Sunday, July 31, 2005
Posner's "Bad News"
Judge Richard Posner has this essay, "Bad News," in today's New York Times. Posner considers the "why", and also the "so what", of what he describes as a number of "trends" in media-and-politics, including the rise of "new media", the increasingly common charges - hurled from the left and right -- of political "bias" in the media, the alleged decline in civility, the increase in polarization, etc. The essay is, no surprise, a fascinating read.
The essay is full of other provocative observations. For example:
The current tendency to political polarization in news reporting is thus a consequence of changes not in underlying political opinions but in costs, specifically the falling costs of new entrants. The rise of the conservative Fox News Channel caused CNN to shift to the left. CNN was going to lose many of its conservative viewers to Fox anyway, so it made sense to increase its appeal to its remaining viewers by catering more assiduously to their political preferences. . . .
Being profit-driven, the media respond to the actual demands of their audience rather than to the idealized ''thirst for knowledge'' demand posited by public intellectuals and deans of journalism schools. They serve up what the consumer wants, and the more intense the competitive pressure, the better they do it. We see this in the media's coverage of political campaigns. Relatively little attention is paid to issues. Fundamental questions, like the actual difference in policies that might result if one candidate rather than the other won, get little play. The focus instead is on who's ahead, viewed as a function of campaign tactics, which are meticulously reported. Candidates' statements are evaluated not for their truth but for their adroitness; it is assumed, without a hint of embarrassment, that a political candidate who levels with voters disqualifies himself from being taken seriously, like a racehorse that tries to hug the outside of the track. News coverage of a political campaign is oriented to a public that enjoys competitive sports, not to one that is civic-minded.
In light of Ron's recent post on blogging by law profs, Posner's discussion of blogs, their role, and their effects is particularly interesting:
The latest, and perhaps gravest, challenge to the journalistic establishment is the blog. Journalists accuse bloggers of having lowered standards. But their real concern is less high-minded - it is the threat that bloggers, who are mostly amateurs, pose to professional journalists and their principal employers, the conventional news media. . . .
What really sticks in the craw of conventional journalists is that although individual blogs have no warrant of accuracy, the blogosphere as a whole has a better error-correction machinery than the conventional media do. The rapidity with which vast masses of information are pooled and sifted leaves the conventional media in the dust. Not only are there millions of blogs, and thousands of bloggers who specialize, but, what is more, readers post comments that augment the blogs, and the information in those comments, as in the blogs themselves, zips around blogland at the speed of electronic transmission.
This means that corrections in blogs are also disseminated virtually instantaneously, whereas when a member of the mainstream media catches a mistake, it may take weeks to communicate a retraction to the public. . . .
The charge by mainstream journalists that blogging lacks checks and balances is obtuse. The blogosphere has more checks and balances than the conventional media; only they are different. The model is Friedrich Hayek's classic analysis of how the economic market pools enormous quantities of information efficiently despite its decentralized character, its lack of a master coordinator or regulator, and the very limited knowledge possessed by each of its participants. . . .
There's a lot more. I have to admit, I'm not really sure where I stand on the "isn't all this new media great!" v. "we're a nation of sensation-consuming, polarized idiots" debate. It seems to me that many people -- who regard themselves, quite confidently, as informed and intelligent -- are utterly ignorant; that the rise of the internet and talk radio has led to a more cacophonous and more conflict-oriented public conversation, and also that the effective monopoly the big networks and the leading newspapers enjoyed for a while was unhealthy. I guess, on balance, I think things are better now -- after Drudge, Fox News, and Rush Limbaugh -- than they were before. In class, I try to encourage some Schauer-esque skepticism about the "marketplace of ideas" argument; still, there seems to be no avoiding the point -- made by Posner -- that increased competition in the media seems to result both in the expression of more (erroneous) opinions and the exposure of more opinions as erroneous.
More Homely Men in Ads
According to this story from "Sky.com", "[d]rinks companies [in the UK] have been ordered to use uglier men in their advertising campaigns. The Advertising Standards Authority believes "balding" and "paunchy" men would be less likely to encourage women to drink to achieve social success. The new advertising code stresses that links must not be made between alcohol and seduction."
The story continues:
A campaign for popular sparkling drink Lambrini has become the first to fall foul of the new rules.
The Authority objected to a poster which showed three women "hooking" a slim, young man in a parody of a fairground game.
The industry regulator instructed the firm: "We would advise that the man in the picture should be unattractive - ie overweight, middle-aged, balding etc.
"In its current form we consider that the ad is in danger of implying that the drink may bring sexual/social success, because the man in question looks quite attractive and desirable to the girls.
"If the man was clearly unattractive, we think that this implication would be removed from the ad."
Lambrini owner John Halewood said the Authority should not be in the business of defining who was and was not unattractive enough to star in ads.
He said: "It makes some very understandable rulings to encourage sensible drinking but we're not sure they're qualified to decide for the nation who's sexy and who's not.
"Sexual attraction is happily one of the few things in life that can't be governed."
I can't help wondering if this is a joke. (That said, a regulation like this would be in the interest of men with hairlines like my own). In any event, I am reminded of a really good essay, by Judge Alex Kozinski and now-Professor Stuart Banner, called "Who's Afraid of Commercial Speech?" In the course of knocking down (pretty effectively, in my view) some of the standard arguments against according full free-speech protection to "commercial" speech, Kozinski and Banner have some fun with those old Michael J. Fox Diet Pepsi ads.
The Nebulous and the Constitution
Because of its long lasting, and yet in some ways subtle, effect on the law and society at large, as well as its connection to our field, the nomination of a Supreme Court justice is one that is of particular interest to legal thinkers. Little seems to be known about the President Bush’s nominee, Judge John Roberts, with the exception of the refrain that he favors judicial restraint. His views on judicial restraint hold that the courts should limit the controversies into which they inject themselves, avoid deciding more than the narrow matters necessary to decide the cases before them, and avoid reading new rights into the Constitution. Instead, judges should limit judicial inquiry to asking whether the statute is a valid act of legislation, that is, merely whether the Constitution allows certain legislative acts.
While many are sympathetic to the caution promoted by Judge Roberts' position, this popular conservative view on judicial restraint presents two distinct problems, both of which push legal argument towards constitutionalization from different directions.
The first problem is that even in the paradigm of judicial restraint, Judge Roberts and others endorse a deference for precedent and a respect of the coherence of law which may inherently be in tension with the other values envisioned by advocates of judicial restraint. Because precedent and coherence are valued, there is a Dworkinian or Interpretivist impulse to extrapolate or extend new rights from related prior jurisprudence. Thus coherence, by allowing the extension of rights which naturally spring by analogy from settled bodies of law, may undermine some of the restricting value of judicial restraint. Obviously, Roe and Griswold are (prime) examples but many less controversial rights will more naturally extend from the law which precedes. It is of course possible that in many places coherence will counsel for the restriction of rights as well. However, if there are some base line rights, coherence provides a powerful tool to reason why the extension of rights fit into that body.
The second problem involves what I term the "con of original intent," that is the view that by adhering to a restricted “original intent” model of the Constitution, conservatives have taken a neutral view, while liberals, who seek to ground new rights in the Constitution are somehow radically foisting new rights onto society at large. The truth is because the Constitution is silent on many issues, most especially those that by way of modernization could not have been envisioned by even the sagest of historical legislatures, a decision that a right is not recognized by the Constitution’s original intent is no more neutral than a decision that it is. Deciding that neutral silence means denial is no less a political decision, in need of defending, than to argue that a right ought be recognized.
The neutrality of silence presents another important tension with judicial restraint. If the Constitution is silent on many matters, where then in the legal sphere can conceptions of new rights be born? Even if sympathetic to the view that the legislature is responsible for the democratic governing of society, this view ignores what people mean when they argue for speak of having a “right.” Of course we recognize that a benefit, once conferred, legislatively or otherwise, may give rise to certain related rights. Still, those who believe in a right are arguing for something deeper. The very soul of a right, to borrow the phrasing, is that one need not approach as a supplicant asking for favor, but rather one may insist on their due. Those who believe in a right, the woman who demands she not be discriminated against or the home owner who demands that the government return his property, believe in it precisely because it need not be legislatively or democratically granted. If this is true then judges perform a critical function in recognizing rights that cannot be held hostage to democratic consensus.
Some people, of course, believe that “rights” talk is greatly over used in any case. Bentham famously termed talk of natural rights as “nonsense on stilts” and an extremist may argue that rights may not be found but rather only democratically (or using some other comprehensive world view) recognized. Yet this is at least a controversial view and must be defended from the powerful arguments of those who insist on a right which transcends democratic consensus. And it is the absence of any other field in which to ground our rights talk in the legal sphere that so quickly leads to the contitutionalization of much of our legal discourse.
This is not a popular opinion today; conversation is centered around the idea of judges run amok. I am sympathetic to the threat to democracy posed by judges creating new rights outside of the legislative process. But I do wonder, where in this quiet landscape could one turn for the recognition or at least argumentation of previously unrecognized rights? Does this view of judicial restraint and the Constitution allow for important debate and the emergence of not just legislative governance, but of our rights?
Saturday, July 30, 2005
Why Identity Theft Isn't Pretty
CNET News reports on a new survey by Nationwide Mutual Insurance that illustrates just how much trouble, aggravation, and downright pain identity theft causes victims:
Twenty-eight percent of victims have been unsuccessful in restoring their reputations, despite trying for more than a year on average, the Nationwide Mutual Insurance said in a report released Tuesday. The survey, which polled close to 1,100 victims, indicated that people spend an average of 81 hours working to resolve their cases. "The survey shows that recovering from identity theft can be difficult, costly and stressful, but what is most alarming is that despite the time, money and personal duress victims go through, resolution is not always achieved," Kirk Herath, an associate general counsel at Nationwide Mutual, said in a statement. More than half of all victims discovered the identity fraud themselves after noticing fraudulent credit card charges or withdrawn funds, the report indicated. It took respondents an average of five-and-a-half months after the first incident to discover the crime. Just 17 percent were notified by a creditor or bank of suspicious activity on their account. The average sum of charges made to victims' accounts as a result of identity theft was $3,968, according to the survey. While most respondents were not held liable for the charges, 16 percent report that they had to shoulder some or all of the cost. Forty percent of respondents listed police, banks or credit issuers as difficult to work with when attempting to resolve the problem. . . .
Twenty-eight percent of victims have been unsuccessful in restoring their reputations, despite trying for more than a year on average, the Nationwide Mutual Insurance said in a report released Tuesday. The survey, which polled close to 1,100 victims, indicated that people spend an average of 81 hours working to resolve their cases.
"The survey shows that recovering from identity theft can be difficult, costly and stressful, but what is most alarming is that despite the time, money and personal duress victims go through, resolution is not always achieved," Kirk Herath, an associate general counsel at Nationwide Mutual, said in a statement.
More than half of all victims discovered the identity fraud themselves after noticing fraudulent credit card charges or withdrawn funds, the report indicated. It took respondents an average of five-and-a-half months after the first incident to discover the crime. Just 17 percent were notified by a creditor or bank of suspicious activity on their account.
The average sum of charges made to victims' accounts as a result of identity theft was $3,968, according to the survey. While most respondents were not held liable for the charges, 16 percent report that they had to shoulder some or all of the cost. Forty percent of respondents listed police, banks or credit issuers as difficult to work with when attempting to resolve the problem. . . .
In short, our information infrastructure is tremendously vulnerable to identity thieves and it is also not very good at helping victims of identity theft clean up the mess. So there are problems in prevention and problems in redress. Needless to say, that's not a pretty picture.
Friday, July 29, 2005
Blogs and Academic Disciplines
Today marks the end of my two-week stay as a guest-blogger here. I'm grateful to my hosts and to everyone who's reading along.
Let me close with a quick reflection on blogging by law professors. Nicole was asking earlier about the relationship between law school professors and "real" university professors. I think the connection between blogs and an academic discipline offer one way to answer her question. The more that blogging can displace an academic discipline, the less that discipline can be said to resemble the "real" work of a university professor.
Blogging is changing journalism profoundly, displacing media employees with a swarm of analysts and fact checkers. Bloggers decentralize much of the analytical work of the MSM journalist, and even some of the fact-gathering work. Will it do the same for academic disciplines?
