Monday, December 31, 2007
As the year ends, so, too, does my guest stint on Prawfs. Thanks again to Dan for inviting me to blog here--I've enjoyed the lively virtual conversation. Best wishes to all Prawfs and other readers for a happy, healthy new year.
Friday, December 28, 2007
Simon Dodd on the Pocket Veto
Simon Dodd is starting an interesting coversation on the pocket veto here.
Here is the set-up:
As has been reported, and as is claimed in his veto message, the President has pocket vetoed H.R. 1585. Wait a moment to let that first word sink in.
As relevant here, the Presentment Clause, Art. I § 7, requires that "[e]very bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; ... [i]f any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law." But Congress isn't a unitary entity; it has two chambers, and although the House of Representatives has adjourned, the Senate has not: it is continuing to meet throughout the break in an effort to prevent recess appointments by Bush. "Textually ... the clause permits the President to exercise a pocket veto any time the Congress as a whole adjourns."1 So: If one house of Congress has adjourned within the meaning of the Presentment Clause but the other house has not, has "Congress" as a group entity "adjourn[ed]" within the meaning of the clause, creating the predicate conditions for a pocket veto?
Test your intuitions and then go read Simon's answer.
Caucus vs. Primary
There's been a lot of talk here in Iowa about how a caucus can't be bought. And it definitely seems true that it is harder to buy a caucus. Only a small percentage of the population attends a caucus. It takes, in some cases, hours. Voting (at least in the Democratic caucus) is entirely public. Only the heartest of registered voters are willing to take the time to present their choices publicly.
While there are concerns about such a small percentage of the population going to the caucus, I am not so troubled about the fact that this small percentage represents the heartiest of voters -- those who have chosen to inform themselves and care enough to sit through the public process. And in such a process that seems to discourage the uninformed, it is harder for slick advertising to win the day.
But there's a downside -- there are no absentee ballots for the caucus -- and the caucuses occur at a specific time and may last a while. This excludes a number of persons from participating. I have spoken to a number of voters, however, who are primary care givers -- or who are themselves sick -- and therefore unable to attend the event. And there are a host of other voters who cannot caucus because of job requirements: deployed soldiers, emergency room doctors, gas station clerks, and police officers, just to name a few. The process that opens the contest up to the under-funded (a most decidedly good thing) comes with the downside of effectively precluding a host of persons from participating regardless of their degree of interest.
This has left me to wonder if proxies are workable in a caucus -- or if this would destroy the very system that encourages more than a cursory glance at candidates.
Thursday, December 27, 2007
I was saddened to learn recently that my wonderful colleague Jason Czarnezki will be moving to Vermont. My disappointment is a bit tempered, though, by the prospect that we may be adding two or three lateral hires of our own this year. Maybe it's just me, but I have a sense that the pace of lateral hiring in law schools has picked up considerably over the past four or five years. particularly of tenured or tenure-track professors with two to seven years of teaching experience. Here at Marquette, for instance, none of our eight hires from 2000 to 2004 fit this profile, but three of our five hires since then have, with more likely to come this year. This seems to fly in the face of the advice I received when I went on the teaching market eight years ago: "Better make a good choice about the first teaching job you take, because chances are that's where you will spend the rest of your academic career." (Then again, maybe that comment was just a reflection of the advisor's lack of confidence in my ability to be an effective teacher and scholar!)
If there has been a broader upswing in lateral hiring, I wonder if it has been more supply or demand driven. On the demand side, the importance of the U.S. News survey has made law schools more sensitive to their reputation within the national legal academy, and lateral hiring seems more likely to provide an immediate reputational bump than entry-level hiring. On the supply side, as a member of our Appointments Committee in the recent past, I was surprised by the number of direct contacts we had from faculty members at other law schools looking to move on. (I once even had an expression of interest from someone I was calling for a reference check for an entry-level candidate!) Perhaps the greater connectedness of the academy in the Internet age has spawned a generation of junior faculty members who feel less attached to their home institutions than previous generations and who are more motivated to make moves that will enhance opportunities or status within the national academic community. Likewise, for junior faculty members who are not entirely satisfied with their current situations (for geographical reasons or otherwise), the Internet provides opportunities to build a reputation relatively quickly, and also facilitates the sort of networking that may pave the way for lateral moves.
Wednesday, December 26, 2007
Should Constitutional Law Teach the Constitution?
My constitutional law course is a single-semester, four-credit-hour class. Teachers may use the class to cover all of constitutional law, though I currently do not cover the First Amendment at all and make only passing reference to separation of powers, figuring that much of that topic will be covered in administrative law, which is a required class. As a result, virtually all of the semester is occupied with the Equal Protection and (Substantive) Due Process Clauses, as well as congressional power -- mostly the Commerce Clause and section 5 of the Fourteenth Amendment, plus a day on the spending and treaty powers -- and judicial review.
I'm wondering now whether I should make more of an attempt to teach more of the constitution, and, if so, how to do it. I've been looking over Edward Cooke's A Detailed Analysis of the Constitution (7th ed. 2002), which gives short descriptions of the meanings of all the constitutional clauses, and think it would be valuable for my students to read it. The book has several distracting proofreading errors, and rather humorously suggests on page 20 that "the Interstate Commerce Commission [though not in existence since 1995, is an] essential part of our constitutional system today." Nevertheless, I think the book is helpful.
Because so few of these clauses are litigated, however, they cannot be taught in the standard law-school way. I could assign it and discuss it only cursorily, but I never quite know what to do in class when the assigned reading is self-explanatory. I'm also not sure I should be teaching that material when doing so means taking time away from other material and when 21st century lawyers are unlikely to need to know (either for the bar exam or for law practice) that one house of Congress can't adjourn without the consent of the other, etc.
So what about it? Should my constitutional law class focus on the Constitution, or only on what has become the constitutional law canon?
If you have a few minutes, I would recommend struggling with this recent paper by NYU philosopher J. David Velleman. The central argument seems to be that parents must render parental services to their biological children -- and that they may not delegate that task to others. It is provocative and infuriating. A taste:
Of course, parental obligations must sometimes be transferable in practice. . . But this practical accommodation does not signify that the biological parents are morally entitled to abdicate their responsibilities at will. Of course, their circumstances may be such as to justify or even to require that choice; but it isn’t a choice to be made at their option, for just any reason or for no reason at all. Parents are not morally entitled to put a child up for adoption because of a last-minute social engagement, or a desire to try again for a baby of the other sex, or an offer of payment for their procreative and gestational services.
More importantly, adults are not morally entitled to conceive a child with the prior intention to put it up for adoption. A woman may not decide to conceive simply in order to have the experience or health benefits of pregnancy, no matter how confident she may be of finding suitable adoptive parents to assume her subsequent responsibilities. Thus, parental obligations are transferable, morally speaking, only under exigencies that make their transfer beneficial for the child rather than convenient for the parents.
The arguments Velleman offers for his conclusions all tend toward promoting a vision of the biological family that renders it especially important in human flourishing. Platonic alternatives notwithstanding, the paper seems a bit retrograde -- without real empirical evidence to justify its assumptions about child development and identity formation. All the same, it is one of those short papers that is worth the time, if only to try to articulate why you disagree.
Tuesday, December 25, 2007
And to those who just finished a Chinese restaurant meal...
This is a great video clip song, almost as good as the Adam Sandler one from a few weeks ago.
While the day is winding down and many of the permaprawfs are evidently distracted with grading or, worse, by the sparkling wines of Australia, I thought I'd wish the relevant part of our readership (and our contributors) a very merry Christmas, with stockings filled with blessings and laughter for the new year.
Oh, as to the title of this post: when I lived in England years ago, I remember being puzzled by the numerous salutations of "Happy Christmas." Growing up in Canada I only heard "Merry Christmas" being bandied about. I wonder why one greeting edged out the other here in North America. Any Cliff Clavens out there with ready (or at least plausibly true) answers to this puzzler?
Monday, December 24, 2007
Taking account of class-participation
Michael's recent, thoughtful post on exam-grading ("Grading, Guidelines, and Gestalt") reminded me of another grading-related question: When assigning grades, how (and why) do (or should) we take account of "class participation"?
Let's put aside seminars for the moment. After all, it strikes me that a seminar -- by definition? -- clearly involves in-session conversation among the participants, and really could not be graded without reference to "class participation." But, what about the standard law-school "lecture" class?
There are, it seems to me, a number of approaches we might take:
(1) We might use "attendance" as a proxy for "participation". So, on this approach, we would keep careful track of students' attendance -- using, among other things, some kind of excused-absence policy -- and provide that a portion of each student's grade would be determined with reference to that student's attendance-record.
(2) We might (do the best we can to) keep track of students' contributions over the course of the semester, with an eye toward identifying those students who have, in a special and noteworthy way, contributed to the class through their engaged participation. These students could then be given some kind of "extra" credit, grade-bump, etc.
(3) We might decide, from the get-go, that -- even in a big lecture class -- a specified portion of a student's grade will be determined by her participation (including, or not, attendance). This approach is not the same as (2); it makes every student's participation (or lack thereof) a part, for better or worse, of her grade.
I'm sure there are other possible approaches; I'd welcome hearing about them. All that said, I cannot help wondering: Why, in the typical "lecture" class, do (or should) we care about participation? I know that I do, but . . . why? Is it selfish to care about it? That is, is the reason I care simply that classes to which many students contribute their "takes" are more likely to be -- for me -- enjoyable and rewarding experiences? Is it because we think that in-class participation, like a clear and detailed law-exam answer, reveals a student's possession or demonstration of a skill that, we think, legal education should aim to impart? Is it because we think that a student who participates in a thoughtful way is actually helping to educate her colleagues, and deserves recognition for this assistance? Something else?
Sunday, December 23, 2007
Oz: Notes from Down Under
I am blogging from Sydney. The trip to Oz began in Melbourne for gave a talk at the University of Melbourne as well as participated at a conference on Fair Trade, Corporate Accountability and “Globalizing Justice.” The conference was co-organized by the University of Melbourne Law Faculty and the ANU centre for ethics. The Australians are doing very innovative thinking in regulatory theory and practice [led by people like John Braithwaite, Christine Parker and Peter Drahos who I met at the conference] as well as serious work in the area of employment and labor law [my review of this book is coming out soon in the journal of comparative labor law and policy]. The conference was very well done – it is rare to get a good mix of people from both practice and academia in the same conference and have them really engage with each, but here in Oz, it seems there is more of a culture and a tradition (also incentivized by competitive government grants called "linkage") of collaboration between researchers, bureaucrats and non-profit organizations.
