PrawfsBlawg

End to guest-blogging

I'm grateful to the bloggers and readers at Prawfsblawg for the chance to join the conversation these last few weeks.  I look forward to learning from my friends and colleagues here in the months and years to come.  Now, back to my usual blog[o]spheric haunt, "Mirror of Justice."  Best wishes!

Rick

Are the NYC Subway Searches Reasonable? Let's Take a Poll!

According to the New York Daily News web site, a recent poll by Quinnipiac University of 1,601 registered New York City voters shows that 72% support the current random subway searches to prevent a terrorist act. "That support was solid among blacks, whites and Hispanics," according to the Daily News article.

I’m not a statistician, so I can’t comment on a the value of this poll at revealing true NY’er sentiment. But, the poll results jibe with my own anecdotal sense of how people in NYC are thinking about this issue. And, they raise for me again a question that I posited in my initial post: whether and to what extent a community’s willingness to share in law enforcement burdens may inform Fourth Amendment jurisprudence.

Of course, the Fourth Amendment would become a pretty empty right if opinion polls could determine the reasonableness of police action. Yet, when both the specific harm to be prevented and the law enforcement mechanism offered to prevent it are shared so communally—as with terrorism and arguably the NYC subway searches—I become a little more uncomfortable with the idea of the Fourth Amendment ignoring a community’s plea to allow law enforcement to protect it in a manner it is willing to accept. As the Fourth Amendment struggles with the unique communal harm of terrorism, perhaps this democratic norm of community burden sharing can play a greater role in informing reasonableness determinations.

But, how do courts objectively identify a community’s judgment of what burdens it is willing to share to remedy specific communal harms, or even the relevant “community” in the first place, so that this concept does not overwhelm reasonableness inquiries? How do courts further limit “community” police action to target only communal harms, both in scope and duration? Should “community” police action become a distinctly reasonable law enforcement endeavor apart from other forms of police work? Or should this concept be limited to serving as one of many factors at play in a broader reasonableness inquiry—a role it implicitly may occupy already, particularly in the Court’s “special needs” jurisprudence? Or is there another role for it here?

Tracey Meares and Dan Kahan have presented a thoughtful yet broad theory of “community burden sharing” in the area of community policing and gang violence. See e.g., The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. Chi. L. Forum 197. Albert Alschuler in the terrorism context has suggested a more restrained, “relevant factor” approach to this concept in his impressive article, Racial Profiling and the Constitution, 2002 U. Chi. L. Forum 163, 229-30, and he and Stephen Schulhofer have expressed well-founded concerns about the breadth of Meares and Kahan’s community burden sharing theory. See Antiquated Procedures or Bedrock Rights? A Response to Professor Meares and Kahan, 1998 U. Chi. L. Forum 215. Alschuler’s view strikes me as more balanced. Tough questions, though, and terrorism only makes them harder.

Regrets, lawyers have a few...

Over at the ABA Journal's e-report, this link sets out some responses from lawyers to a question that might be of great interest to all the incoming first-year law students:

If you could go back and attend law school again, what opportunity do you wish you had pursued?  Or what seemed like a big deal at the time but, looking back on it, you would not pursue again?

This afternoon I gave these questions some thought and was pleased to discover that answers did not instantly jump to mind.   But, upon reflection, I regret being too focused on law firm jobs when I considered summer and post-clerkship employment possibilities.   I have always felt I under-utilized my 1L summer by taking a job at a small firm where I was really a glorified paralegal and received little significant experience.  And, while clerking, I did not explore the government or public interest opportunities that might have been available; I simply took for granted that I would return to the large NYC firm where I spent my 2L summer.

Of course, with loans to pay and other economic constraints, the almighty dollar (justifiably) played a role in my perspective and approach to employment opportunities.  And, knowing I wanted to teach, I (rightly) believed the big firm path was a good means to that end.  Nevertheless, my own (small) regret now finds expression in my advice to students to have a dynamic perspective on, and flexible approach to, their employment goals.

Others?

Testimonial? Hopefully the Supremes Will Say Soon

Richard Friedman of Michigan Law School notes on his Confrontation Blog that he and recent Supreme Court champ Jeff Fisher (the guy who won both Crawford and Blakely) have filed petitions for cert in two cases that address the scope of "testimonial" statements under Crawford. Rich's blog post links to the two briefs.

The Supreme Court responded with appropriate swiftness to the serious uncertainty that Blakely generated about the federal sentencing guidelines. The Court genuinely needs to respond soon to the equally serious uncertainty that Crawford's testimonial concept has injected into criminal trial practice. Indeed, the uncertainty from Crawford may have proved even more dramatic, as Crawford implicates long-standing practices in the state court system as well, and thus has resulted in divided rulings from both state and federal courts across the country. Just as Chief Justice Rehnquist worried in Crawford. It's about time the Court let everyone know the answer to this not-so-little mystery. Good luck Rich and Jeff!

In the meantime, in addition to reading Rich's very informative blog, interested parties should keep an eye out for an upcoming  issue of the Brooklyn Law Review devoted to Crawford. The issue results from a great conference held at Brooklyn Law School last February. You can read more about the conference and it participants, and even see video of the conference presentations, here.

Who's Afraid of Being a Humanitarian Imperialist?

My colleague and friend Fernando Teson recently published a thought-provoking essay entitled Ending Tyranny in Iraq in the special 2005 issue of Ethics and Int'l Affairs that focused on ethics and the use of force after Iraq.  The article's goal, and it is accomplished deftly, is to undermine those arguments that deny that the invasion of Iraq was a humanitarian intervention.  Teson allows that one might plausibly criticize the Coalition's leaders for their motives, but he contends that their action -- the invasion of Iraq with the goal of regime change from Saddam to constitutional democracy -- was praiseworthy.  He reaches this conclusion by drawing on Mill's distinction between one's motive and one's intent, and separating one's critique of the act of invasion from the critique that may be made against the actors who authorized the invasion. 

Teson observes that various war critics said that the problem with the war is that the stated rationale was removing WMD and that the "ending tyranny" argument was selected as a post hoc rationale.  Teson in fact marshalls the evidence that the human rights angle was always articulated in conjunction with other goals the Coalition had in Iraqi regime change.  I think he is right, though he would concede (based on subsequent conversation) that the human rights rationale of the intervention was not deemed as a necessary or a sufficient rationale by those who embraced it when moving the country toward invasion.   

What's interesting is that  Teson argues that the invasion and replacement of Saddam (followed by democratic elections) can be justified as a humanitarian intervention even if the Coalition had stated different rationales for Iraq's liberation (including self-interested ones that encompassed suppressing a perceived threat to national security or securing access to oil) and had failed to articulate the humanitarian rationale at all.  In other words, he states that it is permissible to justify an action on the basis of a rationale that was not articulated by its advocates at the time the action was being contemplated and urged in the public sphere. 

