Tuesday, October 31, 2006
Underneath Their Robes?
This is a picture of the ceremonial robes worn by the Justices of the Supreme Court of Canada:
According to the Court, the robes are "of bright scarlet trimmed with Canadian white mink."
And this is a story from today's Globe and Mail:
Some [Canadian] Supreme Court judges seek relief from work stress in the comfort of their families. Others love nothing more than to curl up with a good book. And could it be, for at least one of them, a nude romp on the high seas was just the ticket?
The anonymous judge's alleged unconventional vacation choice -- a nude cruise -- came to light in a San Francisco Chronicle travel article in the spring. It quoted a co-owner of the Bare Necessities cruise line, Nancy Tiemann, as saying that its clientele include: "actors, bus drivers, Fortune 500 CEOs, soccer moms, doctors, teachers, priests and at least one Canadian Supreme Court justice." * * * * *
The story came to the attention of Chief Justice Beverley McLachlin, who swiftly launched an investigation into which, if any, of her eight colleagues was the alleged unrobed sailor. * * * * *
In an e-mail to the author of the article, Chronicle deputy travel editor Spud Hilton, an assistant to Chief Justice McLachlin said: "Dear Spud. We here at the Supreme Court of Canada read with great interest your article on nude cruising. You mentioned 'at least one Canadian Supreme Court judge' has taken part, based on your conversation with Nancy Tiemann.
"We were curious, to say the least, and are wondering if you can say who those justices were," said the e-mail, a copy of which was supplied by Mr. Hilton. "Or, perhaps the co-ordinates for Ms. Tiemann, if she is the source of the info."
According to Supreme Court Justice Marshall Rothstein, the investigation ran aground at this point. Speaking to an audience at the University of Toronto law school last week, Judge Rothstein read a tongue-in-cheek memo which Chief Justice McLachlin circulated to her Supreme Court colleagues on May 12.
Entitled "Re. Nude Cruising," the memo said: "I made inquiries into the identity of the judge, but was rebuffed on a claim of journalistic privilege. . . . All this is to say, that our secret is safe."
Judge Rothstein assured his audience that, having been appointed only in March, he cannot be considered a serious suspect in the nude-cruise inquiry.
Well, it makes perfect sense to me. It's got to be hot in those things! But I wouldn't peer too closely under those judicial robes, if I were you . . . .
(Hat tip for the title: A3G, as s/he then was.)
The Philip Morris Argument: When Life Imitates Law
I don't have any thoughts to offer at present on punitive damages, a la Dan (you know someone has something profound to say if the title involves the word "whither"). But I can't resist offering this snippet from an AP story on today's oral arguments in the punitive damages case:
Williams, according to his widow, never gave any credence to the surgeon general's health warnings about smoking cigarettes because tobacco companies insisted they were safe. Only after falling sick did Williams tell his wife: ''Those darn cigarette people finally did it. They were lying all the time.''
See also the Oregon Supreme Court opinion here for more details.
Williams died in 1997. So, taking his claims as true, Williams adamantly refused to believe the Surgeon General and a raft of other voices, speaking out on the medical consequences of tobacco use not only as of the date of the first S-G warning but well before that; he actually explicitly told family members that the cigarette companies would not sell the product if it were dangerous; and only on his deathbed, and for reasons that are not clear to me (after all, tobacco use is a leading cause of lung cancer, but not the sole cause), did he conclude, and again helpfully say out loud in the presence of witnesses, that "those darn cigarette people finally did it. They were lying all the time." Not even that they had wronged him, mind you; but that they had done so through an actionable tort of fraud.
Now, I don't mean to be callous, and about the tragic nature of both Williams's death and Philip Morris's shared culpability I hold little doubt. But surely there is good reason not to believe a word of this. Another example of the ways in which litigants, forcing the past through the gauntlet that any set of facts must traverse in order to state a successful legal claim, create a narrative that bears about the same resemblance to lived reality that a dressmaker's dummy does to a human being. One might feel much the same way about people's descriptions, in lawsuits, of their injuries. Not that one necessarily disbelieves that they have suffered injuries, but their descriptions of those injuries often sounds suspiciously as the injury fits juridical categories rather than lived experience. (Nor is this all about plaintiffs, of course; the narrative shaped on behalf of defendant employers in defense of their alleged conduct in job discrimination cases is also often stunningly other-worldly.)
If I were an alien from another planet, sent to report back on the nature of human existence, I think the last place I would look would be the law reports. The novels of Richard Russo, maybe. But law reports, never.
Farewell, Education Governors, and Kazakhstan Tourism Commercials
Thanks to Dan for the invitation to contribute my thoughts here for a couple of weeks, and to those who read and commented in response, whether on the blog or elsewhere. I’ve enjoyed it! As a parting post, I’d like to share thoughts on two unrelated ideas.
First, with an eye on next week's elections: the weekly periodical Education Week has an interesting interactive map of the U.S. in which it summarizes gubernatorial candidates' education policy agendas. Click here (registration required, a link under the check mark icon will take you to the map).
Second, a frivolous bit of pop culture: as you may have heard, the satiric “Borat movie” is coming this Friday to a theater near you, and it seems likely to make quite a splash. According to Entertainment Weekly:
At first glance, Borat, which opens in theaters on Nov. 3, looks like some weird foreign public-access TV show that has inexplicably found its way onto the big screen. Shot in deliberately crummy-looking video, it's a faux documentary about a TV reporter from Kazakhstan named Borat Sagdiyev, who embarks on a journey across America for the supposed edification of his audience back home. In his travels, Borat encounters a wide range of real-life Americans: Wall Street power brokers, political leaders, Pentecostal churchgoers, genteel Southern ladies, Pamela Anderson. Oblivious to American notions of decorum and political correctness, he cheerfully says appallingly inappropriate and offensive things at every turn in his unique brand of broken English, punctuating them with overeager exclamations: ''I like!'' ''Hi-five!'' ''Very nice!'' ''Sexytime!'' He mangles the national anthem at a Virginia rodeo. He releases a chicken on a crowded New York subway car. He brings a prostitute to a posh Southern society dinner. Some people are charmed by the seemingly innocent Kazakh bumpkin. Others are simply baffled. Some are outraged to the point of calling the cops. None seem to have the slightest idea that it's all a complete and total put-on: Smile, you're on Kazakh Kamera!
Apparently the Kazakhstani government is concerned enough about whether we think Borat is representative of Kazakhstan that it has run some tourism commercials here in the U.S. However, airtime is expensive, and the only such commercial I have seen was on CNN, or maybe it was Headline News, sometime in the Sunday 5:30-6:00 a.m. hour several weeks ago. (Hey, I was getting up early to catch a flight home from a conference.) I didn’t realize what I was watching until the end of the brief spot when the tourism slogan flashed across the screen as a melodic voice intoned: “Kazakhstan. [pause, pause] Haven’t You Always Wondered?”. Well, if you have, the website for Kazakhstan’s American and Canadian embassy is here, and it includes official government comments about, yes, the Borat movie.
The Downside of Judicial Independence
The legal profession takes great pains to advocate for the independence of the judiciary, and overall an independent judiciary is, I think, indispensable for the achievement of justice. I have written a good deal on the subject over the last few years, and I generally accept the idea that public input into judicial selection has great benefits (as well as disadvantages), but I very much dislike the idea that sitting judges can face repercussions for decisions that displease the public.
If you agree with me about that, however, you must accept the abuses that inevitably accompany judicial independence. It seems to me that one of those abuses is now on-going in Kenton, Ohio. From what I've read in newspaper articles and from what I learned on Outside the Lines, the facts are roughly these:
A group of teenagers, including two members of a high school football team, placed a deer decoy on a highway as a prank. Two other teenagers, who were driving on the highway, swerved to avoid the fake deer, went off the road, rolled-over their vehicle, and sustained serious injuries.
The teens who played the prank were tried and sentenced to 60 days in juvenile detention. That seems appropriate to me. But the judge, Gary McKinley, put the sentence on hold for the fall, so that the boys would not have to serve the sentence during football season. Further, the school board voted 3-2 not to institute a rule that would allow school officials to sideline convicted criminals. Now, I like sports as much as most, but this strikes me as pure lunacy. (Ohio, by the way, elects judges on a nonpartisan ballot, according to my somewhat dated Book of the States.)
To be sure, the consequences of subjecting judges to popular oversight are likely to be worse than this, which is why I do not favor such a system. (And it is possible that the public would not agree with my critique of the decision -- reports are that the community is divided over the question whether these criminals should be able to play football.) But it bears mentioning that once in a while it would be a good thing to be able to make judges accountable when they make decisions like this.
For further information, see Beth L. Jokinen, Kenton Deer Decoy Case: They're Playing, Lima (Ohio) News, Aug. 25, 2006.
Religion Week I: Andy Olree: The Choice Principle
I've been quite delinquent in blogging lately, due to other commitments. Mea maxima culpa. I'm grateful to our wonderful guests, who have been keeping up a steady stream of great posts. This week, I think, I'll offer a series of posts spotlighting various interesting readings about law and religion, or religion and politics, that have been crossing my desk in the last little while. Some of them are thought-provoking and terrific. Others are worthy of notice for, ahem, other reasons.
Let's start out on a positive note. Andy G. Olree is a professor at the Jones School of Law, a Christian-centered law school located in lovely Montgomery, AL, where I lived when I was clerking on the 11th Circuit; the school has recently been granted provisional accreditation by the ABA. Prof. Olree has recently published an interesting book, The Choice Principle: The Biblical Case for Legal Toleration. Here are some snippets from the introduction and from the author's own description of the book:
This is a book about evangelical Christians living in a democratically controlled country called the United States. It is a book about what these Christians have done, and will do, with their political influence in that democracy. It is about a group of Christians who believe in absolute truth that can be known from Scripture; . . . . And it is about whether all that truth must somehow be written into our laws....
Current evangelical political discussions spend lots of time and ink endorsing lists of particular moral standards regarded as "absolute" and marshaling biblical support for these, and then comparing these lists to secular culture. The analyses may include calls to specific political action. But they are virtually silent on the separate question of what God's will is -- not regarding the moral standards, but regarding the political action -- and how we know. Perhaps they are silent because they have never understood this to be a logicall separate question....
My central thesis is that the New Testament does not support any program of strong legal moralism. Instead, . . . it suggests that God ordains governments for the limited purpose of protecting citizens from victimizers who would directly harm others through force or fraud. This understanding would exclude legislation for other purposes, such as discouraging sexual impurity or the hoarding of wealth. I conclude that an evangelical commitment to moral absolutes and the authority of Scripture need not entail government endorsement of religious trughts or legislation of any particular view of what constitutes a virtuous life. I believe these conclusions cast doubt on the political agenda of both the evangelical Right and the evangelical Left.