Aussies are wonderful hosts. The fabulous Christine Parker, author of The Open Corporation, had a dinner party in our honor at her house and even though she and her husband [a logic professor at Univ of Melbourne] are vegetarian, they cooked kangaroo skewers and sausages (Roos are game and not in any danger so environmentally cooking them is not problematic as, say, cows. Cows, by the way, are seriously bad for the Melbourne environment, not the least because of a serious problem which researchers are trying to solve -- one of the conference organizers explained this to me with a straight face at the conference dinner: they fart way too much], as well as Pavlova for desert, which apparently was invented in Australia in honor of a visit by some famous Russian dancer. At the conference there were lots of reporters and I gave an interview on the Australian national radio on fair trade, new governance and labor standards.
Now for some non-scholarly adventures. In Melbourne, we rented a car and drove (on the wrong side of the road) all along the great Ocean Road and the Wine Country and we visited a sanctuary of kangaroos, koala’s and other Australian wildlife. We hiked in a rain forest with beautiful waterfalls and birds. Also turns out Melbourne has a lot of theatre and culinary variety (i did not know Melbourne is the second largest Greek city in the world) and we saw Spamalott – the Monty Python musical plus a few other original plays. Here in Sydney we are staying at the Shangri-La, which we fell in love with since our trip to China this summer, especially their magnificent breakfast. We had a very sporty weekend here, we went running through the city and all around the Botanic gardens and the Harbor; we went surfing in Bondi beach today [I wasn’t very good – the waves are so high…] and swimming. We got to hang out with my number one favorite Aussie, my colleague Laurie Claus, and with his sister and her partner, both up and coming singers here in Australia. We started with champagne at his hotel room on the other side of the bay and then walked over to the restaurant which had an amazing view of the opera house, and we watched it as it became dark and then it lit up and then there were lots of fireworks, all from our table at the restaurant. We ended the evening strolling along the bay eating gelato and watching a bar singer. Last night we saw a performance at the Sidney opera house and we also took a Ferry boat all along the Sydney beach, to Manly beach.
Saturday, December 22, 2007
Grading, Guidelines, and Gestalt
I've been busy reading essay exams this week. Before I start grading, I always prepare a checklist of what I am looking for in each exam: what issues should be spotted, what legal rules identified, what key facts should be discussed in the applying the rules to the hypo, and so forth. I usually end up with a list of about 20 items. Students get points for hitting each of the items on the list. In general, the flipside is also true: students lose points for missing items from my list (although I am willing to make allowance for students who head off in unanticipated, but still reasonablly intelligent, directions). Grading this way becomes a rather formulaic process. I've always felt this was a good thing, so that I could justify grades to students afterwards in some sort of precisely quantified way. Yet, this semester, as every semester, there are a few exams that make me feel uncomfortable with my approach. I am thinking particularly of those exams that manage to hit nearly all of the items on my list, but that nonetheless leave me with a nagging sense that the student has not really grasped the problem at a deep level.
I often find it difficult to put my finger on what creates this feeling. Maybe the answer is organized in a way that seems to emphasize minor issues at the expense of the major ones. Maybe the articulation of the rules is consistently just a little off--not enough for me to substract any points using my checklist approach, but vaguely troublesome nonetheless. Maybe there are some digressions into marginally relevant cases or hypothetical facts. (I should note that this is a take-home exam, so I don't think it is totally unreasonable to expect a well-organized answer.) In any event, whatever the specific source of my discomfort, these exams leave me with a sense that the checklist approach may sometimes miss the forest for the trees.
I wonder how grades would differ if I used a gestalt approach, reacting more holistically to the exams. Without my checklist, would I feel comfortable just saying, "I've graded about 700 exams in my life, and this is a B--I know it when I see it." Perhaps there would be some support for this approach in the research on rapid cognitition that Malcolm Gladwell discusses in Blink. Then again, quite apart from the reliability and validity of the gestalt approach, would students tolerate a grading scheme in which it could not be precisely explained afterwards what they could have done differently to get a better grade?
As often happens during the grading season, I am struck with the parallels between grading and sentencing. I have, in fact, often criticized the federal sentencing guidelines for precisely their tendency to miss the forest for the trees: in attempting to impose incremental punishment for every element of harm or danger, the guidelines can result in extremely harsh sentences for crimes that, viewed more holistically, appear routine or minor. Yet, the gestalt approach (unguided discretion at sentencing) also seems less than satisfactory. It is not so much that sentencing then becomes "what the judge had for breakfast": even without guidelines, I am confident that experienced judges, by and large, are motivated to sentence in a principled fashion and have the ability to reliably distinguish serious from nonserious cases. My concerns lie more in the realm of perceptions. An unjustified sentence, like an unjustified grade, seems fundamentally disrespectful. I suspect that students would perceive gestalt grading as simple laziness and would resent the professor's apparent disinterest in treating them fairly. Likewise, I suspect that gestalt sentencing leaves many defendants and victims with a similar feeling that they just don't count, that the the criminal justice insiders are self-serving and don't regard the outsiders as worth much effort.
Blind Hogs, Red Angus and the Iowa Caucus
This is sort of an obvious point, but a candidate is far more likely to be successful if he or she really understands the people he or she wants to represent. And I don't mean that he or she understands, at a policy level, what would be good for the voters -- but can relate to them in ways that are utterly unrelated to the job he or she proposes to do.
The caricature of Bill Clinton comes to mind: "I feel your pain." (I don't know if he actually ever said that.) And the Barack Obama blunder comes to mind. He rhetorically asked a crowd of Iowa farmers if they had seen what Whole Foods was charging for arugula. When the assembled farmers shook their heads in confusion, he said, well I can tell you "they're charging a lot of money for this stuff." (One of my colleagues did an unscientific poll of every Widener Law Professor in the building -- none of us knew what arugula was....)
But I came to see first hand why personal identification matters. Iowans (and in a few months it will be Pennsylvanians and Floridians) are bombarded with candidate messages. Coca-Cola has done less advertising in this state in the past week. And Coca-Cola isn't calling folks at home. Though Iowans are very patient, there's a limit to their willingness to listen to candidates messages or talk to their workers on the phone.
Two nights ago, I began a conversation with an Edwards supporter who seemed quite committed to her candidate because of his support for farmers. So I asked what she farmed. She raised cows. What kind, I asked, as I silently thanked God for my rural upbringing. Angus. No kidding, I said, my dad started off raising Herefords but they have trouble in giving birth, so we went to Angus, but we liked the aesthetics of the red cow in the field -- so we discovered Red Angus. Well, she said, they're good cattle. So suddenly she asked me why I was supporting Biden and I told her.
And then, a few hours later, I had the opportunity to talk to a pig farmer. I'll admit this was one I had been saving, but was genuinely interested in. The Des Moines Register did a story on an agricultural experiment, acorn-fed hogs. Acorns are apparently a pig's natural food, but it is too expensive to feed them acorns. Spain still raises acorn-fed hog and supposedly the meat is much sweeter and richer. (Lesson 14 from Iowa: get hands on Spanish ham...) So I asked about the acorns -- I told the farmer that I had, since childhood, heard the phrase 'even a blind hog can find an acorn every now and then,' but didn't know that the acorn really was the perfect food for hogs. Oh sure, he said. So we talked hogs for some time. And then he let me tell him why I had come to Iowa.
(Here's the acorn-fed hog story, in case any of you are as interested in this as I am: https://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2007712190392)
In the century before television, huge campaign staffs, Hill-a-copters (not making that one up), and forty televised debates, a crowd would gather to listen to the Lincoln Douglas debates -- or read the transcript in the newspaper. People haven't become less interested, they've been bombarded. And as advertisers know, in such a world you can't just talk about the product, you have to first convince people why they should listen to you, then give them your message. And to reach the people, you have to learn about them -- and maybe it's not such a bad thing for a politician to learn that average folks (and by average folk, I mean to include virtually every law professor I know) aren't eating arugula. Some call it pandering -- and in some cases surely it is -- but maybe it's not a bad thing that campaigns force candidates to learn about the people they seek to govern.
Friday, December 21, 2007
Update: The Third Annual AALS Prawfs Co-Op Happy Hour: Jan 3d 9pm at Sheraton Hotel Library Bar Fireplace Room
Save the date and time and mark the place. Your friends at Prawfs and Concurring Opinions warmly invite you to join us for a get-together in NYC on Thursday January 3d at 9pm. (Actually we have the room reserved for us from 830pm on, so if you wish, please come early.) We will be meeting at the Sheraton Hotel's "Libary Bar" in the Fireplace Room. Please mark your calendar for this special occasion. And feel free to tell your cool colleagues to join us as we raise a glass to toast the new year. The address for the event is 811 7th Avenue 53rd Street · New York, New York 10019.
Jeff Hirsch is En Fuego
It is a rare blog post that can combine thoughtful analysis with passionate feelings over the subject matter. This post is one.
The Search for Occam's Dildo and Other Favorite Footnotes
I have found that one of the best ways to postpone grading papers is by doing one's own scholarship and reading semi-related materials. By leaving slightly less time to get grading done, I intend to have a more focused mind. That's the plan anyway.
This week, the strategy (at least the first part of it) has been working for the most part, and I've made good progress on the two projects at the front burners, Retributive Damages, and the book with Ethan and Jennifer Collins on the use of family ties burdens and benefits in the criminal justice system. While reading some very interesting work of Mary Anne Case (UChicago) for the latter project, I came across a very funny footnote. It's in an article entitled, Of Richard Epstein and Other Radical Feminists, 18 Harv. J.L. & Pub. Pol'y 369 n. 9 (1995). Here it is.