It's hard to imagine that blogs will seriously affect work in some fields, particularly physical sciences. Perhaps blogs could serve as a forum to popularize work in some social science disciplines. This could happen either by publication on the blog of shorter and less nuanced versions of full-blown academic work, or by commentary that connects serious academic work with current events (Brad DeLong's blog and Dan Drezner's blog are nice examples of the latter).
But what if analysis of current events essentially defines an academic discipline? To the extent that legal scholars comment on Supreme Court decisions or current legislative debates, a pithy blog entry (or a set of ten connected blog posts) creates real competition for the 50-page article. As legal academics work out the relationship between blogging and other scholarly activities, both the topics we study and the methods we use will change. I predict that the need to differentiate legal scholarship from blog commentary will speed up our reliance on analytical methods from other disciplines. It will also shift the favorite topics for inquiry away from last year's Supreme Court Term and the legislative debates that are already covered in the news.
I'm not saying that blogging and academic work will become antagonistic. But legal scholars will need to show how the blog format serves as a supplement to their other academic work, and not an efficient replacement for much of that work. If that distinction does not become obvious to readers, legal scholars will look more and more like misfits in the university.
Light blogging explanations:
Prawfs readers at the conference, please say hi!
In response to Rick's post, I too am be curious how many people can identify personally influential cases. As a young lawyer and law clerk, I was known (and teased) for always getting outraged about some indignity perpetrated by the government against the little guy. (Street-vendor harassment was a particular pet peeve.) Anyway, as the other Prof. Garnett (OPG, as the students say) knows well, I've been outraged about the Poletown case ever since Bob Ellickson's Property class in 1993. The very idea that the government could displace 3500 people because a private company asked them to do so just blew my mind.
I guess it is fair to say that Poletown really did shape, and continues to shape, how I think about the law. Ever since that class discussion of Poletown, I haven’t stopped worrying about the way that the law – especially economic policy – can work to the detriment of the "little guy." (I might almost be one of Ron Wright's liberation libertarians!) This worry led me to work for two years as an attorney with the Institute for Justice; and it has influenced the course of my own scholarly work. Now, admittedly, my views have been somewhat tempered over time. I still think Poletown was an outrage, but I now understand why Detroit thought it needed to do what it did. (For a recent discussion of the problem, see Bill Fischel's excellent short essay on the case.). I also have come to realize, through my own work, that the "answer" to the public-use problem is more difficult than I thought as a second-year law student. Perhaps this is why I was much less outraged about Kelo than about Poletown, although I am hopeful that federal and state legislators will follow through on their promises to limit the eminent domain power.
Indeed, my conservative (small and large C) leanings lead me to conclude that, most of the time, the courts may not be the best place to resolve these problems. This is why much of my work focuses on critiquing -- and proposing legislative reforms to -- regulatory policies that are generally under the radar screens of "law" professors. (The legal academy’s general disregard for these state and local policies is itself a shame because these policies are the ones that shape the daily lives of regular people – Oh, here I go getting outraged again.)
Thursday, July 28, 2005
Energy Bill Nightmare for a Liberation Libertarian
Let me offer a thought experiment, one quick way to spot legislation that might find appeal across traditional political lines. Start with one part libertarian: a general presumption that government fails, and fails more often than markets because it fails to account over the long haul for the corrupting influence of human foibles. Add one part liberation theology: despite the strong prospects for government failure, people should remain alert for ways to use the law as a "preferential option for the poor." Where the law can intervene (especially temporarily) to improve the long-term prospects for the poor (education and a decent and equitable criminal justice system are classic examples), we should not hesitate.
Now imagine what such a Liberation Libertarian might say about the amazing pork-barrel Energy Bill that the House just passed. It fails on every count. It does not prioritize for the poor and it does not recognize the probable long-term failure of government action. Just the opposite: the bill directs tax dollars indiscriminately at every sector of the energy industry, based on a futile hope that some of the extra cash will result in more production and innovation.
Any examples of bills from the current Congress that could appeal to a Liberation Libertarian?
Law professors within a university
A few months ago, I attended a gathering of young law profs at Georgetown. At the meeting, we discussed Stephen Feldman's provocative article, The Transformation of an Academic Discipline: Law Professors in the Past and Future (or Toy Story Too), 54 J. Leg. Ed. 471 (2004). (Some of the PrawfsBlawg contributors, past and present, were in attendance, so I apologize in advance if I am repeating an old conversation.)
Feldman asserts that we law profs have traditionally thought of ourselves as lawyers, when are actually university professors. We can't quite figure out how to be university professors, however. Hence, we are undergoing a crisis of identity -- which Feldman cleverly analogizes to Buzz Lightyear discovering that he is actually a Toy, rather than a real Space Ranger.
When I returned from the meeting, I recommended the article to a number of colleagues. Now, in a classic example of "no good deed goes unpunished," I've been drafted to lead a discussion of the article for our faculty in a couple of weeks. This has prompted me to think more seriously about Feldman's claims -- and to seek other views about a law prof's place in the university. I wonder if our problem might be a slightly different one: We (rightly, in my view) view ourselves as university professors, but our colleagues in other departments think that we are just lawyers. (They would argue that we lack their rigorous academic training, etc.) Using Feldman's Toy Story analogy, "real" university professors believe that law professors are the deluded Buzz Lightyear. We are simply pretending to be something that we are not. I am correct about other discipline's view of the legal academy, how should law professors claim their place as "real" professors within research university? How will the influx of more J.D/Ph.D.'s affect the perceptions of "mere lawyers" who are legal academics?
Can Roberts Hate Roe?
Some remarks from Todd Zywicki on Roberts and Roe here. They are as good a hook as any on which to hang this question that I've been thinking about. I take the view that it is perfectly acceptable for a Senator to vote against Roberts if they believe he would vote to overturn Roe v. Wade, or if they are not confident he would vote to uphold its core principles. I might not cast the same vote but consider it an acceptable reason to vote no. (Of course, the contrary proposition holds true as well: a Senator may choose to vote for him on the information or belief that he would vote to overturn it.)
But in the view of Senators (and others) who take this position, is Roberts obliged, or should he be obliged, to like it? Some of the public talk on this issue seems to suggest that support for not only the outcome, or the precedent, but the opinion itself ought to be demanded of Roberts. But what if he thinks it's a lousy opinion? Can he say so? Should a Senator who thinks of abortion rights as a "can't help" issue vote against him if he says the opinion is a poor piece of work? I can understand why a pro-choice Senator would not be inclined to do so -- but this seems ultimately to lead to the requirement that he not only like abortion rights, or think there is some settlement interest in leaving them more or less undisturbed, but further that he favor the Roe opinion itself.
This seems to me understandable, but it leads to a kind of perverse result. Lots and lots of legal academics, including liberals, take the view that Roe was a poor opinion. (This is not directly on point, but see here for a summary by editor Jack Balkin of his new book called What Roe v. Wade Should Have Said.) Of course, the stakes are considerably different -- but it seems to me we are in a position in which many well-meaning folks want a smart Justice, but also want that Justice to applaud an opinion (or at least believe he should not be confirmed if he does not applaud it) that smart legal academics of all political stripes think is not one of the Court's finest moments. Unlike Brown or Lochner, a liberal law professor may hold a variety of views on Roe (although not necessarily on abortion) without being kicked out of the club. Is Roberts also so entitled? May he answer a question on Roe by saying he thinks it's poorly reasoned, for the reasons John Hart Ely supplied; or that, like others, he thinks that an abortion right, if it exists, more likely springs from the Equal Protection Clause than the Due Process Clause? Are people who take support for Roe as a litmus test saying, "We'd like the guy to be smart -- except about this case?" Again, note that he might support Roe for reasons of precedent or reasons of social settlement; but shouldn't he be entitled to criticize the opinion itself without necessarily facing the sword of Damocles?
What case(s) "shaped [your] psyche"?
This blog post asks the question, "[w]as there a particular case -- a Seminal Opinion -- that strongly
Stuntz on the Court and Criminal Procedure
I'm nothing like an expert in the area, but I love teaching constitutional criminal procedure. And, in my view, Professor Bill Stuntz is one of the more interesting, thoughtful, and helpful scholars working in the field. So, I appreciated this recent essay, "Police Powers," posted on the New Republic's web site. Here's the heart of the piece: "Which means that the Supreme Court's most important job is not managing the culture wars. Regulating the never-ending war on crime is a much bigger task. Alas, it may also be the job the Court does worst."
What follows, though, is not at all predictable -- at least, not if one expects either a standard "conservative" critique of the Warren and Burger Courts' criminal-procedure decisions or a standard "liberal" critique of the Rehnquist Court's re-working of those decisions. For example, Stuntz lumps the Kyllo case -- a Scalia-authored, "pro-defendant" ruling that the use of a thermal imager to detect heat emanating from a house was a "search" regulated by the Fourth Amendment -- with Wardlow, a "law and order" case recognizing that a person's "flight" in a "high-crime area" can create "reasonable suspicion" sufficient to justify a stop-and-frisk. As Stuntz points out, both cases "make it a good deal easier for the police to make drug busts on poor city streets than in the suburbs."
Stuntz also laments that "[c]riminal trials have grown so cumbersome (and budgets so strained) that hardly anyone uses them," and that "the Court has imposed elaborate rules governing nearly every aspect of criminal trials, from jury selection to sentencing. That makes trials more expensive." His point is not the usual "conservative" one -- i.e., "the bleeding-heart judges are clogging up the works with technicalities" -- but a (I think) much more interesting one, namely, that the creation of "defense-friendly" rules of criminal procedure and exclusion can have the unfortunate result (by making trials expensive, and creating litigation incentives unrelated to factual innocence, and pushing more than 90% of cases to guilty pleas) of depriving criminal defendants of the benefits and values of a jury trial.
There's a lot more to the essay; I highly recommend it. I know that many of my Prawsblawg colleagues actually are criminal-procedure experts. Any thoughts on Stuntz's essay?
Race, Liberalism and Backpacks
As this is my first experience in blogging, I approach this note with more than a little anxiety. In particular, quickly putting together one’s thoughts on sensitive and complex subjects nearly assures all sorts of mistakes.
That said, among the topics of the day is the interesting conversation surrounding the beginning of random bag searches for portions of the New York subway. Daniel Solove and Dave Hoffman have already begun an intelligent conversation here regarding the efficacy of such searches. I have little to add to the topics they have already discussed; I largely share Solove’s suspicions that these measures will be ineffective and are largely cosmetic.
One point they both set aside, however, deserves more attention. Specifically, Solove writes, “Now, of course, let’s assume that the searches are not done using some kind of racial profiling – that they truly are random. If they’re not, then we need to address the profiling issue, which involves another cost Dave isn’t accounting for.” This comment speeds by one of the most sensitive issues raised by, though obviously not limited to, these searches.
I am particularly sensitive to this particular “cost”. Like nearly all Black people, I am familiar with the impossible to describe feeling of being suspected, dismissed or belittled in numerous little ways due to one’s race. To submit untold numbers of Middle-Eastern or South-Asians, as is likely in this case, to the same feeling and to transform New York into an officially sanctioned racial hierarchy, is a deeply offensive thought. And so, we probably all are sympathetic to the Times editorial cautioning against allowing the violation of constitutional rights by targeting racial groups.
That said, it is too much to ignore the potential tension between profiling and law enforcement effectiveness. It is unknown to me how much racial profiling in this, and other cases that in the last few years have been brought to the fore, contributes to law enforcement effectiveness. It is possible, perhaps even likely, that given the sheer number of any given group, the difficulty in intelligently identifying members combined with the low number of offenders, racial profiling has little or no effectiveness. Because the benefit is trivial, any tension becomes negligible and our commitment to equal treatment and dignity means we obviously discard the profiling.
However, the real test comes
where profiling can lead to greater effectiveness against a genuine harm. It seems likely (though McVeigh reminds us not certain) that the next terrorist attack will come from a radical Muslim. This at least introduces the tension raised earlier. Let us set aside, momentarily, whether one could intelligently identify Muslims, especially one in a city like New York who was committed to blending in, even while acknowledging that this issue may be dispositive.
