Saturday, June 30, 2007
"Justice Talking" event in Philadelphia
On July 10, the National Constitution Center in Philadelphia is hosting an event, "Highlights of the Supreme Court Term: How Has the New Conservative Majority Affected the Court?," at 5:00 p.m. Among other things, the event involves a discussion about the Term among Jan Crawford Greenburg, Prof. Geoff Stone, and me. For more information, click here.
If This is July, It Must Be PrawfsBlawg
Let's see. The last time I posted something here it was August 2006, I had just rolled into New Orleans, and everything was contingent. Here it is July 2007, I'm attending the AALS New Law Professor Workshop (see post over at Legal Profession Blog on that) which says something in itself about the reduction of contingency. Since last July we've graduated one son from high school (and he is going to Stanford), saw our daughter get married and accepted to the theater grad program at Columbia, moved our permanent household to Cambridge, Massachusetts, and increased the number of nights I will spend in the same area code with my wife (whether she likes it or not).
But I digress. I want to give substantial credit to Dan Markel, and his courageous decision to let me guest blog a year ago, for the fact that I am now a faculty member at a respected institution. I discuss the power of the internet and the blogosphere, among other things, for the, shall we say, "well-seasoned" academic aspirant in the only thing I've written in the last couple years that my family understood (they didn't like it, but they understood it): Memo to Lawyers: How Not to "Retire and Teach."
Thanks for having me back!
Transit and Transitions
I'm going to be spending a lot of time on airplanes for the next couple of days, so I may be slow to read and respond to any substantive reactions to my "Copyrights and Pornography" post below. It's the last day of June, so my guest stint here is technically over except for the shouting (by which of course I mean the comments), and I want to thank Dan and all the other Prawfsblawggers for the opportunity to guest post here. Hope everyone is having a great summer, and if y'all find yourselves traveling through the South, please stop by the University of South Carolina School of Law and say hello.
Copyrights and Pornography
Until 1979, copyright protection was effectively unavailable for "obscene" pornography. Then in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.), cert. denied, 445 U.S. 917 (1979) and Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.), cert. denied, 459 U.S. 826 (1982), two courts expressly found obscenity protected by copyright law. Courts are not in compete accord on this issue as William Patry noted at his blog:
In the SDNY, then Judge Martin refused to grant a preliminary injunction and a pretrial impoundment and seizure order for movies he believed to be obscene writing, "Given the clearly criminal nature of plaintiff's operations, it is self-evident that the Court should not use its equitable powers to come to the aid of plaintiffs and should invoke the doctrine of clean hands and leave the parties where it finds them," Devils Films, Inc. v. Nectar Video Corp., 29 F. Supp.2d 174, 175 (S.D.N.Y. 1998).
As Patry also noted, in Nova Products, Inc. v. Kisma Video, Inc., 2004 U.S. Dist. LEXIS 24171 (S.D.N.Y. Dec. 1, 2004), Judge Baer decided to follow Mitchell Brothers, writing:
In its well-reasoned and scholarly opinion, the Fifth Circuit reviewed the history of the copyright legislation and found that all-inclusive language of the Copyright Act of 1909, 17 U.S.C. § 34 (1970) (repealed), which encompassed "all the writings of an author," did not bespeak of an obscenity exception to copyright protection. The Fifth Circuit further reasoned that the existence of other restrictions in the related areas of trademarks and patents, together with the need for a uniform system of copyright, which could be fragmented by the community-driven obscenity standard, counseled against finding an obscenity exception. Finally, the Court was reluctant to stifle creativity and enlist "the judgment of government officials regarding the worth of the work."
Congress never addressed this issue in the copyright, and with the exception of Bill Patry, copyright scholars haven't had much to say about pornography specifically, even though many high profile copyright cases (such as this recent one and this golden oldie) involve pornographic content. I think studying and theorizing the roles that copyright law plays in the production, distribution and consumption of pornography would be useful and instructive in many regards (as I noted here and here), but I'm not sure how likely it is to happen. Some law profs think that pornography is socially beneficial (see e.g. this and this), but I disagree (e.g. here and here) as do others. Because the IP Clause of the U.S. Constitution authorizes copyright law only to the extent that it promotes the progress of science and the useful arts, one might expect the copyrightability of pornography to be more controversial than it has been so far, given the incentives that copyrights provide and the government resources that are required to sustain the copyright legal regime. That both policy makers and legal scholars choose to ignore these issues gives pornography a privileged position with respect to more interrogated categories of created works such as mainstream music and non-pornographic movies. I'm interested in any opinions about whether pornography should be copyrightable, and why so many people are willing to assume that it should be without reflection.
Friday, June 29, 2007
Many many thanks to Stuart Green, Yair Listokin, Mark Drumbl, and Ben Depoorter for their contributions the last couple months. Some of our other June visitors will be lingering, I hope, for a little longer.
In the meantime, let me give a slightly early welcome back to our visitors for the month of July: Kim Kessler Ferzan (one of my favorites in my area of law, crim law theory; Rutgers); Gowri Ramachandran (con law, Southwestern); Jeff Lipshaw (business law, Suffolk); and Scott Moss, formerly of Marquette and now at Colorado, where he'll continue teaching in work law areas. Also joining us for the first time is Carter Snead, from Notre Dame, where he teaches torts, crim pro, and bioethics. Welcome, welcome.
With the end of June just about here, it’s time to pack up my suitcase and say thanks to the nice folks at Prawfsblawg for inviting me over. I had fun sharing some inchoate thoughts, learned a lot from readers’ comments, and developed a new respect for the art of blogging. I may sound like an old fogey for saying so, but, after a month of being involved in this venture, I’m more amazed than ever at the miracle of the Internet.
What You See is What You Get
At least until recently, it was the conventional wisdom that it is difficult to predict the voting behavior of Supreme Court nominees. Conservatives would complain that Republican appointees tend to drift leftward the longer they serve. Liberals would bemoan the increasing prominence of stealth nominees whose writings and comments were so thin as to prevent serious analysis. And well-meaning good government types, including some of the Justices themselves, would argue that extensive pre-confirmation vetting of a nominee's views were not only unseemly, but also pointless, as the shifting tide of issues and the very process of judging would quickly date those positions.
Well that conventional wisdom has grown a bit ragged over the last few years and this year's Supreme Court term probably (and hopefully) has driven a final nail in its coffin. The truth of the matter is in fact squarely the opposite: with the possible exception of Justice Stevens, every single Justice on the current Court has behaved on the bench almost exactly as his or her pre-confirmation writings and confirmation hearing testimony would have suggested.
Let's take them one by one, starting with the newest Justices. John Roberts and Sam Alito came across as rock-solid judicial conservatives, committed to limiting the powers of the courts and along the way chipping away at the substantive excesses of the Warren Court. Check. They also came across as judges with long time horizon who understood the complicated dance of precedent and principle. Check. Even the quirks of their judicial personalities were right there in the record--Roberts' near obsession with standing; Alito's comparative sympathy with First Amendment plaintiffs.
Or take the two Democratic appointees on the Court: Steven Breyer and Ruth Bader Ginsburg. Both had track records and writings that marked them as clearly and on first principles hostile to attacks on federal power and on the rights legacy of the Warren Court. Yet, on the other hand, neither was a doctrinaire left-winger: Breyer having demonstrated both a wonkish approach to criminal justice issues that boded ill for criminal defendants and a sympathy to the efficiency-oriented concerns of businesses in regulatory cases; Ginsburg having built a moderate record on the DC Circuit largely by eschewing broad approaches to statutory interpretation and reading rules and texts with a professorial precision. On the Court, they have behaved as, well, themselves.
Even Justices Kennedy and Souter, much vilified for allegedly shifting left on the Court, told us who they were in their opinions and testimony. Justice Kennedy is a small-town, civics-books conservative, in accord with the judicial and social conservative agendas on most issues, but genuinely--indeed almost uncritically--believing that it is both America's destiny and his duty to give concrete meaning to soaring abstractions like "liberty" and "equality." While Justice Souter is harder to pin down with a label--if I had to try I'd somehow cross "Yankee Republican" with "traditional Anglo-American common law jurist"--his tour-de-force performance before the Senate Judiciary Committee told us what kind of judge he was going to be: cautious, humble, learned, yet willing to take seriously the courts' traditional equitable and gap-filling roles in both statutory and constitutional matters, in other words a genuine moderate by historical standards.
Certainly, the Justices retain the ability to surprise us in individual cases or areas of the law. (No one, for example, would have predicted that Justice Souter would have become such a solid vote for defendants in criminal procedure cases.) And, if Justices stay on the Court long enough, history may well reshuffle the issues in a way that require them to stake out new positions or choose between different strands in their judicial personas (witness the late Court careers of both Hugo Black and John Paul Stevens). But, in the medium term and in the larger picture, there are few if any surprises. In this era of well-vetted nominees with long and impressive academic and professional credentials, what you see is what you get.
Thursday, June 28, 2007
Leegin v. PSKS
The school cases have gotten much of the attention today in the media and on the law blogs, not to mention generating a whopping 185 pages of opinions from the Supreme Court. (At the risk of again prompting commentary over my use of the term, I will say it -- WOW! Supreme Court opinions in tax cases just are never that long, thank goodness.) But another, really important opinion came out today in Leegin Creative Leather Products, Inc. v. PSKS, Inc., overruling a precedent dating back almost 100 years and concluding that agreements between manufacturers and distributors or retailers that establish minimum resale prices are not per se illegal (and in a comparatively svelte 55 pages of opinions plus syllabus, by my count). I am neither an economist nor an antitrust expert, so I really have little more than your average educated lawyer to say about the substance of the Leegin opinions. Still, it's not every day the Supreme Court overrules such established precedent. Analysis of the case and links to further analysis are available here and here and here.
For those rising prawfs who are just beginning to think about their teaching tactics and style, here's an innovative way of doing it, courtesy of Rose Cuison Villazor:
Lyrics to one of my favorite Lehrer songs, Lobachevsky (about the career-boosting aspects of plagiarism) here.
Summer is finally upon us, and as exciting as our research undoubtedly is, we should all take a moment to savor the season. Of course, thoughts of summer often lead to thoughts of summer romance, and the legendary couples that arose from such trystings: Tristan and Isolde, Gatsby and Daisy, Danny and Sandy...
But how to achieve such fabled happiness, you cry, what is the best way to find love ? And where can it be sought?! Well, once again Ovid, one of my favorite sages, has the answer (hat tip to Frank Pasquale):
And the law-courts (who’d believe it?) they suit love:
a flame is often found in the noisy courts:
where the Appian waters pulse into the air,
from under Venus’s temple, made of marble,
there the lawyer’s often caught by love,
and he who guides others, fails to guide himself:
in that place of eloquence often his words desert him,
and a new case starts, his own cause is the brief.
There Venus, from her neighbouring temples, laughs:
he, who was once the counsel, now wants to be the client.
(Ars Amatoria, Book I, Part III: Search While You're Walking)
Go and sally forth, young lawyers--your romance awaits!
The School Assignment Cases and Grutter
There are 185 pages, all told, in the opinions in today's school assignment cases; I have not read them all and don't want to make any unduly hasty judgments. But let me address one issue of particular interest to me. One question bruited about before the decisions came down was whether the Court, with its new composition, would eviscerate or overrule its recent decision in Grutter v. Bollinger, the University of Michigan Law School case. While I might modify my view upon a closer reading of the judgments as a whole, I think we can say that neither of these possibilities occurred. Grutter retains its vitality, for reasons that are important to larger projects I have discussed here, although it may be that those who thought that Grutter could apply in a variety of circumstances turned out to be wrong.
The relevant discussion comes at pages 13-17 of the majority opinion. The majority notes that Grutter rested on "the interest in diversity in higher education." But the Court stresses that the kind of diversity at issue in Grutter was not simply "race alone," but included a variety of factors beyond race. Moreover, the admissions program approved in Grutter involved a set of holistic and individualized determinations about admissibility, and not just a crudely operated search for racial balance. The Court thus distinguishes Grutter from the present cases, certainly without overruling and also, I think, without quietly eviscerating it. I think it is this last conclusion that will occasion the most controversy, and others may point to other aspects of the ruling that they do think damage Grutter. (More on this later, after the jump.)
The majority, in the course of disagreeing with those lower courts that applied Grutter to various K-12 school assignment plans, also emphasizes that Grutter "relied upon considerations unique to institutions of higher education, noting that in light of the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Thus, to the majority, Grutter takes place within the "unique context of higher education," and within the tradition of academic freedom found in many First Amendment rulings over the past 50 years -- a First Amendment tradition that substantially underwrote the Court's decision in Grutter, and that is not relevant with respect to K-12 schools.
This is of special interest to me because, in several prior works and some forthcoming work, I have argued that Grutter supports a larger argument in favor of a First Amendment framework that is more institutionally oriented: that is, a framework that favors substantial judicial deference to a variety of entities that are especially important to our system of public discourse, that are bound by a variety of self-governing rules and traditions, and that accordingly are entitled to a substantial degree of autonomy. Nothing in today's discussion of Grutter undermines that approach, I think. To the contrary, the Court's explicit focus on the First Amendment aspects of Grutter tends to support it. (Although I must observe pointedly that this focus on the "unique context of higher education" was nowhere in evidence when the Court decided Rumsfeld v. Forum for Academic and Institutional Rights last term.)