"Why," he asks, "should the deficiencies of the rhetorical skills of politicians be dispositive?...  Suppose I rescue someone held hostage by a villian, and when asked to justify my action I say that I did it because I thought (unreasonably and mistakenly) that the villian was threatening my life.  My act of rescue is still justified, even if I failed to invoke the right reasons, and even if the reason I invoked did not justify my behavior." 

Thus, even though one might be critical toward the motives of the decisionmakers who authorized the invasion (and their actions taken to establish the bona fides of those motives, ie., making negligent or fraudulent intelligence assessments on WMD), Teson says one can still praise their act of ending Saddam's reign.  He goes further, stating that insofar as persons should be praised for rightful acts, then the Coalition leaders warrant praise for that righteous act, even if they warrant scorn for all the other bad actions and blunders that have since followed the invasion. 

This last argument I think is one of the more controversial moves in the paper, and at some level, it's an unnecessary one, because the Bushies did in fact advance the human rights rationale all along.  But to stick to Teson's hypo and accompanying analogy, I think it might fairly be said that the state is differently situated than the "wrong" rescuer, because the state has duties to its citizens that an individual does not; it might make sense to distinguish intent and motive when we are applying the criminal law (liability) and then assessing sentences (good motives get lighter sentences according to the conventional wisdom).  But that distinction might not make sense in the context of assessing democratic state actors  If the state's leaders simply get to select justifications for their decisions ex post, then the leaders are not fulfilling their fiduciary role to its citizens; their retroactive justification stymies democratic politics.  In administrative law, this is generally frowned upon under the Chenery doctrine, which constrains what rationales an agency can invoke to defend its actions under judicial scrutiny; the agencies can only " defend their actions on the basis of reasons articulated prior to judicial review" because, as Hal Krent explains , the Chenery doctrine prevents "agencies from making policy outside of public scrutiny."   What Teson's argument overlooks is the countervailing moral consideration that should incline us against permitting the retroactive selection of rationales in the political context: namely, that democratic politicians must keep democratic faith. 

The deficiency of Teson's analogy is not decisive though -- precisely because the Bushies did in fact advance the human rights rationale all the way through (see Teson at p. 10 n. 26) -- albeit in more muted tones (I believe) than the other rationales advanced.   To my mind, the Paul Berman argument in favor of the invasion as a strike against tyranny remains true; but the attractiveness of the cause's justice has to be weighed against whether, at the time, it drained critical focus away from threats such as Al Qaida (and North Korea and Iran, among others.) Similarly, the attractiveness of the putative human rights victory has been undermined by the incompetence demonstrated in reconstruction efforts.   You don't get to call an intervention humanitarian by taking a regime from one tyrant and then making life worse for the "rescuees."

In this respect, it's possible that Teson, when he wrote the piece, was too sanguine about the "liberal constitution" that will govern Iraq.  It will surely be an improvement over the status quo ante bellum.  But, to focus on just one issue, women's rights are squelched in the emerging constitutional design, at least according to most reports, and if women are not free and equal in the new regime, then it is hard to give the invasion the imprimatur one would otherwise be tempted to confer on it.

It's a fascinating paper, though, and I especially enjoyed the development of the moral argument against reliance upon Security Council authorization.  In the same issue, Terry Nardin has a response to Teson, and Teson has a reply, at the end of which he accepts the charge that he is a "humanitarian imperalist."  Who else will join in his crusade? 

Worth reading -- especially in conjunction with NYU Prawf (and new father (mazel tov!)) Noah Feldman's TNR review essay of the Torture Papers available here.

Holmes and Posner on the Natural Aristocrat

From today's reading (I am doing a session for first-years tomorrow on success in law school, and I am always drawn on such occasions to Holmes's exhortation in "The Profession of the Law"), this in a letter from Holmes to Alice Stopford Green: "Nature is an aristocrat or at least makes aristocrats, e.g. the cat."  No surprise that it comes from Posner's collection, The Essential Holmes.  Groupies of the Pos will recall his relationship with his own cat (although who owns whom is always a question in the minds of man and cat alike), amusingly recounted in the New Yorker article reprinted here:

"My cat doesn't like me," he says mournfully. "This cat, to whom I am slavishly devoted. She tolerates me, she's polite, but she clearly prefers Charlene. She regards me as a servant. I feed her, I brush her, I clean the kitty-litter box, I shower her with endearments-I've even started taking her to the vet to try to bond with her. Charlene says that I love Dinah more than anything human, but that is false." Posner has resigned himself to loving Dinah in the self-abasing tradition of courtly love, the object forever unattainable.

If my dear wife is reading this, take note: I still want a dog! -- even if Holmes and Posner themselves should stand in my way.  Aristocrats have their uses, to be sure -- if one is looking for a dilettantish wit, a subject of gossip, or someone to open a new supermarket.  Our own sleek, furry member of the aristocracy is pleasant enough company, although she is never silent and takes our being asleep as a personal affront.  But a man needs a best friend.   

Signing off -- Thanks!

My "guest blogging" comes to an end today.  Much thanks for including me in your discussion.  I must echo Ethan that blogging is hard work.  But, PrawfsBlawg is a worthy enterprise that raises the level of discussion about the law -- and the legal academy -- so all of your hard work deserves to be commended.  Keep it up!

"Nomos and Narrative", 25 years later

Professor Judith Resnik has a new paper, "Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover", that looks to be very interesting and thought-provoking.  Here (sorry for the length) is the abstract:

Law in action is a familiar phrase in legal circles that have come to accept that law on the books does not necessarily mean its translation into life. But lawmaking through community action is less commonly perceived to be plausible in liberal secular nation-states such as the United States. Although the production of law is seen as an artifact of social and political movements (as well as a tool to organize them) and legal interpretation is understood to be affected by political views, law is also presumed to have some autonomy from politics and social movements. Given these assumptions, official organs within a polity - such as courts, legislatures, and the executive - can be readily identified as the lawmakers, and members of that polity who seek to change law are channeled into certain routes to address those authoritative figures.

That vision of law is incomplete, as was powerfully explained by Robert Cover in "Nomos and Narrative." Cover aspired to expand the inquiry (and hence our understanding) of legal actors and processes to encompass a normative universe . . . held together by the force of interpretative commitments - some small and private, others immense and public. Within Cover's frame, such community lawmaking is not aberrational but commonplace.

The distinction between, as well as the conflation of, public and private obedience depends upon two factors: the form taken by communal or religious obligations and the content of a nation-state's laws. Some people (the majority in social orders described as secular) are committed to sub-communities or religions that segregate acts of affiliation by placing them primarily inside households or special buildings (churches, synagogues, clubs) and by limiting the performance of certain obligations to special days or places. For members of such groups, the tension between their private affiliations to particular communities of culture and their conformance to the norms of a liberal nation-state is not acute. In contrast, if one adheres to a community or a religion in which one must always, for example, wear a head covering, fast during daylight hours for a month-long span, or say prayers several times a day, the capacity to separate one's communal obligations from one's role as a member of a nation-state diminishes. At times, direct conflict erupts.

