Friday, May 22, 2009
Due to the personal situation of a close friend, I've been giving a lot of thought lately to the hospital visitation rights of same-sex and heterosexual, non-married partners. As reported in the NYT several days ago, the Human Rights Campaign recently released its Healthcare Equality Index, a report on the treatment of those in the GLBT community by healthcare facilities. The results are disheartening: while several facilities have policies that purport to offer rights to, for example, same-sex partners in the event of one partner's medical emergency, the implementation of those policies is often botched. As a result, in some situations even those partners with legal rights are shut out of the decision-making process with respect to their partner's treatment, and are denied access to that partner even as s/he is dying.
If the myriad legal tools offered in the various states are insufficient to protect same-sex partners (and, by some accounts, non-married, heterosexual partners), is it time for nationwide protection? I doubt we are going to see a change in the DOMA language anytime soon, but I'm not sure we need to go that far to solve this particular problem (although I do support same-sex marriage rights). So, what would a partner-protection law in the healthcare context look like? What concerns would opponents put forth that should be addressed? And what enforcement measures should be put into place?
Advice for Getting a Job on the Law Teaching Market
Thanks to a great resource by Michael Risch (WVA), one of our past and future guests, I thought I'd reprise some of the links people have found helpful in the past regarding the process of getting a teaching job in law.
Considering Law Teaching - Cornell (cache)
Leiter's Law School Reports: Professional Advice (cache)
Leiter: Law school hiring practices (cache)
Concurring opinions: Law School Hiring (cache)
PrawfsBlawg: Teaching Law (cache)
Conglomerate Blog on law schools and lawyering (cache)
Becoming a law professor - Eric Goldman (cache)
Goldman blogswarm (cache)
So you want to be a law professor? (cache)
Bainbridge on conservatives in the legal academy (cache)
Law Crossing (cache)
Paul Caron on Teaching Fellowships (cache)
Daryl Levinson on the academic market (cache)
Jeff Lipshaw - How Not To Retire and Teach
Eric Goldman - Bibliography for New Law Professors (cache)
Madison on the Meat Market (cache)
Madison on the process (cache)
More from Madison (cache)
Gordon Smith - So you want to be a law professor (cache)
Actuarial Criminal Policy
A student of mine sent me this article from the Wall Street Journal about efforts in LA to develop an actuarial model to determine what children are most at risk of joining a criminal street gang. It is exciting to see state officials say things such as this:
Previously, city officials depended on what they concede was a patchwork of information to build gang-prevention programs, often using anecdotal tips from local beat cops or high school teachers. "We were not relying on data," says Rev. Jeff Carr, an evangelical minister who is the city's "gang czar," leading outreach and prevention efforts. "We had gang-prevention programs, but no criteria to determine who was in a gang."
In Los Angeles, Dr. Klein's theories are appealing to policy makers eager to stretch limited resources. This year, the test is being given to children for the first time, and officials say they will use the results to determine whether some of the city's $24 million annual budget for gang prevention is being spent on children who aren't at high risk.
So far, 958 children who live in active gang areas have taken the test; of that group, about one-third have been identified as potential future gang members and will be enrolled in prevention programs. But city officials won't know for several years whether the test failed to pick out children who went on to join a gang.
Thursday, May 21, 2009
Conscience, Speech and TIAA-Cref Advice
There's been a lot of talk recently about conscience exemptions: exemptions from generally-applicable laws based on religious or more general moral concerns. President Obama called for one for medical personnel opposed to abortion, and the idea has been gaining currency that similar exemptions could be part of some sort of compromise on the same-sex marriage issue. Nan Hunter's discussion of the conscience clause proposed as part of the New Hampshire same-sex marriage bill (at least until it got derailed) can be found here. And of course some conscience exemptions exist as a matter of constitutional right under the Free Exercise Clause.
I've not given this matter much more than passing thought. But it hit me in a personal way yesterday when, to relieve the tedium of grading, I went to talk to my TIAA-Cref representative (a bad-news-for-bad-news trade if there ever was one). We had not met before, as it was my first meeting with a rep based in New York. Early on in the discussion he asked me for whom I was doing retirement saving -- i.e., who was going to rely on my money. I did my normal split-second assessment and decided to come out and refer to my partner as my husband. It worked out fine: the rep was perfectly appropriate and we had a good meeting.
But what if he had objected? What if he had said, "I'm sorry but I can't in good conscience give you financial planning advice designed to take full advantage of your legal and lifestyle status, both of which I disapprove. If I were to do so I would be acting to promote a relationship I consider immoral and would be a party to the perversion of the concept of marriage." Could he do that? Should he be allowed?
I ask this because in the past I've heard scholars and commentators debate these kinds of issues in the context of wedding photographers and the like -- there was an infamous case of a photographer in New Mexico who refused to take photos at a same-sex commitment ceremony. Some participants in these dicussions have argued that forcing a photographer to take photos of a ceremony, on pain of violating a public accommodations law, violated the person's free speech rights. I assume there's consensus at the extremes: nobody would think a minister should (or could) be forced to preside over a marriage ceremony to which he has moral or religious objections. But how far does that go? The photographer? How about the cake decorator? (Don't forget the unfortunate "Happy Birthday Adolf Hitler" birthday cake incident.) The limo driver? The tux renter? The financial planner?
I don't have a strong position on this, much less an answer. I can see the arguments on both sides -- and I can also see the practical point, made by Dale Carpenter, that most gay people would simply not want a personal service from someone who objected on moral grounds to providing it to them. But when it gets to day-to-day kinds of services (my financial planner, for example), should it fall to, well, me, to have to call his manager and request another rep? That seems to inflict a real dignity hit on me: "Uh, Mr. Smith, the rep I met with this morning considers my marriage immoral and perverse: could you please find someone who's willing to look at our investments?" Let me be clear: I've never faced that situation. But I suspect others have, maybe if not so explicitly (or maybe so -- consider the case of the Houston landscaper).
Any thoughts? How far does conscience go? How far does speech go? Cake decorating? Financial planning? Landscaping?
Against Prediction as Control: Of Boulders and the River
The times recently have witnessed a dizzying flurry of predictions about whom President Obama might next nominate to the Supreme Court and about how that someone might interact with, affect, and be affected by the Court's current denizens over time. In one of the comments to Hillel Levin's posting, Christian Turner offered the highly evocative image that attempting to predict who will influence whom, and in what ways, is like choosing among boulders to throw into a rushing river in order to give it, over time, the proper shape. Making these types of predictions -- about how the boulders will respond to one another as the river courses on for years and decades -- is a nearly impossible task.
I agree with Professor Turner, but I want to make a different point here that nevertheless draws from his metaphor. Whether or not it is actually impossible, or nearly so, to make these sorts of predictions about influence and the effects that one boulder may have on another or on the shape of the river over time, I think that it is a mistake to want to do so.
It is a mistake of overconfidence in one's ideas about what the river ought to look like 5, 10 or 20 years in the future. Time passes and people's lives change and are affected by those other folks that they encounter and the enormous variety in the quality of their lived experiences. Why should Supreme Court Justices be any different? One of the most suggestive aspects of Professor Turner's metaphor is its naturalism. Over the long run, the river is not subject to human artifice or other mechanisms of control. It is shaped as much by serendipity and the vagaries of time and experience as anything else. It might be different if we were designing a golf course, for example, where we could control more intimately each detail of the landscape.
But human relationships are not like that -- they are not subject to clever controls and calculations. They are messy and unpredictable. And one should not wish that they were otherwise. How one feels now -- today -- about the shape that the river ought to take may not be how one feels 10 or 20 years down the road. For myself, I hope very much that I do feel or think differently about this or that issue, this or that constitutional question, in 10 years, or 20 years, than I do now. I don't mean that I anticipate with relish some sort of violent about face or radical crisis of conscience in my views as time rolls along. I do mean that I remain very much open to the possibility that I will think very differently about things during the course of my lifetime. And I think that an over-eager zest for prediction about these sorts of things bespeaks a kind of calcification, almost as if one hoped very much that one's present thoughts and hopes about the "direction the Supreme Court ought to take" (as if this could ever be a single direction, or one which would not perpetually deviate here and there) ought to be fixed in amber for eternity -- or, at least, for the decades that are the object of one's predictions.
Naturally there is nothing wrong with making guesses about who will be the lucky contestant. But predictions about who is likely to affect whom years or decades into the future, and in what ways, are not only unavailing. They betray a desire to control what cannot, and should not, be controlled. It may be better to sit and watch as the river runs its course, flowing over the Court and the rest of us.
Reality Imitating Art, or Vice Versa?
I just saw an interesting question on The Chronicle of Higher Education’s site about fictional professors that have served as influences in the lives of actual faculty. Much like L.A. Law or Boston Legal may have inspired people to go to law school, there are certain teachers and professors on television and in films who probably inspired us to go to the Head of the Class. Personally, I was more inspired by the depictions of teachers in other disciplines than I was in characters portraying law professors. They seemed more accessible than the typical law professors, who are often depicted as cold, judgmental, and intimidating. (In fact, I can’t think of a friendly one.) Who are some of the best teachers on television and the big screen? Are these depictions realistic?
Prawfsblawg Gets Results: A Post by Eugene Kontorovich
I recently criticized in print and more extensively on this blog, Spain's highly selective prosecution use of universal jurisdiction. Spanish courts have pursued charges against foreigners involved in highly complex, politically charged scenarios and not even in their custody; that they have gone so far as to order the release of captured pirates, the paradigm international criminals. Apparently spoke Spanish politicians were reading, and it looks like the universal jurisdiction statute will be repealed or greatly limited. Actually Spain was responding to political pressure from America, China and other countries whose officials are being investigated by Spanish magistrates for things having absolutely nothing to do with Spain. The same thing happened in Belgium when they began using their universal jurisdiction statute aggressively -- American and Israeli pressure led to a legislative change.
Indeed, politicians in most countries that aggressively use universal jurisdiction are not very happy with what the courts are doing. This suggests that while universal jurisdiction may have gained broad acceptance within the narrow circles of international legal academics and activists, the norms have not defused more broadly, and have not been adopted by the statesman that determine national policies.
In a provocative post on OpinioJuris, Ken Anderson wondered why Democrats are not more alarmed by the use of universal jurisdiction against American officials. Surely, what is used against Republican officials today could be used against Democrats; consider Pres. Clinton’s massively illegal bombing of Serbia; or Pres. Obama’s escalating policy of targeting killings of Pakistani and Afghan pseudo-civilians (and their civilian neighbors).
Ken suggests that the Democrats may not be worried because they know the Europeans won't prosecute them, because of a mutual understanding that the Democrats are the good guys. Thus, Democrats might not be afraid to see foreign universal jurisdiction prosecutions increase, because they know it's only domestic affect would be to put increasing pressure on Republican officials. Of course selective prosecution is one of the greatest dangers of universal jurisdiction. The Spanish are prosecuting the US, but not Iraq or Syria; Israel
but not Hamas or the PA. Why not Republicans but not Democrats?
Consider two arguably illegal American wars: Serbia and Iraq. In both cases, the US sought and was denied Security Council approval, but bombed anyway. The former war is long forgotten, and the latter considered by many a massive defiance of international law. I think the difference is not entirely attributable to the political parties involved, though I wouldn't dismiss that consideration. Rather, the difference in parties was accompanied by a difference in policies and worldviews. Everyone understood that attacking Serbia, despite Clinton's protestations to the contrary, was not particularly useful for advancing American security interests. The Iraq war, on the other hand, was against a long-standing enemy of the United States-- the motive was clearly not altruistic. Just as there may be a double standard for “us” and “them” – much greater criticism and scrutiny of Western misconduct rather than non-Western misconduct – there may be a double standard based on whether the given conduct is designed to help us or them.
Serbia and Iraq. In both cases, the US sought and was denied Security Council approval, but bombed anyway. The former war is long forgotten, and the latter considered by many a massive defiance of international law. I think the difference is not entirely attributable to the political parties involved, though I wouldn't dismiss that consideration. Rather, the difference in parties was accompanied by a difference in policies and worldviews. Everyone understood that attacking Serbia, despite Clinton's protestations to the contrary, was not particularly useful for advancing American security interests. The Iraq war, on the other hand, was against a long-standing enemy of the United States-- the motive was clearly not altruistic. Just as there may be a double standard for “us” and “them” – much greater criticism and scrutiny of Western misconduct rather than non-Western misconduct – there may be a double standard based on whether the given conduct is designed to help us or them.
Put differently, given that nationalism has become a dirty word in Europe, actions by Western nations designed to advance a classically conceived national interest will face heightened suspicion. The Obama administration's reputation for internationalism may give it the benefit of the doubt for a while.
That said, I think it bears noting that the official position of the Obama administration as far as I can understand it is as opposed to foreign prosecutions of US officials under universal jurisdiction as was the Bush administration. And the overwhelming tendency of any administration will be towards risk aversion in these matters. Ken has argued that by calling prior conduct torture but not prosecuting it, Obama sets the stage for, indeed invites, foreign universal jurisdiction prosecution of Bush officials. Maybe. I'd certainly say it would invite a fascinating inquiry into the meaning of complementarity – the idea that universal jurisdiction should only be used when the primary country involved is unable or unwilling to bring prosecutions because domination by the accused. Would Europeans say Obama is “unwilling” to fulfill his international legal duties – itself a heavy accusation?
That said, I think it bears noting that the official position of the Obama administration as far as I can understand it is as opposed to foreign prosecutions of US officials under universal jurisdiction as was the Bush administration. And the overwhelming tendency of any administration will be towards risk aversion in these matters. Ken has argued that by calling prior conduct torture but not prosecuting it, Obama sets the stage for, indeed invites, foreign universal jurisdiction prosecution of Bush officials. Maybe. I'd certainly say it would invite a fascinating inquiry into the meaning of complementarity – the idea that universal jurisdiction should only be used when the primary country involved is unable or unwilling to bring prosecutions because domination by the accused. Would Europeans say Obama is “unwilling” to fulfill his international legal duties – itself a heavy accusation?
Systematic Reviews, Conflict Resolution, and Party Control
In a recent post, I argued that systematic reviews are perfectly compatible with at least two goals of our adversarial system: finding the truth and avoiding arbitrary outcomes. In fact, I believe that they advance these goals better than adversarial procedures (putting aside for now--I will address this in my next post--the critically essentially issue of where the review's guidelines come from in the first place). In this post, I want to examine two goals of adversarialism that are in tension with systematic reviews: conflict resolution and party control
That systematic reviews do not necessarily facilitate conflict resolution and party control is easy to see. Reviews can frequently take as long as one or two thousand hours to produce, or about 150 to 300 eight-hour workdays; independent experts will likely not be able to dedicate half a year full-time to such a task, to the total number of days will run even longer. And by definition the independent expert producing the report is outside the control of the parties--and, in fact, is more reliable than the partisan expert precisely because he is outside the control of the parties.
There is no real way to reconcile systematic reviews with these goals, so here I want to take a completely different tack: when it come to cases involving complex scientific evidence, we may want to prioritize accuracy and non-arbitrariness over conflict resolution and party control.