Now, this leaves open some important questions, both for the Court and for my own little project. One question is this: Why is higher education a "unique context" in ways that elementary education is not, at least for purposes of this case? Courts usually speak in terms of the special expertise that universities have in deciding who shall be a member of the student body, among other questions; why do lower public schools not possess similar epistemic authority as compared to the courts? Even if the Court erred on this point, the outcome might be no different, given the very different nature of the admission plans in Grutter as compared the plans in today's cases. But the Court might have said more on this point. Perhaps the distinction is that the law school in Grutter did a better job of relating its interest in diversity to the particular expertise it wielded as a center of higher education, while the school districts in today's case engaged in a blanket assignment system that was not closely enough linked to their special interest in education. I can't say, and look forward to further commentary.
One other note I would make about this is that, if I am right, the Court found the law school's claim to epistemic authority strong enough to justify deference in Grutter, but did not find the school districts' claims to epistemic authority strong enough to justify deference in today's cases. But just last week, the Court did defer in a variety of ways to the determinations of public school administrators, in its decision in Morse v. Frederick. What gives?
I am sure much more remains to be said on the impact of today's cases on Grutter. For one thing, Grutter also comes up in a section of Chief Justice Roberts's opinion that is joined only by a plurality of the Court, and Justice Kennedy specifically refuses to join that discussion in his concurring opinion. I do not think that discussion matters to my discussion of Grutter as a First Amendment case, but it might have implications for Grutter in its primary Fourteenth Amendment aspects. Also, I noted above that whether you believe today's decisions damage Grutter may depend on what you think Grutter meant in the first place. After that decision, some commentators argued that Grutter applied naturally across a range of other environments -- public workplaces, lower public schools, and so on. Today's decisions, without definitively answering that question, certainly cast doubt on it. But that was not my impression of Grutter in the first place, so I am not sure that this really counts as evidence that today's decision reduces the footprint of its earlier decision. In any event, to the extent that Grutter was about the degree to which courts will defer to the expertise of universities as "First Amendment institutions," certainly nothing in today's decision alters or undermines it.
CONNtemplations: Do Law Reviews Matter?
You may have read Paul and Steve's discussions of CONNtemplations, the new online companion for the Connecticut Law Review. The three of us each contributed essays for the launch, along with Al Brophy, John Doyle, and Ronen Perry. The title of the inaugural edition is "Do Law Reviews Matter? ", and the commentary flows from a set of articles by Ronen Perry and Al Brophy on the law review's relationship to law schools and legal scholarship. Some links for your reference:
- The CONNtemplations site
- Al Brophy, Mrs. Lincoln’s Lawyer’s Cat: The Future of Legal Scholarship
- Ronen Perry, De Jure (sic) Park
- John Doyle, The Business of Law Reviews
- Paul Horwitz, "Evaluate Me!": Conflicted Thoughts on Gatekeeping in Legal Scholarship’s New Age
- Steve Vladeck, The Law Reviews vs. the Courts: Two Thoughts From the Ivory Tower
- Matt Bodie, Thoughts on the New Era of Law Review Companion Sites
All of these essays are available in .html as well as .pdf form. There are comment sections for each article -- I encourage you to comment over at CONNtemplations and start the dialogue.
Garnett in a Greenhouse (article)
Our own Rick Garnett appears prominently in Linda Greenhouse's analysis today in the NYT on the bench-slapping Justice Scalia administered to CJ JGR over the sub silentio over-rulings of precedent in the Hein and campaign finance cases earlier this week. Rick is quoted thus:
The conservative alliance at the court may be fractious but not fragile, strong enough to withstand Justice Scalia’s “tweaking and needling,” as Prof. Richard W. Garnett of Notre Dame Law School describes it.
“I look at it as a bit of a kabuki dance,” said Professor Garnett, who clerked for Chief Justice Rehnquist and is close to the court’s conservatives. He said he had no doubt that Justice Scalia had “huge respect for the new chief as a person and as a lawyer.”
What is visible now, he said, is the latest iteration of the endless struggle between the need for stability in the law and the desire to correct previous mistakes.
“Different people who call themselves conservatives resolve that tension in different ways,” Professor Garnett said, adding that Justice Scalia was “laying down markers, making sure the arguments are out there to be used in later cases.”
Now if only I can get Rick to work in "prawfs.com" as part of his future answers to the maestro of SCT journalists -- maybe as an acrostic poem, Rick? -- we'd be all set.
Wednesday, June 27, 2007
Supreme Court Roundup from Aaron Streett
Greetings, sportsfans! Well, it’s been a very interesting couple weeks of baseball as the Court’s key switch hitter continued to swing from the right side of the plate. To mix metaphors, the Court’s conservatives have run the table, prevailing in every closely contested case from campaign finance reform to student speech to taxpayer standing. We also learned a lot about the Roberts Court’s view of stare decisis. The Court effectively overruled a very recent precedent (McConnell v. FEC) and continued gutting an older one (Flast v. Cohen), all without formally overruling them. This “minimalist” approach championed by JGR and SAA came in for some biting criticism from Justice Scalia, in the first signs of open tension in the conservative bloc. Below, I recap the action from this Monday’s decisions. I still owe you an update from last week, but your negligent sportswriter has been too busy billing hours (and reading hundreds of pages of SCt opinions) to actually write that up yet. I’ll make it up to you soon—after we see what the Court does with the school-race cases tomorrow, that is.
Federal Election Commission v. Wisconsin Right to Life, 06-969
Section 203 of the Bipartisan Campaign Reform Act (aka McCain-Feingold) made it a federal crime for a corporation (including nonprofit advocacy groups) to broadcast an ad within 30 days of an election that names a federal candidate and is targeted to the relevant electorate. The Act was aimed at “sham issue ads” that denigrated a candidate’s stand on an issue, but did not expressly advocate a candidate’s defeat (thereby evading earlier campaign-finance laws). The classic example was “Senator X beats his wife; call Senator X and tell him to support family values.” In 2003’s McConnell decision, the Court (5-4, SOC defecting) held that § 203 was a facially constitutional effort to prevent the corruption or appearance of corruption that attends corporate influence on federal elections. But the Court left the door open to claims that § 203 is unconstitutional as applied to “genuine issue ads”—that is, ads that name a candidate but genuinely discuss issues instead of trying to influence an election. Respondent WRTL wanted to run ads urging viewers to call Wisconsin Senators Feingold (sweet irony!) and Kohl and “tell them to oppose the filibuster” of President Bush’s judicial nominees.
The Court held that § 203 was unconstitutional as applied to WRTL’s ad. Chief Justice Roberts’ controlling opinion, joined only by SAA, placed the burden on the government to justify § 203’s ban on political speech. Citing McConnell, JGR said that the question was whether the ad was the “functional equivalent” of “express advocacy” for a candidate’s defeat. But according to the Chief, the proper test is not whether the ad was intended to influence an election, as McConnell had said. Such a test would “chill core political speech by opening the door to a trial on every ad within the terms of § 203, on the theory that the speaker actually intended to affect an election.” A speech-protecting test must be “objective, focused on the substance of the communication” and “must entail minimal if any discovery” so parties can resolve disputes quickly. Under JGR’s test, “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a particular candidate.” Therefore, WRTL’s ads are plainly valid since they focus on a legislative issue and do not mention an election nor take a position on a candidate’s fitness for office. “Contextual factors,” such as WRTL’s website that urged Feingold’s defeat, should “seldom play a significant role in the inquiry,” for WRTL’s express advocacy “in other aspects of its work is not a justification for censoring its issue-related speech.” Coining his own constitutional catchphrase, the Chief summarized: “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
JGR found no compelling government interest that could support regulating issue ads. McConnell “stretched” the government interest in suppressing corruption to cover ads that were the “functional equivalent of express advocacy.” But this interest cannot be stretched to cover issue ads that are not. “Enough is enough,” said the Chief, giving a hint of how he really feels about McConnell. Nor can the interest in preventing corporations from having an undue influence on politics, recognized in Austin v. Michigan Chamber of Commerce (1986), be stretched to ban issue-related speech. The Chief found it unnecessary to decide whether McConnell should be overruled because WRTL’s ads were not the functional equivalent of express advocacy and therefore were valid even under McConnell.
Justice Alito concurred in declining to revisit McConnell. But he tantalizingly added that if Justice Scalia’s prediction of chilled speech turns out to be correct, “we will presumably be asked in a future case to reconsider the holding in McConnell.” This brief concurrence both solidifies SAA’s reputation as a judicial restraintist and makes pretty clear that he will vote to overrule McConnell if the question is squarely presented.
AS (+AMK, CT) would have overruled McConnell. Justice Scalia could find no test to separate issue-related speech from election speech that would both “(1) comport with the requirement of clarity that unchilled freedom of speech demands, and (2) be compatible with the facial validity of § 203 (as pronounced in McConnell).” The Chief’s test is impermissibly vague because it depends on whether the public could reasonably perceive an ad as issue-related, something the speaker may not be able to adequately predict. Political speakers will simply choose not to speak rather than risk prosecution based upon a jury’s determination of reasonableness. Likewise, AS argued that JGR’s test is flatly inconsistent with McConnell, which stated that § 203 would be constitutional in the “vast majority” of applications. Thus, Scalia accused the Chief over overruling McConnell without saying so: “This faux judicial restraint is judicial obfuscation.” Finally, AS contended that stare decisis should not prevent McConnell’s overruling. Austin and McConnell were major departures from “ancient First Amendment principles,” which accorded the strongest protection to political speech. And the Court has frequently overruled even very recent precedents that proved unworkable, like McConnell has. It’s worth noting that AMK’s joinder marks the first time he’s been willing to overturn a precedent that didn’t favor criminals or social liberals since about 1992.
DHS (+3) filed a 34-page dissent and summarized it (I hope) from the bench. He agreed with AS that the principal opinion “effectively . . . overruled” McConnell. DHS saw McConnell as the latest in a long string of statutes and judicial decisions that properly recognized the dangers of corporate influence on elections, and the attendant public cynicism about the political process. McConnell realized that most issue ads are really shams that are designed to affect an election and gain influence for their corporate sponsors. WRTL’s ad fell into that category, in DHS’s opinion. DHS also noted the limited nature of § 203: Corporations can still run ads paid for by a separately funded PAC; can still run ads that do not name a candidate; can still run ads in newspapers or websites; and can still run ads if they do not accept donations from other corporations.
Morse v. Frederick, 06-278
At least the Chief was able to garner a majority for his second major opinion of the day. The Court, by a vote of 5-4, held that a high-school student’s banner reading “Bong Hits 4 Jesus” was not protected speech. The principal reasonably interpreted the banner as promoting drug use, the Court held. JGR wrote that the school need not necessarily be able to prove that the challenged speech would “substantially disrupt” the school in order to suppress it, as Tinker v. Des Moines (1968) had held. While students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, the nature of those rights is what is appropriate for children in school.” The Court then embarked on a survey of caselaw and sociological data to show that drug use is a particularly severe problem within schools. To address that problem, officials may “restrict student expression that they reasonably regard as promoting illegal drug use.” The Chief explained that this rule is different from suppressing unpopular speech or controversial speech. Indeed, the Court declined to adopt the petitioner’s argument that schools can suppress any “offensive” speech. The Court’s limited ruling against pro-drug speech vindicates the strategy of petitioner’s counsel, Ken Starr, and many religious-conservative amici who wisely gave the Justices this backup option to allowing bans on all “offensive” speech.
Justice Thomas concurred, but only because he does not believe public-school students have any free-speech rights under the Constitution. According to CT, the history of public schools shows that teachers and administrators had plenary power to regulate students’ speech in loco parentis, without any constitutional restrictions. If parents don’t like the rules imposed by public schools, they can “send their children to private schools, home school them, or . . . simply move.” “Tinker has undermined the traditional authority of teachers to maintain order in public schools” and should be overruled, he said.
Showing the widely varying approaches of the Court’s conservatives to this case, Justice Alito (+AMK) concurred from a completely different angle. SAA concurred on the understanding that the Court’s opinion does not permit restrictions on speech “that can plausibly be interpreted as commenting on any political or social issue.” He would also explicitly reject the SG’s argument (not addressed by the majority opinion) that schools can ban speech that interferes with a school’s educational mission. He strongly took issue with CT’s concurrence: “It is a dangerous fiction to pretend that parents simply delegate their authority . . . to public school authorities.” Even while he agreed with the Court that the special dangers of drugs in schools warranted suppression of pro-drug speech, he “regarded such regulation as standing at the far reaches of what the First Amendment permits.”
SGB concurred in part and dissented in part. He would have held that the principal was entitled to qualified immunity and not reached “the difficult First Amendment issue.”
JPS (+DHS, RBG) dissented. While they agreed that the principal was entitled to qualified immunity (ho hum, another unanimous CA9 reversal on that point), they argued that the “Bong Hits” banner was protected speech. JPS mainly took issue with the majority’s view that the banner promoted drug use. In his view, “this nonsense banner” did not “expressly advocate” illegal conduct and therefore could not be banned. The Court engaged in viewpoint discrimination and undermined Tinker’s disruption rule by allowing the suppression of this speech.