We can imagine a world in which our effectiveness of preventing attacks would increase by targeting those identified as Muslims. Where then is the locus of our objection to profiling, whether the objection is Constitutional or on other moral grounds? Further, is our objection subject to weighing or is it an (near) absolute ban?
Our objection, obviously, is not merely in the pragmatic harm caused. This is true even where that burden rises to very high levels. Nor does the intuitive answer, that one is being punished for who they are and not what they have done provide the complete answer. Imagine that we found that we had preliminary evidence that Dutch citizens in New York were carry a virus dangerous to the general population. Though the burden greater and the trait equally inherent, many more, I suspect, would be comfortable with the idea of a quarantine of the Dutch population of New York in such a case.
The immediate observation will be that one action seems like quasi-criminal/police action or punishment, and the other, while burdensome, is not. Without entering into the thick jurisprudence exploring the nature of punishment, this intuition seems to best capture our objection to subjecting a particular group to a form of police monitoring. More subtly, it focuses on the difference in how the state regards its citizens in the two above examples. In one example, the state’s quarantine of potential virus carries lacks the disapprobation of decreeing a portion of the population as potential terrorists or criminals. It is both what the action communicates about and how the state treats its citizens which is critical. For the state to officially decree that one group of citizens ought to be treated as potential criminals, even where there may be factual reason to do so, is an attack on a citizen’s equality and dignity we are loathe to bear.
So it is obvious that it is not the burden itself but rather the nature of targeted searches that makes them objectionable. The tension which tests this commitment is our commitment to equality is at odds with more effectively acting, in this case, more effectively preventing another terrorist attack. Is our commitment to equality absolute or does it allow for some measure of weighing? And if we must weigh this commitment and in some cases surrender it, has our commitment to liberalism failed?
It bears repeating that I do not support targeted searches on the New York subways. As mentioned above, the benefits are almost certainly too trivial to sacrifice such a deeply held value. Further, in nearly all cases, there seems to me ways of balancing both effectiveness and our concern to equality, even if at the cost of greater resources. This illustrates that the weight we give to a citizen’s claim of equality is so great, it commands great deference before it is set aside.
Still, I cannot be certain that our commitment is one that does not allow for any weighing. There must be certain situations where the perfect storm of circumstances may require the imposition of unequal treatment of some in order to respect the claim to equal consideration by others; in this case for their safety. Without knowing the details (a dangerous platform from which to continue) border searches of suspected attackers in high-risk zones (Israel comes immediately to mind) does not immediately appear illegitimate.
What then does this mean for our concept of the state’s duty of equal respect and our commitment to this liberal ideal? Political philosophers, notably Kymlicka, have struggled with this question. I once suspected that where a society was forced to surrender portions of their basic liberal commitments, in this case, the equal treatment of all citizens, the liberal experiment had failed. My position has since changed. It occurs to me that if a society, committed to its liberal commitments, surrenders only the smallest necessary portion in order to ensure the survival of the society itself, its liberal nature is not erased. Rather, it has simply reached those outmost bounds of its liberal ideals possible at the time. The charge, of course, is the continual examination that each inch surrendered is absolutely necessary, and the relentless drive to realize, as early as possible, those liberal ideals we hold dear.
Wednesday, July 27, 2005
A Few Words on "Divided By God"
I promised yesterday a mini-review of Noah Feldman's recent book, Divided By God: America's Church-State Problem -- And What We Should Do About It. Like a number of other readers, I am more convinced by what lies on the left side of the hyphen in the title than on the right, although the "what we should do about it" part ultimately makes up only a small part of the book. Still, I am not sure Feldman would have published it but for the concluding chapter (and certainly not with Farrar, Straus & Giroux), so I think one can be forgiven for focusing on it a little.
I don't have the book in front of me and so won't go into it at length; please pardon me for any consequent crudeness in my discussion. As I suggested, it's a very fine history of church-state issues in America, and serves a valuable function of setting out the ways in which coalitions have formed and shifted, coalescing around different shades of ideas. In short, it suggests that the debate has been a moving target, both in terms of the constituencies on either side and the nature of their respective views. It certainly makes clear the centrality of immigration to this evolving process. And I agree with that portion of Feldman's conclusion that suggests that religious views ought to be welcome in the marketplace of ideas, including political debate and decision-making, although my sense is this idea has become less controversial in the legal academy over the last 20 years.
In his conclusion, Feldman argues (in a crude nutshell) that in order to resolve the church-state impasse, the Court should more or less completely reverse itself. On the one hand, legal secularists should surrender on the issue of whether the Constitution permits “public manifestations of religion,” allowing greater use of religious language in such matters as the Pledge of Allegiance, as long as the state does not act coercively. On the other side, values evangelicals should accept a constitutional rule forbidding the use of any government money to support religious institutions, even if the money is distributed on a neutral basis, as with school vouchers. In short, “no coercion and no money” should be the slogan of a reshaped church-state law.
I have some problems with this conclusion -- after the jump....
I have two fundamental problems with Feldman's conclusion. The first is that it is difficult to tell whether Feldman's solution is as radical as it sounds. If he means what he says, it would signal a significant change on both sides of the equation -- symbolic support and funding. But if one reads the book carefully -- and again, it's not before me as I write -- it seems to me there is at least some evidence that his proposal would maintain a lot of the decisions striking down public symbolic support for religion, and might not sweep as broadly as he threatens on the funding side of the equation either. I think this tendency in his book is probably more preservative of current law on the symbolism side than on the funding side, but there are some indications that more of the status quo would be maintained on both sides than his slogan would suggest. If this is so, one might question either whether there is any need to rethink the doctrine if the law is going to remain more or less the same, or whether he might convince people to sign on to his solution without understanding the precise nature of the deal he's proposing. I don't mean to accuse him of bad faith, as it's quite clear this is a fair and thoughtful book. But I think he would have been well served to be far more specific about what practices stay or go under his proposed settlement of the church-state debate.
Assume, though, that he means what he says and that he really would change current law in both the symbolism and funding areas. I have some problems with this. The first, quite bluntly, is that I find myself more or less sympathetic to some version of the current settlement -- in which religious speech linked in some ways (whether by endorsement, coercion, etc.) to the state is greatly circumscribed, religious speech in public fora is broadly and presumptively permitted, and religious institutions are broadly entitled to equal access to funding and participation in the public sphere. Feldman does not convince me this settlement is wrong. Second, he suggests that his proposal is valuable because it will reduce religious strife. I think he is mistaken about this. Indeed, I don't want to personify myself as the classic reasonable man, but I find I would be upset by both aspects of his solution: by the privileging of state-supported religious speech and the diminution of equal access to funding for religious institutions. I simply don't think either side would be satisfied by the proposal he makes. To the contrary, I think one of the lessons of his book is that, given the perennial nature of the debate on church-state issues, changing the compromise simply resituates the debate elsewhere, in slightly different terms.
I thus agree with Rick, who questions Feldman on the funding side of the equation. (See here.) But (perhaps unlike Rick, who had less to say about this aspect of the proposal) I also disagree with Feldman on the symbolic speech side. Again, much turns on what, precisely, Feldman would or would not change in current law. But I think he is too glib in saying that the kinds of injuries involved in such issues are really just "an interpretive choice to feel excluded by the fact of other people's faith." There may be circumstances in which this is true, but there may be others in which the feeling of exclusion is both reflexive and quite appropriate -- is, in fact, the right interpretation. (In thinking about this as I read the book, I found myself thinking back to footnote 1 of the Santa Fe Independent School District v. Doe case. There's a reason Doe is a "Doe" here, and it doesn't just turn on interpretive choice.)
As I said above, I think lots of folks already agree with Feldman that religious views ought to be welcome in the public/political sphere, so this aspect of his proposal should be uncontroversial -- but I don't think this assertion inevitably leads to the deal he proposes. Thus, although I am sympathetic to this aspect of his argument, I just don't think it's much of a player in his discussion. Really, the meat of the work in the conclusion lies in the symbolic/funding areas, and I was not convinced on these parts of his argument. However, as I said at the outset, that's just one chapter of an otherwise valuable book.
Government statements about "true religion"
One of my favorite blogs is run by the University of Wisconsin's Prof. Ann Althouse. A few days ago, she had a post called "When government says what the 'true religion' is," commenting on Prime Minister Tony Blair's recent statement in the wake of the 7/7 bombings that the "moderate and true voice of Islam" needs to be "mobili[z]ed." Ann asks, "how can [Blair] say what the true interpretation of a religion is?" Similar questions were raised, a few months ago, by Eugene Volokh, regarding a proposed sex-education curriculum in Montomery County, Maryland. The proposed curriculum supplied "facts" -- including "facts" about religion -- designed to counter certain prevalent "myths" about homosexuality.
What should we think of Blair's comments? On the one hand, it seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines. (I wrote an article about this interest a few years ago). In fact, it seems to me that liberal governments have an interest in convincing people -- whether they belong to the religion in quiestion or not -- that the religion in question really teaches in accord with liberal values. After all, religion matters to many people, and it shapes the citizens on whose judgment democratic governments purport to rely. It is better, then, that religions inculcate some values, commitments, and loyalties rather than others. As I wrote in my article,"Governments like ours are not and cannot be 'neutral' with respect to religion’s claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching." On the other hand, there's the longstanding maxim that governments like ours should not -- and perhaps even may not -- take "cognizance" of religion, or "entangle" themselves with religion.
What do people think? Would it be wise or wrong [or unconstitutional?] for a government to undertake, as a matter of policy, to push the doctrines of a particular religion in a government-approved direction, or to support a particular government-approved faction within a religious tradition, in order to serve what the government regards as the common good?
Look into past cases
My Hastings colleague Vik Amar has contributed to the ongoing debate about what counts as proper questioning of a Supreme Court nominee in The New York Times. In short, he argues that we might address some concerns by asking what Roberts would have done in recently decided cases, rather than asking forward-looking questions, which tend to be easy to dodge--and rightfully may be seen as asking a judge to precommit to views, precisely what we do not want in an impartial judge. I like Vik's contribution. For more on this subject, see the Legal Affairs debate club on the subject here. For various PrawfsBlawggers' positions, see here and here.
"Meat Market" Advice
One of the many valuable things about Prawfsblawg has been the on-and-off discussion about the law-faculty-hiring process, particularly the so-called "Meat Market." (For example, Bernie Meyler recently posted some helpful advice about staying well-snacked during interview days). I'd like to impose on my fellow bloggers for some more such advice: I'm serving this year on Notre Dame's appointments committee, so I'll be on "the other side" of the game in Washington. I wonder if any bloggers or readers who've recently endured the process have any thoughts about questions that the committee members should have asked? Having gone through the interviews, are there particular questions, or lines of questioning, that were effective in inviting you to reflect, and talk about, your scholarly goals and your hopes for teaching?
Rove’s Nickname, Doonesbury, and a New Four-Letter Word
About a dozen papers objected to Tuesday's and Wednesday's "Doonesbury" comic strips, and some either pulled or edited them.
The strips refer to Rove, the White House deputy chief of staff, as "Turd Blossom." . . .
The term is said to be one of several nicknames Bush uses for Rove, one of his closest allies and who is widely credited for Bush's election in 2000 and re-election in 2004. The mainstream U.S. media have rarely mentioned the nickname, but it has gained traction in the international press and on the Internet.
Since when is “turd” is a four-letter word? I guess since always, but now in more ways than one. I can think of many terms for Karl Rove, and “Turd Blossom” is much nicer than any of them.
Quick Programming Note
Just a quick word of welcome to Rick Garnett who appeared on these pages earlier today; I'm glad to say that we're also getting a stint from Nicole Stelle Garnett, who will be joining us here shortly. I thought it would be fun to get the family perspective on law teaching by bringing in a dynamic wedded duo. It's not everyday that we have both a former Rehnquist and a Thomas clerk in our center-left midst, so we'll try to stay on good behavior in the name of pluralism.
Severed Heads in Tallahassee? Again!
