online to the effect of "the Founders would have hated the result in Kelo." (See here for one example). I disagree --given the facts of the case, I doubt that James Madison would have batted an eyelash over the result.
James Madison, after all, didn't design a takings clause that protected against state or local action at all. He designed a takings clause that protected against federal action. If the City of New London had passed an ordinance in 1792, taking exactly the same property for exactly the same reasons, it is all but certain that Madison wouldn't have felt that the federal takings clause had any application at all to the case.
Now Madison might not have agreed with the Kelo opinion as applied to federal takings. But then, he might have agreed with that as well. Recall that not even Justice Thomas could find much evidence that Madison felt that "public use" should be construed narrowly.
If anything, Madison would probably wonder why courts today give the clause as much bite as they do. Madison's clause didn't protect against government regulations (that didn't come along until Mahon). And, as noted above, it didn't protect against state actions. Today, courts enforce the clause against both state actions and regulatory takings, giving property vastly greater protection than it enjoyed in 1792.
The takings clause as interpreted today -- including Kelo -- protects property quite a bit more than the takings clause did as interpreted in 1792. If Madison were shocked about takings jurisprudence, post-Kelo, his shock would probably stem from the vastly expanded property protection that the takings clause -- yes, post-Kelo -- gives property owners.
Becoming Justice Blackmun
It turns out that starting a law professor job in a new city does not actually leave one with tons of time to write or blog. I had planned on doing a short review of Linda Greenhouse's book on Justice Blackmun but just could not find the time. I did find the time to read it, however, and think it makes for very useful reading as we contemplate what a retirement might mean (as Blackmun was the last Justice to retire).
The book has some fun facts that the average Con Law person may not know (in no particular order):
1. Rehnquist's middle name used to be Donald until he changed it to his grandmother's maiden name (Hubbs). And you thought he was no feminist!
2. Blackmun's ashes were spread all over the place, upon his request.
3. Blackmun played Justice Story in Spielberg's Amistad.
4. Kennedy asked Blackmun not to step down.
5. Blackmun gave Ginsburg grades (and none too favorable ones) when she appeared before the Court to argue.
Aside from the trivia, though, more can be said for why the book is important to read now, before we embark on a big fight over a vacancy. Nixon appointed Blackmun--and Blackmun turned out to be no Nixonian (much like Bush I appointed Souter--and Souter turned out to be no Bushie). In short, Justices aren't quite as predictable as we assume. And each grows to deal with his or her own personal demons: in Blackmun's case, Roe clearly became a preoccupation. He wanted to save it; he wanted to justify it; he wanted to refine it. There were times he seemed to be holding onto Roe for the wrong reasons. It was an accidental legacy in many ways but grew to become a central part of his identity. We just can't predict very well what sorts of assignments have the capacity to change a Justice's trajectory.
This is, of course, not to say that each side in the battle (that may or may not happen this summer) shouldn't advocate vigorously for whomever it thinks is the most qualified and the most desirable to seat on the Court. It is only to say that psychological profiling may be as useful as investigating a nominee's paper trail--and that chance will play a role in any Justice's development.
PS: As I read Greenhouse's book, I tried to see if David Garrow's thesis (that Blackmun gave his clerks too much freedom and power) seemed confirmed at all by what she was reporting. I have to say that I was unpersuaded.
The Heir of King George
I suppose that what disgusts me most about the ludicrous Logan Clements proposal (and its equally ludicrous warm welcome in the legal blogosphere) is that the Founders of this country were appalled by the abuses of the crown in retaliating against jurors and judges who gave unpopular decisions. One of the crimes of King George, as laid out in the Declaration of Independence, was his trampling of the judiciary. "He has made Judges dependent on his Will alone, for the tenure of their Offices, and the amount and payment of their salaries."
And so, to prevent such abuses in the nascent nation, the Framers of the Constitution set out to create a political structure where judges would not be subject to retaliation. They went to great lengths to establish an independent judiciary that could rule on cases in accordance with the law and without fear of retaliation. And they succeeded.
And now some yahoo in California thinks it would be a good idea to scrap that system and return to the era in which judges live in fear of retaliation for their rulings. Logan Clements might as well be spitting on the Framers' graves. He is the moral and intellectual heir of King George.
(Equally disturbing, the legal blogosphere seems completely unfazed -- even eager -- at the prospect of trading in judicial independence for a mess of pottage.)
Update on Choicepoint's IRS contract
Forbes.com reported today that after Sen. Leahy's critical comments on the IRS/Choicepoint $20M contract, the IRS has swiftly "ordered a full security review of . . . the five-year contract to make sure it will not endanger taxpayer confidentiality."
Why is the IRS entering into a $20M contract with Choicepoint in the first place? According to Forbes.com, "[t]he arrangement allows IRS auditors and criminal investigators to use ChoicePoint's databases to locate assets owned by delinquent taxpayers."
My heart skipped a beat when I saw this headline posted by Bashman:
"Sandra O'Connor * * * has said she will retire, her office said Wednesday."
Bashman cites to this article.
Howard, you are
a sneaky devil!
The Lovefest between Data Brokers and Government
Despite Choicepoint’s highly publicized recent security breaches, the handshake between governmental entities and commercial data brokers – such as Choicepoint and Acxiom -- appears to continue unabated. Incredibly, after this year’s debacle in which Choicepoint exposed almost 145,000 citizens’ information to criminals posing as legitimate customers, the United States government continues its relationship with Choicepoint as though nothing has happened.
The Internal Revenue Service just signed a $20M deal with Choicepoint, under which “ChoicePoint will provide information on the general public for the IRS' batch processing projects, which involve generating information on specific segments of the population.”
Huh? Whatever this means, it sounds like business as usual between the data brokers (companies that I have termed shadow offenders in a forthcoming piece) and our government. Choicepoint continues to hand over sophisticated profiles of individual citizens to governmental entities, information that the federal government is generally restricted from compiling on its own under the Privacy Act of 1974. The government keeps the Choicepoint’s and Acxiom’s of the world up and running, fueling them with multi-million dollar contracts despite continued security breaches. Sen. Patrick Leahy has expressed dismay at the status quo and has drafted legislation that would “protect Americans from identity theft through leaked or lost personal data.” That’s a start, but we ought to start questioning the very existence of data brokers such as Choicepoint, rather than merely attempting to minimize identity theft and security breaches.
Dan Solove has our blessing as he blawgs in the big leagues at Balkinization. Don't worry, though: we'll get him back here at PrawfsBlawg soon enough. In the meantime, do watch him there.
It is gratifying to know that we helped created a fabulous blogging machine .
Goodbye for Now
Like other guest bloggers before me, I've come to the end of my ride here. I really appreciate Dan and Ethan's generous sharing of this soapbox, and their invitation to return in the future for a somewhat longer run. It has been a real pleasure to participate in this blog, and, in particular, to get feedback in the form of comments from our readers. (So much so that even though I'm dedicating the rest of the summer to writing, I will likely be unable to help myself from posting comments here once in a while. Or daily.)
Whitman on Nussbaum, and me
Over at the Harvard Law Review, you can access the abstract to Jim Whitman's trenchant, albeit sympathetic, critique of Martha Nussbaum's last book, Hiding from Humanity: Disgust, Shame, and the Law. The full citation is 118 HARV. L. REV. 2698 (2005). Whitman's writing is, as always, erudite, elegant and a joy to read. Here's a sample from the abstract:
Maybe it takes a philosopher to remind us that human psychology presents tougher and more frightening problems than the ones we most enjoy discussing in the classroom. The human animal is capable of behaviors unimagined by our rational actor models, and even by our most resolutely “behavioral” brands of law and economics. Hiding from Humanity faces up squarely to that psychological truth. Al-though it has been marketed, to some extent, as a book about T-shirts and bumper stickers, Nussbaum’s book is more. It is an effort at frank reflection on the nastier human emotions, and an exploration of their place throughout the entire landscape of the law. If the book achieves nothing else, it will deserve praise for that.
This is a book that rubs legal scholars’ noses in the problems represented by Abu Ghraib, and it arrives at a moment in our history when that is exactly what we need. The ultimate success of a book depends, though, on the power of its particular arguments, and by the end of this Review I will have to report that I find Nussbaum’s arguments disappointing. This is a book by an author with an admirably humane sensibility, and a much richer grasp of the human predicament than most of our legal academ-ics display. It is also a book that could hardly be more timely. In the end, however, it is a book by an author who has not, to my mind, fully reckoned with the problems presented by the law.
In the body of his review, Whitman also kindly calls attention to my "acute writings," which Nussbaum relied upon in fashioning her anti-shaming punishment position. (Disclosure: I gave Martha extensive comments on the manuscript in the summer of 2001, a few years before it was published.)
