Tuesday, February 28, 2006
Paging Mr. Darnton...Mr. Robert Darnton...
New Guests from the Left Coast
This week, we're very pleased to announce the arrival of two new guests from the University of San Diego School of Law, Orly Lobel and Adam J. Kolber. Eat your heart out, The Right Coast. Both Orly and Adam are experienced bloggers: Orly did a visiting stint with us last year and Adam posts on the Neuroethics & Law Blog. Welcome!
The Da Vinci Code: did author take copyrightable expression, or just facts/ideas?
Today begins the copyright trial in the UK, which is to decide whether Dan Brown's mega-bestseller The Da Vinci Code is an infringing work. Michael Baigent and Richard Leigh, two of the authors of "The Holy Blood and the Holy Grail" (1982) -- an historical work that apparently posits that Jesus survived the crucifixion, married Mary Magdalene, and their children produced a line of descendants who are still flourishing while the Vatican hopes to conceal this information -- accuse Dan Brown of copying their work. (I couldn't figure out how the Knights Templar and Holy Grail figure into the equation, but I think they relate to the descendants of Jesus and Mary Magdalene. Oddly, both works are published by Random House, so Baigent and Leigh are suing their own publisher!) (More from NYT)
My take: I have not read either book, and I'm not an expert in UK copyright law. But, under TRIPs, no country is allowed to protect "ideas" under copyright (as opposed to the original expression of the ideas), so Baigent and Leigh will be hard pressed to argue that Dan Brown can't copy their idea that Jesus and Mary Magdelene married and had kids, etc.
Moreover, "facts" are typically uncopyrightable as well. Baigent and Leigh apparently are trying to get around these problems by characterizing their work as "historical conjecture and hypothesis," but not facts. In the U.S. at least, that argument won't fly. Courts treat interpretations and theories of historical facts as facts, whether incorrect or correct. As such, such theories of historical fact -- such as a conspiracy theory to blow up the Hindenberg -- are not copyrightable under U.S. law. Hoehling v. Universal City Studios, 618 F.2d 972, 979 (2d Cir. 1980). Of course, an author's particular expression describing a fact is copyrightable, but it doesn't appear that the authors claim that Brown stole any of their expression. Because Baigent and Leigh sold their book as "probably true" nonfiction (here), they would be effectively estopped in the U.S. from arguing that the content should be treated as nonfactual and therefore deserving of a broader copyright. As I said, I'm no expert in UK copyright law, but I think the U.S.-type approach would be sensible enough to follow in this case.
Monday, February 27, 2006
Publication Venue as a Lagging Indicator of Quality
Over at the ELS, Max Schanzenbach weighs in on the pros and cons of peer-reviewed versus student-edited law journals; Max essentially ends in equipoise. I recently posted on the same issue. I am wary of perpetual navel-gazing (especially my own, which ain't pretty), but this seems like an issue that is on the minds of many young academics. I think some of this unease is traceable to a period of transition affecting both the law and social science academies.
Specifically, law is drifting toward the peer-review model because (a) empirical legal studies are in high demand because they supply hard facts in an academic discipline awash in normative polemics; (b) barriers to data collection and analysis have fallen rapidly, which means there is an abundance of important and tractable projects awaiting capable researchers; and (c) student editors have no special ability to assess the rigor of this work, and the lack of technical sophistication by most law faculty have sent them reeling for some external assurance of quality, which peer-reviewed journals provide.
Re the tumult in the social sciences, or at least economics and its various applied branches, the interminable delay of the peer-reviewed single submission process has been one of the primary drivers for the growth of SSRN (and the crossover for economics and finance explains why biz law professors dominate the SSRN law rankings). A scholar can lay claim to an idea by posting a polished working paper; if it is any good, it will be downloaded, discussed, referenced, and presented at conferences before it appears in a journal. A dossier of unpublished papers on SSRN is a good strategy for a junior social scientist (or law professor) to build his or her career as he or she waits for journal acceptance and publication–i.e, validation of quality.
But for both law and the social sciences, peer-review now operates on two levels: (1) established scholars, after a lengthy editorial process, accept an article for publication; or (2) established scholars working in the same field gravitate toward the best work in pre-publication form. Because of changes in the cost and flow of information, reputations are now being formed based on route #2. In other words, publication venue is a lagging indicator of quality.
"Scholarship or Cyber Chit-Chat?"
"Blogging law-profs assault the ivory tower," reports the National Law Journal:
As more law professors are tapping away at their computers on blogs that cover everything from the Sarbanes-Oxley Act to the death penalty, they also may be chipping away at the ivory tower.
An increasing number of law professors are using blogs-online journals or newsletters-to break free from traditional modes of legal scholarship. With an immediacy and ability to reach millions of readers, blogs are proving an attractive vehicle among legal scholars for spouting and sharing ideas.
But they are also raising concerns that they may lead to a dumbing down of the profession.
"They have nothing to do with scholarship," said Katherine Litvak, a professor at the University of Texas School of Law.
Look, of course it is true that most blogging looks a lot more like "chit chat" than like "scholarship." But isn't there a pretty big chunk of middle ground here? My sense is that -- at least in the law-blogger world -- a fair bit of what gets blogged and blogged about does "have [something] to do with scholarship": People blog about what others are writing about, about what they are writing about, about what they plan to write about, or what they tried to write about. No one thinks that blogging could or should take the place of scholarship. But it seems quite a stretch to suggest that law-blogging does not have -- unlike, e.g., enthusiastic and engaged conversations around the lunch table, or during a workship? -- anything at all to contribute to the scholarly enterprise.
Another Victim for Time Warner
In this weekend's DealBook, Andrew Ross Sorkin discusses the fate of Bruce Wasserstein after the Icahn settlement with Time Warner management. Wasserstein was unusually involved in Icahn's battle; his firm Lazard developed a 343-page attack on the current Time Warner corporate structure that he unveiled in a dramatic press conference. But the attack fizzled, and now Wasserstein may be, in Sorkin's words, the "Emperor With No Clout." Among the collateral damage, Lazard's involvement forced Dean Robert Clark to resign from the Lazard board, as he was also a member of the Time Warner board.
Time Warner has famously mowed down many folks who thought they could get a handle on the company: Marty Davis, Ted Turner, a passel of AOL executives, and now Icahn and Wasserstein. Jerry Levin has described the company's "immunological" resistance to those who seek to change it. Maybe the next would-be challengers will think twice.
A Few More Comments on CAT
I just wanted to add my own thoughts on Linda Beale's observations about the Caterpillar article.
The Times article briefly mentions the history of failed strikes and job actions at Caterpillar, but I would have liked to see more discussion about the actual events. In the early 1990s the UAW twice went on strike in the face of proposed cutbacks by Caterpillar management. Things did not go well for the union; this piece describes the union as having "ignominiously surrendered" in the face of Caterpillar's tough contract demands. Caterpillar's draconian tactics were widely criticized, and the company's actions led to hundreds of unfair labor practice complaints at the NLRB. And the new wage structure described in the Times article comes after another tough round of negotiations in which Caterpillar allegedly threatened the workers with permanent replacement. (For a very pro-worker view of the dispute, see here.) Again, the article discusses these things, but in my view it doesn't provide a strong enough flavor for the reader.
Given this history, it's harder to say that the new Caterpillar contract is just a natural result of the mechanisms of the global economy. It's not as if workers sat by and accepted whatever wages the company chose for them. They believed, and still believe, they are entitled to more. And the company had to engage in a bitter labor struggle in order to get to where it is right now. Perhaps such a struggle was necessary for the company to compete in a global market. But as the Times article makes clear, and as Prof. Beale points out, a lot of this is not about what the company needs to "survive." It is instead about who gets what percentage of the surplus. And the company took some of that surplus away from workers at the cost of more than a decade of bitter labor relations.
So I guess my point is this: it's easy to sit back and say, "Oh well, it's globablization. These jobs are outdated, and these workers are lucky to be making what they're making. The global economy marches on." But globalization is a policy choice, and wages are a financial choice. Current choices about policies and wages are not natural or inevitable. In fact, Caterpillar had to work pretty hard to get to where it is today, and another company might have made different choices and still survived.
I don't want to overstate my claim here. The natural comparison to CAT is GM, which is not thriving right now. But is it all the fault of the "overpaid" worker? For some, the thought of blue-collar workers making more than $20 an hour with decent benefits is anathema. But why is that? I believe that cultural views shape the economy, and to that extent, the notion that UAW workers were "overpaid" has now become the reality that they are paid a lot less. Sure, that makes CAT more competitive in the market for capital. But I think it's a fair question -- will our more competitive society be a better one?
Big Profits, at Whose Expense?
The New York Times reported in a story by Louis Uchitelle today on Caterpillar's new two-tier contract. The pay package (wages plus benefits) used to be about $40 an hour, but now it is roughly $25 an hour ( about $18 in wages and $9 in benefits). Veteran workers still receive the old wage and benefits package, but new workers receive a considerably lower package under the new contract that was finally ratified after years of failed job actions.
Company executives claim that the cutback in living wages will "reposition" Caterpillar and allow it to increase employment in the Midwest because of a "viable" labor cost. Id. According to Caterpillar managers, the company "cannot afford to be more generous simply because it is doing well right now." Instead, group president Oberhelman claims that:
"There is a balance that must be struck between [Caterpillar's] being competitive and [workers'] being middle class."
Caterpillar is not hurting for revenues or for profits. Its revenues grew in 2004 to 33% more than they had been in 2003, and they grew in 2005 to 20% more than in 2004. Its profits have increased correspondingly--up 40%, to $2.85 billion in 2005, nearly triple what they were in 2003. Id.
The article notes that these gains are not translating to higher wages or more generous benefits. Instead, the long-term UAW contract provides for only one raise, a meager 2 percent, in December of 2008. Defined benefit plans are available only to veteran workers. New workers have to acquire 12 years on the job before they are immune from layoffs. Health insurance co-payments are rising for current employees and for retirees. Put simply, Caterpillar has managed to add a new wrinkle to the way U.S. employers are taking their profits out of the hides of their workers. Wage and benefit cuts are no longer the province of companies that are failing and claim to need to cut costs to survive; instead, Caterpillar has used them to squeeze more profits out of a hugely profitable business. As Harley Shaiken (University of California at Berkeley) notes,
Caterpillar "is one of America's largest exporters, and it is very profitable. If there ever was a company that could bring back the social contract of the mid-20th century, it is Caterpillar. But it chooses not to."
Remember that the somewhat more balanced distribution of wealth in the second half of the twentieth century came about after several significant events from the 1930s through the 1970s-- enormous losses during the Great Depression and New Deal programs like Social Security and the GI Bill that helped lift millions out of poverty and paved the way to a college education and better future for millions of military veterans permitted the middle class to see opportunity everywhere it looked around the country, as well as the enactment of progressive income taxation (at fairly steep rates through much of the century) and estate taxes that were able to take significant chunks out of the inherited wealth passed to new generations. See Kopczuk & Saez, Top Wealth Shares in the United States 1916-2000: Evidence from Estate Tax REturns (Ma. 15, 2004). It's impossible to be sure where the current downgrading of jobs and benefits will lead, but it is clear that ordinary Americans will have less job security and more concern about their standard of living in retirement. When these labor trends are coupled with other recent developments--increasing consumption tax features that fail to tax returns to capital, lower rates of taxation generally, the temporary (and maybe soon permanent) repeal of the estate tax, the push to change Social Security from a guarantee to a risk, outsourcing of manufacturing and servicing jobs abroad--one can only worry that the gap between the super-rich and people in the rest of the distribution brackets will continue to grow, possibly resulting in reconstitution of the "robber baron" classes that existed prior to the Great Depression.
Sunday, February 26, 2006
Religion in MMOGs
I once started, but made no progress on, an essay about religion -- or, more precisely, religious freedom -- in MMOGs ("massively multiplayer online games"). I wondered, what would it mean for an "avatar" (i.e., the "digital you" in virtual-world games) to enjoy and exercise religious freedom? I was not thinking so much about any real-world, religious-freedom rights that we might have to participate in MMOGs, or about any constraints that religious-freedom laws might impose on the regulation of gamers or games themselves. Instead, I was trying to imagine what it would really mean to say or wonder if the avatars themselves, in "their" worlds, enjoyed religious freedom. The question seemed worth asking because -- in my view, anyway -- religious-freedom questions (in the real world) are intimately connected to moral-anthropology questions, i.e., what is a human person and what does the answer to this question mean for additional questions about how human persons ought to be regarded and treated?
Well, again, I made no progress. This should have come as no surprise, given that I really do not know much about MMOGs or computer-gaming generally. (Some prawfs -- like Dan Hunter, Michael Froomkin, Timothy Wu, and Jack Balkin -- do, though). In any event, here is an interesting post, on the "Terra Nova" blog, about "religion in MMOGs" (read the comments, too):
[A]ctual religion and theology are pretty much absent or at best non-operative in most MMOs. In fantasy games the priest is typically a "healer" but otherwise the character is a façade. In modern or science fiction games, religion is conspicuously almost entirely absent.