Hein v. Freedom from Religion Foundation, 06-157
Respondent freedom-lovers filed a lawsuit arguing that Executive-Branch-sponsored conferences inviting religious groups to seek federal funding under the President’s Faith Based Initiatives violated the Establishment Clause. The question was whether respondents had taxpayer standing. Justice Alito’s (+JGR & AMK) controlling plurality spent many pages recounting the historical ban on taxpayer standing and the weighty jurisprudential reasons for it. Then he came to the fly in the ointment—the classic Warren Court decision of Flast v. Cohen (1968), which “carved out a narrow exception to the general constitutional prohibition against taxpayer standing” when (1) there is “a logical link between [taxpayer] status and the type of legislative enactment attacked,” and (2) when there is “a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged.” SAA distinguished this case from Flast. “The link between congressional action and constitutional violation . . . is missing here.” The faith-based conferences were not dictated by any congressional enactment. Rather, the Executive Branch sponsored the conferences pursuant to an Executive Order and used only general appropriations. Thus, this case was more like Valley Forge Christian College v. Americans United (1982), in which the Court rejected taxpayer standing to challenge the Executive’s transfer of land to a religious group. Extending Flast to executive-initiated violations would “raise serious separation-of-powers concerns” by making almost every government speech or proclamation subject to taxpayer challenge. Making his view on Flast perfectly clear, SAA added that “Flast itself gave too little weight to these concerns.” Nonetheless, the plurality saw no need to revisit Flast, but merely declined to extend it, “as then-Justice Rehnquist” did in Valley Forge. (This must be the sixth or seventh time the Old Chief has been invoked by name in an opinion this Term.) SAA tweaked Justice Scalia for calling the plurality “insane” and “utterly meaningless,” and instead opined that Scalia was simply “wrong” in arguing for Flast’s overruling. In closing, SAA concisely summed up the Roberts Court’s approach to stare decisis: “It is a necessary concomitant of stare decisis that a precedent is not always expanded to the limit of its logic.”
AMK concurred to note that, in his view, “the result reached in Flast is correct and should not be called into question.” But neither should it be extended to cover this case, lest courts “assume the role of speech editors . . . and event planners” for Executive Branch functions (as opposed to merely micromanaging the Executive’s prosecution of the war on terrorism, one supposes). This concurrence reminded me of AMK’s missive in Hudson v. Michigan, the exclusionary rule case from last Term, in which he made clear that he will not be the fifth vote for overruling 40-year-old precedents that 4 other Justices seem ready to discard.
AS (+CT) concurred in the judgment. To him, Flast was an unwarranted departure from the general ban on taxpayer standing and should be repudiated. The Court should stop making “utterly meaningless distinctions from Flast and either overrule it or apply it to all government expenditures. “Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria” for standing. Taking his second smack of the day at the Roberts-Alito judicial-restraint juggernaut, Scalia admonished: “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.”
DHS (+JPS, RBG, SGB) dissented, arguing that the logic of Flast dictates that taxpayers have standing to challenge any government spending that violates the Establishment Clause. The injury to the taxpayer’s conscience is the same whether his money is unconstitutionally spent by the Executive Branch or Congress.
Wilkie v. Robbins, 06-219
Respondent Robbins was a Wild West rancher who hosted cattle drives for tourists on his ranch. The federal government owned much of the land surrounding Robbins’s ranch and wanted an easement across it. When Robbins repeatedly refused to grant one, the Bureau of Land Management officials did what any good bureaucrats would do: harassed Robbins until he cried uncle. They trespassed on his land, charged him with picayune land-use violations, and revoked his grazing permits. Only Robbins didn’t cry uncle, unless you count Uncle Bivens and Uncle RICO. Alas, the Court, in an opinion by DHS (+6), found these family relations unavailing. DHS held that the Court would not create a Bivens action for governmental retaliation against a citizen’s assertion of private property rights. After noting the Court’s general reluctance to recognize new Bivens actions, DHS explained that Robbins could have challenged the government’s harassment in administrative proceedings, which cuts against creating a Bivens remedy in federal court. Next, the Court saw “special factors counselling hesitation” against implying a property-retaliation claim. Such a claim is too dissimilar from recognized retaliation claims that address whether an unconstitutional purpose motivated the retaliation (e.g., when a government worker is fired for exercising First Amendment rights). By contrast, it is perfectly legitimate for the government to attempt to acquire property rights it believes it needs to protect the public interest. Thus, in a property-retaliation case, a court would have to decide whether the government did “too much” in pursuing its legitimate goals. And DHS thought that the line between unconstitutional retaliation on one side and zealous enforcement and “hard bargaining” on the other would be too hard to draw. Creating a Bivens action would also invite litigation anytime a government agent arguably infringes on property in the course of regulatory enforcement. Finally, DHS concluded (for a unanimous Court on this point) that Robbins did not have a RICO claim either, because the predicate racketeering crime—extortion under the Hobbs Act—does not cover government employees seeking to extort property for the government.
CT (+AS) concurred, because he rejects any and all attempts to create new Bivens actions.
RBG (+ JPS) dissented in part. RBG contended that a fear of opening the floodgates is not the sort of “special factor” that can preclude a Bivens remedy, and she thought that fear was overblown anyway. Moreover, RBG saw Robbins’s retaliation claim as properly alleging an illegitimate motive—a vindictive desire to “get” Robbins after he refused to grant the easement—and therefore as not materially different from other retaliation claims.
National Association of Home Builders v. Defenders of Wildlife, 06-340
For our last case from this week, let’s take the plunge into the alphabet-soupy world of administrative law. The Clean Water Act § 402(b) requires the EPA to transfer pollution-permitting authority to a State if the State can meet 9 specified criteria. The Endangered Species Act § 7(a)(2), enacted a couple years later, however, requires a federal agency to consult with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) before taking any action that could harm endangered species. The question here was whether the EPA had to undertake these consultations before transferring permitting authority to Arizona, where it was conceded that Arizona met the CWA’s 9 criteria. The Court, splitting by the traditional 5-4, said no in an opinion by Justice Alito. SAA first held that the EPA did not act arbitrarily and capriciously by beginning consultations with the FWS and then deciding that it didn’t have to after all. Only final agency action is subject to arbitrariness review, so an agency can change its mind so long as it reaches a reasoned result. Turning to the statutory interpretation issue, the Court held that the later-enacted ESA should not be read to impliedly repeal the CWA’s mandate that the EPA must transfer permitting authority if an exclusive list of criteria are met. Moreover, a regulation issued by the FWS and NMFS reasonably resolves the tension between the two statutes and is therefore worthy of Chevron deference. That regulation requires ESA consultation only when an agency has discretion whether to take a given action. Since the CWA imposes a mandatory duty upon the EPA, the EPA was not required to consult about the impact on endangered species before transferring permitting authority to Arizona.
JPS (+3) dissented. He would have held that the ESA requires consultations before an agency takes any action that could harm endangered species, even if the action is mandated by another statute. JPS thought this result was dictated by Chief Justice Burger’s “admirable opinion” in TVA v. Hill (1978), in which the Court enjoined the congressionally-authorized construction of a $100 million dam because it might injure the endangered snail darter. JPS also did not read the FWS/NMFS regulation to exempt mandatory actions from the ESA requirement and wouldn’t have given it Chevron deference anyway since none of the agencies relied upon it in its decisionmaking. Finally, citing “then-Justice Rehnquist’s” Hill dissent, JPS argued that the CWA is not really mandatory since the EPA must exercise some discretion in deciding whether a State has met the 9 criteria.
The Court granted 5 cases in the last two weeks, including 3 in which the SG recommended denial. Translation: The Court’s docket is very empty for next Term, so it is now granting everything in sight. Here are the grants with their QPs.
Riegel v. Medtronic, Inc., 06-179
Does the express preemption provision of the Medical Device Amendments to the Food, Drug and Cosmetic Act, 21 U.S.C. § 360k(a) preempt state law claims seeking damages for injuries caused by medical devices that received premarket approval from FDA?
Rowe v. New Hampshire Motor Transport Association, 06-457
Does the Federal Aviation Administration Authorization Act preempt a state from requiring shippers of tobacco and other dangerous substances to use a carrier that provides age verification to ensure that such substances are not delivered to children?
Knight v. Commissioner of Internal Revenue, 06-1286
Does 26 U.S.C. § 67(e) permit full deduction for costs and fees for investment management and advisory services provided to trusts and estates?
LaRue v. DeWolff, Boberg & Associates, Inc., 06-856
(1) Does § 502(a)(2) of ERISA permit a plan participant to bring an action to recover losses attributable to his account in a defined contribution plan that were caused by fiduciary breach? (2) Does § 502(a)(3) permit a participant to bring an action for monetary make-whole relief to compensate for losses directly caused by fiduciary breach?
Snyder v. Louisiana, 06-10119
This is a Batson case GVR’d to the Lousiana Supreme Court after Miller-El v. Dretke (2005). Not surprisingly, the issue appears to be whether the Louisiana Supreme Court properly applied that decision.
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.
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What Do Administrative Assistants Do?
It's summer and I have a new faculty assistant. I thought I would take the opportunity to inquire into the many things for which law faculty rely upon administrative assistance. My guess is that there is great variance in the responses to the above question: What do administrative assistants do?
Please share your ideas, systems, and effective ways to benefit from assistance in our daily and not-so-daily work as writers, researchers, editors, teachers, and administrators. For example, I am wondering how many law professors use their assistants to proof read their articles? Does your assistant manage your schedule? Does she help sort out your filing cabinets? Does she book your conference flights and hotels? How many ask for help with bluebook footnoting? Or is that more likely work that is done by research assistants?
[[which reminds me, I shall post in a bit a similar summer time blurb on "What do RAs Do"...]]
Hein, Flast, and the Problem of False Symmetry
Of all the mistakes that law students make, one of the most understandable is a belief that if two cases share important similarities, logic and fairness require that they be treated alike. The problem with that well-intentioned intuition is that no two cases are exactly alike. Any assessment of whether the two cases should come out the same way requires an examination of what is different about the two cases and an analysis of whether, in light of the purposes and history of the relevant rule, those differences require a different result.
I've always thought that, in constitutional law, affirmative action is the best example of this flawed reasoning. Statements that fairness or logic require the application of the same level of scrutiny to actions which classify on the basis of race whether minority groups are burdened or benefited may or may not prove right, but--without more--they are logically incomplete. To prove that point, you need a normative, historical, or theoretical account of the Equal Protection Clause that tells you whether the differences between the situations are constitutionally significant. (It's no wonder that students botch this one, as the courts themselves have only sporadically engaged in such analysis. We'll see soon--presumably tomorrow--whether the Roberts Court intends to offer a satisfactory analysis in its affirmative action jurisprudence.)
Well, in the last few days, courtesy of the Hein decision, I've found a second favorite example of the problem of false symmetry: the issue of whether the same rule should apply to taxpayer suits challenging government spending under the Establishment Clause as under most other constitutional provisions.
Hein strikes me as problematic on many, many levels. To begin with, as both the dissenters and the concurring Justices point out, it is extremely hard to draw a distinction between suits challenging specific Congressional appropriations as violations of the Establishment Clause and suits challenging executive decisions to spend already appropriated Congressional funds as violations of the Establishment Clause. Further, like Jack Balkin, Dahlia Lithwick and a host of others, I am sympathetic to the argument that the psychological and sociological harms imposed when the government affirmatively disfavors my religion are--given the purposes of the Establishment Clause--sufficiently concrete and substantial to meet standing requirements. More controversially, I am broadly skeptical as to the need for a sharp rule against taxpayer standing; given the nature of many of our constitutional rules, taxpayers often find themselves in a plausibly adversarial position vis-a-vis their government and the benefits of allowing adjudication in such disputes at times substantially outweigh the costs.
All that having been said, the thing that I find strange about the debate is the belief--seemingly shared by all sides of the political spectrum--that there is something anomalous or anachronistic about Flast. Whether commenting in passing ( e.g., David Stras) or engaging the issue more seriously (e.g., Rick Garnett), most people put the burden of proof on defenders of Flast, assuming that a taxpayer is in the same position in an Establishment Clause suit as in a suit under most other constitutional provisions. What's good for the goose is good for the gander, etc.
But there is a very big difference between the Establishment Clause and other provisions of the Constitution: the Establishment Clause is the only Clause in the Constitution that seems to bestow an individual right on individuals in their capacity as taxpayers. After all, the ur-injury against which all modern Establishment Clause claims are reflected is the Establishment of a national church, i.e., the use of federal tax dollars drawn from all segments of the population to support a particular religion. Given the central role the Establishment Clause plays in protecting freedom of conscience and its placement in the first Amendment's list of liberties, the right not to be conscripted into paying such taxes to support an alien religion is as personal a right as the freedom of speech or the free exercise of religion. The fact that a government action impermissibly funding a particular religion violates the individual rights of many, many individuals should not defeat standing, as it would not in a case where the government outlawed all speech critical of the current administration or prohibited the exercise of Christianity.
As anyone who has studied the progression of the cases knows, the coexistence of Flast and a general default rule critical of taxpayer standing is something of an historical accident. That having been said, it is largely a happy accident, fully consistent with an essential difference between the Establishment Clause and other provisions of the Constitution. Another reminder, that sometimes the superficially similar are ultimately meaningfully different.
Tuesday, June 26, 2007
JH Snider, a former fellow at the New America Foundation and the author of the Citizen's Assembly blog (tracking information on developments surrounding the BC electoral innovation) has posted a review of Kevin O'Leary's "Saving Democracy" at The Journal of Public Deliberation. It is titled "From Dahl to O’Leary: 36 Years of the 'Yale School of Democratic Reform.'" Here's a taste:
With the perspective of hindsight, it is now clear that there has emerged a “Yale School of Democratic Reform” (“Yale School”) running from Yale Political Science Professor Robert Dahl (Ph.D. 1940) through a series of Yale Political Science Ph.D. students: James Fishkin (Ph.D. 1975), Ethan Leib (Ph.D. 2004), and Kevin O’Leary (Ph.D. 1989). The students have all scattered to various universities in California, but they have all followed in Dahl’s tracks. The central insight of the Yale School is that a large, randomly selected sample of American voters could be brought together to deliberate in such a way that some of the most intractable problems of America’s representative democracy could be solved. These randomly selected bodies--variously called a “minipopulus,” “deliberative opinion poll,” “popular branch of government,” “people’s house,” and “citizens assembly”--hearken back to the Ancient Athenian Council of 500, which was randomly selected and played a vital role in Athenian Democracy. However, the Yale School does not seek to return to the direct democracy of Ancient Athens. Instead, it seeks to graft these randomly selected bodies onto today’s representative democracy.