A central example of such tensions for Robert Cover - writing in the early 1980s - came from the Supreme Court decision addressing the practices of Bob Jones University, a Christian religious organization that was unaffiliated with a particular denomination and that ran a school for children as well as a university. The University had an unusual reading of Christian scriptures, interpreted to forbid interracial dating and marriage. Because of Bob Jones' racist policies, the Internal Revenue Service withdrew the University's exemption from federal taxes, and the University protested. A contemporary illustration (with important differences) of contestation between the norms of the liberal-state and those of communities of affiliation is the debate about whether Muslim girls living in France may wear headscarves in public schools.

What is instructive about the full exploration of the conflict about Bob Jones is that it produced more than a decade of contestation inside the United States government about what its own anti-racist norms entailed. That occasion for conflict within and between the nation-state and paideic community eventually produced the revelation of each legal regime's commitments. By the time the case reached the Supreme Court, anti-segregationist premises - that is to say, rejection of explicit racial segregation - had already become an embedded and unself-conscious facet of American truth. The moment for frank acknowledgement of American law's jurispathic powers had passed because the particular form of racism embraced by Bob Jones University had already become implausible.

Thus, this essay offers a reading of Bob Jones different from those of Bob Cover. I conclude by taking up an issue that Cover did not: conflict within paideic communities about their own practices and authoritative interpretations. I return to the practice of veiling, as well as address the question of federal toleration of patrilineal membership rules, as I argue that today's central conflicts involve contestation from within. This aspect is often obscured as debates are posited to exist between a homogenous self (such as the United States or the West) and an undifferentiated other (be it Indian tribes, Islam, or the veil). Twenty-five years after "Nomos and Narrative," our central issues are whose voices within paideic communities are heard by which speakers of the secular order's power.

For starters, those interested in Professor Resnik's discussion would likely also appreciate a relatively recent article by Madhavi Sunder, "Piercing the Veil", in which she considers (among other things) the law's stance toward disagreements within Islam touching on women's human rights.  (I also took up some of the questions considered by Resnik and Sunder in this article on the "state's interest in the development of religious doctrine").

Now, Professor Resnik notes (above) that "our central issues are whose voices within paideic communities are heard by which speakers of the secular order's power."  These tricky "issues" often surface -- as readers are probably aware -- in religious-freedom cases:  If there is an intra-church dispute about, say, the selection of a minister, or a stance on a moral question, who "speaks for" that church if the dispute finds its way into the arena of "the secular order's power" (e.g., a courtroom)?  And, even if we (properly, in my view) accept that, in cases involving religious communities with their own clearly identified structures of authority, the "secular order" should -- out of respect and concern for religious freedom -- refuse to "look behind" those structures, what do we do about disputes within communities that lack such structures? 

And Gavin Newsom said, Let There be WiFi!

According to CNET, my hometown of San Francisco wants to provide free wireless internet access on a city-wide basis, an initiative being pursued by some other cities as well. Although these initiatives aim to boost local economic development and reduce municipal communication expenses, I really like a third justification that's also being offered: ensuring that families in low-income neighborhoods have equal access to the internet. I haven't read any studies on the educational and professional disadvantages facing modern families who cannot afford regular internet access, but I would imagine them to be substantial, particularly in urban internet-savvy areas like the San Francisco Bay Area. To boost this initiative at the front end, Dell and some other computer makers apparently are offering to provide free computers to poor families. A smart  move for these companies beyond the simple good-will PR it generates, I think. I'll be interested to see how well Frisco and the other cities do at achieving this seemingly admirable goal, particularly against any campaign by commercial internet providers to stop it.

Young Mister Roberts

The various data purges we have seen in recent days (i.e., here and here) of John Roberts' memoranda from his days as a junior lawyer in the Reagan administration have been entertaining (writing about a correspondent who imagined that "all property in the U.S. has been placed in a trust," Roberts notes that the correspondent comes from L.A., and adds, "Where else?).  But have they been informative?  Should they fuel Democratic senators' efforts to paint Roberts as a lurking and dangerous neo-con?  (See here.)

I'm not so sure.  Surely they provide some evidence of Roberts' views, and it is not out of the question to look to the sapling when seeking to understand the tree.  But what mostly strikes me about the Roberts memos so far is that they speak to just how young he was.  There is little here of Harlan's restraint: this is a young, brash, bright, energetic lawyer -- sometimes cocky, sometimes witty, sometimes a little arrogant.  In other words, much like many other young lawyers before him and since, feeling the first flush of their talents at use, but perhaps not so cognizant of the limits of their knowledge and not yet fully chastened by experience.  This is a Roberts with substantial technical skills and (usually) a nice, light touch in his writing, but as yet not fully seasoned by that practical wisdom that is so essential to the compleat lawyer.

Again, I'm not saying people oughtn't pay attention to the early record.  It seems likely to me that Roberts is more seasoned and must occasionally wince (and laugh) to see some of his early writing.  It seems to me we cannot overpredict on the basis of this writing -- although he was clearly conservative, broadly speaking, and likely still is.  But mostly these memos strike me as painting a vivid picture of what it is like to be a bright young lawyer, for good and for ill.  Even we who are not bright can remember what it was like to be young, and read with a measure of sympathy, nostalgia, enjoyment, chagrin -- and forbearance.      

Why Size Isn't Everything (In Legal Scholarship)

Doug's excellent post below, along with the comments by Dan, Kate, et al., call to mind some earlier back-and-forth that Orin and I had on the subject (Orin features as well in the comments to Doug's post).  At the risk of prolonging the debate (or, worse, being ignored), I tend to agree with Dan that Brian Leiter's post was too hard on Fordham.  One of the commenters on Leiter's site asks, "I wonder who advised the student editors of [Fordham]?  Bashing the reviews of Harvard, Chicago, Michigan, etc. doesn't seem a good idea whatsoever."  Not so.  It seems like a pretty good idea -- and not just because it's fun.  By enforcing a length limit, the most competitive journals are aiming to effect a change in the length of submissions generally (although most of us, most of the time, stand a relatively small chance (but not none!  Don't give up on me, you sons and daughters of Yale!) of being published in the most selective journals, at least regularly).  If you're a competing journal but not quite at that level, why not try to establish a competitive niche based on your willingness to review and publish longer pieces?  Leaving aside where the merits lie on the length issue, Fordham acted appropriately in a competitive market.

On the merits, too, I tend to side with Dan, in a just slightly fence-sittingly way.  Orin and Kate have both raised fine points in favor of shorter articles.  More to the point, they raise fine points in support of reshaping the norm in favor of long articles.  But one of the problems with that norm was not only that it was not a good idea in itself, but that adhering to it as a norm was itself problematic.  It was quantitative, not qualitative.  Having been laughed at for x number of years, the editors of the top journals took a survey, and now they'll enforce a shorter-article norm.  Once again, however, they have simply imposed a reflexive rule in lieu of making case-by-case judgments that (as we and they all know) they may not be wholly qualified to make.  That there was good reason to lean toward shorter articles seems to me to have been less important than the fact that someone else told them to do so. And so one reflexively applied rule (prefer long articles) will now be replaced by another reflexively applied rule (run shorter ones).  In short, pace Leiter, it seems to me that the new rule does not replace a quantitative consideration with a qualitative one; it's quantitative all the way down.

