Tuesday, January 31, 2006
Poor Justice Breyer...
[!!Random, Silly Trivia Warning!!]
When Justice Alito is sworn in this afternoon, it will end an amusing streak of near-record-setting length for a Supreme Court Justice: Longest time serving as the junior Associate Justice -- as the Conference "doorkeeper," if nothing else.
Justice Breyer, who was confirmed on July 29, 1994, took the oath of office on August 3, 1994, meaning that he will have served as junior Associate Justice for 11 years, five months, and 28 days, falling seventh months and three days shy [if my math is right; oh, the perils of being a math major-turned-law-prawf] of the all-time record-holder, who served as junior Associate Justice for 12 years, one month, and one day.
And who was that? [The answer's below the fold.]
Justice Joseph Story.
Now, there's actually a slight disagreement as to which date counts here, because the Supreme Court Historical Society and the Supreme Court website itself offer two different time-periods for the gap between Justice Story and the next Associate Justice, Smith Thompson. According to the former, Justice Story was confirmed on November 18, 1811, and Justice Thompson on December 19, 1823, a gap of twelve years, one month, and one day (and the gap I used above). But according to the Supreme Court website, which itself notes that some of its authorities are questionable, Justice Story took the oath of office on February 3, 1812, and Justice Thompson on September 1, 1823, a gap of eleven years, six months, and 29 days. [Of course, the difference could be absolutely correct, given the common historical gap between confirmation and oath-taking.] And it probably stands to reason that it's the oath, and not the confirmation, that matters...
But it's not a real controversy, though, since either way, Justice Breyer comes up short. Too bad!
The Enron Trial: Reasons Not to Watch
The Internet is abuzz with the beginning of the Enron trial. The Glom has lots of news, including this prediction from two of the hosts. The Houston Chronicle has a TrialWatch with frequent updates throughout the day. Dave Hoffman at Concurring Opinions has labeled the Chronicle's live-blog a "must read" for corporate law nerds. And the major newspapers are filing updates from the trial at least once a day.
For the most part, however, I've found that I'm not all that interested in following the trial. That surprised me, because it seems like I should be. But here are my reasons:
- The real bad guy is not on trial. You can debate the "badness" of Lay and Skilling all day, but clearly the force of evil at Enron was Andy Fastow. He developed the scheme, he executed it, he made millions in profits through a clear conflict of interest. Special purpose entities were named after his wife and kids. After that, Michael Kopper was his deputy in malfeasance, and Causey has copped a plea. Like many criminal conspiracies, the worst offenders have pled, leaving trials for those who have the best case for innocence. Lay and Skilling may or may not have really known what was going on. Sure, even not knowing is bad, given their positions of authority. And creating a culture of noncompliance is also wrong. But Lay had left the executive ranks while much of the fraud was occurring. And whenever I think of Skilling, I picture him (as described by Eichenwald) getting drunk on wine and curling up into the fetal position at a resort hotel. Not the actions of an evil genius.
- The outcome may not rest on ultimate guilt or innocence. Here are my concerns. There is a good chance Lay and Skilling will be convicted even if they're innocent because of the baggage associated with the name "Enron." Since we've been deprived of a public trial for Fastow et al., this is the only chance for a jury to wreak vengeance for all that Enron represents. In addition, the question of guilt here is incredibly complex and revolves around issues like the "spirit" vs. the "letter" of accounting rules and securities regulations. I'm a little worried that the lesson of the first Tyco trial is that juries can't handle complexity. In an NYT video interview [click on the "Business News" channel to the right], Joseph Nocera of the Times says that the prosecution is "not [going] to get into the nitty-gritty of special purpose entities and accounting transactions." He agrees with this decision. Huh? Don't you have to get into that to understand what really happened? If both sides avoid complexity, the jury might decide the case based on their negative impressions about Lay and Skilling, rather than a real understanding of what happened. Alternatively, Lay and Skilling might walk, even if they're guilty, if jurors can't really understand what it is that they did wrong.
- Enron overload. It seems like we've heard a lot about Enron. By way of empirical evidence, a search of the "JLR" database on Westlaw shows 355 articles with Enron in the title. (By way of comparison, only 39 articles have WorldCom in the title, and only four have Tyco.) Numerous books and a movie have chronicled the scandal. Almost five years after the scandal broke, we're just getting to the trial? Yes, a trial might reveal new information or at least provide direct testimony from folks like Lay, Skilling, Fastow, and Causey. But in terms of my interest, I can't say the trial has me on the edge of my seat.
Don't get me wrong -- I'll follow the trial, and I'm interested to see whether we learn anything new through it. But this trial is not the grand finale of l'affaire de Enron that it's being made out to be. And I hope that we don't read too much into a victory for one side or the other.
In case you missed it from yesterday, David Lat has assumed partial responsibility for replacing Ana Marie Cox, the Wonkette editrix. Check out the picture of Lat holding the umbrella here. Lat, it appears, will still write Underneath Their Robes, but he will be distracted from his self-described mission of judicial starf***ing with his new job. I used to read Wonkette regularly during the campaign season but stopped after Kerry lost, renewing an age where few things about politics were funny. I suspect I'll want to see what happen with Lat in DC and on Wonkette: at least there his talents won't be misdirected in Article III courtrooms.
napa wine > or = 75% from Napa
Last week, the U.S. Supreme Court declined to hear a case involving both federalism and "Napa wines." (Perhaps SCOTUS had its fill of both wine and federalism from last Term's wine shipment case, in which the Court struck down bans on direct wine shipments interstate.) The controversy in this second case involved a California law that requires a wine producer to use at least 75% of grapes grown in Napa Valley, in order to be able to use the geographical indication "Napa" on the bottle. Although Federal regulations have a similar requirement, they also allowed certain "grandfathered" uses that had started before 1986. Bronco Wine Co. (known for the surprisingly popular $1.99 "Two Buck Chuck" bottle of wine) hoped to be grandfathered in and challenged the California law as preempted. The California Supreme Court rejected the claim here.
To me, the decision makes a lot of sense. Sorry, Bronco. California has a much greater interest in regulating the quality of Napa wines and the use of the geographical indication "Napa" and "Napa wines." Requiring a higher quality (with no grandfathering) helps California and Napa Valley maintain quality control. And, in the end, that's all the better for consumers and wine lovers. I'm no wine connoisseur, but the one thing I wonder about: why isn't the percentage of grapes even higher than 75%? Say, 85% Napa grapes?
Suppose you were starting a three-year, JD granting law school that you are designing to attract wannabe future academics. Assume, too, that accreditation isn't an issue. And to make the hypo even less constrained, assume funding isn't an issue either. Would you consider going beyond the Yale model of reduced curricular requirements and simply get rid of all requirements? If the student body is smart enough and sufficiently good at standardized tests, students could take a bar prep class and pass the bar (if they feel the need to) even if they skipped a greater than usual number of multi-state subjects. Students could spend more time taking advanced classes, focus on areas of specialization, and engage in independent writing projects rather than exam-taking -- which, other than the process of studying, ultimately results in work of no enduring value for the student or professor. In this way, law school would look more like graduate school.
Perhaps this goes in part to this question: Once law schools move further away from a de facto requirement that new professors are coming out of practice and are even members of the bar, and once law schools see their role within their larger academic institutions as hybrid academic/ professional schools rather than purely vocational, then why require, or at least expect, a traditional JD of your faculty at all?
I have my own ideas about some things that would get lost in moving to such a model (specifically, a loss of a shared, generalist education), and please note that I am in no way advocating this as a model. But I'd be interested in hearing what others have to say to it. It strikes me that the Yale model both attracts would-be academics and forces its students into designing their education and work-product in a manner that is advantageous for entry into the teaching market. (Whether Yale produces better academics is a separate issue; there seems to be no question that it produces more of them on a per capita basis.) If that's the case, and if law schools outside the top 5 want to establish programs that would produce more academics, then why not go whole hog?
The Intellectual Value of Amicus Briefs
This term,* the Supreme Court will decide one of the most important cases involving the interpretation of treaties as part of U.S. domestic laws that it has ever faced. In Sanchez-Llamas v. Oregon, the Court will consider whether the Vienna Convention on Consular Relations creates a private right of actions for aliens in U.S. courts. It will also decide whether the treaty requires the suppression of any evidence seized in violation of the treaty. Finally, it will decide what level of deference or comity U.S. courts owe to the International Court of Justice.
Paul Stephan, a law prof at UVA, has filed a terrific amicus brief in support of the respondent states Oregon and Virginia arguing that the Vienna Convention does not create such private rights of enforcement. A number of law professors have signed the brief (including me). A more detailed summary of our arguments can be found at my regular blog Opinio Juris.
I know there is lots of skepticism on this blog about the usefulness of such amicus briefs, especially ones purporting to represent the views of law professors. And some of the same objections that I raised about blogging here would apply equally to amicus briefs because they do force scholars to take stands on issues about which they are writing and researching.
But just like blogging can be a useful way to develop one's thinking about legal questions, brief writing sometimes sharpens the way I think about an issue. So it's a trade off.
I do object to briefs that rely too heavily on the credentials of their signers. I deeply respect all of my co-signers and I enjoy basking in their reflected glory, but even their rather impressive scholarly reputations are unlikely to make a big dent in the Court's thinking.
I also don't have any illusions that this brief will dramatically change the outcome (although it deserves to given how well it is reasoned and thought out). But even if it is never read by the Court, I think it has been a worthwhile intellectual experience.
*apologies. I accidentally posted an unfinished version of this post under a different title.
Monday, January 30, 2006
Holidays With Cool Names, Part I: Evacuation Day
So, I'm halfway through Ron Chernow's intriguing (and eponymous) biography of Alexander Hamilton, which itself is a great read, and learned this wonderful little historical tidbit:
Apparently, on November 25 every year until shortly after the end of World War I, New York celebrated (and rather significantly at that) "Evacuation Day," in honor of the date in 1783 on which the last British forces withdrew from New York City, then the last remaining British military detachment in the former colonies (which the Redcoats had occupied since the Battle of Brooklyn in 1776).
As "The Encyclopedia of New York City" explains, a particularly extravagant celebration took place in honor of the centennial of the British withdrawal, but, given its proximity to Thanksgiving and the decline of anti-English sentiment after the First World War, the City ceased officially commemorating the date in the early 1920s.
Guess I need to brush up on my NYC minutiae. While on the topic, I'd welcome other candidates for cool holidays that we used to celebrate, and should bring back...
The (un)constitutionality of the federal anti-bootlegging statute
First off, thanks to Dan et al. for inviting me to join the Blawg for a couple weeks. I’ve enjoyed reading this blog for the past year or so and I look forward to contributing.
One of my interests is how constitutional law intersects with copyright. One facet of this issue arose recently in KISS Catalog v. Passport International, a Central District of California (CDCA) opinion rejecting a challenge to the constitutionality of the federal anti-bootlegging statute. This statute imposes liability for unauthorized recording and retransmission of live music performances. The hard question was whether the Constitution’s copyright clause constrains its power to legislate pursuant to other clauses. In other words, does the Article I requirement that Congress pass copyright laws regarding only “writings” (which, everyone agrees, excludes live music performances) preclude it from using its much broader commerce clause power to legislate regarding subject matter that falls outside the limits of the copyright clause?
The CDCA held that it doesn’t, and seemed satisfied with the notion that what Congress can’t do via one constitutional means it’s welcome to do by another, even though this appears to render specific limitations on congressional authority moot in light of the breadth of the commerce clause power. This problem has generated a lot of interesting scholarship, most of which focuses on whether the copyright clause can be interpreted as embodying a binding constitutional norm about the limits of federal information policy. I wonder, though, whether it isn't possible to get some purchase on this issue by importing a couple familiar principles of textual interpretation.