See, e.g., Richard A. Epstein, Gender is For Nouns, 41 DePaul L. Rev. 981 (1992); The Authoritarian Impulse in Sex Discrimination Law: A Reply to Professors Abrams and Strauss, 41 DePaul L. Rev . 1041 (1992). Besides Kathryn Abrams's and David Strauss's replies to Epstein, the recent legal academic literature on the intersections of feminism, sociobiology and libertarianism includes Richard Posner , Sex and Reason (1992), and the flood of critical reviews it provoked. See, e.g., Robin West, Review Essay, Sex, Reason and a Taste for the Absurd, 81 Geo. L.J. 2413 (1993). Sociobiology may appeal to Epstein and Posner because for them it seems to be little more than law and economics plus sex. In their relentless telling of sociobiological “just-so” stories, both Epstein and Posner may have fallen victim to what Todd Preuss has called Occam's dildo. While Occam's razor requires that of two competing explanations the simplest be selected, Occam's dildo predicts that the most titillating of the two explanations will be preferred.
Feel free to nominate others you've come across in the comments.
Thursday, December 20, 2007
I have a brand-new paper on SSRN dealing with prisoner reentry. There is growing political momentum at both the federal and state levels of government to do something to address the needs of the swelling numbers of former prisoners returning to the community--now about 650,000 annually, up more than eightfold since 1970. Although much of the concern surrounding the reentrants has focused on their recidivism risks, I have been struck by the depth of bipartisan support for funding enhanced social services for them; I am more accustomed to seeing those on the right thinking about crime prevention in terms of deterrence and incapacitation. I've been particularly interested in seeing how some religiously oriented Republicans, like Sen. Sam Brownback, have framed reentry reforms in terms of Christian faith and moral obligation, and I've been wondering about broader implications for the criminal justice system if we were to lay more emphasis--from start to finish--on treating criminal defendants as people we actually hope and expect will rejoin the community some day.
My short essay focuses particularly on implications for sentencing, ranging from the way that particular sentencing factors are assessed (e.g., presentencing rehabilitation and substantial assistance to the authorities) to the overall tone of the sentencing ritual. I should also note that the essay introduces a forthcoming issue of the Federal Sentencing Reporter devoted to prisoner reentry. If anyone would like to receive a copy of the full issue when it is available next month, please e-mail me at [email protected]
No Yard Signs in Iowa
Here's something interesting that I've noticed -- and I don't think it is just cosmetic. When I landed in Des Moines, I was expecting to be able to see the yard signs from the air. There are almost no yard signs here for any candidate. No just in Des Moines but out in the country -- I am working in Adams, Union, Clarke, Decatur, Ringgold and Taylor Counties (south central Iowa) and have spent a fair amount of time in Des Moines. There are no yard signs.
At first I thought it was midwest politeness. Perhaps even fear of being ostracized by neighbors supporting other candidates.
My host family tells that this is a new phenomenon. In years past, supporters of candidates had to fight to get yard signs. Caucus chairs would drive to Des Moines and pick up the county's allotment of signs and bring them back -- and there would be a sign-pickup day. This year, no one wants signs.
The best inference I can draw: Iowa has not decided. And there's other evidence to suggest that that is true. My host family believes that in many caucuses the "undeclared" groups will achieve viability in the first round and, thus, a number of undeclared delegates will be allotted.
Wednesday, December 19, 2007
Improving Forensic Science
I've gotten a bit of a crash course over the past few months in the state of forensic science. I am a member of a Wisconsin law reform commission charged with making recommendations to reduce the risk of wrongful convictions. The commission has already done some good work with videotaped interrogations and sequential suspect line-ups. More recently, we've turned to problems with forensic science, which have been found (alone or in combination with other factors) in more than 60 percent of DNA exoneration cases. Previously, I knew little about forensic science--I don't even watch CSI--and I have been dismayed to learn there is much less "science" to it than I assumed.
For the most part, DNA evidence seems to be handled in a scientific fashion (some high-profile cases of fraud and incompetence notwithstanding), but the state of the other "individualization" specialties (e.g., fingerprint, bite mark, bullet, hair, and handwriting analysis that purports to associate crime scene evidence with a unique source) is more troubling. The problems relate both to reliability and validity. On the reliability front, there is considerable subjectivity in some fields in declaring a "match," and crime labs generally do not employ techniques like blind testing and evidence line-ups that would minimize observer biases. (Imagine this scenario: detective gives fingerprint analyst two samples and says, "Here is a partial fingerprint from the crime scene and here is a full print from the guy we arrested. Can you tell me if they match?") On the validity front, even assuming 100% reliability in declaring a match, data is generally not available (other than for DNA) to show the significance of a match, i.e., what are the odds that two different people could have produced the match.
For an example of what can go wrong, bullet lead analysis was routinely employed, often unquestioningly, in securing criminal convictions for about 50 years. The assumption was that each batch of bullets manufactured had a unique combination of trace elements, so that a chemical composition match between a bullet found in a body and a bullet found in a suspect's possession meant the bullets actually came from the same batch (and by inference likely the same box). However, the National Academy of Sciences, in a 2004 study, concluded that the basic assumptions of this whole field of forensic science were unsupported, and in 2005 the FBI stopped using bullet lead comparison.
What can be done to improve forensic science? My commission seriously considered recommending the creation of a state forensic science commission that would have some sort of an oversight role over state crime labs, but ultimately decided against it. It turns out that many states (at least seven) have recently established such commissions, but (after speaking with representatives of three) we could see little record of accomplishment beyond pushing crime labs to get accredited--something not necessary in Wisconsin since all of our crime labs are already accredited. Otherwise, it appears that existing commissions in other states have not been given the resources necessary to deal with more systemic problems, and--given the fierce resistance we saw in our commission from the law enforcement/crime lab establishment to the whole notion of a forensic science commission--I saw little reason to expect a Wisconsin version would be able to drum up any greater support.
The chief alternative to a commission seems to be beefing up the capacity of the adversarial process to test the quality of forensic science in the courtroom. But this requires lawyers and judges who are much more scientifically sophisticated than most are today, for instance, in dealing with admissibility issues and cross-examining expert witnesses. At one point, all eyes turned to the legal academics in the room, as questions were raised about whether we were preparing a more scientifically literate next generation of lawyers. The answer was no. Is this a problem, and are there effective ways of dealing with it? One idea I have had is a forensic science clinic, cotaught by a law professor and a faculty member from a science department. Students in the clinic, who might include both law students and graduate students in the sciences, would get basic instruction in scientific methodology and then work with lawyers who represent indigent defendants in criminal cases that have important forensic science issues. The students could help the lawyers with the identification of relevant expert witnesses, the preparation of expert reports and testimony, and the development of cross-examination strategies to be used for the state's experts. Do such clinics already exist?
Caucus vs. Primary
There was a very interesting (and correct) comment posted in response to my last entry. The response noted that the "people" of Iowa were not involved because only a fraction of them caucus. That's probably true, though I don't know the precise numbers. I will say, though, that I am experiencing a high level of engagement in the process -- in grocery stores, gas stations, restaurants, etc., certainly higher than I've ever experienced with the political process in any place I've ever lived.
But the response to my last post makes a nice point -- there's something about the caucus structure that skews the results in a certain direction -- though the direction is not predictable.
Caucuses take a long time, sometimes up to three hours. The Democratic one historically are longer, but for procedural reasons that I have not yet discovered. They begin at a set time -- typically 6 pm. As opposed to voting in a primary (with the possibility of absentee voting), a host of people can't attend such an event because they have to work during the hours of the caucus -- emergency room doctors, nurses, policemen, gas station clerks. I've spoken to a number of people who are primary care givers for elderly people who cannot leave their homes for any extended period of time. So beyond those who choose not to spend three hours of their lives in this process, there are those who simply can't. Of those who are able to caucus, and choose to spend their time this way, one could surmise that they're among the more informed -- or at least care the most. So I agree with the response to my last post that it is certainly not all of Iowa that is engaged, but there are a lot of people here who are willing to give a great deal of their time to be involved -- and some of giving extraordinary amounts of time, energy and emotional commitment to making this choice. Those who are involved are really involved -- and there are a lot more of those folks than I would have ever expected.
There's something else about the caucus that makes it unique. Voting is public at the caucus -- and caucus-goers try to encourage people to join them in supporting their candidates. Sometimes caucuses are in homes -- one caucus in the district I am organizing is in a house and has eight caucus-goers. This is smaller than a jury. Precinct captains, in such a world, seem analogous to jury foremen -- or at least very engaged jurors. A precinct captain, or ordinary rank-in-file caucus goer, who can articulate his or her candidate's strengths can have extraordinary influence in these small gatherings, just like knowledgeable and articulate jurors. Some voters tell me that they'd back my candidate but don't think he can win -- and then they tell me why he's go great. I tell them to go to the caucus and tell the story they just told me (but leave off the can't win part). I tell them that this is Iowa, a place where voters have the opportunity as voters not just to vote, but to persuade. This is an extraordinary feature of the caucus, it seems to me. The system is skewed toward the most-involved because of the time commitment and then gives an opportunity for informed voters to make their best case. I am obviously not sure who that benefits -- on the Republican side, I imagine it benefits John McCain and Ron Paul and disfavors Fred Thompson. I like to think on the Democratic side it disfavors the front runners.
But because the voting is public (which it'd have to be if the persuasion opportunities are going to extent at the event), there is something about the structure that favors front-runners. I spoke to a caucus-goer yesterday who told me that his union was putting a lot of pressure on him to caucus. He assured them he'd go but said you won't like what I do when I get there. His union endorsed Clinton -- he's undecided, but has decided he is not for Clinton. I hope, whether or not caucus-goers like Mrs. Clinton, they will show his independent resolve, but I am not sure they will, or can.
Tuesday, December 18, 2007
Iowa Update -- Iowans are REALLY engaged
My friend Mike Dimino noted earlier how worthless he thought the last debates were to people trying to decide who to vote for. I agree. He suggested that we are taught to be civic-minded, one ought to watch debates and such, which he found silly advice in light of little insight the debates offered. Again, I agree, but with a big caveat. I don't think the democratic process lacks substance or engagement. I think the media has not figured out how to talk about the substance -- and demonstrate the real human drama in this process -- in a way that fits neatly into the "Situation Room"-style reporting. These aren't 37 second stories -- but I've seen stories that reveal real discussions are being had and people are feeling quite attached to this process.
