Sunday, November 30, 2008
So Long, and Thanks for All The Fish...
My time here too has come to an end. There are so many interesting things that I wanted to find the time to post on -- I really wanted to add some thoughts, for example, about Proposition 8 and religious liberty. But such marriage-related posting had to be put on hold because of my own impending nuptials, which are now only six days away. (Unless she wisens up before then, of course.)
So I wanted to give a quick but heartfelt shout-out to Dan and all the PrawfsBlawg regulars for having me. Thanks also to those who commented on or emailed me about my substantive posts -- I've now been conscripted by the Northwestern Law Review Colloquy into organizing some essays around the Supreme Court's upcoming decision in the Summum case, which I blogged about earlier. It'll be fun.
So, thanks again. And I hope everyone's Thanksgiving was merry to the extreme.
All the best, Chris
The (Mis)education of America (Lauryn Hill not included)
I hope that the Prawfs community, bloggers and readers alike, are enjoying a lovely holiday weekend.
I’ve been offline for a while, but I have been collecting a few topics of interest, about which I’ll post in the next few days. The first is a report by the Intercollegiate Studies Institute (ISI) chronicling the seeming incompetence of Americans, college educated and not, in relating basic facts in American history. (Chronicle.com subscribers can see a summary here.) The report’s findings are based upon user-provided data from this quiz, which uses a multiple-choice format to inquire as to knowledge of the content of important documents, speeches, and eras in U.S. history. According to the ISI, over 1,700 of the 2,500 randomly selected test-takers failed; the average score was a dismal 49% (overall; the average for college graduates was also a failing 57%). Elected officials scored even lower, averaging 44%; the statistics about elected officials taking the quiz included such gems as the fact that nearly 1/3 were unaware that the inalienable rights referenced in the Declaration of Independence are life, liberty and the pursuit of happiness. To be sure, it’s a small sample, if a telling one (in a country in which 1/3 of high-school kids couldn’t find Louisiana on a map after Katrina, we perhaps should not be surprised that the branches of government are still a mystery to some). But are Americans really as woefully ignorant as these results indicate (and as an aside, would most fail the new citizenship test)?
Maybe, although I’m not sure this quiz is the best barometer. In reviewing it, I was struck by a couple of things. First, the last several questions are searching for ‘knowledge’ that is unrelated to civics lessons as one might define that concept—the study of U.S. history, government, and the rights and duties of citizens, for example. Second, those questions are also arguably geared toward a particular mindset or ideology: One question asks about the effect of international trade and specialization; another inquires as to what ‘fiscal policy combination’ is most likely to be used to stimulate the economy in a recession. I’m guessing that at least a few reasonable minds would disagree as to the proper responses to those questions.
That said, I do think that one thing the quiz results indicate is the need for consistent, thorough lessons in political history and basic constitutional enumerations at the high school level and, in my opinion, a broader commitment to liberal arts education in the university setting. (I’d also add a global component, but that’s a topic for another post.) Is it a pipe dream to want a bevy of citizens who are well versed in basic facts like the topic of the Scopes Trial? Or is it a professional/personal bias to think such a fact is basic—or that it is something that most Americans should know?
Thursday, November 27, 2008
A Thanksgiving Story
A story in Tuesday's L.A. Times recounts a controversy in a suburb of L.A. about two grade schools' longstanding tradition of the students dressing up as Pilgrims and Native Americans, visiting each other and reenacting the classic Natives-meet-Pilgrims story. That practice has now come under attack by a Native American-heritage parent -- and a professor at U.C. Riverside -- who argues that its demeaning and dehumanizing (her words, according to the newspaper story). The issue was addressed Wednesday morning on a local NPR news station's call-in show, where one woman (again of Native American heritage) recounted her own history of doing these pageants and how they negatively affected her.
I'm curious what people think. Personally I'm a little conflicted. The easiest case seems to be slurs. I can't believe, for example, that the NFL still allows the Washington team to be called the Redskins. I also certainly understand that cultural stereotypes are harmful in all sorts of ways, so even seemingly positive mascots and depictions might be harmful. But I'm not sure what the stereotyping is in this case (that word was used a lot during the radio program discussion I heard). Is it that the kids dressed as Natives were dressed in "stereotpyical" Indian dress? Is that dress historicallly inaccurate, or is the problem that it sends a message about Native Americans today? Note that one of the kids in the article -- a child with some Native heritage -- expressed pride in the Native costume he created. And what message does this classic story send? I would think the Natives come off pretty well in the story; they save the Pilgrims and essentially offer to share the land.
One thing I heard in the discussion was that this story sends a false message about what happened to Natives later on in American history. That's true enough, but is the proper remedy to erase the story, or to supplement it with teaching about what came later? And finally, of course, there's the issue of age-appropriateness. Nobody would think junior high kids should be learning at this level, but is this pageant really a bad way to begin younger kids' learning about the role of Native Americans in American history? Like I said, I'm conflicted on this. I'd love to know what others think, especially anyone who's part or full Native American or who has thought about Native American issues.
Wednesday, November 26, 2008
Just wanted to take a moment to welcome the holiday tomorrow by giving thanks to all the wonderful people who help make up the Prawfs community--readers, writers, and sponsors. It's hard to believe that we've generated over 4 million pageviews in the last 3 years, and indeed that our traffic has spiked over 30% the last six months or so. Amazing. Those of you who have been visiting more frequently as you transition fulltime into the legal academy--please think of Prawfs as the space for you to make your introduction to the academic community this upcoming year.
To my mind, one of the best parts of Prawfs has been the Prawfsfest! workshops in public law and legal theory that we've been doing, lately every six months or so. Thus, I'm grateful and excited to announce our upcoming Prawfsfest! at University of Miami, where we began two years ago. This coming Prawfsfest! (which will take place the week of Dec 8th, just on the heels of Miami's Art Basel show) will feature: B. Jessie Hill, Charlton Copeland, Lesley Wexler, Ben Depoorter, Dave Fagundes, Steve Vladeck, Chad Oldfather, Tommy Crocker, Verity Winship, Howard Wasserman, and myself. Special thanks go to Ben Depoorter for helping me organize it at UM with the strong support from the deans at UMiami. We'll be having another Prawfsfest! at Florida State Law in April--more details on that in the new year.
In the meantime, I hope to see many of you at our traditional AALS happy hour in San Diego in six weeks (details tba), and more immediately, I wish everyone a joyous and restful holiday filled with blessings and innumerable reasons for gratitude.
Prof. Stone, Prop. 8, and church-state separation
An item from the "debates not likely to be resolved anytime soon" file: In this piece, Prof. Stone contends (among other things) that California's Proposition "was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs", and that "[t]his is a serious threat to a free society committed to the principle of separation of church and state."
Now, Prof. Stone and I went back and forth on (pretty much) the same question, a year or two ago, in the context of the Supreme Court's decision upholding the ban on partial-birth abortion. I wrote then that "it is not clear why the claim 'human fetuses are moral subjects and this fact constrains what should be done with and to them' is any more 'religious', or any less 'moral', than the claim 'all human beings are moral equals, regardless of race, and should be treated as such in law.' What's more, even if it were true that the former claim is 'religious' (certainly, for many, it is religiously motivated or grounded), [it's enactment into law] does not violate . . . the 'separation of church and state' that our Constitution is thought to require."
And, here we are again . . . .
There is much in Prof. Stone's piece with which I (and, I would think, most reflective religious believers) agree. For example, we agree -- as it happens, I have good religious reasons for believing -- that, as Greg Kalscheur has put it, there are "moral limits on morals legislation" We (and Pope Benedict XVI) also agree entirely regarding the importance of the principle of "separation of church and state", properly understood.
To invoke this principle's importance though, and even to point to the fact that religious believers were much more likely to support Proposition 8 than were non-believers, does not, in my view, establish the point that Prop. 8 is (putting aside other questions about its merits) an effort to (in his words) "conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do."
As Stone himself writes, "[l]ike other citizens, [religious believers] are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability." How do we know that this is not what most of Prop. 8's supporters believe? Stone insists that religious believers "are not free – not if they are to act as faithful American citizens – to impose their religious views on others", but again, it does not seem to follow from the fact that most of Prop. 8's supporters are religious believers, or even from the fact that their religious beliefs are consonant with Prop. 8, and motivate them to support Prop. 8, that they are trying to "impose their religious views on others."
Let's take it as given that, in a society like ours, citizens should not try to use the law to "impose their religious views on others." How, exactly, do we decide (a) what counts as an "imposition", and (b) what counts as a distinctly "religious" view? It seems to me that the question whether Prop. 8 is constitutional, or advisable, or deeply unjust, is not best answered by trying to pin down the nature ("religious" or "moral"?) of the beliefs it represents.
Tuesday, November 25, 2008
Framing Arguments, an Update, and Good Bye
The time has come for me to bring my guest stint to a close. Before I sign off completely, I want first to note that I've posted an updated, and incrementally more complete, version of my Judicial Process Course Materials here. The new version includes sections on judicial ethics, as well and federal and state judicial selection. I'm well aware that I've got a lot of work to do, and continue to welcome comments.
Finally, I want to close with one last judicial process-related thought. Most lawyers who have done appellate work have had the experience of getting from the court an opinion that seems to resolve a different case. Sometimes a court will overlook an issue completely. Other times it will merely omit reference to certain facts or authorities that, in the eyes of at least one of the parties, are of critical importance. These are but a few variations of what I have referred to more generally as "judicial inactivism."
A few years back I offered up a partial solution. What if, I asked, we gave the parties a little space of their own in opinions? In particular, what if we required opinions to include "framing arguments" - essentially, party-generated statements of the issues before the court? It wouldn't preclude courts from engaging in inactivism. But it might make them less likely to do so, both because it would underscore for judges the importance of being responsive to the parties and because it would make it easier for the public to monitor judicial behavior. It might even encourage lawyers to put a little more care into formulating their appeals. (The full paper is here for anyone interested in learning more.)
I wouldn't mention it if I didn't still think it's a good idea. It's hardly perfect, but on balance it seems to me worth trying.
"Education and Soulcraft"
Paul discussed, a few months ago, Stanley Fish's new and much-remarked book, "Save the World on Your Own Time." The review of Fish's book in a recent issue of First Things magazine, by Gilbert Meilaender ("Education and Soulcraft") got me thinking more about Fish's argument that the task of university teachers is instruction, not formation. "I haven't the slightest idea," Fish says, "of how to help students become creative individuals. And it is decidedly not my job to produce citizens for a pluralistic society or for any other. . . . To be sure, some of what happens in the classroom may play a part in the fashioning of a citizen, but that is neither something you can count on . . . nor something you should aim for."
As a good right-winger, I suppose I should be delighted by a Fishian take-down of hyper-PC modern-university follies and academics' self-importance. Still . . . I cannot deny that, when I reflect on what I see as my "vocation" as a law teacher, I *do* aspire to (among other things) contribute helpfully to the formation of my students and to the integration of their lives. Obviously, self-awareness and humility are required here. Still, am I wrong? (For what it's worth, and for my own "take" on the connection between education and "soulcraft," take a look at this essay.)
Monday, November 24, 2008
So it's the end of the semester again and I'm exhausted. Is it something about 14 weeks that naturally leads us to be spent at the end? I presume not; instead, I presume that it's the knowledge that the semester is coming to a close that makes one more tired. This has got to be due, in part, to a sense of disappointment. It seems like most semesters I begin with big plans for my class, from grandiose ideas about setting up in-class simulations to ordinary good practices such as not falling behind the syllabus. But the last few weeks of the summer are spent polishing that article, the enthusiasm of the first few classes soon wanes, other matters (more scholarship, committee work, home) demand our attention, we start scrimping on teaching -- not just (or even mainly) on prep time but on sitting back and thinking about what we want to accomplish in the classroom. Before too long ... well it's too change anything this semester. Maybe next time. Sigh.
Of course my teaching does get better year by year, as I suspect it does with most profs, at least unless and until they start to burn out. I talk with my students more and lecture at them less. We talk more about how the doctrine impacts what they do as lawyers. And I try to let student comments guide the discussion while ensuring that the basic points get put out on the table, even if it leads to a class that seems more disorganized.
Still, the competing demands on my time have consistently led me to shy away from doing anything really innovative. I used a new casebook this semester. (For any non-profs out there, don't think that's a small thing; it can lead to a major reorganization of how you present the material and even how you test.) But that's really nibbling around the edges of a major pedagogical change.
I worry that incentives in law schools are structured to disfavor pedagogical innovation. Scholarship gets praise, service gets admiration, but good teaching serves in silence, at least officially. You might get good student evaluations for trying something new -- but you also might get them if you're entertaining, or tell war stories, or spoon feed, or don't assign a lot of reading, or never call on anyone. There's no guarantee that innovation gets you high reviews, especially if the roll-out is bumpy. If you're lucky you'll eventually develop a reputation among your faculty colleagues as a great teacher who does lots of interesting things in the classroom. That's a great thing, but in terms of public approval it's limited.