At that moment in the review, Jim, who I've known as a good mentor and wise reader of drafts for a while, drops a footnote to "protest" a misuse of his work by me, and by extension, Nussbaum, who repeated my "mistake." In my 2001 Vanderbilt piece, I had ascribed to Whitman the sense that he thought shaming punishments were "beautifully retributive." Here's what Jim had written in his 1998 Yale piece, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055, 1062 (1998)
Here Kahan is joined by Toni Massaro, who, though a critic of shaming, concedes that shame sanctions are fully compatible with standard punishment theory. There is, these scholars observe, no empirical reason to suppose that shame sanctions cannot deter; they seem beautifully retributive; they may well rehabilitate better than prison does; and they might even serve to incapacitate. (footnotes omitted)
Jim's footnote 71 in HLR states that his use of the phrase "beautifully retributive" was merely describing
the attitudes of others toward these punishments, without offering my own account of retributivism. But Markel, see Markel, supra note 1, at 2182, and Nussbaum (p. 239) cite this passage as though I had offered such an account. What I do believe is stated in the text of this Review: "retribution" is a slogan that encourages punitiveness, and Markel and Nussbaum have not offered any reason to suppose that careful philosophizing about the distinction between retribution and vengeance can do anything to ward off that danger.
Jim is right that he does not offer an account of retribution that would ipse dixit embrace shaming punishments in his 1998 piece. I think I was thrown off by the fact that he used semicolons, which separated, in my mind, his views from those other scholars who wrote concerning about deterrence. Moreover, I think Jim's point -- that retribution is a slogan that encourages punitiveness -- also indicates that retribution would therefore be indiscriminate about which kind of punitiveness is inflicted upon criminals, and thus that shaming punishments would be perfectly fine under the flag of retribution. So, it's true that it's not correct to assume that Jim thinks shaming is "beautifully retributive" based on a developed account he offers, but I do think that his stated argument fairly, if not ineluctably, leads us to that conclusion.
And in that respect, this is where I think he errs. For the point of my Vanderbilt piece was to explode the then-emergent consensus among scholars that shaming was compatible with retributive punishment. I argued that shaming is more in line with vengeance and not retribution properly understood. And that distinction, I believe, is what Martha picked up on by embracing (at least in part) the kind of retributive understanding of punishment that I've been advocating in my scholarship the last few years. Jim may not think that distinguishing between retribution and revenge will have much political traction; I disagree and my piece on the retributivist case against the death penalty (which is coming out any day now in Harv CRCL) tries to explain how to develop that traction. (You can find it on my ssrn page.)
All this is arguably small beer, at least in terms of policy. All three of us agree that punishment in America fails to conform in large measure with the requirements of respect for human dignity, and all three of us are against shaming punishments, which were recently upheld by the court in the Ninth Circuit in Gementera. (Sadly, a month or two ago, the Ninth did not agree to take the issue en banc despite some votes to do so.) So this is a lot of inside baseball, but I thought it might be of interest to at least a few readers.
More Than Legal Doctrine Alone
Why would you want to spend the forthcoming holiday weekend outside? It's hot. And buggy. And you could be hunched over your laptop, with the thermostat set on ultra-cool. You could take breaks from filling in footnotes any number of ways:
- you could contemplate the nuances of firm culture, from the perspective of a gimlet-eyed associate
- or from the perspective of so-young-but-yet-so-jaded law student
- or you can let the super-bitter wash over you with this quasi-anonymous, and possibly legally trained, internet-celeb.
Your guest blogger is trying to do a little of the cool-hunting for you! And now, said guest blogger has to turn his own not-so-trusty laptop over to the techs of NYU, making me an internet nomad for the next few days. Wish me - and my Dell - luck!
An unlikely dialogue
It's not every day that law students upstage law professors online. But a recent blog discussion is following exactly that pattern. In one corner of the ring is George
Washington Mason law professor Todd Zywicki. In the other corner is mild-mannered (?) Yale law student Will Baude. So far, the fight has been no contest, with every point going decisively in Will Baude's favor.
It helps that Zywicki probably picked the wrong fight. He criticized a New York Times editorial for the statement that "as with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right." Zywicki wrote "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"
Zywicki's major problem, however, is the factual record. As Baude and others rightly noted, the phrase "wall of separation between church and state" comes directly from the pen of Thomas Jefferson.
Confronted with that fact, Zywicki tried to beat a hasty retreat, suggesting that his real argument was that a wall of separation was not "what the founders in general understood the Establishment Clause to mean." And to Zywicki's credit, that point is almost certainly much more defensible. However, it's not Zywicki's original assertion. And Will Baude, like a shark after blood, pounced on the retreating Todd Zywicki, noting that -- whatever the merits of Zywicki's revised assertion --
That's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New York Times is right on the specific point.
Other commenters are intervening and suggesting alternate tacks, such as emphasis on the Times' questionable pluralization. Those may prove enough to salvage a bit of respect for Zywicki. But so far, he has been decisively outmatched in this argument by his law student foe. (And Dan, Hillel, Dave -- remind me not to pick a fight with Will Baude!)
An inconsistency that's not inconsistent
Over at Volokh, David Bernstein criticizes plaintiffs' attorney Barry Nace for a perceived inconsistency. Bernstein writes that Nace defended a malpractice lawsuit by arguing, inter alia, that he
wasn't liable to the client because 'courts soundly and uniformly reject the notion that Bendectin causes birth defects.' Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.
Bernstein suggests that Nace's two statements -- that courts reject Benedictin cases, and that Nace believes that Benedictin causes birth defects -- are inconsistent. (Hence the snarky "I guess he forgot to tell his lawyer"). But Bernstein is missing the obvious. The two statements "courts think X" and "I personally believe not-X" are in no way inconsistent. It's puzzling how Bernstein could even confuse these two arguments.
Indeed, the very New York Times article to which Bernstein links makes clear that Nace's personal views differ from his legal opinion on the legal merits of the cases. (For a malpractice suit, it's the legal merits that matter). The article quotes Nace as saying "this is the safest drug in terms of litigation" and that the Benedictin litigation is "hopeless." It later quotes Nace saying "In my mind, there is no question that Bendectin causes birth defects." (emphasis added). Sounds pretty consistent to me.
Of course, there will always be room for disagreement on the merits of the Benedictin cases. But Bernstein seems quite wrong to suggest that Nace's two statements are inconsistent, when they are in fact very easy to reconcile. And it seems unwarranted to suggest that Nace "forgot to tell his lawyer" about his personal views.
(Can you imagine that conversation? Nace: "By the way, I personally think that Benedictin causes birth defects. Does that change this summary judgment motion any?" Lawyer: "Nope." Nace: "Didn't think so. Just checking.")
Tuesday, June 28, 2005
Is it Unlawful To Threaten Justice Souter's Home (Suggested Answer: Yes)
Many bloggers (including Reynolds and Barnett) have today linked to a press release which announces a campaign to seize Justice Souter's home to build a "Lost Liberty Hotel." Barnett has now apologized for the link, claiming that he believed the idea was a joke, and that it violates Kelo itself to seize Justice Souter's land to punish him for his
authorship participation in the decision. Reynolds' latest post on this topic, on the other hand, states only:
"Did I say "heh?" I hope the project moves ahead."
The press release purports to provide Justice Souter's home address, and suggests that a "Logan Darrow Clements" has actually filed an application to take Justice Souter's land. Because the hotel will encourage economic development. See how clever Clements is?
There are three possibilities here. This may be a fake. If so, the huge circulation the "joke" has received today is likely to have made it real (go here, and read the comments here, and tell me that these folks are kidding). Or, it might be a media-event -- i.e., a real fax, a real claim, but not intended to be pursued. Or, it might be deadly earnest.
Frankly, I don't care what Clements' original intent was. I'm all for a joke. But this kind of retaliation against a Justice who merely
wrote voted for a
majority opinion (applying a century of solid precedent) through use
of a frivolous land claim strikes at the heart of our government of
ordered liberty. It is, I think, the same as if a mugger went to
Justice Scalia on the street and asked for his wallet, on the ground
that the Justice has, through his jurisprudence, eroded the protection
against seizure on the thoroughfare.
I (spurred by a co-bloggers here at Prawfsblawg) got to thinking: is this unlawful? Here are some preliminary thoughts, which I encourage others here to join into, via comments or additional posts. I divide the potentially unlawful actors into two groups.
- Logan Darrow Clements
- Obviously, the takings claim itself is frivolous, given Kelo's intent language.
- Given the purpose of the action is to retaliate against Justice Souter for acts in his official capacity, one would think that the federal obstruction of justice statute would be relevant. But it doesn't appear to be (no property harms against judges are actionable, at least on a quick read).
