Friday, June 30, 2006
Instead of sullying himself further with all the outre DC political gossip garbage, David Lat reports that he'll be leaving Wonkette to head up a new legal gossip blog. Lat promises some details at UTR in the near future. Will Lat's new nickname be "skip"? Stay tuned.
In all seriousness, welcome back to the blawgosphere, Dave, and best of luck with this new adventure.
Call for Papers
Since everyone is thinking of Hamdan and national security these days, you might as well do something productive with that thought. To that end, future guest blogger Bobby Chesney (WFU, law) wants you to know about the AALS Section on National Security Law. Specifically, the Section is sponsoring a competition for
papers on the topic of national security leak prosecutions in connection with
its program at AALS in January. The winning piece will be published in the
Journal of National Security Law and Policy and the author will be included on
the AALS panel itself. The Call for Papers is posted here.
The (Almost) Homeland Security Chief Pleads Guilty
This morning back in my old haunts of Bronx Supreme Court, Bernard Kerik pleaded guilty to two misdemeanor charges for accepting $165,000 worth of remodeling on his apartment from a company attempting to do business with New York City, and for failing to report a $29,000 loan to finance the apartment. That sure was a pretty quick turn around from standing next to the President at a Cabinet nomination to standing next to an attorney in criminal court.
Update: NYC Mayor Michael Bloomberg has removed Kerik's name from Manhattan's jail complex, which Mayor Rudolph Giuliani had re-named in Kerik's honor in 2001.
A couple new blogs!
Thanks to SCOTUSBlog, I just discovered that Georgetown University Law Center's faculty have started a blog (to rival ChicawgoBlawgo?). The GULC blog has some interesting stuff up so far by Mark Tushnet on Hamdan. (And I thought MT was going to HLS; perhaps this a summer swan song.) As far as I know, this is the second law faculty blog out there; and as one contributor to the blog notes, a faculty blog is a particularly good idea in a school as large as GULC, because it enables not only public dissemination of a faculty's intellectual work product, but also the facilitation of internal knowledge-sharing.
The blog of Tushnet the Younger, meanwhile, alerted me to the whereabouts of an erstwhile and future Prawfs guest-blogger, Dave Fagundes (Chicawgo Bigelow). Dave has been off skirmishing among the World Cup fans in Germany, and blogging while yobbing :-) In a prior life, Fagundes was a travel writer, so check out his blog for his typically shrewd apercus on the political culture of soccer.
Farewell to Prawfs
Thanks to the Prawfsblawg crew for inviting me to be a guest here. I've found the comments both edifying and entertaining. And I've certainly learned a lot from co-bloggers...I feel obliged to keep this short just to get out of the way of the con law experts in the wake of Hamdan!
I should be back towards the end of the year...in the meantime, drop by Madisonian.net if you'd like to see some of my musings on IP policy.
Thursday, June 29, 2006
The Insanity Defense in the Court
It's entirely understandable, of course, that the lawblogs are focusing on today's Hamdan case. Following Orin Kerr's lead, though, I thought I'd put in a plug for the Court's other decision, in Clark v. Arizona, in which Justice Souter, for six, refused to constitutionalize the M'Naghten rule and rejected a challenge to Arizona's "Mott rule," according to which evidence about a defendant's mental incapacity is admissible to establish the insanity defense, but not to negate the relevant statute's mens rea requirements. Orin quotes an interesting passage:
[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice. Indeed, the legitimacy of such choice is the more obvious when one considers the interplay of legal concepts of mental illness or deficiency required for an insanity defense, with the medical concepts of mental abnormality that influence the expert opinion testimony by psychologists and psychiatrists commonly introduced to support or contest insanity claims. For medical definitions devised to justify treatment, like legal ones devised to excuse from conventional criminal responsibility, are subject to flux and disagreement. There being such fodder for reasonable debate about what the cognate legal and medical tests should be, due process imposes no single canonical formulation of legal insanity.
I was also intrigued by the Court's discussion of the interplay between the "presumption of innocence" and Arizona's "presumption of sanity," as well as by the discussion of the reasons supporting Arizona's rule. Here's a bit:
Next, there is the potential of mental-disease evidence tomislead jurors (when they are the factfinders) through the power of this kind of evidence to suggest that a defendantsuffering from a recognized mental disease lacks cognitive,moral, volitional, or other capacity, when that may not bea sound conclusion at all. Even when a category of mentaldisease is broadly accepted and the assignment of a defendant’s behavior to that category is uncontroversial, theclassification may suggest something very significantabout a defendant’s capacity, when in fact the classification tells us little or nothing about the ability of the defendant to form mens rea or to exercise the cognitive, moral, or volitional capacities that define legal sanity.
I also note, with some distress, that Justice Souter used the phrase "fraught with considerable peril" (slip op. 36). Similarly, Justice Thomas wrote, concurring in Monday's Beard case, that "judicial scrutiny of prison regulations is an endeavor fraught with peril." Justice Kennedy is, I understand, the new center of power on the Court. Still, I hope this Kennedy-esque "fraught with peril" stuff does not mark the beginning of a trend! (See, e.g., Casey, 505 U.S. at 852 ("fraught with consequences for others")).
More Hamdan at SCOTUSblog
Owing to my (insignificant) involvement in the case, the good folks at SCOTUSblog were kind enough to invite me to participate in their online discussion of today's Hamdan decision, and they've just posted my opening salvo in what I hope proves an interesting exchange. Hopefully, I'm not retracing too much ground, given Marty's thoughts at SCOTUSblog, Jack Balkin's thoughts at Balkinization, and Orin's Justice Kennedy-specific insight over at "the OK."
[Update: I've cross-posted the SCOTUSblog post below the fold.]
One point missing from all of the posts I've seen so far re: the case, though, which is admittedly somewhat self-indulgent (it's a tough job but someone's got to do it), is the kudos that are owed to Neal Katyal and Charlie Swift, the lead civilian and military counsel for Hamdan, respectively, and everyone else who's devoted their time and energy (in most cases pro bono) to this litigation. Regardless of where one comes down on the merits, no one can seriously doubt that Neal, Charlie, and a veritable bevy of other folks deserve thanks for their tireless efforts to raise the level of debate.
After Hamdan: Reclaiming Congressional War Power
I should interpose a caveat from the outset: Although I played a small but recurring role on the legal team for the Petitioner in Hamdan, what follows are my own personal thoughts, and do not in any way represent the position or views of Hamdan or his counsel. This is just me, out on a limb.
With that out of the way, and with my thanks to Tom, Amy, Karl Blanke, and the rest of the SCOTUSBlog crew for the invitation, let me say off the top that what was perhaps the most surprising aspect for me of this morning’s decision in Hamdan is that I wasn’t surprised. Even without the various tea-leaf-reading that has gone on this week, I think anyone who went (or listened) to the argument in the case would have easily predicted the jurisdictional result (on which I hope to have some more to say later), and, if pushed, would probably have guessed the likely result on the merits, as well.
Which is not to say, by any stretch, that there’s nothing of note here. Quite to the contrary. There is every reason to see Hamdan for what it is — an immensely significant reassertion of checks and balances in the war on terrorism, and an unmitigated victory for those who have worried about the erosion of the separation of powers after September 11.
Specifically: Marty Lederman, on this site, and Jack Balkin, over at his eponymous blog, have already sketched out the significance of the Court’s discussion of Common Article 3 of the 1949 Geneva Conventions, and I think they’re both entirely right, and even undersell the ramifications of their analysis. Once Common Article 3 applies to the conflict with al Qaeda, the legal framework within which we analyze the various interrogation and torture allegations changes dramatically, as does the broader issue of the applicability and enforceability of the Geneva Conventions in U.S. courts, and the potential liability of various U.S. officials under the War Crimes Act of 1996, 18 U.S.C. § 2441, for grave violations thereof. Before reading any of what follows, I encourage you to read both of their cogent commentaries. International law has certainly had worse days in the Supreme Court (e.g., yesterday).
But there’s another entirely domestic theme that serves as a powerful undercurrent to Justice Stevens’s decision for the majority (on this point, Justice Kennedy’s concurrence is absolutely unequivocal): the constitutional role for Congress vis-à-vis the war powers. Over at his blog, Orin Kerr has his own preliminary thoughts, to which I’d add the following:
One of the great unanswered questions in the field of constitutional law has always been the extent to which Congress may intrude into/impinge upon/interfere with the President’s war powers. Put another way, to what extent may Congress legislate restrictions on powers the President would otherwise be able to exercise during wartime? Can Congress place geographical or temporal limitations on the scope of a war? Can Congress impose manpower limitations? Can Congress require the troops to adhere to certain standards of humanitarian conduct?
Proponents of a broad executive war power have consistently and vehemently argued that the answer to all of these questions is a resounding “no” — that Congress cannot interfere in any way with the President’s constitutional responsibilities as “Commander in Chief,” and that any such limitation is unconstitutional. We’ve seen variations on this theme in the government’s arguments in the enemy combatant cases, the FISA debate, Snoopgate, etc. In contrast, opponents of such a broad view of presidential power, often relying on the Supreme Court’s routinely overlooked and misunderstood 1804 decision in the wonderfully named “Case of the Flying Fish,” known to the U.S. Reports as Little v. Barreme, emphasize that the Supreme Court has long, if infrequently, recognized Congress’s coordinate role in defining the scope of the war powers. There, because Congress only authorized the interception of vessels in one direction, the Court rejected the government’s authority to act contrariwise.
I’m vastly oversimplifying a complex series of debates, but I think it is safe to say that opponents of a broad, unilateral executive war power received a powerful charge from the majority opinion in Hamdan, which, for the most part implicitly, concludes that the President cannot independently create military commissions such as those at issue here where Congress has itself acted. That is, the crux of the Court’s decision is that Congress hasn’t approved the commissions here at issue, with the mostly unspoken assumption that Congress can so approve, and, indeed, has to, at least where it’s done something. Footnote 23 is one of the only places where the Court makes this point explicit, citing Youngstown for the proposition that, “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” I see this as one of the more important passages in the 177 pages and six opinions produced today, even with the ensuing caveat that “the government did not argue otherwise.”
Don’t get me wrong: I do not mean to take this statement for more than it is worth. To be sure, the Court expressly reserves whether, absent congressional action, the President could nevertheless do exactly what he has done here. And I’ve written elsewhere about the statutory availability of various wide-ranging presidential emergency powers in situations where the country truly faces an immediate crisis. But make no mistake—this decision has the chance to become an important revival of the “lowest ebb” category of presidential power from Justice Jackson’s tripartite test in Youngstown, for the Court assumes a point that is not necessarily obvious—that Congress can constitutionally interpose limitations on the President’s war powers. It says something of itself that this point has been called into question in the half-century since Youngstown, but perhaps no longer. Justice Kennedy put it best in the opening stanzas of his concurrence:
This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of along tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis.
