Wednesday, November 30, 2005
Adverse Possession At Home and Abroad
I told a leftist friend this morning about Rick Garnett's post and the ECR decision that adverse possession can be a human rights violation, and her first reaction was to wonder whose bright idea it was to put property rights in the code of human rights. [From what I can tell, Rick only links to the UK decision and a press release. You can download the ECHR decision by searching their website (the case is named Pye), or try this link. Thanks to (my property professor) Lee Anne Fennell for finding the decision.]
Notwithstanding my posts in the comments to Rick's post, I do not think adverse possession in American property law is necessarily unconstitutional. But it is worth considering how the ECHR's reasoning would play out here if the we-should-take-heed-of-foreign-law folks got their way.
From what I can tell, the court rebuffed the standard argument that since the adverse possession statute existed before any of the transactions took place, it simply limited the scope of the property rights. One hears this argument a lot, but it obviously has its limitations. An American state surely couldn't pass a law that said, "state property rights shall not exist for purposes of the 14th amendment to the federal constitution." The federal constitutional property rules presuppose some muddy notion of what is and isn't property, and if they relied entirely on state-definitions, then states could unilaterally choose to repeal the federal rules. Now the ECHR doesn't do a very good job of explaining this, but that does seem to be a part of the reasoning.
Second, the decision seems to place dispositive weight on the presence of a recording act. It seems to think that adverse possession laws are justified, where they are justified, only by an attempt to settle legal uncertainty about title ownership. Since, here, it was perfectly clear who owned the land beforehand, there was no role for adverse possession to play. I mention this in light of Lee Anne Fennell's forthcoming article on adverse possession, where she suggests that the doctrine ought to apply only where the adverse possessor is acting in "bad faith". In other words, she suggests that we have other legal mechanisms to deal with uncertainty in land ownership, and the only real use of adverse possession is to redistribute land from low-value to high-value users. In other words, Fennell and the ECHR have nearly opposite views about the purpose of the doctrine of adverse possession.
Implications for american law? I think that if Fennell is right that adverse possession serves only the "narrow niche" of being a doctrine of "efficient trespass", then it follows that uncompensated adverse possession is an unconstitutional taking of property. (When the state sets up a mechanism that allows one person to take legal title to another's property, whether it is a Mill Act, a Development Corporation, or an irrigation statute, that mechanism is a taking of property for constitutional purposes.) Even the Kelo majority appeared to believe that when the government wished to move title from one person to another on efficiency grounds, it was constitutionally bound to compensate the original property owner. There might be historical reasons to grandfather in old-style adverse possession rules most of the time, but if we follow Fennell's path and change adverse possession away from the historical version and into a new "efficient trespass" doctrine, it seems hard to avoid the compensation requirement.
So I do not mean to imply that Fennell's argument is wrong-- on the contrary, it seems quite plausible to me. But if it is right, I think the interesting conclusion-- that adverse possession is therefore unconstitutional-- probably follows. If the comments to my previous posts are any indication, commenters will probably disagree rather strongly. I look forward to hearing why.
[UPDATE: I forgot to mention that there were 3 dissenters in the case. Their opinion was very brief, and reiterated the argument that the property right simply had an adverse-possession restriction built into it. Unfortunately, like the majority, they failed to provide a theory about how to tell when a government can "build in" qualifications to a property right for constitutional purposes.]
Tax and Criminal Law
So here's another interesting "tax and" topic: the criminalization of tax shelters (and, possibly, tax practice?). This is a thought I have only preliminarily considered, so I will merely present the problem and hope that those with more experience will weigh in. Apologies in advance for a long post; but I think it's worth it.
Tax shelters have a bad reputation, for some pretty obvious reasons. Among other things, abusive tax shelters illegitimately deprive the government of revenue, force the rest of us to pay higher taxes to make up for that deprivation, and generally breed disrespect for the tax system. Note that in that last sentence I added the descriptive "abusive," however. Not all tax shelters are illegitimate, at least in the eyes of the law. While most tax experts will agree that abusive tax shelters have become a big problem, those same folks will disagree over precisely how to distinguish legitimate non-shelter tax planning from tax shelters, and legitimate from abusive tax shelters.
Most people know the story of the demise of the Arthur Andersen accounting firm. Certain partners of the firm behaved very badly in connection with the Enron scandal. The Department of Justice indicted the entire Andersen firm (not just the partners) for the actions of those individuals. The indictment alone destroyed Andersen and eliminated the jobs of tens of thousands of employees who had nothing to do with the Enron case, long before Andersen was ever convicted. Moreover, even though the DOJ won at trial, the Supreme Court last term overturned Andersen's conviction and, in so doing, strongly hinted that Andersen likely was not guilty of the crime for which it was indicted.
More recently, another top accounting firm, KPMG, came under scrutiny for its tax shelter promotion activities. Under threat of criminal indictment, KPMG decided to save itself from Andersen's fate. KPMG admitted criminal culpability, paid a hefty fine, and agreed to implement a compliance and ethics program and submit to several years of government monitoring in exchange for deferred prosecution. Yet, as I understand it, many people believe that the tax shelters promoted by KPMG were at least arguably within the boundaries of the tax laws and not abusive at all. (Vic Fleischer thinks otherwise.)
The federal tax laws are enormously complex and often ambiguous. Reasonable people disagree all the time over their meaning. The IRS's win/loss record before the courts in recent civil tax shelter cases is less than stellar. And the courts did not have the chance to consider whether the IRS's interpretation of the relevant tax laws was correct with respect to KPMG's tax shelter activities. Even if the IRS's interpretation was correct, if reasonable people can disagree over the law's meaning, shouldn't the rule of lenity apply to preclude criminal sanctions? The tax laws contain extensive civil penalties for failure to adhere to tax rules and regulations and for improper behavior in representing clients before the IRS.
I suspect this is a common issue in criminal law generally: prosecutors "throwing the book" at accused criminal defendants, interpreting criminal statutes creatively (notwithstanding the rule of lenity), and obtaining guilty pleas without having their legal interpretations tested in court as the defendants seek to avoid spending the rest of their lives (rather than just a few years) in jail. The Wall Street Journal regularly accuses Eliot Spitzer of such behavior. I am sure that I have seen articles decrying such prosecutorial behavior in cases involving less well-heeled defendants. Presumably, smart academics have come up with good arguments both for and against this approach to criminal law enforcement.
Most of the discussion at this point has centered on the wisdom of indicting entire firms for the misdeeds of a few partners/employees. Since the tax laws are often ambiguous and difficult to interpret, and the line between legitimate tax planning and abusive tax shelters is far from clear, is there a risk that the IRS and the DOJ will essentially criminalize the practice of tax law? Should we care if legitimate tax planning is chilled because tax lawyers fear being indicted? Should we adopt the view that the DOJ is justified in threatening tax lawyers and accountants with criminal prosecution to put a stop to the scourge of abusive tax shelter activities, and we can trust the IRS and DOJ to use prosecutorial discretion wisely? Again, I don't have any answers here; only questions.
Suicide and the Establishment Clause
One of the great things about being in the Bay Area is the ability to go to whatever Berkeley-based talk one wants. Yesterday, I attended the Law & Society Bag Lunch Series and heard Ed Rubin talk about why he thinks any law coercively preventing someone from committing suicide violates the Establishment Clause. You read that right.
In short, his argument is that any law that targets suicide and coerces people against taking their own lives must be derived from a Christian morality. And since, he claims, there is no plausible secular justification for laws against physician-assisted suicide, such laws must be violative of the Establishment clause under any doctrinal formulation of that clause's requirements. Though he didn't argue it yesterday, apparently he also thinks laws against abortion and gay marriage similarly run afoul of the Establishment Clause.
I like the idea, of course, because I would prefer to live in a society where all laws against suicide, gay-marriage, and abortion run afoul of the Constitution. But it seems he's asking the Establishment Clause to bear too much weight. There is a lot one can say about why this argument must fail. Still, what I find most problematic is the idea that there is no plausible secular justification for these kinds of bans. Admittedly, many (if not most) interested in these bans very likely have religious reasons that undergird their understandings of these social choices. Yet it seems a bit hard to think that there is no reasonable secular justification that could save these bans under the Lemon test. It is really hard, I think, to dismiss all "sanctity of life" arguments and arguments from "traditional morality" as simply Christian. I am not moved by these arguments, of course -- but neither do I find them necessarily religious (and sectarian, at that).
Still, a provocative argument, worth a scan.
Wednesday's Open Thread
Here it is. Remember the rules: be nice and don't be a space hog.
If Joe says it, it comes with a presumption of regularity
Our guest and my friend Fernando has had to fend off tough (and sometimes rough) questions from some of our faithful commentators, but I thought I'd share this report from Senator Joe Lieberman, which was in yesterday's Opinion Journal. (Disclosure: I'm a big fan of JL and his family, and, shhhh, he was at the wedding of a close friend and blogger; I don't always agree with JL, but I do more often than not. He's wise and a mensch.) Here's what he says of the situation in Iraq, which I think gives substantial succor to the position of holding tough there, even if the whens and whys of how we got there are debatable.
I have just returned from my fourth trip to Iraq in the past 17 months and can report real progress there. More work needs to be done, of course, but the Iraqi people are in reach of a watershed transformation from the primitive, killing tyranny of Saddam to modern, self-governing, self-securing nationhood--unless the great American military that has given them and us this unexpected opportunity is prematurely withdrawn. . . .
Here is an ironic finding I brought back from Iraq. While U.S. public opinion polls show serious declines in support for the war and increasing pessimism about how it will end, polls conducted by Iraqis for Iraqi universities show increasing optimism. Two-thirds say they are better off than they were under Saddam, and a resounding 82% are confident their lives in Iraq will be better a year from now than they are today. What a colossal mistake it would be for America's bipartisan political leadership to choose this moment in history to lose its will and, in the famous phrase, to seize defeat from the jaws of the coming victory.
Hat tip: InstaGlenn.
Tax and the Constitution
This is an interesting blog because of its attention to a wide range of issues, as with yesterday's posts on immigration, death penalty, the First Amendment, etc. These are all important topics, of course, but not quite my field. Tax professors frequently hold themselves a bit apart from the rest of the legal academy; but I have never liked that approach, either. So I am always on the lookout for good cases that bridge tax and other areas of the law, like constitutional law.
There is an interesting case coming up this term that fits just this description: DaimlerChrysler v. Cuno. The case involves state tax incentives for economic development -- yet another topic that sounds like a real snoozer to most people, even though most if not all states utilize tax incentives (and thus, in a sense, spend your tax dollars) to lure business and jobs. The case really isn't about the economics of state tax incentives, although opposition to state tax incentives as a matter of policy drove the plaintiffs to challenge such programs in court. Last fall, the Sixth Circuit struck down an Ohio investment tax credit provision on dormant commerce clause grounds while upholding a local property tax waiver against a similar claim. The Supreme Court granted certiorari on the investment tax credit aspect of the case (but not the property tax waiver), and told the parties to brief whether the plaintiffs had standing to raise their claim in federal court in the first instance. There is actually a circuit split of the requirements state taxpayers must satisfy to challenge state statutes in federal court. So this is one of those sleeper cases that fly under the radar of media coverage and public awareness but that raise economically significant and doctrinally important questions.
In the shameless plug department, yesterday I posted on SSRN essays summarizing the issues underlying the Cuno case and discussing the standing question. They can be accessed here and here. Ultimately, I think the Court will overturn the Sixth Circuit on standing grounds, potentially without even resolving the aforementioned circuit split. But many parties are filing amicus briefs in the case. It should be a fun one to follow.