To see why, I want to reject a common defense of party control. Cecil and Willging quote a federal judge as saying the following, when explaining why he or she dislikes independent experts: “We’re conditioned to respect the adversary process. If a lawyer fails to explain the basis for a case, that’s his problem." It is a common sentiment, but despite whatever merit it may have had in the past, it is completely wrong today.
Ours is a lightly regulated economy; even the almost-certain upcoming wave of reforms are unlikely to change that, especially outside of the financial sector. We call on our court system to act as both regulator and social insurer. Such a role means that a lawyer failing to explain his case hurts more than just his client, and a bad jury verdict can resonate far beyond the particular plaintiff and defendant.
Tort law provides a clear example. The National Vaccine Injury Compensation Program was created at least in part from a fear that systematically excessive jury verdicts would eliminate vaccines altogether (excessive in the law and economics sense: vaccines provide a net social surplus even when the harms are taken into account, but the damages exceed the harms by enough to eat too deeply into the legitimate profits to make production worthwhile). A few bad cases could have had industry-wide ramifications.
(As a side note, I am afraid to think of what would have happened had the recent panic over vaccines and autism--a panic that may be helping measles spread in England, where it really caught on--resulted in litigation before a jury rather than before the Program's special masters, who dismissed the link as wholly without scientific merit.)
There is a general informational externality in cases. When the courts get the science wrong in one case, all firms in all industries (though perhaps more strongly the more closely linked the industries, or type of evidence, are) adjust their beliefs about the likelihood of a scientifically accurate verdict in cases they may face in the future. If juries too readily accept arguments of causation, those who produce relatively non-harmful products will be over-deterred; if juries are too quick to dismiss legitimate causation, those who produce relatively harmful products will be under-deterred. Either way, the implications of one case can reach far beyond it, and such externalities need to be acknowledged alongside speedy resolution and party control.
And this is not an issue unique to torts. In light of the National Academy of Science's blistering critique of forensic evidence, we should expect lawyers to attack everything from eye-witness testimony to fingerprints to truly unreliable techniques like "forensic odontology" (bitemark analysis). In the absence of some sort of officially regulatory body to assess forensic techniques--and the Innocence Project is actually pushing for just such a body--it will fall to the courts to regulate forensic science. Assuming that outcomes are path dependent, the quality of the scientific decisions reached in early cases could have huge implications on subsequent outcomes. There is something to be said for dragging out these early cases, for putting the social good ahead of the individual.
The effects extend beyond the injurers to the victims as well. Court cases, at least high-profile ones, can act as important channels of risk communication. If the courts are reaching bad outcomes--were they to sanction the link between autism and vaccines, say--they are communicating risk badly. And at the very least, where the courts and the scientific community in general (over-anthropomorphizing slightly) are in conflict, that conflict only adds to the swirl of competing claims, which make it hard for people to know what to believe.
And note that restricting the type of scientific evidence available does not undermine other, more consequentialist goals of party control. Stephan Landsman, for example, argues that party control allows more innovating claims to reach the courts. Parties remain free to think up any sort of cause of action they desire. They simply can't rely on incorrect or insufficiently reliable evidence to support it. Landsman also points out the importance of voice: that simply being allowed to speak has great value, a point supported by the evidence in Tyler and Huo. But again, we put limits on what exactly people can say all the time: the rules of evidence are all about balancing probative and prejudicial.
Plus, under current practices, systematic reviews would not impede voice at all. If produced by special masters, they would be used to assist the judge in his Daubert proceedings, but they actual presentation to the factfinder would be done by the partisan experts who survive review. If produced by a Rule 706 expert, they would be presented alongside--not in place of--partisan expert testimony.
Nonetheless, we don't want to ignore the importance of speed and control. Some cases don't involve the type of evidence that demands a systematic review--we don't need to synthesize high-quality RCTs to determine whether wearing a parachute reduces the risk of death when skydiving--and in these cases we should focus more on conflict resolution and party control. And I am more confidence that this is the type of screening function that judges may be more competent to undertake. It may be hard in some borderline cases for judges to decide whether the evidence is sufficiently compelling to mitigate the need for systematic reviews, but that error rate is likely lower than that when judges try to assess the quality of evidence directly.
Wednesday, May 20, 2009
Textbooks on Kindle
I had a chat with my publisher today, and he raised the issue of offering textbooks on Kindle. There are myriad pros and cons, but I thought I might send a post to see what others think of the idea. Would you permit your work to be offered on Kindle? Should textbooks be available for students to purchase in this format?
The Establishment Clause and the Test of Time
Via the absolutely indispensable Howard Friedman, I see this story out of Oklahoma. It appears that a bill has now been signed by the governor (it had passed 83-2 in the OK House of Representatives) to erect a Ten Commandments monument at the state capitol (for those who may not be familiar with Professor Friedman's Religion Clause blog and who are interested in this area, his blog is a superb place for the latest). The monument will be paid for by private funds, though it looks like those funds are coming from the family of the Oklahoma representative who introduced the bill (that doesn't change the fact that the funds are private -- it's just interesting).
The bill assumes a defensive and somewhat tentative posture, recognizing that it may well be deemed not to fall this side of the all-important chasm that divides Van Orden v. Perry and McCreary County v. ACLU. It authorizes funds for its legal defense (should such be needed...not saying they will be...but, just sayin'...). And it provides, oddly enough, that the monument "shall use the same words used on the monument" in Van Orden, as if it were the words of the monuments themselves, as opposed to the context in which they were displayed, that made all the constitutional difference between McCreary and Van Orden.
Prognostication is not something I am very good at, and when it comes to reading the entrails of the protean beast that is Establishment Clause doctrine, even the Delphic Sibyl would have her hands full. But one obvious difference between the monuments is that the Van Orden monument had been in existence for 40 years or so, while this one is brand new. Should this difference make a difference?
It certainly made a difference to Justice Breyer, the swing vote in the 2005 cases. The age of the Van Orden monument lent it a kind of wholesome aura:
"[T]hose 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect to promote religion over nonreligion . . . . Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage."
One might discern two lines of argument in this statement. The first is that insofar as the Court is attempting to ferret out the legislative purpose that moves a religious display, the passage of time makes discovering such a purpose less feasible, murkier. There is both an evidentiary and an epistemological facet to this murkiness. The evidentiary point is the usual one that as time passes, proof of purpose is more likely to be lost to history and irretrievable. The epistemological point is that the passage of time renders it more difficult to pin down a single purpose because different people will come to know and think about the monument in widely diverse terms -- purpose may well become pluralized. These points about the passage of time and purpose were picked up by Justice Souter in his McCreary opinion, where the Justice rejected both the Counties' claim that only the last iteration of the TC display should be examined to determine purpose and their analogy to McGowan v. Maryland: "[T]he world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence[.]"
I want to set these points about purpose aside, and to focus on the second possible argument about the passage of time. One might take Justice Breyer to mean something more substantial and, I think, controversial -- that the passage of time all by itself grants to existing traditions and practices a presumption of validity and non-interference. It is not a presumption that is irrebuttable -- it may be overcome given the right circumstances. But custom and tradition is a point quite in favor of constitutionality.
This point would be reminiscent of a kind of Burkean Minimalism, a la Cass Sunstein. Just in virtue of the mellowing, neutralizing power of time and custom, a religious display may be transformed from unconstitutional to constitutional. This is an entirely anti-Holmesian point, if one calls to mind Holmes's famous aphorism about the 'revoltingness' of prizing the past qua past. Judge McConnell once thought, after the Glucksberg decision, that this was the direction in which substantive Due Process was headed (see, for example, his article, The Right to Die and the Jurisprudence of Tradition). Lawrence v. Texas seems to have thrown a sizable monkey in that wrench. Might it be a fruitful direction for Establishment Clause doctrine, at least in the context of religious displays? Could the traditionalist argument from custom bring just a small bit of calm to the wildly unpredictable storm that lashes about the ship of Establishment Clause doctrine? Even if it would not bring complete calm -- as it surely would not -- might it achieve some sort of a modus vivendi that couldn't be any less confounding than what we've got now? The past may be a beacon for ships at sea.
Even if the answer to these questions is yes, it will offer little comfort to the defenders of the Oklahoma display.
Pleading and the evolution of federal court litigation
Some random thoughts on Iqbal and its future effects, particularly in light of the very interesting exchange that has attended this post.
First, over the weekend I finally read Richard Epstein's paper on Twombly from last spring, which was coincidental to Iqbal being released Monday. Epstein places Twombly (and we now can do the same with Iqbal) in the broader context of the evolution of federal litigation since 1938, noting the types of litigation that predominated in 1938 and the changes to litigation that have accompanied the expansion of substantive federal law.
The drafters of the original Federal Rules in 1938 primarily thought in terms of patent claims and straight-forward tort, debt, and contract actions. The sort of conclusory skeletal pleading allowed under Rule 8 (and Conley) made sense for simple claims involving one-time conduct and facts that the plaintiff likely knew (or could know) at the outset--what happened at the intersection, whether or not the debt was repaid, whether the patent was valid. Modern litigation involves more complex actions under federal antitrust, securities, and civil rights laws. Epstein argues that skeletal conclusory pleading makes less sense in these more complex modern cases--involving conduct occurring over a longer period, complex conduct that is as likely to be lawful as unlawful, and often turning on the defendant's state of mind. Skeletal pleading in these cases presents a greater risk of hindering socially beneficial conduct by tying people and entities up in burdensome and expensive discovery and litigation that ultimately will (or should) be unsuccessful.
The problem is that, from the plaintiff's standpoint, skeletal, conclusory pleading is more necessary in modern litigation because the information needed to plead essential factual details (such as state of mind or what happened in a secret closed-door meeting) is not available at the outset and may only be obtained through discovery once litigation has begun. Twombly and Iqbal both demonstrate: How can a plaintiff know whether there was a secret meeting and agreement among the telephone companies or what the AG was thinking when he approved a policy of detaining, in special conditions, Arab Muslims in the weeks after 9/11. The best he can do at this stage is a conclusory allegation. Tightening pleading keeps potentially meritorious claims out of court, in turn reducing the ability to identify and hold wrongdoers to account and to make injured persons whole.
Second and somewhat related is Bruce Boyden's argument in the earlier Comments that the Court's view of pleading in Twombly and Iqbal was "warped by concern in those cases about particularly onerous costs and burdens of discovery based on what seem to the majority to be far-fetched and meritless allegations." Both were unique "modern" cases, large in size and scope, precisely the kind that Epstein (and the Court, obviously) believe are too big and sprawling for notice pleading. But, he says, perhaps lower courts will be a bit more measured in "normal" litigation when it comes to allegations of state of mind and other "on information and belief" pleading.
Unfortunately, I think lower courts are more likely to run with the greater power to review and rethink facts as alleged. On this point, I would recommend Benjamin Spencer's recent paper (forthcoming in Mich. L. Rev.) in which he tries to construct a model to describe what pleading now requires, based on what lower courts had been doing with Twombly. Spencer argues that courts distinguish "objective facts" from "speculative suppositions" (basically what the Iqbal Court called bare or conclusory allegations) and the latter are deemed not sufficient to push neutral allegations over the line into plausibility. I expect to see courts being even more willing to disregard facts as too speculative--even though all a pleading really involves is speculation. Especially after Iqbal essentially told courts to ignore conclusory or bare allegations.
Third, there was some interesting discussion in the comments about whether the ratcheting up of federal pleading has been a top-down or bottom-up phenomenon. Hillel Levin suggests the latter: The lower courts for several years have been tightening pleading standards and, prior to Twombly, the Court had stepped in twice (Swerkiewicz and Leatherman) to say no. In Twombly and Iqbal, the Supremes switched and began encouraging courts to do more with 12(b)(6). It remains to be seen what lower courts will do now, but, again, I can see them being very receptive to more opportunities to clear docket space.
Fourth, on the subject of "good lines I wish I had thought up" and the next step for pleading: I paraphrase Hillel's proposed amended Rule 8 (from the Civ Pro ListServ): "When we gave you notice pleading, told you "short and plain statement," and gave Form 11 as an example, we really meant it."
Tuesday, May 19, 2009
Amazon's "Tag Suggestions"
I was curious what happens when you tell Amazon that you want to write a review, so I clicked on the relevant link on my book's Amazon page, and it took me to a screen where I could enter a review (no, I didn't actually enter a review of my own book). Under this, though, it asked if I wanted to "tag" the book. I don't really know what it means to "tag" a book, but I was a little taken aback by the following "tag suggestions" offered by the nice folks at the Amazon corporation (reported here verbatim):
crappy, humorous, foreign relations, murder, suspense, educational, jay wexler, sex, oh john ringo no
How Far We've Come, and the Rhetoric of Evidence Based Policy
Just two short comments today.
I worry that "Comparative Effectiveness" or "CE" is going to be the next medical buzz word, just like "Evidence Based Medicine" or "EBM" has been the buzz word for a decade. "Evidence Based Medicine" is a term which makes about as much sense as "Sex-based intercourse"--Were we practicing based on zodiac signs before EBM came along? (By the way, I borrowed "sex based intercourse" after hearing a prominent chair of medicine say it--I don't know if he coined it, but I thought it was brilliant). Soon we'll have a generation of physicians who are CE experts to bump out the EBM experts.
Iqbal III: The Death of Supervisory Liability
Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo.
More problematic is that the Court seemingly eliminates supervisory liability (the "term 'supervisory liability' is a misnomer"). That is, at least in Bivens claims and/or claims involving constitutional rights that require intent. Worse, the Court did this despite the issue not being briefed or argued and despite the defendants' stipulation as to the appropriate standard for supervisory liability.
It is unquestioned that there is no respondeat superior liability as to entities or supervisory officials under § 1983 or Bivens (expressly defined in Iqbal as its federal analog); a supervisory officer only can be liable for his own misconduct. But all of the courts of appeals prior to today had recognized (although with varying language and rigidity) that supervisory liability could attach where there was underlying unconstitutional conduct on the ground (whatever the state of mind required for that underlying conduct) and a supervisory official knew about the misconduct and acquiesced in it or condoned it or failed, with deliberate indifference, to take steps to correct or prevent the misconduct.
And this is what Iqbal attempted to plead: That he was detained and mistreated in violation of his First, Fifth, and Eighth Amendment rights by federal officers on the ground and that Ashcroft and Mueller either a) created or implemented the policies pursuant to which they were mistreated or b) knew about the mistreatment. And Mueller and Ashcroft both conceded that they could be liable if they actually knew about underlying constitutional violations and took no steps to halt or correct the misconduct.
Instead, noting that the rights in play (Free Exercise and equal protection) required discriminatory purpose--that the official acted in some way "because of" (rather than "in spite of") the particular trait--the majority insisted that a supervisory official also must have acted with such a discriminatory purpose. The "respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." So mere knowledge of constitutional violations on the ground and failure to respond to them is not enough; the officer must have failed to respond precisely because the victim was an Arab-Muslim.
Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent. The complaint included allegations (which the plaintiff obviously believed would be legally on point) of knowledge/acquiescence in unconstitutional conduct on the ground, but the Court rejected these allegations as insufficient bare conclusory allegations. The Court thus could have rejected the supervisory-liability claims as insufficiently pled under the expected knowledge/acquiescence standard, without having to change the substantive standard as it did. Put differently, the Court could simply have rejected the supervisory claims as factually insufficient, rather than changing the legal standard to render them legally insufficient. Not to mention that the issue was not raised or briefed.
It will be interesting to see how this issue plays out in the lower courts. The Court spent a lot of time talking about Bivens, so perhaps lower courts will say that the rules for supervisory liability will be different for § 1983 than for Bivens. Alternatively, perhaps (although I doubt there is any principled basis for doing this) lower courts will say that the rules are different for high-ranking federal officials (such as the AG or head of the FBI) than for low- and mid-level supervisory officers who are more aware of what goes on on the ground. Another possibility is that this discussion of supervisory liability applies where the underlying violation is of an intent-based right (such as the First and Fifth Amendments), but knowledge might be sufficient where the underlying violation is of a different right lacking an intent requirement (such as the Fourth or Eighth Amendments). But, of course, the straight-forward reading is there is no longer any such thing as supervisory liability in constitutional cases.
Monday, May 18, 2009
How Much? How Frequently?
Tying in to Rose's post from earlier today I'd like to raise a related but slightly different question about summer scholarship, and scholarship more generally: how much and how frequently? Early in my scholarly career I had a pretty fixed, even robotic, writing schedule: one article per year. It was a simple schedule, and I grew comfortable with it. As I've matured more things have gotten in the way of that simple schedule-- usually, although not always, in the direction of writing more. I'm on a couple of casebooks and occasionally get opportunities for shorter pieces of writing or solicited articles. Layered on top of what is an ingrained habit these other commitments have the effect of creating more (rather than simply different) writing opportunities and obligations. Developing a scholarly agenda and getting tenure has also led me to write more for the sake of the scholarship itself -- a positive development, of course.
But all this writing and all these plans lead me to wonder how much one ought to write, and how quickly. I assume there's an easy response (not "easy" in the pejorative sense): write as much and as quickly as you can consistent with doing quality work and without neglecting your other professional and personal obligations. Fair enough. But that sensible advice (reminiscent of Joe Jackson's "It's Different for Girls" lyrics) doesn't answer the hard questions: if you're writing a long article over the summer to submit in the late July submission season, should you also write the short essay you've been thinking about? The article instead of the finishing the book? Or spend the time on more research/polishing of the big piece? If the answer is "write the small piece if the big piece is written to your satisfaction," then how does one make that evaluation? Everything I've written would have been better if I had spent more time on that, and I assume I'm not alone in saying that.
I ask these questions not in search of the answer, which presumably doesn't exist. But any wisdom, short of an answer, would sure be appreciated.
Iqbal and the death of notice pleading: Part II
The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not "counting" in evaluating the sufficiency of the complaint. As Scott Dodson argues here, it is problematic that the Court has reintroduced two tiers of facts (conclusory v. non-conclusory), a remnant of fact pleading (which distinguished between evidentiary and ultimate facts).
But a bigger problem is how anyone can plead defendant's state of mind anymore without avoiding such conclusory facts. This will be an issue in this case and beyond. In this case, the Supreme Court remanded to the Second Circuit to consider whether to remand to the district court to give the plaintiff a chance to replead. But what more could he say?
The majority rejected as conclusory, bare allegations that are not entitled to be taken as true for purposes of the 12(b)(6) the following allegations: 1) that Ashcroft and Mueller "'knew of, condoned, and willfully and maliciously agreed to subject [him]' to harsh conditions of confinement 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'”; 2) that Ashcroft was the "principal architect" of the discriminatory detention policy; and 3) that Mueller was "instrumental" in adopting and executing that policy.
As Justice Souter argued, it is not clear why these are conclusory or bare allegations (at least considered in light of the other allegations in the complaint). Nor is it clear why these were mere conclusions to be ignored while the following paragraphs were sufficient: 1) "'the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.'”; and 2) "'[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER after September 11, 2001.'” Can anyone find a principled way to determine why these are any less bare than the three paragraphs quoted above?
More problematically, even accepting the majority's determination that the allegations are indeed bare and conclusory, what else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent? Absent some discovery and the chance to inquire into the defendants' thinking when acting (here, in establishing the policies at issue), what words can a plaintiff possibly use to describe that the defendant enacted or approved or acquiesced in a policy knowing (or intending) it to be discriminatory?
This seems to leave plaintiffs in an impossible position.
Writing about Diverse Scholarly Interests
Similar to many law professors, I do most of my research and writing in the summer. One challenge I often face in the summer is determining in which field I want to write. I research, write and teach in the areas of property, immigration and citizenship. My publications reflect these varied scholarly interests. (To read what I have written in property, see here; those interested in reading an article I wrote on immigration law, see here). In fact, a number of students have asked me why I am interested in property, immigration and nationality law, which they view to be completely unrelated to each other.
Admittedly, property, immigration and citizenship are distinct areas of law. Yet, I see these different areas interconnected in a number of ways. To me, on a broad level, property law and immigration law are conceptually related because they both deal with the regulation of access and exclusion from a particular place. Conflicts about citizenship/membership and identity eventually emerge in the legal, economic, social and political negotiations concerning the entry and exit of people, whether the place being contested is the nation-state or someone's private property. Indeed, I explore the ways in which these three areas overlap in my most recent law review article, Broadening the Narrative of Property Law's Racialized History (forthcoming in the Washington University Law Review, Spring of 2010).
Although I maintain that they intersect in ways that have been underappreciated, I do recognize the importance of exploring more fully some issues unique to each area. The problem, of course, is that there are so many interesting legal questions I want to examine and simply not enough time in the summer to write all of them.
For those of you who also have varied scholarly interests, how do you decide on which writing project to pursue in the summer?
Iqbal and the death of notice pleading: Part I
Having now read Iqbal, it's a doozy ("breathtaking" as one poster to the civ pro listserv put it) in many ways and in many areas of law (all of which are of interest to me). Many doctrinal points were killed off or dramatically altered today. I am going to look at them in a series of posts in the next couple of days.
First, this case killed off the principle, long repeated in notice pleading, that a court on a 12(b)(6) motion to dismiss must draw all reasonable inferences from the facts pled in favor of the plaintiff. And it partially killed off the notion of taking facts pled as true.
The majority worked in two steps. First, it decided that two key paragraphs were too conclusory (containing nothing more than "bare assertions") to be given a presumption of truth. This took out the allegations It then took the other two paragraphs and accepted them as true. But it found on its own an "obvious alternative explanation" that was a "more likely" explanation for the post-9/11 detention policies that rendered those policies not unconstitutional--namely, that the United States had been attacked by an organization led by, and composed of, Arab-Muslims, thus the detention policies were "justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts."
The whole idea of "plausibility" established in Twombly was inconsistent with the idea of drawing reasonable inferences for the plaintiff. Drawing all reasonable inferences for the plaintiff means that if allegations taken as true reasonably could go either way, the court should adopt the plaintiff-favorable version and let a jury decide. Plausibility does the opposite--if facts could go either way and there is a lawful explanation for the behavior, the complaint is insufficient. Thus, in Twombly, where the parallel conduct alleged might be consistent with lawful activity or might be unlawful under the antitrust laws (when combined with agreement and intent), the mere allegation of parallel conduct was insufficient because the claim was not plausible. Ben Spencer described these as "neutral" allegations that are insufficient to state a claim under Twombly.
Iqbal takes that to a new level. The majority went out of its way to find a lawful explanation that was, in fact, inconsistent with what was pled. This was one of Justice Souter's key points in dissent: Taking all the allegations made, the plaintiff alleged that he had been arrested and uniquely detained because of his race, religion, and national original. There is no way, if those allegations are true, that the plaintiff's rights were not violated. But the majority ignored what was pled and simply explained away the policy.
The majority then concluded that its explanation for the detention policies was "more likely," thus rendering the alternative explanation (a constitutional violation) not plausible and not sufficient to state a claim. Of course, the evaluation of facts as more or less likely (such as the explanation for a policy decision and resulting governmental conduct) really ought to be for a jury. So Iqbal, even more than Twombly, Suja Thomas' arguments that 12(b)(6), as now understood, invades the jury's fact-finding provenance, in violation of the Seventh Amendment, is beginning to look very strong.
SCOTUS decides Iqbal
One of this term's cases that I have been waiting for came down today: Ashcroft v. Iqbal, a 5-4 decision in which the Court held that the plaintiffs, post-9/11 detainees, did not sufficiently plead a Bivens claim against several high-ranking executive branch official. Justice Kennedy wrote for five, with Souter and Breyer writing dissents.
A very quick perusal of the syllabus suggests that the Court did three major things on notice pleading: 1) reaffirmed the "plausibility" principle of Bell Atlantic v. Twombly; 2) made clear that Twombly is the new standard for notice pleading as to all claims; and 3) made clear that conclusory allegations (as opposed to well-pleaded facts) are not entitled to a presumption of truth on a 12(b)(6). The Court also had something to say about the immediate appealability of qualified immunity determinations.
I will write more once I have a chance to read and digest the opinion. So much for grading . . .
Memoir and Memory
Yesterday's NY Times contains this memoir by Reynolds Price recounting and reflecting on his time at Oxford in the '50s as a Rhodes Scholar (yes, yes, it also contains a review of that other book). Price was my teacher at Duke in the early '90s and an absolutely wonderful man. One could take Milton with Price or with Stanley Fish. Fish was part of the hot literary theory circle that included such other giants of postmodernity as the self-described "cultural Marxist" Frederic Jameson. At the time, all of this was truly the cat's meow of the English and literature departments, and its tentacles wriggled far and deep into the intellectual culture; philosophy, romance languages, even classical languages -- all were affected. As a result I gravitated away from him and it when it came to Milton, preferring by temperament the more traditional approach of scholars like Price and the late Wallace Fowlie, whose Proust class was a delight (in retrospect, in light of Professor Fish's subsequent anti-textualist forays, it might have been worthwhile to absorb him in his own literary milieu).
The Times review led me to wonder whether memoir has ever been a mode of writing that caught fire in legal academic circles. There is admittedly something of the self-referential in memoirs, more than a bit of navel-gazing, and the form has traditionally been reserved for wiser and older souls as a kind of sunset piece of self-indulgence. The review points out that the memoir has recently been vulnerable to frauds who invent psychosocial traumas and claim them as autobiography. Given these unsavory developments, is there anything of value in memoir for the legal academic?
My neophyte sense is that the answer for most would be no as things presently stand. Legal academics tend to lead scholarly lives facing outward -- they are ever oriented toward the world's common business. And the business of law is policy, what is good for us all. The picture of the self that emerges from legal scholarship is of utility, extroversion, and au courantisme. As a general guiding ethos, this is entirely as it should be. Law is a practical endeavor and policies must be perpetually conceived, discarded, reconceived, and re-discarded to feed the world's gargantuan hunger for the next best plan. No one, least of all the lawyer, stands outside that world.
But taken as an imperative, as a necessary attitude toward scholarship from which one ought never to deviate, can this ethos take on a life of its own? Does it begin to resemble a kind of Project Runway for the legal academy? Perhaps something is lost when one's own peculiar contributions (now outdated, defunct, and displaced) to the soup of intellectual experience are forgotten -- forgotten willfully so as to make way (clear out!) for the unabating parade of new ideas.
The memoir may offer something here. As that form of writing most directly devoted to the recollection and preservation of past experience -- to memory -- the memoir is a form that requires an inward turn. At its best, the memoir demands that its writer chip off the incrustations of the conventional categories of success and gaze backward, attempting a synthesis of past ideas and experiences all at once. One might say that the memoir may be one avenue -- maybe a fruitful one -- to reach a mode of scholarship that has much in common with the history of ideas, where the writer is intimately familiar both with the history and the ideas.
Taken this way, the memoir may offer future generations of legal historians a different sort of primary source -- one that was written self-consciously. Naturally, when one writes a memoir, when one delves into one's own past to achieve this synthesis, what is excavated and ultimately produced will be confused and overlaid with strata of accretions and emotional souvenirs. It will be decidedly "impure." But to return for a moment to Proust, at least part of the value of any type of writing, including legal academic writing, I suppose, lies exactly in the expression of a single person's unique sensibilities -- those that are particular to him or her and unrepeatable. The aim of memoir ought to be to recapture and synthesize those memories in a fresh light, the mellow light of later experience. One kind of objection to this idea would be that memoir is useless because we know so much more now than we did then; yes, and our memories are what we know. Another type of objection would be that the legal memoir would not contain anything that anyone would care to read. Maybe the best response is the example of Proust himself -- the episode of the madeleine, once evoked, provoked an inexhaustibly beautiful torrent. Admittedly, Proust did not write memoirs. Perhaps the form of legal writing that I am imagining is something else.
Footnote: Whatever the cogency of these musings, it is probably best to wait a good decade or two before "going memoir." The legal academic memoirist ought to have achieved a certain seasoning for this to be a plausible enterprise. And yes, there is vanity in the memoir. But I wonder very much whether it is any greater than the vanity in the more usual forms of legal academic writing.
Sunday, May 17, 2009
The University of Chicago Class of 2001: A Post by Eugene Kontorovich
I'm happy to observe that 25% of the guest bloggers here were at the University of Chicago law school together. Mark Blitz and I were in the same class, with John Pfaff, a JD/PHD, a year below I believe. This led me to think about my other classmates in academia, and I've realized there are quite a lot of them. Bill Henderson at Indiana, the noted scholar (and blogger) of the legal services market itself, who was good enough to save me from disaster by sharing his Contracts outline, Danny Sokol at Florida; Josh Fairfield at Washington and Lee; Jonathan Mitchell and Adam Mossoff both at my former haunt; and my dear friend Hermine Hayes-Klein teaching Torts at the Hague University. (My apologies to anyone I have inadvertently neglected in this off-the-cuff inventory.) That's really not bad for a class of 180-something. That is a more than 4% teaching rate, well above Chicago's recent performance.
It is a particularly impressive group that honors by association. Readers here will be interested to note that it's also a very bloggy bunch. Sokol has a blog on antitrust and competition policy; Henderson on the legal profession; Fairfield contributes to a blog about something to do with technology; Hayes-Klein runs a blog on the Federalist papers. Aven antediluvians like Mossoff and myself have recently guest-blogged at the Volokh conspiracy and elsewhere; he talked about early manual sewing machines and I about pirates so it's not surprising we are not in the digital vanguard with our classmates.
This leads me to think about the much discussed relationship between blogging and academic success/tenure. I have no opinion on whether blogging can contribute to success; I can see how it can cut both ways and it depends chiefly on whether blogging is a compliment or substitute to traditional scholarship. But I suspect even if blogging does not cause success, success will cause blogging. What I mean is that smart dynamic people with a lot to say will wind up looking for additional avenues in which to do so; their cups run over. Consider ”my judge,” who has not one but two. Thus I would predict top law professors would be overrepresented amongst the ranks of law professor bloggers.