First is the notion that specific provisions modify more general ones. On this view, the commerce clause confers on Congress a broad ambit of authority that can be seen as a background provision against which other clauses operate. To the extent that there are other, more specific provisions limiting congressional authority (e.g., to passing only uniform bankruptcy laws or to enacting copyright laws only for limited times), those provisions prevail.
Second is the canon that disfavors interpretations that read particular clauses out of a document. KISS Catalog’s interpretation would have this effect: if Congress can use the commerce clause as an end-run around the copyright clause, it would render the latter a dead letter. This take has particular leverage if you’re an intentionalist/originalist; it’s very hard to imagine that the Constitution’s framers would have passed in the same section of the same article both a provision that limited Congress’s power and one that rendered that limit irrelevant.
Federal courts have been all over the place on the relationship between the copyright and commerce clauses (though the Supreme Court long ago rejected the possibility of using the commerce clause to subvert the bankruptcy clause's uniformity requirement in Railway Labor Executives Assn v. Gibbons, 455 U.S. 457 (1982)). The Eleventh Circuit has also held that Congress can avoid copyright clause limits using its commerce authority, while the Southern District of New York held just the opposite. And the byzantine procedural history of KISS Catalog provides some suggestion that the Ninth Circuit may be inclined to reverse the district court.
The procedural twist is that prior to its December 2005 opinion, the CDCA had actually decided KISS Catalog the other way, invalidating the anti-bootlegging statute as unconstitutional in a 2004 opinion that the Ninth Circuit summarily affirmed. Then things got strange: the presiding district court judge died while a government motion to reconsider his decision was pending. The case was transferred to a new judge with a different take on the issue, who granted the motion to reconsider, vacated the court’s original decision and upheld the statute. I’m not sure how much can be read into the Ninth Circuit’s summary affirmance of the original district court decision, but so far the plaintiffs (including Gene Klein, aka Gene Simmons) haven’t filed a notice of appeal, so we may never get to see how it comes out.
math + legal doctrine = ?
Last week, BusinessWeek had an interesting cover story on how "math geeks are calling the shots in business." The influence of math in business seems pretty natural to me (e.g, analyzing data and numbers, figuring out purchasing patterns, etc.). But I wondered about the question BusinessWeek's cover asked: Is your industy next to see the power of math?
The skeptic in me says probably not. First, lawyers are not trained in math in law school and usually are not noted for their math abilities. Of course, some lawyers are quite gifted at math, but I'd gather that the majority of lawyers are not (speaking at least from my own experience). Larry Tribe is one of those exceptional lawyers who majored in math and excelled at it in college (see here). By contrast, business students do get a fair dose of stastistics and accounting in B-school. Second, legal doctrine and legal rules may be difficult to conceptualize in terms of numbers and math, since the law often lacks the kind of precision found in math.
This is not to say that the law is devoid of math, or that courts and legislatures shouldn't consider maybe making more use of it. Maybe math can help us formulate or apply legal rules and doctrine more consistently and effectively. Here are a few quick examples of how math figures into legal doctrine already, apart from the most basic inclusion of math in calculating damages -- if you have any more examples, please write in:
1. Torts: comparative negligence (50% fault or 49% fault) asks juries to apportion fault by assigning percentages.
2. Equal protection: quotas are prohibited, but race can be a + factor; "critical mass" implies some number of people.
3. Fair use: 4 statutory factors require some crude weighting; factor 3 asks how much of the copyrighted was taken; and factor 4 asks what effect the use will have on the market for the copyrighted work. It's quite possible that we could make fair use less vacuous by delineating some guidelines about number of copies made and amount taken, such as in the Guidelines for Classroom copying (see here).
4. Punitive damages: Under one of the BMW factors for reviewing the constitutionality of punitive damages, the Court has looked to the ratio between punitives to compensatory damages, indicating in State Farm (here) that going beyond 4:1 ratio might be pressing the outer limits.
Sunday, January 29, 2006
Just a quick note to welcome Ed Lee and Dave Fagundes, two old mates who will be joining us for the next few weeks at Prawfs. Ed teaches law at Ohio State, where he writes on cyberspace and intellectual property. He and I met during the summer of 1999, when he was at Mayer Brown, and I was a summer punk there for half the summer. Dave Fagundes, a Bigelow fellow at the U of Chicago, is a friend from law school who toils at the intersection of public law and intellectual property. He has a very interesting piece forthcoming in the Northwestern L. Rev. on the scope of the First Amendment's protection of state actors' speech. Please welcome Ed and Dave to the mix!
"Reasonable" abortion restrictions
Professor Dawn Johnson -- an expert on, among other things, the law relating to abortion -- published a few days ago on Slate an essay called "The Outer Shell: The Hollowing Out of Roe." In Johnson's view, "[t]he Senate's focus on the formal status of Roe, while understandable, masks the extent to which the court has already gutted the right to choose and what the confirmation of Alito most immediately would mean for reproductive liberty." Commenting on the "literally hundreds of abortion restrictions" that, it is reported, state governments have enacted in recent years, she warns:
Abortion restrictions often sound superficially reasonable and appealing: They include such benign-sounding requirements as waiting periods, "informed consent," special physical specifications for buildings in which abortions are performed, and special hospital admitting privileges for the physicians who perform them. They are designed to sound reasonable while also limiting the number of abortions performed, ultimately as completely as would a criminal ban.
This article, "Women Demand Tougher Laws to Curb Abortions," from the Observer (UK), is an interesting companion piece to Professor Johnson's essay:
A majority of women in Britain want the abortion laws to be tightened to make it harder, or impossible, for them to terminate a pregnancy.
Evidence of a widespread public demand for the government to further restrict women's right to have an abortion is revealed in a remarkable Observer opinion poll. The findings have reignited the highly-charged debate on abortion, and increased the pressure on Tony Blair to review the current time limits.
The survey by MORI shows that 47 per cent of women believe the legal limit for an abortion should be cut from its present 24 weeks, and another 10 per cent want the practice outlawed altogether. Among the population overall, reducing the upper limit was the preferred option backed by the largest proportion of respondents, 42 per cent, made up of a 36-47 per cent split among men and women.
Eminent domain and churches
The point came up often in the post-Kelo commentary that local governments were likely to regard churches as attractive candidates for taking-and-redevelopment. This recent New York Times story, "Humble Church is at the Center of Debate on Eminent Domain," suggests that the commentariat was on to something:
With bulldozers churning up the earth at the front door, the small Centennial Baptist Church in this struggling industrial hub west of Tulsa seems about to fall to the wrecker.
But the construction is just roadwork, for now. And that is all it will ever be if the congregation has its way.
"The Lord didn't send me here to build a minimall," said the longtime pastor, the Rev. Roosevelt Gildon.
In what a local newspaper called "a battle between God Almighty and the almighty dollar," Sand Springs is moving ahead with a redevelopment plan to clear the church and other occupants from the rundown district near downtown to make way for superstores like the Home Depot.
Over at Professor Balkin's blog, Ian Ayres and Jennifer Gerarda Brown have a post up called "Judge Alito, the Boy Scouts, and Associational Fraud." They comment on the questions asked, and answers given, during Judge Alito's confirmation hearings concerning "Concerned Alumni of Princeton" and articles in the CAP's magazine that "expressed sexist and racist views of Princeton’s changing demographics." And, they suggest that just as Judge Alito -- "like the Inspector in Casablanca" -- was "shocked to learn of CAP's . . . racist and sexist policies," many were "shocked to learn" -- after the Court's decision in Boy Scouts of America v. Dale -- that "their beloved Boy Scouts had taken an anti-gay policy."
They said, as Judge Alito says now, “that certainly was not any part of my thinking in whatever I did in relation to this group.” They regretted the time, money, and talent they had devoted to the Boy Scouts over the years. Steven Spielberg resigned from the national advisory board of Boy Scouts of America.
This sad, “if I’d only known” reaction from both Alito and former Boy Scouts suggests that organization members can be victims of a kind of associational fraud when they are induced to join a group without being fully informed of the group’s discriminatory policies.
Having identified this phenomenon -- i.e., "associational fraud" -- Ayres and Brown continue:
How could we prevent such associational fraud? We can all start by demanding to know more about the policies of organizations before we join them.
But the law can help. Government has a constitutional interest in promoting informed association. A state like New Jersey might pass an “Informed Association” statute that would require organizations to disclose discriminatory policies to prospective members before they are allowed to join. The statute might even require that members sign a statement acknowledging that they have been fully informed of the organization’s policies and still choose to join.
These written acknowledgements would not need to be made public. An organization with discriminatory policies might only be asked to retain evidence that its prospective members had signed the required acknowledgements.
Many people couldn’t bring themselves to sign a statement acknowledging that they were choosing to associate with a discriminatory group.
But at least part of this predictable decline in membership should be seen as an enhancement in association freedom. The freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining.
Put another way, the law must give meaning to associational silence. If a group remains silent, what does this silence signal: that the group implicitly represents that it respects the state’s non-discrimination norm, that the group might not, or that group does not respect the norm? Any potential legal inference burdens some members’ associational rights, in that it forces either the members or the organization to speak to assure that their associational preferences are met.
Clearly, government cannot and should not force associations to clarify every position they hold. But anti-discrimination laws of general application (like New Jersey’s Human Rights Statute) are fundamental state policies. It’s reasonable for a state to insist that organizations taking contrary positions disclose their true colors to potential members before people join up.
The Ayres / Brown proposal is intriguing and provocative, but is it really one that we'd want to endorse?
For starters, I'm not sure about the premise that "[g]overnment has a constitutional interest in promoting informed association," if "constitutional interest" means "an interest that can justify a regulation, like the ones proposed, that burdens individuals' expressive-association rights or the rights of expressive associations." I suppose it would be entirely legitimate to apply generally applicable anti-fraud laws to "expressive associations," as to everyone else, but I'm not so sure about the idea that government may, in effect, compel speech by associations -- that is, require them to state their positions on matters thought by the government to implicate "fundamental state policies" in order to make sure individuals' decisions-to-associate-expressively are, in the government's view, "fully informed."
Now, it seems right to say that "[t]he freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining." The trick, I guess, is distinguishing "duping" from "not stating explicitly or anticipating accurately every position that the association will take, going forward, particularly in response to coercive regulation."
As for the writers' final claim -- i.e., that "[i]t’s reasonable for a state to insist that organizations taking contrary positions [to fundamental state policies] disclose their true colors to potential members before people join up": It is not (yet) clear to me that an association should be required to "disclose [its] true colors", if this means "spell out explicitly, with the clarity demanded by the government, every position they do profess, or will profess to hold in future litigation."
I suppose a lot of this comes down to what we think the "freedom of association" is and is for. My own view, which might account for some of my hesitation about the Ayres / Brown proposal, is one that tends to emphasize the "structural" role of associations, rather than their function as vehicles for individuals' expression. In any event, I'd appreciate others' reactions to, and thoughts about, their post.
Saturday, January 28, 2006
If all it takes is a theory, what is so hard about coming up with one?
James E. Ryan (UVA) has posted "Does It Take a Theory?" to SSRN, a review essay about Sunstein's Radicals in Robes and Breyer's Active Liberty. At its core, Ryan's essay criticizes Sunstein and Breyer for failing to come up with a satisfactory alternative to originalism. It helpfully adumbrates all the holes each author has been able to find in originalism; but Ryan remains frustrated that the authors do not argue for a coherent alternative that could bury originalism once and for all. Supposing with Scalia that it takes a theory to beat a theory, Ryan charges that originalism cannot be defeated until its opponents do more than poke holes. Originalism must be replaced with something else and the left has failed to garner consensus around a real vision of constitutional interpretation that can be used to decide cases based on constitutional text.