Tuesday, November 29, 2005
Adverse Possession as a Human Rights Violation?
My colleague, Frank Snyder, passes on the news that the European Court of Human Rights has ruled that -- at least in some circumstances -- the United Kingdom's law of adverse possession violates the European Convention on Human Rights. Here is a press release.
The facts of the case, J A Pye (Oxford) Ltd. v. United Kingdom, are complicated but, in a nutshell, the applicants alleged that the United Kingdom law on adverse possession, by which they lost land with development potential to a "neighbour," operated in violation of Article 1 of Protocol No. 1 in their case. According to the press release:
The Court took the view that, with one or two limited exceptions, the uncertainties which sometimes arose in relation to the ownership of land were very unlikely to arise in the context of a system of land ownership involving compulsory registration (as in the applicants' case), where the owner of the land was readily identifiable. In the days before registration became the norm, a result whereby an adverse possessor of land was rewarded by obtaining title could be justified as avoiding protracted uncertainty as to where the title to land lay; where land was registered, it was difficult to see any justification for a legal rule which led to such an unjust result. . . .
The Court accepted that the limitation period of 12 years was relatively long and that the law of adverse possession was well-established and had not altered during the period of the applicants' ownership of the land. It was further accepted that, in order to avoid losing their title, the applicants had to do no more than regularise the Grahams' occupation of the land or issue proceedings to recover its possession within the 12-year period. The question nevertheless remained whether, even having regard to the lack of care on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.
The Court reiterated that the taking of property in the public interest without payment of compensation reasonably related to its value was justified only in exceptional circumstances. . . .
I'm married to a Property prof, but am nevertheless (or, perhaps, therefore) completely ignorant about what -- if anything -- has been going on in the United States on this front. Have constitutional challenges to adverse possession been sustained, or even raised?
Clemency, the Death Penalty, and "Personal Reform"
Here is an interesting piece: "Death Row: Does Personal Reform Count?" It opens with this:
Exactly 229 death-row inmates have been granted clemency since the United States reinstated capital punishment in 1976, and the list of reasons is short. The 16 governors who have given such pardons cited just three reasons: lingering doubt about guilt, a governor's own philosophical opposition to the death penalty, and mental disability of the accused.
Starkly absent from the list - notable because of a high-profile clemency request now pending in California - is character reform of the guilty.
After discussing that California case (involving "Tookie" Williams, the founder of the Crips and a "four-time murderer"), the essay continues:
"If he goes ahead and puts to death a man who has clearly shown he has turned himself around, [and] is not the man he once was, what does that say to all other prisoners who are similarly incarcerated and are trying to reform themselves - that personal reform doesn't matter?" asks Jan Handzlik, a member of Williams's defense team.
Similarly, what message does a commuted death sentence send to prosecutors and law-enforcement officers, who daily work to fulfill the requirements of the legal system to obtain proper prosecutions? Or to victims' families and other convicts?
"It sends the worst signal to the criminal element if you commute someone," says Michael Paranzino, who runs a nonpartisan research group dedicated to crime victims and their families. "What are other criminals supposed to think ... that if you suddenly write poetry, say all the right things, and find a champion on the outside that you get a 'get out of jail free' card?"
Because of all this, "clemency is a very lonely decision," says Margaret Love, former head of the pardon office in the US Justice Department. "It is a question of how to blend mercy with justice, the human and the legal in light of all circumstances before you, with life on the line."
Putting aside (for now) questions concerning the morality or wisdom of capital punishment, and putting aside also (for now) any questions about the scope, under the relevant legal regime, of an executive's clemency power, should clemency be extended on the (sole) ground that a convict has reformed?
Just below, I asked why we don't simply move death penalty cases out of the Supreme Court to a specialized criminal court. One possible reason now occurs to me. It occurs to me that those who hope for the elimination of the death penalty might oppose my move, because they are hoping that members of the Supreme Court will grow so tired with the conflicting demands of Eighth Amendment jurisprudence, that they will eventually, like Justice Blackmun, attempt to simply shut down the machinery of death. It seems rather unlikely that a death penalty court will ever declare the death penalty categorically unconstitutional, since it would put them out of a job.
Now I don't know if that political calculation is actually right, and I don't know if anybody would find it persuasive, but it does seem like one group of people who might reasonably oppose a death penalty court.
UPDATE: Doug Berman has some further thoughts on other death-related topics. Via email, he also asks how I would decide whether a case counts as a "death" case. My initial inclination was to say that any case in which there is a legal issue that would result in a condemned person no longer being a condemned person would be a "death" case, but that might mean that my death court would rapidly turn into a general court of criminal appeals. I am not sure that would be so bad, although several commenters (including co-blogger Steve) appear to think that the Texas example shows that this is a mistake. I would love to hear more from those in the know.
We all know that the Evangelicals and the Jews are in bed together, facilitating the U.S.'s Israel-friendly policy. Of course AIPAC is powerful for a series of reasons -- but the Zionist agenda is possible, in large measure, owing to Christian Zionism on the Religious Right. That may be a controversial idea, but a kernal of it must be true.
Now I'm generally ambivalent about the Anti-Defamation League. I dislike anti-semitism and hate as much as the next guy (and, really, how could anti-semitism benefit me), so find the ADL's work mostly worthwhile. Still, I think the ADL can also be hyper-sensitive about anti-semitism in particular (while being less than hyper-sensitive about other forms of hate and discrimination); and I've concluded that being hyper-sensitive about anti-semitism is especially bad for the Jews -- and can only lead to more anti-semitism. I'll leave that argument for another day.
Ruchira Paul has just alerted me to an interesting article in Salon about how the ADL and the Union for Reform Judaism is beginning to speak out against Evangelicals for their support of the destruction of the wall between Church and state. Abraham Foxman, ADL's leader, is now vocally criticizing his friends on the Religious Right. Will they withdraw support for Israel, leading Republicans to adopt a less Israel-friendly foreign policy? Stay tuned!
More on David Gale, er, Ruben Cantu
Why is the execution of a guy who died twelve years ago news now? I have a piece in Slate that explains.
Update: Austin Sarat has some thoughts on my next likely project over at Findlaw.
The Court of Death
When I saw Jason Mazzone's post on Concurring Opinions, complaining that the Supreme Court Justices don't take more cases, I was and remain skeptical. Orin Kerr has largely pre-empted my own thoughts, namely that it is hard to consider the question of increased docket size in the abstract (what cases should the Court have taken?) and also that unanimous or short opinions are highly over-rated. The important audience for Supreme Court opinions is not nerdy law students, eager bloggers, or the general public-- it is lower-court judges, their clerks, and the lawyers who must litigate before them. More pages in the opinion are probably better than less, as often as not.
But I was even more interested to read Doug Berman's and Mike's reply about the Court's Crim Pro cases, where both complain that the Court is too busy for questions like Booker retroactivity because it spends so much time on extremely narrow death penalty cases.
I personally do not share the view that "death is different" in kind than other sorts of criminal punishment, and I think the common obsession with making sure every state execution is procedurally and substantively flawless is a massive waste of resources that should be spent on making sure that fewer people are wrongfully sent to prison. But obviously not everybody agrees with my views, and a great many people think it is important to make sure a whole lot of judges sign off before a state is allowed to kill somebody.
So. Why not create a specialized court to handle death-penalty cases? As I understand the typical proposals to create specialized subject-matter courts, the idea would be to withdraw final jurisdiction from the Supreme Court and instead create a separate Article III appellate court that could do the work. I am pretty sure this is constitutionally permissible, but it would also presumably be permissible to simply eliminate SCOTUS's death penalty jurisdiction and create the "court" as a part of the executive branch to govern exercise of the pardon power. (The pardon court is a little more institutionally complicated for federalism reasons.)
Anyway, such a court would presumably consist of a mix of death-penalty supporters and opponents, many of whom would have a large degree of criminal trial experience, and they could deal with the ever-complicated jurisprudence of death and free up the Supremes-- who have no particular expertise in the area-- to play around with the vagaries of Colorado River abstention.
I am normally dubious of specialized courts because I fear technocrats, but I think the usual worries here are reduced. The chance of interest group capture here seems comparably small because of the salience of the issue and because it isn't obvious who would be the potential captors. So. Why not?
Fernando and Dan debate immigration below, with Fernando championing the huddled masses yearning to be free and Dan a little more cautious, worrying about both welfare and communitarian reasons. As a believer in basically free immigration, I will add some thoughts.
First, it seems unwise to continue the discussion without noting the contributions some time ago by Richard Posner, Gary Becker, and Tyler Cowen. Posner and Becker each suggest a pay-to-enter system (with low-interest loans) that would be pareto-superior to our current system. Tyler Cower is basically libertarian about this, but worried about shanty-towns and underclasses. In the end, he favors trying to substitute legal immigration for illegal immigration.
I am willing to go farther than that. As a matter of basic justice, I think nothing should stop a willing landowner from selling or renting his house to somebody who would like to come and live in it, even if that potential buyer will be coming from Mexico or Manitoba or Malawi. Similarly, nothing should stop somebody from hiring folks who she likes regardless of where they live. Free trade should apply to houses and jobs too.
My friend Indivar Dutta-Gupta likes to refer to the "birth lottery". If you imagine you are going to be born as any possible baby on the earth, one of the largest random swings in your well-being will be what country you are born in. Whether we believe that the government should try to equalize these inequalities or not, it does seem trouble for the government to deliberately entrench them.
At the same time, the worries about impacts on the welfare system and the like are quite real. If we were to totally open the gates, I suspect the population of the U.S. would be well over a billion within 10 years. Now, I would be fine with drastically reducing the amount of federal welfare payments and the minimum wage in order to do this-- better poor in New York than poor in Niger-- but a lot of people would in fact be troubled by this.
I think this is Guido Calabresi's lesson about "Tragic Choices". In fact, people would like very much to turn a blind eye to certain problems because they don't like any of the possible solutions. Keeping immigrants out allows most people to pretend, most of the time, that their plight doesn't really exist, or somehow has less moral salience. Whether this is rational or reasonable is beside the point as a political matter. Psychological does not always bend to logic, so we would-be liberalizers have to figure out how to work with what we're likely to have.
[I will set aside the communitarian argument, not because I think it is obviously vapid, but because I think it is totally intractable. One person's community is another person's xenophobia. Plus, even supposing a communitarian ideal, the question of what the American community ought to look like is so highly contested that it hardly resolves the problem. Some people believe Americans should be white or black english-speakers. Others believe in the total melting pot.]
So the question is what to do. The problems are real-- it is simply implausible that current Americans would tolerate letting in large numbers of immigrants without also extending to them welfare payments that might be fiscally unfeasible. So if one believes in open immigration, as I do and as Fernando does, the question is how open of a policy we could get away with. This is surely the appeal of our current system-- having large amounts of illegal immigration and then not talking about it. We allow large numbers of people who want to come to come, withhold certain social welfare programs from them and thus keep states solvent, but avoid offending middle-class voters that both parties find themselves forced to pander to.
I in no way endorse this equilibrium, so feasible suggestions about how to improve on it are welcome.
Annals of the First Amendment, Part I
Here's an interesting article from today's LA Times, discussing the position of religious broadcasters in an FCC debate over whether cable subscribers should be forced to purchase their programming in bundles of channels, or whether they ought to be able to purchase channels on an a la carte basis. Although the a la carte method has been championed by anti-indecency consumer groups, a number of televangelists are opposing their usual bedfellows and arguing for a bundling method. A public hearing will be held on the issue today by Sen. Ted Stevens.