Saturday, May 16, 2009
Criminal Law, Foreboding, and the Forbidden
I had the great fortune to teach criminal law this spring and the even greater fortune to use Joshua Dressler's book. Professor Dressler's book begins with what may be a familiar tract by Henry Hart, wherein Hart argues that what distinguishes criminal from civil sanction is a certain type of community condemnation. Quoting George Gardner (and echoing James Fitzjames Stephen), Hart writes that punishment is an expression of the community's "hatred, fear, or contempt" for the convict himself (or, if I might be permitted a softening touch, for the act done).
This is of course a grossly overinclusive description. As students proceed through the course, they meet many crimes and criminals that do not elicit such responses in them (say, certain strict liability crimes, to take only one obvious example). And the degree of hatred, fear, or contempt that different crimes elicit can be quite various. For some, drunk driving is deeply contemptible, for others less so. For many, narcotics offenses, and particularly possession, are not at all contemptible. Murder and rape tend to draw out emotions of fear and contempt, but again, the degree and quality of such feelings varies substantially with the particulars of the case. In one of the battered woman syndrome cases, State v. Norman, it is the victim who is the object of intense contempt -- and quite rightly, in light of his vicious, sadistic, and horrifyingly interminable degradation of his wife -- while the battered woman murderer is deemed praiseworthy by many. Child abuse draws universal condemnation, even hatred, and the word "evil" seems ever to be just at the tips of many students' tongues. I had more than a few students tell me that they were extremely uncomfortable just reading such cases precisely because the facts stirred those disturbing emotions in them.
But I do think that there is something unique in criminal law that is captured by Hart's observations, though it is not a something that is at all conceptually necessary or essential to criminality. It is merely a feature of certain criminal acts and actors, sometimes present, sometimes not, but rarely existing in other legal contexts and subject areas -- or if existing, not with the same intensity.
That something, I think, is the interdictory uniqueness of criminal law. There are certain types of human acts that, when combined with certain mental states, do elicit intense fear, opprobrium, and condemnation. These fears run deep -- criminal law seems to me to be a field where the students arrive with highly developed sentiments and opinions that bubble up and froth out of them. Their intuitions about wrongfulness -- about what must not be done -- are rather muscular. Just like the rest of us, they know fear. Certain crimes, and certain defenses too, bring out a powerful sense of foreboding.
If people will know fear, if their sense of foreboding is so keen, much depends upon which fears they know most intimately. The fears that people know best -- those with which they are most familiar -- they want given voice by the powerful interdictions and necessary denials of the criminal law. When the great "No! Do it not!" of criminal law is transgressed, when one's deepest fears have been actuated, there is, not only the sense that punishment is owed to right the wrong, but the rather different, and much more problematic, feeling that anything less than a perfectly proportionate retaliation cannot be tolerated. It is this sense of forbiddenness that laces a good deal of criminal law and that is -- in my admittedly limited experience with the subject -- quite unique to it.
I am not remotely the first to take notice of the psychology of fear that bathes criminal law in dark hues. But I did find it somewhat arresting that this component of criminal law was felt so acutely by my wonderful students. I should also emphasize that I mean neither to praise nor condemn this quality of criminal law. Fear may be just as necessary as it is destructive. I do suspect, however (and to close on a controversial note!), that there may be subterranean connections between, on the one hand, the sense of the forbidden in criminal law and, on the other, today's debates about whether torture can ever be "worth" the moral cost.
Friday, May 15, 2009
Prop. 8 Redux?
Over the last year the same-sex marriage movement has had as many ups and downs as ... well, a marriage. As I've blogged about in the past, the passage of Proposition 8 in California last November was a bitter defeat for pro-marriage rights forces, especially those, like me, with a personal stake in the outcome. Since then, though, decisions in Iowa, Vermont, Maine and, apparently, New Hampshire have provided a string of wins for the pro-marriage rights forces. By all accounts New York remains a close call.
So is it time to revisit the issue in California? Marriage rights forces appear to be gearing up for another go in California in 2010, assuming that the state supreme court upholds Proposition 8's constitutionality, as most legal commentators expect. This time the tool is not a lawsuit but a referendum to overturn Prop 8. There apparently is no restriction on the frequency with which a matter can be brought to voters via a referendum. (Of course the last referendum opposed, rather than favored, marriage rights for same sex couples.) As a former Californian this doesn't surprise me: a number of years ago I remember conflicting campaign finance referenda appearing on the very same ballot. Compared to that, referenda on the same topic appearing on two consecutive ballots seems downright deliberative.
I have no great principled objection to sequential ballot initiatives, each aiming to undo the results of the prior one -- at least no more objection than to ballot initiatives generally. But I do have some questions about the political smarts. Up until a couple of months ago, I thought the pro-marriage forces were, frankly, making a foolish mistake by trying again so soon. Part of me still feels that way. Regardless of the shift in public opinion that may well be happening, I wonder if there exists, for want of a better term, an annoyance effect, whereby voters who might be willing to support marriage rights will vote no, or abstain, or just not show up at the polls, based on the alacrity with which pro-marriage forces are asking the people to revisit the issue. I have no evidence for this, but I can see some live-and-let-live types who aren't personally invested in this issue expressing either some annoyance or maybe just some fatigue, and acting accordingly. And let's not forget that the 53%-47% margin from last time, while not a blow-out, was not exactly a nail-biter, either. A decent amount of ground will have to be made up for the pro-marriage rights forces to prevail.
On the other hand, maybe we really are witnessing a sea change in public opinion. The Iowa decision, coming from a non-coastal or urban or particularly liberal state, was the start. Since then, the cascade from New England may be making same-sex marriage a non-exotic proposition, in the same way that civil unions became the moderate position on the issue in the earlier part of the decade. So maybe this is the right time.
One thing, though, is, I think, fairly clear. The California push, assuming it gets on the ballot (which should not be too difficult) is a massive gamble. I've got to believe that two consecutive losses will mean that same sex marriage doesn't come to the most populous state in the union for a decade or so. A second loss would surely stall whatever momentum currently exists and may be generated from a win in New York. (And a California loss on top of a New York loss would be devastating.) Quite possibly it (or they) would impact the thinking of the federal courts if and when the matter comes to a federal constitutional head. In sum, it's a high stakes game that apparently will be played out in an off-year election (how that fact matters is not at all clear to me). Speaking for myself, I hope these people know what they're doing.
The upcoming battle over New York's public schools
For Albany watchers and other political junkies, the summer’s biggest sporting event is the State Assembly’s impending decision about whether to renew mayoral control of New York City’s schools. The vote is scheduled for the end of June, and, to insure maximum high drama, the vote coincides with Bloomberg’s third-term re-election campaign and precedes the October expiration of the American Federation of Teacher’s contract with the New York Board of Education.
With the stars thus aligned, the conditions are perfect for some serious political horse-trading between the AFT and Bloomberg. But whose interest will be put on the auction block? I’m betting that charter schools are in trouble. The AFT has consistently opposed charter schools unless they are union-sponsored, because they are not subject to the 165-page collective bargaining agreement governing New York City’s regular public school teachers. Charter schools are popular with low-income, mostly minority parents precisely because they are free from lockstep seniority requirements, procrustean work rules, and interminable processes for teacher dismissal and discipline. (Charter school teachers, incidentally are ambivalent about these rules, which are not exactly conducive to innovative teaching). Given that low-income parents are not exactly one of the state’s powerhouse lobbies, I’d suspect that their interest in charters – say, lifting the cap on the numbers of charters that can be issued -- will not be reflected in the impending deal on mayoral control.
My prediction that charter schools will be losers in Albany might seem odd, given their popularity with a broad spectrum of interests -- lefty papers like the Village Voice; Joel Klein, the City’s education chancellor; and even Arne Duncan, Obama’s Secretary of Education. But my wager is these essentially ideological and technocratic supporters will be no match for the AFT. Randi Weingarten, the AFT’s national President, has long mastered the art of embracing cautious reform-style language while capping charters’ numbers and cutting their budgets behind the scenes. If Bloomberg wants to run up the score against William Thompson in the upcoming mayoral election (and, of course, he does), then he would be wise to roll over on Klein for the AFT.
Just in case it is not obvious, I am rooting for the charter schools. But, not being a chump, I am betting dollars to rupees on Randi Weingarten and the AFT.
Thursday, May 14, 2009
Why President Obama Will Not Appoint Judge Sotomayor
Anyone who has been paying attention knows that Judge Sonia Sotomayor is (was?) a (the?) front-runner for Justice Souter’s Supreme Court seat. But along came Jeff Rosen, who questioned the choice of Sotomayor on the grounds that (1) she allegedly does not have the intellectual horsepower for the job, and (2) she’s a bully on the bench and difficult to work with.
Rosen’s was truly the blog post that launched a thousand blog posts. She is brilliant! She isn't brilliant! She might be brilliant! She is a great judge! She’s an average judge! Rosen has a conflict of interest and an agenda! He’s a racist! He’s sexist! And so forth.
This is all a sideshow. Whether Judge Sotomayor is brilliant or not is irrelevant, because she is clearly very, very smart--smart enough to do the job of a Supreme Court Justice. This is a job that requires great intelligence, but not brilliance; and there is no evidence that true brilliance correlates at all with being a good Supreme Court Justice (whatever your definition of "good").
As for the questions about her temperament, that's also a sideshow.The Second Circuit is a uniquely collegial court and one that coddles lawyers. The fact that she might rub some judges, clerks, or lawyers the wrong way -- even if true -- says absolutely nothing about how she would fare on the Supreme Court.
In truth, Judge Sotomayor is qualified in every way for the Supreme Court.
But I predict that Obama will not nominate her, and here's why. It seems to me that if Obama wants to push the Court in a liberal direction, this is his best opportunity to do so. (Although it is true that he will be replacing one relative liberal with another--and therefore cannot easily move the Court--it does matter who the replacement is. Heck, otherwise we could just avoid appointing anyone to the seat and just add a vote for the liberal side of every case.) He has a near filibuster-proof majority in the senate, and even if Justices Stevens and/or Ginsburg step down, who knows what will happen in the next senate election cycle? To push the Court, he will either want to appoint someone who will articulate an unabashedly liberal vision of constitutional and statutory interpretation or a moderate liberal who is a skilled coalition builder (or at least who can help to blunt a conservative ruling).
Thus, the question becomes whether Judge Sotomayor is the best person suited for either of these roles. And the answer, in my opinion, is no. Judge Sotomayor has not shown herself to be the unabashed liberal lion who could influence the Court, lower courts, lawyers, and law students for generations to come. Mind you, this has nothing to do with brilliance. She could very well be brilliant, but she is a moderate liberal in the mold of many Clinton appointees.
Similarly, I have not seen evidence that she has the knack for forming coalitions, swinging judges, or blunting the impact of conservative majorites. And this has little to do with judicial temperament. She could be loud on the bench or quiet, reserved or aggressive. Regardless, she just does not seem to have taken the role of coalition-builder or conservative-opinion-blunter.
To be very clear, none of this is a knock on Judge Sotomayor. She might make an excellent Supreme Court Justice: smart, insightful, careful, fair, etc. But I do not think that she is the right person for this particular slot, given the context and circumstances.
And this is why I believe that President Obama will not appoint her.
All of this is by way of prediction rather than recommendation.
Law School Hiring Observation II: Dante's Refining Purgatorial Fire
Professor Kaimi Wenger gives some advice about getting into law teaching without having graduated from a top 5 school. It's all very good and useful, and well worth checking out if you are in the position that he describes.
I graduated from Boston University School of Law, and while my experience there was absolutely terrific and I think back on law school very fondly, I think it not unfair to say that BU does not produce many law professors and that there are special challenges facing someone whose JD is not, to say nothing of the top 5, from the top 15 (or 18 or wherever the "elite" label terminates).
Here then is another occasional observation about the law school hiring process. If you are one of the souls who is considering the market with a non-elite JD, perhaps you might think of yourself as being thrust into Canto XXVI of Dante's Purgatorio, right alongside Arnaut Daniel. Daniel, a 12th century provencal troubador of unusual talent, sings now through his tears as he atones for his past follies (sins of lust) and hopes upon hope for redemption. When one is in Purgatory, redemption comes, but at some quite indeterminate future point.
Arnaut's manner of suffering is exquisite. Dante writes: "Poi s'ascose nel foco che li affina." After his words with Dante, Arnaut "hides himself in the fire that refines him." He will stay there, purifying, purging, refining, until he is ready. He will remain there for many years. And that, I think, is what people with non-elite JDs are taken to need.
It may well be that sufficiently voluminous writing will help, as Professor Wenger suggests, particularly if sufficiently well-placed and so on. But people with non-elite JDs as a general matter will require more than "time to write" to ascend to the Celestial Rose. They will require years spent in the purgatorial fire. That may mean a Ph.D. or an advanced law degree at a very pretigious school or a fellowship or VAP (or two, or three). It will almost certainly mean coming to know prominent and not so prominent law professors well enough that they know you, that they will have seen your purification at work in fires created especially for you. The pace of ascent will be slower than that of your elite-JD peers, and there is always the unhappy possibility of remaining in Purgatory forever. Dante was rather forgiving by comparison. Difficult as it may be, then, it's worthwhile to come to love the fire, to be grateful for its refining properties. It may even be that when you finally do make it to Paradise, you will continue to crave the fire.
As before, this observation is almost certainly not generalizable in any systemic way; and it is surely true that factors like what one wishes to write about (public law probably adds an extra tricky little degree of difficulty) and what one's other, non-academic background adds to one's candidacy are extremely important. So, too, will be many others. I therefore disclaim any intention to offer this observation as "advice," lest I be cast down to the Infernal depths with Ulysses, Diomedes, and the other fraudulent counselors.
News: Anti-semitism is alive and well
Because I am related to a number of people that worry a lot about anti-semitism (and use it as part of a defense of policies in Israel that I think are indefensible), I am probably too dismissive about claims of anti-semitism. Unless it is self-serving: I assume that all the students who hate me in their student evaluations are probably anti-semites. In any case, I really found myself quite disturbed by survey results reported very recently in the Boston Review. Some choice bits:
In order to assess explicit prejudice toward Jews, we directly asked respondents “How much to blame were the Jews for the financial crisis?” with responses falling under five categories: a great deal, a lot, a moderate amount, a little, not at all. Among non-Jewish respondents, a strikingly high 24.6 percent of Americans blamed “the Jews” a moderate amount or more, and 38.4 percent attributed at least some level of blame to the group.
Interestingly, Democrats were especially prone to blaming Jews: while 32 percent of Democrats accorded at least moderate blame, only 18.4 percent of Republicans did so (a statistically significant difference). This difference is somewhat surprising given the presumed higher degree of racial tolerance among liberals and the fact that Jews are a central part of the Democratic Party’s electoral coalition. Are Democrats simply more likely to “blame everything” thus casting doubt on whether the anti-Jewish attitudes are real? Not at all. We also asked how much “individuals who took out loans and mortgages they could not afford” were to blame on the same five-point scale. In this case, Democrats were less likely than Republicans to assign moderate or greater blame.
Oy. The good news: Since most of my students are Democrats and only a small percentage tend to hate me as a teacher, I think I have found the source of the resistance to my pedogogical methods.