Consider, by way of comparison, the statutes at the heart of the U.S.-citizen enemy combatant cases and the FISA/warrantless surveillance debate, respectively: 18 U.S.C. § 4001(a), and 50 U.S.C. § 1811. Section 4001(a) provides that “[n]o citizen shall be detained or otherwise imprisoned except pursuant to an Act of Congress,” and § 1811 provides that “[n]otwithstanding any other law, the President . . . may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” Both statutes are legislative assertions of restrictions on the war power. In the case of detention, the statute requires some congressional authorization; in the case of FISA, the statute authorizes warrantless surveillance for only 15 days. There is a lot of shorthand here, but the gist is pretty straightforward: Congress, in each case, has placed a limit on what the President can do without legislative approval.
With respect to both statutes, the government has argued that, to the extent they restrict the President’s war powers, they are unconstitutional. Needless to say, I think those arguments took a big hit today, for Hamdan clearly contemplates a role, if not a significant role, for Congress—for the people’s branch—to play in these cases. After Hamdan, arguments that Congress has no authority to legislate the war powers will be much weaker than they were yesterday, and much of the debate will return, I think properly, to what the government as a whole should do in each of the terrorism cases, and not what the President should do unilaterally.
But irrespective of Hamdan’s significance for these other cases, there is a broader reassertion of coordinacy here. The entire premise of the majority opinion is that the President, even during wartime, cannot so quickly and unhesitatingly resort to unilateralism. Emergencies, as Justice Breyer reminds us in his concurrence, may present a different situation, but that’s hardly the issue in Hamdan, nor has it been a major part of any of the other significant post-9/11 legal challenges. After all, it’s been almost five years…
I’ll hopefully have some more to say later about the Court’s jurisdictional analysis (and Justice Scalia’s intemperate dissent therefrom). Indeed, as much as the above concerns Hamdan’s implications for the separation of powers between Congress and the President, there is at least as much to say with respect to its significance vis-à-vis the separation of powers between Congress and the courts. But that’s for later. For now, I wanted to start with this point, because I suspect that it is this holding for which Hamdan might become best remembered. The analogy is imperfect, but only slightly: We have our modern Youngstown.
New and Noteworthy: Overton's Stealing Democracy
GW Prawf (and BlackProf contributor) Spencer Overton's new book on the politics of voter suppression is out and the good man wants to sell his books, understandably so. Over at PBS, you can get a flavor of Spencer's views about the recent SCOTUS decision about DeLay's redistricting plan, the subject of which is discussed at greater length in his book's first chapter. The intro to the book is here. I hope I get a chance to read through this book over the summer since it's on a matter of urgent concern about which, like too many things, I know next to nothing...
Congrats on the launch, Spencer!
Over at SCOTUSBlog, Marty has the syllabus and some early thoughts about the significance of the Court's discussion of Common Article 3 today in Hamdan. I'll have much more to say later; for now, let me just say that I think Marty's absolutely right, but what else is new.
Executing Innocents in the Age of Empiricism
In response to the SCT decision the other day in Kansas v. Marsh, where Justices Scalia and Souter were tussling over the extent and significance of innocents sentenced to death, there is a nice discussion in the 'sphere percolating that should be of interest to readers. It began over at SLP, where Doug Berman averred skepticism toward Souter's claim that there is likelier to be a higher rate of erroneous conviction in the capital context than the non-capital context. Doug writes:
Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four "liberal" Justices might actually believe it is true.
In response, over at Co-Op, Dan Filler has a thoughtful post detailing why pathology might arise in the death penalty context more frequently than the non-capital context. Read the comments too. In reply, Doug Berman is prepared to accept the possibility that the rate is higher in death penalty cases but the aggregate numbers in the non-capital context must be more worrisome; he reasons to this conclusion by examining the dynamic of the plea bargaining system, which governs most case dispositions in the country:
Imagine if only .01% of all defendants who plead guilty when facing felony charges are actually innocent and plead guilty due to a (reasonable) fear of getting a much harsher sentence after possibly losing at trial. Even if 99.99% of all defendants who plead guilty are in fact guilty, we would still have roughly 1000 innocent people convicted of non-capital felonies each and every year. (If only 99.95% of all defendants who plead guilty are truly guilty, then we have 5,000 wrongful convictions nationwide resulting from pleas even before we start looking at trial error in non-capital cases.)
Of course, this scary number crunching does not directly address the rate of wrongful convictions across crimes, and I suppose I was a bit rash when expressing exacerbation about Justice Souter's assertion on that point. But I find the cumulative numbers far more disturbing than the rate, especially given the harshness of our non-capital sentences and the massive size of our criminal justice systems. It is, of course, a great tragedy if 1 of the roughly 100 death sentences handed down last year involved an innocent person. But I think we should be even more concerned that perhaps 1000, or 10,000, or even 50,000 other sentences were given to innocent persons even if the wrongful conviction rate in non-capital cases is lower than in capital cases.
I'll have something up later this week about the misuse of evidence in Kansas v. Marsh, but I thought this discussion should be highlighted. As to this precise question about which context has a higher rate of error, I suspect the actual answer isn't quite available in our new golden age of empiricism. Nonetheless, even if the ELS folks can provide one, I am skeptical that having the correct answer will bridge the gap among persons with different normative priors here regarding where to allocate resources.
Btw, I was discussing the McGinnis article on the age of empiricism with a friend who does quantitative sociology yesterday. She shared Dan Kahan's skepticism toward the McGinnis thesis. She noted that in her field she knew of various academics who sit on studies with outcomes they're politically apprehensive about; moreover, she also thought that the design of empirical studies is such a normatively saturated project that it's hard to truly separate "the facts" from the "opinions" such that consensus about what the facts show will emerge. Reactions?
Reminder: Prawfs-Glom Happy Hour in Baltimore
Reminder: Just wanted to announce the PrawfsBlawg Happy Hour in Baltimore, which we're excited to co-host with the folks over at the Glom. We'll be meeting at 930pm(ish) on Thursday July 6th at the James Joyce Pub, which is located on 616 S. President St., right near the Marriott Waterfront Hotel, where the Law and Society Conference will be held that weekend. If you're coming in from DC or elsewhere, there are some maps and driving directions to the pub over here. Looking forward to seeing you. Tell your colleagues (at least the ones you like) to join us.
Important: please rsvp to me via email if you can make it or are thinking of coming just so we can get a sense of numbers and appropriate space at the Pub. Thanks.
UPDATE: Given that we'll be meeting at the James Joyce Pub, you may wish to peruse this very interesting report about James Joyce's grandson in the New Yorker--and how Larry Lessig might stop him from copyright misuse!
Tuesday, June 27, 2006
On the Restatement of Laws
I am in Saratoga Springs, reporting live from a (very rainy – you get spoiled in San Diego) conference of the Labor Law Group. We had a session this morning on the ALI’s ongoing attempt to restate employment law. Participants included reporter/advisors who have been involved in the ALI’s 3rd Restatement project for several years and others who are vocal critics.
Of course, the debate about a restatement goes far beyond the fascinating questions about the state of employment law. The most fundamental questions concern the goals and authority of restating a particular field of law. Is the purpose of a restatement simply to "distill current blackletter law", identify majority rules, and identify recent trends in the common law? Or should it incorporate future looking recommendations and normative aspirations? If a restatement is designed as a snapshot of the state of the law at a particular moment in time, is it likely to slow down the development of the law or can it help trigger change? It seems that the stated purposes of the ALI's restatement projects are to “unify, simplify, and clarify”. Each of these goals may require different approaches, ranging from detailed rules to open ended principles. These question relate to yet another important debate: who is the primary consumer for which a restatement is privately codified, through the vote by the thousands of distinguished members of the ALI? (at the panel, one participant suggested that the primary consumer of a restatement is the “feeble minded, weak and fearful state judge”) Finally, if the final product of the restatement appears skewed and flawed, what is the best way to challenge it– dismiss it altogether, point out its flaws through academic writing or perhaps, issue a counter restatement by an alternative expert organization?
Limbaugh blows his deal?
Rush Limbaugh worked out a pretty good deal in his “doctor-shopping” prescription fraud case: continue seeing his doctor, complete an 18-month addiction treatment program, pay restitution to the State and stay out of trouble, and the charge would be dropped. Limbaugh, however, may have blown this deal now that he allegedly was found in possession of a bottle of Viagra bearing a prescription not in his name when he was searched at a Florida airport. A new criminal charge almost certainly would prompt prosecution of the original prescription fraud charge.
Limbaugh's attorney, Roy Black, reportedly said the prescription came from Limbaugh's doctor and was issued in this doctor’s name for “privacy purposes.” I don’t know, though—on a deferred prosecution program for prescription fraud and he is found with a prescription in someone else’s name? Even if we take Roy Black’s “privacy” explanation at face value, my sense is that most of my clients—who were not rich or famous—would be viewed in this situation as having engaged in seriously arrogant conduct in the face of significant State leniency by not clearing this sort of thing first with the prosecutor or judge. If Black’s explanation is verified, it will be interesting to see whether prosecutors attempt to make this point with Limbaugh, or whether they simply let it slide.
Will ELS Forge a Political Consensus?
John McGinnis (Law, Northwestern) has an article in Policy Review (the same issue as my essay on cosmopolitanism) on how empirical studies and their ascendency in the academy might contribute to forging political consensus on hotly contested matters that have some basis in empirical claims. He claims that the ever-increasing power of the computer is helping the ease and sophistication of empirical studies -- which, in turn, will lead to broad consensus on matters of fact relevant to core policy debates that divide us politically. Are you in favor of school choice? It would be useful to know if it works in facilitating better performance. McGinnis also argues that blogs and information markets (like Tradesports -- on which, see our own Yair Listokin's thoughts on PB) will "amplify the power of empiricism."
The ELS Blog is hosting a discussion of the essay -- and I recommend the discussion there. I'm less optimistic than McGinnis because I tend to think popular opinion sees empiricism as "fun with numbers": voters will use heuristics to evaluate empirical studies based on the partisanship of the authors and/or the funders. But at the level of elite discourse, empiricism will likely help focus the debates on facts -- at least when the facts are relevant to the much more intractable and polarized value disputes underway.
UPDATE: More reason than ever to go to ELS Blog's discussion on the matter: a dialogue between Dan Kahan and McGinnis on the viability of McGinnis Policy Review thesis.
Turns out I'm not so nuts after all!