I'm not a telecom guy and won't offer substantive thoughts on the debate. What I find interesting about this story, from a First Amendment perspective, is that it so clearly presents two sides of a now-classic debate over how we should view the First Amendment, in which none of the folks lined up on either side of the debate are precisely where they might normally be. The anti-indecency forces, who might otherwise favor direct content regulation but here see an opportunity for a partial victory and thus are arguing for the a la carte method, here depart from the pro-regulatory tendencies and represent a classic individualistic and libertarian vision of the First Amendment, arguing that this method lets consumers choose what they will watch. The televangelists, on the other hand, who I think in other instances (but not all instances) might champion a traditional individual rights model of speech, are here favoring a model that can only be described as a communitarian, Owen Fiss/Cass Sunstein style of speech in which people are exposed to different viewpoints they might not otherwise find on their own; says one religious broadcaster, "We don't just want to preach to the choir; we want to reach the unchurched." I readily admit I never thought I'd have a chance to put Owen Fiss and Pat Robertson in the same sentence.
In any event, a nice stark presentation of competing visions of the First Amendment -- one that is much more likely to occur where the broadcasting/cable media are involved, as this paper discusses. And one should not be too surprised that some sides are making arguments here that might be unfamiliar to them in other contexts, given both the proselytization imperative for many of the faiths involved and the equally stark fact that religious broadcasting can be big, big business.
Coercive Expatriation and Unconstitutional Conditions
[Although the title of this post might make for a good story about staying home too long during Thanksgiving, I, unfortunately, settled on something a little less exciting.]
We now have two-and-a-half more weeks to ponder the imponderables in the case of Jose Padilla, given that the SG asked for, and received, an extension on its Op. Cert. until December 16 (it was originally due yesterday). In that vein, Juliette Kayyem has some interesting thoughts on "The Future of Padilla" over at TPMCafe... Although tangential to her post, Kayyem mentions how one of the conditions of the release of the other U.S. citizen "enemy combatant" -- Yaser Esam Hamdi -- was that Hamdi renounce his U.S. citizenship.
There may not be much that Americans like me take more for granted than citizenship. Talk about something that we benefit from every day, but seldom think about... But the machinations in Hamdi, and Kayyem's suggestion that a similar fate may await Jose Padilla, led me to wonder about whether it really is that easy for the government. Can a condition of your release from military custody really be that you'll renounce your citizenship? Could local law enforcement borrow a page from the Department of Defense's playbook?
I was heartened to learn, after not that much research, that the answer appears to be a resounding NO. It is now black-letter constitutional law that "every citizen has a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship." [From Vance v. Terrazas, which itself largely relied on Afroyim v. Rusk]. Such a right comes from the so-called Citizenship Clause of the Fourteenth Amendment, which provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
So, the only question that needs to be asked in assessing the legality of such coercive expatriation is whether the expatriating act was, in fact, "voluntary." Here, I'll defer to the experts on criminal procedure, but it seems fairly straightforward to me to conclude that any such Hobson's Choice -- stay in military detention or renounce your citizenship -- could hardly be called "voluntary" within any traditional meaning of the word...
Absent such a voluntary renunciation of citizenship, it seems like Hamdi's release agreement presents the textbook "unconstitutional conditions" case, to borrow from the ongoing debate over the Solomon Amendment. The better question, I imagine, is who gets to raise this claim, unless Hamdi himself returns to the United States, and the government attempts to deport him...
Shaming news from SCOTUS
As part of my ongoing obligation to ride my "shaming" horse into posterity -- see here for details -- I bring sad, but expected, news: SCOTUS has denied cert in the Gementera ("I stole mail. This is my punishment.") case, in which I briefed an amicus for a bunch of crim prawfs in the 9th Cir. Here's the Greenhouse coverage, and some fuller coverage from the SF Chronicle and CNN, where I appeared on TV a year ago to discuss the case and debate the merits of shaming with a Louisiana judge. (I'll let the masochists find the CNN transcript--if you think blogging's bad b/c of trigger-finger problems, try TV. Argh. Note to self: Get your talking points memorized beforehand!)
Perhaps Jason Mazzone is right, contra Orin, and the SCT should take on more cases like this one to prevent a rash of bridge, pinochle and web-surfing. Now that the Court has denied cert, I feel comfortable saying that I'm not surpised. Unfortunately, we didn't have much of a circuit split to warrant intervention and unless you're taking on Disney and have a bunch of former students as SCOTUS clerks probably pulling strings in service to your cause, you're not likely to get the Court's attention. Still, I'm pleased that someone at the Court got to see our brief, which was appended to the Petitioner's. And who knows, now that the 9th Cir.'s decision has been left alone, some other wacky judge will follow suit. Lord knows, shaming's everywhere these days, even (especially?) here in Florida. Jeepers.
(Hat tip to Alice Ristroph, whose excellent new paper is here, and Mike Rader.)
Our first open thread
As intimated in some earlier posts, in the hopes of trying to create some more community among our readers and writers, we're starting an open thread on an experimental basis. We might do it for a few days, one day, or much longer.
Here are the ground rules. The presumption is no anonymous posting. We reserve the right to police that line arbitrarily. Censorship is when the government shuts you down. This is not a public forum. So don't whine when we delete comments that pass our taste threshhold. Please play nicely with us and the others.
Some further thoughts on immigration controls
I've decided to take the bait from Fernando's post below on immigration controls. As a Canadian here on the Free Trade visa, I'm generally very appreciative of the free movement of persons notion. (Of course, thanks to Wendi, I'll eventually be a Green-carder...ok, no jokes; her decision to accept my proposal, I hope, was not its own form of humanitarian intervention.) But regarding your post, Fernando, let me raise a few questions that suggest the need for some limits on your robust enthusiasm for borderless worlds:
1) in response to your second point about conditioning entry upon curtailing eligibility for welfare, I would think that there's two problems raised. First, even if ex ante the conditional entry would be a good decision because it would deter "weak" economic migrants, there's going to be a lot of people who ex post will think that a relatively prosperous society should not allow people to starve (or die of readily treatable illnesses) if they can't find work and find subsistence wages and benefits. (Maybe you think private charities will pick up the slack here?) So preventing the influx of all economic migrants might be a pre-commitment strategy to avoid that "tragic choice" of enforcing an agreement that no want to have enforced ex post. (Maybe there's some room for acoustic separation between the conduct and decision rule, but I can't figure out on the fly how you do that).
Second, not allowing welfare benefits to the destitute immigrants may embolden and encourage higher levels of crime. I, for one, am glad that at least in most parts of the United States, fiancees don't generally risk having their ring fingers cut off by crooks to get the ring. That's a relatively frequent occurence in parts of South America (from what I've heard).
2) I don't think the communitarian arguments are inherently xenophobic.
Others may disagree with me, but you (I think) probably agree that a state like Israel is not obligated to take all economic migrants (from poor African or Arab states--why not?) to take advantage of the relative economic success of Israel. (Indeed, it was the demography "time-bomb" that likely motivated Sharon's decision to give Gaza to the PA to run). If it's permissible for Israel to be selective, and Israel is entitled to give preferential treatment for Jewish immigrants over non-Jewish immigrants, what principle separates Israel's decision from the desire by other liberal democracies who wish to exercise caution before opening the gates to all who would enter? Historical contingencies? Well, every nation has those to greater or lesser degrees. That's the invention of national identity.
I think your position comes down to the fact that you, as a libertarian, don't much care for democracies, majoritarian will, when those values conflict with economic or social choices by individuals. Fine. But what about the freedom of association rights of individuals, and the importance of self-government in the concept of liberty you cherish? Can't culture or national identity play into that valuation of liberty without being intrinsically xenophobic? Relatedly, isn't there a difference between trying to develop a culture that is proud of itself and its heritage and character without it denigrating or fearing the cultures of others? Can't that be a project worth caring about and pursuing? I'd recommend Yael Tamir's book on Liberal Nationalism (Princeton 1994) if you haven't read it. (I'm not persuaded it by it entirely, but I think it raises difficult questions worth considering.)
Meanwhile, over at Ribstein's Place
I've meant to point our readers more recently than now to the street urchins who have stormed Ribstein's Cathedral, but I've been busy helping put out fires and creating new ones (in the form of exam questions for my students). Seriously, check out Ideoblog, where you can find the inimitable Kate Litvak explaining how the government stole Christmas. (It appears that an earlier post of Kate's about the meaning of Thanksgiving has disappeared, but her arch sense of humor is evident here in a response to Geoff Manne's excellent post on Google and incentives for authorship, suggesting perhaps that Kate will be the Sarah Silverman of the legal academy.)
Against Immigration Controls
Apparently both parties, with Republicans in the lead, have embarked on an anti-immigrant frenzy. The hysteria has been fueled for some time now by daily broadcasts in all major networks and gravely sounding members of Congress discussing the “crisis on our borders”, “our bankrupt immigration system”, etc. The virulence of this sentiment makes Le Pen in France seem like a cosmopolitan liberal.
Yet liberal principles require a drastic reduction of immigration controls. Foreigners flock to our shores because there is demand for their labor. The same principle that supports free trade of goods and services -- the law of comparative advantages -- applies with equal force to freedom of movement. Freer immigration would alleviate world poverty and allow people in our country to redirect resources toward more efficient activities. Every single argument for strict immigration controls is flawed:
1) Sometimes we hear that if we don’t control immigration we will be invaded, that is, foreigners will keep coming to this country indefinitely and we would be unable to support them. But that argument ignores the simple economics of immigration flows. Foreigners come because they find jobs. Once there are no more jobs for them, once the market becomes saturated, they will stop coming. For who wants to move from the comfort and warmth of their culture, say in Hermosillo, Sonora, to a hostile, impersonal place like Phoenix, Arizona, where they don’t understand the language and feel unprotected and lonely, unless they have economic opportunity?
2) Another argument is that immigrants, if they don’t find jobs, will free-ride on the welfare laws. Well, that’s easily solved: open immigration for people seeking economic opportunity, on the condition that they will not be allowed to draw welfare benefits (or, better yet, abolish welfare, but I don’t wish to argue that point.)
3) “Immigrants will take American jobs, since they charge less.” Well, so will someone moving to Arizona from Florida who charges less. Why is it all right to be out-competed by a fellow citizen but not by a foreigner? "Being a foreigner" is a morally non-invokable trait for this purpose (allowing the person to work.)
4) I omit discussion of the communitarian arguments (“we need to protect our culture,” etc.) who sound to me really bordering on xenophobia.
Perhaps we should have immigration controls to screen out terrorists and the like. But the so-called economic refugees, who cross the border at the Rio Grande at great peril to their lives just to seek a better future for themselves and their families in our country, are, to my mind, true heroes.
Monday, November 28, 2005
Justice Scalia's Off the Record Remarks
Perhaps you've heard about the controversy surrounding Justice Scalia's supposedly "off the record" remarks to the press at a Time Warner event. Details here. Lloyd Grove, gossip columnist for the Daily News, wrote up the event as a hypothetical occurrence, framing his quotes as things that the Justice "might have" said had the event not been off the record. The NYT then wrote up the ensuing aftermath to Grove's article, including Time Warner's anger at Grove. (My favorite quote from the NYT article: "A Time Warner executive, who did not want to be identified because he did not want to appear to be speaking for the justice, said that Mr. Scalia had no complaints about the coverage.")