I've been wondering for some time about enabling the presence of both real-world and made-up religions in MMOs as thematically appropriate. Is this a good way to flesh out a world, to create gameplay surrounding a moral code and shared identity, and to bring a significantly missing piece of human community to the game, or would it just be a way to invite controversy -- in effect, to draw aggro from both religious and non-religious players and cause a heap o' customer service trouble?
The companion to this question is a bit more introspective: to what degree does the answer to the question of operative religions in MMOs vary with our own degree of spirituality/religiosity? Is the perceived agnosticism of the game development community keeping religion out of MMOs?
American Idol: Paris, Katharine McPhee, Taylor Hicks, or Daughtry?
So I've long overstayed my welcome here. And I've already dumbed down Prawfsblawg once with a post about American Idol + blogging. After this, I'm sure Dan Markel will be booting me off the island. But my last post on AI did draw a tongue-in-cheek(?) comment from Germany (here). We'll see what this one brings. Now that I've heard all the contestants perform at least once, here are my predictions of what will happen. All of my picks have exceptional voices and some personality, but I'll briefly note their weaknesses. FWIW, my record is 3-1 in AI predictions.
1. Final Four: Paris Bennett (stronger in soul/R&B than pop; probably will be judged by some against the very high standard set by Fantasia in that genre), Katharine McPhee (apparently has no dance moves to speak of and appears a little dorky when she tries -- needs to just stick to the mike like Carrie Underwood eventually did), Taylor Hicks (gray haired guy is the "wild" card + has generated tremendous buzz, but looks + acts weird, esp. the body spasms, almost pulled a "Howard Dean meltdown" on last show), and Chris Daughtry (shaved head guy can't win if he sings rock songs -- Bo Bice tried that last year and lost -- needs to perform some pop and softer alternative like Maroon 5).
2. Final Two: Paris Bennett v. Katharine McPhee
3. The Next American Idol: Katharine McPhee
Connecticut, conscience, and Catholic hospitals
Apparently, lawmakers in Connecticut are putting together a bill "that would require all Connecticut hospitals, including the four Roman Catholic hospitals in the state, to provide emergency contraception to rape victims." The news story, and the proposal's supporters who are quoted, speak simply of "contraception," while those speaking for the Catholic hospitals speak in terms of early abortifacients:
The Rev. John Gatzak, director of communications for the Archdiocese of Hartford, said the archdiocese would oppose any legislation requiring hospitals to administer contraceptives in cases where an egg already has been fertilized or ovulation has begun.
The Catholic Church "does believe and always has that human life begins at conception and that human life" at the point of conception "is entitled to all the respect that other human life is entitled to," Gatzak said.
I assume that the First Amendment would not require an exemption from Connecticut's "emergency contraception" mandate (though, perhaps, state law would). Is there any compromise possible? Or, is the Catholic Church simply going to have to give up on running full-service hospitals? And, if the Church were to do this, would that be good for civil society and for the poor?
Political organizations that enjoy 501(c)(3) statuts are prohibited from become involved in campaigns, but there are often reports of activities in particular organizations that appear to cross over the line. This issue has been in the news several times over the last few months as churches on both ends of the political spectrum have been criticized for partisan activities. All Saints Episcopal Church in Pasadena was subject to an audit because of a sermon that raised questions about the war in Iraq. See this post of the story of the audit and a link to the sermon itself. Complaints about two conservative churches in Ohio--Fairfield Christian and Whole Harvest--suggest that the churches' facilities and organization were made available to help Bush and Ohio Republican Kenneth Blackwell. See this post.
In connection with the 2004 campaign, Republican groups contacted churches across the country to request copies of their membership lists to assist with partisan mailings and fundraisings. See this August 2004 Boston Globe article. Republican leaders are again attempting to collect church directories, this time by asking members to gather directories and forward them to party representatives. See this story about the North Carolina Republican effort. By getting members to forward directories to the Party, rather than the tax-exempt churches themselves, the Party hopes to avoid jeoparidizing churches' tax exempt status yet benefit from their ready-made lists of likely conservative supporters. The Democrats indicate that they do not seek church lists--either from churches or members.
The IRS decided to investigate whether charities, including churches, engaged in increasing levels of political activity during the 2004 election season. On February 24th, the IRS reported its findings. See these links for the Executive Summary and Report. A fact sheet provides guidance to 501(c)(3) organizations for the 2006 election season.
The IRS examined a small sample of organizations that had been referred to it for potential violations during the 2004 election campaign. There are more than one million tax exemption organizations, and the report covers only 82 completed cases out of 132 referrals in respect of the 2004 election cycle. The results in those 82 cases, however, are disturbing. About 75% of the 82 examinations found some level of prohibited political activity, and 3 of the 82 cases were so egregious that the IRS recommended revocation of tax exempt status.
The following are some of the types of activities that tax-exempt organizations (including churches) have engaged in:
- distributing printed materials that encourage members to vote for a particular candidate
- endorsing or opposing a particular candidate from the pulpit
- endorsing or opposing a particular candidate on a website
- disseminating voter guides that encourage readers to vote for a particular candidate
- inviting certain candidates to speak at functions
- making cash contributions to a candidate's political campaign.
Churches, of course, have been involved in politics in one way or another throughout the history of this country. They have sometimes acted as a negative force (supporting segregation in the South that I grew up in) and sometimes for the good (therole of the Quakers in fighting the evil institution of slavery).
Economist Robert William Fogel chronicled four "Great Awakenings" of religious and political activity that have come during periods of ethical and p0litical crises. Robert William Fogel, The Fourth Great Awakening and the Future of Egalitarianism (Univ. of Chicago Press 2000). The First, beginning in 1730, helped provide an ideological foundation for the American Revolution by questioning established authority, although revolutionary leaders were less likely to believe in divine revelation than in natural rights. Leaders of the Second Great Awakening in the first half of the nineteenth century "preached that the American mission was to build God's kingdom on earth," leading to various reform movements, including the temperence movement, child labor protections, and abolitionism. Id. The Third Great Awakening (from about 1890 to 1930) reflected a growing schism between fundamentalists and modernists over the new urban centers, increasing labor conflict, and scientific advances such as Darwinism. The new Social Gospel movement saw alievating poverty by favoring labor and redistributing income as the obligation of the state. Id. at 24. The Fourth, Fogel claims, is the political realignment of the late twentieth century when the Moral Majority and Christian Coalition pushed for political restructuring including opposition to abortion, support for prayer in schools, elimination of pronography and reaching out to economic conservatives by pushing tax reductions and smaller government.
The issues identified by Fogel as part of the Fourth Great Awakening have also become closely identified with the Republican Party, creating a close linkage between the party and modern fundamentalists that has brought out voters who might not otherwise have participated in the political process. Bush has encouraged this linkage through his "faith-based initiative," which has permitted more religious groups to accept federal funding to carry out social programs. And various churches have been seen as closely tied to the Republican Party through the use of buzz issues like opposition to gay marriage.
The question is how this close identification between political party, political movements, and religious positions can work in today's world. Tax exempt organizations are generally permitted to engage in issue advocacy, so long as it does not cross the line into support for particular candidacies. But that is not an easy line to draw, and will likely continue to generate controversy and require close monitoring of the most active congregations. Yet close monitoring of religious groups runs counter to the most basic religious freedom guaranteed by the Constitution.
It is not clear that there is a good solution. To comply with the law, churches need to be very careful to limit their role to educating about the issues and not about the candidates. But to carry out their ethical duties, churches on both the left and the right may feel a great need to directly discuss the individuals who are seeking members' votes and how they interpret the most significant issues in political campaigns.
Saturday, February 25, 2006
One of the hazards (and wonders) of the Sunday Times is that you get to read about events that have not yet occurred as of writing (the paper puts some of its Sunday sections to bed on Thursday), as early as Saturday, when the early edition comes out. I certainly hope this event comes off splendidly, and my congratulations to the happy couple (and both of their rabbis! Did you really need the spare? Did you splurge and get a couple of extra cantors?).
I'm working on a review of Appiah's new book, "Cosmopolitanism." Here's how it starts:
When I was in graduate school, it was radical to be a cosmopolitan. Not only did cosmopolitans have a very capacious view of the duties we all owe to strangers in foreign lands, but they also suggested that our affinities and affections for our families, friends, and fellow countrypeople likely stand in need of substantial justification: all human beings are entitled to the same concern and respect and we are only being parochial when we construct theories of distributive justice that exclude classes of persons and peoples. Ultimately, many cosmopolitans had to accommodate what seems like a psychological imperative, that we have duties first and foremost to our intimates; for what use is a moral system that is wholly out of touch with the people it purports to guide? But even those who made concessions of this kind insisted that our duties to strangers were very substantial – and that we perennially fail to be “citizens of the world.”
I never could sign onto the cosmopolitan agenda in full – especially not the versions that endorsed the dissolution of all states to form one world government – but I appreciated the severity and importance of the set of views that comprised moral and political cosmopolitanism. Those old-school, hard-core cosmopolitans demanded a lot from our sympathetic imaginations in getting us to feel the pain of distant others and from our wallets in suggesting that our moral and political duties required very substantial financial commitments to alleviate that distant pain. But those demands, however extreme they seemed at the time, contributed to a thorough-going sentimental education that really has succeeded in part in changing the way many people – political theorists, political philosophers, and citizens of many nations – think about obligations to strangers. In 1971, the late John Rawls published A Theory of Justice, the treatise of liberalism credited with getting people to think about how to distribute justice within a state. In some measure, the tide has turned to focus on the project of thinking about global distributive justice among nations. And it could not have been done without the hard-core cosmopolitans that demanded a shift from pursuing justice in the nation-state.
Enter Professor Kwame Anthony Appiah with Cosmopolitanism: Ethics in a World of Strangers, committed to de-fanging cosmopolitanism.
More when the piece is done. But comments as I think through the book are welcome.
what we need: a poll or study of spammers
Although I receive lots of spam everyday, I'm so oblivious to it. Most are filtered; of the ones that are not, I usually avoid even opening them. I'm sure millions of others do the same.
My question then is this: why do the spammers actually keep on spamming? OK, the simple answer is that, thus far, it is free advertising. But advertising for what? I can't believe that all of the spammers out there have businesses or ventures that can stay afloat. Some spam includes, e.g., silly pleas of some desperate spammers to help them in some way. Moreover, even the halfway legit businesses that spam must have little, if not negligible, return on their spam. I'm just guessing, but I'd think spam advertising is the least effective form of advertising out there.
But I could be wrong. And that's why I think someone needs to poll or study the spammers themselves (presumably they can be reached from the spam they send). PEW did a survey of the public and found -- big surprise -- the public hates it. I think more helpful would be a study analyzing the economics and market of spammers. Maybe such a study exists, but I'm not aware of one.
In the midst of the news about South Dakota's challenge to Roe v. Wade, I've seen several references to various states' laws that do not immediately outright ban abortion (since Roe says that's unconstitutional) but that say such a ban will come into force if Roe should be overturned.
I'd not heard of this phenomenon before, and it already has a name in the popular press -- "trigger laws." A quick Lexis law review search didn't turn up the phrase.
I know there's some debate about what it actually means for the Supreme Court to "strike down" a law. What literally happens, I think, apart from an opinion of the court discussing a doomed law, is an order ultimately indicating whether a trial court was right to enjoin (or not) enforcement of the law -- i.e. to order the relevant US Government actors/agencies not to apply it, since it's been found unconstitutional.
That leaves open the question of what would happen if the Court later changes its mind, or if the factual predicates to a given Constitutional judgment themselves change. Does an enjoined law remain on the books, enforceable again as soon as the constitutional judgment changes? Or is it really "struck down," and brought back to life only if a legislature is willing to pass it (and a governor to sign it) again? (If an attorney general or the police tried to enforce a law previously found unconstitutional, would they be in the same legal position as if they'd tried to enforce a law that hadn't passed?) One article suggests that the Supreme Court has never weighed in on the question, but that lower courts seem to think the judiciary can't actually remove a law from the books, so a change of Constitutional heart in the Court could render previously-passed laws valid again. I think Eugene Volokh is working on something on this topic, but I don't know what he's concluded.
In the meantime, it seems to me that passing a law that from the get-go is unconstitutional, or that says it only takes effect at the time a Constitutional precedent prohibiting it is abandoned, should itself be Constitutionally void. A law that is void should not be allowed to tunnel around the problem by saying it's void until it isn't.
Even apart from the undesireability of allowing legislatures to pass laws that are unconstitutional, I'd think more generally that a law prohibiting an activity but with an effective date of, say, forty years' hence, should fail the rational basis test unless there's some reason to think that people need some period of time to prepare for the law to take effect. Otheriwse today's legislators are controlling tomorrow's subjects (who, if the effective date is far enough ahead, get no vote now) without having to live with the effects themselves -- almost like a legislature trying to control the activities of people in the state next door.
There were dueling protests here in Oxford today, where animal rights are taken very seriously -- reminiscent of the intensity of abortion clinic protests and counter-protests in the U.S. The Thames Valley Police were out in force, keeping the groups separated and filming everyone.