One caveat: the new length policy states that longer articles will be accepted under extraordinary circumstances.  If they mean it, then there is less distance between them and Fordham than this discussion supposes.  If they don't -- if "extraordinary circumstances" means "Hello, I'm Bruce Ackerman.  Please publish my 120-page article," or "I'm your professor.  Bend the rule this once" -- then it wil suggest that length -- short this time rather than long -- has become an imperfect proxy for deeper considerations of quality.  I hope and think they will lean toward the former rather than the latter approach, but obviously authors are forewarned that there may be less point in sending these journals longer articles -- hence the wisdom of Fordham's competitive approach.         

The Jurisprudence of Friendship

I recommend highly Peter Goodrich's recent essay, Friends in High Places; It pursues a theme that has been of interest to me for some time--and will likely be the subject of my next book: the role or lack of a role of friendship in the law.  This particular essay looks at a contractual doctrine formed for the purposes of dealing with contracts among family members.  Courts often find contracts between spouses unenforceable because of a “failure to intend to create legal obligations,” assuming instead that the agreements spouses form are gentlemen's agreements of a sort (that men can often weasel their way out of, see, e.g., Balfour v. Balfour).  Some more recent cases have applied this doctrine to cohabiters and other “friends” with special friendships, especially of the same-sex variety.  Goodrich questions whether this recognition of friendship--by denying access to legally enforceable agreements, shuttling the amorous into a family life that is also kept separate from the law--is actually good for friendship.  Should friendship get more recognition than the recognition that it is private, triggering demands of private morality that are unenforceable at law?

Stimulating stuff.  But I wonder one thing: doesn't Goodrich undermine friendship's uniqueness in a way by too easily running its jurisprudence with rules about the family, domestic partnerships, and cohabitation? No doubt, spouses and lovers are particular sorts of friends and in some people's worldview the very paragon of friendship. Indeed, our friends from our younger years may be practice for the friendship of the family (or maybe the bachelors are right and family just dilutes true friendship).  Still, might we not be occluding a “law of friendship” by ignoring the reality that governing and regulating the family is probably what is at work when the law addresses “special friends” (rather than regulating--or delegating--friendship into a private sphere)? I suppose what I'm saying is that to find a truly distinctive friendship jurisprudence, wouldn't it be useful to try to separate the family out, control for it? As we all know, the specter of the family in the courts certainly creates its own aura that casts a shadow over the law.  And couldn't Goodrich be somehow adulterating the search for a law of friendship by looking at areas that intersect with the family? I suppose his search for a jurisprudence of amity is more general than my search for a law of pure friendship.  As it turns out, I am trying to side-step the family in my own effort to grapple with the question of friendship in the law: my sense is that if there is a role for the kind of friendship that interests me (through Aristotle, of course), the family has to be left out of it.

Election 2004

I was one of those people who, after we lost Ohio, wanted to try to forget about it.  I thought complaining about potential irregularities in the election would make us look bad--and would ultimately be counterproductive.  Democrats were already starting to look like whiners and I really believed that our best hope for the future was not harping on the 2004 loss.  I blamed Democracts for the loss and hoped they would get their act together for the next round.  I was suspicious of claims that Republicans stacked the deck during the election and just couldn't get behind the effort in the blogosphere to get worked up about little dirty tricks Republican election officials undertook to make sure Democrats couldn't register, vote, or have their votes properly counted.  I worked for "Election Protection," a "non-partisan" lawyer group that was trying to document any election irregularities, and I spent all Election Day fielding calls from Pennsylvania, from voters who needed help trying to vote.  I was underwhelmed with the very few irregularities that were reported to our office, though my experience was anecdotal at best because I was not in the field--and there were many more phone banks throughout New York.

I have now read Mark Crispin Miller's article in Harper's Magazine (August 2005, pp. 39-46).  Everyone should go out and buy a copy of the magazine and read Miller's report.  I am ashamed of myself for having been so dismissive.  The evidence is available here; read it and weep.

Why size matters (in legal scholarship)

The always provocative Brian Leiter has this amusing post responding to a recent solicitation in a mass mailing to law professors from the Fordham Law Review concerning the length of law review articles.  In addition to spurring some interesting comments on law review practices, Leiter's post has me thinking again about the unusual realities of the marketplace for legal scholarship, especially as it relates to the length of articles.

The marketplace of academic writing is fascinating, and the marketplace for legal academic writing is especially quirky (and surely worthy of extended discussion someday on The Becker-Posner Blog).   Money plays only a minor role in this marketplace (except perhaps in the casebook arena); the main forces in the market seem to be the quest for tenure and aspirations for professional prestige.   Consequently, senior faculty (particularly those on tenure committees) and law review editors (particularly those who select articles at "top" journals) have a profound influence on the market.

One reason law review articles have grown so long, in my view, is that a constructed market norm has developed  around the idea that a "serious" or "major" piece of scholarship has to be at least 50 pages.  This norm has been enforced by senior faculty members who expect to see a certain number of "major" (i.e., long) pieces in a tenure file and by law review editors who select a certain number of "major" (i.e., long) pieces for publication in each volume. 

For many reasons (which will require another post to articulate), I think this "size norm" is quite harmful to the overall health of legal scholarship and to legal scholarship's role in the legal profession.  [Self-promoting disclaimer: I edit two journals, the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law, that take pride in devoting some or all of its pages to shorter articles.]  I was very pleased to see the new policies adopted by leading law reviews, well discussed here by Orin Kerr, seeking to limit the length of articles they will publish.  However, I suspect that senior faculties are going to have to start valuing and rewarding shorter articles and other writings (including blog scholarship?) before we can expect to seeing any real evolution in the size norm.

One interesting and telling reality of the size norm is that senior faculty rarely follow it.  For example, in the recent Columbia Law Review symposium issue on sentencing, which has an amazing collection of articles from an amazing collection of (mostly  senior) authors, not a single one of the 14 articles runs over 50 pages and most check in between 30 and 40 pages.

A Constitutional Floor for Indigence?

Judging by my mailbox at school, I guess it is now typical in the law porn business for schools to distribute glossy brochures to every law professor in the country that extol the unparalleled virtues of the sender's school and each hiccup and burp it emits.  I don't much mind it, at least given what the first week's mail has brought in.  But what I do enjoy far more, again, at least so far, is receiving reprints from scholars around the country who write in my field, or in areas relatively close to it.

Yesterday I received Adam Gershowitz's reprint entitled the Invisible Pillar of Gideon, which just came out in Indiana Law Journal (Summer 2005), and which I read this morning.  Gershowitz is a rookie prawf at South Texas who had written a very good note as a student entitled The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards, 86 Va. L. Rev. 1249 (2000). Indeed, I think Stanford's Pam Karlan expanded upon the idea Adam wrote about in a lecture she gave at Minnesota and published in its law journal.

