Sunday, September 30, 2007
Bill Murphy, RIP
On August 6, 1962, the following brief article ran on page 22 of the New York Times:
Teacher, Target of Attacks, Resigns in Mississippi
OXFORD, Miss., Aug. 5 (UPI)
-- A University of Mississippi law professor who has been the target of segregationists for several years has resigned to take a better position at the University of Missouri.
William P. Murphy, attacked by legislators and others because he is a member of the American Civil Liberties Union, will become a full professor of law at Missouri Sept. 1. He has been at Mississippi since 1953.
His resignation came after the State College Board had refused to renew his contract.
The professor first came under attack in 1959. That year, however, the College Board rehired him. In 1960, an unsuccessful attempt was made in the Legislature to cut off state funds to anyone belonging to the Civil Liberties Union.
Bill Murphy, my colleague and friend, died yesterday in Chapel Hill at the age of 87. He was absolutely everything any law professor might aspire to be -- erudite, passionate about justice and fairness, and equally engaged in the worlds of ideas and action.
The New York Times doesn't mention it, but the "offense" that got Bill Murphy(effectively) fired at Ole Miss was his insistence on teaching that Brown v. Board of Education was the law of the land and should be followed rather than resisted. As Bill himself explained in a 1978 oral history,
I never really thought of it in terms of taking a stand on anything. It all started because I was teaching the course in Constitutional Law. And I taught the course basically the way it was taught all over the country, the way I would have taught it anywhere else in the country, and that assumes that Supreme Court decisions are law and at some point, to some extent, ought to be complied with. And so I never really consciously took a stand on anything. I started out just teaching a normal Constitutional Law course. And the only thing that made that unusual or got me in hot water was that that normal approach toward constitutional law and the authority of the Supreme Court was contrary to the basic approach which these Citizens Council types took. And that was that the Supreme Court didn't have the authority, and that there wasn't any duty to comply. So I started out, really, in complete innocence, just doing what a constitutional law professor would have done anywhere in the country, and the only thing that made it unusual was the time and the place. They apparently wanted the Con Law course taught kind of like it would have been taught at a Citizens Council rally.
... I had no earthly idea that it would end up the way it did when I began to pursue my teaching and my writing activities. It just happened that the way I taught and what I wrote turned out to be directly contrary to what many influential Mississippians believed, and so they decided they had to get rid of me. And I had to decide whether I was going to keep on writing and teaching the way that I thought I ought to, or whether I was going to knuckle under to these people, and at that point I did have to take a stand.
Take a stand he did, but the segregationists ultimately proved too powerful for Bill, and so he resigned in 1962. When the trustees at Vanderbilt were pressured not to act on a visiting position for Bill that the law faculty there had voted, he landed at the University of Missouri.
While at Missouri, Bill published his chef d'oeuvre, The Triumph of Nationalism: State Sovereignty, the Founding Fathers, and the Making of the Constitution (1967). In 1970 he came to UNC, where he was still in the office as an emeritus every day when I arrived in 1998. By then he was busy doing labor arbitrations all over the country, and had served a term as president of the National Academy of Arbitrators. He continued this work until just a few years ago, when health problems finally slowed him down -- physically, at least. Up until the very end, he remained keenly interested in goings-on in the worlds of law and politics. Just a couple of weeks ago, at Bill's request, I packaged up a couple of annual Con Law casebook supplements for Bill and sent them home to him so that he could read up on last Term's developments at the Supreme Court.
The legal academy has lost a brave prince. We'll miss you, Bill.
In recent days, my fellow bloggers at Mirror of Justice -- along with folks at America magazine, at the Commonweal blog, etc. -- have been talking (again) about ye olde topic, "the identity of Catholic universities". Of course, it's not just those of us who are into the "Catholic university thing" who are hang-wringing about the state of our project; lovers of the university-enterprise generally seem uneasy. See, for example, the new book by my law-school teacher and former dean, Anthony Kronman: Education's End: Why Our Colleges and Universities Have Given Up on the Meaning of Life.
In the Yale alumni magazine, there's a short essay adapted from the book, called "Against political correctness: a liberal's cri de coeur." (Kronman, it should be emphasized, writes and worries as a liberal and a "secular humanist."). Kronman writes:
[W]hen a presumptive commitment to the values of political liberalism begins to constrain the exploration of the personal question of life's meaning -- when the expectation that everyone shares these values comes to place implicit limits on the alternatives that may be considered and how seriously they are to be taken -- the enterprise itself loses much of its power and poignancy for the students involved and their teachers lose their authority to lead it. . .
Today's idea of diversity is so limited that one might with justification call it a sham diversity, whose real goal is the promotion of a moral and spiritual uniformity instead. It has no room for the soldier who values honor above equality, the poet who believes that beauty is more important than justice, or the thinker who regards with disinterest or contempt the concerns of political life. . . .
Is Kronman just being grumpy, or is he on to something?
Just a word of thanks to our current guests from September, some of whom may be lingering the next few weeks. Also, please welcome three new voices to Prawfs: Michael Steven Green, who writes about jurisprudence from William and Mary, Nadine Farid, who works at the intersection of IP and development at Gonzaga, and Eric Muller, who writes on American legal history as well as constitutional and criminal law from UNC-Chapel Hill. Finally, I'm happy to welcome Scott Moss back to Prawfs; Scott works on employment and labor law at Colorado.
Our guests deserve extra thanks on account of my own sporadic blogging of late; my current temporary housing lacks internet access so there's less opportunity for late-night ruminations. I've also been traveling a lot and it gets much worse: this coming week, I'll be in LA to present my "Retributive Damages" project at a faculty workshop at Loyola LA (and sticking around for the end of Sukkot) and next week I'll be in Minneapolis to do the same at St. Thomas. I hope to get to meet some of Prawfs' readers in both cities.
Fortunately, I'll be back in LA in early December. I'm happy to announce that Loyola LA is generously hosting the next Prawfsfest there and then. More details on that exciting development will be forthcoming.
Friday, September 28, 2007
Cross-Border Pollution and International Law
As my guest stint here at PrawfsBlawg draws to a close, I wanted to say thanks to Dan for letting me join the conversation. I've read some interesting posts/comments this past four weeks, and I've enjoyed being part of it. As we turn to the weekend, I thought I would follow Rick's and Ethan's lead, and post links to two articles I've recently written.
The first article -- Litigating Canada-U.S. Transboundary Harm (Link to Article on SSRN) -- was co-written with Prof. Shi-Ling Hsu from the University of British Columbia Law Faculty. The article explores a possible cross-border extraterritorial lawsuit that Ontario may bring against U.S. polluters for healthcare costs the Province has incurred. Cross-border pollution is a big issue in Ontario, Canada (Paul, am I right?). This sort of lawsuit raises interesting issues both on the legal and political fronts. Our article is being published next month in the Virginia Journal of International Law (Link to VJIL). VJIL has an arrangement with Opinio Juris - the international law blog - and I'll be blogging about the article over there sometime in October. I hope you'll join in the conversation.
The second article -- Reclaiming International Law from Extraterritoriality (Link to Article on SSRN) -- explores recent trends in international law and in international legal theory. In particular, the articles explores the dangers of using national/domestic courts to adjudicate international disputes. I just uploaded a preliminary draft to SSRN. Comments/feedback would be welcome. An abstract of the piece is included below after the continuation.
I may a do a final post on Monday. But if not, thanks and signing off...
Reclaiming International Law From Extraterritoriality Abstract:
A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the “new” Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, ap-plied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too.
This Article addresses a topic that leading theorists have given scant attention – the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars – from both the Sovereigntist and new Internationalist perspective – should embrace and reclaim multilateral international lawmaking.
Cool Web Application of the Day: Cert Pool Memo Archive
If you've ever wondered what the court was thinking when denying (or granting) cert in a case you teach, now you can find out. I spent some time digging for my sports law class and found a great memo on an NCAA antitrust case from 1992.
Electoral College Reform Is Dead: Long Live Electoral College Reform
Democrats and the six people who like the winner-take-all Electoral College can rejoice. The initiative to reallocate California's electoral college vote distribution seems dead.
This really is a relief for Democrats -- and enhances their chances for the Presidency in 2008. But let's be frank: this death also puts Electoral College reform on the backburner. And I'm not sure that is really a great result for the long term democratic health of all Americans.
H/T: Simon Dodd
Thursday, September 27, 2007
"Are Churches (Just) Like the Boy Scouts?"
Here is a new paper of mine, called "Are Churches (Just) Like the Boy Scouts?", which I presented at a (great) law-and-religion conference last Spring at St. John's. The paper talks about, among other things, the account provided by Professors Eisgruber and Sager of the church-autonomy principle; the idea of the "Freedom of the Church" (which I've tried to engage in more detail here); and an "institutional approach" to the Religion Clauses, about which Paul Horwitz has written so well (and which is also the subject of a paper I'm doing for the Villanova Law Review.) Here is the abstract:
What role do religious communities, groups, and associations play – and, what role should they play – in our thinking and conversations about religious freedom and church-state relations? These and related questions – that is, questions about the rights and responsibilities of religious institutions – are timely, difficult, and important. And yet, they are often neglected.
It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if we want to understand well, and to appreciate, the content and implications of our constitutional commitment to religious liberty, we need to broaden our focus, and to ask, as Professors Lupu and Tuttle have put it, about the “distinctive place of religious entities in our constitutional order.” Are religious institutions special? May and should they be treated specially? If so, how? Why?
For some other, in-places-different views on the subject, see this new paper by Cass Sunstein, "On the Tension Between Sex Eq uality and Religious Freedom."
I've just uploaded a paper entitled "Interpreting Statutes Passed Through Referendums" to SSRN. It is slated for publication in the Election Law Journal soon. Here's the abstract:
Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the many states that employ them: the referendum and the initiative. Generally speaking, the referendum enables citizens to ratify or reject statutes passed by a legislature, while the initiative enables citizens to draft laws themselves and put them before the populace for a vote. My focus here is the question of the appropriate interpretive approach for statutes subject to the popular vote.