Last September, I voiced concern over the loose distribution of the debit cards to Katrina victims and the essentially unchecked manner with which those funds could be spent. Recent reports and investigations are bearing out those concerns.
Debit cards given to people displaced by the storms were improperly used to buy diamond jewelry, a vacation in the Dominican Republic, fireworks, a $200 bottle of champagne at a Hooters in San Antonio and $300 worth of "Girls Gone Wild" videos, the audit found. According to the GAO, $1,000 from a FEMA debit card went to a Houston divorce lawyer, $600 was spent in a strip club and $400 was spent on "adult erotica products," all of which auditors concluded were "not necessary to satisfy legitimate disaster needs."
Today's NYT has a report that elaborates on the scope of fraud involved with Katrina relief. Check it out here. Money quote:
"The blatant fraud, the audacity of the schemes, the scale of the waste — it is just breathtaking," said Senator Susan Collins, Republican of Maine, and chairwoman of the Homeland Security and Governmental Affairs Committee.
The Times notes that the kind of fraud occurring in Katrina's wake goes well-beyond abuse of the mad-cash cards. Very sad. What lessons ought we draw for the fire next time?
Short is the New Long
The law review article title is infamous for being lengthy, unwieldy, and over-colonated. But recently, it's been cool to try to buck that trend -- as severely as possible. Some recent examples:
- Retaliation, Deborah Brake, 90 Minn. L. Rev. 18 (2005)
- Dilution, Clarisa Long, 106 Colum. L. Rev. 1029 (2006)
- Fixing Freezeouts, Guhan Subramanian, 115 Yale L.J. 2 (2005)
- Best Practices, David Zaring, 81 N.Y.U. L. Rev. 294 (2006)
The new "micro-title" has the benefits of a classic spareness: clean, simple, even elegant. Like the new school of Alice Waters-inspired chefs, these authors focus on the basic ingredients, shunning a more ostentatious approach. There is a stark beauty to the micro-title, as well as a finality: this is the paper about the subject at hand.
But there may be costs to the micro-title as well. The traditional bulky title does convey a fair amount of information. It is more amenable to database searches by title. And there is a limit on the number of micro-titles out there. Once a micro-title has been taken, it would definitely be uncool for someone else to use it.
Is the micro-title a new trend in legal scholarship? And what does it mean for legal scholarship?
The Legal Theory of the Multistate
Dan Solove has posted his paper, "The Multistate Bar Exam as a Theory of Law," on SSRN. Here is the abstract:
What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work has barely received scholarly attention. It is time to rectify this situation and put the Bar Exam in its place as the great work of jurisprudence that it is.
(And, here is Dan's Prawfsblawg post on the same matter, from last year.) My own bar-related thoughts have been, for the most part, more pedestrian, e.g., "what a pain."
Cosmopolitanism and loyalty
Ethan has posted and written about "cosmopolitanism," in the context of -- among other things -- reviewing Professor Appiah's "Cosmpolitanism: Ethics in a World of Strangers." After reading Ethan's review of Appiah, I came across this paper, "Our Anticompetitive Patriotism," by Professor Todd Pettys, which should be of interest to those thinking about the matters discussed in Ethan's review. Here is the abstract:
This article examines the profound regulatory implications of Americans' deep, quasi-religious devotion to their nation. I argue that Americans' powerful identification with their country poses a significant threat to the system of intergovernmental competition that the Framers envisioned. The Framers believed that the state and federal governments would compete with one another for citizens' loyalty and for the regulatory power which that loyalty often yields, and that this competition would give both sovereigns strong incentives to remain finely attuned to the needs and desires of the citizenry. I contend that the nation's seemingly exclusive claim to citizens' patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain its ability to govern in objectionable ways. I conclude by advancing a two-part argument. First, to ensure that the federal government does not wield monopolistic power in a vast array of domains, we should give increased consideration to treaties and other regulatory alternatives that require America's leaders to negotiate with their counterparts in other countries. Second, in the years ahead, Americans may very well develop the supra-national patriotic sentiments necessary to sustain such models of international governance.
Monday, June 26, 2006
On behalf of everyone at PrawfsBlawg, I'm very excited to announce that later this week, Prof. Orly Lobel (aka Orly) will be joining us fulltime as a permaprawf. Orly teaches at University of San Diego and writes prolifically about workplace governance issues. There's a wonderful profile of her over here. Please welcome her to our ranks!
Law Review Article Introductions?
Something I've been pondering, or struggling with, while polishing off a draft of a new law review article.... How do you view the "introduction" section of your article -- mainly as a preview, or a summary of all your major points, or as review/background on the issue you're writing about? And what page length (or word count, whatever) do you use as a guide? I find that even though not all of my articles run long, all of my introductions do, and I suspect that I'm trying to do too much -- give background on the issue, review other writing in the field, and summarize all my arguments. Given that law review editors often have little time to read more than the intro, however, I feel pressure to include all that stuff, or else the article may get rejected before I can explain any of it. Thoughts, especially for those of you writing something this summer -- or, especially, for law review editors (past or present) on what you like or don't like in intro sections???
Thoughts on Visiting?
Ethan's post below, and some of the comments, suggest that, in the spirit of many of our past posts discussing various aspects of law teaching, it might be instructive to open up a discussion on the phenomenon of professorial visits at law schools. As the comments to Ethan's post suggest, most of the regular bloggers on this site will be taking the show on the road for at least part of next year. (Another testament to the power of blogging -- our home institutions want us elsewhere!) Some have already visited before, for others it's their first time -- and many of our professional readers have certainly visited and/or moved between institutions. So perhaps, as with our previous posts on the meat market and other aspects of life in law teaching, we can serve as a forum and clearinghouse for information on the visiting process, a practice about which I suspect that many prawfs lack hard knowledge and rely on loose talk, even if they've done it themselves.
Here are some questions on which I'd be eager to hear semi- or fully-informed views:
* What are the virtues of visiting?
* How does one go about landing visiting opportunities?
* What are the relative virtues of "podium-filling" vs. "look-see" visits, and how often does the former effectively turn into the latter?
* What are various schools' policies on "look-see" visits, ie. offer on the spot vs. refusal to consider until after the visitor has gone?
* How does one make the most of a visit? What obvious or not-so-obvious aspects of protocol would our experienced readers recommend that a visitor observe?
* What are the drawbacks of visiting -- especially, to be unsparing about it, for junior faculty?
Comments, additional questions, and amusing/horrifying anecdotes are welcome. Keep in mind that I'm not asking for names of visitors or institutions or other sensitive or privately held information. I'd rather pool information than share gossip, just this once. Anonymous posts accepted, albeit commenters' actual names are always preferred.
UPDATE: Those interested in this topic should definitely also consult a couple of superb posts by Christine Hurt at the Conglomerate, here and here. One of the commenters to Christine's second post notes that "this is one of those posts where lots of people are reading but not many will comment." True, for understandable reasons, and I was slightly leery about posting, but I think that's the point: this is a topic lots of professors are interested in and no one wants to talk about or even acknowledge, which increases the likelihood that people will possess incomplete or bad information. It ought to be possible, perhaps with the assistance of anonymous comments, to pool information about something that happens every year at pretty well every law school, but maybe I'm being overoptimistic here. Folks who want to share information quietly via email are therefore welcome to do so, and I'll cull the best bits.
The Indispensable Berman on Booker
The indispensable Doug Berman (of SLP fame and occasional guest-blogger with Prawfs) has recently posted on SSRN his latest article entitled Tweaking Booker: Advisory Guidelines in the Federal System. The piece is a contribution to (yet another) symposium on post-Booker sentencing law and policy, this one at the University of Houston. Before I highlight the main points of Doug's piece, let me first warmly congratulate Doug on his recent appointment as William B. Saxbe Designated Professor at Ohio State, where Doug has taught for the last eight years. It's a richly deserved honor, especially for someone who has made so many contributions to the field of sentencing law. Moreover, in addition to his traditional scholarship, Doug's dogged and dispassionate work on his SLP blog has been instrumental in educating the rest of the academy as well as judges, journalists, and practitioners of new developments; in so doing, he has helped forge a robust community.
Doug's newest article effectively canvasses the origins and impact of Booker. The heart of the article assesses three competing proposals vying for Congressional approval in the context of federal sentencing reform. The first is a "topless" guidelines system, which is the preferred choice for the folks at the Department of Justice. The second is a Blakely-ized system, which retains mandatory guidelines but adds jury fact-finding, per Blakely's mandate. This approach is favored by many defense attorneys and others sympathetic to the majority opinion in Blakely, because it actually imposes, as Justice O'Connor put it, a constitutional tax on the government's prosecutions. The third approach preserves the Booker remedy that rendered the Guidelines effectively advisory, though sentences are still subject to "unreasonableness" appellate review. On balance, Doug favors the third approach.
Nonetheless, he urges some tweaks to the current system that would best be made by the Sentencing Commission, which has, on Doug's view, failed to provide sufficient leadership in the wake of Booker. Notwithstanding the title of the Article, these tweaks are made toward the end of the paper and thus are left ripe for further conversation. So let me raise a few questions for conversation.
The first tweak Doug recommends is that the Commission needs to better focus the amount of prison time allotted under the Guidelines to repeat and violent offenders. (Interestingly, a recent statistical survey found that 3/4ths of the federal sentencing population are non-violent offenders without a history of violence.) This tweak might seem uncontroversial, at first blush. (Indeed, I have elsewhere tried to justify alternatives to incarceration on retributivist grounds.) But Doug is a bit unclear about what it means to be "especially attentive to the distinctions between first-time non-violent offenders and repeat, violent offenders."
What do we mean when we say we should distinguish first-time nonviolent offenders from repeat and violent offenders? Although Doug certainly doesn't say that all first-time nonviolent offenders should be spared hard time in prison, I wonder if that's what some people think would be preferable. Do we really want the Lays and Skillings of the world to simply get convicted, make restitution to the extent possible, and plant flowers as part of a community service project? Do we really want no prison time at all for the folks who peddle cocaine or heroin (or Ecstasy) to our kids? What about the perps who have large caches of kiddie porn stashed on their drives?
It's one thing to say, as Justice Kennedy declared three years ago, that federal sentences generally are too harsh and could stand reductions virtually across the board. But how do we go about distinguishing between the first-time non-violent prisoners who should go to prison and those who should not? Indeed, might it be the case that some repeat offenders who filch the occasional letter ( Shawn Gementera) or golf club (Gary Ewing ) are actually less culpable and less dangerous to society than the first-time offenders of Lay and Skilling, who culpably caused billions of dollars of losses? Again, Doug's not committed to sparing all first time non-violent offenders from prison, but we need more guidance here regarding what the Commission should do in separating those who should be sent to prison and those who should not.