Adam's newest piece illustrates the discrepancy among states in determining who is indigent for purposes of Gideon's assurance of a right to counsel.  He observes that what counts as indigent in one state (e.g., Scott Peterson in CA) would not count as indigent in another (Larry McVay in South Carolina).  I would add that, in light of the various states that have fuzzy guideposts for determining indigency, the discrepancy exists not only across states but within states too regarding who is entitled to appointed counsel. 

As to the solution to this problem, Adam (whom I've not yet met) doubts Congress and the states could do something to establish the constitutional floor that Gideon is supposed to furnish on an equal basis; he therefore proposes that the Supreme Court adopt a framework that would "equalize the right to apponted counsel across the fifty states."  Specifically, the Court should adopt a rebuttable presumption that says: if you're below 200% of the federal poverty guidelines, you should get appointed counsel.  This use of flexible benchmarks is similar to the Court's State Farm jurisprudence in punitive damages.

One of the reasons Adam's piece picqued my interest is because I have to teach this Gideon stuff next week.  But another is because it seems to me to be another dimension of the issue of implementing "equal justice under law" as a constitutional imperative, an issue I've been tackling in the sentencing context in my working paper entitled: Luck or Law? The Fate of Equal Justice After Booker.  That paper essentially argues that indeterminate sentencing schemes should be declared unconstitutional on account of their violating the anti-arbitrary norms that inhere in the Constitution and that have developed in the Court's jurisprudence.   Some feedback on that paper so far has focused on the bigger question of what the scope and proper limits are to the application of the "equal justice under law" principle in the criminal justice context.  Adam's paper helpfully, though indirectly, shows how to start thinking about that issue in other important places in the criminal justice arena.  The paper has the added virtues of being relatively short, straightforward and has some interesting coverage beyond the argument I've canvassed above.  I didn't see a draft up on SSRN, but it is up on Westlaw: the citation is 80 Ind. L.J. 571.

Babies on the No Fly List

Over at Balkinization, I just posted about an interesting story by the AP about how babies are being flagged by the Do Not Fly list.  I argue that the debate must shift from merely pointing out the privacy and civil liberties costs of various security measures to also pointing out just how dumb, badly-conceived, and poorly-executed these measures often are. 

A Speluncean Follow-Up

Has anyone noticed that the statute at issue in the Speluncean Explorers case is clearly overbroad?

Whoever shall willfully take the life of another shall be punished by death.

By these terms, isn't the executioner subject to the death penalty?

Revisiting the Speluncean Explorers

No doubt you've come across Lon Fuller's brilliant and famous jurisprudential puzzle, The Case of the Speluncean Explorers, at some point in your legal education. 

It strikes me that a blog presents a unique opportunity to discuss the possibilities in greater depth than a classroom allows, and so I open the comment forum to discussion.  If we generate interesting debate, I will blog a follow-up post with further discussion.

Please share which of Fuller's opinions you would join or present a different position entirely.  (Indeed, there is a small cottage industry devoted precisely to offering alternative opinions.)  Assume there are no constitutional defenses.  Assume necessity is not a defense.  Consider whether it makes any difference whether the judges are appointed or elected. 

For extra credit, guess which opinion I would join.

A brief refresher of the salient facts:

Five cave explorers were caught underground after the tunnel collapsed.  They learned through radio contact that the rescuers were at least ten days away, and that they could not survive that long without food.  They further learned that they could survive if they were to eat one from among them.  They radioed to the outside to ask whether it would be legally and/or morally permissible to kill one among them to sustain the others, but no one above ground would answer the question. 

One of the explorers, Whetmore, suggested that they throw dice to determine who should be eaten, and they all agree.  Just before the dice were thrown, Whetmore suggested that they wait until they are closer to death before proceeding; but he was outvoted, and a die is cast on his behalf.  Everyone, including Whetmore, agreed that the dice where thrown fairly.  Whetmore lost. 

When the rescuers finally reached the explorers, they found that Whetmore had been killed and eaten. 

The remaining explorers were put on trial for murder under the jurisdictions statute, "Whoever shall willfully take the life of another shall be punished by death."  They were found guilty and sentenced to be hanged. 

The case is now on appeal to the Supreme Court.  What should the Justices do?

After the jump, I briefly review the various positions offered by Fuller.

Note: What follows is a very brief description of each opinion.  For further detail and nuance, consult the original.

Chief Justice Truepenny: Would affirm the conviction and sentence.  The murder statute obviously applies to the defendants' conduct, and it is not within the Court's province to ignore the statute.  The executive may provide clemency.  Indeed, given the facts of the case, the executive is likely to provide clemency, and the Court should formally encourage the executive to do so.

Justice Foster: Would reverse.  The statute is inapplicable for two reasons.  First, once the explorers were cut off from society, they returned to a state of nature, and society's laws did not apply to them.  Alternatively, the purpose of the statute would not be served by applying it in this case.  (Read the article for the complete argument.)

Justice Tatting: Would recuse.  The statute clearly applies, but he could not live with himself if he voted to affirm because the result would be evil.  Therefore, he recuses.

Justice Keen: Would affirm.  It is not the judge's role to tell the executive what to do (contra Truepenny), other than to offer her opinion as a private citizen.  It is also not the judge's role to determine whether the explorers' actions were "good" or "bad," or whether the statute is good or bad policy.  The judge's role is to apply the statute, which very clearly applies on its own terms to this case.

Justice Handy: Would reverse.  The statute clearly applies, but the judge must exercise common sense.  Further, public opinion overwhelmingly supports reversal, and it is clear (contra Truepenny) that the executive will not grant clemency.  Therefore, it falls to the court.

What would you do?

Update:  In addition to the articles and books linked above (and mentioned by D. Solove in the comments), Professors Paul Caron and Rafael Gely have an interesting article available on SSRN.

Coming at the case from a different perspective, Caron and Gely explore the connections between the opinions offered by Fuller in The Case of the Speluncean Explorers and the opinions in Grutter v. Bollinger.  They propose a jurisprudence of humility that recognizes that judges and lawyers hold no monopoly on wisdom and that, in certain situations, institutions other than courts may be better positioned to resolve a particular issue.  They draw some surprising connections between the two cases and try to bridge the gulf in legal literature between statutory construction and constitutional interpretation.  As Solum says, get it while it's hot!

TWEN or Web Courses?

I’m planning on using an on-line “classroom” this year to teach both Criminal Law and Professional Responsibility. So far I have been experimenting mostly with Westlaw’s TWEN program, largely because our Westlaw rep came a few weeks ago and showed us how to use it. I’ve also been playing with Lexis’ Web Course program, though, and I like it as well. Does anyone who has used either or both as a teacher or student have any comments on their pros and cons?