By and large, scholars have focused almost exclusively on the direct initiative when they discuss how courts should interpret the products of direct democracy. But courts are saddled with the task of interpreting a broader array of statutory enactments subject to direct democracy. A uniform method of interpretation – one that finds support in many judicial pronouncements - might be defended on the ground that it makes no difference which directly democratic process leads to a law under consideration; irrespective of process, the interpretive inquiry should remain constant. That uniform method could be supported by an assumption that the processes of direct democracy are similar enough to warrant similar treatment for purposes of interpretation. Or it could be supported by an assumption that all forms of direct democracy are underwritten by a political theory that counsels for similar statutory interpretation. I argue here that the uniform method, whatever support it might find in caselaw, is flawed.
Wednesday, September 26, 2007
The Milton Bradley Final Exam Contest
Milton Bradley (yes, that's really his name) of the San Diego Padres was ejected from a game on Sunday for arguing with an umpire. Bradley became enraged and had to be restrained, first by his first base coach and then by his manager, Bud Black. Black threw Bradley to the ground tearing Bradley's anterior cruciate ligament; Bradley will miss the regular season and the playoffs. Here's video of the incident:
Today comes news that MLB has suspended the umpire, Mike Winters, for the rest of the season. It seems that MLB believes Bradley's story that Winters aimed obscenities at him, precipitating the altercation.
There's a law school final exam question in here somewhere, but I can't seem to find it. Is Milton Bradley the new Helen Palsgraf? Does he have an eggshell ACL? Did baseball take subsequent remedial measures? Was Bradley adequately provoked? Temporarily insane? Help me out here. Please.
(Cross-Posted at MoneyLaw)
Special Federal Sentencing Survey
The Denver University Law Review has just made available on its website a survey of federal sentencing law in the wake of Rita v. United States and in anticipation of Gall v. United States and Kimbrough v. United States. The survey features the thoughts of the leading legal academic on sentencing law and policy, a former Senior Research Associate at the United States Sentencing Commission, two federal district court judges and a judge from the Sixth Circuit Court of Appeals. (The organizers were also nice enough to let me write the introduction.)
The constitutionalization of sentencing law has been to my mind one of the few interesting developments in Criminal Law in the last 15 years. (And I say that as someone who has taught the subject for 9 of those years). The student editors at DU appreciated the importance of this topic and worked hard to get this issue completed before the Supreme Court hears Gall and Kimbrough this term. If you find yourself even remotely interested in these issues, I urge you to give this survey a look.
Is Mandatory Jury Service "Deeply Unjust"?
Ilya Somin seems to think so. Watch him tie himself in knots trying to figure out whether the 13th Amendment's prohibition on involuntary servitude renders mandatory jury service unconstitutional. It is amusing and not altogether silly; at least he comes to the right conclusion that the Constitution doesn't prohibit mandatory jury service. Of course, it does raise the question of whether my proposal for mandatory service on deliberative civic juries would be unconstitutional under the 13th Amendment. I hadn't considered that possibility before. I'm not convinced at all that such a constitutional interpretation is sensible -- but at least Ilya reminds me that I need an argument to explain why that is so. I suppose any old originalist, textualist, structural, prudential, or ethical argument will do.
Will Coke Be Legislatively Overturned?
Via Paul Secunda at the Workplace Prof Blog, I have learned the news of the day: Senator Tom Harkin has introduced a bill to overturn the shameful Coke opinion issued by the Supreme Court last year. As you likely know, I've been fixated on the Coke case for a number of years -- and this really would be a very nice conclusion. It doesn't change the weird administrative law ramifications of the Coke decision -- but it would do something far more important: get home health care workers overtime and the minimum wage.
The Jewish Political Tradition
I'm in the process of designing a syllabus for a course on the Jewish political tradition. My plan is essentially to use the available volumes of Walzer's The Jewish Political Tradition as casebooks. If you know of someone who teaches such a course (whether in a law school or elsewhere), please let me know. I have already been in touch with Suzanne Last Stone (Cardozo), a contributor to the volumes, who teaches such a course, so no need to direct me to her. Thanks.
Monday, September 24, 2007
Law School Curriculum & Passing the Bar
Here's some interesting news that my colleague, Jim Fischer, alerted me to. I thought I would share. The topic ties nicely to themes raised in Rick's recent post on Posner and whether more practical skills should be emphasized in the law school curriculum. (Rick's Post)
In many states, bar passage rates are a significant concern. This is certainly true in California, where a school's reputation may largely hinge on its bar pass rate (not to mention that it can cause school's to risk continued ABA accreditation -- think Whittier & Golden Gate law schools). The conventional wisdom is that students that are ranked in the bottom of their class should take as many courses whose subject matter is tested on the bar as possible. Many law schools even require that lower ranked students take bar-topic courses in their second and third years of law school. The hope is that requiring students to take courses whose subjects are tested on the bar increases the ability of those students to pass the bar exam.
But a recent study has concluded that the relationship between law school courseloads and bar pass rate is very weak. An article describing the study appears here: (Link). And here is the study itself: (Link).
I've always been nervous about steering students to a course solely because its topic appears on the bar. Although I think students can benefit from taking some foundational-type courses -- courses like, say, Tax, Administrative Law, Const. Criminal Procedure (if not required), Remedies, Federal Courts, etc. -- I find it very difficult to tell students that they should fill their entire third year with courses thay may, or may not, help them with the bar. By taking these courses, students miss out on other courses that might help them in practice (e.g., advanced writing courses, trial advocacy, pretrial practice, drafting courses etc.), or courses on topics that they just find fascinating. I'd be interested to hear what others think. What advice do faculty give students on courses that they should take in their 2L and 3L years?
Constitutional "Niches": The Role of Institutional Context in Constitutional Law
The UCLA Law Review has just published a wonderful symposium issue under the title above. Since I'm one of the contributors, it will be no surprise that I think the exploration of the importance of institutional context in constitutional law, and the possibility of re-approaching constitutional law from a perspective that distinctly and explicitly considers the nature, role and value of a variety of public and private institutions, is an important and quickly growing body of scholarship. I hope folks who are interested in universities and academic freedom will take a look at my piece, but there are wonderful articles from some great contributors on a wealth of subjects, including separation of powers, public employment, federalism, and other topics. I'd like to think this topic will be of increasing interest in the field of constitutional scholarship, and commend the entire issue to interested readers. The issue can be found here.
More Graduates, Fewer Jobs: That Can't Be Good
The WSJ has a big story today on the fact that the legal services sector has lagged badly behind the economy in recent years and that the number of law schools (and graduates) has proliferated over the same period. As the numbers bear out, this isn't good news for most law graduates. While the top firms continue to pay top dollar for the best graduates, those students who don't find jobs at elite firms can expect lower starting salaries than they would have earned in years past. This fact, combined with the fact that tuition (and student debt) at both private and public law schools has skyrocketed over this time makes the financial prospects for students who don't graduate near the top of their class pretty chilling.
None of this is exactly news, of course, but it certainly is compelling to see this data collected in one place. A few weeks ago there was a lot of discussion on the blogs about the bi-modal distribution of salaries among first year lawyers. The WSJ story hammers home the point that the bi-modal distribution made at least implicitly: A law degree simply isn't the guarantee of the good life that it used to be. In this environment, we can expect fewer students to apply to law schools and for those who do to be better and more knowledgeable consumers of law school services. They are certain to demand more from law school and to gravitate toward those that offer good value for the money. The WSJ takes some schools to task for providing incomplete or misleading data on student employment and lauds others for being honest about post-graduation employment. This is the sort of thing that motivated consumers are sure to notice.
Given all of that, can a shake-out in law schools really be that far behind? Will there really be over 200 ABA approved law schools in 10 years? In 5?
(Cross-posted at MoneyLaw)
Individual Rights and/in "The Terror Presidency"
A little behind the crowd (as usual), I finally got to Jack Goldsmith's new book, The Terror Presidency, this weekend. As many of its reviewers suggest, it's quite good, and paints a picture of a far-more-searching struggle among Administration lawyers over the limits of the Bush Administration's anti-terrorism policies than might otherwise have been discernible from the outside. (Other reviewers, most notably Michael Stokes Paulsen, have raised concerns about the ethical propriety of such a book. I'll leave that issue to the side, at least for now.)
In addition, Prof. Goldsmith's book does a thorough job (too thorough, almost) of capturing the tension that most (or at least many) government lawyers "on the inside" felt and continue to feel -- between the importance of legal limitations and the need to protect the country from future terrorist attacks. Although Goldsmith argues that the response to 9/11 has been too legalistic, I think it is a fair summary of the book to suggest that the limits of extant law factored far more prominently into internal deliberations than many on the outside have previously suggested.
Of course, the general tenor of the book is that it's appropriate to push the envelope during crisis times. But the book makes clear that what happened inside OLC prior to Goldsmith's tenure was much, much more than just envelope-pushing. And indeed, one is left with the distinct sense that we'd all be better off if Goldsmith had been in charge of OLC from the beginning of the post-9/11 response, as opposed to coming in in the middle.
All of that being said, there is one point that is almost entirely neglected by the book in an otherwise searching discussion of the myriad issues faced by government lawyers after 9/11: the impact of over-aggressive policies on individual rights.
Throughout the book, Goldsmith, in the mold (and borrowing not so subtly from the title) of Arthur Schlesinger's The Imperial Presidency, repeatedly emphasizes the importance of checks and balances to protect the government from itself. He also bemoans, on several occasions, the fact that the Administration did not go to Congress sooner to seek out the authority it claimed it needed. Borrowing both a quote and an idea from John Hart Ely's War and Responsibility, Goldsmith suggests that the real legal issues that have arisen after 9/11 all are fundamentally about the relationship between the political branches.
With exactly one exception, the book nowhere views the over-aggressive policies as implicating the individual rights of those detained or otherwise impacted by the government's policies. Thus, nowhere does the book mention the likes of Khaled El-Masri, Maher Arar, Brandon Mayfield, or the dozens (if not hundreds) of other individuals who were simply in the wrong place at the wrong time, who were subjected to the most harrowing and disturbing treatment, and who, still today, are struggling to fully and properly redress their grievances.
Does Goldsmith believe these cases are unimportant? That mis-steps are bound to be made and this is just the collateral damage? That none of the mistakes leading to these cases can be attributed to the government's policies, but rather just to the over-eager actions of a few bad apples?