- 40 U.S.C. 13, which defines the mandate of the Supreme Court Police force, does give that force the power to arrest anyone who threatens a Justice (or the property around the Supreme Court). It would seem a stretch to turn that authority into carte blanche to arrest someone who is using the judicial process to seek to frivolously deprive Justice Souter of his property. (This is especially so given that Justice Souter ought to be able to get the USAO to pay his attorneys fees, if any, in the takings action given that the motivation is to punish him for official acts).
- How about a state law crime? In Pennsylvania, for example, retaliation by threatening the property of a judge is illegal. A quick web-search disclosed no New Hampshire equivalents. Presumably, since Clements is now soliciting funds for his scheme (presuming, again, that it isn't a joke) you could tie the underlying conduct into a RICO case.
- Other thoughts? (Putting aside civil remedies like malicious prosecution that Justice Souter is . . . unlikely . . . to take advantage of.
- Summary: even if there weren't a constitutional problem [in the comments, Paul Gowder suggests that the Noerr-Pennington doctrine might apply here] a criminal case is hard to make out here. There are civil remedies, but that is cold comfort for a sitting Justice.
- It surely can't be criminal to link to the Clements fax. Not even close.
- Nor, off the top of my head, can it possibly be actionable (the bloggers were amused, even if their commentators took the entire thing quite seriously). The linking jurisprudence that I've seen gives bloggers good protection against a facilitation charge.
- But, and now I am a bit more unsure, what about the professional codes? (I don't know enough about Prof. Responsibility to responsibly blog about it; however, it strikes me likely that lawyers who actively encourage frivolous litigation against judges may have a problem.)
Note: I am not claiming that anyone is guilty of anything. Indeed, this is just a tempest in a teapot in many ways. But it strikes me that there are some limits to how one should properly react to a Supreme Court decision. From my naive, probably too-earnest, still-new-prof position, even suggesting that folks should retaliate against the Justice's person or property is clearly over the line. As for the defense that "it was merely a joke" (even if taken seriously by most of its audience), in this limited arena I'd say that blawgs are somewhat like the security line at an airport.
[Update: Post corrected for typos and misc. errors]
[Update 2: Eric Muller had a somewhat similar reaction]
[Update 3: But Eric Rasmusen thinks that Barnett shouldn't have apologized: "[I]f we go after Souter’s house now, we may induce the Court to retreat a bit, and preserve a few freedoms that we will otherwise lose." Wow. Anyone still think this is funny?]
I'm generally a guy who is more interested in ends, rather than means, but when it comes to research agenda design, Vic Fleisher put it better than I could (or certainly did): his "chief internal motivation is curiosity, not passion about a certain policy result."
And so my skepticism of ends-oriented research agendas. A skepticism that I have to admit goes uneasily with my current writing project - prompted by irritation with various post-9/11 bureaucratic initiatives.
Implications of MGM v. Grokster
The Wall Street Journal is taking a poll asking WSJ.com readers whether they agree with the Supreme Court’s decision in MGM v. Grokster. Right now, the vote is 55% NO to 45% YES. I’d venture to guess that the WSJ's subscriber base doesn't include too many teenagers or people who came of age with Napster. So the fact that a majority of the WSJ crowd disagrees with the Court’s decision in Grokster might imply that WSJ readers believe that the decision will curtail technological innovation and the growth of the tech sector (or, of course, it could just reflect a more general distate for governmental interference in the market).
Many commentators have argued that the decision won’t stifle technological innovation; rather, they contend that the Grokster case just makes it clear that intentionally inducing copyright infringement through technology is foul play. But the question of what constitutes such intent is murky enough that already we are seeing signs that tech entrepreneurs are pulling back. In a New York Times piece, the CEO of a company that makes a file-sharing program called LimeWire gives his take on the case: “Some people are saying that as long as I don’t actively induce infringement, I’m O.K. . . But I don’t think it will work out that way.” His reaction? He’s probably going to shut down LimeWire. It will be interesting to see how many tech entrepreneurs follow suit.
Justice Breyer and the Establishment Clause
Yesterday's Supreme Court decisions in McCreary and Van Orden contain much to ponder. I think the Court got it just right in McCreary. And while I agree that context matters -- and thus that some public postings of the Ten Commandments could be consistent with the Establishment Clause -- I tend to think Van Orden should have gone the other way. As to the latter, a lot of attention will be spent parsing Justice Breyer's concurrence in the judgment, since his was the deciding vote. It's his opinion that I want to talk about here.
The opinion is classic Breyer -- it lists a bunch of reasons supporting the outcome he reaches, and leaves the reader to wonder which ones are essential. Indeed, in this case Breyer seems to have refused to apply any particular standard or test at all, relying instead on the somehow-unmediated "exercise of legal judgment." Like Potter Stewart and "hard-core pornography," perhaps Justice Breyer just knows an Establishment Clause violation when he sees it.
But to be fair, Breyer does at least identify the considerations motivating his decision (even if it's hard to know which were dispositive). Several of them seem fairly sensible, but one strikes me as highly problematic. He writes (numbers added by me for reference):
 [T]o reach a contrary conclusion here [i.e. to hold the display unconstitutional], based primarily upon the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions.  Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation.  And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.
Let's take this paragraph sentence-by-sentence. Sentence  seems basically fine. The Establishment Clause should not lead the law to exhibit actual hostility toward religion. If it did, it would likely run headlong into the Free Exercise Clause. Sentence  is where Breyer starts to go off the rails. Why should it matter for constitutional purposes whether a particular decision would encourage further litigation across the country? A public display of the Ten Commandments either is, or is not, consistent with the best understanding of the Establishment Clause. Resolving that issue with regard to any particular display may require litigation, but the prospect of litigation shouldn't affect the answer. It's not like the Establishment Clause contains a litigation-minimizing requirement.
Or does it? In sentence , Breyer almost seems to suggest as much. Litigation challenging Ten Commandments displays across the country could, he warns, "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." This is the heart of his point in this paragraph. I think it's seriously misguided.
To be sure, scholars of the Establishment Clasue have pointed out that one of the overarching points of the Clause is to protect the country from religious conflict. But the idea there is that, on the correct reading of the Clause (and I set aside for present purposes what the correct reading of the Clause actually is), the relationship between religion and government will, in the long run, be one where religious divisiveness is minimized. That's a far cry from saying that each individual Establishment Clause decision should minimize the amount of divisiveness it causes. If the voters in Texas decided by referendum to create a publicly-run Christian Church of the Texas, a court decision holding the church to be unconstitutional would undoubtedly be very unpopular, cause much controversy, and exacerbate religiously based divisions between those who favored the church and those who opposed it. But the theory of the Establishment Clause is that such governmental "establishments" of religion are undesirable, in part because they create divisions between religions favored by the state and those not so favored. Thus, a decision potentially exacerbating religious tensions in the short run would further the Establishment Clause's goal of religious peace in the long run. So too with the Ten Commandments case. The fact that striking down some public displays of the Ten Commandments might create some religiously based divisiveness in the short run should be, by itself, irrelevant to the constitutional analysis.
It's a little scary if Justice Breyer truly thinks otherwise.
Kelo on the brain
I have two more quick thoughts on Kelo:
1. As a result of Kelo, shouldn't we expect property values to dip a little bit, at least in some places? If you are buying property in a blighted town, or in one with known ambitions to attract developers, and particularly if that property is located near open, depressed, or town-owned space, the price should reflect the possibility that your property will be taken. UPDATE: Of course, if you agree with Kaimi and me, you wouldn't expect anything to change, since Kelo simply reaffirmed pre-existing law and expectations. (I thought that this point was implicit in my original posting, but perhaps not. Now it is explicit.)
2. In order to fix the Kelo problem, at least in part, I propose federal (UPDATE: or state) legislation requiring the government to pay a 10% premium over fair market value in all, or at least some, takings cases. This will protect property owners from some takings and soften the blow in the rest.
Corporate Litigation in the News
Via yesterday's NYT, we learned a bit more about the lawsuit brought by Peter Jackson (of Lord of the Rings fame) against New Line Entertainment (of Time Warner fame). The suit's gist is that New Line, by selling certain distribution and licensing rights to TW sister companies instead of selling on the open market, engaged in self-dealing that lowered the gross movie revenue that Jackson was to share in. Jackson apparently seeks around $100M in damages. (For law geeks out there, a well-regarded California boutique, Alschuler Grossman Stein & Kahan, represents the Hobbits, while Sauron (er, the Studio) is represented by O'Melveny & Myers.)
As the Times noted, this would be a really interesting case to see resolved on the merits (either on the papers or before a factfinder) because it really strikes at the heart of the synergistic rationale that was said to generate lots of entertainment corp. mergers in the late 1990s. If TW (or Sony, etc.) can't self-deal, then it would seem to make quite a bit less sense to stick all of those disparate corporate entities under the same banner.