I suppose I find it moderately perplexing that this should be such a difficult task. I fully understand the charm of originalism, its parsimony, and its convenience. And I tend to agree that the consequentialist arguments against it (that it would produce a society most of us wouldn't want to inhabit) are not especially strong.
Yet, it strikes me that one has to engage in a substantial fantasy of faux social contract theory -- and, in particular, see the document as "ours" because it was agreed to by prior generations of Americans -- to be ultimately taken by the theory of originalism. Once one is divested of that illusion, many potential theories of constitutional interpretation emerge, some of which can claim precisely the democratic legitimacy that originalism too often claims for itself too quickly.
While a blog post is not a place to settle THE question of constitutional interpretation, I only hope to convey here that the question about constitutional interpretation needs to be distilled into a much more fundamental question of political theory: what accounts for the bindingness of the document? To be sure, if your answer is that over 200 years ago some people you aren't related to agreed to adopt a document illegally (for the Article of Confederation must surely have bound those framers), then originalism may be the best you can do. But if you have a more subtle argument about what kind of consent/assent the governed continue to give to their rulers and their governing documents, you might be able to construct a theory of constitutional interpretation that gives the text its due -- but where certain contemporary public meanings can trump the public meanings of the ratifiers. Admittedly, this sort of theory gives judges the capacity to use their "will" to cloud their "judgment" -- but the potential for abuse is always there, even in originalism. The intertemporal difficulty is at least as disconcerting as the countermajoritarian one.
Friday, January 27, 2006
Pixar and the Preservation of Culture
Vic Fleischer posts over at Conglomerate about an unusual aspect of the Disney buyout of Pixar: a statement about management policies for the preservation of Pixar's culture. The statement is up on EDGAR here.
So how does a company preserve its culture post-merger? According to the statement, it institutes policies that:
- provide for the continuation of upper management in relatively secure positions,
- create an oversight committee,
- retain employment compensation policies,
- keep the Pixar brand viable, and
- keep the same physical location.
I share Vic's interest in corporate culture and its preservation post-merger. Corporate culture can be incredibly significant to the success of a merger, but it is very difficult to quantify or measure. The Paramount v. Time case is perhaps the most famous corporate law decision to turn on corporate culture. As Chancellor Allen noted in that case, "The mission of [Time Inc.] is not seen by those involved with it as wholly economic, nor the continued existence of its distinctive identity as a matter of indifference." Of course, corporate culture need not be set in opposition to economics; it may be all about economics. In my paper on the AOL Time Warner merger, I discuss the late-1990s culture at AOL, which effectively focused employees on the share price as the measure of corporate success.
The Paramount v. Time case is often criticized as allowing executives to escape shareholder scrutiny by empty references to a "culture" that is nothing more than the continued employment of those executives. The Disney-Pixar policy statement does include the protection of Pixar management as part of its efforts to preserve the culture. But it goes beyond that to include physical space, branding, and the treatment of lower level employees. And while the policy statement is not binding on Disney management, it will create social expectations about those policies that is not without substance. As the two companies begin their new life together, it will be interesting to follow whether these policies have their desired effect on the culture of both institutions.
Bartlet for (Vice) President
I'll admit it -- I'm the worst kind of West Wing junkie. I almost bought a "Jed Bartlet is My President" bumpersticker (almost), and have long named my fantasy baseball team "Bartlet for America." I love that Josh is a Mets fan, that Toby is a Yankees fan, that Akhil Amar was once used as a throwaway line in a debate about North Carolina's copy of the Bill of Rights, and so much more. So, it was with a heavy heart that I read earlier this week of NBC's decision to cancel the show at the end of this, its seventh, season.
Rumors abound about how the show will bring things to a close, especially given the real-life loss of John Spencer, whose character, Leo McGarry, was the Democratic Vice Presidential nominee. (Prompting the show to ask some complicated legal questions about what happens in that situation.) The rumor getting the most currency right now is that Rob Lowe (Sam Seaborn) will come back for the final few episodes as the new VP nominee, prompting the even more longstanding question: Did Sam actually win the California 47th, way back when?
But before I totally digress, I'll get to my real point: If we want a fascinating ending to the show that's also a fun con law question, why not have President Bartlet stick around, and run on the ticket as Vice President? Put another way, to re-ask, for the 400th time, one of those good old quirky constitutional law questions, could a two-term President run for Vice President? If so, why not Jed? [Besides the whole MS thing, that is.]
In a great Findlaw column from August 2000, Michael Dorf persuasively explains why Bill Clinton could have run on Al Gore's ticket, and conducts all of the constitutional analysis that I would have conducted here. In short, Dorf's point is that (1) the Twenty-Second Amendment bars only a third _election_ of a President, along with a President serving more than 10 years in office; and (2) the Twelfth Amendment's proviso that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States" is immaterial, because a person is not "constitutionally ineliglble to the office of President" by virtue of the Twenty-Fifth Amendment (he is just ineligible to be elected such).
So, as the West Wing's writers and editors figure out whom to replace Leo with, I wouldn't count out Bartlet himself, in addition to the Sam-for-VP rumors.
Meanwhile, and while I'm on topic, it would also be nice to see at least _some_ closure to the Donna-Josh situation (e.g., forcing Donna to answer the question Amy asked her right before Zoey was kidnapped); to find out whether the peacekeepers in Gaza actually accomplished something; to hear about the exploits of Chief Justice Lang one more time; to find out what the hell Kate Harper did in her former life; to meet Josh's mom, and, for the name of pete, to see Charlie and Zoey get together once and for all.
[Other thoughts for important points of closure on the way out?]
Not that I take this seriously, or anything...
Thursday, January 26, 2006
"Catholic Social Thought" and Law at Yale
Eduardo Penalver, my fellow blogger at "Mirror of Justice," is teaching a course this term at Yale Law School on "Catholic Social Thought and the Law." (Several law schools, including Notre Dame's, offer this course, and Villanova's law school just started a new journal on the topic.) Here is a post by Eduardo, describing the first session. He writes:
On Monday, we had our first CST class at Yale. As I suspected, the students were almost (but not quite) exclusively active Catholics, including one ordained Jesuit priest (!). (I had joked with my wife about one of the dangers of teaching at Yale being the risk of having students with doctorates in the subject you're trying to teach. I had noticed in one of the Dean's letters that one of the second year students was a Jesuit, and I joked to my wife that he would probably end up in may class. Sure enough...) We spent a bit of time at the beginning of class talking about why it might make sense to study CST in a secular law school, as an intellectual (as opposed to devotional) endeavor. One thing that came up was the dominance of law and economics analysis in the first year curriculum, and the perception by these Catholic students that the methodology of law and economics was both unsatisfying on some level and fundamentally inconsistent with their own moral commitments. I think the hope was that studying CST might give them some alternative tools of legal analysis. . . .
I'd welcome hearing others' reactions to this class, and thoughts about what a class like this could add, particularly at a non-religiosly-affiliated school.
Less Is More (Just Not Today...)
There's a wonderful Ninth Circuit opinion out today about the time period for appealing the grant or denial of a remand order in a suit where federal jurisdiction is based on the Class Action Fairness Act of 2005. [I promise -- it's actually interesting.]
Here's the problem: Section 5 of CAFA, which creates new 28 U.S.C. [sec.] 1453, provides in pertinent part (subsection (c)(1)) as follows:
Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.
In short, the point of this provision is to allow immediate appeals of orders granting or denying motions to remand, the former of which aren't otherwise usually appealable under [sec.] 1447(d), and the latter of which aren't usually immediately appealable.
But notice the odd language at the end -- "if application is made to the court of appeals not less than 7 days after entry of the order." In other words, the plain language of the statute imposes a waiting period before one can appeal...
Well, today, the Ninth Circuit became the second circuit (joining the Tenth) to interpret the statute to mean exactly the opposite of what it says -- to mean that the application must be made no more than 7 days after the entry of the order (granting or denying remand).
What's particularly unfortunate, though, is that such a holding might therefore bar an appeal that was filed in accordance with the plain language of the statute... what to do, if you're the court?
Answer: Wing it.
Or, in legal speak:
We have construed the statute to require a procedural framework that is not readily apparent from the statutory text or its legislative history, and have changed the statutory deadline for seeking to appeal to the opposite of what the plain language of the statute says. Under our interpretation, plaintiffs’ timely notice of appeal is ineffectual and their subsequent petition for permission to appeal was filed too late. To avoid the serious unfairness and potential due process violation that applying our holdings to this case might raise, we exercise our authority under FRAP 2 to suspend for good cause the requirements of FRAP 5(a)(1), (b)(1) and (c) in this case, and construe plaintiffs’ timely notice of appeal and untimely petition for permission to appeal as together constituting one timely and proper petition for permission to appeal.
So, in the end, justice is preserved, and a statute is read to "clearly" mean exactly the opposite of what it says. I love my job.
One footnote: In re-reading CAFA, I re-encountered new [sec.] 1453(c)(2), which imposes a time limit on appellate review:
If the court of appeals accepts an appeal under paragraph (1), the court shall complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under paragraph (3).
Hmm... So I guess this is the more interesting question for federal courts scholars: Is there any argument that imposing a time limit on the amount of time the court of appeals may use to review a case unnecessarily (and perhaps unconstitutionally) infringes upon the judicial power, in violation of the odd, strange, yet extant rule of United States v. Klein?
Probably not, but I wonder where the line is... if the statute only allowed 24 hours for review?
Read Ruchira Paul's book review of an account of the Gypsy people here.
Syriana, Iran, and Torture
It is morning in Tehran. An all-night party draws to a close. A young woman slips a pant suit, shades, and scarf over a short dress, exchanges her stilettos for flats, and walks out the door. The opening scene of Syriana silently touches on several deep tensions within Iran's complex social order. The first tension is between the rulers and the ruled. Commentators often conflate the overthrow of the Shah and the subsequent rise of religious factions to political authority, referring to both as Iran's "Islamic Revolution." The Shah was deposed by mass mobilization led by a number of groups, secular and sectarian, liberal and socialist. The religious faction filled the resulting power vacuum largely because it was the most efficient in providing local governance in rural areas and the most brutal in silencing political opposition.
Iran has never enjoyed a consensus regarding how to integrate Islam into a constitutional regime, in part because of a second tension, between the asceticism of Arab tribal practices thought integral to the religion despite its universalistic orientation and the celebratory dynamism of Persian culture. My Persian friends describe a tacit social compact, according to which the populace acquiesces to strict regulation of public behavior in exchange for relative freedom and privacy behind closed doors. The resolution of the second tension gives rise to a third, between a public sphere dominated by conservative norms and a private sphere in which personal behavior and intellectual exchange largely proceed as they always have. The film's opening scene identifies each of these tensions without a word of dialogue, which I consider a pretty neat trick.