Thanks to David Zaring, a Prawfs alum who's off to Washington and Lee to start teaching, I came across this interesting article about FSU's creative writing program, which is apparently regarded as one of the best in the biz. The article is a
story about how FSU's young creative writing program has become during the past five years what some believe to be the best in the country, overshadowing the University of Florida's, Florida International University's and even possibly the granddaddy of creative writing programs, the University of Iowa's. It did it with the help of patent money from the cancer drug Taxol, developed by an FSU scientist; the energy from pontifical mobster writer Mark Winegardner; and support of an established and respected English department. In 1997, U.S. News and World Report ranked creative writing programs. FSU's came in 37th. In 2007, the National Research Council will publish a new ranking of creative writing programs. FSU unabashedly plans to win that race. While other schools downplay competition among programs, FSU puffs out its chest, plumps up its feathers and struts. ''What we never were before was a program that could make a legitimate claim of being the best in the country,'' said Winegardner, who recently stepped down as director of the creative writing program after writing The Godfather Returns, a continuation of Mario Puzo's legendary mobster saga. 'I defy you to find a faculty that is better in terms of quality and quantity of awards and publishing. You cannot get any better than FSU.''
Well, I'm happy to see that FSU's writing program is doing so well, and even more, that its publicists have been so successful. (Note to Dean Weidner: Hire them!) Seriously, this kind of peacockery is a bit unseemly.
(Ed.: But, perhaps, so is a blog with a category entitled "Funky FSU.") What is cool is how seed money invested wisely can pay off in such a short while. Are law schools too sluggish to dance as nimbly? Paul Caron (and his co-author and colleague, Rafael Gely) have written interestingly on that subject, using Moneyball analysis.
In any case, the story about FSU made me laugh; and it then made me wonder how Alafair Burke managed to pump out three crime novels in the last few years while at the same time keeping up her day job as a Hawfstraprawf. I had hoped Alafair was going to to be at the Junior CrimProf gathering I'll be presenting at later this week at GW being hosted by Orin Kerr, Rachel Barkow (NYU, law), and another Prawfs alum (and my co-author), Jennifer Collins (WFU, law). But I just realized, to my chagrin, Alafair won't be there. New Orleans perhaps? At least there, there will be a discussion on "Blogging: scholarship or distraction?" I'm waiting to hear from co-bloggers their reactions to that very subject...
P.S. The title of this post is connected to the lede for the Miami Herald article that DZ provided.
The Idea of a University
I appreciate Paul's kind words, and his recent post on Peter Berkowitz's review and the state of things these days on campus. As Paul mentioned, I've been wrestling a lot over the last few years (along with friends at Notre Dame and on Mirror of Justice) about what Cardinal Newman called "The Idea of a University" (here is a link to Newman's famous book); about -- more specifically -- what it would mean for a university to be what Notre Dame aspires to be, i.e., "great" and "Catholic"; and -- even more specifically! -- about the place of a law school in a university with such aspirations. These and similar questions are the focus of a lot of interesting, recent scholarship (e.g., Burtschaell, "The Dying of the Light"; Marsden, "The Soul of the American University"; O'Brien, "The Idea of a Catholic University"; Buckley, "The Catholic University as Promise and Project"; and many more).
Paul is right, I think, to warn against embracing too quickly the "'ailing universities' narrative." That said -- and I'd like to be wrong about this -- I am inclined to think the narrative is pretty much right. For me, it's not simply that our universities have (assuming, for now, that they have) been insufficiently attentive to the dangers posed by "political correctness" to authentic education. Putting Berkowitz's review aside for a minute, I really do worry that, politics aside, and from top to bottom, universities, faculties, and students are buying into an idea of "education as job training", or of "education as credential for job searches", rather than "education as formation", or "education as human flourishing", or something like that.
Paul is also certainly correct to remind us of the diversity that characterizes the higher-education arena, and of the "multiple fora" ("spheres of justice", maybe?) involved in any university. Still, I would not want to lose the "idea of a university" -- of the university -- as a civil-society, mediating institution, and as a guardian, transmitter, and -- maybe -- challenger of culture, knowledge, and traditions.
I'm all for "letting a thousand flowers bloom", as Paul puts it -- one of the arguments often raised in defense of the mission and distinctiveness of Catholic and other religious universities is that they contribute to the good of pluralism precisely by being distinct and different -- but, at the same time, I do think it makes sense to talk, think, and worry about "the university." The idea of a university can be protean, I think, while still retaining important, identifying content. Universities matter, and there are things, I think, that a university must, and must not, be. (Easy to say, I know; harder to flesh out).
Tuesday, July 26, 2005
Writing one's own opinions
Tim Wu at [that blog by a bunch of former SCOTUS clerks] argues that it is important to know if Roberts writes his own opinons. It's an interesting point--and one that got a lot of play when we (along with the rest of the blawgosphere) were debating the Garrow Legal Affairs article and the Greenhouse book about Justice Blackmun. (I'd provide links, but it takes time to hunt those down--and who really wants to read that stuff again?)
Still, I think it is hard to care too much about who crafts the words in the first instance. Most judges who do 'delegate' drafting supervise their clerks and provide feedback on the bench memos that precede the opinion writing. And surely Wu would agree that bench memo writing is an appropriate clerical task, wouldn't he? What if the judge then borrowed heavily from parts of the bench memo? Say she copied the fact section wholesale? Would that really be a problem? Should we start investigations into judicial plaigarism of the work of clerks? To be sure, judges that merely rubber stamp whatever their clerks do should be impeached. But as long as the judge supervises the work and actually provides substantive feedback, it is hard to get worked up about it. Don't get me wrong: I think clerks should get credit for their work and at least appear in a first footnote after the judge's name. But I hardly think that it is high priority to have a Justice that writes their own opinions from scratch.
On "Educating the University"
Tangentially, Rick's guest stint is also an opportune time for my tardy response to Dan's post recommending this review by Peter Berkowitz of a recent book on free speech on campus. Berkowitz writes in a fairly standard declinist vein (a genre profitably discussed in Posner's book on public intellectuals) about the "repression that the betrayal of liberal principles on campus has unleashed." He suggests that this development calls us to "restore respect for, and indeed understanding of, the proper task of a university in a liberal democracy." He proposes that a restored understanding would lead to: the establishment of meaningful core curricula; meaningful multiculturalism, especially including foreign language skills; and more courageous university leadership.
Fairly commendable, and unremarkable, recommendations, that I broadly share, although I don't think Berkowitz makes the case that the problem demands these particular solutions. It's a fine and largely sympathetic essay. But let me register two areas of disagreement with the article. First, a more quibbling point: I think Berkowitz overstates the "ailing universities" narrative. To say that one is concerned with "the damage that has been done to American universities over the past 20 years," or that "[t]he last 25 years have witnessed the return" of universities that see their job as conveying a specific moral and political agenda, is to treat those years as an undifferentiated mass in which the movement has been steadily downward. I'm not sure this is right. It seems to me the kinds of campus speech issues Berkowitz addresses hit their high-water mark in the early-to-mid-90s, although these issues still arise. In describing the "crisis" of the universities (or the culture of disbelief, or the tyranny of the left or right, or lots of other descriptions of intellectual moments), we should remember that the ground shifts even as we conduct our debates, and we should not fall back too readily onto phrases or formulae whose descriptive power may have been undermined by later developments.
A grander quibble has to do with an underlying assumption of Berkowitz's essay: that there is such a thing as "the university" -- a specific institution, with a specific role to play in liberal democracy and a set of core values, such as truth-seeking, that must define it. Not all universities need look like Harvard, or like a standard public university. Some may quite validly pursue a moral and political agenda. Others may see their role as truth-seeking in the traditional modern understanding of the term. But we needn't force them all into a particular formula of what it means to be a university. Here as elsewhere, there is room for a multiplicity of approaches. Moreover, even if we agree on what a university is or must be, we must also recognize that universities involve multiple fora -- classrooms, quads, public spaces, dorm rooms, etc. -- and that no one rule (even a rule of free speech) will suit each of these fora equally well. There are universities, and I say let a thousand flowers bloom; but I'm not sure there is such a thing as "the university." (What's the tangential link to Rick? His blog has prominently featured very interesting and varied discussions and views on the role of the religious academic and the religious university -- an institution that is implicitly somewhat ignored by Berkowitz's piece.)
Dialogue on Roberts and the Confirmation Process
There are the beginnings of a decent debate between Erwin Chemerinsky and Brannon Denning over at Legal Affairs, although I fear it may fizzle. Readers who were interested in my petition suggesting questions for the nominee might find the debate interesting, as Chemerinsky was one of the principals in drafting the petition.
My view of the debate so far is that how one regards Chemerinsky's views depends a great deal on what you think of his repeated use of words like "must" and "should," as in "evaluation of a candidate must include his or her ideology, as well as qualifications and judicial temperament." Denning, seeking to identify areas of agreement between them, writes that he believes "that senators are free to vote against a nominee for any reason, including . . . ideology." Chemerinsky replies that he is glad the two agree "that a nominee's ideology should matter in the confirmation process." This is a clever rhetorical move but not an accurate one, for Denning has only said Senators may consider ideology, in their questions or their votes, that such questions are "fair game" -- not that they should or must do so.
Chemerinsky's position, it seems to me, comes down to the view that he hopes the Senate will vote against a nominee whose views on certain issues, including substantive due process rights, are not sufficiently close to his own. This is a perfectly acceptable point of view, given that the appointment and confirmation process is where democracy and lifetime tenure intersect for the last time (outside of impeachment, jurisdiction stripping, and other extraordinary occurrences). While I don't share Chemerinsky's view, I am sure most of us have "can't helps," to quote Holmes, on which we might find ourselves moved to oppose even an otherwise qualified nominee. But one should not mistake "must" or "should" in this context for constitutional requirements; they're just a speechwriter's way of saying "I feel strongly about this."
What a pleasure to have Rick Garnett guest-blogging here. I'll try to keep the logrolling to a minimum, as it is one of the blogosphere ticks I find tiresome, but in this instance I can't resist. I hope Prawfsblawg readers already know about the Mirror of Justice blog, but it is a really first-rate read, a collection of top-notch writers who treat each others' ideas, and other contributions, with genuine respect, and wrestle with those ideas they disagree with rather than dismiss them. Rick's professional writing, along with more occasional pieces for publications like Commonweal (of which I am reasonably willing to guess that our household is the only "Horwitz" family on the list of subscribers), is always a pleasure to read.
Perhaps I feel this way both as a law and religion scholar and as a fence-sitter, but it seems to me that in the legal academy there are some non-religious (or religious but secularly oriented) folks who unfairly dismiss religious academics and religious arguments out of hand; some religious academics who feel permanently embattled, and not always accurately so, and thus play out their role in the Kulturkampf; and a (hopefully larger) muddle of folks, religious or non-religious, who believe that, with enough good faith and a few imaginative leaps, a broad dialogue is possible that emphatically makes faith claims a part of the conversation. I think Rick is one of many who encourage my optimism about the prospects of this conversation. In his honor, I'll put something on the blog this week about my views on Noah Feldman's recent book, Divided By God, which I am reviewing for a Jewish monthly; and I'll try to follow up on my recent posts about the intersection between Judge Roberts, the Test Clause Oath, and the complicated intersection between religion, judging, and judicial nominations. I also wonder, Rick, if you have any views about either Marci Hamilton's recent book, God vs. the Gavel, which I've started but not finished; or about her interesting recent Minnesota Law Review article, "What Does 'Religion' Mean in the Public Square?" I think Hamilton, whether one agrees with her or not (and I often don't), contributes to the conversation I mentioned by recognizing that genuine respect can sometimes involve neither hostility nor credulousness, but thoughtful and stringent skepticism.
Not to pigeonhole you, Rick! Feel free to blog about why The Island tanked at the box office if you like. Welcome.
Catholicism and American Freedom
Paul's recent post about the changing religious composition of the Court (can you imagine, not so long ago, what the reaction would have been in the circles of the political and legal elites to a Court that was two-thirds Catholic and Jewish?) prompts me to mention that my review of John T. McGreevy's (excellent) book, "Catholicism and American Freedom," is now up on SSRN. Here is the abstract:
John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other.
McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.
I'd welcome any reactions or comments.
Thanks to Dan and the other Prawfsblawggers for inviting me to participate for a few days in the discussion. My name is Rick Garnett, and I teach at Notre Dame Law School. I contribute -- along with a dozen or so other law professors -- to a group-blog called "Mirror of Justice," which is "dedicated to the development of Catholic legal theory."