I checked the docket. New Line filed an answer on June 3. It was pretty surprising that New Line didn't move to dismiss (must have been a well drafted complaint!). They parties are now in discovery. Undoubtedly the case will settle.
Gender knowing, or gender selecting?
There is a new product on the market that allows a pregnant woman to perform a simple home blood test to determine the gender of her fetus at 5 weeks. Previously, expecting parents had to wait until the ultrasound, usually conducted at around 18 weeks, to find out.
This product raises certain ethical concerns. In particular, even for those of us who support a woman's right to choose (or at least, for some of us; I can't speak for all of us), this raises the ugly specter of gender-selecting.
This ethical issue is particularly relevant for certain Asian cultures that, we are told, promote or tolerate gender selecting. Of course, it is also relevant everywhere else that gender selection may take place. Two responses:
1. It is not entirely clear that there is as much gender selection going on in Asia as we think.
2. More importantly, assuming that people (in Asia or anywhere else) will abort based on gender, isn't it preferable that they abort at five weeks rather than 18 weeks? I assume that the countervailing concern is that women who would not abort at 18 weeks for gender selection may choose to do so at 5 weeks. Would three five-week abortions be preferable to two 18-week abortions? (These are only questions for those of us who support a woman's right to choose, but nevertheless believe that a fetus has some value.) I don't know the answer to this question. But I still think the product itself is pretty cool.
Yarmulke tip: Daddytypes
Democracy in action
Yesterday, I argued that Kelo was fully consistent with precedent and democratic majoritarianism--a two-fer for the committed conservative. I also suggested that those offended by the decision should move to pass a law at the local, state, and/or federal level.
It turns out that Congress is listening! According to Lyle at scotusblog
Sen. John Cornyn, a Texas Republican, moved swiftly on Monday to narrow the effects of the Supreme Court’s decision last Thursday that upheld broad government power to seize private property to turn over for profit-making economic development. Cornyn’s new bill, S. 1313, would lay down a congressional definition of “public use,” far narrower than the Court’s constitutional interpretation in Kelo v. City of New London (04-108).
The bill's relevant text:
“( a ) In General. – The power of eminent domain shall be available only for public use.
“( b ) Public Use. – In this Act, the term ‘public use’ shall not be construed to include economic development.
“( c ) Application. -- This Act shall apply to –
(1) all exercises of eminent domain power by the Federal Government, and
(2) all exercises of eminent domain power by State and local government through the use of Federal funds.”
As a policy matter, this may or may not be a good idea--I make no claims. But it is democracy in action, and it is precisely the kind of conversation we want between the branches of government.
It's the end of the Term as We Know it
My friend Doug Berman has some interesting thoughts on the criminal justice cases from SCOTUS this past term over at Sentencing Law and Policy. Doug's astutely noticed that a significant number of cases during the Term have to do with the intricate regulation of the death penalty. He argues that fetishizing death regulation over sentencing generally is unwarranted, and to some degree, unjust, since it leaves thousands of people imprisoned (unduly) for longer by deferring the resolution of the Blakely/Booker chaos. He quotes Mike from Crime and Federalism, who chides the court's "liberals" especially for this state of affairs:
What's up with the Court's granting cert. on so many death cases? The death penalty is rarely meted out. If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues. If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare. The horrors of prison are real and frequent. Why not ensure that only those found guilty by a jury of their peers spend time in prison?
Against Personal Meaning
At the AALS New Law Teachers thing, there was some talk about how to set a scholarly agenda. Some people thought that the best way to set such an agenda was to write about something personally meaningful.
But I’m not so sure. Personal meaning might be a good way to get motivated to write about, say, international criminal law or religious freedom. Or the heartfelt nature of the inquiry might prove to be distracting for rigorous work.
But is personal meaning the right yardstick to apply for the underserved legal subjects? Pension law? Tax? Or, say, international trade and economic regulation? I could tell a personal meaning story about trade: it is, as a mentor once told me, potentially world-historical in a globalizing, um, globe. People will win big and lose big. I could write to figure out a way to maximize the number of winners, or the prospects of the players I care about most. And I could gild this tale with interesting references: trade is about the Silk Road and Venice, clipper ships and colonialism.
But I could also approach trade as a puzzle worth puzzling over, a legal regime that needs to be understood, perhaps improved even, even if it is centered in dull Geneva. And take the psychic rewards from the interest of the inquiry, rather than from identification with the affecteds. I’m not sure that corporate law scholars extract a lot of personal meaning from their advocacy for shareholders, directors and officers, or what have you. But that doesn’t mean they can’t find the work engaging.
Still, I'd love to hear from our readers about what motivates them to set their research agendas, should they be in the research agenda setting game.
Monday, June 27, 2005
In my new role as Prawfsblawg's car critic, I am pleased to have the opportunity to respond to Dan and rate my Toyota Prius, having just driven it about 3,000 miles. In short, everyone should get one (assuming, of course, you don't already have one--there are about 30 in the few blocks near my new place in San Francisco--and that you can get one without stealing one--they are on back order and are hard to come by).
One gets about 46-50 miles per gallon. Really. On the highway and in the city. Truly amazing. And I promise you this saves you a fortune in gas money--and quickly. Its GPS system is pretty neat too. Admittedly, the tank is a bit small by current standards (11.9 gallons--and it registers empty at 8, which is absurd since you can go nearly 200 more miles before really running out of gas); but you cannot forget everytime you are filling up that you are saving substantially. And the car isn't especially expensive in the first place. The ticket price would strike you as very fair.
It isn't the fastest car in the world and can lag at 80 mph. Still, it is quiet (another side benefit of going to electric power) and gets the job done. Parking lots and valets need some instruction in how to use a car with a power button rather than a traditional key--and that can be annoying. You won't win any races (or parking competitions because it is bigger than you think and harder to park than one would imagine); but you can feel good that your self-interest is aligned with the best interests of national security and national energy policy. Two thumbs up. Way up.
Now, instead of thinking about whether Rehnquist is going to step down, whether there is any real "non-infringing use" of Grokster's service, or whether Establishment Clause jurisprudence will ever make sense, do download my newest paper, recently accepted at Law and Philosophy. That will give you a sense of what I do when I am not going to conferences or blogging about cars. And unlike my book (which you only need to pay $11.00 for at Amazon), the paper is free at SSRN.
Meet The New Boss?
Hi there, everyone.
As Hillel observed, the Supreme Court has wrapped up for the term, and in the midst of all the hoopla, I’d like to play a wee bit of the killjoy. I’m anti-Supreme Court fetishization (and so many are pro!). Let’s remember, when we’re parsing the verbiage from One First Street, that that huge portions of the real, tangible lawmaking in this country happen in courts that aren’t supreme. It has been true since Brown II (picture a shoutout to Abram Chayes and Owen Fiss, if their articles were linkable), and it is still true today.
Still, it being Supreme Court Day, may I venture into the grounds of uber-cynical legal realism? Scalia’s acquiescence in Raich, the marijuana case, was curiously consistent with the modern administrative state that Democratic senators seem to like. And was anyone else surprised with the vigor of O’Connor’s move to the right in Kelo, the eminent domain case? It’s almost as if these people are wondering if they could be promoted….
But then, who among us doesn’t think about promotion?
And a hat tip to my anonymous DC sources. It’s nice to go to social events and come away with blog posts.
Outrage and surprise
Will Baude suggests that I'm "disappointed and surprised by the outrage that Kelo has engendered in the blogosphere." I hope that my post didn't convey that idea. What disappointed me was not outrage; I think it's quite all right to be outraged or angry over Kelo.
What disappointed me was that so many legal academics seemed to be surprised about Kelo. Surprised! The outcome in Kelo was widely expected and was in line with longstanding precedent. No legal academic should have been surprised by the result.
Being surprised by Kelo is like being surprised when a Democratic presidential candidate wins New York, or a Republican candidate wins Texas. It's like being surprised when Michael Jordan wins a basketball championship.
Of course, just because legal academics shouldn't have been surprised doesn't mean that they should all support Kelo. The decision is certainly open to criticism on any number of grounds. But surprise? No matter how much I may dislike Michael Jordan, it still strains my credibility if I express surprise when Michael Jordan wins.
[Edit, five minutes after posting: I tried to get too cutesy at the end of this post and compare Kelo to Casey. But one review, the comparison doesn't really hold up that well, so I've cut it out.]