I haven't read the whole book, so let me not say too much more; you can read it yourselves. But I think this is a valuable project, whether or not one agrees with Prof. Olree's conclusions. Particularly striking, I think, is that second indented paragraph above. I think Olree performs a valuable service from within the religious community in underscoring the vital distinction between our knowledge of God's will as to moral truths, and the question of what God's will is with respect to the political implementation of those moral truths.
I fear that Prof. Olree has set himself a lonely path. He runs the risk of being ignored by those who simply think of the evangelical community as an alien other or know it only through stereotypes. At the same time, he risks being dismissed by those within the evangelical community who simply want to implement moral truths without concern for the subtle distinctions Olree draws, or who have simply overleapt the religious garden for the political and partisan wilderness, and so might consider his work a distraction or, worse, disloyal. But those people within the religious community who consider such questions important, and those outside the religious community who greatly appreciate such discussions, should welcome Olree's (pardon the pun) good faith effort to raise some valuable questions about the interplay of religious truth and political action.
Whither Punitive Damages?
I've been on the road a lot the last ten days and will continue to be moving this week thru next, shuffling among 3 weddings, 3 talks, and two conferences. But I didn't want to let today pass without some mention about punitive damages. That's because this morning, the Supreme Court will hear arguments in Philip Morris v. Williams. The Times has its obligatory editorial here. And in today's SSRN email from Adler and Bix, there is mention not only of Criminal Justice and the Challenge of Family Ties (finally, the SSRN backlog is clearing!), but also Brooklyn Law's Tony Sebok's latest piece, Punitive Damages: From Myth to Theory.
This semester at the University of Miami (and next semester, back at FSU), I'm teaching a seminar on punitive damages. It's been a great class, to my mind. We read the relatively short constitutional history of the Court's regulation of punitive damages, along with leading theoretical accounts of punitive damages and other interesting (non-SCOTUS) punis cases. Additionally, the students in the seminar have also prepared for today's arguments by reading the briefs on both sides as well as various amicus briefs lodged (chiefly the ones by academics). Next week, we'll review the transcripts of oral arguments from today. This is all very useful for me, as I've been working on a large manuscript for the last while, entitled Retributive Damages. This paper provides a retributivist account of punitive damages consistent with the work on retributivism I've done in other papers.
The issues before the Court today are twofold and they are among the most important questions the Court has yet to face in its adventure in tort regulation: first, whether the extreme reprehensibility of Philip Morris' actions can trump the two other parts of the SCT's 3 guideposts for constraining the amount of punitive damages (PD); and whether juries can consider the wrong done to non-parties in determining the amount of PD.
I plan on having some more posts on PD, but for now I wanted to flag the fact that the Court is hearing arguments on this important and perplexing topic today, and I invite readers to weigh in with their preliminary thoughts.
Culture & Normativity
Last Thursday, Sam Scheffler (Philosophy, UC-Berkeley) presented at the Dworkin-Nagel-Waldron-Show at NYU. He talked about his paper, Immigration and the Significance of Culture. It is a good read -- and I recommend it.
One of his central claims, however, struck me as troublesome. In his general argument that culture and cultural claims deserve no special deference from the liberal society, he needed to distinguish what is distinctive about religious, moral, and philosophical claims, which do get such deference in a liberal polity. Toward the end of the paper, he took up this challenge and concluded that the latter draw upon normative authority and have normative content in providing reasons for agents -- and that culture does not. This claim is central to the entire project, for if the non-normativity of culture doesn't withstand scrutiny, the edifice of his argument collapses. I pressed him on this because I tend to think culture is routinely used as normative authority: for the secular among us, virtually all religious claims are actually cultural claims -- and many of us engage in practices and maintain convictions that draw from culture's normativity. The example I used on Thursday was the Jewish agnostic or atheist who refrains from eating pork or shellfish; Nagel added the French-speaker looking to preserve her language. It is hard to call these convictions and practices moral, philosophical, or religious -- and it is hard to suggest that they lack a source of normativity. Scheffler wants to say -- and did say in response -- that "cultural" doesn't add anything to these reasons; they are independent reasons of value. I continue to believe that the normativity of culture is undeniable. And that while culture may not "add" anything to these reasons, the term helps identify the class they fall into.
I concede that I'm not sure what follows -- and most of Scheffler's conclusions are ones with which I am sympathetic. But I can't get to those conclusions by denying culture's normativity and its source in furnishing reasons. Thoughts?
Ben Barros suggested that I blog something about the virtues of co-authorship in light of my long and successful collaboration with Gideon Parchomovsky. I am delighted to do so, and, in fact, have co-authored this post with Gideon. I present it with the standard caveat that I give before presenting any of our joint works: what I say here is said in both our names, and Gideon will be more than happy to receive all comments about any possible errors.
The benefits of a good collaboration are obvious, I think. There are synergies in developing ideas together and for people who are bad self-starters (like me), the obligations of a collaboration can keep the work proceeding at a steady pace. The problem is coordination costs, which are highly variable and depend on the partners. In truth, I'm not sure that I can say as a rule that collaborations are worth the effort as each collaboration has its own dynamic. I do think that coordination costs go down the more one works together with the same partner, and I can confidently add that I feel Gideon and I have been successful working together thanks to Gideon's geniality, our ability to translate heated debate into interesting claims, our having developed comfort in a common voice, and lots of good espresso and scotch (not at the same time, of course).
Monday, October 30, 2006
"Will work for justice" and other helpful judicial campaign slogans
I recently sent off my voter ballot as a first-time Washington State voter—which is done by mail here, strangely. I even had to supply my own stamp! As I completed my ballot, however, I reflected on the many candidates from whom I was expected to select to fill various local judgeships, and of the campaigns that many of them ran.
I voted for judges when living in New York City too. But in New York, judicial elections were basically pre-determined by party nominating conventions. This practice recently was enjoined by the Second Circuit Court of Appeals, so I assume that New York will turn to more of a true primary and open election system like here in Washington. And, it’s pretty strange, in my view, even unseemly, to see all the flyers, billboards, lawn signs, and cheesy TV commercials and web sites (see here, here and here, for some examples) for judicial candidates hawking for votes right along with all the “true” politicians. Beyond cheesy, the primary election in September was truly rancorous—and in some cases heavily funded—in some of the judicial elections, which included positions on the State Supreme Court.
Don’t get me wrong, many of the judicial candidates here have struck me as high caliber, and if elected surely will do a good job. But, despite the recent loosening of ethical restrictions on judicial campaign statements, judicial elections in the end do seem to devolve into empty cliché and “endorsement” contests that don’t inform voters very much about actual judicial views or merit (for an example how little substantive information voters really get about judicial candidates, look at this survey of the 2006 WA Supreme Court candidates by the Family Research Council), and invite interest group money into judicial campaign war chests. My question, which may not be a novel one, is whether these kinds of elections actually ensure that judicial candidates do a better job than if they had been appointed in some manner outside of the electoral process? Have any studies documented a beneficial effect on judicial performance from the electoral accountability of state and local judges?
Continuing the Research Canons Project
We've reached the end of our research canons categories. Overall we have 42 categories covering the primary areas of research for legal scholars. The initial post, which now includes links to all of the categories, is here. The Prawfsblawg index is here.
We are extremely grateful to those of you who contributed to this project. Thus far we have had 220 comments, as well as links from fellow blawgers such as Truth on the Market, the Volokh Conspiracy, Opinio Juris, Environmental Law Prof Blog, PropertyProf Blog, Workplace Prof Blog, Tax Prof Blog, Trial Ad Notes, Wills, Trusts & Estates Prof Blog, Fire of Genius, Patently-O, Unincorporated Business Law Prof Blog, CrimProf Blog, Concurring Opinions, Heafey Headnotes, Legal Research and Writing, the Legal Ethics Forum, and the Legal Profession Blog. (Let me know if I missed you.) Special thanks to Patrick S. O'Donnell, who has contributed his quite extensive bibliographies on many of the categories for this project.
But this is not the "end" of the canons project. There are a few categories that have yet to get an entry: Trusts & Estates, Securities Regulation, and Dispute Resolution. Several other categories just have one entry, and every category could use additional commentary or input. If you have found this project valuable, perhaps you could take some time to suggest a book or article that has served as a "canon" for your research.
I hope that this project will continue to serve as a resource on into the future. A weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten. But that need not be the case. With continued input, the Research Canons project can continue to serve as a place for suggestions, discussion, and debate about the most important works in our various fields of endeavor.
Thanks again for your help.
The Anti-Same Sex Marriage Movement Takes Aim at My Marriage
South Carolina has a broad anti-same sex marriage and benefits amendment on its ballot this fall. I've been somewhat involved with the debate and, thus, have attended more than my share of debates and forums on the proposed constitutional question. In listening to the anti-same sex marriage folks, I have become increasingly troubled (and frankly frightened) about their persistent harping on the innate differences between men and women in explaining the purported need to limit child-rearing to opposite-gender couples. According to their argument, men and women bring different things to child-rearing and children need that difference.
I have a simple question for those who use this argument to limit the civic equality of gay and lesbian parents: are you coming for me next?
My wife and I are both law professors. We each have two Ivy League degrees and two graduate degrees. We have separate last names, hyphenated our children's last names, and never even thought about any other option. We divide childcare very evenly and largely in response to our shifting work commitments. Because it is more convenient for our schedule, I do all the cooking.
Moreover, my wife has a personality that is, in many ways, more stereotypically male, while I have many stereotypically feminine personality traits. When we disagree, I am the one who always tries to process things to death, while she eschews talk, needing instead time and space. She is the stoic one; I am the emotional one. While we both embrace attachment parenting, she takes a firmer hand when our four-year old misbehaves while I am more nurturing (and more gullible).
We are raising our son and daughter in a household where gender is not destiny, where not only career opportunities but also interests and personality traits are equally open to both of them.
If the anti-same sex marriage crowd means what it says about the need for raising children in households where there are two distinctly and traditionally gendered parents, then they are directly challenging my fitness as a parent (and I suspect many of yours). If not, then the reference to gender difference as an explanation for favoring one form of two-parent household over another is, at best, ill-thought out and, at worst, a smokescreen for naked bigotry.
Sunday, October 29, 2006
The Conference that Blogs Built
So, I just returned to California from the First Annual Colloquium on Current Scholarship in Labor & Employment Law at Marquette Law School, and I think I can speak for (most? many?) when I say that this was a great conference. With so many interesting papers, on everything from Title VII, to whistleblowing, to labor, it's difficult to know where to begin.