I'm honored, of course, to be part of such a "school". Still, about O'Leary's book, Snider and I agree: it is a moderately stimulating proposal (that overlooks many details about how to administer the proposal), written with a journalist's grace. But it lacks a certain "academic" seriousness and is far too dismissive of almost everyone else who has thought in a sustained fashion about the problems the book diagnoses and has offered institutional designs to address those problems. Obviously, an author needn't debate the details of every other competing proposal on the market or provide all the relevant details about how his or her policy plan should be implemented-- indeed, when my book was reviewed in the flagship political science journal Perspectives on Politics, I was criticized for wasting too much time exploring my differences with others who came before me and wasting too much time on developing details for my own imaginary branch of government. But if you want to be taken seriously in a certain community of scholars and intellectuals, it seems you should try to grapple with a few competing ideas, explain why your particular proposal merits special attention, and give the reader enough detail so they can get a good feel for how your imagination is working.
Democratic Institutional Design Revisited
I suppose I think that the only potential disadvantage that flows from Heather's "conservative" vision is that to qualify for the right to weigh in on a reform agenda, one would already need complete bona fides within a subfield. Of course, scholars shouldn't be encouraged to make systematic reform proposals without having a strong background in the area to which they are addressing a proposal. But there are real skills to doing institutional design well, I think, that can be disentangled from substantive area studies. Maybe a good analogy is the new enthusiasm for ELS. It has its own set of methodologies that can be taught and learned. Yet, it is also a "portable" discipline that can be applied to a broad set of substantive areas. ELS types are routinely forgiven for not specializing in one area of law, a freedom few outside of the L&E mold get.
I'm not sure this analogy works but it is what comes to mind in response to Heather's latest set of
reflections and helps me refine what this "democratic institutional design" field could look like. Perhaps it is worth comparing my thoughts here to the debate I once had with Michael Heise (of the ELSblog) about the status of ELS. David Stras has a (sort-of) related post here.
If the Canadian tourist recently "disappeared" in Syria doesn't bother you, then dig into the delicious hummus in Damascus
I've just arrived back in the US after a 12 hour long flight next to a baby and within arm-reach of several noisy toddlers. Lucky me. A couple quick things.
First, I literally cannot believe the NYT published Seth Sherwood's travel puff piece on Damascus this past Sunday. Syria won't let Jews into the country. And for many years, Syria wouldn't let its Jews out. Imagine a state said: sorry, you can't come in, you're black or Muslim or a woman. Would we be interested in hearing about where to get a tasty lamb and baba ganoush combo? Sherwood, who makes no mention of its discriminatory practices, instead talks about how welcoming to Western tourists the country is. (Update: Unless of course, your passport has an Israeli stamp in it.)
I suppose we should credit Sherwood for ambiguating his presence in Syria by noting that some Americans may be wary of visiting a "country whose authoritarian government stands accused of some serious charges — financing Hezbollah, allowing foreign fighters into neighboring Iraq and assassinating the former Lebanese Prime Minister Rafik Hariri." But still, he notes, "a week among the regular citizens of Syria and its cultural riches is eye-opening." Does Sherwood think for a moment that Syria is not critical to the support of the genocidally-intentioned Hezbollah or the destruction of civic life in Lebanon? If so, he should ante up rather than describe a regime that merely "stands accused" of these charges.
This isn't the first time the NYT has seriously goofed. As the writer at ShrinkWrapped notes:
In 1931, the New York Times correspondent Walter Duranty wrote a series of stories about Stalin's Soviet Union which extolled the virtues of the young communist state. He neglected to mention the millions of Ukrainian citizens who died because of a state engineered famine or the litany of atrocities that Stalin has rightly become famous for in the eyes of history. Nonetheless, in a fitting tribute to the nation which gave us the Potemkin village, Duranty was awarded the Pulitzer Prize in 1932. Several years ago the Times missed an opportunity to redress their perfidy and decided to stand by Duranty's "reporting" and keep the Pulitzer Prize. In the spirit of Walter Duranty, the Times appears to be laying the groundwork for a celebration of the state of governance in some unexpected places.
Second, and related to this bout of insanity, I am reminded that I want to recommend a few outstanding pieces I had the chance to read on the long flight back this week. Take a look at Paul Theroux's reportage from Turkmenistan from the May 28th New Yorker, and if you don't have the article at home, check out an interview he did with Radio Free Europe on his experience. Also, be sure not to miss Paul Berman's excellent book-length essay in the New Republic from a few weeks back on Tariq Ramadan and the enablers in the Anglo media (Ian Buruma's NYT Mag piece, etc.) who have treated him far too gently, Duranty Sherwood-esque, perhaps.
P.S. Sherwood's account might possibly be driven not by insanity, but more benignly by what Ian Frazier humorously describes here.
Meet the Roberts Court
I've been unusually quiet during this guest stint, in large measure because for most of the month the Supreme Court has given us surprisingly little to dig our teeth into. Well, all that changed yesterday, with a series of important and contentious rulings. I'll have more to say about the substance of those decisions in the next few days, but this is a macro-post.
Every Court has its own personality, its own themes, and its own cast of characters. We have gradually been accumulating data about the current set of Justices, but until yesterday we remained a bit short on information. Taking yesterday's decisions and adding them to what we already know, here's a brief portrait of the (first) Roberts Court.
Chief Justice John Roberts is a strong conservative leader with firm convictions as to the proper role of the courts and the proper outcome of cases and a willingness to move the Court aggressively towards those goals. His closest ally is his former Reagan administration colleague and fellow new Justice Sam Alito, who he favors with the assignments in the bulk of the 5-4 cases where the Chief cannot or prefers not to take the opinion himself. The two are quite comfortable interpreting precedents narrowly or creating broad exceptions to them, but prefer not to overrule precedents outright.
They can count on the votes (though often not the praise) of their more senior right-wing colleagues, Antonin Scalia and Clarence Thomas. Justices Scalia and Thomas have become--if anything--more aggressive in their desire to overturn precedents that distress them and seem to be relishing the role of guardians of logical and ideological purity. Whether there is genuine tension between the two pairs of conservative Justices or whether their different approaches suggest different roles is a question to be watched. Whatever their intentions, the separate opinions of Justices Scalia and Thomas have the effect of making the opinions of the Chief Justice and Justice Alito look moderate in comparison.
Justice Anthony Kennedy is, as everyone predicted, the fulcrum of the Roberts Court, but he is far from a centrist. While he might on occasion decline to provide a fifth vote for the Roberts-led majority (usually, thus far, in fact-specific cases in the death penalty context), his primary influences are to keep the tone of the majority opinions civil and to write separately to remind us that some of the stronger doctrinal implications of the Court's opinions are not fete accompli.
The four more liberal Justices--John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Steven Breyer--are clearly on the defensive. As many commentators have noted, the four have taken to reading their dissents from the bench (slightly) more often and to signing on to a single dissenting opinion with greater frequency. These signs and the content of their dissenting opinions suggest that these Justices are not simply frustrated by losing a string of close votes, but instead see jurisprudential and thematic connections between the cases that portend further shifts.
Substantively, the Reagan Justice Department is firmly in control. As the documents and the news analyses that got so much attention during the Roberts and Alito confirmation hearings reminded us, the conservative legal leadership that came of age in the early 1980s took its inspiration from the conviction that the Warren and (to a lesser extent) Burger Courts consistently overreached, staking out a role for the courts that is fundamentally inconsistent with a properly functioning republican government.
From the earliest days of the Reagan administration (and the Federalist Society and similar organizations), the attack on the Warren-Burger judicial culture was twofold. First, a particularly offensive set of overreaching precedents needed to be wiped away (led, of course, by the abortion and criminal procedure decisions). Second, and more importantly, the courts--having proven incapable of policing themselves--needed to be restrained by a series of more formal doctrines and devices (new methods of constitutional and statutory interpretations, limits on common law and equitable powers, a strengthened standing doctrine, firm readings of rules and deadlines, etc.).
The results thus far this term suggest the Roberts, Alito, and friends are making progress on both fronts. History is long and winding and it is way too soon to chalk up a victory for the Reagan agenda, but it is hard to imagine the Roberts Court getting off to a better start in that direction. In the end, the proper benediction on the term so far is probably this: the new Justices are as advertised and, so far, they are holding their Court.
Billions for Bong Hits
The play of concurrences and dissents in the Morse case presents an analytic feast that will no doubt keep many 1st Amendment scribes busy this summer. Nobody, however, should miss the stark reality about American government enshrined in the very heart of the Chief's majority opinion and saluted by all others, the war on crime (and its key federal component, the war on drugs) have reshaped the very meaning of education in America.
Like Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U. S. 822, 829-830 (2002), Morse is ultimately as much a case about the level of official hysteria about drugs (and especially marijuana) in America, as it is about any particular clause of the constitution.
Chief Justice Robert's reminds us that illegal drugs have a unique status in American public education.
Even more to the point, these cases also recognize that
deterring drug use by schoolchildren is an important
indeed, perhaps compelling interest....
Congress has declared that part of a schools job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, Brief for United States as Amicus Curiae 1, and required that schools receiving federal funds under the Safe and Drug-Free Schools and
Communities Act of 1994 certify that their drug prevention
programs convey a clear and consistent message that
. . . the illegal use of drugs [is] wrong and harmful. 20
U. S. C. §7114(d)(6) (2000 ed., Supp. IV).
Thousands of school boards throughout the country
including JDHShave adopted policies aimed at effectuating...
Thousands of school boards throughout the country
including JDHShave adopted policies aimed at effectuating
this message. See Pet. for Cert. 1721. Those school
boards know that peer pressure is perhaps the single
most important factor leading schoolchildren to take
drugs, and that students are more likely to use drugs
when the norms in school appear to tolerate such behavior.
Earls, supra, at 840 (BREYER, J., concurring). Student
speech celebrating illegal drug use at a school event,
in the presence of school administrators and teachers,
thus poses a particular challenge for school officials working
to protect those entrusted to their care from the dangers of drug abuse.
Despite billions of dollars in federal messaging on drugs dutifully passed on by financially strapped school administrators (and worried about constantly by high school principals like Deborah Morse) this federal crusade has apparently had virtually no impact on the behavior of American high school students. Chief Justice Roberts cites federal studies showing "About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Id., at 99. Nearly one in four 12th graders has used an illicit drug in the past month. Id., at 101. Some 25% of high schoolers say that they have been offered, sold, or given an illegal drug on school property within the past year."
But billions of wasted tax dollars is par for the course, more alarming is that the very purpose of education has been changed to make repression of illicit drug use a core part of the educational mission of schools. This is governing through crime and the damage it is doing to our core institutions from schools to our constitution is one lesson from Morse et. al. v. Frederick (2007).
Monday, June 25, 2007
Hasen on Campaign Finance Deregulation
McGinnis and Rappaport Reply
McGinnis and Rappaport have just posted a reply on Northwestern's Colloquy to my criticism of their article on supermajoritarianism and originalism. Nothing terribly suprising there. I guess I'd say they've mischaracterized the nature of my critique here and there -- but, then, they'd say I've mischaracterized portions of their argument here and there.
One substantive point that I think they have right is that, at points, I didn't carefully enough highlight that they focus on supermajoritarian voting rules rather than any enactments that happen to achieve supermajority consensus. I certainly knew that that was their focus but I should have been clearer about why I sought to have them explain why laws that achieve supermajoritarian agreement might not rest on a similar footing. I don't think their response on this score is perfect, in any case -- it can't just be the voting rule that ensures legitimacy (for the voting rule can also lead to compromises no one really wants), and at various points in the original essay something seems to follow from the achievement of agreement and consensus itself.
One substantive area to which I was suprised to see that they didn't respond was what to do about their belief in other articles that the ordinary law-making process is itself substantially supermajoritarian. If they were right in 2002 that all law is meaningfully supermajoritarian, how can we distinguish between the two kinds of "entrenchments" and their respective legitimacy? They sort of have an answer here, but not one that seems deeply principled. If it is supermajoritarianism (in voting rules) itself that confers some form of "super-legitimacy," it still seems to stand to reason that all law is a form of norm entrenchment. If that is right, they still have some explaining to do.
In any case, nothing that merits further replies from me. I think the exchange was productive for all parties concerned and leave to readers to determine who has the better argument.
First Amendment Day at the Court
Today, the Court handed down decisions in Hein (taxpayer standing in Establishment Clause cases), Morse ("Bong Hits 4 Jesus"), and Wisconsin Right to Life ("issue advocacy" under the BCRA). (Marty Lederman has some preliminary thoughts over at SCOTUSblog.)
Two quick ones of my own: First, I was pleased to see that the Court declined in Hein to extend the Flast exception. This is not to disagree with Marty, or Justice Scalia, and assert that the resulting state-of-the-law is coherent. As I've suggested before (here and here), it is more that I do not see why -- Madison notwithstanding -- the injury alleged by taxpayers in Establishment Clause cases should be treated differently, for standing purposes, than the injury asserted by, say, an enumerated-powers hawk.
Second, I share the concerns Justice Alito expressed -- concurring in Morse -- about the "advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school's educational mission." As he observed, "[t]his argument can easily be manipulated in dangerous ways[.]"
Unions as Businesses, Not Democracies
The Employee Free Choice Act (EFCA) is scheduled for a vote in the Senate tomorrow. The Act has already passed the House and thus far has 46 Senate co-sponsors. Although the bill has three sets of reforms, the focus has been on the bill's "card-check" option for union certification. The National Labor Relations Act (NLRA) currently requires that employees choose union representation through a secret ballot election (unless employers waive that requirement). The EFCA would allow a union to be certified by presenting cards signed by a majority of employees stating that they wanted to join the union.