Should I buy a hybrid? The Imminent Oil Debacle
In the melee of the AALS conference and family visiting from Toronto this past weekend, I didn't get a chance to report on my afternoon on Thursday, where I was a guest observer at Oil Shockwave. This was an oil crisis executive simulation (i.e., a war game scenario) being run from the Four Seasons Hotel in Georgetown. My friend and fellow Torontonian Robbie Diamond is the transformative and organizational genius behind this simulation. Robbie’s organization, Securing America’s Future Energy (www.secureenergy.org), along with the National Commission on Energy Policy have spent the last few months preparing this media and educational event. There's some very good coverage of the event written by Jon Mintz at the Washington Post, entitled Outcome Grim at Oil War Game. Some thoughts:
1. Although it was a little unclear to me what the value of a war game event was initially, by the end of the day, its force was made plain. The event was an amazing demonstration of social and intellectual entrepreneurship by Robbie, who started SAFE just last fall to create a non-partisan national security agenda that reduces American dependence on foreign oil by relying on existing and available technologies.
2. Just about everyone interested in the nexus between national security and energy policy was there, and the individuals playing the “principals” in the situation room were A-List Washingtonians with extensive government experience. Rand Beers played himself, and at the table of principals was Richard Haass (playing Secretary of State, and whose niece is a friend of mine who was sitting next to me and doing an NYT crossword puzzle; bad Jill!); Carol Browner (former EPA honcho playing Secretary of Interior), Robert Gates (former chief spook, playing National Security Advisor), Gene Sperling (reprising his role as National Econcomic Adviser), and Jim Woolsey, another former spook-in-chief who was playing Secretary of Homeland Security. Various members of the MSM were there, including David Brooks from the NYT.
3. The remarkable aspect of this particular simulation is the vivid demonstration of
how fragile the American energy infrastructure is to both internal and external threats. The word of the day here is and remains VULNERABILITY. With some luck, the media coverage this war game scenario will receive, and the support in Congress for its long-term goals in educating American politicians and reforming current policy, will alter the current course, which looks dangerously unprotected.
4. On a personal note, I had in mind the idea of selling my 2001 Civic (only 28K miles!) and trading-up to a fun sports car this coming year, especially since I'll likely have a 20 minute commute to work everyday, something I dread, instead of my recent commute of seven minutes by foot. Now I'm thinking that, to be consistent with my semi-hawkish views, I should ante up and get a new hybrid car, like the Prius that Ethan and Zoe just drove across America. So, I have a cluster of questions, mostly to Ethan and other Prius-type car drivers: what's it actually like? how much gas do you really save (my father seemed skeptical of the savings)? How did it drive? Was there enough juice to move speedily on highways?
I confess I have, um, a penchant for getting places quickly. I think I'd be better off with the pre-commitment strategy of installing a speed regulator in whatever car I drive; it not only uses less gas, but it will on average ensure that I get fewer tickets and arrive safely.
For whom the booth tolls
Yesterday we had a fun family visit with some of my wife's relatives in New Jersey. Around 9:30, we piled the kids into the car and began a trip home. It was hellacious.
The exit from the I-78 -- the "pay your toll here" spot -- was almost totally frozen up. It took nearly an hour, and some serious stuntwoman-like driving by my wife, to navigate the morass. But after an hour in massively snarled, almost completely stopped traffic, we finally made it to the toll booth, where we dutifully paid our toll of . . . one dollar and fifteen cents.
(We would repeat the process at the Holland Tunnel itself, waiting another hour before we paid our six dollars).
That level of inefficiency is staggering. We incurred gas costs of sitting for hours, plus the human time of waiting, plus the frustration of trying to navigate the mess. (And we could have been there a lot longer -- some of the lanes were moving at fewer than ten cars through the booth in half an hour!) I'm positive that for every dollar the state was actually collecting at those booths, it actually imposed several dollars of cost on the drivers, cost which was comletely wasted.
What's the solution? I'm not sure. The economic side of my brain says that the state (or whoever runs the toll booth) should open up a $20 booth. Drivers could have the option of paying $1.15 and waiting an hour, or paying $20 for a presumably much shorter wait. I know which group I would have been in -- I would have been happy to have paid $20 rather than $1.15, in order to skip the hour of waiting.
Would such a split toll be feasible? If not, isn't there some way to collect the state's tolls without paying dollars-on-the-nickel in transaction and waste costs? (And yes, I know, a partially split system already exists with the Easy-Pass. Why not extend the principle a bit?)
So. The Court cleared out its docket today with some big rulings. But no word on Rehnquist's and O'Connor's (or anyone else's) continued tenure on the Court.
Do you get the feeling they are just playing with us?
I mean, they either plan to retire or they don't. Couldn't they have told us either way? It would have been nice to either let the real nomination game get under way or to put the speculation to bed for the time being. But no. And so it continues.
Late to the Party on Kelo: If there ought to be a law. . . .
I know I am late to the party on Kelo, and anything I say is going to get swallowed up by commentary on other Supreme Court news that will come out today. But I can't resist.
First, I find myself in complete agreement with Kaimi. If you disagree with the outcome in Kelo, then you disagree with a century of precedent. That's fine, of course, but don't seem so shocked that the Supreme Court would . . . adopt precedent.
Second, for those who vehemently oppose Roe, Lawrence, Goodridge, and other such cases on the grounds that they undermine democratic majoritarianism, you should embrace the Kelo ruling wholeheartedly. After all, Kelo is the triumph of the majority will.
Indeed, just as you believe that judges have no better insight than legislators regarding the moral value of a fetus or the meaning of marriage, it is hard to imagine that judges have better insight into the likelihood that a development will produce public benefit than the legislators and the experts they hire to evaluate the project.
And if you think that there ought to be a law against this kind of taking . . . pass one. Majoritarian democracy is a beautiful thing.
The truth is that everyone agrees that some things trump majoritarianism. We just disagree on what. We can argue about what should trump majoritarianism (equality, property rights, etc), but it gets tiresome when conservatives truck out the counter-majoritarian difficulty as an argument in itself against such decisions as Roe, Lawrence, and Goodridge.
Note: I am not taking a stand here on whether Roe, Lawrence, Goodridge, or Kelo were correctly decided. I'll leave that for another day. I'm only arguing that those who oppose Roe and the rest on the basis of majoritarianism should embrace Kelo--on the grounds of majoritarianism.
The Seasons Change at PrawfsBlawg
I wanted to take a moment to thank Joelle Moreno, Christine Hurt, Kim Roosevelt, and Dan Solove, all of whom were guest-blogging with us recently. We hope to see you soon in the near future and on the comments section too!
We're excited to announce that we have a couple new guest-bloggers for the next two weeks: Marcy Peek, who teaches at Whittier Law School in Califonia and writes about information privacy and cyberlaw; and David Zaring, who's been at NYU the last few years and now begins teaching full time at Washington and Lee. David writes about administrative law and related subjects.
Also, later this week, we will be hosting a familiar voice from the blawgosphere: my good friend Orin Kerr from the Volokh Conspiracy, once he returns from Germany.
Here's a partial list of future guest-bloggers, in no particular order, in case you're interested: Kenny Bamberger (Boalt); Laura Heymann (GW to William and Mary); Doug Lichtman (Chicago); Lior Strahilevitz (Chicago); Rick Bierschbach (Cardozo), and I'm hoping a few others, including the dashing Ekow Yankeh (Illinois), whom I met this past week at the rookies conference in DC.
Law and Philosophy
I was going to ask one of my co-bloggers to plug my newest paper, just accepted for publication in Law and Philosophy. But why engage in self-promotion indirectly? Go ahead and download a copy here--and give me feedback so I can make it better. The editors tell me they are running behind and it won't come out for some time.
Sunday, June 26, 2005
Kelo: I just don't get it.
If you get your legal news from the blawgosphere, you might have had the impression that Thursday's Kelo decision marked an departure from existing precedent, analogous to Bowers v. Hardwick, signaling an end to private property rights -- all in all, a terrible victory for Walmart and corporate rent-seekers everywhere.
(For contrary views on each of these claims, see SCOTUSBlog's good discussion here, Jonathan Adler's comments here, and Walter Dellinger here.) For what is worth, it is my sense that Justice Kennedy's concurrence will encourage significant limitations on what had been fairly plenary local development powers.
Libertarian blawgers in particular make two arguments, both of which confuse me. First, they are concerned about eroding the "home-as-castle" principle of home ownership. Second, they are worried about the Walmart problem -- government captured by corporate interests turning over vast swathes of private property to commercial malls. (Some attack the "liberal justices" for not being as anti-corporate as those in Kelo's minority; others claim that the liberals are reflexively pro-big government.)
Here's my problem: why didn't the libertarian blawgosphere similarly rise in revulsion against the new bankruptcy law? Far from doing so, many pro-credit card company blawgers made a very big deal of the fact that the bankruptcy legislation was passed by wide margins (evidencing the strength of the personal responsibility norm), notwithstanding that bill's anti-family-home, anti-working-class, crony-capitalism nature.