A few questions. First, should the justice have expected his remarks to remain off the record, given that they were made to the press? Second, what is the purpose of such an event if it is "off the record"?
Finally, as a related manner, are bloggers now expected to declare themselves as "press" at proceedings involving public figures? If there is no "off the record" proviso, can bloggers quote at will, or is there an obligation to seek permission before quoting?
UPDATE: Jack Shafer discusses the controversy here. If the meeting was really supposed to be off the record, he asks, "what is the point of holding the session in the first place?"
Solomon's Choice -- Or Hobson's?
For those following the Solomon Amendment litigation, which reaches the Supreme Court next week, this article in the Boston Globe is both detailed and interesting. It deals with the question whether the plaintiffs' arguments against the application of the Solomon Amendment to law schools could undermine the general applicability of Title VI and Title IX, thus lending some perspective on why some amici -- notably the amicus brief penned by Walter Dellinger of O'Melveny & Myers -- have focused more narrowly on the proper reading of the statute itself than on broader constitutional arguments like those raised by the plaintiffs.
The kicker quote, courtesy of Professor Tribe, notes, in his words, that ''[s]ome universities like Bob Jones or some analog of Bob Jones on the gender side might well be able to generate a First Amendment argument. . . . And I would hate to see a world in which that kind of First Amendment claim became a general blueprint for avoiding the neutral across-the-board application of antidiscrimination rules." For those of us who cautiously question whether the Bob Jones case, and perhaps Runyon v. McCrary, were rightly decided, of course, Tribe's nightmare may be more of a prospect. But Tribe, and the article, are certainly right that many natural sympathizers with the plaintiffs in the Solomon Amendment litigation should be careful what they wish for.
A quote from Kathleen Sullivan of Stanford Law School is also worth singling out. Sullivan argues, in part, that the statute fails to show a close fit between the military's goal of recruiting and the penalties exacted by the statute because, to quote the article's characterization of her argument, "the military's insistence on equal access-and the ensuing 'political theater' in the form of campus protests and picket lines-actually works against the goal of successful recruitment, discouraging law students from interviewing with the military at all. 'The military was just at Stanford," she said recently, ''and no one showed up to interview because of the protests.'" I'm not sure how many people she thinks would have showed up Stanford anyway, but whatever else her argument does, surely it also wreaks havoc with the compelled speech and freedom of association claims raised by the plaintiffs: if protests are available, plentiful, and effective, how can anyone reasonably argue that the military's presence on campus will be mistaken for an endorsement of the military by the law schools? I also find striking the extent to which Sullivan's argument carries with it undertones of an implicit endorsement of the heckler's veto. But all this should be expected by now, perhaps, in litigation which seems to have thrown a lot of the debaters out of step with arguments they would make in other contexts.
NDP: Now Demanding Payment
For those of you -- all two or three of you -- who depend on Prawfsblawg for your Canadian political news, read this story, detailing today's failure of the current Liberal government in a no-confidence vote, following ongoing revelations about the use of improper use of federal funds (in Quebec, natch) by the Liberal Party (and former Chretien government). The election will be held in January.
A couple of notes. First, for those of you who tire of the seemingly permanent campaign mode of American politics, this: the election campaign will likely last a whopping total of 56 days, making it one of the longest campaigns in recent Canadian political history. 56 days! Although this is a bit illusory: of course, everything that's been happening on Parliament Hill over the past several months has been a political campaign. Moreover, the Liberal Party never governs -- it only campaigns.
The other bit I enjoyed was the description of the role of the New Democratic Party, Canada's nominally left-leaning (Americans might instead call it "Canada's radical leftist party") party, which prides itself on its attachment to principle and is no stranger to sanctimony. Here's the description of its role in the current government's failure:
"The process of the toppling of the government began about three weeks ago, when NDP Leader Jack Layton, whose party had propped up the Liberals in exchange for budget concessions last May, said he could no longer support the government. At issue was an ultimatum issued by the NDP to the Liberals for a crackdown on the privatization of health care. Mr. Layton said he could not abide by what he saw as the government's 'unacceptable' response [to the ultimatum]."
So, just to recap, the NDP, which railed against the Liberal Party and its representatives in goverment for being unable to "distinguish between the public purse and its own," was more than happy to keep that corrupt government in power as long as it could bend the government to its will. It only decided it had had enough when it could no longer exact concessions. Presumably Layton will now campaign against the Liberal government on the ground that it is corrupt -- when, ironically, his real problem with it was that it was not corrupt enough.
All right, my fellow Canadians, that's it, eh. It's been an honour sharing the news from back home with you. Now back to our regularly scheduled programming.
The Foreword: The Statistics
Thanks to Ethan for posting on the Foreword by the Pos; I've been meaning to add some more detailed comments on this article, which I find in turns interesting, thought-provoking, muddled, and questionable -- and hence, as people seem intent on pointing out today on Prawfsblawg, vintage Posner. I do hope soon to blog on my views concerning this article.
Will Baude, in the comments to Ethan's post, suggests that at least one saving grace of the Pos's effort is that, unlike other Forewords, it is actually grounded in the work of the Court, and specifically its most recent Term. On that note, may I excerpt a letter of mine published in the Winter 2003 issue of The Green Bag:
* * * * *
This year's Foreword, by Aharon Barak, President of the Supreme Court of Israel, is even more sparing with the details than [an earlier Foreword]. See President Aharon Barak, The Supreme Court, 2001 Term, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16 (2002). In fact, President Barak came very close this year to pitching a complete shutout--he was only one case away from failing to mention a single case decided by the Supreme Court in its most recent term. Sadly, the Court's decision in Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002), does come in for a few brief footnote mentions. Still, a one-hitter is pretty impressive, especially given that Barak had 146 pages to work with compared to Jaffe's eight.
Incidentally, if you count mentions of Supreme Court cases decided in this millennium, Barak picks up only one more--the obligatory mention of Bush v. Gore. And if you widen the scope to include any case decided by the United States Supreme Court in the 1990s, the total comes up to just seven; not bad, but only a tie with his mention of seven Canadian Supreme Court cases decided in the same period.
Future Foreword writers, take note: the bar has been raised. One can only dream of the giant, perhaps slouching his or her way toward Cambridge even now, who may one day pitch a perfect shutout in the Foreword: no mention of any cases at all.
One often hears about Sunstein that he has no choice but to be hit or miss: if one writes hundreds of pages a year, one just cannot be careful and fully insightful on each page. One rarely hears this criticism directed at Posner. Yet, after reading Posner's Foreword, "A Political Court," I can't help but feel that the charge against Sunstein applies to Posner -- at least for this article.
It isn't that there was anything interestingly wrong in the article (though his reliance on the group polarization literature was less than careful -- institutional context matters a great deal for whether the effect is actually measureable, a detail fairly important to his argument). It just felt a bit all over the place and the organization was a bit haphazard. It was neither a sustained rejoinder to critics of his "pragmatism" who feel his theory is completely indeterminate; nor a sustained argument for a new Constitutional Court; nor did it very carefully address Hart's Foreword, which it set as a target of sorts. In the course of addressing Hart's Foreword, it helpfully clarified that the Court's incredibly shrinking docket is not having many of the effects routinely falsely imputed to it. But its focus on how indeterminate many of the Court's decisions are -- and that politics must invariably play a role in Supreme Court decision-maiking -- is fairly old: we all have been exposed to CLS and legal realism.
On the other hand, the very fact that these old chestnuts are repeated and confirmed by a sitting judge is of some value. From my perspective, I am glad that a judge is telling the world that judges don't read records and that they rarely even write their own opinions; these are outrageous facts about the judiciary that we rarely confront. Some of the best parts of the article are the random personal reflections within, for example when Posner notes that he sometimes thinks of a case as a "toss-up," but then grows "comfortable" with his decision because "there is a psychological need to think one is making the right decision."
One funny note: Since Jeff Rosen's New York Times article about the "Constitution-in-Exile," most conservatives have been aggressively policing the use of the term, trying to argue vigorously that there is no such thing. Posner actually uses the term, albeit in quotes from the Ginsburg article from which the term derives, in a footnote about Lochner's respectable defenders. Oh, yeah: He sort of defends Kelo too.
Taking Stock of the Semester, Part II: Why PowerPoint?
I want to thank Dan both for his welcome and for inviting me to guest blog. Dan was kind enough earlier in the semester to help me advertise a conference on state tax incentives for economic development that I put together here at the University of Minnesota Law School. (If you are interested, a webcast of the event and lots of documentation are available here.) In exchange, I happily agreed to guest blog for two weeks. I must concede that this is my first attempt at blogging. From reading the blogs of others, however, it seems to me that blogging, like teaching, is harder than it looks. So this is an experiment that I can only hope goes well.
As Dan noted below, I teach tax and administrative law -- both very dense areas of the law that I find fascinating but that bore most students silly. I am just finishing my fifth semester of teaching, and things generally seem to go just fine, but I am still experimenting with different techniques. For example, this semester I tried PowerPoint for the first time in my Tax I class. I have always been a PowerPoint skeptic, but my teaching evaluations reflected strong popular demand, so I thought I would try it. I am still not sure what I think. On the one hand, the PowerPoint is easier to read than my handwriting, and it's great for spelling out three-part tests and working through the frequent mathematical computations that crop up in tax courses. On the other hand, note taking seems to me to be a dying art among students, yet is a very valuable (if not essential) skill for junior attorneys; and using PowerPoint seems to make it easier for students to get by without learning how to take good notes. Moreover, PowerPoint seemed to me to suck all the life out of my class by removing much of the sponteneity as we adhered to the PowerPoint script. So I was intrigued by Dan's post last week regarding his "conversion" to being a PowerPoint fan. Recognizing that professors and students make up much of this blog's audience, I am curious both as to why other professors like using PowerPoint and why students like PowerPoint.
Perhaps not the most exciting post to start off this new experiment with blogging, but at least one that poses a genuine question that has been puzzling me.
The Costs of Doing Business
Earlier this month, Judge Posner wrote an opinion for the Seventh Circuit in Budget Rent-A-Car v. Consolidated Equity. What for many judges would have been a routine request for attorney's fees and costs Posner turned into a fascinating brief opinion. Having won on the merits, Budget submitted a memo for its attorneys' costs which Posner denied as being exorbitant because too many hours had been spent on memos he considered to be pretty insubstantial, and because they had attempted to charge as a "filing fee" the cost of admitting an attorney to the Seventh Circuit.
Over at Point of Law, Ted Frank suggests that Posner simply doesn't understand how expensive litigation really is.
There are, no doubt, attorneys out there who can generate a Seventh-Circuit-quality brief in less than 13.7 hours, especially if they have a client who does not wish to be consulted on such matters, especially if the associate working on the case is already a good writer who has knowledge of the underlying law and doesn't have to do much research because he or she knows, and is confident of, which cases to cite off the top of his or her head. But, in the messy reality of real life, the junior associate will be performing legal tasks without prior experience and will be learning by doing: he or she will never have dealt with the underlying issue before, will need to spend time doing research to familiarize himself or herself with the issue, will need to double-check the cases cited, will do a first draft that requires extensive editing from the partner, will need to spend time implementing the partner's edits, will need to coordinate with the client for the client's approval of the brief and answering the client's questions about the issues and making the client's edits, and then will need to spend time researching the Seventh Circuit's very particularized rules for brief-filing (including electronic filing and service).