Doug also inveighs against the Guidelines applied in today's federal courts because of their crude neglect of most offender characteristics, such as age or family ties and responsibilities. Because the focus of the current system is on the offender's criminal history and the seriousness of the offense, Doug urges "the Commission, through its data collection and analysis, to seize the opportunity presented by Booker to reexamine how offender circumstances can and should be incorporated into federal guideline sentencing."
How might this recommendation cash out? As Doug knows, the Commission did in fact consider these issues back in the 1980's and concluded that, in the main, these kinds of factors are either impermissible or discouraged reasons for departing downward from a Guidelines sentence. So, it's not that the Commission hasn't considered mitigating offender characteristics. Rather, the problem is that the Commission drew the wrong conclusion, at least according to Doug and the many district court judges and various critics of the Guidelines (like Utah's Erik Luna) who want more discretion for individuated punishment.
Implicit in Doug's recommendation is the suggestion that the Commission's data collection and analysis ability will help resolve the essentially normative issues regarding whom to give punishment discounts. But data doesn't tell us whether to give, say, offenders with children, a punishment discount.
As to the merits of this precise issue, for the most part I disagree with Doug (and the district court judges who love having broader discretion) that offender characteristics should affect punishment distributions much more intensively. Interested readers can see why here (at great length). Importantly, and disturbingly, the disagreement over the degree to which offender characteristics should affect sentencing is now being played out in the advisory post-Booker regime, where some courts are indeed considering the characteristics of the offender more seriously, while other courts have been reluctant to "play legislature" (or "play Sentencing Commission").
Such fragmentation at the district court level causes (at least) two problems. First, an offender's sentence will depend on the luck of the draw: did he get a judge who is willing to consider these offender characteristics (Judge Adelman?) or did he get a judge who presumptively follows the lead of the Guidelines (Judge Cassell?). Second, assuming the offender gets the former, an individualizing type of judge, the offender may find that what mitigates a sentence from one set of eyes may lead another individualizing type of judge to extend the sentence beyond the Guidelines. This dual form of disparity doesn't much worry Doug (at least in the draft). He thinks district court judges will apply "reasoned judgment."
This faith, which I think is misplaced, does a lot to explain why Doug, along with many trial judges, generally prefer the advisory nature of the post- Booker federal guidelines. Again, Doug thinks the Commission has a robust role to play in resolving disparity issues, even post- Booker. But if one's committed to the essentials of the Booker remedy, then it's not clear (to me at least) what the Commission can do to resolve problems of unwarranted disparity--other than try to persuade judges to stick within the Guidelines unless there's a factor present that hasn't been contemplated earlier. But judges in an advisory structure are under little obligation to do so, and so the tinkering the Commission can do is only on the margins, I suspect. (The appellate courts that review for unreasonableness, by contrast, have more power here.)
In a final suggested tweak, Doug also (correctly) urges the Sentencing Commission to alter the burden of proof in sentencing proceedings. Currently, the Commission and a majority of the Court believe that a preponderance of the evidence suffices to establish sentence-enhancing "guideline" facts. For both constitutional and policy reasons, Berman softly pushes the "beyond a reasonable doubt" standard ("BRD") because "it is not fair or just to apply a civil standard of proof" to factual issues that entail "defined and potentially severe punishment consequences for a defendant." I agree. But, to my mind, it seems odd to embrace that position along with approval of Breyer's remedy in Booker, which, after all, centered on the putative desirability of letting judges continue to sentence offenders on the basis of their "real conduct," conduct never alleged or proved before the jury. I can see how one can logically decouple a BRD requirement from whether non-charged conduct can enhance a sentence, but I imagine that once one is committed to a BRD standard, prosecutors will, in almost all tried cases, allege the facts to be proven BRD in the indictment and prove them before the jury-- since they'll rarely have an incentive to bifurcate issues over what effectively will become two trials, one for liability, and one for sentencing. Most charges resolve themselves in pleas, of course, and as Doug notes, in that context, "the issue is what will the defendant admit or contest at the sentencing stage."
The "real conduct" issue deserves greater attention too. That the architect of the Booker remedy, Justice Breyer—who is, in most cases, ever the pragmatist—becomes, in the sentencing context, metaphysically obsessed with an offender's "real conduct" is passing strange. For what is real conduct in a regime in which the Founders sought the use of juries except conduct that has either been admitted to or been included in the indictment and proved to be "real" beyond a reasonable doubt by a jury of one's peers? But that has not been Breyer's understanding of real conduct; instead, that which is admitted to or proved BRD is merely(what might be called) "legal conduct." Given our regime's commitment to adjudications by rule of law (involving BRD and juries for criminal trial), I don't see how it can be appropriate to use anything aside from "legal conduct" to adjust one's punishment? Breyer's reification of real conduct and concomitant denigration of "legal conduct (and what is truly "real conduct" in a rule of law regime,) in short, constitute two of the most dangerous encroachments upon the rule of law to have manifested in recent years. And what makes the Booker remedy fundamentally untenable is that it continues to provide safe harbor for the imaginative fantasies of what really occurred under the rubric of real conduct.
If you share that view, steady yourself for sad days ahead. As Doug shrewdly notes, none of the current stakeholders with power in the federal sentencing realm—the DOJ, the USSC, Congress, or the trial judges—have expressed an interest in fixing the federal scheme of sentencing in such a way as to be faithful to Blakely's commitment to jury fact-finding. And Blakely's future itself will depend somewhat on what the two new Justices, Alito and Roberts, have to say.
If they were writing on a blank slate, Alito and Roberts, I'd guess, would have joined Scalia, Stevens, Ginsburg, and Thomas in Blakely. But now that Booker's remedy has proven that the more things change, the more they look the same, I'd be surprised if Roberts would rock the boat, even if Alito would. What that means is that Blakely will still be the constitutional law that states will have to grapple with, but that the Booker remedy will persist in the federal context such that the significance of a right to a trial by jury will be insistently eroded. Thankfully, federal sentencing is only a small piece of the pie.
The character of federal sentencing may well hinge on Alito and Roberts and their appetite for risk. But a case that properly presents the issue of whether sentencing proceedings require proof beyond a reasonable doubt may soon arise. My guess – and my hope – is that there are at least five votes for that proposition.
Saturday, June 24, 2006
Thanks to Dan for linking to my piece in the recent issue of the Yale Law Journal. I was really pleased to have been invited to contribute. (That said, I'm a bit surprised, and disappointed, that the editors did not solicit a few more contributions. It strikes me that the Rehnquist tribute is quite a bit . . . thinner than those put out in recent years by the Yale Law Journal for, say, Justices Blackmun, White, and Brennan. For example, a contribution by the new Chief, or Justice O'Connor -- the Chief's fast friend for more than 50 years and his collaborator on the Court for a quarter-century, would have been nice.).
Last week, I was in Washington, D.C. for the Supreme Court Bar's Memorial for Rehnquist. It was really great event. (You can watch it on C-Span, here.) The Bar adopted a special resolution in appreciation of Rehnquist's life and work; a number of former clerks, friends, and family members spoke; the resolution was presented by the S.G. to the new Chief Justice, who spoke very movingly, and to the full Court.
The next day, I flew to Phoenix, and participated in a panel discussion (program here), hosted by the State Bar of Arizona (my own bar), about the nominations and legacies of Arizona's own Justices O'Connor and Rehnquist. Joan Biskupic and Sen. Dennis DeConcini had some great stories about the two nomination processes. My own remarks focused on the shared legacy of Rehnquist and O'Connor, and on their collaboration and shared commitments, while my friend Cathy O'Grady talked about the contrasts.
Kelo and the Executive Power
Yesterday -- clearly in response to the outrage over Kelo -- Pres. Bush issued an executive order directing federal agencies to restrain the use of the takings power to "situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken." It is not clear that this order will have any practical effect. After all, the taking in Kelo was purportedly "for the purpose of benefiting the general public." And, I suspect that the federal government does not directly engage in many economic development takings -- although federal dollars pay for many such takings.
The order suggests, however, that post-Kelo outrage has more staying power that many observers anticipated. It seems that Americans are more upset by compensated takings for "private" purposes than by "partial" regulatory takings. (Excuse the shorthand terms.) For years, property-rights advocates attempted, with little success, to stir up support for partial-takings legislation. (An exception is Oregon, where voters have twice amended the state constitution to require compensation for regulations reducing property values. I am not so surprised by this, in light of the stark contrast between land use winners and losers -- or between "givings" and "takings" -- that result from the urban growth boundaries there.) Then, along comes Kelo and there is a giant rush to reform eminent domain law. I know that there is much speculation about why people get so upset about eminent domain. I suppose the answer is complicated one -- the endowment effect, class jealousies, middle-class anxieties, political grandstanding, and the Institute for Justice's remarkable p.r. machine. But, I don't think anything captures the phenomenon better than Carol Rose's observation some years ago: "There is something about land that makes you think that when you own it, it is really really yours."
Cities and Suburbs
Prawfs-guest Professor Nicole Garnett -- who is, of course, excellent in every respect -- has posted a new paper, "Save the Cities, Stop the Suburbs," that should be interesting to those following the "urbanism" (new and old) debate. Here is the abstract:
This Essay reviews two recent books: Robert Bruegmann, Sprawl: A Compact History and Joel Kotkin, The City: A Global History. Bruegmann, an architectural historian, makes an important contribution to the thinking about suburban sprawl by placing current development patterns in historical context. Bruegmann builds a strong case that the costs of limits on suburban development - especially the reduction in the supply of affordable housing - might well outweigh their benefits. His failure to consider whether measures other than suburban growth restrictions might enliven cities, however, is a serious shortcoming. The Essay suggests that urban officials must find ways to make cities, in Kotkin's words, “sacred, safe, and busy,” places again. The Essay urges local governments to examine how city land use policies (as opposed to suburban ones) affect urban life and suggests that city officials must address inevitable tensions between safety and busyness and between busyness and beauty.
Friday, June 23, 2006
I thought I would open up a thread on visiting appointments for junior faculty. If I'm not mistaken, the majority of us here at Prawfs will be visiting at new schools in the fall -- and I would urge anyone with reliable information to post here on where some young people are visiting. I suspect it would be of interest to many of our readers.
For starters, I'll be at Brooklyn Law School in the Fall of 2006 (joined by the VC's David Bernstein).
YLJ = NYRB?