Prawfsblawg is a great site; I learn a lot from reading it, and I am looking forward to the conversation. I appreciate, in particular, Paul's (and others') recent posts on Judge Roberts, recusal, and religion.
Defense Funding: Reason #47 Why Roberts Matters Less than We Think
The nomination of John Roberts to serve on the Supreme Court is pivotal for many issues, such as federalism, the constitutional right to privacy, etc. Criminal law and procedure mavens also get caught up in this debate, speculating on the basis of very thin evidence how Justice Roberts might rule on different questions of constitutional criminal procedure.
I think this energy, however, is misspent. The criminal justice impact of a Justice Roberts is not exactly zero, but it is far lower than events that go completely unremarked in the legal academy and in public debates.
Take this example of an invisible issue far more important than a Supreme Court nomination: the division of responsibilities for funding defense counsel. This AP story describes a legal fight between county and state government in Mississippi. Quitman County claimed, unsuccessfully, that the state government's failure to fund defense counsel adequately created a Sixth Amendment violation. By shifting this funding responsibility onto local governments, the state has done far more to affect the day-to-day quality of defense lawyering in Mississippi than any Supreme Court decision of the last 40 years.
Lots of Criminal Procedure scholars know a good deal about Constitutional Law. Shouldn't just as many Criminal Procedure scholars develop expertise in State and Local Government Law?
Monday, July 25, 2005
Employers Cannot Not Pay For Female Contraception
Union Pacific Railroad tried to offer a health plan that would pay for Viagra and Male-Pattern Baldness, but not for prescription contraceptives for women, arguing that because fertility is "normal," contraception can't be considered medically necessary. A federal court in Nebraska just found this policy to violate Title VII, arguing persuasively that pregnancy is a "disease."
If you doubt that it is a disease, read the judge's gender-neutral description of the disease after the jump.
Our typical patient becomes aware that he has contracted the disease when he experiences extreme fatigue, accompanied by nausea and vomiting. These symptoms diminish after a few months, as his abdomen begins to distend. Pressure on his bladder requires that he urinate frequently. He feels hot and sweaty, and has headaches and dizziness. As his digestive tract slows, he becomes constipated and suffers heartburn and hemorrhoidal symptoms. His weight increases by twenty per cent, with most of the gain centered in his abdomen, altering his balance and causing strain and discomfort in his lower back. His breasts, ankles, and feet swell, and his legs cramp. His mobility, his sleep, and even his breathing are impaired as his abdomen expands to twice its normal circumference. Stretch marks appear on his thighs, chest and abdomen. The ligaments in his hips and pelvis soften, and he develops sciatica, causing tingling and numbness. After nine months, he feels the onset of intense, intermittent pain, accompanied by diarrhea and nausea. His pain increases and accelerates over approximately 15 hours as his genital opening, usually the size of a pencil lead, is stretched to a diameter of 10 centimeters. Surgical incisions are used to facilitate the opening of his genitals. His pain may require general anesthesia, but usually can be managed through other methods, such as injections in the fluid surrounding his spinal cord. He is encouraged to reject pain medication entirely so he can remain alert to assist in the treatment of his disease. The incisions and tears in his genitalia are closed with internal and external sutures. His breasts continue to swell, and his nipples become sore. Healing of his genitals takes about six weeks, during which time his pain may be relieved by sitz baths, heat lamps, ice packs, and anesthetic sprays. Finally, he has a heavy bloody discharge from his genitals, lasting several weeks.
Terrorism, Deterrence, and Searching on the Subway
Dave Hoffman (law, Temple) over at the Conglomerate blog, has written a very thoughtful retort to a recent post of mine (cross-posted at PrawfsBlawg and Balkinization) regarding the searching of baggage on NYC subways. I argued that:
It is another big waste of money and time, as well as a needless invasion of civil liberties -- all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.
Dave argues that I’m “underestimating the effect of random searches on public safety.” I am not much of an expert in behavioral law and economics and deterrence, so I’m straying far away from my turf. But I’ll try my best to defend the territory I’ve wandered onto.
Dave argues: “Terrorists are notoriously risk averse - they obey the law punctiliously until they attack. Thus, even a relatively minor risk of being caught will act as a very large deterrent, forcing terrorists to find other paths.” Really? Since when are terrorists risk adverse? Anybody willing to blow oneself up in the process of committing his or her crime is hardly risk adverse. And I just don’t see the relevance of the fact that terrorists obey the law prior to engaging in terrorism. However, suppose Dave were correct and the terrorists would “find other paths.” There are so many other targets that are even more dangerous and damaging. So we close off one target but leave the rest unguarded. Are we really any safer?
Dave also contends that if the police vary the number of searches, it will make it “hard for terrorists to intelligently evaluate the likelihood of being stopped on any given trip.” But unless the number of searches were really great in proportion to the number of subway riders (4.5 million each day), the variation would be relatively small. Wouldn’t the terrorists think that if three or four of them tried to bomb the subway on a given day, probably all (or at least most) would get through without being searched?
Dave argues that “there is a good argument that terrorists, subject to human behavioral tics, are likely to vastly overestimate the likelihood of being caught and therefore be more deterred than rational terrorists (what a contradiction in terms that is!) would be.” But Dave forgets that many terrorists are different from ordinary criminals in that terrorists are often on a suicide mission. They care about getting caught only because their mission might fail, not because of any potential legal sanction that might be imposed. If Dave is right, why on 9-11 did the terrorists try to use planes? Why not try some other means of terrorism? After all, planes involve a lot of security whereas other targets don’t. Wouldn’t the “risk-adverse” terrorist who might overestimate being caught attempt something else? Why did they go to flight school and expose themselves at many points to being detected when they could have tried something different? I’m certainly no expert on terrorist behavior, but I’m not very convinced by Dave’s theory.
Dave says: “Will terrorists then move on to other targets of opportunity? Probably. But forcing them to do so would be a victory.” I’m not so sure. This depends upon what the other targets are. Is it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?
Dave says I speak of two kinds of costs – law enforcement costs and civil liberties costs. For law enforcement costs, Dave argues that I neglect the other law enforcement benefits such as catching drug use and guns. True, the searching might help the police enforce other criminal laws, but I worry that the “special justifications” for fighting terrorism will then be used as a way to conduct general policing. The issue is whether we want ordinary crime policed at the same degree of invasiveness as terrorism.
The civil liberties costs are high, which Dave admits. There are also other costs as well, such as inconvenience and hassle, something which New Yorkers don’t like very much. Frankly, I wonder how long New Yorkers will be willing to put up with these searches.
Now, of course, let’s assume that the searches are not done using some kind of racial profiling – that they truly are random. If they’re not, then we need to address the profiling issue, which involves another cost Dave isn’t accounting for.
Finally, I’m a bit confused by Dave’s example. He uses a model of 1000 random searches per day, and calculates a “7% chance of being searched over the course of a year of weekdays.” I don’t know enough to say whether his rough calculations are correct, but I question the basic underlying assumption. Why look over the course of a year? Doesn’t this assume that a person rides the subway each and every day? Are terrorists likely to ride regularly each day and always be transporting materials for their plot on the subway each time?
Dave makes his arguments with humility, admitting that many of his points are made based on assumptions and models of behavior that he’s not entirely sure are correct. My arguments are made with a similar humility. I’m speculating a lot and am resting on a number of assumptions too.
There is one argument Dave doesn’t raise against my position that is worth thinking about. He might contend that even if I’m right that the searching provides mostly a “cosmetic” benefit, is there still a benefit worth considering? If a cosmetic but ineffective security measure makes people feel better, doesn’t making people feel better have value? So if Security Measure X is much less effective and more costly than Security Measure Y, but X makes people feel much better, to what extent should this attribute weigh in the balance? But even if we can placate people based on false perceptions, should we?
Turley on Roberts, the Church, and Abortion
Following up on my last post, note that GW law professor Jonathan Turley has this op-ed in the LA Times today. He writes that Sen. Durbin asked nominee Roberts last week what he would do if the law required a ruling that the Church considers immoral; Roberts "appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself." Turley concludes that the answer was "wrong," because a judge's religious views should not enter into his interpretation of the Constitution or laws of the United States, and suggests that this fairly opens the door to questioning. He is unclear on whether Roberts must answer questions about his faith, or the relationship between his faith and certain hot-button legal issues, or about the issues themselves.
In fairness to Roberts, it should be noted that it is odd for Turley to say that Roberts' answer was "wrong" because "[a] judge's personal religious views should have no role in the interpretation of the laws." Roberts was saying he would probably recuse himself precisely to ensure that his personal religious views would not affect his interpretation of the law -- or, and this is a different matter, to ensure that he would not create the appearance of having been improperly influenced by those views. But it is valid -- or at least, conservatives who questioned Alberto Gonzalez as a nominee on this basis have already ceded the legitimacy of the question -- to ask whether a nominee would be faced with recusal too often or in cases too pressing to be decided by a bench of eight.
My own view, given my earlier post, is that Turley has not made the case for asking Roberts about his religious views. Again, there is no constitutional barrier to doing so, as I understand it; but it would be better still simply to ask Roberts whether he is in a position to interpret the Constitution and/or follow precedent on these issues, wherever the answer may take him, or to ask him directly about his substantive legal views on these issues. As I've also said, he is not obliged to answer these questions, and the Senate is not obliged to vote for him even if he does. One last note: Turley is reporting this discussion based on two anonymous individuals who allegedly were present during the meeting. I don't know whether Roberts and/or Durbin expected that they were speaking confidentially, but this is a lousy way to tee up an issue for the hearings on the grounds that Roberts himself has now opened the door to these questions. Roberts spoke sincerely, I'm sure, but off the cuff. I would have little problem with Durbin firing these staffers, if their identities were ferreted out (and if neither of them are Durbin himself).
Democrats for Castration?
The House passed a bill Thursday that would require mandatory castration of persons convicted of violent sex crimes against children under 12 and would require them to wear electronic monitoring devices for the rest of their lives after release from prison.
Former Democratic Governor and now gubernatorial candidate, Don Siegelman, has been pushing the right buttons for deliberative democracy:
Siegelman stated that laws regarding Child Sexual Predators must be stiffened in order to provide better protection for Alabama’s children. “Requiring a current address and an ankle bracelet are simply not enough.” Siegelman said. “While attorney general, I pushed for tougher guidelines in dealing with sexual predators, and as governor I urged passage of this same legislation, calling for action on this issue in both my 2000 and 2001 State of the State addresses.” Siegelman continued: “The law dealing with child sexual predators needs to be altered to require, as a consideration of parole, either voluntary surgical castration or mandatory chemical castration after the first class A felony conviction for a violent sexual assault, rape or sodomy, by an adult over the age of 21 against a child 12 years of age or younger, and provide juries with a death penalty option for any repeat offender who causes serious injury or death.” In regard to private property rights, Siegelman outlined the recent U.S. Supreme Court decision in the Kelo v. New London, Ct. case, that allows private property to be forcibly taken by local governments and used for private development purposes. "The definition of 'public use' must be changed, in order to thwart the egregious U.S. Supreme Court decision regarding eminent domain," he said. “These are not Democrat or Republican issues," Siegelman said. "They are Alabama issues and Alabamians are making it abundantly clear that they want their children and their property protected.”
In another article, Siegelman said, "If it was up to me, I'd give them the death penalty on the first offense." ... "The attorney general has the Legislature in this special session. This is the perfect vehicle to do this thing right. They need to quit being so namby-pamby and squeamish about castration and put that back in the bill."
Sunday, July 24, 2005
The Religious Test Clause and the Roberts Nomination
An offhand remark in an earlier post of mine and subsequent comment, along with the Roberts nomination, lead me to the question whether Judge Roberts' Catholicism is a valid subject of questioning in any confirmation hearing, or whether questions that might be perceived as relating to his faith are permissible.