I guess I can see some folks saying the following. People who will lose their homes after the implementation of the new bankruptcy limitation have only themselves to blame for
getting sick?! falling into debt. By contrast, those subject to a taking are guilty only of living under the sovereignty of a captured local, state or national governmental body. The theme: bankruptcy is for suckers; takings hurt real Americans!
But that argument is confused, given that takings are compensated. (Now, if you wanted to argue that because of endowment effects, compensation at FMV is insufficient, I'd listen). But the even deeper weirdness here is that in the takings context, blawgers appear to believe that the government is so very corrupt that it can't help itself from seizing single family dwellings across the land to build Super Walmarts, while in the bankruptcy context some think that it reflects popular will to permit the government to allow credit card companies to foreclose on those same houses. To put it more starkly: how can it be that government-as-regulator is corrupt, but government-as-foreclosing-sheriff isn't?
Prof. Reynolds argues that Kelo will lead to a "sea change in public attitudes." Maybe. But if so, it will be because many people have, for whatever reason, seriously distorted the meaning of the decision. The lack of reaction to bankruptcy legislation shows us that the American public can be occasionally snookered (despite almost always getting the big issues right) when presented with sufficiently technical arguments. Will we now turn against government-led development for the common-good? Time will tell.
[UPDATE: Stuart Buck points out in the comments that some libertarian bloggers, like Prof. Reynolds, were strongly against the bankruptcy bill. Sorry for overgeneralizing. I still think, though, that the majority of libertarian blawgs were pro-bill. See, e.g., the posts of Prof. Zywicki ; this guy; Rasmusen; Right Coast; and Stromata ("that old time libertarian religion is good enough for me.") Finally, although I'm not going to label Judge Posner as a libertarian, he is surely influential. And he was pro-bill.]
A Kelo of Overreaction
I have never been so disappointed with the legal blogosphere. The Volokh Conspirators and Bainbridge seem to have completely missed the boat on Kelo. Todd Zywicki is "astonish[ed]" that the Court took the novel step of upholding a century of precedent, and David Bernstein suggests that it required "legal gymnastics" to do so. Bainbridge finds the result "shocking." Who knew that Supreme Court adherence to well-established case law could be such a surprise to law professors?
Not everyone is drinking the kool-aid. My co-blogger Dave seems immune to the Kelo hysteria, and points to a few other hardy souls. Instapundit belatedly concedes the issue as well. Meanwhile, in a great explanation of the real (and very limited) place of Kelo in the Takings Clause jurisprudence, Marty Lederman at Scotusblog notes that
Kelo is entirely consistent with well over 100 years of established precedents . . . Does anyone disagree with this? In order for Kelo to win, wouldn't the Court have had to overturn numerous longstanding precedents?
Why yes, it would have. Just a few of them:
Block v. Hirsch (1921). The Court holds that "circumstances have clothed the letting of buildings in the District of Columbia with a public interest so great as to justify regulation by law." 256 U.S. at 155.
U. S. ex rel. Tenn. Valley Authority v. Welch (1946). The Court writes that "We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority." 327 U.S. at 551-52. Justice Frankfurter's concurrence notes that " in the numerous cases in which the [public use] issue was adjudicated, this Court never found that the legislative determination that the use was 'public' exceeded Constitutional bounds."
Berman v. Parker (1954). A unanimous Court writes that: "Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. . . . The role of the judiciary in determining whether that [eminent domain] power is being exercised for a public purpose is an extremely narrow one." 348 U.S. at 31.
Midkiff (1984). The Court notes that "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." 467 U.S. at 241.
The Midkiff court also notes that:
The "public use" requirement is thus coterminous with the scope of a sovereign's police powers. There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. TVA v. Welch, which emphasized that "[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields." In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation."
467 U.S. at 240-41. (emphasis added).
It's really hard to imagine the case law being much clearer. Kelo upheld long-standing law on the Takings Clause, Justice O'Connor's strange citation to dicta from Calder v. Bull notwithstanding. Further, the Kelo court did so by only a 5-4 margin, with a concurrence that may end up limiting the government's ability to take property. (Kennedy's concurrence is pregnant with implications, and the Scotusblog crew is doing a great job of discussing some of them).
Of course, one may disagree with the propriety of existing case law. Still, it's quite clear that any descriptive statement to the effect that Kelo itself has taken away protections previously afforded by the public use requirement, could only be made by ignoring a century of consistent case law. The public use requirement was already all but non-existent, and Kelo simply upheld the long-standing status quo. The public-use horse left the barn a long time ago, fellows.
Friday, June 24, 2005
More from the AALS
I realize much is going on in the real world. But I have been sheltered from it for 10 days as I moved cross-country. And now I'm in DC learning how to be a law professor at this conference for new teachers run by the AALS. So pardon me for blogging about this corner of the world.
Here's what we discussed last night: We were told that our new careers are very consequential and make real differences in people's lives. This struck me as an odd beginning. Most of us are fleeing lives of actually helping people (rich and poor) and satisfying ourselves with a more personally satisfying career that will usually help people only very indirectly.
This morning we hit some basic learning theory and tried to figure out whether we ought to try to impress our students on the first day with our credentials or whether it might be a better idea to jump right into the material.
We then spent some time discussing how to manage random internet usage in wired classrooms. Some argued that it was the teacher's failure if s/he couldn't keep their students from shopping during class. Some were offended by abolitionist policies and advocates of cutting it off; some seem to believe internet access during class is an entitlement. These people reminded all of us that we all read newspapers and played tic-tac-toe and passed notes in big lecture classes. I didn't quite follow this argument--we may have done so, but did it improve our educational experience? Was it necessary for our institutions to facilitate this behavior? Internet access in class can obviously be very useful but it is not obvious that it is worth the cost.
We then spent some time figuring out how to seem older than we are and debated whether we should address our students by first or last names.
If you have any views on the subjects we are covering, let me know; I'll pass them along to the conference participants. There are no students here--a perspective that would be most welcome...
Off to lunch.
Emily Bazelon and David Newman provide a useful primer on the rumored shortlist candidates for a Supreme Court nomination.
Supreme Court Retirement/Nomination Predictions
For reasons that escape me, I feel the need to go on record with my predictions regarding Supreme Court retirements and such. I should stress that I have no inside information here. And, as you'll see, my predictions are utterly lacking in novelty. But here's what I believe is going to happen:
1. The Chief Justice will announce his retirement next week.
2. No other member of the Court will retire this Term.
3. President Bush will nominate Judge Luttig to be the next Chief Justice.
I won't be happy if I turn out to be right. I would be much happier if Judge Roberts were nominated instead.
Thanks and Goodbye
My visit at PrawfsBlawg has run well past my planned short stint. I want to thank the folks at PrawfsBlawg for having me stop by and visit. When I began guest blogging at PrawfsBlawg, I wasn’t sure about whether I’d take to blogging. I had three unresolved questions: (1) Would I be any good at it? (2) Could I add blogging to my already busy life without throwing everything out of balance? (3) Would I enjoy it?
Well, the first question I can’t really answer in an unbiased way. I hope you’ve enjoyed some of my posts -- or at least been provoked into a good discussion by them. As for the second question, the answer is “no” – blogging consumes hours of time, and it's taking years off my life for sure. But the answer to the third question is an emphatic “yes.” I’ve become addicted to blogging. So regardless of whether I’m any good at it or whether it's lethal, this means that I’ll probably continue on with blogging. I’m hooked. So look for me in the blogosphere sometime soon.
DC and Law Professor Types Are Not a Lethal Combo
So the AALS New Teachers Conference turns out to be much better than the AALS meat market. These new law professors are not stiff sweating tools, as the meat market might have suggested. People are remarkably down-to-earth, honest, and generally friendly. Maybe now that I've moved to California (my absence from this forum was due to my drive cross-country with woman and dog but without computer, about which I'll have more to say soon), I'm just more up on people generally. That is certainly possible. I had the most amazing plum yesterday, by the way. You guys should totally move to California and eat produce.
You will also be pleased to know that by most measures the PrawfsBlawg happy hour in DC was a success. Your fellow readers are super-cool, in case you were curious.
They're At It Again: Pentagon Student Database
When the Total Information Awareness program came to light in late 2002, the Defense Department learned the hard way that people weren't very happy that the government was planning to gather their data into a gigantic database. Congress denied funding to the program in 2003 after a vigorous public outcry.
But the government doesn't really learn. A recent story in the Washington Post notes:
The Defense Department began working yesterday with a private marketing firm to create a database of high school students ages 16 to 18 and all college students to help the military identify potential recruits in a time of dwindling enlistment in some branches.
The program is provoking a furor among privacy advocates. The new database will include personal information including birth dates, Social Security numbers, e-mail addresses, grade-point averages, ethnicity and what subjects the students are studying.
