Thursday, January 31, 2008
PBS Frontline Program on VP Cheney
A student alerted me to a very interesting PBS Frontline program on Vice President Dick Cheney, "Cheney's Law," which explores Cheney's views and impact on executive power and other constitutional and policy issues that have arisen during the Bush Administration. The full program, along with related materials, is available online at PBS.
Ethics of blogging; citing to blogs; citing to us!
Over at TVC, Eugene shares his views on why it's a good practice to check with people before responding to their blog posts and to a lesser degree, their law review articles. He and I are on the same wavelength, as I blogged a bit more than a year ago about the ethics of legal scholarship. And happily, Eugene cites that blog post a good bit in the new edition of his excellent book on Academic Legal Writing. Scroll down to see the review by my former student Bart Motes on Amazon.
Interestingly, this discussion just came up in the context of citing blog posts in law review articles and how many times a particular blog has been cited in the JLR database of Westlaw. (How come no one seems to use Lexis-Nexis for this stuff anyway?) Anyhooo, I spent hours, ok, more like 30 seconds, crunching the numbers. Prawfs comes up about 41 times so far. Pretty good for a blog that started in April 2005. We've got almost the same number of citations TVC had in 2004 and 2005. Not that we're keeping score or anything...
We have an extraordinary few months ahead of us here at Prawfs. I'm particularly pleased to announce some some of the new voices joining the conversation this coming month. Please welcome for the first time to Prawfs Eric Johnson, who just started teaching IP law at UND and blogging at Pixelization and BackBencher. Eric had most of us chuckling in law school, and promises to make up for the lost time since he abandoned a career as a top 40 radio DJ, stand up comic, and inventor of patented headrests. To mix things up further, we'll also have a non-prawf guest with us, Jim Von Der Heydt. Jim's a political junkie and a scholar of poetry, not to mention a football jock and related to a judge. He's got a new book on poetic humility that he will no doubt find somehow related to law.
Additionally, I'm excited to welcome for the first time Adam Winkler from UCLA, who will share some wisdom about con law and specifically the issues related to the Heller guns case; Erik Knutsen, a torts and insurance scholar from Queen's University (Canada); and Scott Dodson, a civ pro scholar from UArk-Fayetteville.
Last, let me express my gratitude to Mike Dimino for his contributions. Liz and Jonah will be staying on for extended visits and Brooks will be lingering a couple more weeks. Thanks to all.
Starbucks: The Need for a Grande, Non-Fat Federal Panel
The news at Starbucks is grim and lean (unlike the drinks). Among the "action steps" on the "transformation agenda" of Starbucks bigwig Howard Schultz (must they talk that way?) is the closure of "approximately 100 underperforming stores." Of course, one supposes they might ultimately end up closing even more stores than that.
If they're going to start talking about store closures, I think Starbucks ought to tread carefully. It's all well and good for those of you who teach, study or work around the Upper West Side, or around Dupont Circle in DC, where you can be sure that a randomly-thrown rock will hit at least a couple displays of cut-rate mugs and Sheryl Crow album tie-ins and bounce off the laptops of two or three would-be screenwriters. But those of us in the hinterland depend on our few stores as a caffeinated connection to the standardized bourgeois culture and comforts found everywhere else in the nation. We need our Starbucks. I would hate to think the store would be rash in how it goes about closing its locations.
Really, I think the whole thing is serious enough that it's no good just allowing the free market to muck around with sales figures and so on. At the same time, I hardly trust the political process either in this case, especially with an election coming up. Happily, we already have a wonderful model in place for a solution: why not a federal Starbucks Realignment and Closure Commission?
Wednesday, January 30, 2008
Michigan Law Review (FI) Symposium on the Electoral College
I'm happy to direct readers to check out a new symposium up at Michigan Law Review's First Impressions on the Electoral College. I have a short piece (co-authored with Eli Mark) on democratic principle and Electoral College reform; many of the ideas discussed in the piece were aired here at PB first. Other articles are by Dan Tokaji of OSU, Thomas Hiltachk of the Hiltachk plan to change how California allocates its electoral votes, John Mark Hansen of the University of Chicago, and others.
The editors were absolutely great and put together a great symposium that can be downloaded in its entirety here.
Science Ruins Everything*
It's bad enough that they've given me reason to doubt Bishop Ussher, modern geocentrism, and the efficacy of my grandmother's mustard poultice. Now those white-coated so-and-sos explode two more of my most fondly held beliefs. From a story in today's NY Times reporting on studies performed by Prof. Paul Dawson, a food microbiologist at Clemson, with his students:
- [A] scientific report has some new findings that may cause football fans to take a second look at that communal bowl of dip. The study, to be published later this year in the Journal of Food Safety, is the only one I’ve ever seen to proclaim that it was inspired by an episode of “Seinfeld.” . . . [Prof. Dawson] proposed it after he saw a rerun of a 1993 “Seinfeld” show in which George Costanza is confronted at a funeral reception by Timmy, his girlfriend’s brother, after dipping the same chip twice. . . . Professor Dawson told me that he had expected to find little or no microbial transfer from mouth to chip to dip, which would support George’s nonchalance. The results surprised him. . . . On average, the students found that three to six double dips transferred about 10,000 bacteria from the eater’s mouth to the remaining dip. Each cracker picked up between one and two grams of dip. That means that sporadic double dipping in a cup of dip would transfer at least 50 to 100 bacteria from one mouth to another with every bite. . . . Professor Dawson said that Timmy was essentially correct. “The way I would put it is, before you have some dip at a party, look around and ask yourself, would I be willing to kiss everyone here? Because you don’t know who might be double dipping, and those who do are sharing their saliva with you.”
Professor Dawson encourages his undergraduate teams to test popular conceptions about food safety in the laboratory. Last year he published a paper on the five-second rule, which states that food dropped on the floor can be safely eaten if you pick it up before you can count to five. The rule turned out to be false.
Well, I gave up on geocentrism -- grudgingly. (Eppur si non muove!) But there's not a chance in hell I'm giving up on double-dipping -- especially if, as I do, one takes pains to reverse the chip fragment before the second dip, thus dramatically decreasing the cootie-giving nature of the second dip. As for the five second rule, no sensible parent or glutton, and I am both, would let some mere "food microbiologist" stand in his way.
* In deference to my surgeon, the title should read "(Almost) Everything," but it read better the other way. No offense, Dr. Cordover!
Tuesday, January 29, 2008
Appearances of Impropriety
As a teacher and student of election law, I am reasonably familiar with the argument that the government sometimes needs to act--even to the point of interfering with the people's constitutionally protected rights--to prevent other people from thinking, incorrectly, that government is behaving corruptly. Most famously, at least in my areas of interest, the Court has dealt with and accepted this argument in the campaign-finance series of decisions. The argument has also been successful in some Fifth Amendment due-process cases involving actions by judges that call into question their impartiality. Thus, judges cannot be paid more for signing a search warrant than for denying one, and cannot rule on a case in which they have a financial interest, in part because even if the individual judge performs his job properly, the public may doubt the trustworthiness of the legal system. As the Court has put it, "justice must satisfy the appearance of justice."
Giving the government power to act based on its estimation of appearances, however, can be tremendously destructive to principles of limited government and individual liberty. It's also potentially manipulable, and for the same reason: all manner of behavior resembles impropriety, and proving that the actual behavior is not corrupt is beside the point. Some people, of course, see that result as having occurred already in the campaign-finance cases, but in other areas as well government has claimed the power to prevent people from acting so that the government itself is not brought into disrepute. I have argued in my articles that the "appearance of impropriety" argument should be insufficient to interfere with judicial candidates' campaign speech.
Most recently, this argument has re-surfaced in the voter-ID cases. Indiana's Secretary of State is quoted in the January ABA Journal (p. 44) as saying that ID requirements "give confidence to the voters" and should be upheld for this reason "[r]egardless of the law's effect on fraud." (Both quotes are from the article, but the language in only the first quote is attributed to the Secretary.) The Supreme Court said something similar in Purcell v. Gonzalez, which also involved a challenge to a voter-ID law: "Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."
I think the voter-ID laws, both in general and the Indiana law challenged in the Crawford case now pending before the Court, are constitutional. In brief, I don't see how the obligations to obtain and bring an ID card to a polling place are unconstitutionally onerous (i.e., a "severe" burden under Burdick v. Takushi), especially compared with the state's ability to set the locations and operating hours of the polling places themselves. But if strict scrutiny applies, it would be a shame if voters' unjustified "fear[s]" of fraud were sufficient to satisfy that standard.
I wonder if what Justice Jackson said about presidential emergency powers applies as well to the appearance-of-impropriety argument: "Such power either has no beginning or it has no end."
Check this out: In the U.S. south, is Canadian a new racial slur?
So wrong in so many ways. Discuss. (H/t: Buck)
Disqualifying Judges through Contributions
In his Sidebar column today in the NYT, Adam Liptak spotlights a forthcoming study of judicial voting in Louisiana by Tulane prawf, Vernon Palmer. Palmer thought it improper that the Justices on Louisiana's Supreme Court failed to recuse themselves in cases where they received campaign donations from one of the litigants. After the Justices refused to recuse themselves, Palmer conducted a study showing that the incidence and amount of a campaign contribution co-related well with which way the Justices voted in the cases.
On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time...Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.
In response to other studies of possible erosion of judicial virtues and suggestions by Justices Breyer and Kennedy that campaigning is in tension with judicial responsibilities, Adam writes that the cure for this problem is relatively straightforward:
But you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person’s case.
This makes some sense, but to me it raises some questions of incentives and strategy. If I represent a client with a very valuable "pro-business" litigation position, why won't I suggest early on that she give money to the campaign of the "economic populist" running for re-election? That way she can use the taint rule to effectively disqualify the judge who will vote against her if her litigation position is worth more to her. In other words, I worry the rule which Adam and Professor Palmer endorse works too broadly, and will give a cheap way to DQ potentially hostile judges. A rule of necessity issue might also come up if someone gives campaign donations to all the justices or a majority of them. Am I right in thinking this? If so, are there other plausible solutions?
Btw, check out Adam's other cool article today on Bail Bondsmen.
Update: Adam informs me via email that we can reduce such "strategery" by giving the adversary the option of requiring recusal in such circumstances. That's a shrewd point. Still, I wonder if that removes the problem when there are information asymmetries; I also worry it will encourage some wasteful gamesmanship in any event. But what's the alternative: abolish judicial elections?