Ultimately, the reward for taking time on teaching is internal. If you're lucky, it's internal to the class -- that is, the class, or a decent part of it, recognizes the good work or at least the effort. But my sense is that more likely the reward is internal to the teacher only; only he or she recognizes a class well taught. So I suspect a lot of us (me included), given our completely understandable motivations, don't put the time there. And when it comes to the end of the semester, the main sense is one of exhaustion rather than something more positive. It's unfortunate, and a disservice to our students. The good news is that it's within our power to change. Maybe next semester . . . .
Honor's Constitutional Moment: Now Downloadable
I posted earlier a link to my new paper, part of an online submission on presidential transitions to appear in the Northwestern University Law Review's Colloquy. SSRN was experiencing download problems earlier, so lots of folks clicked on the abstract without being able to download. It is now available for download. The title is Honor's Constitutional Moment: The Oath and Presidential Transitions. Comments are welcome. Enjoy.
Truth and Reconciliation or Prosecution?
Danielle Citron comments on news reports of the apparent decision by the incoming Obama Administration to pursue an independent commission investigation (a la the 9/11 Commission) of the Bush Administration's counterterrorism policies, including the use of torture and domestic spying, rather than to pursue criminal investigations and prosecutions against administration officials who approved and carried out those policies (potentially made impossible anyway by the chance of President Bush issuing a blanket pardon on his way out the door). And this comes as we see various new hurdles preventing the use of civil litigation to shed light on the administration's abuses, including the grant of retroactive immunity to the telecom companies for their role in domestic spying and the Supreme Court's coming decision this term in Iqbal on the use Bivens actions by terror suspects.
I am conflicted on the question. I recognize the political problems inherent in a new executive coming in and investigating and prosecuting members of the ancien regime. Merits aside, it looks too much like show trials and that is not what happens in a functioning democracy. On the other hand, it seems indisputable that, descriptively, the administration did engage in acts that violated the Constitution and laws of the United States, as well as international law. I categorically reject the "it's time to move forward and not look back" meme coming from many circles (often tauntingly linked to Obama's calls to get beyond partisanship--how can someone who claims to be above party disputes prosecute his political predecessor). In a democracy, there must be a public accounting for government misconduct and abuse of power--or an opportunity for legal processes to determine that, in fact, there was no misconduct or that the conduct was legally justified. And only if we know and make public what misconduct was committed can we ensure that it does not happen again. Not to mention that there genuinely were individual victims of many of the allegedly unlawful actions.
The question is one of choice of process--when do we use the sort of fact-finding, Truth-and-Reconciliation process to present a historical factual record and when do we use criminal and/or civil litigation to discover the truth and to punish or provide individual remedies? At least in popular and political discussions, I have yet to see a good explanation for when prosecution and punishment in the courts becomes inappropriate and should yield to investigatory commissions. It made sense as to 9/11, since the question there was whether governing mistakes were made, not whether laws were broken--any "blame" was political, not legal. It would not have made sense as to the Nazi regime. And I do not recall ever seeing a serious suggestion that the Nuremberg Trials were the wrong approach, that we should not have prosecuted and punished Nazi officials, but instead should have used a T&R proceeding (and no, I am not comparing the Bush Administration to the Nazis , other than to the extent both allegedly violated domestic and international legal rules).
So when is prosecution appropriate and when is a T&R Commission the necessary approach?
Saturday, November 22, 2008
Hillary Clinton and interbranch rotation
It apparently is a done deal that Hillary Clinton will be Barack Obama's Secretary of State--and that we will be hearing a lot from Doris Kearns Goodwin. One of the discussion points during the last couple weeks has been why Clinton would give up the chance to remain in the Senate for life and to amass institutional seniority and broad policy power (following the primaries, several people compared Clinton to Ted Kennedy after his failed 1980 presidential bid, when he settled in the Senate and emerged as a powerful liberal voice) to spend perhaps as few as 3-4 years as Secretary of State.
The assumption behind this discussion is that, having given up her Senate seat, Clinton will never get it (or the other New York seat) back. And this probably is true. Imagine a best-case scenario of Clinton serving as secretary of state for 1 1/2 Obama administrations, until 2014. Her seat, initially filled by an appointee and then a special election, will be filled for a full term in 2012, probably by a Democrat. Charles Schumer, the other New York Senator, will be up for re-election in 2010 and would serve until 2016. Since Clinton is highly unlikely to challenge a fellow Democrat for the seat (baring truly unforeseen circumstances), her Senate career is over.
This is illustrative of the disappearance of what Vik Amar in a 1996 article in Vanderbilt called "interbranch rotation," individuals moving directly from the Senate into the executive branch, especially cabinet posts, then back into the Senate soon after leaving the cabinet. Amar traces this disappearance to direct election of senators under the Seventeenth Amendment. Statistics from 1989 showed fifty people moving directly from the Senate to the cabinet in the first 200 years of the system, forty-one of them prior to the turn of the twentieth century. More significantly, of those 41, 13 returned to the Senate within three years of leaving the cabinet--all before the advent of direct senatorial election. One senator has made the Senate-Cabinet-Senate move since the Seventeenth Amendment was enacted--Philander Knox. He actually made the Cabinet-Senate-Cabinet-Senate move. He was McKinley's and Teddy Rooselvelt's Attorney General, was chosen for the Senate in 1904, left the Senate in 1909 to be Taft's Secretary of State, then was elected to the Senate in 1916. Notably, however, Knox's first period in the Senate (1904-09) came prior to the establishment of direct election; in other words, he left his AG position to be immediately appointed to a Senate seat and only had to run for popular election once. I cannot recall an instance since 1989, prior to Clinton, of a sitting Senator jumping to the cabinet.
Amar argues that the old scheme of legislative appointment allowed for side deals and bargains that made interbranch rotation possible and attractive as an option. A sitting senator could leave the Senate to serve in the cabinet for some time, with an under-the-table deal in place with the state legislature that, upon leaving the cabinet, he would be reappointed to the next Senate vacancy from the state. Amar then focuses on the implications for federalism and separation of powers, particularly how this affects Senate functions in areas such as treaty making and appointments, where the body works directly with the Executive.
But the loss of interbranch rotation has a different implication in defining who is likely to be a successful presidential candidate and how an individual can position herself for a run. Recall that Obama is the first person since Kennedy elected directly from the Senate with no significant executive experience. Rick Hills has argued that the recent spate of former governors elected (Bush II, Clinton, Reagan, and Carter, and going back farther, FDR) and recent candidates who have run based entirely on gubernatorial success (Huckabee, Romney, Palin in 2012) reflected a rebirth of federalism--experience at the state level seen as a benefit in a federal executive.
I tend to look at it through a separation of powers lens. There is a modern insistence (perhaps in the electorate, clearly in the media) that a presidential candidate have both executive experience and have served in some high elected office. Someone who has served in federal cabinet positions (or like Eisenhower been a military commander in time of war) but never held elective office would be constantly reminded that he never has been elected to anything. Most legislature-only candidates are constantly reminded that they only have been legislators (it did not hurt Obama because he was running against a fellow Senator), but it struck me as being an issue in 2004. The only positions that give a potential presidential candidate both electoral and executive experience are Vice President and Governor.
Historically, the Senate-Cabinet-Senate move might have been another way to get both credentials and set oneself up for a presidential run at the appropriate time (Knox ran for the GOP presidential nomination in 1908). But direct election removes (or makes incredibly risky) the option. Would a sitting Senator make the move to the Cabinet, knowing that the likelihood of returning to the Senate is virtually non-existence, on the remote (statistically and politically speaking) chance to be President? Such a person would have to be willing to gamble, old enough upon leaving the cabinet to be a viable presidential candidate, willing to leave elected public life if the move did not work, and, relatedly, old enough not to need to be in politics at the end.
I am guessing (this obviously is pure speculation) this is Clinton's political calculus for 2016. She ran for Senate to set herself up for the presidency; the direct route did not work, so maybe she tries a more circular path. If Obama is a successful President and the two are perceived as having a good working relationship, she could make herself a front-runner as the "heir" to Obama's presidency (it will not be Biden, who would be too old by that point). Clinton would be 69 in 2016, so old enough that she might, if unsuccessful, be willing to depart elected life. If this is her path, it will be interesting to see whether her now-significant executive experience (Secretary of State and First Lady cum adviser and counsel to the President) will be derogated because she never was elected to an executive position.
Creeping consequentialism and insidious economics, part III
Thanks again to commentators for offering thoughtful responses to my last post. Some reactions:
1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism. And Aaron Williams suggests that calling something intrinsically wrong is "just dogma."
These are familiar and understandable concerns. To skeptics, nonconsequentialist arguments are either ipsi dixit, and less rigorous or less fully justified than consequentialist arguments; or else disguised consequentialist arguments.
For example, when a court says that it is unfair for a negligent victim to obtain full tort recovery, doesn’t it really mean that the negative social consequences of allowing full recovery here outweigh the positive ones?
Not necessarily. The court might share my doubts that a legal rule limiting the recovery of negligent victims will affect their future behavior. (A jaywalking pedestrian is already ignoring a risk of self-injury; will her incentive to take care really be greater if she now also knows that, if she is run over by a tortious driver with substantial insurance, the damages she would obtain will be less?) Yet the court might believe that it is unjust to require the injurer to pay full damages.
But doesn't "injustice" here translate into "creates (net) bad consequences"? I don't see how it does. To be sure, the court cares about "consequences" in a minimal sense: a legal rule permitting negligent victims full recovery is a "consequence" that the court wishes to avoid. But that is a trivial type of consequence for our purposes: the real question is whether the justification for a rule of diminished recovery is based on consequentialist reasoning (such as utilitarian or economic analysis), or instead on other grounds.
True, specifying what is "unfair" about a victim's obtaining full recovery, or about an injurer creating unreasonable risks to others without having to pay for them, is a complex matter. But that does not mean that the underlying justification really must be consequentialist.
(Here is one useful overview of nonconsequentialist, and specifically deontological, analysis, clarifying how it differs from consequentialism. And here is a useful overview of consequentialism, indicating some ways that it might accommodate deontological objections.)
But there is a wrinkle in this example, and in all cases where we evaluate whether a person's conduct is unreasonably risky. It is especially easy to fall into the trap of assuming that any evaluation of risky conduct must be consequentialist in the deep sense, simply because we must consider the expected harms and benefits that might flow as a consequence of taking the risk. But that assumption is unwarranted. Shooting a gun in the direction of another person is often unjustified conduct because of the risk that it might kill, or wound, or frighten the victim. But the reason it is unjustified could be because it is socially inefficient behavior (warranting legal sanction on a consequentialist account) or because it shows flagrant disrespect for the rights of the victim (perhaps warranting punishment, on a just deserts or retributive account; or warranting a duty to compensate if harm results, on a corrective justice or fairness account).
Put differently, the fact that possible or probable consequences of one's action are morally and legally relevant to its permissibility does not mean that permissibility is just a question of maximizing good consequences. Another example: most agree that a right of self-defense depends on the actor's believing that an aggressor is confronting him with some threshold level of risk of harm (i.e., some probability of a bad consequence), and yet most accounts of why we have a right to self-defense are not consequentialist in the deep sense. E.g., a nonconsequentialist account could rely on the defender's right of autonomy, or the attacker's forfeiture of his right to life. (I have given a fuller account of this argument here.)
2. JSD points out that "reasons" can refer either to the agent's actual motivating reasons for action, or to the normative reasons that, we might say, should have motivated the actor. JSD says that only normative reasons explain the permissibility of an action. Maybe. On the other hand, among criminal law theorists there is a raging debate over whether subjective reasons affect permissibility. If A shoots B, not knowing that B was about to attack him, is A's conduct justifiable? Or is it only justifiable if he was subjectively acting for the right reason (self-defense) or at least with an honest belief (that B was about to attack him)? T.M. Scanlon's new book also explores this issue from the perspective of moral philosophy. (E.g., does the permissibility of a bombing raid that kills civilians depend on the purposes of the bomber, or of the person who planned the bombing? Or does permissibility turn only on the objective reasons supporting the raid?)
3. Thanks to Patrick O'Donnell for his reminder of how widely these debates over how to justify moral and legal norms extend--not only to tort law and criminal law, but also to health law, and indeed, I would say, to every moral and legal issue. And I share his admiration for the work of Robert Goodin, who endorses a nuanced form of consequentialism for public policy decisions.