Now, it is my suspicion that Judge Posner, who is very smart, and who has clerks who are very smart and have recently worked as summer associates for very good law firms, is not in fact ignorant of "the messy reality of real life." But if I'm right, the question is: what gives? Posner does not go into detail in the opinion about how he knows that the costs are exorbitant and what non-exorbitant costs would be, so I will attempt to offer a theory here.
Budget claims to have spent 27 hours preparing two short memoranda which Posner describes as "exiguous". They also attempted to claim as a cost a $165 "filing fee" which was in fact the fee for an attorney to be admitted to practice before the Seventh Circuit. Posner's rejection of the latter sheds light, I think, on the whole theory.
As Mr. Frank suggests, the problem here is that law firms serve as the training ground for young lawyers, who have learned basically nothing about the actual practice of, e.g., appellate law before being hired. The result is that these lawyers are forced to "learn by doing" and therefore take longer than they otherwise would. Law firms, of course, externalize these costs to their clients or (in cases like this) to their opponents. This-- I think-- is what Posner is objecting to.
Speaking economically, litigation incurs both fixed costs and variable costs. The fixed costs are costs incurred doing things like training younger attorneys and getting them admitted to the Seventh Circuit that will pay dividends long beyond this case. The reason to give this work to a younger lawyer who will take longer is that this is how he or she gets experience and becomes a better lawyer. But Posner, I think, wonders why Budget's lawyers should be doing this on somebody else's dime.
Now, I have no idea whether this is a fair or an unfair way for Posner to interpret the rules about attorney's fees. If this is indeed the common practice, as I suspect that it is, and if indeed clients routinely subsidize the fixed costs of young lawyers, as I suspect they do, then it is not obvious that Posner is right to use a costs motion as the vehicle for this move. But I do think that's what he's doing, and I don't think it demonstrates a "complete lack of understanding" about the way that litigation works, rather than a challenge to the current practice of training smart young people to practice law in the guise of hiring them as junior associates.
Just a note of further thanks to my friend Dave Hoffman, who will be leaving Prawfs after his visit with us for the semester. You can catch his future blogging here.
In the meantime, we will continue to have Steve Vladeck and Fernando Teson guest-blogging with us. Additionally, I want to welcome Kristin Hickman, who's a tax and admin prawf at Minnesota, and Will Baude, whom many readers already know from his regular haunt at Crescat Sententia (or his guest visit at the Glom). Though Will is still a student at Yale Law, he has been a shrewd observer of the legal scene, and we are glad he will be with us until the pressure of his January exams starts to weigh in on him. Please welcome Kristin and Will!
From Ekow Yankah: Of Dressing Up and Selling Out
(Ekow Yankah is a rookie prawf at U. of Illinois and a former guest with Prawfs--Ed.)
Having learned nothing from my prior blogging (i.e. the difficulty of taking on sophisticated subjects in brief and suffering the consequences –or compliment- of much more thorough counterargument) I again tackle a sensitive topic. The topic has the danger of touching upon the live wire of race and pop culture. It will undoubtedly invite some to declare that I am a black man whose success has caused me to lose touch with black culture or identity (or much, much worse). My only real hope is that the lateness of my taking up the topic and the level of conversation on this website provides the highest level of intelligent accusations. Forward!
Earlier this year the NBA commissioner David Stern announced the imposition of a new NBA dress code. The dress code requires players to dress in business cassual attire when on official league business, e.g. on the way to games. It also specifically barred certain articles of clothing in what some viewed as a specific attack on black culture, for example barring all medallions and head wear. Set aside that some astute observers have noted that the announcement of the policy seemed strategically chosen to focus attention on professional basketball before the season when it is largely missing from the public eye. The imposition of the dress code, viewed as an imposition of a white mainstream aesthetic attempting to suppress the urban hip-hop style of a league dominated by young black athletes, gave rise to a predictable controversy.
Unlike some commentators I do not find the accusation absurd. Where the articles of clothing, (or speech, cultural knowledge or other markers) which determine one's fluidity in positions of power are dominated by a single race, it is impossible to imagine that race can be totally separated from these markers. Put simply, in America, white people largely, though certainly not singularly, define what constitutes "normal" or "appropriate" dress. Thus, when some black athletes viewed the NBA's dress code as an attempt to impose a style on them as racially charged, their position was not without basis.
To be sure, I am not claiming that Black America is monolithic in style or thought. African-Americans have a long history of elegance and style; the archetype of the fine Black gentleman and the resplendence of Black churches are but two examples. Further, the idea that having to dress up for work is somehow antithetical with black identity is not one I believe is largely held. Thus, the contention that a black man has to stake his identity in part on his low slung jeans and medallions is advanced by, at most, a sub-group of (typically young) African-Americans. Yet, it is undeniably there and easily tapped into.
We can quickly dispense with many of the arguments made against the dress code immediately following its imposition. Allen Iverson's repeated position that a suit does not make one a good man, if taken literally, is totally besides the point. Nobody would seriously contend that what you wear changes your moral make-up. (The possible exception to this may be where what one wears is morally relevant given social norms, so that wearing red to a funeral with the knowledge that this will cause insult may matter in light of the purposeful violation of strong social norms. But this point should be put aside.) The more powerful point in Iverson's position is of that the league's attempt to make its product more palatable is a shallow one as the various advertisers ought recognize that whatever traits that they found unattractive in basketball players would seem unchanged by simply putting basketball players in Valentino.
This, of course, ignores that in many instances the very thing that advertisers object to is the image of the players and that advertisers are unapologetically shallow. (Never mind the ultimate question in my mind as to whether, even from an advertising point-of-view, this is a good move for the league.) The even better argument by Marcus Camby that the league should consider giving a clothing stipend to a group of millionaires predictably drowned in a sea of laughter. I, for one, thought it did not get a fair hearing and am forwarding this wonderful and ambitious contention to my Dean for translation into the law school setting.
Further, the spate of rights talk ("One has a right to determine what one wears") is untenable. Absent interaction with other rights (e.g. religious expression) few contest that that employers may determine, within reason, appropriate work wear. Indeed, it is the very fact that most of us are intimately aware of our employer's ability to demand professional dress that made the entire debate seem silly or self indulgent to the general public. After all, wouldn't many young, white lawyers love to wear jeans and a baseball cap into the office? Don't the masses of young whites (and for that matter, many others including Blacks) understand that they must trade in some measure of personal freedom in order to participate in commercial life (a point that is made with much more vitriol by unsavory commentators to whom I am sorry to give comfort)?
Still a related point seems to motivate the debate; the idea that somehow, giving in to these demands would somehow be different for a young, black basketball player than for the young, white Merrill Lynch analyst. It is this charge which worries me. It is the idea that any compromise, giving even an inch on those markers of Black urban identity is to sell out, which gives this indictment its currency. This is what grounds Iverson's and Rip Hamilton's comments that complying with the dress code strikes them as "fake."
It is important to recognize that the contention that participation with mainstream demands somehow negates one's claim to Black authenticity is deeply harmful and counter-productive. This contention introduces a profoundly different tension than the tension facing most white Americans in the same position. Because the very definition of "appropriate" dress has a racial charge, there may be more at stake for an African-American in considering a career's normal trade-offs. This is especially so when the symbols that seem under attack are perceived to be precisely symbols of Black (sub)culture. But in the hand of some, advertently or inadvertently, this position becomes one of cultural brinksmanship. As I have said, it is not a position I believe most Black Americans to hold, but it is clear that the current is there, readily tapped into and in many cases abused.
For those of you who know me personally and believe this position is simply born of my clearly abnormal like of neckties… ummm… well… I'll get back to you on that.
Sunday, November 27, 2005
Curb Your Enthusiasm . . . for Torts
I'm a little late on this, but did anyone else notice, in last week's episode of "Curb Your Enthusiasm," the cribbing from Friedman v. State, 54 Misc. 448 (N.Y. Cl. 1967), a case involving injuries sustained by Ruth Friedman, a 16-year-old girl -- the court describes her as "reared in the Hebrew faith by parents who adhered to ultraorthodox tenets" -- who jumped (or fell) from a chair lift to avoid being stranded at night with her male friend, Jack Katz?
I remember talking about this case in my first-semester Torts class, taught by Guido Calabresi. "Guido" wondered, why hadn't Katz jumped? Good question!
One of the issues in the case was whether Ms. Friedman had been contributorily negligent -- more specifically, whether Ms. Friedman's religious beliefs were (or should be) relevant to the question whether she was contributorily negligent (i.e., in trying to escape a situation that she, for religious reasons, regarded as "untenable"). I still remember that when Guido asked what I thought (he called on me after I raised my hand when he asked "do any of you happen to be Catholic?"), I said (something like), "the chair lift operators' liability should be reduced, because they should not have to bear the cost of her private religious beliefs." Since then, I have always wished that I'd said something different.
Another Query on Exam Advice
Often our posts about law teaching -- getting the job and doing the job -- attract the most widespread interest among our readership and yield some useful discussions. We recently had a nice discussion on advice for law students taking exams. Let me switch the focus if I may, and turn my attention to the sadly, deplorably forgotten or undersung hero/victim of law school exams -- the brave, hard-working law professor. What I want to ask is: where do you, my colleagues, comrades in arms, and hypocrite lecteurs, get your ideas for law school exams? I'm sure this is exactly the kind of thing our students would like to know, and I'd be quite curious to find out as well. I'm sure my more junior colleagues on the blog (or blawg, or etc.) are enjoying tremendously their first efforts at exam drafting (remember -- less is more!) and also would like to hear from some of our professional readers. Responses (obviously) are welcome.
Saturday, November 26, 2005
Judge Randolph, Judge Friendly, and Abortion
It is well-known that Henry J. Friendly was one of the greatest judges in our nation’s history. Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe v. Wade, Judge Friendly wrote an opinion in the first abortion-rights case ever filed in a federal court. No one knows this because his opinion was never published. I have a copy of the opinion and his papers are now at the Harvard Law School, awaiting indexing.
The lecture is not long, though it is too long to excerpt helpfully here. This passage, though -- taken from Judge Friendly's draft -- caught my eye:
"An undertone of plaintiffs’ argument is that legislative reform is hopeless, because of the determined opposition of one of the country’s great religious faiths. Experience elsewhere, notably Hawaii’s recent repeal of its abortion law, would argue otherwise. But even if plaintiffs’ premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition . . . clearing the decks, [and] thereby enabling legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here.
"An undertone of plaintiffs’ argument is that legislative reform is hopeless, because of the determined opposition of one of the country’s great religious faiths. Experience elsewhere, notably Hawaii’s recent repeal of its abortion law, would argue otherwise. But even if plaintiffs’ premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition . . . clearing the decks, [and] thereby enabling legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here.
Thursday, November 24, 2005
Just wanted to drop a note of thanks to all our loyal readers and contributors who have quickly helped Prawfsblawg become such a great forum for discussion over the last eight months. We may not always agree, but we do enjoy each other's company and we hope you will continue to participate. To that end -- and assuming there is interest (is there?) and the tone remains pitched at the right level -- I think we might experiment with some more open threads, some subject-specific and some left completely open-ended.
On a more personal note, I want to thank my new friends and colleagues here in Tallahassee for helping make it such an easy adjustment for me here. I'm even more grateful to my sweet osita for joining me here (against all odds), and to our families for encouraging us to live well by loving and laughing. To all, a happy and blessed thanksgiving!