I am being hosted by a lovely couple in Creston, Iowa. They are restoring their turn of the (20th) century farmhouse, so there's one bathroom, which we all have to share. I share the bedroom with their cat when he figures out how to open my door (which he does with some regularity). When I arrived, I assumed that they must be big Biden supporters. Why else would they permit me in their home, especially in such close proximity as their current renovations require.
When I arrived at their home late, after having first shown up at a small two bedroom shack (a tad afraid that my host family decorated their front porch with beer cans), they asked me, "So which campaign are you with?" Somewhat surprised they even asked, I said, "Biden." "Oh, he's a really smart guy," Ruth said. "You didn't know -- or care?" "No." These folks are just delighted to be a part of the process and are really putting themselves out so people like me can get their candidates' messages out.
I talked today to a 91-year old woman who APOLOGIZED that she might not be able to make it to an event that Sen. Biden's sister is hosting. The woman explained that since her fall in the summer, she was a little afraid to walk on ice. I am not at all certain that she is one of our supporters -- I think she was so disappointed because she's undecided and wanted to learn more about our candidate, whom she says she admires and would like to learn more about.
And there's an emotional attachment for people who find their candidate. I am certain every campaign can tell stories like this -- and there are others like it in our campaign, this just happens to be one that I was a part of. A stocky, heavy-set fellow -- appeared to be a no-nonsense kind of guy, demin jacket -- came up to me after one of the events. He said, "I'm a Republican." I said, "That's fine, some of my best friends are Republicans." He said, "No, you don't understand." With what I can only describe as a lump in his throat (and I swear I am not exaggerating that), he said, "I've been a Republican all my life.... but I need for you to tell me how I can switch my affiliation to support your candidate. I've never heard anyone like that -- he KNOWS what he's talking about."
As much as the democratic process is criticized, this has been a very heartening experience so far. No one can say this people of this state aren't engaged.
I'm so Excited; I'm so . . . Scared
When Jessie Spano overdosed on caffeine pills in anticipation of her geometry final, I suspect she had no idea her words would speak to this junior prawf who is only 14 days away from her first AALS Annual Meeting. Maybe I'm not that scared. Okay, maybe I'm not even that excited. But since being here as a visiting scholar last winter break prevented me from attending my first AALS meeting, I feel unprepared and in need of some advice. Where do I go? What do I do?
Any tips for this rookie (and by extension, reader newbies who could also benefit from seasoned veterans' sage words)? C'mon, be my Zack Morris.
Sunday, December 16, 2007
The Mitchell Report and Penalties
So now Commissioner Selig must decide what to do about the Mitchell Report's revelation that (surprise!) many MLB players used steriods and other "performance-enhancing substances." The likely result, at least so far as I've been hearing on ESPN, is the suspension of some or perhaps all of the thirty-three current players named in the report. The proper result is the banishment from baseball of every player who has done this sort of cheating.
Of course we don't always try for the correct result, and there are plenty of reasons why the Commissioner likely will not try to do the right thing here. He may be concerned about overstepping his authority vis-a-vis the Players Association. (But Commissioners have always broadly interpreted the "integrity of the game" clause, and there's a good argument that the integrity of the game has been undermined by the steroid use.) He may not be sure the people named in the Mitchell Report actually did what they are suspected of doing. A large amount of the allegations come from two trainers, who may not be credible in all their accusations (though McNamee seems to have hit the mark with Pettitte, leading most to conclude that his remarks about Clemens are accurate as well). Selig may also be wary of penalizing too harshly the few players named in the report, if they are a small minority of the total number of guilty players, or alternatively of banning half the major league rosters from the last twenty years. He may also be reluctant to establish a fixed penalty of baseball-death on steroid-users, for doing so would eliminate the incentive for suspected users to cooperate with investigations.
All this may have led Selig to announce last week that he will act "on a case-by-case basis." When he does, he should not lose sight of the fact that what the guilty deserve is complete banishment. They have made us skeptical of a game that is important as a symbol and a pastime to millions of Americans. They prevented minor leaguers and lesser stars from gaining roster spots and notoriety, and encouraged those trying to make it to the majors to abuse their bodies and the game as well. They made fools of those of us who watched the sixty-second and seventy-third home runs, and all the other "highlights" achieved artificially. And they've made dads like me try to explain to our seven-year-old sons what these players did, why it was wrong, and why the kids should never be so stupid or immoral. Lifetime bans are pretty lenient.
Saturday, December 15, 2007
Finding Deliberative Democracy in China?
Given my interest in the search for deliberative democracy in China, I was delighted to read this account of public participation in urban planning in Xiamen. Of some interest was how participants were selected:
Participants in the forum were chosen by lottery on Tuesday, under the supervision of the Xiamen notary office, from the 624 people who registered online or by calling a hotline number.
A further 100 people were selected as alternative representatives. More than 100 people were disqualified for providing invalid ID numbers, the local government website stated.
H/T: Keith Hand
UPDATE: Thanks to Jeff Prescott for the pointer to this more sobering account from Newsweek.
Plea Bargaining as Dispute Resolution
Is it useful to think about plea bargaining as a form of alternative dispute resolution, in the same vein as the mediation or arbitration of civil disputes, or do the particular moral or procedural imperatives of criminal justice mean that analogies to private dispute resolution are unhelpful or misleading? On the assumption that ADR scholars and criminal law scholars just might have some useful things to say to one another, my colleague Andrea Schneider (who blogs on ADR here) and I organized an interdisciplinary conference on plea bargaining at Marquette in April. Participants included PrawfsBlog alumni Ron Wright and Russ Covey. The three panels addressed these topics: Bargaining in the Shadow of the Law—The Relationship Between the Structure of the Criminal Law and Negotiated Outcomes; Effects of Cognitive Biases on Plea Negotiation; and Victims, Apology, and Restorative Justice in Criminal Procedure.
I, for one, thought we had a rich and helpful exchange of ideas. In any event, papers emerging from the conference will soon appear in a symposium issue of the Marquette Law Review. The introduction Andrea and I wrote for the issue has just gone up on SSRN. This short essay outlines why we think it may be helpful and appropriate to view plea bargaining as a form of dispute resolution and briefly describes the papers included in the issue (many of which are themselves available on SSRN). If anyone would like a hard copy of the full issue when it is available, please let me know by e-mail ([email protected]).
Roger Clemens and Barry Bonds: Distinctions and Differences
OK, in the category of "how can I miss you if you won't leave:" Even though I already wrote my farewell post, Dan has not cut-off my access yet. So I wanted to add some quick thoughts on the Mitchell Report, particularly the comparisons between Barry Bonds and Roger Clemens, the latter being the major revelation of the Mitchell Report. The two now are inextricably linked forever in baseball history--the greatest pitcher and the greatest hitter of this generation both used performance-enhancing drugs. And both experienced similar late-career resurgences and high-level performances past the age of 40--although we now have evidence that both were drug-enhanced.
Paul Butler argues at BlackProf that the charges against Bonds should be dropped, in light of the revelations about Clemens. He suggests that prosecuting Bonds even though Clemens also used steroids to prolong and boost his career is another example of racial inequality in the way the criminal justice system handles drug crimes. And the disparity of treatment between Bonds and Clemens has been a recurring theme in the blogosphere.
I disagree up to a point.
I agree that we (fans, the press, etc.) were much more suspicious of Bonds's late-career revival and body changes than Clemens's--whether for reasons of race, non-New-England-based love of Clemens, dislike of Bonds personally, or a combination of all four. And I agree there is racial bias in the criminal justice system--that is at the core of the crack/powder distinction that was in the news last week.
But I reject the notion that the federal government is acting in a racially biased fashion if it continues to prosecute Bonds in light of the revelations about Clemens. Bonds is not being prosecuted for using steroids. He is being prosecuted because, having (allegedly) used steroids, he was a material witness to a grand jury investigation of the producers of PEDs (BALCO) and, testifying under a grant of immunity, he lied to the grand jury about his steroid use.
This is not a distinction without a difference. If in the coming months Brian McNamee (Clemens's former trainer and his purported steroids source) is prosecuted for distributing steroids, Clemens testifies and denies using steroids in the face of what we now know, and the government does not, at least, investigate Clemens for perjury and obstruction of justice--then I will agree that something might be amiss. On the other hand, if MLB punishes Bonds for using steroids and does not punish Clemens for the same conduct, it might suggest some racial bias.
Failing either of those two situations, Clemens and Bonds are not similarly situated and thus the differential treatment, as between Clemens and Bonds, is justified.
Friday, December 14, 2007
Good-bye, Happy Holidays, and Thanks
My thanks to Dan and company for inviting me as a guest writer and for allowing me to overstay my welcome by a week or so. Thanks as well to everyone who read, commented on, or just tolerated my various missives. Besides grading, my next week is filled with writing and talking about the Mitchell Report (I make some early comments here and here; Matt talks about it here).
But for no particular reason, I wanted to leave on some random pop culture notes, other than baseball. So, here they are:
1) With the writers' strike still ongoing and about to start actually affecting shows, everyone is looking for replacement shows to watch. For those of you looking to go back to earlier seasons on DVD, may I recommend How I Met Your Mother and Weeds. My wife says both shows pass my TV test: When they are on, I actually put down the computer or other reading material and watch the show. We think we may try "The Wire" (my wife, a native Baltimorean, has been hesitant to start in on a show that makes her hometown look like a drug-infested war zone).
2) If you have young kids, may I recommend Free To Be You and Me. It is easy to dismiss this 1972 classic as so much nostalgia for 30-something parents and hippie tripe (Marlo Thomas? Alan Alda? Rosey Grier?). Although I did get my daughter to ask her mom to "play hippie music." But it holds up pretty well. And listening to some of the lyrics, you get the sense we may not have come as far as we think in terms of what we teach our kids about gender roles.
3) I did not necessarily share Rick's excitement about the Led Zeppelin reunion concert earlier this month, although I was impressed with the elaborate steps they took to control ticket scalpers. But check this deleted scene from the movie Almost Famous--ten minutes + of William Miller, his mother, and several others doing nothing but listening (and air drumming) to Stairway to Heaven.