The data will be managed by BeNow Inc. of Wakefield, Mass., one of many marketing firms that use computers to analyze large amounts of data to target potential customers based on their personal profiles and habits. . . .
The system also gives the Pentagon the right, without notifying citizens, to share the data for numerous uses outside the military, including with law enforcement, state tax authorities and Congress.
Thursday, June 23, 2005
ROOKIE HAPPY HOUR THURSDAY NIGHT
N.B. I've set this announcement to be at the top of the page until the happy hour, but the content below continues to change throughout Wednesday and Thursday, so please scroll down even if you've read this announcement before. Thanks.
For those of you going to the rookie AALS conference, or if you're a junior prawf in the hood and want to crash, PrawfsBlawg is hosting a postprandial opportunity Thursday evening, starting around 930 or 10pm (depending on when the dinner finishes basically).
Place: Cloud (formerly Savino's). Dupont Circle, on New Hampshire, across from the Front Page, in the back-bar area. It's about a seven minute walk from the hotel where the conference is.
See you then!
In re Alan Smithee
Here's an idea for a sensible restriction on the Supreme Court: The Court should not be permitted to hand down cases with homophonic (or quasi-homophonic) names, within a ten-year period.
After all, imagine the poor professor who's trying to discuss the situation of a house taken away from private owners and given to another private party after drugs were found in that house through an outside scanner.
Is this a Kelo issue? A Kyllo issue? The poor professor is going to be up in front of the class, saying "so Kelo controls the takings claim, while the illegal search claim is covered by Kyllo" and the poor law students are going to be completely lost.
Now I realize that our case-or-controversy requirement limits the Court's ability to simply choose case titles. But there has to be a better way. How about an Alan Smithee rule?
An End to Party Politics?
Are we about to enter into a brave new world beyond political parties as we know them? According to Gary Hart, that’s where we’re headed. He writes:
Out of power, the watchword among Democrats, and many independents, is: "I don't know what the Democrats stands for." That's because the Party's old coalition -- traditional liberals, labor, minorities, women, environmentalists, and internationalists -- is in the process of disappearing and a new one has yet to be formed. . . .
But many traditional Republicans don't know what their Party stands for either. It used to stand for balanced budgets, resistance to foreign entanglement, laissez faire economics, smaller government, and individual freedom. Not any more. That old coalition has disappeared as well. The new Republican Party stands for big government, huge deficits, pre-emptive warfare, massive nation-building, neo-imperialism in the Middle East, intrusion on your privacy, and a semi-official state religion dictated by fundamentalist ministers. . . .
Over and beyond this traditional party-based struggle for power is the greater tsunami overtaking the very nature of partisan politics itself. The old party structures are becoming obsolete. The prize of future power will go to the next Machiavelli, the next Montesquieu, the next Bismarck, the next Jefferson who both appreciates, before all others, that we are in a totally new political age, an age beyond traditional political parties, and then creates the next political paradigm.
Hart is right, I think, that the political parties are increasingly a fusion of different coalitions that are becoming increasingly difficult to hold together in a cohesive way. But I doubt that we’re about to enter into “an age beyond traditional political parties.” My guess is that the parties will simply realign, as has happened throughout history.
I am much more persuaded by a Washington Post Magazine (July 25, 2004) article by David Von Drehle:
Once upon a time in America, there was a political party that believed in a strong central government, high taxes and bold public works projects. This party was popular on the college campuses of New England and was the overwhelming choice of African American voters.
It was the Republican Party.
The Republicans got started as a counterweight to the other party: the party of low taxes and limited government, the party suspicious of Eastern elites, the party that thought Washington should butt out of the affairs of private property owners.
The Democrats. . . .
Von Drehle surmises that political parties tend to fall apart when they reach the pinnacle of their power:
From the very beginning, whenever one party has gotten strong enough to start passing horrible laws such as the Alien and Sedition Acts, it has crumbled soon thereafter. Empowered, the parties overreach. Or members let some element of the party push its dogmas to the extreme, thus driving away moderate supporters. Or they calcify and then find themselves unable to deal with emerging problems. Something happens, and the pendulum swings. This happened to the Federalists. Years later, outrage at the tyrannical airs of the populist strongman Andrew Jackson split Jefferson's party into two camps -- the Jackson Democrats vs. the Whigs of Henry Clay -- and left it unable to cope with the issue of slavery. Then the Republicans had a heyday after winning the Civil War, but they, too, soon got to infighting. More recently, the Democrats deflated like a leaking dirigible after Franklin D. Roosevelt.
In other words, there is something about our parties, some power-sensitive self-destruct button lodged deep in the machinery, that keeps them from getting too big. . . .
But rarely do the parties just evaporate; they realign and reinvent themselves like Madonna. This part of the article is worth quoting in depth:
LINCOLN'S REPUBLICANS were just six years old, having formed in 1854 from the husk of the Whig Party. . . .
The Republicans married Hamiltonism to abolitionism for a 100 percent big-government platform. They believed in the national union over states' rights. They believed in government programs to organize and develop the conquered frontier. Even as Lincoln waged war on the rebellious Confederacy, he signed some of the most important public works and infrastructure legislation in U.S. history, all passed by the Republican Congress -- laws authorizing the transcontinental railroad and granting the right of way; the Homestead Act to encourage settlement of the empty prairies; a program to educate those settlers at land-grant colleges; and so on.
This new party supported high taxes to pay for its ambitious agenda. The GOP passed the first federal income tax, a temporary levy to pay for the Civil War. And it supported high tariffs on imported goods. The agenda made sense in the context of Hamilton's vision of the United States as a great industrial and financial power. From the beginning, U.S. economic potential was awesome, but for its first century, that potential was still taking shape. U.S. businesses needed government aid and protection from the stronger economies of Britain and Europe. They needed a national banking system. They needed a transportation network. They needed protective tariffs to keep domestic markets from being flooded with low-cost, high-quality foreign goods.
At first, the Republican coalition produced success upon success. The Union was preserved, the slaves were freed, the oceans were linked by the iron rails of progress. The United States enjoyed a burst of economic activity unmatched anywhere in the world, personified not just by Rockefeller, Carnegie and Morgan, but also by Post and Kellogg, Borden and Hershey, Heinz and Campbell, Sears and Woolworth. The consumer economy was born.
But just as the Jeffersonian westward expansion sharpened the slave question, this Hamiltonian burst of government-sponsored development changed the American agenda, and with it the balance of interests in the Republican Party. For example, the bloody toll of the Civil War and the chaotic muddle of Reconstruction revived anti-government, states-rights sentiments in the North, thus strengthening the Democrats.
More important, U.S. business had become a colossus. In fact, it was so powerful that some of the same people who had supported government protection of American business now started to believe that the government should protect people from American business. One of them, Theodore Roosevelt, became president in 1901 upon the assassination of William McKinley, and over the next 11 years, Roosevelt split the Republican Party. He continued to see big government as a force for national progress, thus alienating those in the GOP coalition whose main commitment was to big business.
In 1908, after his trust-busting, canal-building, federal-land-conserving presidency, Roosevelt turned the White House over to his friend William H. Taft. But T.R. came to feel that Taft was returning the party to the plutocrats, and after four years of uneasy retirement, he returned to challenge Taft in 1912. Forced to choose between them, the Republicans took the more conservative path. They nominated Taft.
"In its essence, 1912 introduced a conflict between progressive idealism . . . and conservative values," wrote James Chace in his recent history of that election. "The broken friendship between Taft and Roosevelt inflicted wounds on the Republican Party that have never been healed."
This rift paved the way for Democrats to grab the mantle of progressivism. It was, after all, high time for the Democrats to reinvent themselves. The Jeffersonian ideal of the yeoman farmer was vanishing in the din and bustle of the urban and industrial future. So the party found a new future in the cities, among the working people. . . .
When the Great Depression hit, the Republicans were a disaster, and Democrats regained the upper hand in U.S. politics. Now the parties had crumbled and reformed themselves to such an extent that they had almost entirely swapped coalitions.
The New Deal Democrats of 1932 chose from the menu of enduring American either/ors: big government, high taxes, populist, frisky and French. But the trauma of the Depression was so intense that Franklin Roosevelt was to able to bring both Northern and Southern voters into the same coalition -- under an anti-big business banner. He was able to hold progressives and fundamentalists in a single uneasy alliance by delivering the balm of government assistance. FDR gave working people the right to unionize and to have unemployment insurance and worker's compensation. But he also managed to hold on to moderate business leaders by saying he was saving them from the far worse fate of socialism. No president ever enjoyed more or stranger bedfellows. . . .