The Thames Valley Police motto is emblazoned on many of the police cars: "Reducing Crime, Disorder, and Fear." I somehow can't imagine that as an American police department motto. In the U.S. the idea is to think of the glass as half full, like the LAPD's 1955 contest-winning "To Protect and to Serve," the Indiana State Police's "Integrity, Service, & Professionalism," or Plainsboro NJ's even-more-general "Commitment to Excellence."
"Reducing Crime, Disorder, and Fear" nicely keeps expectations from becoming unduly raised -- one may still end up fearful or disordered, but the promise is only that it's not as bad as it would be without the police.
Friday, February 24, 2006
DOJ Creates Enron Trial Website
For those of you who can't get enough of Enron, the Department of Justice has created a website for the trial. The site has press releases, witness lists, and .pdfs of government exhibits. The exhibits include company emails, agendas for board meetings, director's notes, and plea agreements. The site is a useful resource and another example of the web providing new levels of access to information.
will your Blackberry go dark?
One of the most anticipated rulings from a district court in a patent case is about to be issued, after oral arguments in the remedy phase were heard today (see here). Judge James R. Spencer will soon decide whether to order a shut down of the Blackberry service provided to millions of people by the Canadian company RIM. RIM/Blackberry has already been found to have infringed the patents of holding company NTP. (Meanwhile, RIM initiated a reexamination of NTP's patents in the Patent Office, which apparently has preliminarily decided that 5 of NTP's patents are invalid. Frankly, I'm not sure that the Patent Office can assert jurisdiction over the issue when the district court still has jurisdiction over the entire matter.)
Based on the little I've heard about Judge Spencer (a no-nonsense kinda judge), I think he'll issue an injunction. But that's just a guess. Sorry, Blackberry owners. It may be time to give up your addiction (see here).
"The Rehnquist Legacy"
Ann Althouse has posted notes and comments about yesterday's conference, sponsored by the Federalist Society, on "The Rehnquist Legacy." She also reviews the lunchtime address delivered by Justice Scalia, in which he questioned the charge, often brought against the Rehnquist Court, of "conservative judicial activism." I participated in the same panel as did Professor Althouse, who provided a characteristically clear and helpful analysis of the Rehnquist Court's federalism cases. (My own remarks were more personal, in the nature of thoughts about clerking for Rehnquist and what I learned from him.)
A few thoughts: (1) The conference focused primarily on federalism and separation-of-powers questions, and so few of the speakers had much to say about the areas where, arguably, Rehnquist's "legacy" seems most significant: constitutional criminal procedure and religious-freedom / church-state relations. (2) Notwithstanding the federalism focus, not much was said about the Dole case, or about (what I take to be) the fact that, for all the buzz, there was never much chance of a "federalism revolution" so long as the Chief's opinion in Dole, rather than Justice O'Connor's dissent, was the law. (3) No one asked Justice Scalia -- after his address in which he re-affirmed his view that original-meaning textualism is the best approach to constitutional interpretation -- about Professor Randy Barnett's charge that the Justice is a "faint-hearted originalist." (4) John McGinnis presented, in a very concise way, his big-picture take on the Rehnquist Court, which he set out a few years ago in the California Law Review. The article -- "Reviving Tocqueville's America: The Supreme Court's New Jurisprudence of Social Discovery" -- in my view, well worth a read. (5) The Walter Dellinger, Ted Olson, Paul Clement was very interesting and entertaining. They should take it on the road.
I particularly enjoyed seeing several of my former students, who are now clerking for federal judges in Milwaukee, at the event.
The O Centro case
Here is a short op-ed of mine about the Court's recent RFRA case, Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal:
. . . [L]ike the Court's decision last year in Cutter v. Wilkinson — which rejected the argument that another religious-accommodations law, the Religious Land Use and Institutionalized Persons Act, was an illegal "establishment" of religion — the ruling in O Centro Espirita was unanimous. True, the justices have been and remain sharply divided in church-state cases involving public displays and government funds; but when it comes to legislative accommodations of religious exercise, they are united in recognizing that the Constitution permits special accommodations of religion and in insisting that accommodations laws secured through the political process should be meaningfully enforced. The fact that the Constitution rarely requires accommodations and exemptions does not and should not mean that they are or should be disfavored. . . .
Thinkers from St. Augustine and Pope Gregory VII to Roger Williams and James Madison have taught us that the "separation of church and state," properly understood, is an important component of religious freedom. That is, the institutional and jurisdictional separation of religious and political authority, the independence of religion from government oversight and control, respect for the freedom of individual conscience, government neutrality with respect to different religious traditions, and a strict rule against formal religious tests for public office — all these "separationist" features of our constitutional order have helped religious faith to thrive in America. Properly understood, the separation of church and state is not an anti-religious ideology, but rather, as John Courtney Murray put it, a "means, a technique, [and] a policy to implement the principle of religious freedom." And, as the Court's decision reminds us, one permissible and praiseworthy way to implement this principle is through popularly enacted, reasonable, and balanced religious-accommodations laws.
Next month I'll be speaking in DC at the Int'l Assoc. of Privacy Professionals. I've participated a bit in privacy debates -- in particular, with interest in how the tools of digital rights management to control intellectual property could be applied to safeguard individual privacy -- but the overall field seems to me to be in stalemate right now. Individuals say they want privacy, but they act in ways that signal otherwise, happy to agree to personal data collection in exchange for a discount at the supermarket. The public has a sort of defeatism about it -- there's an assumption that everything is watched, but that not much can be done about it.
For privacy professionals -- most typically people at private firms whose job is to monitor and enforce compliance with privacy regulations, to avoid PR disasters, and perhaps to be a sort of ombuds for those whose data is gathered -- I wonder how this shakes out. Are they looked at with the same skepticism that an in-house legal team can be viewed, seen as not producing anything material to the firm's bottom line, but able to cause trouble or try to say no to some idea that everyone else likes?
I'd love to know what others think, especially libertarians who I imagine both recoil at gov't restrictions on speech -- one way of describing privacy law -- and who also value individual choice and freedom, which an invasion of privacy can trim back, whether conducted by public or private authorities.
the Daily Index Post (DIP), 2.0
The posts of the day, thus far, are the following:
[next new entry]
If a Daily Index Post existed, DIP would tell people the above posts have been made today, while stay at the TOP of the postings of the blog (unfortunately, b/c blogs don't have DIPs, this post won't remain at the top). Thanks to those who offered suggestions to my earlier post on developing a Daily Index Post for blog software. I agree with those who suggested that using Bloglines or an RSS program might approximate what I want. To me, though, it's still only an approximation, not a full solution to the problem. Although many people might use RSS, I'm guessing that many more do not. (142 subscribe to Prawfs on Bloglines, and lets assume 4x that amount on other RSS programs, that still leaves probably over 1,000 who visit this site, by my rough guess from the Site meter. Some people don't even know what RSS is!) Frankly, I prefer going to the actual websites directly, both for the pleasure of "surfing" and for the enjoyment of seeing the aesthetics of different website designs. (RSS just adds another layer or click through, which I have yet to really like.) With that in mind, I think the DIP is still needed. Someone did suggest some code to implement it, but I'm not sure I'm skilled enough to test it (but I might try on another blog). Thanks!
135 (and Counting) Cheers for the Original Docket
In skimming through this week's new batch of Supreme Court opinions, including Justice Stevens's latest Rooker-Feldman love-in, I realized, much to my chagrin, that I had overlooked the Supreme Court's last decision in January -- its entry of the decree in the critically important case, Alaska v. United States, No. 128 on the Court's original docket, to those of you keeping score at home... (Keith Olbermann fans know the rest).
Okay, I don't actually mean to suggest that the following is a vital development in American jurisprudence:
As between the State of Alaska and the United States, the United States has title to the marine submerged lands underlying the pockets and enclaves of water at issue in counts I and II of the State of Alaska’s amended complaint, which are those marine submerged lands that are more than three geographical miles from every point on the coastline of the mainland or of any individual island of the Alexander Archipelago.
Still, having just decided to add Chapter III of Hart & Wechsler ("The Original Jurisdiction of the Supreme Court") to my syllabus for Federal Courts next fall, it got me wondering: This side of 1978 -- the last time Congress altered the Court's original jurisdiction -- what are some of the most interesting original jurisdiction cases?
[My favorite is below the fold...]
All things being equal, I think my favorite is Justice Souter's opinion in New Jersey v. New York, No. 120 on the original docket, better known (or, at least, it should be better known) as the "Ellis Island" case. It's the New Yorker in me; I can't help it.
Here's the short summary:
An 1834 compact (hereinafter Compact) between the States of New York and New Jersey provided that Ellis Island, then a modest three acres, was part of New York despite its location on New Jersey's side of the States' common boundary. After 1891, when the United States decided to use the Island to receive immigrants, the National Government began placing fill around its shoreline and over the next 42 years added some 24.5 acres to the area of the original Island. The issue in this case is whether New York or New Jersey has sovereign authority over this filled land. We find that New Jersey does.
My runner-up is Virginia v. Maryland, Chief Justice Rehnquist's fascinating (and yet, non-unanimous) historical examination of the "1785 Compact" concerning the boundary, in the Potomac River, between the two Beltway neighbors.
I know -- this is really dorky. Still, other nominations?
Adam Smith, Esq., has some excellent observations on the blurring line between blogs and the MSM, including some very interesting comparative graphics on Internet traffic. Larry Ribstein touches on a similar theme in his amateur journalism post. Larry opines that "[s]elf-expression [of amateur journalism] may evolve into a commercial model for many bloggers, but many others will refuse to be coopted." That line pretty much convinced me that there is no point in labeling Larry a conservative. By the way, Ethan, Dan, Matt, what's our policy on cooption?
Thursday, February 23, 2006
Connectedness -> Conflict?
David Ignatius has written a provocative op-ed about the impact of the Internet on world stability and progressivism. He says that "connectedness" can lead to a bad divide, where elites in developing and/or authoritarian countries can end up plugging in and virtually hanging out with the developed world, no longer being in the mix locally, and thus not tempering, well, ignorance there. For example, he says, during the Shah's Westernized reign, "The Iranian modernizers had lost touch with the masses," paving the way for the revolution. (Hard to blame the Internet for that since the Pahlavi dynasty ended in 1979, but I gather the claim is that the Internet makes losing touch that much easier.)
The other phenomenon he suggests is that the Net enables the stoking of rage thanks to "persistent, real-time stimuli" and a set of online communities where extremists can gather and make each other even more extreme. (A la Cass Sunstein's worries about the Daily We and the limits of group decisionmaking.)
I'm not persuaded. If one looks at a repressive regime with easy Internet access and sees problems arise, the problem isn't the Internet access, it's the regime itself, perhaps often because the regime finds it useful to stoke rage against things other than its shortcomings. The Shah's problem was not that he was too progressive.
One hypothesis: repressive regimes with Internet access fear repercussions from one of two places: masses who want modernity, and masses who don't. For example, China has to worry about a public getting hungry for news instead of propaganda, seeking an expansion of liberal rights. Thus it filters the Internet as much as it can, without making a big deal -- bite but no bark. Saudi Arabia has a regime that fears instability not from its liberal reformers, but from its religious fundamentalists who might seek a theocracy to replace a monarchy. Thus it filters the Internet not very much or well, but makes a big deal -- bark but no bite -- so as to appease conservative elements that worry about the Internet's cultural effect.
For a country that's a democracy or a China, the fears of mob action because it's been separated from the temporizing influence of its elitist upper class seem remote. A Saudi Arabia may have to worry -- but again, in any cases of (un)smart mobs, such as those found in the Danish cartoon controversy, the major factors leading to trouble are the underlying conditions of the regime and its carelessness in stoking flames that can get out of control.
San Francisco Exceptionalism
I usually find San Francisco exceptionalism about as offensive as I find New York exceptionalism. But two new initiatives announced in the papers today really suggest that San Francisco may, after all, become a rather exceptional place to live in the US.
First, thanks to Google, San Francisco may be getting free high-speed (okay, medium speed) wireless internet access. Since that would save me $59.95/month, I welcome the prospect.
Next, San Francisco may be converting its dog waste into a new form of energy. The "poop-to-power" plan is great and all -- but it would really be much better for me if Toyota would make my hybrid run on my dog's waste. The future really looks good.
The peer-review conundrum
Michael Heise over at the ELS blog asks a provocative question that I encourage other readers to answer: “[Do law professors] see (or perceive) shifts in overall law school culture or tenure expectations germane to scholarly publication options[?]. If so, when it comes to decisions about where to place scholarship how are folks assessing such options as traditional student-edited law reviews, faculty-edited peer-reviewed journals (in law or other fields), and university press books?”
It would be interesting to know the answer to this question. I suspect the norms vary pretty dramatically, even among elite schools. For example, publishing in Top 10 law journals generally helps one's career. But schools like Cornell, Northwestern, and Texas are trying to build empirical powerhouses. Thus, insofar as peer-review becomes the preferred outlet at those law schools, I suspect that those expectations will influence the publication norms of the wider legal academy, especially with empirical work.