While there is ample information available about the traditional law review submission process, I haven't been able to find any information on submitting symposium ideas to law reviews. In the coming months, I will be in some very distinguished company on a couple of panels at the 2008 SEALS Meeting and, hopefully, at Lavender Law 2008. I'll be sitting next to celebs like her, him, her, her, him, him, her, him, and her. I feel lucky to be on this list of VIP's, and would like to thank them for including me (or accepting my invitation, as the case may be) on these panels. I thought one way of demonstrating my appreciation would be to secure journal placement of the pieces they will present on these panels. But how does one do this? I suspect telemarketing is not the answer, but what is?
Monday, January 28, 2008
What is Stanley Fish Thinking (Again)?
Over at his great perch on the NYT website, Stanley Fish has launched the claim that constitutional theory doesn't really matter, especially in the context of presidential candidate selection. In part a review of Jim Fleming and Sotirios Barber's new book on the basics of constitutional interpretation, Fish's post advances the argument that in terms of adjudicating the merits of the positions withing the complex debate among "strict constructionism, originalism (in several versions), textualism, pragmatism, the living constitution, etc," "there are no practical issues at stake in this debate. "
I beg to differ. I'll use just one example--the Eighth Amendment's prohibition on cruel and unusual punishments. If one is a Justice on the Supreme Court in 1974, and also an adherent to living constitutionalism, which I take to mean that one finds the meaning of the Constitution from its words in conjunction with larger trends in related social values as well as respect for evolving precedent, it would make substantial sense to think that the death penalty is prohibited under the Constitution. After all, Furman was decided the year before, with a majority of the justices ruling, each in their own way, that the death penalty statute in Georgia was constitutionally problematic. By contrast, if one took an historical approach to the original meaning of the 8th Amendment, I think one would be hard pressed to find support for the proposition that the 8th Amendment's prohibition against cruel and unusual punishment entails per se opposition to the death penalty.
If I'm right about this, and that the death penalty is a matter of some practical importance, then Fish needs to think again about whether constitutional interpretation strategies actually matter. Indeed Fish's evidence for thinking they don't matter seems somewhat strained. Consider what he writes:
The urgency and occasional stridency of the debates in this area suggest that it matters very much because a judge’s interpretive theory will strongly influence, if not dictate, his or her decisions, won’t it? No. When Professor Lief Carter asked a number of judges to talk about their interpretive theories, he found that “the conversation would quickly drift from the theoretical points” he had introduced to anecdotal accounts of practice and opinion writing. “Most of the time,” said one judge, “you reach the result that’s fair and then build your thinking around it.”
Maybe I'm misunderstanding something but Fish's evidence confirms through anecdotal evidence that most judges are lazy or indifferent to theoretical consistency, not that theoretical disputes have no practical significance if one engages in these disputes seriously. I can understand why Fish's view --"The first thing a judge does is not reach for a theory, but reach for the storehouse of precedents and formulas and three- or five- or ten-part tests and use them to decide under what legal rubric the case is to be placed and analyzed"--might be more applicable to lower court judges facing settled areas of law, but even that move is a reflection of a constitutional interpretation theory: namely, one that puts respect for precedent above all other modes of interpretation.
Moreover, reaching for doctrinal tests from precedent is surely not the first or only stratagem when the law is open-textured, a matter of first impression, or when the judge in question sits on the highest court. For those cases, theoretical approaches may be a good bit more than "merely possible ... building blocks in the fashioning of an argument." If I'm right, then the practical importance of these debates is a reason for caring, pace Fish, about what presidential candidates say about their theories of constitutional interpretation.
SC to Clintons: It's Time for You to Go*
Well, I guess we know what South Carolina Democrats think of the slash-and-burn tactics that the Clintons have been employing in their third campaign for the White House.
What bothers me about the Clintons isn't that they play rough. Frankly, after the unrelenting, and frequently personally based, Republican attacks of the past 15-20 years, I think it's really important that the Democratic nominee for president (heck, the Democratic nominee for anything) be prepared to fight back. So I count the Clintons' ability to counterattack in the general election, should the Clintons get this year's nomination, as a plus.
No, what bothers me about the Clintons' attacks is what has always bothered me about the Clintons:
their single-minded (if two people can together be single-minded) focus on personal (dual?) victories, whatever the costs to anyone and everyone else.
They say that politics is the art of the possible. And they have a point. But presidential politics is also the art of determining what's possible. To use the language of math/economics, the Clintons largely took as given the political constraints of their time in the White House, while GOP members of Congress, and later George W. Bush, decided to simply change the constraints. They argued for truly bad policies, but they did so with such full-throated vigor and unabashed certainty that their message went down well with the media and the electorate: "we're the ones with ideas, we're the ones who are for change, and the Democrat Party, led by those extreme liberal Clintons [sound of coffee/beer being spit out] in the White House are about the failed liberal policies of the past". Having (at least helped to) enable the advent of the GOP congressional majority by their stunningly bad performance on health care in their first two years in the WH, the Clintons' reaction was.....to bring in Dick Morris. Morris helped them cast their own party and the GOP as equally blameworthy, and the Clintons essentially sat out the 1996 election as far as the Congressional part went. That was the best chance the dems had to take back the Hill until last year, and the Clintons didn't even try.
More generally, the Clintons spent their last 6 years in the WH largely playing defense--signing some bad bills and avoiding others, but rarely doing much more than proposing school uniforms. The two notable exceptions when the Clintons stood up to the GOP congress on big-picture items were the budget fight of 1995 and Kosovo. I'll hopefully have more to say about both these cases soon.
Contrast all this to the way George W. Bush handled the 2002 midterms, and you see what I mean. Bush, for all of the horrible political and substantive damage he's done to our country, was never embarrassed or unwilling to come out swinging in his party's interests. And the fact is that, together with the defensive-crouch mentality that the Democratic Party developed in the wake of the Clintons' years in the WH, Bush was able to change the terms of the political debate, over and over. It's still happening, with Democrats backing down over war policy, illegal wiretapping, judicial appointments, telecom immunity, and down the line. To be sure, there are more moments when the Dems in congress show evidence of possessing spinal tissue, and that is a welcome development.
What terrifies me is the notion of 8 more years of Clinton presidents who aren't willing to fight strategic fights in order to avoid future tactical losses. I don't consider winning to be a per se advantage. Unlike the Clintons, when they win I don't get to be president. I just have to live with their poor choices and inadequate voices.
More to come, regarding the Clintons' third campaign for the presidency and Obama......
*My name is Jonah B. Gelbach, and as Scotty might have said, I'm an economist, not a lawyer. But I did once serve as Visiting Professor of Law and Economics at the College of Law at Florida State University, which is how it came to pass that I met Dan Markel. I'm grateful to Dan for inviting me back for stint #2 as a guest blawger here at PB. I'm sorry it's taken me 2 weeks to start posting, and I hope I don't embarrass Dan, or myself, too much more than I did last time.
Garnett in USA Today, Today...
Our own Rick Garnett has an op-ed in today's USA Today entitled "When Catholicism Was the Target."
Here's the intro:
In April, Benedict XVI will make his first visit to the USA as pope. When he does, some will complain about clean-up costs, traffic snarls, rescheduled television shows and other inconveniences. Others will express (and the media will obsess about) their various disagreements with the pope's writings and church teaching. And many millions will be inspired, comforted and encouraged by his work, life and witness, and by the theme of his new encyclical letter, "Saved By Hope."
Today, thanks in part to Pope John Paul II's globetrotting, evangelical papacy, visits by popes to America are occasions for reflection, celebration and souvenir-selling. In our not-so-distant past, though, papal invasions loomed large in all kinds of nightmare scenarios.
It is easy to forget but, from the Puritans to the Framers and beyond, anti-"popery" was thick in the cultural air breathed by the early Americans. Our forebears were raised on hair-raising tales of Armadas and Inquisitions, Puritan heroism and Bloody Mary, Jesuit schemes and Gunpowder Plots, lecherous confessors and baby-killing nuns. As the great historian John Tracy Ellis once observed, a "universal anti-Catholic bias was brought to Jamestown in 1607 and vigilantly cultivated in all the thirteen colonies from Massachusetts to Georgia."
In the 1830s, Samuel Morse (who invented the telegraph) wrote a popular book, Foreign Conspiracy Against the Liberties of the United States, warning that Irish immigration to American cities was part of a papal plan of conquest.
About the same time, Lyman Beecher — a Presbyterian minister and the father of Uncle Tom's Cabin author Harriet Beecher Stowe — revealed, in his own A Plea for the West, that Catholic immigrants in the American West were laying the groundwork for the pope's Mississippi Valley invasion. (Some tracts identified Cincinnati as the planned site for the new Vatican.)
On the Durability of Written Constitutions
I don't know if this paper is up on SSRN yet, but Tom Ginsburg (Law & Political Science, Illy) is presenting a paper on the durability of written constitutions at Berkeley's Law & Society bag lunch series today. It can be downloaded here. It looks like a very interesting project:
Written constitutions, though designed to endure, are remarkably fragile, with a mean lifespan of only 17 years across all countries since 1789. This paper draws on the literature on endogenous constitutions to explore the determinants of constitutional durability among nation states. It first examines the relationship between constitutional change and regime change, analyzing the causes of constitutional demise. It then considers the role of state-level structural characteristics as well as features of constitutional design in allowing constitutions to withstand exogenous shocks. The findings suggest that certain features of constitutional design do make a difference, and can help constitutions endure: in particular, the inclusiveness of the adoption process, the flexibility of the amendment process, and the specificity of the document are crucial features promoting endurance.
Today our law school closed because of a record amount of snowfall in Spokane over the weekend. I imagine the students are psyched to have the unexpected day off, especially since it's bright and sunny so far today -- although the fun of the day off may be undermined a bit if we learn that we have to make up all the lost class hours from today. Because I grew up in California and stayed there for college, snow days are purely an adult experience for me, and frankly I thought that I would have experienced more of them in the course of nearly 15 years in the northeast. I can recall only the NYC Blizzard of 1996 resulting in a day off. I think even this 1993 storm may have failed to result in a snow day at my law school, if I remember correctly. As a youth on the snow-free west coast, I had the impression that people in winter climates were getting frequent days off to frolic in the snow. A misimpression? Or just a thing of the past?