The question is relevant because of Article VI, Clause 3 of the Constitution, which states in part that state and federal officers "shall be bound by Oath or Affirmation to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It is also relevant because of recent efforts by interest groups involved in judicial nominations to suggest that Democratic opposition to some nominees represented a form of anti-Catholic bigotry, and because of some interest in the pro-life commitments of Roberts' wife. (See here. The article does not name any interest groups that are openly pursuing the issue, and quotes Sen. Kennedy suggesting the issue is out of bounds. Tell that to the folks I heard on my local Maoist radio station, KPFK, this morning.) Although this nomination may not resurrect such matters, I assume some groups are willing to raise and publicize the anti-Catholic charge if much questioning turns on the abortion issue.
So the question is: Is it a violation of the Religious Test Clause to question a nominee on his religion, or vote against him based on his religion? We might ask a second question: Does it violate the Religious Test Clause to question a nominee on his personal views on issues such as abortion, even if religion is not mentioned, where those views may be linked to the nominee's religious views? (See here for more on how this question has emerged.) My answer to both questions is no, although it is possible the first question is closer than the second.
Let me emphasize at the outset that I am asking whether such questioning, or voting, would violate the Religious Test Clause. I am asking whether Senators may engage in such conduct. I am not asking whether they should. My view is that they should not ask about a nominee's religious views. Further, although as a practical matter a person's personal views may affect his judicial views, I think questions about a nominee's personal and/or political views should also generally be avoided. The relationship between personally held views and judicial views is complicated, and a Senator is better off avoiding that murk and focusing on how a nominee would decide cases, which may include substantive views about the law, but not personal views. (Of course, a Senator might take the view that she is entitled to oppose a nominee whose personal views she finds offensive, regardless of their relationship to his jurisprudence. I believe the statement is accurate but would generally disagree with such a vote. Or she might ask such questions, knowing that a nominee's personal views are only tenuously linked to his actions as a judge, in order to use those views to paint a judge as falling "outside the mainstream." I would more strongly disagree with such an approach.)
My view is that the scope of the Religious Test Clause is too narrow to cover either of the questions I posed above. Although I think the question is closer, I think this is even true of the first question -- whether a Senator may, consistent with the Clause, question a nominee on is religion, or vote against him based on his religion. We might say that the second half of this first question is closer than the first half. Sanford Levinson, in his book Wrestling With Diversity, draws such a distinction. But I think neither situation is covered by the Religious Test Clause.
Strictly speaking, the Clause is, I think, best read as barring precisely the sort of tests that it was historically intended to address: namely, English and/or state laws that required officeholders to swear allegiance to particular faiths or religious tenets. The taking of such oaths literally stood as a prerequisite to the holding of office. As Levinson's work suggests, this is a far cry from suggesting that the framing generation thought an individual's beliefs always were irrelevant to his fitness for office; but they were unwilling to condition office-holding on the taking of religious oaths. Keep in mind, after all, the context of the Clause, which follows closely upon the imposition of an oath requirement for state and federal office-holders; contemporary discussions suggest that the Test Clause was indeed understood as being intimately related to the preceding clause. Keep in mind, too, that the founding generation took oaths profoundly seriously, as my current research certainly suggests; thus, even if the Clause only applied to test oaths involving religion, it would have been a significant change in then-contemporary practice.
(Let me add that this view invites the response that we ought to read the Clause more broadly, and not treat it as so narrowly applicable to test oaths -- especially in light of the diminished importance of oaths per se in contemporary society. I think the specific language of the Clause, and its place in Art. VI, cl. 3, cuts against this suggestion -- although I appreciate the potential irony involved in liberals arguing for a narrow textualist/originalist reading of the Clause and conservatives arguing for a "living Constitution"-type reading of the Clause.)
Given that reading of the Clause, I do not think questioning a nominee on religious issues, even if unwise or improper, is unconstitutional. Although this point is closer, I also do not think it would be unconstitutional to oppose a a nominee based on his faith, or lack thereof. It might be outrageous, but not unconstitutional. This is especially true because a Senator could plausibly, if quite shallowly, believe that a particular nominee's religious views would make it impossible for him to do an important part of the job. In these instances, faith obligations and substantive aspects of the Constitution or the judicial role are so inextricably intertwined that it is difficult to say the vote would be anti-religious so much as it would be based on a Senator's view of what the Constitution and the judicial role demand. To take a hypothetical, say that a nominee holds the view that he is actively obliged to oppose the death penalty in every way, and that such obligations take absolute precedence over any obligations to obey civil law. Could such a nominee, if sitting as a district court judge, preside over a trial in a capital crime? Or, if sitting as a Justice, fairly hear a claim that the death penalty is unconstitutional? It seems to me that a Senator could reasonably conclude that such a nominee would be unable to fulfill an important function of the judicial office, and could vote against the nomination. (For a variety of reasons, I do not think this hypo tracks the question of abortion and Catholic judges. I think some of the public discussion of this issue, in various circles, betrays a set of shallow assumptions about Catholicism -- and, on the other side, sometimes suggests shallow assumptions about the Constitution.) As I said, I think this question is the closer question, and I'm happy to hear comments -- keeping in mind that my remarks have addressed whether certain questions or votes are constitutional under Article VI, not whether they are wise or good.
Given this conclusion, I think the second issue -- can you ask a nominee about his own views on an issue, such as abortion, while avoiding the religious question directly -- is still less constitutionally objectionable. To ask a nominee whether, for instance, he thinks abortion ought always to be illegal, or whether he thinks it is ever morally justifiable to put a prisoner to death, or whether he thinks witches ought to be treated differently under the law, is not to set a qualification for public office as such; nor, in any event, does it ask a narrowly religious question. It may suggest that the Senator asking the question has a shallow understanding of the relationship between personal views and judicial actions, as I suggested above; but it is not the same thing as requiring a nominee to take a religious oath as a condition of office, which is centrally what the Religious Test Clause prohibits.
For more on this question, I recommend J. Gregory Sidak's interesting article, True God of the Next Justice, 18 Const. Comment. 9 (2001) -- a good read, although I am entirely unpersuaded by it.
An Academic Jobseekers' Guide to Food and Drink
There have already been a number of excellent posts on how to prepare oneself for the academic job market in law, and how to negotiate the process of interviewing both at the AALS in D.C. and on campus at law schools. My contribution dwells less on the considerable intellectual challenges facing the job seeker and more on meeting basic culinary needs. As I discovered, without advance preparation, one may be left without snacks at key moments, or find oneself skulking around law school corridors in search of caffeine. All these difficulties may be avoided, however, by taking a few crucial steps.
For those of you unfamiliar with the Marriot Wardman Park, the location of the annual “meat market,” it is a sprawling, mammoth construction comprised of several different towers, each of which may play a starring role in your AALS interviewing experience. In order to maintain the stamina to jog amongst these buildings and from floor to floor (through the back staircases, if the elevators seem to be operating too slowly to deliver you on time to your next destination), food is imperative. However, the available options at the Marriot itself are quite minimal. There is a Starbucks off the lobby, but the lines tend to be quite long during the Faculty Recruitment Conference from around 6am on, and are almost impossible to navigate at lunchtime. Nor are the culinary offerings always of the most savory sort. Finally, it takes quite a while to get from the Marriot’s hilltop location down to the eateries clustered near the Woodley Park Metro stop, especially if you wind up stopping to speak with long-lost acquaintances or interview committee members you have just met. Hence, piece of advice #1:
1) Bring small snacks to the AALS meeting to consume throughout the day and at lunchtime. PowerBars could be effective, or other compressed food items that can be secreted away unobtrusively into the materials you carry to interviews.
Dinner can also carry its own vexations during the AALS. Many people remain in the immediate vicinity to eat, and there are a few good food options, including my favorite, the Lebanese Taverna. This means, however, that lines can be quite long—and, more importantly, that it is almost impossible to avoid hearing a barrage of conversations about the job market from both the perspective of interviewers and interviewees. Hence, unless you are eager to find that the person at the next table has just had a fabulous meeting with the people from Harvard, and is certain to be called back to campus that Monday and receive an offer by Wednesday,
2) Bring earplugs.
Once you have cleared these initial culinary obstacles to getting an academic position, you will hopefully receive multiple offers to give job talks. Law schools vary greatly in their awareness of candidates’ caffeine and general beverage requirements. This is especially important to remember because you may find it difficult to give an excellent job talk without the requisite amount of coffee or tea (at least, if you are like me). Most hotel rooms do now furnish coffee makers though, which leads to my final piece of advice:
3) Bring your own coffee and teabags that you can use with the hotel’s coffee maker. Also, do some web searching beforehand to figure out the coffee shops nearest the law school. This is not, however, necessary for those interviewing at Cornell, because many of us would be delighted to show you the fabulous, Ithaca-based Gimme! Coffee, which rivals many outfits in Seattle!
Saturday, July 23, 2005
The Changing Religious Face of the Court
In the rush of events surrounding the Roberts nomination, one fact that has been noted but not much remarked upon -- and perhaps that silence is itself significant -- is that Roberts, a Catholic, will bring the total number of Catholics on the Court to four (including Scalia, Kennedy, and Thomas). That's more than any other religion followed by any member of the Court. (Prior to the current Court lineup, there were only seven Catholic Justices over the Court's history.) We've come a long way from 1960, when John F. Kennedy's Catholicism was, for a time, a serious campaign issue. That this sea-change in the makeup of the Court (or the fact that there is no longer one "Jewish seat") is largely treated as unremarkable represents a quiet but important change in the makeup of our elite institutions and the elite individuals who occupy them. I don't know whether the folks at Mirror of Justice have commented on this yet, but I hope they do.
That there is no longer, I hope, a "Catholic question" or a "Jewish question" in circumstances like this does not mean one cannot, in good faith, ask interesting questions about the intersection between nominees' faiths and the nomination process. More on this in a subsequent and lengthy post.
Friday, July 22, 2005
Showy Intelligence & Legal Academia
Todd Zywicki at the VC is exactly right: law schools tend to overvalue showy intelligence. It's a shame--and certainly isn't the norm in other departments in the academy.
Disclosure: I've benefited from this bias, not because I'm especially intelligent but because I liked to talk in class and get into arguments with people, where I seemed competent and able to hold my own. This disposition would get me almost nowhere in political science, my Ph.D. discipline. As long as one avoids seeming cocky and arrogant, "showy intelligence" pays dividends on the legal academic market.
Grasping at French Fries: Evaluting Judge Roberts
Since so much has been said about Supreme Court nominee Judge Roberts, I thought I might as well get my two cents out there. Over at Balkinization, I argue that we can only speculate extremely weakly about Judge Roberts. There just isn't a lot to go on, so we're grasping for straws . . . or French fries, as Kim Scheppele, my Balkinization co-blogger, looks to. In the end, I suggest that we just don't have enough to go on, and that perhaps the only thing we can be certain of is that the Bush Administration did its homework.
Thursday, July 21, 2005
Google Goes to the Moon
Google Maps, which allows you to see your home and neighborhood from satellite imagery, has now gone to the moon. Google Moon allows you to explore the moon's surface. So if you thought you could get some privacy by escaping to the moon, better start thinking of another plan. Anyway, this website is quite fun, as is Google Maps, where you can check out what your rooftop looks like from above. Humorously, Google Maps obscures the Capitol, so that it appears all blurry. That must really provide tons of added security!
UPDATE: I just learned that the moon really is made of cheese. Try zooming up really close, and you'll see. So it's really true after all!
Blogging Preemption Checks?
Larry Ribstein suggests that bloggers -- especially academics who blog -- should engage in a kind of blogging preemption check by linking to other blogs that have discussed the issue:
In the academic setting, this ignorance of the prior literature would be a bad thing, a sign of academic negligence. What about in blogging, particularly by an academic blogger?
I think a similar norm should apply, though applied differently in this different setting. Applying this norm in both settings helps everybody economize on time. . . . The norm can be policed by the usual reputational and shaming incentives.
Will Baude, guest blogging at Conglomerate, has a terrific response:
. . . [T]his kind of norm really would impose serious supply costs on blogging, and would therefore cause a lot of people to blog a lot less. I used to be hesitant to respond to any post until I had read its entire comment-thread. . . . A lot of blogs are, quite frankly, not very good, and if posting about X means I am ethically obligated to read them, I am simply not going to bother.
. . . [T]he value of this sort of pre-emption check is dubious. If somebody else was a blogger's original source or inspiration for a story, that is one thing, but if somebody has merely managed to produce a similar version of the same post, who cares? Or, more precisely, how many people care, and why can't they go use Technorati and an RSS reader themselves if they do? . . . .
