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Wednesday, January 31, 2007

When a President is Charged with Rape

After several months of investigation, this week Moshe Katsav has been indicted for rape and sexual harassment of 4 different former workers. Today, former justice minister Haim Ramon was found guilty of sexual harassment. And last week, an investigation began against Prime Minister Ehud Olmert over suspicions of power abuse during the privatization Bank Leumi (as a I side note I have to mention that Bank Leumi was founded by my great great grandfather, Zalman David Levontin, a very different time in Israeli history).

What is the meaning for a country when its leaders are charged contemporaneously with serious crimes? Should the focus be on the number of criminal occurrences or rather the fact that the legal system functions autonomously and charges against leaders are not overlooked. Charged with the most serious crime an Israeli leader has ever been indicted for, Katsav has said that he is the victim of a conspiracy by 'political enemies.'  Haim Ramon, who was found guilty of kissing a young soldier despite her resistance, on July 12, the day the Lebanon war erupted announced he will appeal the verdict, repeatedly stating that the allegations are false and designed to condemn him politically. The three judge panel wrote unanimously and clearly: All the elements of a sex offense were present. The victim spoke truth while Ramon did not. The AG office stated, “It is not an easy day when a minister is convicted, but the verdict is a confirmation of the enforcement of legal norms of autonomy and the dignity of women [in the country]”. The debate is heating up about the significance of these events, between the perspective of the net corruption among leaders and the independent unbiased operations of the legal system, in which all are equal before the law.

Posted by Orly Lobel on January 31, 2007 at 12:55 PM | Permalink | Comments (1) | TrackBack

Tuesday, January 30, 2007

Teaching students to be "real lawyers"

It's an old and common complaint:  Law schools don't teach students how to be "real lawyers."  Cameron Stracher returns to the theme in this Wall Street Journal opinion piece.  He reports, "[t]here appears to be an emerging consensus that although law schools may teach students how to 'think like a lawyer,' they don't really teach them how to be a lawyer."  "One of the biggest problems with the current state of legal education," he writes, "is its emphasis on books rather than people."  In Stracher's view, part of the answer to the problems with legal education is a thoroughgoing shift toward clinical education; law schools, he thinks, should not be content with a few discrete, limited, short-term clinical classes, but should instead be more like medical schools, and provide "sustained clinical experience," "rotations," etc.

Now, there's certainly something to Stracher's charges.  That said . . .

I want to push back a bit when Stracher writes:

By giving students the false idea that being a lawyer is all about intellectual debate, we also drive the wrong students to law school in the first place. The hordes of English majors who fill our classes might think twice if they knew that economics and mathematics--with their emphasis on problem-solving--are the best preparation for a career in law. Flowery prose is seldom valued by an overburdened judiciary.

It is not (I hope!) philosophy-major / law-prof defensiveness to think that, while warnings about "flowery prose" are certainly appropriate, law remains a deeply humanistic, "liberal artsy" enterprise, as well as an arena for problem solving.   And then there's this:

Law is not brain surgery. It is a skill that can be acquired through practice and repetition. This is perhaps the most interesting lesson from Brian Valery, the over-ambitious paralegal: He fooled those around him who ought to have known best. In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it.

I hope it isn't -- I don't think it is -- merely snobbish or anachronistic to cling to the view that, actually, Valery didn't learn the law, and didn't really practice it.  We can roll our eyes, as Stracher does, about the Ivory Tower, and about law profs who know their Aristotle but not their county courthouse, but, in my experience, the best lawyers -- the ones who had judgment, who really understood a case and the people and issues involved -- were those who also understood that, for all the "bluster[], bluff[ing], threat[s] and cajol[ing]," the practice of law is, at least in part, an intellectual enterprise and, in many ways, moral philosophy at the retail level.  Stracher says that Valery "knew the law" and "learned his trade."  But isn't there something to wrestling with the competing arguments whose resolution is reflected in the "law" that Valery knew, to understanding the context out of which that "law" emerges, and the goals that "law" is trying to accomplish?

Posted by Rick Garnett on January 30, 2007 at 10:51 AM in Teaching Law | Permalink | Comments (23) | TrackBack

Monday, January 29, 2007

Solum on "natural justice"

Larry Solum has posted a new paper, "Natural Justice."  Here is the abstract:

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts.  . . .

More from the abstract, and a few questions about Solum's project, after the jump . . .

Here is the rest of the abstract:

Natural Justice develops these claims in four stages.  Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts.

Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case.

Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections.

Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.

I'm attracted to Professor Solum's (and others') efforts regarding aretaic jurisprudence, although I'm painfully aware that my undergraduate engagement with Aristotle, Aquinas, and MacIntyre hardly qualifies me to evaluate them.  So, these questions will probably accomplish little more than to highlight my lack of training, but here goes:  First, does "virtue jurisprudence" require a theory of the state, i.e., a theory that explains why it is (assuming that it is) the case that the state may employ coercion (i.e., the law) to push citizens toward virtue?  Second, does "virtue jurisprudence" require a teleological account of the person, in order to pour content into the idea of "human flourishing", the promotion of which is said to be the purpose of law?

Posted by Rick Garnett on January 29, 2007 at 11:09 AM in Article Spotlight | Permalink | Comments (5) | TrackBack

The Situationist

No, it's not the title of a recurring sketch on SNL.  The Situationist is a new blog run by a polyglot crew of academics concerned with "law and mind sciences."  Its co-creator is Jon Hanson of Harvard Law School, who has been writing extensively and at length (no exaggeration -- check out some of the articles) in this area for the past few years.  Its contributors include the psychology prof Philip Zimbardo, who is most famous for the 1971 Stanford Prison Experiment.  From the blog:

Part of a larger effort, including the Project on Law and Mind Sciences at Harvard Law School (website forthcoming), this blog will provide commentary by social psychologists, law professors, policy analysts, practicing attorneys, and others connected to law and mind sciences. Our posts . . . will address current events and law and policy debates, informed by what social scientists are discovering to be the causally significant features around us and within us that we believe are irrelevant or don’t even notice in explaining human behavior, that is “the situation.”

Situationism” represents a striking contrast to the dominant conception of the human animal as a rational, or at least reasonable, preference-driven chooser, whose behavior reflects stable preferences, moderated by information processing and will, but little else. Different versions of the rational actor model have served as the basis for most laws, policies, and mainstream legal theories, at the same time that social psychology and related social scientific fields have discovered many ways in which that model is wrong.

The Situationist, then, will be a venue in which the powerful, influential, but incorrect conceptions of the human animal come up against more accurate, if surprising and unsettling, realizations about who we are and what the law is and ought to be. Its content will reflect an emerging interdisciplinary trend in legal scholarship, as exemplified by the work of scholars such as Mahzarin Banaji, Gary Blasi, Martha Chamallas, Susan Fiske, Jerry Kang, Linda Hamilton Krieger, Lee Ross, David Yosifon and many others.

I'm a big fan of Hanson's work on situationism, and look forward to hearing from him, Jerry Kang, Sung Hui Kim, and others.  Welcome. 

Posted by Paul Horwitz on January 29, 2007 at 10:48 AM in Blogging | Permalink | Comments (0) | TrackBack

Sunday, January 28, 2007

Drama in Michigan's Highest Court

A feud has erupted on the Michigan Supreme Court among five of the GOP members of the seven-Justice court.  Justice Elizabeth Weaver has called for the removal of four of her fellow Justices for their "inappropriate" behavior and attempts to silence her when she complained about it.  Justice Weaver recently published a dissent protesting the election of her colleague Clifford Taylor to serve as the Court's Chief Justice.  Justice Weaver asserted that the Chief Justice, along with Justices Corrigan, Young, and Markman, misused and abused power and engaged in repeated disorderly, unprofessional and unfair conduct in the performance of the judicial business of the Court.  According to Justice Weaver, the four Justices should have disqualified themselves from a particular case and then attempted issue a "gag order" prohibiting her from publishing her dissent on the matter.  Justice Weaver claims that Chief Justice Taylor, in an internal memo, called her a "petulant only child" who is "holding her breath until she gets her way."  The four Justices under attack argue that Justice Weaver has violated the confidentiality of judicial deliberations.  They also contend that Justice Weaver bears a grudge against them for their decision in 2001 to oust her from the Chief Justice position.

Last week, Justice Weaver asked Michigan's Governor Jennifer Granholm and members of the State Legislature to convene an independent commission to investigate the Supreme Court controversy in order to determine whether the removal of any Supreme Court Justice is warranted.  Article 6, section 25 of the Michigan Constitution enables the Governor, supported by a two-thirds majority of each house of the legislature, to remove a member of the Supreme Court.  Writing in the Detroit Free Press, Carter-appointee Judge Avern Cohn (E.D. Mi.) supported the establishment of an independent commission to determine whether a Justice's dissent can be withheld from the public if such dissent would reveal judicial deliberations and to resolve the allegations of disqualification.  Judge Cohn contended that such an action was critical as the "justices have shown they are incapable of doing it on their own."  Time will tell if the infighting involves a personal rift/political grandstanding or a genuine disagreement about the scope of the cloak of secrecy over judicial deliberations. 

    

Posted by Danielle Citron on January 28, 2007 at 10:23 PM in Law and Politics | Permalink | Comments (3) | TrackBack

Singer on human dignity

In a recent op-ed, "A Convenient Truth," philosopher and ethicist Peter Singer discusses the much-remarked case of "Ashley," a severely developmentally disabled 9-year old whose parents want to secure treatment that will prevent her from maturing physically (so that they will be better able to care for her).  Addressing the debate over whether or not such treatment would be consistent with Ashley's human dignity, Singer writes:

As a parent and grandparent, I find 3-month-old babies adorable, but not dignified. Nor do I believe that getting bigger and older, while remaining at the same mental level, would do anything to change that.

Here’s where things get philosophically interesting. We are always ready to find dignity in human beings, including those whose mental age will never exceed that of an infant, but we don’t attribute dignity to dogs or cats, though they clearly operate at a more advanced mental level than human infants. Just making that comparison provokes outrage in some quarters. . . .

What matters in Ashley’s life is that she should not suffer, and that she should be able to enjoy whatever she is capable of enjoying.  Beyond that, she is precious not so much for what she is, but because her parents and siblings love her and care about her. Lofty talk about human dignity should not stand in the way of children like her getting the treatment that is best both for them and their families.

Now, this seems wrong to me.  A better moral anthropology, I think, is one that thinks "what we are" is, in fact, every bit as important to why we are "precious" as is the (we can hope) fact that others love us.  But Singer is serious and prominent, and so I'm curious about others' reactions to his claim.  Any thoughts?

Posted by Rick Garnett on January 28, 2007 at 03:51 PM in Current Affairs | Permalink | Comments (22) | TrackBack

Food Science and the Limits of Empiricism

The cover story in today's N.Y. Times Magazine is on food science and the "age of nutritionism."  Michael Pollan, a professor of journalism at Berkeley, argues that the last thirty years of food science, ostensibly aimed at making people healthier, have actually made matters worse.  He argues that the effort to reduce foods to their component parts -- namely, nutrients -- has left Americans focused on a never-ending rotation of different nutrients instead of on the importance of the foods themselves.  And I think his argument has something to say, as well, about the general methodology of scientific empiricism as applied in any discipline, including the law.

Pollan argues that foods are impossibly complex.  He argues that whole foods, such as whole grains, fruits, vegetables, and leafy greens, are the best foods for human consumption, based on a broad-based perspective of human history and environment.  But according to Pollan, food science has spent the last thirty years trying to isolate the exact nutrients in these foods that make us healthier.  This scientific effort has resulted in an ever-changing series of findings, as scientists proclaim the value of a particular nutrient only to find its effects much less dramatic than initial findings suggested.  Pollan argues that this is a result, in part, of an effort to isolate nutrients without the actual ability to do so; foods are so complex that it is impossible to reduce them to simply a list of nutrients.  But scientists continue to do so, with predictably incomplete and ultimately erroneous results.

Pollan's critique of food science has lessons for other forms of empiricism.  Here are a few:

Limits to Empirical Methods.  Pollan spends the bulk of the article explaining the flaws in various nutritional studies over the last thirty years.  He notes that for each time the benefits of a new "nutrient" are discovered, it is later revealed that the nutrient itself does not really create those benefits.  Instead, it is the nutrient working within its particular environment -- namely, within a certain type of food -- that may create the nutritional benefit.  Pollan goes through a series of nutritional fads -- low-fat foods, beta carotene, omega-3 oils, low-carb foods -- to show that each has a kernel of truth but is woefully incomplete on its own.  Pollan chalks these failures up to the effort to oversimplify something that cannot be simplified.

Quantitative empirical studies share these same limitations.  They depend on the researcher's ability to isolate a single variable and control all other "factors" that might influence the decision.  Certainly, all empiricists would recognize the inherent difficulty in doing this.  And better empiricism does a better job at actually controlling extraneous variables.  But as Pollan suggests, there is some degree of hubris in even attempting this.  From his perspective, we are nowhere near the day when scientists will actually be able to explain how foods actually work.  While he pays some respect to the continuing scientific effort, he conveys a skepticism that it will ever actually be able to tell us what we need to know.   