Syriana also provides one of a growing number of representations of torture in film and television, in this case the disfigurement of George Clooney's character by a former CIA operative. On 24, protagonist Jack Bauer has shot and electrocuted suspects, broken their fingers, even faked the murder of one of their children to elicit information. During the first season of Lost, Jack and Sayid took a page out of Alan Dershowitz's playbook, inserting a (sterile?) reed under Sawyer's fingernail to learn the location of Shannon's asthma medication. This March, Evey Hammond (Natalie Portman) will be subjected to cruel, inhuman, and degrading treatment in V for Vendetta, originally scheduled for release on Guy Falk's Day ("Remember, remember, the Fifth of November") but delayed following the London bombings. There's been some discussion about whether these representations inform or desensitize, but the focus on 24, though understandable (given the popularity of the show, the frequency with which it portrays torture, and the narrative context of counter-terrorism operations), is slightly misleading because, on that show, those subjected to torture typically possess and divulge the desired information. The other examples involve the torture of characters who know nothing (Clooney, Sawyer) or whose resistance to torture is meant to be ennobling (Evey). It is also striking how many of these fictional torture victims are white, perhaps encouraging audience identification. I don’t have a settled view on whether the depiction of torture in fictional media is for the better or for the worse, so I’ll just open this topic up for discussion.
I will wrap up my film-inspired postings shortly with a longer discussion of Munich and the concept of revenge.
More Fun With Immigration Judges
Yesterday, at How Appealing, Howard Bashman linked to this post by Justin Scheck at CalLaw.com's "Legal Pad," siding with Judge Kozinski in this Ninth Circuit immigration decision handed down on Monday, in which he (Judge Kozinski) castigates the majority (Reinhardt, Berzon) for showing "such disdain and disrespect" for Immigration Judges (IJs), concluding that "a circuit judge shouldn't pretend to be an immigration judge."
I have several biases here. First, my former boss was the other (non-writing) judge on the panel, so I'm naturally inclined to defend this majority. Second, my feelings about the current status of immigration law and the absurd rate at which the agency gets it wrong are well-documented, particularly on this Blawg, and so a natural skepticism of the administrative process in all immigration cases seems hard, in my view, to avoid. Third, I have always been a big fan of the reigning Male Judicial Superhottie, but at least partly because I think it has always been one of Judge Kozinski's (more admirable) characteristics that he's not afraid to call it as he sees it, even when that means angrily (and publicly) criticizing his own colleagues (e.g., this opinion from September on judicial misconduct). Why that translates into reticence when his colleagues offer similar treatment vis-a-vis IJs isn't entirely obvious to me.
In any event, however you come down on the merits of this particular case (which, by the way, is difficult to evaluate without the administrative record), Judge Kozinski's core objection is, I think, to be found on page 863 of the slip op. (page 32 of the PDF). He writes: "None of this bears any resemblance to administrative law, and none of it finds support in the statutes Congress has given us to apply, or the rules the Supreme Court has instructed us to follow." The problem, though, is that DHS's own internal process long-since ceased to "bear any resemblance to administrative law." That is, Judge Kozinski's objection, if I read it correctly, is that the Ninth Circuit has turned itself into a quasi-immigration court of first instance. I actually don't disagree. But given the way things are going on the administrative side, I'm not sure I (or several of the other circuits, for that matter) would agree that that's such a bad thing.
Law teaching and exploding offers
Jennifer Mnookin over at LawCulture has a great post concerning exploding offers on the teaching market. She writes:
I get the feeling that exploding offers just might be increasing, and sometimes with deadlines that seem ever-earlier.
Our readership includes lots of people on both sides of the hiring process. If any of you have any experiences to share, please drop a comment. Comments may be anonymous, but please identify the "tier" of the school or schools you are talking about.
[See also Dan Filler's post at Co-Op on the subject, taking a different view.]
Wednesday, January 25, 2006
The NSA wiretapping controversy and statutory interpretation guidelines
I've been slowly working my way through the DOJ's 42-page white paper justifying the constitutionality and legality of the NSA's warrantless electronic surveillance of Americans. It's certainly written forcefully, in the sense of marshaling cases and history to make its primary arguments that (1) the President's Commander-in-Chief power (Article II) provides an independent basis for supporting the NSA's activities; (2) even if that didn't, Congress' Authorization for Use of Military Force adequately supports the NSA's activities because warrantless surveillance of the enemey is part and parcel with fighting wars; (3) FISA, read properly, doesn't forbid these activities; (4) but even if it did, the AUMF supersedes FISA; and (5) in case you have any doubt that that's the right way to read the AUMF and FISA, you should because to do otherwise would invite a constitutional conflict between FISA and Article II.
Much has been said about points (1)-(4) (see, e.g., this post by Marty Lederman, linking a letter by law professors and others that anticipates and rebuts the points; but see this post by Tom Smith, arguing that the DOJ argues the Article II point persuasively). What I found especially interesting about the DOJ letter is the heavy reliance on point 5.
It's true that the Court has held:
[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is "fairly possible," see Crowell v. Benson, 285 U. S. 22, 62 (1932), we are obligated to construe the statute to avoid such problems. See Ashwander v. TVA, 297 U. S. 288, 341, 345-348 (1936) (Brandeis, J., concurring); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).
INS v. St. Cyr (2001). The DOJ would thus appear on solid ground in arguing that the AUMF and FISA should be read in a way to avoid posing the constitutional problem.
However, this canon of statutory interpretation assumes an ability on the part of Congress to undo what it perceives to be an erroneous interpretation by the Court. For example, in McNally v. United States (1987), the Court interpreted the federal mail fraud statute so as to preclude public corruption prosecutions, which had long been predicated on the charge that a public official had deprived the public of its right to his/her "honest services." Congress responded in 1988 by enacting 18 U.S.C. s 1346, which reads: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." Because the Court is engaging in statutory interpretation, not judicial review, its decision can be overriden by another Congressional statute.
Thus, if Congress wants to force the constitutional question avoided by the Court when the latter relies on this canon of statutory construction, it can do so by reenacting or amending the statute in question. Notably, the same alignment of forces that enacted the original law is all that is necessary to reenact or amend -- that is, a simple majority of each House, plus the President.
Notice, however, that this is not true in this particular instance of interpreting the AUMF and FISA. If the constitutional issue is the scope of Article II and we interpret the AUMF and FISA so to avoid the constitutional question, that has the effect of maximizing the Executive Branch's power at the expense of Congress, which had, after all, sought to limit the President's power through FISA.
But wait, can't Congress reenact FISA and/or the AUMF to make clear whether it intended to permit the NSA's warrantless surveillance? It could, but the catch is that if it made clear that it did NOT intend to permit the surveillance, we would expect the President to veto that new bill. Congress could override the veto, but it would take 2/3 of each House, not a simple majority. Thus, even if a simple majority of each House had not in fact intended the AUMF to supersede FISA, that simple majority would be unable to effectuate its intent, because it would now take a supermajority to override a veto.
All this goes to say that there is a very good reason not to apply the usual statutory interpretation rule in instances where the potential constitutional conflict involves Article II, because the President's veto power unbalances the assumption underlying the rule of construction. Thus, even though, like co-guest blawger Prof. Ku, I'm still on the fence about whether the President *could* ultimately be given the power to have the NSA engage in warrantless surveillance, I think there is a very good reason to defer that question until we are certain that Congress in fact intended the President to have such power, notwithstanding the usual rule of statutory interpretation.
Kenji Yoshino's Response to My Posts
Kenji Yoshino was kind enough to respond by email to my posts on Covering, and he's given me permission to blog his email. (I apologize for the weird formatting.)
To begin with your post on same-sex marriage, we are on the same page, namely page 91 of my book:
"Covering seems a more complex form of assimilation than conversion or
passing. At the most basic level, it raises thornier issues of
classification. I'm sometimes asked, for instance, whether I consider same-sex
marriage to be an act of covering or flaunting. I think it is both. Along the
axis of affilation, marriage is an act of covering, as marriage has historically
been associated with straight culture. This is why queers like Warner revile it
and normals like Sullivan endorse it as an act of assimilation. Along the axes
of appearance, activism, or association, however, marriage is an act of
flaunting. This is why right-wing moralists object to it as a sign that gays
are getting too strident in our claims for equality."
(As you've probably guessed, the book distinguishes among four different axes of
covering--appearance, affiliation, activism, and association.) I couldn't get
this point about how the axes cut in different directions in the case of
marriage into the Times piece, so I found your analysis prescient.
With respect to your point about the importance of conformity, let me be clear
that I am not against all forms of assimilation or covering. Page xi:
"I recognize the value of assimilation, which is often necessary to
fluid social interaction, to peaceful coexistence, and even to the dialogue
through which difference is valued. For that reason, this is no simple screed
against conformity. What I urge here is that we approach the renaissance of
assimilation in this country critically. We must be willing to see the dark
side of assimiation, and specifically of covering, which is the most
widespread form of assimilation required of us today."
The tricky thing, of course, is to balance the interest we have in assimilation
with the interest we have in disestablishing discrimination. For too long, I
think folks have papered over how those two interests are often in tension.
Assimilation has been viewed to be a simple escape from discrimination, when it
is often in fact precisely the effect of discrimination. So when racial
minorities are instructed in grooming manuals to "act white," I think many
Americans would view that as a claim that white culture is still more valued
than other ethnic cultures. To the extent that this is true, norms of
assimilation and norms of antidiscrimination will be in tension with each
other, and we will have to choose between them. Reasonable people can disagree
in many contexts about which to choose, but my tendency is to choose the latter.
In terms of remedies, I'm with the person who responded to your post by
observing that a rights-based approach can protect difference by
finding common ground at a higher level of generality. To take a simple
example, a right against discrimination on the basis of religion would protect
individuals of different religions. I don't think this universal rights
approach is a panacea, but I do think it is an avenue our courts and
legislatures should explore further. In fact, as our country gets more
diverse, I think we will be driven toward this universal liberty approach
because the group-based equality approach lends itself to the very
balkanization you describe. Last quote: "Ironicially, it may be the explosion
of diversity in this country that will finally make us realize what we have in
common. Multiculturalism has forced us to vary and vary the human being in the
imagination until we discover what is invariable about her." p. 192.
More or less we are on the same page, but I am less confident than he is that as we grow more different, our similarities will become more important. My experience suggests otherwise, but I hope I am wrong.
Are Big Firm Lawyers Engaged in Market Deception?
Last year, there were some accusations that law schools are engaged in various modes of accounting flimflammery in order to elevate their rankings in the US News. (For purposes of this post, I'm remaining agnostic on the merits of that controversy.) When I was in law school and while I was practicing, I often heard some lawyers lament the same pernicious influence on law firm culture posed by the American Lawyer 100 survey of the economic health of big firms.
As a result of the AmLaw100, it is said, firms have become more
ruthless bottom-line oriented. Thus, most firms except those at the very top have a desire to increase the appearance (and actuality) of profits per partner to enhance their reputations with clients and each other; those at the very top, by contrast, may have an incentive to downplay their profits per partner so that their clients don't think they're being fleeced with particular vigor.
I only have one source for the question in the title, though I think it's a reliable one, but I thought I'd see if the question's proposition could be advanced by lawyers or prawfs who formerly lawyered, and perhaps our faithful readers who are journalists might wish to delve into this further. Apparently firms bring their audited financial statements to Citibank and they can find out how they are doing vis-a-vis certain other firms. If Citibank is accessing the major firms' statements, then it is in a position to check the statements found in AmLaw 100, and apparently it has done so. What I also heard is that of the 100 firms in the AmLaw100, about 70 are misrepresenting their stats. There are purportedly documents out there to this effect. If true, it's time for, um, truth on the market.
Tuesday, January 24, 2006
The Constitution as Treaty
I know I should respond to Ethan's very interesting post in the comment section, but let me exercise my guest's prerogative to weigh in here. I just have a few thoughts:
(1) There isn't much originalist support for seeing the Constitution as a treaty with the "international order", but there is some originalist support for seeing the Constitution as a "treaty" between the states of the Union. The Articles of Confederation were certainly viewed by many of the states as a "treaty". That was part of the problem with the Articles because the states sometimes asserted the "last in time" rule as the basis for overriding the treaties as domestic state law.