The exception, curiously enough, is Yaser Hamdi. Goldsmith describes in detail his visit to see Hamdi on what was Goldsmith's 40th birthday (one other thing I learned from the book -- he and I share a birthday). In his words:
It seemed unnecessarily extreme to hold a twenty-two-year-old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact and with no access to a lawyer. "This is what habeas corpus is for," I thought to myself, somewhat embarrassed at the squishy sentiment. . . . I had no doubt that . . . the administration had legal authority to detain Hamdi . . . . My real thought was whether it was prudent to do so in this way, in these circumstances.
I find this passage remarkable only because it is the one moment in the book where Goldsmith appears to consider the impact of the Administration's policies on individuals, and he is "somewhat embarrassed at the squishy sentiment."
I wonder if, in general, this passage summarizes what is entirely the problem most civil libertarians have with the vast majority of the Administration's responses to 9/11: That the impact on individual rights has simply been ignored. Isn't the reason for checks and balances and the separation of powers to prevent the political branches from unduly infringing upon individual liberties?
Perhaps I am overreacting; perhaps this is just my liberalism run amok. To me, though, the fact that no one was standing up for the "little guy," and that the counterarguments to things like the infamous "torture memo" were never based on the impact overbroad policies might have on the rights of innocents are important testaments to how we got here, and, more importantly, how El-Masri and Arar, et al., got there. At the end, the biggest conclusion I took away from the book is that the central difference between the Administration and its critics isn't over the legality of the various Administration policies, but over why those legal limits exist, in the first place.
Law's Quandary, redux
Back in April of 2006, Notre Dame Law School hosted a roundtable conference on Steve Smith's then-newish book, Law's Quandary. (Here is a Prawfs post about the conference.) I had the opportunity to wallow in my happy memories of the event when I received, not long ago, my copy of Volume 44, No. 1 of the San Diego Law Review, in which the papers presented at the conference are published. Here is Steve's paper, "The (Always) Imminent Death of the Law." The other paper-contributors were Brian Bix, Patrick Brennan, Larry Solum, and Joe Vining. Get your copy of the issue here.
Sunday, September 23, 2007
Posner on practioners' proximity to practitioners
Sorry for the title. Here is a link to a Richard Posner essay, written in tribute to the late Bernard Meltzer and published in the University of Chicago Law Review. In the essay, Judge Posner cites Prof. Meltzer as one of the last of those professors who were more closely situated to law-practitioners than to the world of the university. Posner shares some thoughts about how Prof. Meltzer responded and adapted to the 1960s "revolution" in the legal academy, and to the challenges / claims of the "crits." Then, a bit later, he writes:
In exemplifying the traditional model of the engaged, the worldly, teacher-scholar, Meltzer reminded us of its strengths. Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense ("judgment") of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.
Thoughts? Is Posner's suggestion one that any Prawfs readers and bloggers plan on taking with them to, say, the AALS faculty-hiring conference?
Thoughts? Is Posner's suggestion one that any Prawfs readers and bloggers plan on taking with them to, say, the AALS faculty-hiring conference?
Do Law Clerks Have a Duty to Gossip?
Yes, says David Margolick -- or at least that's his implication. In his review of Jeffrey Toobin's The Nine, Margolick takes the media to task for complacency in their coverage of the court. Although he focuses on Supreme Court reporting (Greenhouse, Greenburg, and Totenberg -- please stand up), he also takes law profs to task:
And scholars aren’t much help. Many top law professors once clerked on the court; cherishing their relations with the justices, along with the power to pull strings from Cambridge or New Haven or Palo Alto to land similar positions for their students, few dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives.
Margolick praises the "enterprising and intelligent" Toobin for shining "a much-needed spotlight on the place." But he believes Toobin wasn't aggressive enough in his questioning of former clerks. The clerks, according to Margolick, are the keys to cracking the joint:
Considering the secrecy shrouding the place, just about Toobin’s only remaining reportorial option was to try what Bob Woodward and Scott Armstrong did in “The Brethren” a generation ago: canvass former law clerks, three or four of whom pass through each chamber every year. They are, as Toobin writes, not nearly as important as they think they are; after all, they’re not privy to their bosses’ deliberations. And they can be very full of themselves, priggish and protective, even proprietary, about the court. Just ask Edward Lazarus, who in 1998 published an account of his year clerking for Justice Blackmun; for his breach of omertà, his fellow clerks shunned him at Blackmun’s funeral.
But there are many, many clerks; they heard — and still hear — a lot; and for all the sycophants and careerists, kingmakers and aspiring federal judges among them, some are surprisingly independent and outspoken, believing that excessive deference to even the most necessarily private branch of government ill serves our democracy. Toobin says he spoke to 75 of them, but anyone writing a book like this simply has to telephone them all, even if 9 of every 10 hang up in a huff. I wish Toobin had done this, because it would have made his book even better.
I would guess that the overwhelming majority of law professors believe clerks have an obligation to keep their mouths shut about court deliberations. But Margolick seems to be making it one's patriotic duty to spill the beans, in order that the public be better informed. I wonder what most law profs would think of this notion.
Regardless, as I mentioned in an earlier post, it seems that the growth and diversification of the media will lead to more scrutiny, analysis, and gossip in previously placid realms. Margolick, for one, believes that such scrutiny of the Court is long overdue.
Friday, September 21, 2007
Friday Afternoon Music: Torin Alter and the Lying Angels
I'm glad some of my co-bloggers have recently taking to sharing their musical picks on the blog. Let me add another to the list: Torin Alter and the Lying Angels. Torin is a musician located in my home town of Tuscaloosa, AL (and, under state law, I must add the obligatory call-and-response: Roll Tide!), and his music is quite lovely. His web site offers links to songs from his two albums, so I won't say much more here, except to note that folks who enjoy alt-countryish music (and there seem to be quite a few of those on this blog) should enjoy his music, and one of his albums features a singer whose voice eerily resembles the lovely sounds of Caitlin Cary.
Of course, most of you will know Torin from some fave hits as "Does Representationalism Undermine the Knowledge Argument? and "On the Conditional Analysis of Phenomenal Concepts." Yes, Torin is also a philosophy prof here at the U. I can't tell you whether and how his day-job influences his tunes. I'll just say, come for the philosophy of mind, stay for the fine music.
Edwards and Elliott on "Federal Standards of Review"
Harry T. Edwards, Senior Circuit Judge on the D.C. Circuit, and Linda A. Elliott, a special counsel to Judge Edwards and adjunct professor at NYU Law School, have published a most important and valuable book, Federal Courts -- Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions. As the authors note in their introduction, "Standards of review may not be everything, but they are critically important in determining the parameters of appellate review and in allocating authority between trial courts and agencies, on the one hand, and the appellate bench, on the other. They are thus worthy of serious study." And yet, as David Wilkins of Harvard Law School notes in a blurb on the book jacket, although "[s]tandards of review lie at the heart of every case, [ ] they are consistently overlooked or misunderstood by law students and experienced practitioners alike."
I think the authors and Wilkins are both right. Standards of review are indeed at the heart of what lawyers do. (When I was clerking, a rare Canadian working in a federal court in the deep South, I had a recurring fantasy of being caught up in a tussle at the border after a visit home, and having my petition for relief denied by my judge, with the blunt statement, "Three words, Paul: standard of review.") But although they are discussed with eye-wearying detail in some areas of scholarship, particularly administrative law and cognate fields, rarely does a scholar pull together the disparate strands of the standard of review field and look at them all at once. Nor does law school properly and coherently introduce students to this question: standards of review are regularly edited out of casebooks and absent from class discussion. Edwards and Elliott, by producing a book that runs through standards of review in a variety of circumstances in which they are appear in the federal courts, truly have provided a valuable service to students, clerks, practitioners and judges alike.
Let me be puckish (but serious: puckishly serious, I guess), though, and offer one cavil. Having perused the book at some length but not utterly thoroughly, I wonder whether Edwards and Elliott have emphasized practical scholarship and pedagogy at the expense of abstract theory. (The link is to JSTOR: subscription may be necessary.) This is, of course, the reverse of Edwards' famous complaint that law schools were moving toward pure theory at the expense of practical scholarship and pedagogy, a complaint that created a cottage industry of responses.
But theory can be a good thing! One could reflexively apply existing standards, of course, and this book is an essential resource for those who want to do so. But it's difficult to really understand the congeries of details and blurring variety of circumstances wrapped up in standards of review, or to deal with those interstitial cases that don't seem to fit into any particular box, without an underlying theory that helps link them together. In other words, focusing on practical scholarship at the expense of theory can redound to the detriment of . . . practical scholarship! So, if there is ever a second edition, let me make an early plea: More theory, please! The authors, or others who want to supplement their use of Edwards and Elliott's book, might start with Larry Solum's recent Legal Theory Lexicon entry on standards of review.
Notwithstanding this complaint, Federal Courts -- Standards of Review is a tremendously useful book, and ought to be a standard desk reference for every law clerk, judge, and practitioner.
Is Constructive Engagement Easier In the Context of Criminal Justice Reform?
Like Ethan, my blogging's been somewhat curtailed of late because of the atonement season along with some other "distractions." My favorite one so far this week was the pleasure of spending much of the last two days with Paul Robinson, from Penn, who came down to FSU for our faculty enrichment series. In addition to presenting excerpts from a forthcoming book on the distributive principles of criminal liability and sentencing, Paul co-taught my seminar on sentencing law and policy on Wednesday. (Not all of our guest speakers have to pay this tax but Jack Chin will be another victim next month, when we discuss post-conviction disabilities on offenders, such as felon disenfranchisement.)
Anyway, as some of you may know, Paul is deeply involved with the codification of criminal law both around the US (e.g., Illinois) as well as abroad. He consults with an array of foreign states, including the Maldives, some of whom have seriously illiberal practices or laws. I asked him about whether he thinks there's a problem of dirty hands by writing criminal codes for these countries. Helpfully, he pointed me to an interesting exchange he had with neo-con political commentator Daniel Pipes. Pipes raised a similar question, specifically about Paul's work for the Maldives, which was to be guided by Shari'a principles; Pipes thought Paul's work there (under the aegis of the UN) could facilitate state-sanctioned oppression of women, slaves, and non-Muslims. Here is Pipes' piece (note the ridiculous title), which also includes Paul's thoughtful response at the bottom. Here's a link also to the article Paul and his advanced crim law students from Penn wrote about the experience. And here's Pipes' critical updates on the matter.