Overgeneralizing from the Results.  Pollan would not have a problem with food science were its findings not so dramatically announced by the media and so extensively coopted by the food industry.  For it is the conclusiveness of the studies and the real-world changes that such studies prompt that really cause the trouble.  For example, Pollan describes how the low-fat trend in the 1980s actually prompted folks to eat more carbohydrates than they had been before.  This made diets worse, not better.  Similarly, the recent study finding that low-fat diets did not reduce health risks was weak science, according to Pollan.  But the real problem is that the media's trumpeting of the study encouraged the average person to pick up a quarter pounder with cheese, despite the study's questionable and inconclusive results.

This, too, is a problem for all empiricists: how to acknowledge that their results are simply one small piece of data in a ongoing process of data collection and interpretation, while persuading their peers that their study represents a critical and important step forward for the discipline.  And with law in particular, there is the temptation to argue that a particular empirical result inexorably leads to a particular policy prescription.  After all, if law review articles with no empirical support can make such claims, why can't demonstrable scientific facts?

Ultimately, I think Pollan swings too far the other way.  Although food science has inherent limitations, that does not mean that its effort to isolate discrete nutrients is ultimately fruitless.  The fact that Vitamin C prevents scurvy is an important and useful bit of information, and eating oranges is not the only way to get the benefits.  Findings like this help prevent a wide array of diseases.  Ultimately, food science may lead us to understand a lot more about food, and that understanding will help us in our everyday diets and in times of food crisis.  But I agree with a more moderate version of Pollan's thesis: empiricism is important, but we cannot focus on short-term findings as the new answer to all our problems. Putting food science in its context, and using a broader, more comprehensive vision in coming up with our actual diets, is a wiser course. 

Posted by Matt Bodie on January 28, 2007 at 12:36 PM in Information and Technology | Permalink | Comments (4) | TrackBack

Contracting out of paternity

Courtesy of ContractsProf Blog:

A man whose wife has, with his consent, been artificially inseminated with an anonymous donor's sperm cannot escape parental liability by contract, according to a new ruling from a New York state trial court.

In the case, the husband -- who had previously undergone a vasectomy -- reluctantly agreed to his wife's desire to have another child by artificial insemination.  Later, when the couple split before the child was born, they agreed that the husband would not be considered the father of the child.  After the child was born, they again signed an agreement stating that the husband would not be liable.

But that agreement violates public policy, said Justice Eugene Peckham.  New York law provides that the husband of a woman who conceives by artificial insemination with his consent "shall be deemed the legitimate, natural child of the husband."  The parties apparently cannot get around that obligation by contract.  Justice Peckham also apparently ruled that the husband would be estopped from denying paternity in any case, since the child had relied on his prior consent by being conceived and born.

For our prior discussions on related matters, see  here, here, here, here, here, and here

Posted by Ethan Leib on January 28, 2007 at 12:35 PM in Current Affairs | Permalink | Comments (0) | TrackBack

"It's more like electing a pope."

That's how a former Harvard Law Review editor desribes the process of electing the Review's editor-in-chief.  In an article in today's N.Y. Times, Jodi Kantor looks at the law school career of Barack Obama, who was elected to be the Review's EIC.  The article uses Obama's law school experience as a frame for looking at Obama's current political persona, which is very consensus-driven but, according to some, lacking in potentially controversial specifics.

The article is also interesting as a behind-the-scenes look at the workings of HLR in the early 1990s.  Obama's efforts to allay tensions on campus are frequently invoked.  One former editor is quoted: "I have worked in the Supreme Court and the White House and I never saw politics as bitter as at Harvard Law Review in the early'90s."  Obama's ability to listen and make everyone believe he agreed with them was critical to his successful navigation of this contentious terrain.  The process of electing the EIC is discussed in detail, with its all day session considering 19 candidates (even Pound Hall is mentioned).  A parody of Obama from the now defunct Harvard Law Revue is excerpted.  The parody describes Obama as "the son of a Volvo factory worker and part-time ice fisherman" and "a backup singer for Abba" -- after going to Chicago, "[t]here I discovered I was black, and I have remained so ever since."  (Questions about Obama's "blackness" were raised recently by Debra Dickerson, a member of HLS '95, in an article in Salon.)  The Revue's willingness to flaunt norms of political correctness and civility would result in its demise a short time later.

The article highlights an interesting issue -- the extent to which law school and law review activities are part of one's "public" persona.  In some senses, Obama first became a public figure when he was elected as the Review's first African-American EIC.  But the business of a law review is generally some mixture of academic publication and collegiate social club.  I have a sense, at least, that some of the Review's heady mix of politics should not be subject to national exposure and dissection.  After all, it's a group of 80 or so law students -- folks who are still figuring out how to approach their professional lives.  No doubt, it's interesting stuff.  But I fear that "Above the Law" profiles of law review banquets may not be far behind.

Posted by Matt Bodie on January 28, 2007 at 11:23 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Saturday, January 27, 2007

Remembering Judge Richard Arnold

I was blessed, after law school, with the opportunity to work for a brilliant and decent man, Judge Richard S. Arnold of the United States Court of Appeals.  Judge Arnold died a little over two years ago, on September 23, 2004.  (Here is a blog post I did, right after learning about his death.)

The University of Arkansas-Little Rock's Bowen School of Law now hosts an annual Arnold Lecture, honoring Judge Arnold and his brother, Judge Morris S. Arnold.  Last night, Justice Thomas -- who came to know Judge Arnold well, in connection with his assignment to the United States Court of Appeals for the Eighth Circuit -- gave that Arnold lecture.  Here is a report.

Here's a bit from a post I did, the day after Judge Arnold's death:

The Judge was humane, wise, and devout. . . .  There are few like him. In terms of the law, he was an old-school liberal who admired both Justice Black and Justice Brennan, and a textualist with originalist leanings who loved and respected Justice Scalia; he was a "strict separationist" who really did believe that such a legal regime was essential to preserving religious freedom; he was passionately committed to fairness and to the dignity and rights of litigants and defendants; he knew that the law should be just, yet knew also that judges cannot right every wrong. His writing was at the same time elegant and simple, clear and memorable. . . .

Judge Arnold was a great judge, and a deeply good man.  Thanks to the Bowen School of Law, and to Justice Thomas, for honoring him.

Posted by Rick Garnett on January 27, 2007 at 10:53 AM in Rick Garnett | Permalink | Comments (1) | TrackBack

Friday, January 26, 2007

Teaching the "Mormon" Cases

A slightly more academic post than usual:  I'm teaching Law & Religion before a wonderful group of students this semester at Notre Dame, and have just gotten through teaching the so-called "Mormon" cases -- Reynolds, Davis v. Beason, etc.  Reynolds, especially, is useful as an introduction to the belief-conduct distinction, the question of constitutionally compelled exemptions under the Free Exercise Clause, and so on.  But these cases also raise a host of fascinating bigger-picture questions about the relationship between religion and politics, or between the "religious" and "secular" realms, both from the secular perspective and from the religious perspective.

That is especially so if one takes the time to read the 1890 Revelation from Wilford Woodruff, then-President of the Church of Jesus Christ of Latter-Day Saints, which led to the end of polygamy as a distinctive practice of the Saints.  (This is a decidedly generalized description, and none of the terms used therein are meant to be unduly conclusory or suggestive.)  In a recent paper, I wrote that one ought not casually describe the abandonment of the practice as a simple secular response to state pressure, since the Church itself describes the doctrinal shift as a product of religious revelation.  (To be clear, this was said by way of defense of the Church, not as an argument that since the change was religious, we shouldn't care that the state helped bring the Church to this pass.)  That is true, but also a little too simple.  What is striking about the Revelation is the extent to which the Revelation is an effort to grapple religiously with a set of secular facts.  Woodruff describes the Lord as having asked the Saints the following question:

Which is the wisest course for the Latter-day Saints to pursue—to continue to attempt to practice plural marriage, with the laws of the nation against it and the opposition of sixty millions of people, and at the cost of the confiscation and loss of all the Temples, and the stopping of all the ordinances therein, . . . and the imprisonment of the First Presidency and Twelve and the heads of families in the Church, and the confiscation of personal property of the people (all of which of themselves would stop the practice); or, after doing and suffering what we have through our adherence to this principle to cease the practice and submit to the law, and through doing so leave the Prophets, Apostles and fathers at home, so that they can instruct the people and attend to the duties of the Church, and also leave the Temples in the hands of the Saints . . . ?

It seems to me that professors who teach law and religion ought to include the Revelation in their reading materials. 

Of course Reynolds is useful for doctrinal reasons, but adding this material opens up a far broader set of questions, many of which have broader resonance both for the question of Free Exercise accommodation and for the relationship between religion and the state in general.  Surely our thoughts on those issues will be influenced by our sense of what it means for the state to wrong religion, whether we should speak in terms of a state altering religious practices, and so on; and from the other side, our sense of what religions should or should not seek from the state may depend on our sense of how doctrine is formed, what it means to have a "religious" as opposed to a "secular" response to events in the world, and more.  It seems to me that many of the religiously oriented legal writings on the relationship between religion and the state depend on two assumptions about religion that may be widely shared among members of many "traditional" faiths, but not by others: 1) that most or all of God's communications to man have already occurred, and therefore that religion's response to the conditions of the secular world is in some sense fixed by what has gone before; and that 2) purity of faith depends on believers making a strong distinction between religious and temporal authority and following only or primarily the former, even to the point of martyrdom.  One such set of arguments are put usefully in a paper by Mark Tushnet called In Praise of Martyrdom; but a different perspective is available in a short and remarkable paper by Frederick Mark Gedicks titled "The Integrity of Survival: A Mormon Response to Stanley Hauerwas," 42 DePaul L. Rev. 167 (1992).  I think Gedicks's wonderful paper complicates the picture painted by Tushnet substantially.

Of course this post has only raised questions, and that but generally, and hasn't even attempted to answer them.  I'm not sure that any definitive answers are available, or if they are, that they wouldn't have to proceed on a faith-by-faith basis.  And to be sure, much more (and more informed) things could and have been said about the LDS experience in American legal history (among them, this fine paper by blogger/lawprof Nathan Oman).  My point is not to settle these questions, but to encourage law & religion profs (and students!) to include the 1890 Revelation in their must-read material, and to treat Reynolds and its sequelae as raising a host of productive broader questions for the relationship between law and religion, and not just as a minor and historically quaint signpost on the road to the dreaded Employment Division v. Smith.  

Posted by Paul Horwitz on January 26, 2007 at 02:36 PM in Religion | Permalink | Comments (14) | TrackBack

Out with the Old

Wired news reports that Western Union will discontinue its telegram service as of January 27, 2007.  Over 160 years ago, Samuel Morse sent the first telegram from Washington D.C. to my beloved city, Baltimore.  Although individuals had largely traded in the telegram for the telephone system by the 1950s, Western Union stood by its messaging service.  But the increasing use of VoIP telephony, cellular phones, and email no doubt finally convinced Western Union that it was time to lay the telegram to rest.  Morse's first message can perhaps be said about today's emerging information technologies that replace the telegram--"What God hath wrought?"    

Posted by Danielle Citron on January 26, 2007 at 02:07 PM in Information and Technology | Permalink | Comments (1) | TrackBack

Contract and promise

Seana Shiffrin's new paper on Contract and Promise is up at the Harvard Law Review's website.  I read this paper a while back (9.21.05) when it was on the workshop circuit.  Here's what I wrote her then:

I liked your paper a lot. But I couldn't help thinking that one could look at matters in exactly the opposite way: one could argue that by creating a system of contract using, as Markovits puts it, the morphology of promises, we are opening the very possibility for moral agents to act in accordance with their values. From this perspective, rather than seeing contract law as eroding moral agents' virtue (as you do), we could see moral agents as having access to moralize the laws under which they live. In short, why can't the causality go the other way--and morality can erode whatever non-moralistic frame is left of our system of contract enforcement. To be sure, this perspective still requires us to say something about the basis of contract law that is not rooted in promise. But this shouldn't be too hard: even if we put efficient breach theory to one side, we can't deny that our contract law is pluralistic in its organization: it partakes in the morphology of promise but imports all sorts of other considerations into its doctrinal applications as well.

I was especially grateful for your taking on the issue of how we make sense of moralizing corporation to corporation agreements. I discuss this aspect of Markovits's work (where he denies it is possible) in some forthcoming work, which I have attached for your convenience.

All best,

Ethan

My essay on the subject I advert to in my e-mail is here.

Posted by Ethan Leib on January 26, 2007 at 11:45 AM in Article Spotlight | Permalink | Comments (1) | TrackBack

Thursday, January 25, 2007

Princeton, Berkeley & Asians

Over the last several months, the discussion about Asian Americans and college admissions has reached an unprecedented intensity.  Like many others, I have been following the coverage of a complaint filed against Princeton University of reverse discrimination by a rejected Chinese American applicant and have read the latest New York Times’ piece entitled Little Asia on the Hill about the changing demographics at the University of California, Berkeley.  As a first generation Chinese American myself who was accepted by some first rate colleges and law schools and rejected by others, and as a member of a very diverse law faculty teaching in the most diverse county in the country, I have struggled deeply with the discussion.