I had this same question on my mind several months ago when I asked a prominent empiricist (an eminent social scientist who is now on the faculty of a Top 15 law school) whether it was better to publish empirical work in peer-reviewed journals rather than law journals. [I am not naming names because the question was not asked in the context of posting the answer on a blog.] I fully expected to get an answer to the affirmative. But much to my surprise, she/he said that extensive workshopping was as good or better for quality control than the peer-review process. So to his/her mind, student-edited journals were just fine. The burden of quality control was on the author.
I think the issue here comes down to a signaling heuristic: If you get published in JELS or JLS or ALER, then distinguished people in the field said it was good enough to publish. From the perspective of a junior faculty person, that is pretty attractive. There will be a presumption of quality that a negative review in your tenure file is less likely to rebut. That said, it is another matter entirely to believe that the peer-review process catches all significant mistakes. The economics of refereeing a journal article are replete with agency costs, and I have collected anecdotes on this topic over the years. But that is the topic for a separate post.
By the way, PrawfsBlawg alumni Joelle Moreno had some interesting thoughts on this topic a few months ago.
More on Newbie Clerks vs. Old-Timers
Columbia Law professor Tim Wu (another McGill grad! Way to go) weighs in on the Alito clerk hiring discussion with a thoughtful piece in Slate, looking at the issue from a broader and very interesting perspective. Some lengthy excerpts follow, with my thoughts after the jump:
...[M]ost law clerks enter and then exit the Supreme Court without political ambitions. They live vaguely normal lives without ego walls, developing fantasies of appearing on Meet the Press, and the other sad symptoms of Potomac fever.
Yet there are reasons to think that this may be changing. One small sign is a new trend of hiring clerks already trained at the Justice Department's Office of Legal Counsel, and thus usually primed to defend the positions of the Executive Branch. Another is Justice Alito's newest batch of clerks, including clerks of a different kind: They're more like political staffers than law clerks. They're older, dedicated movement conservatives with defined agendas. ....
Who cares? Partisan hysteria is unwarranted and cries of unethical hiring are premature. The real concern isn't that these clerks are idiots or will spend too much time at Federalist Society meetings instead of playing basketball. But if the nature of clerking comes to resemble staffing, it begins to touch on deeper issues of judicial independence—or the independence of all parts of government from party politics. The clerk-versus-staffer question is a tiny part of a larger struggle over whether the judiciary really keeps its own mind over the Constitution—or whether we are approaching something akin to a party system, wherein the party has the ultimate say over what the Constitution means.
....[C]lerks don't usually arrive with a hardened sense of political loyalty in the sense that White House and Congressional staffers do. And since they leave after a year, they cannot become a permanent political force inside the building. Some former law clerks do seek political office or appointments later, but hardly most of them. The youth, inexperience, and even submissiveness of clerks help ensure that it's the justices themselves, and the Supreme Court as an institution, that remain in charge of the Constitution.
For this and other reasons, there is a long though not inevitable propensity for justices, once appointed, to abandon their parties' constitutional positions. ....
Party loyalists hate disloyal justices, and some have fought for decades to ensure that only loyal ones are seated. What party loyalists envision is a system wherein the judiciary, like elected representatives, adheres to the party's vision of the Constitution. And changing the culture of the clerk system is a part of that. At an extreme, you can imagine a transformed future where politically loyal justices—Democrat, Republican, or Mugwump—surround themselves with teams of political staffers to help keep that justice in line with the rest of the party. If things ever go that far, it's indisputable what will happen: It will become the parties' constitutional ideas that matter, not the court's. ....
None of this should be exaggerated. Justice Alito has hired trusted former clerks, and his choices are only for this term. Hopefully the practice of hiring political staffers for clerks will end there. And there is some comfort in knowing that most of the rest of the justices—including the new chief justice—are still hiring the old way: finding nerdy clerks with little political experience, whose fantasies include someday fashioning a better-working ERISA statute.
Ultimately it is true that the Supreme Court, like every part of the U.S. government, has since 1800 or so been politicized to some degree. But the question is, to what degree. If the party demands, and receives, more loyalty than the court itself, you don't really have separation of powers—you have separation of parties. And that's just not the same thing.
[More after the jump...]
It's a fine piece, and my excerpts have eliminated some of the more educational passages. My sense is that by abstracting from the Alito hirings, Wu makes some interesting points about separation of powers, but that some of his factual premises may be unwarranted; that (as I have already argued) his concerns about a "staff"-centered model of clerking are only indirectly related to the question of the length of prior experience of those clerks; that there are other, bureaucratic reasons supporting a turn toward experienced clerks that are also interesting but that go unexplored in his piece; and that his concern over the growth of "separation of parties, not politics" are valid but may be overstated.
To begin, Wu points to a trend of hiring clerks who had trained at the Office of Legal Counsel; to this he might add the trend in favor of hiring clerks who have trained at other elite executive branch legal offices, in particular the Solicitor General's office. Wu worries that such lawyers are, as clerks, "usually primed to defend the positions of the Executive Branch." Perhaps Trevor, who worked at both the SG's office and the OLC before clerking for Justice Ginsburg, will weigh in here; but my sense is that while some clerks who have served in these offices may have (and likely had before entering those offices) a desire to defend executive branch prerogatives, hiring for these entry-level positions is still professionalized and non-partisan often enough that these are simply talented people paying their dues in a tremendously useful experience before joining the Court, and we therefore can't say too much about their views when they leave these jobs. In particular, they may well adapt to serve the client of the moment, and thus cease defending executive prerogatives when they leave the executive branch. To the extent this is true, and for a host of other reasons, we should worry less about whether a clerk's route to the Temple went through a stint at DoJ, and more about maintaining the nonpartisan hiring of young lawyers for many of these staff positions, whether or not they ultimately clerk on the Court.
Second, I think even if Wu is right to be concerned about the rise of a "party system" within the judiciary, not as much turns on whether the Justices hire "older" clerks than younger ones as one might assume (putting ethical issues to one side for a moment). Perhaps he is right to be concerned about the hiring of clerks with "defined agendas, although I assume he would agree that many of the clerks whose profiles involved the liberal, Warren Court-era version of Tinkers-to-Evans-to-Chance -- namely, Bazelon to Brennan to Kennedy -- also potentially fit this profile. But my point is that lots of young lawyers do already have some form of "Potomac fever," at least if we are candid enough to define the term widely enough to acknowledge that "defined agendas" may involve serving a wide network of liberal groups and interests within the broader legal and political sphere (e.g., NOW, the Inc. Fund, legal work for the Democratic Party, Sen. Clinton, and so forth) and not just serving the party in power through the usual official channels. And those agendas, as I've said, may be as evident from a list of cues on a short resume as they are from a longer resume. I don't mean here to contest Wu's point, but merely to suggest that the "party system" can happen whether or not the clerks serving the "staffer" role are fresh or experienced; it turns on their agendas and the Justices' and clerks' own perception of the clerks' roles, not on their length of tenure in other jobs.
I do disagree, though, that we should worry less about a "staffer" model with younger clerks because they "don't usually arrive with a hardened sense of political loyalty," and that their youth and similar factors "help ensure that it's the justices themselves, and the Supreme Court as an institution, that remain in charge of the Constitution. I have three reasons for this. First, inexperience may be a double-edged sword here; it may mean that they have less political loyalty, but it also may mean that, untempered by inexperience and influenced by partisans they have known, they arrive at the Court with little more than "political loyalty," and an inadequate sense of the reasons why left-vs.-right is not a sufficiently useful tool in thinking about and doing the work of the Court. It certainly means that, unarmed with the perspective that "this, too, shall pass," they are as or more likely to treat any set of ideological or political disputes on the Court (the 88-89 Term, Bush v. Gore, etc.) as apocalyptic, high-stakes battles. Precisely because they "cannot become a permanent political force within the building," they may be more motivated to act politically during their short stay on First Street. Second, I think Wu understates the degree to which the Justices are perfectly capable of reining in their clerks, if they so choose, whether those clerks are newbies or old hands. The Justices generally are far more experienced than either of these groups, and are not weaklings. If they choose to hire individuals with political agendas, they can easily do so, whether those individuals are fresh out of law school (give or take a year or two) or ten years out; if they want to police their clerks' political tendencies and assert their primacy within chambers, they can do so, whether their underlings are experienced or inexperienced. Third, although it is not essential to his point, I want to call attention to and disagree with the highly contestable claim that subtly makes its way into the paragraph I've excerpted above: that the Supreme Court as an institution is "in charge of the Constitution." Not so fast. The Court is in charge of interpreting the Constitution in legal disputes, and its interpretations may well bind the other branches. But whether or not the Court is the ultimate, authoritative interpreter of the Constitution (and we should not assume it is without more work and thought), it shares the duty of being "in charge of the Constitution" with two other branches of the government and "We the People."
Again, I have not disgreed with Wu's concern that we may be seeing a rise of a "party" model of law clerking. But whether we are or not depends very much on the will of the Justices and the kinds of law clerks they hire (that is, how "political" these clerks are), and very little turns on how experienced the clerks they hire happen to be.
So, if not for reasons of "party" in a Van Buren sense (read the whole article), why else might we be seeing a rise of experienced clerks? One possibility Wu does not explore is discussed in various places by Richard Posner, especially in his book on the federal courts, and that is that legal practice as a whole, and the judiciary especially, has become increasingly bureaucratized. The traditional trial is now a quaint image of the courts; rather, they are vehicles for the mass processing, generally through a paper process, of vast numbers of disputes, in which courts and lawyers so arrange cases as to move them toward disposition -- dismissal, settlement, or, occasionally, trial. The workload of the courts has risen significantly, and while the Supreme Court itself regulates its docket strictly, it still deals with multiple demands on its time (not limited to cert. petitions and the extensive drain on time represented by capital cases), and in any event chooses to labor over longer opinions, which are time-consuming both in their drafting and in negotiating their final shape between chambers. Between this, and the fact that judges increasingly delegate their opinion-drafting responsibilities to law clerks, a significant agency problem arises; how well can the judge or Justice monitor the performance of the agent? Surely one valid response to this bureaucratic problem is to hire more experienced and proven lawyers, who have demonstrated their ability to handle the tasks required, and who may have additional expertise in the vagaries of constitutional and regulatory law. Surely there is less reason to worry about the knowledge and skills of someone who has encountered some constitutional issue at the OLC or the SG's office than someone whose experience is limited to a couple of law school classes and a one-year lower court clerkship; so it makes sense to prefer delegating opinion-writing tasks to the former individual, not the latter. I grant that another agency problem arises -- that these experienced clerks, perhaps unlike the inexperienced ones, will then have greater agency slack and greater ability to exploit that agency slack to advance an ideological agenda. I can't resolve that dilemma here. All I want to point out is that the increasingly bureaucratized nature of the federal (and state) courts may itself explain the rise of law clerks with prior experience at DoJ or elsewhere in a way that has nothing to do with the rise of "party."
Finally, I find Wu's discussion of the "separation of parties, not powers" thesis, discussed in this wonderful paper by Levinson and Pildes, fascinating. I'm working on a paper addressing this argument, largely from the standpoint of behavioral analysis, organizational theory, and identity theory. I find the argument compelling, although I don't buy Wu's argument that we really have seen its emergence on the Court as an institution, or that we should be focusing more on the clerk level than the Justices' level. Even if he were right to see its specter on the Court, though, and even if we were to shift our focus to the other two branches, I think this argument is still overstated. Although much is written about the current Congress's submission to the administration, and much of this writing has pinned it on questions of party, in recent weeks we have also seen increasing congressional independence from and defiance of the President, and it seems to me that to the extent the President asserts his authority in a way that cuts at congressional prerogatives, we will see an increasing desire on the part of the members of Congress to argue from an institutional perspective in defense of Congress's constitutional role, regardless of party affiliation. Similarly, much of the history of the Court in the last ten years, on one reading at least, has been one in which the Court increasingly and aggressively asserts itself as an institution, as against the other branches of government.
I don't mean to tell this story too optimistically, but I do want to suggest that separation of powers is still a vital force, despite the rise of parties. Let the prerogatives of the Court be attacked by other branches directly enough, and even the newest Justice will be motivated to counteract it, no matter how "party"-oriented his clerks are. Despite the complications of the rise of party, it is still the case, as Federalist No. 51 suggests, that as long as ambitions are tethered to particular institutions, at some point "[t]he interest of the man" will be "connected with the constitutional rights of the place." So we should be concerned about the role of parties in maintaining or distorting the separation of powers, but it seems to me institutional jealousy will still ultimately win out -- and that any clerk who argues too vociferously against the constitutional rights of the place where he or she is currently working will have a very unhappy Justice for a boss.
I apologize for the length of the post, although to me it demonstrates that blogs are a place for certain kinds of alternative scholarly dialogue -- dialogues that one might not wish to pursue at the length and with the care of a law review article. Clearly, if Wu can provoke this lengthy rejoinder, his piece is well worth reading, in my view.
what blogs need: DIP, the daily index post
Blogs are great technology, but I think the software needs some upgrading. One thing that I'd like to see that would be particularly useful for a group blog -- a Daily Index Post (I'll call it "DIP" for short) that always stays at the top of the homepage for each day and that automatically takes the titles from every post that day and incorporates them into the Daily Index Post. Each day, the Daily Index Post will regenerate and list the posts for just that day. (Of course, if you didn't need or want a DIP, the program should allow you to shut that function off.) I know there already are indices on blogs, but the DIP would be better because you don't have to scroll anywhere and it will segregate the daily posts.