UPDATE: I want to emphasize that I think the Boston Review article is serious and requires a certain seriousness in thinking about what to make of it. That I drafted this post to be entertaining for readers should not be taken as any indication that I take the findings lightly.
I should also probably apologize for bringing Middle East politics into the discussion at all, since we can surely talk about anti-semitism outside of a discussion about Israel, which always gets heated. But I allude to Israel here both to give you a bit of biography (because of my upbringing, I am routinely exposed to people linking the two conversations all the time, which has led me to be less open to unsupported claims about anti-semitism) and to suggest that they can be spoken of together, without embracing or supporting illiberal policies. Most importantly, I think you should read the article; my asides are really beside the point and I wouldn't want them to distract readers.
After 15 Years of Excellence, Sonia Sotomayor Suddenly Became a DUMB BULLY--But Only Just Before the Last Election!
Scandal! Scandal! I smell a possible scandal in the air!
After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court. It turns out that in every year that Judge Sotomayor has been reviewed, lawyers have literally raved (and I am using their words, not mine) about her legal skills (and have been very respectful, if also a bit fearful, of her judicial temperament).
Until suddenly, in 2007, and shortly before Obama was elected, everything changed on a dime, and she suddently became a "Dumb Bully." (The most recent Almanac is 2008, so she only became dumb during the last election season, when--as a number of people are starting to think--it looks like some people who haven't wanted her on the Supreme Court may have been doing something scandalous...
Until I can figure out how to upload scans to this blog, let me just type out the 2006 reviews, which are typical of the other years:
2006 Lawyer's Evaluations (Full Set).
Lawyers raved about Judge Sotomayor's skills.
"For a still young woman, she is truly incredible. She is just a very, very smart, capable jurist."
"She is a Supreme-Court caliber jurist."
"She is truly brilliant."
"I don't think we have anyone better."
"She really believes in the judicial system and tries her absolute best to make sure that it works for litigants.
She is hard working, tireless, brilliant, and just the absolute best."
"She deserves straight As across the board."
"She's very impressive."
"She is very, very smart. She really picks up on issues."
"She has an excellent legal mind, but she also has a lot of street smarts."
"She has a fast mind and she is capable of making very intellectual arguments. At the same time, she recognizes the need for the practical side of the law."
"She is outstanding."
"She is very good."
"I like her. I have been very impressed."
Lawyer's Described Sotomayor as being businesslike in judicial temperament.
"She does not put up with any guff."
"She works hard, and she expects lawyers to be as prepared and hard working as she is. She can lose patience if they aren't performing up to her standards."
"She is very exacting."
"She's not a good old boy, but she is decent enough to lawyers."
"She has my respect."
"Her demeanor is fine."
"She is judicious."
"She lets you know who the judge is. She does expect lawyers to defer to her."
"She is very courteous, judicial and businesslike."
"She is impatient with lawyers who are not prepared."
Lawyers said that Sotomayor is fairly active at oral argument.
"She is very active and well-prepared."
"You have to be on your toes with her, because she will ask very pointed questions."
"She is another one of those judges who will start questioning you about things that were never raised in the case before."
"You can practically see the wheels in her mind turning."
"She asks very well thought out questions."
"She's pretty engaging."
"She is very deferential to Judge Walker."
"She is very quick."
Lawyers said that Sotomayor is impartial in civil matters.
"Truly, I don't see her tilting one way or the other."
"She doesn't seem to favor either side inappropriately."
"I've found her to be very fair."
"She has always treated both sides fairly."
"I really have no idea what her politics are."
"She is not predisposed toward either side."
"I think she is fairly neutral"
Lawyer's praised Sotomayor's written opinions.
"I got a good opinion from her, so I think her writing skills are fine."
"Her legal ability is excellent."
"She is very bright. She is very competent. She gets to the meat of the case quickly."
"Her opinions are excellent. They are well-written and reasoned. They are easy to read and understand."
Systematic Reviews and Adversarialism: Truth and Arbitrariness
In my last post, I laid out some of the major arguments for favoring adversarial debates about scientific evidence over independent experts. Now I want to start pointing out how systematic reviews retain the benefits of independent expertise while addressing the concerns raised by the defenders of adversarialism. In this post I'll talk about the relationship between systematic reviews and (1) uncovering the truth and (2) avoiding arbitary outcomes; in a subsequent post I'll take on party control and dispute resolution.
1. Incentives to find relevant evidence. The rigorous search methods used in systematic reviews are designed to find every relevant study. Part of the impetus to develop EBP was the very fear that researchers often overlooked important results. But these search methods are still being developed, and analysts may still miss studies. Not a problem. Here, systematic reviews and adversarialism can work hand in hand: let the parties submit studies for consideration. Such an approach retains the information-gathering incentives of adversarialism while preserving the independence of the review itself.
2. Incentives to find the best expert. First, we have a definitional issue. The best expert for the parties is not necessarily the best expert for the factfinder. Parties have an incentive to find the expert who will advocate their positions most strongly. So if the evidence strongly favors Party A over Party B, the best expert for Party B is likely the worst expert for a neutral factfinder trying to get to the truth. So by "best" I mean best for the factfinder.
Here, we have competing effects. It is true that judges have less of an incentive to look for experts. But work by Hooper et al. indicates (not surprisingly) that scientists dislike adversarial procedures. So as the process becomes less adversarial, the pool of avaiable experts will deepen, and judges thus will not have to look so hard to find experts. Third-party assistance, such as the AAAS's CASE project, can help as well. And finally, we can once again tap into the parties' stronger incentives, such as by having the parties suggest names and then requiring both to sign off on the chosen experts.
3. Confirmation bias. Again, this was a concern that motivated the development of EBP. The ex ante guidelines are designed in part to confront this very problem--the guidelines are established before the bias has set in. Having multiple reviewers can further mitigate this risk (especially if they review the studies in different random orders). Plus, note that the sequential presentation of evidence at trial can lead to this problem even in the adversarial context.
4. Using cross-examination to reveal biases. Again, the purpose of guidelines is to highlight and reveal biases in underlying work. Guidelines can be designed in many ways to captures numerous sources of bias. Thus they can ask not only "did the study control for self-selection bias?" but "was the study funded by an industry group?" Any concern that could come up on cross-examination can be put into the guidelines.
Moreover, the party weighing the implications--the independent expert as opposed to the jury--is much more able to carry out that task. Experts are much more capable than jurors of understanding how important a particular source of bias is. As a result, outcomes will be less arbitrary, less based on guesswork by an epistemically incompetent party. Quality guidelines retain the benefits of bringing methodological, ideological, and financial problems to light, but greatly mitigate the risk of inappropriate confusion.
5. Judicial manipulation of (not-un) due deference. This is addressed by the flip side of the guidelines' goals. Guidelines are designed not just to reveal biases, but to constrain the reviewer. And by limiting reviewer biases, guidelines greatly reduce the ability judges could have to selectively choose experts.
6. Avoiding corpusculation. One concern with Daubert is the risk of what Thomas McGarity refers to as "corpusculation." the court evaluates each study on its own and finds it insufficient; each study is tossed out one by one. If viewed as a whole, the studies may have reinforced each other to provide a whole greater than the sum of its parts--this is just the crossword puzzle once more. But corpuscular review misses the forest for the trees. Clearly, systematic reviews are designed to overcome this flaw.
Radio Interview on piracy and international law (Eugene Kontorovich)
This morning I will be on the air discussing the international legal response to piracy, along with Adm. Kevin J. Cosgriff.
The interview will air between from 1003 to 1058 in the morning (CST), on 580 AM, which is heard in the Northern Illinois (including Chicago) and northern Indiana areas.
An RSS feed is available here.
Since it is radio, you have to believe that I'm wearing an eye patch.
Blogging and Bar Mitzvah? A Post by Eugene Kontorovich
As careful readers will note, I am not the poster of my posts. I depend on the good offices Ethan and Dan to actually get my words to screen. Herein lies a story, a mystery and hopefully a solution.
Dan sent me a link to set myself up an account as a guest-blogger. The system asked me the usual password/name questions, and then went on to get personal, asking my sex and age. I was clicking through in a hurry and not paying attention, and did not select a year from the pull down menu; the default year was 2009. So the system was informed that I was born yesterday.
This created a problem. I received an error message saying that I could not be given an account since I was under 13. Efforts to log on from other email accounts did not work; it appears to recognize my computer.
So they’re serious about this 13 thing. Interestingly, other blogging programs I’ve used have not been interested in my age.
The question is – why 13. I can understand why for liability purposes a platform may wish to ensure users are adults. Prawfsblawg may be a cover for tween sexting and worse.
But the age of majority is 18, and I believe the age of consent in all states is at least 14. I don’t know of any special legal or technological significance of 13.
Or does TypePad know more than one would think? If I were Catholic, would it ensure that I was at least seven years old?
I'd be indebted to anyone who knows how to fix this problem.
Wednesday, May 13, 2009
"Can You Explain the Commerce Clause?"
All profs know the sinking feeling we get when we read exams that make us wonder if the student ever showed up for the class. As a colleague of mine reminded me yesterday, describing the exam period, "never do so many show so convincingly that they have learned so little." The sinking feeling we get when we read those exams is due in part to the fact that it's too late: the course has been taught, you've given it your best shot ... and all you get is the satisfaction of making big red X marks over entire paragraphs.
A different challenge is posed by pre-exam office hours (you know, the only office hours where students ever show up -- yeah, those). Most students do a good job of coming in with focused questions that show they've struggled with the material. But then you get the students that ask questions like the one in the title of this post. They look at you earnestly, and ask you to re-teach the entire course.
I tend to be accommodating on most things. (In discussing the exam earlier in the semester I even remarked that I tend to be a pushover when students try to negotiate things with me. Note to self: don't say that ever again.) But the request for a private tutorial during exam prep pushes me to the limits of flexibility. It's not enough, I think, to give what I take to be the standard advised response here: "What issue within the Commerce Clause is confusing you?" Frankly, that is my normal response. But in my experience that usually just elicits a meandering reply that doesn't frame the issue any better. And you're still left with the question.
Thus, my alternative strategy, which I confess I use only sparingly: answering the question at the level at which it is asked. If a student says the commerce clause is confusing, then I reply that the commerce clause is the part of the Constitution that gives Congress the power to regulate interstate commerce. Then I stop. Because I answered the question. I'm happy to take follow-ups, but they have to come from the student; I won't anticipate the question. I don't follow this strategy when a student asks a more probing, detailed question that reveals some level of knowledge and effort; with that kind of question I'm happy to meet the student more than halfway, pointing out exceptions and hazards to the doctrine we're discussing, even if the student doesn't raise them herself. But if a student asks a question that shows she didn't even show up for class, sometimes I'll give an answer appropriate for someone with that level of knowledge.
I like to believe that I apply this strategy with no animus toward the student. But candor compels me to say that during these usually-tense discussions I visualize us playing tennis -- or maybe, given my upbringing, Pong. The question-cursor floats over to me. Then the answer -- blip -- and it floats back across the black-and-white screen. Sounds not nice, I guess. But come on. I may not be a great teacher, so if someone comes in confused about a point or two I'm happy to assume that it was my bad. But if a student comes in with this kind of question then I don't hold myself responsible for what happened, and I don't see my responsibility to re-teach several class meetings. ("So, there was this case called Gibbons ....")
I'd also like to think that this strategy is effective in forcing the student to articulate a better question -- in effect, that it does better at jumpstarting the learning then the standard response noted above. But I think I'd be kidding myself. The student usually says something in response, but if she is really asking such a basic question I can't realistically expect a more focused follow-up question. It's not always the case: sometimes this kind of question is just a throat-clearer and my answer elicits the student's real question. But often it doesn't. It's a terrible situation: I'm being confronted face-to-face with a student that is utterly unprepared for the exam. And thus face-to-face with the fact that at least one student learned nothing in my class. It's the bad exam, but this time as a premonition, with the author looking at me in the face, laptop on lap, waiting for me to save her.
Usually I'll try. But sometimes I won't.
Supreme Court Law Clerks from Non-Elite Schools
The New York Times yesterday discussed why news reporters should keep up with Justice Scalia. In his article, "On the Bench and Off, the Eminently Quotable Justice Scalia," Adam Liptak noted some of Justice Scalia's most recent memorable musings. For instance, when asked by a student at the American University Washington College of Law (WCL - my alma mater) what her chances were of getting a clerkship with the U.S. Supreme Court, Justice Scalia responded, "Not good."
As a graduate of WCL, I hope that the Supreme Court will eventually hire more law clerks from non-elite schools. Might Justice Alito's recent decision to hire a 2004 graduate of Seton Hall Law School (as noted here) signal such a trend? Why not? Justice Scalia himself noted that the law clerk "whom [he was] most proud of now sits on the Sixth Circuit Court of Appeals." He was referring to Judge Jeffrey S. Sutton. Justice Scalia explained, "I wouldn't have hired Jeff Sutton . . . For God's sake, he went to Ohio State!"
Against Appointing Pols to SCOTUS
Given my appalling performance as a blogger -- I've been post-less since March -- I have some nerve calling out other people as unqualified for a position involving lots of writing. But it is exam-grading time, and shame cannot stand in the way of my need for a distraction. My inspiration for this particular post is the appalling news that Governor Jennifer Granholm remains a possible candidate to fill Justice Souter's seat on SCOTUS.
The continued mention of Granholm as a contender for David Souter’s seat is appalling for two reasons. The least interesting reason is that Granholm is spectacularly unqualified: Her nomination would be (in Woody Allen's immortal phrase) “a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.” The more important reason is that Granholm’s presence on the “short list” suggest more generally that encouraging Presidents to nominate politicians for judicial posts is a bad idea, because they will tend to nominate the wrong sort of politician – namely, politicians who have done them favors in swing states or who need to be “kicked upstairs” to make room for other politicos in such states. (Granholm, by the way, fits both categories).
But, first, why would Granholm’s be such a terrible nomination?
The reason is not merely that Granholm has never distinguished herself in any capacity remotely relevant to serving as a judge (e.g., writing legal opinions of any sort, making tough legal decisions, or cobbling together legal compromises). The bigger issue is that Granholm has repeatedly demonstrated the cowardice of her convictions in failing to take any strong stand up against the abuse of prisoners that is prevalent at the Michigan Department of Corrections. Two Michigan juries have awarded $60 million in damages against the Michigan Department of Corrections for the egregious sexual abuse of 18 female inmates by MDOC's employees. One of the juries actually apologized to the plaintiffs for their treatment at the hands of the State. Over four hundred more plaintiffs represented by the same attorney stand ready to sue the state for this pattern of abuse. But the Michigan Department of Corrections and the Michigan Attorney General have refused to settle these cases, despite the state trial judge's urging the state to make a settlement offer and avoid "significant future expense.”
As Michigan's chief executive, Granholm likely has the power to end this litigation immediately with an executive order. But Granholm has been studiously silent about the litigation, despite its likely costing her state hundreds of millions of dollars. It is not that Granholm has ignored the costs of the prison system: She has, for instance, suggested that the state release female inmates to reduce prison costs. But calling for money to be paid to prisoners who have been raped and assaulted by state employees would apparently be too controversial for Michigan's governor.