One of the most troubling aspects of the discussion is the ease and frequency with which many commentators and individuals blame the decrease in Black and Hispanic students in the UC system on the rise in Asian American students and also vice versa, attribute the rejection of Asian American applicants to the admission of Black and Hispanic applicants at Princeton to meet diversity goals.  Professor Robert George at Princeton describes the current dilemma as one where “you have different categories of minority whose interests are allegedly in conflict.”  Even the complainant in the Princeton case himself, Jian Li characterizes affirmative action as a conflict amongst people of color:  “Theoretically, affirmative action is supposed to take spots away from white applicants and redistribute them to underrepresented minorities . . . What’s happening is one segment of the minority population is losing places to another segment of minorities, namely Asians to underrepresented minorities.”

Such talk is distressing for two reasons.  First, it distracts from what I believe is the real claim of Mr. Li’s complaint.  Would Mr. Li have been admitted if all else being the same, he was white and obviously white to the Princeton admissions officials, instead of being Chinese American?  The difficult question being asked is whether, in addition to affirmative action for Hispanics and Blacks, there has also been unlawful discrimination against Asian Americans.  It is far more likely that Mr. Li's application was compared to those of white applicants and not to Black and Hispanic applicants.  To turn the tables around then, has there also been race-based priority given to white applicants over Asian American applicants?  I do not know the answer to this question and I suspect it is a complicated one.  Unfortunately, the current discussion does not focus on it.

A second reason why the portrayal of a clash amongst minorities is problematic is that it feels like an intentional strategy to divide what is already a tenuous rainbow coalition behind diversity in higher education.  As my colleague, Professor Steve Lee, recently wrote to me, “There are many elite universities around the world, but racial and cultural diversity is a god-given gift that American universities should not give up.”  While it makes perfect sense that the discussion of Asian Americans and college admissions has intensified in this post-Grutter, post-Proposition 209 world, it is important not to unduly conflate matters and to get distracted.  The ultimate goal is diversity in our colleges and graduate schools.  Getting there may require measures to value some minorities but also measures to eliminate unlawful discrimination against others.

Posted by Elaine Chiu on January 25, 2007 at 01:24 PM in Current Affairs | Permalink | Comments (57) | TrackBack

Wednesday, January 24, 2007

Phishing Battles

One of the biggest information-security vulnerabilities for financial web services involves phishing scams.  Individuals, responding to seemingly authentic emails, reveal their passwords or banking information to phishing con artists.  The problem has exploded in the last year.

PayPal hopes to protects its customers from phishing schemes by offering secure key fobs.  The devices display a six-digit code that changes every 30 seconds; PayPal uses a two-factor authentication login system that uses the device-oriented verification along with a conventional password.  Such a system prevents theft when one form of authentication is compromised.  Thus, if a user's password is stolen via a phishing scam, the thief will be unable to access the account.  This additional layer of security helps insulate users from theft.   

But just as the market seems to have provided a glimmer of hope in the battle against online fraud, phishing sites  are already cropping up that address the two-factor authentication process.  Scammers from Russia created a Citibank phishing site that requested the key fob code as well as a user's password, allowing the thieves to connect to the real Citibank web site.  In this age of information insecurity, consumers must vigilantly monitor their accounts.

Posted by Danielle Citron on January 24, 2007 at 06:07 PM | Permalink | Comments (0) | TrackBack

Law School Identity Vertigo

Just as the new semester is getting under way, I come across this passage from Ross & Nisbett’s The Person and the Situation:

The authors [Ross and Nisbett] know all too well the surprised, even shocked look on the faces of students who have caught them … slamming a racket after a missed volley on the tennis court, lining up for a ticket to a Grateful Dead concert, playing pinball at a hamburger joint, or shouting at their kids at the local Wal-Mart…

Ross and Nisbett mean to highlight the way we “confound” “person and situation.” Students who come to know professors primarily in the classroom may come to believe that those professors act “professorially” outside the classroom, not recognizing the degree to which the professor’s behavior at school is shaped by the professor’s role; likewise, professors who come to know students in the classroom may imagine that those students act student-like even when there are no professors around, forgetting how they themselves were once channeled and constrained by being students in the classroom.   

I’m not sure students and teachers are quite as shocked by seeing each other out of role as Ross and Nisbett suggest, but I do think the process by which we construct identities for each other is a mysterious one.  A very thoughtful student once asked me whether I have a brother who has a little boy.  She said she’d seen them walking past the law school on the weekend.  For a few seconds I was baffled, trying to imagine how she could possibly have come across Will, who was working 24/7 on a campaign 1500 miles away.  Then I realized, of course, that she hadn’t seen Will and a little boy at all, but me and Milo, stopping by school to pick up some papers on the weekend.  Seeing me out of role, she thought I was actually someone else – someone like me, but not me.  In the same vein, students have several times asked me questions that began, “When you were a prosecutor …”  Since I was not a prosecutor, and since I was in fact a pretty ardent defense lawyer, I’m always at least a little surprised by the question.  Are my efforts to “compensate” for my defense sympathies so effective that I now appear entirely unsympathetic?  Do students project their own sympathies over my own?  Whatever the process is, it produces a strange refraction of my own identity.  And, of course, it goes both ways.  Not long ago, I began to tell a student how difficult a certain teaching situation is; she nodded patiently while I said my piece, and then told me how she had handled similar situations over her own, lengthy teaching career.  Taking our current roles entirely for granted, I had overlooked the obvious possibility that she had more experience with teaching than I do.         

With a new semester getting under way, I take the Ross and Nisbett quote as a nice reminder about the quirky and not always reliable way teachers and students get to know each other, extrapolating whole persons from isolated shards of not-entirely-representative evidence.  It also gives me an opportunity to put these details on the record, at least to take the sting out: I, too, have thrown rackets on the ground in frustration about a missed volley, and I used to play the Earthshaker game at Tommy’s Lunch for hours at a time, back before they turned Tommy’s into a Pizza place.

Posted by Anders Kaye on January 24, 2007 at 12:44 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Tuesday, January 23, 2007

Product Placement in the State of the Union

I understand why presidents now put our heroes on display during the State of the Union for all to see.  And I like Baby Einstein products as much as any parent.  But did anyone understand the point of the product placement?  Did Disney recently contribute to Bush's agenda?

Posted by Ethan Leib on January 23, 2007 at 10:40 PM in Current Affairs | Permalink | Comments (2) | TrackBack

Aaron Streett on Supreme Court Yesterday

Greetings, sportsfans! Before [yesterday], what the Court’s docket lacked in quantity, it made up for in sheer stupefying dullness. No more! The Court’s first semi-blockbuster of the Term has Golden State crooks jumping for joy in the jails. And the Court agrees to hear a potentially blockbuster campaign-finance case by the end of this Term. All that, two more opinions, and 7 more grants, as the Term keeps heating up. Let’s recap the action.

Cunningham v. California, 05-6551

The mysterious dearth of Ginsburg opinions was explained [yesterday] as RBG released her first majority, in which the population of Apprendi-land was expanded by one (and perhaps two). RBG (joined by JGR, JPS, AS, DHS, CT) wrote the straightforward majority opinion striking down California’s sentencing law. California’s system requires a judge to sentence the defendant to the middle of three sentencing terms (e.g., 6, 12, or 16 years), unless the judge finds—by the preponderance of the evidence—an aggravating fact that would support the longer term. That pretty clearly violates Apprendi­-Booker’s 6th Amendment requirement that the jury find, beyond a reasonable doubt, any fact that increases the sentence beyond that authorized solely by the verdict. The California Supreme Court tried to salvage its system, however, by analogizing it to federal sentencing under the post-Booker “advisory” Guidelines. In other words, California argued that its system simply gives the judge broad discretion to sentence within a range (e.g., 6-16 years), subject to appellate review for reasonableness. RBG was not buying. She concluded that California’s system does not involve statutory sentencing ranges at all, but instead instructs a judge to impose the middle-term sentence unless he finds additional facts. The discretion that a judge may have in deciding whether to impose the longer term is irrelevant; the problem is that the judge has the authority to increase the sentence beyond that authorized solely by the jury’s verdict. Nor, RBG explained, does appellate reasonableness review somehow alleviate the 6th Amendment violation that occurs when a judge increases a criminal sentence based on facts not found by the jury. (Here, RBG harshly criticized Justice Alito’s dissent for unnecessarily “previewing” federal reasonableness review when the Court will decide that issue later this Term in Claiborne and Rita.)

Justice Alito (joined by AMK and SGB) penned the lead dissent, masterfully demonstrating that the majority’s opinion is on a collision course with the Booker remedial opinion. If this is giving you a feeling of queasy familiarity after Justice O’Connor’s prescient Blakely dissent, you are not alone. Justice Alito would have held that California’s system is “indistinguishable in any constitutionally significant respect” from the post-Booker federal system. Both systems start with a presumptive sentence based on the jury’s verdict, and that sentence may be altered (within the statutory range) as a result of judicial factfinding, subject to appellate reasonableness review. Moreover, a California judge’s sentencing decision—like the post-Booker federal judge’s decision—does not rest entirely on “facts,” but also on traditional sentencing considerations such as deterrence, restitution, and proportionality. Justice Alito makes a strong point that if the post-Booker Guidelines dictate a presumptive sentence, then the federal system is really little different from the California one. The fact that the six-Justice majority was not willing to accept Justice Alito’s comparison may mean that in Claiborne and Rita, the same Justices are prepared to clarify that the Guidelines are more-or-less truly advisory and that reasonableness review should be correspondingly lenient.

After the rash of articles crowning him as the Court’s new swing Justice, you might be surprised that Justice Kennedy still has to write dissents. But along with SGB, AMK filed a separate dissent to assert their longstanding view that Apprendi is wrong, wrong, wrong. Notably, there are only two stated votes for that position now, as opposed to four before WHR’s and SOC’s departure.

Cunningham contains interesting insights into the two newest Justices. First, the New Chief apparently disagrees with the view of his mentor (the Old Chief) that Apprendi is made up out of whole cloth (which Justices criticize when others do it). Or at least Roberts is willing to accept it on stare decisis grounds. Roberts’ vote in Cunningham, even apart from accepting Apprendi, is quite frankly surprising, given his consistently pro-government votes in other criminal cases. I wonder if it is not indicative of a willingness to join 5 colleagues to avoid a 5-4 result (which he professes to dislike), even when he has misgivings about the merits. Justice Alito, while ruling for California, does not join AMK’s call for Apprendi’s overruling. This continues both Justices’ practice from last Term of declining to decide whether to overrule a case when the question is not squarely presented. See Randall v. Sorrell (2006).

Jones v. Bock, 05-7058

Chief Justice Roberts used this case to wield conservative, judicial-minimalist principles to reach a pro-defendant result. He took up the task of writing the 24-page unanimous opinion, delving into the intricacies of the administrative-exhaustion requirements of the Prison Litigation Reform Act. In short, the PLRA’s requirements are not, as the 6th Circuit seemed to think, designed to exhaust the prisoners by making them comply with extra-statutory burdens. More specifically: (1) Exhaustion need not be pled and demonstrated in the complaint; rather, failure to exhaust is an affirmative defense. (2) The PLRA does not require the prisoner to name each defendant in the administrative proceedings to properly exhaust, but prisoners must follow any internal prison procedures. (3) Faced with a suit containing both exhausted and unexhausted claims, the district court need not dismiss the entire action, but should dismiss only the unexhausted claims. JGR sympathized with district judges “attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystack,” but the Court declined to create new policy-based requirements not included in the PLRA or the rules of civil procedure.

Osborn v. Haley, 05-593

There’s no one that can untangle an intricate procedural skein like Justice Ginsburg, and this case is no exception. Her opinion was joined by JGR, JPS, AMK, and SAA. The Westfall Act, 28 U.S.C. § 2679, requires the United States to be substituted as defendant in place of a government employee facing a common-law tort suit, if the Attorney General certifies that the employee was acting within the scope of his employment. The certification automatically results in a state-court case being removed to federal court, and the certification remains “conclusive . . . for purposes of removal.” § 2679(d)(2). The district court, however, reviews the certification on its merits to determine whether the employee was in fact acting within the scope of his employment. In this case, the district court rejected the certification because the government denied that the alleged tortious incident occurred (and thus how could it have been within the scope of employment) and remanded the case to state court. On appeal, the 6th Circuit reinstated the certification and vacated the remand order. This left Justice Ginsburg to address several issues of circuit-splitting significance to tortfeasor-bureaucrats. First, RBG held that the Westfall Act’s rule that certification is conclusive for removal purposes barred the district court from remanding the case to state court. Relatedly, the 6th Circuit had appellate jurisdiction over the district court’s mistaken remand order—notwithstanding the general non-reviewability of such orders, 28 U.S.C. § 1447(d)—to effectuate the conclusive jurisdictional nature of the certification. Finally, the Court concluded that a Westfall Act certification is proper when the government denies that the tortious conduct occurred at all. Rejecting a 1st Circuit opinion by then-Judge Breyer, RBG reasoned that the policy of the Westfall Act protects those who claim to be totally innocent of tortious behavior, not just those who committed tortious behavior in the scope of their employment. Faced with an “incident-denying certification,” the district court must resolve the factual dispute itself and determine whether the tortious conduct in fact occurred.