I am not sure I could have sat through it in the movie. But it works as a stand-alone clip.
4) Finally, recalling Alex Long's Beatles farewell this fall, let me offer other favorite Beatles songs:
My wife says Come Together, a common favorite. I give two: 1) Dear Prudence and 2) Golden Slumbers/Carry That Weight/The End medley. What can I say? I like my Beatles mellow, but also under the influence.
Happy Holidays to all. Hope to see many of you at AALS in January.
On Civic Slacking
I watched part of yesterday's Democratic debate and, somewhat like Wes, I came away thinking that the time I spent watching was lost forever, and for no purpose. But hey, it's led to a blog post.
It got me thinking more broadly about the duties we are supposed to face as part of a republic, and how much I sympathize with the people who want none of it. My experience has been that since grade school we're been taught by social-studies teachers and similar goody-two-shoes types that it's virtuous to read the newspapers and generally to be informed about world affairs, vote, debate public issues, and watch candidates.
Bah, humbug! I can't imagine anyone taking any useful information out of that debate (at least the part I saw), just as I find it difficult to take useful information from campaign commercials. Voting, of course, provides virtually no benefit to the voter except the psychological one resulting, in my estimation, from the years we've been told that voting is a virtuous thing. And for the most part a single person whose job is unconnected to public affairs is unlikely to achieve anything by becoming politically aware. Why not focus one's family and career?
So hurray for the civic slacker. Ethan is sure to disagree, I know, but I can't blame the person who watches soap operas instead of listening to politicians take 90 minutes to say nothing. Or was yesterday just a particularly bad example?
The Roger Clemens Report
The Mitchell Report came out yesterday, and it dominated both sports and general media. If you haven't seen it yet, you should check out Howard Wasserman's chat session at the Washington Post. He had a chance to respond to a lot of thoughtful and/or pointed questions, and I enjoyed his Socratic responses to a few of them, such as this exchange:
Beltsville, Md.: How do these revelations and the suspensions that may result affect recent trades (like Tejada and Lo Duca)? Is legal action likely because of the perception that the teams that traded them should have known that these players had these issues?
Howard Wasserman: But should the teams that traded for them have known or suspected as well? Did the traded-to teams assume some risk?
I have to admit, my own response to the Report is somewhat mixed. As an Orioles fan, I've long hated the Yankees, and there was some pleasure in seeing the Report name prominent Yankees -- particularly Roger Clemens. (For those enjoying the schadenfreude, you can listen to this for old time's sake.) It's almost akin to the Starr Report, in terms of the graphic details it provides about Clemens' alleged use of steriods. The Report will undoubtedly taint Clemens' career, and it may even cost him entrance to the Hall of Fame. As Thomas Boswell writes, "Now, Roger Clemens joins Barry Bonds in baseball's version of hell. It's a slow burn that lasts a lifetime, then, after death, lingers as long as the game is played and tongues can wag."
Sure, there are a lot of folks who may be happy to see Clemens's reputation in flames. But given the effect on all the named players, and Clemens in particular, the law professor in me winces at the process. First, you have George Mitchell, a director of the Boston Red Sox, as the author and face of the Report. I don't care how many times Mitchell and others insist that he's a good person who acts with complete impartiality. It's a blatant conflict of interest. For a corporate law prof, the conflict is so basic that it's hard to get past it. (I can only imagine what Leo Strine would say.)
Compounding the problem, the Report is exactly what someone with a Red Sox agenda would write. It names many prominent former and current Yankees (Clemens, Knobloch, Giambi, Sheffield, Stanton, Brown, Pettitte) but no prominent Red Sox. (Oh, I'm sorry -- he did name Eric Gagne.) It also named several prominent Orioles, a team that is in Boston's division. It may be, of course, that Mitchell simply followed the evidence, and that Red Sox players simply did not use illegal substances. But the conflict of interest leaves a haze of doubt and suspicion.
Finally, I have concerns with how the media is handling the Report. Basically, if you were named in the Report, you're guilty. The first things to come out were the "names" -- the players listed anywhere in the Report. But the evidence as to each player varies widely. For example, here's the evidence on Oriole player Brian Roberts (p. 158 of the Report):
Roberts and Larry Bigbie were both [Orioles] rookies in 2001. According to Bigbie, both he and Roberts lived in [former Oriole David] Segui's house in the Baltimore area during the latter part of that season. When Bigbie and Segui used steriods in the house, Roberts did not participate. According to Bigbie, however, in 2004 Roberts admitted to him that he had injected himself once or twice with steroids in 2003. Until this admission, Bigbie had never suspected Roberts of using steroids. In order to provide Roberts with information about these allegations and to give him an opportunity to respond, I asked him to meet with me; he declined.
This evidence seems pretty weak to me. But Roberts is now one of those "named" in the Report.
The Report may have no concrete legal consequences for players; Selig has noted that he will only discipline egregious cases, and the players' association could take such discipline to arbitration. But because of Mitchell's integrity, and because the Report is an official MLB publication, players named in the Report will have the black mark for the rest of their lives. It seems reckless for the MLB to put out this Report based on evidence culled by one conflicted investigator.
There's no denying that baseball had (and still has) a steroid and HGH problem. But this Report seems a very flawed way of attacking the problem. Somehow, I think the NBA's David Stern would have handled such a problem very differently.
He knows if you've been bad or good . . . so sue him!
Interesting story over at the
Onion WSJ Blog (H/T: Katy Kuh) about Santa Claus's possible violation of privacy laws for keeping the names, addresses, holiday wishes, and "other sensitive information" of every child in the world. Discuss.
And my favorite line: "Santa also hasn’t disclosed who he shares the information he collects with, a group that at a minimum includes his elves."
Thursday, December 13, 2007
So this debate was a snoozer -- I am all but certain that no one on this list saw it. For those who did, you know what I am talking about. Since I arrived in Iowa about six hours ago, the word I keep hearing is civility -- and that's a nice word, that apparently inhibits a good debate. I think civility and debate are not incompatible -- as my fellow-guest-blogger and Widener colleague can attest.
The civility of the event seemed to have as much to do with the moderator as the candidates -- no questions that called on candidates to explain real differences between themselves and other candidates. Overall, with the clear exception of Brian Williams, few moderators have been able to ask questions that call for candidates to contrast themselves with others in meaningful ways.
The Iowa press, though, seems to have liked my candidate in this debate. This piece appeared in the Des Moines Register.
Not sure what people on the street thought -- or if they even watched. I plan to eat in Waffle House every morning until the caucus -- a place where you can get this information. So I'll occasionally provide the Waffle House updates.
Picking up where we left off . . .
Thanks to Dan and his gang for having me back; I'm really looking forward to my second guest appearance on Prawfsblawg. This time I'll be here for a little longer than I was last time, so I imagine I'll blog about some things that come to mind during winter break, and then about things that come to mind during my second spring semester as a prawf. This spring, I'll be teaching 2 sections of 1L's in Property, a course I taught for the first time last spring. Teaching a course for the second time presents different challenges than does teaching a course for the first time, and I look forward to contributing to the "Teaching Law" category here on Prawfs with some posts about those challenges.
Since we last spoke, I've been writing about subjects other than law professor jargon and fancy office supplies. In April, this paper about obscenity will appear in Northwestern's law review, and in January, this one about the right to exclude will appear in PENNumbra. During the break, I hope to finish a draft of a paper on the effects of psychology literature about "relational aggression" (think this movie) on hate speech doctrine. Who knows? Maybe I'll even blog about something substantive this time.
Looking forward to spending the next few months with you. And even more than that, looking forward to my first really break-like day of winter break.
If Nietzsche Ran for President, What Would His Campaign Ads Look Like?
To find out, take a look at the Youtube video Nate posted on Co-Op. Very funny.
"Separation Anxieties: Church and State"
Dan was nice enough, a few weeks ago, to post about my participation in a "Dan Rather Reports" panel discussion, "Separation Anxieties: Church and State." If anyone is interested, here's a link to the video of the program. (I have to say, having gone to college at an institution that is, architecturally, a Princeton knock-off, that the Princeton campus is just great.)
Late to the Sentencing Party. When Did the Rule of Law Leave?
I finally had the chance to sit down Tuesday night and read the SCT's opinions regarding Derrick Kimbrough and Brian Gall. Yesterday morning I caught up with some of the blogospheric reactions to the cases. Here are some links to the very good posts which I read by Michael O'Hear (both here, here and on Scotusblog); Doug Berman (SLP); Carissa Hessick and Andy Hessick (Scotusblog); and Frank Bowman (Scotusblog).
As someone who has been preoccupied with other projects the last two years, I have to say I'm somewhat chagrined that I haven't yet finished my monograph-length manuscript that I've talked about here in the past, Luck or Law? The Constitutional Case Against Indeterminate Sentencing. I hope to pick this project up again in about six months, but let me take the issuance of the two opinions to share some of my untutored reactions. As some of you may recall from this post (where I registered some differences with Doug Berman), my initial response to Booker's remedy was: yikes, what a disaster for those of us care about rule of law values. Indeed, what inspired what I call the LOL project was the fear that Booker's remedy augured a return in the federal system to Williams v. New York's judicial lawlessness.
That fear was misplaced.
Not only because it was mistaken to single out the federal system for criticism--after all, the pathologies of Williams are extant in the majority of jurisdictions that still invest judges with wildly uncabined sentencing discretion (see, e.g., here). It was also misguided because, considering the terrain of the sentencing landscape, the post-Booker advisory federal scheme still provided more granular guidance than virtually every other jurisdiction in the country, a point that became more salient every day as decisions appeared from the "counter-revolutionary" federal courts of appeal, which tried to rein in district court discretion after Booker.
After Kimbrough and Gall, that spirit will be chastened, if not dashed entirely--it depends on how much equivocation one reads into the majority's opinions. (It strikes me that the writing is on the wall for the "counter-revolutionary" spirit but Michael's posts suggest otherwise.) To my mind, that chastening is entailed by the Booker remedy opinion, as I suggested more than a year ago here. But from a perspective that exhibits concern for equal justice under law, framed either as a constitutional or policy matter, these cases raise and aggravate the same anxieties I had immediately after Booker because now the SCT (7 of them no less) are saying, go ahead, district court, check out the guidelines, but in the end do what you want and we'll back you up so long as you make sure you can deftly invoke some plausible sentencing purposes language somewhere in your opinion. Federal judges have no special competence and now, post Booker-Kimbrough-Gall, no real measure of accountability, either to appellate courts or other bodies. It's not that judges want to always screw things up. They work hard and struggle with the decisions they face. The problem is they each see a different forest because they only look at one different tree at a time.