Maybe JZ or programmers can tell us how easy this would be to implement.
Tax Compliance and Personal Integrity
In our voluntary assessment system of taxation, each taxpayer is responsible for filing a return on which income and deductions are reported correctly and the "bottom line" tax due is determined. An important question for tax administration is how much effort should be devoted to enforcement. Compliance should generally increase with the severity of penalties for inaccurate filings and the likihood of error detection. Penalties are imposed under a number of tax code sections, including provisions governing negligence, accuracy-related penalties, and civil and criminal fraud. Penalties, however, are assessed relatively infrequently, and for some taxpayers the penalty amounts are likely too small to be a sufficient incentive to counter aggressive tax filing.
The overall IRS audit rate is less than 2%, and many of those audits are "paper" audits rather than face-to-face ones. Most tax experts assume, therefore, that some taxpayers will take more aggressive positions in filing their returns than they might otherwise because of the low probability of audit. Even if a return is audited, IRS agents may not discover the erroneous item. Thus, the odds of winning the "audit lottery" are pretty good. It requires something more than the fear of penalties on audit to encourage taxpayers to comply with the self-assessment requirement.
Most commentators assume that taxpayers will comply when they believe other people are also complying, and will tend to cheat more when they believe other people are cheating. The attitudes of taxpayers towards tax cheating are therefore important.
Since 1999, the Internal Revenue Service Oversight Board (IRSOB), created by the IRS Restructuring and Reform Act of 1998, has conducted taxpayer surveys to assess taxpayer views on tax compliance. This week, the IRSOB released the results of its 2005 taxpayer survey. The survey reveals an increasing intolerance of cheating on taxes. Fully 88% of U.S. adults indicate that cheating on taxes is "not at all" acceptable. Even more interestingly, especially for those who question whether compliance with laws is primarily in response to the threat of coercive force, 82% of Americans rank personal integrity as the most important reason for complying with the tax laws. That is a significant increase over the 2004 survey figure of 79% and the 2002 figure of 74% (see chart in survey, linked above, for prior year figures as well as 2005 figures).
These compliance statistics are reassuring in light of the media attention on negative aspects of the tax system. The recent spate of tax shelter controversies in the news, including Enron's use of tax shelters to benefit its financial accounting, see this report, and tax shelter marketing by firms like KPMG, see this report, might be expected to discourage compliance by giving increased visibility to taxpayers that are willing to push the envelope. While groups like Citizens for Tax Justice, Center for Budget and Policy Priorities, and United for a Fair Economy play an important role in informing Americans about long-term fiscal needs and the appropriate distribution of the tax burden, groups like Grover Norquist's Americans for Tax Reform and The Tax Foundation deliver a constant barrage of reports and releases arguing for major changes in the tax system, in particular for elimination of taxes on capital (e.g., estate taxes, capital gains, dividends). The current tax system is frequently vilified as unfair and so riddled with complex and inconsistent positions that compliance is at best extraordinarily difficult. Furthermore, some studies of tax evasion have suggested that many consider tax evasion to be less severe than other white collar crime. One study found that tax professors and tax graduate students were likely to look more forgivingly on tax evasion than MBA graduates. Robert McGee (whose book on the philosophy of taxation and public finance I criticized in an earlier posting on this blog) has conducted a number of mini-empirical studies on the ethics of tax evasion among different populations: he suggests that most consider tax evasion acceptable ("not unethical") in at least some contexts. See, e.g., this report on international business academics and this one on Romanian students.
With all those pressures, one might think that ordinary Americans would treat tax compliance like they treat posted speed limits--as a rule to be broken more than obeyed. It is therefore gratifying to see that Americans hold strong sentiments based on notions of personal integrity favoring tax compliance rather than tax shenanigans.
Wednesday, February 22, 2006
Leib and Paradigm Shifts
As I begin my stint here at PrawfsBlawg, I would like to thank the regular talent for giving me the opportunity to share their terrific forum. I appreciate the invitation.
As noted below, PrawfsBlawg's Ethan Leib was quoted yesterday in a provocative story in the W$J, entitled Law Reviews Adapt to a New Era. Basically, the article questions whether student-run law reviews can stay relevant in an age when (a) important legal issues are forcefully debated in real time on blogs and (b) the most up-to-date scholarship is readily available from SSRN. Citing the flagging relevance of traditional law review scholarship, the author asks the more fundamental question of "what professors should do when they're not teaching."
According to the article, a good use of Ethan’s time is traditional scholarship (with no illusions about wide readership) and an active engagement in "the public conversation about law," presumably through outlets like PrawfsBlawg and the MSM hits it generates.
Perhaps these remarks are further evidence that the blogosphere is shifting the traditional law professor paradigm. In previous years, law professors who were not already famous generally hurt their professional stature by writing for a wide audience. Yet, it is hard to diminish the value of relevance and accessibility when it routinely generates sustained dialogues with students, alumni, other practicing lawyers and the general public. All else equal, it is (way) better to be relevant. Some law schools, such as Illinois, have readily embraced the scholar/blogger model. More, I suspect, will follow.
More after the jump . . .
The W$J query on what professors should do with their nonteaching time, and thoughts on paradigm shifts, reminded me of some of my previous reading on the history of legal education. It might come as a surprise to some that during the first half of the 20th century, legal academics at the nation's elite law schools viewed themselves primarily as social reformers rather than academics who churned out articles. For example, one of the main goals of the sociological jurisprudence movement was the education of a new generation of lawyers who could confront the problems of modern industrial society through immersion in the social sciences. In the late 1920s, the Columbia faculty attempted to rework the traditional law school curriculum by merging it with other relevant disciplines within the university. When the Columbia President resisted these efforts by appointing a law school dean who would block this agenda, several prominent professors resigned in protest.
Of course, some of the disgruntled Columbia faculty eventually found their way to Yale (even in those days, a comfortable safety net) and helped forge that school’s reputation as the center of the legal realist movement. Yet, during the next two decades, curricular reform continued to be a major preoccupation of several prominent realists. E.g., K. Llewellyn, On What s Wrong With So-Called Legal Education, 35 Colum. L. Rev. 651 (1935); J. Frank, A Plea For Lawyer-Schools, 56 Yale L. J. 1303 (1947).
From our present perspective, it is hard to fathom the possibility that an elite law school faculty would come to blows with central administrators over matters of curricular reform. Since the 1920s, the professional payoffs for scholarship versus curricular innovation have become remarkably one-sided. (The economics of this outcome are pretty fascinating.) As we ponder how to allocate our nonteaching time, it is worth asking whether these payoffs are socially optimal.
Force-feeding and Guantánamo
The New York Times has a follow-up story about the force-feeding of prisoners at Guantánamo who have refused to eat. In the first article on Feb. 9, a military spokesperson was quoted as saying that by December 2005, 84 prisoners had started hunger strikes. That number dropped to 4 after some (35 of 41 rather than 84, from the follow-up) were strapped into restraint chairs for a period of hours, tubes were threaded down their noses and into their stomachs, and forced feedings were begun.
The article offered two reasons for wanting to prevent the prisoners from starving themselves:
Some officials said the new actions reflected concern at Guantánamo and the Pentagon that the protests were becoming difficult to control and that the death of one or more prisoners could intensify international criticism of the detention center.
"There is a moral question," the assistant secretary of defense for health affairs, Dr. William Winkenwerder Jr., said in an interview. "Do you allow a person to commit suicide? Or do you take steps to protect their health and preserve their life?"
Dr. Winkenwerder said that after a review of the policy on involuntary feeding last summer Pentagon officials came to the basic conclusion that it was ethical to stop the inmates from killing themselves.
"The objective in any circumstance is to protect and sustain a person's life," he said.
There is something odd about speaking of this in terms similar to those of the debates around Terry Schiavo or Nancy Cruzan. While there is no consensus in the U.S. about the circumstances in which committing suicide (or assisting it) is ethical, there seems to be legal consensus that people of sound mind have a right to refuse medical treatment, including nutrition. For those who are unconscious, the challenge is to determine their wishes and then carry them out -- so for Schiavo, the legal framework (and much of the resulting debate) was around what she would have wanted. For those convinced that Schiavo would have wanted not to fed in her circumstances, the law is clear that the feeding should stop. (Thus many of those in favor of continued feeding tried to establish that that's what she would have wanted -- rather than that her wishes were irrelevant, and that she should be fed no matter what.)
So it is odd to see Dr. Winkenwerder speaking of "sustaining" a person's life as if it were not, say, to avoid a public relations problem or to preserve an intelligence asset, but instead as if it's that very person's interests (rights?) at stake. I understand (but disagree with) the view that those in Guantánamo have no rights at all, but here is a government official appearing to put forward a theory of prisoners' rights as a means of not respecting a prisoner's wishes. (I'm curious what "regular" prisons do when inmates refuse to eat, and how they justify it.)
More after the jump . . .
The follow-up article seems to be for the purpose of reporting that officials confirmed the use of the restraint chairs.
"It was causing problems because some of these hard-core guys were getting worse," General Craddock said at a breakfast meeting with reporters. Explaining the use of the restraint chairs, he added, "The way around that is you have to make sure that purging doesn't happen."
(Is the journalist signaling irony in noting that the interview took place at a "breakfast meeting"?)
The follow-up offers a third reason for the use of the restraint chairs:
Two other Defense Department officials said a decision had been made to try to break the hunger strikes because they were having a disruptive effect and causing stress for the medical staff.
It suggests that the objections to the use of the chairs center around the pain and discomfort of the procedure -- a threading (and unnecessary rethreading?) of the feeding tube for each feeding; "premature" use of the chair for prisoners who aren't eating but aren't yet starving; and rapid feeding causing a pain like a "knife in the stomach."
I remain confused about forced feeding at all, under circumstances in which the prisoners appear to be on track to be held indefinitely. While realizing that war is messy and brutal, and that "lawyers on the battlefield" doesn't make sense, and that certain threats have an implacable quality, it seems wrong to me that a group of people has been rounded up by the government, placed in a holding pen, and that the government wishes to reserve the right to prevent any outside scrutiny or any challenge in the legal system that would involve the production of evidence about the threat posed by the prisoners.
Those supporting the indefinite detentions under these circumstances have been granted visits to GB, can offer tales of how well the prisoners are treated, and they offer mini-biographies of some of the prisoners to demonstrate that they are out to violently attack the U.S. But one wants such matters to be subjected to a genuine truth-finding process rather than claims by officials offered on background -- something that seems right to do under these circumstances without having to believe that the U.S. government is corrupt, or the jailors at GB bad. (On how well the prisoners are treated -- the follow-up says:
General Craddock suggested that the medical staff had indulged the hunger strikers to the point that they had been allowed to choose the color of their feeding tubes.
Sounds more bizarre than indulgent -- like picking what kind of wood one's cross will be made of. (And what to make of reports that inmates have had to listen to a loud, repeated loop of the Meow Mix cat food commercial jingle? A truly Americanized form of torture.)
So I do not share the disdain for lawyers who have stepped forward to try to create some adversarial, in the legal sense, proceedings around this. The force-feeding stories seem to me to highlight the fact that there is a group of people being held indefinitely, perhaps until they die, for which we are to maintain on faith that they deserve it -- and that any who do not are acceptable collateral damage in the war on terror.
Tuesday, February 21, 2006
I cannot help it . . . I am intrigued by, and attracted to, this book . . . and its thesis (and, I admit, its title): "Crunchy-Cons: How Birkenstocked Burkeans, gun-loving organic gardeners, evangelical free-range farmers, hip homeschooling mamas, right-wing nature lovers, and their diverse tribe of countercultural conservatives plan to save America (or at least the Republican Party)." I'm too lazy to home-school, I worry that "organic" is code for "covered with small bits of fecal matter," I hate the smell of Patchouli (which I associate with Birkenstocks); I love Starbucks, Chipotle, and the mass-marketing of good beer; but I think that Dreher is on to something.
Check out also this post over at "Get Religion", which excerpts an essay by George Nash:
In Mr. Dreher’s view, consumer-crazed capitalism makes a fetish of individual choice and, if left unchecked, “tends to pull families and communities apart.” Thus consumerism and conservatism are, for him, incompatible, a fact that mainstream conservatives, he says, simply do not grasp. He warns that capitalism must be reined in by “the moral and spiritual energies of the people.” It is not politics and economics that will save us, he declares. It is adherence to the “eternal moral norms” known as the Permanent Things.
And the most permanent thing of all is God. At the heart of Mr. Dreher’s family-centered crunchy conservatism is an unwavering commitment to religious faith. And not just any religious faith but rigorous, old-fashioned orthodoxy. Only a firm grounding in religious commitment, he believes, can sustain crunchy conservatives in their struggle against the radical individualism and materialism he decries. Nearly all the crunchy cons he interviews are devoutly Christian or orthodox Jewish believers who are deliberately ordering their lives toward the ultimate end of “serving God, not the self” — often at considerable financial sacrifice.