Justice Souter concurred with one exception. He would not allow appellate review of Westfall Act remand orders, but would allow review of the denial of certification, which he thinks would largely solve the problem of district judges who wrongly remand these types of cases.

Justice Breyer concurred in the jurisdictional analysis, but dissented from the Court’s decision to allow incident-denying certifications. SGB reasoned that the government ought to be required to certify, conditionally, that if the incident did occur it fell within the scope of employment. Otherwise, he worried that the government would file incident-denying certifications where the alleged conduct is totally unrelated to government employment. Here, he started ruminating about a Yellowstone Park ranger “on a frolic” on Coney Island, and that’s where I stopped reading.

Justice Scalia, joined by Justice Thomas, dissented. Nino would hold that § 1447(d) squarely bars review of all remand orders and he laments the Court’s chipping away at his beloved bright-line rule. And contrary to Justice Souter, he would have held that the 6th Circuit also lacked jurisdiction to review the certification issue because it is inextricably intertwined with the remand issue.

Grants, etc.

The Court granted cert in 6 cases and ordered argument and briefing in 2 direct appeals. Here’s a quick rundown.

FEC v. Wisconsin Right to Life, Inc., 06-969/McCain v. Wisconsin Right to Life, Inc., 06-970

The Court ordered expedited briefing so that it could decide this blockbuster follow-up to its 300-page opus in McConnell v. FEC (2003) by the end of the Term. The question is whether the Bipartisan Campaign Reform Act (aka the McCain-Feingold Act)—which bans nonprofits from using their corporate treasuries to run television ads naming candidates in the days leading up to elections—is unconstitutional as applied to “genuine issue ads” that are not designed to influence elections. Also in dispute is how a court tells the difference between an issue ad and an election ad. A divided three-judge D.C. district court held the Act unconstitutional as applied to issue ads, and the FEC and Senator John Please-Don’t-Let-These-People-Run-Ads-Against-Me-In-’08 McCain appealed. The 5-4 McConnell majority (SOC + the 4 liberals) that rejected a facial challenge to BCRA may no longer exist, depending on JGR’s and SAA’s unknown (but likely hostile) views on BCRA. So this case may present another key test of the new Justices’ views on stare decisis. A decision affirming the district court’s reasoning would open a gaping hole in BCRA’s ban on corporate election speech.

Office of Senator Mark Dayton v. Hanson, 06-618

This is a fascinating direct appeal concerning the Constitution’s Speech and Debate Clause, which shields congressmen from liability for their official duties. The question is whether the Clause bars jurisdiction over an employment-discrimination suit by a staffer against Senator Dayton, when the staffer’s job duties are part of the functioning of the legislative process. The en banc D.C. Circuit overruled an earlier circuit precedent and permitted the suit to proceed, but splintered on the rationale. Besides the merits, the Supreme Court asked for briefing on its appellate jurisdiction and on whether the case is moot due to Dayton’s retirement.

United States v. Atlantic Research Corp., 06-652

This is an important follow-up to the Court’s 2004 hazardous-waste stemwinder in Cooper Industries v. Aviall Services (2004). The QP: Can persons potentially liable for cleanup costs, who have neither been sued under CERCLA nor resolved their liability to government, but who have incurred cleanup costs, recover those costs from other potentially liable parties under Section 107(a)(4)(B) of CERCLA, thereby avoiding Cooper’s ban on contribution actions under Section 113?

Brendlin v. California, 06-8120

More proof that the Justices read the Volokh Conspiracy. The Court acceded to conspirator Orin Kerr’s request that it examine this 4th Amendment case, asking whether passengers in a car are “seized” during a traffic stop. The California Supreme Court said no. Since the relevant test is whether one would feel free to leave under the circumstances, I think we could all answer this question. I’m with Herr Kerr in predicting a reversal.

Powerex Corp. v. Reliant Energy Servs., 05-85

As noted last week, this case was relisted several times before the Court finally granted it. The question is when a foreign company doing business in the U.S. gets sovereign immunity as an arm of a foreign state. The Court also asked for briefing on whether the CA9 had jurisdiction over the district court’s remand order, notwithstanding § 1447(d). I can already see Justice Scalia firing up his “I told you so” dissent.

Beck v. Pace International Union, 05-1448

This is a potentially important ERISA case to the many plan sponsors trying to vaporize financially burdensome employee benefit plans (think American automakers). The QP is whether a pension plan sponsor’s decision to terminate the plan by purchasing an annuity, rather than to merge the pension plan with another, a decision subject to ERISA’s fiduciary obligations. The CA9 said yes. I know you’re shocked (shocked!) to learn that we will almost certainly see a reversal here.

Permanent Mission of India to United Nations v. New York City, 06-134

The Court followed the SG’s recommendation to grant on this one. The question has to do with the scope of the exception to foreign sovereign immunity when immovable property situated in the United States is in issue. See 28 U.S.C. § 1605(a)(4). Namely, can New York go after foreign countries who are delinquent in paying their property taxes on posh Manhattan apartments for their selfless global public servants (aka UN bureaucrats).

Until next time, that’s yesterday’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to aaron.m.streett@bakerbotts.com

Posted by Dan Markel on January 23, 2007 at 01:00 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Changing casebooks

I have been using the same Criminal Law casebook for the past 7 years.  I think it is an excellent book.  At the same time, I've been thinking about switching to a new one next year, not because I have any complaints, and not because I have any particular alternative in mind, but simply for the sake of change.  Here's what I'm wondering, though:  Is it likely that changing casebooks will do more than merely provide different case-vehicles for teaching the same thing?  Have others who have switched books found that the switch also challenged, in productive (and not merely time-intensive) ways, comfortable patterns of thinking about problems and doctrines?  I'd welcome any advice!

Posted by Rick Garnett on January 23, 2007 at 12:02 PM in Teaching Law | Permalink | Comments (3) | TrackBack

Monday, January 22, 2007

At the Bar Redux

Every Friday, from 1987 until 1994, David Margolick wrote a column in the New York Times called "At the Bar."  Margolick's riffs on the legal community never disappointed.  He wrote about members of the bar, the legal academy, judges, and pressing issues with insight and irreverence.   Margolick gave up the column in the mid-1990s, just before the Internet and its bloggers laid down their roots, and his weekly column was sorely missed.

Today I saw that New York Times may be back with another legal beat column.  Adam Liptak will write a column about the legal world called "Sidebar" every Monday.  Liptak's first "Sidebar" column, "Fair Housing, Free Speech and Choosy Roommates," appeared today.         

Posted by Danielle Citron on January 22, 2007 at 09:49 PM in Culture | Permalink | Comments (0) | TrackBack

What Distinguishes Elite Academics -- For Good or Ill?

Via the usual roundabout route, I came across this post by Profesor Bainbridge, titled "Does what 'elite' professors think matter?"  Bainbridge is replying to someone's statement that "[i]f all we know about a view was that professors held it more, and elite professors even more so, we would be inclined to favor that view."  Bainbridge responds:

I'm 48 years old. I spent 11 years in college and graduate school, with the latter 7 years spent at elite institutions. I've spent 18 years teaching at law schools ranked in the top 25, which I think safely qualify as elite institutions. Having thus spent 60% of my life hanging out with elite professors, I feel confident in saying that: If all I know about a view was that professors held it more, and elite professors even more so, I would be inclined to be skeptical of that view.

Bainbridge argues that while professors deserve some deference for views within their area of expertise, beyond that they are entitled to no more deference than anyone else, and possibly less, because "[u]niversity faculties tend to be highly self-selected and appointments tend to be dominated by network effects that produce a remarkable homogeneity of belief . . . . Outside their areas of expertise (and sometimes even inside it), their beliefs tend to be colored by their ideology and by the need to conform to the expectations of their colleagues."

Although I think Bainbridge overstates matters, I certainly have no quarrel with his general argument that academics' special claim to authority runs out past their point of expertise.  Let me, though, use Bainbridge as a vehicle for asking two slightly different questions.  Both the quote that Bainbridge is responding to and the title of his post single out "elite" professors.  Let me ask :

1) What is it that elite professors possess that non-elite professors do not?  Is it expertise in their subject matter?  Certainly that's a strong possibility.  Prolixity?  (For some, surely, but not all.)  General intellectual facility?   A greater propensity toward innovation?  Or, to take a more sociology-of-the-academic-professions view, does their skill lie in timing, or strategic thinking about their scholarly agenda, or (at least in the legal academy) strategic skill at colonizing other disciplines?  Is it, at least some of the time, a greater facility in exploiting networks of friends and colleagues and, more generally, a greater gift at self-promotion, as what Bainbridge says would suggest?  Are they more rhetorically facile -- more glib and quick?  Is it, at least some of the time, that they share a particular class background?

2) Let me ask a related question: What do non-elite possessors possess, positively or negatively, that elite professors do not?  I think most people assume that the difference between elite and non-elite professors is linear -- that elite professors are just more of the same, only better.  Given the status insecurity of the academy, shared by both elite and non-elite professors alike, I think both kinds of professor may tend to share this view.  And it may be right.  But I don't know that it is, and it's worth thinking about.  Are there qualities that non-elite professors lack that determine their non-elite status?  Is there no difference?  Comforting though this might be to think, and true as it sometimes is, I think it can hardly be generally true.  And are there any positive qualities that non-elite professors are more likely to possess?  Are they less likely to truckle to authority, play the game, self-servingly self-promote, cut their agenda to fit the fashions, or neglect teaching for scholarship?  Do qualities of wisdom and common sense correlate better to the non-elite sectors of the academy than the elite sectors?  Again, these positive thoughts might be comforting and might sometimes be true, but I doubt there is such a correlation.  And yet I wonder whether it isn't a mistake to assume that the difference between elite and non-elite professors is just one of linear progression, and whether we might reflect productively on what distinct qualities each of these sectors of the academy, to the extent they actually exist, possess.

Your comments, as always, are welcome, even those of the general professor-bashing variety.  Needless to say, this is one of a series: when I'm safely ensconsed in an elite school, I'll be sure to put up a post explaining why elite professors really are like other professors, only much, much better, and maybe one also on why, pace Bainbridge, we actually should accord greater respect to the opinions of elite professors, on every subject.                

Posted by Paul Horwitz on January 22, 2007 at 01:58 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

A Turn to the Right?

Peter Berkowitz, a friend and former teacher to some of us here, has just released a fascinating and funny essay in the form of intellectual memoir entitled The Longer Way. It appears in a forthcoming collection, Why I Turned Right: Leading Baby Boom Conservatives Chronicle Their Political Journeys, ed. Mary Eberstadt (Simon and Schuster, 2007). In the essay, Peter acknowledges that he is regularly regarded with suspicion from lefties (he has criticized the critics of Bush v. Gore, among other things) and conservatives, who apparently don't think Peter hates liberalism enough. But in this essay, Peter gives a flavor of why I still (naively?) read his work as a non-conservative, even though Peter now publishes almost exclusively in conservative-affiliated publications, such as the Weekly Standard or Policy Review (which is surprisingly more multivocal since it left the Heritage Foundation and came to the Hoover Institution). For those who have read this essay: am I wrong?

One question, and then two stories from the essay to share after the jump. First, as a young man, Peter described himself as "captivated" by Roberto Unger's Knowledge and Politics, but he observes that the book has been "greeted with a deafening silence by the academy when it was first published in 1975, and since has been largely ignored or derided by professors of philosophy, political science, and law." Is this true? My sense is that Unger's work has meant a great deal to a variety of law professors, even though by the time I was at HLS in the late 1990's, it seemed like his influence had waned. I just did a quick JLR search on Westlaw and found 522 citations to Unger's book and 1500 citations to Unger himself. Since Westlaw's database doesn't even go back that far for many journals, I have to say: that's the kind of obscurity I could envy. To be fair, Peter also mentions derision of Unger's work, but again, my quick eyeballing suggests that Unger's work is probably acclaimed as much as it is derided, though perhaps his stature has waxed and waned over time. What kind of Unger moment do we live in now?

[As is often my practice, I showed this to Peter before posting and he helpfully replied: "My recollection (I'm in Herzliya reporting on national security and the Middle East and haven't got the opportunity at the moment to check) is that Stephen Holmes (in TNR), Don Herzog (University of Michigan Law Review(?)), and Ian Shapiro speaking in effect for liberal political theory, and William Ewald (in the Yale Law Journal) speaking for Oxford analytic moral philosophy, excoriated Unger's work and suggested that there was next to nothing to learn from Knowledge and Politics. It should also be said that Tony Kronman did write an early and illuminating review (including a revealing published exchange of letters between the two). I'm guessing that many of the references you found to Unger come in the 1980s from CLS scholars who for a time embraced Unger as one of their own (around 1983 Unger published a Harvard Law Review article called, if I remember correctly, "The Critical Legal Studies Movement" that did intersect with CLS but went far beyond it both in philosophical depth and political radicalness). Perhaps I should have said that professors of philosophy, political theory and jurisprudence largely ignored or derided Knowledge and Politics. Other than Kronman, can you think of significant exceptions to that proposition??" I don't know enough about Unger's reception history, so I invite others to weigh in on Unger's legacy in law schools today.]