I think Paul's got me persuaded for the most part. There's a scent of Lon Fuller's spirit lingering over notions that having a codification of criminal law is an unalloyed good, since it at least reduces the likelihood of disparity based on arbitrary or random judicial crime-creation and enforcement. Others might think that, in a second-best world, it is better to give space for the possibly brave or heroic judge to operate even in a troubling or wicked legal regime. Notwithstanding my reluctance of supporting countries with super-crummy criminal justice systems like China, there is something to be said for going over and trying to offer the basis for reform through teaching and persuasion. It's not as if one abandons one's right to be critical of end-products that are still shameful, and there is the hope of instigating some changes. But conscience nags too. In the end, I think my sense is that the morality of "constructive engagement" is more apparent when situated in the context of urging legal code reform than say balancing the bad of human rights abuses for greater trade access. Am I wrong? Should there even be the nag of conscience? Or should it prevail?
Did anyone catch this somewhat bizarre article by Reva Siegel & Robert Post in TNR this week? I'm all for opposing "liberal" originalism. And I even think originalism as a theory of constitutional interpretation is unattractive, whether it is conservative or liberal. But something about their account of the appeal of originalism seems dishonest:
Some advocates of progressive originalism assert that originalism carries unique authority because it depicts judges as neutral umpires bound to apply disinterested rules of law. But this account of originalism's appeal is flatly wrong. Originalism rose to prominence in the Reagan era because, as Edwin Meese put it in an uncharacteristic moment of candor, it promised to remake the Court in a way that would halt the slide toward "the radical egalitarianism and expansive civil libertarianism of the Warren Court." Originalism was successful because it implicitly pledged to reconstitute the Court in ways that would entrench conservative values in matters of faith, family, race and property. Wherever the theory of originalism produces results that are inconsistent with this pledge, it is blithely ignored. Voters are not attracted to the discipline or jurisprudence of originalism; they are drawn instead to its capacity to reshape Supreme Court precedents into a "living constitution" for right-wing convictions.
Really? Undoubtedly, this account of the success of originalism is right in some cases -- though just because some historical explanation helps describe a theory's "rise to prominence" doesn't necessarily mean that explanation does any work to describe its current appeal. Indeed, I'm not sure the historical explanation -- which I will assume to be correct, though it too is contestable -- does explain its current appeal. Obviously, many professors and well-educated lawyers embrace originalism today for reasons that have little to do with a Republican policy agenda. More importantly, however, I'd give "voters" a bit more credit too: many are perfectly capable, as we are, of obsessing about the so-called countermajoritarian difficulty and many are perfectly capable, as we are, of distinguishing interpretive preferences from political policy preferences.
In short, I think Post & Siegel will need to concede that originalism has some of the virtues they are hoping to deny -- and provide reasons to reject it anyway. Some of that they do later in the column. But I don't think their causal story about originalism's rise to prominence helps their case much.
OJ, Apprendi, and Punishment for Acquitted Conduct
Loathe though I am to wade into the swamp that is the OJ Simpson mess in Las Vegas, it does raise at least one interesting legal issue. In determining the appropriate sentence for OJ in this case (in the event that he is convicted or pleads guilty, events I have no ability to foresee) could a judge sentence him more severely because she believes that he committed a double murder in Los Angeles more than ten years ago?
I don't know what the result is under Nevada law, but it seems fairly clear that a judge could do so consistent with the United States Constitution. The Supreme Court has held that conduct of which the defendant was acquitted may be considered by a sentencing judge so long as it is demonstrated by the prosecutor to a preponderance of the evidence. Although the Supreme Court has emphasized the role of the jury in sentencing in the last several years, a number of circuit courts have recently held that, so long as the judge sentences within a range permitted by the jury's verdict, she may consider acquitted conduct in determining where within that range to fix the sentence.
Usually, sentencing based on acquitted conduct occurs when a defendant is convicted on some charges and acquitted on others and the judge finds that the acquitted charges were proven to a preponderance. But there is nothing in the case law to indicate that a judge can't consider acquitted conduct that occurred years before in another courtroom. Interestingly, in OJ's case, the previous killings have already been proven to a preponderance. Given the fact that one of the charges filed against OJ, kidnapping, carries a potential life term, he could end up spending the rest of his life behind bars, in part because of the crime he was so famously acquitted of committing.
UPDATE: For a discussion of whether OJ has been overcharged click HERE
Thursday, September 20, 2007
The Day of Atonement
The High Holidays have kept me from blogging. But it seems as good a time as any to re-post some of my earlier writing on contracts and annulments -- with reference to the Day of Atonement:
In a few days, Jews around the world will file into synagogues for their Day of Atonement – Yom Kippur. The first part of the liturgy, intoned during the evening services that commence the holiday is called “Kol Nidre,” “All Vows.” It purports to nullify the promises and solemn vows of the entire Jewish community. In some versions, the Kol Nidre is written to pre-empt futural promissory undertakings; in others it annuls previously-made oaths; and in still others it purports to do both.
Lawyers and law professors – especially those of us who practice or study contract law – should be flabbergasted. Commerce and commercial law is predicated on our ability to bind ourselves for the future without being able to annul our promises freely and without consequence. A market system plainly could not function if we were to allow entire populations to nullify their promises – especially ones that do it every year at one of the most well-attended communal convocations. Whether the logic of our promise enforcement stems from a moral commitment to the idea that promises must be kept – call this the “promissory principle” – or a protective commitment to the idea that those who detrimentally and reasonably rely on others’ utterances need compensation – call this the “reliance principle” – it would seem to be astonishing that Jewish practice contemplates a legal system where promises could be so easily and regularly annulled and ignored.
In fairness, although the “Kol Nidre” service is nearly universally heard in contemporary synagogues, it was instituted as part of the regular Yom Kippur proceedings only over vigorous rabbinic objection: many rabbis were outraged by the ease with which people were relieved of their obligations. More, those who hear the blessing tend to be moved by the unique and ethereal tune that signals the beginning of the holiest day of the year; few really think they are free from their promises. Most importantly, however, virtually everyone agrees that the nullification applies only to vows and oaths made with oneself and made with god; one cannot freely and legally annul promises made between and among persons. So it seems civil law and contract law survive Yom Kippur; promises with Jews remain intact even after Kol Nidre’s annulments.
But perhaps there remain embedded lessons in the Kol Nidre service for the age-old dispute between those that believe that the promissory principle undergirds all of contract law and those who believe that we enforce contracts primarily to vindicate the reliance principle.
Patrick Atiyah, a British lawyer, once argued for the reliance principle. He thought it made no sense to enforce promises upon which no individual has relied detrimentally. If the breach of a promise really harms no other person, why should a promisor be required to compensate anyone for his breach? No harm, no foul. Atiyah conceded that the British and American legal systems do, in fact, force people to pay for unrelied-upon promises – but he thought those instances of promise enforcement could only be made sense of by analogy to promises that have triggered reliance.
Harvard law professor Charles Fried, by contrast, has argued for the promissory principle. We enforce contracts because they are promises – and we have a moral obligation to keep our promises. This, better than any reliance theory, explains why we enforce contracts. How, after all, could we know that someone has relied reasonably to their detriment unless we already have an account of why promises entitle people to rely upon them? More, why should the promisor be the one to pay the person who had relied detrimentally? Surely, if the promises themselves do not trigger the right to rely, compensation need not come from promisors exclusively.
Kol Nidre – and its effective application only to contracts with oneself and god – may embrace the reliance principle. By confirming that contracts with others are excluded from free nullification and supporting the idea that we are allowed to disavow any promises made with ourselves and god, Kol Nidre does not embrace the adage that a promise is a promise is a promise – and promises must be kept. On the contrary, a promise is only irreversible and subject to civil enforcement in the earthly world when others can detrimentally rely and be harmed. In the heavenly court – or in our personal consciences – sacred vows need not be kept; Kol Nidre releases us annually. No one relies, triggering the right of reversibility. Kol Nidre helps us see that it is the possibility of meaningful reliance that turns promissory utterances into enforceable contracts; the force of the promise alone without the possibility of reliance is not an irreversible promise.
Perhaps there is still another lesson: Kol Nidre, at the commencement of the Day of Forgiveness – for that is usually what follows from atonement – reminds us that we are terribly good at forgiving ourselves for our failures. We easily and regularly absolve ourselves of our sacred oaths and vows – and god is similarly free with his mercy.
What all this forgiveness at the beginning of the holiday prepares us for is the much more difficult task of forgiving one another for our failures and broken promises. We are ultimately allowed to rely on one another’s promises because full forgiveness does not come readily. The law will not ask of us more than can be reasonably expected. All the same, Kol Nidre reminds us how reparative and useful forgiveness can be, not only with ourselves and the deities in which we happen to believe – but also with each other. That is the underlying spirit of the holiday and should be of interest well beyond the world of contract law and theory.
Continuing my focus on international and transnational issues.... Over at Opinio Juris (Link), Roger Alford of Pepperdine Law School (Link) has an interesting post about American exceptionalism. Roger questions whether the U.S. is truly an outlier on human rights treaties, and suggests the need for a more vigorous method of comparativism. He then argues that a proper comparative method may not be feasible because of its inherent complexity. He concludes by saying that “scholars and judges typically opt for narrow, shallow, and simplistic comparisons, and make hollow pronouncements about American exceptionalism.”
I’m not sure I agree with Roger’s broad critique (or condemnation) of comparative analysis. But that’s not the point of this post. I wanted to focus on a related issue – not whether American exceptionalism exists as a descriptive matter (Roger’s question), but whether exceptionalism is something that the U.S. can appropriately use to disregard international norms that the U.S. believes should be binding on others.
For some scholars, American exceptionalism – the idea that the U.S. is sharply different from the rest of the world – means that the U.S. should be unbound by the rules it promotes (e.g., treatment of Guantanamo Bay detainees, extraordinary rendition etc.). American exceptionalism is then a claim not just of difference (perhaps the Tocqueville definition), but a claim of superiority. Often exceptionalism, in this form, is a way to protect constitutional prerogative: a means to shield state rights from incursions from federally created treaty-based norms (think the Bricker Amendment in the mid-1950s). A slew of scholars - commonly referred to as sovereigntist, nationalist or revisionist, and often drawing from neo-realist strands of IR - have published papers in recent years that embrace this view.