Opponents of the bill, such as Secretary of Labor Elaine Chao, have argued that the card-check provisions are undemocratic. As she argues: "It is no secret that maintaining the integrity of free and fair elections depends, in part, on maintaining the right to cast secret ballots. . . [But] Congress, at the behest of organized labor, is preparing to undercut the ability of workers to vote in secret ballot elections." It has been interesting in the past week to see so many market proponents drape themselves in the flag of democracy when it comes to unions. This rhetorical move may seem satisifying, but I believe it is short-sighted. Ultimately, it would make more sense to start treating unions not as political democracies, but rather as businesses within a specialized service industry.
Why is a secret ballot election so important in the union context? Basically, opponents of the EFCA make two arguments: (1) secret ballot elections are necessary for a democracy, and (2) secret ballot elections prevent employees from being coerced into signing cards. But these arguments misconstrue the nature of the representation decision. The secret ballot election here is not used to elect leaders; it is instead used to make a collective choice about a purchase of representation services.
Unions have long held a special place in the hearts of those who believe in a kinder, gentler economy. But the reality is that unions are service providers, just like lawyers, HMOs, and cable operators. They are big, financially-savvy organizations that send their salespeople (organizers) out to sign up new customers (members). When employees sign up to join a union, they are really signing up to pay a service fee (dues) in exchange for collective representation services. Just like many other industries, these services appeal to certain groups and have an ideological cast to them. But this doesn’t change the fact that unions are businesses, and we need to start thinking of them this way.
For a true market supporter, the EFCA card-check provisions should not be a problem. Why shouldn’t unions be able to sign up members just like any other service provider? After all, a home buyer isn't required to let the seller campaign against the buyer's choice of a realtor. If employees want the services that a union will provide, then they should be able sign up for those services without running the employer’s gauntlet. Union skeptics would thus be best served by dropping “democracy” and pursuing a consumer-protection approach. Unions are certainly not the only industry in which coercion may potentially be used to influence a purchasing decision. Why not handle this coercion as it would be handled in any other consumer context? If salespeople use force or intimidation to get you to buy their product, they can be fined or put in jail. Those who fear union coercion should be advocating for similar penalties – not secret ballot elections.
Union advocates and opponents fall predictably into a set of policy responses that were set back in the 1930s. It’s time for some fresh perspective. A competitive, market-oriented perspective on labor unions is not knee-jerk pro-union or pro-employer. Instead, this approach would free (and force) unions to be what they really are: market players in an era of dynamic, fluid, and rough-and-tumble capitalism. Rather than fighting for the secret ballot election, market supporters should look to bring market principles to bear in developing a new approach to union regulation. For those who are interested in this approach, I develop it further with respect to union representation elections in Information and the Market for Union Representation.
Democratic Institutional Design, Not Just a "'Here to There' Election Process Reform Subspecialty"
I have been following with interest Heather Gerken's series on Balkinization about how election law specialists need better "here-to-there" strategies to reform our electoral processes. Indeed, I find many of her design proposals innovative, stimulating, and, ultimately, persuasive. What I don't find quite as persuasive is her need for "a new specialty in election law -- the electoral reform process -- in the hope that academics will someday be as likely to claim it as a specialty as they are to assert expertise in campaign finance, redistricting, or any of election law's other subfields."
On this last question, Bruce Ackerman has it exactly right: The idea that legal scholars should focus substantial energy on developing democratic reform proposals is important to the legal academy more generally. Democratic institutional design (and even constitutional design) is a much broader field than election law or electoral process reform -- and there is no good reason, it seems to me, to define a new academic subspecialty within election law to accomodate and promote this kind of scholarship.
That said, I do agree that there is a need to allow those of us interested in public policy and institutional design within the legal academy to come out of the closet. We tell law schools that we'll teach Con Law, Election Law, Legislation, whatever. But many of us have our hearts in a conversation in the academy for which few courses are well-designed. In graduate school, I took a course with Ackerman called "Theory & Practice." It was there that I got my first book off the ground -- an exercise in institutional imagination that one delightful and anonymous student called "fairyland bullshit" this semester. Although my fairyland bullshit proposal has admittedly had little traction in the United States, scholars and public policy makers in China, South Korea, Vietnam, and Australia have shown real interest -- and it has successfully resonated with citizens in those countries as well. Nevertheless, many within the academy have had the same reaction as my delightful student -- and it would be helpful for those of us who work in these areas to be able to say without shame that we are interested in the design of democratic institutions. We probably need a more elegant name for this type of scholarship than "Theory & Practice;" "Democratic Institutional Design" is my current placeholder. Whatever we call it though, I would hope it wouldn't be "merely" an election law subspecialty.
Sunday, June 24, 2007
Letters from Exile
Beginning your career as a new prawf can be a difficult endeavor. To fulfill our academic dreams, many of us have moved all over the country, left behind family and friends, uprooted spouses and children, and said goodbye to beloved haunts and byways. A full calendar year after doing all of the above, I still wake up some mornings and think: "Do I really live in Oregon? Huh."
Of course, this is not exactly a new problem, nor is it confined to the academy. Wiser heads than mine have tackled these issues and come up with some excellent guidance on how to live life when--not to put to fine a point on it--you initially feel like you've been transplanted to Mars. Today, I offer two of these sages: Ovid and Miss Mentor.
Age before beauty--so let's start with Ovid. As I'm sure all of you remember from your ancient history class, Ovid was a Roman poet exiled by Augustus for his scandalous love poems. Unceremoniously ejected from Rome, Ovid was permanently banned from ever returning, and forced to live in the "barbarous lands" of Tomi, well outside the pale of Roman civilization.
His response to all this upheaval? Writing some of the finest poetry ever written about the changes in his life (in my humble opinion): Tristia, or Letters from Exile. Here's a sample:
[N]ow the journey’s done, the toil is over
and I’ve reached the country of my punishment,
only grieving pleases,
there’s no less rain from my eyes,
than water from the melting snow in springtime
Rome's in my thoughts, and home, and longed-for places
whatever of mine remains in the city I’ve lost (Tristia, Book 2).
Powerful stuff. The irony is, of course, is two-fold; (1) Tomi was not nearly as bad as Ovid made out, especially after he acclimated to it; and (2) his fame only increased after his exile spurred him to write these poems. So clearly there's a lesson there for all of us.
Sage #2 is Miss Mentor, whose advice column can be found in the webpages of the Chronicle of Higher Education. Miss Mentor, also known as Emily Toth, dispenses advice on all sort of academic affairs, and I highly recommend perusing her old columns, which include such perennial topcis as mean search committees, tenure-track anxiety, dysfunctional departments, what to wear, and--oh dear--getting in trouble for blogging. Naturally, she's written a fine column discussing academic relocation as well. Here are some excerpts:
Ms. Mentor has long been intrigued by the yearning and moaning of certain academic personages. Like latter-day Romantic poets, they look before and after, and pine for what is not. Or they imagine themselves as brilliant flowers, wasting their sweetness on the desert air.
But Ms. Mentor reminds her readers that the Romantic poets had a habit of dying young -- which made them poor candidates for tenure. New academics would do better to follow Lenny Bruce's blunt advice: "Time to grow up and sell out."
More gently, Ms. Mentor exhorts fledgling faculty members to ponder which is more important: the place or the profession? Rare is the soul who can get both. Will you move to wherever a tenure-track job surfaces, or would you rather be a clerk in Seattle than a professor in Saskatoon?
The rest of this wise and very funny advice can be found here.
Hopefully none of you will need any of this guidance--but if you do, remember: there are far worse things than being the next Ovid....
Welcome to Prawfs.com and L'hitraot to Israel
Though it's the last full day of my wonderful trip to Israel, I thought I'd quickly note that in addition to having our blog's name blazed in klieglights and affiliated with delicious pancakes, we now also have a much easier way to find our address on this whole world wide web thingy: just go to prawfs.com and you will find the commentary fix you're jonesing for on a daily basis.
Once again, that's prawfs.com. Pass it on...
Special thanks to all my hosts in Israel who made my stay so enjoyable and intellectually profitable: Tal Zarsky and Avishalom Tor at Haifa, Michael Oren from the Shalem Center, Avi Bell, Assaf Hamdani and Gideon Parchomovsky at Bar Ilan, Alon Klement at IDC, Doron Teichman at Hebrew U, and Tali Fisher, Ariel Porat, Shai Lavi, Issi Rosen Zvi, Yishai Blank, Aeyal Gross, and Hanoch Dagan at Tel-Aviv University.
Saturday, June 23, 2007
Chinese cities flesh out sexual harassment laws
China has been importing many aspects of foreign legal systems in order to make itself more attractive for investment. Chinese cities and corporations are taking the latest step in this process by prohibiting sexual harassment. Although China banned sexual harassment in 2005, the amendment to the 1992 Law on the Protection of the Rights and Interests of Women failed to define the term. As the Christian Science Monitor reports (http://www.csmonitor.com/2007/0606/p07s02-woap.html), "Aware that many of the city's female residents have been victims of unwanted sexual advances, Shanghai has become the first city in China to define what constitutes sexual harassment.
It is the latest in a series of moves by the central and local governments to update the legal system and provide a stronger foundation for the country's burgeoning economy. Protective of its position as one of the world's premier destinations for international business, Shanghai sees itself as a companion to New York, London, and Hong Kong and has decided that it needs the institutions to match."
Read the Statute?
Legislation teachers all over the country instruct their students to "read the statute, read the statute, and read the statute." But what do we mean when we issue to our students this seemingly uncontroversial command? Most of us probably tell our students to focus on the language of the US Code; that's what the Bluebook wants as a first cite when we cite statutes. But an illuminating article by Tobias Dorsey in the current issue of the Green Bag suggests that it may be misguided to focus on the US Code to the exclusion of the Statutes at Large, where "real" law appears. It turns out that the US Code is not quite "law" as Article I, Section 7 imagines it: only the versions that appear in the Statutes at Large actually pass through bicameralism and presentment. The US Code is drafted by some congressional functionaries after the real law is passed; the functionaries try to make the Code seem coherent by reshuffling and reorganizing sections, and cutting and pasting.
But can't Congress reasonably delegate this ministerial task (of, say, incorporating amendments into old statutes)? I'm not sure. At least for the textualist who focuses on Article I, Section 7, it seems that interpreters must look at the Statutes at Large rather than the US Code. It isn't mere formalism to be concerned about these "translations." Yet, as Dorsey shows, virtually no one reads the Statutes at Large anymore. Scalia himself has forsaken them for the Code.
Although it isn't available online (for free), track down the essay. It will certainly change the way you think about the US Code.
Friday, June 22, 2007
Text and Intent in Tax Compliance
So two stories today remind me of a paradox in tax code interpretation that I hope to write about one of these days.
The first story is about the Blackstone IPO, which raised $4.13 billion dollars this morning. I blogged last week about the interesting tax twist on this deal, which can be loosely summarized as Blackstone utilizing a loophole that follows the statute's text but not Congress's intent with that text.
The second story involves the alternative minimum tax or AMT. Even most non-tax people these days seem to be aware of the AMT -- the alternative, secondary tax calculation that originally was intended to ensure that a small number of very wealthy people who employed certain tax benefits to avoid liability under the regular income tax laws still pay some amount of income tax. For several reasons, millions of taxpayers now find themselves within the scope of the AMT, and there have been innumerable op eds, articles, economic studies, and other commentaries published about the AMT problem. Today's story involves a nurse from New York City who works two jobs plus nights, weekends, and overtime to earn $121,000 to support his elderly parents. He owns his own home, gives a little to charity, but otherwise his return is pretty straight forward and run-of-the-mill. We can argue over what qualifies as wealthy, but most people would not consider this guy in that class. (At least, he's not the sort of millionaire with little or no tax liability the AMT was originally intended to capture.) Nevertheless, he fell within the scope of the AMT. While he conceded that the tax code's text subjected him to the AMT, he argued that he should not have to pay the AMT because Congress did not intend for the AMT to hit working class guys like him. In an opinion that should surprise no one, the Tax Court held that the guy has to pay the AMT.
Many people argue that, in cases like the Blackstone IPO, congressional intent should trump statutory text in applying the tax laws. But in the case of the nurse, the government's argument is that statutory text trumps congressional intent. The most obvious way to reconcile these two positions is outcome-oriented revenue maximization rather than a more principled approach to statutory interpretation. Of course the reality is more nuanced. Nevertheless, I wonder whether even the apparent inconsistency is enough to undermine faith in the tax system generally.
Warren on the Credit Market
When Democracy announced its intention to start yet another "journal of ideas," I was skeptical. But they sent it to me for free anyway and I got around to reading most of the issues. In their first anniversary issue just now out, I think they are really hitting their stride. William Galston on doubt; Rauch on gay marriage; Schuck on Rodriguez.
But the article I like best in this issue is Elizabeth Warren's Unsafe at Any Rate, an argument for why financial products should be regulated just like consumer products so that purchasers/borrowers don't come to ruin from using them. As she argues, we don't let people buy toasters that burst into flames, so why should we allow so many predatory lending practices that ruin people's lives? The essay is perfectly suited to a first-year contracts class: I plan to assign it around the time we do unconscionability next year. Contracts teachers tend to focus on the rent-to-own market because that is the context for the famous Walker-Thomas case. But our students are much more likely to be victims of predatory lending (through the credit card, student loan, and mortgage markets) than they are likely to be victims of the rent-to-own scene. Accordingly, I think it would be nice to have a conversation about contract regulation than might hit closer to home and that raises substantially more complicated political economy problems.