Putting the Hunger for Unger issue aside, the essay has some gems. At one point, Peter describes his unusual experience as a young man in Israel after college, when he was shuttling between providing tennis instruction on a secular kibbutz in the desert and studying at a "English- language yeshiva where I would sit in on two hours of classes on Midrash and Talmud and then gobble down a quick, old- fashioned, Eastern European lunch of boiled chicken and rice, whereupon, to the consternation of classmates and teachers, I’d race out... I sensed that I was living a double life, and that it would be wise to keep it to myself. Eventually, I confirmed as much by casually letting a curious kibbutz friend know how I spent my mornings, and followed up that painful experiment by offhandedly mentioning to an inquisitive rabbi at the yeshiva where it was that I was living. My friend’s face and the rabbi’s contorted in identical fashion, as if I had nonchalantly disclosed my membership in a gang of child molesters."

Later, Peter describes how he ended up teaching at Harvard in the Government Department when he still had another year to finish at law school, which he started after his PhD.

"The offer I received required that I begin promptly. So I agreed to spend the fall semester of my third year in law school teaching political philosophy at Harvard. This was made possible by the best and most dangerous elements of a Yale Law School education. In a meeting in his office during the spring of my second year, the dean casually waived the reasonable law school requirement that students enrolled in courses be in residence in New Haven and attend classes. And why shouldn’t he have? On the one hand, he trusted Yale law students to use their freedom well. On the other hand, he supposed—as the faculty and administration drummed into our heads—that we members of the Yale Law School community were above the law, for if we weren’t, how would we be able to use it to do the right thing?" (emphasis added).

Posted by Dan Markel on January 22, 2007 at 12:18 PM in Article Spotlight, Dan Markel, Deliberation and voices, Law and Politics, Legal Theory | Permalink | Comments (10) | TrackBack

Cunningham Blah blah

The opinion from the SCT has just been issued on its site, and Lyle Denniston over at SCOTUSBlog summarizes the 6-3 decision striking down California's determinate sentencing law (DSL) scheme. Here's the characterization of the holding from the syllabus: "In all material respects, California's DSL resembles the sentencing systems invalidated in Blakely and Booker. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi."

As Doug notes with some early commentary, RBG writes for 6 (all but AMK, SA, and SB). This is interesting, because as you may recall, she was the one who flipped her vote between the group that wrote the merits majority and the group that wrote the remedial majority in Booker, without saying a word as to why. When I get through the opinion some more, I hope to be able to offer some thoughts on her thinking now. Ok, just skimmed the opinion and she doesn't reveal much about her own flip in Booker, but the opinion does reveal a confidence about the vitality of the Apprendi-Blakely line of cases and strongly resists any attempt to allow the Booker remedy to undercut the generative power of the Apprendi-Blakely line. Given that language, and Roberts signing up for it, here's my quick sense.

It is probably emphatically poor form to describe the outcome as predictable or a no-brainer when I didn't publicly say my thoughts on Cunningham earlier in the post-cert process. Still, I can't say I'm surprised at all about the outcome based on my recollection of the briefs.

This case was more important, to me at least, to see how Roberts and Alito would fare in Blakelyland, and now we have a better sense of it.

Roberts joined the majority for 6 and Alito wrote one of the dissents, which both Kennedy and Breyer joined. If we can extrapolate: Rehnquist and O'Connor both were part of the anti-Blakely crowd, and so now we have Roberts appearing to be a Blakely guy, and Alito decidedly not. Probably a good net positive development for fans of the Blakely rule, and those who like to see that legal outcomes in the SCT are not always predicted by party affiliation of the President who nominated them.

The Court is expected to hear two other Booker related cases this Term: "Claiborne v. United States, No. 06-5618 (cert. granted, Nov. 3, 2006); and Rita v. United States, No. 06-5754 (cert. granted, Nov. 3, 2006). In Claiborne, the Court will consider whether it is consistent with the advisory cast of the Guidelines system post-Booker to require that extraordinary circumstances attend a sentence varying substantially from the Guidelines. Rita includes the question whether is it consistent with Booker to accord a presumption of reasonableness to a within-Guidelines sentence."

Posted by Dan Markel on January 22, 2007 at 11:23 AM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

The cutting edge of free speech

I can't resist -- from the Denver Post, a story about sh*t as speech:

What Weld County prosecutors see as the misuse of a rancid pile of dog feces, Kathleen Ensz's defense attorneys see as an expression of the First Amendment.

Ensz is accused of going into her backyard in May, obtaining a piece of excrement, placing it in an unwanted political mailer and slipping in under the door of U.S. Rep. Marilyn Musgrave's office.

Ensz's attorneys argue that her conduct was a form of political protest that deserves protection and is as sacrosanct as Thomas Jefferson's railing against the king of England.

They also cited Mr. Hankey, a television character on the adult cartoon show "South Park," as evidence of how commonplace feces is for expressing disdain.

Posted by Rick Garnett on January 22, 2007 at 10:50 AM in First Amendment | Permalink | Comments (0) | TrackBack

Roe v. Wade anniversary

Picking up on Ethan's mention, the other day, of the upcoming Constitutional Commentary symposium on Jack Balkin's recent paper on abortion and originalism, maybe it is worth mentioning -- today being the 34th anniversary of Roe v. Wade -- Balkin's book, "What Roe Should Have Said."  And, it might also be worth noting Professor Fallon's recent lecture, "If Roe Were Overturned:  Abortion and the Constitution in a post-Roe World." 

As we all know, John Hart Ely observed that the decision "is not constitutional law and gives almost no sense of an obligation to try to be."  On the other hand, Senator Clinton hailed the decision, two years ago, as "a landmark decision that struck a blow for freedom and equality for women."  Everyone now endorses Brown, and even Chief Justice Rehnquist reconciled himself to Miranda, but both sides are still marching in the streets over Roe.  What does this mean?

UPDATE: Balkin has a long, "Roe anniversary" post up at Balkinization.

Posted by Rick Garnett on January 22, 2007 at 10:12 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Bill Patry on Thinking About Pricing Treatises

[Ed. this is another post on behalf of Bill Patry on the contemporary experience of treatise writing.]

There are a few things that have surprised me since announcing the treatise's availability, and perhaps they are related. Copyright is these days highly ideological. I started my blog on the other hand as one hosted by a non-ideologue, one who in A.J.P. Taylor's words, might still have "strong views lighthly held." In the blog, I have tried to call it as I see it, sometimes skewering one side or the other, sometimes praising one side or the others, sometimes just laying things out for others to skewer or praise. As in politics, in copyright I am a registered independent.

Yet, even though no one had seen the book, and thus could not assess its value, there were a few, including a few academics, who thought it "ironic" or worse, that the treatise was priced at $1498. Old concerns were repeated about the hegemony of copyright treatises, and how with my price, I was setting up a situation where at least one academic would have to stay with Nimmer and who implied that I had somehow failed to realize that purpose of a treatise is to level the playing field between the haves and the have nots. A commenter on my blog said facetiously that he would wait for the paperback.

It seems odd that people would make these remarks ever but especially without having seen the work: who comments on the value of a product without ever having seen it, and, further how did I get drafted as Fidel to Nimmer's Batista? I am extremely comfortable with the price of $1498 and with the value of the work, which, if you want to include all of the work put into it, represents about 15,000 hours and 25 years of experience as a copyright lawyer in diverse backgrounds. Nimmer's work is $1745, $250 more and is half the size of mine in addition to being a much older work. If you include differentials in updates, the disparity is far greater. So in both absolute and relative terms, $1498 is a great deal.

Nor do I really get the concerns expressed about market barriers where there are dominant multivolume treatises. Nimmer became the dominant treatise merely because it was the only one for decades. There are no entry costs to writing a treatise the size of mine, and mine was researched and written entirely by myself: all you need to do is want to do it, and commit to do it for a really long time. If you do make that huge investment in time (in my case 15,000 hours), how is it that the price should be that of a paperback, or so deeply discounted that those who have the dominant treatise can shift without any real expense? I didn't have any grants after all, or research assistants, or people paying my mortgage or my kids' medical expenses, or giving me financial, moral, or any other support. I have, moreover, given away all of my complimentary copies save two (one for me, one for my family) to non-profit organizations, which I am told by them, no one else has done.

My question then is, if people view such treatises as valuable, how are they supposed to come about? My understanding from my time in academia, is that at least for untenured faculty, treatises don't much matter if at all: instead, it is publication of an article in a top 10 law review, edited by students that counts. If people not in academia write treatises and get them published, how are they supposed to be priced? Is there somehow a difference between a treatise on copyright and say one on tax, and if so, why?

Posted by Dan Markel on January 22, 2007 at 12:01 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Sunday, January 21, 2007

AALS Highlights

I enjoyed a number of AALS panels that I attended and thought it might be worthwhile to pass on some of the interesting issues discussed there to folks reading the blog, especially students looking for issues to write about for paper courses and student Notes. 

The Privacy and Defamation section meeting had an all-star information privacy lineup.  Daniel Solove moderated the discussion of panelists Julie Cohen, Neil Richards, Pamela Samuelson, Paul Schwartz, and Lior Strahilevitz.  The panelists highlighted neglected/emerging issues that they think deserve scholarly attention.  Examples included: (1) empirical work on privacy issues, such as studies of corporate data-privacy practices, (2) the comparative competency of institutions addressing privacy issues (state AG offices, state consumer protection boards, self-regulatory industry groups, etc.), (3) our changing conceptions of privacy given society's increasing use of social networking sites and the impending use of cellphones to connect with friends and strangers, (4) lessons learned from recently de-classified government documents related to surveillance activities of the 1960s to evaluate today's government surveillance efforts in this post-9/11 era, and (5) our understanding of identity in the twenty-first century.   

The panel fielded a number of interesting questions from the attendees.  A participant asked about the propriety of law enforcement's use of face-searching technologies to identify potential criminals from pictures posted on social networking sites such as MySpace.  For example, a college student posts a picture of friends smoking pot.  Using advanced face-identification software, police identify the individuals in the photo and follow up with arrests (or desk appearance tickets).  The panel asked whether we want to encourage the use of such technologies by law enforcement given the attendant sacrifice of privacy with their use.

Pamela Samuelson and Julie Cohen also discussed the UnBlinking symposium held at Berkeley in November 2006.  At that conference, academics from different disciplines gathered to address the effect that our "environment of unblinking eyes" will have on privacy and our behavior in public and private spaces in the twenty-first century.  The symposium has a Wiki.

More AALS Highlights to follow this week.      

Posted by Danielle Citron on January 21, 2007 at 04:21 PM | Permalink | Comments (1) | TrackBack

Saturday, January 20, 2007

Who Needs Constitutional Commentary?

Constitutional Commentary will be publishing a symposium on Jack Balkin's "Abortion and Original Meaning" in May 2007.  You can already get many of the articles on SSRN:

Jack Balkin:  Abortion and Original Meaning

Randy Barnett: Underlying Principles

Ethan J Leib: The Perpetual Anxiety of Living Constitutionalism

Mitchell Berman: Originalism and Its Discontents

It is a fun group of papers -- and others are expected from Mike Rappaport (with co-author John McGinnis), Mike Paulsen, Sandy Levinson, and Dawn Johnsen.  Balkin will then shut us all down in his Reply.

UPDATE:  I'm told Levinson dropped out.

Posted by Ethan Leib on January 20, 2007 at 02:38 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Wednesday, January 17, 2007

Cellphone Spy

Cellphones provide more information about us than ever before.  Not only can the government track our whereabouts using GPS devices embedded in our cellphones, but the FBI now uses cellphones to eavesdrop even when our phones are turned off.  To activate these so-called "roving bugs," mobile providers remotely install software that turns on a cellphone's microphone and transmits audio detected by it to a FBI listening port.  Computer-surveillance expert James Atkinson explains that if  "a phone has in fact been modified to act as a bug, the only way to counteract that is to either have a bugsweeper follow you around 24-7, which is not practical, or to peel the battery off the phone."  Security-concious corporate executives reportedly remove the batteries from their cell phones to avoid unwelcome audiences.

In a recent opinion, federal district court Judge Lewis Kaplan (S.D.N.Y.) upheld the FBI's use of such a "roving bug" in a racketeering case.  Judge Kaplan concluded that federal wiretapping law sanctioned the use of a cellphone bug to capture hundreds of hours of a suspect's conversations because the FBI obtained a court order and because "alternative methods of investigation either had failed or were unlikely to produce results" given the subject's deliberate avoidance of government surveillance.  Serious discussion is warranted about the practical and constitutional significance of these cellphone spies.   

Posted by Danielle Citron on January 17, 2007 at 02:38 PM in Information and Technology | Permalink | Comments (10) | TrackBack

SCT Update from Aaron Street

Greetings, sportsfans! The Court pitched its fourth CA9 shutout on the season in today’s lone opinion, an immigration-law decision that will principally be of interest to (1) law nerds and (2) immigration law nerds. I say principally because throngs of Minutemen briefly looked up from gun magazines to hail the decision as “a good bit of book larnin.”