Web services & the 4th Amendment
I've written a reply to Orin Kerr's excellent piece in the Harvard Law Review on digital searches and seizures. Orin takes on the question of how to think about police copying of personal hard drives, and it struck me that no one had really done that comprehensively before -- and now that it's done, it seems already somewhat overtaken by events, since more and more data is stored somewhere else anyway. From what I can tell, the Fourth Amendment tells you you're out of luck if you should want to store your data elsewhere -- a result that doesn't make much sense to me, since we tend to think of our email or documents the same way whether they're on a laptop, made available throughout the household with something like Google Desktop's latest version, or in some kind of secure vault.
The really bad guys can just encrypt everything anyway. For the rest of us -- worrisome. The essay can be found here.
The New York Times has a fun story about student-professor e-mail. I've thought about this a lot, since I get a ton of student e-mail. In the final analysis, I think the benefits far outweigh the costs and would encourage students to keep their questions and insights coming. For some reason, even though each and every one of my students could beat me up if s/he wanted to, I still heard early on that I was unapproachable and intimidating. Now that they all feel free to e-mail me, I suspect that incorrect first impression has been modified in many students' minds. I still wouldn't mind a tad less familiarity -- but what can I do? I am the new kid on the block and I've got to earn their respect; I'm not entitled to it on account of my title alone.
I should clarify one point: I don't mind familiarity about my dog or about personal life matters that students want to discuss. I think of myself as an advisor and mentor -- and my job description requires that the teacher-student relationship extend a bit farther than pure classroom-related discussion. But there are limits that some like to test -- and I haven't yet adjusted to quite where I draw the line. Over time, I suspect I'll get a better sense of what I'm comfortable with and what makes me squirm. But by then I'm likely to be old and bald and students will have no interest in being familiar with me anyway!
Query to Law Journal Book Review Editors
Allow me to send a query out to our many (hopefully) current and former law review editor types, especially those of you who are or were book review/essay editors. Either through personal experience or indirect knowledge, how many of you, and from which journals, take a serious look at book review proposals? And when are you most likely to review them?
I ask for selfish reasons, although I'm sure it's information my co-bloggers and professors who read this blog would find interesting and valuable. My selfish reasons are that I have a proposal for a review of Kenji Yoshino's book Covering, which I've already discussed at substantial length here and here (plus a squib here), and I'd like to see whether there's any interest in the proposal among journal book review editors. Replies to the broader question of who accepts book review proposals and when are welcome in the comments section; needless to say, book review editors who are interested in a copy of the proposal are welcome to contact me by email.
Leib on Lieb
The Wall Street Journal has an article on law reviews with some choice quotes from yours truly. But why can't fact-checkers just make sure my name is spelled correctly? Although my own institution routinely gets my name wrong, I'd have thought the Wall Street Journal would have the resources to fact check!
UPDATE: They tell me they are fixing it. A class act.
Mr. Ciongoli, Meet Mr. Tigar
I've very much appreciated the interesting comments on my previous post on Justice Alito's hiring of his former clerk, Adam Ciongoli. There's an extensive discussion in the comments and I've added some lengthy reactions. Thanks, too, to the folks at National Review Online and SCOTUSblog who linked to us and brought us many new eyeballs yesterday. Stick around, eyeballs! We welcome the additional company.
I asked one question at the bottom of my post that I'd like to ask here in the main body of the blog. Given that some folks still find the Ciongoli hiring troubling, I want to ask them whether they think Justice Brennan was right or wrong to withdraw his offer of a clerkship to Michael Tigar in 1966. Tigar had been a visible activist in his undergraduate days at Berkeley; had demonstrated against the House Un-American Activities Committee and ROTC; had "attended a left-wing youth festival in Helsinki," to quote one description; and was a public supporter of the Cuban revolution. His hiring became the cause of public controversy, up to and including the threat of a congressional hearing on the matter. Brennan had some second thoughts about his choice to withdraw the offer, but described it (in a New Yorker profile in 1990) as a decision to avoid a hiring that might "hurt the institution," given the public profile of the controversy.
So, was Brennan right to withdraw his offer to Tigar? Do the facts as presented meet, more or less, what I'll call the "Rhode criteria" -- namely, that it would have involved hiring, in circumstances in which the Court was surrounded by partisan controversy, someone "perceived to have an ideological agenda?" Should Brennan have withdrawn the offer the second he became aware of these activities, or only if a controversy arose over Tigar that created the "perception" of an "ideological agenda?"
Let me state that I'm not presenting all of the facts surrounding the Tigar incident, nor am I warranting the truth of the facts I've presented, although they are taken from standard accounts. And let me add that I'm not suggesting a one-to-one correspondence between the Ciongoli question and the Tigar question, or that the Rhode criteria offer the only basis for disagreeing with the Ciongoli hiring. With those caveats, I'll let the question stand: do you (especially those of you who criticized the Ciongoli hiring) think Brennan was right to boot Tigar out of his clerkship slot?
New Empirical Legal Studies Blog
Prawfsblawg joins the chorus in welcoming the Empirical Legal Studies Blog (ELS Blog) to the blogosphere. The blog has four editors: Michael Heise and Ted Eisenberg from Cornell, Jason Czarnezki of Marquette, and William Ford of U. Chicago's Bigelow program. The blog's opening post notes:
The ELS blog serves as an online forum to discuss and provide links for emerging empirical legal scholarship, provide conference updates, discuss empirical claims that have emerged in public and political discourse, facilitate discussion for guest empirical scholars and assess current empirical findings and methodologies.
A few noteworthy features:
- An impressive roster of upcoming guest bloggers
- Three upcoming blog forums on empirical topics
At this point, the blog's focus seems oriented toward quantitative analyses of the judicial system. At the same time, the blog editors have given themselves a lot of space for creativity and growth. And given that the editors are co-organizers for the ELS conference this fall, as well as editors of the Journal of Empirical Legal Studies, hopefully the blog will be able to exploit the connections between these institutions.
Best of luck!
Teacher's Manuals to casebooks: how important are they?
When I first started teaching not too long ago, I didn't place too much importance on how good the accompanying teacher's manual was in selecting a casebook. I kinda thought, perhaps foolishly, that I was familiar enough with intellectual property to answer the CB questions myself. Also, to be honest, none of the teacher's manuals (as I recall) really stood out as being comprehensive in coverage -- meaning that few, if any, actually provided answers to all of the questions asked in the casebook (at least on my limited sample).
Flash forward to today: My view on the importance of the Teacher's Manual has completely changed. This year, I selected two "new" casebooks to teach, one in torts, which is outside my usual area of IP. The Teacher's Manual for the torts book is, put simply, amazing. Answers to nearly all questions, and detailed, yet succinct briefs of all the cases. The CB for the other class (an area of IP) is great, but the Teacher's Manual is very, very thin. I manage OK without a detailed Teacher's Manual, but I often find myself wanting one in that class, too, even though I am pretty well versed in the area. It can only help to have the opinions of casebook authors in discussing Notes or Questions in class. And it will save me much time if I don't have to research something in the Notes that seems ambiguous.
Here's one more reason why Teacher's Manuals are better if more detailed: it forces the casebook authors to answer their own questions, some of which are easy but some of which may be difficult. I am writing the teacher's manual for my International IP casebook right now, and, although it is a huge pain in the neck, I know that a detailed Teacher's Manual will help others understand exactly what my coauthor and I were asking. No guessing game, no hiding the ball. A prof can pick and choose what to read in a detailed Manual, but at least there's stuff to pick and choose from.
Covering III: Ask Amy
Having written about Kenji Yoshino's book Covering twice, in sympathetic but critical ways, I guess the subject must be on the brain. I don't know whether Prof. Yoshino reads either this blog or the advice columns, but Monday's Ask Amy had a lovely, textbook example of "covering" demands, if not "passing" demands. The correspondent writes to Amy as follows:
Dear Amy: . . . About two years ago two young gay men moved in across the street. They've taken the ugliest, most run-down property in the neighborhood and remodeled and transformed it into the pride of the street. When it snows, they shovel out my car and are friendly. . . Last month I went out to retrieve my newspaper and watched them kiss each other goodbye and embrace as they each left for work. I was appalled that they would do something like that in plain view of everyone.
I was so disturbed that I spoke to my pastor. He encouraged me to draft a letter telling them how much we appreciate their help but asking them to refrain from that behavior in our neighborhood. . . . Since I delivered it, I've not been able to get them to even engage me in conversation. . . They have made it so uncomfortable for the other neighbors and me by not even acknowledging our presence.
How would you suggest we open communications with them and explain to them that we value their contributions to the neighborhood but will not tolerate watching unnatural and disturbing behavior. - Wondering
Amy's answer, go figure, is that she is not amused. I think I don't need to gild the lily by commenting on the letter (although I do like the bit where it turns out the young men have made the correspondents uncomfortable, and not the other way around). But it is a lovely example in the genre; if Prof. Yoshino is keeping clips of good examples for lectures or other writing, here's one for the files.
Monday, February 20, 2006
Icahn and the Time Inc. Culture
On Friday Carl Icahn announced the end to his bid for a proxy contest against the incumbent leadership at Time Warner. Although he had referred to Time Warner CEO Richard Parsons as a "moron" and had questioned Parsons' integrity, Icahn bowed out for the relatively small price of a $20 billion stock buy-back for all investors and two new independent directors. Given that Icahn had sought to break up the company and had commissioned Lazard to develop a 343-page report to that effect, most have characterized his retreat as a defeat.
For observers of Time Inc. this development comes as no surprise. Throughout its history Time has remained somewhat aloof from the concept of shareholder primacy. Founder Henry Luce said, in words reminiscent of recent remarks by the Google CEO, that the company was "principally a journalistic enterprise" that was "operated in the public interest as well as in the interest of its shareholders." Chancellor Allen famously said in his Paramount v. Time decision that "The mission of the firm is not seen by those involved with it as wholly economic . . . ." And the Paramount v. Time decision itself is a monument to putting a managerial plan above the interests of the shareholders.
Richard Parsons had seen his company go from the newly christened dreadnought of the Internet era into a burning hulk left for scrap on the seven seas. He was left to manage the disaster after the previous class of admirals and captains had jumped screaming into the icy water below. Achieving stability and moving forward was no mean feat. Given these circumstances, it was unlikely that Parsons was going to be intimidated by Icahn's threats. It remains to be seen whether Icahn, Wasserstein, and Lazard are right about the wisdom of splitting up the company. But given its almost singular history, it seems unquestionable that Time Warner was not going to be bullied into choosing that course.
(One final note: Thanks to Melanie Reichenberger and the staff of the Journal of Corporation Law for accepting my article on the AOL Time Warner merger after an exclusive review. The paper will be coming out this fall. If you'd like to read an earlier version of the paper, it's located here.)
Sunday, February 19, 2006
The Libertarian Attack on Egalitarian Values
In my first foray into the Prawfsblawgosphere, I thought it might be interesting to consider in some detail the brand of radical libertarianism that gives near- absolute priority to existing property rights and related liberty rights. One can imagine a radical libertarian asserting that most or all government should be abolished, from public schools to the Center for Disease Control, from the Environmental Protection Agency to the SEC. They might laud gated communities and contractual arbitration without recognizing that each of these icons of free association can, in fact, be viewed as a form of government realized on a local scale. (The wealthy in gated communities establish a local executive with their own security (police), under-the-table cash payment systems for nannies and other workers, border control, and association constitutions. Powerful corporations and employers create and sustain a form of judiciary external to the regular public law system, with their own privately arranged rules determined by pseudo-courts that are unencumbered by public law and precedent.)
Supporters of a radical libertarian approach might also praise contractual "freedom" to labor, by which they would generally support the right of powerful and wealthy corporations and oligarchies to contract with employees to work under severe or difficult conditions, so long as the employees were willing. After all, they might say (in echoes of 'let them eat cake'), employees are not coerced to work, so let them walk away if the contractual conditions of labor don't suit them. Overall, such a radical libertarian approach shows little concern that such private arrangements and the limited institutions they support may be unavailable to, or provide inadequate redress for, people of color, the poor, or the powerless.
A favorite target of radical libertarians is the Treasury and the federal income tax. To hear proponents tell it, life, liberty and the pursuit of happiness would best materialize in a state of near anarchy. Privatization is cast as God's chosen mechanism for freeing His people; government, as the Satanic evil-doer; and taxation, as Satan's pitchfork. And if there must be government, then they are not beyond eliminating the basic 'one person, one vote' rule of democracy so that those with property may have the biggest say. Robert W. McGee, a quintessential example of this radical libertarian thinking, supports a weighted voting system where "each person would be entitled to one vote for every dollar of taxes paid since the last election" as a fair system that would have the 'advantage' of keeping people who are on welfare off the voting roles. Robert W. McGee, The Philosophy of Taxation and Public Finance (Kluwer Academic Publishers, 2004), at 270.
This anarchic libertarian approach poses considerable danger to America's democratic institutions and, indeed, to America's liberty.
Let's consider, for example, the views espoused by Robert McGee in the book cited above. McGee is a professor in the Andreas School of Business at Barry University who has also written a series of articles on the "ethics of tax evasion."