In that vein, I give props to Justice Thomas for recognizing in his two dissents that what's going on in these cases is legally misbegotten, born under a bad moon. On the other hand, since the stare decisis issue is statutory and not constitutional, I might have felt compelled to recognize the force of precedent worked by the Booker remedy, screwy and unprincipled as it is, since Congress can fix it, even if they might end up making the situation worse. I may have some other reactions or questions to share later (e.g., how come McConnell's concurrence in Pruitt enjoys such love?), but I'd like to invite other prawfs to consider in the comments how they might have voted on these fascinating and, for now, quite important cases.
Since these decisions may end up triggering legislative reaction, here are my two cents. I think it would be much better for Congress to satisfy the 6th Amendment issue by drafting the guidelines in a way that makes them mandatory, more lenient for most crimes (and emphasizing alternatives to incarceration), and insistent on putting all the non-admitted facts necessary for a given punishment before a jury to decide beyond a reasonable doubt. The discretion afforded to district courts and the leash placed on the counter-revolutionary circuit courts will invariably lead to inexplicably disparate sentences based on morally irrelevant considerations such as where the case was held and which judge one drew to hear the case. Pace yesterday's NYT editorial, we don't serve justice in a system guided by the rule of law by allowing random (or worse, arbitrary or discriminatory) acts of sentencing kindness (or harshness). At least that's the claim I'm trying to develop.
Wednesday, December 12, 2007
Law School Forum on Exam Questions
As Matt Bodie wrote a couple years ago (!) here:
As a recent article in the National Jurist noted, law professors are getting into this whole blogging thing. And as law profs start putting their thoughts and ideas out there on the Internet, savvy students are learning that blawgs are a good source of additional information about the law. And that's what you are, student Prawfsblawg reader -- savvy. Smart. And sophisticated, too.
As a service to our student readers, I'm creating a thread for any exam-related questions you might have about those upcoming monstrosities. Let us know if you have specific questions about technique or general questions about overall approach. Of course, some secrets have to stay in the old professorial vault, but we'll give you the inside scoop when we can. Because we know that you're savvy, smart, and sophisticated, and we want you to stay that way.
If you're a prof, please weigh in as comments are posted. I hope we can get a real dialogue going here. [Please note that there are a bunch of good comments and questions on Matt's post here so if you don't see your question raised there, please feel free to post it on the comments to this new thread.]
Federal Sentencing's Big Week
For those of us who study federal sentencing, it has already been an extraordinary week. As I discussed in postings on Monday, the Supreme Court issued not just one, but two, new decisions on the scope of judicial sentencing discretion in the federal system. Then, late yesterday, the Sentencing Commission decided to give retroactive effect to recent amendments that reduce the severity of crack sentences. I am inclined to view the Commission's decision as more consequential than the Supreme Court's decisions. Not only does retroactivity mean that thousands of federal prisoners may see years shaved off their sentences, but the decision (coupled with the underlying crack amendments themselves) may mark an important turning point in the history of the Commission. Marvin Frankel, the father of the sentencing commission concept, intended such commissions to be independent bodies that would be insulated from the political pressures often surrounding policymaking in the area of crime and punishment. However, the United States Sentencing Commission has not exactly lived up to this vision, often seeming to be a creature of the Department of Justice. What may have weakened the Commission's institutional will and political standing more than anything else was its failed attempt to reduce crack sentences in 1995, which was shot down by Congress. That earlier history with crack sentencing lends added significance to the new retroactivity decision, in which the Commission actually rejected DOJ's position on a controversial matter that attracted considerable public attention. This may indicate a new level of intestinal fortitude by the Commissioners and a renewed commitment to play the sort of principled, independent role that Frankel envisioned.
As for the Supreme Court decisions, as I indicated in earlier posts here and on SCOTUS, the messages sent to the lower courts of appeals regarding judicial discretion were surprisingly equivocal. Although both decisions rejected particular constraints on discretion that had been adopted by most circuits, the Court also affirmed that the "advisory" sentencing guidelines have a special role to play at sentencing and cannot be wholly disregarded. Thus, appellate court practices, which have tended to treat sentences within the guidelines more generously than "variances," may not actually change much after Gall and Kimbrough. Moreover, given the low percentage of sentences that are appealed (particularly the variances), I have always been skeptical that the formal rules of appellate review matter a lot at the district court level. My sense is that most judges follow the guidelines in most cases, not because they have to, but because they are comfortable with the guidelines and appreciate having a seemingly objective analytical process to help them make difficult decisions in what are often emotionally charged cases. This is not to say that the endorsements of discretion in Gall and Kimbrough are wholly inconsequential--crack sentencing, in paricular, is likely to undergo real change as a result of the combined effects of the Commission and Supreme Court decisions--but it is to explain why I think that institutional leadership in federal sentencing reform is passing, and must pass, from the Supreme Court to the Sentencing Commission.
Headin' to Iowa
I leave tomorrow to begin working with Joe Biden's campaign in Iowa, but today, frantically grading exams with CNN on in the background, pondering which Merle Haggard song best sums up my exam grading experience.... (I really appreciated the Buck Owens renaissance we experienced recently on this site. I downloaded "Under Your Spell Again" and "Where Does the Good Times Go"[sic] -- who said law professors can't inspire action.... ) Choosing the same style of song Michael chose, I'd offer "Sing a Sad Song" -- there really is just something depressing about wading through these things.
Sitting here, I just realized that I arrive in Iowa just hours before the 48th Democratic debate. I have suggested earlier that all of these debates are really causing less information to get out there. There might be a public appetite for a few debates, but with so many, no one watches any -- and the moderators are gunning for the gotcha moment, the insult or the gaffe that makes their debate famous, because otherwise they (like the candidates) will be overlooked. And, working for a lower-polling candidate, who is (in my humble view) a great debater, I would have preferred to have seen fewer debates.
Thursday's democratic debate (and today's Republican debate) mixes things up a tad -- they are at 2 pm on CNN. So we've now had debates for Spanish speaking audiences, debates that are audio only, and now television debates at a time when everyone is at work. (I suppose a debate using smoke signals in an isolated national park is next...)
Maybe in this world of multiple debates, more people will pay attention to this one. This debate is in Des Moines -- and we're really close (obviously) to the caucus. Since no one watches the debates (and I can't blame them), only the highlights, which are old news by the next day, no one has any idea what happened in the debates. Maybe, just maybe, more of the substance of a 2 pm debate will get air-time -- and become part of the decision-making process. The clips won't be too old for the evening news, or Wolf Blitzer's "Sitation Room". Working for a guy who has something to say, but no one to hear thanks to the style of the media's coverage of these things, I sure hope I am right. I'll keep you posted on what I see.
Tuesday, December 11, 2007
Video Evidence and Civil Rights Litigation
This video, of a Utah highway patrol officer tasering an uncooperative, but non-resistant driver who refused to sign a traffic citation, has had more than 1.5 million views on YouTube (the good stuff begins around the 2:15 mark). Orin Kerr has written a couple of things at the VC. In yesterday's post, Orin suggests that "the video can plausibly be viewed two different ways depending on what parts of the video you focus on when you're watching."
Orin's basic argument--this video can be viewed multiple ways or can tell multiple stories leading to different conclusions by reasonable people--reaffirms my belief that the Court was wrong last term in Scott v. Harris in granting summary judgment based on the video and the insistence that all evidence must be viewed "in light of the video." My fellow-GuestPrawf Tommy Crocker previously criticized Justice Scalia's simple reliance on the video in that case. I have an essay coming out in Judicature next month criticizing the procedural component of that decision.
The argument about this video captures a broader point about the use of video evidence: It is not the objective, clear, certain proof that many believe it to be, but is, like any piece of evidence, subject to interpretation and multiple inferences. How we look at a video, which part of the video we look at and focus on, when we look at the video all affect how we interpret it and what inferences or conclusions we draw from it. And in civil litigation, interpretation and inference-drawing should be left for the jury. So when the driver in this video files his inevitable Fourth Amendment damages action, we only can hope the court does not rush to grant summary judgment for either party based on nothing more than the video. Rather, recognizing the possibility of different, reasonable conclusions based on the same video, it would be the worst example of the court using summary judgment to short-circuit the clear role of the jury based on the court's own viewing.
Orin also brings up a second point, one that reflects both the power and influence of video evidence of police/citizen encounters and the limits of private civil rights litigation as a tool for reforming government conduct. He argues that the video suggests the officer did nothing to keep the situation from escalating; notably, he was either unable or unwilling to explain to the driver what was going on, why he was stopped, etc. That shows an officer not doing his job appropriately--as Orin writes, "we would all agree that the officer did a terrible job in the traffic stop on the whole; that guy needs a desk job pronto." But that the officer did a bad job does not mean he violated the Fourth Amendment, which is the only thing with which a court hearing the driver's civil claim will be concerned. But the presence of the video, which members of the public are able to see and draw conclusions, should prompt non-litigation-imposed changes by the relevant government agency--perhaps reassigning or firing this officer, perhaps adjusting training programs to better enable officers to handle these situations, perhaps both. Either way, because so many have seen this video, we can attain the public benefits that would come from constitutional litigation, regardless of the outcome of that litigation and any damage award given to this plaintiff.
To be in London . . .
I tried (for a little while, anyway) to think of a good law-prawf angle on this news, but failed. (Any suggestions?). I realize my excitement dates me a bit, but . . . this news story, about Led Zeppelin's reunion show yesterday in London, made my day. Now . . . where's that confounded bridge . . ..
Monday, December 10, 2007
Freakonomics and NBA Officiating
Ian Ayres has a piece in the November 2007 issue of the Economists' Voice urging NBA Commissioner David Stern to "give Freakonomics a chance" as a way to get to the bottom of whether there is pervasive point-shaving or other cheating by NBA officials. Ayres argues that the emerging field of forensic econometrics has been successful in presenting statistical evidence of misconduct, including match-fixing in sumo wrestling, possible point-shaving in college basketball, and racial bias among NBA officials.