Gonzales v. Duenas-Alvarez, 05-1629

Justice Breyer wrote for the essentially unanimous Court (JPS joined all but one subpart). The Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G), which has now surpassed the Internal Revenue Code and the Federal Acquisition Regulation for sheer reticulated complexity, provides for deportation of an alien who commits a “theft offense.” The issue is whether a California conviction for aiding and abetting a theft falls within this definition. The Court answers such questions by examining the state statute of conviction and determining whether it contains the same elements as the generic crime of theft, as it is defined by the criminal code of most states. See Taylor v. United States (1990). The 9th Circuit held that aiding and abetting falls outside the generic definition of theft. Utilizing the Court’s “CTRL-ALT-9” macro that has worn smooth countless keyboards, Justice Breyer wrote: “We conclude that the Ninth Circuit erred.” The Court explained that every single U.S. jurisdiction (including California) has abolished the common-law distinction between principals and aiders and abettors (except accessories after the fact, not at issue here). So aiding and abetting theft in California clearly falls within the modern, generic definition of a “theft offense.” The respondent did not even attempt to defend the CA9’s reasoning. Instead, seeking to avoid the California theft statute itself, he argued that California caselaw holds an aider and abettor liable for crimes that he did not specifically intend—i.e., crimes that are the “natural and probable consequence” of the intended crime—and thus extends beyond the generic definition of theft. SGB comprehensively surveyed the caselaw and concluded that California’s version of aiding and abetting liability is no different than other jurisdictions. The Court declined to reach two additional arguments that respondent failed to raise below.

JPS joined all but the section discussing California caselaw. In a triumph of hope over experience, he would simply have vacated the 9th Circuit’s ruling and remanded to give the CA9 the first crack at interpreting California law. To quote noted philosopher-poet George Michael, “you gotta have faith-uh, faith-uh, faith.”

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author.

If you would like to subscribe to these updates, please send an e-mail to aaron.m.streett@bakerbotts.com

Posted by Dan Markel on January 17, 2007 at 01:47 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Pragmatic Originalism

So McGinnis & Rappaport have uploaded their "Pragmatic Defense of Originalism" to SSRN and the Northwestern Law Review's on-line companion.  Here's the abstract:

In this brief essay, we offer a new defense of originalism that focuses on its consequences. We argue that interpreting the Constitution according to its original meaning is more likely to produce good results today than non-originalist theories of interpretation. We thus offer a defense of originalism that transcends previous arguments that originalism is to be preferred because of the constraints it imposes on judges or its consonance with the rule of law.

Our argument proceeds in four steps. First, entrenched laws that are desirable should take priority over ordinary legislation, because such entrenchments operate to establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals. Second, appropriate supermajority rules tend to produce desirable entrenchments. Third, the Constitution and its amendments have been passed in the main under appropriate supermajority rules and thus the norms entrenched in the Constitution tend to be desirable. Finally, this argument for the desirability of the Constitution requires that judges interpret the document based only on its original meaning because the drafters and ratifiers used only that meaning in deciding to adopt constitutional provisions.

Although I am a big fan of McGinnis & Rappaport's attention to supermajoritarianism -- and, indeed, draw heavily from their important work in my recent article on jury decision rules -- I can't really make heads-or-tails of this paper.  My thoughts after the jump.

It begins by offering what they think is a bold claim: that pragmatism (understood as adjudication in light of consequences) can be made consistent with originalism (understood as interpretation in light of the original meaning of constitutional provisions).  Of course, plenty of people think of originalism as a "pragmatic" choice for constitutional interpretation: it gets better results on a rule of law dimension; it may get better results on a judicial discretion dimension; etc.  So I'm far from convinced that this first gambit is particularly new.  It is a classic rule-utilitarian approach to the question of interpretation: we are for good results -- and originalist methodologies get us those results on the whole.  But the kind of "results" and "consequences" McGinnis & Rappaport are interested in are the sort of legitimacy/rule of law results that have always interested a large group of originalists, not the sort of day-to-day empirical results that concern the pragmatists like Posner.

Here's where supermajoritarianism comes in, supposedly: Decisions, texts, and policies adopted through the rigorous structures of supermajoritarian rules are better (on the whole) than those adopted through "mere" majoritarian rulemaking.  So we ought to embrace the original meaning of those supermajoritarian decisons, texts, and policies.

I don't think this makes much sense.  There is little reason to believe that constitutional provisions adopted under supermajoritarian rules are necessarily better than those adopted under different decision rules: The Civil Rights Act of 1964 might be "better" than the limited protections of the 14th Amendment.  In any case, I'm not sure how one is supposed to do these sorts of calculations about which processes get "better" results: supermajoritarian rules might be better for structural and constitutional provisions (and jury decision rules) -- but would be terrible for other kinds of decisions. 

Even if one could grant that supermajoritarian decisions are "better," it remains far from clear that originalism is the only -- or even the most appropriate -- response.  One could be "purposivist," trying to uncover the underlying principles of any supermajoritarian deal.  One could be "intentionalist," emphasizing, say, the intentions of the pivotal voters required to get any supermajoritarian deal passed.  One could be a dynamic textualist, rather than focusing on original meanings or original expected applications.  In short, we're back to where we started: even if you agree that constitutional provisions are "good" and "legitimate," you still need a theory to tell us how and why we should read them historically.

I'm sure I've missed something here because I read the paper very quickly.  But the basic argument just doesn't seem to follow.

Posted by Ethan Leib on January 17, 2007 at 01:07 AM in Article Spotlight | Permalink | Comments (4) | TrackBack

Tuesday, January 16, 2007

Supreme Court Today from Aaron Streett

Greetings, sportsfans! While the Court gave us no merits opinions today, there is some interesting miscellany to report in connection with today’s Orders list. Well, not “interesting” like the NFL playoffs are interesting, or the ongoing Lindsay Lohan-Paris Hilton duel for the title of World’s Least Intelligent Non-Vegetable is interesting (at least in a morbid-curiosity sort of way). But hey, if you’re the kind of person who has subscribed to a Supreme Court newsletter, this may beat out the Golden Globes on TiVo for your attention this evening. Those of you who do not feel at least a little tingle when reading about CVSGs may want to move on to more heady fare.

First up, we have orders-related opinions from the Court’s opera-loving odd couple, Nino and Ruthie. And last but not least, we bring you another thrilling edition of Relist Watch, in which your humble sportscaster notes intriguing petitions languishing on the Court’s docket and speculates on what fate will befall them.

United States v. Omer, 05-1101

Justice Scalia concurred in the denial of cert in this case, which was being held for Resendiz-Ponce—the case that was supposed to determine whether a defective indictment could ever be harmless error. Of course, last week’s decision in Resendiz-Ponce did not answer this question, but instead held that the indictment (for attempted illegal re-entry) was not defective because the meaning of “attempt” is so well-known that the indictment need not specifically allege the overt-act and mental-state elements. The SG immediately pounced on that holding, filing a supplemental brief in Omer arguing that the fraud indictment in that case was not defective either, because everyone knows what fraud means, so why should the government have to go to the trouble of spelling out the elements of the crime in the indictment. Justice Scalia argues that the government’s filing vindicates his decision to dissent in Resendiz-Ponce from the Court’s new “some-crimes-are-self-defining jurisprudence.” He laments that that case gives the government “a license to avoid explicating the elements of a criminal offense,” thus opening “another frontier of law . . . full of opportunity and adventure for lawyers and judges.” This may set a new record for the shortest time elapsed between an opinion of the Court and Scalia’s “I told you so” opinion.

Haas v. Quest Recovery Services, Inc., 06-263

The Court GVR’d this ADA case to the 6th Circuit so that it could consider both the views of the United States as intervenor and the Court’s decision in United States v. Georgia (2006), which held that Title II of the ADA validly abrogates state sovereign immunity at least to the extent that a plaintiff alleges constitutional violations. The CA6 had held that the ADA did not abrogate Ohio’s immunity. Justice Ginsburg concurred in the GVR and penned a short advice column to the CA6, noting that the lower court’s opinion was just plain fishy in various respects. Her friendly advice on how to be a good appellate court: (1) Do not ignore controlling Supreme Court decisions (see U.S. v. Georgia); (2) dismissing claims based on judicial immunity is a no-no when the defendants are not judges; (3) do not make up your own heightened pleading standards that are not included in the Federal Rules of Civil Procedures; (4) do not reach out to strike down a federal statute when you hold that the plaintiffs didn’t state a claim under the statute anyway. Maybe Justice Ginsburg has a particular type of dyslexia that makes 6s appear to be 9s.

In other cert-related news:

· Justice Stevens concurred in the denial of cert in Josephs v. United States, 06-5590, to say that he thought the CA3’s holding was wrong, but probably harmless and therefore not worth correcting.

· The Court denied cert in Didden v. Village of Port Chester, 06-652, a takings case with egregious facts that seemed even to exceed the private-development takings the Court allowed in Kelo v. New London (2005). Today’s denial shows that the Court is none too eager to grasp the nettle of crafting judicial limits on Kelo takings.

RE-LIST WATCH: Here are a few particularly interesting cases that the Court has been sitting on for a while, along with my speculations on why. I’ve omitted cases that are clearly being held for a pending decision.

· Skoros v. New York City, 06-271 (relisted six times): This is the potentially important religious-symbols case from the 2d Circuit that I mentioned back in December. When, as here, a case has been relisted for over two months, it is either being held for another case or we are waiting on a significant dissent from denial. Holds frequently just “disappear” from the docket and aren’t affirmatively relisted; also, there’s no evident reason to hold, so it’s probably the latter.

· Lance v. Dennis, 06-641 (relisted twice): This is a direct appeal from a three-judge district court’s denial of a claim that Colorado violated the Constitution’s Elections Clause by permitting the state judiciary, instead of the state legislature, to draw Congressional districts. Because this is a direct appeal, the Supreme Court must rule on the merits. Ordinarily on direct appeals, the Court either summarily affirms without opinion, summarily affirms with opinion, or sets the case for full briefing and argument. When this case reached the Court in an earlier incarnation in 2004, cert was denied over three dissents (CJ Rehnquist, Scalia, Thomas). Similarly this time, I bet we will see a summary affirmance over multiple dissents. However, it’s conceivable that the relists simply mean the Court is still deciding whether it wants to hear full argument or not.

· Powerex Corp. v. Reliant Energy, 05-85/ Powerex Corp. v. California, 05-584 (relisted twice): Cert to the CA9, with the SG’s recommendation to grant. The issue is when a foreign company gets sovereign immunity as an arm of a foreign state. I’m not sure what the holdup is here, but the Court’s docket tells us that the parties recently filed supplemental briefs, so there may be some late-breaking developments that the Court is still processing.

We may see opinions tomorrow. Until next time, that’s today’s baseball.
Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to aaron.m.streett@bakerbotts.com

Posted by Dan Markel on January 16, 2007 at 06:48 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

The Face (Mask) of the Future?

On a recent trip to Asia, I came face to face with the SARS epidemic of 2003.  As soon as I landed at the airport in Hong Kong, I observed many people wearing those face masks made famous by SARS.  The immigration officials wore them, the customs staff wore them, and the taxi driver wore one.  Now it is true that not everyone wore one.  Indeed, the majority of people in Hong Kong did not, but given the recency of the SARS crisis and the timing of my visit during cold and flu season, a noticeable minority of people did.  I began to wonder if I should protect my health by wearing one too.  An expat in Hong Kong soon explained to me that I misunderstood.  Wearing the mask in Hong Kong is not about protecting yourself from the germs of others, but rather it is about protecting others from your own germs when you are suffering from a cold or a cough.  It is a matter of respiratory etiquette that residents of Hong Kong now take very seriously post-SARS. 

SARS has changed Hong Kong in more ways than one.  Should we Americans also learn from SARS?  Right now, the US is also in the middle of its flu and cold season and yet I have not seen one person in New York City wearing a face mask, to protect others or even to protect themselves.  In the US, the most I see are posters urging all of us to wash our hands more frequently and increased sales of Purell liquid gel.  In some waiting rooms of hospitals and doctors' offices in the US, sick people are being required to wear face masks, but they are the only ones.  Posters and Purell . .  . I have to ask, "are we being foolish here?" 

Given the very real threat we face as a global community from contagious epidemics such as SARS or avian flu, shouldn't the wearing of masks rely not on etiquette but instead rely on the law?  How about using tort law, if not criminal law, to impose a duty upon those of us who have respiratory illnesses to stay at home, or to wear a mask if they go out amongst the rest of us.  The concept may sound far-fetched, but consider that states have already criminalized the sexual relations of people with AIDS who fail to give notice to their intimate partners.  In Illinois and Georgia, such behavior is considered a felony.  Other states have allowed unknowing intimate partners to sue AIDS-infected defendants for the infliction of emotional distress.  Perhaps our country will need to experience a SARS-like crisis itself before such strong legal measures are taken.  SARS infected 1,755 people in Hong Kong and killed 300 of them.  With such social harm at stake, can we afford to wait?

Posted by Elaine Chiu on January 16, 2007 at 06:42 PM in Criminal Law, Culture, Torts | Permalink | Comments (2) | TrackBack

“Thank you to all the Americans who have not yet sued me”

So said Sasha Baron Cohen, a.k.a. Borat, yesterday accepting the Golden Globes award for best actor in a comedy. The rest of what he said would be improper to repeat in such a proper blog as ours.

Other highlights from last night:

Warren Beatty, accepting the lifetime achievement recognition, thanking Schwarzenegger for becoming a Democrat, “as I asked of him.”