Over on WorkplaceProf, Paul Secunda (Ole Miss) has already graciously thanked everyone, and I have –already - mocked his use of the smiley face graphic (a bit ironic to use the Walmart symbol for a labor and employment conference, eh Paul?).
A “theme” of the conference that emerged involved the use of powerpoint graphics. One panel I attended featured Michael Z. Green (Texas-Wesleyan) who had powerpoint animations, Scott Moss (Marquette) who had odd embedded clip art deployed to humorous effect, and Marcia McCormick (Cumberland) who had meticulously drawn images that looked almost postmodern. Of course, these speakers all had interesting things to say too (about arbitrator bias, confidential settlements, and collaborative dispute resolution respectively), but that’s beside the point, no?
It was also great to catch up with folks on blogs, which in addition to the aforementioned, also included Joe Slater (Toledo); Michael McCann (Mississippi College); an unnamed, but very cool blogger; and Prawfsblawg’s own Orly Lobel.
Which I guess brings me to the point of this post, which is that the conference had its beginnings in the blogosphere, with Joe, Scott, and Paul deciding – in cyberspace – that they were going to organize this conference. I’m still thinking this through, but perhaps this conference is a testament to the idea that blogs aren’t by any means the antithesis of scholarship (as a distraction, or just providing glib soundbites, as I have seen argued by others before). Perhaps what they can do is assist us in creating welcoming scholarly communities (whether online, or in person).
Friday, October 27, 2006
Statement that refutes itself
I have a question. But first the (long) intro.
I admit that diplomats are masterful at issuing slippery and meaningless statements as well as careful euphemisms that mean the opposite of what they say. Nevertheless, I was struck by the following statements of Javier Solana, the EU's "foreign policy chief." I don't recall seeing recently such a wonderful example of a statement that refutes itself.
In an interview with the Jerualem Post, Solana explained that Hamas does not really want to to destroy Israel, even though the terrorist organization is quite explicit about its goals not only to eliminate Israel through jihad (Hamas charter, articles 11-15) and raise the banner of Islam over all of historic Palestine, inclusive of Israel (article 6), but also annihilate all Jews on Judgment Day (article 7). Why is Solana so sure of this? Solana explained that history shows that people and nations "adapt to reality" and Solana "cannot imagine that the religious imperative, the real religious imperative, can make anybody destroy another country"; thus, said Solana, "I don't think the essence of Hamas is the destruction of Israel." It seems to me that Solana's remarks do a wonderful job of demonstrating that at least some people can steadfastly refuse to adapt to reality.
So here's the question -- can anyone who has studied such matters tell me what the formal name is of the logical fallacy committed by a self-refuting statement?
Research Canons: Comparative Law
Our next subject matter for the research canons project is Comparative Law. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
This is our last installment. We'll have a wrap-up of the canons project next week.
Update: Patrick O'Donnell has contributed his extensive bibliography here.
"Is There a Culture War"?
That's the title of a new book edited by E.J. Dionne and Michael Cromartie and written by James Davison Hunter and Alan Wolfe. Here's a description of the book:
In the wake of a bitter 2004 presidential campaign and in the face of numerous divisive policy questions, many Americans wonder if their country has split in two. People are passionately choosing sides on contentious issues such as the invasion of Iraq, gay marriage, stem-cell research, and the right to die, and the battle over abortion continues unabated. Social and political splits fascinate the media: we hear of Red States against Blue States and the "Religious Right" against "Secular America"; Fox News and Air America; NASCAR dads and soccer moms. Is America, in fact, divided so clearly? Does a moderate middle still exist? Is the national fabric fraying? To the extent that these divisions exist, are they simply the healthy and unavoidable products of a diverse, democratic nation? In Is There a Culture War? two of America's leading authorities on political culture lead a provocative and thoughtful investigation of this question and its ramifications.
James Davison Hunter and Alan Wolfe debate these questions with verve, insight, and a deep knowledge rooted in years of study and reflection. Long before most scholars and pundits addressed the issue, Hunter and Wolfe were identifying the fault lines in the debate. Hunter's 1992 book Culture Wars put the term in popular circulation, arguing that America was in the midst of a "culture war" over "our most fundamental and cherished assumptions about how to order our lives." Six years later, in One Nation After All, Wolfe challenged the idea of a culture war and argued that a majority of Americans were seeking a middle way, a blend of the traditional and the modern. For the first time, these two distinguished scholars join in dialogue to clarify their differences, update their arguments, and search for the truth about America's cultural condition.
(Thanks to Melissa Rogers for the post.)
Some of my own thoughts on the "America Divided" claim are set out in this article. A taste:
Hardly a day goes by without bold-print, full-volume reminders from pollsters and pundits that American society is fractured, split, polarized, partisan--even at "war”--and that it is, about many things and in many ways, "divided." We are, according to Gertrude Himmelfarb, "One Nation, Two Cultures." We are, political guru Michael Barone tells us, "Hard America" and "Soft America." We are, as commentator David Brooks and many others have colorfully described, Bobos and Patio Men, Latte and Sprinkler Towns. We are Retro and Metro, Fahrenheit 9/11 and The Passion, Wal-Mart and Whole Foods, "values evangelicals" and "legal secularists," even Roundheads and Cavaliers. United we stand, perhaps; seated at the table, though, we seem intractably divided by Brooks's "meatloaf line." Even our book-buying habits, The New York Times reported not long ago, reveal a sharply and starkly "polarized nation"; in line at Borders and Barnes & Noble, we are still two Americas, "Red" and "Blue." These alleged two Americashave different radio networks, live in increasingly segregated counties, use different online dating services, inhabit and move through different parts of the "blogosphere," and it has even been suggested that they ought to fly different airlines. The cultural cleavage is so deep, some say, that meaningful disagreement and argument are no longer possible.
Nice Contract Theory Intervention
I have just read a wonderful paper by Columbia law student Matthew Jennejohn. It is available for download here. Although I remain somewhat skeptical of both the positive claim that more contracts in the "new" economy are "collaborative" (even he admits that more empirical work is necessary to verify the claim) -- and the normative upshot that the UCC's contextualist approach is inadequate to the task of interpreting such contracts and that formalism would help parties realize their expectations, the paper is among the most sophisticated and interesting student papers I have ever read. It applies some very important insights about pragmatic governance that have received plenty of play in public law into the private law. I highly recommend it.
While reading it, I invite readers to consider (1) whether Matthew has indeed hit upon a new theory of contract; (2) whether the theory is not just an offshoot of "relational theory," insofar as it differentiates yet another "type" of contract subject to special rules (albeit different from the "long-term relationships of especial interest to the relationalists); and (3) whether there are more connections that can be made between Markovits' theory of "Collaboration & Contract" and Matthew's work. Obviously, for (3) to work Matthew will need to argue against Markovits's claim that corporations and firms cannot enter communities of collaboration and solidarity because of their inability to act morally. But there are some good ways to argue against Markovits on this score, as Nate Oman and Paul Gowder have done in the links above.
Here's the abstract:
Herein I outline a new theory of contract and contract enforcement. This theory is based upon two claims, one positive and one normative. The first claim is that incomplete contracting theory fails to explain how economic actors govern production in the new economy. Theories of “pragmatic governance” do, however, capture how modern firms order their relationships. To support this first claim, evidence from collaborative contracts, recently made readily available to the public, is presented. The second claim is that, because both the traditional contextualist and the ascendant neoformalist approaches to contract enforcement undermine this new form of contract, a new philosophy is needed. A hybrid approach, integrating both formalism and problem-solving judicial intervention, provides such an alternative.
Thursday, October 26, 2006
Those of us who have observed the way the legal system works are fortunate to be entertained by stories of completely frivolous lawsuits or arguments. I thought it would be fun to invite commenters to post their stories of abuses of the courts' resources. I hasten to add that I do not mean to refer to litigants who present an argument about which reasonable people can disagree in the context of the times, but where there can be virtual consensus among the sane population that the argument has no chance of success. Here are two examples of what I mean:
When I was clerking, a criminal defendant sought leave to appeal to our court, contending that several "of [his] constitutional rights were violated [at his trial]. I just don't know which ones."
Another time the prosecution defended a trial judge's decision not to issue a circumstantial-evidence charge to the jury, arguing that the evidence presented at trial was "not circumstantial evidence. It was direct evidence of the circumstances of the crime."
I suppose the classic case in the genre is United States v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971), and I am told that there are additional cases in which plaintiffs tried to sue the Prince of Darkness. Please submit additional examples of such humor in the comments.
(Sort of) Confessing Error In Kelo
Public backlash against the Supreme Court's decision in the Kelo case continues to be a subject of significant press attention. When the decision first came down, I routinely defended both the result and the reasoning against skeptical attacks from students, friends, and newspaper reporters of all political stripes. For me the case was both unsurprising (because I thought it commanded by the relevant precedents) and correctly decided (for reasons that I will discuss below).
However, recent research for an article on the Due Process Clause has made me rethink my position. Somewhat sheepishly, I have to admit that I am no longer sure how I would have voted in the case.
My initial feeling that the case was rightly decided turned primarily on two arguments. First, I largely bought the argument--expressed in the relevant precedents and Kelo itself--that the determination whether a particular condemnation was necessary to achieve a legitimate public purpose was a quintessential example of the kind of policy choices about social and economic legislation that the New Deal Court had properly returned to the popular political branches. At that time, I saw no principle reason for distinguishing in level of scrutiny between the economic policy at issue in Kelo and that at issue in most other regulatory contexts.
Second, my readings in legal history and in 19th-century caselaw had led me to the iconoclastic conclusion that the Takings Clause probably was not intended to impose a "public use" requirement in the first place. On my reading of the relevant sources, the Takings Clause was intended to deal with the particular problem that arises when the public wants to acquire property for its own use; in that situation, if majoritarian politics runs its normal course compensation is unlikely to be forthcoming. In contrast, in situations where the general public will not benefit from the proposed condemnation, there is no generalizable fear of democratic overreaching. While such takings are distasteful and almost always unjust, they were already disfavored by traditional common law property rules that were considered unlikely targets for statutory revision.
Over the last six months, however, I have been reading tons of old cases and commentary trying to understand the historical development of what I call the "due process super-structure"--i.e., the categories into which we sort due process cases and the rules we develop for resolving cases in those categories. In so doing, I have come to two conclusions that undercut my initial position in Kelo. First, to a great extent, the robust modern understanding of "due process" is the result of an historical evolution through which many of the most elemental background norms of the common law (and perhaps of natural law) came to be absorbed into our notions of "due process." Second, of all these norms, none has a stronger historical pedigree and few have more support in current public attitudes than the prohibition on "taking the property of A and giving it to B."
In reconstructing a modern due process jurisprudence that is not unduly beholden to the flawed categories of "substantive" and "procedural" due process, it is hard to identify a reason why a governmental action that, at least on first blush, resembles this paradigmatic transgression should not face serious due process scrutiny. Serious scrutiny of purported "A to B" transfers is consistent with historical understandings of the limits of governmental powers, consistent with contemporary notions of baseline fairness and regulatory legitimacy, and manageable discretely without triggering broad judicial oversight of general economic and social policy.
Having said all that, I'm not sure that the exercises of eminent domain at issue in Kelo violate the Due Process Clause. The "A to B" paradigm does not appear--as either a historical or a logical matter--to require governmental bodies to manage the properties acquired via eminent domain themselves or to impose any particular rules regarding public access on the private entities who manage those properties in the public interest. As I see the matter now, what Kelo should have come down to is an honest and relatively open-ended judicial inquiry into whether--under the totality of the circumstances and without resort to fictions or presumptions--the actions of the New London government constituted a genuine, substantively-justifiable and civicly-motivated regulatory scheme. If such a finding were not forthcoming, the court should have treated the condemnations as a naked taking from A to give to B and struck it down under the Due Process Clause.
First Reaction to the New Jersey Same-Sex Marriage Decision
Though I haven't had a chance to read the New Jersey Supreme Court's decision as carefully as I would like, I wanted to join the rest of the blogospehere and get in my two cents.
My first reaction on skimming the case is that it is a very progressive decision . . . for 1999.
I mean that in two ways. First, and more positively, it is amazing how far and how quickly public attitudes and legal opinion have shifted on the issue of same-sex marriage. When the Vermont Supreme Court issued a similar decision less than a decade ago, that court was staking out new ground and pushing the boundaries of public opinion. In contrast, when yesterday's decision came down it was widely portrayed as a statesmanesque compromise that closely mirrors popular attitudes on the issue.
More disturbingly, however, the decision seems to suffer from a very impoverished understanding of the ways in which law shapes cultural attitudes and public behavior. Intelligent and well-meaning people can disagree on whether in a constitutional democracy courts--as opposed to legislatures--have the power to accord full civic equality to groups who were not historically accorded such status and whose inclusion in the civic community requires the restructuring of traditional institutions. Once, however, a court commits to the proposition that it has the power--and the obligation--to insure civic equality, there is no principled reason for drawing the line where the New Jersey court did. To argue that extending the substantive rights and privileges of marriage while withholding the word "marriage" nevertheless accords gays and lesbians true civic equality is to ignore the expressive power of law. When the law announces that a set of families are entitled to the pecuniary benefits accorded to other families but that they are--for some unstated reason--not entitled to the titular honorifics that are normally accorded to such families, the state is marking their difference and strongly implying their second-class status. That is not true equality.
To say that civic equality is about equal access to public services and benefits is to miss the point of the civil rights movement. After all, the back of the bus gets you to your destination just as quickly as the front of the bus.
Can Direct Democracy Be Made Deliberative?
I've just uploaded to SSRN an invited Essay for Buffalo Law Review's annual "Essay Issue." It looks like it will be a fun group of provocations. If you are mostly familiar with my work on deliberative democracy, this will not be groundbreaking stuff -- though I make some connections to the field of statutory interpretation, which remained latent in my previous expositions of my views. If you want an introduction, however, this is a quick and dirty way to get one without having to shell out for the books.
Research Canons: Conflict of Laws
Our next subject matter for the research canons project is Conflict of Laws. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
This is our (tentative) last installment. If we've missed a particular category, let us know -- we'll try to correct the omission tomorrow.
“The Office” Strikes a Chord
This morning I made my first NPR national appearance, with about 6 seconds of commentary (but I swear, the recorded interview was about an hour long and full of witty insights about the various sketches) on how the hit series “The Office” rings true for a lot of American workers who spend most of their waking hours in cubicles and are expected to befriend their bosses sans questioning the power their bosses maintain over them. The audio is online here. A while ago I blogged about the episode that portrays diversity training programs in corporate America and the absurdities of presenting one hour “training” sessions as solutions for deep tensions and biases. Another episode I really like is when Michael, upset that he cannot attend the women's corporate networking session, takes the men on his team downstairs to see where the “real work” is done, the packing and delivery of the sold paper. He gathers the downstairs workers and states: “I am collar-blind. White-collar; Blue-collar, we are all the same.” It backfires – those “all the same” workers ask if they all have the same pay and when the word “union” comes up, it takes the tough Jan Levinson, Michael’s corporate boss, to bust the gathering.
Wednesday, October 25, 2006
Spotting the Yeti, er the Chicken
Did you ever notice how there are some urban legends about law schools and universities that never die? Like the old saw (debunked here) that if your roommate commits suicide, you get a 4.0? Or the one about the professor stuck in the law school during an ice storm, who had to raid the vending machines for sustenance?
Well, when I started teaching contracts three years ago, a colleague at Cumberland told me that he knew of a professor who dressed up in a chicken costume once a year. The costume went with a particular lesson on the interpretation of the term “chicken” in a contract. See Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp., 190 F. Supp. 116 (1960). It’s truly a casebook classic, and Judge Friendly’s opinion begins in high dudgeon by saying “The issue is, what is chicken?” (And it just gets better from there…).
Anyway, I thought that this claim about the chicken outfit was just an effort by my colleague to pull my leg. A practical joke that could result in my embarrassment (since he seemed to imply that any contracts teacher worth her salt would of course don a chicken costume). I chalked it up to an urban legend – until I asked the ever fabulous AALS contracts listserve about it. A couple people mentioned names of professors who they thought had dressed up as chickens, but those professors never wrote in to confirm, so I was unwilling to take that as proof. One professor wrote in to say that of course he dressed as a chicken, as opposed to the other days when he dressed as a duck or a swan. Somehow I don’t think he was serious.
But then, the other day, I got independent confirmation from a source who would prefer to remain anonymous. Two photos. Not an urban legend. The chicken lives!
Do you have any urban legends at your law school?
Notable Quotes from the Wal-Mart Symposium
Last weekend I participated in an excellent symposium organized by the University of Connecticut Law Review: Wal-Mart Matters. The symposium was intense, a day and a half of full panels with speakers from the legal academy, from other disciplines, including history, economics, business, and from practice, including journalists, activists, and both the plaintiff’s and the defendant’s lawyers from the biggest employment discrimination class action to ever been certified – 1.6. million women working at Wal-Mart - currently on appeal before the 9th circuit: Dukes vs. Wal-Mart.
I plan to post later a synopsis of my own talk called “Wal-Mart’s Benefits: The Targeting of Giants in a National Campaign to Improve Work Conditions”. But in the meantime, I thought I would share a few notable quotes from some of the panels, to give you a sense of the debates:
Bob Ortega, Author of In Sam We Trust: The Untold Story of Sam Walton and Wal-Mart, the World's Most Powerful Retailer, Journalist and Journalism Professor: “You can put lipstick and string pearls on a pig, but the pig remains a pig” (on Wal-Mart’s PR attempts to improve its image by hiring civil rights spokesmen)
Vijay Prashad, Professor of International Studies – “They had Saliva on their faces, when they learned the statistic that India’s middle class is the size of France” (about management contemplating entering the Indian retail market).
Joseph M. Sellers, Partner, Cohen, Milstein, Hausfeld, & Toll, PLLC, representing the plaintiffs in the Dukes discrimination class action "(Wal-Mart management had a fetish of controlling every single aspect of Wal-Mart stores, from to music, but they forgot to guide promotion and personnel decisions at the floor level"
Evelyn Becker, Partner, O'Melveny & Myers, LLP, representing Wal-Mart in the Dukes employment discrimination class action - “the social psych studies actually show that women have more biases than men, so in fact you could say that women should therefore not be promoted to supervisory positions”.
Ron Galloway, Producer/Director of Why Wal-Mart Works – “I may sound like a Wal-Mart Hater, but in fact I am a Wal-Mart lover”
Richard Vedder, Economics Professor and Scholar at the American Enterprise Institute – “Wal-Mart consumer, who are mainly poor love Wal-Mart; are you suggesting that poor people are stupid?”
Me: "Wal-Mart gave a nation with declining social activism a new face for the struggle – the face is a (tarnished) yellow smiley face and a (not-so-socially-conscious) Zorro who rolls back prices, but also wages and employment standards”
Research Canons: Trusts & Estates
Our next subject matter for the research canons project is Trusts and Estates. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
US Department of Education: Bring on the Single-Sex K-12 Schools
According to regulations announced by the Department of Education yesterday and published this morning, Title IX is officially no longer a barrier for public school districts wanting to offer single-sex schooling (NYT article here, registration required). K-12 schools now may offer single-sex classes for boys or girls as long as they have an educationally sound reason for doing so; and, schools are no longer required to offer corresponding single-sex classes for the opposite sex—only the same classes in coed environments. Students' enrollment also must be voluntary. (Equal Protection Clause and state ERA legal issues remain.)
241 single-sex K-12 public schools currently operate across the country; 235 of them have opened within just the past six years, and many are charter schools serving at-risk communities. With an eye towards Title IX compliance, about 80% of these schools have both boys and girls in attendance in one building, but segregate classrooms for educational purposes. For more information, see the National Association for Single Sex Public Education.
This isn't the only education equity story brewing as 2006 comes to a close, though. The voluntary school integration cases, in which K-12 school districts attempted to maximize the racial and ethnic diversity of individual schools within their district but were not required by a court order to do so, are scheduled for argument before the Supreme Court on December 4. Any thoughts on the juxtaposition of these two issues, gentle readers?
Tuesday, October 24, 2006
The Law of Fiduciaries
If you have a copy of J.C. Shepherd's Law of Fiduciaries (1981) that you are willing to sell me, please let me know. It seems basically unavailable; and I'm wearing out my welcome with interlibrary loans. If you know of specialty Canadian bookstores that might be willing to sell it to me, please direct that information my way as well.
"The End of Education"
My Notre Dame colleague, philosopher Alasdair MacIntyre, has this provocative essay ("The End of Education: The Fragmentation of the American University") in the latest issue of Commonweal magazine. The piece opens with this:
What should be the distinctive calling of the American Catholic university or college here and now? It should be to challenge its secular counterparts by recovering both for them and for itself a less fragmented conception of what an education beyond high school should be, by identifying what has gone badly wrong with even the best of secular universities. From a Catholic point of view the contemporary secular university is not at fault because it is not Catholic. It is at fault insofar as it is not a university.
Yet the major Catholic universities seem unlikely to accept this calling, if only because their administrative leaders are for the most part hell-bent on imitating their prestigious secular counterparts, which already imitate one another. So we find Notre Dame glancing nervously at Duke, only to catch Duke in the act of glancing nervously at Princeton. What is it that makes this attitude so corrupting? What has gone wrong with the secular university?
(Cf., e.g., Marty Peretz.) Notwithstanding this initial focus on the Catholic university, the piece has a lot to say about universities, and university education, generally. I wonder, does it have anything to say about law schools and legal education? More after the jump . . .
MacIntyre discusses (and, for the most part, laments) the "multiplication of disciplines", the "increasing specialization by scholars", and the "transformation of university or college teachers into professionalized, narrowly focused researchers who also happen to teach", and the "changing education of our students". He sets out some questions -- questions about what it means to be human, and about how all the things we know and questions we ask fit together -- and then suggests a radical re-structuring of education:
From these three sets of questions a tripartite curriculum emerges. One element is mathematical and scientific, extending beyond physics to the chemistry and neurophysiology needed to understand recent discoveries about the brain. Another is historical, situating the history of ideas in their social, political, and economic contexts. And a third consists in linguistic and literary studies. All three have a philosophical component: philosophy of mind and body, the philosophical questions raised by different aspects of our past history, the interpretive and evaluative questions posed by our relationship to other cultures. So the faculty needed to teach this curriculum would consist of mathematicians, physicists, some types of biologists, intellectual, social, and economic historians, teachers of English and of one or two other languages and literatures, anthropologists, and philosophers. But it would be crucial that this should be a faculty dedicated not only to the teaching of their own discipline but also to the curriculum as a whole, a faculty with strong interests in and a worthwhile knowledge of some disciplines not their own, so that they, and not only the students, were able to formulate and pursue rival and alternative answers to the questions that give point and purpose to such a curriculum. . . .
“What then about specialized training for research?” someone will ask. Ours, they may say, is a knowledge-based economy and we cannot do without specialized researchers. The type of curriculum that I am proposing may teach students to ask questions in a disciplined way, something that is certainly a valuable preliminary to instruction in genuine research techniques, but it does not begin to supply the apprenticeship that researchers at the cutting edge need. Indeed it does not. It is liberal education, not job training. But the lesson is to get rid of the confusions generated by our predecessors’ admiration for the German research university and to supply both a liberal education in the arts and sciences and, for those who aspire to it, a professional, specialized training in research in the natural or the human sciences. The curriculum I am proposing, including theology, could perhaps be taught in three well-structured and strenuous years. A fourth year would thereby become available for research or professional training. We do not have to sacrifice training in research in order to provide our students with a liberal education, just as we do not have to fragment and deform so much of our students’ education, as we do now.
Research Canons: Tax
Our next subject matter for the research canons project is Tax. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
"Tax" is obviously a category with a number of subcategories. You may wish to break out your suggestions by subcategory as appropriate.
UPDATE: An 2003 blog effort by Vic Fleischer to define the tax canons can be found here.
Concurring: Skilling’s Punishment Fits the Crime
Over at Concurring Opinions, Dave Hoffman summarizes the “outraged” responses to Jeff Skilling’s twenty-four year sentence and voices his disagreement (he argues that the punishment fits the crime). I couldn’t agree with Dave more. Perhaps my days in practice are showing, but I have little to no sympathy in this instance, given the extent and magnitude of the fraud.
I was going to try to describe my own sense of outrage at the leniency that has typically been shown fraudsters (as opposed to other types of theft or drug dealing) and realized that much of what I was going to write had, in the words of the band Barenaked Ladies, “been done before.” Without being too banal, I suppose it boils down to social class, race, and the artificial abstraction of harm associated with white collar crime.
Monday, October 23, 2006
If you happen to be in Northern California at the end of the week, Pacific-McGeorge is putting on a conference on corruption. (Update: You may be able to get a better seat if you slip the conference organizer a few bucks) Here are some of the details (more can be found here):
Does corruption matter in today’s globalized economy? Or has it been overtaken by money laundering and terrorism as the central focus of international business regulation? Did it ever matter? Do current regulatory responses deter or contain corruption? Are enforcement and compliance actions effective in impeding corruption?
Leaders in international economic development theory, international business regulation, and transnational corporate practice will offer thoughts and re-thoughts on the impact of corruption on development, contemporary national and multilateral responses, the current state of play - and concrete recommendations for effective deterrence.
Get out of town. On second thought, make that the country.
The Jurist reports on a case out of the Cheektowaga Town Court in Erie County, New York, where a Town Justice agreed to a no-jail plea bargain for a defendant charged with sexual abuse on the condition that he not return to the United States for the next three years except to meet with his probation officer. The defendant, a U.S. citizen, has a Canadian wife and family. Canadian officials apparently have not applauded this effort to ship a non-Canadian sex offender north of the border. The Toronto Globe & Mail has more details.
Does explicit banishment even happen any more – and I don’t mean the functional types of banishment being argued, for instance, in connection with some registered sex offenders being "zoned out" of certain communities, but real get-out-of-town-or-else sentences? Based on my own experience, I was quite surprised to read about a plea bargain involving not just local banishment, but the national banishment of a U.S. citizen. All by a local judge, no less. The Toronto paper reports that even the Erie County District Attorney called the plea agreement “a little dicey.” Perhaps there was something to that New York Times series on Town and Justice courts after all.
Katrina Recovery—It’s Far From Over
Last week, I was in the Mississippi Gulf Coast area for a few days researching K-12 public schools’ recovery after Katrina. More than once I thought of Jim Chen’s reflections over at Jurisdynamics about recently visiting New Orleans, and the saying he highlighted that “a single death is a tragedy; a million deaths is a statistic.” I knew many statistics before my trip. But, seeing schools with brick walls caved in from the force of the water; miles of coastal property with driveways that led only to canopies of trees hollowed out where houses recently stood; and FEMA trailers still occupied in a not insignificant number (only about 250 square feet each with a couple of small windows)—these sights were tragic. Most of the debris may be gone, but communities are a long way from being made whole, and inevitably many of them will never be the same.
Particularly with this background, knowing that these school districts in Mississippi are enrolling 92% of the students they had before the storm, and that many of those students are performing as well or better on standards-based tests as they did before, seems miraculous. Now, some districts still are in dispute with insurance companies who sold the wrong coverage, and it seems as though few have seen see significant dollars from FEMA. Even when school buildings are in good condition, many teachers’ and students’ homes are far from it. Yet, the education leaders’ focus is on moving forward, resolving these problems and planning realistically and optimistically for the future, even if the short-term future is a campus of mobile classroom trailers. To say that I was impressed by the heroism of the individuals who are rebuilding their communities is an understatement, and I am grateful to them for sharing their stories with me.
The Rumor Mill
Over the weekend, I heard a rumor about myself. Here's the story I heard:
"When Leib was on the job market, he tried to sink another of his advisor's students by accusing him/her of plagiarism on the blog. In particular, he charged another candidate's paper with stealing his own ideas without attribution. Ultimately, Leib got a call from his advisor, who demanded that he remove the post."
This is juicy stuff -- and is a very serious cautionary tale for those of you considering blogging. As it turns out, once you put yourself out there, all sorts of bizarre stuff gets said about you.
On the other hand, I have the ability to set the record straight here too. Almost nothing about the rumor I heard about myself is true. As some of you will recall, about a year ago (I already had a job, of course) I authored a post titled "On the Pain of Not Being Cited." It promoted a paper by a former student of one of my advisors -- and recommended the work. I also expressed dismay at not being cited because it seemed to me at the time that there was no way to wade into the literature the paper drew upon without coming across my work on the subject. [I now have a much more benign view of the affair; at the time, I acted rashly and I regret having detracted from a valuable piece of scholarship.] In any event, a few hours after I posted the complaint I took it down because I thought I was being small-minded and petty. I did so under no pressure from anyone. Here was the exchange from 10.22.05:
Why did you "disappear" your post on another scholar's failure to cite your work?
Just curious ...
Posted by: Probatio Viva | Oct 22, 2005 4:18:47 PM
After acknowledging that it was a small-minded sort of thing to worry about, I thought: "Why exactly would I want to be so small-minded so publicly and so permanently?" Daily readers saw it; I made my point; but I decided that it was better to take it down.
Posted by: Ethan Leib | Oct 22, 2005 4:57:36 PM
If you have comments, concerns, or questions, please write to me privately.
UPDATE: I have clarified some things in the post to make it clear that the point of this post is not to revisit the claims in the original post, which I regret.
Research Canons: Securities Regulation
Our next subject matter for the research canons project is Securities Regulation. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
Sunday, October 22, 2006
This weekend was filled with disturbing art. The Pacific-McGeorge faculty often gets together to see new “arty” films, and this time around, we saw “The Last King of Scotland,” which takes as its subject the brutal regime of Ugandan dictator Idi Amin. It has powerful performances, and the movie was both intense and thought-provoking. But it wasn’t a feel-good football flick, that’s for sure.
Saturday afternoon included a visit to the San Francisco Modern Art Museum. Let me confess. I’m not an expert on art at all. But, as a general matter, I like modern art, and I thoroughly enjoyed my visit to the Tate Modern when I was in London a couple years ago. The parts of it I like are those that are quirky, intellectually engaging, whimsical, colorful or surreal. Although there were moments in the museum where I felt those strands pulling at me, there was also just a lot of disturbing artwork. A painting that was made of dung. An idyllic forest scene interrupted by some rotting meat. Since these items/photos were interspersed randomly in the collection, and I didn't know the museum, I couldn't really avoid being disturbed.
And then today, seeing the Irving Norman exhibition at Sacramento’s Crocker Museum, I also had a visceral reaction. Norman’s work is futuristic, violent, and intensely political all at the same time. His human figures are disfigured clones. The people in his work are often in intense pain, and everyone is enslaved to the military-industrial complex.
What have I learned from this? I know the point of some art is to "shake you up". To some degree, I think this is a good thing. And yet it seems to me that we often expend a good deal of time, effort, and energy not to be disturbed (in so many ways we crave the right to be left alone). And, if Cass Sunstein’s conception of the “daily me” were a true vision of the future, mine would probably only have one disturbing arty experience per weekend. I did learn one other thing: the presence of good company eases one’s ability to think through why and how your worldview has been “disturbed” and to put things into perspective.
I haven’t yet decided how I’ll cap off the weekend, but some ideas are re-watching Fargo and Pulp Fiction, thinking about U.S. torture policy, or re-reading the Maus comic books, while listening to last year’s Nine Inch Nails CD.
Will Republicans Lose Because They're Not Conservative Enough?
If the predictions hold true, Republicans will lose substantially in both Houses of Congress and in many state races this November. As is inevitably the case, media "analysts" will attribute the election results to something simple enough to be repeated in a half-sentence soundbite. Probably the analysis will involve some sort of claim that the elections represent a repudiation of the policies of the Bush Administration including, in particular, the Iraq conflict. As Ethan has pointed out, analyzing the election in terms of an affirmation of Democratic principles would be difficult, as nobody knows what those principles are.
The conventional wisdom is that general elections are won by the party or the candidate that can appeal to the center of the electorate. That theory, however, may be seen as less wise as a result of the last couple of presidential elections, which demonstrated the importance of turnout among the party "base." (I am not an expert on these matters, so I do not offer these claims as necessarily representative of what scholars have concluded. They do, however, reflect my anecdotal recollection of the type of analysis I derided in the last paragraph.)
Every election, it seems to me, is a balance between those two attitudes: Will an appeal to the extremes win enough votes from the base to compensate for alienating a certain number of voters in the center? Will a move to the center pick up enough votes there to compensate for the number of party faithful who will stay home?
So in what direction have Republicans miscalculated in the past few years? I think a good case (by no means certain of course), can be made for the theory that the Republicans have not been conservative enough. The relevant voters are the ones that might be persuaded to vote Republican under some circumstances. Accordingly, the fact that the far Left opposes all of the Administration's policies isn't relevant because the Republicans would not pick up the votes of the far Left even if they made an effort to appeal to the center.
Are there many potential Republican voters who are alienated by the Administration's most conservative policies? Maybe, but I have my doubts. I hardly see moderates and conservatives clamoring for the rights of suspected terrorists in Guantanamo or anywhere else. Anti-gay policies may be losing their electoral power, but still, I think, are positive overall for Republicans, at least as regards marriage. Conservative positions on other issues involving religion seem to benefit Republians electorally. Judicial selection likewise seems to benefit conservatives, and most moderates and conservatives are perfectly happy with Chief Justice Roberts and Justice Alito. Affirmative action? Crime? I don't see many potential Republican voters complaining that the administration is too conservative on these issues either.
So what policies will hurt the Republicans at the polls? Reckless spending. Sure, they're guilty, but that's hardly a condemnation of a conservative ideal. Too lenient on illegal immigration? Perhaps, but again the criticism is mostly from the Right. Even the criticism over entering Iraq can be seen (though it need not be seen) as reflecting the isolationism of the Right, and their indifference to the human rights violations occurring in other parts of the world. Mismanagement of the various military conflicts is another story, but that doesn't fit easily on a left-right spectrum.
It's striking to me that in an election where Democrats are poised to pick up many seats throughout the country, their issues are largely absent. The economy has been bad but is much better than it was in 2004 or 2002, and that issue seems to preoccupy Democrats in most election cycles more than any other. Women's rights, civil rights, abortion, etc., just don't seem to be talked about at all. What am I missing? Maybe I just haven't been paying enough attention. Are we going to have elections that are even more devoid of issues than in the past? Perhaps the answer is that there is a general mood that the Administration is too conservative, even if few people really care about many of the Administration's policies by themselves.
What is it about the Administration that will cause potential Republican voters to stay home or vote Democratic? My guess is that more are alienated by the Administration's betrayals of conservatism than by the President's fidelity to it.
Friday, October 20, 2006
Buffalo Going Back to Normal
My parents got their power back last night after a full week without electricity due to the storm that hit Buffalo last week. (Snow is common in October there -- I had plenty of Halloweens trudging through snow in my costume -- but this was the worst storm to hit the area that my parents can remember, bar none.) My parents' house escaped damage because they had no large trees on their property and because they live on slightly higher ground than some of the surrounding area. Others, however, have had significant damage. Three hundred thousand people were without power, and hundreds of thousands of trees were felled or split under the snow's weight. Cars were crushed by falling trees, and roads were impassableMy old elementary school had between six and nine feet of water. Without power, sump pumps could not move water out of basements, and many homes have between one and three feet of water. Schools were closed starting the 13th. They will reopen next week, either on Monday, Tuesday, or Wednesday.
My guess is that there will be plenty of phone calls between Western New Yorkers and real estate agents in Florida and Arizona this winter. My folks decided some months ago to move to Arizona next year; they're leaving Buffalo with a bang.
The Day After
8:50 [p.m. PST] -- Someone calls me. I look at the caller ID and see it's my buddy Sal's house, so I pick up to talk him off the ledge. Instead, it's his wife (not a sports fan) calling to get tips for dealing with her distraught husband from the Sports Gal. We end up having this impromptu exchange:
Her (sounding slightly scared): "Bill? What do I do?"
Me: "Is Sal there right now?"
Her: "Yeah. I don't know what to do."
Me: "Don't try to make him feel better. Stay away from him."
Me: "Yeah. Stay away for the rest of the night. Let him stew over this for a couple of hours. Go into your room and read or something. Let him initiate the first conversation."
You have to admit, there's nothing quite like sports.
Research Canons: Local Government Law
Our next subject matter for the research canons project is Local Government Law. (See here for a discussion of the research canons project.) Please comment on the books and articles that are essential to a new academic in the field.
The Future of Shaming (and Restorative Justice), Part 7 of 7
See here for previous related links to the first through sixth posts in this series. What follows in today's post is the last excerpt of a forthcoming piece that addresses Dan Kahan's recent renunciation of shaming punishments and subsequent embrace of restorative justice as an alternative to incarceration. The essay was just accepted for publication in the Texas Law Review, and a draft including footnotes is available here.
In light of the reasons Kahan gives to explain his reversal on shaming punishments (see post five), I confess I am now puzzled by Kahan’s embrace of restorative justice strategies as an alternative to incarceration. As I explain below, restorative justice seems susceptible to the same kinds of concerns about divisiveness raised by Kahan with respect to shaming punishments.
Kahan explains his support of restorative justice by appealing to the previously mentioned principle of “expressive overdetermination.” To quickly recap, what Kahan likes about restorative justice is that he believes it will be a cheaper alternative to incarceration that, unlike shaming punishments, is capable of appealing to the four cultural worldviews he discusses: individualistic, hierarchical, communal, and egalitarian.
By urging crime control responses that have appeal to all these various worldviews, Kahan appears, at first blush, to be drawing from the same well as his former colleague, Cass Sunstein—who has generally urged judges to decide cases on narrow grounds. This judicial minimalism, which itself relies on incompletely theorized agreements, allows legislatures to devise pragmatic solutions for contemporary problems without being overly constrained by judges who may lack accountability or expertise on the issues at hand. Kahan’s search for expressive overdetermination in punishment modes may be viewed as trying to replicate the virtues of incompletely theorized agreements. On this view, the less said publicly about the justification for a social practice, the more likely others can interpret it as being consistent with their cultural worldview and the more likely social conflict will be avoided. But whereas Sunstein’s embrace of judicial minimalism is designed to displace and channel political conflict to the appropriate political sphere, Kahan’s pragmatic search for expressive overdetermination appears aimed at downsizing, if not squelching, the play of the democratic process altogether.
Regardless of whether a reduction in socio-political conflicts is an unqualified benefit for democracies -- and I am not sure it is -- I suspect Kahan’s new enthusiasm for restorative justice approaches will erode if he tethers his pragmatic support for restorative justice simply to the principle of expressive overdetermination. That’s because once people understand the prototypical mechanisms of restorative justice, those programs will likely be deemed incompatible with the basic values of at least some of the four archetypal worldviews. Let me explain.
Putting aside the concerns one might have about the artifice of these four worldviews, let’s understand first what Kahan thinks restorative justice entails and then whether restorative justice is compatible with all four worldviews. Kahan describes the standard restorative justice approach as a program that
contemplates the diversion of a case from the criminal justice system to an informal mediation process involving the offender, the victim, and representatives of the community. Under the guidance of a professional facilitator, the participants negotiate an appropriate disposition, one that ordinarily includes some type of apology by the offender and an agreement on his part to furnish monetary or in-kind reparations to the victim. In addition, community representatives typically devise employment opportunities for the offender and steer him or her into counseling or support groups (often faith-based ones).
Kahan also notes that these kinds of sentencing circles are used for a broad variety of crimes including “theft, burglary, drunk driving, domestic and stranger assaults, and minor sex offenses.”
Kahan thinks restorative justice approaches can succeed as an alternative to incarceration because people with different worldviews can sign onto it for different reasons. It is plausible that communitarians or solidarists might sign onto restorative justice because a special role is carved out for communal participation in the meting out of restorative justice. Indeed, given the ideological origins of restorative justice programs, it is unsurprising that church groups supervise more than 20% of the restorative justice programs in the United States, and that restorative justice would find support among various religious bodies. But why should we think that egalitarians, for example, will embrace restorative justice?
Kahan’s explanation is that egalitarians will embrace restorative justice because restorative justice approaches can be interpreted as avoiding status degradation and instead focusing on the “reintegrate[ion of] offenders in a way that affirms their dignity.” This explanation is a slender reed. To begin with, one might reasonably think that affirming an offender’s dignity is really an individualist value and not a specifically egalitarian one. No matter. Some proponents of restorative justice have pitched it as an egalitarian enterprise on other grounds. On this view, the breach of social equality (represented by the criminal offense) is repaired by a negotiated agreement among the stakeholders that seeks to restore (or elevate) offender and victim to an ideal of social equality manifested by equal concern and respect for each other.
While some egalitarians might subscribe to the view that restorative justice measures are vehicles capable of promoting social equality, others might wonder if egalitarianism requires something else in the context of responding to criminal offenses. These other egalitarians might think, in other words, that institutions of distributive justice should be used to ensure and promote social equality but at the same time they see the onset of a criminal offense as a claim to superiority by the offender, a claim whose plausibility should be contested by the victim or the state.
Moreover, egalitarians of different stripes may wish to ensure there is an evenhandedness in punishment among similarly situated offenders (and victims). Importantly, many egalitarians (and probably those holding other modern worldviews) would share strong rule of law values that promote treating similar cases similarly. But restorative justice approaches, as I explain below, raise profound rule of law concerns. And achieving evenhandedness and respect for equality of all citizens turns out, perhaps paradoxically, to be serious problems for restorative justice defenders.
Why would this be? Consider first that on most accounts of restorative justice, participation by the offender and victim must be voluntary. Additionally, the resulting “resolution” to an offender’s crime is often “negotiated” by the various stakeholders inside the sentencing circle. If you think about the implications of these two factors, you realize how connected the outcomes are to the contingent features of who is in the sentencing circle in many scenarios. For example, do you have a forgiving victim or a hateful one? Do you have multiple victims with conflicting views about the nature of the harm or the appropriate resolution? Is the offender recalcitrant or insistent on his innocence or sincerely contrite or gifted at giving the appearance of contrition? Are the community representatives who appear in the restorative justice sentencing circles drawn from religious traditions or social clusters that might unduly pressure the victim or the offender?
The answers to these questions will greatly affect the application and result of a restorative justice approach, since, under many restorative justice programs, the voluntary participation of the offender and the victim is critical. For example, say you are the offender and very contrite, but your victim wants nothing to do with you, perhaps fearing that she will be victimized again through a process in which she will be pressured to agree to something under the influence of the “mediator” or “community.” Or say you are the victim and seek a restorative justice approach, but your offender shares the same aversion to public displays of self-abasement as David Lurie, the main character in J.M. Coetzee's novel, Disgrace. In such situations, your access to restorative justice is foreclosed.
What’s more, because restorative justice sentencing circles operate voluntarily and in an environment that is largely devoid of standards to ensure that similar crimes are punished similarly, restorative justice, with all its attendant reliance on the role of luck—and the illiberal outsourcing of punishment authority away from the state and into the unaccountable hands of “community” figures —effectively abandons pursuit of the goal of equal justice under law. Restorative justice, then, risks leaving two rule of law “casualties” in its wake: equality of application of law as well as certainty of sanctions. The two are connected. With the range of punishments likely to be broader than structured sentencing schemes, their application will be context dependent, which means different people will be punished in different ways, and predictability and certainty of punishment will be lessened. This may be a profound policy problem, as well as a problem of constitutional dimensions.
All this generates two conclusions. First, I am personally less captivated than Kahan is by the allure of the conventional restorative justice picture painted by Kahan. Second, and more important for Kahan’s pragmatic purposes, my sense is that there might be large numbers of people who might share my view, i.e., that restorative justice (as typically practiced) threatens commitments to equality and rule of law. If that’s the case, then Kahan will soon see (and perhaps should have already seen) real and persistent values-based opposition to restorative justice as an alternative sanctions strategy – much as he did with shaming. Indeed, based on the returns so far, the academic criticisms of restorative justice have been similarly unsparing, though to be sure, there are far more academic supporters of restorative justice than there are of shaming.
In defending restorative justice, Kahan points to its alleged theoretical incoherence as a virtue—the better that it can serve as a pragmatic alternative that will entice citizens with differing worldviews. But restorative justice doesn’t suffer (at least not chiefly) from “coherence deficits” so much as from “justice deficits.” When restorative justice approaches are practiced—in the absence of coercion determined and imposed by an impartial state—such methods render the institutions of punishment unattractive because they undermine the fair application of the criminal law and the proper expenditure of its precious moral capital. In other words, pace Kahan, it is not the coherence of restorative justice that is at issue for its critics, but its attractiveness. If “[m]embers of society … expect punishments—and essentially all laws for that matter—to affirm the core values that animate their preferred ways of life,” then Kahan will have to continue looking elsewhere for consensus.
Thursday, October 19, 2006
Illiberal Groups in the Liberal State
My Southwestern colleague Angela Riley is an expert on Indian law (and, as it turns out, also serves as a Justice on the Supreme Court of the Citizen Potawatomi Nation of Oklahoma). Lately she's been exploring the liberalism/illiberalism debate with special attention to its application to Indian tribes. Her article Sovereignty and Illiberalism, forthcoming in the California Law Review, should make a significant contribution to the discussion. She's teaching a seminar next semester called Illiberal Groups in the Liberal State, very much the kind of course several on this blog would give their eyeteeth to teach, or at least attend. Here's her summary description:
Democracies within which ethnic, indigenous, religious or national minorities exist attempt to impose on them the values of the dominant society. Illiberal groups respond to this pressure with claims for equality, fair representation in the political process, and, perhaps most importantly, autonomy. This seminar will discuss the challenges of accommodating the rights and needs of illiberal groups within the liberal state. It will focus, in particular, on the pressing philosophical and legal questions. Of particular import will be an examination of U.S. Supreme Court jurisprudence (e.g., Boy Scouts of America v. Dale; Santa Clara Pueblo v. Martinez; Wisconsin v. Yoder; etc.) in which the claims of illiberal groups have been examined by American courts.
After the jump, I'm posting the very interesting reading list she's provided to her students. (And props for including some visual material, namely Amish in the City! A hidden one-season gem for those of us who have taught law and religion.) I post it both because it's a terrific set of readings that should be of interest to many here, and because Prof. Riley would welcome any additional reading suggestions. If you have any suggestions of additional reading, either to supplement or to replace readings currently on the list, feel free to pass them along. And I encourage those who are interested in these issues to check out Angela's superb paper.
The list follows the jump, with apologies for any formatting issues:
Background & Introduction
Thomas Franck, Are Human Rights Universal?; Ronald Dworkin, Liberalism in Liberalism and Its Critics (ed. Sandel); Larry Alexander, Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism, 12 J. Contemp. Legal Issues 625 (2002); Nomi M. Stolzenberg, The Return of the Repressed: Illiberal Groups in a Liberal State, 12 J. Contemp. Legal Issues 897 (2002). *Will Kymlicka Contemporary Political Philosophy (2002), Ch.2: Liberal Equality.
Women’s Rights in a Multicultural Society
Santa Clara Pueblo v. Martinez (1978); Angela R. Riley, Sovereignty and Illiberalism, Cal. L. Rev. 2007 (forthcoming); Susan Moller Okin, Is Multiculturalism Bad For Women?, 22 Boston Rev. (Oct./Nov. 1997); Reynolds v. United States (1879); Nancy L. Rosenblum, Democratic Sex: Reynolds v. U.S., Sexual Relations, and Community, in Sex, Preference, and Family: Essays on Law and Nature (eds. Estlund and Nussbaum) (1997). *Will Kymlicka Contemporary Political Philosophy (2002), Ch. 9: Feminism
Religion & (Il)Liberal Education
Bob Jones Univ. v. U.S. (1983); Judith Resnik, Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover: An Essay on Racial Segregation at Bob Jones University, Patrilineal Membership Rules, Veiling, and Jurisgenerative Practices, 17 Yale J. L. & Human. 17 (2005); Michael W. McConnell, “God is Dead and We have Killed Him!”: Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163 (1993); Wisconsin v. Yoder, 406 US. 205 (1972); James D. Gordon III, Wisconsin v. Yoder and Religious Liberty, 74 Tex. L. Rev. 1237 (1996); *Will Kymlicka Contemporary Political Philosophy (2002), Ch. 4: Libertarianism.
Religion and (Il)Liberal Education continued….
Bd. Of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994); Abner S. Greene, Kiryas Joel and Two Mistakes About Equality, 96 Colum. L. Rev. 1 (1996); Stephen G. Gilles, Liberal Parentalism and Children’s Educational Rights, 26 Cap. U.L. Rev. 9 (1997). * Will Kymlicka Contemporary Political Philosophy (2002), Ch.8: Multiculturalism.
The Freedom of (Illiberal) Association
United States v. Jaycees; Boy Scouts of America v. Dale (2000); Madhavi Sunder, Cultural Dissent, 54 Stan. L. Rev. 495 (2001); Chemerinsky & Fisk, The Expressive Interest of Association, 9 Wm. & Mary Bill Rts. J. 595 (2001): Evelyn Brody, Entrance, Voice, and Exit: The Constitutional Bounds of the Right of Associaton, 35 U.C. Davis L. Rev. 821 (2002); Southern Baptist Convention Passes Resolution Opposing Women as Pastors, N.Y. Times (June 15, 2002); John Boyette, Augusta National Membership ‘We Will Not Be Bullied,’ Chairman Says, Augusta Chronicle (Jul. 10, 2002).
Loving v. Virginia (1967); Lawrence v. Texas (2003); Pamela S. Karlan, Loving Lawrence, 102 Mich. L. Rev. 1447 (2004); Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004); Cass R. Sunstein, The Right to Marry, 26 Cardozo L. Rev. 2081 (2005).
Sexual Preference Discrimination and the (Il)Liberal State
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004); Stephanie Simon, Christians Sue for Right Not to Tolerate Policies; Many Codes Intended to Protect Gays from Harassment are Illegal, Conservatives Argue, L.A. Times (April 10, 2006); Gay Marriage Ban Polarizes Views, Navajo Times, June 9, 2005; Lisa Hicks, JAT Dismisses Same-Sex Marriage Injunction, Cherokee Phoenix and Indian Advocate, Feb. 2006; Rumsfeld v. FAIR (2006), 126 S. Ct. 1297 (2006); Erwin Chemerinsky, The Kennedy Court: October Term 2005, 9 Green Bag 2d 335, 340, 341-343 (2006); Patrick J. Smith, Solomon’s Mines, 79 St. John’s L. Rev. 689 (2005).
Depictions of Illiberal Groups in Popular Culture
Big Love; Amish in the City; Nadya Labi, The Gentle People, Legal Affairs (Jan-Feb 2005).
Kwame Anthony Appiah, The Case for Contamination, in The New York Times Sunday Magazine (Jan. 1, 2006); Fareed Zakaria, The Future of Freedom:Illiberal Democrazy at Home and Abroad (2003), pp. 89-118; Susan Moller Okin, Feminism and Multiculturalism: Some Tensions, 108 Ethics 661 (1998); Martha C. Nussbaum, Feminism, Internationalism, Liberalism, Sex & Social Justice (1999); Ratna Kapur, The Tragedy of Victiminazation Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. L. J. 1, (2002); Noah Feldman, Imposed Constitutionalism, 37 Conn. L. Rev. 857 (2005); Madhavi Sunder, Enlightened Constitutionalism, 37 Conn. L. Rev. 891 (2005); *Will Kymlicka Contemporary Political Philosophy (2002), Ch. 7: Citizenship Theory.
Yoo v. Lederman on the MCA (with Althouse referreeing)
The reason John and his colleagues are so spooked by the prospect of judicial review is that they want the President to be able to act in accord with very radical and questionable legal interpretations, without any risk that anyone will ever call them on it. If this Administration had not chosen to take such a cavalier and dismissive attitude toward the substantive legal norms (of statute, treaty and laws of armed conflict) that govern the conduct of war, it would have nothing to fear from judicial review. The only reason they are desperate to shut the courts out is that their conduct is of such dubious legality.
Prof. Ann Althouse, meanwhile, says that Prof. Yoo "overdoes it," because the MCA merely does what the Court invited the President to do, which is to seek authority from Congress.
I basically agree with Prof. Althouse's view of the MCA vis-a-vis the Court, but I do think it is significant to note that the MCA does in fact suggest that the Hamdan Court was wrong in its interpretation of the Detainee Treatment Act (especially) and the Uniform Code of Military Justice. That's not to say that Justice Stevens' opinion was clearly wrong in its application of statutory interpretation techniques to the DTA, but that the result urged by Justice Scalia -- and now confirmed by the MCA -- seemed to be more consistent with what one might have expected from the Republican controlled Congress responding to the decision in Rasul v. Bush, which after all started the whole debate by opening the federal courts to habeas petitions from alien detainees.
(None of what I've written goes, I should add, to the core of the criticisms leveled at the MCA -- namely, its apparent suspension of the habeas writ for large classes of cases that might have been brought by detainees. I say "apparent" because, of course, that presupposes that the aliens outside the country have some entitlement to habeas rights beyond what Congress chooses to provide by statute, an interesting question not immediately answerable by reference to the two cases that Lederman cites (Quirin and Yamashita). Quirin -- the German saboteurs case -- involved aliens captured inside the U.S., so it does not go to the extraterritorial question. Yamashita involved a Japanese general convicted and executed in a military commission following World War II for failing to control his troops in the Phillippines; however, the Phillippines were a quasi-U.S. territory at the time. For more detailed discussion and argument as to why aliens outside the country might have a constitutional basis for habeas rights, see my co-blogger Stephen Vladeck's paper, "Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III").
Sam Bagenstos presented a fascinating paper today to the Brooklyn Law faculty, entitled "Hedonic Damages, Hedonic Adaptation, and Disability." It is co-authored with his wife Margo Schlanger and is available at SSRN here. Here's the abstract:
This article contributes to the broad debate over "adaptive preferences" in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients' new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one's enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and of people with disabilities as natural objects of pity. But a rich psychological literature demonstrates that disability does not inherently limit enjoyment of life to the degree that these courts suggest. Rather, people who experience disabling injuries tend to adapt to their disabilities. To be sure, the views of people with disabilities about their own quality of life are classic adaptive preferences. Accordingly, one might suggest that the legal system should disregard those views. But we argue that the legal system goes wrong by so devaluing the experience of people with disabilities. When courts award damages based on the (nondisabled person's) view that disability is tragic, they distract attention from the societal choices and stigmas that attach disadvantage to disability; they also make it harder for people with disabilities to make hedonic adjustments to their conditions. For deterrence and compensation reasons, people who experience disabling injuries should be able to recover for their physical pain; for medical expenses and the cost of assistive technology and personal assistance; for the opportunities society denies people with their conditions; and for the effects of social stigma. But they should not recover for any purported effect of disability on the enjoyment of life.
I highly recommend this paper. It provoked a stimulating discussion and is grappling with a very complex problem. Comments ranged from "icky" to "paternalistic" and from "semantic" to "unbelievably interesting and compelling." It is a quick read -- and it treats you to a taste of very suprising research about how the disabled adapt to their disabilities and how lawyers cast the disabled in an effort to extract more money from juries in tort damages. Just what to do about those potentially adaptive preferences and lawyer practices is a normative inquiry that the hedonic damages debate puts in especially salient relief.
The "Faith Center" case and "division," again . . .
Here is a link to an op-ed piece of mine, which appears in the Los Angeles Daily Journal, about the Ninth Circuit's recent decision in the Faith Center case. In that case (more info here), the panel, per Judge Paez, concluded that a public library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest." My piece focused more on Judge Karlton's opinion, in which he wrote, among other things:
- Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest[.]
. . . The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone?s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous[.]
In the piece, I write:
[Judge] Karlton asserted that the "wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone's religion." True enough. The separation of church and state is crucial to any clear vision of religious freedom. He continued, however: "Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous."
This claim - that the First Amendment should be applied by judges to safeguard a tranquil, God-free public square - is badly misguided.
Religion matters, and people care about it. The excesses of religious believers does not mean that judges should be particularly suspicious of the zealous. Those who crafted our Constitution knew better. They believed that both authentic freedom and effective government should be secured through checks and balances rather than standardization. It is both mistaken and quixotic to employ the First Amendment to smooth out the divisions that are an unavoidable part of the political life of a diverse people.
For a more developed argument that judicial observations or predictions of "religious divisiveness" should do little work in supplying the First Amendment's enforceable content, see this article of mine.
When the Law Review was Young
Over the last six months, I have spent a great deal of time reading law review articles from the first few decades of the 20th century. Initially, I was reading the articles as part of my research for an article on the history of the development of a distinction between substantive and procedural due process (a topic I will return to later in my visit if time permits). About six weeks into my research, however, I realized that--in addition to my project on the due process super-structure--I was going to have to write an historical article on the early Law Reviews themselves.
What you might ask was so surprising? So fascinating as to change my research agenda? Well, across journals and authors, there was a freshness to the writing, a spontaneity of both style and content that was worlds away from both the dry legal treatises of the 19th century and the formulaic law review articles of the late 20th and early 21st century. There was an almost palpable sense that the new medium of university-affiliated journals was creating a new genre of legal commentary, whose contours were up for grabs in every piece of writing.
To draw the obvious parallel, the law review was to the early 20th century what the blog is to the early 21st--a new medium that is faster, cheaper, and more democratic than previous avenues of commentary and scholarship. Whereas much of the legal scholarship of the 19th century came in the form of treatises and other similarly long-range projects, the law review opened up the opportunity for timely commentary on recently decided cases, for commentary that was more impressionistic and provisional, and for commentary by a wider swath of students, practitioners, and untested academics.
There is a deeper academic story here about the conversation that ensued between the commentators and the courts as both law review writers and judges tried to make sense of a rapidly--and to some extent haphazardly--evolving constitutional landscape. But for today, I just wanted to tell the tale of a time when the law reviews were fresh and hip.
Cormac McCarthy and Moral Absolutes
I love Cormac McCarthy's work. It's not exactly cheery stuff, but the prose is incredible and the themes are deep. His new novel, "The Road," has been getting rave reviews, and I cannot wait to read it. Here, just as a taste, is William Kennedy in the New York Times:
Cormac McCarthy’s subject in his new novel is as big as it gets: the end of the civilized world, the dying of life on the planet and the spectacle of it all. He has written a visually stunning picture of how it looks at the end to two pilgrims on the road to nowhere. Color in the world — except for fire and blood — exists mainly in memory or dream. Fire and firestorms have consumed forests and cities, and from the fall of ashes and soot everything is gray, the river water black. Hydrangeas and wild orchids stand in the forest, sculptured by fire into “ashen effigies” of themselves, waiting for the wind to blow them over into dust. Intense heat has melted and tipped a city’s buildings, and window glass hangs frozen down their walls. On the Interstate “long lines of charred and rusting cars” are “sitting in a stiff gray sludge of melted rubber. ... The incinerate corpses shrunk to the size of a child and propped on the bare springs of the seats. Ten thousand dreams ensepulchred within their crozzled hearts.” . . .
The overarching theme in McCarthy’s work has been the face-off of good and evil with evil invariably triumphant through the bloodiest possible slaughter. Had this novel continued his pattern, that band of marching thugs would have been the focus — as it was with the apocalyptic horsemen of death in his second novel, “Outer Dark,” or the blood-mad scalp-hunters in his masterpiece, “Blood Meridian,” or the psychopathic killer in his recent novel, “No Country for Old Men.” But evil victorious is not this book’s theme. . . .
(Here is another review, from Slate.com.) Now, at one point in the book, the two main characters (the boy and his father) narrowly escape a gang of cannibals . . .
When six of the cannibals return to the house the man and boy barely escape the same fate. Hiding, afraid to breathe, the father tells the boy it’s going to be O.K. He says that often.
The boy asks: “We wouldn’t ever eat anybody, would we?”
“No. Of course not. ...”
“No matter what.”
“No. No matter what.”
“Because we’re the good guys.”
“And we’re carrying the fire.”
“And we’re carrying the fire. Yes.”
Here's a question -- one that resonates, I suppose, with the recent return in the news to the possibility of "torture warrants" -- which might be of interest to law profs: What has to be true about the world in order for it to be true -- really true -- that there are some things that "the good guys" do not do, no matter what? That is, what are the premises of the claim implicit in the father's assurance to his son that, "no matter what," to be a "good guy" is to be someone who does not do certain things, e.g., kill other human beings for food?
Sticking Elbows In a Picasso
Joseph Sax wrote an interesting book in the not-too-distant past about property rights and protecting cultural works (Playing Darts With a Rembrandt). I'm not sure quite how this story fits in, but it has to say something. Steve Wynn, who loves collecting art and displaying it in his casinos, tore a coin-sized hole in a Picasso painting (The Dream) worth $139 million. The reason: Wynn is a klutz. He was showing off the painting and gesticulating with his hands right next to it, notwithstanding an eye problem that impairs his peripheral vision. Elbow in painting, bye-bye tens of millions of dollars. Wynn says he'll repair the painting.
Where Have You Gone, Tarlton Law Library? A Nation Turns its Lonely Eyes to You
For years, the Tarlton Law Library has quietly, thanklessly performed a valuable service: posting, each day, the table of contents of all its newly received law journals, domestic and foreign, in a fairly neat presentation. The site is here. Every now and then the site seems to go dark, and I begin to break into a cold sweat, wondering whether I'm about to lose a vital resource and valuable part of my
procrastination scholarly routine. And for the past couple of days, when I click on the links for the contents, I have gotten the ominous message, "The page you are looking for could not be found."
I don't know whether we have any readers chez Tarlton, but if so, please tell me it's a momentary lapse! Losing this service would be like losing a trusted friend. I'm happy to post on SSRN and track new papers released there, and it's great to have access to legal scholarship without waiting out the long publication process, but Tarlton's law review contents page still performs a useful service. Not every paper is released on SSRN, and some that are may go overlooked the first time around. Also, it's useful to know when a journal has published a symposium, tribute, book review, or other special content that might not be revealed through SSRN. Then, of course, it's useful to know what's being published in Canadian, English, and other foreign law journals, whose writers are less likely to post their work on SSRN. And, even in an electronic world, it's just nice to know what the journals are actually publishing.
Come back, little Tarlton! If it's a question of money, just turn Joe Jamail upside down and shake him a few times; I'm sure a few more bucks can be dislodged.
Goodbye and thanks
I re-signed on to the Blawg with the intention of sticking around for only a few weeks, but soon found that blogging is the writing equivalent of Pringles potato chips--once you pop, you can't stop. That was well over a month ago. Dan and the rest of the Prawfs have been indulgent in letting me stick around for such a long stint, for which I'm grateful. I've enjoyed the conversations immensely and hope the commenters and readers have too. As a vaguely topical parting shot, let me recommend this article from the New Yorker: "The Nutty Professors", in which Anthony Grafton reviews William Clark's new book on academic charisma. Adios!