If the Constitution is a "treaty" between the states, formal international law suggests it should be interpreted consistent with international law. Which is a nice formal originalist justification for using foreign legal interpretations of international law to interpret the Constitution.
I have to say I don't buy this "Constitution-as-treaty-between-states" theory. It doesn't seem to fit terribly well with all the political theorizing about higher law going on during the constitutional period. But it is worth thinking about.
(2) On a more abstract level, which is where Ethan's post seems to operate, I think it is a very useful way of framing the question. I can't tell from his post, though, whether his argument is limited to using "international law" as a mode of constitutional interpretation or "foreign law" as well. What is the difference?
Well, it is one thing to argue that the Constitution is some sort of "Treaty-With-The-World" and therefore we should consider foreign interpretations of international law when interpreting this treaty. But what about foreign interpretations of their own domestic law? Doesn't the relevance of that kind of law have to draw on a different theory? Or is the "treaty-with-the-world" theory broad enough to encompass, say, South Africa's interpretation of South African law?
(3) My own view, actually, prefers the use of foreign law over international law, because I believe the interpretation of international law should be and is controlled largely by Congress and the President. (I have a formal article on this question here, if anyone is interested). Foreign law seems to me less of a problem for constitutional interpretation, although I haven't yet heard a convincing theory of why it is justified. Ethan's post may be a start toward that theory.
Genres of elite property scholarship
One of the fields I write and teach in is Property, which -- outside of once-in-a-decade moments like Kelo (the last was probably Lucas v. South Carolina Coastal Council in 1992)-- isn't a ripped-from-the-headlines subject. As I've been weighing potential article topics during my pre-tenure period, I've noticed that, generally, two types of property articles place well: those on takings and those on what I'll call, for want of a better term, property theory. As with all legal scholarship (and scholarship generally), each is generic in a formal sense, with recurring themes and cadences. The takings piece gets attention first and foremost because it's Constitutional Law, and also because it sorts difficult, contested doctrine in new ways (hopefully, if that's even possible), and proposes some descriptive or prescriptive twist. The theory piece gets attention first and foremost because it's Theoretical and works its way down from some identifiable theoretical apparatus, and/ or because it can pretty neatly work its way out from an interesting observation (the anti-commons, or givings, for example) that gets applied more broadly.
On good days, I enjoy both genres immensely. Today I've been re-reading Tom Merrill and Henry Smith's efforts, across a series of articles, to re-center property theory around a more classical and formal "in rem" vision of property, and while I haven't agreed with them entirely, I find their discussion entirely useful in thinking through what is lost, as a matter of theory and culture, when legal realists and legal economists reduce property relations to a series of divisible rights. And I've been reading this material (and plenty of others) in the midst of trying to squeeze out another damned takings piece -- which means I've been reading the vast and often (though certainly not always) fascinating literature on the subject and of course the old incoherent, all-over-the-map Supreme Court decisions of the past thirty odd years. Big fun. Seriously.
Real property law isn't particularly sexy. It's mostly state and local law -- which means that it runs against the relentless focus on federal statutory and constitutional law that elite law schools and national media prefer. As common law, it changes slowly (with the constitutional common law of takings being the great exception), and the legal issues created by the relative newcomer of zoning/ land use planning have remained fairly stable over time, even as new planning tools have been developed. Hence, I think, the law review market for two genres that represent, on the one hand, the federal and foundational (constitutional takings), and on the other, the universally descriptive (theory).
There's a third genre that I think is trickier, because it appears to turn the other two on their head: the empirical case study of a property or regulatory regime, whether of the present or past. It is naturally local and anecdotal, and any claims for the typicality or reproducibility of its results must be tentative. And yet, when a case study provides significant insight into an issue where previous theorists and commentators have demonstrated the wrong intuition -- and I'm thinking here of Robert Ellickson's study of Shasta County's fence laws and, more recently, of Nicole Garnett's new piece on the tendency towards above-market compensation for condemnees in eminent domain actions -- it can play a more important role in extending our understanding of property law in action than another neat theory or takings piece. The case study is un-sexy, localized, social (rather than bookish), and takes a long time to develop. It's kind of like Property itself.
Constitution as Contract: Ramifications for the Use of Foreign Law
When I published my short TNR piece on the Alito hearings, many conservatives wrote me to quibble with one of my claims in particular. I had argued that some might have been surprised to hear Alito embrace the Supreme Court's consideration of foreign legal interpretations in construing treaties (even though he embraced the canonical conservative commitment of avoiding consideration of foreign legal interpretations when construing the domestic constitution). They argued: "Scalia thinks the same thing so of course you are wrong that this would surprise anyone. Surely if Scalia thinks it, all conservatives must be okay with it." Admittedly, some had more nuanced views -- but of course those weren't the people who might have been surprised. I may have been wrong that anyone was surprised, but I suspect there are some conservative congresspeople who don't quite understand that the best arguments against the use of foreign legal interpretations work especially well in the constitutional context but less well in the treaty context.
One of the arguments for why it is probative to consider foreign legal interpretations in the treaty context is that a treaty is similar to a contract between nations. In interpreting contracts, trying to assess the views and interpretations of all parties to the agreement can help uncover the an ambiguous text's meaning.
I wonder whether this basic insight that provides justification for the consideration of foreign treaty interpretations doesn't also provide some basis to justify considering foreign interpretations even in the constitutional context.
The argument would go something like this. Our domestic constitution is not merely an internal social contract. Indeed, it is relatively hard to see it as such, since few of us has offered anything like overt consent or assent to its provisions. Admittedly, our officers (and our newly-minted citizens) take an oath to uphold it and defend it -- but that just begs the question of what it means to uphold it and defend it. No one denies that there are dead letters in the document -- and we certainly don't live by the letter of the contract.
Even granting the bindingness of the document on ourselves and our officers, it would be naive for us not to recognize our constitution's role in the international order. The international order is predicated on the recognition of states -- and each state's recognition in the international system is in some sense dependant on its constitutional structure and political way of life. In short, our constitution does not just bind us internally, but is a public statement to the nations of the world about how we intend to live. Our constitution is not a private contract but a public charter -- a statement of incorporation that engages us in the international order. Accordingly, that document is answerable to the world in a substantive way.
This abstract argument may not do much. It is still subject to all kinds of objections to the use of foreign legal interpretations. One especially damning one is that it is too easy to cherry-pick certain jurisdictions we like and use them to get to the results we want. But, all the same, seeing the constitution as not merely a contract with ourselves but a contract with the international order is an interesting and potentially useful argument against those conservatives who are so sanguine about using foreign legal interpretations in the treaty context. Indeed, there is strong evidence that the Framers were especially concerned in drafting their document with world opinion: Article III in particular was included at least in part to let the nations of the world know that there would be a national judicial authority capable of enforcing the law and forcing the United States as a party to deal fairly with other nations in the world community.
I'm interested in reactions and thoughts as I develop this argument into a more fleshed out idea.
Covering and Same-Sex Marriage
Covering is the muting or toning down of stigmatized identities. Kenji Yoshino seems to believe that same-sex marriage is the refusal to cover. In his New York Times Magazine article, he points to a case in which a young woman lawyer's job offer was rescinded after the employer discovered that she was planning to marry another woman in a private commitment ceremony; she might not have received this treatment for "just being a lesbian"; but thrusting her "lifestyle" onto the public in this way was just too much for the employer. In other words, the employer wanted her to cover by keeping a low profile with respect to her sexuality.
Gays routinely cover along all four axes: appearance ("acting straight"); affiliation (not making reference to gay culture); activism (avoiding the charge of being militant or strident about gay rights); and association (eschewing public displays of same-sex affection).
And surely he is right. After all, same-sex marriage and marriage advocacy are public statements, behaviors, and displays that accentuate the stigmatized "gay identity."
But I think it is more complex. In a strong sense, same-sex marriage is the very definition of covering. Traditionally, "gay culture" did not revolve around marriage in any way. And of course, that's no surprise: marriage and even the weaker substitutes were not available to gays and lesbians, and homosexuals were wholly rejected from society; why would their culture and identities revolve around traditional marriage and family?
As told by Jonathan Rauch and Andrew Sullivan, same-sex marriage advocacy is a conservative move. If same-sex marriage advocates are successful, gay couples will look more like straight couples, not less; they will have mainstreamed themselves. And when it comes down to it, a married gay couple living next door is likely to be less jarring for many straights than is what many straights envision when they think about "gay culture," which brings to mind a more open sexuality.
In fact, it is for this reason that some gays and lesbians reject same-sex marriage. They view it as, well, covering: muting their traits, preferences, priorities, and culture in order to "fit in" with mainstream culture, which prizes heteronormative marriage relationships.
I said earlier in the week that conformity can be a good thing--a way to allow us to live in harmony, to share experiences and a language. It is precisely for this reason that I support same-sex marriage. I think that marriage is a good thing; better for society and for the individual than the alternatives (though of course not better for everyone in every circumstance); allowing gays and lesbians to marry and encouraging them to do so is encouraging them to look and act more like me. And asking someone to conform to the dominant heteronormative culture is asking him to cover. No?
Apple Packer Settles RICO Case
NPR has the story of a settlement in an unusual case involving an apple-packing company in Washington. The suit was brought as a civil RICO action against executives at Zirkle Fruit Company. Filed as a class action on behalf of legally-employed workers at the company, the suit alleged that Zirkle executives violated immigration laws by employing workers with forged work documentation. The suit alleged that Zirkle executives knew the workers' documents were phony and looked the other way in order to depress the wages of all workers at the company, including those with the right to work. The executives settled the case for $1.3 million, which will be paid to workers who worked at the company legally from 1999 to 2004. Further articles about the case are here and here.
Apart from being another novel use of the RICO statute, the case presents interesting economic and political questions. In terms of economic theory, the case alleges that legal workers would have been paid more by the company if it had properly refrained from hiring illegal workers. As a theory applied to the economy as a whole, this makes some sense. Immigration laws shrink the available labor pool, theoretically driving up the wages of workers allowed to work. But would these effects extend to a particular company? If Zirkle had not employed illegal workers for some of its positions, might it have had to pay less money to its legal employees, in order to remain competitive in a market where other companies used illegal workers? In addition, there are the future ramifications. If additional such settlements follow down the road, will these actions discourage employers from hiring workers without legal documentation? And what would be the effects of this decrease in demand for undocumented workers? Questions to follow as these suits go forward.
Monday, January 23, 2006
Is No News Bad News?
Although the usual suspects haven't yet noted this, there's nothing in today's Order List re: Padilla, which was re-distributed for Conference last Friday. That leads me to think that one of two things is true:
- They're holding it for Justice Alito, which seems odd, since it's hard to imagine a scenario in which he's the fourth vote for cert.
- There's a three-justice (Stevens, Souter, Ginsburg) dissent from a Munsingwear order -- grant, vacate, remand with instructions to dismiss -- forthcoming.
Isn't Justice Thomas Right?
As part of my Federal Courts class, I teach my students that, under the Rehnquist Court's federalism jurisprudence, nothing in Article I confers upon Congress the power to abrogate the sovereign immunity of the states. Instead, only acting pursuant to its powers under Section 5 of the Fourteenth Amendment, the logic goes, can Congress so force the states into court...
Not so fast, says the four moderate lefties and Justice O'Connor today in Central Virginia Community College v. Katz. As Justice Stevens writes for the 5-4 majority:
We acknowledge that statements in both the majority and the dissenting opinions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), reflected an assumption that the holding in that case would apply to the Bankruptcy Clause. See also Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 105 (1989) (O’CONNOR, J., concurring). Careful study and reflection have convinced us, however, that that assumption was erroneous. For the reasons stated by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated. See id., at 399–400 (“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision”).