Last night, I was working my way through some back issues of the New Yorker, which collect in a giant pile on my bedside table until my wife finally relocates them to the recycling bin, and came across a funny Shouts and Murmurs item called "My Undoing." If you're a conference/symposium/colloquium junkie like me, you'll be amused. If not, you may be mystified. I link it for your consideration. And while I'm at it, I'll link one of my own efforts at academic satire which ran a good number of years ago in the Journal of Legal Education, entitled "A Tribute to Webster Boudreaux."
Thursday, June 21, 2007
Ric Simmons of Ohio State has recently posted a paper on SSRN discussing private justice, and linking it to the failure of public criminal justice. Simmons traces the privitization of law enforcement and the rise of restorative justice to this failure. Although I'm not sure I agree with Simmons about the positive aspects of law enforcement privitization (although I'm all for more restorative justice), it's a really interesting article. It can be found here.
Great Advice for Teaching Basic Tax
Prof. Jim Maule (Villanova) has a great series of posts over at his Mauled Again blog that I highly recommend for those who are new (or not so new) to teaching the basic taxation course, or to a lesser extent any intro course on a heavily statutory/regulatory topic. Anyone who teaches one of these courses can attest to the difficulty of getting students steeped in common law development through appellate court opinions to focus on statutes and regulations. Teaching basic tax suffers, too, from the attitude of fear with which many students approach the tax system, combined with the financial inexperience common among students who have never held a permanent, full-time job, owned a home, had a child, etc. -- all life experiences addressed by various provisions in the Internal Revenue Code. Jim offers several suggestions for helping students connect with such material. Thanks, Jim.
Conglomerate Junior Scholars Workshop
Yet another variant of the junior scholars workshop kicks off Monday over at the Conglomerate. (Details here and here.) It strikes me that the Conglomerate's format requires a more intestinal fortitude than the usual physical workshop, though. Your standard junior scholars workshop is a pretty safe space to share your work with a small group and get useful feedback. I have used junior scholars workshops to test drive and sharpen drafts in progress before posting them on SSRN for all the world to see. But because the Conglomerate's workshop is online, participants must both post their unfinished work and accept commentary publicly. So kudos to the Conglomerate folks for taking the time to coordinate and host this workshop. But an even bigger huzzah for those intrepid junior scholars willing to put themselves and their unfinished work out there: David Adam Friedman, Miriam Baer, Trey Drury, Sasha Volokh, Darian Ibrahim, and Bridget Crawford. Check it out, starting next week.
Making Sense Out of the Iraqi Detention Cases
[Cross-posted from Concurring Opinions]
As Lyle noted on Tuesday over at SCOTUSblog, the first Iraqi detention case has made its way to the Supreme Court, with the filing of the cert. petition in Munaf v. Geren. Given that the hypertechnical issues raised in the cases might make it somewhat difficult to appreciate the full scope of what is at stake, I thought I'd add my own two cents on why Munaf is such an important case, both with respect to clarifying the D.C. Circuit's messy case law, and with respect to (finally) dealing with the Supreme Court's 1948 decision in Hirota v. MacArthur, either by limiting it to its narrower holding, or by doing away with it altogether.
More below the fold...
The Basic Issue:
The central question raised by Munaf is under what circumstances, if any, the federal courts may exercise jurisdiction over habeas petitions brought by individuals detained by the Multinational Force-Iraq ("MNF-I"). Critical to understanding the complexity of this question is understanding the two central variables:
- Is the detainee a U.S. citizen or a non-citizen?
- Is the detainee being held pursuant to a conviction by the Central Criminal Court for Iraq ("CCC-I") or not?
Thus far, U.S. courts have considered three of the four possibilities raised by the above two variables.
The Omar case (Omar v. Harvey) involves a U.S. citizen held by the MNF-I, but _not_ convicted by the CCC-I. Indeed, Omar sought a preliminary injunction _barring_ his transfer to the CCC-I, which the district court granted in February 2006, and which the D.C. Circuit affirmed earlier this year (before denying the government's petition for rehearing en banc).
The Munaf case (Munaf v. Geren) involves a U.S. citizen held by the MNF-I _pursuant to_ a conviction by the CCC-I. Munaf's habeas petition was dismissed by the district court last summer on jurisdictional grounds, and the D.C. Circuit affirmed the dismissal (although divided as to whether the affirmance was on jurisdictional or merits grounds) in April of this year. The cert. petition filed earlier this week (and thoroughly described by Lyle) seeks review of _that_ decision.
There have also been a handful of cases brought by _non-citizens_ held by the MNF-I pursuant to a conviction by the CCC-I. Most prominent among them is the last-minute stay application filed by Saddam Hussein, which the D.C. district court dismissed on jurisdictional grounds last December. Other cases, including, most recently, Ramadan v. Bush, have met with a similar fate.
Finally, to my knowledge, there has not yet been a case brought in U.S. court by a non-citizen detained by the MNF-I, but not pursuant to a CCC-I conviction. Or if there has been, I am unaware, as yet, of any rulings in such a case.
Distinguishing Among the Cases--What About Hirota?:
In all of the cases described above, the government has argued that federal jurisdiction is precluded by the Supreme Court's 1948 decision in Hirota v. MacArthur. As many readers know, I have an article hot off the presses (see 95 Geo. L.J. 1497 (2007); not yet on Westlaw) about Hirota and its relevance to the pending cases. To spare you the punishment of reading it, let me suggest three questions that make clear why Hirota's application to these cases presents such a doctrinal morass:
1. Did Hirota turn on the absence of _all_ federal jurisdiction, or just the Supreme Court's constitutional "appellate" jurisdiction?
Although Munaf has argued, rather forcefully, that Hirota concerned only the narrow question of the Supreme Court's jurisdiction to entertain an "original" habeas petition, and not the availbility more broadly of _all_ federal jurisdiction, the D.C. Circuit subsequently held, in a 1949 decision called Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949) [not available online], that Hirota also applied in the lower courts. Judge Tatel seized upon this point in Omar, noting (correctly, I think) that Flick, so long as it remains on the books, compels the answer to this question even if Hirota itself does not. [Note: The per curiam opinion in Hirota, as I explain in my article, reflected Justice Black's apparent insistence that it not explicitly rest on _either_ jurisdictional defect, which makes this that much thornier.]
2. Did Hirota turn on the citizenship (or lack thereof) of the petitioners?
The second argument advanced in Omar and Munaf for distinguishing Hirota is that Hirota was a non-citizen, and the federal courts _must_ have jurisdiction over such petitions where citizens are concerned. While this argument is obviously a compelling one as a policy matter, it's a lot more dubious as a matter of constitutional law, for reasons I try to suggest in my article (and which Judge Lamberth explains more succinctly in the district court decision in Munaf, and Judge Brown hints at in footnote 1 of her dissent in Omar). Whether Hirota concerns limits on the Supreme Court's constitutional appellate jurisdiction, or on Article III more generally, it is dubious to read a citizenship-based distinction into the limits on federal question jurisdiction contemplated by the Constitution. Indeed, Justice Douglas, in his post hoc concurrence in Hirota, seemed to agree that whatever rule the obtuse per curiam in Hirota stood for, it was one that would apply equally to citizens and non-citizens alike. [Note: This result is exactly why I think Hirota must be overruled, but I'll come back to that shortly.]
3. Does Hirota only preclude jurisdiction over "collateral" (or "post-conviction") habeas petitions?
This last question, although the "smallest" as a constitutional matter, is the most significant in the current cases, for it is the _only_ basis for distinguishing Omar (in which the D.C. Circuit upheld jurisdiction) and Munaf (in which it rejected jurisdiction). The problem, as I explain in the article, is that the suit in Hirota wasn't, in fact, a "collateral" challenge to Hirota's conviction by the Tokyo war crimes tribunal (indeed, it is important to remember that Hirota was decided _before_ Brown v. Allen, which first threw open the door to federal consideration of collateral habeas petitions). Precedents from the Civil War already established that federal courts only had jurisdiction to inquire into the jurisdiction of military tribunals, and so Hirota could have relied on those cases if it was rejecting jurisdiction on the ground that the lawsuit sought post-conviction collateral relief. But in reality, Hirota's petition challenged the jurisdiction of the IMTFE, and the constitutionality of General MacArthur's participation therein. Hirota may have had no case on the merits, but the Court's dismissal for want of jurisdiction suggests that Hirota applies even to "jurisdictional" habeas petitions, and that it therefore does not distinguish between whether the petitioner is seeking post-conviction relief or not.
To whatever extent the above analysis makes sense, it should suggest that the D.C. Circuit's decisions in Omar and Munaf are completely irreconcilable, and that Hirota, read together with Flick, _does_ preclude jurisdiction over the petitions in both (indeed--all) cases. To me, that's a compelling argument for overruling Hirota, or at least Flick, but even to those who might disagree (and, to be clear, I don't mean to suggest that the petitioners in these cases will prevail on the merits; only that the courts should _reach_ the merits), it strikes me as a compelling argument for the Supreme Court to grant certiorari and clean up this mess.
Wednesday, June 20, 2007
Chambermaid: I'm Sorry I Read It
The legal blogosphere has been tittering in anticipation of Saira Rao’s alleged roman à clef, Chambermaid. Rao is a former law clerk to Judge Dolores Sloviter of the Third Circuit, and her publisher has positioned the novel as doing for judicial clerkships what The Nanny Diaries did for au pairs and The Devil Wears Prada did for fashion magazines. A plucky ingénue lands a dream job, only to discover that she is working for a madwoman. Incidents of deliciously outrageous abuse follow, their deliciousness enhanced by the thrilling possibility that some of them may actually be true.
I was particularly eager to read Chambermaid:I also clerked on the Third Circuit, and clerks being inveterate gossips, my co-clerks and I would sometimes hear juicy Judge Sloviter stories, of varying plausibility. I was curious to learn which of them had some basis in fact—or, at least, to learn which of the rumors Saira Rao had also heard. I’d also enjoyed Kermit Roosevelt’s In the Shadow of the Law and Jeremy Blachman’s Anonymous Lawyer, both of them nicely observed novels about young lawyers adrift in hilariously amoral environments, so I was hoping that Rao had added to this particular genre of legal literature. I was too optimistic.
The book is an abomination, one of the worst novels I have ever read, both artistically and morally. The affected style, which runs the gamut from “cutesy” to “bench memo,” would be forgivable if the substance weren’t so dreadful. It all comes down to characters. In the Shadow of the Law works because Roosevelt has an affectionate warmth for his falliably human characters; Anonymous Lawyer works because Blachman wholeheartedly embraces the cartoonishness of his exaggerations. Chambermaid falls in the unpleasant gap between; it features characters doing and saying things one could just about imagine real people doing and saying, for whom the reader is nonetheless expected to feel contempt.
At the center of it all is a monster—and I’m not referring to “Judge Helga Friedman.” I hope that the narrator, “Sheila Raj,” is not a stand-in for the author. Sheila is a raving narcissist, for whom all affronts are created equally annoying. Here are a few examples of what the world looks like through her dismissive eyes:
- “Why had nobody invited me? I was wearing a cute outfit and had great hair. What was the matter?” (11)
- “I was suddenly intrigued. A real-life lesbian! And she was my coclerk. I would actually have a lesbian friend! [My sister] had recently convinced me that lesbians were more fabulous than gay men.” (23)
- “But even Eddie wouldn’t talk to Medieval Roy, who was sedulously watering the judge’s plants. While the mere existence of Roy was depressing enough to make a chicken want to cut its own head off, there was something particularly sad about him watering the judge’s plants. It was inexplicably extraspecial demeaning. . . . I couldn’t mask my pity.” (79)
- “Thanks to her morning conversations with Eddie and my excellent eavesdropping skills, I was able to piece together one sad story. Janet was a devoutly religious Bible banger who spent Sundays passing around collection baskets at her church. She had moved into her parents’ house in the suburbs after a dicey divorce years earlier. While her parents were long gone, her brother was still there. Brother and Janet were in their fifties and both still single. I wondered if incest was banned by the Ten Commandments.” (81)
- “Evan was the greatest jackass ever to have lived. It was a small wonder that some beefcake hadn’t pummeled him to death in college. As for the judge, she was most definitely insane. I couldn’t be more sympathetic to the victims of the internment, but her sheer audacity! She’d spent her day eviscerating two of her law clerks, and now she was crying for Japanese victims from five decades ago?” (92)
- “Betsy had gone to Duke and emitted a casual, borderline pleasant vibe, a double anomaly considering most Dukies and law clerks seemed to be jerks by definition. Whereas Harvard churned out irritation, Duke manufactured arrogant monsters who were simultaneously not the brightest bulbs in the box. Mean + kind of dumb = intolerable. At first blush, Betsy seemed to have skirted Duke’s dim fate. Not to mention, she had pretty hair.” (112)
- “‘My husband, Tom, and our dog, Linus, and I, um, live out in Wayne.’ I nodded, feigning I knew (or cared) where Wayne was. To me, suburbs were suburbs and I couldn’t be bothered with distinctions, especially because the chance of my ever going to any Philadelphia suburb was about as great as the judge ever returning from her time with [her husband] as Carol Brady.” (119)
You get the picture. Convention demands such quips of the villain, not the heroine. A pot living in a glass house would be in a better position to offer criticism.
Which brings us to the supposed point of the novel: Judges Behaving Badly. Helga Friedman is mercurial, and certainly has her share of over-the-top moments. She forbids her clerks lunch, screams over every imperfection in their work, orders them in to work in a blizzard, and literally draws blood. She throws her weight as a FEDERAL JUDGE around at every opportunity, traffic accidents particularly included. She seemingly lives for nothing more than torturing her clerks and demanding praise from all she meets.