Sports Allegiances and the Legal Academy

As I sit here in a new town, switching between prepping my criminal law class and reading ESPN.com, a thought comes to mind that I hope does not fail Kaimi’s “I know it when I see” off-topic blog test:

I know that wherever I may live in life, I will not yield my original sports team allegiances and root locally for the sake of it. Giants, Raiders and Warriors forever (no hockey team allegiance, as the Sharks did not start in SF until the year I left to Boston for law school). I am, however, limited to these professional sports team allegiances because my college did not have much of a sports program, so I am free to adopt my new school’s teams without facing any ethical conflicts. But, I would think that many sports-fan law profs do face that conflict: Do I continue to root for my own school’s teams or do I adopt the teams where I teach? I don’t have a good sense, at least in the legal academy, of how deeply these old versus new school allegiances may run. One Michigan alumnus whom I enjoyed meeting at the AALS new law profs conference, and who is going to teach at another very competitive Big Ten school, said he would have no difficulty resisting the call to root for his new school’s teams, as I would hope and expect of any Michigan alum. Is this position common, or are new law profs feeling tempted to align with their new school’s teams, even ones that might sit in direct competition to their previous school? Will our PrawfsBlawg host Dan, for instance, say goodbye to his surely beloved Crimson Pride, even after last year’s Ivy League football dominance, to root along with the disallowed mascot at FSU? Can he somehow be fans of both? Does a willingness or (my) unwillingness to change sports team allegiances reveal anything more broadly about the individual (beyond what being a sports fan reveals in the first place)?

Euro-English

Another pearl from Ruchira Paul:

LEARN EURO-ENGLISH
The European Commission has just announced an agreement whereby English
will be the official language of the European Union rather than German,
which was the other possibility.

As part of the negotiations, the British Government conceded that English
spelling had some room for improvement and has accepted a 5-year phase-in
plan that would become known as "Euro-English".

In the first year, "s" will replace the soft "c". Sertainly, this will
make the sivil servants jump with joy.

The hard "c" will be dropped in favour of "k". This should klear up
konfusion, and keyboards kan have one less letter.

There will be growing publik enthusiasm in the sekond year when the
troublesome "ph" will be replaced with "f". This will make words like
fotograf 20% shorter.

In the 3rd year, publik akseptanse of the new spelling kan be expekted to
reach the stage where more komplikated changes are possible.

Governments will enkourage the removal of double letters which have always
ben a deterent to akurate speling.

Also, al wil agre that the horibl mes of the silent "e" in the languag is
disgrasful and it should go away.

By the 4th yer people wil be reseptiv to steps such as replasing "th" with
"z" and "w" with "v".

During ze fifz yer, ze unesesary "o" kan be dropd from vords kontaining
"ou" and after ziz fifz yer, ve vil hav a reil sensibl riten styl.  Zer vil
be no mor trubl or difikultis and evrivun vil find it ezi tu understand ech
oza. Ze drem of a united urop vil finali kum tru.

Und efter ze fifz yer, ve vil al be speking German like zey vunted in ze
forst plas.

If zis mad you smil, pleas pas on to oza pepl.

Things to ask (or not to ask) your new prawfs

Today was orientation and meet your professors day at Hastings.  After a brief introduction, the forum was opened to students to ask questions of their professors.  Some asked about the Socratic method; some asked about supplemental readings; some asked how they could find the assignments for the first day.  Here's the one I got on my first day as Professor Leib:

"Professor Leib, many of us are concerned that you've never taught a day in your life.  What do you have to say about that?"

This is not only what I heard (which I expected to hear, of course); it was what was actually asked.  Law professor wannabes, take note: not only will your students be thinking it--some may actually say it out loud.

Justice as FAIRness

Allow me to spotlight two interesting new papers on the Solomon Amendment litigation (the litigation is known as the FAIR case, for Forum for Academic and Institutional Rights -- hence the title). 

First, Diane Mazur of the University of Florida has posted a paper entitled "A Blueprint for Law School Engagement with the Military."  The paper questions whether the law school plaintiffs' response to Don't Ask Don't Tell, which consists largely of shunning the presence of the military on campus, is the right approach, and instead counsels a more constructive and meaningful engagement with the military and the constitutional issues that surround us.  This engagement is especially important, and especially difficult, in an environment in which the principle of civilian control of the military demands that civic institutions (including law schools) pay proper attention to the military, yet in which the gap between the civilian and military worlds has been increasing since our move to a volunteer military.  Prof. Mazur links these concerns to the judicial policy of deference to the military, which she critiques at length here and elsewhere.  While I may not agree with every aspect of her paper, I think her argument for engagement with the military over reflexive disregard for the military is an important one.  The paper can be found here.

Prof. Andrew Morriss of the Case Western Reserve law school has also posted an interesting paper, entitled "The Market for Legal Education & Freedom of Association: Why the 'Solomon Amendment' is Constitutional and Law Schools Aren't Expressive Associations."  He makes three central arguments.  In his words:  "This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so incorrectly assumed that law schools are "expressive associations" entitled to assert First Amendment claims, failed to give proper deference to Congress's exercise of its Article I power to raise and support armies, and over-valued law faculties' interest in career services offices."  Again, I think this is a very interesting paper.  It can be found here.

Let me recommend both of these papers to those who are interested in the Solomon Amendment litigation, which of course is due to reach the Supreme Court this Term.  I suppose it is just barely fair to point out that my interest in these issues is both scholarly and a little bit proprietary, since my recently published paper, Grutter's First Amendment, contains what I think is the first serious post-Third Circuit discussion of the case currently in print.  See 46 Boston College Law Review 461, 516-33 (2005), available on Westlaw or here.          

An Introduction and Some Initial Musings on Subway Searches and Terrorism

Many thanks to Dan and company for inviting me to chime in here for a couple of weeks. I had the pleasure of meeting Dan, Ethan and several other contributors to this blog at the AALS new law profs conference a couple of months ago, and as a newly-minted law prof, I can say that this blog has become regular reading for me. I'm honored to be here.

I  recently left New York City and dearly miss taking the subway everyday—well, maybe not the F Train on weekends—and so I have paid close attention the ongoing discussions about the NYC subway searches. What particularly has intrigued me is the challenge that these and similar preventive terrorism investigations present to every-day notions of U.S. criminal justice, both conceptually and doctrinally. Much of the conversation in this area so far had concerned government action that I think has struck many people, accurately or inaccurately, as far from home—military detentions and tribunals, FISA warrants, the Patriot Act and the like. Routine searches of big-city commuters, by contrast, are a real-world change to daily American life that will require some revision of our notion of acceptable levels of police-citizen interaction. This revision does not strike me as simple or minimal.

What really perplexes me, however, is some people’s almost violent reaction to any effort to test the government’s expansion of its powers in the name of protecting the citizenry. The ACLU has become a favorite target for this vitriol. Eugene Volokh thankfully spent some recent blog time  defending the right of the ACLU to challenge the NYC subway searches. As Professor Volokh noted in one of his posts, the NYC subway searches raise difficult Fourth Amendment questions, as they do not appear to fit neatly into any existing category of permissible police action. See also S. Chan and K. Fahim, Legal Issues Being Raised on Searches in Subways, NY Times 07/24/05, §1. I recently read the complaint that the ACLU filed in the Southern District, and it is an eminently reasonable, non-frivolous legal claim.