. . . [O]nce the crises of the 1930s and 1940s were past, the country found itself face-to-face with the long-festering issue of racial discrimination. Without the Depression or war to hold the Democrats together, it was no longer possible to accommodate both segregationists and liberals. In 1948, the young mayor of Minneapolis, Hubert Humphrey, grabbed the Democratic convention and tugged it to embrace civil rights. When that happened, an angry group of Southern Democrats bolted from the party and nominated South Carolina's governor, Strom Thurmond, to run for president as a protest.
The complete breakup of the New Deal coalition took time, but by 1964, Thurmond had left the Democratic Party altogether, and over the next 20 years, millions of Southerners followed him. Segregation died, thankfully, as a legitimate issue, but resentment of Washington, D.C., endured. When Republican Ronald Reagan came along in the 1980s, preaching that "government is not a solution to our problem, government is the problem," he achieved an electoral college landslide to match FDR's victory in 1936. Old Dixie was transformed into a stronghold for the party of Lincoln. . . .
AFTER TWO CENTURIES of assembling coalitions, watching them split, then scrambling after the pieces like children under a pinata, our parties have arrived at this moment topsy-turvy. The Republicans have morphed into the party of low taxes and limited government, the party of Reagan, pushing an agenda that is conservative both fiscally and morally -- low tax and very prim -- but more assertive internationally than at many times in its past. . . .
Will we, according to Von Drehle, have multiple parties or an age beyond political parties as Hart suggests? His answer:
When our two major parties engage in their periodic undoing, why don't they disperse their constituencies like dandelion seeds? . . . .
. . . . Because we are Americans. Charles de Gaulle once asked why anyone could think France would unite behind a single party when the country has 200 varieties of cheese. In the United States, things are simpler. We've given the world just two varieties of cheese: the kind with individually wrapped slices and the kind where the slices stick together. We're binary people: Coke vs. Pepsi, boxers vs. briefs, Ruben Studdard vs. Clay Aiken.
This either/or outlook has significantly shaped our politics. The most obvious example is North vs. South. We fought our bloodiest war over this one, and it is still with us, in important ways. But there are others: big government vs. small government, high taxes vs. low taxes, city vs. country, big business vs. populist. . . .
I wonder what the future holds and whether we're in for a major shake-up with our political parties. I wonder if that time is near. Both Hart and Von Drehle seem to think it is.
Josef K. – Justice Denied. Again.
Judge Alex Kozinski and his law clerk, Alexander Volokh recently published an opinion by a panel on U.S. Court of Appeals for the 9th Circuit in a law review article. The article is called The Appeal, 103 Mich. L. Rev. 1391 (2005). The judges on the panel were Judges Alex K., Bucephalus, and Godot. No reason is given for the inexplicable delay, as the case was argued and submitted in 1926 but not decided until 2005. And no reason is given why the opinion was published in the Michigan Law Review rather than in the Federal Reporter. Shame on the panel!
The opinion begins:
The late Josef K., a thirty‑something male, claims that "[s]omeone must have slandered [him], for one morning, without having done anything truly wrong, he was arrested." T.R. 3.
The procedural history of this case is complicated and patchy, but what is clear is that, after being rude to his arresting officers, appellant came late to his initial interrogation and disrupted the proceedings. He refused to attend further interrogations, submitted no evidence or brief in his defense and repeatedly accused judicial authorities of corruption and incompetence.
He was apparently convicted, though the conviction does not appear in the record. On the eve of his thirty‑first birthday, K. was taken to a quarry by two guards and executed. "With failing sight K. saw how the men drew near his face, leaning cheek‑to‑cheek to observe the verdict. 'Like a dog!' he said; it seemed as though the shame was to outlive him." T.R. 231. As it has.
K. appeals, alleging unlawful arrest, inadequate notice, due process violations, systemic corruption, ineffective assistance of counsel and actual innocence. We affirm. . . .
The panel denied K.’s claims regarding his arrest:
Even though he was under arrest, K. was still allowed to "carry on [his] profession" and was not "hindered in the course of [his] ordinary life." T.R. 17. [FN5] Also, K. admitted that the arrest "ma[de him] laugh," T.R. 47, and that, to the extent the incident tended to "spread the news of [his] arrest [and] damage [his] public reputation, and in particular to undermine [his] position at the bank," "none of this met with the slightest success." T.R. 48. Without cognizable harm, K. lacks standing to contest his arrest. De minimis non curat lex. . . .
While we're on the subject of trifles, we address K.'s claim that he was arrested without a warrant. At the time of the arrest, K. showed the guard his identification papers and demanded, in return, to see the guard's papers and the arrest warrant. T.R. 8. Not only was he not shown these, he was also told that the guards "weren't sent to tell" him why he was arrested. T.R. 5.
We see no problem. Before ordering an arrest, the authorities "inform themselves in great detail about the person they're arresting and the grounds for the arrest." T.R. 8. They don't "seek out guilt among the general population, but . . . [are] attracted by guilt . . . . That's the Law." T.R. 8‑9; see also Decl. of Penal Colony Officer ("Guilt is always beyond a doubt."); Gerstein v. Pugh, 420 U.S. 103, 113 (1975) (arrest warrant not necessary for arrest supported by probable cause).
The panel affirmed the conviction, denying poor K. justice once again (the first time being his sudden execution):
K.'s only clear claim is that he is innocent. See, e.g., T.R. 47, 148, 213. But how can K. credibly claim innocence when he admits to not knowing the law? T.R. 9. He might as well dispute what the meaning of "is" is. The fuss he makes about how innocent he feels "disturbs the otherwise not unfavorable impression [he] make[s]." T.R. 14. Especially ludicrous is his suggestion that no one can "in general be guilty," as "[w]e're all human after all, each and every one of us." T.R. 213. That's how guilty people always talk.
In any event‑‑and this is the nub of the matter‑‑we fail to see what's so special about being innocent. See Commonwealth v. Amirault, 677 N.E.2d 652, 665 (Mass. 1997) ("[O]nce the [criminal] process has run its course . . . the community's interest in finality comes to the fore."). We will assume, for the sake of argument, that K. did not commit the crime for which he was convicted and executed. Can we be sure that K. did not commit some other, worse crime, that was overlooked? To ask the question is to answer it. The law works in mysterious ways and that which should be done is presumed to have been done. It follows that that which was done needed doing. K. was convicted and executed after a legal process that, as we have seen, is unimpeachable. He must have deserved what he got.
The opinion concludes:
K.'s overarching complaint, that "the Law should be accessible to anyone at any time" and that he has been denied entry to it, T.R. 216, "rings hollow." Alex K., Scholarship of the Absurd: Bob Bork Meets the Bald Soprano, 90 Mich. L. Rev. 1578, 1583 (1992). The very existence of these proceedings has provided an entrance for K. to defend himself. K. has consistently refused to cooperate with court officials' repeated attempts "to straighten out his complex case, regardless of the time and cost." T.R. 251. No one else could gain admittance here, because this entrance was meant solely for him. If he nevertheless remained outside, he has only himself to blame.
This opinion is in flagrant disregard of the law. I am especially outraged that Judge Godot never attended oral argument, and the opinion has been written without any indication he has read the papers or discussed the case with the other panel members. Such a disregard for justice is Kafkaesque, to say the least.
Perhaps the most ironic opinion pertaining to Josef K. is a real one by the U.S. Supreme Court. In Joe Kafka v. United States, 121 S. Ct. 1365 (2001), the U.S. Supreme Court issued its typical one-sentence order, denying certiorari without explanation: “The petition for writ of certiorari is denied.” Recall the parable in The Trial: “Before the Law stands a doorkeeper. . . . The doorkeeper sees that the man is nearing his end, and in order to reach his failing hearing, he roars to him: ‘No one else could gain admittance here, because this entrance was meant solely for you. I’m going to go and shut it now.’” A one sentence denial of cert., without explanation . . . how appropriate for Josef “Joe” K.
Wednesday, June 22, 2005
Unbreak the Omelette
Jurors in the trial of former HealthSouth CEO Richard Scrushy, deliberating for around a month, have been told to "start from scratch" after an alternate joined their discussions.
While we're at it, I think that Republicans should "keep an open mind" on the nomination of Judge Pardo to the Supreme Court, Mickey Kaus really ought to "rethink his snarky hatred for John Kerry," and India and Pakistan would be better off if they "just forgot about" the last 50 years of discord over Kashmir.
I mean really, how is that jury instruction going to work? Plus, if I were that alternate, I would feel like the kid who gets transferred into an elementary school class halfway through the year: picked last in whatever is the jury-equivalent of dodgeball every time. Not that there is ANYTHING wrong with getting picked last in dodgeball.
[Incidentally, yesterday I linked to the story of the lions who saved the little girl from criminals and then guarded her until the cavalry arrived. On mature reflection, I feel pretty certain that the story was a marketing stunt for this upcoming movie.]