4. Is a sadistic pleasure (from driving into a crowd, say) really irrelevant to permissibility, or is it simply outweighed by other reasons? A good question. But many utilitarians are willing to "launder" or exclude sadistic, malicious, racist, and some other preferences, giving them no weight in their calculus. Usually it will not matter whether we launder such preferences; for they will normally be outweighed by the bad consequences they are associated with. But on the margin, such preferences, if not laundered, could make a difference to permissibility. We do not permit teenage thrill-seekers to drive faster on public roads than other drivers who get no special thrill from driving fast; but shouldn't a thorough (nonlaundering) utilitarian permit the teenager to drive a bit faster, assuming that all other factors in the utilitarian calculus are the same for both sets of drivers? To be sure, it would be impossible to accurately detect who genuinely obtained that special thrill; but quite apart from this practical problem, I believe that in principle we should, in this context, judge the thrill of speeding irrelevant to permissibility.
4. Ohwilleke comments: If juries are given a Learned Hand instruction, in a form that asks them to apply expected costs and benefits in a utilitarian way, they are likely to ignore the instruction, and rely on their gut. This does not surprise me. Part of the reason for this is that most ordinary people are not straightforward utilitarians. Their "gut" feelings of fairness often reflect nonconsequentialist principles of justice. (But it is also true that their "gut" sometimes reflects unconscious psychological framing effects, hindsight bias, or an unrealistic assumption that if an activity or product is risky, the risk must be unjustifiable.)
Friday, November 21, 2008
Weekend Reading: Honor's Constitutional Moment
Ask and you shall receive. Just after the election, I wrote on Prawfs that one of the legal issues that is especially pertinent at this moment, and that deserves much more attention, is the law -- constitutional, administrative, jurisprudential -- that surrounds presidential transitions. It's a surprisingly understudied issue in the legal academy (less so in poli sci), although there have been a few terrific articles on the subject, and there does seem to be a resurgent interest in legal transitions more generally. The transition from Bush to Obama in some ways raises questions about presidential transitions in a particularly stark manner, although it would seem the incoming and outgoing administrations have both been pretty good about cooperating to ease the process.
Well, I'm now happy to announce that Colloquy, the online supplement of the Northwestern University Law Review, will be running over the next few weeks a series of virtual symposium pieces on the law of presidential transitions. A number of superb authors are lined up, and I hope we will have more. (If you might be interested in contributing or responding, let me know!) I think this is an extremely timely issue that's worthy of serious discussion, and I'm so glad Colloquy agrees; it's exactly the kind of issue for which online law review supplements and virtual symposia were made. If you are interested in these issues, watch this space.
In the meantime, I have posted on SSRN a draft -- fairly polished but not final, so comments are very welcome -- of my own contribution to the symposium, titled Honor's Constitutional Moment: The Oath and Presidential Transitions. As the title suggests, it focuses on the implications for presidential transitions of the Presidential Oath Clause. The abstract is after the jump. Again, comments are welcome, and I hope it will provoke some legal blogospheric thoughts about the nature and significance of not only the presidential oath and what it means, but all constitutional oaths. Enjoy.
This Essay is part of a virtual symposium on the law of presidential transitions which will run in the coming weeks in Colloquy, the online supplement of the Northwestern University Law Review. This contribution to the symposium focuses on the implications of the Presidential Oath Clause.
Drawing on Bruce Ackerman's language, the Essay argues that every presidential transition is, in an important sense, a constitutional moment. That moment is instantiated in a single act - the taking of the presidential oath. The oath is both an official act and a deeply personal one, in which the oath-taker stakes his honor on the preservation, protection, and defense of the Constitution. In doing so, the new President necessarily must come to his own understanding of what the Constitution means and what obligations it imposes on him. The President's duty to consider what the Constitution means, and thus what his oath requires of him, is indefeasible: he cannot simply defer to the constitutional views of the courts, of Congress, of prior presidents, or even of the people who elected him.
This understanding of the presidential oath as constitutional moment carries with it a host of possible implications. They involve competing understandings of the nature of executive power, of whether the President is obliged to preserve only the Constitution or the nation itself, and of whether the new President is obligated to revisit and either ratify or rescind - or even prosecute - every action taken by the prior administration. In confronting these questions, the new President will also consider competing informational influences and policy considerations that may weigh on his choices. Ultimately, however, the Presidential Oath Clause makes clear that the new President is oath-bound to independently consider what the Constitution means and what it requires of him, and to act accordingly.
One of the effects of the passage of Prop. 8 has been a great deal of blogospheric and journalistic criticism of mainstream gay rights organizations, especially political (as opposed to legal) organizations, and especially the Human Rights Campaign. One of the major themes in this criticism is that the mainstream groups have been sitting on the sidelines while bottom-up Web-based organizers and activists have been grabbing the baton and organizing the community -- most notably with the marriage rights marches this past weekend. In the context of gay rights, one blogger calls this phenomenon Stonewall 2.0.
So, does decentralized, viral, Web-based political organizing pose a challenge to traditional centralized political advocacy? I'm not an activist, but it seems to me that it must be easier for an organization to have an agenda focused on centralized activities like lobbying at the federal level, as opposed to activities such as organizing nationwide marches or working on state or local political issues. (Legal issues may be different because the activity focuses on one case, regardless of where it might be and regardless of how widespread its impact is.) More generally, it's surely easier for an organization to do what critics allege organizations like HRC do -- appeal to the community for money or attendance at a cocktail fundraiser -- than to tap into, organize and manage a more activist, participatory spirit. The Internet surely makes decentralized activism easier, but at some point the disorganized nature of some Prop. 8 protests will stop feeling like the excitement of bottom-up activism and start feeling like plain old demoralizing disorganization.
The current marriage rights organizing doesn't seem exactly like the immediate post-Stonewall era in terms of who is setting the agenda. Back then nobody set it -- or, maybe more accurately, everyone did. Groups popped up, thought about what they wanted, and demanded them (maybe after writing a manifesto or two). By contrast, to the best of my understanding the decision to press for marriage was partly the result of fortuity (couples suing in Alaska and Hawaii and, to everyone's surprise, winning, if only temporarily, in the courts), partly the result of elites in the community deciding to press for marriage, and partly the result of a community sense that the early victories meant that marriage might be an achievable goal. Maybe the difference lies in the fact that by the 90's the community had institutions that naturally took responsibility for translating general sentiment into a program for action. Moreover, because the tools were legal rather than political broader community participation was pushed to the sidelines.
Maybe the best parallel to today is the AIDS activism of the 1980's and early 1990's. Like marriage now, AIDS then was the one issue the community had fallen in line behind (of course, without a choice in the case of AIDS). But ACT-UP activism was ground-up and locally focused: there were (sadly) a lot of targets around the nation for AIDS activists to criticize. Unfortunately, it also burned itself out -- not just from the tragic deaths of so many of its leaders but also from the internal disagreements that fractured a number of ACT-UP chapters who were free to act without centralized direction.
Thus, the nature of the agenda (political or legal tools, and amenability to local action) may influence the type of activism effective at a given time. If so, it will be interesting to see what transpires with regard to the marriage movement. The battle is more or less over in approximately thirty states now -- those that either provide marriage rights or ban them as a matter of state constitutional law (I wouldn't expect political challenges to those bans anytime soon). Unless there's action at the federal level it would seem like the battle will take the form of a series of engagements in the remaining states, as marriage rights forces either fend off more proposed amendments, defend judicial rulings or push for rights via legislation, and as opponents do the opposite. It will be interesting to see if bottom-up activism can respond to this sort of playing field. In one way, the Internet helps, by directly connecting, say, would-be activists in Oregon with their compatriots in Minnesota involved in a local fight. That sort of direct connection might be more effective than a centralized leadership attempting to serve as the focal point for localized fights.
On the other hand, at some point there will be calls for ongoing coordinated action. It's one thing to organize a nationwide day of protests, and another thing to organize an ongoing movement. Meetings will have to be held, and coffee will have to be served. Someone will have to pay the expenses. Appeals will go out for contributions. Maybe a cocktail fundraiser. Will the cycle start again?
Job Posting at USCIRF
Jobs in the law and religion field are hard to come by. So I thought I'd just flag some openings, for those that may be interested, at the United States Commission on International Religious Freedom (USCIRF). As I understand it, the Commission was created by Congress to monitor and make recommendations about religious freedom abroad; the Commissions makes recommendations to the State Department about various countries (whether they should be on the "countries of particular concern" list), recommendations that the State Department sometimes accepts and sometimes doesn't. Anyway, the Committee is looking for a Director of Research and Policy, a Director of Government Relations, and a General Counsel. Tell your friends or apply yourself. Information about the positions is here.
Wednesday, November 19, 2008
Another Legislative Prayer Controversy...
Recent news -- a 70-year old man was arrested Monday night for interrupting a City Council meeting by praying loudly over the Council's moment of silence (HT: Religion Clause). It's unclear from the story, but the man seems to have been protesting the Mayor's decision to stop having prayer and to go with a moment of silence. There are a bunch of examples of legislative prayer being interrupted by dissenters; the most striking example was probably what transpired in the U.S. Senate last year. It was the first time the Senate had a Hindu guest chaplain (Rajan Zed). When Zed began to pray, protesters from the gallery interrupted him. The whole event is here:
The people that interrupted Zed were arrested and charged; I don't know if they were convicted.
I discuss the Zed incident (and others) in a piece that's coming out in the spring. The piece addresses the history of legislative prayer in this country; my thesis is that legislative prayer is more controversial and causes more division than some have believed. I take a bit of an issue with the history provided by the Court in Marsh v. Chambers, and in particular the Court's statement that legislative prayer is "simply a tolerable acknowledgment of beliefs widely held among the people of this country." I don't think that's an entirely accurate summary of what legislative prayer has meant for this country. I spend a lot of time discussing Catholicism. A fury erupted in 1832 when the first Catholic chaplain was elected. He resigned less than a year later. And it wasn't until 2000 that we had the next Catholic chaplain. During that period, particularly in the 1840s and 1850s, some Protestants worked hard to end the chaplaincies altogether on the fear that Catholics would take them over. As the incident with Zed indicates, what happened to Catholics then seems to be happening to other religious groups now -- a frequent church/state theme these days. Anyway, the piece is here. If you happen to read the piece and have comments, do tell me what you think.
An abortion "compromise"?
As Jack Balkin notes, given the election of Sen. Obama, it is quite unlikely that Roe / Casey will be overturned anytime soon, and it is certain that the pro-abortion-rights position will be strongly and ably represented, and advanced, in the Obama Administration. And so, as the Washington Post reports, "a growing number of antiabortion pastors, conservative academics and activists are setting aside efforts to outlaw abortion and instead are focusing on building social programs and developing other assistance for pregnant women to reduce the number of abortions."
As I said (many) more times than my Mirror of Justice readers wanted to hear, I do not believe "the issue" in the abortion-rights debate is (from the anti-abortion perspective) simply the number of abortions. Yes, a smaller number of abortions would be, for people like me, a good thing. However, it is also (for people like me) regrettable that our Constitution has been interpreted to prevent political communities from providing (if they choose to provide) greater legal protections to unborn children. Like most abortion opponents, I understand entirely that the law should not prohibit every wrong; with respect to abortion, though, many of us believe that the current regime represents not merely an entirely reasonable concession to different moral standards regarding private, self-regarding conduct, but instead constitutes (in addition to a mistaken interpretation of the Constitution) an unjust exclusion of some persons from the protections the law provides generally.
Putting aside this point, though -- a few quick thoughts on Jack's post about a "compromise" . . .
Jack says that a "durable compromise" over abortion "would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. . . . The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals."
In my view, the durability of such a compromise could be undercut if (as I expect will happen) current limitations on the use of public funds for abortion (here and abroad) are lifted or watered down. Also, I suspect that a truly stable "compromise" would need to include, among other things, acceptance by the pro-choice side of rules that allow health-care workers, hospitals, religiously affiliated institutions, and churches to opt out of cooperating directly with the provision of elective abortions. An Administration or Congress interested in a stable compromise would not insist that, say, Catholic hospitals provide elective abortions, or that religious social-service agencies include abortion in their health insurance programs, etc. And, it seems to me that even those on the pro-life side who are interested in compromise on this issue would not like to see limitations on the (peaceful) speech of anti-abortion protesters.
I'd welcome others' (especially Jack's) views, though.
Creeping consequentialism and insidious economics, part II
Thanks to those who posted thoughtful comments on my earlier post. There are many reasons why the methodology that I critiqued, a comprehensive balancing of positive and negative consequences, is problematic. And the comments pick up on a number of these.