Why the Left Ought to Support (An Aspect of) Bush's Foreign Policy
I know some readers of this blog tend to be from the Left. Let me get my worry off my chest. One of the pathetic sights of the last few years has been the reluctance of the Left, here and in Europe, to denounce and reject Islamofascism. Yes, because, in spite of all the PC talk about Islam as a religion of peace, the enemy we are facing is Islamofascism (I hasten to say that not all Muslims are fascists). One of the great traditions of the Left has been its struggle against all forms of totalitarianism, especially of the fascist kind. Yet the Left has, to my knowledge, refused to endorse the message of the President's second inaugural address, when he promised to fight tyranny in the world. Why? Because the Left is partisan and hypocritical. The current ethos of the Left is to support any regime, even fascist ones, as long as they are targeted by a U.S. Republican administration. For the Left to take to the streets to support Saddam Hussein , a genocidal monster, is the ultimate shame for a political movement that, while slow to criticize Communism in the past, at least bravely fought fascist forms of oppression. The movement that took to the streets in 2003 was not to protest the horrendous dictatorship in Iraq, but to protest the intervention to overthrow the horrendous dictatorship. Shame on the Left. I think the Left has to reconstitute itself and recover the great imagination about equality and freedom, and stop obsessing about G.W.B. and conservatives. As far as I'm concerned, the Left today is a reactionary political movement. It not only supports Islamofascism. It also distrusts free markets, the one hope of reducing world poverty. Once you peel off all the layers of the onion, there's nothing left.
Wednesday, November 23, 2005
Religion, Division, and the Constitution
It's time for shamelessness: I have posted a new paper, "Religion, Division, and the Constitution," on SSRN (it's forthcoming in the Georgetown Law Journal). Here is the abstract:
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could “excessive[ly]” – and, therefore, unconstitutionally – “entangle” government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their “divisive political potential.” Chief Justice Burger asserted also, and more fundamentally, that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” And from this Hobbesian premise about the “inten[t]” animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our “normal political process” from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.
This Article provides a close and critical examination of the argument that observations or predictions of “political division along religious lines” should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this “political division” argument.
The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is “religiously based social conflict” – or, as the Court put it in Lemon, “political . . . divisiveness on religious lines”? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the “principle” it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally?
Working through these questions, I am mindful of John Courtney Murray’s warning that we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity,” and also of his observations that “pluralism [is] the native condition of American society” and the unity toward which Americans have aspired is a “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
Taking Stock of the Semester
Today Yesterday was the last day of my first semester at FSU; as some of you know, I taught both a seminar on punitive damages and a course on advanced criminal procedure (bail to jail). I thought I'd share a few reactions; I invite others to weigh in with what they find worked for them (and what didn't) in their courses and schools.
Regarding the crim pro course, I think I was able to avoid the soft scourge of widespread internet usage in class by a) prohibiting it, b) using Powerpoint slides, and c) using a remote clicker that allowed me to roam around the class to monitor what's going on and still help remind me of what my next topic of discussion was. As I mentioned in an earlier post, I never suspected I would be a Powerpoint person, and I still have incredibly rudimentary skills at using it; but, at least for bigger classes, I'm a convert. Having the slides keeps the students' attention since they can toggle their focus back and forth from the slides to me, which I think keeps them "more" fresh than if it were just me talking, or having a discussion with just a few people. (I guess it's similar to the phenomenon by which I often become more alert by getting the chance to surf the net through different sites than I would be if I had to just read one thing for an extended period of time.)
Looking back, I remember the first day of class of the course quite vividly. After all, until the class was over, my enrollment then was double what it was at the end. I'm not kidding. About 1/2 the students dropped after the first day because a) I assigned too much reading, b) I cold-called too many people with too many questions, and c) required students to post a question and an answer to someone else's question about the reading in advance of each class on the class website. With so many people voting with their feet, only a brave group of 22 stuck with me, and I soon softened the requirements. Instead of calling on the entire class every day, I split the class in two, and alternated sides, as well as taking volunteers. I reduced the reading from 30-35 pages per 100 minute class to 20-25, which meant less prep time for me as well. And instead of requiring posting for every class, I gave the students the flexibility to post for 11 out of any of the 22 sessions we had together. In retrospect, I almost followed Machiavelli's sage counsel: if you must do evil, do it at the beginning, and let the benefits trickle in over time. (Of course, now that I've publicly addressed the matter, I'll have to be "intentionally" difficult next year for a longer period to keep enrollments reasonable; I will continue to feel a minor pang of guilt about externalizing the defectors onto my unwittingly kind colleagues.)
I continue to be a big believer in the web discussion pages: there are often interesting questions that people come up with and the board provides a forum for those matters we don't have the time to address at length in class; it also provides a safe(r) place to ask questions that students might feel are "dumb." To be sure, not every web discussion proves to be incisive and penetrating, but they often are, and overall, there are decisive benefits, to my mind at least.
From my perspective I think we had a great time over the course of the semester. The students are, no doubt, anxious about the upcoming exam, but they will do fine. One of the benefits of having scared off some students earlier (especially ones who get scared off by hard work and purportedly mean teachers) is that the class (here at FSU) can transform into a "profile" class. (This means that you don't have to use the school curve, but rather can use a curve based on the profile of students' past grades for students in the class. That "profile" curve also comes attached with some extra discretionary points. In other words, more room to give better grades.) The remaining students are generally quite pleased with this arrangement.
Both the course and the seminar on punitive damages turned out to be exceptionally fun and helpful for me, and gave some credibility to the nostrum that teaching can be helpful to scholarship rather than an impediment to it. I'm working on a few big projects, both of which benefited from the teaching I did this semester: one involves inspecting the claim that indeterminate sentencing schemes should be declared unconstitutional and another tries to figure out the jurisprudence of a "retributive damages" scheme in tort law. Viz. the seminar, I was very explicit at the beginning of the semester that figuring out punitive damages was like trying to put together a moving jigsaw puzzle, and that I wanted to enlist the students' help in trying to fashion an attractive punitive damages scheme. As the semester's end approached, I realized I had better get cracking on my draft if I want to get them to read it and help me repair it over time. After all, nothing concentrates the mind like the sight of the hanging gallows. The draft I gave them had gaps and ambiguities and probably even conflicts, but it's critical to get that "shitty" first draft done, or almost done, and now at least it's done, or almost done. I have a few days before their papers and exams trickle in, so I'll get to really finish that shitty first draft this week I hope. The best thing is that I can rely on students who have studied these matters with me for a semester to become RA's so we can gussy these projects up for the springtime. It's as if they are pre-trained.
My one regret with both classes is that I didn't get a chance to do a grand sum-up homily like the kind Paul H. gives because we were enmeshed at the time in good discussion about the substantive materials. (However, there might still be a chance at a review session for the course next week--hmmm.) But maybe a rookie shouldn't be in the business of grand pronouncements to law students anyway...
A final point about professorial attire, a topic near and dear to Ethan's heart and those of many others. I definitely slid down a slippery slope. Started off with a suit and tie and toward the end I often appeared in cords, sneakers and a dress shirt. Didn't seem to matter much--FSU is quite casual (though no shorts by prawfs in class is the one rule I've heard).
As always, but especially here, I'm curious to hear reflections from others on the end of the semester (both students and prawfs).
And Pacino will play him in the movie
Larry Ellison has settled the California suit alleging that he committed insider trading by selling his shares prior to a downturn in 2001. Details here. Ellison will pay $100 million to a charity of Oracle's choosing as well as $22 million to the plaintiffs' attorneys. One of those attorneys opined that the settlement was "an extraordinary result and certainly one that is of great benefit to Oracle." It is a little hard to see, however, how Oracle benefits from a charitable gift made by Ellison. The gift may not even be tax-deductible for the corporation. And who at Oracle gets to choose the charity? I'm assuming it won't be Stanford.
This latest event is yet another in a string of fascinating corporate law developments relating to Ellison. There's the great Chancellor Strine opinion about Oracle's special committee, as well as the fascinating issues that arose around the Oracle-PeopleSoft merger. Ellison has also been good for business books, too, prompting a slew of unofficial biographies. I'm still waiting for the movie. And given this face, is there any doubt that Al should get the role?
You sharpen the human appetite to the point where it can split atoms with its desire; you build egos the size of cathedrals; fiber-optically connect the world to every eager impulse; grease even the dullest dreams with these dollar-green, gold-plated fantasies, until every human becomes an aspiring emperor, becomes his own God . . . and where can you go from there?
Tuesday, November 22, 2005
Padilla Charged in Miami (?) -- And the Loaded Weapon
As I write this, Attorney General Gonzales is apparently announcing that the federal government is indicting accused dirty-bomber Jose Padilla on a host of criminal charges in the U.S. District Court for the Southern District of Florida (who knew coming to the University of Miami would be so fortuitous?).
Padilla, who has been detained as an "enemy combatant" in South Carolina since June 2002, has a petition for certiorari pending in the Supreme Court, challenging the Fourth Circuit's September decision that the President has statutory (and perhaps constitutional) authority to hold Padilla without charges as an "enemy combatant." Presumably, the criminal indictment will largely, if not entirely, moot out most of the issues in the pending cert. petition (more on that in a later post).
For now, two important observations need to be made:
First, Andy Patel, one of Padilla's court-appointed laywers, has been fond of saying, since early in the litigation, that he's "the only criminal defense lawyer in the United States trying to get his client indicted." So true. The indictment of Padilla has to be seen for what it is -- once again, the government is trying to moot out a case that they know they will likely lose (for vote-counting reasons I've described in more detail here) in favor of keeping a good precedent (the Fourth Circuit's decision) on the books.
So, as much as it is an important victory for those, like me, who believe that the detention of U.S. citizens without charge -- especially those, like Padilla, picked up in the United States -- is fundamentally abhorrent to the American constitutional tradition, it's not a complete victory by any means. After all, mooting out the cert. petition (assuming the Court now decides not to take the case) leaves the Fourth Circuit's broad endorsement of presidential power during wartime intact, and it's hard to escape the allusion to Justice Jackson's "loaded gun" from Korematsu.
Wow. So much more to say, and I'll try to say more later. For now, let me just say that I have a nice, big couch, for those who might be coming down here for the trial... :-)
[Disclaimer: I've been involved in the Padilla case, off and on, since the summer of 2002, and was part of a student team at Yale Law School that helped draft various of the amicus briefs in the Second Circuit and Supreme Court in Padilla "I".]
Times Select and Genocide
Many people have complained about the Times Select program's exclusion of non-subscribers from reading the NYT columnists, though some wiseacres have suggested it's all to the good since it will only increase the power of bloggers...I take no position on that. I am chagrined, however, that Nick Kristof's recebt powerful writing on the ongoing genocide in Darfur is being screened out from the non-paying public view. Thus, I share the sentiment of one blogger who posted Kristof's Sunday column here. And today's column from Sudan (available here) reveals Kristof at his finest. Simple, smart, and outraged. Make your voices known--do something about Darfur here.
Monday, November 21, 2005
Jeffrey Toobin has a long essay, "Still Standing: The Resilience of Roe v. Wade," in the Nov. 28 issue of The New Yorker. (Thanks to Howard Bashman for the link). A quick reaction: It has often seemed to me that, in the public conversation about abortion rights, participants tend to underestimate, or even to ignore, the extent to which Casey rejects -- while purporting to "re-affirm the central holding of" -- Roe. Perhaps the best evidence, then, of Roe's resilience is the extent to which the discussion about judicial nominations tends to focus on Roe, notwithstanding Casey?