Helen Mirren majestically competing against herself in multiple nominations and multiple categories for portraying various British royalty throughout history.

And ending with a personal golden achievement from yesterday: I overcame some irrationality and let my husband fly our two young ones on an hour long flight in the small, two engine plane (much safer than highway ground travel so I have learned) he likes so much. The girls loved it.

Posted by Orly Lobel on January 16, 2007 at 05:31 PM | Permalink | Comments (1) | TrackBack

Bye, and a Quick Note on the Affirmative Action that Dare Not Speak Its Name

{ This will be my last post of this visit, so thanks to Dan, the rest of the Prawfs crew, and of course everyone who's read and commented! -Scott }

Why won't politicians admit obvious affirmative action in high judicial appointments?  Did anyone other than Clarence Thomas's mom believe President Bush the Elder in 1991 when he announced that then-Judge Thomas (age 43, with barely one year of judicial experience) was the "most qualified person in the country for the position"?  Thomas may well have been qualified, but that's a far cry from "most qualified" in a nation with no shortage of legal luminaries of all ideological stripes with more impressive accomplishments and qualifications.

Into this tradition of AA denial walks New York's new Governor, Eliot Spitzer, who just appointed Justice Theodore Jones, a state trial court judge in Brooklyn, to the state's high court, the New York Court of Appeals.  I know only what I've read about Justice Jones in the past few days since his nomination, and it's all good; he may well be a great choice.

What I have a problem with is Governor Spitzer's statement that "race ... did not play a role in our selection process."  Of course it did.

(1)  The only black judge on the high court had recently departed, and there was both immense pressure and good reason to find and appoint a nonwhite candidate.

(2)  Justice Jones didn't have a superstar resume.  He seems to be a highly able, highly respected trial court judge. But does anyone think a great trial court judge who's white would've gotten the nod?

(3)  Governor Spitzer doesn't really want us to believe this was race-neutral; he felt he had to say that it was, but if you look at the Governor's full quote and the N.Y. Law Journal coverage, it doesn't take Sherlock Hemlock, world's greatest detective, to find clues that race did play a role:

          "I have always believed that government should reflect the diversity of our society," Mr. Spitzer said. "Having said that, race, gender did not play a role in our selection process. I was asked to make a choice ... based upon who would be the best jurist. I chose based on the merits of the individual candidates."

I'm glad the Governor appointed Justice Jones; he sounds like a very good candidate, and an all-white high court (amidst an incredibly nondiverse state judiciary generally) in New York, a huge and hugely diverse state, would be a travesty.

What frustrates me is that the affirmative action debate, which has been a constant on the Supreme Court's docket for almost three decades (I think 8 major cases in 28 years), is stunted by the failure of our most prominent practitioners of affirmative action -- Presidents and Governors making high-profile appointments -- to admit what they're doing.  High-level hires like these are some of the most easily defensible AA: there's a total glut of talent at such high levels, so AA can be a pure "tiebreaker" among highly qualified candidates, not an acceptance of lower qualifications; and for policymaking courts, diversity in life experience really matters.

For those of us who think some AA is defensible and important, it's not promising that a new governor at the height of his powers (just elected with a 69% majority) fears the political risk of telling us the truth about his affirmative action decisions.

Posted by Scott on January 16, 2007 at 11:24 AM in Law and Politics | Permalink | Comments (3) | TrackBack

Detainees and Catholic Charities

Paul blogged a few days ago about Cully Stimson's now-widely-discussed (and, so far as I can tell, universally rejected) complaints about law firms representing Guantanamo Bay detainees.  Paul endorsed (as do I) the view that Stimson is off-base, and agrees with (as do I) Jonathan Adler's statement that "[a]ll individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent." 

Now, a number of prominent law-school deans have weighed in, with this letter.  The deans write:

We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

To be clear, I agree entirely with this statement.  I wonder, though, if a similar statement was warranted when some students at Harvard Law School protested against Ropes & Gray, during on-campus recruiting (according to this report), for its representation of Catholic Charities, which was  at that time seeking an exemption from a non-discrimination law requirement that adoption agencies facilitate adoptions with same-sex couples?

Obviously, statements from government officials like Stimson raise concerns that student protests do not.   Still, it strikes me that, "in a free and democratic society," the religious-freedom rights of those with unpopular religious views deserve and require "zealous and effective representation" no less than the rights of detainees.  Consider this, from the Boston Globe:

''The words 'boycott-slash-picket' were thrown around," said Peter Renn, a third-year student and Lambda board member who said he had wanted to shame Ropes into ending its work on behalf of Catholic Charities and warn the firm that the issue could hurt recruiting at Harvard.

''Big firms like this are very concerned about public relations, and who in this game is maximally positioned to exert pressure on Ropes & Gray? It's law students," said Renn, who will clerk for a federal district court judge in California after he graduates. ''Attorneys at the firm are in a horrible position, because they don't want to get canned, so they can't say, 'How dare you take that case' and insist the firm withdraw."

In his Stimson post, Paul wrote, "One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not."  Should Dean Kagan (who signed the law-deans' letter regarding Stimson) have made a similar point to Harvard's students?

UPDATE:   I have changed "Simpson" (in the original post) to "Stimson"

Posted by Rick Garnett on January 16, 2007 at 11:08 AM in Rick Garnett | Permalink | Comments (8) | TrackBack

Digital Health Hazards

According to Business Week, health insurers and employers increasingly store patient and employee medical records in computer databases.  Companies such as Intel, Walmart, and UPS offer financial incentives to employees who are willing to digitize their health records.  Such a move certainly cuts costs associated with processing employee claims and benefits.  But, at the same time, databases of health records expose individuals to the threat of medical identity theft.  Incidents of imposters using victims' health insurance for expensive surgeries are on the rise.  Such fraud leaves victims with bills and medical histories that could jeopardize their future ability to obtain life insurance or disability insurance.

Despite the record number of data leaks and escalating threats to information security, Congress is considering legislation that would require hospitals to computerize medical records.  Dr. Deborah Peel, founder of the Patient Privacy Rights Foundation, warns that medical identity theft will "grow the more we move toward an electronic health-care system.  It's going to be a disaster."  Congress must carefully consider the hazards of mandatory e-medical records.  And, as Daniel Solove warns, any federal legislation should not preempt privacy-protecting measures at the state level.      

Posted by Danielle Citron on January 16, 2007 at 12:02 AM | Permalink | Comments (0) | TrackBack

Monday, January 15, 2007

The Long and Short of it...

Just wanted to say "thank you" to all the folks here at prawfs for having me on this extended guest stay.  This semester will be filled with prep for two new classes, finishing an article in the next month, an essay, and work on two books (sleep?  obviously a luxury!).

Before I go, I wanted to ask a final legal scholarship-type question.  We all know that some law reviews impose word limitations, and thus one should therefore try to confine one's verbosity down to 70 pages or so.  But is there any sort of minimum length?  I ask because I am currently working on an essay - developing a hypothetical into a "thought piece" that I'm planning to present at the Second Annual Contracts conference.  To those of you who have had success in placing essays, how long have they been?

Again, thanks everyone!  Ya'll stay in touch! 

Posted by Miriam Cherry on January 15, 2007 at 06:10 PM in Housekeeping | Permalink | Comments (3) | TrackBack

"'Shut up,' he explained."

My favorite law-related quote of the day is from this New York Times story about Wendy McCaw, owner and co-publisher of the Santa Barbara News-Press, whose war with current and former staffers of the paper has led her to file a number of legal actions against former reporters, local supporters of the departed staff, and journalists who have written about the brouhaha, and to send out a string of cease-and-desist letters.  Here's the money quote:

When asked why Mrs. McCaw has consistently chosen legal action when she has felt wronged, rather than engaging in dialogue with readers or her news staff, [David Millstein, the paper's general counsel] said, "A cease-and-desist letter is a form of dialogue."

[The title of the post is, of course, from the incomparable Ring Lardner.]

Posted by Paul Horwitz on January 15, 2007 at 09:56 AM in Current Affairs | Permalink | Comments (1) | TrackBack

The Year of Computing Dangerously

According to the New York Times, 2006 ended with an infamous information security milestone.  Last month, computer hackers obtained the Social Security numbers and other sensitive personal information of 800,000 U.C.L.A. employees and students.  Aetna lost 130,000 employee computer records, and a thief stole a Boeing employee's laptop containing the SSNs of over 382,000 former and current employees.  One of the folks affected by those security breaches has the dubious distinction of standing as the 100 millionth person to lose their personal data in a security breach in the past 18 months.  Unfortunately, experts predict that the state of information security will further degenerate this year, exposing even greater numbers of individuals to the threat of identity fraud.

As has been widely reported, individuals with pressed financial resources have great difficulty repairing their credit history after being struck by identity theft.  The money lost and time spent trying to correct damaged credit histories ultimately could have a material adverse impact on the U.S. gross domestic product.  At a more granular level, data leaks, and the identity theft they risk, pose other less publicized problems that will affect the legal community.  State bars require law graduates to present their credit history as part of their character and fitness review.  Students whose credit has been decimated by an identity thief now face additional hurdles beyond passing the bar to practice law--proving that a thief's loans and unpaid mortgage bills are not their own.  It appears that the information security problem will make nabbing a license to practice law even harder in 2007.

Posted by Danielle Citron on January 15, 2007 at 12:01 AM in Information and Technology | Permalink | Comments (9) | TrackBack

Sunday, January 14, 2007

Guest Blogger Danielle Citron

As a Prawfs devotee, I am grateful to Dan and the gang for the chance to join the Prawfsblawg chorus.  I teach at the University of Maryland School of Law, and my writing focuses on the challenges law and society face in our networked information economy.  In my two-week stint in the blogosphere, I hope to address some of those challenges and blog a bit about the AALS.      

Posted by Danielle Citron on January 14, 2007 at 10:38 PM in Blogging | Permalink | Comments (1) | TrackBack

Saturday, January 13, 2007

Bill Patry on Why I Wrote a Treatise

[Ed.: While we're sorting out some technical difficulties, Bill Patry put this initial post together.]

Given the size of the [new copyright] treatise (7 volumes of text, about 5,800 pages), people have asked me how I did it, but they might also be wondering why. I have asked myself that question countless times, usually in the midst of one of the hundreds of exasperating technical or clerical snafus that made up the bulk of the time preparing the book. I estimate that for every hour I spent on research or writing, three more were spent on mindless tasks. Since I did 100% of the research and writing, never using assistants of any stripe, and since I personally tackled all of the aforesaid mindless tasks too, we are talking about a lot of time. What began as a thorough revamping of an earlier work stretched out to seven years; when one includes time spent on earlier works adapted in this text, another seven years can be added on. So, why spend so much time? One answer is I didn't think I was going to. The most direct answer, though, is to educate myself. Writing for others requires a discipline I found to be the best way for me to understand issues. I could, of course, have written the book and then not published it, but had I known in advance I wouldn't be publishing it, there would be little incentive to be as careful.

What was interesting for me, and what I hope will be interesting to others, is placing copyright issues in the personal, social, and political contexts in which they arose. In my eight years experience in the legislative branch of government, I gained some insight into how problems are identified, debated and ultimately resolved or not at the policy level. In 13 years of private practice, I gained some insight into the forces that lead to litigation, what it is like to present cases for decision especially the practical economic considerations, as well as the consequences of victory or loss in the courtroom. In five years as a full-time academic, I gained some insight into how one goes about thinking and writing about copyright as a system of law. I have tried to meld all these experiences together in this book.

Everyone's experiences and interests are different. My interest is learning what I can everyday from whoever and wherever I can. I let the rest take care of itself.

Posted by Dan Markel on January 13, 2007 at 08:35 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Friday, January 12, 2007

A Haunted Case and a Comedic Court

I am preparing for my first consumer law / commercial law class next week and one of the first cases keeps cracking me up. It is one of the cases where a guy comes to a small town, buys a house, and finds out the house is haunted; in fact, the house had been haunted for years, as the seller enjoyed bragging about to the neighbors. Yet the seller failed to mention the fact to the buyer and the court holds that the buyer is entitled to the equitable remedy of rescission. What makes me laugh is obvious delight the court is experiencing with a case about ghosts before it.

Here is a taste of the court's analysis of the problem of paranormal discovery:

“While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his downpayment.  New York law fails to recognize any remedy for damages incurred as a result of the seller's mere silence, applying instead the strict rule of caveat emptor.   Therefore, the theoretical basis for granting relief, even under the extraordinary facts of this case, is elusive if not ephemeral.

            "Pity me not but lend thy serious hearing to what I shall unfold"  (William Shakespeare, Hamlet, Act I, Scene V [Ghost] ).

      From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon:  "Who you gonna' call?" as the title song to the movie "Ghostbusters" asks.   Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.   It portends that the prudent attorney will establish an escrow account lest the subject of the transaction come back to haunt him and his client‑‑or pray that his malpractice insurance coverage extends to supernatural disasters.   In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.”

The case is STAMBOVSKY v. ACKLEY New York Supreme Court, Appellate Division, 991, 572 N.Y.S.2d 672 and can be found in forthcoming Third Edition of Consumer Law Cases and Materials, by John A. Spanogle, Ralph J. Rohner, Dee Pridgen, and Jeff Sovern, Thomson/West 2007.