Ever vigilant, Dan has beaten me to the punch in commending the new issue of the Yale Law Journal, which is indeed excellent and a nice counterpoise to those folks over at the other school (actually, they're both the "other" school, since "the" school is located in Morningside Heights). The colloquium on Akhil Amar and Jed Rubenfeld's recent books is fascinating, although in my view it has a certain flavor of insular Yalishness about it. Still, they have both written superb books and the colloquium is an excellent collection.
However, I can't help but point out that the sharp-edged nature of the reviews and responses at times begins to resemble the silver-tongued harshness and/or defensiveness that I've observed is one of the more entertaining features (actually, I'd say the last entertaining feature) of the New York Review of Books. Case in point: Jed Rubenfeld's statement, in the very first sentence of his reply, that "I do not know Michael Stokes Paulsen or his writings." I assume it's accurate, but it also strikes me as an unnecessary put-down (although of whom, I'm not sure), and could have been dispensed with if he'd taken the simple step of sitting down with a couple of Paulsen's very well known and excellent articles. Other case in point, although it's a somewhat different NYRB tactic: Amar's quotation and citation (by way of excusing Paulsen, a former roommate of Amar, from any taint of bias in praising Amar's book) of some "glowing" reviews of his book by "eminent lawyers and historians." Both strike me as instances in which an editor's red pen would have been useful.
I have a newer version of Supermajoritarianism and the American Criminal Jury up at SSRN, forthcoming this summer in Hastings Constitutional Law Quarterly. I have finally figured out a way to get rid of the charts that were causing readers annoyance -- and I think this version is much easier to read. Thanks to readers for all your comments; this version takes account of many of your very provocative and insightful ideas.
Garnett on Rehnquist in YLJ
Now that Paul's finished plugging the new issue of HLR, I can take a turn to recommend the interesting June issue of the Yale Law Journal. Closest to home, our own Rick Garnett has an appreciation of the late Rehnquist, complete with funny and poignant anecdotes. (I confess I still have my reservations, Rick.) Also worth perusing is the colloquium on constitutionalism and interpretation among Akhil Amar, Jed Rubenfeld (whose new novel is forthcoming also), Jefferson Powell, and Michael Stokes Paulsen.
The Moral Relevance of Witnesses to Executions
The NYT has an article on death penalty protocols, reporting that "the current method of lethal injection could easily be changed to make suffering less likely. Even the doctor who devised the technique 30 years ago says that if he had it to do over again, he would recommend a different method." Although this may be old hat to all you death penalty scholars and activists out there, I did find this somewhat odd:
At the core of the issue is a debate about which matters more, the comfort of prisoners or that of the people who watch them die. A major obstacle to change is that alternative methods of lethal injection, though they might be easier on inmates, would almost certainly be harder on witnesses and executioners.
With a different approach, death would take longer and might involve jerking movements that the prisoner would not feel but that would be unpleasant for others to watch.
"Policy makers have historically considered the needs of witnesses in devising protocols" for execution, said Dr. Mark Dershwitz, a professor of anesthesiology at the University of Massachusetts who has testified about the drugs used in lethal injection.
Just what is the moral relevance of the comfort of those who watch executions? Obviously, to many of us, the whole procedure fails to accord with the standards of morality. But even granting that executing people conforms with moral requirements, I fail to see how the witnesses' discomfort (who are witnesses voluntarily) at seeing bodily twitching can have any moral relevance that could justify infliction of unneccessary pain. In any case, these people who seek out the witnessing of revenge can surely tolerate a little twitching.
The Resurgence of Federal Common Law? Not So Much...
Over at his eponymous blog, Orin beats me to the punch on the Court's fascinating decision yesterday in Dixon, waxing all kinds of philosophic on federal common law and the criminal justice system (amazingly, without a reference to Hudson & Goodwin... too bad).
Orin's post gives me a chance to talk about another fascinating fed-courts-heavy decision from this month, the complicated decision in Empire Healthcare Assurance, Inc. v. McVeigh, which prompted the first (so far as I know) 5-4 split featuring Justices Kennedy, Souter, Breyer, and Alito on the short side.
In McVeigh, the Court deals with the nasty issue of "the proper forum for reimbursement claims [under the Federal Employees Health Benefit Act (FEHBA)] when a plan beneficiary, injured in an accident, whose medical bills have been paid by the plan administrator, recovers damages (unaided by the carrier-administrator) in a state-court tort action against a third party alleged to have caused the accident."
The Court considered three different theories for federal jurisdiction -- first, that a suit to vindicate contractual rights under the FEHBA raises a federal claim; second that such a suit satisfies the well-pleaded complaint rule, because "federal law is a necessary element of [the] claim"; and third, that even if FEHBA doesn't satisfy Section 1331, the Court can fashion a rule of federal common law, under Clearfield Trust, to sustain federal jurisdiction.
The third argument, motivated by Justice Breyer's snarky dissent (e.g., "the Court cannot find a basis for federal jurisdiction. I believe I can"), with which I basically agree, is the most interesting, and the least commonly before the Court. Erie, of course, did not signify the end of federal common law, and FCL today serves a number of important purposes, particularly in the area of government contracts. Thus, I find rather persuasive Justice Breyer's conclusion that:
given Clearfield Trust and its progeny, there is every reason to believe that federal common law governs disputes concerning the agency/carrier contract. And that is so even though “it would have been easy enough for Congress to say” that federal common law should govern these claims. After all, no such express statement of congressional intent was present in Clearfield Trust itself, or in any of the cases relying on Clearfield Trust for the authority to apply federal common law to interpret Government contracts.
Indeed, if we are to have a robust theory of modern federal common law, why isn't this case one that fits within the model? More to the point, why isn't Justice Breyer correct that:
even if the Court is correct that state law applies to claims involving the interpretation of some provisions of this contract, the decision whether and when to apply state law should be made by the federal courts under federal common law. Accordingly, for jurisdictional purposes those claims must still arise under federal law, for federal common law determines the rule of decision.
Anyway, the details get very messy and murky very quickly, but given Dixon, and given the odd lineup of the Justices, I thought I'd also flag this other interesting case largely implicating the 400-pound gorilla that is federal common law today.
The Significance of the Cert. Grant in Watters
It has been a busy week for the Supreme Court, albeit a somewhat quiet one, given the cases left to be decided from the 2005 Term. [Next week will sure be interesting.]
One development on which I've seen very little coverage, though, is the grant of certiorari on Monday in Watters v. Wachovia Bank, No. 05-1342. Watters, a case from the Sixth Circuit, is one of three recent circuit decisions involving basically the same legal question -- the scope of the Office of the Comptroller of the Currency's (OCC's) authority to preempt state regulation of "operating subsidiaries" of national banks. Yeah, I know -- it's a mouthful. [The Second Circuit case is Burke v. Wachovia Bank; the Ninth Circuit case is Wells Fargo Bank v. Boutris.]
What's noteworthy here is that, notwithstanding the unanimity of the circuits, all of which have similarly upheld the OCC's authority to preempt state consumer lending laws, and notwithstanding the unsurprisingly similar views of the Solicitor General, who filed an amicus brief at the Court's request supporting the denial of certiorari in Burke, the Second Circuit case, the Court granted certiorari anyway, albeit in one of the other cases raising the same question.
It is certainly true, as I noted in my earlier post, that it's long-past-time for the Court to clean up its agency preemption jurisprudence, and to reconcile seemingly irreconcilable (if not inscrutable) statements in Medtronic, Geier, and New York v. FERC, just to name a few cases (there are seven or eight more). Indeed, it just isn't clear, even to expert administrative law folk (and I sure as hell am not one of them), whether and to what extent agencies can preempt state law in areas in which their statutory authority is, for lack of a better word, marginal. For starters, how, if at all, would Chevron apply? Is an agency's authority to preempt necessarily coextensive with its authority to regulate? What role for congressional intent?
Don't get me wrong -- I'm extremely excited and pleased by the grant. After all, that was me, back in February, saying that " it might be nice for the Court to lend its imprimatur, one way or the other." [Thanks for listening, Supremes.] But two points bear noting: First, this is hardly a topic that admits of easy resolution -- we have no further than the earlier cases to look for proof of that. Agencies must have some preemptive authority, and so the question becomes where to draw the line, if not at the limit of their regulatory power...
Second, there is something very telling here: Given the absence of a conflict below, one can only assume that someone (or at least four someones, to be exact) sees something very, very wrong with where the law has gone here. After all, would the Court really grant on an administrative law/preemption issue on which the three circuits to reach the question are in unison just to affirm?
Look at it this way -- If nothing else, we here at Prawfs will have coverage of the OCC's preemptive authority under the National Bank Act and the regulations promulgated thereunder that is second-to-none in the blogosphere... that is, until someone besides me decides that this is interesting.
Thursday, June 22, 2006
McConnell on Breyer
Constitutional law scholars should take note of the excellent June issue of the Harvard Law Review, which features a fascinating article on separation of powers by Levinson and Pildes that I have been interested in since drafts began floating around on the Internet several months ago; I hope to write on it in more detail later this summer. The issue also features a review by Judge Michael McConnell of Justice Breyer's recent book, Active Liberty. A great issue, hopefully still on a newsstand near you. (Though I have a question -- what happened to the "Developments in the Law" issue? Doesn't it usually show up by issue 7 of the volume?)
McConnell's review is typically well-written and interesting. But it begins with a bunch of seemingly unnecessary throat-clearing that raises more questions than it answers. For instance, McConnell writes, enjoyably enough, that "The judiciary may not be the least dangerous branch, but it is usually the most boring." I think it's a toss-up -- is an ERISA opinion really more dull than a mark-up hearing? -- but it is a cute phrase. Still, is it really true to say, as he then does, that the federal courts only "burst onto the front page" from time to time in American history, and that "[w]e seem to be in the midst of one such time?" I'm not sure. It's difficult to point to many eras in this century or the last when the courts were not involved in the controversies of the day, and our attention these days is focused at least as much on the executive branch and on the state courts as it is on the federal judiciary.
More consequential, though it still reads like throat-clearing, is McConnell's introductory effort to discuss differences between liberals and conservatives with regard to the courts. Both sides criticize the courts, McConnell writes. But conservatives "say there is an important difference. They offer a principled justification for the pattern of decisions they favor: that judges should interfere with legislative decisions only when necessary to protect individual rights or structural principles genuinely derived from the text of the Constitution, as interpreted in light of its history and tradition." Liberals, on the other hand, "have yet to propound a comparable theory" that would allow them "to offer a persuasive critique of conservative decisions, beyond mere political disagreement about results."