New Scholarship (and Pretty PDFs)...
A while back, I blogged about the perils of my over-committed spring semester a year ago, including the various symposia to which I had promised contributions. As it turns out, two of those symposia (both from April 2007) have been published in the past few days -- Lewis and Clark's symposium on "Crimes, War Crimes, and the War on Terror," (with the articles available here), and Cardozo's symposium on the "Domestic Commander-in-Chief" (with the articles available here; scroll down to "Issue 3").
Friday, January 25, 2008
On the Philip Morris Comment and Talking "Out of School"
Dan asks whether anything could be said in defense of the student comment on the Philip Morris case, or whether anyone can at least provide a more even-handed critique of it than some of the pile-on comments over at the VC. It must be Friday, because I've been thinking about this on and off all afternoon. Let me say something sort of in its defense. I'll set aside for now whether I agree or disagree with the author's substantive views and very evident politics; I'll also set aside the possibility that the comment invited a pile-on simply because it is of unusually poor quality. In other words, let me offer the sort of ambivalent defense of the piece that leaves open the possibility that the comment is both substantively wrong and poorly written. With friends like these. . . .
Like most constitutional law teachers, I view my job in the classroom substantially as being one of teaching students how to talk about constitutional law in a language that will be comprehensible, meaningful, and potentially persuasive to the relevant official interpretive community. Whether I happen to be a textualist, an originalist, an advocate of living constitutionalism, etc. is not important; what matters is that I convey to my students a sense of how to employ and combine a variety of arguments that are at least legible and audible to the interpretive community. The outcomes may change from term to term; but the language and forms of argument used to reach them are (fairly) consistent. Students are thus best served not by memorizing particular case outcomes, but by learning the conventional modalities of constitutional argument, to use the term that's been lurking in the background. Whether or not "we are all ___ now" as constitutional law scholars, in the classroom we are all Philip Bobbitt now.
As valuable and liberating as this "language" can be, it also carries the risk of all language: that it will constrain, obscure, or deaden one's understanding of the world. This is an age-old complaint about legal education in general, of course, and it certainly applies to constitutional law. To slightly repurpose the famous words of Arthur Allen Leff, one can so absorb the conventional modalities of constitutional argument that one comes to neglect brute moral realities: that "napalming babies is bad," that "starving the poor is wicked," that "there is in the world such a thing as evil." There is something to be said, I think, for rejecting the constraints of our language every now and then, or at least for learning its limits: for remembering just how small is the stage on which lawyers strut when compared to human misery, God, or, well, you name it. A barbaric yawp, or a cry of "wake up," is good for us every now and then, I think.
We might think of the Philip Morris comment more charitably in that light. The case comments in the HLR Supreme Court issue follow a lock-step convention that can come to numb one's senses and sensibilities. ("[X] is an issue that has long divided the legal community. Last Term, the Supreme Court finally considered this issue, and concluded that [Y]. Although the Court commendably said [Z], its failure to say [A] will have unfortunate consequences. Here's what I would do once the President has the good sense to confirm me to the Court.") There's something refreshing about seeing the Philip Morris comment in these surroundings; it's like setting loose Little Richard in the middle of a cotillion or bringing a mutt to a dog show -- or performing "Super Freak" at a child beauty pageant.
I hope that will serve as a more full-throated defense, Dan. That having been said, I must add that my "defense" is, in this instance, a little hypothetical and half-hearted. I also think the comment is poor on substance and style, politically jejune, tendentious on the facts (and law), equally predictable and conventional in its own way, and all the other criticisms that everyone at VC has already heaped upon it and that Dan is too polite to rehearse in his own post. And it seems to me to be importantly misguided even if one agrees with its politics. Even if one shares the author's view that the Constitution fundamentally serves to mask and/or advance "hierarchy and capitalism" and that the Court is insensitive to certain fundamental harms -- in fact, especially if one agrees with these propositions -- surely it is futile to obsess about the Constitution's rights provisions and how the Court interprets them, to believe that they are at the heart of the problem and will be at the heart of the solution, when one should be thinking about more fundamental structural problems and extrajudicial solutions. So I give the comment partial points for its ill-mannered refusal to speak in the same language as its fellows in the same issue, but take them back for its failure to offer a substitute language that is any more successful and any less conventional in its own way.
Thursday, January 24, 2008
Cruel and Unusual? On the Harvard Law Review's Case Comment on Philip Morris
Over at Volokh.com, David Bernstein, while reserving extended comment, highlights a few excerpts from a case comment from the Supreme Court issue from November 2007 on the Philip Morris decision. See The Supreme Court, 2006 Term Leading Cases I. Constitutional Law C. Due Process (121 Harv. L. Rev. 275 (Nov. 2007).
58 64 comments on the thread so far exhibit a kind of "piling on" on the student author. Perhaps cruelly, the student author endures the kind of over-punishment a majority of the Supreme Court found to be worrisome in the Oregon case, but which the Case Comment author, so far as I can tell, has no problem embracing. FWIW, I've come to think that the Court's holding is justified on retributivist grounds, as I'll explain here in February, when I ventilate some of the work I've been doing on "Retributive Damages," even if I'm not sure that holding was precisely called for in that particular case and even if that holding is at odds with some of the Court's precedent.
That said, the student author, who's anonymous, wrote a very bizarre case comment, one that seems to be of little use to lawyers and little interest to scholars of punitive damages. I remember reading it and thinking of blogging about it just because I found it so jarringly out of place, but then I thought, well, maybe it's better that little notice be given to it. Then I saw it lampooned on TVC, which of course led me to question my instincts ... and to suspect there is some basis for a comment of this sort, and I'm just not getting it. (I'm mostly kidding, David.) So, if I'm right that the Prawfs readers are a more reasonable group of wingnuts than the commenters on TVC, I wonder what might be said in defense of the case comment, or if there are some more even-handed critiques of it. I leave that to you. After the jump you can find the first and last paragraphs of the piece, as well as another choice selection, which may whet your appetite for more.
The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment's first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture--to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment's beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite. Last Term, in Philip Morris USA v. Williams, the Supreme Court used the Fourteenth Amendment to reaffirm and enrich procedural and substantive due process protections for corporations sued for punitive damages. This is the sad reality of a legal system and a culture that have often lacked the courage necessary to promote the practice of daily human life in a manner consistent with our values. But by reconceptualizing the kinds of harms that it addresses, we can transform the Amendment--now itself part of the machinery of cruel myth and illusion--into a tool for equality and justice.
Here's another one:
The Fourteenth Amendment currently offers no protection to the
38,000 American citizens who die each year just by breathing our air.
It should. The money in a corporate bank account is a constitutionally
protected interest. If that money is threatened, the great forces of justice
and courts and power and violence will come to its defense. Yet
the Justices do not rush to the defense of the 400 million children who
are chronically hungry.54 What has happened to their lives and their
liberty? Why not protect the poor in third world countries? Why not
have an amendment that said to them: your limbs will not be wearied,
your children will not be malnourished, your homes will not be pillaged,
polluted, and destroyed, and your people will not be murdered so that I may enjoy a jewel.
And here's the last paragraph:
One small child dies of starvation every five seconds. That child is one of nearly ten million people who die every year because of hunger. It would be hard for us to imagine watching a child die. In fact, if it were happening in front of us, most of us would do everything in our power to stop it. We must understand and confront the powerful psychological forces that allow us to put the face of this child out of our minds when we interpret constitutional language that purports to bind us to thinking seriously about life and liberty. Yet we live with this world, and we live with this Amendment. And we violate it every five seconds.
Update: You can find Paul Horwitz's sharp reactions here.
Why T-Mobile sucks and why phone service should be liberated from handsets
Sometimes I feel uncomfortably like a character on Curb Your Enthusiasm. Here's one reason why. I'm hoping that by relating this experience, it will prove useful for those of you contemplating changing your wireless service. I've generally been a fan of T-Mobile's service in the past, which is why a bit more than a year ago, I decide to buy the Blackberry Pearl from one of their stores and enter into a service agreement with them. This past summer, however, while in Berlin for the LSA conference, my beloved Pearl just randomly deleted a month's worth of emails. I was, quite unsurprisingly, frustrated by the experience, since the emails included my travel itinerary, flights, hotels, etc., and I had to call abroad to get this info resent to me. When I came back to the US and told T-Mobile's customer service that this had happened, they obliged by apologizing and giving me 500 bonus minutes.
Six months later, the same thing happened, and I reported it to T-Mobile and they helped explain that this disappearing email problem probably occurs when the memory on the phone starts to fill up. Well, that's helpful to know, I said, I'll be sure to clear the cache on my internet browser more frequently in the future, but since no one ever said in advance that that this is a limitation on the phone, I'd still like to be comped another 500 minutes. The guy said sure, and I left to go teach my class. Unfortunately, as I just found out when I called to verify the existence of my bonus minutes, the guy I spoke with then didn't record that he agreed to comp me the 500 minutes.
So the supervisor I just spoke to this evening, definitely the rudest person I've talked with during my four years as a T-Mobile customer--a super snarky person named Theresa--said a) it's just a limitation of the phone and not T-Mobile's fault, b) there's no record of giving you bonus minutes, and c) we're not giving you any more bonus minutes because you've already been compensated by bonus minutes in the past for previous service problems you've had. Wow!
I explained that if it was not T-Mobile's responsibility, why did they accept responsibility beforehand, and that they are, to all public eyes, in a joint venture with RIM, which makes the Blackberry, and because T-Mobile handles the service calls, they're in the best position to report these software glitches to RIM and have them fixed. (Clue: all it takes is a notification to users that they should monitor their Pearl's memory if they want to retain their email.) She also made it seem as if I've already received too many bonus minutes in the four years I've had an account with them, even though it's been their discretion to allocate bonus minutes after service outages. It goes without saying that if there hadn't been service or software failures, there would have been no basis for compensating their customers with bonus minutes, which are likely to be marginally costless to them anyway. Still, she gave me a big bowl of nothing, not even an apology, despite her line worker's professions of apologies and understanding for the inconvenience of it all.
All this is a way of saying a few things, two of which I hope find their way to T-Mobile's management: first of all, T-Mobile, you've got a good customer service record which is in real jeopardy when you employ mean and unprofessional service managers like Theresa in your ranks. Second, if Theresa was following a policy of capping the bonus minutes customers are entitled to because of service and software problems they've experienced, then you've got really screwy policies, since you should want to have customers report these problems rather than have them simply conclude the service/hardware one buys from T-Mobile is just crappy and worth leaving the moment a problem like this erupts. This is especially the case when the problem can be resolved relatively easily.
Last, if T-Mobile is going to blithely disclaim responsibility for the service it provides for the phones it sells and brands with its name, then that's a good reason, I think, for the government to require that providers let me use my current phone with multiple providers, rather than having to buy a new phone in a new service contract when I have a perfectly good one (with a software glitch I can plan around once I'm told about it). In other words, it seems pretty weird to force me to buy a new phone if I could just as easily take my working phone to a different wireless provider, where hopefully the Theresas of the world have been weeded out. Kevin Martin, this post is for you too. (I should note: I'm not entirely sure what the rules are now, but the practices I'm familiar with definitely seem to discourage taking phones from one provider and using it with different providers.)
Hamilton on the Guarantee Clause
In a Findlaw column on Lopez Torres, Marci Hamilton revisits California Democratic Party v. Jones, in which the Court strikes down, on First Amendment grounds, California's Prop 193, which had tried to force parties to have open primaries. She thinks this was an unnecessary intrusion into state sovereignty -- but hints that there were alternative grounds to get rid of Prop 193's effect. The one based in the Guarantee Clause interested me especially:
How Prop. 198 Also May Have Violated the Constitution's Guarantee Clause
If the Court was intent on striking down Prop.198, moreover, there was a much more sensible way to do so: Invoke the long-mothballed Guarantee Clause.
The California initiative system permits individual voters to secretly cast ballots for important public policies, without ever having to account publicly for their views. It is a convenient alternative for legislators shirking difficult issues, and it lets voters follow their less respectable instincts in the privacy of the voting booth.
This system is disturbing to begin with, and even more so if the issue is how to create a fair system of elections. In this area, especially, the Court could have held that only elected representatives -- who must be publicly accountable to the people and articulate their reasons for their choices -- may make such decisions. Such a decision would have introduced public accountability into a system that historically has been capable of building some ugly barriers grounded in racism and sexism. The problem, however, is that the Court has refused to enforce the Guarantee Clause, partly to defer to state processes. It is the height of irony that it would eschew the Guarantee Clause's direct application to governing structures in favor of a theory of the First Amendment that addresses election processes.
Of course, I'm much more sympathetic to direct democracy so don't have quite the same starting point as Hamilton. But I'd also have thought that the argument for direct democracy is strongest on matters of electoral reform, where we can most expect legislators to act in their collective and individual self-interest. Here, since parties control the fate of virtually all legislators, it is odd to argue that direct democracy is especially inappropriate in the context of party regulation. "Accountability" issues aside, isn't there a much more substantial self-dealing worry we have about letting legislators control electoral reform?
The "National Security Exception" to Bivens
Over at Opinio Juris, Roger Alford has the latest in a series of posts related to the Padilla v. Yoo suit and the more general issue of Bivens claims in terrorism cases. As Roger writes, "Whatever one thinks of John Yoo, I'm just surprised that there is not greater agreement that a Bivens claim for damages against government and military officials for alleged constitutional violations is a bad idea when it comes to government conduct in the waging of war." [Bivens, for the non-Fed Courts geeks, is a 1971 Supreme Court decision providing that, in certain situations, courts may infer a self-executing (and non-statutory) damages remedy for violations of constitutional rights by federal officials.]
First off, and apologizing for the double negative, I'm not sure that there isn't greater agreement about Roger's assertion. One need look only at the Brooklyn district court's decision in the Maher Arar case, dismissing his damages suit because of amorphous "national security" concerns that counseled against inferring a Bivens remedy, for proof of that. [Roger's post also discusses the D.C. Circuit's similar decision last week in Rasul v. Myers.] But more importantly, I think this is a disturbingly myopic reading of Bivens, for reasons I detail below the fold...
I've written previously on the question whether there should be a possible "national security exception" to Bivens claims, albeit in the context of Arar, and I think a lot of what I said there is relevant here. First, at least originally, the idea of "special factors counseling hesitation" in inferring a Bivens remedy was focused on Congress, and on the question of whether Congress had considered (and either provided or refused to provide) a statutory remedial scheme. Thus, in later cases like Bush v. Lucas and Chappell v. Wallace, for example, the Court declined to infer a Bivens remedy entirely because Congress had considered whether (and to what extent) it should provide a remedy for the alleged constitutional violation.
In other words, as I wrote then, "where Congress has not acted at all, let alone remedially, the Supreme Court has never suggested that Bivens should be foreclosed; in those cases, Bivens is most appropriate, as the only serious check on unconstitutional governmental action." I also explained in the piece why I thought arguments based on deference to the Executive were un-convincing.
But more generally, I just don't see why it is less important to remedy violations of clearly established constitutional rights simply because those rights were violated in the context of the "war on terrorism." As I wrote in reference to the district court's decision in Arar,
if amorphous “national security concerns” are sufficient to preclude courts from creating a Bivens remedy, then Bivens’s role as a deterrent will be effectively eviscerated in any case even tangentially implicating the security of the nation. What is to stop the next federal officer from detaining the next Maher Arar and rendering him to the next Syria? Again, that is why these are the cases where Bivens is the most important — where Congress, as the instrument of popular sentiment, is the least likely to look out for the rights of those swept up in the proverbial dragnet, and is the least willing to create remedies for constitutional violations to the news of which we have become too accustomed.
I'm not sure where I come down on the merits of Padilla v. Yoo, specifically (although I think Padilla's suit against his immediate captors is far more important). But Roger's suggestion that, as a general matter, Bivens is completely inappropriate in any "terrorism" case strikes me as rather inconsistent with the reasons the Supreme Court has provided for its articulation of the Bivens remedy in the first place.
Wednesday, January 23, 2008
Wisdom Sometimes Comes Free: The Atlantic Firewall Comes Down
The Atlantic Monthly, one of my long-time favorite magazines, has just announced that it will be removing its firewall, which means their archives are freely available for linking and viewing.
If you're interested in Atlantic writings, here's some information about pulling things up:
You can browse recent Atlantic content here.
You can perform site searches here.
And you can find troves of archival material grouped by topic here.
After the jump, you can find all sorts of interesting law-related articles currently in the archives.
The Ideal Lawyer
By David J. Brewer
"Is such a being possible?"
The Threatened Eclipse of Free Speech
BY James Harvey Robinson
In 1917 an Atlantic contributor warned of the dangers of abridging free speech during wartime. "When we start out to kill enemies abroad on a gigantic scale, we are not likely to hesitate to gag those at home who seem directly or indirectly to sympathize with the foe."
The Case of Sacco and Vanzetti
By Felix Frankfurter
Judge Felix Frankfurter
offers an in-depth look at what went wrong in the trial of Sacco and Vanzetti http://www.theatlantic.com/doc
Looking Back at Brown v. Board of Education Articles from 1954 and 1960 offer a look at how the Supreme Court's landmark desegregation ruling was initially received.
Women and the Law
by Diane Shulder
Despite chivalrous claims of
protecting the "fairer sex," the law deals more harshly with women
than with men http://www.theatlantic.com/doc
Justice in the Middle
By Gene Sperling
A profile of Sandra Day O'Connor
By Eric Schlosser
Marijuana has not been de
facto legalized, and the war on drugs is not just about cocaine and heroin. In
fact, today, when we don't have enough jail cells for murderers, rapists, and
other violent criminals, there may be more people in federal and state prisons
for marijuana offenses than at any other time in U.S. history http://www.theatlantic.com/doc
Security Versus Civil Liberties
By Richard Posner
A distinguished jurist
advises us to calm down about the probable curtailing of some personal freedoms
in the months ahead. As a nation we've treated certain civil liberties as
malleable, when necessary, from the start http://www.theatlantic.com/doc
By Margaret Talbot
Two simple measures could go
a long way toward ensuring that findings of criminal guilt are genuine http://www.theatlantic.com/doc
A Miscarriage of Justice
By Robert F. Kennedy Jr.
Celebrity trials can turn
into media lynchings. Last year a Connecticut jury convicted Michael Skakel of
killing his neighbor Martha Moxley twenty-seven years ago, even though the
prosecution had no fingerprints, no DNA, and no witnesses. The author, a former
New York City prosecutor, argues that his cousin's indictment was triggered
by an inflamed media, and that an innocent man is now in prison http://www.theatlantic.com/doc
Greed On Trial
By Alex Beam
The question before the
jurors was not whether legal fees amounting to $7,700 an hour were
"unreasonable." It was whether the lawyer-plaintiffs should get $1.3
billion more http://www.theatlantic.com/doc
By Benjamin Wittes
The consequences of "the single most irresponsible decision in the modern
history of the Supreme Court"
Rehnquist the Great?
By Jeffrey Rosen
Even liberals may come to regard William Rehnquist as one of the most
successful chief justices of the century
The Day After Roe
By Jeffrey Rosen
If the Supreme Court overturns Roe v. Wade, it will set off tectonic shifts
in the American political landscape not seen since the civil-rights
movement‹or perhaps even the Civil War
By Amy Waldman
The United States is now prosecuting suspected terrorists on the basis of
their intentions, not just their actions. But in the case of Islamic
extremists, how can American jurors fairly weigh words and beliefs when
Muslims themselves can¹t agree on what they mean?
In an exclusive interview, Chief Justice John Roberts says that if the
Supreme Court is to maintain legitimacy, its justices must start acting more
like colleagues and less like prima donnas.
Tuesday, January 22, 2008
Kissling & Michelman on the Roe anniversary
Here is an op-ed, in the Los Angeles Times, called "Abortion's Battle of Messages", by Frances Kissling (formerly with "Catholics for a Free Choice") and Kate Michelmen (formerly with NARAL-Pro-Choice America).
Now, I believe that Roe was wrong and also that abortions which involve the intentional killing of a fetus are immoral. I participate regularly in anniversary "Marches for Life" and so on. So, I understand that my reactions to the op-ed might be seen as tainted, or of little interest, and will simply report my impression that many of the piece's declarative statements (e.g., "the United States has some of the most restrictive policies on abortion in the developed world" and "the Supreme Court affirmed in Roe vs. Wade that women have a fundamental right to choose abortion without government interference") are incorrect.
I was intrigued, though, by the authors' concessions that "[a]dvocates of choice have had a hard time dealing with the increased visibility of the fetus" and "as much as it pains us to admit it, [Pope John Paul II's term "culture of life"] moved some hearts and minds." (Why did it move them?) And, in particular, I was struck by this:
Our vigorous defense of the right to choose needs to be accompanied by greater openness regarding the real conflict between life and choice, between rights and responsibility. It is time for a serious reassessment of how to think about abortion in a world that is radically changed from 1973.
I gather that, for Kissling and Michelman, this "serious reassessment" does not involve re-considering their "vigorous defense of the right to choose[.]" Fair enough. But, is it so clear that "greater openness regarding the real conflict between life and choice" is likely to lead to greater, rather than reduced, enthusiasm for Roe/Casey/Carhart-style abortion rights? Is it so clear that it should?
If you wanted to imbibe with bloggers in New York ...
Scholarship on the "Declare War" Power
In the hopes of expanding my teaching range in constitutional law this semester, I spent some time this weekend reading three very interesting articles in the November 2007 volume of the Cornell Law Review, in which the authors debate the constitutional power to declare war. I found the articles an illuminating and valuable read, and not only for the substantive issues being debated. More after the jump.
Professor Saikrishna Prakash begins the exchange with Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45. A cool title, and I figured any academic debate that begins by bringing Christopher Walken and werewolf flicks to mind had to be worth a look.
Professor Prakash frames the debate around a “categorical theory,” under which the declare war power includes “the power to control all decisions to enter war,” a “pragmatic theory,” under which the declare war power is obviated when another nation has waged war on the United States, and a “formalist theory,” under which the declare war power constitutes only a formal documentation of executive war-making decisions. Analyzing constitutional text and a tremendous range of 18th century historical materials, Professor Prakash concludes that the declare war clause in Article I captures the categorical theory. Therefore, except in actual defense to an attack, only Congress may decide whether the country will wage war, even against a nation that has declared war against the United States.
In Making War, 93 Cornell L. Rev. 123, Professors Robert Delahunty and John Yoo contend that Professor Prakash understates the full range and import of relevant constitutional text in analyzing the meaning of the declare war clause, and that Professor Prakash utilizes an under-sophisticated approach to analyzing his historical data. Professors Delahunty and Yoo conclude from their own review of constitutional text and history that the declare war clause was not meant to regulate relations between Congress and the President in war-making decisions. Rather, it was designed only to “regulate the relations between the United States and other states.”
In the third piece, The President’s Power to Respond to Attacks, 93 Cornell L. Rev. 169, Professor Michael Ramsey largely agrees with Professor Prakash, but parts company on Professor Prakash’s position that the Constitution leaves in Congress the power to decide whether a counter-attack should be launched in response to another nation’s aggression. Professor Ramsey concludes that because the other nation’s aggression already would have placed the country at war, the Constitution would not view a responsive counter-attack itself as a declaration of war beyond the President’s own war powers.
Interesting stuff, and very helpful to someone like me relatively new to teaching constitutional law. Indeed, beyond the substantive insight and rich authority these pieces offer on the declare war clause and related provisions of the Constitution, these articles provide a valuable example of how a single school of constitutional interpretative methodology still may yield different results. Each article approaches its task with an “originalist” methodology, emphasizing constitutional text and contemporary historical understanding of that text. And yet, all three articles produce distinct conclusions on constitutional meaning.
Perhaps the editors at the Cornell Law Review had these divergent originalist outcomes in mind when they placed the lead article in volume 93, Guthrie, Rachlinski & Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornall L. Rev. 1. This empirical study of judicial decision-making finds that while judges endeavor to decide cases on facts, evidence and "highly constrained legal criteria," in reality judges rely more on an intuitive system of judgment than a deliberative system. Maybe originalist academics too?
MLK and the Cognitive Dimension of Leadership
I'm a day late for a timely post honoring the legacy of Dr. King, but I attribute that to my delayed reaction to the fact that the Giants actually won Sunday night. (Are you sure? I'm really not dreaming?)
Anyway, I am not usually one who likes to write "pointer" posts, i.e., posts that just tell you to go read something else, but my sister forwarded me this op-ed / essay by Evan Frisch about the true impact and depth of Dr. King's work that totally resonated with me. It's worth reading in full, but even a long excerpt (below the fold) gives a sense of the idea:
In his mission to ensure that the arc of the moral universe bends toward justice, Dr. King took a decidedly long view, focusing not on mere lobbying for the legislation of the day, but on defining the moral imperatives of the nation to compel action for generations to come. Progress tends to be fragile and often proves illusory when it is the product of political insiders who fail to engage the broader citizenry. Dr. King, by contrast, led by revealing the hidden truths, narratives, and moral premises that compel action.
At the Rockridge Institute, we have coined the term cognitive policy to describe the set of ideas and values that underlie a legislative or social policy, concepts that must be made real to the public to secure lasting support for a material policy, such as a law. The Social Security Act signed by President Franklin Roosevelt provides a simple example of what an effective cognitive policy can mean. Generations have passed, but most Americans retain a basic understanding that Social Security means that those who are employed today pay a share of their income to extend protection to the elderly because we have a shared responsibility to protect people from insecurities that no one can face alone and that we may one day face. If we call the truths and moral principles that citizens must recognize in order to support change a cognitive policy, then we must regard Dr. King as an exemplar of leadership along this cognitive dimension.
As Van Jones of the Ella Baker Center has observed, there is a reason why Dr. King’s most famous speech was not called, “I have a complaint,” nor, one might add, “I have a ten-point plan.” Dr. King’s “I Have a Dream” speech aimed to define as much as to inspire, retelling the story of America as an unfulfilled promise that history compels us to honor:
“In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked ‘insufficient funds.’ But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now.”
Notably, the March on Washington for Jobs and Freedom at which Dr. King delivered the address did not have just one purpose, nor did Dr. King’s speech that day refer to any pending legislation. No single piece of legislation could fulfill the promise that he articulated. Instead, he gave us a narrative of American history that demonstrated the centrality of struggles that had long been marginalized, and the necessity of actions that had long been deferred.
Frisch's basic point, as I take it, is that the candidates should not be focusing on the politics of questions like "whether there should be a right to universal health care," "when should the troops come home," and the like. Instead, they should be asking the deeper, harder question: What kind of world do we want to live in, and how do we make that world a reality? On that, he and I are in perfect agreement.
Reasonable people may disagree about what the answer is, but I think it would be quite a positive step indeed if the politics of the next nine months focused on that question...
Friday, January 18, 2008
Tomorrow's Legal Ethics Exam Today
This is a fascinating story, in Saturday's Times:
For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.
Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him. [. . . . .]
But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”
Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.
After Long Silence
Many of my students and colleagues thought, for some crazy reason, that the holiday season would be a good time to visit family, go somewhere warm, or otherwise relax. Naturally, I thought it would be a great time to do this instead:
As it turns out, oddly enough, spinal fusion surgery is less fun than a trip to the beach. Just wanted to clear that up in case anyone is making summer plans and trying to decide between the two.
As surgeries go, it actually went very well (and for anyone living within several hours of Birmingham, I certainly recommend this surgeon very highly). I can attest that as slow and painful as the recovery itself may be, it is nevertheless tremendous fun to teach again while standing and walking. For most of the last three or four years I haven't been able to make it through more than about 10 minutes of teaching on my feet without having to sit down due to the pain; now it appears that I can, and it certainly makes for a more dynamic and enjoyable experience. Plus, I'm using a cane and taking painkillers, which allows me to emulate my favorite caustic-but-brilliant professional. We've written a lot here at Prawfs about teaching and dress codes, but we haven't talked about accessories and accoutrements; I can tell you that a cane is a wonderful teaching prop, and I may just have to keep it as an affectation when I no longer need it medically.
In any event, all of this autobiography is by way of explaining why I've been absent from Prawfs for so long and, well, welcoming myself back. It also seemed appropriate to make some of this disclosure in light of previous posts I've written about living with chronic pain. Teaching under physical duress is just plain hard, and given how much we write about the mechanics of teaching here at Prawfs it seems appropriate to remember from time to time the burdens that have nothing to do with no-laptop rules or Powerpoint.
Finally, it seems a fitting way of explaining why I find it so damn difficult to blog again. Many bloggers have written here and elsewhere about how difficult it is to get back into the daily habit after a long break. That feeling is reinforced when one has also taken an enforced absence from the daily thrum of life, with its mixture of transience and engagement -- when one is cast out of time, so to speak. I'll just have to keep working at it until I find the right mixture of -- and I'm just mocking myself here, although other bloggers are free to agree -- self-importance and ephemerality that fuels a good daily blogging habit.
Thursday, January 17, 2008
Non-Elite Interdisiciplinary Scholars
First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers).
But there are two more points to be made. First, Brian's argument proves too much. If he is right about interdisciplinary scholarship, you might run his argument to discourage hiring scholars more generally. That is, what do students care whether their teachers do research and writing? And good research can be expensive to support. Finally, hiring practitioners might be the best way to train our students for practice. The answer to this extension of Brian's argument is also an answer to help explain why he is wrong on his more modest claim about interdisciplinary scholarship in particular. In short, the value of students' JDs (whether at elite or non-elite schools) is often tied up with how the faculty at the school is perceived in the academy and the profession. When faculty are at the forefront of their fields -- thanks to their exciting research and writing (and sometimes their practical and clinical work, too) -- that value for the school translates into enhanced prestige for the students' JDs. So non-elite schools that give up trying to hire the best and most influential scholars they can are likely doing their students a grave disservice (whether students appreciate this fact or not). If the future of being respected as a scholar is tied up with having a PhD, non-elite schools ignore this trend at their peril. Teaching basic courses is not rocket science -- and PhDs are likely to have more teaching experience than pure JDs and practitioners anyway.
I had the good fortune to attend a "City Arts & Lectures" event last night. Randy Kennedy was "conversing" with Chris Edley about Sellout, Kennedy's new book about people (presumably minorities or other non-white-hetero-males) that become enemies of their own people. His general theme was to set a very high bar for who earns the title (we were told Clarence Thomas and Ward Connerly aren't sellouts but that Terry Dolan was) because the word itself ostracizes controversial people from the "group" unnecessarily. I couldn't quite figure out if white heterosexual people could ever be sellouts under Kennedy's theory -- or why we should be so careful about calling people sellouts. He also seemed more comfortable calling relevant gays (who pass or cover) sellouts than similarly-situated (passing or covering) blacks without sufficient justification in my view. The obsession with the word struck me as odd too: it is just a word and it can sometimes stigmatize just as we want it to. His example of black law students at Harvard who feel (in his view inappropriate) sellout shame about taking jobs at firms rather than at the NAACP struck me as especially weird: plenty of white people feel the same shame about going to law school in the first place -- or about taking the firm job over the public interest job. I don't think that the shame is especially racialized; it is ideological -- and there should be room for ideological selling out, even for blacks. But I just heard the talk and haven't read the book.
The event was nevertheless interesting for several reasons. First, the audience was extremely smart. Perhaps that was to be expected from such a cultural event in such an educated city. But it was nevertheless impressive to be surrounded by such engaged citizens from all walks of life, who cut to the very core of Kennedy's idea.
Second, white questioners almost universally prefaced their questions with some apologetics and some identity exposure. Gays stated their orientation; white liberals stated theirs. Even a black questioner prefaced her remarks with the identifier, "As you can tell, I'm a black woman." To be sure, it was relevant to her very interesting question (about people's differential reactions when she says she will vote for Hillary and when she says she will vote for Obama: in the former case, she is accused of abandoning her race but she is rarely accused in the latter case of abandoning her gender). But I was nevertheless interested in how identity-conscious each member of the audience seemed to be. Again, maybe that is to be expected from a talk about race. But I suspect that if two white people were the ones at the front of the room talking about race, the (largely white) audience might not have reacted quite the same way.
Third, the event felt for me a bit too much like a campaign event for Barack Obama. Again, perhaps this was to be expected in a race talk by law professors so close to a primary election in which the first viable black candidate might become the Democratic nominee. Nevertheless, the fixation on Obama's run annoyed me a bit (and made me feel that our hosts might have been selling out in quite a different way).
Finally, Kennedy said something that I'm not sure was right. He suggested that even if Obama loses in 2008 (after securing the nomination), something quite dramatic and historic will have transpired in the racial history of our nation. Of course that is a plausible story to tell about a potential failed Obama run. But my thoughts drifted quickly to Geraldine Ferraro. Was that a dramatic and historic moment in the gendered history of our nation? That is one way to look at it. But hardly the obvious way. Kennedy here again showed his general optimism and his willingness to give all (black and white alike) the benefit of the doubt. His generosity is admirable.
Racial Profiling and the Exclusionary Rule
The Sixth Circuit Court of Appeals filed an interesting and potentially important decision this week in U.S. v. Nichols, 2008 WL 123815 (6th Cir., Jan. 15 2008). Charged with possession of a firearm, Nichols claimed “racial profiling” when the police conducted a warrant check on him, but the Fourth Amendment could provide no remedy even if the claim was true because Nichols had not been searched or seized yet. Nichols therefore asked that the court suppress the challenged evidence under the Equal Protection Clause.
Very little case law exists on this question of whether the Equal Protection Clause includes a suppression remedy, and Nichols represents the first federal appellate decision squarely to address it. Relying heavily on the Supreme Court’s recent proclamation in Hudson v. Michigan that suppression is a remedy of “last resort,” the Sixth Circuit decided that it would not recognize suppression as an equal protection remedy, absent evidence that civil remedies will not safeguard against equal protection violations.
If the Sixth Circuit's decision signals an upcoming judicial trend here, claims of racial profiling may yield little to no benefit to defendants in criminal proceedings. The question is whether they should, or whether an equal protection exclusionary rule would constitute an unwarranted extension of that remedy beyond its accepted and justifiable applications. The New Jersey Supreme Court adopted an equal protection exclusionary rule in 2002 in State v. Segars, but beyond Segars, Nichols and a bit of lower court dicta, the judiciary has remained notably quiet on this important question.
Wednesday, January 16, 2008
Revisiting Powerpoint, again...
As the new semester here began last week, I used my tried and true method of teaching big classes with powerpoint slides. (For some reason I can't access the permalink to my Sept 1/05 post about why I love powerpoint, but you can find some reflections by Kristin Hickman here and the original post in the archive here.) My experience with powerpoint in bigger classes the last two years has been consistently good in large measure because it freed me from the podium and I felt liberated to wander around the room and still have my notes available to help me guide my class.
This week, however, I've begun to experiment in my last two class sessions: crim pro with about 45 students, and crim law, with about 63 students. I have the slides on the computer screen at the podium for me to look at but I haven't actually been projecting the slides to the class. Certainly with crim law, which I'm now teaching for the fourth time, I feel more comfortable moving around the class even without the slides nearby or projected. To a slightly lesser degree, the same is true with crim pro now that I'm teaching it for the second time. Importantly, I think the students feel they are connecting to me more in the conversation without powerpoint slides even though people with aural comprehension issues (like me sometimes) might prefer to see the point rather than to hear it.
I wonder if powerpoint might be the teacher's "laptop." If we're willing to get rid of student laptops to facilitate improved educational conversation, then perhaps we should chuck our laptops too, including powerpoint. I think I'll do a series of experiments and see which I think is most effective. One thing's for sure and not surprising: the anxiety about using powerpoint or not certainly diminishes the more you do this and that's something to savor rather than endure any nightmares over.
If You want to satisfy some gossip cravings, Sarkozy-Bruni is the way to go
Oh, L’Ennui. Seriously, I simply don’t understand why Americans are fascinated by the lives of dull pathetic kids like Britney Spears or Paris Hilton. I do get the cravings for some voyeurism into other people’s love lives. But the French have it so much better. Their stories mix up politicians, philosophers, rock stars, novelists, song writers, industrialists, and classical musician.
Let me defend the flamboyant Nicolas Sarkozy against the brow-raising locals or Saudis (I know, he really doesn’t need me to defend him, but I so want to…). The man is openly separated from his wife and now he is dating again. And he has excellent taste in women. He likes women who are independent, smart, interesting, opinionated, and sexy, not in the sense of bearing their midriffs, but in the sense of knowing who they are and what they want sexually.
What’s wrong with that? Who can resist the gorgeous and talented Carla Bruni who stated at one point “I'm monogamous from time to time, but I prefer polygamy and polyandry”? Bruni’s lyrics and voice have won prestigious chanson awards and she has definitely lived during her forty years (Sarkozy is not the first head of state who caught her interest – she has dated former French Prime Minister Laurent Fabius). In one interview she openly declared that she is easily “bored with monogamy.” Her explanation: "Love lasts a long time, but burning desire - two to three weeks.”
Although most San Franciscans' thoughts about February 5th focus on the presidential primaries, it wouldn't be California if we didn't also have to wade our way through a handful of ballot measures. My favorite is Prop C, an effort by the "Light Party" to get Alcatraz Island back from the federal government to build a "Global Peace Center".
We Raise Our Glass, You Bet Your Ass...
The NYTimes headline that jumped off the screen at me this morning was the news that the Broadway production of Rent will close on June 1, a little over 12 years (or "Nine hundred thirty thousand, one hundred eighty minutes," as the Times lede appropriately points out) after it opened in February 1996.
I've written before about my myriad issues with the Hollywood-diluted, sugar-coated film version of the play, but the play itself remains today one of the most powerful things I've ever seen. I was fortunate enough to see the entire original Broadway cast in April 1996, about two months after it opened, when I was 16, and can still remember how wonderful and remarkable a show it was (and is).
Of course, all good things must come to an end. I guess this is just one good thing I wish didn't have to end quite so soon...
Tuesday, January 15, 2008
Creative Writing and Essay Questions: Some Examples
Last week I asked PrawfsBlawg readers to submit examples of essay questions that were more than just a fact pattern. I was looking for essays that told a good story, that had a narrative structure, that presented an interesting dilemma.
I'm happy to report that a few prawfs have emailed in some great examples. I've posted them below, along with a little commentary. The examples run the gamut -- I think you'll be surprised at the creativity.
If you would like to share an essay question (your own or someone else's), please email it to me at this address.
I've posted the essays according to category.
The "American Gothic" Category
In the comments of my previous post, James Grimmelmann at NYLS shared a few examples from Charles Donahue at Harvard Law. I found the final essay question of this exam to be truly evocative. As you read that opening passage, you can see the morning mist rising lazily above the fields in the sunrise.
The "Rewrite History" Category
Frustrated by Bush v. Gore? Scott Dodson at University of Arkansas Law gave his students the chance to undo that momentous decision in this final exam. The question raises some interesting Twelfth Amendment and standing issues as well.
The "Madcap SciFi" Category
You may remember Doc Brown's souped-up DeLorean with its time-defying flux capacitor. But have you heard of the 1975 Ford Pinto with its gravity-defying struggulium discs? In this patent exam from Eric Johnson of North Dakota Law, we meet Paula, the sculptor who unwittingly created the discs, and Rick, her electrical engineer boyfriend who combines them with the Pinto to create a flying car. You should check out the exam if only to see Figure 2, "Artist's Conception of Ford Pinto over Newport Beach, California."
The "Fan Fic" Category
We have two entries in the "Fan Fic" category. First, we have the patent exam question from Michael Risch of WVU. The exam involves a real-life "Holodeck" based on the one in the "Star Trek: Next Generation" series. While I always viewed the Holodeck as a plot contrivance to put Patrick Stewart et al. in silly costumes, Risch's inventor takes it seriously and develops a prototype. But what happens when a competing company develops a successful warfare simulation experience? Tune in to Risch's essay to find out.
Finally, Liz Glazer of Hofstra gives us her paean to the Spiderman series in this essay question. Glazer's question interweaves events in the Spiderman universe with real-life property law issues. My favorite is the regulatory takings question. If you're interested in her take on the answers, Liz has kindly provided her answer key as well.
Thanks to all our contributors. And I hope to be back with more examples -- submit them here.
Monday, January 14, 2008
Did Judge Alex Misstate the Law?
Over at BLT, Tony Mauro has a great report up on the argument in Preston v. Ferrer (the "Judge Alex" case), by far the less outwardly interesting of the two cases the Supreme Court heard today. As Tony recounts, there were serious fireworks during the argument of Judge Alex's lawyer, Eric Brunstad, including several suggestions by the Justices that Brunstad's merits brief affirmatively misstated the law.
Although Tony's focus is on the atmospherics inside the courtroom, I want to step back and try to explain what, from my perspective, the real problem is here (and why the Justices were so understandably peeved).
For more, see below the fold...
The case is basically about an arbitration provision in a contract between Ferrer ("Judge Alex") and Preston, who attempted to procure work in the entertainment industry for Ferrer. Under California law (specifically, the "Talent Agencies Act"), if Preston was acting as a talent agent, then he needed a license in order to act as Ferrer's agent, which he never obtained. Thus, the underlying substantive question is whether Preston was acting as a talent agent. If so, it appears that the contract the parties entered into for Preston's services is void... The contract itself includes an arbitration clause, which requires that all disputes over the contract be settled by an arbitrator.
California law, though, first requires that the question of whether Preston was acting as a "talent agency" (and therefore needed a license) be settled by the California Labor Commissioner, with de novo review in the Superior Court. So, California law, at least, suggests that the threshold (and potentially dispositive) question should be resolved by an administrative agency, and not by an arbitrator (and the contract includes a choice-of-law provision incorporating California law).
Enter the Federal Arbitration Act. The FAA, as interpreted in a series of Supreme Court cases dating back to the 1960s (Prima Paint) through as recently as two years ago (Buckeye Check Cashing) requires that, where contracts provide for arbitration, any challenge to the contract (except to the arbitration clause itself--to "arbitrability") must first be settled by the arbitrator. So, the question that always seemed to be at the heart of Preston is whether the FAA preempts California law, to the extent that California law requires that such disputes first go to the labor commissioner.
What this really boils down to is the impact the proceedings before the labor commissioner have on arbitration. If the labor commissioner's decision can actually preclude arbitration on some issues (including, perhaps, whether Preston was acting as a "talent agent"), then precedent seems to clearly suggest that the FAA preempts the labor commissioner's authority. If, on the other hand, the labor commissioner's decision merely delays arbitration, and does not affect the arbitrator's ability to resolve disputes de novo, there is a much weaker argument for FAA preemption (and a Supreme Court case from the 1980s that arguably supports the conclusion that the FAA does not preempt).
In the California courts, Ferrer's lawyers argued vehemently that, under California law, the labor commissioner gets to go first, and the parties do not get to go back to the arbitrator to re-litigate those issues that the commissioner has authority to settle. It was on this understanding that the Fourth District Court of Appeal relied in its decision (and which Judge Vogel focused on in her dissent, arguing for why FAA preemption was warranted).
But Ferrer's response brief on the merits before the Supreme Court makes a different argument (see page 13; emphasis added):
Once the matter vests in the Superior Court, either party may move to compel arbitration if the parties have agreed to arbitrate their dispute. CAL. CIV. PROC. CODE § 1281.2.4 Following an appeal of the Commissioner’s determination to the Superior Court, the court is required to grant a motion compelling arbitration if the parties have executed a valid and applicable arbitration agreement. Id.; see Rosenthal v. Great Western Fin. Secs. Corp., 14 Cal. 4th 394, 413 (1996).
If this is true, then it changes the entire complexion of the case, and makes what probably looked like an easy reversal to the Court into a much closer question. As Brunstad writes one page later,
It is evident that section 1700.44 of the TAA does not, in fact, invalidate an arbitration agreement or prevent arbitration of a controversy arising under its provisions. Rather, the TAA simply vests the Commissioner with initial administrative jurisdiction to determine if the TAA has been violated, subject to de novo resolution (i) in the Superior Court if the parties have not agreed to arbitrate, or (ii) by an arbitrator if they have. Thus, at most, the TAA may postpone arbitration in a particular case; it does not preclude or invalidate an otherwise enforceable arbitration agreement.
Whereas the FAA would clearly preempt a state law that precluded arbitration in favor of an administrative proceeding, it is a much closer call whether it would do so when the administrative proceeding was merely ancillary to (and in no way affected) the arbitration. So if either party had a statutory right to compel arbitration after the labor commissioner's decision, Ferrer probably wins.
The problem, as Justice Kennedy pointed out, is that it is dubious at best whether this is an accurate statement of California law. Certainly, neither citation invoked as support for the notion that California law would require the Superior Court to send the case to arbitration actually stands for that proposition, and the Court of Appeal concluded effectively to the contrary (even while ruling for Ferrer) in its decision below. So, on this one tiny sentence, buried on page 13 of the Respondent's Brief on the merits, the whole case turns--but only if the brief correctly states the law. If it doesn't, we're back where we started, i.e., a California Court of Appeal decision that seems obviously wrong, and an easy win for Preston.
That's why, I imagine, the Justices got so animated--and so frustrated--with Mr. Brunstad.
The Good Student Who Writes the Bad Exam
I'm (finally) almost done grading my three (!) classes from last semester (note to self: that really wasn't the best idea you've ever had there, Steve). I like to think I would have finished yesterday if it weren't for my new best friend Eli "turning the corner" (for the 93rd time, which means we're back at 90 degrees). But I've already had one experience with the one class the grades for which I've submitted that I don't like: the problem of the good student who writes the bad exam.
My issue is never with what to do grade-wise. I only find out that it was the "good" student once the grades are in--and that's precisely why blind grading is such a good idea. (And for me, "good" student isn't just subjective; in Federal Courts, for example, the final was only 45% of the total grade, so I already had a basis for evaluating the students entering the exam). Rather, my issue is the inevitable conversation once we sit down to go over the exam -- "this is my worst grade in law school"; "I just don't know what I could've done differently"; "I had a bad day and don't know why"; etc. I'm not suggesting that these students are entitled to any different treatment than their peers. Quite to the contrary. At the same time, in my experience, the exam-reviewing conversation is just different in these cases (perhaps at least partially because these are the students who most frequently want to go over their exams in detail). In contrast to the conversation that's just about how a student's answers deviate from what was expected, the conversation with the good student is inevitably meta. Did the exam test the wrong material? Did the student prepare improperly? Did the student miss what the class was really about? Am I a sneaky bastard?
With each passing semester, I gain more and more confidence that their bad day is not my fault, and that I didn't write an unfair exam (which I care about much more than the degree of difficulty of each individual exam). But that doesn't help me shake the feeling that I've done something "wrong," or that, at the very least, I should treat the "B" (or even "C") student who bombed the exam after performing very well the rest of the semester at least somewhat differently from the way I'd treat the "B" or "C" student whose performance was consistent throughout.
But I'm curious for others' experiences... How do you handle this situation if/when it arises? And if you handle it differently, how do you do so?
Laptops in class, redux
At Concurring Opinions, Donald Braman discusses Larry Mitchell's (glowing) report on his recent experience with "laptopless" law-classes. Braman notes, among other things:
One cautionary note about going laptopless for those who are considering the move -- it can leave both students and professors feeling a bit exposed. A crowd of people looking at screens and a crowd of people staring directly at you are two very different things.
Something to think about!
I decided, this semester -- after several years of hand-wringing -- not to permit the use of laptops or other electronic devices in my Constitutional Law and Freedom of Religion courses. So, the comments to Braman's post are helpful (and a bit sobering). I hope -- genuinely -- that my decision will enhance my students' experience, and help them learn. That is, the decision does not reflect a selfish desire to be the object of attention, or a hostility to technology, etc. I really have become convinced not just that the class will be more fun, but that the students will learn more and better. I could be wrong, of course. We'll see . . ..
The latest edition of the radio program, "Justice Talking", is called "Neurolaw: The New Frontier." (Click here to listen, or read more.) Here's the "overview":
Some lawyers are using brain scans showing defects to argue that their clients aren’t responsible for criminal behavior. In recent years, this neuroscientific evidence has been increasingly used in our courtrooms. But some scientists argue that the imaging is still new and unreliable, while others question whether juries should be ruling on what counts as a "defective" brain. As neurolaw grows in influence, it could potentially revolutionize our notions of guilt and punishment as criminals say "my brain made me do it." Might we be, one day, just a brain scan away from a form of lie detection and prediction of criminal behavior? Tune in as we examine this new frontier of law on this edition of Justice Talking.
The contributors to the program include my colleague, Carter Snead (who has written about neuroimaging and capital sentencing), and also Prof. Stephen Morse, from the University of Pennsylvania.
Live Blogging from my Stomach -- Butterflies
One of the greatest things about reading blogs for me is the ability to access content exactly when it's relevant. Sometimes that means blogging about something that just happened, and sometimes that means blogging live from a conference. I particularly like posts like this one, because the reader can feel as though she's sitting right next to Larry Solum at the Southern Political Science Association meeting. I don't mean to suggest that this post is anything like Larry's very illuminating and substantive one; in fact, I'll continue what's become my tradition not to blog about substance at all (at least on this blog). I just wanted to blog "live," as in from my office, sitting next to a tall stack of printed-out syllabi, a seating chart, a casebook, and my notes for today's first day of Property law. I'm excited, and a little nervous. And I've got butterflies in my stomach. Just like last year, for those wondering. Wish me luck!
A Gonzaga v. Doe Reality Lesson
I imagine most of us, for each class we teach, have a list of favorite and least-favorite cases. For Federal Courts (by far my favorite class to teach), the latter list is far longer than the former, and includes, near the top (perhaps second only to this one), the Supreme Court's 2002 decision in Gonzaga University v. Doe. The short version of Gonzaga is that the Court held, by a 7-2 vote, that a spending provision within the Family Educational Rights and Privacy Act of 1974 (FERPA) could not be privately enforced under 42 U.S.C. § 1983.
One year earlier, in Alexander v. Sandoval, the Court scaled back its implied-cause-of-action jurisprudence, but Gonzaga was another major step, holding that even where Congress had expressly provided a cause of action, litigants could only invoke § 1983 if they could show that the statute they were seeking to enforce includes clear "rights-creating" language--a unmistakable indication that Congress intended the statute to be privately enforceable. Thus, whereas Sandoval held that Congress must be clear in its intent to create a cause of action, Gonzaga held that Congress must similarly be clear in its intent to create a privately-enforceable right (as opposed to merely a right against state action) in order for litigants to sue under § 1983.
The problem, of course, is that Congress is seldom clear in that regard, which brings me to the meat of this post: A disturbing Fifth Circuit decision from December, holding that the so-called "Equal Access" provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), is not sufficiently clear to allow enforcement under § 1983.