More Constitutional Curiosities: The Constitution and Private Conduct
Over at Discourse.net, my colleague Michael Froomkin has a fascinating Constitutional Law Scavenger Hunt, although, as Michael himself admits, the current quiz neglects my all-time favorite silly constitutional quirk: "Who presides over the Vice President's impeachment?" [Hint: It's not the Chief Justice!].
But there's another constitutional curiosity that I've always found fascinating, but never had the time (or moxie) to seriously think about -- the Constitution and private action. Near as I can tell (although I welcome readers to prove me wrong), only two (and a half) constitutional provisions expressly regulate private conduct. Of course, this begs the broader, angrier debate about the Constitution and the right to privacy, but my target is far smaller.
The first provision pertaining to private conduct is, of course, the Thirteenth Amendment: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." So, I can't enslave people, even my 1Ls, even though I'm a "private" person (now, if only I taught at FSU...).
The other provision(s) dealing with private conduct are the Eighteenth and Twenty-First Amendments, both of which relate to prohibition. The Eighteenth outlaws the "sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes . . . ." And the Twenty-First, in repealing the Eighteenth, leaves intact the ban on "[t]he transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof . . . ." [As thoroughly explained in the recent Supreme Court decision, Granholm v. Heald.]
Arguably, the voting Amendments, so the Fifteenth, Nineteenth, Twenty-Third, and Twenty-Sixth Amendments, come closer to slavery and prohibition vis-a-vis regulating private conduct than the rest of the Constitution. But, at least in my view, they don't impose the same liability on private actors as the two provisions mentioned above.
So, aside from proscribing private conduct, be it slavery or the sale of liquor, what do these Amendments have in common (and as opposed to the rest of the Constitution)?
What's fascinating to me is language in both of them that is (with one exception) nowhere else to be found in the Constitution:
The Thirteenth Amendment outlaws slavery "within the United States, or any place subject to their jurisdiction." The Eighteenth Amendment imposes prohibition in "the United States and all territory subject to the jurisdiction thereof."
Granted, similar language appears in Section 1 of the Fourteenth Amendment, which, in reversing Dred Scott, provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." But I'm otherwise unaware of any other part of the Constitution that imputes a jurisdictional limit (or non-limit, as the case may be) on the substantive guarantees contained therein.
All of this is a long way of saying that, if the two constitutional provisions regulating private conduct contain jurisdictional language, and the rest of the Constitution doesn't, isn't there a fairly compelling expressio unius argument that, otherwise, the Constitution acts on the government anywhere that the government acts?
I know that decades of case law (especially the so-called Insular Cases, Johnson v. Eisentrager, and, depending on whom you ask, United States v. Verdugo-Urquidez), run against this argument in holding that only parts of the Constitution apply outside the territorial United States, but where does that limit come from? Put another way, given how hot a topic the concept of extraterritorial constitutional rights is these days, be it w/r/t Guantanamo, "Black Sites," Iraqi abuse scandals, the McCain Amendment, the Graham-Levin Amendment, the... (you get the idea), it seems somewhat odd that there's no focus on textual implications.
To be fair, I'm not arguing that, because of the Thirteenth and Eighteenth Amendments, every alien everywhere should have the full panoply of constitutional rights afforded to you and I. But it seems plain that, under the terms of the Thirteenth Amendment, an American contractor living on a U.S. military base in Iraq cannot keep an Iraqi as an indentured servant. Next door, however, Iraqis detained by the U.S. military have no constitutional rights whatsoever, at least according to the Administration.
More on Coercive Interrogation
Marty Lederman responds to my recent post on "Coercive Interrogation" with this:
I'm looking forward to reading Professor O'Connell's paper, but because I'm pressed for time, I've barely had a chance to glance at it. With that major caveat in mind, these are my quick and tentative reactions to your question:
1. The Third (Prisoner of War) Geneva Convention does prohibit all coercive interrogation of persons entitled to be treated as POWs. Indeed, Article 17 goes further than that: It prohibits all coercive, unpleasant and disadvantageous treatment of POWs: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” The thought behind this -- derived from our own Lieber Code -- is that states warring with one another should not be trying to have one anothers' soldiers betray their comrades, at all. It's a grave moral sin to betray one's nation -- and neither side in a dispute should be attempting to breach that moral norm, or to induce others to do so. Obviously, no one even recalls this norm today, let alone acts in accord with it -- it seems woefully anachronistic and/or naive. (A topic for further research -- how did this notion disappear so quickly between 1949 and the mid-1960's?)
2. The governing (for now) Army Field Manual, No. 34-52, that has been in effect for decades, purports to apply the "no coercion; no disadvantageous treatment" Geneva standard for our military's treatment of prisoners -- although it's very interesting that the Manual approves of many techniques that seem to allow disadvantageous treatment, at the very least. (This is a complex topic, also for further research -- Why did anyone ever think that the Field Manual strictly complied with Geneva Article 17?)
3. In any event, the Administration is applying techniques to AQ detainees that are not permitted by the Field Manual, and that would clearly violate Geneva Article 17. Indeed, as I try to explain in a post today -- http://balkin.blogspot.com/2005/11/cia-enhanced-interrogation-techniques.html -- it's difficult to understand why some of the techniques are not plainly criminal torture or assault, although presumably OLC has come up with a legal rationale why they are not.
Why does the Administration believe that it can ignore Article 17's prohibition on any coercion? Because it takes the view that Al Qaeda detainees are categorically not POWs. But raises lots of tricky treaty questions, such as: Does Geneva III apply to our conflict with Al Qaeda at all? (Bush says "no," because AQ isn't a contracting party.) Even if it does apply -- e.g., with respect to persons detained in our conflict in Afghanistan, as some argue -- are AQ detainees categorically not entitled to POW status? (Bush says "yes." Others say that they're entitled to an "Article 5" hearing to determine status, pending which they are presumed to have POW status.)
Whatever the answer is to these questions, I think there's a good deal of consensus that the Administration is correct about a "core" point: Persons who are uncontrovertibly Al Qaeda detainees -- those who have fought against the U.S. or have engaged in terrorism -- are not, at the end of the day (e.g., after a tribunal hearing), entitled to POW status. In which case Article 17 does not apply, and coercion of some sort may be used in their interrogation. As you know, that only begins to beg the tough questions about what forms of coercion may be used. (See my numerous posts on Balkinization: http://balkin.blogspot.com/2005/09/anti-torture-memos-balkinization-posts.html.) Butif a detainee is not a POW -- because they have not complied with the laws of war, or because they hide themselves in civilian populations, etc. -- then there is no absolute ban on coercion.
4. I believe that Professor O'Connell goes further and argues that customary international law prohibits all coercion of all prisoners. (I might be wrong about this -- as I said, I've barely skimmed the article -- in which case, apologies in advance.) I think this is probably an overreading of customary international law -- Professor O'Connell, for instance, relies on the Geneva Protocols that the U.S. has refused to ratify; it's a complex question to what extent the Protocols reflect customary int'l law. In any event, the Administration takes the view that the U.S. can, as a matter of domestic law, violate international law. This is undoubtedly correct -- it happens whenever Congress passes a statute inconsistent with international law (or with a treaty -- the later-in-time statute prevails.) The difficult question here is whether the President is empowered to unilaterally violate customary international law, without the legislature's authorization. A very complex and unresolved question.
O'Connell on Coercive Interrogation
My friend and colleague, Prof. Mary Ellen O'Connell, has posted on SSRN a new paper, "Affirming the Ban on Coercive Interrogation," that will likely be of interest. Here is the abstract:
Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called "global war on terror." Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time. The great effort of the memo writers to restrict torture to the most extreme conduct imaginable obscures the fact that the United States has wider obligations. Avoiding torture is not enough. Interrogators must also respect the broader restrictions on coercive, cruel, inhuman, and degrading treatment.
The legal prohibition has, first, moral, but also pragmatic underpinnings. Apparently some in the Bush Administration have become persuaded that torture, coercion, cruelty and abuse can be effective methods of interrogation and that the need for information outweighs the illegality and immorality of using such means. The weight of the evidence is firmly against the conclusion, however, that forceful interrogation is as reliable as non-forceful methods. Using unlawful means has been counter-productive in effectively responding to terrorism. The evidence on information gathering supports international law's absolute prohibition on torture, cruelty, and coercion.
I am not an expert in the law of armed confict, but I do teach Constitutional Criminal Procedure. The claim that "[t]he United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time" is, therefore, particularly intriguing to me. Putting aside the definitional challenges, I am quite comfortable with the idea that governments may not -- ever -- engage in "torture" or "cruel, inhuman and degrading treatment." I'm not so sure, though, about a ban on "coercion," if that term means more than "forceful [i.e., physical] interrogation." After all, I suppose an interrogator's moral appeals -- e.g., appeals to conscience, of the kind involved in the famous "Christian Burial case" -- might well be perceived by a detainee, and be intended by the interrogator, to have "coercive" force. What do others think?
Who needs David Gale when you've got Ruben Cantu?
Last week, I rented a very good movie some of you may have seen, The Life of David Gale. It tells the (fictional) story of a Harvard-educated philosophy professor in Austin who is a leading anti-death penalty activist; after a series of unusual and unfortunate events, Gale (played by Kevin Spacey) finds himself on death row in Texas for having allegedly killed a fellow activist. Just prior to his scheduled execution, Gale explains his story for the first time to a magazine journalist (played by Kate Winslet). The force of Gale's story draws from his innocence and his ability to realize that, at some point, there's a political need to have an innocent person executed in order to prove that the death penalty system is fundamentally flawed. It's not enough, in other words, to prove to the Governor that the system has detected errors prior to the scheduled executions; rather, there must be an innocent stiff lumped over in the chair to prove that the system doesn't work. Gale is prepared to be, in service to the cause, that innocent stiff.
It bears mention, especially as a mostly anti-death penalty writer myself, that the screenplay of Gale has a historical basis. While there have been many incidents of error in the modern "machinery of death" since Gregg v. Georgia reinstated the permissibility of the death penalty, it has been virtually impossible to point to an innocent person who actually has been executed in the "modern period." (Bedau and Radelet argued that, prior to the modern period, there had been miscarriages of justice where the wrong person was executed but they and others have not been able to show a wrongly executed person in modern times.) The Death Penalty Information Center website, however, keeps a running tally of those who have been freed from death row--and the number currently stands at 122.
Fast forward to Sunday's Houston Chronicle, which narrates the true-life story of Ruben Cantu. Cantu was executed a dozen years ago, at the age of 26, though he was only 17 at the time of the crime for which he was convicted. According to Lise Olsen, the piece's author, the prosecutor, the defense attorney, the sole eyewitness, and the head juror now think Cantu was wrongly executed, the result of undue police pressure exerted on Moreno, the surviving witness of the violence of which Cantu was accused.
Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him the night of the killing. And the lone eyewitness, the man who survived the shooting, has recanted. He told the Chronicle he's sure that the person who shot him was not Cantu, but he felt pressured by police to identify the boy as the killer. Juan Moreno, an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of authorities and police interest in Cantu.
"We did the best we could with the information we had, but with a little extra work, a little extra effort, maybe we'd have gotten the right information," said Miriam Ward, forewoman of the jury that convicted Cantu. "The bottom line is, an innocent person was put to death for it. We all have our finger in that." Sam Millsap Jr., the former Bexar County district attorney who made the decision to charge Cantu with capital murder, says he never should have sought the death penalty in a case based on the testimony of an eyewitness who identified Cantu only after police officers showed him Cantu's photo three separate times. "It's so questionable. There are so many places where it could break down," said Millsap, now in private practice. "We have a system that permits people to be convicted based on evidence that could be wrong because it's mistaken or because it's corrupt."