This strikes me as thin stuff, which unnecessarily and conveniently obscures a rich debate. Of course it is possible to propound a theory that allows a persuasive critique of conservative decisions beyond mere political disagreement about results. For example, one might argue that the Constitution ought to be interpreted in a way that makes the nation more just along some particular set of propositions about justice, or that advances the principles of political liberalism, or that best helps left-handed people, or, to fall back on the old Tushnet example, that best advances the cause of socialism. If you think the Constitution actually requires that we adhere to such a rule, you can interpret the Constitution accordingly -- even, I suppose, if you're not a socialist or left-hander; so it's not enough to say that such an approach is simply about political disagreement over results. These approaches are every bit as "principled," in the sense that McConnell seems to mean here, than the conservative "principled justification" that he describes, which he paints at such a high level of generality that it obscures the degree to which intramural "quibble[s]" with particular outcomes will undermine any claim to a coherent conservative principle of adjudication.
It would have been better, I think, for McConnell not to talk about a "principled justification" here, but to talk in terms of legitimacy. Coherent theories of constitutional interpretation abound, and there may be as many available theories as there are books in Borges's library, but they are not necessarily undergirded by theories of the legitimacy of a particular approach to constitutional interpretation; thus, my socialist example may be coherent, but that doesn't make it legitimate. Conservatives claim that their approach to constitutional interpretation is not just coherent, but it is also legitimate, and it is this debate that is worth joining.
[more after the jump]
Of course, the notion that the first several pages of law review articles consist of throat-clearing is a common complaint about legal scholarship, so McConnell has plenty of bedfellows in this regard. For the most part, you could just skip these first couple of pages and still enjoy his review. So why -- other than the " you load sixteen tons" aspect of blogging, which always requires more grist for the mill -- is it worth focusing on here? Because I think it actually is related to McConnell's broader argument in the review.
I have no quarrel with one aspect of McConnell's review, albeit he doesn't focus on it that much. This is the idea that Breyer is less interested fostering active liberty than he seems -- that, in a kind of reverse-Wizard-of-Oz situation, there's a scary technocrat hidden underneath the guise of the folksy populist. But McConnell's other mission is to suggest indirectly, by way of critiquing Breyer's approach rather than building up his own, that the proper approach to constitutional and statutory interpretation is the "textualist-originalist" approach. He wants to argue that Breyer's approach, and other approaches that involve judges' considerations of "justice, equality, good consequences, or other normative concerns," ultimately lack any objective foundation, while the textualist-originalist approach "supplies an objective basis for judgment that does not merely reflect the judge's own ideological stance." McConnell does not say this is true of every textualist-originalist judge in every case, since these judges, like the rest of us, are all too human. But "[t]he point is that in principle" an objective basis for judgment is available.
The problem with this, to my eye, is that McConnell is also at great pains in the review to make the textualist-originalist approach more palatable and attractive by reducing, if not eliminating, the prospect of a principled version of textualism/originalism -- or at least the prospect that this approach could be applied in anything resembling a principle and objective way. Thus, he says that the textualist-originalist must, in ambiguous cases, subordinate his sense of what the Constitution actually requires in favor of deference to the legislature; that the textualist-originalist understands that "constitutional principles are not frozen in time," and will interpret various provisions of the Constitution more or less broadly; and that the textualist-originalist in any event will often defer to past rulings in the name of stare decisis. (And, as I suggested above, he certainly is not limiting constitutional meaning to the constitutional text narrowly read; his reference to "structural principles" suggests the whole mishegoss of modern Eleventh Amendment caselaw.)
Of course, these are all perfectly attractive and reasonable modifications of or nuances in a textualist-originalist approach. But by the time McConnell is done whisking the bogeyman version of textualism/originalism out of the room, I find it difficult to detect much that can be called clearly coherent and objective. Saying at this point that "in principle" an objective basis for judgment is available feels to me a little like saying, "In Neverland, we can fly."
Lest I call the textualist-originalists on my head like the plagues on Egypt, let me make it clear that my point is not to criticize textualism or originalism, let alone to suggest that they are inferior to Breyer's approach. There is much to admire in them on a pragmatic basis (the basis I find most attractive in thinking about textualism and originalism, although I think McConnell would reject this defense of the textualist-originalist method), and there is much to critique in Breyer's defense of "active liberty." (Would that he had just gone ahead and written a defense of technocratic judging!) And, too, there is the question of constitutional legitimacy. But McConnell's review basically ignores the legitimacy debate,* instead arguing that because Breyer's approach is not objective, and because the conservative approach he sketches is objective in principle, then all the potential liberal approaches to constitutional interpretation must be a matter of mere political preferences, and the conservatives must win by default. It's a very readable and enjoyable review, but color me unconvinced.
*McConnell does say, quoting Breyer, that if judges committed to active liberty prefer interpretations "that are consistent with the people's will," then (in McConnell's words) "we must ask how the people manifest their will. I suggest they do so in three ways: by creating and amending the Constitution, by developing constitutional tradition, and by electing representatives who enact legislation." He says that, on this account, active liberty actually provides support for a textualist-originalist approach. I think this line of argument is more about nicely hoisting Breyer on his own petard than about constitutional legitimacy, and as such it's a fun argument. But I wonder what he means by "developing constitutional tradition." How, exactly, do "the people" develop constitutional tradition? And to the extent they do, why does this tradition not include, among other approaches, at least some of the justice-seeking approaches that McConnell dismisses in his review? And I think that by referring to the process of legislation only, as if that's all legislators do, he's left another means of manifesting the people's will off the list: that the democratically elected President nominates, and the democratic Senate, confirms federal judges. On that account, McConnell the textualist-originalist is a manifestation of "the people's will" -- and so is Breyer the technocrat/active-libertarian.
Article Word Limits: More Qs for Law Reviews
Dave Hoffman started a discussion about law review submission practices going into the fall season. In the same vein, I wanted to ask law review folks about how the new guidelines for article length were actually being implemented.
As summarized nicely here, many law reviews have implemented new standards about the length of the articles they will review and publish. Generally these standards provide a limit based on the number of words. The standards seem to come in two forms: (a) absolute limits that serve as a cutoff, and (b) preferences for what the review would like to see. For example, this is Columbia Law Review's policy:
Effective February 28, 2005, the Columbia Law Review will no longer review nor publish articles or essays in excess of 37,000 words in length (including text and footnotes; measured by Microsoft Word's word count feature), barring exceptional circumstances. In addition, we will give preference to articles and essays submitted under 32,000 words in length.
Some law reviews have limits and preferences, while some just have preferences. Here are some questions I have about the new policies:
- Are the preferences actually de facto limits? When a law review says that it "prefers" articles of a certain length, does it actually use those preferences as a screen? Or are the preferences just one factor used in an overall evaluation of the article? Given the massive number of submissions, I can see how law reviews might limit their screening process to articles within their preferred lengths.
- Do articles over the limit ever get considered? The Columbia limit allows for exceptions in "exceptional circumstances." Do these ever come up? What might they be?
- How is the policy enforced? In other words, how are the words counted? When a review gets an electronic submission through ExpressO or a website submission process, it is easy to get a word count. But what about hard copy submissions? Is there a rough words-per-page estimate applied? Given the variety of fonts and margins available to authors today, I would imagine that it is hard to get an accurate word count from a hard copy. Does that mean hard copy submissions are disfavored? In addition, are tables of contents included in the word count? Abstracts?
I'd love to hear from law review editors about this, as well as law profs who have had experience either as advisors or potential authors.
Wednesday, June 21, 2006
The Endless Debate over the Minimum Wage
I say the debate is "endless" for two reasons. First, every five or ten years, members of Congress are "shocked, shocked" (apologies to Captain Renault) to discover that the minimum wage they raised years ago has declined in real terms. Of course, in an economy with steady, low-level inflation (e.g., the U.S. economy for the past almost quarter-century), it's obvious that a fixed minimum wage will lose real value over time. The last minimum wage increase (to $5.15/hr) was in 1997, so the wage set in 1997 has declined by 20-30% in real terms since then. Why can't the feds index the minimum wage, just as they index social security? Sure, conservatives wouldn't like it, but isn't there obvious room for a compromise -- e.g., the next time an increase of $1+ is about to pass, raise it by less but also index it. To decrease the complications for employers, maybe have the increases take effect only in even-numbered years (e.g., rather than a roughly 3% increase annually, a 6% increase every two years), and round it to the nearest nickel.
The second reason I say the debate is endless is that I can't think of anything new to say about it, and I don't think anyone else can, either. The last new thing I heard about the minimum wage was in the mid-90s, when an empirical study by Card & Krueger showed that a local increase in the minimum wage (in an interesting border area in which one state raised the min but the other didn't) had no effect on unemployment levels. This was counter-intuitive to their fellow economists, whose basic supply-and-demand model always showed that price floors (like the min wage, a price floor for labor) decrease quantity (i.e., the number of jobs). Possible explanations include limited short-term labor elasticity (i.e., employers don't adjust their labor needs very quickly when labor costs change) or monopsony effects (i.e., if a company is the only employer available for a population of workers, then raising the minimum wage may induce them to hire more workers, because one effect of a price floor is that hiring additional workers no longer raises everyone's wages).
But that's it. I can't think of anything new in the past decade or so about the minimum wage. So we have to reiterate this political debate about the decline in the real minimum wage that everyone say coming, and there's almost nothing new to say in that debate. Anyone else have something new to add to the same old, same old? Anyone? Please???
Update: My apologies for negecting to mention that the impetus for my post was Wedneday's failure of a minimum wage hike in the Senate. Actually, it "passed," 52-46, but that was short of the 60 votes needed for the bill to advance under Senate rules. (So much for Majority Leader Frist's odes to the simple majority up-or-down vote during the controversy over Bush's appellate court nominees....)
Do Beautiful People Win More Elections? Do Criminals Prey on New Orleans?
I received an interesting email the other day from some economists in Finland. Since my landlord this year is a Finn, I figured I could use some good Karma, so here's their request for help.
They note that several studies document that beauty plays a role in the labor market: beautiful people earn more than others. Three economists are conducting a study to see whether there is a beauty premium in politics as well, such that beautiful candidates have greater electoral success. You are hereby invited to participate in the study, run by Associate Professor Niclas Berggren (The Ratio Institute), Dr. Henrik Jordahl (Uppsala University) and Professor Panu Poutvaara (University of Helsinki). The link is at https://www.beautystudy.se. In order to carry out our study, the economists rely on respondents to a web survey where people assess photos of politicians.
Another empirical project may be of more immediate interest. When I was in beautiful Vancouver for the AALS conference last week, I met Tulane Law's new prawf Tania Tetlow. So now I have New Orleans on my mind. (Sorry Georgia.) Tania and Brandon Garrett (UVA, law) recently posted on SSRN a draft of their forthcoming Duke L. Rev. paper on the utter demise of the post-Katrina NOLA criminal justice system. Tania mentioned in passing that the first criminal jury trial in New Orleans just took place recently, effectively signaling that the criminal justice system has been in receivership for the last nine months or so.
Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. For months the court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained.
Here's my thought to the smart folks over at the Empirical Legal Studies Blog. There are now reports that New Orleans is experiencing a crime wave of such proportions that Mayor Nagin has called for "National Guard troops to help patrol the streets." I would guess that the absence of a functioning criminal justice system might encourage more crime. On the other hand, the fact that even people who have been arrested on the basis of very minor crimes have had to languish in jail for a long time as the system halted suggests that signals of severity are being muted. In any event, NOLA might be good fodder for an empirical project. (One thing that struck me from the NYT is that although post-Katrina NOLA is roughly 50% bigger than Tallahassee's population now, its homicide rate is almost 10 times T-town's.)
Tuesday, June 20, 2006
Judges and Rising Above It All
Judges often will use sanctions to compel lawyers to follow rules, and one of the most important rules lawyers must follow is timeliness. Fines are a common sanction imposed on lawyers who can’t meet deadlines or show up on time. Judges, however, sometimes will issue sanctions that impact a substantive aspect of the case being litigated. For instance, if a lawyer files a motion late, the judge may refuse to consider the motion. Never a good thing.
In Ohio, a judge apparently has taken timeliness sanctions to a new level: when the prosecutor in a child sexual assault case was half an hour late for trial, the judge dismissed the case. Now, in my years of practice, I cannot recall many lawyer sins from the judicial perspective much graver than showing up late for a trial. But, I also can’t say I ever saw even the most unforgivingly punctilious judge toss a case to punish the prosecutor for something unrelated to the merits of the case. The news video of this story—which surprisingly includes an interview with the judge herself—suggests that an earlier clash between the prosecutor and judge may have contributed to some bad judicial decision-making. Perhaps this story is proof of why “judicial temperament” is viewed as such an important quality for judges.
China and Internet Optimism
When reading Goldsmith and Wu's Who Controls the Internet? (discussed previously here), the chapter that most disturbed me was the one on China. That was likely because I'm putting the finishing touches on my next book scheduled for publication in October, The Seach for Deliberative Democracy in China. My book certainly is optimistic for China's future; Goldsmith & Wu are pessimistic. To be sure, my optimism is based on interesting experiments in deliberative democracy underway within China; their pessimism is based on their conviction that the Internet can only do so much to open up a political society fully committed to controlling information and to preventing it from flowing freely. Goldsmith & Wu ultimately do not think the architechture of the Internet (however it may have been conceived by its founding fathers) contains the seeds of freedom; bordered and closed societies can remain so, an Internet notwithstanding. They use China as a case study to make this point.
In light of their pessimism, Nicholas Kristof's experimentation with blogging in China is interesting. In short, Kristof was able to blog within mainland China about all sorts of inflammatory matters that would be on the top of any censors list: he blogs aggressively about June 4, 1989, about the jailing of a NYT correspondent, about the Falun Gong. No one shuts him down. He concludes:
I don't see how the Communist Party dictatorship can long survive the Internet, at a time when a single blog can start a prairie fire.
Although before reading Goldsmith & Wu, I might be inclined to this optimism, Goldsmith & Wu have an easy rejoinder: as soon as people actually start to read a blog with any frequency and the critical and inflammatory blog gets wide readership, it is easy for the censors to shut it down. Of course, Kristof reports on just how easy it is to start a new blog in its stead. But I think he'd have to acknowledge that it is hard to blog from a Chinese prison. I remain optimistic for China's future; but I think Goldsmith & Wu are right that the Internet will only be relatively small part of China's transformation.
Premiere of Democracy (the Journal)
Sorry I've been off the box for so long--I just returned from a week long conference in Vancouver and am now getting ready to present my piece on the constitutional infirmities of indeterminate sentencing later this week. In the meantime, readers of Prawfs should cruise over to Democracy: A Journal of Ideas, which launches today. It's edited by a couple FOP's, Kenny Baer and Andrei Cherny, and Jed Purdy (Duke, law) and some of the usual suspects have made contributions to the launch issue. Here's the pitch from the editors as to why we need a new journal.
In this moment when we are seeing the failure of these conservative ideas -- in our mounting budget deficits, growing inequality, and diminished leadership in the world -- it is time for progressives to put forward their own bold vision to guide America through the challenges of the twenty-first century. We hope Democracy can serve as a place where progressives from across the spectrum can develop new approaches to the central domestic and foreign policy challenges of our time and have serious and substantive discussions about what progressives believe and want for the nation. We see our role as upsetting tired assumptions and as pushing the boundaries of what is accepted by, and expected from, progressives.
Working with us to guide the work of Democracy is an all-star Editorial Committee which includes Louis Caldera, Chris Edley, Bill Galston, Les Gelb, Elaine Kamarck, Robert Reich, Susan Rice, Isabel Sawhill, Theda Skocpol, Anne-Marie Slaughter, and Sean Wilentz. We launch Democracy today with a deep belief in the power of ideas -- that they are the foundation upon which policies are developed, movements are built, and America grows. As progressives undertake a massive effort to rebuild the progressive infrastructure, a quarterly journal of ideas is the missing piece of the puzzle.
Welcome to the conversation!
Lost among yesterday's significant rulings on the Clean Water Act and the Confrontation Clause was a decision where the Supreme Court used a device familiar to kickball players everywhere: the do-over.
In Youngblood v. West Virginia, the 28-year old defendant was convicted of sexual assault and other offenses, after spending some time with three teenage girls. His defense was that the sexual activity was consensual, and it wasn't frivolous. On appeal, one of his claims was that the police covered up the existence of a note, written by one or more of the girls and found at one of the homes where the activity took place, which lent support to his defense. Youngblood didn't find out about the note until after his trial.West Virginia's highest court rejected his appeal, with the dissent arguing that this was a clear Brady violation: the note should have been turned over to the defense, and Youngblood ought to get a new trial.
So Youngblood petitions the U.S. Supreme Court for cert, and yesterday's decision doesn't quite grant or deny cert. Instead, it uses the "GVR" device -- grant, vacate, remand -- providing the West Virginia Supreme Court of Appeals with the opportunity for a do-over on the Brady claim. The main dissent in the West Virginia court was all about this Brady issue, but the West Virginia majority glossed over it, prompting the U.S. Supreme Court to indicate, though not in so many words, that they suspect this was a constitutional violation, but "it would be better to have the benefit of the views of the full Supreme Court of Appeals of West Virginia on the Brady issue." Essentially: "Why don't you try that one again, maybe with a different answer."
As Scalia pointed out in dissent, it's a bit of a funny way to honor state sovereignty, and "better" is used here "much as a mob enforcer might suggest that it would be 'better' to make protection payments." And though I'm no jurisdictional expert, Scalia's dissent arguing that there's no basis for this kind of result seems persuasive. Scalia also speculates that one reason the Supreme Court didn't actually take the case might have been to avoid talking about oral sex in a Supreme Court opinion, which doesn't appear in Supreme Court Rule 10, though maybe it should.I assume this odd result is the product of a compromise, with at least a few of the liberals wanting to grant cert and reverse, and the rest just wanting to deny cert (I assume this is Scalia's desired result though it's not totally clear). None of them probably, and understandably, wanted to take up the Court's time with an error-correction case like this one, and might have been concerned about a per curiam reversal that set Brady precedent without full briefing or oral argument. And that all seems reasonable enough.
On the other hand, if the case under review and up for reversal was a Ninth Circuit opinion ruling in favor of a criminal defendant, or an immigrant seeking asylum, or an off-duty cop who was fired for making online porn (see City of San Diego last term), I suspect the Roberts court wouldn't have worried as much about setting precedent without full briefing or oral argument. This is just a scummy guy who got a constitutionally unfair trial, like a lot of people, and is now in jail serving a sentence of at least 26 years. Let the West Virginia courts mess around with it for a while.
Monday, June 19, 2006
I'm pleased to report that my essay "Rooted Cosmopolitans" appears in the current issue of POLICY REVIEW. I posted my early thinking about this subject here at Prawfs; readers were helpful, as always.
Raise Gas Taxes, Lower Income Taxes
Neither global warming nor geopolitical considerations have been enough to get America to adopt higher gas taxes or carbon taxes. The case for higher gas taxes is overwhelming. Higher gas taxes=less oil consumption=less carbon dioxide in the atmosphere and less money for nations such as Iran, Russia and Venezuela. To top it all off, gas taxes would raise revenue, a nice thing in this time of deficits . But if the case is so obvious, why don't we have higher gas taxes?
Low gas taxes are not simply a symptom of Republican ascendancy. State gas taxes are generally as high or higher than the federal gas tax, and yet even the bluest of blue states have extremely low gas taxes by world standards.
So what gives? I can think of two potential explanations. 1. No one likes tax increases and the gas tax is a very visible tax and 2. The oil lobby is very strong. I don't find either explanation particularly convincing, however.
True, the gas tax is visible and no one likes tax increases, but how about the following proposal? Raise the gas tax and lower income taxes such that the average person's tax burden remains constant. A combined proposal like this would not even raise the total tax burden. This proposal also addresses one conern about a higher gas tax-- its regressive nature. If gas taxes hit the poor harder than the rich, then the poor's income tax rates will go down by more than those of the rich.
This proposal would seem to provide political cover for higher gas taxes. Politicians will be raising the gas tax not because they like higher taxes (the net tax burden would remain unchanged) but rather because they dislike global warming and global instability. By enabling lower income taxes, higher gas taxes enhance efficiency by mitigating distortions in savings and labor supply decisions.
Perhaps people react more strongly to an increase in prices at the pump (which is highly visible) than a change in income taxes, which makes my gas tax/income tax proposal a loser in most people's eyes. Maybe, but the price of gas in highly volatile, and it seems to me that a gas tax could be phased in an almost imperceptible fashion. For example, suppose the gas tax were increased monthly over a two year period. Moreover, suppose that the monthly gas tax increment only goes forward after a two day decline in prices. Phased in this way, the increase in gas taxes would mostly get lost in the noise of everyday price fluctuations. Over a longer stretch, people would notice a price increase, but my intuition, and the book I'm reading, tells me that people would be most irked by a sudden one day increase.
I have no doubt that the oil lobby is powerful, but I have a hard time believing that it is able to dominate the politics of every state. You would think that environmental and national security interests would at least be able to change policy in one state or another. Moreover, it doesn't seem that the country wants higher gas taxes, but is being thwarted by a powerful minority. Rather, I think its more likely that higher gas taxes are genuinely unpopular with most citizens. Higher gas taxes need to be repackaged.