First, not all consequences should matter (either on the question of the permissibility of primary conduct or on the question of the desirability of a legal rule). Second, not all reasons should matter. Third, even when consequences or reasons matter, maximizing the net value of consequences or reasons is not always the best moral or legal approach. Fourth, the supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that nonconsequentialists are absolutists who never balance one set of considerations against another. Fifth, the supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are sometimes overstated.
That's quite a list! But let me get started...
1. Not all consequences should matter. Any plausible consequentialist approach must make value judgments.
Obviously it is not permissible for Joe to drive home at 90 m.p.h. in order to obtain the gun he needs for a bank robbery. Bringing about an independently immoral consequence is never (or almost never?) a permissible reason for creating a risk.
Nor may Sarah drive that fast just because she wants to see the start of Obama's inauguration live on TV. Here, though, I would not say that the consequence should not matter at all. That beneficial consequence could justify her driving home at a safe speed rather than walking home, even though safe driving creates much greater risks than walking. The important point: what consequences matter, and how much they matter, is itself a contestable question. Sarah's very strong preference to see the inauguration might have very little social value. Utilitarians differ greatly in how they define utility (as preference satisfaction, objective good, etc.), and consequentialists differ in how they define and value the relevant consequences (states of affairs? levels of welfare? promotion or nonviolation of rights, too?). Thus, one supposed comparative advantage of consequentialism over nonconsequentialism, that it does not require difficult value choices, is, at the very least, exaggerated.
Consequences are sometimes irrelevant, and always need normative specification, not just when determining the permissibility of primary conduct, but also when determining what legal rule is desirable.
Of course, even if we embrace a thoroughly consequentialist framework, it does not follow that the legal rule should exactly mimic the utilitarian standard of primary conduct. For example, even if the law should try to induce actors to engage in primary conduct that satisfies a utilitarian standard ("take a risk only if this maximizes the expected benefits over the expected costs"), legal liability for negligence (defined this way) sometimes will not be worth it--in light of the administrative and error costs of implementing the legal rule. Strict liability and no liability are sometimes better means to the end.
But the deeper problems with looking only at, and at all, consequences, recur at the level of desirable legal rule, too. For example: a rule reducing or eliminating recovery for personal injuries when victims act negligently might have no beneficial incentive effects on victims. Yet there is a plausible nonconsequentialist reason for limiting their recovery: it is unfair to require injurers to pay full damages when victims are also at fault and causally contribute to their own harm. And: we might conclude that certain consequences matter very little to the desirability of legal rules. If we are trying to decide whether to require therapists to warn potential victims of serious threats made by their patients, perhaps we should ignore the harm that this rule will do to the prestige of the profession of therapy, while we should weigh heavily the risk that the rule will discourage violent patients from seeking help.
2. Not all reasons should matter.
I agree with John Oberdiek's comment: the "just balance the competing consequences" approach seems attractive in part because this approach is easily confused with a far more compelling "just balancing the competing considerations or reasons" approach. Why the confusion? Perhaps the ambiguous notion of the "purpose" or "point" of a standard or rule is to blame. Every moral standard or legal rule indeed must have a justifiable rationale. But this does not mean that the "point" or rationale must be to bring about good consequences. For example, some conduct might be intrinsically wrong, and some legal rules have an expressive "point". (Why should South Carolina not fly the Confederate flag at the statehouse? Because the state should not associate itself with its racist past.) When we ask what the "purpose" of a moral standard or legal rule is, sometimes we fall into the unwarranted assumption that "bringing about good consequences" is the only eligible answer.
Nevertheless, not all reasons (even reasons other than achieving good consequences) should matter. Perhaps the (actual) reason D speeds near a crowd of pedestrians is that he derives great enjoyment from seeing their horrified and fearful reactions. That reason should be irrelevant to the moral and legal permissibility of his risky conduct.
(Some might call this reason a "consequence" of D's risky conduct, but this seems to collapse the distinction between consequentialist and nonconsequentialist approaches. It need not be the case that D instrumentally selected speeding as an effective means to produce sadistic pleasure; rather, D might simply have been motivated by sadism, a motive that is part of why his risky conduct is impermissible.)
Put differently: everything depends on what counts as "a reason" or "a good reason" for an action. Clearly the actor's actual reasons don't always have as much weight as she thinks they should. Sometimes they should not count at all. (To be continued...)
Tuesday, November 18, 2008
So, this week is the Federalist Society's annual National Lawyers Convention in Washington, D.C. (Program here.) I'm participating in, and looking forward to, a panel discussion about the International Religious Freedom Act. I'm curious to see whether the overall vibe will be gloomy and self-loathing, or have instead a more plucky, "well, this should be interesting!" kind of tone. We'll see. Anyway, a number of the programs look interesting. Law-bloggers are particularly well represented in the Free Speech Section's event: Andy Koppelman, David Bernstein, Eugene Volokh, and others will be talking about anti-discrimination laws.
What happens on a callback? What should happen?
There's a lot of ways different schools conduct callback interview days. I thought I'd invite some discussion in the comments about "best practices," starting with an example of what we often (but not always) do at FSU.
Evening before talk:
5:55 p.m.: X arrives in Tallahassee. Y picks up X at airport and brings X to hotel.
7 p.m.: Dinner at ___ (X plus 3 faculty members, sometimes 4).
FRIDAY, NOVEMBER 21:
8:30 a.m.: Breakfast at Tallahasse Center & transportation to law school:
one faculty member plus X; sometimes 2
9:30 a.m.: Office interview
10:00 am: Same
10:30 am: Same
11:00 am: Same
11:30 am: Prepare for Talk 1/2 hour of downtime (Room 206)
1230: Presentation to Faculty (15-20 minutes of shpiel by X followed by questions)
1:30 p.m.: Office Interview
2:00 p.m.: Meet with Dean
3:00 p.m.: Meet with Director of the Research Center/Library
4ish: Transportation to Airport or if there's time, a drive around neighborhoods and then drive X to airport.
As you can see, we don't do meetings with students like at other schools, nor do we do a second big dinner. How does your school do things? Candidates: what do you think schools should do that they're not doing? What shouldn't they do?
The View from the Bottom (of the Alphabet)
Much was made during the presidential election about the potential of a "Bradley effect" in which it was predicted that Barack Obama might suffer anywhere from 3-6 point penalty on election day because of his race. It's questionable whether such an effect occurred in this race or, indeed, whether it actually ever existed at all. But while the Bradley effect got all the attention, Obama was facing another form of discrimination from voters as they pondered their ballots -- the alphabetical kind. In addition to his race, his non-traditional upbringing and his middle name, Obama also had to overcome the burden of having a surname that falls in the last half of the alphabet.
The importance here is, of course, with ballot position. In the states that decide ballot order alphabetically, McCain (who is no alphabetical star himself) managed to secure a higher ballot position than Obama. With some empirical studies suggesting that ballot order can translate into a several percentage point advantage for the higher-placed candidate, the issue of alphabetical discrimination threatened to have as much of an impact on this election as the infamous Bradley effect. As an alphabetically challenged individual myself, I'll admit to taking this all pretty seriously.
In all fairness, recent research by Daniel Ho of Stanford and Kosuke Imai of Princeton concluded that ballot order likely has "no detectable effects on major party candidates" (although it might "significantly affect" minor party candidates.) The big pay-off comes in the primaries where Ho and Imai found "being listed first significantly increases vote shares for all candidates." This means that Obama had to work extra hard to beat out alphabetical-showoff Hillary Clinton.
Some states have recognized the inherent unfairness of alphabetical order. The State of California, for example, has been at the forefront of the fight against alphabetical discrimination. California law requires that each letter of the alphabet be written on a separate piece of paper and put into a "capsule." The capsules are placed into a container which must be "shaken vigorously." Each capsule is then selected one at a time until an entirely new alphabetical order is created that determines ballot order. If more than one candidate's surname starts with the same letter, the order within that letter follows the same randomized alphabet. This ballot order is then rotated among the state's 80 assembly districts. I was living in California during the highly publicized 2003 gubernatorial recall and can attest that on my ballot all 135 candidates for governor appeared in what could only be described as an entirely chaotic order. The extra effort it took to find my candidate was a small price to pay, in my view, for avoiding alphabetical discrimination.
If more states follow suit, perhaps we'll someday live in a land where we can all overcome our alphabetical destiny. That's a change I can believe in.
The Ethics of Popular Constitutionalism
Suppose you -- as constitutionally-sensitive activist -- think that California's gay marriage ban violates the federal Constitution's protection of "equal protection of the laws" -- and think that Romer v. Evans is a close enough precedent to make your view plausible in the eyes of doctrinalists. Yet you have no faith that the current Supreme Court of the United States will agree with you. Indeed, you fear prosecuting that claim because of the very real possibility that you will lose at the Supreme Court and hurt your cause quite badly in the process. Suppose you also think that Prop 8 does not violate the California state constitution (for the state constitution has just been amended). Indeed, suppose you think the claim that the state constitution has been "revised" borders on the trivial. Yet you recognize that you might actually win your argument on the "revision" claim. Are there any ethical limitations surrounding constitutional argument making that would disable you from making what you think is a nearly trivial argument that actually has a chance for success even though it can get you a substantive result you think is demanded by the federal Constitution but which you aren't willing to try for fear of losing big?
Monday, November 17, 2008
Creeping consequentialism and insidious economics, part I
OK, the title is hyperbolic. But here is what troubles me.
You are teaching or analyzing legal rule A. Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C. For example, the legal rule is: "D must pay compensatory damages to P when D's unreasonably risky conduct harms P." The underlined phrase expresses a norm of impermissible conduct.
Unthinking consequentialism can creep in at both levels of this analysis--in your analysis of what counts as creating an unreasonable risk to others, and in your analysis of whether a legal rule expressing this standard of conduct is normatively desirable. This danger is especially pronounced in analyzing tort doctrine, but it arises elsewhere, too.
Consider first the standard of conduct. How do we decide what risks are unreasonable? (For example, whether it is unreasonable for D to speed to the hospital to obtain care for his sick child.) Here is an answer, and one that appears so self-evidently correct that any alternative analysis seems irrational.
1. Consider all the bad consequences of D's taking the risk.
2. Consider all the good consequences of D's taking the risk.
3. If the good outweighs the bad, it is permissible to take the risk. If not, not.
(The famous Learned Hand test is often viewed as expressing this approach: you are negligent if but only if the burden of taking a precaution against the risk is less than the benefits of taking the precaution, in the form of reduced risks of harm to those exposed to the risk.)
If you don't like this approach, what is wrong with you? Don't you care about consequences? Don't you prefer good to bad? (Or, under marginal versions of this approach, don't you prefer more good to less good, and less bad to more bad?) Are you fanatically opposed to balancing? Even though, in your own life, you routinely balance the advantages and disadvantages when deciding between option A and option B?
Consider next the desirability of the corresponding legal rule: if an actor fails to act as specified by this standard of reasonable conduct, he must pay compensatory damages to the victim. How do we decide the desirability of this rule? Why, in exactly the same manner. This is a matter of basic rationality, after all.
1. Consider all the bad consequences of enforcing this legal rule of negligence liability.
2. Consider all the good consequences of enforcing the rule.
3. If the good outweighs the bad, this is a desirable legal rule. If not, not.
Again, the logic appears to be inexorable.
This approach is enormously attractive for a number of reasons. It appears to be thorough, empirically grounded, pragmatic, rational, and focused on human welfare. It gives us a rigorous method, quite unlike the fuzzy soft-headed intuitions of those who defend rights-based and other nonconsequentialist approaches. (A colleague in the philosophy department recently remarked to me that many of her undergraduates, when first introduced to philosophy, are seduced by the simplicity and apparent inevitability of utilitarian thinking.)
I do believe that economic and utilitarian analysis have value, both descriptively and normatively. But the account I have just given greatly understates the difficulties with these forms of analysis, and overstates their ability to describe the world accurately and to prescribe norms that we should live by. (To be continued...)
Message to Crim Prawfs re: 2009 Law and Society in Denver
Dear crim profs or aspiring crim prawfs:
If you're planning to attend the Law and Society Association meeting in Denver (May 28-31, 2009), here's an idea that may be of interest. With hopes of ensuring better criminal law-related panels (including punishment theory, criminal procedure, and related areas), Alice Ristroph (Seton Hall) and I are trying to play match-maker for junior (or newish) voices in criminal law fields. The conference organizers accept individual paper proposals, but prefer proposals that are already composed into panels. If you want to present something on criminal law and would like help finding panel-mates, send me and Alice an email with your title (and topic/abstract). We'll try to match up related papers to create complete panels. We need to receive the paper topics by December 1 or so in order to match up panels before December 8, the LSA conference submission deadline.
We hope to see you in Denver or elsewhere soon!
Gotta Go Fill that Scholarship Aquarium ...