The recipe for the McGee book is simple. Start with a sloppy writing style that tends to repeat similar paragraphs of text ad nauseum throughout the book. Add conclusory argumentation that relies on singular studies from right-wing think tanks to validate far-reaching conclusions. Give short shrift to a wealth of contradictory data and analyses from other perspectives. Throw in assertions that taxpayers have no moral duty to pay taxes. Id. at 24. Suggest a moral right to evade taxes similar to the asserted "universal" right of secession. Id. at 25. The result is a dogmatic manifesto for reviving nineteenth century perspectives on markets, the environment, labor, and the power of the wealthy.
Take, for example, the analysis of views of taxation within Christian, Judaic, Baha'i and Islamic religious traditions. Id. at 44-74. Although many of these religious faiths find value in taxation as a means of addressing moral obligations of society to care for its members, McGee casts these arguments aside. For instance, he concludes that Jewish recognition of a moral obligation to fund societal costs of caring for the poor is wrong because society "does not exist"--it is merely a linguistic term connoting collectives of individuals and cannot have moral obligations towards its members. Id. at 46.
There is no hint of the literature on institutions or norms, nor any discussion of the possible ways that individual norms and moral values can be transposed into societal norms and obligations. McGee discards the Jewish argument for tax support for societal needs based on his prior assertions that (i) taxation involves coercion of individuals and thus can never be just and (ii) government expenditures for the poor, the sick, and the old are 'special interest' expenditures that can never be legitimate. Id. Although Jewish thought apparently considers the necessary lies that accompany tax evasion themselves morally indefensible, McGee merely counters with his claim that taxation is theft and his assertion that falsifying records to prevent theft is not unethical. Id. at 47.
He then delivers what he considers the coup d'etat. If tax evasion might be justified in the case of non-democratic regimes such as Hitler's Reich and Stalin's Russia, he asserts that evasion is justifiable in respect of any regime and any tax system. The justification for evasion is not the dictatorial nature of the regime, but the notion that taxation itself is per se theft by government. He therefore considers unnecessary the use of legitimate means of protesting taxes within the system--by ballot, political campaigning, open dissent and possible imprisonment. Going to prison is "a rather high price to pay." Id. at 48. He discards the theory of a citizenry's implied consent to a tax system based on the possibility of 'voting with your feet' because of totalitarian regimes where flight may not be possible. He fails to engage critical issues such as the relation between the legitimacy of taxes and the type of regime, totalitarian or democratic, imposing the taxes.
Throughout the book, words are taken at face value, with minimal attempts to define or explain them, to give them scope, or to establish the particular contexts in which they are to be understood. For example, McGee attacks the question of 'just distribution' without ever establishing a foundational concept of justice in general or distributive justice in particular. Id. at 17. The closest he appears to come is a statement that neither opinions nor majority preferences determine justice. Id. at 18.
The word 'fair' is used the way a three-year-old uses it to complain to a parent about another child's actions--no analysis, just assertion based on a focus on self. Government construction of a bridge in Oregon with tax revenues collected from people across the country who may or may not ever use the bridge is "unfair." Id. at 174. Progressive distribution of the tax burden is "grossly unfair." McGee neither provides a theory of fundamental fairness nor mentions philosophers such as John Rawls or economists such as Amartya Sen who have made strong arguments, since at least 1971, for resource distributions directed towards a more egalitarian society. See, e.g., John Rawls, A Theory of Justice (1971); Amartya Sen, Poverty and Famine (1971).
McGee's theoretical foundation rests on a presumed priority of property rights: a person has an inherent right to control whatever property he possesses and to dispose of it as he voluntarily chooses. Based on this blindered emphasis on 'primordial' property and related liberty rights, McGee views people (or entities) as having a similar ownership interest in any pre-tax profits or income that they 'earn.' Accordingly,"there is no such thing as a just tax." McGee, supra, at 37. Taxation is merely governmental theft, and any obligation to comply with tax law is questionable, since taxes are merely a coerced taking of property to which the taxpayer is entitled. Although McGee uses the term 'taking,' he does not bother to provide even a summary explanation of either Takings jurisprudence or the lack of a conflict between the Takings Clause and the Sixteenth Amendment's authorization of a federal income tax. See, e.g., id. at 17 and 17, n.11.
Exploring potential justifications for a governmental tax claim, McGee first aggregates conclusory consequentialist arguments against any duty to pay taxes. He claims, for example, that elimination of taxation would result in less theft, more justice, a smaller government, religious freedom, freedom for pacifists fom supporting wars, and freedom for consumers through the elimination of protectionist legislation. While some of those consequences are likely, others are not so clear. Governments would generally shrink with less tax revenue, but borrowing or other means of funding could compensate. Consumer protection groups would argue that removal of government regulations would leave consumers at the mercy of powerful corporations, not free them to purchase as they wish.
McGee concludes, however, by discounting the utilitarian analysis in favor of a property-rights based libertarian argument: taxation is theft because it violates rights because all that one earns is one's sole property. Id. at 26.
McGee does purport to assess two widely used concepts of tax fairness (ability to pay and benefits received) from utilitarian and rights-based perspectives, but he does so at a very generalized level. He condemns the ability-to-pay rationale for taxation as both inefficient and unethical. Id. at 113. He asserts that progressivity destroys incentives to work, leads to leisure substitution, decreases risk taking, causes deadweight loss to the system through exploitation of loopholes that require costly administration, and increases animosity between rich and poor. While the cost of enforcement is real, each of the other purported negatives of progressive taxes is speculative.
He ultimately relies on Kant's categorical imperative to claim that the ability-to-pay rationale leads to the exploitation of the wealthy for the benefit of the poor. Id. at 113. Note, however, that this view of rights depends on the initial state from which rights are assessed, something nowhere addressed. Compare Rawls' concept of a hypothetical initial state from which determinations of fairness can be made, termed a "veil of ignorance." Rawls, supra, at 11, 17, 118-23. Surely it is not theft, even in a system of strong property rights, when government takes something that is not owned by a current holder in order to restore it to the rightful owner. A libertarian rights-based theory ought at least attempt to explain conflicting claims of ownership, including the viability of tax transfers that compensate Native Americans for loss of their property.
Furthermore, commentators such as Liam Murphy and Thomas Nagel have argued against the anti-government presumption in favor of retention of reousrces acquired in the market typically put forth by "unreflective" libertarians: they note that the amount that a person has earned cannot be determined independently of the legal institutions and tax system applicable to the person's activities. See Liam Murphy & Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford Univ. Press 2002), at 15, 5, and 8. Under this approach, a property right in earned income applies to after-tax income, not pre-tax profits. Society has a claim against a portion of the profits, because it makes the acquisition and possession of additional property possible by establishing a stable economic context governed by the rule of law based on appropriately developed concepts of individual and group rights and obligations.
Frank H. Knight, one of the founders of the Chicago School of Economics, was clear that economic analysis, from Adam Smith on down, should not be viewed as "doctrinaire advoca[cy] of a hands-off policy by governments" but rather must recognize the way that social institutions empower individual achievement. See, e.g., Frank H. Knight, On the History and Method of Economics (Univ. of Chicago Press, 1956), at 9.
Moreover, an egalitarian understanding of distributive justice offers a strong but distinct rights-based approach, in which the rights and obligations that matter most--encompassing at least the right to equal respect, equal treatment, equal opportunity, and equal initial access to economic resources--are necessarily at odds with the preeminent property and inheritance rights asserted by libertarians. McGee does not even pretend to deal with contemporary arguments from distributive justice. He merely asserts that progressive taxation represents an "inherent injustice." McGee, supra, at 114.
Although McGee explicitly states in more than one place that all current governmental functions should be private, see, e.g., id. at 58 and n.19, he does suggest that utilitarianism (in the form of Kaldor-Hicks cost-benefit analysis) provides some support for a benefits-received theory of taxation based on the quid pro quo of services received for taxes paid. This is deemed fairer "because it is based on equity rather than exploitation." Id. at 37. Presumably he is asserting some form of horizontal equity, though there is no attempt to make clear how that concept fits in his overall view of government and taxes.
McGee ultimately concludes that any taxation is necessarily an "extraction of money by force," so that the only appropriate means for financing government is through voluntary user fees, lotteries, or charity. Id. at 122. Given this approach, it is unsurpising that he considers tax evasion as likely not unethical, and penalizing attorneys or accountants who help clients evade taxes as "perpetrating an injustice." Id. at 43. In fact, McGee claims that advisers' promotion of tax evasion is protected under the First Amendment. Id.
Carrying the anti-government principle to its extreme conclusion, McGee sets forth a list of means that might be used to restrain governmental powers of taxation. Included among the bizarre suggestions for restraint mechanisms are an automatic federal government default on its debt once in every generation, id. at 271, and legalized private executions of any politician who pledges not to raise taxes and then raises them, id. at 273. He does not appear to be aware of the harm that periodic governmental defaults would do to the value of individuals' properties, perhaps because he thinks that the mere threat of such a system will lead the government to abstain from debt. Recognizing, however, the severity of his call for political executions, he also suggests a less draconian measure--any acquiescence in raising taxes would result in per se resignation from office or loss of federal pension benefits. Id.
While the support for legalizing murder of any politician that doesn't agree with the anti-tax position of radical libertarians is alarming, an equally jarring section of the book is McGee's discussion of Social Security. He suggests America's guarantee of a minimum income in old age and upon disability be abolished immediately, without any remedy whatsoever for those currently receiving benefits. Id. at 159-60. Social Security is cast as a pure transfer system to unworthy recipients who do not work, without any acknowledgment of the tax-paying history of almost all workers in the country. Id. at 60. The approach demonstrates a callous disregard for the effect on communities or those who depend on benefits as their primary or even sole source of support. His argument, again, is simply that taxation is theft by government of property that every taxpayer earns on its own and has a right to keep inviolate. The fact that a significant percentage of elderly and disabled populations would be left without any income receives no more than a passing murmur of pseudo-sympathy. They are considered mere exploiters or robbers who benefit from government theft by receiving stolen property. Id. at 4. Just as schools in an era of no public funding could ask corporations for support or otherwise depend on the goodwill of the wealthy, the old and disabled could rely on private charity for their survival needs. Id. at 149, 4. In the course of the various allusions to Social Security woven through the book, McGee neglects even the admittedly self-centered arguments for helping the least well-off in society--i.e., that a wealth-center, user-fee society where the wealthy live in enclaves of sanity set apart by their private security forces from the squalor of the rest of humanity would likely threatn the wealthy with death by revolution. Think of the world of the poor portrayed by Charles Dickens.
What is most discouraging about reading a book like this is the realization that it may express a philosophy not unlike that of many of those governing America today. Pity for those less fortunate is hardly present, except for the rare global attention to a crisis such as the tsunami disaster in Asia. The goal of tax policy is relieving the rich, cast as the entrepreneurial class, from the burden of taxation. Accumulated wealth is seen as resulting from skills, acumen and overall worthiness of the entrepreneur, rather than from the political and economic stability, cultural diversity, and human capital available to help the entrepreneur's enterprise because of the legal institutional framework within which the enterprise is defined and shaped. The enormous power provided by inherited wealth is disregarded. Opposing positions are slighted, misrepresented, or simply condemned as supporting parasitical systems that fleece the wealthy. See, e.g., id. at 58, 105, 115. The worst aspects of a profits-at-all-costs culture are elevated to central focus, and the best aspects of American caring, cooperation and community are made irrelevant.
Under a regime directed by this sort of philosophy, the loss of an endangered species may be viewed as vaguely lamentable, but certainly not worth interfering in any way with the rolling market juggernaut driven by wealthy multi-national corporations. The loss of pristine wilderness areas may be sad for those who in the future cannot even imagine them, but the snowballing wealth accumulation of current oligarchies comes first. In this view, government is bad when it brings the resources of the entire community to bear on the survival needs of a few and the overall peace and prosperity of society in general, and good even when it permits a distorted concept of ownership to empower itself at the expense of the downtrodden or the greater public interest.
The society this view would establish bears uncanny resemblance to pre-New Deal, pre-progressive era America going back as far as the Industrial Revolution, when children labored for hours on end in unhealthy factories, women were locked into death chambers for the benefit of shirtwaist company managers who didn't want their workers taking costly potty breaks, and company owners hired thugs to protect their property by teaching laborers to toe the line.
Nothing here suggests an educated nation at the beginning of the twenty-first century, when incredible wealth, technological progress, and enhanced information about the world at large should make it possible, perhaps for the first time in human history, for us to work together to end poverty and deprivation.
Law Clerks -- Now With Extra Seasoning!
Here's Adam Liptak at the Times with an article about Justice Alito's hiring of Adam Ciongoli, a former Alito clerk, as one of his new clerks on the High Court. Ciongoli dropped his significant position at Time Warner to take the clerkship. Before that, he was a counselor to AG Ashcroft and, according to Tony Mauro, "one of the architects of the Bush administration's post-9/11 anti-terror legal strategy." (Liptak, incidentally, parrots this phrase almost exactly, calling Ciongoli "an architect of the Bush administration's legal strategy after the Sept. 11, 2001, attacks." There probably aren't too many ways to say this, but it seems as if the phrase stuck in Liptak's head a little too much.)