To be sure, Cantu was no boy scout. He was involved with drugs and car thefts and even in shooting an off-duty police officer for which no crime was charged because of the murky circumstances. Still, there was no physical evidence, no confession, and no alternative evidence -- aside from Moreno's now discredited testimony -- to link Cantu to the crime for which he was convicted. All the evidence points away from him today. Thus, Ruben Cantu is dead. And, in all likelihood, innocent.
Time to spread the word. If the Chronicle is right, we have found our "David Gale." And this one was no willing martyr.
UPDATE: As always, Doug Berman's got valuable followup and buildup to the story over here. Also, Lise Olsen has another article in today's Chronicle that describes Cantu's co-defendant's efforts to clear Cantu's name, and to implicate the real perpetrator. Olsen's going to get short-listed for a Pulitzer I bet. But the burden's on bloggers and MSM to help spread the news and continue thinking about its implications.
Two Iraq Puzzles
I have written elsewhere about the war, but here I would like to present two puzzles.
Puzzle # 1: Where ARE Iraq’s weapons of mass destruction? Our government has admitted that it was wrong, that the weapons were not there. But where did they go? They could not have been made up by CIA’s flawed intelligence. Russian, French, German, and Chinese intelligence would have been equally flawed, since they all believed that the WMDs were there (they opposed the war EVEN if the WMD would have been there). It is unlikely that all of them would have made the same mistake. Moreover, Saddam Hussein himself behaved as if he had the WMD. If the WMDs weren’t there, why not tell the Americans and others “be my guests, come to Iraq, inspect everything, and you’ll see that I don’t have any WMDs”. In that way, he would have averted the war that ended up throwing him out of power forever (and we cannot say either that he thought he would win this war, or that he’s simply crazy, because, crazy or not, he was a master at clinging to political power). This is not a rhetorical question, nor a defense of the Bush administration (who I think is strictly liable for erring or deceiving the public, if that’s what it did). I am genuinely puzzled by this mystery. I have been unable to elicit an answer from anyone, whether friend or foe of this administration. Perhaps a kind reader of this webpage can help.
Puzzle #2: If the war in Iraq is unlawful, as many think, then the following things follow. The Iraqi resistance is not a criminal or terrorist enterprise, but a legitimate defensive war. International law does not have grey tones here: the default rule is the prohibition of war, so if a war is justified neither on self-defense grounds nor on humanitarian intervention grounds (assuming that you accept the validity of the humanitarian intervention doctrine) nor as enforcement of prior U.N. Security Council resolutions, then it is aggression. And if the effort in Iraq is a war of aggression, international law says that the international community must wipe out all the consequences of the aggression, and that means restoring Saddam to power. Yet I don’t hear critics of this war follow up with the courage of their convictions and say that the Iraqi resistance (that is, the current alliance of Saddam’s henchmen with Al-Qaeda) is fighting a legitimate defensive war and as such should be supported by the international community and all right-minded persons, or (even less) that Saddam ought to be restored to power.
Sunday, November 20, 2005
Amar on Alito
Vik Amar has a nice op-ed in the LA Times today about Alito and his '85 job application. Here's the core:
Much of what Alito wrote in 1985 no doubt shocks many people today. Perhaps most arresting is his disagreement with the Warren court's reapportionment rulings.
The court struck down legislative districts in which some voters (mostly in rural white areas) enjoyed a much greater electoral voice than others (in urban regions containing with many poor people and people of color).
These "one person, one vote" cases are as canonical in 2005 as is Brown vs. the Board of Education, and were even used by the Supreme Court in deciding Bush vs. Gore.
But in challenging these and other Warren court decisions, Alito simply shows what it meant to be a true conservative in the 1960s and 1970s. Conservatives openly attacked Brown 40 years ago. They sharply criticized the idea that judges should regulate redistricting. They hotly questioned the (now entrenched) notion that Bill of Rights' protections should also apply to the states. Today's conservatives aren't exactly eager to remind everyone what conservatism meant just one or two generations ago, and how they were often fighting on the wrong side of history.
But is today's conservatism still fighting those battles?
It's noteworthy that although Alito expressed disagreement with the Warren court's rulings on reapportionment, defendants' rights and the establishment clause, he didn't indicate a strong desire to mount a legal campaign to overturn them. Even by 1985, most conservatives had grudgingly come to accept, if not embrace, school desegregation; one person, one vote; Bill of Rights protections against the states; the requirement of Miranda warnings for criminal defendants, and even bans on heavy-handed school prayer.
Amar has some ideas for why conservatives have given up many of their other policy preferences but have held onto the campaign to overturn Roe. It may be no more complicated, however, than the simple observation that abortion is just a very hard issue -- and the idea that there is a constitutional right for abortion is a much more difficult claim to maintain than the other areas where liberals successfully got the Court to recognize constitutional rights.
Saturday, November 19, 2005
Not Quite the Wiki-Treatise, But...
Remember my post about the idea of a legal Wiki-Treatise? (No, of course you don't. You have a life. You date, you enjoy hiking, you teach, you enjoy collecting stamps. But pretend, for my sake. Or go back and read the post.) Well, now, courtesy of Dan Solove at Concurring Opinions, I have learned that Cornell's Legal Information Institute has launched WEX, "the first collaboratively edited legal encyclopedia and dictionary on the web, aimed specifically at law novices."
Now, this is not the same as the Wiki-Treatise proposal. According to Solove, it's currently anonymous, which reduces the incentives of many professors to participate; and to the extent it's more of a dictionary or encyclopedia than a treatise, its function is perhaps somewhat different from the function of a treatise, which collates information but also aims somewhat to advance analysis, and which of course is more subject-specific. But it's an interesting start. Best of luck to the LII in this project. Folks who want to launch a Wiki-Treatise are, of course, always welcome to contact me, when they get back from their hiking trips and philatelists' conventions.
Friday, November 18, 2005
Rosen "Decod[es]" Alito
In the Nov. 21, 2005 issue of The New Republic, Jeffrey Rosen has a piece called "Answer Key: Decoding Samuel Alito Jr." The essay opens with this:
For those who believe in bipartisan judicial restraint, Samuel Alito Jr. poses a dilemma. On the one hand, his vote to strike down a federal ban on machine gun possession in 1996 suggests that he might be a conservative activist who is determined to resurrect limits on congressional authority that have been dormant since the New Deal. On the other hand, many of his other opinions support the judgment of those who know him: that he is a fair-minded conservative incrementalist, closer to Chief Justice John Roberts than to a radical conservative like Justice Clarence Thomas.
Put aside, for now, the (unintended, I am sure) implication that Justice Thomas might not be "fair minded" (of course he is). I believe that Rosen is a valuable and insightful writer when it comes to the Court and the Constitution. And, I appreciate his willingness not only to concede, but to contend, that "liberal interest groups" often get it wrong when it comes to Roe and abortion. That said, I genuinely don't understand the suggestion that for a lower-court judge, after Lopez, to vote to strike down the machine-gun law at issue in Rybar; or to narrow -- after the Court's post-Seminole Tribe sovereign-immunity cases -- the scope of damages available under the FMLA, is to betray an "agenda to turn back the constitutional clock to the pre-New Deal era", or to "flyspeck Congress's legislative authority", or to show an "unsettling lack of deference to Congress." Wouldn't Alito have shown an "unsettling lack of [respect for the Court's precedents]" and an "unsettling lack of [awareness of his role as a lower-court judge]" had he ruled differently in Chittister? Notwithstanding Hibbs, wasn't Alito's take in Chittister on the Court's sovereign-immunity cases entirely reasonable? After all, weren't we surprised by the outcome in Hibbs?
Constitutional Law Myths?
I wonder if our wonderful readers can help out with some suggestions on this. I'm looking for examples of constitutional law "myths" -- instances in which some legal or factual proposition has become part of the received wisdom of constitutional law, and especially of classroom lecturing and discussion in constitutional law, although the proposition is or may well be simply wrong. To take a possible example, from my reading of the Pos's Foreword (on which I hope to have a substantive post soon): inevitably, in classroom and/or academic discussion of Griswold, the argument comes up that the statute at issue in that case was unenforced, and that perhaps this should bear on the constitutional arguments in that case. The Pos writes, at footnote 150 of his piece, "Actually, the statute was enforced, though only against birth control clinics," citing Sex and Reason. Another example, although quite a controverted one, might be whether or not Justice Roberts in fact made a "switch in time."
I'm eager for your suggestions about other constitutional law myths along these lines -- factual or legal propositions that are part of the received wisdom but arguably wrong. I stress that I'm not looking simple assertions that a decision or a key bit of reasoning is wrong, e.g., "It is a constitutional law myth that due process contains a substantive component." I'm looking for instances in which the story we commonly tell somehow managed over time to incorporate errors that go largely unquestioned.
The impetus for this is, in part, William Van Alstyne's recent interesting article about teaching constitutional law, in which he says law professors often peak as teachers around their fourth or fifth year. The idea here, more or less, is that by this point we know the doctrine and issues well enough to do a strong job of teaching them; but at some point we are so conscious of complications, warps in the fabric, nice but small issues along the way, and so forth that we are tempted to cram them into what used to be a coherent and manageable course.
I would add to that the notion that law professors -- not just in con law, I think -- spend their first few years learning how to teach magnificently some version of the received wisdom in their subject, encouraged all along by casebooks and teachers' manuals. Granted, the received wisdom contains both a conventional story and a set of conventional critiques; it's not one-sided. But even when one teaches both sides of the issue, that teaching is usually based on some set of received facts and conventional narratives. Teaching the Commerce Clause narrative is one example, I think, in my field.
At some point, however, those professors who are not blindered in one way or another have read too many "But see[s]," too many articles and arguments that challenge foundational facts key to the conventional wisdom, to continue comfortably along this path. At this point they face the dilemma of either teaching the received wisdom in class half-heartedly or cynically, or retooling entirely -- a move which carries significant costs in time and effort, which may overcomplicate the course, and so on.
Responses -- to my call for examples of constitutional law myths, or to my "From Innocence to Experience" vision of law teaching -- are welcome.
In Defense of "Isolationism"
Greetings. I am pleased and honored to have been invited to blog here. I start with some reflections about the U.S. and the international "community."
No good liberal likes to be an isolationist. Isolationism is "bad," a hangover of primitive pre-globalization times. So we have assumed (yours truly included) that the United States had to be in harmony with the international community, not against it. Thus, many have criticized the United States' rejection of the Kyoto Protocol and the International Criminal Court Treaty, as well as the decision to invade Iraq without Security Council authorization. These are, after all, actions that alienate us from the rest of the world. Perhaps these criticisms have some merit.
Sometimes, however, hard as this may be to believe, the United States
The second is more alarming: the attempt to regulate the Internet (see Lou Dobbs on CNN, Nov. 15, available on Lexis). These good dictators (again, with the support of the Europeans, albeit less enthusiastic) are pushing to take the Internet off the hands of the United States and giving it to the UN – an institution eminently corrupt and hostile to freedom. The international "community" follows the example of Fidel Castro, who tightly controls access to the Internet (unless, of course, you are a member of the government). Kudos to the United States government, which is vocally opposing these (goofy) assaults on freedom. Sometimes "isolationism" is, simply put, the ethical thing to do. As we say in Argentina: mejor solos que mal acompañados.