It's time for me to sign off PrawfsBlawg. I'm extremely grateful to all the Prawfs for having me.
I'll now be returning to more traditional modes of professorial writing (i.e., trying to help fill up the scholarship aquarium outside the dean's office). But I will also be posting on my home blogs – the IP-and-media-focused Pixelization and the tongue-in-cheek Backbencher.
By the way, if you haven't read The Backbencher lately, here's some of what you've missed: my write-in campaign for the office of vice president on a platform of using lasers to eliminate wasteful government spending, my suggestions for reforming the Democratic National Convention to make it more competitive against other reality television shows, my wrap-up of the Olympic Games' biggest losers, my gloating over changing Massachusetts bowling law, my considered analysis of Ohio's minimum prices for beer, and my exposé of Fox News' foray into selling porn.
Take care, everyone! Have a very happy holidays!
Sunday, November 16, 2008
Black Holes and the Law: This is the End
I want to thank everyone who gave such insightful and, in many cases, well-researched comments to my various posts (here, here, here, and here) about the legal dimension of the safety controversy regarding the Large Hadron Collider, the European super-sized particle smasher which detractors claim might spawn an Earth-ending black hole.
This is a case that poses a number of extremely interesting questions about the philosophy of law, legal epistemology, the intersection of the law and politics, the intersection of law and psychology, and other areas. Because I think the subject is so worthwhile, I plan on doing some additional posts on my own blog, Pixelization, about the matter, including responses to many of the comments I’ve received to the PrawfsBlawg posts.webpage where I will post court documents, links, and any follow-up work I do on the matter. I think this case could be fertile ground for classroom discussion in various classes, including Remedies, International Law, Jurisprudence, Civil Procedure, and Evidence. To the extent there are written opinions or other documents that could make good teaching materials, I will try to track them down and make them available.
For this post, I’d like follow up on something I wrote in my first post. I noted then that this is “a case that highlights the trust modern civil society has vested in the institution of the law and courts.”
“A court of law,” I continued, “wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.”
Well, apparently not. As commenter “martined” noted, it turns out there was an action in a Swiss court aimed at delaying LHC operations. But the case was rejected because CERN – the intergovernmental organization operating the LHC facility – has immunity. (When I can obtain the court documents for these proceedings, I will post them on the resource webpage.)
The issue of CERN’s immunity is a whole other area of this case that is highly intriguing. From my brief review of what documents I’ve been able to find so far, the following appears to be the case: The treaties establishing CERN have vested it with legal personality. The host countries, Switzerland and France, have given CERN and its employees broad immunity and protection against interference by the courts and host country laws and regulations. That immunity is preventing plaintiffs, who argue their lives are at stake, from being able to use judicial process to mount any kind of challenge to CERN’s planned undertakings.1
Immunity for intergovernmental organizations may, in general, be benign. Applied to CERN, however, I find it troubling. Unlike most intergovernmental organizations, CERN is engaged in a category of activities – even putting black holes aside – that clearly qualifies as “abnormally dangerous” and “ultrahazardous” under American common-law doctrine. Governed by a council of delegates from its 20 member countries, power over the organization, and responsibility for it, is diffuse. When it comes to safety, CERN appears to be entirely autonomous, making its own rules and deciding whether or not those rules are being obeyed. Moreover, where the alleged harm is a planet-ending catastrophe, there is no prospect of after-the-fact remediation by CERN’s state sponsors.
This results in a situation in which CERN has many of the characteristics of a sovereign nation, but, unlike a normal state, CERN has no system of courts. CERN also lacks any constituency within its population beside scientists and their close associates. As such, CERN – and, perhaps, other intergovernmental organizations operating nuclear facilities – poses some interesting questions in the field of international law. CERN’s quasi-sovereign nature means that it may constitute a “scientocracy” in even a more palpable sense than I appreciated in my previous posts.
In view of CERN’s assertion of immunity from host-state courts, the failure of the European Court of Human Rights to deal with the case on its merits is even more unfortunate.
As a final note, to wrap up this series of PrawsBlawg posts, let me say that I do not want to stop the LHC. I have yet to be convinced of the experiment’s alleged hazards. In addition, I’m personally eager to see the theoretical advances in physics that the LHC promises to deliver. Nonetheless, I do think the LHC critics should get their day in court, and it should count. The case should be taken seriously, decided on the merits, and memorialized in a published opinion. Anything less would be very disappointing.
1Since CERN's immunity does not apply to contracting entities doing business with CERN, it would seem that suing for an injunction to stop CERN's contractors or suppliers might be a way to get the case into court. I do not know if the LHC critics' lawyers have explored such a strategy. I also wonder if it would be possible to get an injunction in some non-CERN signatory country against resident CERN personnel or even against CERN itself, if CERN has some business in the jurisdiction.
Constitution-talk at the March
I went out yesterday to exercise my First Amendment rights at the L.A. version of the nationwide marches for marriage equality. If you haven't attended a protest march in a while it's something you ought to consider doing. My sense is that we do in fact bowl alone a lot more nowadays, and that goes for political expression, too. Physically gathering with like-minded people to express myself was quite a rush. The crowds on the subway were boisterous and friendly, the 20something lesbian punk couple next to us squeezed into one seat so my husband and I could sit (I think they had ulterior motives, but I'll give them the benefit of the doubt), and a brass band (!) was playing as they were getting off another train when we arrived at the City Hall stop. The rally and march were similarly upbeat: the speakers were generally on point and not long-winded, everyone seemed to be taking care of everyone else, and the kids that were brought along were all adorable.
I was also struck by the signs. A lot of people carried the "No on 8" signs that were all over town during the campaign. But others created their own -- sometimes witty, sometimes poignant. As a law professor, though, I was most struck by the signs that spoke constitutional language. Of course, "equal rights" or a variation thereof was a main theme. But one sign had a pretty long quotation from the Gettysburg Address, another had the "we hold these truths to be self-evident" language from the Declaration, others made observations about equal liability for taxes being combined with unequal status, and many of them had some variation of "separation of church and state."
I'm not here to praise any of these messages (though my earlier posts this month and before, plus my presence at the march, should make it clear basically where I stand). I'm simply saying that I'm impressed and, frankly, grateful, that so many of my fellow citizens -- not lawyers, not academics -- are able to appropriate constitutional language in political discourse. The popular constitutionalists are right to worry about the atrophying of people's constitutional awareness and of their sense of responsibility for safeguarding our constitutional rights. But based on my experience yesterday people know these terms and they're comfortable using them. Sure, they were just slogans on handmade signs. No doubt they heard and got cues from more "sophisticated" advocates arguing in the media. And of course most of them couldn't do the intricate analysis a court does when deciding a constitutional case. But they get the basic ideas, and yesterday they took responsibility for them. And that's pretty cool
Friday, November 14, 2008
Why 30 Rock's Kenneth Would Make a Great Law StudentFrom NBC's 30 Rock, aired last week:
The World Series of Poker
(If poker does not amuse you, by all means skip this post...)
So, besides the election, there were two big media events I was looking forward to in November. The first did not happen, and the blame for that I put squarely on the shoulders of He Who Must Not Be Named. The second, though, went off without a hitch. That was the Main Event of the World Series of Poker - the World Championship No Limit Hold 'Em Event.
The World Series of Poker -- wasn't that in July? Well, sort of. The main event began on July 3, with 6844 players putting in their $10,000 apiece for a chance at the first place prize of $9 million. (This was down from the 8000+ players in 2007, in large part because the federal government has made it so difficult for those in the United States to get money in and out of online poker). By July 14, the 6844 were finally winnowed down to 9, the 9 who would play at the final table.
But, for the first time, WSOP this year decided to postpone the playing of the final table, as a way of stoking publicity and coordinating with ESPN. So the players all got their initial check (for $900,670 -- the 9th place amount). And then they waited for 4 months before squaring off for the remaining $24 million or so that would be distributed quite unevenly among those 9. Now there were all sorts of potential problems with this. 4 months and only 9 players creates plenty of opportunity for collusion. It is also somewhat unfair to the pros and semi-pros at the table; it gives the rookies 4 months to bulk up on their poker knowledge. (Apparently, professional poker players not in the tournament made a killing offering lessons.) And, especially as someone who teaches Contracts, I couldn't help think about the other potential disasters. What if someone gets seriously ill? Or dies? The usual poker rules (see paragraph 52) offer no sympathy to ill or deceased players. Such players simply lose their clips, which are anted and blinded off. Now that makes sense for regular tournaments. (Indeed, any other rule risks creating very bad incentives for poker players, who are by their natures both calculating and deceptive.) But the 4 month lag before the final table obviously increased the risk of something like that happening, and the $24 million at stake would have meant that any such events would have been spectacularly interesting.
But nothing like that happened this year. (It will have to wait for my Contracts exam.) On November 9 and 10, the November Nine simply sat down and finished the thing. ESPN edited the footage down into a viewable 2-hour segment. (You don't want to watch poker unedited; it's as bad as watching unedited chess matches.) It will be broadcast and rebroadcast -- it'll be hard to avoid. And I cannot but recommend it.
Young and Stupid ... Forever?
The New York Times reports that applicants for a job in the Obama Administration will have to disclose an enormous amount of information, from the usual income and tax information to information about domestic help and, most interestingly, information about applicants' Web presence. In particular, the application asks for emails that might be embarrassing, blog posts, email aliases and Facebook pages. I haven't looked at the actual application but from the article it doesn't seem like the Web questions are time-bounded -- that is, they ask for all of this information going back all the applicants' lives.
The transition team's demand for applicants' Web information is understandable. As we all know, information placed on the Web potentially stays there forever, and thus retains its capacity to embarrass. But if application screeners take a hard line on potential embarrassment then youthful indiscretions could derail many applicants' hopes for a government job.
I hope this doesn't happen. People (like me) who grew up before the Internet age got a pass on our youthful stupidities. Scrawl something regrettable? The wall got washed off or the notebook got tossed. Take an embarrassing photo? It's forgotten in a shoebox somewhere, or lost since lost in one of the moves we made in our 20s. Make a porno like Zack and Miri? It's on a disintegrating Super-8 reel so no risk there.
I'm sure that a sense is growing among teenagers and young adults that some media come and go but the Web potentially stays forever. I wonder, though, if some cohort -- maybe people in their early 30's now, those just old enough to aspire to a political appointment -- are part of the generation that was young when the Web was just exploding, before these cautions became part of whatever general Web awareness young people have now. That might mean they're caught in a generational trap; all of their youthful indiscretions will remain available, and subject to reporting, for the rest of their careers, even though nobody fully understood this at the time.
More generally, it seems to me to be asking a lot of people in their teens and 20's to censor themselves to the degree necessary to ensure they could truthfully answer the questions on the Obama application without risking a denial from an overly-cautious screener. Indeed, to the extent particularly careful teens and 20-somethings do censor themselves, what does that say about the people most likely to survive that screening and get jobs in future administrations?
Again, though, I can see the risk to the administration. Still, I hope that screening -- now, and in the future -- takes account of this different world and that, in the rush to be above reproach or avoid a gotcha from political enemies or an enterprising snoop, veterans on the Obama transition team don't demand of the new generation what they would never would have thought to demand of themselves.
Kind of feels like being an Article III Judge . . .
I am thrilled/surprised/relieved to report that the faculty at the College of Law has recommended me for tenure. I mention this to echo and add to Bill Henderson's comments at ELS of how he addressed blogging in his tenure materials. The statement I included in my submission, similar in some respects to Bill's (although I have not been as prolific or high-profile a blog writer as he), is after the jump.
Since blogging has become a more common and important part of the legal academy within the last eight years, there has been a lot of discussion about the wisdom of blogging without tenure. But the reality is that a substantial number of bloggers are untenured (Aside: Has anyone examined the status of the contributors on the top legal blogs in Caron's most recent study?). And that number goes up when we consider the large number of guest bloggers who cycle through here, CoOp, and other places. So the real question is not whether pre-tenure blogging is a good idea; it already is happening. The real question is how to present blogging as part of our package of scholarship, teaching, and service.
It seems to me that any discussion of blogging in tenure materials will be one part education and one part justification. We have to explain a lot to some senior law faculty, as well as to central administrators and perhaps to faculty in other departments and who are involved in the review process (FIU does not have a university-wide faculty committee between the law school dean and the provost, although many schools do). We have to explain what blogging is at its most fundamental level, why we do it, why it is not a waste of writing time, how it relates to our core scholarship, how it benefits us professionally in terms of scholarship, teaching, and service, and how it benefits the school. It may be a good idea (as Bill did) to provide at least a representative list of (more substantive) blog posts, which makes blog writing look, at least, like writing op-eds and other short pieces.