Ribstein's proposed pre-emption norm will lead to decreased blogging and wasted time by those who follow it, and decrease the quality and filtering ability of blog posts, all for dubious, if any, gain. It should not be followed or encouraged.
Agreed. There is very little to be gained by Ribstein's proposal and quite a lot to be lost. Blog posts are not academic articles. They are half-baked ideas dashed off very quickly. In contrast, law review articles are half-baked ideas published slowly. The key difference is that if blog posts required extensive prior research and reading, then they'd take much longer to produce. I already have sacrificed, in the name of blogging, numerous hours in the day that I never had. If I had to go out and search the blogosphere for everything about an issue I post about, blogging would take even more time than I already don't have. There are, by some estimates, between 10 million to 30 million blogs and potentially up to nearly a million new blog posts each day. Have fun trying to do a preemption check! Anyway, Will does a great job in responding to Ribstein's proposal, so check out his post.
Baggage Checks in NYC Subways -- Another Cosmetic Security Measure
The AP is reporting that police will begin random checking of people's bags on NYC subways:
Police will begin random searches of bags and packages carried by people entering city subways, officials announced Thursday after a new series of bomb attacks in London. Passengers carrying bags will be selected at random before they pass through turnstiles, and those who refuse to be searched won't be allowed to ride, Police Commissioner Raymond Kelly said. "We just live in a world where, sadly, these kinds of security measures are necessary," Mayor Michael Bloomberg said. "Are they intrusive? Yes, a little bit. But we are trying to find that right balance." The announcement drew complaints from civil liberties advocates in a city where an estimated 4.5 million passengers ride the subway on an average weekday. The system has more than 468 stations — most with multiple entrances — and the flood of commuters hurrying in and out of stations during rush hour can be overwhelming. Kelly stressed that officers posted at subway entrances would not engage in racial profiling, and that passengers are free to "turn around and leave." He also downplayed the possibility of bottlenecks at subway entrances. That makes me feel better -- people are just free to leave, so the searching is fine. I'm dashing this post off quickly, so I won't explore the legality of this. But regardless of the legal issues, this seems to me to be a very silly policy. It is another big waste of money and time, as well as a needless invasion of civil liberties -- all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either. Also consider this from the story: Kelly said passengers selected for searches will be approached by officers, who will ask them what they are carrying, and request them to open their bags. If an officer looking for explosives finds some other form of contraband, police said that person would be subject to arrest. Does this mean that if the police find illegal drugs that they will arrest people? It isn't clear what categories of "contraband" are included in this statement. A more effective strategy might be to use bomb sniffing dogs, as this would better prevent the police from conducting searches for drugs or things other than bombs. But even the use of dogs, with the sheer numbers of subway passengers, does not strike me as very effective either.
Police will begin random searches of bags and packages carried by people entering city subways, officials announced Thursday after a new series of bomb attacks in London.
Passengers carrying bags will be selected at random before they pass through turnstiles, and those who refuse to be searched won't be allowed to ride, Police Commissioner Raymond Kelly said.
"We just live in a world where, sadly, these kinds of security measures are necessary," Mayor Michael Bloomberg said. "Are they intrusive? Yes, a little bit. But we are trying to find that right balance."
The announcement drew complaints from civil liberties advocates in a city where an estimated 4.5 million passengers ride the subway on an average weekday. The system has more than 468 stations — most with multiple entrances — and the flood of commuters hurrying in and out of stations during rush hour can be overwhelming.
Kelly stressed that officers posted at subway entrances would not engage in racial profiling, and that passengers are free to "turn around and leave." He also downplayed the possibility of bottlenecks at subway entrances.
That makes me feel better -- people are just free to leave, so the searching is fine. I'm dashing this post off quickly, so I won't explore the legality of this. But regardless of the legal issues, this seems to me to be a very silly policy. It is another big waste of money and time, as well as a needless invasion of civil liberties -- all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.
Also consider this from the story:
Kelly said passengers selected for searches will be approached by officers, who will ask them what they are carrying, and request them to open their bags. If an officer looking for explosives finds some other form of contraband, police said that person would be subject to arrest.
Does this mean that if the police find illegal drugs that they will arrest people? It isn't clear what categories of "contraband" are included in this statement.
A more effective strategy might be to use bomb sniffing dogs, as this would better prevent the police from conducting searches for drugs or things other than bombs. But even the use of dogs, with the sheer numbers of subway passengers, does not strike me as very effective either.
Substance vs. Structure
Over at Balkinization, I've just posted some of my musings about substantive vs. structural arguments. I label arguments about judicial review, federalism, and the filibuster rule as structural ones. I argue that liberals and convervatives have often flip-flopped on these issues, and that the commitment to structural positions is often only skin deep. Structural disagreements are often just covering up disputes about substantive ideology that people are having difficulty discussing. Anyway, if you want to read more of my pondering about the issue, check it out at Balkinization.
While not approaching the florid prose of Justice Scalia, Judge Roberts’ opinions have some interesting rhetorical characteristics—amounting to what I might call the judicial version of “compassionate conservatism.” The two cases that have provided a focal point for commentary, Hedgepath v. Washington Metropolitan Area Transit Authority and Rancho Viejo v. Norton, exemplify this style, which consists in expressing demonstrative sympathy for the unfortunate “victim” of official action, while at the same time proclaiming that no legal remedy exists.
The first paragraph of Judge Roberts’ opinion in Hedgepath began by explaining the disturbing circumstances leading to the arrest of a twelve-year-old girl “for eating a single French fry in a Metrorail station.” It concluded, however, that, regardless of whether the policies leading to this event “were a bad idea,” they did not violate the Fourth and Fifth Amendments. Some compensation for the adverse verdict, the paragraph implies, was provided by the public embarrassment that the incident cast upon those responsible:
The district court described the policies that led to her arrest as ‘foolish,’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.
According to the rhetoric of the opinion, the public arena of dignity and shame—rather than the judicial determination of constitutionality or lack thereof—was the appropriate arena for determining the merits or lack thereof of the officials’ actions.
Likewise, in Rancho Viejo,
Judge Roberts’ dissent from the denial of a rehearing en banc explained that “The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce . . . among the several States.’” Although an entertaining way of phrasing the point, the sentence carries the disturbing suggestion that even a toad could be considered a possessive individual, capable of making autonomous decisions for its own private purposes. Despite being “hapless,” the toad, for Judge Roberts, should remain protected only by its own savoir faire.
This is not, however, the main drawback of the dissent’s rhetoric. The focus upon the “hapless toad” distracts the reader from focusing upon the central federalism question raised by the case, and the issue of how far Congress’s power under the Commerce Clause extends. By invoking the toad, Judge Roberts called to mind the mind the inconveniences caused by protection of the snail darter at the expense of a dam in Tennessee Valley Authority v. Hill, and cast into the background the importance of dealing with environmental problems at a national level.
This tendency to provide rhetorical sympathy for those whom he concludes the law does not support might occasion some skepticism about whether Judge Roberts will really be a moderate replacement for Justice O’Connor. While Judge Roberts’ gentle demeanor may make him an excellent television personality, we should remember that Supreme Court oral arguments are still not open to filming, and it is in print and precedent rather than in person that most of us are most likely to encounter him as a Justice.
Rudolph's Spreading Penumbra
Already, Rudolph's influence is spreading. According to this story (hat tip to CrimProf), a sixty year old man with some medical problems was inspired by Rudolph's good fortune in landing in prison and ensuring that the government would "take care of him" in perpetuity.
On TV, he followed the case of Rudolph — who pleaded guilty this spring in a deal that will send him to prison for life — and wanted the same fate. “He was saying that he wanted to be cared for by the federal government, that he was in poor health and wanted to be taken care of,” said Atlanta postal inspector Tracey Jefferson. Crutchfield, a 60-year-old electrical contractor who lived alone, claimed $90,000 in medical debts for an unspecified ailment and feared losing his home, another postal inspector testified at his preliminary hearing.
So the guy decides to unload seven shots at Earl Lazenby, a local letter carrier; that way he can serve the rest of his life in prison, and avoid his difficulties and debts.
The explanation makes no sense to the Lazenbys [the victims' family]. “If all he wanted to do was commit a federal crime, all he had to do was walk into a bank with an empty gun and point it at them and say, ‘Give me your money.’ And that’s your federal crime, and no one gets hurt,” the letter carrier said. “Instead of trying to kill the mailman.”
This whole story reminds me of the familiar locution that life is better in prison for some because at least there you have an Arendtian right to rights. Crutchfield is responsible for his crimes; and we are responsible for ours. But his motivation for his crime should have us thinking a bit more broadly about social dislocations and obligations of distributive justice. Universal medical care, anyone?
Very sad, all the same.
Wednesday, July 20, 2005
Missing the Quarter-Pounder for the French Fry
There's a heated debate going on in our comments section in response to this post by Dan Markel. Mike and Paul are debating whether Judge Roberts got it right or wrong in the now infamous french fry case, explained in detail by Kim Lane Scheppele over at Balkinization. In case you don't follow such things (and I know that you do), here's the short version:
DC adopted a zero tolerance policy against eating in the subway. All minors caught eating were to be arrested. All adults caught eating were to be ticketed. A minor was caught eating a french fry on the subway and arrested. Her mother brought suit on her behalf, claiming that the arrest violated equal protection and was an unconstitutional seizure. Judge Roberts, on behalf of a unanimous panel, ruled in favor of the defendants.
It is very tempting to argue about whether this decision was right or wrong, and we will surely hear more about the fateful french fry feaster as the Roberts nomination heats up (mostly because there's nothing else in his paper trail to focus on).
But let's take a step back for a moment. The real issue in this case was not the applicability of various constitutional provisions. The real issue was the stupidity of a law that requires police to arrest a 12 year old who eats a french fry.
Focusing on the big issue, and putting aside the doctrinal legal questions, I'd call this a successful outcome, and a great example of the interplay between courts and lawmakers. As a result of the press that this case generated--and in no small part due to the outrage generated by the court's opinion--the law was changed. That's right: no more zero tolerance, mandatory arrests for 12 year olds in DC. Sanity prevailed through democratic action.
I feel terrible for the kid in this case and for the others who were subjected to the policy. And maybe a reasonable person could disagree with the court's decision. But in the grand scheme of things it is far more important to me that lawmakers and citizens realized how stupid this policy was and quickly overturned it than what Judge Roberts and the rest of the panel thought about its constitutionality.
If this analysis sounds familiar to you, it is probably because I have applied the same reasoning in the past. Sometimes we lawyers are so locked into doctrinal minutia and the role of the court that we lose sight of the quarter-pounder for the french fry.
I'd be sheepish about the self-promotion, but I've been blogging about many other things besides myself and my papers so feel entitled.
Shut Up About the Freakin' Elephant, Already!
Daniel's comments on the "Democrats in disarray" were interesting. They deserve to be reread in light of the NYT Magazine's cover story this past weekend, by Matt Bai, on the Democrats' latest infatuation -- with the idea of the importance of finding the right language with which to "frame" issues. (The title of my post refers to "Don't Think of an Elephant," the George Lakoff book that set off the Beltway craze for "framing.")
Now, there's a considerable and interesting linguistic and psychological literature on the idea of framing, and I certainly commend Jon Hanson's lengthy and tendentious but interesting recent law review writing on this and related subjects. There is much to be said for the value of this idea. But I can't agree enough with Bai -- and Daniel, I think -- that while it is important to find good language with which to frame one's ideas, the ideas themselves must be appealing, and fundamental. The pro-framing Democrats seem, by and large, to have bypassed this part of the equation -- with, Bai suggests, the active assistance of Lakoff, who sells framing lite to the Democrats but then offers up the more complex version when he wishes to defend himself. Absent ideas that actually reach a suffiicient number of people, calling trial lawyers "public-protection attorneys" should achieve roughly nothing. If the phrase "death tax" works, it's because many Republicans hate the estate tax and many people hate taxes altogether. Do people so love trial lawyers that they'll buy the phrase Lakoff suggests -- and is this really the fundamental idea to which the Democrats want to be tied? This is a trifle overstated, and I do think, as Daniel says, that one must not only identify core commitments but also figure out how to sell them; but the idea that the Democrats could even think of figuring out how to reach the people by listening to a politically progressive, Berkeley-based academic suggests to me that there are just plain deeper problems here.