This line of argument always surprises me. I am willing to believe that the U.S. is an exceptional country, populated by unique people, who have an exceptional role to play in world affairs. But I’ve never understood why, as a matter of legitimacy, this suggests that the U.S. should move away from international norms that it strongly promotes elsewhere and has helped create (normally in the area of human rights). This is not to naively endorse all international norms. But surely it would be easier to stop promoting the norms, rather than take a double-standard and in so doing risk undermining the legitimacy of those norms. In fact, many forms of American exceptionalism – the idea of strong, individual civil rights and freedoms – were the foundation of the world’s transformation that occurred under the American lead after World War II. One who truly believes in American exceptionalism, might then well turn towards international law as a way to continue to shape it in the U.S. image. American exceptionalism would then be a reason only to resist international norms that the U.S. did not have a hand in creating and are antithetical to American values (not the case with basic human rights). Perhaps more problematic: if the U.S. can use the concept of American exceptionalism to excuse itself from following norms that it seeks to have others follow, what stops other countries from claiming the same “exceptionalist” entitlement when seeking to avoid compliance with the human rights norms that the U.S. holds most dear?
Well there’s my hollow pronouncement for the day….
About a month ago, Ilya Somin at the Volokh Conspiracy asked whether he should continue to teach the Rule Against Perpetuities in his Property class. I'm going through something similar with my Torts class. In the past, I've taught Torts as a one-semester, four-credit course. Now, I'm teaching it as a two-semester, six-credit course. On one hand, that's great because I now get to teach fun stuff like defamation and privacy. On the other hand, the shift is requiring me to make some tough coverage decisions in order to have time to cover said fun stuff in any detail. For a brief moment there, I actually considered cutting Palsgraf v. Long Island Railroad Co. on the theory that it was more trouble than it was worth and that other decisions do a better job of illustrating the concepts of duty and proximate cause. Torts professors everywhere will be relieved to know that I quickly came to my senses and decided to leave the case in the syllabus. Instead, I decided to cut out DeShaney v. Winnebago County Dept. of Social Services, skimp a little more on immunities in general, and eliminate the last clear chance doctrine entirely.
Since there are probably prawfs out there making similar coverage decisions, what sacred cows of the required curriculum -- be they cases or rules of law -- might actually qualify as deadwood? Comments from students who have had to endure cutting through such deadwood are particularly encouraged.
Can I Sue You for Killing Me in Grand Theft Auto?
Miami attorney Jack Thompson, a long-time foe of the video game industry, has made murder accusations against the makers of Grand Theft Auto IV, an anticipated release in one of the most popular (and controversial) game offerings of all time (Gamepolitics via Fark).
The victim of the murder? Attorney Thompson himself. The only quirk here is that the murder occurs in a fictional video-game universe.
Thompson claims that he is the target of an assassination "mission" early in the game, and has filed a (somewhat odd) letter with a Florida court demanding that the game be changed prior to its release. (The letter ends, "Govern yourself accordingly, or else.").
Does a publicity-friendly lawyer have a right not to be parodied in a violent video game? Although the "right to publicity" argument might be weak in circumstances like this, in the Tony Twist case a hockey player parodied in a comic book did manage to win a $15 million judgment.
Wednesday, September 19, 2007
CJR @ SU follow-up (BG)
Incidentally, there were about 6-8 individuals apparently "protesting" the Chief Justice's appearance. Two held signs saying "Bong Hits 4 Jesus" (one included a citation to the case!); another person's sign read "Roberts, Don't Taser me, Bro!"
Smith on "Our Agnostic Constitution"
Steven D. Smith, of the University of San Diego, has posted an interesting new paper, Our Agnostic Constitution. Here's the abstract:
According to an argument heard a good deal lately, the fact that the Constitution says nothing about God means that we have a “godless Constitution,” and that fact in turn entails that government and politics in the United States must be godless or, in the more usual locution, secular. The commitment to secular government in turn precludes governmental sponsorship of religious expressions (such as the national motto - “In God We Trust”) or of religious symbols (such as Ten Commandments monuments). In this article, I argue that this interpretation of our “godless” Constitution is importantly correct - but even more importantly mistaken. The Constitution is godless or, more precisely, agnostic. And the fact that the Constitution is agnostic tells us something crucially important about our constitutional order. But the agnosticism of the Constitution does not entail that governments operating under the Constitution must be agnostic, or must refrain from religious expression. On the contrary, paradoxical though this may initially seem, it is precisely the Constitution's agnosticism that permits governments to engage in such expression.
At a first read, I'm not convinced by some of the moves in this paper. I'm concerned about the extent to which, in discussing permissible religious expression under an "agnostic Constitution," it fails to distinguish fully between "government(s)" and government officials, and the way in which it seems sometimes to equate the political community, broadly speaking, with the government itself. In my view, an agnostic Constitution might permit religious expression by some of these bodies and not others; government officials but not governments, for instance, or, more restrictively, by the "community" but not by government or its officials. I tend to think that an appropriately agnostic approach to the Constitution forbids a good deal of official religious speech that Steve would permit, while allowing citizens and individuals within government to engage in a good deal of religious speech of their own.
Nevertheless, this is a typically readable and fascinating paper. I'm thrilled to see someone expounding on the ways in which agnosticism may help us understand the Religion Clauses, and on the "layered complexities" -- and occasional "Adrian Monk-like paralysis" -- of agnosticism itself. If I may use a freighted term, Steve truly is a beguiling writer, and this paper is well worth the time of any law and religion scholar.
Chief Justice Roberts at Syracuse University (Blumenthal Guest)
I’ve just returned from a speech by Chief Justice Roberts here at Syracuse University, where he delivered a keynote address celebrating the dedication of a new building for the Newhouse School of Communication (“Newhouse III,” the third building in their complex). At the moment he is involved in the actual ribbon-cutting and reception festivities, while I type away here.
I’ll try to simply report what was said, without comment. Note, too, though, that this is usually paraphrasing from my notes, so my rendering of his comments may be infelicitous. I imagine that shortly the text of his remarks will be up on a Syracuse University website.
The first speaker was David Rubin, Dean of the Newhouse. He discussed the Newhouse III building, emphasizing what really is a striking feature—the building has a glass exterior, with the words of the First Amendment etched in 6-foot tall letters around the building. He told a story of being approached by the father of a visiting high school senior who saw the building and told Dean Rubin, “Now I know this is Newhouse—with the First Amendment etched on the outside, what other building on campus could it be?” (I will not report my response and the response of every law school individual I spoke with. . . .)
Dean Rubin emphasized the importance of the First Amendment to Newhouse, recalling New York Times v. Sullivan. He recalled the dedication of the first Newhouse building, in 1964, by President Lyndon Johnson, where the Gulf of Tonkin speech was delivered. (Newhouse II was dedicated in 1974.) President Johnson was introduced by S.I. Newhouse; Chief Justice Roberts was next introduced by S.I. Newhouse, Jr.
Newhouse Jr. spoke briefly, mentioning a closed session this morning at which the Chief Justice met with about 40 journalism and law students. As a hearsay digression, after the speech I spoke with a student who was told by other law students who had attended that session, that the Chief Justice was more relaxed and informal there, more comfortable giving “off-the-record” responses, though he “avoided” questions about cases such as the upcoming Guantanamo case.
The Chief Justice then spoke. He made quite a good impression as a speaker: comfortable, witty, well-spoken--unsurprisingly. After the obligatory joke about Syracuse weather he commented about the building renovation project going on at the Supreme Court building, the first, he said, since 1935. He admired Newhouse III's glass exterior, saying it brought to mind Justice Brandeis’s comment that “sunlight is the best disinfectant.”
He built the remainder of the speech around the First Amendment inscription. He noted that the First Amendment is part of an entire Constitution; it “draws on and gives support” to the remainder of the constitutional text. He’ll discuss that idea in the context of freedom of the press:
The First Amendment was a break with English policy. It is a limitation, he emphasized, on government’s power, not individuals’. Discussion between members of the public isn’t the purview of the First Amendment, but rather that of communication. But even the protection of the First Amendment is limited—the “fire in a theater” example.
The First Amendment was part of a Constitution that was designed to encourage government that was responsive to the public. Thus, the Framers recognized that a democratic government needs public discussion. The press has an important role in disseminating information to encourage that sort of debate.
Quoting a 2006 interview with William Safire, he suggested that the press has always acted as a check on government. The Framers developed the First Amendment to protect freedom of the press because of their familiarity with, and understanding of, working without a free press. He recounted the Zenger trial, focusing on his view that its verdict was a break with the English view that the sovereign is beyond criticism.
He then turned to what was probably his real message. He said that the words of the First Amendment were wonderful, but words alone won’t protect you. He quoted at length a document that guaranteed freedom of press, of speech, of religion, of assembly—the “1977 Constitution of the Soviet Union.” “All lies,” he said.
Society needs an independent judiciary to give substance to constitutional guarantees. He cited Alexander Hamilton in Federalist No.78, saying that an independent judiciary was designed explicitly to preserve the Constitution's limits on the other two branches.
This is especially so, he suggested, in the First Amendment context. We need the First Amendment to protect unpopular speech, especially in the context of political debate, as government often responds to public criticism by using its power to silence its critics.
The Framers knew courts would end up rendering unpopular decisions, especially in the First Amendment context. Courts might not rule the way they do in the judiciary were subject to political and public response. So he is "surprised" at calls for limits on judicial independence, such as term limits, etc.
The First Amendment, he said, would be the first victim of a non-independent judiciary. Anyone valuing freedom of speech should value an independent judiciary. It's not just the words: we need an independent judiciary to protect and enforce the First Amendment. Don't respond to disagreement with court opinions by weakening the judiciary.
(Re-)Introduction (Blumenthal Guest)
My apologies for getting a late start on this welcome opportunity to reappear. PrawfsBlawg was kind enough to invite me back; I hope I can have something to say over the next couple weeks. For starters, a Happy and Healthy New Year to anyone celebrating it (what the heck, even if you're not . . .).
Shortly I'd like to post about Chief Justice Roberts's visit today (right now) to Syracuse University, where he delivered speeches marking the dedication of a new building at the Newhouse School of Communication.
Thanks again for having me back.
Just want to wish the Prawfs readership a happy Talk Like a Pirate Day.