It also seems to me that the level of needed explanatory detail will decrease as more and more bloggers gain tenure (say, within the next five-seven years) and blogging becomes a routine and understood part of our writing activities. In about 5-10 years, it should be enough to say "I blog at ______" in the "other scholarly activities" section of the tenure folder. The interesting question will be whether committee members begin reading some blog posts for evaluation--not in the same way or with the same interest as they review scholarship, but with an eye towards evaluating how good this person is at this particular, accepted scholarly activity.
Alternative Scholarship and Blogging
More recently, I have begun regular blogging, which provides an even-more timely outlet and a chance to directly reach a repeat audience with short (anywhere from 200-2000 words), very immediate commentary. Blogging is a new and essential component to legal scholarship, a forum for regular and frequent writing and commentary on law and policy, as an alternative outlet and as a complement to core legal scholarship. I am a regular contributor on two legal blogs. The first is PrawfsBlawg, a general legal blog targeted primarily at law professors and law students, for which I began writing this past year. My writing on this site has been beneficial to my scholarly profile and to raising my name recognition, particularly among people who do not otherwise write in my scholarly areas. The second is Sports Law Blog, a blog targeted at the sports-law community, academics, practitioners, and fans. This site has been the primary outlet for my writing on sports and the law, particular about connections between sport and legal rules and processes. The site also is widely read by sportswriters and has provided me with many media interview and commentary opportunities.
Writing on these blogs has kept me involved in broader conversations about the law. These outlets also enable me to speak to different audiences about a broad range of legal and policy issues. This includes discussions of new and ongoing legal and political controversies that connect to broader scholarly subjects of interest, as well as discussions of subjects or questions that do not lend themselves to immediate, full-fledged scholarly treatment (although many may be the focus of future scholarship), but that I wanted to write and present to an audience in a timely fashion.
Thursday, November 13, 2008
A Better Bar Exam
The worst thing about studying for the bar, for me, was the feeling that I was wasting two months of my life learning fictional law.
The Multistate Bar Exam, in order to be useable by any state, does not test the law of any state. Instead, its questions on contracts, criminal law, real property, and torts are based on “fundamental legal principles,” and not on the actual law.
Every state but Louisiana and Washington uses the MBE. That’s a shame. A lot of time and effort ends up squandered. The irony of the bar-exam process is that while taking the MBE involves trying to prove competency to practice in a particular state, the process of studying for the MBE is a lost opportunity for gaining that competency.
A reasonable approach might be for the MBE to be split into two exams. One, the national exam, could test the federal subjects that are already on the current MBE – constitutional law, federal civil procedure, and federal evidence. Sales – at least insofar as Article 2 of the Uniform Commercial Code is truly uniform – would also be an appropriate subject of the national test. If there is a desire for more subject matter that statistically unites bar-takers across the country, I would support adding in federal fundamentals bankruptcy and tax.
Then the second test could be a battery of torts, property, contracts, and criminal law questions that are customizable by each state bar. That way, a state that follows the minority rule on any given doctrine could change the question or answer key accordingly.
I realize this would be a tremendous inconvenience to state bar examiners, but the cost would be more than outweighed by the substantial gains to be had in the competency and knowledge of new lawyers and the service received by clients.
My nerdy and pedantic colleague Christian Turner sent around an email pointing out an error the Supreme Court made in an opinion yesterday -- in math. Christian, it's worth noting, has a Ph.D. in math from Texas A&M so we're all prone to trusting him on this one. With his permission (and on the condition that I introduce him as "my nerdy and pedantic colleague"), I'm sharing his email below:
It's not everyday that my prior experience in math proves useful in reading a Supreme Court opinion. Today is still not such a day. However, math did provide a chance to task-avoid by focusing on an inconsequential, stray remark in an opinion. Roberts just issued an opinion in Winter v. NRDC - ruling in favor of the Navy in a case involving the Navy's NEPA obligations with respect to the use of certain kinds of sonar in training exercises, where the sonar might have ill effects on marine mammals. (Kind of an interesting case actually.)
The opinion contains the following line: "There is an exponential relationship between radius length and surface area (Area = pi r^2)."
This is decidedly not an exponential relationship, but it could be called a power relationship, quadratic relationship, or geometric relationship. An exponential relationship is something like y = 3^x. The difference between the two kinds of relationship is huge, easily seen as x grows large. (Though there's disagreement, the number of electrons in the universe is very, very likely less than 10^100.)
Correcting this could be my only shot at leaving any kind of mark on the Court. Too bad I don't have a blog. Maybe I could become the crank who submits nitpicky correction petitions (if such things exist) on an ongoing basis. In fact, crank is probably my pre-destined endpoint.
Oral Argument in Summum
After a post on the background of the case and one about its weirdness, I wanted to note some interesting things about the oral argument (well, at least I find them interesting). Whole transcript available here (HT: Religion Clause). For other background info on the case, see here and here.
Short answer: Summum is in trouble. Maybe 9-0 trouble?
Longer answer: past the break.
My solemn vow: Yes, I will post on other topics...
Some interesting things happened, and the whole transcript is worth a read. But I found most revealing this exchange between Summum's counsel and Justice Souter. Remember that there's an existing Ten Commandments display in the park, which was given to the City by the Fraternal Order of Eagles in 1971. In order to win, Summum's counsel needs to convince the Court that that display is really the Eagles' speech, and not really the government's speech. (It being the Eagles' speech is what makes Summum's claim of discrimination valid.) So Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now. But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years. The Eagles haven't really been involved since 1971 -- so how is this their speech? So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution. Hence this exchange (p. 38):
JUSTICE SOUTER: So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?
MS. HARRIS: It would, Justice Souter. We would no longer have an equal access right going forward --
JUSTICE SOUTER: But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.
Now Summum's counsel tries to say it's not a mere formality. She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments. But Souter's formality point doesn't seem to go away -- p.s., it also gives Pleasant Grove an easy way to moot the case. But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle. (By the way, I am not suggesting that Summum's counsel was anything less than tremendous; it seems just that the facts and the law may not exactly be on Summum's side.)
So let me indulge in a ridiculously overconfident prediction that is really just crazy speculation -- maybe Summum loses 9-0? I mean, there's real possibilities the Court could fracture along lots of lines. Both Justice Souter (p. 10-11) and Justice Breyer (p. 24) brought up the possibility of the Court recognizing the category of "hybrid speech." Justice Stevens (p. 23) suggested that perhaps the government-speech label shouldn't mean that government has absolute discretion to discriminate in abhorrent ways. I don't think Justice Stevens liked the answer from the deputy SG in the following exchange (Stevens: Well, supposing the Government in the Vietnam Memorial decided not to put up the names of any homosexual soliders. Would that be permissible? Joseffer: Yes...."). But I don't think the Court needs to get into any of that to resolve the current case. I guess we'll see.
The Prop 8 Litigations
I was interviewed for this NPR story on Morning Edition today on the Prop 8 litigations.
Wednesday, November 12, 2008
"You Know, Content"
I'm not much of a Ron Rosenbaum fan, but I very much like this piece in Slate arguing against "new media guru" hype. It's a nice counter to the usual blog triumphalism and disdain for the actual discipline of journalism that pervades and pollutes so many corners of the blogosphere, most certainly including the legal blogosphere. (Somewhat ironically, perhaps, since most of us make our living teaching law -- and it is probably not much harder to be a good lawyer without the benefit of professional training and experience than it is to be a good journalist.) It serves as a healthy reminder that there is a qualitative difference between actually spending several years reporting, say, a 100,000-word piece on police torture, and thinking that you can become King David by typing "Indeed." at the end of a link to someone else's work.
Additional irony alert: It's in Slate.
Civil Rights Legislation in the Obama Administration
One of the many issues the Obama Administration will have to resolve is where to go on civil rights legislation. The campaign website's section on civil rights gives prominent focus to enacting the Fair Pay Act, the Employment Non-Discrimination Act (protecting gays and lesbians and, seemingly, transgendered people) and the Matthew Shepard Act (expanding federal hate crimes law to include gays and lesbians), overturning the Ledbetter decision (which seems to be what the Fair Pay Act does, so maybe they're double-counting), depoliticizing DOJ and reinvigorating civil rights enforcement. No doubt renewal of the Voting Rights Act will also be part of this agenda. Presumably the new Congress will support most, if not all, of this agenda, though of course who knows when and whether they will get to it given the other issues on the nation's plate right now.
My question is about the constitutionality of the civil rights legislation that may come out of Congress over the next couple of years. Aside from the Voting Rights Act renewal (about which a lot of people, including my colleague Rick Hasen, have written and about which I won't comment here), I don't see any serious constitutional issues with any of this legislation, given the commerce power. (Even the Matthew Shepard Act devotes a fair amount of verbiage to bringing itself within the Supreme Court's opinions in Lopez and Morrison, though I certainly wouldn't rule out a Commerce Clause challenge). The one major caveat is the extent that such legislation applies to states and makes them liable for retrospective relief, such as damages or backpay. Of course, Seminole Tribe disqualifies the commerce power as the source for such remedies, and thus requires examination of Congress's power to enforce the 14th Amendment -- the so-called "congruence and proportionality" test from City of Boerne v. Flores.
Would ENDA be congruent and proportional to the equal protection problem of state government employment discrimination based on sexual orientation or gender identity? This does not seem an open and shut question, although I argued in an article published in 2002 that ENDA should be upheld as appropriate enforcement legislation. The only cases where the Court has upheld Section 5 legislation against this standard have been where the legislation either benefitted a class that gets heightened equal protection scrutiny (Nevada Dept of Human Resources v. Hibbs) or protected a fundamental right (Tennessee v. Lane). And even those decisions depended on the four liberals peeling off from the conservative bloc Chief Justice Rehnquist and Justice O'Connor (Hibbs) or O'Connor alone (Lane); with those two justices gone it's not clear that even those cases would come out the same way today.
As for ENDA in particular the matter gets difficult because gays and lesbians are not a suspect class, and if cases like Romer v. Evans (and for that matter, City of Cleburne v. Cleburne Living Center) are any indication, the Court does not seem inclined to create any more suspect classes. Thus, claims of ENDA's Section 5 validity are pinioned between the Court's skepticism of any enforcement legislation that doesn't target a suspect class or fundamental right, and the Court's unwillingness to bestow suspect class status on any new classes. There's more to the analysis -- in particular, the question how broad the enforcement statute is -- but this presents the gist of the problem.
Gender identity presents an even trickier question, since it raises a question of definition -- is gender identity "like" gender enough to bring it within the suspect class status accorded gender more generally? If not, then the relative newness of the issue may cause the Court sufficient discomfort with granting Congress broad enforcement power unless Congress can convincingly demonstrate a severe constitutional problem with employment discrimination against transgendered people. (Again, I seriously doubt the Court will classify the transgendered as a suspect class, regardless of whether on the merits they should so qualify.)
A different issue arises should Congress choose to impose more stringent regulation benefitting traditional suspect classes such as women and racial minorities. Recent scholarship has called for employment discrimination law that seeks to change organizational structures in firms that make discrimination possible. Scholars such as Susan Sturm have suggested regulatory regimes in which courts, managers and professionals such as lawyers and HR specialists interact to change basic structures in the firm in ways that traditional liability rules alone could not do. (I know this is not clear; read Susan's excellent article to get a better sense of this idea.)
For now what's important is the possibility that such regulation, if adopted to tackle persistent racial and gender discrimination, might be seen as violating the congruence and proportionality standard. To the extent these laws mandate deep changes in how state government workplaces are organized, they might be seen as imposing more burdensome regulation than current anti-discrimination law, which focuses more on policing discrete violations of equal treatment. Of course, this theory of regulation is, in some ways, aimed at providing employers with flexibility and discretion in determining how to make these changes; to that extent such regulation might be seen as imposing a lighter federal hand. But the target of such regulation -- not just the correction and punishment of discrete violations but the restructuring of workplace relationships to prevent violations -- reflects, in a real sense, a more aggressive regulatory approach. It's an interesting question whether the Court would uphold such regulation under Congress's enforcement power -- not just because the case might arise, but also because it would test the congruence and proportionality test against a fundamentally different regulatory model.
Finally, would an Obama Administration regulate the workplace to move toward some requirement of comparable worth? (Here's an old New York Times article that explains the basic idea.) The campaign website doesn't mention this, but it wouldn't surprise me if continued wage disparities between men and women increased the calls to start down this road. (During the campaign Senator Obama talked about "equal pay for equal work," but I'm not sure that's necessarily the same concept as "comparable worth" -- am I right about that?) This is completely speculative, of course. But if such regulation came to pass the Court would again have to consider the intrusiveness of such regulation on the states against the constitutional problem posed by continued wage disparities based on the gender identification of particular jobs. Ironically, given Hibbs such regulation might present less of a constitutional problem than more conventional regulation aimed at non-suspect classes like gays.