One last point after the jump.
The other thing that struck me strongly upon reading Bai's article is one that has been remarked upon elsewhere, in an interesting article some time ago in TNR: that too many Democrats are willing to talk, at great length and in public, about the sausage-factory aspects of doing politics: infighting, who's consulting with whom, how to spin the masses to the party's advantage, etc. I don't know why this is, but it strikes me as incredibly self-defeating. It's not generally a good idea to explain, in loving detail and with a good deal of self-love involved, how you are going to use language as a tool of persuasion and manipulation. Nancy Pelosi is (God help us) the one of the leaders and public faces of the Democratic party. Why she would voluntarily say, in public, such smug and inside-baseball things as "We branded them [the GOP] with privatization, and they can't sell that brand anywhere. It's down to, like, 29 percent or something," is beyond me. Why they would allow a consultant to say, in public, that the party chose a six-part vision statement because "[s]even[ ideas are] too many" and "[f]ive's too few" is beyond me. Why they would allow another consultant to say openly and publicly that a particular nuance of the filibuster debate is "[a]n irrelevancy beyond the pay grade of the American voter" is beyond me. We know far, far too much about the Democratic sausage factory than we should, and there are way too many Democratic consultants out there -- with losing records! -- who won't seem to shut up about the process and never seem to get fired for it. A good political consultant should be like the guy who cleans my toilets -- it's a necessary job, but he should do it in private and go away when he's done.
I'm a little late to the game, by blogging standards. Nevertheless, I was very disappointed by this nomination. This was an opportunity for President Bush to pick someone supremely qualified but unexpected, someone with unusual life experiences who could bring them to the Court and enhance both its intellectual lustre and its diversity. In short, so to speak, a diminutive, brilliant, Canadian-born constitutional law professor. That is: me. (Sorry, Dan, but you're not diminutive or teaching con law.) I had been holding on to the hope the President would see the need for such a nomination as clearly as I do, but you can't teach the guy anything.
Roberts, though, given the conservative orientation of the appointer, is a fine second-best pick, or so it seems to me now. I don't have an adequate grasp of the paper record yet, so I won't sound off too much. I tend to think based on what I know now that he will be a fairly unassailable nominee, at least according to what most of the participants seem to think are the rules of the game. I tend to favor smart (actually, I prefer "brilliant," and I am not sure whether this describes Roberts) nominees, even if I disagree with them, over hacks, and I gather most of those who know him well would say he fits the bill. Of course, as a con law professor, I derive plenty of utility from interesting opinions, rather than having much personally at stake in many of the Court's decisions, so I may have different selection criteria from others. I think there will be plenty of noise from both sides about the nomination, simply because it is essential to the functioning of many of the interest groups involved (as I have written, and as Orin Kerr has written), but that the battle won't go nuclear, in any sense, due to this nominee's strengths and his fairly milquetoast record. And although I don't fully subscribe to it, for various reasons, I think there is some potential merit in Randy Barnett's suggestion that this nomination represents the triumph of the A student, the person who hits the marks expected of him (a type long represented by the figure of the Rhodes Scholar), for good and/or ill.
After the jump, some comments on comments -- some views on other views that have been expressed, particularly by the principal players.
First, I tend to agree with Ethan that Schumer and Leahy's response was not terribly effective. I understand why it happened -- the Democrats are not willing to allow the news cycle to pass without beginning to attempt to frame the issue, and to start conducting an orderly retreat from the unanimous confirmation vote for Roberts as a D.C. Circuit judge. Let me say that it is not necessarily hypocritical or wrong to say that someone might be confirmed to a lower court but not given a free pass to the High Court. Not necessarily, I said. There is a logical basis for such a distinction. It's another question entirely whether Leahy and Schumer were themselves either logical or sincere in beginning to draw this distinction, and I think they came off as divers performing an ungainly backflip. But the potential for a reasoned distinction is there.
Why do they come off so ungainly? I think it relates to what I've called the accepted rules of the game. I think it is perfectly within constitutional limits to simply refuse to vote fora nominee, even a talented one, if you disagree with his views or think you will, or (as I have written) for just about any other reason. But under current rules of political discourse it doesn't seem to be as saleable as having compelling reasons that one can argue require a nay vote. Given Roberts' record, it is far more difficult to make the second argument as to him -- but it is seen as politically necessary, so the Democrats will do what they can (the french fry decision, his work in the SG's office) to build such an argument. And it will inevitably come off as unconvincing.
The other resort, when the "I must vote against this nominee" fails, is to move away from the nominee's professional record and look for any personal details -- the live boy or dead girl, the video rental receipts, stray jokes, etc. -- that might ground a no vote. I don't doubt that some of this will enter into the process at some point. This is one reason I disapprove of what I think are the current rules of the game: it so often leads to efforts either to paint a nominee as extreme, and thus a no vote as mandatory, or to engage in the politics of personal destruction, that I think we would be better off as a polity if senators simply said they refused to accept a President's nominee. (As always, this cuts both ways.)
A word about Senator Schumer's remarks last night. Schumer said "the burden is on a nominee" to prove he is worthy of confirmation. He may say so all he likes, and he may even make a convincing case for it, but it is certainly not true in any constitutional sense, and debates over where the burden lies seem to me to be nothing more than efforts to make a no vote easier. He also suggested that Roberts was obliged to answer questions before the Judiciary Committee. As I've already written, I'm unconvinced on this point too. Roberts may answer questions if he chooses, and Schumer may vote for or against him, but Roberts is obliged to do nothing. (Nor is Schumer obliged to vote yes even if he finds Roberts' answers satisfying.)
Ethan has not suggested that Roberts is obliged to answer questions, but he has written that he thinks Roberts ought to answer questions. He writes that he can see no justification for "stonewalling" on important questions like whether Roberts would vote to overturn Roe, and that doing so "degrades the process." He hopes that a confirmation hearing could serve Eugene Rostow's vision of a "national seminar." Here we part ways to some degree. I can think of justifications for stonewalling on important questions, depending on how they are framed: the desire to move the process as a whole away from litmus tests, the desire to preserve the mystique of the Court, the refusal to engage in kabuki-like dialogues, the desire to maintain flexibility and not signal litigants, etc. Not all are equally convincing. But I think it may be the case that some firm and consistent stonewalling could help rehabilitate the process rather than degrade it. As much as I like Rostow's article and the phrase Ethan quotes, I think it is a consensus-era phrase that was not entirely true then and is less accurate now.
Let me close with two reactions to President Bush's speech last night. First, the mantra: "He will strictly apply the Constitution and laws, not legislate from the bench." It means something -- but not much. What does it mean to strictly apply the Constitution or the laws? When a statute authorizes the President to use "all necessary and appropriate force" in fighting terrorism, does a judge interpreting this provision strictly apply the word "all," or strictly apply the words "necessary and appropriate?" And if the latter, who determines what is necessary and appropriate -- the judicial decision-maker, or the Executive? And why "strictly?" One might derive this requirement from constitutional structure -- although one can also make structural arguments in favor of "liberally" applying the Constitution and laws -- but the methodological move here is largely extratextual. It depends on theories outside the Constitution itself. And what of interpreting the Constitution itself? Does the President think Judge Roberts ought to strictly interpret the language of the Eleventh Amendment? That he ought to liberally apply some structural understanding of the Eleventh Amendment despite the text? In short, President Bush's mantra has some meaning, but not very much. It sets up a reasonably useful distinction between application and legislation, but it says very little indeed about the method of application, and says nothing to justify that devilish word "strictly."
Finally, President Bush added that Judge Roberts "has a good heart." I'm sure that's so. But the point of favoring a method of "strictly apply[ing] the Constitution and laws," which is generally taken to mean some form of textualism/originalism a la Scalia, is that a good heart is not required; only a careful and honest mind. A judge faced with a clear constitutional or statutory instruction that offends his moral sense must go with the instruction, no matter what his good heart tells him. Indeed, under this methodological approach, not only the judge's heart is irrelevant, but so is everyone else's. A strict textualist cares about what the legislature wrote in a law, not why it did it. I can understand the President wanting to reward the good-hearted with a seat on the Court, rather than the mean-hearted. But that was precisely the knock against Judge Bork -- that he was not good-hearted enough, that anyone who thought of the Court as an "intellectual feast" should not be empowered to affect people's lives. I thought the argument was wrong then, and it must be still more wrong as a point in Judge Roberts' favor, given the President's favored method of constitutional and statutory interpretation. In any event, Vladimir Putin is all the evidence I need that the President's goodheartometer is an unreliable device.
Thoughts on Roberts
1. The only knock I've seen on Roberts, from both the Left and the Right, is that he has no paper trail, and so we don't know what he believes about certain hot-button cases. Roe. Kelo. Lawrence. Grutter. And so on.
To me, that's looking at the wrong thing. We should be less interested in a nominee's thoughts on Roe, which many bona fide liberal scholars believe is on shaky ground, and more interested in his judicial philosophy. Is he an originalist? What kind? Does he read a libertarian gloss on the Constitution? Is he a minimalist? Is he juridprudentially conservative in his views of precedent?
Of course, we won't get answers to the results-oriented questions the conservative and liberal activists are asking, because it would be politically imprudent for him to answer those questions. Someone who has decided not to take public positions on these issues in all his years of practice is unlikely to divulge them when it could only hurt him with one side or the other.
Likewise, we won't get insightful answers to the questions I'm asking, since no one will bother posing them in any serious way, and he'll likely say that he views his role as merely applying the Constitution, and that he is a strict constructionist. These are rather meaningless terms, but no one will press him on them.
2. I fully expect that Roberts will be more in line with the politically conservative bunch than O'Connor was. Elections mean something. If Bush cannot swing the Court more to the right, then whoever donated to his campaign should demand a refund. Bush and Rove know that the cultural conservatives view the Supreme Court as the grand prize, and satisfying this element of the Republican party is important to Bush and Rove. And so we have every reason to believe that Bush has a good sense of where Roberts stands on the issues.
3. This pick confirms that being connected can be a big advantage. News reports say that Roberts is known and liked by political insiders in Washington from both sides of the aisle. This, of course, is one reason that Bush picked him; and assuming he is confirmed (and I do), it will play a role in his confirmation as well.
Think about the name that has been twinned with Roberts all along as a "good, safe choice," Judge McConnell. Bush could have picked McConnell, whose views are known and pretty reliably conservative, but who comes (for the most part) from the academic side rather than the political side. Instead, Bush picked someone who's views are not very well known (although he is probably reliably conservative), but who comes from the political camp. I don't want to read too much into this, but I think it is at least noteworthy. Or blogworthy, as the case may be.
This you call a tea leaf?
Kim Lane Scheppele at Balkinization has a long post about the poor 12 year old girl who got arrested for eating a French Fry on the DC Metro. From Roberts' refusal to open his heart to let the girl's mother proceed with a civil action against the subway system, we are supposed to get a pretty clear picture about Roberts' likely hard-hearted and literalistic jurisprudence on the Court. Seems like a bit of a stretch to me.
And then Jack hammers his point again about the "reverse litmus test:" that Republicans don't really want Roe overturned--and that Roberts also would not overturn Roe. I hate to point out the obvious here, but when some one is up for a Court of Appeals job, his saying that he would apply Roe is hardly evidence of what the person is likely to do when elevated to be in a position to actually be able to overturn the decision.
Whatever ultimately happens (and it seems as though Roberts is too good not to be confirmed), I do hope the nominee answers questions about his judicial philosophy and about how he would decide certain classes of cases: that would enable the hearings to truly be in the best tradition of the Court, Eugene Rostow's vision of a "national seminar." I just don't see the justification for stonewalling the Senate on important questions like whether the nominee will vote to overturn Roe. Those Senators asking the questions represent constituencies that want and deserve answers so they can, in turn, furnish signals to their representatives about what to do with the nominee. It may be strategically beneficial to stonewall; but it degrades the process.
Bring in the Lactivists
Needless to say, I'm with the mother and the lactivists. (If there is a joke in here somewhere about milk and coffee, I'm not making it.)