Tuesday, September 18, 2007
Privacy, Snooping, and Divorce Law
This front page story in the Sunday NYT caught my attention over the weekend: Tell-All PCs and Phones Transforming Divorce. Here's an excerpt:
The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.
Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.
Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.
“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”
Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.
"Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”
I've written about the importance of protecting yourself from private snoops not only for its own sake but because courts will look to how you have guarded your private information when the government seeks access to that same information. This Times story does nothing to change my mind on that front.
But it also raises a number of other legal and ethical issues for divorce lawyers. What are the responsibilities of a divorce attorney with regard to the snooping of her clients? Should she encourage her clients, once they have decided that they are going to file for divorce, to gather every piece of evidence that the law would allow? Should she turn a blind eye to snooping that crosses the line to illegality? An even harder set of questions arises when the client suspects but can't (yet) prove infidelity; the article makes clear that once a spouse has crossed the line from suspecting to snooping, the relationship may be doomed regardless of what is ultimately found. At a minimum the article makes clear that divorce attorneys have an obligation to inform themselves regarding both the law and technology of surveillance.
Finally, it's clear that cheaters are fighting technology with technology. A French (of course) website offers to help cheaters by providing a documented alibi -- well-timed phone calls, restaurant receipts, etc. -- for a fee. The ethical issues here are a little clearer.
Monday, September 17, 2007
Extraterritoriality and International Law...
Some interesting news. Today the EU’s second-highest court dismissed a Microsoft appeal that sought to overturn fines levied against Microsoft for its alleged anticompetitive conduct. The EU decision is commonly cited as an example of the EU applying its antitrust laws to regulate conduct occurring beyond its borders (or, at least, not providing sufficient deference to U.S. antitrust law/decisions). (Link) Other similar high-profile lawsuits that have an extraterritorial component have recently been in the news. In late August, for example, there was a flurry of news articles over a lawsuit filed against Yahoo in federal court in San Francisco for conduct occurring in China. That lawsuit arose after Yahoo revealed the identity of Chinese dissidents to the Chinese government (the dissidents were allegedly then jailed and tortured). (Link) Some commentators have noted an apparent inconsistency with the position that Yahoo has taken in the Chinese dissident case, and the position it took in an earlier extraterritorial lawsuit, when it was sued in French courts for selling Nazi memorabilia on its U.S. auction site. (Link).
I’d like to focus on the broader implications of these kinds of cases, without commenting on the merits or substance of these lawsuits. To my mind these lawsuits, which seek to regulate conduct that occurred abroad, may reflect larger trends occurring in international law and relations. I see a connection between the growth of countries using domestic laws extraterritorially and the decline of countries using international law to address global challenges. I’d be interested in what people think.
In the last ten to fifteen years, the U.S. has disengaged from traditional international lawmaking. Although the U.S. uses international law regularly to influence the activity of other countries, since the mid-1990s the U.S. has been reluctant to enter into new multilateral commitments and has unsigned or retreated from a number of treaties (e.g., the Kyoto Protocol, the Rome Statute/ICC, the optional protocol on the Vienna Convention re: Consular Relations, the ABM treaty, the Nuclear Nonproliferation Treaties etc). This is not to criticize the withdrawal in any one context – some unsignings or refusals to sign may have been for good reasons. Yet overall the trend is clear: the U.S. has become nervous about international lawmaking (particularly multilateralism).
But with globalization, international problems have not gone away. Replacing the void that multilateral treaties once filled seems to be an increase in the use of domestic law to solve global problems (i.e., extraterritorial laws), rather than international law. Often these lawsuits have been spearheaded by NGOs, who at one point operated at the international level. In the U.S., extraterritorial laws are controversial but have been around for years. On the private law side, think antitrust and securities laws. On the public law side, think universal jurisdiction and alien tort statute claims. The Cuban embargo is another controversial example of an extraterritorial law.
Extraterritoriality, however, is no longer just an American phenomenon. Extraterritorial laws are now commonly used in other countries. Other countries have turned to applying their commercial and public laws to conduct occurring abroad as a way to project their global influence. The EU antitrust case against Microsoft and the french lawsuit against Yahoo are good examples in the commercial law context. The criminal suits against Rumsfeld, Tenet, Yoo and others in Germany for alleged war crimes are prominent examples in the public law context. (Link)
It seems that the rise of global extraterritoriality may be tied to the U.S.'s unwillingness to solve global problems through international lawmaking. And as advocates and public interest groups seek to resolve international problems through U.S. courts, other countries are doing the same.
I’m nervous about these developments (my reasons I'll save for a different post). But I’d be interested in reactions/thoughts to the general phenomenon.
Breaking News: Chemerinsky WILL be the dean at UCI
---------- Forwarded message ----------
From: "Erwin Chemerinsky"
Date: Mon, 17 Sep 2007 13:07:53 -0400
It is with excitement and sadness that I am writing to tell you that I have accepted the position to be the founding dean of the Donald Bren School of Law at the University of California, Irvine. After meeting with Chancellor Michael Drake at length this weekend, I accepted his renewed offer. He provided me the greatest possible assurance of academic freedom for the dean and all faculty.
It has been one of the strangest and most difficult weeks of my life. I cannot possibly express my thanks for all of the support that I received from the law school's faculty, administrators, and students. I am sad to be leaving this wonderful supportive community, though excited about the new challenges ahead.
Quick commentary after the jump.
I share Brian's sentiment that this was wise for UC-Irvine and fortunate for them as well. Under normal circumstances, the announcement of a new dean at a new law school would simply be filed under the Life of Law Schools category here at Prawfs (if noted at all), but given the brouhaha of recent days, it's clear that it's well-suited under the Law and Politics category as well.
Erwin, as harrowing as this past week must have been for you, you have a great opportunity ahead of you, and I'm sure you'll make the best of it. Good luck with this new venture!
Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School
Call for Applications
Academic Fellowship Program, 2008-2010
The Petrie-Flom Center is an interdisciplinary research program at Harvard Law School dedicated to the scholarly inquiry of important issues at the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research, and bioethics. The Center seeks graduates of exceptional caliber from top law schools or PhD programs in health law, policy and bioethics, and mid-career academic professionals to apply for the highly competitive two-year fellowships to conduct publishable research likely to make a significant contribution to these fields. The fellowship is especially focused on preparing or furthering advancement in participants’ career track in academia. For information on our inaugural group of fellows, please consult the Center’s website. The actual Call for Applications and instructions can be downloaded here.
The Fellowship entails:
- Full-time residency for two years
- A $60,000 stipend per year
- Health insurance, appointment fees, and an additional budget for research expenses
- No teaching responsibilities
- An office in our new facilities on the Harvard Law School campus
All application materials must be submitted electronically. The final application deadline is November 15, 2007.
Friday, September 14, 2007
I just received in the mail a copy of Jeffrey Toobin's new book, The Nine: Inside the Secret World of the Supreme Court. I am kind of a sucker for these "behind the scenes" Court-related books, so I will probably read it soon. I really enjoyed Jan Crawford Greenburg's Supreme Conflict (link), and so I'm interested to see how Toobin's book compares, particularly when it comes to the Roberts, Alito, and Miers nominations.
I shouldn't hold it against the book, I know, but some of the blurbs and bits in the Doubleday release that accompanied my copy were a bit eyeroll-inducing -- at least, they would be to those who, like me, think that all this talk about the Supreme Court's "dramatic turn to the right" misses the mark, or is at least premature. It's a bit much, I think, to promise "the story of Samuel Alito's decades-long role in the fight to overturn Roe v. Wade based on his Casey opinion. And, Toobin's publicists -- looking for human-interest bits, I suppose -- describe as "unlikely" a friendship between Justice Thomas and a lesbian law clerk whose parter was a professional snowboarder. Of course, those who know Justice Thomas know that there is nothing "unlikely" about a friendship between Justice Thomas and, well, anyone.
At the "heart" of Toobin's account, apparently, is the "personal transformation of one person -- Sandra Day O'Connor." A big part of his story is what he claims was Justice O'Connor's increasing "alienation" from the Bush Presidency.
We'll see . . .
Thursday, September 13, 2007
Using Domestic "Foreign" Sources
Austen's terrific post on the use of foreign law in U.S. constitutional decisions, particularly decisions of the Supreme Court, has occasioned many valuable comments. As some commenters suggest, for one whose methodology of constitutional interpretation directs them to search only for contemporary meaning as of ratification, modern foreign legal sources may not be legitimate sources for interpreting our own Constitution. (I say "may" only; depending on how and why you're an originalist, much might depend on the original understanding of the relevant rules for interpreting the Constitution, and what sources might be legitimate under that interpretive approach.) I'm not a hard and fast originalist, and so am not as constrained by that approach; but I agree that there is a point at which, between these competing methodologies, the conversation runs out. Although it also seems to me that where the original understanding of some provision is either indeterminate or allows for a range of permissible interpretations, looking at foreign law might at least provide useful empirical evidence of interest to courts. This kind of use of foreign law is best illustrated by Justice Breyer's opinion in Printz.
My current question is a little different from this throat-clearing. Austen notes in the comments to his post that there was a brief vogue of interest in state constitutionalism in the 1970s and 1980s, which seems largely to have faded, although there are still important writers on this subject. And he suggests that we can learn a lot about comparative legal approaches simply by examining our own states and their constitutions. There may be less diversity among them than there is among the community of nations; but there is diversity nonetheless. The question I want to ask is, why don't more legal scholars undertake local comparative constitutional law, focusing on states within our republic, rather than foreign comparative constitutional law? Why has the vogue for comparativism looked abroad, rather than looking closer to home?
Of course, there may be sound reasons for this; among them, as I've already suggested, is that there is less diversity among the states than there is between the nations. But allow me to venture a more sociological answer, albeit a tentative one: Because it's less sexy, less prestigious, less attractive to the trend-setting elites in the legal academy, and in many ways harder work, to focus on differences among the states than it is to dip at leisure into the laws of other nations. Interest in state constitutional law has, alas, mostly subsided; the conferences, money, and attention follow comparative foreign constitutional law. (Would you rather debate these issues in Tel Aviv or Paris, or in Springfield and Carson City?)
Again, I'm not suggesting that the sociological explanation is the only one. But I am suggesting that we shouldn't overlook it; as one of my mentors certainly has taught me through his work, legal scholarship is a human enterprise like any other, and sometimes it helps to think of it in terms of motives and resources, and not just ideas. I've done some comparative constitutional law myself, and I'm not criticizing the field. But it would be nice if more people would toil in the field of comparative state constitutional law, unglamorous as it is, than offer up one more casual (and often confused) cite to a foreign court decision.