But it's not Seminole Tribe that held that Congress had no power under Article I to abrogate the sovereign immunity of the states; Seminole Tribe held only that Congress couldn't do so under the Indian Commerce Clause. It was a later case -- the Florida Prepaid case -- that held as much, and pretty explicitly at that: "Congress may not abrogate state sovereign immunity pursuant to its Article I powers." That's really "dicta" that "was not fully debated"?? [Granted, Florida Prepaid relied on Seminole Tribe, but dicta in the former doesn't necessarily equal dicta in the latter, as the Florida Prepaid decision makes fairly clear...]
Justice Thomas, writing for the other three dissenters (not hard to guess who they are), almost glides right past this point -- almost (see Part I of his dissent).
To be sure, I'm with the dissenters in Seminole Tribe, Florida Prepaid, Kimel, Garrett, Alden, South Carolina State Ports Authority, etc., etc., on the merits of the sovereign immunity argument. But on a very early read, this strikes me as really pushing it (and, potentially, really significant for claims of sovereign-immunity abrogration based on other Article I powers).
UPDATE: Over at SCOTUSBlog, Kevin Russell provides more in-depth analysis of the decision in Katz.
Garnett on SCOTUS and Religion
Not at all relevant to Julian's post below about prawfs as pundits, our co-blogger, Rick Garnett, has a piece today on the op-ed page of USATODAY entitled "Two justices who 'get' religion." Rick's money quote:
At the heart of O'Connor's legacy is an insistence that our Constitution does not mandate a public square scrubbed clean of religious symbols and speech, and that equality and neutrality — not hostility or marginalization — are the watchwords of our First Amendment. With Judge Alito, that legacy is in good hands.
Law Profs as Pundits
I want to thank Dan, Ethan, Matt, and everyone else at PrawfsBlawg for allowing me to visit this week. As some of you may know, I typically blog over at Opinio Juris about my main areas of research interest: U.S. foreign relations and international law. I will continue to post over there, even this week, but I'm grateful to the folks here for a chance to post to a different audience about (mostly) different topics.
One topic I thought worth broaching on my first day here is the role of a law professor in the broader public intellectual culture. I'm not even talking about the "law professor as legal pundit" who files amicus briefs, is quoted in newspaper articles, and testifies at congressional hearings. In addition to teaching, researching, and writing, law professors also pop up on the edges of the "public intellectual" or pundit world. They appear as op-ed contributors, television news analysts, and (dare I say it) bloggers. The Alito hearings had law professors out in full force in all these roles, as does every major Supreme Court decision or hot criminal trial.
A valued academic mentor of mine has criticized these practices on a variety of levels. Not only does it distract legal academics from their primary tasks (teaching and researching), but it might even start shaping their academic agenda. If there is any value to a legal academic, it is his or her intellectual independence. We have no clients to drive our legal analysis. But if we are constantly out there trying to shape or participate in the public debate requiring us to take lots of positions on matters, we may be prejudging issues that we should analyze in the "academic" way.
I think this problem is more serious when law professors take on clients and become advocates. But it is still there when we crank out an op-ed or comment in a news article. It is there even in certain kinds of blogging, because bloggers often take quick, immediate positions on very deep and complex legal questions. I struggle with this all the time. I have been trying to figure out what I think of the legality of the NSA wiretapping program here and here (so has Orin Kerr and Marty Lederman at greater and more impressive depth). I literally go back and forth in my mind, although I am leaning toward legality.
The larger question though is whether blogging, or being an aspiring pundit, has made my analysis better or worse. Has my penchant for commenting on the latest news tainted whatever academic abilities I have to conduct a sophisticated analysis of a complex legal question? I obviously didn't think so when I started blogging, but it is something I'm beginning to worry about. I wonder if my fellow "PrawfsBlawggers" ever feel the same way, or am I just being ridiculous?
As many start-ups do, Legal Affairs has run out of time for realizing our dream of creating a self-sustaining print magazine without breaking stride. We've been unable to attract a second round of financing to allow us to continue publishing in print after the March|April issue reaches subscribers in February. We'll maintain our website while we explore opportunities the site provides, so stay tuned for further developments.
I really hope it keeps going, even if "only" in on-line form. I think the magazine is / was excellent.
The Roberts Court: Treading Lightly?
Is it noteworthy that, in two of the cases thought not long ago to be the potential blockbusters of the Roberts Court's first Term -- Ayotte and Wisconsin Right to Life -- the Court handed down speedily unanimous rulings that could be characterized in the press as "avoiding" or "sidestepping" or "dodging" what were thought to be the fireworks-producing questions? I am not criticizing either opinion, but I wonder if anyone thinks they signal . . . something.
Summary Disposition of Coke
Instead of issuing a real decision and explaining itself, the Supreme Court summarily disposed of Coke v. Long Island Care, vacating and remanding the case to Second Circuit in light of a Department of Labor Memorandum issued 4 months after the Second Circuit's decision. The memo presumably promises that the Second Circuit misunderstood what it intended in 1974 (though of course it had every opportunity to make its view clear during litigation). I previously explained what was at stake in this case here.
I hope the Second Circuit sticks to its guns and simply holds -- as I think it should -- that the DOL's excuses after the fact don't change the Court's correct legal conclusions one bit. Unfortunately, my money is elsewhere.
[UPDATE: The DOL Memorandum was issued a year and 4 months after the Second Circuit's ruling]
Kenji Yoshino's "Covering"
Kenji Yoshino, a brilliant young law professor at Yale Law School, has just published Covering: The Hidden Assault on Our Civil Rights. I haven't (yet) read the book, but I did read his adaptation in the New York Times Magazine last week (unfortunately, it is now only available on a subscription basis) as well as numerous book reviews. Also, I had the pleasure of hearing him lecture on this topic when I was a law school student. I think Yoshino is brilliant and erudite, and his work is provocative. But in certain ways I also think he is wrong.
First, a brief overview. My apologies if I don't do his argument justice. Yoshino maintains that our traditional view of civil rights, based on principles of equality, is too limiting. Civil rights law protects from discrimination based on immutable qualities (race, gender, national origin, religion (query whether religion truly is immutable), and (in some jurisdictions) sexual orientation). It does not protect behavior, however. For instance, the law protects a black person from getting fired on account of being black, but it does not protect her from getting fired for "acting" black. (The example used by Yoshino is a black woman who wears her hair in a distinctively black style.) As a result of this lack of protection, people must "cover" their true natures and identities. They aren't passing as something they aren't, but they are covering: muting their own qualities in order to "fit in" with the mainstream. Yoshino points out that everyone covers--everyone has some trait or traits that she try to mute in order to be accepted as normal--and argues that this limits the full range of human identity and expression. In short, he favors a liberty-based vision of civil rights over an equality-based vision. In a wise and humble move, though one that might leave someone searching for answers unsatisfied, Yoshino concludes that the change he envisions in the civil rights model will not come from courts, and ultimately not even from the law itself, but rather from collective understanding, tolerance, and embrace of the range of human behavior and expression.
I agree that we should be far more tolerant of differences in expression and behavior than we currently are. As a practicing Jew I am always aware of my minority status within the dominant secular and/or Christian culture, and at times I feel the pressure to cover. That pressure can either be socially imposed or internally imposed. It can be a difficult feeling, and I'll bet that each of us, as Yoshino says, covers in some way or another.
At the same time, however, I strongly believe that there is a value in conformity. It seems to me that the melting pot ideal--with all of its limits--is still a worthy ideal; and surely the melting pot calls on us all to conform and cover. I fear that Yoshino's argument, if taken to its logical conclusion, leads to a world in which we can all respect each other--a laudable goal--but in which we cannot talk to each other. After all, our communication and identification is based on our common and shared experiences.
Thus, I do agree with Yoshino that a black woman should not be fired for wearing her hair a certain way; that a woman should not be fired for marrying another woman; that an orthodox Jew should be permitted to wear a kippah (yarmulke) in the military; and so forth. So insofar as Yoshino is calling for greater tolerance on the part of individuals and employers, I strongly agree with him, and it strikes me that this isn't a particular radical position. But insofar as he envisions a future in which we embrace the idea that there is more that divides us and our behaviors than there is that we share, I am very wary.
Fanto, Ribstein, and New Models for Regulating Governance
Jim Fanto of Brooklyn Law has a new paper up on SSRN, Paternalistic Regulation of Public Company Management: Lessons from Bank Regulation. The paper argues that the regulation of the banking industry offers insights into regulating the governance of public companies post Sarbanes-Oxley. Fanto notes that the federal regime of bank regulation is much more encompassing and more involved in everyday business decisions than the federal scheme of securities regulation. Given the strict penalities Sarbanes-Oxley levies for noncompliance, Fanto argues that the SEC should have better means of communicating with directors and officers about what is permitted and what is illegal. His article proposes that the SEC appoint a corporate governance monitor, similar to a bank examiner, at large public corporations in order to catch malfeasance and offer counsel about the law's requirements. Along with better regulatory enforcement, Fanto argues that his proposal would better manage management's risk of prison or industry expulsion by offering a conduit for information between corporations and the agency.
Larry Ribstein criticizes Fanto's proposal as a "disturbing new vision of the corporation." He argues that banks deserve to be treated differently than other corporations (thanks to deposit insurance) and that SEC monitors will further dampen the dynamism and freedom necessary to American enterprise. However, Fanto's proposal does serve Ribstein's interests in foreshadowing a brave new world of corporate regulation. As Ribstein notes, "It’s quite possible . . . that Fanto has seen the future of corporate governance reform: the big corporation as bank. "
While I agree that big corporation need not be regulated like FDIC-insured banks, I don't think Fanto believes they should be either. His proposal is intended to remedy two problems with the current level of regulation. First, the sanctions for crossing the fuzzy line between legality and illegality are now much more severe. Second, even with these sanctions the ability of the SEC to root out fraud is significantly compromised. An SEC monitor would help on both of these fronts: the monitor could help a company determine exactly where the legality line is, while at the same time helping the SEC have access to better information about corporate compliance.
Fanto's proposal is a laudable effort to generate new approaches to improving corporate governance. Yes, the thought of a government monitor snooping around may seem a little frightening. But aren't accountants also supposed to be policing the corporation in the interests of the investing public? Accountants are imperfect watchdogs for innumerable reasons; for more on this subject, see Sean O'Connor's articles here and here, among others. It may make sense to have more functionally independent watchdogs, even including government officials.
Ribstein believes that some level of fraud is inevitable to a free economy, and that reforms such as Fanto's would fail to overcome their costs in reduced productivity. Yes, it is true that the optimal level of agency costs is not zero, if such a result is dwarfed by productivity losses and compliance costs. But I also disagree with the assumption that new models of regulation will inevitably fail to justify their costs. If Fanto's model were paired with lower criminal penalities, fewer SEC investigations, and even less public disclosure, it might be something in which even management groups would take a interest.
Sunday, January 22, 2006
More oddities of legal academic training
It is typical of PhD programs, especially in the humanities, that new entrants have already chosen a research focus and perhaps even a dissertation topic before they begin their studies. This both reflects and helps to further the increasing specialization of individual fields (as well as, ironically, of interdisciplinary fields, which tend to be cobbled together from pieces of existing ones), as graduate students spend their coursework and research on relatively narrow, specialized literatures and topics. As Louis Menand recently wrote in an article on the state of graduate education in the humanities, when grad students arrive on campus, "[t]hey already talk the talk in class, and their main goal in graduate school is to learn how to talk it at conferences."