Now, don’t get me wrong: I suspect that some rationale will be adopted to justify these searches, at least in some form. Perhaps they will be viewed as a reasonable extension of airport security or other suspicionless checkpoints, as Professor Volokh suggested. Justice Ginsburg and Souter’s dissents in Illinois v. Caballes may shed some further light on how courts should respond to these searches. But, I just can’t imagine why people would jump up and down about the ACLU challenging these searches. At the very least, the challenge ensures that we have thought about why we want to allow these wholly suspicionless searches under our constitutional scheme, and also that we have limited them to avoid abuse.

But the NYC subway searches do get me thinking: How much may a community’s shared willingness to accept expansive police action inform our Fourth Amendment? Do the unique community harms of terrorism and the preventive focus of anti-terrorism police work warrant a larger role for this democratic norm in Fourth Amendment jurisprudence? The concept of “community burden sharing” already has been advanced by scholars such as Tracey Meares and Dan Kahan as a factor that courts sometimes should weigh in assessing the constitutionality of police action. Perhaps it has special force here. Such a consideration, however, highlights the importance of Ekow Yankah’s thoughtful post here several weeks ago about racial profiling. For, we surely cannot justify expansive police action as a communally shared burden if we then burden discrete minorities within our community more severely than everyone else.

These scattered musings merely scratch the surface, of course, and I have no ready solutions for the many hard questions that terrorism raises for our system of criminal justice. But, I would love to share ideas about them here over the next couple of weeks.

Speeding towards T-town

Given that my partners in crime here have been so "serious" of late, I'll borrow this space for a few personal ruminations after having been more or less off-blog the last week. Like Ethan (in June) and Kaimi (in July), I had to pack out and move to my new school recently.  Instead of taking the 95 down the coast, I figured we'd enjoy the drive down Route 17 until we got to Charleston, SC.  What a jackass move.  The roads were slow, and I must have stopped through every town in Va, NC, SC, and Georgia!

We were almost out of Virginia en route to NC when I got pulled over for speeding (my main non-personality vice).  The kindly officer asked me if I was in law school.  I said, actually, I'm about to start teaching at a law school (I'm guessing he saw a teacher's manual to a casebook in my backseat).  He said, well, I guess you know why I pulled you over.  He informed me that Virginia has draconian speeding laws; had I been going just a few miles faster I would have been required to appear before a magistrate judge and spend the night in jail.  Jiminy Crickets.  Of course, he recognized that I wasn't driving dangerously (there was nary a car on the road at that point and I wasn't swerving or anything), so I got off with a mere 225 dollar ticket.   This was probably my only speeding ticket in memory, and while I think the penalties are a bit severe, I know that I have nothing to complain about.  If legislatures think speeding is the near-equivalent to crystal meth trafficking, then so be it.  That's democracy.  I happen to think that it would be better if we could adopt more pre-commitment strategies to avoid speeding.  My own strategy is to drive a weak-engined Civic, btw. But that's hardly sufficient it seems.  (Parenthetically, Ed Cheng (Brooklyn) has an interesting paper on speeding and Napster and structural impediments to law-breaking.)

More vivid reminders of speed's dangers were posted along South Carolina's roads, which in construction zones, posted photos of little girls saying, Please don't kill my daddy; he works on this road, or Let 'em work, let 'em live.   The best one was a sign that said something like, since 1988 28 people have died on this road.  Drive carefully. (Or maybe, don't be a statistic.)

I find these incredibly powerful semiotic gestures, and I wonder why I never saw this kind of state moralizing (I say that with respect not derision) in the North or even in California, let alone federal roads.  Maybe that will be a new PrawfsBlawg cause, after adoption and organ donation...and now cancer-reduction.

Anyway, Charleston SC is a glorious place to spend a night or twelve, eat pralines, and go on mule-drawn carriage rides.  We spent less than 16 hours there, but it made me want to go back soon.  We missed Savannah on the way down, but I gather it's not too far away and worth its own trip.  And T-town is growing on me by the nano-second.  As I write, I'm sitting in my study overlooking a pastoral golf course.  The home I'm renting for the year lends insights into the American dream, and its allure.  I'm paying less in rent now for a 2400 sq. foot home than I did for my 1BR in apt in Dupont Circle.  Everything else in TLH seems about the same price as big city living--restaurants, movie rentals,  upscale groceries are all the same.  And so are Target, Walmart and CVS.  You'd think that there'd be lower prices when the real estate is lower-priced; but my quick perusal of gas prices belies that.  It seems gas prices are higher in the poorer parts of town here.  Maybe that's because there's a higher likelihood of robbery, but it seems weird still.

As for Prawfs business, this week augurs the arrival of Brooks Holland, another junior crimprof who was a former public defender in New York and who now teaches at Gonzaga, in Washington (state).  I want to thank Bernie Meyler and Ekow Yankah for their posts the last few weeks. Hope to see you back soon. 

First Day of Law School

This week, about 180 first-year law students will arrive on the campus of Notre Dame.  A few days later, I'll meet about 60 of them for their first law-school class (Criminal Law, in my case).  I'm curious -- for those readers and bloggers who are, or have been, law students, is there a "big picture", "here's what it's all about" point that you remember your professor making, or that you now wish your professor had made, on your first day?

Rick

"Philadelphia Story"

I was born outside of Philadelphia -- and, for years, when I was growing up in Alaska, my visits to Philadelphia pretty much shaped my view of what "big cities" were like -- which is probably why this article, in Sunday's NYT, caught my eye.  In "Philadelphia Story:  The Next Borough," the author explores the "Brooklynization" of Philly:

Attracted by a thriving arts and music scene here and a cost of living that is 37 percent lower than New York's, according to city figures, a significant number of youngish artists, musicians, restaurateurs and designers are leaving New York City and heading down the turnpike for the same reasons they once moved to Brooklyn from Manhattan.

"We got priced out of Manhattan, and we moved to Brooklyn," said John Schmersal, 32, of the three-member band Enon; two of them migrated here in January. "Then we got priced out of Brooklyn. Now we're in Philadelphia."

On a recent Friday night Mr. Schmersal and his girlfriend, Toko Yasuda, were huddled at the bar at the Khyber, a smoky rock institution in the nightclub-heavy Old City neighborhood, a Colonial area of narrow streets bordering the Delaware River east of City Hall, to see Love as Laughter, a New York City band. "We like going to shows here," Mr. Schmersal said. "In New York there are so many people, it's impossible to even get in to see hot bands."