Ayres current concern is the case of former official Tim Donaghy, who has confessed to gambling on games he officiated and to manipulating calls to benefit himself and other gamblers. The NBA has insisted that Donaghy was an isolated bad-apple employee. Ayres argues that the league should be more substantively transparent in order to prove to fans that they can trust the league and its officials. Releasing its internal officiating data (tracking which refs made what calls in each game) for study by outside forensic statisticians goes a long way to restoring that trust--whether by assuring fans that the league is, indeed, clean or by exposing more malfeasance and giving the league a chance to really clean itself up.
(Cross-Posted at Sports Law Blog)
Will Harvard just abolish tuition? Should it?
The NYT just announced that Harvard College is dramatically reducing the tuition charges for its students, even those coming from reasonably affluent families earning six figure incomes. Just this past weekend, I heard that something like this might be in the works, but oddly enough, I heard that Harvard is contemplating abolishing tuition altogether, which it could plausibly do in light of the outstanding returns on endowment investments the last ten years.
The advantages of such a move are obvious: it would make clear to all potential students that they have a shot at a great education without fear of imperiling their family's scarce resources. Though the yield and financial aid at Harvard are very high and very good, I suspect many good students turn Harvard down every year for free rides at other schools. Abolishing tuition would encourage more students to apply and more admitted students to accept offers of admission. But are there any downsides aside from the obvious financial impingements on other university objectives?
I think so. I say this as someone who benefited from Harvard's generosity as an undergrad and law student. To be sure, I would very much like to have liberated my parents from having to make a contribution to my education. But I do think it's good that students themselves feel some pinch if only because it makes them feel like a stakeholder in their own education as well as their future. Students who don't have to make any sacrifice for their education (especially those from privileged backgrounds) are at risk of undervaluing the experience or feeling entitled to it. The best way to overcome this, I think, is for tuition to be scaled to students' future incomes so the value of the education is paid in a way proportionate to the (material) benefits of the education itself.
On this plan, Harvard would simply collect (for the sake of argument) 1% of the student's income for the thirty years after graduation. Those going to hedge funds and law firms will pay more while those pursuing teaching or public interest work will pay less over time. To avoid perverse incentives, one would probably have to ensure that everyone falls prey to this system--lest the people who know they want to be investment bankers would try to opt out of the system by securing alternative funds. Of course, that point generalizes beyond the pool of Harvard applicants too, but my guess is that enough people want the branding that at the time of application to college, they would be willing to authorize paying an additional Harvard college (or law school) "tax" for the years after graduation. Meanwhile, it would place the burden of paying for higher education on the person who benefits most directly from the education: the student, rather than the parents.
Given that Harvard has the resources to undertake this social experiment, I wonder if it should bite the bullet and do it. Any thoughts on whether this alternative is unworkable or unattractive?
What a whirlwind week. Many thanks to all our guests who have been helping us feed the blog beast while Prawfsfest! took place in LA. I'd like to reiterate a special thanks to our hosts at Loyola Law School: Associate Dean Bill Araiza, Vlasta Lebo, and Mark Weiner, who all helped ensure that the conference went smoothly and that all the participants ate well.
I think I can safely say that all of the papers will enjoy significant improvement as a result of our get-together. I hope I can also say that we all enjoyed each other's companionship, as well as Rob Kar's aestheticism and proximity to Pinkberry. Many thanks again to Steve Vladeck, Dave Fagundes, Rob Kar, Carissa Hessick, Gowri Ramachandran, Michael Waterstone, Ekow Yankah, Zak Kramer, Tommy Crocker, and Jason Solomon for sharing their wonderful work and insights.
Those of you contemplating a trip to LA, here are some recommendations: the Renaissance Hotel at Hollywood and Highland (ask for an upper floor view of the Hollywood Hills); Wolfgang Puck's brasserie, Vert; a tapas restaurant in Los Feliz called Cobras y Matadors; and by far the highlight, drinks at the Tropicana pool bar at the Roosevelt Hotel in Hollywood.
Another Sentencing Win for Breyer
I have had a bit more time to digest the Supreme Court's new sentencing decisions. I have posted some thoughts on Gall at SCOTUS, and will concentrate here on Kimbrough. (I should note that Mark Osler has some interesting things to say about the case here. And, of course, Doug Berman's blog remains an essential place to visit for commentary on any sentencing news.)
A common way to tell the story of the Supreme Court's sentencing jurisprudence from the 2000 Apprendi decision to the present is to focus on Justice Breyer's efforts to preserve a central policymaking role for the United States Sentencing Commission, of which he was an architect and an original member, in a world of increasingly robust procedural rights at sentencing, which threaten the practical workability of the Commission's sentencing guidelines. Though he has been fighting a rearguard action, Breyer's efforts have been remarkably successful. While the Court's 2005 Booker decision nominally converted the guidelines from "mandatory" to "advisory," the lower courts of appeals quickly interpreted the new system such that a thumb was effectively placed on the scales of the guidelines sentence: a within-range sentence would be accorded a presumption of reasonableness on appellate review, while a "variance" from the guidelines would be subject to more searching review. The Supreme Court's decision last term in Rita lent clear support to the former practice, while the Court's decision today in Gall offers at least implicit support for the latter. But Kimbrough may actually provide the clearest illustration of the influence of Breyer's pro-Commission views.
In Kimbrough , the district court chose not to follow the guidelines applicable to crack offenses, which result in considerably harsher sentences than the guidelines for powder cocaine offenses. The court relied in part on the Sentencing Commission's own findings in a series of reports since 1995 that the crack-powder disparity is unjustifiable from a policy standpoint. (The Commission, in fact, attempted to eliminate the disparity in '95, but was overridden by Congress. Since then, Congress has largely ignored the Commission's persistent recommendations to modify crack sentencing by statute.) The Fourth Circuit, however, reversed on the ground that the district court judge had assumed a policymaking role that was reserved for Congress and the Commission. The Supreme Court rejected the Fourth Circuit's reasoning and held that a sentencing judge may properly take into account his or her disagreement with policies embodied in the guidelines.
So far, sounds like a big loss for Breyer's Commission, right? Not so fast. Reading the opinion carefully, I can't escape the impression that the key fact in the case was not that the sentencing judge had good reasons for disagreeing with the guidelines, but that the judge's views happened to coincide with those of the Commission itself. The Court indicated that it would generally draw a distinction between variances based on case-specific facts that take a case outside the "heartland" (which must be given great deference) and variances based on policy disagreements (which must be given less)--indeed, it was apparently to take issue with this distinction that Justice Scalia concurred. However, crack merits special treatment, the Court held, because the crack-powder disparity did not emerge from the Commission's "exercise [of] its characteristic institutional role" (i.e., the development of guidelines through "empirical data and national experience"). Rather, the crack disparity entered the guidelines in response to a statute--a statute whose premises turned out to be mistaken. In other words, the Commission's policy judgments must be given greater deference when based on its own research and analysis than when based on a response to a congressional policy decision. This seems a remarkable elevation of the Commission's policymaking role over Congress's. This impression is reinforced by the Court's reliance on a series of Commission reports whose conclusions were never embodied in successful amendments to the guidelines until well after Kimbrough's sentencing, while at the same time giving short shrift to plausible arguments as to implicit congressional intent. When it comes to Congress, text trumps policy preference; when it comes to the Commission, policy preference trumps text.
Justice Scalia once castigated the Sentencing Commission as a "junior varsity legislature." Junior?
I should add that I am perfectly happy with the result in Kimbrough. I would have preferred, though, if the Court had gotten there without relying so much on the mythology (also central to Rita) that the Commission has (in general) developed the guidelines through some sort of scientific process that carefully balances all of the purposes of sentencing in ways far beyond the abilities of the judiciary.
Big Sentencing News
Acting much more quickly than expected, the Supreme Court issued opinions this morning in the Gall and Kimbrough cases, which were argued earlier this fall. The opinions are available at SCOTUS blog. I've just skimmed the opinions, but both represent important wins for federal criminal defendants. (In the interests of full disclosure I should add here that I co-authored an amicus brief with Mark Osler of Baylor in support of Mr. Kimbrough.) In Kimbrough, the Court held that district court judges are not bound by the draconian sentencing guidelines applicable to crack cocaine offenses. (I refer here to the infamous 100:1 ratio, which relates to the relative severity of treatment of crack and powder cocaine offenses.) The Court's opinion makes much of the fact that the Sentencing Commission itself has disavowed the 100:1 ratio and has recently acted to soften the crack-powder disparities. In Gall, the Court overturned an Eighth Circuit decision reversing a sentence significantly below the applicable guidelines range. The Eighth Circuit employed an "extraordinary circumstances" test, holding that extraordinary variances from the guidelines must be justified by extraorindary facts. The Supreme Court held, however, that the Eighth Circuit's approach was insufficiently deferential to the sentencing judge and found that the sentence imposed on Mr. Gall satisfied the reasonableness standard of appellate review.
I will comment further after I have had a chance to digest the opinions more fully.
Sunday, December 09, 2007
Race, Crime, and Jobs
I've been reading Devah Pager's fascinating new book Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago Press 2007). Pager, a Princeton sociologist, conducted an experiment here in Milwaukee in an attempt to quantify the effects of race and criminal history on the evaluation of job applications. Here is her description of the study:
[The experiment involved] sending matched pairs of individuals (called testers) to apply for real job openings in order to see whether employers respond differently to applicants on the basis of selected characteristics. The current study included four male testers, two blacks and two whites, matched into two teams--the two black testers formed one team, and the two white testers formed the second team. The testers were college students from Milwaukee who were matched on the basis of age, race, physical appearance, and general style of self-presentation. The testers were assigned fictitious resumes that reflected equivalent levels of education and work experience. In addition, within each team, one auditor was randomly assigned a criminal record for the first week; the pair then rotated which member presented himself as an ex-offender for each successive week of employment searches . . . .