Post-Meat Market Silence
We are not hiring at Marquette this year, and so for the first time in four years I was not at the FRC. I don't have much to add to the prior posts concerning what separates the candidates who get callbacks from those who don't. And I couldn't agree more that the difficulty of drawing those distinctions can only be appreciated from the interviewing side of the table. I'd been led to believe that life as an interviewer would involve frequent instances of candidates bombing in spectacular and memorable ways. That hasn't been the case. I've certainly witnessed interviews that didn't go well. I've yet to see a disaster.
All of which means that you may be reading this as a candidate whose only phone calls have been from your spouse or your clients. Meantime, the hiring thread below reveals that others are getting callbacks. Some of them are getting lots of callbacks. And these are from the places where you thought you had a good interview. I've been there. (Though without the additional anxiety that I'm guessing accompanies instant knowledge that those callbacks are going to others.)
One of the other things best appreciated from the hiring side is just how many of us were meat market candidates more than once. Without thinking too hard about it I can identify eight people whose first trip to the meat market was unsuccessful. And I am not what you'd call well-connected, so I'm drawing on a pretty small sample size. Some of those repeat players have since made very nice names for themselves.
My first trip to the meat market netted me a respectable number of interviews and nothing else but heartache. To call me unprepared would have been to understate the matter. (Let's just say I was a little too reliant on the skills I used to interview with law firms and leave it at that.) My second trip, several years later, opened with an interview with a team from what was probably my least-preferred of the schools on my dance card. They wanted to know if I was interested in a non-tenure track position the details of which did not even remotely pique my interest. That was kind of a depressing start. I had a break between that interview and the next and recall sitting in the lobby thinking that the whole process would again turn out to be a waste of time.
Turned out I was wrong. I had a better sense of what I was doing (as well as a couple more publications, a work in progress that I was pretty excited about, and an actual, you know, scholarly agenda). That led to callbacks, and ultimately a job offer.
I do not want to offer up false hope. These jobs are hard to come by, and not everyone will get one. But for those of you who have heard nothing: the fact that your phone has been silent so far doesn't mean it's over. Sometimes, for various reasons, the call won't come until December or January. Or even, on rare occasions, later. Of course, there's a real possibility that this won't be your year at all. You might have to do some more writing and think seriously about how you present yourself (which, paradoxically, may involve showing enthusiasm for the non-scholarly aspects of the job) and come back another year. It ain't easy, and it's hardly a sure thing, but it can be done.
Southern for *!@#&!!
Leaving aside any of my own views on Sarah Palin, I must offer a note of translation to those who watched her interview on the Today show, or read about it here. Palin is quoted as saying the following about her unconventional desire to give a concession speech of her own on Election Night, which was nixed by the McCain campaign:
Ms. Palin said she wanted to introduce Mr. McCain on election night in order to “brag him up,” as she put it, “and do what John McCain just can’t seem to do for himself, bless his heart.”
I don't know how she came by the locution, but Southerners and folks like me who live in the South understand its meaning and, as a public service, are glad to translate it for you. Here's how one writer describes the phrase:
In the South, we believe in being polite even if it kills us. So, when we just can't fight the urge to say something nasty, we follow it up with a "bless her heart" just to make us feel better. "Look at that poor woman trying to jog around that track. Her rear-end is dragging a trail, bless her heart."
The title of a book on Southern life gets it about right: Bless Your Heart, Tramp: And Other Southern Endearments. I think McCain's people made the right call on this one. Any "bragging up" that is prefaced or followed by "bless your heart" is going to feel just a tad more like tearing down.
The Weird Lineup in Pleasant Grove v. Summum
Following up on an earlier post, oral argument in Summum is today. Pamela Harris (O'Melveny and Lecturer at Harvard) is arguing for Summum; Jay Sekulow (ACLJ) is arguing for the City.
But the lineup of amici is striking, and it reveals how weird this case is. Usually, in church-state cases, there's a pattern. The left files briefs for one side; the right files briefs for the other; and the federalism people and judicial restraint people file briefs for whatever side federalism and judicial restraint are on (not that they always go together).
But Summum is different. One might expect that the left would file for Summum, while the right would file for the City. But that hasn't happened. The City has 16 amici briefs in its favor; poor Summum has only 2. (I am reminded of Justice Scalia's maxim that when the amici are stacked in one's side favor, be suspicious.) And many of the briefs from the traditional left (Americans United, The Baptist Joint Committee, the American Humanists) were filed "in support of neither party." So what is all that about? And what do we make of the Rutherford Institute, a right-wingish public interest group, similar in some respects to the ACLJ, filing on Summum's behalf? What is going on?
What makes Summum so much fun is that it crosses up the usual party lines. The right has a natural sympathy with Summum's claim here. For years, they've argued (sucessfully in cases from Widmar to Good News) that it's unconstitutional to exclude religious voices from the public square. The left doesn't agree, sometimes itself relying on the government-speech doctrine to say that the government can shape its own speech the way it wants.
Take legislative prayer, for example. There are a number of modern cases where speakers are alleging constitutional rights to give "sectarian" prayers. Their claims have some natural force -- if the government requires all prayers to be nonsectarian, it by necessity has to exclude people who would give sectarian prayers. This means that people who are religiously obligated to pray to Jesus or Allah are simply out. That's discrimination -- and the right argues that it's unconstitutional. The left tends to see speakers as simply having no rights in the matter. The left sees speakers in legislative prayer cases the way the City sees Summum -- as interlopers with no constitutional rights to come in and upset the apple cart. The Rutherford Institute actually has a cert petition pending in one of these cases. The institute filed it on behalf of a city councilmen who claimed a constitutional right to refer to Jesus Christ in his legislative prayers. When Summum (probably) loses, the resulting decision will likely bury the councilman's claim. That's, in part, what the Rutherford Institute is concerned about.
So Summum will likely lose. And its loss looks on the surface, to be a loss for the left. But I am not so sure it is. My guess -- and it's only, of course, just a guess -- is that it's Jay Sekulow and the ACLJ that will be the ones really complaining about Summum in years to come.
All for now; more later. I can't wait for the transcripts.
Executing Retributivism, redux
I'm home now from the autumnal delights of Falls Village, CT only to be hobbled by terrible sniffles just before class begins this afternoon. Alas, I'm not the Canadian I once was. In any event, I meant to get this up on the blog last week, but better later than never. For the Eighth Amendment fans in the audience, I have recently put up a substantially revised and expanded version of my article, Executing Retributivism, up on SSRN (and forthcoming this spring). There's still a good bit more work to be done toward the end (not to mention editorial work below the line throughout), but I have tried to improve and clarify the argument that Panetti v. Quarterman, a case the SCT decided in 2007, has substantial implications for the constitutional regulation of both capital and non-capital punishments, implications that have not been sufficiently appreciated so far.
To be more clear about my intervention, I am not arguing that the holding in Panetti requires the end of capital punishment or the end of the warehousing of the mentally ill in prisons, to name just two. Rather, my claim is that the ratio decidendi of the decision should lead lower courts and defense lawyers to revisit the rationales currently used to justify some of these practices, which are, to say the least, problematic from a retributive perspective. As there is still time to revise in light of feedback, I'd be grateful for anyone's off-line thoughts.
I have also put up new drafts of some other works in progress: Retributive Damages; How Should Punitive Damages Work?; and Punishing Family Status (with Ethan and Jennifer Collins). The first and third pieces are close to finished (coming out in January and December respectively), but the second piece is still very early on and I'd be grateful for comments on the piece, which offers a sketch of how to redesign the architecture of punitive damages.
[Legalize] Bong Hits 4 Jesus!
The then-18-year-old Alaskan who held up that infamous "Bong Hits 4 Jesus" banner has received a $45,000 settlement from the school district according to this story in the Anchorage Daily News. Apparently the student, Joseph Frederick, had additional claims that weren't decided by the Supreme Court including a claim that his free speech rights were violated under the Alaska Constitution, which states: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." The settlement also reportedly requires the school district "to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech."
I became tangentially involved in this case when it was before the 9th Circuit by writing an amicus brief for the Student Press Law Center in support of the student. When Kenneth Starr later stepped in on behalf of the school district and filed for cert, I repeatedly assured the SPLC that the Supremes would never take the case -- it's a far too messy vehicle, it's not even clear the kid was at school, and, most importantly, nobody has any idea what this crazy sign meant! I, of course, soon ended up writing another amicus brief when the petition was granted.
The interesting question I think this settlement raises is whether Frederick had broader free speech rights under Alaska's Constitution than he had under the U.S. Constitution. It certainly seems doubtful that the Alaska Supreme Court would have concluded -- as the U.S. Supreme Court did -- that there is a free speech exception if public school students engage in speech that can reasonably be construed as advocating illegal drug use. The "on all subjects" language in Alaska's provision strikes me as contrary to such a specific subject-matter based exception. I wonder if this might signal a trend where citizens begin relying more on their state civil liberties than on their federal ones.
I'm also intrigued by the mandated forum on student speech. After this case, what guidance can this "neutral constitutional law expert" offer to administrators, teachers and students? When the next banner is raised should the principal feel safe in confiscating it and punishing the student or is there still too much risk that she would be violating the student's rights under the Alaska Constitution. And the next time a student wishes to express himself can he take much comfort in the caveat by Justices Alito and Kennedy that nothing in the Court's opinion supports "any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'" How much protected student speech will be chilled? What's a well-meaning, law-abiding principal to do? And we all thought "Bong Hits 4 Jesus" was confusing and ambiguous . . .
Why We Watch (Guest Post From Frederick Vars)
I've already written here about my enthusiasm for the work of my new colleague Fred Vars, who brings a set of valuable methodological tools to a variety of interesting questions. (Commenters last time asked: is it law? is it economics? My answer -- whatever. It's interesting.) Fred must have a sweet tooth for sports, because following his interesting paper on the optimal targeting of soccer shots, he's sent along this interesting tidbit on why people watch losers in baseball. Here's what Fred has to say:
The climax of the baseball postseason this year was not the World Series. It was game five of the ALCS, in which the Red Sox, down by seven runs in the seventh inning, climbed back to beat the Tampa Bay Rays. A surveyusa poll of Boston area respondents showed, tragically, that roughly half (47%) of those watching the game turned it off before the end. Are Sox fans quitters?In their defense, the probability of a comeback was miniscule. The best estimate I’ve uncovered comes from the Win Expectancy Finder, which compiles data from 1977 to 2006. A home team down by such a margin in the seventh inning won no more than 1.8% of such games. So why did so many fans (53%) keep watching? If we assume that seeing the Sox lose gives fans no pleasure (“no joy in Mudville”), we can calculate how much pleasure not watching the game would bring the median Sox fan. Not watching was just a tiny bit better than seeing a loss. In other words, seeing the Sox come back from that far down gave the median fan about 56 times the enjoyment of the next best use of time. The thrill of victory indeed (even without a championship)!
Comments are welcome. I cannot help but reflect that, having written about missing shots on goal in soccer and the viewership for losers in baseball, Fred may be suffering from some strange illness or homesickness that precludes him from focusing on winners. Fred, remember that the Crimson Tide is 10-0!
A) Well-Meaning? B) Patronizing? C) A Little Sad? D) All of the Above? E) None of the Above?
This is a sensitive one, but I think well worth writing about.
In her column this past Sunday, Maureen Dowd (of whom I am generally no great fan) writes about the scene in Washington -- and elsewhere across the country -- after the election:
I grew up in the nation’s capital, but I’ve never seen blacks and whites here intermingling as they have this week.
Everywhere I go, some white person is asking some black person how they feel. . . .
I saw a white-haired white woman down the block from me running out to strike up a conversation with a black U.P.S. delivery guy, asking him how he felt and what this meant to him.
I was starting to feel guilty. Every time I passed a black patron at a downtown restaurant or a movie or the Kennedy Center, would perfect strangers want me to ask how they were feeling? Or was that condescending and were they sick to death of it? . . .
Dowd continues by noting that the election of Barack Obama provides an obvious moment of common ground and mutual reflection on the changes in our country, and that it's natural that such conversations take place, even if they are "awkward." She concludes, a little jokingly: "But is it time now for whites to stop polling blacks on their feelings?" Leon Wieseltier says some similar things in his typically overheated TNR column this week, ending in the somewhat embarassing way that only Wieseltier can:
I woke up the next morning still under the spell of solidarity and love. I decided to make the spell last. I gave away my tickets to a performance of some late Shostakovich quartets, because for once I was not interested in the despair. Instead I spent the day listening to the Ebonys and the Chi-Lites and the Isley Brothers. For lunch I went to Georgia Brown's for fried green tomatoes. A day of dopey symbols, I admit.