Granholm's silence on the abuse of Michigan's prisoners is reminiscent of her refusal to stop the State Attorney General's defense of MDOC's egregious policy banning visits by prisoners' close family members as well as all visitation rights for prisoners who incurred two substance abuse tickets. This policy was struck down by a federal district judge in an order upheld by the Sixth Circuit, but the SCOTUS reversed on the theory that the plaintiffs subject to the policy should bring as-applied instead of facial challenges. Again, Granholm could have settled the case by rescinding the policy and conceding its illegality: The no-visitation rule was issued by Governor Engler's administration, so the political courage necessary to end the defense of Michigan's absurd penal system was minimal. But Granholm, again, refused to stick her neck out for the cause of prisoner’s rights that could only render her unpopular with people who have the right to vote.
Granholm, in short, seems like precisely the wrong sort of politician to promote to a bench dedicated, at least in part, to the protection of the powerless. So why did she make the short list? The obvious reasons are (1) to reward her helping Obama win Michigan against McCain and (2) to get her out of the way so that Lieutenant Governor Bob Cherry can succeed her as governor and run as an incumbent in the upcoming gubernatorial race.
Herein lies a lesson: Encouraging Presidents to nominate big-hearted politicians to the bench is a fool’s game. Presidents are only too willing to nominate political hacks to prestigious positions that play a negligible role in their policy agenda. To encourage such a habit is like encouraging an alcoholic to drink red wine for its medicinal benefits. The risks dwarf the rewards: You will not get Earl Warren (assuming that this would be a good thing): You’ll get someone like Granholm – a mediocrity term-limited out of a job with a chit to cash in for favors rendered.
In general, I think that the case for nominating a politician to the Court is weak. The Court’s business is, for the most part, a dull business to non-lawyers – parsing ERISA precedents, monitoring the minutiae of criminal and civil procedure, figuring out what it means to “use” a firearm under 18 U.S.C. section 924, etc. The notion that a politician “with real-world experience” (the phrase typically deployed by defenders of the Politico Theory of judicial appointments) will have any comparative advantage over an experienced lawyer or judge strikes me as fanciful. No one suggests that the Federal Reserve Board needs a big-hearted politician to liven up debates about monetary policy. Why would anyone believe that debates about ERISA preemption or habeas procedure would be improved by adding a politico to the Court's conference?
So don’t be an enabler: Next time someone urges the President to nominate someone with political experience, ask them to name justices with such experience who have won a good reputation after donning the robe. Typically, defenders of the “pick-a-politico” can name four distinguished politicos-turned-jurists (John Marshall, Charles Evans Hughes, Earl Warren, and Hugo Black). Against these four, balance blanks like Anthony Wayne and L.Q.C. Lamar. Then consider the track record of the nerds (e.g., scholars or judges) like Story, Holmes, Cardozo, Brandeis, Scalia, Joseph Bradley, Samuel Miller, or Harlan the Younger. If you still favor the pols over the nerds because you think that Obama will beat the odds and pick a latter-day Marshall, then you need to take a course in probability. The odds of a Granholm over a Marshall-Hughes-Warren-Black make the Politico Theory a bet for chumps.
I Am the Law
Turner Classic Movies is airing the 1938 classic, I Am the Law, today. It is one of the first films to feature a law professor as a protagonist. Edward G. Robinson plays law professor John Lindsay, a man who is bored enough with being on sabbatical that he agrees to take on the mob. The full synopsis is available here. Clearly, legal education had fewer demands 71 years ago.
When is the Movie Better Than the Book?
Well, for my 40th birthday last month my wife did not get me a Ferrari (do they even make those in an automatic transmission?) but she did get me something almost as good: a rare, perfect condition, first edition copy of Cameron Crowe's 1981 book Fast Times at Ridgemont High: A True Story. For those of you like me, who didn't know at least until pretty recently, that this was a book before it was a movie, let me tell you that it was a book before it was a movie. That's right, before Cameron Crowe made the film that launched the careers of not one not two not three but four, yes four academy award best actor/actress nominees (three have won the award), he wrote a book that was based on his experiences as a 22 year old impersonating a high school senior for an entire year at an actual high school in Redondo Beach. The principal only let him do it because Crowe knew Kris Kristofferson, who apparently the principal was very fond of, and only a few teachers were in on the plot. Anyway, once I found out the thing had been a book before it was a movie, I knew I had to get it, and my wife, bless her heart, obliged.
The thing is that Fast Times at Ridgemont High, the book, is no Fast Times at Ridgemont High, the movie. It's fine, and maybe if I had read the book before having seen the movie 14 times and before the movie permanently imprinted itself upon my consciousness, I would have loved reading the book. But as it is, I find it interesting because of course I'm comparing it with the movie, but not any sort of great piece of even kitschy literature. This "movie better than the book" thing, of course, is pretty rare. Anyone who knows anything knows that you're always supposed to say that the book is better than the movie. And indeed, it's almost always true. Just looking at my bookshelf here, I realize that even some really good movies that came from books, like Trainspotting for example, were better books. But from time to time there must be books that became better when they were turned into movies. I'm thinking off the top of my head of "Election," which I liked as a book but loved as a movie. So my question for you is: name one or more movies that were better than the books they came from. Or, if you'd prefer not to do that, then don't.
Now, lest you think that this post has nothing to do with the law, let me just use this whole discussion to pathetically segue into announcing that my book Holy Hullabaloos is now available from Amazon. I assure you that when this does get turned into a movie starring Steve Buscemi as me and Seth Rogen as the cell-phone-using-cigarette-smoking-motorcycle-accident-recovering-from-hatless Amish guy I talked to in New Glarus (home of the famous Yoder case), it will be much better than the book. But since that won't be out until 2012 or perhaps sometime later than that, like never, maybe you'd like to purchase the book that Christopher Buckley, author of Supreme Courtship, has called "the sharpest, the most insightful, the most side-splittingly funny book on law since--Supreme Courtship."
Tuesday, May 12, 2009
Lawyer's Evaluations of Judge Sonia Sotomayor
As a number of people in the blogosphere have noted, Jefferey Rosen's pieces in the New Republic have tried to swiftboat Judge Sonia Sotomayor, and introduce her to the world in a way that distorts the incredible work and achievements of this gifted and accomplished woman.
Rosen still will not divulge any of his anonymous sources, or put forth anything that resembles a good faith attempt to capture the whole of this person after authentic due diligence. He has, however, suggested that he has been speaking for some "prominent liberal jurists" who have been following Judge Sotomayor for some time now, and would prefer for her not to be on the bench. He has also decided to add some hand-picked quotes from one version of the Almanac of the Federal Judiciary to support his initial but unresearched conclusion. I found the quotes odd, not only because I did not recognize the judge in them (though she is very exacting and highly engaged from the bench), but also because they seemed to mirror exactly the very words that Rosen published without any real information oh-so-early in this process: terms like "bully," which these prominent liberal scholars, who have apparently been against her nomination for some time, were feeding him according to his own account. This made me wonder if there hasn't been a campaign brewing for some time against this truly incredible woman--one in which these people may even have been trying to create a record so they could engage in just the sorts of swiftboat tactics that we are now seeing. And so I looked back at my most recent copy of the Almanac of the Federal Judiciary (which is from 2000, and so is a little earlier), and what I found was really very interesting. Rather than leading you to any conclusions myself, however, why don't you be the judge, after reading the entire "Lawyer's Evaluation" section (and not some cherry-picked portion of it). I would only add one thing, at the end: "nuff said." (Or maybe two: What explains these discrepancies?).
(UPDATE: Does anyone know who Megan Rosen is? I have just been told that she is a recent senior editor of the Almanac of the Federal Judiciary. Any relation to Jeff Rosen?")
Lawyer's Evaluation. Lawyer's raved about Sotomayor's legal skills. "She is a brilliant judge and has been mentioned as a potential justice on the Supreme Court." "She's of Supreme Court caliber. She's very smart." "She's very smart and well-educated, but she comes from very humble roots and I don't think she's forgotten that. She's still human. She's an outstanding judge." "I liked her when she was on the Southern District of New York, but I think she's doing an even better job now that she has been elevated to the Second Circuit." "She's brilliant," "She's very impressive. She has really done a good job and made a name for herself." "She's usually right on target." "She's very scholarly." "She's really able to tackle anything. She really is a quick learner." "Even though she's still relatively young, she has a very keen legal mind. She's outstanding." "She's very well-qualified for the job. She's really very impressive."
Lawyer's found Sotomayor to be demanding. "I think she's fine." "She can be tough. She's not rude in any way, but she's exacting." "She's all business." "I've never had any problem with her, but I know some lawyer's don't care for her temperament." "She can be tough as nails, but, in truth, I think some lawyers give her a hard time or are threatened by her. She's very accomplished and clearly smart, and, in truth, I think they're intimidated. She has always been decent enough to me." "She's professional. She's not quite as friendly or as approachable as some of the other circuit court judges are. She's a little more stern." "She's very smart and well-prepared, and she expects lawyers to rise to her level. She has very little tolerance for lawyers who can't match her intellectually."
Lawyers reported that Sotomayor is an active participant at oral argument. "She asks some very tough questions." "She really is a good questioner. You have got to be prepared with her." "She's incisive." "She's really [sic] get to the bottom line." "She's fairly active. She asks very good questions. She tends to ask a mix of fact-based and hypotheticals." "She's on the ball at oral argument. She really listens to responses."
Lawyers found Sotomayor to be moderate-to-liberal in outlook, but said that she is fair in the end. "She's very ethical." "She really has a lot of principles. I don't think she'd let any bias creep into her decision making." "I think she's absolutely neutral. I think people on both sides of a case view her as being impartial. I don't know of anyone who has ever had a problem with impartiality with her." "I think she's fairly liberal, but I wouldn't say that her philosophy inappropriately affects her decision-making." "She's really amazing. Even though she was originally appointed to the bench by President Bush, it was President Clinton who promoted her to the appeals court. I think she's a fine judge and absolutely impartial."
Lawyers said that Sotomayor is moderate-to-conservative in criminal matters. "She's a former prosecutor, and that pretty much says everything." "She has turned out to take a more conservative approach to criminal cases than I would have anticipated." "I would have expected her to be a little more critical of the government and a little more lenient toward defendants. She's been tougher on defendants than I would have thought." "She's fair, but a little more conservative when it comes to criminal cases."
Lawyers said that Sotomayor's legal opinions are well-crafted. "She's a very good writer." "Her decisions read more like briefs. They're very well-researched." "She really reasons things through." "She applies the law to the facts. She doesn't let emotional arguments get in her way. She's very straightforward as far as that goes. At the same time, she still has a heart. She's not afraid to apply the law as it should be applied even when it's going to cost a defendant."
South African v. American Constitutional Law
One last post before I must sign off and do some traveling. If you want to highlight or contrast U.S.Supreme Court gender discrimination or equality jurisprudence, then you could have a class read the South African Constitutional Court's decision in Pres. of S. Africa v. Hugo (1998). President Mandela issued a pardon after taking office as a form of celebration. He pardoned women in prison who had committed non-violent offenses and who had children under 12. A similarly situated man sued and claimed gender discrimination. After an interesting discussion about why the issue was not a political question, the Court upheld the pardon as not amounting to unfair discrimination. The Court relied on the fact that women had historically been victims of apartheid, that their imprisonment hurt their children, that the Constitution permitted forms of affirmative relief for disadvantaged groups, and that it would not be practical to release men. Why not? Because the crime problem in the country was so serious that releasing males would cause real panic. In addition, men could still seek individual pardons. Most controversially, the case includes an affidavit from Mandela stating that the reality is that women are the primary caretakers of children in African society. This raises the issue of what do you do if the stereotype is partly true, which of course has numerous responses. There is a strong dissent that quotes heavily from U.S. Supreme Court cases stating that this kind of ruling only perpetuates stereotypes of women as domestics. Indeed, Justice Stevens has an opinion in a case that seems in direct conflict.
The South African case, in my view, shows transformative pragmatism. The Court seeks to help a historically disadvantaged group and takes account of very practical reasons why it would not be feasible to go farther. And the Court said no person has a right to a pardon. But most interestingly, the Court honestly acknowledged the risk of stereotyping here but found the risk outweighed by these concrete substantive benefits to specific women. The facts were also rather unique and the context mattered greatly. This is substantive equality (practical, contextual, and concrete) v. formal equality where the presumption is that everyone should generally be treated equally regardless of context (a more rigid principle based on abstract theory). Hugo is one of my favorite cases because I think the arguments on both sides are quite strong.
In closing, let me mention that my book, Constitutional Rights in Two Worlds, contains many other interesting comparisons between the two countries.You can focus just on the South African analysis or just on the American analysis to see the theories of constitutional interpretation at work (chapters cover free speech, gay rights, the death penalty, affirmative action, popular constitutionalism etc.). I spend much of the last chapter arguing that the leading supporters of the prominent "juristocracy" critique today (such as Ran Hirschl) do brilliant work but may not have theories that apply well to South Africa where scholars generally want a bolder court. I hope some of you will take a look at the book and thank you for listening to my ramblings. I especially want to thank the folks here at Prawfs Blawg for letting me join the fray. Best wishes to all.
Addendum: I'll be doing an Author meets Reader panel at the upcoming Denver Law and Society meeting so feel to join us.
Chess and Law
When the brilliant Eugene Volokh mentioned math camp in a posting the other day, I thought I'd put in a plug for one of the greatest human activities ever invented -- chess. Or as some of my friends call it, "Mark's addiction." I've played chess since I was 12 through various cycles of activity. I was a Bobby Fischer "boomer." I'm currently in a lull because of things like work, as well as being destroyed in the last tournament game I played, etc. but I love following current developments. There is a big dispute over whether it's an art, sport, science, game, or combination thereof. And despite what you may have heard, computers haven't killed the activity. The Internet in fact has been a boon for following the sport and playing online. For example, one of the strongest fields ever in the U.S. championship is now playing in St. Louis. The highest rated American player, Gata Kamksy, just came within one match last month of playing for the World Championship. And Gata is apparently a graduate of Touro Law School. He was a brilliant prodigy who almost won the World Championship in the 90's but then "vanished" for a while, before reappearing recently. Apparently during his lull, he was attending law school and getting married. His comback is rather remarkable. Former world champion Garry Kasparov has gone into politics and become a thorn in Putin's side by leading the opposition in Russia.
Chess is often compared to law. Various litigation tactics and strategies are analogized. There are commercials on telelvision for other businesses that show chess pieces (even the NBA has a great one out for its playoffs -- see YouTube). Chess theory also resembles legal theory a bit. The early 20th Century saw the development of legal realism at roughly the same time as hyper-modern chess openings were becoming important (as opposed to romantic openings of the 19th Century where the goal was to kill the king at once). Chess also raises issues of rules v. exceptions that are significant to legal theory (see chessmasters Watson and Aagaard fighting this one out). Unfortunately, chess is far more popular in Russia, Europe and Asia, especially since the current world champion is Anand from India. I'm not sure how to make it more popular here. For a while, they showed "speed chess" on ESPN but that faded and now that infernal game of poker is the rage. The latest trend has been to advertise very attractive women (usually from Russia or Eastern Europe) who also happen to be great players. It's a bit tacky but hardly seems different from your average car commercial.