Pico & Self-Help Remedies
BROOKWOOD | Fifteen-year-old Lysa Harding picked a book at random from Brookwood High’s library for a book report last week.
Now, she doesn’t want to return it.
Harding and her grandmother, Pam Pennington, say the book is too sexually explicit and shouldn’t be on school library bookshelves. . . .“This book is sick,” said Pennington. “I’m 50 years old, and I’ve raised 11 sets of kids and been through many a library, and I’ve never seen a book like this in a school library before.”
The novel, “Sandpiper” by Ellen Wittlinger tells the story of a 15-year-old girl named Sandpiper Hollow Ragsdale, who is on a “sexual power trip and engages in random hookups” for oral sex, according to a review by the School Library Journal. Ragsdale befriends one boy, but then is abused by another.
* * * *
Harding . . . said she believes the book goes into too much graphic detail for a high school crowd.
“I honestly believe that it should not be at school, because at my school they teach abstinence and no sex before marriage, but then all the book is teaching is how to do those things,” she said.
. . . . The school system has a procedure to complain about the content of books, [a school official] said.
But Pennington and Harding are standing behind their belief that the book is inappropriate for any school. They said they don’t intend to return the book. Harding faces late fees or a $25 charge to replace the book if it’s not returned by Friday.
“I feel that it is the most mature thing to do, to keep it off the shelves,” she said.
It's Rosh Hashana, a time for reflection and resolution. Haaretz has this morning a set of stories, predicting what our world will look like in 2027 - financial markets, high rises, popular culture, journalism, international relations. Nothing too unpredictable (at least no bad predictions about a nuclear escalation but nothing too innovative either). Anyone feels like taking a shot? or sharing some resolutions?
Have a sweet year and Gmar Chatima Tova.
Competence and Quitting
We have an interesting issue brewing here in my new hometown of Knoxville. The town's Public Defender, Mark Stephens, believes that his attorneys are so overburdened that they are not able to live up to their ethical obligation of competent representation. His proposed solution? The PD's office must stop accepting any new misdemeanor cases. Stephens hasn't made good on his threat yet, and he and the General Sessions Court judges in Knoxville are discussing possible options. But it will be interesting to see what happens. You can read about it here and here.
Obviously, the problem of public defenders being unable to manage their caseloads isn't unique to Knoxville. In one recent case, a poor public defender in Ohio was held in contempt after refusing to proceed to trial with a case he had just been assigned the day before. The judge's actions there strike me as unfair and potentially dangerous based on my limited knowledge of the facts. But I'm sort of torn as to what I think about Stephens' proposed, across-the-board solution. If these weren't public defenders, but were instead just regular old private lawyers, there wouldn't be any issue here: a lawyer can't ethically represent a client if the lawyer can't do so competently. But these obviously aren't just regular old private lawyers and we aren't just talking about one client. While I think I'm o.k. with Stephens threatening not to take any more misdemeanor cases if it produces the desired outcome, I'm not sure what I'll think if he actually pulls the trigger if and when his bluff(?) is called. I've brought the matter up a couple of times in my Professional Responsibility class, but I'm afraid I'm not doing the matter justice. Not being a criminal lawyer myself (indeed, I lost the one and only traffic case I ever tried), I'm curious what those in the criminal law field think about all of this.
Wednesday, September 12, 2007
The Situation at Ave Maria School of Law
There has been a fair bit of comment and discussion on the blawgs about the situation at Ave Maria School of Law. In case Prawfs readers are interested, I've posted (below the jump) the full text of a statement, signed by the law professors who blog at "Mirror of Justice", about that situation.
MOJ Joint Statement on the Situation at Ave Maria School of Law
We, the members of Mirror of Justice, are a group of Catholic and Christian law professors and former law professors. We wish to express our profound concern with the course of events at Ave María School of Law (“AMSL”). While we differ among ourselves in our religious and political convictions, we share a commitment to Catholic legal education and respect Ave Maria's serious desire to express its religious identity. We write as legal academics and as persons who believe and expect a Catholic law school to be “a living institutional witness to Christ and his message.” (Ex Corde Ecclesiae, ¶ 49).
It should be mentioned at the outset that the signatories have varying degrees of knowledge about the facts, but collectively we have strong reason to believe the veracity of the factual allegations set forth in this statement. If, however, we have mischaracterized or misstated a fact, we stand ready to correct our statement.
In April of 2007, the Association of Ave María Faculty, which represented a vast majority of Ave María’s faculty, publicly stated that the AMSL Dean had employed “threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of [the Chair of AMSL’s Board].” They further alleged financial punishment, the monitoring of faculty email and voice mail, and “manipulation of the promotion and tenure system.” They also reported that “[o]ne tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations” and that “junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty.”
Since April, the Dean and the Board’s Executive Committee have begun the process of revoking the tenure of a founding member of the law school’s faculty. The Dean and Executive Committee took the additional extraordinary step of suspending this tenured faculty member, a father of seven, without pay pending the conclusion of the proceedings. This suspension and supporting allegations falsely impugn the suspended professor’s integrity and bring into question many administrative decisions governing AMSL. The Dean and the Board have also denied tenure to two other faculty members who were widely viewed as critics of the AMSL administration. In their cases, the Dean and Board took the additional and extraordinary step of putting them on involuntary paid leave, in effect suspending them, taking away their offices, and barring them from participating in the daily life of the law school during their terminal year.
The Situation as Judged by the Standards of the Academy
As legal academics, these actions of AMSL’s administration and governing board cause us grave concern both substantively and procedurally. While there are many areas of concern, the attempt to revoke the tenure of a founding member of the AMSL faculty serves as an exemplar. The ABA’s sample “Statement on Academic Freedom and Tenure,” the “1958 Procedural Standards in Faculty Dismissal Proceedings” (a joint statement of American Association of University Professors (“AAUP”) and the Association of American Colleges and Universities (“AACU”), and the “1940 Statement of Principles of Academic Freedom and Tenure” (a joint statement of AAUP and the AACU), contribute to our judgment.
All three documents contemplate faculty involvement in the tenure revocation process. The 1958 Statement contemplates an investigation of the accused professor by a faculty committee elected by the faculty, a decision by the same faculty committee on whether to recommend commencement of formal proceedings against the accused, and a faculty committee to conduct the hearing and makes its recommendation to the governing body. After initial consultation with the accused, the dean’s and/or president’s involvement appears limited to issuing the formal charges and helping the faculty committee develop its case. The governing board should either accept the faculty committee’s recommendation or remand with specific objections. “Only after study of the committee’s reconsideration should the governing body make a final decision overruling the committee.”
It appears that the investigation and decision to seek tenure revocation were made by the Dean (possibly in conjunction with the Executive Committee of the Board) without the requisite faculty participation. The Dean received a “no confidence vote” from the faculty in April of 2006. A year later, a majority of the faculty accused him of engaging in intimidation and retaliation. Sacrificing the appearance of impartiality, he chose to ignore the 1958 Statement’s guidance, which provides that “[a] necessary precondition of a strong faculty is that it have first-hand concern with its own membership. This is properly reflected both in appointments to and in separations from the faculty body.”
The ABA’s sample statement, the 1940 Statement, and the 1958 Statement provide similar clarity with respect to suspension and pay during suspension. The 1958 Statement provides: “Suspension of the faculty member during proceedings is justified only if immediate harm to the faculty member or others is threatened by the faculty member’s continuance. Unless legal considerations forbid, any such suspension should be with pay.” And, the ABA sample statement contemplates the institution continuing to pay the professor (except in extraordinary circumstances) for at least a year after “notification of dismissal.”
AMSL has suspended the faculty member subject to tenure revocation without an impartial finding that his presence would cause the kind of harm contemplated by the standards governing academic freedom. AMSL has taken the additional extraordinary measure of suspending this faculty member without pay prior to a hearing on the merits. It also appears that AMSL has suspended – placed on involuntary paid leave - the two professors who were denied tenure during their terminal year. But, for what cause were they suspended? And, pursuant to what procedures?
The AMSL administration has violated several procedural norms of the secular academy. In this case, we see no tension between those norms and the norms of faith and reason that should guide a Catholic law school. Indeed, what has happened at AMSL appears to us to violate core Catholic norms.
The Situation as Judged from the Teaching of the Catholic Church
The actions of AMSL’s administration and governing board cause particular concern for us as legal academics involved in the development of Catholic Legal Theory. We applaud the effort to build a law school that consciously draws upon and engages the rich intellectual, liturgical, moral, ecclesial, and social justice traditions of the Catholic Church, integrating them into the daily life of the law school community. AMSL had this vision in mind when it opened its doors in 2000, but it is now clear that the Catholic nature vital to its founding and sustenance has been derailed as evidenced by the administration’s treatment of the faculty member subject to tenure revocation and the suspensions of those denied tenure.
Pope John Paul II’s Apostolic Constitution on Catholic Universities, Ex Corde Ecclesiae, together with general principles of Catholic Social Teaching, which can be found in abridged form in the Pontifical Council for Justice and Peace’s Compendium of the Social Doctrine of the Church, guide our judgment.
The human person, imbued with transcendent dignity, rests at the center of the Catholic Church’s social teaching. The Church teaches that the person is a social and creative being. The first and most vital cell of human community is the family; therefore, the Church’s social teachings require the larger society to respect, protect, and nourish the family. See generally Compendium ¶¶ 252-254. Because of the human person’s creativity and in light of the need to earn a living to provide for oneself and one’s family, procedural and substantive protections for employees has long been of critical concern in the Catholic social tradition. See generally Compendium ¶¶ 301-303. The Church’s social tradition recognizes a “special relationship” between the family and work, understanding that the well-being of the employee has a direct relationship to the well-being of the family. See generally Compendium ¶¶ 248-250.
Ex Corde states that a Catholic institution of higher learning “pursues its objectives through its formation of an authentic human community animated by the spirit of Christ. The source of its unity springs from a common dedication to the truth, a common vision of the dignity of the human person and, ultimately, the person and message of Christ which gives the Institution its distinctive character. As a result of this inspiration, the community is animated by a spirit of freedom and charity; it is characterized by mutual respect, sincere dialogue, and protection of the rights of individuals.” (¶ 21). The Catholic institution of higher learning is called upon to address “serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, …” (¶32). In short, “the promotion of social justice is of particular importance” to Catholic institutions of higher learning. (¶34).