I witnessed something of the same thing here in Alabama, where I was told that a friend -- a fine and decent person who has extended herself in recent months on issues of educational reform in a region that badly needs such efforts -- had come up alongside a black driver who had cut her off, not to cuss him but to roll down her window and give this total stranger a big Obamic thumbs-up.
The controversial part would come, I think, if I tried to make sense of such a phenomenon. I would inevitably reach the point where I point out that there's a certain de-haut-en-bas quality in such moments, however enthusiastic and loving and well-meaning they are ("you people must be so happy" -- reminiscent, really, of Biden's "he's so articulate" quote); that it is perhaps not just about sharing one's feelings, but also about finding a way to publicly demonstrate one's liberal credentials and assuage one's own racial insecurity; that white people who actually have a healthy number of black friends probably feel less of a need to accost black strangers; and that treating black strangers as fungible recipients of your joy is probably an ineffective substitute for actually having meaningful interactions with people who don't share your racial and/or social, educational, and class background.
It would read, in short, as a critique (but a loving one: I certainly don't think one need be entirely cynical about these moments, and as Dowd writes, awkward conversation is better than none at all) of (mostly white) bien-pensant liberals. And since that describes much of the Prawfsblawg readership (and writership! -- me included, no doubt), not to mention that of many similar blogs (and the legal academy in general?), well, it might come off a little harsh. So let me not go there. I'll just say that, as I wrote last week, everyone can recognize Obama's election as a moving and important step forward. As usual, though, that step forward can be a decidedly awkward one on the individual level of race relations in America.
Tuesday, November 11, 2008
What do you call the little "(i)" and "(i)(i)" in a statute?
Monday's Supreme Court oral argument in United States v. Hayes (pdf) was dense with debate over rules of grammar and statutory interpretation, all aimed at figuring out what Congress meant when it passed a statute in 1996 that expanded the scope of a law that makes it a crime for those convicted of felonies to possess a firearm. Just how far the new law went to include those convicted of domestic violence misdemeanors was the subject of the day, and by the end of the hour it was harder to predict the outcome than it was at the beginning.
One bright spot in the colloquy came during Assistant to the Solicitor General Nicole Saharsky's defense of an expansive view of the law. In discussing the statute at issue, 18 U.S.C. 922 (a)(33)(A)(i) and (ii), justices had been referring, awkwardly, to sections "little eye" and "little eye eye." But Saharsky had a far better way. She called them "Romanette one and two," using an obscure but self-explaining and almost whimsical term for a lower-case Roman numeral.
"Romanette?" asked Chief Justice John Roberts quizzically.
"Oh, little Roman numeral," Saharsky replied offhandedly.
"I've never heard that before!" said Roberts. "That's ... Romanette."
In all his days in the solicitor general's office and in private practice, Roberts had apparently never run across the term. The audience laughed -- including many, to be sure, who had never heard the word before themselves. Chief justices, along with everyone else, can learn something new every day.
H/T: Patrick Sellers, a former Legislation student
Another Cheer for Clicker Technology
Miriam Cherry on Concurring Opinions has a fun and informative post about gaming in the classroom. She mentioned "clicker technology," and the basic setup is that the students have these clickers and they can use them to answer multiple choice questions that a professor can throw out on an overhead. I've been using clicker technology this semester, and I really dig it. It's useful in a lot of ways. You can certainly use it to test students. I try to throw in a multiple choice question or two every now and then to make sure they're getting it. (I do not grade students on their answers; I understand that potential exists, but I am hesitant about that for various reasons.)
My point is that clickers can also be a good way to spark class discussions. A couple weeks back, my Contracts class did tortious interference with contract. We spent some time talking about alienation of affection, a tort in Mississsippi and a few other states under which a deserted spouse can bring suit against a third party alleged to be responsible for the failure of the marriage. Alienation of affection is an analogue to tortious interference -- take the elements of tortious interference, replace the word "contract" with the word "marriage," and basically you get alienation of affection.
So we read Fitch v. Valentine, a recent Mississippi Supreme Court case that, among other things, addressed whether to abolish the tort. I polled the class about whether, if they had been on the Fitch court, they would have voted to abolish or retain it. I also had them (anonymously) indicate their genders, and broke the stats down. 79% of the women in the class said they would have voted to abolish the tort. But only 42% of the men would have done so. I was shocked at the seriousness of the disparity. And, as you can imagine, this fueled an interesting class discussion about contracts, law, and gender.
Another Paper for the Institutionalists Among Us
I briefly plugged Judith Areen's excellent new paper on academic freedom and governance yesterday. Let me also plug another new paper that ought to be of interest to people with an interest in First Amendment institutionalism, as well as privacy law scholars. It's by Amy Gajda at Illinois and it's called Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press. Here's the abstract:
Courts, John Marshall famously declared, must "say what the law is." Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists' own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive evidence that the topic was of legitimate public interest and therefore beyond the control of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically, an emerging tool used by courts to police news outlets is journalists' own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while, in fact, aggressively scrutinizing editorial judgments.
This Article demonstrates the growing threat to press freedom posed by these emerging trends. Part I places the conflict in historical context, showing how evolving legal understandings of privacy and press freedom set the two on course for a modern collision over "newsworthiness," which was resolved initially by deferring to journalists' editorial judgment. Part II explains how recent developments - including growing resort to journalists' codes of professional ethics - have undermined judicial deference to journalism in defining the news. Part III examines the implications of the nascent resurgence of tort regulation of journalism, and Part IV concludes by suggesting ways in which courts and journalists individually might end this narrowing of news.
It's superbly researched and well worth reading. I'm not sure my own take on these issues is quite as negative as Prof. Gajda's, but she marshals an impressive argument.
Monday, November 10, 2008
A quick question about the FRC
Like Michael, I'm just back from the FRC, where I had a great time meeting a bunch of (intimidatingly) talented and accomplished people. I was struck, during the conversations, that nearly every candidate, when asked (something like) "do you have any questions for us", asked "why do the Irish stink at football these days?" (not really) or (something like) "is there research support for junior faculty"? And, my colleagues and I responded each time with what must have seemed like a canned recitation of our policies with reference to first-year teaching loads, pre-tenure leaves, internal workshops, travel and summer-research funding, etc. Anyway, I wonder if we just made a mistake, and neglected to do what perhaps other schools do, i.e., include a description of these policies in the materials we send out before the FRC? Or, is this just uniforming thought to be a safe question to ask? If we were to take care of answering this question in pre-FRC correspondence, would we be doing candidates a favor, by answering their unasked question? Or, would we be depriving them of a helpful go-to question for that inevitable "any questions for us?" moment during the interview?
Tip for Political Junkies: "A Perfect Candidate"
A big story in this past election was the change of Virginia from a red state to a blue state. If you are a politico coming down off the heady fumes of this year's contests (cf. the chart included in this post), you should check out the documentary "A Perfect Candidate." The documentary chronicles the 1994 Virginia Senate contest between Chuck Robb and Oliver North (with Doug Wilder in an Oscar-worthy supporting role). It's an incredible documentary -- it focuses on North's campaign, and the level of access granted by the North folks is unbelievable in retrospect. Given the fairly raw footage on display, it's unlikely we'll ever see it again. But you should check it out -- it is a slice of American politics that can rarely be seen so vividly.
Just to sell it a little more:
- There are so many scenes that are really startling -- startling because of their unguardedness. There's Chuck Robb wandering around a grocery store looking for voters. There's the elderly DAR member who supports the flying of the Confederate flag. There's the (not more than) four-year old with a rifle who says he shoots "clay pigeons and Democrats." And there's the Washington Post writer who calls North a "demogogue" and his supporters "fascists." No one really escapes unscathed -- but at the same time, everyone retains their humanity.
- You can see former McCain advisor and current MSNBC guru Mike Murphy in a minor role -- shooting around ideas with the other North consultants.
- Two Republican senators express grave doubts about North's candidacy when he wins the nomination -- Bob Dole and John McCain.
- Some folks are warning that President Obama has to rein in his agenda, or he will end up with another Republican revolution like Clinton did in 1994. This movie immerses you in 1994 -- the issues, the culture wars, the icons, the drama.
- There's the scene at the end when North campaign manager Mark Goodin tears up at the loss of his candidate. Goodin comes off as a decidedly mixed figure -- a scrapper, a hard-fighter, someone perhaps willing to skirt the norms in order to succeed. But at the end, when he stands in the cold and wells up in sadness and anger, he is truly one of the iconic figures in American politics. It is hard not to be moved.
Scientocracy and the Need for Judicial Process
Despite the obvious ramifications for everybody on the planet should a black hole be produced, many scientists seem to have the attitude that any controversy about safety should be settled among scientists – engaging one another in argument – and not in the court of public opinion or among lawyers and judges in a court of law.
Such an attitude is in evidence in a colloquium talk given by decorated physicist John Ellis. The purpose of the August 2008 presentation was, in part, to give fellow scientists “the tools to convince other people that the LHC is safe.”1
In his talk, Ellis expressed in various ways a concern about the potential of the law and judicial process to interfere with particle-physics experimentation. Particularly interesting was hearing him talk about Richard Posner, whose 2004 book, Catastrophe, discussed the possibility of Earth being destroyed by a “stranglet” disaster – a scenario some feared from the now-active Relativistic Heavy Ion Collider on Long Island, New York.
“This guy, I find really worrying,” Ellis said about Posner.2 Using a slide show, Ellis flagged for his audience Posner’s suggestion that high-energy physics experimentation should perhaps be subject to a federal catastrophic-risk-assessment board and Posner’s view that a “scientifically literate legal profession” should be involved in adjudicating science-intensive controversies.
“This, I think, is not a particularly encouraging trend,” Ellis said.3
It is unfortunate that anyone would find the prospect of judicial review discouraging.
Overall, the Ellis colloquium would seem to indicate a pervasive belief among high-energy physicists that lawyers and judges have no proper place in investigating and reviewing their experimental undertakings. If that is true, such a standpoint constitutes a substantial and direct threat to a cherished bedrock concept of modern society, the rule of law.
Throughout history, various groups have tried to exploit imbalances in political or economic power to undermine the rule of law. But the modern experimental-science juggernaut wields a very different sort of power, one that arises from a knowledge gap.
When it comes to a question such as whether the LHC might plausibly create a black hole, particle physicists can easily claim that no one, other than one of their own, has the depth of understanding required to weigh in. Ellis, for his part, does not make this claim explicitly, but he hardly needs to. Indeed, at Ellis’s talk, the phrase “scientifically literate legal profession” was met with a hearty chortle from the crowd.4
The argument that no one but scientists can understand science, so no one but scientists should exercise control over experimentation, is not only an easy argument to make, it is too easy. Acceptance of such a view effectively vitiates the rule of law for a category of human activity which is potentially of ultimate importance. Thus, this ground should not be conceded. While the knowledge gap provides a tremendous challenge to providing meaningful and fair judicial review of leading-edge scientific research, it should not be permitted to bar the involvement of the courts.
But apart from the knowledge gap, John Ellis and his colleagues at CERN have another, blunter instrument for preventing the public and the courts from making up their own minds about the LHC program: They plan to render the debate moot by turning the machine on.
“The way to stop all this argument about whether the LHC is going to destroy the planet is to get the LHC working,” Ellis said.5
The word “faith” is ironic in this context. To profess faith in science is to pay it a dubious compliment. Yet, the use of the word is not, I think, misplaced. The commenter, perhaps unintentionally, ends up raising a very good question. Is that what CERN is asking all non-scientists to do? To put faith in them?
There’s a close connection between the biblical definition of faith and the implicit claim being made by CERN. “Now faith is the substance of things hoped for,” Hebrews 11:1 says, “the evidence of things not seen.”
Indeed, the meaning of the arguments and equations of particle physicists are, for nearly all of us, well hidden from sight. They lie behind a veil that would take years of training in mathematics and science to penetrate, at which point, of course, the debate will be moot. So, for all of us standing outside the community of particle physicists, what should be our basis of belief in their claims?
I would submit that if we are to believe the conclusions of the particle-physics community about safety, our belief must be rooted in a favorable appraisal of the soundness of their decision-making, the demonstrated trustworthiness of their dealing with those outside the community, and the impartiality and rigor of their risk-assessment methods. Judicial process can investigate whether these hallmarks of veracity exist in this case. And that is why scientific endeavor, like all other human activity, must be subordinate to the rule of law.
I believe in science. I believe in the scientific method. I even believe in the good intentions of the scientific community. But “faith in scientists” is another matter.
1 John Ellis, colloquium talk, August 14, 2008, at elapsed time 1:57.
2 Id. at 54:35.
3 Id. at 56:16.
4 Id. at 56:00.
5 Id. at 62:31.