But as the novel progresses, something odd happens. The character assassination against Judge Friedman becomes just too much. Raj’s life is pretty good, all things considered. Her hours aren’t particularly bad as clerkship hours go, the work itself is interesting enough, and while she may or may not get that dream job with the ACLU, even she acknowledges that it would be a rare accomplishment to land it. Her family loves and supports her; she always has at least one good friend nearby; she’s never threatened with any serious corruption of her values. Nor, beyond living in a slightly skeevy neighborhood, does she ever risk forfeiting her educational, economic, and social privilege. The indignities of life in Friedman’s chambers come to seem like just so much white noise, nothing one couldn’t endure for a year with a half-grin and a lot of shrugs. Which, actually, is more or less what Raj does.
In the face of Raj’s whingeing, Judge Friedman slowly but surely emerges as the most sympathetic character in the book. Her outbursts come to feel less and less like conscious statements and more and more like things she has been ordered to say for narrative expedience. The tyrant is a marionette. It’s like watching a bear-baiting or a snuff film: raw cruelty on display.
In the novel’s climax, the judge’s husband dies after long illness, and the cognitive dissonance of the grotesqquery overwhelms the putative narrative. According to Raj, Judge Friedman works all through her husband’s illness, curses out his doctors, then dragoons her clerks into organizing a shivah. The shivah scene itself is a nightmare. The judge reads a prepared speech about her husband’s archaeological work; other relatives manage to soil both themselves and Friedman’s clerks with not one but two forms of bodily waste.
By the end of this abasement, a counter-narrative has all but driven the official one from the stage. A distraught woman screams at her husband’s doctors with hopeless hope to plead for any chance to save him. When he wanders off, naked and disoriented, she is unable to deal with the pain of seeing this brilliant former scholar reduced to such a state. She throws herself into her work but can’t keep the grief from breaking through. Her family, never much given to public displays of affection, struggles awkwardly through the shivah, not knowing what to say. And her clerks are too busy flirting with each other to give the deceased’s sister an honest answer about whether the bread is wheat-free, leading directly to severe digestive trouble.
Helga Friedman is a tragic figure, a top-notch judge whose body is breaking down, increasingly alone, and tormented at every turn by a narrator intent on stripping every shred of dignity from her. Why do we need disgusted descriptions of this poor woman’s dental bridge, or her orthotic shoes, or her hairbun, or the sight of her half-clothed body, or her husband’s underwear? Chambermaid invites the reader to see a human being as physically and spiritually ugly—and then to laugh. By the end, the only humane response is to turn and walk away. Perhaps this is the response Rao wishes her readers to have, but I doubt it.
It is beside the point to ask what relationship this act of cruelty in novel form bears to reality. I stopped caring which incidents were true and which invented within a few dozen pages. The best metaphor for Chambermaid may be the very clerkship form Hell it purports to detail. I wanted very much to enjoy this novel, or, failing that, to learn from it. I did neither. Instead, I found myself counting the hours until I could put it behind me, when the degradation would at long last be over.
The Other Half of "Borking"; Or, With Friends Like These...
Over at the VC, Ilya Somin writes about what he would like to ask Robert Bork at an upcoming conference on Bork's work in which both Somin and the judge will be participating. Somin writes that he plans to ask Bork whether "his views on legal and/or political issues changed as a result of the ordeal he went through during his ultimately unsuccessful Supreme Court nomination process." In other words, was Bork radicalized by the scorching (and, in my view, often unfair) criticisms Bork received in the course of the nomination process?
It's a good question, although I'd be surprised if the judge says anything terribly revealing in response. I think Somin should also consider the other half of the question, though: Did Bork's views change as a result of the support he received during the course of the confirmation process? In the wake of such controversies, people often consider the ways in which vehement criticism can alter one's views, usually by hardening them. Less often, though, do they consider the ways in which the equally vehement praise and support the subject of a controversy receives from his confreres and political allies, who have themselves been whipped into a lather by the other side's vehemence, may similarly harden one's views. Of course, this isn't limited to one side of the political divide -- to the contrary, the political divide depends on such controversies, and the views of individuals on either side may be reinforced, or distorted, depending on how you see it, by this dynamic. I think here of the Dixie Chicks.
I imagine it must be nearly impossible to stay centered in the face of such public storms, simply in light of the large number of people in this fine country. Imagine being the center of a public debate about which 99 percent of the country couldn't care less. Then imagine that only one percent of the interested one percent of the population is moved to write a letter, or a blog post, or what have you, expressing their views, pro and con -- in other words, some 30,000 missives. It puts Miracle on 34th Street to shame. Add the klieg lights, the hostile interlocutors at the hearing, the equally large horde of people telling you you're absolutely right; mix and stir. The result: no matter how many people are altogether indifferent to you, you are at once convinced that you are hated by a vast horde of people, and equally convinced that you are vindicated by the enormous wave of support you have received. I can't imagine that anyone could easily retain their equilibrium in such circumstances. So, to modify Prof. Somin's question, the question is not just whether Judge Bork (or Natalie Maines, or the object of controversy du jour) was radicalized by his adversaries, but whether he was radicalized by his friends too. I must add, to further throw cold water on Prof. Somin's question, that I suspect the actual subjects of controversy, like Bork or Maines, are among the least reliable witnesses on such matters.
I sure hope my town doesn't have this ordinance
Feige on Nifong, Prosecutorial Misconduct & Attorney Discipline
I caught an interesting piece on Slate this morning, “One-Off Offing,” written by David Feige, whom I met during our days as public defenders in the Bronx. David writes about Mike Nifong’s disbarment following the Duke rape case debacle, and argues that “you won’t see a disbarment like Mike NiFong’s again,” because “it is tempting to chalk the whole incident up to an unusual and terrible mistake — a zany allegation taken too seriously by a run-amok prosecutor.” In reality, David opines, “[p]rosecutors almost never face public censure or disbarment for their actions,” and “the [Duke case] drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.”
David writes a sharp, insightful piece, and I don’t dispute his points that prosecutorial misconduct happens too often and that the legal profession has been unfortunately disinclined to treat even serious instances of prosecutorial misconduct as a disciplinary issue. But, I think David may overstate his case for prosecutorial misconduct in a way that undercuts the strength of his overall position.
David’s Slate piece may convey the impression to many readers that shady practice is the cultural norm for many if not most prosecutors — an impression consistent with the impression he often coveys of the criminal justice system as a whole on his blog, Indefensible, and in his identically-titled book describing his practice experience in the Bronx. David acknowledges in his Slate piece that that “[h]ow often [misconduct] actually happens is hard to say,” but he suggests that “in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don’t arise.”
I practiced from 1994-2005 as a public defender in the Bronx and Manhattan, where David practiced too, and I simply have a different big-picture impression of prosecutors. Prosecutors are asked to strike a pretty tough balance: vigorously advocate against the guilty, but remain objective and even non-committal too, so as not to overlook evidence of innocence or mitigation. I have thought that some defense attorneys too easily criticize how most prosecutors conscientiously endeavor to strike this balance that the defense bar itself is not asked to replicate. In my experience, most prosecutors work very hard to achieve a fair balance, and generally do a pretty good job at it — even in the many cases where I disagreed in some way with a prosecutor’s decision of how to handle a client’s case. I just don’t recall too many prosecutors who wouldn’t listen to what I had to say, wouldn't think hard about their cases, or who wouldn't share exculpatory evidence. In other words, I haven't met too many prosecutors who acted anything like Nifong.
When a mistake or oversight did happen, it was generally just that — a mistake or oversight. No doubt, lawyer mistakes and oversights can harm people seriously, especially in a criminal case, and better training and and a more balanced culture in some prosecutors' offices surely would help to prevent mistakes. But, when mistakes happened in my cases, my client’s interests generally were remedied by the relief David himself indicates courts will grant in these circumstances: defense adjournments, evidentiary sanctions, and judicial reprimands (for a good example of a judicial reprimand of a prosecutor who was not mistaken but played "fast and loose" with her evidence, see here). Of course some mistakes, even if unintentional, demonstrate the sort of ethical shortcomings worthy of disciplinary action. But all lawyers make mistakes, including defense attorneys — indeed, I've seen more defendants harmed by shoddy defense work than by prosecutorial misconduct — and not all lawyer mistakes equate with ethical misconduct, even when committed by a prosecutor.
Perhaps the problem is that David never defines what he means by “prosecutorial misconduct.” Nifong’s an easy example of it. David, however, seems to suggest that an aggressive prosecutor who doesn’t take defense evidence at face value, and who even acts like an outcome-interested advocate, may “cross the line separating fair play from systemic manipulation.” David even appears to imply that a prosecutor who proceeds with a sexual assault case by taking a “complainant at her word” without “wait[ing] for corroborating evidence or insist[ing] on more than one person’s say” has engaged in “questionable practice.” If David merely means here that prosecutors in sexual assault bureaus and elsewhere should not become closed-minded, agenda-driven, or too personally invested in their cases and witnesses, fine — but that’s how most prosecutors act already. If David instead means to define prosecutorial misconduct as broadly as his piece suggests, I think he does his stronger point a disservice through oversell.
Don’t get me wrong: serious prosecutorial misconduct happens, as Nifong's actions demonstrate. And, the prosecutors who do abuse their position too rarely are called to the mat for it by Bar disciplinary committees. David does a service by highlighting these concerns, just as he has highlighted many other serious problems in our criminal justice system. But I think David casts too wide a net if he suggests that our criminal courthouses are filled with Mike Nifongs and Nancy Graces running amok without disciplinary oversight.
Nifong and the Community
The past few weeks have presented me with one of my favorite topics: overzealous and unethical prosecutors. (I've written about this previously discussing Nancy Grace). I'm talking, of course, about Mike Nifong, the now disbarred and disgraced D.A. formerly in charge of the Duke lacrosse case.
For those no longer following the story, Nifong was disbarred by the North Carolina Bar this past Saturday, and plans to resign his post as D.A. The NC Bar found him guilty of fraud, dishonesty, deceit or misrepresentation; of making false statements of material fact before a judge; of making false statements of material fact before bar investigators, and of lying about withholding exculpatory DNA evidence, among other violations. Unsurprisingly, Nifong did not dispute the disbarment.
There's been acres of print and blogging expended on Nifong and the Duke lacrosse case, much of it speculating why Nifong continued to pursue the case after it began to fall apart. But one aspect little discussed is the interesting role Nifong played in trying to simultaneously mediate the norms and social values of two communities in one area.
Traditionally, most elected D.A.'s have a mediating function between the formal demands of state and local law and the community's role as moral arbiters of local punishment. But Nifong had a particularly tricky role to play, one which involved balancing the two rather different views of punishment embodied in town and in gown. These two communities saw the lacrosse team members through entirely different lenses--as playful fraternity brothers vs. despoilers of young, working class women--to which was added a strong racial component, further complicating things. So if Nifong is supposed to reflect the values of the community through his job as D.A., which community should that be? Are you allowed to pick one community over the other (as Nifong clearly did), or should you try to balance? If you balance, do you do it case by case? Issue by issue? Or just by your own internal ethical pendulum?
I'm not advocating what Nifong did, of course. But I do have some sympathy for those elected prosecutors who represent a multitude of communities and must balance their competing needs. Robert Morgenthau, N.Y.'s long-running D.A., provides one example of how this can be done, but it's no easy task.
(cross-posted on Legal Ethics Forum)
Tuesday, June 19, 2007
Chicken Soup For the VC Soul
The other day Eugene Volokh had a post discussing news coverage of the President's recent speech at the National Hispanic Prayer Breakfast. A typical passage -- this one from the Washington Post -- ran: "Casting his appeal in religious terms, Bush said, 'We must meet our moral obligation to treat newcomers with decency and show compassion to the vulnerable and exploited, because we're called to answer both the demands of justice and the call for mercy.'" Volokh asked: "Is it really quite accurate to describe this as 'us[ing] religious terms'? I would think that nonreligious people would rightly bristle at the implication [that] 'moral,' 'decency,' 'compassion,' 'justice,' or 'mercy' are inherently 'religious terms.'"
Today Eugene writes about the Vatican's issuance of a document discussing "Guidelines for the Pastoral Care of the Road," which, among other, more stereotypically "religious" issues, such as the pastoral care of street children, addressess, yes, questions such as road and highway safety. Eugene suggests that this seems "a little more mundane than I'd expect," although he adds, "[M]aybe I'm taking too narrow a view of the role of the spiritual in daily life."
I don't mean to pick on Eugene. Of course the President's remarks would seem unremarkable if uttered by a non-religious person, so that the reporters' description seems forced. And of course no one expects the Vatican to address road safety at length. (Of course, that may be why it did so! Remember, surprise is among its chief weapons.) So I get what he's saying. But it seems to me that he may indeed be taking too narrow a view of the role of the spiritual in daily life. It is entirely accurate (although, as I'll suggest in a moment, somewhat misleading) to describe the President as having used religious terms in his speech, and terms such as "moral," "compassion," and "mercy" are inherently religious terms. For that matter, in a world in which everything is imbued with God's presence, if you see it that way -- and I think both the President and the Vatican do -- matters such as "road safety" are also inherently religious! In a sense, whether something, or everything, is "mundane" or "inherently religious" depends on your perspective, and I take it that to the Vatican very little is mundane -- not even road safety.
Again, I'm not trying to pick a fight with Eugene. I get what he's saying, and of course there's something to it. (Although I think his point about the Prayer Breakfast coverage could be restated more accurately: the words the President used are inherently religious; they're just not exclusively or uniquely religous.) I just think his two posts are complementary, in ways I wasn't sure he recognized. They rather put me in mind of these lines from Franny and Zooey, which, as a recipient of many a bowl of holy chicken soup, I have always loved:
"If it's the religious life you want, you ought to know right now that you're missing out on every single goddam religious action that's going on around this house. You don't even have sense enough to drink when somebody brings you a cup of consecrated chicken soup—which is the only kind of chicken soup Bessie ever brings to anybody around this madhouse."