Procedural fairness, truthfulness, and concern for the person and the family are central to Catholic notions of justice. As the examples stated above suggest, AMSL has failed to live up to its commitment to be “a living institutional witness to Christ and his message.” (Ex Corde, ¶ 49). In suspending the one tenured and two untenured faculty members, AMSL has deprived them of the dignity of their work – their vocation – without adequate process. And, in suspending the tenured faculty member without pay, AMSL has failed to take into account the well-being of that faculty member’s family.
By the failure to live their Christian commitment, the AMSL Dean and Board cause scandal in the legal, academic, and religious communities. This scandal is exacerbated by the fact that their actions are taken on behalf of a law school named for the Blessed Mother of Christ. We echo this sentiment expressed earlier by an MOJ contributor: “The hour is not too late for [AMSL’s Dean and Board] to model for the legal and academic communities the essence of a Catholic Christian law school. In fact, [we] would suggest [that they] have a better, clearer opportunity to mirror Christ now than when [they] first began because the only path left open is through the cross. It may not be what [they] had planned, but God works in mysterious ways.”
We pray that all involved with AMSL will have the courage to exercise the convictions of Christian discipleship to reconcile all parties involved in the matters we have discussed. Moreover, we make ourselves available to assist all in finding remedies dictated not only by the academy but also by Christ and the teachings of his Church. In Christ, we remain:
Robert John Araujo, S.J., Boston College Jesuit Community
Stephen M. Bainbridge, William D. Warren Professor of Law, UCLA School of Law
Thomas C. Berg, St. Ives Professor of Law, University of St. Thomas School of Law (Minnesota)
Patrick McKinley Brennan, John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law
Richard W. Garnett, John Cardinal O’Hara, CSC Associate Professor of Law, Notre Dame Law School
Elizabeth R. Kirk, Associate Director, Notre Dame Center for Ethics & Culture (formerly a member of the Ave María Law School faculty)
Eduardo M. Peñalver, Associate Professor, Cornell University Law School
Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University School of Law
Mark A. Sargent, Dean and Professor of Law, Villanova University School of Law
Michael A. Scaperlanda, Gene and Elaine Edwards Family Chair in Law, University of Oklahoma College of Law
Elizabeth R. Schiltz, Associate Professor of Law, University of St. Thomas School of Law (Minnesota)
Steven Shiffrin, Charles Frank Reavis, Sr. Professor of Law, Cornell University Law School
Gregory Sisk, Orestes A. Brownson Professor of Law, University of St. Thomas School of Law (Minnesota)
Susan J. Stabile, Robert and Marion Short Distinguished Chair in Law, University of St. Thomas School of Law (Minnesota)
Robert K. Vischer, Associate Professor of Law, University of St. Thomas School of Law (Minnesota)
(institutional affiliations given for identification purposes only)
Leiter Crosses the 49th Parallel
Students of law school rankings, Canadian law students, or, heck, just everybody may be interested in the latest issue of Macleans magazine, which contains its first ranking of Canadian law schools. (Alas, most of the good stuff is in print form only. Feel free to send me a copy.) As Brian Leiter, who designed the rankings system used by the magazine, discloses, the overall rankings placed the University of Toronto -- my alma mater -- first, followed by McGill and Osgoode. Since it favors the school whose degree hangs on my office wall, I concur thoroughly with Brian's study.
Macleans also has an interview with Brian about the methodology of his rankings. I was interested in one remark midway through the interview, discussing why, if I understand it correctly, his count of citations to faculty articles drew only on citations in Canadian law journals:
[Q] Why did we survey only Canadian law journals in our citations measure?
[A] I can see no reason why the measure of scholarly excellence in Canadian law schools should be citations outside Canada.
I like the pro-Canadian tone. While I would agree that there is no reason why the sole measure of scholarly excellence in Canadian law schools should be citations outside Canada, however, I don't see why the sole measure of scholarly excellence in Canadian schools should be citations within Canada -- particularly when, as Brian says elsewhere in the interview, the scholarly community in Canada is "in some respects an international one." I'm not saying this because I think it will help Toronto, certainly; some faculty members at both Osgoode and McGill would do quite well if the rankings had counted non-Canadian journal cites (as would some Toronto faculty, of course). Rather, it's because it's my assumption, and hope, that many Canadian law professors are well positioned to participate in the scholarly dialogue beyond their borders and outside the somewhat thin numbers of Canadian law journals.
This is just a quibble, of course, although having published on both sides of the border it's one with a personal element. Regardless, the covert Canucks among our readership and writership should be interested in Brian's latest contribution to the law school rankings conversation.
Belle Lettre's If/Then Music List
So it appears I'm going to be sticking around here for another month. Thanks to Dan and his fellow Prawfspeople for the vote of confidence.
Over at Law and Letters, Belle Lettre has a great list of If/Then music suggestions. Surf over and soak it in. A couple of my favorites on her list:
- If you like The Jayhawks, Lyle Lovett and other "alt country," then you might like Wilco and the Old 97's.
- If you like the female power piano pop of Fiona Apple but want to tone it down with a bit of plaintive Sarah McLachlan, then you might like Rachael Yamagata.
Good Stuff. Enjoy!
Could This Be True???
Just last week it appeared that UC Irvine had scored the amazing coup of landing Erwin Chemerinsky as the founding dean of its law school. For a brand new school to land such a well-known scholar (who had turned down a first-tier deanship only a year ago) seemed almost too good to be believed.
Now Brian Leiter is reporting on his blog that Chemerinsky has already been hired and fired from that post. This would be devastating for UC Irvine. As Leiter quite rightly points out: If this is true, who in their right mind would take the job?
UPDATE: The WSJ online has picked up the story now, confirming the facts with Chemerinsky himself. The WSJ quotes Chemerinsky as saying that he was told that he was fired because his political views would make him "a target for conservatives, a lightning rod." That's really, really bad for UCI. First, Erwin's views, while on the left, are pretty solidly within the mainstream. Second, did they not know his politics before they hired him? No one thought to Google him? Third, if you open your law school by making it clear that you will allow your donors to dictate the political views of your dean, good luck finding qualified candidates of any political stripe willing to take the job.
Tuesday, September 11, 2007
The Use of Foreign Law... And State Constitutionalism
Last week, Justice Scalia was at Thomas Jefferson School of Law in San Diego to give a talk on the use of foreign law in U.S. constitutional decisions. (Link). Scalia opposes the practice, believing that foreign law can almost never be relevant when interpreting the U.S. Constitution.
This topic has received significant attention over the past few years. O’Connor and Ginsburg were subject to death threats a few years ago, after they acknowledged that they believed it appropriate, in certain circumstances, to consider foreign law. Senators have called for the impeachment of Justices who cite to foreign law. In 2005, literally dozens of articles were published condemning the practice. Justices Alito and Roberts were asked multiple questions about the practice during their confirmation hearings. And Scalia has lectured on the topic many times. Decisions in cases like Atkins, Grutter, Roper, and Lawrence were widely criticized because foreign sources were referred to in the decisions.
I have always been surprised at the visceral reaction (I have written on the topic in an article published by the Illinois Law Review: SSRN Link). In this post, however, I do not want to debate the merits of using foreign law (as in “non-U.S.” law) as persuasive authority. Instead, I want to look closer at home. ...
State courts routinely turn to the decisions of other states when deciding their own constitutional questions. And the highest courts of many states encourage the practice. One 2003 study of thirteen state supreme courts found that over one-third of the decisions involving interpretation of state constitutional provisions included citation to out-of-state authority. In more than three-quarters of those decisions, the courts cited to more than one out-of-state decision. No one has challenged the legitimacy of state courts citing to other state courts constitutional decisions (and even the federal Constitution) when interpreting their own unique constitutions.
So the question is why not? For those who oppose the use of foreign law as illegitimate, isn’t it equally illegitimate for state courts to cite to other state constitutions or the federal constitution? If so, why has comparative constitutionalism become such an accepted tradition in state constitutional decision-making? Ironically, unlike on the international level, the debate with state court decision-making is not whether state courts can or should refer to other state decisions; it is assumed. The debate is only whether state courts in consulting those foreign sources have too uncritically adopted other state or federal interpretations of similar constitutional provisions. Stated differently, the debate that ensues at the state level is what weight to afford foreign law (i.e. the out-of-state law), while at the national level the debate is whether the use should be banned entirely.
A natural response exists to explain the difference in practice: that the states have much more in common with one another that the U.S. has with foreign countries. Perhaps true. But surely this is only a difference in degree. If using foreign sources is illegitimate (either through expanding judicial discretion impermissibly, or threatening democratic sovereignty), and those sources are irrelevant (i.e., legal particularism is important) – then surely any decision outside of the jurisdiction is inappropriate to refer to. If state courts are trusted (and encouraged) to use foreign authority as persuasive authority, why do we not trust the federal courts to do the same?
Good Going, Eh?!
This is one of those instances where I must put gratitude and the interests of my former home and native land before Prawfsblawg-promotion. Over at VC, Eugene Volokh posted news about a college scholarship open to bloggers. The original ad suggested that eligibility was limited to U.S. citizens. With the interests of my sneaky Canadian brethren studying and living in the U.S. in mind, I posted a comment asking, why not permanent residents as well?
Eugene, who clearly is either very organized, indefatigable, or both, took the next step and emailed the scholarship organizers, who have since clarified that the scholarship will be available to U.S. citizens or permanent residents. My sincere thanks to College Scholarships.org for broadening the eligibility requirements, and to Eugene for calling the question to the organizers' attention. (New ad slogan: "Post a comment on VC -- get results!") I hope that any U.S. student bloggers who are permanent residents will take note and show what they're made of. They don't call it a brain drain for nothing.
Students, Need to Choose a Research Topic? Lawyers, Need a Student to Research a Legal Question? Search No More
The American Constitution Society for Law and Policy has introduced a data base that collects legal research topics submitted by practitioners for law students writing faculty-supervised writing projects . The ACS will also post the written work in a searchable online library.
H/T Rick Bales at Workplace Blog