It's my intuition that a majority of future law professors arrive for their J.D. education without being able to talk the talk at all; while only a minority arrive with much idea of what it is they will ultimately teach and research, and a chunk of those who arrive with a strong commitment to a particular area of law or approach end up changing their minds, perhaps radically, before they begin teaching. At the same time, many law school classes are basic, relatively non-specialized, and either don't allow or discourage significant outside research projects.
I'll speculate about two effects of this fairly profound difference between legal education and graduate education that leads to a terminal degree.
First, it's likely to produce beginning law teachers who are generalists, unless they either also earn a terminal graduate degree (PhD/JSD) or get significant practice experience. This isn't necessarily bad and may actually be good, because background knowledge across a range of doctrinal areas and legal theories makes for more creative thinking and interesting teaching. It also means that law schools, though larger and at least as diverse if not more diverse than most humanities and social science departments, can be places where conversations can occur across subject matters and approaches because everyone shared the same basic graduate education.
Second, coupled with the overwhelming dominance of a small number of institutions in the production of law teachers, it seems likely to increase the reproduction of particular types of professors and approaches. Entering law students aren't blank slates, ready to be made into models of their mentors. But it is the case that many students haven't had a graduate education, they don't produce a major work of their own scholarship as a requirement for their degree, and the judicial clerkship and entry-level hiring processes seem at least as much about who is recommending the candidate as they are about the individual quality and independence of that candidate's work.
One caveat and one final comment. First, graduate education in all disciplines to an extent tends towards reproduction -- there is less friction in graduate school and a dissertation committee when the student's work reflects, if not repeats, that of her teachers-advisers. And second, this strikes me as another advantage of the increased number of PhDs and JSDs in the legal academy, who receive both a general education for a JD and advance to more specialized research.
TNR on Judge Alito
The editors of The New Republic -- a magazine I admire and have been reading for 20 years (thanks to a subscription gift from my "Roosevelt was too conservative" grandmother who was horrified by what she saw as my teenage Reaganite tendencies) -- have come out against Judge Alito. In so doing, the editors in "Against Alito" invoke the magazine's "consistent and long-standing judicial philosophy":
Ever since its founding in the Progressive era, this magazine has championed bipartisan judicial restraint and urged liberal and conservative justices to practice it consistently. Under the guidance of editors like Felix Frankfurter, Learned Hand, and Alexander Bickel, we have argued that judges should play a modest role in U.S. democracy, generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing.
The piece is, as one would expect, entirely free of hysterical or uncharitable rhetoric; it is measured and reasonable. The editors concede that Judge Alito "is far from the most activist and intemperate candidate that Bush could have nominated" and that his "intellectual ability has been obvious at every stage of his career."
That said, I'll skip past what I regard as the editors' unhelpful digs at Alito's alleged "inflexible originalism" or their (to me) unconvincing attempt to draw a line between Judge Alito and Chief Justice Roberts, based on the latter's statement (one with which Judge Alito would, I am confident, happily agree) that (in TNR's words) "he does not have an overarching judicial ideology that he wants to impose on every case." And, I was surprised that the editors seemed to put so much weight on Alito's "troub[ling]" "vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce," without addressing the question whether, given Lopez, reasonable and non-ideological judges could have (should have?) concluded that the Court's cases weighed in favor of such a vote.
For me, the editorial raised (at least) two questions: First, do we think the following statement is correct:
If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now.
I'm not sure. Justices Breyer and Ginsburg were confirmed overwhelmingly, despite their progressive or left-leaning views and records, after the Bork and Thomas hearings. Would the editors think there was something wrong with Republican senators, in the future, voting against nominees like Breyer and Ginsburg?
My second question is about "bipartisan judicial restraint." It seems to me that, as described by the editors, the approach has much to commend it (assuming that it is applied in school-voucher and abortion-regulation cases just as in machine-gun-possession and campaign-finance cases). But is there a reason why we should be more troubled by the Court's decision not to "defer" to Congress, in cases involving enumerated-powers or structural-federalism questions, than by a decision (one that the editors fear Alito would support) not to defer to the President in cases involving inherent-executive-authority questions? Again, the editors put, at the heart of "bipartisan judicial restraint," a policy of "generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing." Should an advocate of "bipartisan judicial restraint" support similar deference to the Executive? If not, why not?
I suppose we are all familiar with those "motivational" posters -- "Inspiration", "Teamwork", "Dedication", etc. -- often advertised in "Skymall" and displayed in dentists' and deans' offices. I confess: I hate them. So, I really appreciated this web site, featuring a whole line of "Demotivators" products, including, for example: "Adversity: That which does not kill me postpones the inevitable"; "Beauty: If you're attractive enough on the outside, people will forgive you for being irritating to the core"; "Consulting: If you're not part of the solution, there's good money to be made in prolonging the problem."
These "Demotivators" owe a lot, of course, to Jack Handey's "Deep Thoughts" (e.g., "when I die, I would like to go peacefully, in my sleep, like my Grandfather did. Not screaming and yelling like the passenger in his car.").
Just a quick word of congratulations to Will Baude, our former guestblogger who normally resides at Crescat. He has a smart piece in today's NYT about the likely chaos that would ensue if some pro-choice (yes, pro-choice) voices actually succeeded in having Roe overturned. There was a nice discussion in Debate Club a few weeks ago between Sandy Levinson and Jack Balkin on a similar topic.
This week, we'll have several guests with us: Julian Ku from Hofstra and Opinio Juris will be joining us, along with Tung Yin (Yin Blog, Iowa), and Mark and Adil. Many thanks to Brooks. See you back here soon.
Friday, January 20, 2006
Forget Dover, Look to Rome
According to a news release, an Italian court may undertake the task of determining whether Jesus really existed. Luigi Cascioli, an atheist, brought a complaint against a small-town parish priest, The Rev. Enrico Righi, under a pair of Italian laws that reportedly prohibit "abuse of personal belief" and "impersonation" after the priest wrote in a parish bulletin that Jesus did exist. According to the article:
"Cascioli says that for 2,000 years the Roman Catholic Church has been deceiving people by furthering the fable that Christ existed, and says the church has been gaining financially by impersonating as Christ someone by the name of John of Gamala, the son of Judas from Gamala."
Apparently Italian prosecutors sought to relieve themselves of their duty to investigate the complaint, saying no crime could be verified. But, "Cascioli challenged them, and Judge Gaetano Mautone set a hearing for next Friday in Viterbo, north of Rome, to discuss preliminary motions in Cascioli's bid to have the court appoint technical experts to review the historical data and determine if Jesus really did exist."
When Cascioli commented on his chances of prevailing, the article quotes him as joking, "We aren't optimistic--unless the Madonna makes a miracle, but I don't think that will happen."
Judging and Politics Up North, Part II: Of Statutory Interpretation
I wrote below about this week's Canadian political debate over the role of judges and judicial appointments -- a debate which, I think, raises interesting points about the general issue of judicial review in the constitutional arena (you might want to read that first, if you're inclined to read at all). But I think this discussion also sheds light on broader questions in a slightly different area: the theory of statutory interpretation. For the very social consensus I discern in the close and limited ranks of the Canadian judiciary and civil service -- the similarity of background, education, and worldview -- conduces to a much easier, much less controversial, ability in Canada to draft and construe statutes.
The standard approach to interpreting statutes in Canada, recited ad nauseam by the Supreme Court of Canada, is the "modern rule," summarized by Elmer Driedger, author of the original editions of the leading Canadian treatise on statutory interpretation: "Today there is only one principle or approach [to interpreting statutes], namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." (The treatise is now in the hands of Ruth Sullivan, who addresses this and other approaches in a fine article available here.) Now, it seems to me that American readers might be tempted to view this statement as reasonably accurate but fairly anodyne, or as harmless fluff, or as something so vague as to approach nonsense, or worse. Certainly many American students of statutory interpretation, particularly those proceeding from a textualist position, might think it partly accurate but also likely to lead to a bewildering array of results in any given case, and thus utterly lacking in any degree of useful guidance.
And I think they would be right -- in an American context. Given our federalism, and given our political, social, and geographical diversity (although this can be overstated; the Justices of the U.S. Supreme Court, eight of whom will shortly have attended Harvard or Yale Law [if one includes Ginsburg], are at least as socially uniform along certain axes as they are socially diverse along others), it would be difficult to say that a huge set of state and federal judges, interpreting a wide range of state and federal statutes, could rely on sufficient consensus as an interpretive community to apply Canada's "modern rule" with anything approaching uniformity. The starting positions of the judges are too different, and the starting positions of the legislatures and drafters add still another array of diversity to the picture.
I think this is much less true in Canada. There, the legislatures are few in number, the civil service and the judicial appointments machinery are far more centralized and professionalized, legislative drafting itself is centralized and professionalized, and drafters and judges alike share a substantial consensus -- on politics, on judging, on the uses and purposes of law, and even, bilingualism notwithstanding, on language. In these circumstances, to borrow Sunstein's term, the error costs of a free-floating, non-formalist approach to statutory interpretation, resting on a base of social consensus between drafter and interpreter, are far less likely to be great than they would be in an American context.
In short, there is good reason to think that a Canadian approach to statutory interpretation need not be formalist in orientation, given the relative homogeneity of the interpretive community. Conversely, one could make a fair argument that formalism is a much more sensible approach to statutory interpretation in the American context, in which the diversity of the drafters and interpreters of statutes makes any assumptions about the shared understanding of the interpretive community far more dubious. (I wonder whether this also provides [additional?] ammunition for a federal interpretive canon favoring deference to the interpretation of state and local statutes by state and local judges.)
Now, I don't take this as the last word on the subject, even as to my own views. In the Canadian context, both statutory and constitutional, I think it would be healthy to introduce some diversity of approach to the existing consensus. Canada needs more formalists and textualists on the bench, in my view, at least to serve as foils and to guard against ossification in the interpretive community. Moreover, while the outcomes of statutory interpretation may be constrained by consensus in Canada, I don't think the reasoning is that transparent, and so I'm not enamored of the "modern rule" as an interpretive guide. In the American context, there are, of course, perfectly legitimate critiques of formalism and/or textualism in the American context. Moreover, I don't want to oversell my depiction of the American interpretive community's diversity. There are also interesting countervailing ways in which one could argue from the same set of premises I've offered above. One could argue that a diverse interpretive community like the U.S. requires diverse interpretive approaches, because textualism is untenable in such a community; or that a homogeneous interpretive community like Canada can more safely rely on formalism rather than non-formalism in interpretation without incurring some of the costs associated with that approach. These points notwithstanding, I do think there is room to argue, if the premises I've stated are correct, that the Canadian move away from the textualist reading of statutes, and the unsteady American move toward such an approach, both make sense, each in their unique contexts.
I'll end, far from where I started in my first point, on the slightly controversial conclusion that I think follows from that observation: that debates about theories of statutory interpretation are necessarily, inescapably, local debates.* Notwithstanding the totalizing tendency of the American scholarly dialogue on this and other topics, it seems to me that debates about formalism vs. non-formalism, textualism vs. non-textualism, etc., are not and cannot be absolute or universal. They risk becoming too general, or just plain banal, unless they are rooted to their time and place.** It may simply be impossible to declare that textualism, non-textualism, contextualism, or any other approach is the correct approach to the interpretation of statutes. Thus, much, if anything, true and valuable that can be said about statutory interpretation must rest on a foundation not of theory, but of empirical and sociological observation*** -- of which comparativism, as in this post, is one worthy resource.