Question re Supreme Court Litigation Clinics
I wonder whether any of our readers can answer a question for me (under no circumstances will I call it a "bleg"). Can anyone offer any information about the eligibility process for students who wish to work in their school's Supreme Court litigation clinic? Is it first-come, first-served? Is it selective? If so, according to what criteria? I feel sure some of our readers must know. Feel free to weigh in via private email or in the comments. Many thanks.
Distributing Grades and Grade Distribution
Greetings from glorious Tel-Aviv, where the weather today was sticky hot, and where the general neighborhood is getting, according to the news reports, even hotter. I wanted to post today on a very simple topic: getting the grades at the end of the semester to your students. I realize this topic may seem mundane, but it appears to be a point of controversy at some schools. At some schools (including mine) the grades for students are tagged to a blind assigned grading (BAG) number and then published on the web (or here in Israel, I saw a list of ID numbers posted on a physical bulletin board with the relevant grades.) So, for those of you wondering, here were the grades for my criminal law class this past semester. I don't know of other American law schools that make this much information available to the students and the general public, but there are a few downsides to so much disclosure, at least to my mind.
First, I have heard from my students that some students create spreadsheets with all the BAGS numbers and then distribute rankings of the BAGS numbers. Some students go farther and try to identify who is which number, which is not that difficult in light of some information regarding who is in smaller classes. These rankings are then spread like kudzu. Obviously some privacy concerns are raised, right?
Second, there are dynamic effects these grade distributions have. As a result of this information, professors get reputations as relatively tough graders or easy graders. This has some mixed effects, especially when teaching evaluations are not shared with students to provide valuable additional information. On the one hand, students might be in a position to make better decisions regarding how to improve their grades. But in the process they might be making bad decisions regarding what's good for their legal education and their intended career prospects. As to professors, it might incentivize being a tough grader to reduce enrollments or, if there are rewards by deans for having larger classes to teach, then higher enrollments through easier grading. Even with a curve and distribution requirements, one can be more generous within those ranges.
I understand that some schools simply mail a report card home, which is what I had when I was a student at HLS, revealing nothing other than the letter or numeric grade of the student in the class. Other schools will do the same thing, but share the median grade to the student, but not the whole pattern of grade distribution. As to the method of distribution, this information is shared by mail or by logging into a secure network, where one can access only one's own grade. I'm trying to find out if there is a best or popular practice regarding how much information is shared with students and how students obtain such information about their grades. If you could share this information with me in the comments, and your thoughts on what would be the right amount of info and distribution method, I'd be very grateful. And then I'll stop blogging about grades...and more about what I know you're really keen to hear about: retributive damages.
Prescription for pain
One of the themes that I have pursued in my scholarship is the frequently elusive line that distinguishes criminal conduct from mere civil wrongs. That theme was taken up in a context I had not considered before in a cover piece by Tina Rosenberg in Sunday’s New York Times Magazine, entitled “When is a Pain Doctor a Drug Pusher?” The main focus of Rosenberg’s piece is a Greenwood, S.C., physician named Ronald McIver, who, based on evidence that he had been prescribing many times the recommended dosage of various opioids, was sentenced to thirty years in prison for drug trafficking. Rosenberg believes not only that the law was wrongly applied to McIver’s case, but that the law itself should be changed.
Rosenberg’s description of the facts is so sympathetic to McIver that it’s hard to tell whether the facts really did support his conviction. Rosenberg argues that McIver’s sin was nothing more than being overly aggressive in his approach to pain management, and perhaps sloppy about his record keeping (though she does note that some of McIver’s patients were regularly selling excess amounts of prescribed drugs to third parties.) She suggests that the one patient of his who did die, allegedly as a result of over-prescription, had an underlying condition that was the real cause of his death.
Whether or not Rosenberg’s reading of the facts in the McIver case is accurate, what troubles me is her treatment of the larger legal issue that it raises. So far as I can tell, Rosenberg thinks that we shouldn’t ever criminalize what she calls “bad medical decisions.” Before criminal sanctions can be imposed, she says, the evidence ought to show a “link broken” between the patient’s medical condition and the drug prescribed, such as when a doctor exchanges a prescription for money or sex or writes a prescription for a made-up name or without ever seeing the patient. So long as there is some intact link between the medical condition and drug prescribed, she says, criminal prosecution is not warranted. Instead, she says, cases of mere recklessness should be referred to the state medical board or should result in a claim for civil malpractice.
Although at one time controversial, recklessness has long since become a common mental element in the criminal law. So I’m puzzled as to exactly why Rosenberg (who I assume is not a lawyer) would want to limit liability here. The best I can make out is that she is making an argument based on overdeterrence: that the fear of being prosecuted for overprescribing opioids is part of why doctors are undertreating their patients in pain. (A related reason is the worry that their patients will become addicted.)
The undertreatment of pain is undoubtedly a significant problem in American medicine. Doctors may well have legitimate concerns that their aggressive treatment of pain could lead them to be unjustifiably prosecuted. And a thirty year sentence for Dr. McIver, like many sentences handed out in drug trafficking cases, does seem excessive. But Rosenberg's proposal seems to go too far. Surely there are ways to reeducate and resocialize doctors to prescribe pain medicine in an appropriate manner without completely eliminating the possibility of criminal liability for reckless medical care.
Freebie Advert For AT&T's Ten Dollars Per Month DSL
Haven't heard about AT&T's bargain ten dollars per month DSL? The Consumerists theorizes this is because AT&T doesn't want you to know about it:
The plan provides download speeds of up to 768 kilobits per second and upload speeds of up to 128 kbps, matching AT&T's basic plan.
If you can't find the plan listed on the website, don't worry. AT&T wants it that way. ...
Yahoo News has more here, noting: "Another concession to the FCC is yet to come: a plan for DSL that doesn't require local phone service. AT&T has another six months to introduce that option, which should cost at most $19.95 per month."
You can sign up for the $10 per month deal here if you qualify.
Monday, June 18, 2007
"...you can use sex to sell jewelry and cars, but you can’t use sex to sell condoms."
That post heading is a quote from this NYT piece, which reports that CBS and Fox have refused to run a Trojan Condoms commercial described in the article as follows:
In a commercial for Trojan condoms that has its premiere tonight, women in a bar are surrounded by anthropomorphized, cellphone-toting pigs. One shuffles to the men’s room, where, after procuring a condom from a vending machine, he is transformed into a head-turner in his 20s. When he returns to the bar, a fetching blond who had been indifferent now smiles at him invitingly.
Directed by Phil Joanou (“State of Grace”), with special effects by the Stan Winston Studio (“Jurassic Park”), the commercial is entertaining. But it also has a message, spelled out at the end: “Evolve. Use a condom every time.” [You can watch the ad here.]
The quote is catchy, but it is wrong. Using sex to sell condoms is apparently only problematic if there is a focus on women's issues. David S. Cohen blogged an appropriately critical take on CBS and Fox's refusal to run the ad here. The NYT article points out that both CBS and Fox had run advertisements for Trojan Condoms before, "which urged condom use because of the possibility that a partner might be H.I.V.-positive, perhaps unknowingly," and the article's author, Andrew Adam Newman concluded that those networks found a disease prevention message much more palatable than a pregnancy prevention one. He based this conclusion in part on Fox's written statement to Trojan asserting: "“Contraceptive advertising must stress health-related uses rather than the prevention of pregnancy.” Since pretty much every use to which a condom is put (excepting filling them with water and throwing them from the roof) involves sex, this rigid preference for a focus on disease prevention seems to be based in a very male oriented view of condom utility.
Another related and gendered anomaly is the fact that condoms are advertised as tools to reduce the risk of catching or spreading H.I.V. and other STDS, but rarely if ever specifically mention HPV. In a very provocative essay entitled "The Left, HPV, and Cancer," Richard Leader writes:
Conservative men would rather their daughters die of cervical cancer than give them a vaccine that would allow them to make their own sexual choices in life. That’s the theory given by any number of liberal writers in the political debate over Merck’s Gardasil product. They very well might be correct.
What about men on the Left though? What would we prefer for women? All evidence seems to point to the fact that we really don’t care what kind of cancer they die from, so long as they keep putting out.
He notes that the causal link between HPV and cervical cancer has been known for well over a decade, there has never been a campaign aimed at stopping the spread of HPV through condom use, and his theory is this is because it causes cancer primarily in women, the people with cervixes. It is only now that cervical cancer has become a commodity as a consequence of the marketing campaign for Merck's Gardasil, he asserts, that HPV is receiving sustained media attention.
Like Leader, I have been struck by the fact that the Gardasil vaccine is recommended only for women and girls, and in fact has only been tested for safety and efficacy on women and girls, a clear signal that stopping the spread of HPV is viewed as the sole responsibility of females. Leader concludes:
Inflicting cervical cancer upon someone was never a consideration of men. HPV strains that did not burden a male with unsightly warts were deemed not worth testing for by the medical establishment; out of sight, out of mind. There were no marches. Penises were never called “the original cancer sticks.” No man ever curtailed his sexual behavior on account of it, admitting that even condoms not might prevent its transmission.
And yet that same generation of Leftist men, cure in hand, now accuses religious fundamentalists of murderous indifference.
It is only now that women can be saved—and pockets can be lined—that women are allowed to fear HPV and the very worst of its effects. Indeed, they are even encouraged to fear it. Before, it was merely part of heterosexual life for women, an uncommon yet ordinary consequence of all we ordained as “natural.” Bad luck, or the Will of God, cancer was seen as outside the domain of male control.
I know that Leader's essay will strike non-feminist Prawfsblawg readers as somewhat extreme, and perhaps difficult to read and process, but agree or disagree, he will make you think about this issue in ways you probably haven't before.
Some Thoughts on Brendlin
Orin Kerr comments today on the Supreme Court’s unanimous decision in Brendlin v. California, which held that an automobile passenger is seized for Fourth Amendment purposes when the police stop the automobile and its driver. Or at least generally, as Orin notes — in footnote 6, the Court distinguished passengers in a "private vehicle" from passengers in a "common carrier," like a taxi or a bus. Orin observes:
I tend to think this approach misses the initial brief seizure as the car is coming to rest; I think the passenger is seized in the few seconds when the car is slowing down and coming to rest as much as after the car is stopped, so that even the taxi and bus passenger would be seized for a brief interim even if they would feel free to leave after the car is stopped.
Orin raises a good doctrinal point, although one he characterizes as a "very minor quibble, and not one that will make a difference in 99.8% of the cases."
When reading Orin's post, I was struck with the thought that footnote 6 in Brendlin demonstrates the sort of pragmatism in Fourth Amendment decision-making about which Orin himself has commented previously: It’s simply difficult to imagine the Court extending Fourth Amendment claims to every inconvenienced passenger when the police stop a bus or a subway carrying dozens or even hundreds of passengers simply by virtue of the incidental "stop" of these passengers, even though the stop of these passengers initially may look a lot like the stop of a private automobile passenger. As Orin aptly observed in his previous post, this distinction in "doctrine [does] not arise out of text, or history, or natural law, or First Principles of Immutable Justice. Rather, it's arising out of a need to impose a set of reasonable limits on police practices given a few basic guideposts of doctrine and the common facts of police investigations." It’s also why lawyers, judges and law students often find Fourth Amendment decision-making frustratingly unpredictable.
With this pragmatism-fueled unpredictability mind, I'll be interested to see how judges apply footnote 6 to taxi stops in cities like New York, where taxis are an extremely common and important mode of transportation to urban residents who don't regularly use or even own cars. In my experience, these taxis involve a driver-passenger relationship that, while commercial in nature, generally is viewed by passengers as far more private than the passenger relationship to subway or bus driver, where police interference with a taxi and its driver typically encompasses the passengers just as if the police stopped a limo or other privately contracted vehicle. If judges, however, apply footnote 6 broadly to preclude many taxi passengers from challenging a stop of their taxi, Brendlin's footnote may affect noticeably more than the .2% of Fourth Amendment cases that Orin predicts.
The Ethics of Spousal Hiring
Greetings from Eilat, where the corals glow and the lights of Akaba shine peacefully as horizontal stars.
In the good old days, when most women weren't in the academic job market, at least not for tenure-tracks, hiring was simple. Today, couples on the market have become standard. In government jobs, the hiring of a spouse or a significant other is often considered prohibited nepotism and dealing with a spouse as a government contractor may present conflicts of interests. In the academy, things have evolved dramatically. Here in Israel, where everything is relatively close by geographically, there are still restrictions in most universities, prohibiting the hiring of married couples for the same department. In the United States, hiring chairs have realized that without couple hiring strategies they are likely to loose many attractive candidates. In every law faculty today couples, married or not, are hired as a some sort of package deal. What are the ethics of couple hiring? How are decisions about a duo made in various law schools? I once heard one committee chair describe a precise formula -- you add the talents of each of the candidates together, divide the sum by two, and if the "score" is above the threshold you were aiming for, you hire both. Another committee chair has expressed the fear that couple hiring is problematic from a feminist perspective, as it is often assumed that the wife was hired thanks to her husband's talents. Others support the practice of couple hiring as a necessary development, but recognize the challenges it presents at the various stages of hiring and employment. For example, it is generally illegal to inquire into marital status during the employment interview. And when there are multiple couples in the same faculty, some fear that the voting strategies and decision making patterns can be affected by family relationships. Yet others have mentioned intimately that breakups are inevitable and divorcees in the same workplace present uncomfortable choices for their colleagues. Thoughts?