Posted by Orly Lobel on January 12, 2007 at 03:28 PM | Permalink | Comments (4) | TrackBack

Representing Guantanamo Detainees

At the Volokh Conspiracy, Jonathan Adler notes a Washington Post editorial discussing an interview given by Deputy Assistant Secretary of State Cully Stimson.  According to the report, Stimson pointed to a recent FOIA request seeking the names of law firms representing detainees in Guantanamo, adding, "You know what, it's shocking . . . . I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms . . . ."  Not content to rest there, Stimson suggested that while some firms would "maintain" that they were taking these cases "out of the goodness of their heart," "others are receiving monies from who knows where, and I'd be curious to have them explain that."

Adler expresses the hope that Stimson was "shooting from the hip, rather than expressing official policy."  So do I -- although I would note a piece of the story Adler misses: that the Wall Street Journal ran a column today by a member of its editorial board, in which "a senior U.S. official I spoke to" toes a similar line.  The writer, in his words, says the official "speculates that this information [about white-shoe firms representing detainees] might cause something of [a] scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500."  (emphasis added)  Of course, the nameless official might be Stimson yet again.  Still, let us hope, again, that this is not someone's idea of a government talking point, or a device to rally hardcore supporters.

I admit to flirting with the view that big firms should either cease doing pro bono work, while effectively paying others to do it for them, or at least limit themselves to pro bono work closer to their areas of specialization.  And I certainly think there are reasons of self-interest, having to do with training, associate hiring and retention, and the need to ease cognitive dissonance, that are involved in firms taking on pro bono work of particular kinds; those reasons have nothing to do with the dark motives Stimson suggests, but are not exactly about "the goodness of their heart[s]" either.  But I can only share Adler's view that Stimson's attack is just plain wrong.  As Adler says:  "All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent."   

Adler notes one irony in Stimson's insinuating attack on those firms representing the detainees: that this administration has defended its judicial nominees from similar attacks by arguing that an attorney should not be judged by the position of his clients.  I would add a second, targeted particularly at views like that of the WSJ editorialist above, who glibly describes these firms as working to "tilt the playing field in favor of al Qaeda."  That suggests that providing counsel within the legal process to a person accused of acts of terrorism is nothing more than a collaboration with wrongdoing.  Presumably, then, when a lawyer or law firm represents a "reputable firm" that is similarly accused of wrongdoing, it is again nothing more than an agent of wrongdoing, never mind that the process has not yet reached any final conclusion about the wrongness of the underlying conduct.  Yet I doubt the editorialist, or the Wall Street Journal, would take a similar position with respect to law firms representing white-collar defendants.  Indeed, that paper has been vociferous in attacking government tactics, like the Thompson Memorandum, aimed at undermining the provision of legal defenses for individuals and firms accused in white-collar cases.  Of course, the alleged conduct at issue with respect to the Guantanamo detainees is much graver than that at issue in the white-collar cases.  But so, too, the hurdles to the provision of legal process are far graver in the detainee cases, and papers like the Journal have been outraged by even the far more limited obstructions of legal process involved in the white-collar cases. 

No, the principle remains the same either way.  One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not.  I would have thought that Mr. Cully, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views.  I see now that I would have been mistaken in thinking so.    

Posted by Paul Horwitz on January 12, 2007 at 12:46 PM in Current Affairs | Permalink | Comments (3) | TrackBack

Faculty Reading Groups

I've heard that some faculties have small reading groups for the semester or a year, and of course, I am curious about what structures work best. Should participants give tutorials about their own projects and areas of expertise within (say) legal theory, or should the group just select works of other people to read. If the latter, should the works be classics or contemporary, and if contemporary, published or works in progress? I think the purpose of the reading group is to accumulate knowledge for those who may need brush-ups. In that sense, I think they're different than most faculty workshops for works in progress. Anyone have experience with this that she'd like to share in the comments? I think Illinois has had some of these in criminal law and policy, and I'm wondering if there are other guidelines elsewhere that you know about. Thanks.

Posted by Dan Markel on January 12, 2007 at 11:20 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Blood Transfusions and the Law -- Times Six

From the Globe and Mail comes this interesting story highlighting a standard law and religion issue: the conflict between the law's protection of the best interests of the child and the spiritual interests of some religionists -- in this case, and most commonly, Jehovah's Witnesses -- for whom blood transfusions are unacceptable for religious reasons.  In this case, the conflict is made more palpable, and poignant, by the circumstances: the story involves sextuplets, born prematurely at low birth weights.  From the story:

VANCOUVER -- While the parents of sextuplets born this week in B.C. Children's Hospital are striving to keep a low profile, the health of their babies could propel them into a courtroom and a very public clash over medical responsibilities and religious rights.

The British Columbia ministry responsible for the welfare of children confirmed yesterday that it is prepared to make the babies wards of the state, if necessary, to ensure their safety.

The parents, who have remained anonymous despite massive media attention, are Jehovah's Witnesses, members of a faith that forbids members to accept blood transfusions....

An official with the B.C. Ministry of Children and Family Development, speaking on a background basis, said the government is very much aware of the situation and is prepared to act, if necessary....

"If a health practitioner is aware of a case where a child, including a newborn, may be at risk as a result of a parent refusing to consent with a recommended treatment, the health practitioner has a legal duty to report that matter to a child-protection worker. And we would then assess and take appropriate steps to ensure the child's safety," the official said.

"In cases where treatment is deemed to be necessary to preserve a child's life, or prevent serious or permanent impairment to a child's health, it may be necessary to seek a court order - and that's what we would do."

Speaking from personal experience, I can certainly attest that transfusions are common in the treatment of premature children.  A representative for the Jehovah's Witnesses quoted in the story suggests that there are potential alternatives to blood transfusions.  I can't speak to the efficacy of those treatments.

The courts generally treat these cases as easy cases, and no doubt so would most folks.  No doubt there is about as significant a compelling government interest here as you could ask for.  My own view, nonetheless, is that courts should, to some degree and in some sense, treat cases like this as among the hardest.  Just as the government's interest is at its highest level, so the stakes are especially high for the religionists involved in the case.  As Kent Greenawalt notes in volume 1 of his recently published treatise, the religionists may "believe that their souls and the souls of their children will be jeopardized if the children receive a transfusion.  Someone might argue that the state should defer to the parents . . . . Certainly it is better to lose one's life on this earth than to suffer eternal damnation, if that is the choice."  (emphasis in original)

Should the heavy weight of the prospect of damnation shift the balance dramatically enough to change the outcome?  Ultimately, no, at least in cases involving infant children.  In such circumstances, as Greenawalt writes, it should still be the case that the courts "properly require[ ] medical treatment that is essential for life, even against a parental claim that the treatment is harmful religiously."  But courts, in their rhetoric, might at least honor the significance and poignance of such religious claims, even in cases involving children, and even if the outcome still favors the state.  Serious recognition of the weight of the religious claims involved in such cases, rather than an air of dismissiveness, might at least show respect for the religious objectors in such cases, and draw them more fully into the broader community and the legal and medical decision-making process, regardless of the outcome.  Judges certainly should give due consideration to the availability of medical alternatives in such cases, at least where they are not pressed by the genuine urgency of the situation.  And they ought to give far greater weight to such claims the more the individual involved reaches the capacity to claim the right to refuse medical treatment for him- or herself, even at a relatively young age.   In this case, as I have already suggested, given the age of the children, I certainly believe the outcome must favor the state's interest in medical treatment, even against the parents' wishes, unless genuinely credible medical alternatives exist.  But the court facing such a situation might at least treat the religious claims involved with the weight and dignity they deserve, even as it rules for the state.

I will be curious to see what my law & religion students this semester think of such a situation.  I don't doubt they'll teach me as much as I teach them.

Posted by Paul Horwitz on January 12, 2007 at 11:19 AM in Religion | Permalink | Comments (4) | TrackBack

Rotations

Just wanted to thank all of our guests this past month or so. In the next few days we'll also be rotating in a few new voices: Danielle Citron, who teaches at U. Maryland and is the author of two very interesting recent articles, and Bill Patry, a former prawf at Cardozo who's now at Google as copyright counsel. Bill has just released a treatise on copyright and will be sharing with us some of his thoughts on the art and allure of treatise writing.

Posted by Dan Markel on January 12, 2007 at 10:55 AM in Blogging | Permalink | Comments (0) | TrackBack

Berlin, Baby, Berlin!

Orly's post made me realize how woefully behind I am in thinking about the Berlin conference for Law and Society. If there are any crimprawfs out there who want to present on a panel about issues related to punishment theory and institutional design, please contact me asap with the topic and thesis on which you want to present. I'm hoping to put a paper panel together, preferably for the first day or two of the conference if possible (July 25 or 26). Thanks!

Posted by Dan Markel on January 12, 2007 at 01:02 AM in Law and Politics | Permalink | Comments (1) | TrackBack

Thursday, January 11, 2007

Kolber Signing Off

It's time for my guest blogging stint to come to an end.  My thanks to Dan and all the other folks at Prawfsblawg.  I had a bunch of posts this go-around that touched on ways to improve legal research and scholarship, and I especially appreciate the comments on Westlaw Blues, Westipedia, and "Choose Your Own Legal Scholarship" (still time for a few more to step up to the plate on this last one).  Looking forward to my next visit!

Posted by Adam Kolber on January 11, 2007 at 05:53 PM | Permalink | Comments (1) | TrackBack

Supreme Court Update from Aaron Streett

Greetings, sportsfans! The Chief’s been working on the railroad in [yesterday's] lone opinion. But don’t stop reading now, tempting though that may seem: I promise there’s some interesting stuff at the end.

Norfolk Southern Railway v. Sorrell, 05-746


The Chief—whether graciously or of necessity­—kept a real dog for himself from the October sitting. He wrote the Court’s opinion (joined by all but RBG) vacating the decision of the Missouri Court of Appeals. The question was whether, in Federal Employers’ Liability Act cases (railroad injury cases often tried in state courts), Missouri properly applied a more lenient standard of causation for employer liability than for an employee’s contributory negligence. The Court saw no reason for tilting the playing field toward the employee in this way. The common law applied the same causation standard for both employer negligence and contributory negligence, and FELA’s statutory text did nothing to alter the common-law rule. And it makes no sense to apply different causation standards under FELA’s comparative-fault system, which treats contributory negligence as a direct offset against employer negligence. The Chief declined to decide precisely what the causation standard is, on the ground it would be unfair to let Norfolk “switch gears” and seek a ruling on that issue after it took conflicting positions below. That non-holding is a great example of both the Chief’s clever railroad humor and his attempt to preserve unanimity by reaching only issues that are squarely presented.

DHS concurred, joined by Scalito (AS + SAA). While Justice Souter agreed that the Court should not establish the causation standard, he couldn’t resist offering a few words of wisdom on it anyway. It should be the common-law “proximate cause” standard, and lower-court rulings that rely on a recent Supreme Court case to water down that standard are just plain wrong.

RBG concurred only in the judgment. She agrees with the Court that the causation standards should be the same, but she reads Supreme Court precedent (contra DHS) as departing from the strict common-law standard, thus making it easier for plaintiffs to prove negligence. RBG contends that this reading is in accord with FELA’s remedial purpose, as Justice Douglas colorfully put it, to lay on that robber-baron railroad industry “some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.” Anyone else have a craving for sausage about now?

ASSIGNMENT WATCH: Two opinions remain of the 9 from the October sitting, and 2 Justices have not yet written opinions—RBG and SGB. The 2 remaining cases are Cunningham v. California (constitutional challenge to California sentencing guidelines) and Global Crossing v. Metrophones (administrative law/private cause of action under 1996 Telecom Act). It is exceedingly difficult to guess our mystery authors. After all, both RBG and SGB played key roles in Booker, the case on which Cunningham turns—Breyer as the author of the remedial opinion, and Ginsburg as the swing vote who joined different 5-4 majorities to first strike down the federal Guidelines, and then to salvage them by making them advisory. As a result, either one could be writing Cunningham to uphold California’s guidelines. On the other hand, either one could be writing Global Crossing: Breyer was an administrative law professor, and Ginsburg a former DC Circuit judge who also has expertise in that area. My purely speculative guess: Breyer writes upholding California’s system as salvaged by the California Supreme Court, thus reprising his role in Booker. And RBG pens Global Crossing over multiple dissents or concurrences (which would explain why the speedy RBG has been so slow in issuing her first opinion of the Term). However, if the Chief’s dog adoption from the October sitting means that he was in the minority in both Cunningham and Global Crossing, then the roles could be reversed, with RBG striking down the California guidelines (over JGR’s dissent) and SGB writing Global Crossing. A final word of caution: virtually all of this speculation rests on the assumption that Roberts and Alito will mirror their predecessors’ pro-Guidelines/anti-Apprendi views, thereby maintaining four votes to uphold judicial-sentencing schemes. If either JGR or SAA turns out to be pro-Apprendi, however, then it would seem almost certain that RBG is writing Cunningham to invalidate California’s guidelines.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to aaron.m.streett@bakerbotts.com

Posted by Dan Markel on January 11, 2007 at 03:21 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack