Monday, June 30, 2008
The Same Sex Marriage Fight in California ... and a Sign Off
Now that same-sex marriage in California is two weeks old this might be a good time to reflect on how the initiative fight is going to shape up. One of the most interesting things to me about the first few days of same-sex marriage here was the character of the coverage by radio and TV. Time and time again newscasters and reporters fell into colloquial descriptions of marriage -- "tying the knot," "getting hitched," etc. This seems significant to me because it put a fundamentally positive spin on the marriages. Of course there were other reasons for the favorable coverage. Gay rights groups carefully managed the first few marriage ceremonies, such as the now-famous one in San Francisco between two older women who have been in a relationship for over fifty years. More generally gay couples getting married during the early days seemed to have understood the importance and seriousness of the occasion, not just for them but as a matter of public discourse. And of course the media might simply have been biased in their favor to begin with.
For my purposes now, though, what seems significant is that the very act of getting married is looked upon so positively that watching pairs of adults do it on TV is bound to make people sympathetic. After all, who looks at a marriage ceremony and scowls at the couple? So I suspect it was natural for reporters to slip into a more favorable, or even celebratory, frame of mind when covering the story.
This matters because it suggests that the anti-marriage rights forces were probably right to lay low during the initial period, for fear of seeming petty. Indeed, the L.A. Times quoted one marriage-rights opponent to the effect that his side was letting gay couples "have their day" before beginning their campaign. But what do people's fundamentally positive reaction to two people getting married mean for the tack the anti-marriage rights forces will take during the fall campaign?
People intimately involved on the pro-marriage rights side of the debate have told me that they expect the other side to focus on the "judicial tyranny" angle more than simple opposition to same sex marriage. Presumably, the argument would be that the state supreme court acted illegitimately when it reversed the people's decision from 2000, when Californians approved Proposition 22, the statewide initiative that defined marriage as between a man and a woman, and that the people need to respond to that usurpation of authority. (Of course, one could argue that the initiative process is providing exactly that popular response to the court's action. Thus, one could dislike what the court did but still consider the entire process to be working well, since indeed the people will get the final say on the issue. But that's going beyond the point I'm trying to make here.)
If same sex marriage ceremonies and couples continue to get the same kind of coverage they've gotten so far the other side is probably smart to seek to turn the debate away from individual couples, or even the idea of same-sex marriage, and toward this more process-based angle. It will be interesting to see how the argument plays with the public. Scholars have debated whether voters really care about structural issues such as federalism or whether they only care about substantive policy outcomes. I'm not sure we'll get an answer from this particular campaign, since I'm sure there's a group of voters who oppose marriage rights regardless of which branch and which level of government proposes it; that group will vote for the proposition just because they want to prohibit same-sex marriage, and not because they want to reassert popular control over issues such as marriage rights. But presumably the forces pushing the proposition will do polling; it will be interesting to see if they stick with this anti-court theme or switch gears at some point and start focusing instead on the underlying substantive issue.
Anyway, that's it for my summer blogging stint. Thanks as always to Dan for the opportunity, and to those of you who took the time to read (and even respond) this past month.
Writing a Tune
I was pleased to see in Adam Liptak’s Week in Review piece, The Chief Justice, Dylan and the Disappearing Double Negative (based on an article by Alex Long at the University of Tennessee), that Bruce Springsteen ranks as the third most-cited rocker in judicial opinions. However, I can’t help but think that, even coming in at number three, the Boss is being underutilized in the judicial lexicon. To help matters along, I offer the following suggestions for incorporating Springsteen lyrics into decisions going forward (and welcome to the suggestions of other Springsteen fans out there):
For suits alleging corruption in home lending practices:
“Welcome to the new world order
Families sleepin’ in their cars in the Southwest
No home no job no peace no rest.”
-The Ghost of Tom Joad, the ghost of Tom Joad
For suits challenging the issuance of permits to new coal-fired plants:
“From the Monongahela valley
To the Mesabi iron range
To the coal mines of Appalachia
The story’s always the same
Seven hundred tons of metal a day
Now sir you tell me the world’s changed”
-The Ghost of Tom Joad, Youngstown
For the immigration judge:
“They left their homes and family
Their father said ‘My sons one thing you will learn
For everything the north gives it exacts a price in
-The Ghost of Tom Joad, Sinaloa Cowboys
For the criminal case:
“Your fingerprints on file
Left clumsily at the scene”
-Magic, Your Own Worst Enemy
For assessing redressability:
“‘Ain’t nobody can give nobody
What they really need anyway.’”
-The Ghost of Tom Joad, Dry Lightning
For assessing whether a claim is ripe:
“We´re livin´ in the future
And none of this has happened yet”
-Magic, Livin’ in the Future
For sentencing after a murder conviction:
“Nothin’ taken nothin’ stolen
Somebody killin’ just to kill”
-The Ghost of Tom Joad, The New Timer
For police shooting cases:
“Better ask questions
Before you shoot”
-The Rising, Lonesome Day
For the mediator:
“The time has come
To let the past
Yeah, if we could
Just start talkin’
Don’t know when
This chance might
-The Rising, Let’s Be Friends
For the family law judge:
“Love leaves nothing’ but shadows and vapor
We go on, as is our sad nature”
-Devils & Dust, All the Way Home
For the bankruptcy judge:
“In the end what you don’t surrender
Well the world just strips away”
-Human Touch, Human Touch
For a bankruptcy reorganization:
“Everything dies baby that’s a fact
But maybe everything that dies someday comes back”
-Greatest Hits, Atlantic City
For FCC cases:
“Fifty-seven channels and nothin’ on
Fifty-seven channels and nothin’. . . “
-Human Touch, 57 Channels (And Nothin’ On)
“This is radio nowhere”
-Magic, Radio Nowhere
For any case applying a balancing test:
“Well you may think the world’s black and white
And you’re dirty or you’re clean
You better watch out that you don’t slip
Through them spaces in between”
-Human Touch, Cross My Heart
“And what once seemed black and white turns to so many shades
-Greatest Hits, Blood Brothers
For the perjury trial:
“Once you cross you’re heart
You ain’t ever supposed to lie”
-Human Touch, Cross My Heart
For assigning successor liability:
“’Before you choose your wish son
You better think first
‘Cause with every wish there comes a curse’”
-Human Touch, With Every Wish
With this last very important post, I’ll sign off . . . with the Boss’ help of course.
“A breeze crosses the porch
Bicycle spokes spin ´round
Jacket´s on, I´m out the door”
-Magic, Girls in Their Summer Clothes
Rachlinski from Cornell to Cornell
A while back, Brian Leiter started noting faculty retentions in addition to his usual catalog of lateral moves. I think this was a very useful innovation, because simply taking note of successful lateral hires obscures our perception of faculty loyalty, where it exists. Of course, the data on retentions is a little harder to come by, so any such effort will necessarily be incomplete. For that reason, I thought I would use my last post for this go-round on Prawfs to note a faculty retention that didn't make it onto Brian's page. Jeff Rachlinski (Cornell) has turned down a lateral offer from the University of Chicago, opting instead to remain in the balmy (relative to Chicago) environs of the Fingerlakes. This is, obviously, a key retention for the Cornell faculty, where Jeff is a tremendously important and valued colleague.
One Last Random Association and Then "See Ya"
A British scholar, Emmanuel Voyiakis, posted on SSRN a response (Contracts, Promises, and the Demands of Moral Agency (CURRENT LEGAL ISSUES: LAW & PHILOSOPHY, Freeman & Harrison, eds., Oxford University Press, 2007)) to Seana Shiffrin's The Divergence of Promise and Contract (HT Larry Solum). I have a piece, also addressing Professor Shiffrin's article, coming out later this summer in the Canadian Journal of Law and Jurisprudence. So I dropped Professor Voyiakis a note and we've been e-mailing back and forth.
The question is whether those aspects of contract law that seem to uphold efficiency over promise impinge upon the flourishing of moral agency. Both Professors Voyiakis and Shiffrin are more articulate than I am on the subject, and I recommend them both.
In our correspondence, I used a phrase that seemed odd, on reflection, just after the decision in D.C. v. Heller. A point I've made about contract law as well as corporate governance law is that the law gives us myriad tools we may employ instrumentally and opportunistically. But the moral choice to act (or not act) on a legal right precedes the law, at least in the voluntary domain in which I traffic. What I said was: "just because you have a weapon doesn't mean you have to use it."
Which brings me to guns. I want to put aside the question of constitutional interpretation, and consider, apropos of my last post, causal explanation and the right to bear arms. If Thomas Haskell is right, since 1787, there has been a major shift in how we make sense of the world, from a world then in which the individual's perception of one's own causal potency predominated, to one now in which we are buffeted by (nay, even victims of) all sort of independent causes in the world that are not us. It seems to me we live in a world of more generalized fear, and that impels both the pro-gun and the anti-gun sides in a way that is just different from ever-present but far more individualized dangers that existed in 1787. "Just because you have a weapon doesn't mean you have to use it." Among civilized people (as Justice Scalia notes, for example, in England, that meant Protestants) bearing arms didn't mean you had to use them, at least in connection with other civilized people, you knew the other civilized people, and you could fairly expect that they wouldn't use them to shoot you! In a world of remote explanatory cause, it's reasonable to assume that the existence of guns means they will be used, because our explanations of the relationship between guns and events no longer depend on the individual causal potency of ourselves and the people we know.
Justice Scalia says:
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.
If you were creating a new nation today, would you include a right to keep and bear arms? (I would imagine that's an active issue among the comparative constitutional scholars.) That would at least take the issue out of interpretation, and highlight the underlying question: is the nature of what we fear different now?
* * *
Well, to paraphrase Ray Magliozzi (of my Fair City), you've just wasted another perfectly good month reading these posts. See you next year (assuming I haven't worn out the courtesy extended to me by the proprietors!). And even though Dan Markel wants to line the classroom walls at Florida State with lead to keep out the internet when he sees me write it, "This is PrawfsBlawg." (Sorry, Ray.)
Sunday, June 29, 2008
An Exceptional Account of American Institutions, Cultures, and Policies--All in a Single Volume
Peter Schuck and James Q. Wilson have edited an impressive one-volume collection of essays on American insitutions, cultures, and policies. Understanding America: The Anatomy of an Exceptional Nation (Public Affairs 2008) is an extraordinary collection of essays by leading scholars covering a broad range of topics, including the political, legal, and economic systems; political and popular culture; religion; the media; family; immigration; race; education; health care; criminal justice; and drug policy. Schuck and Wilson present the volume as an exploration of American exceptionalism that specifies the ways in which America is unique among liberal democracies. The book provides important tools and insights useful to anyone writing on law and policy.
Paying Tribute: A Couple Sunday Observations
I haven't been able to blog too much the last little while as I've been on the road and feverishly trying to make progress on a few projects. But I wondered just now if any of you caught the SNL tribute to George Carlin last night of the first episode ever, which Carlin hosted? I had a couple reactions: First, the show seems to have started very poorly and haphazardly. How did it succeed to a second episode? Most of Carlin's jokes fell flat not only now but also to much of the studio audience. So much of the rest of the show was pretty forgettable or worse, triggering groans and fierce patience--not to mention, what became of Janis Ian and Billy Preston, those musical guests too??
The other reaction is a mite more substantive. During the inane Albert Brooks short, the news segment "reports" that one of the states lowered the age of consent to seven and then cuts to a guy trying to work some mojo with a seven year old girl in a bar. It wasn't particularly funny, but it was remarkable: I can't imagine that skit being run today even when the show and society at large is so much ... raunchier. I wonder in what other ways our comedic norms of what's passably funny today are more "conservative" than they were 33 years ago. I'm guessing humor poking fun at minorities is less likely to pass muster on SNL today than it would have in the 70's --but see Chapelle's show-- but I'm not sure what else has experienced the same "trajectory of uptightness." Thoughts?
If you're looking for an interesting tribute of a more scholarly sort, check out Janet Halley's latest in the Harvard Blackletter Law Journal. It's the polished version of the remarks she made upon her installation as the Royall Chair at HLS. In the article, entitled "My Isaac Royall Legacy," Halley explores not only the distinguished legacy of those who preceded her as Royall Chair (including Thayer and more recently Clark), but also the social context which created the conditions for the bequest to Harvard to establish the Chair. The context Halley illuminates includes discussion of the slaves owned by Royall and what (precious little) we know about them. It's definitely an unusual way to say, Hey Elena, thanks for this great Chair! But putting aside Halley's little footnote snark about the "victims" of Harvard Law School's legacy -- snark, because it's unelaborated -- I can't imagine a more appropriate way to pay tribute under the circumstances.
Saturday, June 28, 2008
A Theory: Under-Theorization is the Key to the Heretofore Under-Theorized Academia-Practice Divide
Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions. I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night. Academics use the term "under-theorized" all the time; I never heard the term in twenty-six years of practice. This simple point has been heretofore under-theorized. I'm going to step into the breach with the following theory about under-theorization: Academics are reductive (indeed, in some cases, radically reductive) theorists; practicing lawyers are not. Academics seek to theorize - i.e. to provide causal explanation of social events in time and place - in a reductivist way. The social world is too diverse for highly reductivist theory without specialization; practicing lawyers, on the other hand, have theories too, but the causal explanation is at a level academics would call under-theorized.
Here's what triggered this. In his post, Deven Desai extolled the value of summer reading for academics, but added "[o]ne last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument." A thoughtful and frequent commenter from the real world of practice, A.J. Sutter (why doesn't somebody ask him to guest blog?) begged to differ:
Drilling down and reading voraciously about your area of law can actually be counterproductive. If you're doing transactions, a sensitivity to the nuances of drafting is certainly essential, but a highly detailed knowledge about case law may get you focused too much on pathologies, rather than usual practice. Moreover, it isn't so difficult for a client to find someone who knows a lot about a particular area of law.
What a client cares about is finding someone who understands his or her BUSINESS. The client also cares about finding someone with whom he or she can have personal rapport. (Lest you think corporate clients are "it"s, you will always be dealing with flesh-and-blood human beings, and usually with one key decision-maker, such as a GC or other in-house lawyer if the company is big.)
It so happens that something that I'm reading this summer helps theorize about both views and is the basis of my thesis above. More on Thomas Haskell's The Emergence of Professional Social Science, after the jump!
Haskell sets modern professional social science, as a subset of modern professionalism generally, in context by studying the rise and fall of the American Social Science Association, the forerunner of modern disciplinary associations like the American Historical Association and the American Economic Association.
Here is my poor attempt to restate his thesis, in a nutshell. Each of us has a sense (perhaps naive) that we are free and volitional agents, largely able to determine for ourselves the course of our lives; we have, in Haskell's words, "causal potency." Moreover, until the late 1700s and early 1800s, little about the organization of society undercut the soundness of that belief. Individuals lived in dispersed and independent communities (by and large), and the cause of things - in the sense of reasoned explanation that made sense of the world, and to the extent educated people thought about these things - was proximate, either in oneself, in one's local community, or in a personal God that determined otherwise inexplicable events.
Beginning in the 1800s, as the Industrial Revolution and urbanization took effect, educated people (not just academics) came to believe that such explanation required understanding the impact on individuals and local communities of remote causes, in short, cause and effect in an increasingly interdependent world. With increasing interdependence came increasing specialization - the rise of professions. The transitional model was the ASSA, a group largely of New England social inquirers, general social philosophers as it were, who themselves were overwhelmed by the next generation of truly professional social scientists.
What Haskell argues is that there is a connection between the rise of societal interdependence and the contemporaneous ceding to professionals (by educated people generally) of the task of causal attribution between events in the world. My take on Haskell is that he not only makes sense, but that we've not mastered the theory of theorization in more than one hundred years since Charles Peirce, William James, and John Dewey thought about it.
Haskell says social science is a search for the independent variables of explanatory cause somewhere between the "causal potency" of the individual and First Causes like God:
To engage in inquiry is to search for genuine causation, to shear away merely secondary influences and necessary conditions so as to isolate those factors which, within a given frame of reference, can be regarded as self-acting, causal entities - "independent variables" As causes recede and as growing interdependence introduces more and more contingency into each chain of causation, the realm of inquiry must expand and the conditions of satisfying explanation must change. Common sense fails and the claim of expertise gains plausibility. Explanation itself becomes a matter of special significance, because the explainer promises to put his audience back in touch with the most vital elements of a receding and increasingly elusive reality.
And when does the pursuit of this chain of causation end? It's a troubling issue. Haskell relates that Herbert Spencer learned as a child to question every cause and "as an adult took to his bed and wore earmuffs to prevent overstimulation of his senses."
There's a kind of Rule of Recognition problem going on here. In a specialized, professional world, how do you recognize expertise? Haskell's historical account says professional organizations arose in order to achieve a community of expertise. For ordinary lay people, lawyers are a prime example of such a professional guild, but modern philosophers and historians and economists and sociologists have their self-certifying guilds as well. Those particular protocols surfaced, for example, in the form of peer review for publishing and tenure review for advancement.
What strikes me about the current state of legal academia - particularly the debates over interdisciplinary work - is how it resembles the 1890s, in terms of the contrast between the old "gentlemen social inquirers" and the new professional social scientists. Academic lawyers merely skimming the surface of specialties appear to their more specialized brethren as dilettantes, particularly as the specialists dig deeper and deeper into reductivist explanation. I speculate (theorize?) that philosophical (Susan Neiman?) or economic (Steven Levitt or Paul Krugman?) or historical (David McCullough or Doris Kearns Goodwin?) public intellectuals are the closest equivalent to practicing lawyers in trying to operate at a level of explanation above the technical, and as such operate either outside or at the very boundaries of the community of academic professionals in those areas.
Lawyers are different, in the sense that there is a vaster layer of the discipline that interacts on a daily basis with the lay community, and must necessarily "theorize" or explain cause and effect that the more specialized and reductive members of the discipline reject as unsatisfying. The analogy from another Haskell work, Objectivity is Not Neutrality, is apt. Suppose a legal issue involves why some pipes froze in Duluth and caused extensive damage to a building. Expert testimony on the physics of water molecules and how the expansion causes by crystallization would burst the pipes would be impertinent, because it operates at the wrong level of explanation. The pipes burst because the superintendent of the building forgot to turn the heat on!
So now we understand the Deven-A.J. dialogue a little better. Deven is rightly suggesting what a law professor should suggest: drill down, learn the details, find the underlying causes, and then the causes of those causes. A.J. is rightly responding in so many words: that's not the level of explanation - of causal attribution - that operates between practicing lawyers and their clients (nor, would I add, between most practicing litigators and either judges or juries).
The open question is whether the specialized, professional, reductivist explanation is the better one. My answer is: it depends what you are trying to explain. For a critique of an attempt to use economic theory to explain contract interpretation, see my Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists, forthcoming this fall in the Cleveland State Law Review, at pp. 29-43.
Indeed, even old practitioners can get co-opted. My friend Bill Henderson understandably took me to task in good ol' plain English a couple weeks ago for an unduly specialized explanation of classroom deportment in my syllabus: "what the hell are you talking about? All those years of practice, and you obscure a simple issue with Kant and Posner." He (and other commenters) were right, and I dropped it from the syllabus.
If (Like Me) Guns Don't Get Your Blood Pumping . . .
I spent most of yesterday online answering questions from readers of the local paper about the Heller decision and found myself surprisingly unworked up. Usually, the end-of-the-term blockbusters elicite either elation or anger, but Heller left me strangely cold.
Did I disagree with result? Yes. Did I think it was the end of the world? No. Dahlia Lithwick has an interesting little post about the decision making a similar point (though, contra her speculation, I highly doubt that my lack of passion about gun control is some subliminal attempt to reassert my masculinity).
I've got one (two-part) question and one (straightforward) suggestion for those on the legal and political left. The question is do others feel as unexcited about Heller as I do and, if so, why? The suggestion is that if you feel like you are missing your standard end-of-term dose of outrage that you go back and read this brilliant post by Walter Dellinger on last term's Seattle schools case (which I somehow missed during last year's term post-mortem).
Friday, June 27, 2008
Is Winter v. NRDC an agency politicization case?
Last week, the Supreme Court granted cert in Winter v. NRDC, a case involving, inter alia, the Navy’s compliance with environmental review requirements under the National Environmental Policy Act (NEPA) prior to its use of sonar in a manner allegedly harmful to marine mammals off the coast of California. In short, the Navy conducted an Environmental Assessment (a preliminary study to determine if more in-depth review is necessary) and found that, with some mitigation measures, its sonar activities would not give rise to a “significant effect” on the environment and thus did not require to a full Environmental Impact Statement (EIS). Environmental groups sued seeking to have the Navy conduct more detailed environmental review and won a preliminary injunction barring certain Navy exercises prior to the completion of a full EIS. The Council on Environmental Quality (CEQ) thereafter attempted to exempt the Navy from preparing an EIS based on a finding of “emergency circumstances” under 40 C.F.R. § 1506.11, which provides:
Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.
I say “attempted” because CEQ’s interpretation of “emergency circumstances” was rejected by both the district court and the Ninth Circuit. The Supreme Court has now granted cert to consider, in part, the failure of the lower courts to credit CEQ’s decision.
Something that interests me about this case is whether CEQ’s actions will be treated as the type of politicized agency action that the Court appears to have approached with a hostile attitude of late. In Massachusetts v. EPA: From Politics to Expertise (2007 Sup. Ct. Rev. 51, 52), Jody Freeman and Adrian Vermuele argue persuasively that “the Court majority's increasing worries about the politicization of administrative expertise, particularly under the Bush administration” motivated the Court to “to override executive positions that they found untrustworthy, in the sense that executive expertise had been subordinated to politics” in cases such as Massachusetts v. EPA, Gonzales v Oregon, and Hamdan v Rumsfeld. Thus, if CEQ’s attempted intervention fits the mold of this kind of politicized agency action, perhaps the Court will be less inclined to credit it.
In some ways, CEQ’s intervention looks like the aforementioned type of politicized agency action. After all, CEQ resides in the Executive Office of the President and CEQ apparently approved the Navy’s request for an exemption after only four days and without considering the full record. (NRDC’s Reply refers to the process as “an ex parte proceeding before the White House CEQ.”) And one gets the sense from the Ninth Circuit’s opinion that it may well have had in mind various recent examples of politicized agency action – EPA’s refusal to recognize carbon dioxide as a pollutant under the Clean Air Act, EPA’s refusal to grant California a waiver to set stricter emission standards, etc.
In other ways, however, CEQ’s actions in Winter don’t quite fit the same politicization mold. For one thing, here CEQ’s judgment accords with that of the Navy so there is no interagency pressure being exerted. (It is unfortunate but usual in NEPA litigation for environmental review documents to be prepared by the government agency seeking to undertake an action.) Nor does there appear to have been intra-agency pressure exerted – I’m unaware of any allegations of disagreement within CEQ about the grant of the exemption. The exercise of executive political will in this instance was not directed intra- or interagency to override administrative expertise, but instead seems to have been directed at the legal process. It will be interesting to see whether/how these dynamics play out in the Supreme Court’s consideration of the case.
Boomers and their Children
Hello again. I just wanted somebody else to put up the first non-Heller post before I resuscitated this chestnut that has been stuck in limbo on TypePad.
"What's most interesting to me is that this is one of the few bona fide culture gaps between most contemporary law students and their reasonably tech-savvy professors: you guys didn't have the internet in class when you were in school."
This was part of a nicely-written anonymous comment to my post a while back on internet access in the classroom. At the risk of beating a dead horse, Anonymous was correct: this isn't about Google, it's about generations. In the "do what I say, not what I did" analog to "daddy, did you ever smoke marijuana?," Alene said to me, "didn't you do the New York Times crossword puzzle in class?" I said, "yes, but only when it was boring." God only knows what I would have done if the puzzle had been available online.
Are broad characterizations about generations valid? It seems to me that some of them have to be. My parents grew up without television; my adult millennial children have never really known a world without broadband internet access. That has to have had a sweeping influence on how each generation views the world, even if fundamentally there is nothing new under the sun.
Coincidentally, I saw the abstract the other day of a Kentucky Law Journal article by Leslie Larkin Cooney, Giving Millennials a Leg Up: How to Avoid the "If I Knew Then What I Know Now" Syndrome. And a friend steered me to a 2007 Harvard Business Review article by Neil Howe and William Strauss entitled The Next 20 Years: How Customer and Workforce Attitudes Will Evolve. Both make sweeping generalizations about generational differences, the latter claiming a pattern of American "Prophet" "Hero" "Nomad" and "Artist" generations going back to 1588. Boomers are Prophets; Gen-Xers are Nomads; and the authors think Millennials will be Heroes.
That's consistent with the inclinations my Millennial children seem to demonstrate. For his twenty-first birthday present, my son Matthew asked for a Sierra Club membership; I was so proud of him that I bought him a Life Membership - $1,000 to the environment, and not, as I understand from the "felons and mentally ill" restrictions allowed by Justice Scalia's opinion, in support of the right to arm bears.
More good news from U.S. News ... Not!
U.S. News and World Report has announced that it's thinking about changing its law ranking methodology in two ways. To quote their blog: "The first idea is that U.S. News should count both full-time and part-time entering student admission data for median LSAT scores and median undergraduate grade-point averages in calculating the school's ranking. . . . Another idea . . . calls for U.S. News to compute our bar passage rate component (school's bar pass rate/jurisdiction's bar passage rate) using only the data of first-time takers who are graduates of American Bar Association-accredited schools." According to the posting, this second idea was proposed in a report on U.S. News rankings commissioned by the AALS. This posting addresses the first proposed change.
My first-blush take on the first idea is it is potentially quite pernicious, as it will put pressure on law schools to curtail part-time (especially evening) programs' focus on older students whose life and work experience may offset any deficits on the more standard admissions credentials (i.e., LSAT scores and GPA). This is especially true with regard to LSAT scores. I freely admit that I don't have empirical evidence to back this up, but I've got to believe that, all other things being equal, someone who's been out of school for 10, 20 or 30 years is simply not going to do as well on a racehorse multiple choice test as someone fresh out of college. If those students are going to start counting for U.S. News ranking purposes admissions committees are going to start giving those students less of a break on that criterion, even if their post-college accomplishments give all kinds of reasons to expect the applicant to succeed in law school. The same goes for GPA. If a 40 year-old applicant had only mediocre performance in college but has since excelled in whatever she's done I would think that logically a 20 year-old GPA shouldn't count for much. The proposed change in U.S. News's methodology will put pressure on that common-sense policy as well.
This change could also cause some other perverse effects. Presumably many law schools' business models assume the continued existence of a part-time program -- for example, if their facilities simply can't handle siginficant increases in full-time enrollment. If those part-time programs start to be filled by students with higher conventional credentials it will probably be the case that those students will be more likely to be recent college grads without major career or life commitments. Thus, a school's part-time and full-time programs will start to be filled by the same demographic. This may well cause tension. Full-time 24 year-old students who don't work will complain about part time 24 year-old students who don't work since those part time students will have a lot more time to study. (I confronted that complaint more than once in my stint as associate dean.) If they end up in the same classes (and there will be more pressure for this, too, since, by hypothesis, the part-time students will not have any particular place to be during the day), does that suggest that they should be graded on different curves even in the same class? This problem already exists to some degree. But usually it's full-time day students who take evening classes (specialty classes often taught by adjuncts), rather than part-time evening students taking day classes. So in some sense under the current scheme any unfairness to day students is the product of their own decision to take an evening class. (And again, currently those evening students often have lots of commitments, a fact that mitigates any complaint about an uneven playing field.) But an evening division filled with 24 year-olds will lead to a lot of day classes being filled with evening students who have significantly lighter loads than their day-division peers.
These evening students may suffer harms of their own. Currently it's easy for most evening students to explain to employers why they're part-time students. If U.S. News changes its methodology and law schools change their admissions criteria in response then part-time students will have more explaining to do as to why they're not finishing in three years. In general, the change may lead employers to start seeing part-time programs not as programs designed to accommodate older students' scheduling needs but as second-class programs catering the same demographic as full-time programs, but enrolling less-desirable members of that demographic.
These latter effects are speculative, of course. But it does seem clear that older, non-traditional students will take an admissions hit if this change goes into effect. And that would really be too bad. Part-time programs face a lot of challenges, about which I have blogged before. But they play an important, and maybe underappreciated, role in making a legal education more accessible to those who otherwise wouldn't be able to obtain one. It would be a shame if yet another hurdle would be placed in their path by a change in how U.S. News does its already highly questionable rankings.
Thursday, June 26, 2008
Should Statutes of Limitation for Child Sexual Abuse be Eliminated?
Cardozo Law Professor Marci Hamilton--author of God vs. the Gavel: Religion and the Rule of Law (Cambridge U. Press 2005)--has a new book. In Justice Denied: What America Must Do to Protect Its Children (Cambridge U. Press 2008), Hamilton argues forcefully that statutes of limitation for child sexual abuse should be abolished. Such a move would serve, she suggests, four policy goals. First, it would place the interests of childhood sexual abuse survivors above the legal rights of offenders. Second, it would help to identify sexual predators. Third, it would facilitate the identification of other survivors of the same predator once a single survivor has come forward. Fourth, it would discourage insitutions from hiding sexual abuse. The abolition of statues of limitation in the context of clergy sexual abuse has been a hotly contested issue in state legislatures throughout the country. Hamilton's book is timely and a must read for those interested in this issue.
Criminal Implications of Heller
As usual Doug Berman has an interesting sentencing take on the day's criminal law news. Today he considers the implications of the Court recognizing a right to bear arms to those currently incarcerated for gun crimes. Here's an excerpt.
As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms. After all, felons are Americans with a need to protect themselves and their families through keeping guns in their home. And yet, all felons (even non-violent ones like Lewis Libby and Martha Stewart) face the threat of 10 years in federal prison for just possessing a firearm.
Nevertheless, the majority opinion boldly and baldly asserts that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Slip op. at 54.)
Really? How can that (unjustified and unsupported) dicta be squared with all that has been said before? To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry "offers no way to harmonize its conflicting pronouncements." Time and litigation will tell if holdings or dicta end up dominating the application of the Second Amendment in future cases.
The Rhetoric of Judicial Activism
Andy makes a great argument that the divide on the current Court really is about substantive constitutional vision, and not about the role of the courts in enforcing and implementing those competing visions. He also points out, rightly, that the rhetoric--on the Court, in political debate, and in the MSM--has not caught up to this substantive reality. Everyone still talks about "liberal activism v. conservative restraint and deference to the democratic processes," even when what is going on is differences of judicially established substantive constitutional theories and ideas.
I wanted to add some thoughts on this.
1) The disconnect between rhetoric and substance is unfortunate for purposes of political debates. It has allowed candidates (usually Republicans, to their benefit) to speak about "courts run amok" as a way to appeal to voters, without having to discuss substantive constitutional ideas or why a particular decision is substantively wrong. And it has allowed the media to parrot that line. As a result, political debate never reaches the meaningful issues.
2) I agree that the rhetoric of constitutional politics is untenable. But I am less optimistic than Andy seems to be that the rhetoric is going to catch up because the competing political pigeonholes are too easily employed. Judges in the minority on an issue still throw the word activism around--a move that invariably gets picked up in the political branches and the media. It is too easy for Presidents, legislators, and candidates to decry the activism of a decision, rather than explaining what is substantively wrong with it. And it is too easy for the MSM to trot out the simplest explanation for complex concerns. Discussing substantive constitutional visions is hard, especially within the confines of an election.
3) Andy anticipates a birth of some neo-Thayerism. Does he think the recent visions put out there by Larry Kramer or (particularly) Mark Tushnet qualify?
4) Andy suggests Heller might shake-up the common rhetoric and force an honest discussion of constitutional reality. Relatedly, Eugene Volokh anticipates John McCain perhaps using Heller to argue to independent gun-rights supporters that their ard-won right hangs by a single vote on the Court (aping a line often used by abortion-rights supporters). If McCain is that explicit, then perhaps we will get into that substantive discussion of the Constitution and constitutional rights.
Cliff Sloan, participating in Slate's annual End-of-Term Supreme Court Breakfast Table (along with Dahlia Lithwick, Jack Goldsmith, and Walter Dellinger) makes the similar point that we should "retire the label of 'activist' once and for all, and have at it on the issues."
A Shared Vision of the Judicial Role
Now that the Supreme Court term is done, we can tally the boxscore. Once again, when push came to shove in the biggest cases of the term (Guantanamo detainees, gun rights, the death penalty for child rapists, punitive damages for the Exxon Valdez, and the millionaires' amendment to the campaign finance laws), the Court was maximally divided with Justice Kennedy holding the deciding vote. Unlike last year (but like most of the preceding decade), the swing Justice split his vote in these big ticket cases, resulting in some wins for the more liberal wing of the court and some wins for the more conservative. It is almost certain that tomorrow's papers will score the term as a split decision.
In terms of the merits of the decisions, that projected conventional wisdom is obviously correct--this is a Court sharply divided about the substance of the Constitution. However, in focusing on these real differences, we shouldn't lose sight of the fact that the Justices are firmly in accord on an even more profound question: the role of the judiciary in constitutional cases.
At most points in U.S. Constitutional history, Justices on one side or the other of the political spectrum have pressed for aggressive judicial policing of government actions that potentially transgress individual freedoms, while Justices on the other side have urged narrower conceptions of individual rights in deference to the Democratic process. During the 1960s and 1970s, it was, of course, that left that pushed aggressively for the expansion of individual rights and the right that cried foul.
In the last two decades, the right--without changing its rhetoric of restraint--has come to embrace an aggressive judicial role in interpreting and enforcing broad constitutional rights guarantees. For a partial list of their successes, see Takings cases like Lucas, freedom of association cases like Dale, corporate speech and campaign finance cases, cases that protect religious expression in the public schools, cases constitutionalizing the tort reform agenda, last term's decision in the Seattle Schools case, and today's piece de resistance, Heller.
Intriguingly, however, the political and judicial left have not been quick to abandon that approach. Instead of retreating to a defensive position and embracing a language of deference, more liberal Justices and commentators have chosen to stand toe-t0-toe with their more conservative colleagues, disputing the particular readings of the Constitution adopted by the Court while continuing to advocate the recognition and expansion of other rights. To a degree that current political and judicial rhetoric masks, all of the current Justices share a conception of the judicial role that gives Courts the right and the obligation to independently assess the meaning of ambiguous constitutional rights guarantees and then follow their own best judgment, letting the chips fall where they may. The Justices have differed on their vision of the society that the Constitution's rights provisions are designed to protect, not on their vision of the judicial role.
Though I think this point is fairly obvious, I think it is under-reported and crucially important in assessing the dynamics of the current Court. I think there are manifold implications here, but I'll mention just two. First, it is almost a foregone conclusion that, at some point in the near future, we will see a neo-Thayerian movement in constitutional commentary, in which some significant subset of academics and other observers will adopt a "pox on both your houses" critique of modern constitutional law. (That should be fun to watch.)
Most importantly, however, the gap between the reality of constitutional law (in which two groups of judges committed to a broad judicial role battle over the substance of the rights to be jealously protected) and the rhetoric of constitutional politics (in which liberal "activists" battle conservatives committed to "judicial restraint") has grown untenable. If today's decision in Heller can shake up the common rhetoric and force an acknowledgment of the realities of contemporary constitutional decisionmaking, then perhaps the opinion can do some good after all.
Thoughts on Heller?
Particularly with the VC experiencing technical difficulties, I thought I'd open up a general discussion on the Heller decision. Here are some initial questions:
- What are the biggest surprises?
- Where will the new Second Amendment right to gun-enforced self-defense lead us?
- And what is the political salience of the decision? Will this get the average person's attention, or will it drop quickly from the national consciousness? I'm betting this will a bigger issue that I expected it would be.
One Heller Snark...
Everyone else is going to say lots of substantive things about today's Supreme Court decision in Heller, the Second Amendment case. My own views are a bit complicated. But I just wanted to make one snarky observation:
Neither of the dissenting opinions suggests of Justice Scalia's majority opinion that "[i]t will almost certainly cause more Americans to be killed," Boumediene v. Bush, No. 06-1195, 2008 WL 2369628, at *65 (U.S. June 12, 2008) (Scalia, J., dissenting), even though I think that would not be an unfair characterization, whatever one believes about the Second Amendment.
Just a thought.
Renting versus Owning
Earlier this week, Krugman had an op-ed criticizing the longstanding policy of encouraging homeownerhip. His bottom line was that homeownership is not for everyone, and that government shouldn't be trying to push as many households as it can into that form of tenure:
There are, of course, advantages to homeownership — and yes, my wife and I do own our home. But homeownership isn’t for everyone. In fact, given the way U.S. policy favors owning over renting, you can make a good case that America already has too many homeowners.
Krugman mentions three costs of homeownership: financial risk, immobility, and long commutes. The third is more a product of land-use policies as homeownership, since there is no reason, apart from poor land use laws, for homeownership to be more affordable (in absolute terms) in the farthest flung suburbs. Liberalize zoning regulations within urban cores, and that problem largely disappears, particularly in the present environment of high gasoline costs. The second "cost" (immobility) is actually both a cost and a benefit. As I and others have argued, the immobility of homeownership stabilizes neighborhood communities by increasing the cost of exit. And the stability of communities of homeowners gives them some unique and attractive characteristics. There is obviously a tradeoff involved in assuming such immobility, but it's not clear that it's a net negative, even for low-income homeowners.
The one cost that I think Krugman is correct in identifying is
financial risk. Historically, however, this has been manageable, and,
as William Fischel has suggested, even the risk of homeownership is
not an unmitigated evil, since it pushes homeowners to become very
attentive to local politics. On the other side of the coin, and
unmentioned by Krugman, is the risk of renting in an unregulated
market. Today's USA Today has an article about people pushed into
homelessness because the property they were renting was foreclosed. We
could also talk about people pushed out of rental housing by rising
rents due to gentrification or by condominium conversion. The
precariousness of renting generates a number of problems, including
social dislocation and academic instability for the children of
To point to the downsides of renting is not to disagree with Krugman's bottom line position that we may be doing too much to encourage homeownership. Rather, I just want to suggest the (hopefully friendly) amendment that any policy shift away from that goal should be accompanied by efforts to provide greater protection and stability to renters. Economists are not very fond of rent control, housing codes, and eviction protection, but those sorts of policies help to provide renters with some of the benefits of owning. They obviously come with their own costs, but it's not clear to me either (1) that the magnitude of the costs of a well-designed rent-control or housing code regime outweigh the benefits for renters or (2) that those costs can't be dealt with through remedial government policies.
Wednesday, June 25, 2008
A New Way to Ignore The Law -- Don't Open Email from the Agency
The New York Times reports today that the White House told the EPA that it would simply not open emails detailing the agency's response to the Supreme Court's decision in Massachusetts v. EPA, which required the agency to act under the Clean Air Act to treat greenhouse gasses as pollutants. According to the article the EPA eventually watered down its proposed response (presumably the White House opened that email communication). Maybe other administrations have operated in this kind of way, but this sure seems like a hell of a way to run a bureaucracy.
Stanford's New Pass-Fail System: A "Back to the Future" Memoir
My alma mater, Stanford, now appears to be headed for the third (or maybe fourth) variant of pass-fail grading since my days there in the 1970s. (HT Brian Leiter.) Back then, any student in any year had the unrestricted option to take any class on the "3K" system - credit, restricted credit, no credit. (This was spillover from the California '60s.) The only academic consequence had to do with Order of the Coif. You needed to have taken at least 75% of your credits for grades to qualify. There was no grade-based invitation to law review (nor, as I recall, was there a "write-on" option). There was instead a bluebook screening exercise administered by the incoming board at the end of the first year, and if you showed yourself sufficiently anal, you were eligible to come back to school two weeks early to attend "cite-checking boot camp." (Actually this was the highlight of my academic career, as I did do the screening exercise, and as I make up for a deficit of talent with a huge surplus of anality, I was actively recruited by the incoming managing editor to come back to the boot camp. But I was poor and couldn't afford to miss two weeks of summer income, and for the same reason, I wanted to go to work right away, so I skipped it.)
Since then, the school moved to the system of permitting some limited 3K choice after the first year, and allowing a full 3K option in the first semester. It now has adopted prospectively the Yale 4K system (or 1H-3K), with an Honors possibility, something we didn't have. Brian Leiter speculates on the effect this may have on intellectual engagement at Stanford, given that while elite, Stanford students aren't as elite as Yale students (because nobody is as elite as Yale students), at least in terms of admissions criteria.
Some thoughts after the jump.
Based on some data, some casual empiricism, and some logic, I speculate, for a number of reasons, that the changed grading system won't substantially impact the overall level of "intellectual engagement" among law students at Stanford.
1. In dealing with my recollections, we are not completely talking apples and apples between the late 1970s system and the new system, and between Yale and Stanford. First, you could opt into the old system to any level you wanted. It was not uncommon, for example, to take the entire third year 3K if you had accepted a job offer and weren't in the running for Order of the Coif. Second, there was no honors option back then in the 3K system. The perception, however, was that grades did make a difference, even at Stanford, in terms of your marginal attractiveness to employers. I don't know about Yale either then or now (I just remember someone telling me in about 1977 that everybody at Yale went on to a judicial clerkship). So there was competition (although I do not recall it being cut-throat). Whether that made for intellectual engagement, or merely for the desire to get good grades on the exams, I can't say, but I suspect it was more than latter than the former. That is, those who wanted to be engaged (probably a minority) were engaged, regardless of the grading system.
Would competition for "Honors" at Stanford have been roughly equivalent to competition for As? I don't know. It's also hard to assess this vis-a-vis the Yale experience, because I don't know (a) if there is competition for "Honors" at Yale, and (b) even if there were not, whether that translates to how students at Stanford feel about it (if in fact Stanford is not as selective as Yale).
2. I'm not sure if we can make a qualitative judgment on engagement levels as a function, say, of LSAT scores. To U.S. News, Yale reports a 25-75 range of 170-177; Stanford 167-172, and the undergrad GPAs are almost identical. I spent a little time trying to figure out if Yale's proclivity for turning out law professors could account for a significant distinction between Yale and Stanford in terms of engagement without grades. There may be something there. I think it's a fair assumption that professor wannabes in law school are more likely to be engaged intellectually in the subject matter of law school, even without the incentive of grades. The data certainly bears out the conclusions either that Yale is more selective than Stanford for successful professor wannabes, that successful professor wannabes self-select Yale more than Stanford, or some combination of the two. (The latter seems to me most likely, there being a coordination effect.) Yale Law School's Index of Success - Faculty of University or College Division ("ISFUCD")* is 114, almost three times Harvard's 46 and Stanford's 41, and five times Columbia's 23. Hence, it should be far more common at Yale over Stanford and Harvard to run into people who we would expect to be intensely engaged, regardless of grade competition, in an academic way, at least as a percentage of the student body.
3. Note, however, that even a Yale ISFUCD of 114 translates to only 11.4% of the student body, compared to 4.1% of the student body at Stanford. Here's where we get to a really tough question. What is the ratio of wannabe professor wannabes to successful professor wannabes? If at Yale, it's 7 or 8 to 1, then Brian's reference to an "intellectually intense majority" may have some sound empirical support. I am quite positive the ratio was nothing like that at Stanford in the late 1970s. My own law school class (I happen to have these statistics at hand) presently numbers 140 (there were more than that by a few, but that's all the e-mails we have), of whom seven are full-time faculty members (Weisberg, Baird, Hertz, Neuman, Henderson, Goldman, and me). I don't recall that very many others were clamoring to be law professors. In short, what this suggests is that then as now about seven or eight people per Stanford class are successful professor wannabes. My recollection from back then, however, was that not a whole lot more wanted to be academics, and the vast majority were in it to get jobs upon graduation, at least more so than Yale both in absolute numbers and in percentage of the class.
4. As to the some 90-95% of the class who are not professor wannabes, will the elimination of grades in favor of 1H-3K change students' underlying motivations about grades? Unless students have mellowed substantially since the late 1970s (what I read of the Millennial Generation says this is not so), it seems to me Stanford students are still going to be hyper not just about getting jobs (they all will), but getting good jobs, and getting good jobs in the locations where they want to work. Unless law firms have unlimited budgets of time and money, they are still going to need to make a cut about who comes back to the firm on a "drive-back" or "fly-back." That is still going to require some kind of data for making the cut, whether it's the number of "Honors" or other indicia of law school achievement (Moot Court, Law Review, etc. - oh no - even more proliferation of student-edited specialty law journals?) The survival instinct, it seems to me, will surface somewhere.
5. Finally, is there really any connection at all between grades and what we as professors view as real intellectual engagement? Right now, I teach all upper level courses and mostly third or fourth year students. Even with grades, many of them have checked out already. The ones who want to be engaged are engaged. All of them are concerned with grades, but is the engagement that engenders serious intellectual engagement, or "will that be on the exam?" Moreover, casual observations of engagement are likely affected by the kind of course you teach. Jurisprudence, for example, is pretty self-selecting. Evidence, on the other hand. . . .
Well, I have procrastinated enough for the day.
* The ISFUCD equals three years of entry-level hiring (2004-2006 as measured by the data I could find from Larry Solum's reports) divided by the school's 2007 total enrollment (from the U.S. News ranking data) multiplied by 1000. The ratios were as follows: Yale - 67/586; Stanford - 22/538; Harvard 79/1734; Columbia - 28/1236).
More on Gas Prices and Sprawl
More from the NY Times on the impact high gas prices are having on exurban households. Here's a taste:
Just off Singing Hills Road, in one of hundreds of two-story homes dotting a former cattle ranch beyond the southern fringes of Denver, Phil Boyle and his family openly wonder if they will have to move close to town to get some relief.
They still revel in the space and quiet that has drawn a steady exodus from American cities toward places like this for more than half a century. Their living room ceiling soars two stories high. A swing-set sways in the breeze in their backyard. Their wrap-around porch looks out over the flat scrub of the high plains to the snow-capped peaks of the Rocky Mountains.
But life on the edges of suburbia is beginning to feel untenable. Mr. Boyle and his wife must drive nearly an hour to their jobs in the high-tech corridor of southern Denver. With gasoline at more than $4 a gallon, Mr. Boyle recently paid $121 to fill his pickup truck with diesel fuel. In March, the last time he filled his propane tank to heat his spacious house, he paid $566, more than twice the price of 5 years ago.
Though Mr. Boyle finds city life unappealing, it is now up for reconsideration.
Kennedy v. Louisiana Decided
The Supreme Court this morning decided Kennedy v. Louisiana, the child rape case that many of us thought would be a test of the future of the death penalty in the US. By a 5-4 vote the Court struck down Louisiana's death penalty statute as it applies to the rape of a child under the age of 12. The Court, in 1977's Coker v. Georgia decision had held that the death penalty was a disproportionate punishment "for the rape of an adult woman," leaving open the possibility that it was proportionate for the rape of a child. The Court closed that door this morning, concluding its opinion: "Difficulties in administering the penalty to assure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim."
In recent years the Supreme Court has prohibited the execution of the mentally retarded and those who were under 18 when they committed their crimes. Add to that list today those who commit crimes that do not "take the life of the victim" and it is clear that the Supreme Court is attempting to limit, though certainly not eliminate, the use of the death penalty in the U.S. The Court appears to be taking seriously the mandate it has set out at least since Furman v. Georgia was decided in 1972 that states limit the imposition of the death penalty to the worst of the worst of criminal offenders.
And the numbers bear this out. Since their highs in the late 1990s, executions are down by more than half and new death sentences are down by more than two-thirds. With more than 3,000 people on the nation's death rows and only 42 put to death last year, the nation has a nearly 80 year supply of condemned inmates at the moment. What this means for the future of the death penalty, is less clear. Either the death penalty is beginning its slow descent into disuse or the current round of procedural and substantive reform will have the effect of sanitizing and re-invigorating the penalty in the years to come.
LiveBlog at SCOTUSblog
SCOTUSblog is doing a live blog of today's Supreme Court happenings. (No need to refresh!) Things should get going just about . . . now.
Tuesday, June 24, 2008
Abigail Adams on "Ostentatious Erudition"
We don't get HBO so my birthday present from my son was the DVD set of the John Adams mini-series with Paul Giamatti and Laura Linney, which arrived today. I loved this bit of dialogue in Part I. John is defending the British soldiers who shot into the crowd in the Boston Massacre. At night, he is working on his final speech to the jury, and has asked Abigail to read the draft. She has not been immediately effusive with praise, as he would expect, and he suggests she did not like it. There is a pause.
Abigail: 'Tis a fine summary for the defense. There is, is much to be admired. It is perhaps at times. . .
Abigail: John, there is not a person in Boston who doubts your education. Your command of language.
John: Oh no. You are charming me, Abigail! You never charm me. What you are about to say is cutting.
Abigail: John. . . . Vanity.
Abigail: You have overburdened your argument with ostentatious erudition. You do not need to quote great men to show you are one.
I don't know if this is wholly the product of the screenwriter's literary license, or if the dialogue is something culled from their voluminous correspondence. The denouement of the scene is a wonderful and gentle popping of the strutting male ego (been there, had that done to me). But I wondered: what would she have thought of the modern law review pin cite?
An irresistible offer follows the jump.
The DVD came with a coupon for "buy one, get one free" on admission to Colonial Williamsburg. It is good for up to two admissions, and must be redeemed at an official Colonial Williamsburg on-site ticket location. It may not be redeemed for cash or sold, and, indeed, I have no intention of using it, redeeming it, or selling it. But I'd be happy to send it as a gift (I will spring for the 42 cent stamp because I'm a sport) to one lucky reader (t0 be chosen by me in my sole discretion, but preferably somebody who could really use the "save as much as $118.*") who plans on going there some time soon. For you Willistonians, note that as a gift and lacking consideration, this fails to support any theory of contract liability. Those of you who think contract died, don't rely on anything I've said.
"*$118 savings estimate is based on 2008 regular retail price for two annual Freedom Passes."
Blogger Guilt: On Being a Part-Time, Not-for-Profit Event Planner, Among Other Things…
This morning I am off for a 17 hour flight to Israel (and Barcelona and Paris in the middle) for six weeks. The Tel-Aviv University Law Faculty has kindly offered me an office during for the summer so I am hoping to establish something more or less like a writing routine during the home visit. The plan is to continue research on social enforcement within organizations, thanks to a generous ABA grant (with co-author Yuval Feldman); wrap up edits for the forthcoming Elgar Encyclopedia of Employment and Labor Law and Economics (with Ken Dau-Schmidt and Seth Harris); revise the forthcoming review essay on behavioral law and economics (with On Amir) and forthcoming article on organizational citizenship, and finally get to my two book projects, one on New Governance as the Regulatory New Deal of 21st Century and one on IP @ Work.
In anticipation for another busy global month, I wanted to share with our readers my rational thoughts about my emotional experience with “blogger’s guilt.” I admire my co-bloggers who can juggle it all, but for me, blogging during busy research, teaching, travel, work/family activities, and social time is simply difficult. Inevitably, I face the need to prioritize. Not posting a constant stream on the blog and walking around with blogger’s guilt is of course a matter of personal choice. Here in San Diego , the law faculty is a gregarious bunch and, more generlaly, life in Southern Cal is intensely social. Looking back on this year, it turns out that one of my unplanned jobs has been a part-time, not-for-profit event planner. Just a small sample of some of these events includes five birthday parties, two showers, one going away party, an 80s disco party, four holiday events, including one mega-Hanukah party (200 invites). And that’s just at our home…It occurred to me that planning offline events is somewhat antithetical to blogging, where communities are virtual at large. There are different times of year when each of these social aspects takes priority. But the problem begins when one feels that they are neglecting one community, in this case, the online group.
I looked it up, and sure enough the urban journal already has the following entry for blogger guilt:
“A fit of guilt, physical discomfort or dysphoria that occurs when one is too busy with an actual social or professional life to properly update one's livejournal. Particularly prevalent in those who use weblogs as coping mechanisms, artistic or creative outlets or routine social tools. Popular sister terms are "blog guilt" or "livejournal guilt.”
They also have a funny illustration:
“Nashor was scratching himself and feeling more and more inadequate around his dirty, slow 2003 ibook G3. He had taken many pictures that January and spent time with many beautiful people, but never seemed to have time to upload them or talk about his experiences. "What's wrong with me?", he posed to a doctor in relation to his increasing self-loathing and inability to sit down in front of a computer. "You are suffering from Blogger guilt. I suggest you stop reading Click Opera; it will only make you feel worse. And remember, Momus is unemployed and middle-aged.”
We have had wonderful recent additions to prawfsblog permabloggers and so many terrific guest bloggers to which I am deeply grateful that they are filling up our blog with such thoughtful posts at times when some of us walk around with blogger guilt. I hope to post about my stay in Israel and the conference in Barcelona and Paris, but in the meantime, if you are also in the region, do drop me a note!
Presidential Debates as Trials
Charles Collier (Florida) has an interesting essay in Yale's Pocket Part arguing that presidential debates ought to be conducted like jury trials--candidates, the parties/advocates, question one another and give answers presenting their best cases; a moderator serves as judge to ensure questions are asked and answered and procedures are followed; and We the People serve as the jury, deciding, based on what we have heard, which party we believe would be better in the Oval Office.
It is a neat idea, grounded in the basic recognition that trials and political debates (as well as political campaigns and public debate more generally) both are adversary processes designed to lead to the discovery of some "truth." But implementing such a proposal raises some interesting questions and thoughts about the role of the rules of evidence.
First is whether to impose rules of evidence on this debate process? Will (and should) there be limits (often content-based) on what can be asked or discussed? Second, somewhat related, is whether to regulate how questions are asked. If congressional questions tell us anything, it is that elected officials and politicians are not good at asking questions designed to elicit meaningful information; they are good at making long, convoluted, often-grandstanding speeches with questions tacked on as afterthoughts. Now maybe that is the idea here--each candidate talks about what she thinks on a subject, then asks her opponent(s) a question on that subject and we go back and forth. But do we get more out of it if questions must be narrow and focused, a la questions asked of a witness at trial or at least of an advocate at oral argument? I rarely see any meaningful information elicited from witnesses in congressional hearings.
This new debate process may call into question some of the basic rationales for the rules of evidence. If we do not want or need such rigid and often content-based rules in political debates, there is at least a question of why we should impose them in jury trials, given that both processes are aimed at a similar goal (accepting some form of the Marketplace of Ideas Theory of the First Amendment). If we trust the voting-public "jury" to filter through irrelevant or inflammatory information, why not trust juries to do the same? (Sherry Colb considers this question in a different context). This differential treatment of public/political debate and trial has been on my scholarly to-do list for a couple of years. Collier's essay provides a new angle to think about the question.
Monday, June 23, 2008
Cert. denied in the border fence case
Today the Supreme Court denied cert. in Defenders of Wildlife v. Chertoff, a case that raised some interesting and (in my view at least) important issues about the non-delegation doctrine. (I helped co-author an amicus brief urging a cert. grant, and Rick Hills blogged about the case here ). Regardless of what the outcome might have been had the Court granted review, as an academic it's at least a little disappointing to see a Court with lots of self-created time on its hands deny cert. on (again, what seems to me) a case that pushes the boundaries of an important separation of powers doctrine. I had entertained some vague hope that the Court might have used this case as a vehicle to signal some thoughts about the scope of Congress's power to delegate in other areas, in particular with regard to the the "War on Terror," but obviously that did not happen.
George Carlin and the First Amendment
Ironically for Carlin's status as a hero of the First Amendment, his death also comes less than two weeks before the 30th anniversary of the Supreme Court's decision in FCC v. Pacifica Foundation, a case that centered on Carlin's famous, indecent-but-not-obscene "Filthy Words" routine, where the Court held that a comedy routine discussing the seven basic dirty words in the English language is not fully protected on broadcast radio and television. He also dies the term before the Supreme Court hears arguments and decides FCC v. Fox Television, a case dealing with FCC regulation of "fleeting expletives," that might, depending on what course the Justices take, tell us something how much doctrinal vitality Pacifica still has.
Of course, Pacifica remains a doctrinal outlier, a case loathed by most highly speech-protective scholars, myself included. It rested on the specious rationale that broadcast radio and television is uniquely pervasive and intrusive into the home and may easily assault unwilling listeners in their home who flip a switch not realizing what awaits them (never mind that the complaint in the case was filed by someone who heard the routine while driving in his car). The Court has spent thirty years distinguishing the case as to every other medium--cable, telephone, and the internet--although it is not clear why those media are any less intrusive or any ore likely to catch an unwilling listener off-guard. Indeed, one of the funnier arguments against the Communications Decency Act of 1996 (the first, blanket ban on indecent speech on the internet) was that it rendered unlawful the internet posting of the Pacifica opinion itself, which included an appendix containing the full text of the routine.
A Critique of "National Security Courts"
Although I've written before about my concerns with the idea of "national security courts" for terrorism cases (including challenges to detention and trials for criminal offenses), we've already seen calls for such hybrid tribunals in the aftermath of the Supreme Court's decision 11 days ago in Boumediene, and I imagine those calls will only increase as the summer goes on.
With that in mind, I wanted to flag an important new statement out today from the Constitution Project's Liberty and Security Committee and its Coalition to Defend Checks and Balances, both of which are groups of fairly high-profile folks from all points along the political spectrum. The statement, titled A Critique of "National Security Courts," identifies some of the more serious flaws with such proposals, and ultimately takes a very skeptical view of their utility and their viability. [Full disclosure: I am the group's "Reporter."]
There's much more to be said about this debate, but given that almost all of the discussions out there thus far have been in favor, I thought I'd flag this important, dissenting view.
Sokol on Antitrust Counsel (and Some Thoughts on Chambers Generally)
Danny Sokol (Florida) has an interesting post over at Antitrust & Competition Policy Blog (a Member of the Law Professor Blogs Network) about the Chambers USA rankings of New York City and Washington D.C antitrust lawyers. The question is why general counsels would want to hire antitrust deal counsel without a substantial history with (or employment by) one of the agencies. He list several reasons, to which I added one in the comments:
Perhaps the most significant reason to use antitrust counsel closely tied to the agencies (whether or not former agency people) is their insight and credibility on the toughest issue of all: if you have a deal that is potentially troublesome, do you immediately follow up the HSR filing with a trip over to the FTC or DOJ, or do you even make a pre-filing trip over to talk about it? This issue comes up in many, many industrial deals where you are talking a four to three or even a three to two combination, the HHI is apparently sky-high, but there is industrial logic to the deal, and qualitative aspects to it that do not surface in a top level look.
By the way, if you think playing the US News law school ranking game is fun, Chambers (both Global and USA) is an absolute treat. Just to follow up on Danny's post, during my career as a general counsel, of the listing of Washington antitrust lawyers, I used one from Band One and four from Band Two, and of the listing of New York antitrust lawyers, one from Band One and one from Band Four. I suppose if required to force rank them, I could, but I'm not sure how. The fact is, they were all really good, and I'm not sure what quantitative or qualitative scales the Chambers people use to make these distinctions. The idea of bands is a good one, but at this level, I'm still not sure that it gives off a false granularity as to skill or results. It may well be an accurate grouping as to brand recognition. I do know that I am still a close friend of one of the Washington antitrust lawyers, and both his band ranking and his one-liner description from a couple years ago were a source of endless ragging.
I always eagerly awaited my complementary volume of Chambers, particularly once it began to do rankings in the non-financial center U.S. cities. For example, I know almost everybody (including former partners, associates, and adversaries) in the Michigan corporate and M&A rankings, as well as the litigation rankings, and get no end of chuckles from the one-liner descriptions, not to mention the inclusions, exclusions, and relative band rankings of my own former partners.
Take a look at the format, and see if you don't agree that a law school version just begs to be published.
Sunday, June 22, 2008
A Tad Too Friendly at Friendly®’s
I offer the following consumer experience as fodder for the debate in the intellectual property field over the appropriate balance of trademark protection. While on a road trip recently, I convinced my husband to stop at a Friendly®’s (for old time’s sake). The menu revealed the following mind boggling collection of trademarked treats:
Super Sizzlin'™ breakfasts
Big-Two-Do® (eggs, choice of meat, toast and pancakes or French toast)
Super Big-Two-Do® (the above with home fries)
Kickin' Buffalo™ Chicken Salad, Chicken Sandwich, Chicken Wrap and Chicken Platter
Friendly's Big Beef® Burger
Royal Razz® (raspberry drink)
Slammer™ (Watermelon or Orange)
Fribbleccino™ (also in Mocha Latte and Carmel)
Various ice cream flavors: Nuts Over Caramel®, Forbidden Chocolate®, Vienna Mocha Chunk®
Hunka Chunka PB Fudge™, Purely Pistachio®
Friend-z® (frozen blended treat, see below)
Jim Dandy™ (akin to a banana split)
Giant Crowd Pleaser™ (twelve scoops)
Most amusing, however, was the current trademarked Friendly®’s special promotion. We struggled to keep straight faces while our chipper young server inquired whether we would like a Happy Ending® (sundae) to finish our meal. In fact, we’re still chuckling picturing the Friendly®’s marketing meeting where they decided to adopt this slogan – we figure it had to be ten suits around a table oblivious to the double entendre with one Gen Y staffer taking notes while desperately stifling giggles.
For what it’s worth, from the perspective of someone who in this context is a mere consumer with no axe to grind about the various legal and policy arguments, the number of trademarks protecting rather simple words/phrases and applied to quite common place products seems a bit out of hand. If you want to talk about consumer confusion (which I understand is important in trademark policy debates) picture me attempting to secure a frozen blended treat and struggling to remember whether I’m supposed to be ordering a Blizzard® (DQ®), Shiver® (TCBY®), McFlurry® (McDonald’s®), Dazzler™ (Haagen Dazs®), Friend-z® (Friendly®’s ) or 31 Below™ (Baskin Robbins®).
Northwestern's "accelerated JD"
This from Northwestern:
Northwestern University School of Law will offer an accelerated JD program starting in 2009 as one of the initiatives of a major new plan to maximize its graduates’ success in the changing worlds of the legal profession and the clients it serves.
Northwestern Law will be the only law school among top-tier institutions to offer an accelerated two-year JD program as well as the traditional three-year JD program. . . .
After reading the description of the new program - which requires the same number of credit hours, but emphasizes targeted "competencies" in "communication, teamwork, strategic understanding, basic quantitative skills, cross-cultural work, project management and leadership" -- I'm not sure what I think. I tend to be (perhaps mistakenly) leery of legal-education proposals that seem to owe too much to a "law school is too theoretical; it should be more practical" view. (It should, it seems to me, be both.) Is that what's going on here? A business-school-type approach to law school? Or, instead, is Northwestern taking a wise, innovative step? Thoughts?
The Rise, Fall, and Revival of the Social Gospel?
Bill Stuntz observes that the standing of Christians in academia might be linked to the political rather than theological views of Christians – especially Fundamentalist Christians. Stuntz also notes that the political valence of Christianity might be changing: “American evangelicals have changed our emphasis over the past decade or so: hang around evangelical churches, and you’ll hear a lot more talk about poverty and disease than in the past, and a lot less talk about the culture’s moral failings.”
Stuntz's observation suggest that the “social gospel” may be on the rise again, after a half-century of relative desuetude. The “social gospel” is the shorthand for the belief that Biblical injunctions to love one’s neighbor as oneself, help the sojourner because you, too, were sojourners in Egypt, etc., require Christians to volunteer and lobby for programs to aid the poor. But the ascendance of the social gospel – if it is indeed again in the ascendant – raises two interesting questions. First, why might the social gospel be on the mend today? Second, does the social gospel presage a realignment in American politics?
Egalitarianism is deeply rooted in English Protestantism, dating back at least to the English Civil War, when “Levelers,” “Diggers,” and “Ranters” invoked Biblical verses decrying the rich to support various egalitarian programs, from the enfranchising of the landless (one Leveler position at the Putney Debates), greater charity by rich Christians (See, e.g., William Walwyn, The Power of Love (1643)), and cultivation of common land by the poor (Gerrard Winstanley’s experiment on St. George’s Hill, Surrey in 1649). The egalitarian emphasis followed from the extreme anti-formalism of Puritan Protestantism: Denouncing formalities of ceremony and doctrine as Papist, the anti-formalists called for practical Christianity that any person, however uneducated, could understand. Money – and its redistribution – turned out to be a universal language that protestant radicals could embrace. One might say that, the more hostile to doctrinal formality the sect, the more likely that the sect would embrace some form of primitive communism attributed to the Apostles or to Adam and Eve.. (And there were a lot of odd sects in the 1640s and 1650s – everything from nudist Adamites and communist Anabaptists to purely millinerian Muggletonians and semi-communal Brownists).
This sort of egalitarian protestantism continued throughout the 18th and 19th centuries in one form or another as a sort of antinomian rebellion against elite authority. The phrase “what would Jesus do?” began its life (as far as I know) as the title of Charles Sheldon’s 1896 novel, In His Steps: What Would Jesus Do? – but Sheldon’s novel was a call for Christian socialism, not a call for (say) sexual abstinence. Of course, William .Jennings Bryan made Christian imagery (the “cross of gold”) a centerpiece of his 1896 campaign attempting unsuccessfully to forge an alliance between farmers and workers.
So why did the social gospel fall into steep decline after World War II? The conventional story that I have always been told is Anti-Communism: Evangelical Christians associated egalitarianism with the New Deal’s WWII alliance with the atheistic USSR. The atheism of the Soviet Union generally discredited the egalitarian program among Christians with a strongly Biblical bent. For the first time, Biblically oriented Christians made a political alliance with libertarian-oriented business interests.
This alliance, however, is not a natural one. During the 19th century, for instance, pro-business Republicans could only uneasily maintain an alliance with Evangelical Christians (mostly by supporting Prohibition and anti-Mormon/anti-polygamy planks in state party platforms). (The Taft-Roosevelt split could be understood as one of several ruptures in the Christian-Business alliance: The Bull Moosers were social gospel Christians, singing “Onward Christian Soldiers!” at their convention; Taft was a skeptic of the social purity movement, vetoing the Webb-Kenyon prohibition bill).
Could that Cold War alliance be breaking up? Anti-communism is, of course, no longer a major issue of American foreign policy. What reason, then, do evangelicals have to maintain their adherence to libertarian economic programs? Against such allegiance, think of the various social issues in which evangelicals are invested – for instance, aid to Darfur, teen pregnancy, school vouchers. Think of the demographic groups with interests in such programs – for instance, Hispanics and low-income African-Americans. The latter tend to be socially conservative, often belonging to churches with which white evangelicals could easily make an alliance on cultural issues. The former issues are in tension with libertarianism: A fully funded voucher program, for instance, could cost a fortune.
In short, is it possible that, in the long term , the evangelicals could be pried away from the chamber of commerce, returning to the days of Teddy Roosevelt and W.J. Bryan, when churches and business cordially disliked each other?
Saturday, June 21, 2008
Here in Charlevoix, Michigan, on the eastern shore of Lake Michigan, above the 45th Parallel and just about as far west as you can get in the Eastern Time Zone, aided by Daylight Savings Time, the sun will set officially at 9:32 p.m. (compared to 8:25 p.m. back in Cambridge), and it will stay light enough to play golf for about thirty minutes after that (if you don't hit the ball straight - forty-five minutes if you are a low handicapper).
For all you boomer professors out there (who don't understand the connectedness of the Millennial Generation), today's assignment is to write out longhand the lyrics to "Soak Up the Sun" by Sheryl Crow and "The Boys of Summer" by Don Henley.
Telecom Immunity and United States v. Klein
At Balkinization, Marty Lederman discusses the congressional Democratic compromise with (or capitulation to, depending on your perspecive) the White House on retroactive immunity for the telecom companies for their role in warrantless surveillance, announced last Thursday and approved by the House on Friday as part of the reauthorization of FISA. Glenn Greenwald is furious.
The compromise language on immunity is in § 802(a), which provides:
[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was --
(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and
(B) the subject of a written request or directive . . . indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.
The AG certification must be supported by substantial evidence, although it appears that much of this will be done in secret and not involve extensive evidentiary review.
Marty asks whether this provision violates the principles of United States v. Klein, the opaque 1871 case that stands for some uncertain limitations on congressional control over federal law, federal courts, and federal jurisdiction.
Klein, you may recall, arose out of a dispute over the disposition of Confederate property seized during the Civil War and the effect of presidential pardons. During the War, Congress enacted various laws permitting the disposition of abandoned and captured property. But it also granted to the President a general power to pardon or grant amnesty to any person who had participated in the rebellion, a power Lincoln exercised in 1863, issuing a blanket pardon to all those in rebel states who desired to resume their allegiance to the Union, along with restoration of property rights. Recovery of property could be achieved by filing an action in the Court of Claims and proving that the claimant was entitled to the property and that he had "never given any aid or comfort to the present rebellion." Klein, executor of the estate of Wilson, filed such an action in the Court of Claims and won in 1869, using the blanket pardon as evidence of innocence of having given aid and comfort. In 1870, the Reconstruction Congress established that proof of a presidential pardon was not admissible as evidence of a right to property and, in fact, proof of such a pardon was to be "conclusive evidence that such person did take part in, and give aid and comfort to, the late rebellion, and did not maintain true allegiance or consistently adhere to the United States." In other words, the pardon constituted proof of the acts of rebellion for which the person had been pardoned, but could not be used to prove that he had been pardoned for those acts. In such a case, the courts lost jurisdiction and the action was to be dismissed.
The Supreme Court rejected the limit on its jurisdiction, holding that the 1870 law interfered with the judicial power by prescribing a rule for the decision of a cause in a particular way, requiring the Court to find in favor of the government in all cases involving claims by pardoned owners. There also is language indicating concerns for timing--because Klein won a judgment prior to the 1870 jurisdiction strip, the Court seemed trouble by Congress enacting a rule under which theCourt must deny to itself the jurisdiction already conferred (by the general grant of appellate jurisdiction), only because its decision under settled law was against the government.
No one is entirely clear as to what Klein stands for (which is why Marty used danger quotes when talking about the Klein "doctrine.") Let me suggest six principles for which Klein might stand. Importantly, none of them seems implicated by the telecom immunity in the current bill.
1) Congress exceeds its power vis a vis courts by "prescribing a rule for the decision of a cause." But that cannot be the doctrine. Taken literally, this would prohibit Congress from drafting substantive legislation. A statute, after all, is the rule of decision that dictates to the court how a claim under that statute will come out, once facts are established. And the Court has held that Congress can change the substantive law without running afoul of Klein.
2) Congress cannot change the rules of decision to alter the outcome after the government already has lost the case. This cannot work, because it generally is understood that a court applies the present law in a case, including on appeal. So long as Congress makes its retroactive intent clear, it can change the law between trial and appeal--and alter who wins and loses. The only limit on this is that Congress cannot reopen already-final judgments by changing substantive law.
3) Congress cannot dictate to the courts how to decide particular cases. This is a true principle, but that phrasing is not helpful. Congress functionally tells the court how to decide cases when it prescribes substantive law, dictating how a case shall come out on the showing of some facts. Whether those facts have been shown in a given case is for the court, of course. Plus, I am not sure that I would describe the law in Klein as telling courts how to decide a case. It only told courts how to handle certain evidence; once that evidence came in, the result simply was dictated by the pre-existing law.
4) Congress cannot redefine or dictate to the courts the meaning of a constitutional provision (in that case, the effect of a presidential pardon). This is appealing, although it bleeds into a judicially supremacy that is not particularly popular among most current constitutional and courts scholars.
5) Larry Sager's statement of the principle (in an article linked to by Marty), generalizing somewhat from # 3: "The judiciary will not allow itself to be made to speak and act against its own best judgment on matters within its competence which have great consequence for our political community. The judiciary will not permit its articulate authority to be subverted to serve ends antagonistic to its actual judgment; the judiciary will resist efforts to make it seem to support and regularize that with which it in fact disagrees." On this reading, the problem with the law in Klein was that it compelled the Court to give a particular effect to a presidential pardon, although its best constitutional understanding would give the pardon precisely the opposite effect. Sager found a similar problem with the Religious Freedom Restoration Act (RFRA), which required the Court to apply strict scrutiny to claims of religious freedom, despite its own understanding that strict scrutiny is inappropriate for religious liberty claims.
6) Marty Redish and Chris Pudelski more recently argued that Klein stands for a requirement that, for reasons of popular accountability, Congress cannot hide the substantive ball behind procedural or evidentiary rules. On this view, the problem in Klein was that Congress left substantive law formally in place--an individual who had his land in a seceding state confiscated can recover the land on a showing that he had not given aid or comfort to the rebellion--while using an evidentiary rule to render such proof, and thus recovery, legally impossible. This, they argue, constituted a "political shell game," through which Congress can avoid any political or popular repercussions for unpopular public policies by hiding the true nature of those policies.
Regardless of which of these (individually or in concert) constitutes Klein's "doctrine," none is implicated by the telecom immunity in the new bill. Congress is not attempting to define the scope of the public's Fourth Amendment rights; it is creating a statutory defense against liability (akin the the various official immunities that apply to § 1983/Bivens actions). Congress is not reopening a final judgment or seeking to change the result of an already-decided case; at most, the bill changes substantive law and explicitly makes the new law applicable to pending cases. It does not tell courts how to decide individual cases, beyond describing the legal effect that certain facts (as proven) shall have--which is what substantive law does. The bill does not violate Klein as Sager defines it. Nothing in the bill forces courts to understand or interpret the law in a way different from its best understanding of the law. The bill does not require courts to give different effect to the AG's certification; in fact, a court has (at least formally) the power to measure the certification to ensure it is supported by "substantial evidence," although this may be more of a formality. And Congress is not hiding a change to substantive law behind a procedural mechanism; the bill is explicit that the telecoms are entitled to absolute immunity, so long as they can make a particular evidentiary showing.
In the end, this looks like nothing more than a change in substantive law to provide a defense against liability. We may not like the change on a policy level. But I see nothing in it that raises separation-of-powers concerns.
Friday, June 20, 2008
Vining on Law and Religious Commitment
Apropos of Rick Hills' post on "theophobia" and the myriad comments that follows, Joseph Vining (Michigan) has posted Legal Commitments and Religious Commitments, a comment on Steven D. Smith's Law's Quandary (HT Larry Solum). Here's the abstract:
Person, individual, purpose, value, authority: Can these be realities for law without making a commitment to law into a religious commitment? Can the affinities between the world of law and the world of religious life be as close as they are without leading one to conclude, empirically or introspectively, that these dimensions of experience are the same? In a comment on Steven Smith's Law's Quandary, this essay suggests law has an ontology of its own. As Smith argues, the language of everyday life does not fully reach what is real for law, and law's ontology is clearly not limited to the ontology of science and mathematics. But we can think law need not live in an "ontological gap" unless absorbed into religious life. What is real for law is connected to what is real in religious life, but a commitment to law and a religious commitment are not the same. As dimensions of human experience, law and religious life may be not separate but nonetheless not the same.
I've only skimmed this, but it addresses, it seems to me, the legitimate point of discussion somewhere in between the die-hard religionists and the die-hard atheists not only about the ontology of the law, but its apparent teleology. That is, in Law's Quandary, Steven Smith ponders why, when we are all acknowledged legal realists, do we still speak a language of the law that implies there is some author? The implication of Smith's final chapter is that the author really is the Author (God) - indeed, Justice Scalia (not surprisingly) wrote a review in First Things suggesting Professor Smith not beat around the bush. Professor Vining, on the other hand, is looking for a way of explaining this sense of meaning or purpose without having to concede one needs to have a religious discussion in which to do it.
Some commenters styled this kind of inquiry "thin" religion, a characterization that bothered me. My wife and I were once considering changing synagogues (ours was in the midst of significant administrative turmoil). We talked to the Reform rabbi of the temple we were considering leaving and to the Conservative rabbi (a former president of the world Conservative movement) who had married us. To the latter I had expressed some concern about the movement's positions to which I objected. Both acknowledged the far more difficult task of what the commenters call "thin" religion - if you are not orthodox or fundamentalist or a professional philosopher, religious institutions are where you engage with issues of meaning, purpose, good, and evil. The Conservative rabbi went further to suggest that all differences among non-Orthodox Jews boiled down to whether you were what he called a "searcher" or not.
I'm not sure where in the continuum from Vining to Smith to thin religion to thick religion you draw the line and say we not searching any more. I do think there's collateral damage to that entirely legitimate intellectual discussion from the theist-atheist wars Rick's post brought out.
A Price for Everything?
Just to follow up on my post on gentrification, here's an article from the Seattle Times about an elderly woman who held out against private development because she just didn't want to sell, at any price. When she wouldn't sell, developers simply built around her (see photo, also from the Times story).
From the article:
Last time I saw Edith Macefield, she threatened to sue me. Then she smiled and invited me in. It was in 2006. I had written a column about how old Edith had refused to leave her tiny home in a filthy, industrial Ballard neighborhood, saying "no" to a nearly million-dollar buyout offer from a developer.
Her house was valued as a worthless tear-down by the government. But to her it was priceless. When I stopped by later to check on her, she said she was angry that I had written about her. More than anything, she said, she wanted to be left alone.
But Edith, I said. You're a folk hero. I showed her some of the 200 e-mail messages I'd gotten from readers, some from as far away as Seoul, South Korea. They hailed her for valuing something other than money. For being a lone holdout against relentless Seattle yuppification. "She's about the last thing left with any soul around here," said a typical one.
That's when she invited me in. Turns out she had gotten 60 similar letters, some hand-delivered with flowers. As she showed them, she dismissed all the fuss as hooey.
"I'm no hero," she said. "I meant it. I just want to be left alone." Edith died Sunday, at 86. She died in the tiny cottage she had refused to leave, not for a million bucks. "She got what she wanted," said Charlie Peck, a longtime friend. "She wanted to die at home, in the same house, on the same couch, where her mother had died. That's what she was so stubborn about."
Thursday, June 19, 2008
The Future of Class-of-One Claims
This is my third and final post on Engquist v. Oregon Dept of Agriculture, the class-of-one equal protection case the Supreme Court decided last week. (Previous posts are here and here .) My first post focused on the logic of the Court's equal protection analysis in finding the class-of-one theory inapplicable in the government employment context, and my second focused on Engquist as a government employee case. (By the way, Paul Secunda, who studies the intersection of workplace law and con law, has posted his thoughts on the case on the Workplace Prof Blog here and here. Indirect self-promotion alert: Paul's second posting comments on my second posting here on Prawfs.)
What I want to focus on here are the implications of Engquist. It seems clear that class-of-one claims, even those alleging vindictive or malicious government action, will no longer be cognizable in the government employment context. I might be wrong about that if lower courts are willing to distinguish Engquist on the grounds that in Engquist there was no "objective standard" against which to judge the reasonableness of the supervisor's employment decision. So, assume an employment decision where employees are by and large treated according to a particular rule, but then one employee is treated more harshly than the rule would suggest. This places the hypo squarely within the Engquist Court's description of Olech, yet the Court expressly states that "the class-of-one theory ... does not apply in the public employment context." Presumably this statement from the Court will control and will in fact defeat any class-of-one employment claims; still, it might be interesting to see if a willful lower court judge works with the tension in the Court's opinion.
More likely, I think, will be non-employment cases that potentially raise some of the concerns the Court found to characterize class-of-one claims in the employment context. Zoning cases come to mind. Here's a key sentence from Engquist: "There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations -- at least not with regard to easement length, however typical such determinations may be as a general matter." Significantly, later the Court cited such "subjective, individualized determinations" as exactly the sort not amenable to analysis under a class-of-one theory. This to me seems a hint to the lower courts (and government defendants) in zoning cases to distinguish Olech on that ground. Because a lot of zoning decisions are in fact based on facts unique to the affected parcel (I discussed this in an article from last year) this statement in Engquist may constitute an invitation to make equal protection off-limits to most challenges to zoning variance decisions.
I suspect there are other categories of government decisions that will fit within Engquist's description of subjective, individualized decisions to which the class-of-one theory is inapplicable. On the other hand, I also suspect there's no bright line separating those decisions from the type of decision in Olech that is amenable to a class-of-one claim. In Olech there was a letter from the village to the plaintiffs telling them that the village's policy was to require only the smaller easement that the plaintiffs alleged they were constitutionally due. In future cases does there have to be such a policy in order for there to be the "objective standard" against which equal protection claims can be judged? What about consistent but unwritten practice? Or a formal policy, but one that is only inconsistenly enforced?
There are lots of permuations here. Interestingly, and maybe perversely, the Court's approach in Engquist -- to cut off such claims but on this fuzzy "lack of an objective standard" reasoning -- may encourage the precise litigation the Court hoped to cut back on. Before Enquist, class-of-one claims challenging fact-intensive government decisions were easy for the government to win, since the very fact-intensiveness of the decision made the plaintiff not similarly-situated to better-treated persons. But now there may well have to be litigation about whether the government's policy (however defined) contained sufficiently objective standards as understood by Enquist. In other words, easy, fact-based dismissals may now give way to more difficult, and more costly, litigation over the legal standards at issue. Of course, a court could simply skip the latter question and hold that, regardless of the objectiveness of the standard, the plaintiff was not similarly situated to anyone else, and get rid of the case that way. But in that case the Enquist Court will have accomplished little.
Moreover, in accomplishing little the Engquist Court will have tossed out of court class-of-one claims alleging animus. I made this point in my second post, but I'll close with a repetition: if there are any class-of-one claims that deserve to be heard as a matter of doctrinal logic, then I would think claims alleging "a bare desire to harm" the plaintiff should be among the survivors. Such claims fit with the Court's rational basis-plus cases from the 80's and 90's, and are consistent with equal protection's basic insistence that government singling-out (of which class-of-one cases are the most egregious example) should be at minimum supported by some appropriate government interest -- or at least not supported only by "a bare desire to harm" for harm's sake.
How Many Law Schools Do We Need?
I can’t resist flagging How many law schools do we need?, from the The Buffalo News. The article charts reaction to the State of New York’s decision to set aside $50 million to support three new law schools (to be affiliated with St. John Fisher College, SUNY Stony Brook and SUNY Binghamton) and picks up on many of the themes in September’s Wall Street Journal article lamenting the plight of un- or under-employed, debt-ridden law school graduates.
Most notably, the article includes some remarkably frank quotes from the local legal community (some of whom have ties to the University of Buffalo Law School, which could face competition for funds and/or students from the proposed state schools):
* “There is no room, or reason, to create struggling law schools, which will produce mediocre attorneys.” Makau W. Mutua, dean, University of Buffalo Law School.
* “We don’t need more law schools. . . . We may need better-trained lawyers, and brand new law schools aren’t going to provide better-trained lawyers.” Cheryl Smith Fisher, outgoing president, Bar Association of Erie County.
* “Creating just another law school that was not a well-regarded one, or not an upper-tier law school, would not necessarily benefit this community, and might well dilute the quality of the profession.” Thomas G. Smith, president, Monroe County Bar Association.
These comments seem to go beyond a now-familiar critique -- that increasing numbers of law school graduates and a tightening economy make it difficult for graduates of lower tier schools, many with astronomical debt, to find good work -- by further suggesting that lower tier schools can be expected to produce subpar attorneys. I pass no judgment on this proposition but note that, if accepted, it somewhat changes the debate. If the only issue is that law schools are producing too many able attorneys for the market to absorb (or absorb at salaries commensurate with law school debt), then making sure that applicants are provided with a realistic assessment of their employment prospects would (as suggested by the WSJ) seem to be a reasonable response. However, if an underlying issue is that law schools that produce unqualified graduates are proliferating, then stiffening accreditation and/or bar standards might also be necessary to address the problem.
Just a few days ago, I was discussing a mutual friend with a former colleague. The latter was astonished by our mutual friend’s Christianity: “What’s up with that?!” he exclaimed, expressing bewilderment and even nervousness at the thought that a well-regarded – indeed, by academic standards, famous – professor could believe in the existence and beneficence of an omniscient and omnipotent God. If was as if our Christian friend had declared that the world was flat or was dabbling in alchemy. My former colleague even worried that, if a serious academic could believe in God, he was capable of believing in, or attempting, anything -- attempting to walk across the East River unaided by a water taxi, gunning down students in hallways, speaking in tongues at a faculty meeting, you name it.
Admittedly, my former colleague is an extreme case, but I have more frequently encountered less intense versions of what I will call “Theophobia” – the academic’s irrational fear of, or intense discomfort around, theist and, in particular, Christian, beliefs. Theophobia does not have a DSM designation (yet), but I tend to think that it mimics many of the characteristics of paranoia about gay and lesbian couples: It seems to driven by unfamiliarity with anything except the crudest caricature of the object of horror, derived from distant rumors of bizarre and violent behavior in a strange faraway place (for homophobes, say, the Castro; for theophobes, perhaps Lubbock, TX or Colorado Springs, CO). Secular academics typically do not know many religious believers -- especially not many overly devout Christians -- and their isolation leads to the most naively lurid fantasies about what religious belief entails. (The growth of conservative law schools -- Ave Maria, Pepperdine -- is calculated to exacerbate this segregation with the consequence that secular academics will be even more isolated and more naïve about religion)
Of course, some would dispute that theophobia is truly phobic. Religious belief does genuine harm, they would argue, and therefore, it is rational to be wary of it. Following the jump, I’ll offer my own reasons for why fear of religious belief is indeed phobic and, to that extent, undesirable.
I say that theophobia is irrational, because there is no obviously persuasive reason to believe that religious belief as such has any more harmful consequences than lack thereof. True, religious believers have done some horrible things in the name of God. But there is no obviously persuasive reason to believe that the body count attributable to religious belief is higher than the death toll from whatever ideology one wishes to ascribe to Stalin, Pol Pot, Idi Amin, Hutu Nationalists, Hitler, Mao Tse Tung, or any number of other despots motivated by secular ideologies. (Yes, I know Hitchens & Co. disputes that this string of despots killed for the sake of secular ideologies, mostly by gerry-rigging the definition of “religion” to include beliefs like Nazism. But, using the same looseness of definition, I can claim Stoics, Epicureans, even diehard Rawlsians -- yes, there are such people -- among the religious believers).
Suppose one takes God to subsist rather than exist, as an intellectual construct akin to pi or imaginary numbers? What harm can come from guiding one’s life by the supposed judgments of the being that Adam Smith called “the impartial spectator” – a perfectly wise judge with perfectly accurate information about your motives and actions? I can think of worse heuristics. The fact that someone takes this heuristic to be ontologically "real" in some sense strikes me as utterly harmless, whatever its merits as a philosophical position. Yes, one could imagine that religious believers might ignore the welfare of the secular world in favor of the eternal one. But one can also imagine religious believers who ignore their secular welfare out of obedience to God’s command to value the secular world. If what you need is passionate altruism, my bet would be on the theists: It is not easy to imagine a rational self-maximizing welfarist throwing himself on a grenade for the sake of a world that, from his point of view, will cease to exist at the moment of detonation: What’s in it for him, after all?
I do not wish to enter into the tired controversy about whether atheism or theism is more conducive to ethical behavior. I want only to suggest that this controversy is tired precisely because there is no obvious answer to the question inspiring it. One can wrangle forever about the relative merits of theism and atheism without reaching any firm conclusion, which is precisely why it is irrationally phobic to have an intense fear of theism on this score. Accept such a belief or reject it as you please, just as you might accept or reject any number of other beliefs that are not provably true or false – Raz’s argument against anti-perfectionist liberalism, Derek Parfit’s theory of personal identity, or the fatalism that the NY Yankees will collapse again this baseball season. But do not panic around a Christian (or a Muslim, Jew, Hindu, etc).
How widespread is theophobia among academics? I cannot say for sure -- I've only casual anecdotes to guide me -- but I suspect that, whatever its prevalence, it is on the decline. Atheism’s fatal error was to go middlebrow. When the books of Dawkins and Hitchens became bestsellers, their ideas lost several points in the academics’ stockmarket. Intellectual pride is the academic’s signature sin (oops – I mean failing), and few academics want to be associated with an ideology tied to the vulgar laity. Moreover, I think that there is a powerful case that God, whether He exists or not, has historically had the better writers on His side: Who would you rather read, after all – Dawkins, Hitchens, Bradlaugh, Paine, d’Holbach and other (semi-)atheist writers, or Pascal, Kierkegaard, Locke, Unamuno, Donne, Dante, Milton, and Flannery O’Connor?
Of course, I might be wrong about the prevalence of theophobia among academics: I’ve only my very anecdotal experience to go by. (If anyone out there can confirm or disconfirm my sketchy suspicions, I’d be grateful). But even if theophobia is on the wane, it is still worthwhile to hasten its demise. After all, change is difficult, and you have to want to change.
Wednesday, June 18, 2008
A Thought Experiment on Same-Sex Marriage
In honor of yesterday's momentous events in California, I thought it would be appropriate to post to a wider audience a question I sometimes ask my students to prompt a discussion of the proper role of constitutional courts.
After the jump, I offer a very plausible "history" of the evolution of same-sex marriage (no fighting the hypothetical, please!). The question for those who want to play along at home is, in this hypothetical universe, did the courts (writ large and over the course of the entire period 1995-2025) (a) play an appropriate role in the evolution of our institutions; (b) exceed their proper judicial role; or (c) fall short of living up to their institutional and constitutional responsibilities?
(1) The events up until now happen as in real life (including the Vermont, Mass, and California decision, the adoption of civil unions in a handful of state, DOMA, etc).
(2) Later this year, the Connecticut Supreme Court joins Mass and Calif, while voters in Calif narrowly reject a state const amend to overturn the decision.
(3) In the next two years, NY and a few small states adopt same-sex marriage through the legislative process, while another half dozen states decide to recognize out-of-state same-sex marriages. In 2010, Congress repeals the portions of DOMA that prohibit the federal government from recognizing same-sex marriages.
(4) Between 2010 and 2020, another 20 states adopt same-sex marriage, most through legislation, but some by court decision. Sometime late in this period, the federal government by legislation adopts the rule that for the purpose of tax law, employee benefits, etc., it will recognize duly entered same-sex marriages. The U.S. Supreme Court does not enter the frey on gay marriage, but, in other contexts, hands down a series of decisions strengthening constitutional protections against discrimination based on sexual orientation.
(5) By 2020, 75% of Americans believe that same-sex marriages should be recognized. Proponents of same-sex marriage begin a litigation campaign to establish that the federal constitutional right to marry extends to same-sex marriages. In the face of evolving opinion at home, national pressure and the threat of litigation, another dozen states permit same-sex marriage (most be legislation, a few by court decision), bringing the total to 38.
(6) After five years of posturing, conflicting lower court decisions, and false starts, the Supreme Court in 2025 holds that the Constitution prohibits states from limiting marriage to opposite-sex couples, invalidating the remaining 12 state laws.
"A Bunch of Woofing"
The Detroit Free Press reports this morning on the continuing debacle involving the Detroit City Council's attempt to remove Mayor Kwame Kilpatrick as a result of a series of alleged improprieties while in office.
The city's Law Department (raising the question, for another time, just who is the client) has hired Wayne State Law Professor Robert Sedler (left), who is filing a lawsuit on the mayor's behalf, claiming, as I understand it, that Robert's Rules of Order (the real ones, not Professor Sedler's) require a two-thirds and not a majority vote to approve removal proceedings.
The council's independent lawyer has obviously been bamboozled by the fact he's litigating with a professor (Professor Selder holds the Gibbs Chair in Civil Rights and Civil Liberties) into thinking that it's a philosophy department faculty workshop. According to the Free Press, attorney William Goodman "called that argument 'hogwash' and derided Sedler's news conference as 'a bunch of woofing.'"
The Alt-Neu clash of anti-discrimination and free exercise
Update: See bottom of post for additional notes.
Over at the Volokh Conspiracy, Dale Carpenter has an excellent post on the new tactic some opponents of same-sex marriage are taking: claiming that SSM will impair the free exercise rights of individuals and faith groups. Carpenter seems right in noting that the fact of same-sex marriage is doing little work in motivating most claims of infringement of free exercise. For the most part, even if SSM were not recognized, many of the persons or entities would still be claiming their free exercise rights have been threatened. Thus, the mere fact of SSM's newfound recognition in various places serves as an opportunity/springboard for repeating earlier claims of conflict between anti-discrimination laws and free exercise.
Like Carpenter, I'm strongly in favor of SSM and rights against discrimination on the basis of sexual orientation more generally. And at the same time I am broadly sympathetic to robust free exercise claims. So the conflict is not an easy one to resolve, especially as religious institutions participate in broader swaths of civil society through the establishment of schools, hospitals, adoption agencies, etc.
Carpenter abjures from trying to find a broad principle or strategy to help resolve these conflicts when they arise. I'm somewhat leery of ad hoc casuistry and thus tempted to find a (normative if not constitutional) distinction or set of distinctions that would create some predictability and sense here. My view is that, in almost all cases, sexual orientation is about as morally irrelevant as the race of a person. Thus virtually any situation where race-based discrimination should be prohibited should be grounds for application of the same norm against discrimination based on sexual orientation. Some applications and grounds for holding this view appear after the jump.
The examples below are culled from Carpenter's post. If I'm right that sexual orientation is as morally irrelevant a basis to discriminate upon as race is, then the person or entity claiming infringement of religious freedom should lose in all these following situations. However, in some situations not described below in the cases, I think it's wrong for the state's anti-discrimination norms to intrude (which is different from saying that it's morally permissible to discriminate based on race or sexual orientation). Thus, if someone refused to date a white person or take a gay person into their home as a room-mate, then that should be permissible since we have good reasons for restricting the reach of the state's power.*
What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies). Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.
But there is at least one problematic conflict that Gallagher alludes to her in piece in NRO, and this is an example of a conflict that does arise with SSM that doesn't arise with antidiscrimination more generally (and it's something Dale should probably discuss): whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).
[2d Update: Actually, upon Rob's prodding and reflection, I'm not sure I was right to suggest that anti-discrimination norms should trump a refusal to perform SSM in the Church. Unlike in Bob Jones, which involved application of anti-discrimination norms to a university -- and therefore as what Rob calls "paraministry," and what I called earlier the empire of influence -- the refusal to perform SSM occurs as an aspect of the core private space and function that should remain relatively inviolate from the state's intrusion. So I think this is consistent with my earlier view about having some space free from state intrusion.]
That said, my tentative sense is that tax-exempt status is something that should probably be revisited more broadly. In this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. Taking the status away leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else. I'm not so troubled by that, but I'd also think that removing tax-exempt status for a whole cluster of third-sector organizations is appropriate, at least in part to blunt the charge that the state is granting important privileges to faith-based organizations based on viewpoints congenial to supporters of the anti-discrimination norms. [I've lightly edited this paragraph.]
*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.
*Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.
*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian.
*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.
*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple's legal fees. The photographer is appealing.
*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.
I should add parenthetically that I was both surprised and a bit disappointed by the position taken by the American Jewish Congress' general counsel in yesterday's LA Times. That said, I think it's a mistake to read that op-ed as evidence of that person's (or his organization's) straightforward opposition to SSM. Rather, contra Dale, I think that the op-ed can be read as simply highlighting some of the predictable conflicts and residual costs associated with SSM.
In any event, kudos to Dale for writing such a thoughtful post. It's been a while since I've taken the time to mull some of these conflicts so I'm grateful for the provocation. I'll be curious to hear how others on this blog who are sympathetic to free exercise claims approach these issues normatively.
Update: Rob Vischer at Mirror of Justice takes me to task. He first argues that civil society access should not require adherence to antidiscrimination norms. He then challenges my willingness to strip tax-exempt status from organizations not willing to abide by antidiscrimination norms, and my willingness to strip tax-exempt status more broadly. I realize that liberalism succeeds or fails in part based on recognition of a public/private boundary. The question then is where does this boundary lie. And this issue ultimately informs the resolution of both points Rob makes.
In the first point, Rob asks:
I agree with Dan that access is important, but the universal enforcement of anti-discrimination norms outside "churches and homes alone" seems more concerned with the intrinsic value of the anti-discrimination message than with the instrumental value of access. E.g., if 98% of colleges and universities admit students and hire faculty without regard to sexual orientation, why should our concern with "access" force a particular religiously affiliated college to stop discriminating on the basis of sexual orientation (or race, for that matter)? If there are 5 adoption agencies placing kids with same-sex couples, why should Catholic Charities be compelled to do so? Does access have to be universal in order to be meaningful?
It would seem odd if the answer to this question turned on empirics alone: for I can simply reverse the scenario and ask Rob, if civil society reflected a deeply Orthodox Jewish or pious Catholic approach, and there were only 2% of the colleges and universities that abided by antidiscrimination norm, would that be a sufficient preserve of access?
To my mind, that's what the West was like in most places prior to the 20th century (politically) and the 17th Century (philosophically). So these are real questions, and I think I'd rather side with an antidiscrimination norm in the public square coupled with a state that left people alone in their churches and homes. I recognize that it's an imposition to draw these lines against faiths that see themselves as kehillot, or communities with various forms of institutions, and don't view themselves as existing simply in the minds of its adherents.
But maybe the answer should turn on empirics too: perhaps if there's a sufficient mix of views in the public square and the marketplace then there's no instrumental reason (in the sense of furthering access) to insist on the anti-discrimination norm. The question I'd ask Rob and those sympathetic with his view is: how do we design institutions so that they can prevent the mix from being too dominated by one religious worldview especially in relatively homogeneous societies?
As to Rob's second question, I really think this is just about which baseline we are operating with. As I wrote him, I think invoking Justice Powell in Bob Jones does no more than confirm that it's basically an endowment effect (the religious organizations currently have the entitlement of not having to pay taxes) that informs/distorts the perspective here. Requiring organizations to pay taxes certainly doesn't strike me, contra Powell, as "an indispensable means of limiting the influence of government orthodoxy on important areas of community life." Rather, it's a way of recognizing the various pro-social benefits most of these institutions do for society. Requiring them all to pay taxes puts them all on the same footing with each other in the competition for supporters and adherents. Requiring some to pay taxes because they are violating antidiscrimination norms puts them on the same footing as all the private individuals who harbor racist or anti-gay beliefs too. That doesn't strike me as the end of a liberal order. [But, for reasons I hope I clarified above in my update, the situation of refusal to perform SSM in the Church shouldn't be a basis for stripping tax-exempt status.]
*One distinguished classmate from law school, now teaching at one of the finest law schools in the South, once argued that there are good reasons for extending anti-discrimination norms even into the market for love such that personal ads should be cleansed of racial preferences; I haven't bought the argument ... yet.
Tuesday, June 17, 2008
Laptops, Internet, and Other Issues of Deportment
Fiddling with my fall syllabi for my Securities Regulation and Agency, Partnership & LLC classes this morning, and here's the current draft of the text on these subjects:
The use of laptop computers in class for things other than taking notes or looking at the statutes has consumed many electrons in the law school academic blogosphere and elsewhere. (The University of Chicago Law School cut off its wireless access to classrooms.) Consistent with my pedagogical philosophy generally, I think it is futile to stand in the way of the technology tsunami. It’s also anachronistic and, honestly, beneath me to do anything so draconian as to force students to write instead of type (I work almost exclusively on a keyboard). I am going to work very, very hard to teach this complex material in a way that makes sense and highlights the theory and practice in a digestible way. I hope you use your electronic window to the world responsibly while in class.
The only point about misuse of the Internet in class that has had much traction with me is its ability to distract others in the class who see what you are doing over your shoulder. I would consider it well within the range of acceptable behavior to say politely “would you mind not surfing where I can see it? It’s really distracting.” The nature of the response may tell you something about your classmate's future as an effective lawyer (at least in my view).
That brings me to a more general point about deportment. As far as I’m concerned, you are lawyers now. That means you are fully accountable to your classmates, yourselves, and me as adult members of the legal community. As you may have heard, I like to have a lot of fun in class (yes, I wore a costume to class on Halloween last year and sang a song about one of the cases to the tune of the Theme from the Beverly Hillbillies). But that doesn’t subtract from the overall seriousness (not solemnity) of the enterprise. I spent many years supervising lawyers as a partner in a law firm and as the general counsel of a large company. I don’t have much patience for the bureaucracy of enforcing compliance even with my own rules, like on-call and Internet-surfing; in my prior life, that behavior always struck me as infantilizing my colleagues. This is not the place for me to expound on my view that an internalized sense of duty and obligation is as much a civilizing influence as laws and regulation. If you need a more immediate incentive, however, I can tell you that what we say and do in class is a central part of what I test on, and you miss it at the peril of your own potential grade.
Talk about futility! This is an example of "pragmatic idealism" (cf. Posner's pragmatic skepticism) which means that sometimes (but not always) you refuse to abandon reasoned moral conclusions even though you can justify, from others' misbehavior, your own conduct contrary to those conclusions. A corollary is the "sucker conundrum." Back in the late 1980s, when my law partners were claiming 90% of their cars for business use tax deductions even though they didn't have the required mileage records, I had to choose between compliance with the rule and being a sucker if I didn't do the same thing. The consequence of being a sucker here is the possibility that there will be students who say, in effect, "stick your morality and your norms and your guilt trip someplace where the sun never shines; I'm paying for the education and I'll do what I want." Yeah, I know. Been there, done that.