The nature of chess intelligence is also hotly disputed. Some of the best chess players I know can't hold a job or hardly seem like rocket scientists. And some of the smartest people I know are awful at chess. More than a few chess players seem odd. Gladwell talks about the issue in Outliers and says "geniuses" actually have 10,000 hours of practice behind them and certain kinds of supportive backgrounds. There is some consensus that chess is about pattern recognition which explains why you can have very young chess prodigies, math prodigies, music prodigies, and art prodigies. But it's all quite unclear. I would love to get feedback on these ruminations regarding the sources of intelligence in a field like this.
But my real reason for writing is to see if I can get names from people of chess-playing law professors! I know of several who are all rated at around the A level -- Stephen Carter (Yale), Christopher Lund (Wayne State), Rich Henke (Cooley), and myself. This is two levels below Master which is the basic professional caliber. So please let me know the names of any law profs who are seriously interested in the activity as it would be a good list to have. You can send me an email personally or post here. More general thoughts are also welcome. Thanks.
Media Calls on Supreme Court Appointments
I suppose that one of the downsides of trying to preserve the repuation of a jurist in light of political attacks is that you start getting lots and lots of calls from the media. I am, unfortunately, extraordinarily busy these days, but, because I have sometimes found it helpful just to point callers to various posts, I have decided that I may try, anyway, to continue with a few more thoughts on various aspects of Judge Sotomayor's record. These are soon to come.
I should say that my purpose in doing this is, however, not to push for any particular appointment to the Supreme Court. I am motivated more by a sense of the disgrace (and this is the right word) involved with maligning the reputation of a truly special person, who has done much to better this world. As far as I can tell, Obama has begun to focus in on a number of truly gifted persons like this, and so there will surely be only feast, and no famine, with whatever his choice turns out to be.
The Goals of Adversarialism
I want to start to consider how to incorporate evidence-based systematic reviews into the legal system. There are two ways to approach the problem. The first is to think about how to use systematic reviews in a supplmentary way: the parties can still retain their own experts, but the judge and/or the jury can also see what the complete picture is as well. The second is more ambitious: can we replace the partisan experts altogether with the systematic review?
In order to figure out how to incorporate non-adversarial devices into an adversarial framework, it is essential to first identify the goals of an adversarial system. Uncovering the truth is certainly one goal, but it is not the only one. Here, I'll briefly touch on the goals of adversarialism and some of the reasons why its proponents think it advances them well. If there are other goals that I am overlooking, I'd definitely like to hear about them.
Goal No. 1: Discovery of the truth. As the US Supreme Court said in Tehan v United States, 383 US 406, 416 (1996), "[t]he basic purpose of a trial is the determination of truth." And defenders of adversarialism, such as Stephan Landsman and Sheila Jasanoff, have put forth several arguments for why adversarialism advances truth-finding.
1. Parties have the strongest incentive to gather evidence and find the best expert. Since the party has the most amount at stake, it has a much greater incentive to turn up compelling evidence. But it also has the greatest incentive to turn up obscuring evidence or to bend the evidence it or the other party has.
2. Party control minimizes the risk of confirmation bias. An independent investigator may initially believe the outcome could either be x or y. But once he starts to think it is x--perhaps simply because by chance the first several articles he read favored x--he will (on the margin) approach the issue with that bias, putting more weight on pro-x evidence and less on pro-y evidence. Party control ensures that the fact-finder hears from powerful advocates for both sides. Of course, if one side has a much stronger case, confirmation bias isn't necessarily a bad thing.
3. Cross-examination reveals important biases. These biases are not just the standard conflict-of-interest or gun-for-hire concerns. There are deeper worries about methodological, ideological, or even cultural biases as well. Cross-examination exposes these biases to the light of day. Do juries, though, have the epistemic competence to know how to properly account for these biases?
4. Prevention of "undue deference." Juries may put "too much" weight on the claims of an independent expert because of this independence. At one level, this is a bizarre concern: if indepedent experts traditionally produce more reliable results, such reliance is not undue, but due. Howie Erichson, however, raises a good concern: a biased (consciously or not) judge could take advantage of this deference by appointing an independent expert who shares his policy preferences with the hope of getting the jury to reach the same conclusion.
Goal No. 2: Conflict Resolution. Party control ensures that the trial proceeds at the pace desired by (at least one of) the parties. But the bigger role of conflict resolution is a normative one. As one federal judge told Cecil and Willging, “We’re conditioned to respect the adversary process. If a lawyer fails to explain the basis for a case, that’s his problem." Cases are often viewed as local issues, pertaining to the parties before the judge. But the fact is, we heap a lot of regulatory and social insurance responsibilities on the courts, so at least in cases involving complex evidence, a lawyer's failure to explain his case could be a problem for all of us.
Goal No. 3: Individual control of a government institution. The sources of this goal are varied. Part of it is our bedrock individualism and distrust of government. By putting the parties in control, the government's job is narrowly constrained. Even as we seem to move away from agreeing with Reagan's nine terrifying words joke, we remain a country leery of the government. Another justification is that the parties themselves are paying, so they should be in control. And unless we are willing to create a large judicial bureaucracy to process complex science cases--a highly unlikely possibility that I will not even bother to consider here--the parties will likely be paying in the future as well.
Goal No. 4: Preventing arbitrary or biased outcomes. A passive and neutral fact-finder does not have the ability to impose its own policy preferences on the outcome. Perhaps tied a bit, though by no means completely, to concerns about confirmation bias, the thought here is that by cabining the deciders' actions to a narrow issue--here, determining who presented the more compelling case--adversarialism limits the deciders' ability to behave poorly. It should be noted, though, that others have suggested the epistemic limitations of the fact-finders actually cause arbitrariness, since untrained juries can do little more than guess as to who has the better claim.
Because of these values, judges are generally unwilling to appoint independent experts. In my next posts, I will argue that they should. In particular, systematic reviews not only advance goals 1 and 4, but do so in ways that respond to the very concerns judges and others have with independent experts. Systematic reviews are in tension with goals 2 and 3, but their application can be reserved for those cases where these interests are relatively weak.
The Duty (Not?) To Retreat: The Cultural Righteousness of Justification
A few days ago I saw this story from Florida about the duty to retreat before using deadly self-defensive force. Florida is one of a growing number of states that has a "stand your ground" law for all self-defensive force, and permits the use of deadly self-defensive force where the actor "reasonably believes it is necessary to . . . prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony." A "forcible felony" is defined in Florida as "treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual."
In the story, a man, from inside his house, hears his SUV turn on outside, grabs his gun, heads outside his house, and sees his car pulling out of his barn. He sees someone's arm reach outside the passenger side, and he believes that the person might have a gun. The car stops directly in front of the man. Then things become less clear. He raises his gun and shouts stop. He then claims that the car is "moving directly toward him" (did it start moving after it had come to a stop and after he pointed his gun at it?). "Fearing for his life," the man then fired 6-8 rounds into the front windshield (6 to 8!), whereupon the car backed up and landed in a ditch (no shots seem to have been fired back). The man's shots killed one of the people in the car.
While some of the facts at least as reported by CNN are a bit mystifying, I want to set that aside because I simply don't know enough about the particulars and confusion often reigns when all one has is a news reports. Instead I want to ask whether a law like Florida's would have allowed the car owner to shoot to kill if he had only heard the car ignition and run out to see the car driving away. I think that the answer is yes, and it suggests to me that the 'stand one's ground' statute is, at least in part, not really about self-defense at all. It's about a certain idea of proper, rightful conduct -- here justification is about conduct that is deemed good, praiseworthy, righteous, and something much more than merely tolerable or non-criminal.
Let's assume that when the thieves broke into the car owner's barn and stole the car, they could be convicted of burglary in Florida (a probable result). Let's imagine also that there was never any physical danger to the car owner. What would then be the reason to permit him to use deadly self-defensive force? The reason cannot be self-protection of any kind, because there is absolutely no danger at all to him. Why allow the use of deadly self-defensive force when there is no need for self-defense?
The only reason I can conceieve would be that it is good and right for the car owner to shoot. Here "justified" seems to mean something exactly like "righteous" -- the Florida legislature wants him to shoot (one can make retributivist and utilitarian arguments in all directions) because people living in a civilized society ought to do just that when their property has been stolen. You owe it to yourself, and to the rest of the civilized world, not to retreat and to act righteously -- bravely, and not like a coward.
This type of argument is one which may of course be met by the claim that the duty to retreat is worthwhile because taking a life is never justified -- never good and righteous -- if the actor could have retreated to complete safety. But even those arguments are laced, it seems to me, with notions of righteousness. You act well -- in a praiseworthy way and not merely in a tolerable way, let alone in a way not of concern to the criminal law -- when you retreat to the extent possible before using deadly force. That is what right thinking people, not merely non-criminal people, do.
And if it is true that the duty to retreat implicates these notions of righteousness in connection with justified conduct -- if it really is about that which we wish to praise at least as much as that which we do not wish to condemn -- then it makes perfect sense that we would see very different rules in different jurisdictions, reflecting the considerable cultural differences in what people in an increasingly pluralized (fragmented?) country think righteous.
Pirate nicknames (only half serious)
Eugene's post about piracy repeatedly makes the point about the heinousness and seriousness of piracy as a crime, which is lost in the mythos of eye patches and bottles of rum and parrots.
So that led me to wonder, in only half-seriousness (maybe only 37 % seriousness), whether pirate nicknames for sports team have become inappropriate. Obviously they are not racially or ethnically charged or offensive, so people are not going to get worked up about this. Still, it does refer to a class of anti-social people who commit what are widely regarded as crimes against the entire world. Isn't calling your team "Pirates" equivalent to calling it "Hijackers" or "Guerillas" or "Terrorists"? Or at the very least "Armed Robbers"?
Judicial Supremacy In a Footnote?
In the spirit of Marc's posting on the footnote to Justice Stevens's dissent in FCC v. Fox TV I'd like to comment on a footnote to Justice Scalia's majority opinion in Heller v. Doe. (Thanks to Andy Hessick at ASU for directing my attention to it at Prawfsfest a couple of weeks ago.) In footnote 27 to the opinion Justice Scalia criticizes Justice Breyer's suggestion that rational basis review might even be a possible approach to Second Amendment challenges to gun control laws. (Breyer ultimately rejects that standard, in favor of a vague judicial balancing of interests.) What's interesting is Justice Scalia's argument against that suggestion, presented here in full, except for some citation details (the bracket is Justice Scalia's):
"Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. ----, ----, 128 S.Ct. 2146, 2153 - 2154, 2008 WL 2329768, *6-7, 170 L.Ed.2d 975 (2008).In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)(“There may be narrower scope for operation of the presumption of constitutionality [ i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments ...”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."
I'm struck by the offhand statement in this footnote that "'rational basis' is not just the standard of scrutiny, but the very substance of the constitutional guarantee" of equal protection (Engquist is an equal protection case). It hearkens back to the most aggressive statements of judicial supremacy in the Fourteenth Amendment enforcement power cases from the early part of the decade, Bd of Trustees v. Garrett (2001) and Kimel v. Bd of Regents (2000). In those cases the Court rejected, respectively, the ADA's and the ADEA's validity as legislation enforcing the Equal Protection Clause. Most importantly for our purposes, in those cases the Court concluded that its own doctrine according only rational basis reivew to disability and age discrimination furnished the constitutional baseline against which to judge the ADA's and ADEA's congruence and proportionality.
Heller's footnote seems to be of a piece with this approach. But in a way it's even more aggressive in its rejection of the possibility that judicial doctrine may not fully state constitutional meaning. At least Garrett and Kimel had the decency to check the factual record compiled by Congress to determine whether the constitutional problem the statute targeted was in fact bigger than what the Court originally thought. Heller's approach simply equates (1) the equal protection guarantee with (2) a prohibition on irrational laws, and from there with (3) the rational basis standard of judicial review.
I can understand the equation of (1) and (2): it's not implausible to read equal protection as fundamentally a prohibition on irrational classifications. But it doesn't follow that the rational basis standard is "the very substance of the constitutional guarantee" represented by (2). Unless I'm missing something that logic doesn't explain why the Court uses strict scrutiny to review race classifications or intermediate scrutiny to review gender classifications. Race and gender classifications may be "irrational" in the sense that, say, gender is rarely relevant to a public purpose government can appropriately pursue. But that doesn't mean that such irrationality is ferreted out by the rational basis test. And of course, as a matter of fact the Court uses much more than a rational basis test for these types of classifications.
I suspect Justice Scalia knows this. I wonder if he is using Breyer's argument as a straw man to help cement a Court majority against future enforcement legislation. After all, in Heller not even Breyer ends up suggesting use of the rational basis standard to review gun control laws. Scalia just as easily could have avoided discussing equal protection and simply criticized Breyer for suggesting the use of rational basis to review infringements on an enumerated right -- indeed, had he done so he could have retained the cite to Carolene. Scalia's dissents in Dept of Human Resources v. Hibbs (2003) (upholding the Family and Medical Leave Act as enforcement legislation) and especially Tennessee v. Lane (2004) (upholding application of the ADA's public accommodation provisions as applied to courthouse access) put him at the extreme end of the pre-Roberts & Alito Court with regard to congressional enforcement power. I wonder if he is attempting to push the new justices toward his point of view. It might even be that he is laying the groundwork for something that will appear in the Enforcement Power challenge to the Voting Rights Act currently pending before the Court. It will be interesting to see if anything grows from this newly planted seed of judicial supremacy.
Monday, May 11, 2009
Making Information Pay: How the Recession is Changing the Book Business
In the not-too-distant past, academic titles could be published and languish on shelves indefinitely. Now, each title needs to prove its financial value, as well as its scholarly merit. A recent article discusses this trend on the trade side, and even some of the best-known and most established academic publishers are reportedly feeling the pinch. How will this impact legal academic publishing in general and academics in particular? Could this lead to agreements being rescinded? If so, is there any recourse?
Piracy & Jurisdiction: A Post by Eugene Kontorovich (NW Law)
I've been writing for several years about piracy, using it as a case study to better understand universal jurisdiction, which originated with piracy and has been extended now to other crimes. The current piracy epidemic in the Gulf of Aden has made all this quite relevant. Recently, I've blogged about this at the Volokh Conspiracy and Opinio Juris, and will now continue to do so here.
Everyone, I discuss this with says something about eye patches and bottles of rum. So we'll get it over with right now: these are not those kind of pirates, though they do include some interesting characters.
One striking aspect of the ever-worsening Somali piracy crisis is the complete failure of nations to exercise universal jurisdiction. Dozens of warships are patrolling the Gulf of Aden and catching pirates. Under international law, any country that captures pirates can prosecute them. Yet none of the patrolling countries have exercised this option. Hundreds of pirates have been caught, the only ones that have been brought back to Western nations for trial are the few that happened to attack the vessels of the capturing the nation.