As the author concedes, the hip-ifying of Philly might seem unlikely (to NYT readers):

Fifteen or 20 years ago, the idea of Philadelphia as a place to go for quality life would have been laughable to many people, even to Philadelphians. Sandwiched between New York and Washington, Philadelphia was a flyover city - trainover really - a place where a mayor had ordered the bombing of a neighborhood and where Eagles fans reveled in booing their own team, its chief popular exports cheese steaks and "Rocky." While Philadelphia's rich cultural history, like its art museum, its symphony orchestra and its Colonial architecture, gave the city establishment credentials, it did not produce much of an avant-garde.

I imagine this "Brooklynization" is good in many ways.  Still, I think I prefer Philadelphia as the home of Pat's and Geno's (and, once upon a time, Charles Barkley) to Philly as the "Sixth Borough." 

Rick

"An Islamic Alienation"

In Sunday's New York Times, David Rieff writes, in "An Islamic Alienation":

Even if they produced no other positive result, the attacks on the London Underground have compelled Europeans of all faiths to think with new urgency about the Continent's Muslim minority. Such a reckoning was long overdue. Some left-wing politicians, like London's mayor, Ken Livingstone, have chosen to emphasize the proximate causes of Muslim anger, focusing on the outrage widely felt in Islamic immigrant communities over the war in Iraq and the Israeli-Palestinian conflict. But the harsh reality is that the crisis in relations between the European mainstream and the Islamic diaspora has far deeper roots, consoling as it might be to pretend otherwise.

Indeed, the news could scarcely be worse. What Europeans are waking up to is a difficult truth: the immigrants who perform the Continent's menial jobs, and, as is often forgotten, began coming to Europe in the 1950's because European governments and businesses encouraged their mass migration, are profoundly alienated from European society for reasons that have little to do with the Middle East and everything to do with Europe. This alienation is cultural, historical and above all religious, as much if not more than it is political. Immigrants who were drawn to Europe because of the Continent's economic success are in rebellion against the cultural, social and even psychological sources of that success.

He continues, and then concludes:

The multicultural fantasy in Europe -- its eclipse can be seen most poignantly in Holland, that most self-definedly liberal of all European countries -- was that, in due course, assuming that the proper resources were committed and benevolence deployed, Islamic and other immigrants would eventually become liberals. As it's said, they would come to ''accept'' the values of their new countries. It was never clear how this vision was supposed to coexist with multiculturalism's other main assumption, which was that group identity should be maintained. But by now that question is largely academic: the European vision of multiculturalism, in all its simultaneous good will and self-congratulation, is no longer sustainable. And most Europeans know it. What they don't know is what to do next. If the broad-brush anti-Muslim discourse of Jean-Marie Le Pen's National Front in France or the Vlaams Belang Party in Belgium entered the political mainstream, it would only turn the Islamic diaspora in Europe into the fifth column that, for the moment, it certainly is not. But Europeans can hardly accept an immigrant veto over their own mores, whether those mores involve women's rights or, for that matter, the right to blaspheme, which the Dutch filmmaker Theo van Gogh so bravely asserted -- and died for.

Figuring out how to prevent Europe's multicultural reality from becoming a war of all against all is the challenge that confronts the Continent. It makes all of Europe's other problems, from the economy to the euro to the sclerosis of social democracy, seem trivial by comparison. Unfortunately, unlike those challenges, this one is existential and urgent and has no obvious answer.

I don't know enough to know, but some other bloggers or readers might:  Is it really as bad as Rieff suggests?  Is it really the case that "the European vision of multiculturalism, in all its simultaneous good will and self-congratulation, is no longer sustainable"?  Or, is it possible that, in a few decades, Rieff's lament will sound like Paul Blanshard sounds (to most of us) today?

Rick

At Least Armstrong Gets It

I've been harping for a while about how the government is wasting tons of money on security measures of dubious value when it could be spending the money elsewhere and saving more lives.  In this recent CNN article, Lance Armstrong points out that there's another war beyond the war on terrorism and the war in Iraq -- the war on Cancer:

Seven-time Tour de France winner and cancer survivor Lance Armstrong Sunday said the United States, which is embroiled in a costly war in Iraq, should focus more effort on a war facing many Americans -- the one against cancer.

Although the United States declared war on cancer in 1971, Armstrong said in some ways, the country was losing that war.

"I'm not saying that spending on wars and terrorism is a bad thing," Armstrong said in an interview on ABC's "This Week with George Stephanopoulos."

When asked if the United States was doing enough to fight cancer, Armstrong replied, "I think we could spend more money. I think we could spend our money in different places. And I think we could spend our money where it matters to the American people."

Armstrong, who is on the President's Cancer Panel, said that the National Cancer Institute and other U.S. health agencies need more money to better fight cancer.

"This is one of the few years where they have not had more money. As a survivor, I think we would be better spending money on an illness like cancer," said Armstrong, who was diagnosed in 1996 with testicular cancer that spread to his brain and lungs.

So I must be right in all my posts. Lance agrees with me!

Elm Harbor and Fiction by Law Professors

Sadly, I have spent many hours of my last week before classes begin finishing Stephen Carter's The Emperor of Ocean Park.  My wife grew tired of my complaining about the book, since I seemed not to be able to abandon reading its 650 pages for more useful activities in the days before commencing my teaching career.  It really wasn't a very good book (the mystery element is engaging, if absurd); but something about peering into Carter's head through the book was fascinating.

I realize I should try to treat it as fiction, though I'm loathe to do so because I usually read only a single work of fiction per year--and this would really have been a bad candidate for that honor.  Despite Carter's protestations on the final pages of the book that the characters in his Elm Harbor (a/k/a New Haven) law school have no relation to his colleagues at Yale--and that the book cannot be read as a roman a clef for anything, anyone who has anything to do with Yale Law School will not be able to help trying to figure out which "fictional" people are composites of whom.  It was hard for me not to see Ackerman and Balkin, Guido and Amy Chua, among others, woven into the fabric of the main characte's colleagues.  And of course the main character has to be Carter himself, albeit a marginally fictionalized one.  It is just hard to believe that a law professor with little evident talent for fiction-writing could truly succeed at writing a good novel that is fully "fictional," especially when his chosen material is so close to home.  I imagine that many lawyers have some quite bad "fictional" book they've written at some time; most of us, however, realize these books should never see the light of day--and that if we are going to give fiction-writing a go, we should write a second book, where we haven't put ourselves as the main character.  (Full disclosure: My novella, Not a Novel Idea: A Tragicomedy in Four Acts, is one act away from completion.  I'm a main character, of course, and I know it should never be published.)

Obviously, some people do write themselves into their books very well (but god does that Everything is Illuminated movie have bad previews).  Nevertheless, Carter's was just one that kept me in it mostly because I liked thinking about how the book reflects on the real Stephen Carter (although I never had a class with him to get a first-hand impression).  Some things that were on display: his religion, his views on race (and the relations between the "darker nation" and the "pale" one), his perspective on (very petty) academic hierarchies that must surely exist at Yale, adultery, the law school deanship game, and the judicial appointments game. The protestations notwithstanding, I suspect this book will be of interest to those with connections to Elm Harbor--and those that care to peer into the mind of one of Yale Law School's few black faculty members.  Much is illuminated.