So I'm left back where I started. The arguments for higher gas taxes are compelling and seem relatively easy to understand, and yet gas taxes seem entrenched at very low levels. I welcome any explanation or comments about my raise gas taxes/lower income taxes combo.
Military "Intelligence" About Homosexuality
The same Pentagon that has coddled American soldiers who assault injured American soldiers during wartime has some mental health news for us: homosexuality is a mental disorder:
A Pentagon document classifies homosexuality as a mental disorder, decades after mental health experts abandoned that position.
The document outlines retirement or other discharge policies for service members with physical disabilities, and in a section on defects lists homosexuality alongside mental retardation and personality disorders.
[ . . . ]
The document, called a Defense Department Instruction, was condemned by medical professionals, members of Congress and other experts, including the American Psychiatric Association [“APA”].
[ . . . ]
"Based on scientific and medical evidence the APA declassified homosexuality as a mental disorder in 1973 -- a position shared by all other major health and mental health organizations based on their own review of the science," James H. Scully Jr., head of the psychiatric association, said in a letter to the Defense Department's top doctor earlier this month.
There were 726 military members discharged under the "don't ask, don't tell" policy during the budget year that ended last Sept. 30. That marked the first year since 2001 that the total had increased. The number of discharges had declined each year since it peaked at 1,227 in 2001, and had fallen to 653 in 2004.
“You’re entitled to your own opinion, but you’re not entitled to your own facts,” former U.N. Ambassador and U.S. Senator Daniel Patrick Moynihan famously said. I suppose the Pentagon could say this “mental disorder” questions is an “opinion,” but when it’s rejecting the medical establishment’s long-settled opinion, it’s pretty much making it up as it goes along, unable to distinguish a certain part of its anatomy from its elbow.
ps: My apologies for my recent absence from blogging (not that the proletariat really were up in arms about a Moss-less PrawfsBlawg); it was due to a combination of (a) cranking hard to draft an article and -- more pathetically – (b) my annoyance at TypePad when I lost a draft of an amazingly long post weeks ago. I decided to grow up and get over (b), but as Colbert would say: “TypePad: You’re on notice!
Slate on Slate
For its tenth anniversary, Slate offers a series of guest authors a chance to say "What's Wrong with Slate." It's a practice I will not be initiating for wedding anniversaries, but the articles -- by Michael Wolff, Eugene Volokh, David Talbot, and Jonah Goldberg -- are worth reading. Wolff is too vague in his criticisms at times (to say of Michael Kinsley, "I just don't get him," not only doesn't tell us what's wrong with Slate, it doesn't even tell us what's wrong with Michael Kinsley), but nicely, if impressionistically (and yet I think he gets his finger on it), sums up a certain style of "extreme and relentless careerism" that he finds pervades the site. And while I normally find Jonah Goldberg's columns poor -- I would say that, with Joel Stein, the LA Times is down to one worthwhile columnist -- his description of the problems with Slate's contrarian ways, like those of TNR before it, again hits the mark.
I pass along this recommendation that you take a look with some hesitation. As Eugene observes, Slate is worth criticizing largely because it's also generally very much worth reading. And there is still greater cause for hesitation. These critics coalesce around the view that Slate is filled with bright, overly ambitious, studiously and excessively counterintuitive yet usually reflexively liberal (but only to the extent that the brand of liberalism doesn't challenge class prerogatives or elite institutions), pusillanimous teachers' pets. Which also describes a substantial proportion of the active blogosphere and, some heretics would suggest, not a small number of the legal academy. As for members of the legal academy who blog, well....
Present company excepted, of course.
Confrontation Cases Decided
Today the U.S. Supreme Court issued its decisions in Davis and Hammon, the follow up cases to the Supreme Court's landmark Confrontation Clause decision in Crawford v. Washington. Davis and Hammon applied Crawford to domestic violence cases in the context of 911 calls and accusations to responding officers, respectively. SCOTUSblog has gathered several people to participate in a discussion board about the cases, and I will add my own thoughts later today. Michigan law professor Richard Friedman, who argued the Hammon case before the Supreme Court, has his initial take up already. His first impression? "[F]or a guy who has just won his first Supreme Court case 8-1, I’m feeling pretty grumpy."
Interesting, Substantive Blawg Posts
This isn't one of them.
But over at Empirical Legal Studies, they've got a series coming this week on the "New Legal Realism" from some of the leaders of the project, started by folks at the American Bar Foundation and U of Wisconsin Law School. As someone relatively new in the academy, I'm told that being self-conscious about methodology is important, which seems both smart and easy to forget. So even for those of you who don't consider yourself empiricists per se (can I be a serious person if I don't run regressions?), this looks well worth checking out.
Add to this the virtual junior corporate scholars workshop over at Conglomerate, highlighted by Concurring, and spending time in the legal blogosphere this week should be completely guilt-free. Enjoy.
Sunday, June 18, 2006
The Future of Health Law
The HealthLawProf blog has posted a nice set of links to the recent Wake Forest symposium on the future of health law. There are plenty of insightful essays there, but I'd just like to focus on two topics.
1) A few essays ask the question "is health law a coherent body of law," implicitly (and sometimes explicitly) responding to Easterbrook's 1996 article on the "law of the horse." Easterbrook challenged "cyberlawyers" by claiming that their field wasn't a proper legal field at all, but just a mishmash of legal doctrines that happened to relate to computers and the internet. Lessig long ago offered an intricate and well-reasoned response to Easterbrook, but here Einer Elhauge offers a more straightforward dismissal:
The last I checked, horses do not minister to sick persons in ways that others do not, are not governed by separate standards of care and professionalism . . .do not constitute staff that run large institutions in a uniquely decentralized fashion, are not thought to deserve special tax breaks and antitrust solicitude in their joint dealings, [and] are not thought to implicate moral rights to access . . . .
In other words, like family law, health law is an important field simply by virtue of its human significance. It may not be "coherent," but how much of law truly is? Moreover, I'd encourage any law student to take courses on how different areas of law interact (albeit incoherently) in a given industry.
(As the last page of this article shows, it's instructive just to track the different degrees of attention given to certain topics in health law textbooks over time. Many different stories could be told about the colonization of an ostensibly private health care system by administrative law.)
2) Timothy Jost offers a fascinating take on how to fix our broken health care system. If you are at all intrigued by the bipartisan Massachusetts compromise for universal health coverage, take a look at this article. Jost brings a comparativist's lens to the American system, offering a surprisingly hybrid approach to assuring access and containing costs. (And finally, if "comparativism in health law" intrigues you, this book is a must-read.)
Saturday, June 17, 2006
Answering the "balance" question
In my experience, one job of women law prawfs is to field "the balance question." Perhaps the Notre Dame pool is skewed (although I doubt it), but women law students frequently come to my office to ask about work and family. The conversations are all similar: "Professor, I have a question about something that is not related to law school exactly . . . I really want to have a family, and I was wondering how you balance your career with your family." In my experience, the inquirers fall into one of three categories: (1) those who want to "have it all" -- so want to hear that their kids will never interfere with their careers; (2) those who want to stay home with their kids -- so want to be told that staying home is a valid and respectable choice; and (3) those who really want achieve balance but know that balance will be hard to achieve. (Most women students fall into the third category, as far as I can tell. I've only fielded "the balance question" from a handful of men.)
I take the job of mentoring students seriously, which is why I never know how to answer this question. In my experience, the key to "balance" is flexibility. (Rick -- yes Rick Garnett of Prawfsblawg fame -- and I ran out last week to attend my daughter's end-of-kindergarten picnic; he was one of two dads there.) I am in Phoenix vacationing, and the Arizona Republic features a story about yet another Bar task force on the lack of women lawyers in leadership positions. These efforts demonstrate that the legal profession has yet to figure out how to make legal practice flexible. So, I am left wondering what an honest but encouraging answer to the balance question is?
Friday, June 16, 2006
TNR has a bunch of fun stuff to read:
1. Lee Siegel on the unbearable lightness of Gladwell. While we're on the subject, you might want to check out Noah Tall's parody Blank: The Power of Not Actually Thinking At All. As described on the back of the book, "Noah Tall is a longtime subscriber to The New Yorker and other magazines that people leave on their coffee tables when they want to look smart. . . . He is the author of the highly acclaimed national bestseller The Tippling Point, which has yet to be published. "
2. An editorial on net neutrality. I'm still hoping Google can discriminate against porn providers to give San Francisco residents quality and quick free wireless.
3. A scathing review of Mansfield's Manliness by Martha Nussbaum. This is surely a very good example of a book that would have faded into obscurity fast if it hadn't been written by a Harvard professor. Or perhaps people still would have felt the need to discredit it even if it was written by an obscure professor and published by the Penn State Press. The New York Review also felt the need to run a review about this book by Garry Wills here. A very oddly-written review, I might add.
Enhancement Gone Awry
The NYT has yet another story on plastic surgery in its Thursday Styles section, focusing on the new "microprocedures" of liposuctioning knees and ankles. Ana Bartow has already cuttingly commented on the Times' obsession with modish means of body modification. I just want to juxtapose a few provocative quotes.
First, to their credit, the Times notes that
some sociologists and medical ethicists say that using liposuction — which can cause complications ranging from infection to death — for such tweaks raises profound questions about the increasing risks cosmetic doctors and patients are willing to take in the name of perfection. They say these microprocedures may signal a shift in beauty standards in which people come to regard the body the way they do their cars or kitchens: as an object able to withstand never-ending renewal and modification.
But it's back to so-called "journalistic objectivity" by the end of the piece, with a "bioethicist" commenting that "'Humans have always been willing to invest time, energy and risk in looking attractive, so I don't see smaller liposuction procedures as a sign of doom, gloom and the downfall of our culture.'"
Which brings me to the legal question. Some of the procedures mentioned in the article were so "micro" that almost no one could notice what had occurred. Query: what if a patient just asked a doctor to perform surgery, with absolutely no effect on their appearance? Would it be legally permitted for the doctor simply to take the money, make the incision, take out, say, a gram of fat? Is this purely a matter of contract? Or should legal standards prohibit such a transaction?
A final point: many libertarian bioethicists love to point out that the line between "therapy" (curing disease) and "enhancement" (making someone "better than well") is very difficult to draw. I think that's only true to the extent we take it to be true. As Victoria Pitts comments in the article, "The goal posts are changing so rapidly that what was once considered cosmetically unnecessary is now considered helpful . . . . [As more of the body] become zones of perfectibility, we will feel more and more pressure to get involved in projects that improve them." Query: is that type of pressure at all socially useful? Or, rather, does it betoken an infectious vanity that leaves everyone worse off?