* This point cuts both ways. If it means American statutory interpretation debates are just that and only that, it also means Canadian criticisms of American textualist approaches must remain just that too -- Canadian criticisms of American textualist approaches. A Canadian critic cannot say much about whether textualism makes sense in Canada by questioning the efficacy of textualism in the United States, or even by critiquing textualism generally. See footnote **.
** I think this is a particular risk of approaches to statutory interpretation that proceed largely from philosophy, interpretive theory, and other more abstract universalizing disciplines. Not that they do not have much to contribute; but they can settle no important debate usefully.
*** I think if I am right about this, then it would only be partially correct to proceed to analyze the interpretation of statutes in the U.S. from a distinctly American constitutional approach, as my former teacher John Manning does in so illuminating a fashion. Such an approach is obviously local, but may say too little about the sociological elements I think form a key part of the localized inquiry into methods of statutory interpretation, and may say little, too, about the task of statutory interpretation when undertaken by state judges.
Judging and Politics Up North, Part I
Those of you who are avidly following the current Canadian election campaign -- I'm sure you could fit into a single room, but hopefully a large one, not a broom closet -- should be taking note of a very interesting debate that's occurred in the campaign over the last couple of days. It may also be interesting to folks thinking about judging and politics in the US and, in its own small and weird way, to students of theories of statutory interpretation, which I'll address in a separate post.
The debate has been over Conservative leader Stephen Harper's introduction of the Canadian judiciary into the political debate. (I won't provide direct cites, but will link generally to the searchable sites of the Globe and the Star.) Harper initially attempted to reassure voters that his views, more conservative than many of the electorate's views, would be kept in check by institutions such as the Liberal-dominated Senate (similar in some respects to the House of Lords) and the nation's judges, who have "for the most part been appointed by another party." This led to various attacks arguing that Harper's comments suggested he thought Liberal-appointed judges would favor Liberal political interests, and hence, as the Liberal Justice Minister put it, were "disrespectful of the rule of law, of the independence of the judiciary and the administration of justice." Harper softened his remarks yesterday with a rote acknowledgement that judges "are supposed to be independent regardless of who appoints them," but added in response to questioning about judicial activism that "some [current judges] are, some aren't." Needless to say, this did not quell the outcry. Ontario's Liberal Attorney General piped up to warn that Harper wants to "Americanize our judiciary," a comment echoed by others; he added that "[t]he problem with Americanizing the system is you create the perception that judges are rendering conservative or liberal decisions and that's just not the case."
My own take on this debate is that Harper's remarks were typically clumsy but also basically correct. If Harper meant to suggest that Liberal-appointed judges will act as the agents of their party's interests, he was wrong, and perhaps wrong to say so. But a fairer reading of his remarks suggests that what he meant was, as Globe columnist Christie Blatchford put it, that "government has an interest in trying to stack the courts with people it imagines see the world the way it does," and that, as such, the judiciary will represent that worldview in its work. I think this is perfectly true. And that is true even though -- perhaps especially because -- the Canadian judicial appointments process is more bureaucratized and professionalized, and less overtly politicized, than the American process. The Canadian appointments process rests on a foundation of selection by a cadre of similarly educated, similarly professionalized lawyers and civil servants whose views reflect a basic consensus on views of justice and judging. This selection by elite consensus naturally results in the appointment of a similarly "right-thinking" cadre of judges to the bench. And that, I think it is fair to say, is what we largely see in the Canadian judiciary: a collection of largely similarly oriented individuals, sharing similar views on a range of issues and, although diverse according to narrow criteria, in other respects remarkably homogeneous. For the most part the choices the appointers make, befitting the professionalized nature of the process, are indisputably worthy ones (with a few hacks mixed in as a spoil of patronage), but of course they reflect a particular worldview. Any conservative westerner like Harper, if not other Canadians, would be able to see, quite correctly, that most Canadian judges would be indistinguishable from the crowd if inserted into the middle of your average law society function in Toronto. When Lorne Sossin, a fine law professor at the University of Toronto, told the Toronto Star that "[w]e [Canadians] don't have a tradition of any leeway to appoint based on ideological convictions aligning with the party in power," he may have said something narrowly true, but he misses the more important point that appointments in Canada invariably reflect shared "ideological" convictions in a broader sense of that word.
In sum, of course the Liberals (and similarly oriented lawyers involved in the judicial selection process) attempt to select people who share their worldview, and of course this has an impact on the judging they do. Whatever one feels about Harper, or however poorly he stated his views and connected them to the checks-and-balances point, his basic point seems obviously true to me. And his critics largely missed the point, I think, by raising the question of the independence of the judiciary. The Canadian judiciary is independent, and the appointments process is relatively non-political, but the process ultimately and emphatically reflects a consensus worldview among Canadian legal professionals that fits nicely, if adventitiously, with the Liberal worldview. This is true not so much in a partisan sense, but in a sociological sense; and it is no more extraordinary than it would be to say in the US that Harvard Law-educated Democrats in politics tend to share the worldview of, and prefer the appointment of, similarly situated Harvard Law-educated judges (and a similar point could be made about elite-educated Federalist Society members).
The standard Law Day-type bloviations offered in response to Harper's comments by various politicians and commentators thus fell wide of the mark. And the trite nature of those responses to me speaks to some strange failure of vocabulary, realism, and imagination in the Canadian dialogue over politics and judging. I don't mean to malign my countrymen (for so long as I remain a Canadian citizen), but I think the very social consensus I was speaking of, married to a certain Canadian mildness of tone and vagueness of speech, has stunted their ability to speak with candor and discernment on these issues. In some strange way, many Canadians (even Canadian scholars!) have not developed either a vocabulary or a willingness to hold discussions about judicial review and the judicial function in a way that addresses plain, if complex, truths.*
Well, I hope that was interesting to my ten or so Canadian readers, although I think the Canadian debate also offers both a contrast and a fresh point of entry for folks thinking about similar issues in the American context. I think this debate also offers a useful starting point for thinking about statutory interpretation, but I'll address that in a separate post in the interests of my readers' health and welfare.
* In this sense, when I say Harper's remarks were typically clumsy, I mean that they were typically clumsy for Harper, but also that they represent the typically clumsy treatment of this dialogue in Canada as a whole.
Adoption, Morality, and Reality
I have long thought that those of us with substantial enough resources to contemplate having biological children have a responsibility (indeed, arguably a greater responsibility) to adopt children already in existence that lack the support and care all children need. Given the state of disrepair of most states' and countries' foster care systems, many children live under unnecessarily harsh conditions that could be alieviated if those of us with resources shared them.
Just yesterday I had a long talk with someone who similarly felt the moral call of adoption and has been providing care for adoptive children (instead of just talking about it like me). S/he emphasized that the reality of undertaking such a responsibility is a greater burden than I can possibly fathom and that even if morality demands it, reality counsels one to be very cautious about taking the leap.
Do others have experiences as an adoptive child or parent that they wish to share? Obviously, though we disfavor anonymity here at Prawfs, you get a free pass on this one. In particular, I'm interested in parties that were adopted or undertook adoption when the children were not babies. Alternatively, I'd really be interested in hearing from participants in interracial adoptions. White babies aren't especially difficult to place; it's minority babies and older children who are the most in need.
The Constant Gardener and the Duty to Aid
The Constant Gardener is a beautiful film which raises all manner of questions regarding the role of multinational corporations in creating and perpetuating cultures of official corruption in developing nations. But the heart of the film lies in the moral transformation of a quietist in the diplomatic service (Ralph Fiennes) stationed in Kenya. Toward the middle of the film, Fiennes and his wife (Rachel Weisz) pass several young children beginning a long walk home. Weisz wants to give the children a lift in the couple’s car, but Fiennes refuses, saying that there are millions of people who need help, and the couple can’t help all of them. Weisz responds that these children are among those they can help, but to no avail. Toward the end of the film, Fiennes begs a plane crew to allow a child to board the plane and escape from a militia slaughtering the rest of her village. The crew refuses, reminding Fiennes that they cannot save everyone. Fiennes, predictably but (I think) not cornily, reminds them that they could have saved more.
Issues surrounding the limits of the duty to aid are raised in dozens of films. Schindler’s List is probably the most famous, but pretty much any film set in a developing country includes a scene in which a naive character gives some money to a poor child and is soon overwhelmed by a flood of equally compelling requests. What I liked about The Constant Gardener was that it identified one of a number of sources of widespread reluctance to aid distant others which may be characterized either as cognitive biases or as moral errors. The two exchanges illustrate the "drop in the bucket"effect, by which individuals infer from their inability to correct social injustices such as poverty, homelessness, and famine that they lack a compelling reason to assist any particular victim of such injustices. One contributing factor is that these injustices are conceived as abstractions, such that they survive assistance to even a very large number of victims so long as some victims remain. No matter how many individuals are provided with the resources and opportunities needed to flourish, "poverty" persists so long as others remain deprived. The framing of the problem rules out incremental or partial solutions.
A similar dynamic may partially explain why nations and individuals often respond more readily to concrete and acute crises (e.g., earthquakes, tsunamis, and hurricanes) than to abstract and chronic problems. The former enjoy greater psychological salience, to be sure, and natural disasters make it difficult to blame affected communities for their own predicament. But it also may be that restoring a community to some status quo ante seems like a satiable, achievable goal, a fight that can be cleanly won and then left behind.
Confronted with equally valid claims to assistance, and without the means to address all of them, individuals might reach one of a number of false or misleading conclusions. One might conclude that since one has no more reason to help one person than another one lacks sufficient reason help either, forgetting that one has more reason to help either than neither. One might also think it would be unfair to help some rather than others on the basis of necessarily arbitrary considerations, revealing at the very least an overvaluation of fairness relative to other values and probably a misunderstanding of what fairness means and requires in the first place. One might repeatedly postpone helping others, reasoning that one lacks a decisive reason to help this person now rather than some other person later, and find at the end of the day that one has not helped anyone or at least not enough people. Finally, one might conclude that one’s duties to help others are extremely demanding, that one will probably fail to satisfy them, and that if one will fail morally one may as well do so at the least cost to oneself ("in for a penny, in for a pound"), perhaps on the view that morality is indifferent between partial compliance and noncompliance.
One point I took away from the film is that legal and philosophical discussion of the outer limits of the duty to aid, though interesting and important, should not distract us from that duty’s minimum requirements. When looking down the street or beyond our shores to people in need, the most pressing question is not where our duties end but where they begin, not where to stop but where to start.
Next week I'll post on Syriana, torture, and constitutional culture in Iran.
The Bloom is Off the Hedge
Speaking of hedge funds, Bill Sjostrom at the Truth cites a Business Week article finding a decline in the hedge fund sector. As I noted in November, I think those hedge fund puppets should be selling on eBay soon.
Bribery or Business as Usual?
Cerberus Capital Management has gotten a lot of favorable press as one of the darlings of the hedge fund boom. (See, e.g., this Business Week article, reporting that Cerberus may have "perfected a new business model".) Now, however, it's gotten some publicity of the unfavorable kind, as a USA Today article highlights an unseemly connection between Cerberus and Congressman Jerry Lewis (R-Cal.). According to the story, in July 2003 Lewis voted in support of a $160 million defense contract to MCI a day after Cerberus held an event raising $110,000 for the congressman's political action committee. At the time, Cerberus owned a $140 million chunk of MCI, and a Cerberus representative sat on the MCI board.
Although the donation's timing is unseemly, the article does not mention any ongoing investigation of the matter. But once again we see the fine line between a bribe and a donation to someone who agrees with you. Our political system depends on that line, but that doesn't make it pretty.