For the white testers, Pager found that a criminal record reduced the likelihood of a callback by 50 percent. For the black testers, a criminal record reduced the chances of a callback by 60 percent. "A criminal record," she notes, "can thus confirm negative stereotypes against blacks"--a finding that is especially troubling in light of the documented racial disparities affecting so many other aspects of the criminal justice system. "[T]he findings of this study suggest that black offenders may be doubly disadvantaged: not only are blacks more likely to be incarcerated than whites; according to the findings presented here, they may also be more strongly affected by the stigma of a criminal record."
Pager's book strikes me as a helpful addition to the burgeoning literature on prisoner reentry and another reason to welcome legislation like the Second Chance Act (H.R. 1593), which was passed by the House of Representatives last month. The SCA would authorize about $340 million in spending on reentry-related initiatives, most notably in the form of grants for state and local efforts that incorporate not only law enforcement and corrections agencies, but also diverse public and private social services agencies. Returning prisoners face tremendous challenges in obtaining employment, housing, education, medical care, and substance abuse treatment. Successful reintegration into the community seems unlikely for many former prisoners without more extensive planning and support than is typically supplied today. And, as Pager's research suggests, the needs may be especially pressing for minority offenders.
Friday, December 07, 2007
On the Cert. Grants in Munaf and Omar
Apropos today's cert. grants in Munaf v. Geren and Geren v. Omar (HT: SCOTUSblog), I thought I'd provide a link to my most recent post on these cases, from this June, "Making Sense Out of the Iraqi Detention Cases."
I hope to have some more thoughts over the weekend on the significance of the grants, particularly in light of the facts that (1) Boumediene was conferenced today; and (2) both cases were granted, even though there are important distinctions between the two...
O'Connor, Kennedy, and Reputation
Edward Lazarus's Findlaw column this week discusses Justice Kennedy's reputation and suggests that he has taken a hit in part because of nostalgia for Justice O'Connor. Further, he points to Justice O'Connor's jurisprudence in arguing that the nostalgia is more widespread than deserved.
I agree that Justice O'Connor has received kid-glove treatment, though I am less sure that critics have been meaner to Justice Kennedy because of it. It seems to me that there are a few factors at play here that combine to create the odd difference in treatment the two Justices have received.
First, Justice O'Connor's still-recent retirement naturally leads people to go easy on her. My sense is that recent retirees are granted more deference than ones who left the Court long ago, and certainly more than are Justices who are still serving. Kennedy receives criticism now in part because he is the moderate who still matters.
Second, Justice O'Connor's status as the first woman on the Court makes it easy to praise her. I cannot imagine that she would be receiving the praise that she gets from the country if she were male. Though of course the notoriety that goes along with her appointment focuses good and bad attention on her, some may back off of criticizing her and her appointment for fear of appearing biased, and even those who object to her jurisprudence can always applaud her "trailblazing" accomplishments. (Yes, some actually biased commentators might focus more criticism at Justice O'Connor because of her sex, but it seems to me that such criticism is especially unlikely from the mainstream media and "the left," on which Lazarus seems to focus in noting the recent praise of Justice O'Connor.)
Third, and, I think, most important, her case-specific way of deciding cases tends to lead to outcomes that are acceptable to her and, because of her general political moderation in the areas of greatest public salience, to most Americans. Journalists, politicians, and the public do not care about the jurisprudential problems created by Justice O'Connor's approach, and the theoretical inconsistency and idiosynchratic subjectivity that so characterize her decisions are of no concern to people who do not have to apply them. We've seen plenty of instances of praise for Chief Justice Warren's approach of seeing through the law to achieving the right moral result, and similarly Justice Stewart continues to receive praise from politicians, including Senator Kerry in the 2004 campaign, despite the inconsistency and subjectivity that appear in his opinions. I think praise for Justice O'Connor is another species of that phenomenon. Justice Kennedy, because his opinions are more apt to produce outcomes out of step with public opinion, is unlikely to receive such praise, and he receives plenty of criticism from partisans of both the left and the right as well as from people who object to his decisions on jurisprudential grounds.
Fourth, and relatedly, the nostalgia is felt, as Lazarus says, mainly by "the left." It should come as no surprise that liberals would prefer to have on the court a "swing vote" who is apt to swing their way more often than will the current one.
In no way, however, should we take any of the priase to mean that Justice O'Connor was a better judge.
Does "freedom require religion"?
In his "Faith in America" speech, Gov. Mitt Romney said, among other things:
Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.
Is this true? Over at Balkinization, Jack Balkin says that this statement (and some others) in the speech "strongly identify Americans and Americanism with belief in God." Is this true?
For starters, it is (obviously) not the case that only those persons who believe in God (or who, in Gov. Romney's words, "believe that Jesus Christ is the Son of God and the Savior of mankind") are or can be good Americans. It is certainly not the case that only such persons desire, deserve, and sacrifice for "freedom"; or that only a political community consisting primarily of such persons can be "free."
I do not know exactly what Gov. Romney intended to communicate or claim with the statement that "[f]reedom requires religion". If he intended to claim with that statement what (it sounds like) Prof. Balkin understands him to have claimed, he was mistaken. (It seems to me unlikely, though, that Gov. Romney believes that only theists -- or Mormons, for that matter -- are or can be good Americans.)
That said, I believe that it is true -- or, at least, that there is a sense in which it is true -- that political "freedom requires religion." To be clear: It is not true that a political community of religious people will, necessarily, be "free"; or that a political community in which most people do not believe in God cannot be "free"; or that religious believers will always cherish, protect, respect, or even understand political freedom. (I assume that Prof. Balkin and I agree entirely about all this.)
All that said, it seems to me that the existence and maintenance of political freedom does depend on -- i.e., does "require" -- "religion" in the sense that political freedom requires not merely constitutional or other legal limits on government power and official action, but also that (and a consensus that) the aims, sphere, authority, purpose, reach, and nature of the state -- of politics -- be limited, by something else. That is, it is crucial to political freedom that -- in Harold Berman's words -- it not be "for the secular authority alone to decide where its boundaries should be fixed" and that -- as John Courtney Murray put it -- there be "room for the independent exercise of an authority which is not that of the state." And, it seems to me that "religion" is best, and perhaps only, able to satisfy (even though, of course, it has often failed badly to satisfy) these requirements. (I tried to flesh out this idea in this short paper.)
What do others think? Is this, or something like this, plausible?
I cannot emphasize this enough: To suggest this is not, at all, to say that only religious people understand the value of, and cherish, freedom-under-and-through-limited-government. None of this is intended to be -- or, objectively, is -- exclusionary, triumphalist, "theocratic", or "Christianist." Nor am I claiming that these thoughts of mine capture or reflect what Gov. Romney intended to say. I do not know, exactly, what he indended to say. (Disclosure: I am a member the Thompson campaign's Law Professors Committee.)
Thursday, December 06, 2007
Bad Movie Meme: The Painfully Bad, the Ridiculously Bad, and the Truly, Truly Awful
I have been tagged by Chris Bracey to take part in the bad movie meme that going around the law blogosphere. I'm honored. Like a lot of folks, I have a special place in my heart for bad movies. If you share this affinity, may I recommend I Hated, Hated, Hated This Movie by Roger Ebert (available at Amazon and Google Books). I've long been an Ebert fan, back to when I watched him on PBS with Gene Siskel. He was one of the first critics to get all of his reviews up on the Internet; you can search his site here. Hated, Hated, Hated is simply a collection of his bad reviews -- or, more accurately, his very entertaining reviews of bad movies. (He has another collection which I have not read called Your Movie Sucks.)
Because I cannot bring myself to cut down on my list of three movies, I'll talk about each. I also agree with Dan Solove that Matrix: Revolutions and the Star Wars I-III deserve particular enmity for their trashings of treasured franchises. But these movies are worse.
By the way, I saw all of these movies in the theater.
The Ghost and the Darkness. The set-up has potential: Val Kilmer and Michael Douglas as hunters chasing after a pair of man-eating lions. But the execution is horrible. This movie is bad in an uncomfortable, why-am-I-wasting-my-time sort of a way. The only mildly entertaining element is Douglas's wild-eyed Quint impersonation. It's horrible, but in a slightly amusing way. Here's Ebert's take: "It lacks even the usual charm of being so bad it's funny. It's just bad. Not funny. "
Jaws: The Revenge. I love Jaws. It's a great movie. Jaws 2, however, is bad. Jaws 3 is horrible; it takes place at a "Sea World" ripoff and has the most laughably-bad special effects I've ever seen, at the most critical point in the movie. (Think shark -as-dirigible.) But Jaws: The Revenge is so illogical, so contrary to reality and human understanding that it beggars belief. I could spend hours on this movie, but just one detail: the movie cuts from a scene of a woman in a plane to a scene of the shark, swimming in the water, following the plane. Ebert completely deconstructs the movie here. Here's a taste: "I believe that the shark wants revenge against Mrs. Brody. I do. I really do believe it. After all, her husband was one of the men who hunted this shark and killed it, blowing it to bits. And what shark wouldn't want revenge against the survivors of the men who killed it?"
Truly, Truly Awful
King Kong Lives. King Kong Lives is a sequel, not to the original King Kong, but to the 1976 remake starring Jeff Bridges and Jessica Lange. They are nowhere to be found, but poor Linda Hamilton is, fresh off the original "Terminator". I guess she was already under contract. The movie opens with King Kong crumpled in a heap at the base of the Twin Towers. But he's not dead; in fact, he becomes the recipient of the world's largest (and only successful) artificial heart. In order to make up for his blood loss, a female Kong is found for transfusions. Chaos ensues. The movie closes with a baby Kong; unlike other babies, this Kong is simply a much smaller gorilla with adult proportions. In other words -- a guy in a gorilla suit. Here's Ebert: "Every movie like this has at least one amazing line of dialogue. I especially liked it when the heroine cried to the Army troops: 'Don't shoot the female! She's gone into labor!' This moment was especially amazing since the two Kongs had mated for the first time only three days earlier."
Thanks again to Chris for this opportunity. And now I'll "tag" two folks at the Glom -- Christine Hurt & David Zaring. I'm looking forward to their picks.
Here Comes Another Bubble
This is good. Apparently blogging is one of the buzz words in the bubble world.