More below the jump...
Here is the basic issue (with a major assist on the details from a fairly reliable source on all things Medicaid): Despite the fact that they have relatively comprehensive health insurance, Medicaid beneficiaries, in many states and communities, do not have access to health care anywhere comparable to that received by the privately insured. Some of the difference is attributable to simple discrimination; some of it is due to the reality that Medicaid beneficiaries tend to live in less affluent communities with fewer health care providers; but at least some is often attributable to states setting reimbursement rates far below market levels, which prices Medicaid recipients out of all but the cheapest health care (and sometimes even that, too).
To try to tackle this last issue, Congress passed the so-called "Equal Access" provision, 42 U.S.C. § 1396a(a)(30)(A):
A State plan for medical assistance must . . . provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary . . . to assure that payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . . .
Under the Equal Access provision, then, states that opt to participate in the Medicaid program are required to set reimbursement rates high enough to allow Medicaid beneficiaries "equal" access to the same services privately available "to the general population."
The problem is that lots of states--including Texas--don't abide by the Equal Access provision. And so the question becomes how to require that the states follow the applicable law. One possibility is enforcement by the federal government, but the only real remedy provided by the Medicaid Act is the withholding of federal funds, which hurts the beneficiaries and the providers, but not the states. That really just leaves private enforcement, and 42 U.S.C. § 1983.
So, a non-profit in El Paso took Texas to court, and lost on the ground that Gonzaga forecloses enforcement of the Equal Access provision via § 1983. Writing for a unanimous Fifth Circuit panel, Judge Dennis concluded that:
We are forced by Gonzaga to abjure the notion that anything short of an unambiguously conferred private individual “right,” rather than the broader or vaguer “benefits” or “interests,” may be enforce under § 1983. Accordingly, we may not follow Evergreen’s essential inference that, because Congress’s aim in the Medicaid Act was to protect the interests of health care recipients as its primary, ultimate beneficiaries, Congress necessarily meant for recipients to enforce the Equal Access provision in private suits under § 1983. The Equal Access provision has a clearly aggregate and systemic focus that deals with institutional policy and procedures, rather than an individualized focus concerned with whether the needs of any particular person or class of recipients have been satisfied. Consequently, we conclude that the Equal Access provision, which plausibly invests the Secretary with the exclusive power and duty of carrying it into effect, does not necessarily or unambiguously create, in addition, private rights in recipients to enforce Equal Access by individual or class suits under § 1983.
To be fair, the fault lies not with the Fifth Circuit. As it noted at the end of its opinion, its conclusion is in accord with decisions of five other circuits. Rather, this is the result of Gonzaga--the idea that statutory requirements meant to protect the rights of individuals are effectively unenforceable unless Congress was unusually direct and explicit.
It's one thing to preclude enforceability of statutory provisions like the FERPA provisions at issue in Gonzaga, which are unclear at best with respect to whether they anticipate private enforcement. But when the clear purpose of a statute is to create a right to equal access to something as fundamental as health care, and when every court in the country to reach the question had previously concluded that the statute was enforceable via § 1983, Gonzaga must be understood for what it is: a liability-proof shelter for the states from federal programs meant to benefit the neediest of individuals. And one created by the Supreme Court, and not by Congress.
In his dissent in Gonzaga, Justice Stevens warned that
by circularly defining a right actionable under § 1983 as, in essence, “a right which Congress intended to make enforceable,” the Court has eroded-if not eviscerated-the long-established principle of presumptive enforceability of rights under § 1983. Under this reading of the Court's opinion, a right under Blessing is second class compared to a right whose enforcement Congress has clearly intended. Creating such a hierarchy of rights is not only novel, but it blurs the long-recognized distinction between rights and remedies.
The idea of "second class" rights is disturbing enough in the abstract. All the more so in the Medicaid cases, where the right at issue was created in the first place in order to mitigate the ever-increasing disparity between classes of the population.
Sunday, January 13, 2008
I'm very excited to be invited to start the new year with a return visit to PrawfsBlawg. I teach criminal law, criminal procedure, constitutional law and ethics at Gonzaga Law School, although my online musings for 2008 may extend well beyond these topics -- not that they haven't already in the past. To begin, I thought I'd share a practical question that recently was presented to me by a friend on a subject very familiar to this blog: law professor career advice.
Now that I've been teaching for a couple of years, friends who are thinking about a similar career path have begun to ask advice questions of me. One friend recently asked a question I felt a bit under-qualified to answer with much certainty: He seeks to become a law professor after about a decade of practice. His post-JD accomplishments are top-rate: distinguished firm experience, assistant U.S. attorney, clerkships with big-name district and circuit court judges, and published articles in solid journals. He got his JD, however, from a law school outside of the first tier. He has an opportunity to pursue an LLM degree from a top-5 law school, but he has been given conflicting advice on whether this degree would enhance his marketability substantially at this point in his career. Thoughts?
Friday, January 11, 2008
Hillary Clinton and Covering
While at AALS (sitting through rather familiar papers), I read Kenji Yoshino's Covering. Reviews of the book abound -- and since I'm late to the party, I don't have much to add. Except this: I think the book's insights about the demand to cover and the demand to "flaunt" one's non-white-male identity in public is perfectly on display in Hillary Clinton's campaign for the presidency. She is required both to prove she is a "real" woman and that she is "manly" enough to take the job. It is a hard position for her to navigate -- and does, perhaps, suggest that we still may have much to do in guaranteeing civil rights for women. In light of the whole recent crying episode and its reception, it struck an even deeper chord.
I'm wondering, though, is Obama is under a similar set of demands in light of his similarly non-white-male identity? If he isn't, does that tell us anything? And does their ascendency to head of the pack suggest that covering is pehaps too nuanced a worry for civil rights advocates?
Men's Abortion Regrets
Here's an odd story in the LA Times about men who grow to regret abortions. Call me cold (and perverse), but I'm more worried about men who can't get abortions and want them.
The Deal Professor
Congrats to Steven Davidoff, who is now the "Deal Professor" over at the NYT's DealBook. Davidoff, a prof at Wayne State, has done a terrific job of covering M&A matters at the M&A Law Prof Blog. At the "Deal Professor" blog, he'll be continuing his coverage of the law of the deal. As Davidoff notes: "Don't worry, it will be the same blog covering the same topics with the same length of posts and legal analysis, just with the expanded resources of those great N.Y. Times deal reporters, including Andrew Ross Sorkin and Michael de la Merced." Davidoff will also be making appearances at the M&A Law Prof Blog -- specifically, a Friday "deep-view M&A legal post."
And a hat-tip to Andrew Ross Sorkin, editor of DealBook, for recognizing some great talent. You may recall Sorkin's glowing profile of Victor Fleischer as another example of his cognizance of the academy. Corporate law is notable for its overlap between the academy, the judiciary, the media, and the bar. Delaware chancellors, for example, are the only jurists that I know of with extensive SSRN pages. Folks like David Marcus at the Deal attend academic conferences, lunch with M&A partners, and make regular trips to Wilmington. With Steven Davidoff's new position at the Times, I'm glad to see this cross-hatching extending even further.
Must be Dreaming
Morning! I recently had dinner with a friend who is - as I suspect are many of our readers - 8-9 months away from beginning a tenure-track position as a prawf. She told me that she had her first anxiety dream about teaching a class. She told me this not to elicit sympathy, but to let me know that she had undergone a particular rite of passage marking her transformation from student to teacher. I reacted to her news the way I suspect she suspected I would: I laughed, rolled my eyes, and assured her that her dream would be the first in a series of anxiety dreams of this new genre.
When I went to elementary school here and to high school here , I would dream regularly that I had mistakenly worn pants to school; my dreams involved running from rabbis in hallways and, in high school, riding elevators to avoid them, so that I wouldn't get expelled for violating the dress code. In college, I enjoyed a series of more conventional anxiety dreams, often appearing unclothed in public places and taking final exams for the wrong courses in buildings on the other side of campus. As a law student, I woke up more than once relieved to remember that class participation only marginally affected my grade; in my dreams, I was always on call and was never prepared.
I don't remember the plot of my very first anxiety dream about teaching. I do know, however, that since December 3, 2005 (the day I got my offer from Hofstra), my dreams have involved teaching a class whose subject matter was entirely unfamiliar to me, defending a paper in a faculty workshop that I had not written, and my favorite (and most recent), receiving an email (sent to multiple recipients) from a colleague attaching a political cartoon through which the colleague expressed the colleague's displeasure with me.
And those are just a few. I tend to experience the highest concentration of anxiety dreams right before a new semester begins, as I am drafting a final exam, before a speaking engagement, or before submitting a paper . . . so, I guess, sensibly, I have anxiety dreams when I am anxious. For those of you who miss reading this column, help others fill the gap that YM Magazine left and use the comments to say anything. It's just a dream.
Thursday, January 10, 2008
The Next AALS Will Be Warm, Sunny and Bright (as will be several other upcoming events in the Spring and Fall)
It is January and around campus my students are wearing flip-flops. "America's finest city" - as every radio caster here describes it - deserves some love after a smoky few weeks last Fall. Truly naturally beautiful and with something for everyone, San Diego is the perfect destination for some upcoming conferences:
In a few weeks from now, February 15-16, we will host an exciting international and comparative employment and labor law conference.
October 23-25 2008, the three law schools in town are co-hosting the Third Annual Colloquium on Current Scholarship in Labor & Employment Law. A website is soon to come but registration is underway, just email Ruben Garcia at firstname.lastname@example.org.
And of course AALS 2009.
Do We Need a New National Security Court?
There's been increasing debate in recent months over proposals for a "national security court" as one way to "solve" the myriad problems posed by terrorism cases, both with respect to the criminal process and with respect to military detention decisions.
Whatever one may think of the merits of these proposals (something I hope to blog about in more detail later this month), I'm very pleased to announce that, on Friday, February 1, American University Washington College of Law (in conjunction with the Brookings Institution) will host a conference titled "Terrorists and Detainees: Do We Need a New National Security Court?" In addition to panels of experts moderated by my colleagues Dan Marcus and Ken Anderson (and me), the event will also include a lunchtime presentation by the Honorable Leonie Brinkema, U.S. District Judge for the Eastern District of Virginia, who should have lots of interesting things to say given her role in the Moussaoui and al-Timimi cases...
The flyer/conference announcement is available here.