Liptak rounds up various bloviators to comment on the hiring. I found especially interesting the comment of Stanford legal ethics expert Deborah Rhode, who told Liptak, "It really indicates a lapse in judgment. . . . I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."
Sorry, I can't agree. [more after the jump]
It's not that there's nothing to Rhode's complaint. If we value the appearance of disinterestedness on the bench and among the judges' helpers, then naturally we might look askance at someone with a clear commitment to some side or another on various debates. One assumes that Prof. Rhode agrees that if Justice Breyer tomorrow hired someone with years of high-level experience at NOW's legal arm (of which she is vice-chair of the board of directors) or the NAACP Inc. Fund, that might attract attention too (and, I dare say, as much or more venom among some sectors of the commentariat).
But, first of all, it's not clear why the "partisan" nature of the confirmation hearings is relevant here. Most Supreme Court nominations these days are partisan. Even the Roberts nomination, which was largely a coronation, and the Miers nomination, which was largely an insurrection, on both sides of the aisles, both sounded in partisanship -- largely as a result of efforts by groups such as NOW, and their counterparts on the right, who correctly see little strategic value in holding confirmation hearings in a quiet and nonpartisan environment. But why pin that on the Justice? To be sure, Presidents may be nominating more partisan Justices; but the environment surrounding their nominations and confirmations is little or none of their doing, and I'm not sure why they should feel constrained by the political atmospherics that are others' bread and butter and none of the Justices' proper business. Second, while I have no particular reason to doubt that Ciongoli has an ideological agenda, I also see no reason to perceive him as having an ideological agenda, save for Rhode's self-evident invitation for us to perceive him in this way.
Then, too, there is an air of unreality about the whole criticism, because it suggests Ciongoli's long partisan experience (if we so describe his work for Ashcroft) makes him worse suited for the job of law clerk than an unstained, inexperienced juvie, a couple of years out of law school and with only a couple of clerkships under her belt. Liptak's article does not suggest the value of having more experienced law clerks, but Mauro's does, a little. We might add to the few observations there about the value of having a trusted clerk that there is something worthwhile in having an experienced one. Most law clerks come to the Court with only a couple of law firm summers under their belt and one or at most two years in appellate clerkships, which are a good but decidedly incomplete and distorted place to learn about the law, either in its details or as a whole. I think there is much to be said for having law clerks who have experienced a couple of years of practice before coming to the Court.
That question need not be resolved here, for what I want to focus on is the air of unreality about suggesting that a person with a long partisan record is more likely to have an "ideological agenda" than someone with a short or non-existent record. My sense is that whether or not one has an agenda that is likely to distort one's work as a law clerk depends on character traits having nothing to do with length of tenure, and everything to do with whether one sees the courts, along with everything else, as a proper site for fighting out a perceived political and jurisprudential war. Some people just are that way, and some just aren't. Indeed, experience might be more valuable here. Having been seasoned by experience, and met a variety of lawyers, Ciongoli might well be more able to appreciate the limited role of the law clerk, and more humble about the nature of the judicial enterprise, than a law clerk whose only experience was one year in the chambers of an appellate court judge -- especially if that judge is himself or herself a partisan warrior.
Furthermore, if having experience in a seemingly partisan position is evidence of and leads to "perceptions" of an ideological agenda, it is just a fallacy to suggest Ciongoli is really that differently situated from many of the law clerks who enter their work on the Court only a couple of years after law school. Take OT 2005 O'Connor clerk Amy Kapczynski, who, although only a 2003 grad, had found time to work with "Medecins Sans Frontieres, ACLU Women's Right Project, East Bay Community Law Project, Lawyers Collective, HIV/AIDS Unit, and the Bard College Human Rights Project." I don't mean to single her out. I just want to point out that judges or members of the public who are inclined to look for evidence of an ideological agenda can find one even in students who are not that far out of law school, but who have already formed their links with the political and jurisprudential left or right.
And of course there are still other markers: Supreme Court clerks often come from feeder judges who may have their own ideological reputations, and who may make efforts to hire ideologically sympathetic clerks. Did many conservative law clerks come out of the Bazelon chambers? Or many liberals from (to take the 11th Circuit as an example; I don't know whether he's fed anyone to the Court) the Edmondson chambers? These markers are very imperfect, but together they make the point that Ciongoli's experience may be different in extent from that of most law clerks, but it is not necessarily different in kind.
Justices could of course look for clerks with utterly clean and uncontroversial records (like mine! I'm still available! Yoo-hoo!), but they need not, and I'm not sure they ought to. I doubt Rhode thinks they ought to either. So we are left where we always are, with the observation that what really counts is whether the law clerks have the integrity to do their job in a reasonably disinterested fashion, and whether the Justices have the integrity to make sure they do. (I interpose the word "reasonably" because there is room for disagreement about exactly what is required here. At the least, I assume it means that clerks should only aim to advance a chambers agenda, rather than a private agenda or a personal political agenda.) The most I think we can say about the Ciongoli hiring, in this light, is what Professor Rotunda says in the Liptak article: that hiring someone with such a long record may be "just asking for problems that are unnecessary." But against that concern must be balanced the virtues of having law clerks with genuine legal experience, and the practical wisdom that comes with it, and on balance I think experience wins out. Certainly, pace Rhode, experience ought to be no more reason for fearing an "ideological agenda," given the often evidently partisan records of even the most inexperienced of clerks, and the very fact that their partisanship may not yet have been tempered by experience.
Thanks much to Dave Fagundes and Adil Haque, who have been contributing many excellent posts and comments the last few weeks. This week Linda Beale from Illinois and Bill Henderson from Indiana will be joining us for the next few weeks.
Thanks and farewell
Well, my time here has come to an end. It’s been great to be part of the blog for the past few weeks (and a nice distraction from grading student memos). Thanks much to all the PrawfsBlawg crew for having me, and in particular to Dan for generously letting me stick around for a bonus week.
The Littlest Politicians
David Leonhardt has a piece in the New York Times, "Children, The Littlest Politicians," contending (and citing evidence from Europe) that "[h]aving a son tends to make parents more conservative, it appears, while a daughter makes them more liberal. The parental has become the political." Why is this?
In small ways, having a daughter seems to make men think a little bit more like women when it comes to economic considerations like health care — and to make women focus even more on those issues. Democrats pushed for the Family and Medical Leave Act over Republican objections, for example, and more voters agree with Democratic positions on health care.
[One reason why parents of boys become more conservative] might be that men work longer hours and earn more money than women, giving the parents of boys reason to want lower taxes. Men also tend to prefer that individuals make decisions, a view that fits with Republican beliefs, while women prefer community solutions.
Or, another theory:
Matthew Dowd, a Republican strategist, adds another possibility: Many voters are influenced by their friends. Mr. Dowd speculates, for example, that parents of boys spend more time fishing and end up surrounded by Republicans.
Thinking back to arguments I used to have with friends and family about the death penalty, and to claims about how my opposition to capital punishment would evaporate "once [I had] daughters," I would have expected the research to point in the other direction. And maybe it will. In particular, maybe the salience in the United States of crime-and-punishment / law-and-order issues will lead to different results than those discussed in the piece.
The "God Genome"
THE question of the place of science in human life is not a scientific question. It is a philosophical question. Scientism, the view that science can explain all human conditions and expressions, mental as well as physical, is a superstition, one of the dominant superstitions of our day; and it is not an insult to science to say so. For a sorry instance of present-day scientism, it would be hard to improve on Daniel C. Dennett's book. "Breaking the Spell" is a work of considerable historical interest, because it is a merry anthology of contemporary superstitions.
The orthodoxies of evolutionary psychology are all here, its tiresome way of roaming widely but never leaving its house, its legendary curiosity that somehow always discovers the same thing. The excited materialism of American society — I refer not to the American creed of shopping, according to which a person's qualities may be known by a person's brands, but more ominously to the adoption by American culture of biological, economic and technological ways of describing the purposes of human existence — abounds in Dennett's usefully uninhibited pages. And Dennett's book is also a document of the intellectual havoc of our infamous polarization, with its widespread and deeply damaging assumption that the most extreme statement of an idea is its most genuine statement. Dennett lives in a world in which you must believe in the grossest biologism or in the grossest theism, in a purely naturalistic understanding of religion or in intelligent design, in the omniscience of a white man with a long beard in 19th-century England or in the omniscience of a white man with a long beard in the sky.
In his own opinion, Dennett is a hero. He is in the business of emancipation, and he reveres himself for it. "By asking for an accounting of the pros and cons of religion, I risk getting poked in the nose or worse," he declares, "and yet I persist." Giordano Bruno, with tenure at Tufts! He wonders whether religious people "will have the intellectual honesty and courage to read this book through." If you disagree with what Dennett says, it is because you fear what he says. Any opposition to his scientistic deflation of religion he triumphantly dismisses as "protectionism." But people who share Dennett's view of the world he calls "brights." Brights are not only intellectually better, they are also ethically better. Did you know that "brights have the lowest divorce rate in the United States, and born-again Christians the highest"? Dennett's own "sacred values" are "democracy, justice, life, love and truth." This rigs things nicely. If you refuse his "impeccably hardheaded and rational ontology," then your sacred values must be tyranny, injustice, death, hatred and falsehood. Dennett is the sort of rationalist who gives reason a bad name; and in a new era of American obscurantism, this is not helpful. . . .
BEFORE there were naturalist superstitions, there were supernaturalist superstitions. The crudities of religious myth are plentiful, and a sickening amount of savagery has been perpetrated in their name. Yet the excesses of naturalism cannot hide behind the excesses of supernaturalism. Or more to the point, the excesses of naturalism cannot live without the excesses of supernaturalism. Dennett actually prefers folk religion to intellectual religion, because it is nearer to the instinctual mire that enchants him. The move "away from concrete anthropomorphism to ever more abstract and depersonalized concepts," or the increasing philosophical sophistication of religion over the centuries, he views only as "strategic belief-maintenance." He cannot conceive of a thoughtful believer. He writes often, and with great indignation, of religion's strictures against doubts and criticisms, when in fact the religious traditions are replete with doubts and criticisms. Dennett is unacquainted with the distinction between fideism and faith. Like many of the fundamentalists whom he despises, he is a literalist in matters of religion.
Check it out!
UPDATE: Professor Brian Leiter objects, here, that Wieseltier's review does not do justice to Dennett's book. Here is an excerpt from the post:
Perhaps it is correct that the "question of the place of science in human life" is a philosophical, not scientific question, though I wish I could be as confident as Mr. Wieseltier as to how we demarcate those matters. But "the view that science can explain all human conditions and expressions, mental as well as physical" is not a "superstition," but a reasonable methodological posture to adopt based on the actual evidence, that is, based on the actual, expanding success of the sciences, and especially, the special sciences, during the last hundred years. One should allow, of course, that some of these explanatory paradigms may fail, and that others, like evolutionary psychology, are at the speculative stage, awaiting the kind of rigorous confirmation (or disconfirmation) characteristic of selectionist hypotheses in evolutionary biology. But no evidence is adduced by Mr. Wieseltier to suggest that Professor Dennett's view is any different than this. Use of the epithet "superstition" simply allows Mr. Wieseltier to avoid discussing the actual methodological posture of Dennett's work, and to omit mention of the reasons why one might reasonably expect scientific explanations for many domains of human phenomena to be worth pursuing.
Saturday, February 18, 2006
The Stealth Revolution, Not
Bruce Ackerman has an essay in the London Review of Books this issue called "The Stealth Revolution, Continued." It purports to be a continuation of his essay "The Art of Stealth," published in the LRB about a year ago today. The thesis of the earlier essay was that Bush was likely to attempt to nominate for the US Supreme Court candidates about whom the public has very little information. Souter was the classic example -- a candidate whose stealthiness ended up resulting in a justice substantially less conservative than the President who appointed him. There was something in the earlier essay that gave liberals hope: GWB might nominate someone "stealth;" Republicans would confirm her; and then the confirmed justice might turn out to be less conservative than the appointing President. There was something unlikely about the prediction then, given the Republicans domination of all three branches of government.
The essay of this week claims that Bush, in fact, "took the path descibed in [Ackerman's] previous essay, and tendered stealth nominees whose public records provided few clues as to future performance." This is not a credible claim, given that Ackerman is analyzing the Roberts and Alito nominations, not the Miers nomination.
As applied to the Miers nomination, the "art of stealth" theme resonates. But I don't think Roberts and Alito can plausibly be thought to be anything other than reliable conservative votes -- and almost everyone realized this by the time of their confirmation.
To be sure, Ackerman is right that we don't know if these guys are going to be "originalists." Neither Roberts nor Alito gave much reason to believe that they would turn out to be strong originalists. And if they do turn out to be Thomas-like originalists, I suppose that was a "stealthy" move: Roberts essentially would have lied about it at his hearings (as Thomas did) -- and Alito would have nicely covered up a central tenet of his judicial philosophy for 15 years on the bench.
Ackerman makes another prediction: the next Supreme Court Justice "will surely be a she." I wonder how he'll massage the facts for his next LRB column if it turns out the prediction is wrong.