Monday, June 16, 2008
More on the Class of One: Enquist as a Workplace Case
Last week I posted on the Supreme Court's decision in Enquist v. Oregon Dept of Agriculture, where a six-justice majority held that government employees could not challenge employment decisions as equal protection violations under the "class of one" theory of Village of Willowbrook v. Olech. That posting concerned the logic of the Court's equal protection analysis. But Enquist is as much a workplace case as a constitutional law case. Indeed, the majority frames its equal protection analysis by reference to the distinction between government's power as a sovereign and as an employer. The opinion (by Roberts) cites Fourth Amendment and Due Process cases, and relies especially heavily on the employee speech cases such as Pickering and Connick. From those cases it distills two principles: (1) the familiar "balancing" of the employee's constitutional rights against what the Court calls "the realities of the employment context;" and (2) whether the employee's right "implicates the basic concerns of the relevant constitutional provision."
My question is about the applicability of these precedents, especially Pickering and Connick. My very rough sense of those cases is that avoidance of litigation is not itself the government interest that needs to be balanced against the employee's speech rights. Rather, it's the interest in running an efficient office -- which in the speech context usually means an office free of insubordination. So too, for that matter, with search and seizure cases: in those cases I would think the government's interest is in being able to control the physical workplace.
In Enquist I would think the strongest argument for an analogy is that the government has an interest in making what the Court calls "subjective" and "individualized" decisions that simply don't allow the kind of "fit" analysis that is a staple of equal protection review. I might be splitting hairs, but that sort of justification doesn't seem grounded in the actual day-to-day needs of government-as-employer. Of course the Court also notes that a ruling for the plaintiff would conflict with the doctrine of employment-at-will. Again, though, what is it about the day-to-day operations of government that requires adherence to that doctrine (especially given how much erosion employment-at-will has suffered)?
I freely confess I don't know much about workplace law, so maybe I'm missing something obvious about either that body of doctrine or the intersection of that doctrine with constitutional rights law. But my intuition tells me that there's a difference between government saying "sometimes we need to be able to punish employees based on what they say" and "sometimes we need to make arbitrary, even vindictive, termination decisions." The first statement seems closely tied to day-to-day efficient operations in government offices, while the latter seems closer to a simple request for legal immunity.
Now, the Court's opening discussion in Enquist does cite one case that seems somewhat more on point -- Bishop v. Wood, where the Court held that procedural due process did not extend to a police officer's claim that he was fired based on an erroneous claim that he committed malfeasance on the job. Enquist cites Bishop's statement that due process "is not a guarantee against incorrect or ill-advised personnel decisions." But that statement seems to be complete dicta given the issues Bishop had to decide.
Ultimately, maybe the formal logic doesn't matter to the Court -- what matters is that the conservative majority is on a campaign to close off the government workplace as a locus for the exercise of all but the most basic constitutional rights. I'd love to hear the opinions of workplace law experts on that. At the end of the day is that the best, or the only, way to explain Enquist? Does it go beyond Connick and Pickering and the Fourth Amendment cases in terms of its reasoning?
The Ambiguity of Gentrification
There was an interesting story in Friday's NY Times concerning gentrification in Harlem. The whole article was worth reading, but I was struck by this passage:
While welcoming safer, cleaner streets, longtime residents have found themselves juggling conflicting emotions. And those who enjoyed a measure of stability in the old Harlem now long for the past — not necessarily because it was better but because it was what they knew.
“The majority of the stores, the 99-cent stores, they’re gone,” said Gwen Walker, 55, a longtime resident of the General Grant Houses in West Harlem, giving one view. “The Laundromat on the corner is gone. The bodegas are gone. There’s large delis now. What had been two for $1 is now one for $3. My neighbor is a beer drinker, and he drinks inexpensive beer, Old English or Colt 45 or Coors — you can’t even buy that in the stores. The stores have imported beers from Germany. The foods being sold — feta cheese instead of sharp Cheddar cheese. That’s a whole other world.”
Gentrification, it turns out, can have an odd psychological effect on those it occurs around. No one — almost no one — is wishing for a return of row upon row of boarded-up buildings or the summer mornings when lifeless bodies turned up in vestibules, or the evenings when every block seemed to have its own band of drug dealers and subordinate crackheads. But residents say they do miss having a neighborhood with familiar faces to greet, familiar foods to eat, and no fear of being forced out of their homes.
In one of my current writing projects, Land Virtues,
I discuss some of the problems with the Demsetzian conception of
land-ownership. In Demsetz's words: "[i]f a single person owns land,
he will attempt to maximize its present value by taking into account
alternative future time streams of benefits and costs and selecting the one
which he believes will maximize the present value of his privately-owned land
One of the problems with this view of the dynamics of land-ownership is that, for most owners, land is not merely an investment. Consider the largest group of landowners in the United States: homeowners. Homeownership certainly is an investment, and homeowners are acutely interested in the performance of this investment. But the home is also the means by which owners obtain a number of nonfungible (and often social) goods that homeownership makes available to them. When the value of a home increases in ways that diverge from the home's ability to generate these nonfungible goods, homeowner behavior becomes particularly hard to interpret without departing from the Demsetzian framework. One place we see this happen over and over again is in the gentrifying neighborhood.
Where property values increase for reasons that may undermine the ability of a property to provide its long-term owners with the communal goods that come from owning a home in a particular neighborhood, an approach that narrowly focuses on land values will predictably fail to grasp the complexity of the situation.
Besides gentrification's obvious impact on low-income renters (e.g., the fear of being pushed out of their homes, which as referenced in NY Times story above), its controversial status derives in part from the fact that increased property values are typically accompanied by changes in neighborhood character (for better and for worse), by higher costs of living for longtime community residents (including homeowners, many of whom have low incomes), and by the fact that these higher costs may or may not be offset by improvements in the original residents’ perceived quality of life. Many of these changes hit homeowners and renters alike, and the fact that owners (like renters) value at least some of the prior neighborhood traits for their own sake makes their relationship with land values far more complicated than the Demsetzian theory allows.
The New York Times article hits on several of these forces -- the cultural shift in the sorts of foods (and other products) being served and sold in local stores and restaurants. These are the sorts of concrete dimensions of the day-to-day experience of a neighborhood that people aggregate under the rubric of neighborhood "character." The Demsetzian theory, which predicts that owners will reflexively welcome (even seek out) increases in their land values, struggles to explain the ambivalence that many people, including owners, feel towards these sorts of shifts. The elderly in particular are likely to value neighborhood stability over increases in the value of a home they may hope never to have to sell, and it is (I think) for this reason that the elderly are so prominently represented among holdouts in land assembly situations.
Numerous social scientists studying gentrifying neighborhoods have commented on the ambiguous significance of increasing property values in this particular context, even for homeowners. Whatever the ultimate merits of gentrification in any given instance, the methodology of the narrow investment conception of landownership, focused as it is on the bottom line, completely misses the complexity of this story. Instead, it reduces the analysis of neighborhood transformation into a simple tallying of property values before and after.
Kant on Golf
Today is my birthday, which means three things. (1) My birthday often falls on, or abuts, Father's Day. (2) Everybody in my family always lets me watch the last round of the U.S. Open on Father's Day. (3) Because it's my birthday, and because there's an eighteen hole playoff today, I am being treated to a second day of getting to watch the golf. But with only two players, there's a lot of time between shots, which means, as when I'm playing, there's too much time to think.
No sport has a thing about rules like golf. One of the funniest books I've ever read, Missing Links, by Rick Reilly, turns on the rule about testing a hazard. My son and I were discussing yesterday what would happen if you hit a golf ball into a old half grapefruit lying on the fairway. This raises an interesting philosophical issue. Let's take four things into which a ball might be hit:
- An old half grapefruit.
- A dead animal's mouth.
- A live animal's mouth.
- A live person's lap.
The default rule is 13-1, which says that unless otherwise provided in the Rules, the ball shall be played where it lies. Let's work first through the easier cases, the grapefruit and the live human. The grapefruit is probably a loose impediment under Rule 23, even though we need the rule of ejusdem generis to get us there. "'Loose impediments' are natural objects such as stones, leaves, twigs, branches, and the like, dung, worms, insects and casts or heaps made by them. . . ." We are assuming the ball is in the grapefruit. You could move a loose impediment if it didn't move the ball, but on our facts, it would move and cause a penalty. The other question is whether the grapefruit is an obstruction because it's "artificial," in which case you'd get relief. I think a old tin can would be artificial, but I'm not sure about a grapefruit if it didn't happen to blow off a tree onto a fairway in Florida.
The human lap is also easy because the human is clearly an "outside agency." An outside agency is "any agency" not part of the match, and the definition says it includes four kinds of people: referee, marker, observer, or forecaddie. This raises the Kantian issue, which we explore after the jump.
The last sentence of the "outside agency" definition is highly enigmatic. "Neither wind nor water is an outside agency." Golf began in Scotland, and this seems somewhat Druidic to me. Or at least it makes the rule clear on any course at which They Call the Wind Mariah. In any event, agency suggests autonomy or will in the Kantian sense, so it seems to me it excludes the grapefruit.
If we are talking agency in the sense of will, the dead animal ought to be a loose impediment. The really tough question is whether a live animal is an outside agency. I'm presuming it is, given that the golfing gurus have seen fit to tell us that wind and water are not agencies.
Well, that's it for today, except to make the observation that Rocco Mediate looks like Virgil Sollozzo, but happier. And Fred Schauer, if you're out there, feel free to chime in.
Economics and Ideology
What economics has done is to take the models of the supply and demand of consumer goods and apply them to the supply and demand of labor. This, I believe, is fundamentally wrong-headed. Human labor and consumer goods are categorically different, and it’s a big mistake to treat them as if they were interchangeable. There are a slew of institutions, norms, and other features of labor markets that do not apply to product markets.
When I first read that paper by Murphy and company, I was struck by the passages in it about “the law of demand” and how you can’t “repeal” the law of demand. It was so literal! Now, I should mention that I’ve taken one of Kevin Murphy’s classes and I am familiar with his work. I have great respect for him. He is a first-rate economist, a brilliant econometrician, a gifted teacher, and, so far as my limited dealings with him go, a really nice guy to boot. But he is a University of Chicago economist in every sense of the word. I’ve heard him speak, and he is quite contemptuous of the idea that regulation can ever improve anything, or that the government can ever do a better job of anything than the free market.
I also believe, based on his writings, that Kevin Murphy, like all too many economists, takes the models literally. He is so enamored of them that he sees them, I think, not as tools for understanding, but as God’s revealed truth, handed down to Moses on stone tablets. He’s an economic fundamentalist, if you will. Fortunately, though, the old-fashioned theories about labor markets that Murphy and others hold are gradually being displaced.
Linguistic Communities, Intellectuals and Dilbert
Several weeks later, I am still pondering the "anti-intellectualism" debate Rick Hills stirred up, and some of the comments to my post on the subject. What got me going this morning was reading the introduction to Stephen Finlay's Four Faces of Moral Realism, which Larry Solum was kind enough to spotlight today. This is by no means a criticism of that article, which is a helpful summary, but a reflection of my own internal translation of the jargon (are moral principles real or unreal, natural or non-natural, reducible or irreducible?) into conversational English. It's also not a criticism of the jargon (which I think I do understand), but an observation on the "insider/outsider" nature of it.
I've been the member of several linguistic communities, and I'm pretty sure that the only reason intellectual jargon gets this kind of attention from intellectuals is that intellectuals are the ones who think about it by the very nature of being an intellectual. When business jargon gets this kind of attention, it results in Dilbert. (There is, of course, the occasional cross-over, like this parody of the Harvard Economics Department Recruitment video. The funnier "outtake" version I see has been removed from YouTube.)
For example, when I moved from the law firm to an in-house job at AlliedSignal, I kept a log of business jargon and acronyms in my Franklin Planner as a kind of curiosity. The fact is, you almost couldn't understand what was going on without something like it, even though there was very little in the business that was otherwise not reducible to common parlance. Some areas were more difficult than others. To this day, I cannot deal with any discussion of derivative investments (hedges, options, puts, calls, straddles, swaps, swaptions, etc.) without slowly and methodically translating it back into plain English. I've long since lost the Franklin Planner, and the list is gone, but here are a few:
The Deck: (n) the stack of PowerPoint slides sitting in front of everybody at the meeting.
STRAP: (n) the Strategic Plan. This was all-consuming for most executives of the company from about April through the end of July, culminating in a Deck that was about three inches thick, and which was the subject of week-long turgid meetings in which the managers of individual businesses explained EVERYTHING they knew about anything, usually in the hope that senior management would leave them alone.
Roll-out: (n) the process by which a new initiative is introduced to the organization. Initiatives rolled out by functional departments were generally despised by line management, once they cascaded down. "The roll-out of the required STRAP financial templates will take place on April 5, 1998."
Cascade down: (v) with respect to information, to flow from the higher to the lower rungs of the organization. Generally, it is the opposite of bubble up. This might, for example, include annual OP goals (i.e. the operating income necessary to create earnings to support a trailing P/E that would be attractive enough to cause the sell-side analysts to issue strong buy recommendations. The information in a roll-out might also cascade down.
Bubble Up: (v) with respect to information, to flow from the lower to higher rungs of the organization. Generally, it is the opposite of cascade down. After the annual OP goals set by senior management (also known as deliverables) cascaded down to the SBUs (strategic business units), and the SBUs realized they bore no resemblance to what they had said about the capabilities of their businesses in their STRAPs, questions or complaints might bubble up to senior management. If sufficiently obnoxious, the comments might cause a manager to move from seasoned professional, or even hi-po (high potential) to manage-out in the next MRR (management resources review).
Note the linguistic issues here. Even Dilbert, who makes fun of this stuff, has to do it in plain English so that ordinary readers can understand it. Indeed, is Dilbert to business what anti-intellectualism is to the academy?
A Fascinating Day at the Court for Fed Courts
Two of the three cases in which the Court granted certiorari this morning raise fascinating Federal Courts issues, and should make for interesting topics for next year's Fed Courts classes.
The first is the more famous case -- Ashcroft v. Iqbal, which raises a host of complicated questions about qualified immunity and Bivens.
The second is a case I've blogged about, but has otherwise flown under the radar -- Haywood v. Drown, which raises the constitutionality of a provision of the New York corrections law that diverts all damages suits against corrections officers (including 1983 suits) to the New York Court of Claims, and replaces the officers as defendants with the State of New York. I wrote about the New York Court of Appeals' decision here, and why cert. should be granted here. [Update: As Jason Solomon rightly points out, my earlier coverage misreported the vote in the New York Court of Appeals. I noted that the decision was 6-1; it was actually 4-3.]
Combined with what's already on the docket for next Term, including Pearson v. Callahan (the Saucier v. Katz case), the 2008 Term is shaping up to be a very busy one for Fed Courts folks...