In an essay in the current issue of the National Law Journal I discuss the complete failure to use universal jurisdiction. Piracy is the oldest and most widely agreed on universal jurisdiction offense. The failure to use this tool is particularly notable given that it comes at a time when universal jurisdiction and international justice are supposedly ascendant. To add to the irony, the very nations that claim prosecuting Somali pirates in domestic courts would be too difficult are pursuing complex and politically fraught cases against senior American and Israeli officials.
As I write in the article: The failure to use a venerable international law principle against a serious international crisis suggests that international law has in some ways lost ground in recent decades. . . When countries abdicate enforcing international law with respect to nonpolitical crimes like piracy that truly endanger international safety, it makes it harder to believe that they are motivated by an unswerving dedication to international law when they go out of their way to selectively judge the participants on one side of a far-off foreign war. Some developments that occurred while the piece was in publication highlight this point. A few days ago Spain captured a group of nine pirates after responding to a distress call from a Panamanian vessel. In a remarkable development, there were reports that Spanish authorities would bring the Somalis back to Spain for prosecution. Amongst other attacks, they were suspected in the foiled hijacking of an Italian cruise liner with 1500 passengers, which would've been perhaps the most spectacular pirate seizure so far. (Perhaps I’ll say a few words on this fascinating incident in a subsequent post.)
However, Spanish authorities have instead ordered the prisoners to be released. Despite the fact that countries have an international legal duty to suppress piracy, and pirates are labeled enemies of all mankind, the Spanish judge thought that prosecuting a crime that happened thousands of miles away would be “a bit disproportionate.” Of course, just the previous week, Spain launched a judicial investigation into an Israeli strike on a Hamas leader in Gaza in 2002. Unlike piracy, over which all nations clearly have universal jurisdiction, the basis for Spanish jurisdiction is far from clear. And of course the merits are much harder, as are the practicalities of trying to figure out what happened years ago in an ongoing conflict between Israel and the Palestinians, a situation in which, unlike with piracy, some of the alleged victims are certainly not free from blame. In other words, Spanish courts are inserting themselves into a temporally distance, politically fraught, factually obscure geopolitical conflict. Moreover, unlike with the piracy,Spain has not been involved in keeping Gaza safe; its judicial interest is unlinked to an enforcement activities. With the pirates, the decision to not proceed means that this band will be released and within days or weeks will likely be shooting up other civilian vessels.
It seems a bit disproportionate. This is not to single out the Spanish Gaza case from other exercises of universal jurisdiction by European nations. But the juxtaposition between Spain’s abdication of its international legal duty in the relatively easy piracy context with its acting as a one-sided global policeman in the Gaza case highlights the problematic nature of universal jurisdiction as it is being used today, and perhaps as Ken Anderson has suggested that perhaps, some broader problems in international law. This is not to say that there is not a role for international justice in dealing with alleged crimes against humanity. There is also a place in the world for driving cars at 200 miles an hour. And while that's what every teenager wants to do, they are told they must learn ordinary driving before they go to the races, where one can easily crash into the stands.
As I write in the article:
The failure to use a venerable international law principle against a serious international crisis suggests that international law has in some ways lost ground in recent decades. . . When countries abdicate enforcing international law with respect to nonpolitical crimes like piracy that truly endanger international safety, it makes it harder to believe that they are motivated by an unswerving dedication to international law when they go out of their way to selectively judge the participants on one side of a far-off foreign war.
Some developments that occurred while the piece was in publication highlight this point. A few days ago Spain captured a group of nine pirates after responding to a distress call from a Panamanian vessel. In a remarkable development, there were reports that Spanish authorities would bring the Somalis back to Spain for prosecution. Amongst other attacks, they were suspected in the foiled hijacking of an Italian cruise liner with 1500 passengers, which would've been perhaps the most spectacular pirate seizure so far. (Perhaps I’ll say a few words on this fascinating incident in a subsequent post.)
However, Spanish authorities have instead ordered the prisoners to be released. Despite the fact that countries have an international legal duty to suppress piracy, and pirates are labeled enemies of all mankind, the Spanish judge thought that prosecuting a crime that happened thousands of miles away would be “a bit disproportionate.”
Of course, just the previous week, Spain launched a judicial investigation into an Israeli strike on a Hamas leader in Gaza in 2002. Unlike piracy, over which all nations clearly have universal jurisdiction, the basis for Spanish jurisdiction is far from clear. And of course the merits are much harder, as are the practicalities of trying to figure out what happened years ago in an ongoing conflict between Israel and the Palestinians, a situation in which, unlike with piracy, some of the alleged victims are certainly not free from blame. In other words, Spanish courts are inserting themselves into a temporally distance, politically fraught, factually obscure geopolitical conflict. Moreover, unlike with the piracy,Spain has not been involved in keeping Gaza safe; its judicial interest is unlinked to an enforcement activities. With the pirates, the decision to not proceed means that this band will be released and within days or weeks will likely be shooting up other civilian vessels.
It seems a bit disproportionate.
This is not to single out the Spanish Gaza case from other exercises of universal jurisdiction by European nations. But the juxtaposition between Spain’s abdication of its international legal duty in the relatively easy piracy context with its acting as a one-sided global policeman in the Gaza case highlights the problematic nature of universal jurisdiction as it is being used today, and perhaps as Ken Anderson has suggested that perhaps, some broader problems in international law.
This is not to say that there is not a role for international justice in dealing with alleged crimes against humanity. There is also a place in the world for driving cars at 200 miles an hour. And while that's what every teenager wants to do, they are told they must learn ordinary driving before they go to the races, where one can easily crash into the stands.
"It is what it is": Anatomy of an idiom
As I've begun to go to conferences and to learn what legal academic life is all about, I'm coming to appreciate some of the manners of speech and phraseology that are part of the culture. The pregnant So..., the postmodern "stories" and "narratives" (often offered up inside tellingly non-neutral quotation marks), the orthogonalisms, the acutely self-conscious normative/descriptive parsings, the takings up of the second part first, and so many others. For the most part, these turns of phrase and other methods of communal engagement are not at all objectionable to me -- in fact, there is a good deal to be said for the verbal and stylistic peculiarities of academic culture. It's even interesting how one or another shard of argot seems to catch fire, live out its natural life, and expire.
At a few conferences this year I have heard the phrase, "It is what it is," uttered either by the speaker in chief or a respondent. At one, it was used twice in the same session by two speakers, though with somewhat different connotations. The idiom is not new to me (and probably not to many of you, too) and has been imported, I think, from the business and/or sports culture. I know folks in the business world for whom the phrase is a staple, and I seem to recall Jason Varitek recently intoning it despondently after the Red Sox were embarrassed by the upstart-but-still-destined-never-to-win-it-all Tampa Bay Rays (and whatever happened to the evocative "Devil" modifier?).
I've never much liked the idiom. Here's a gloss on its possible meanings in an academic context, though probably there is substantial crossover to other spheres:
- Conversation strangling: "It is what it is" may be meant as a suffocating move. There just isn't anything left to say, and that should be obvious. All reasonable inquiry has been exhausted. The time for thought is past; now is the time for action. What will you choose and what will you do?
- Fatalistic: Here the phrase is meant to indicate something unchanging and immutable. There is no point in intellectual resistance when one is up against the vast, impersonal forces of nature. There is a kind of metaphysical inevitability in the point being made, one which reflects the sweeping and recurrent patterns of history. From a description of the thing examined is derived a moral attitude toward it -- a resigned helplessness coupled with the power to predict the future and retrodict the past.
- Hard-nosed commonsensical: the idiom can also mean something calculatingly pragmatic. This sense is perhaps closest to that used by my business friends: if "it is what it is," better to cut one's losses and expend one's resources elsewhere, where the payoff is sweeter. Banging one's head against a stone wall is not profitable. It is the shrewd person who hears clearest the voice of practicality and who intuits when enough is enough.
- Mystico-Essentialist: "It is what It is" is a contemporary echo, maybe, of "I am what I am" (God or Popeye, as you like). In some subconscious way, the phrase is meant to impart a spiritual authority to the object -- the "it" (no need to complicate matters by calling it the id). The "it's" essence has been uncovered and it is nothing less or more than the mute thing in itself. Ok, ok, perhaps this last gloss is a stretch.
Each of these possible meanings is pernicious in its own way. This is not to say that there is nothing insightful in each of them. But I do think that "it is what it is" should not be used unthinkingly or reflexively. It is not at all an innocent turn of phrase and I hope very much that it does not become one of our permanent verbal mannerisms (incidentally, a Westlaw search dredged up a few recent articles that use the idiom, including Pierre Schlag's latest incursion in the Georgetown Law Journal, where it is used to describe legal scholarship itself).
To combat the ascendancy of this idiom, it might be worthwhile to introduce a few variations at that next conference; maybe,
- Dadaist: "It isn't what it is."
- St. John of the Cross/Via Negativa: "It is what it isn't."
- Burkean: "It is what it has been."
Suggestions for others?
Back to exam grading, which I am now discovering is exactly what it is.
I don't mean to brag, but ...
My school has recently adopted a pre-tenure leave (teaching release) policy, of which I will be one of the early beneficiaries this fall. In fact, with classes over for the year, I only have 70 civil procedure exams standing between me and that leave.
So what am I going to do? I’m going to Disneyworld! Really. With my husband and kids. After that, I hope to do a little writing.
I wonder whether there is a trend toward adopting pre-tenure leave, or whether my school (which is not one of the very elite) is just an outlier compared to its sister institutions? My sense is that this sort of teaching release is fairly common in disciplines other than law – but of course, many other disciplines have heavier teaching loads to begin with. Do you have pre-tenure leave? Or a pre-tenure light teaching load? I’m interested in finding out how it works elsewhere.
Electronic law review supplements and tenure
I want to combine a couple of recent topics of discussion: a) Erwin Chemerinsky's Michigan Law Review essay (which Bill commented on) and b) Cardozo Law Review's launch of De Novo, its on-line supplement intended to provide an even broader forum for short scholarship, including c) a fun forthcoming piece of advice for a new law professor by my colleague, Matthew Mirow.
The question is should we do with these new scholarly forums and how should they be worked into out scholarly expectations and our tenure standards? And Chemerinsky's discussion of the legal scholarly enterprise is a good jumping off point. A couple of sub-questions and sub-issues presented here.
First, Chemerinsky defines scholarship as that which makes an important, original contribution that add substantially to the body of legal literature. Form and audience are less controlling, although Chemerinsky does suggest that blog posts and op-eds do not qualify. But journals such as De Novo or Northwestern Colloquy or Yale's Pocket Part are doing something different. They are publishing short pieces (3000-5000 words, shorter even than the typical law review "essay"), although longer and more substantial and substantially researched than most op-eds or columns and most blog posts. And important, original ideas can be presented and argued in this forum. Or at least similar ideas from larger pieces can be presented in a different form, with a different emphasis, for a different audience.
Second, should junior folks be encouraged to write for these forums? These pieces are relatively easy to write in a short period of time and the lag from acceptance to publication may be a matter of weeks. So a prawf can go from idea to publication in two-three months, in a forum that may reach a fairly wide audience. If the rule is to always be writing and involved in the conversation, it seems to me this is an easy way to get some publications under one's belt and to get your name and your ideas out there.
Third, how does this affect what we all should be doing with our time at any career stage? In the old world, it was all about lengthy law review articles that were submitted at one of two set points during the year and that typically took six to 12 months, acceptance to publication. And there really were no other options--no alternative outlets or forums, no alternative forms of scholarship. But on-line supplements alter that. So while big (although not-quite-as-big) law review articles remains the coin of the realm, there are other outlets and options. So to what extent should we make those other options part of our annual scholarly plan--one big article and one essay or reply for on-line placement each academic year?
Finally, how does this get written into the tenure standard? At most schools, the statutory minimum is written in terms of big law review articles. At FIU, the illustrative standard (not intended as a necessary-and-sufficient quantification) is "three substantial scholarly works" by the start of the sixth year. Should that standard be revised to recognize the new scholarly reality? Should it speak not only of substantial scholarly works, but of "other" scholarly writing, which might include electronic supplements. Should they be part of the body of scholarly work that is sent to outside reviewers? This is not to suggest that a junior faculty member who goes up with three 3000-word essays for supplements should get tenure; only that she she should get credit for writing such essays in addition to her three or four substantial scholarly works. Tenure should be based on the overall body of work; can and should we expect that body to include some pieces intended for on-line supplements and other scholarly places? And should we write formal standards accordingly?
Friday, May 08, 2009
The Supreme Court, Socio-Economic Rights, and Separation of Powers
The U.S. Supreme Court has issued numerous decisions where it has ruled against implying positive socio-economic rights, though it has not hesitated to find an implied right to privacy, abortion, travel, etc. One of the Court's major arguments has been separation of powers. For example, in Dandridge v. Williams, the Court said there was no equal protection violation when a welfare cap meant that a large family could get no more assistance than a small family. In San Antonio Indep. School District v. Rodriguez, the Court refused to find any fundamental right to education, nor that being poor was a suspect class. Another related objection is that forcing government to implement positive rights is fundamentally different than negative rights. The South African Constitutional Court decisions that I've discussed in earlier posts show these separation of powers objection are flawed.
First, Constitutional Court cases like Grootboom (Court says national government must adopt policy regarding the homeless) and Olivia Road (Court orders municipality to "meaningfully engage" with squatters) show how separation of powers concerns can be alleviated in a pragmatic and transformative way. In both cases, the Court said that the government must act, but left some discretion regarding what the government must do. Several commentators have argued that both cases turned a potentially head on conflict, between the judiciary and another part of government, into a meaningful dialogue in which each branch is acting within their roles. Similarly, nothing in Rodriguez or Dandridge would have prevented the Court from ruling both laws unconstitutional and yet leaving significant (but not absolute) discretion to the state to remedy the situation.
Second, the positive versus negative rights distinction is troubling. Government spends money affirmatively to guarantee "negative" rights e.g. funding elections, funding police to protect property or controversial speakers, etc. Moreover, so-called positive rights often have a negative component. Thus, the right to access housing includes a right against arbitrary evictions. Numerous other scholars have made these points. I'm not saying there's no distinction at all betweeen positive and negative rights. But the distinction is certainly not so great as to preclude enforcement of positive socio-economic rights.
Now the more complicated theoretical question is whether the Ninth Amendment and the Fourteenth Amendment should be read as encompassing such rights. I argue in my book that one key to that is the U.S. Supreme Court's artificial reliance on three levels of scrutiny. First, the reality is that the Court has used numerous additional levels of scrutiny. Second, if the Court adopted a sliding scale, then its results in these areas might not be that different from South Africa. As Justice Marshall wrote in Rodriguez, if one combines the importance of education, with the social stigma of being poor, it's apparent that a higher level of srutiny should be used when there is a law that impacts both. Then the question becomes whether the potential slippery slope and clarity problems with a sliding scale (or something like South African proportionality) are too serious. I think the benefits in providing a more just and equal society from such an approach (not to mention a more candid Court -- think of Plyer v. Doe) outweigh the costs of some unpredictability.