Monday, January 31, 2011
Judge Vinson's incoherent extension of Printz's anti-commandeering principle from states to private persons
Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:
(1) It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);
(2) The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...
(3) "[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving. He states that "[t]he Necessary and Proper Clause cannot be utilized to 'pass laws for the accomplishment of objects' that are not within Congress’ enumerated powers (page 62)." Yes, of course -- but, just a page earlier, Judge Vinson had conceded that the end of regulating the insurance industry is an "object" within Congress' enumerated powers! Judge Vinson follows this non sequitur with another: He quotes Printz's statement that, "[w]hen a 'Law . . . for carrying into Execution' the Commerce Clause [violates other Constitutional principles], it is not a 'Law . . . proper for carrying into Execution the Commerce Clause....'" (page 62). But his very quotation requires Judge Vinson to point to some "other Constitutional principle" besides the doctrine of enumerated powers to justify his opinion. Judge Vinson never does so: He brandishes the language of enumerated powers, even though the language is wholly non-germane to the task at hand.
What is responsible for this egregious muddle of McCulloch? As the quotation from Printz suggests, Judge Vinson is extending Printz's an anti-commandeering principle from states to private persons. The problem, of course, is that Printz's anti-commandeering principle is rooted in the idea that Congress can conscript private persons -- a power which Congress has routinely exercised to force us private folk to serve on juries, testify as witnesses, and register for the draft. That's the whole gist of the Court's contrast in New York v. United States between the Articles of Confederation (under which states could be commandeered to raise troops for Congress) and the the U.S. Constitution (under which Congress has to conscript soldiers directly using its own powers): Congress does not need to force the states to draft us, the New York Court reasoned, because Congress can draft us itself.
This is not to say that there is not a place in the U.S. Constitution for an anti-commandeering principle to prevent the government's commandeering of private persons. That place is, however, the Bill of Rights and the Civil War Amendments, not Article I. By using Article I doctrines to advance a libertarian agenda, Judge Vinson (and his chief handler, Randy Barnett) risks discrediting the former by not defending the latter plainly and coherently.
A Clearinghouse for Questions
N.B. This thread will get bumped to the front every 10 days or so.
The first second batch of FAR forms were distributed a while ago and so we can officially say that the new year's hiring market has begun. We'll have two posts to get things started. This one, the first one, will be a place where wannabes can ask questions anonymously (assuming they are not especially offensive or otherwise improper), and prawfs or others can weigh in, also anonymously if they choose, but note that while I won't actively moderate this discussion forum, I will feel free to delete any cases of misinformation or anything else I find outside the bounds.
The second post will be a place where candidates or prawfs can report the issuance of a first round or callback or offer or acceptance, much like we did last year. I am hoping some gentle soul will emerge (as Justin Levitt and Marc DeGirolami did in years past) to organize the information. If you're volunteering, please let me know and I'll put you in touch with the incomparable Sarah Lawsky, who tech'd us out for it last year. Please keep in mind that the second thread should be used only for information relevant to hiring, not for questions. This thread should be used for questions.
To start us off, I just rec'd a query from a friend on the market asking these two questions.
1. Does it really cost nearly $400/night to stay at the conference hotel, or is there an AALS rate that will be released that I should wait for?
--short answer: I don't know. Anyone else?
2. Is it normal that at this point (with packets going out at the end of the week) that I don't know who the hiring chair is at many schools still?
--in the past, usually Harvard or Yale or Chicago people (Bigelow/Climenkos or their overseers) compile this information. Sometimes we have had a good soul share this public good of information. When I was on the market, I think I just called the Dean's office of the schools to find out who the APCOM chair was. Seems like a perfectly legitimate question to me, but you can also and always address the packets to Dear Faculty Appointments Committee if need be. With some luck, someone will forward me a copy of the collated information and once I receive it, I'll be happy to share it imminently. Good luck!
Since people are writing about very serious subjects (health care, Egypt), I thought I'd start with something equally serious, and that is the use of the phrase mutatis mutandis in both legal opinions (not so much any more) and theory-heavy papers (still a bit more, I think). I'm sure the Prawfs readership will know that the phrase means, 'changing that which must be changed' -- it's a way to draw logical connections or analogies as between arguments when one alters variables in the argument.
The phrase always makes me smile, especially since it is generally offered very seriously (Latin phrases convey deep thought), because in Italian, "le mutande" means "underwear" -- which colors the meaning of changing that which must be changed (sorry). In fact, when I see the phrase, I actually start to think whether the thing that I am being asked to change is in fact in as much need of changing as a person's underwear. Usually I decide not, and by that point I've forgotten the reason I was being asked to change it. And I hope all of you will now make this association as well.
Thanks to Dan and the Prawfs for having me. Next time, why ceteris paribus makes my eyes water, and the etymology of the word "baloney" (the late A.W.B. Simpson had a theory about this which was probably too good to be true).
Quick Reax to the FL Dist. Ct. Health Care Ruling
Unsurprisingly to those who read its earlier opinion, the federal district court in Florida has held that portions of the Affordable Care Act are unconstitutional. Also unsurprisingly to those who may recall my blogging last year on this subject, I think the court's all wet.
To begin with, the court asserts again (at p. 39) the fallacy that the additional tax on those who do not purchase health insurance is "unprecedented." As I explain in a new draft (page 8, at the top of Part III), that just isn't remotely true; there are literally hundreds of other statutes that do exactly what the ACA does, which is to impose a higher tax on someone who elects not to do what Congress wants. In fact, there is already more than one statute that imposes higher taxes on folks who don't buy insurance. While the Court claims this point isn't determinative, it is the first thing the court says in its analysis, and certainly flavors the discussion.
Things get slippery, and start to smell like over-cooked broccoli, after the jump.
As for the rest of the court's argument, basically, the whole thing is just a slippery-slope: if Congress can do this, what can't it do, etc. (p.43-56). The Court says the link between requiring an insurance purchase and other provisions of the act is just as attenuated as the link between buying broccoli and health care, and says it is "piling inference on inference." It waives aside (50-51) the government's argument that must-carry provisions collapse into death spirals with no real explanation, except to say that five things have to happen before that occurs. (But, um, those five things happen millions of times every year...) And it repeats its bizarre claim that the necessary & proper clause cannot allow Congress to enact provisions that would extend beyond what is enumerated (p.62), even though that of course makes the entire clause redundant.
To keep this short, the one point I'll make is that the ACA and its accompanying incentives to buy insurance overcome a collective action problem among states (see pp. 3-4). Thus, the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard.
A fun time to be teaching about Madison and Marshall
Judge Vinson's ruling regarding the constitutional challenge to the "individual mandate" is here. I don't know what is going to happen, eventually, with this challenge but I do know that the ruling's timing is great, for those of us teaching Constitutional Law this semester!
Hello Prawfs! It's a pleasure to be here. Thanks to Dan for this opportunity. During this stint, I'll be blogging about legal issues related to the turmoil in the Middle East.
As we all watch the events in Egypt, keep an eye on the Egyptian Bar. As an 82-year-old president struggles to regain control of a country where 2/3 of the population is under 30, the Egyptian bar is poised to emerge as a powerful voice supporting the Egyptian opposition. The Egyptian judiciary has long been known as one of the most independent in the Arab world. Egyptian lawyers have long been a powerful source of opposition to the Egyptian government. Even after government crackdowns in the mid-1990s, the bar remains a powerful political voice representing the interests of Egypt’s professional class. The Egyptian Bar Association also has close ties to the Muslim Brotherhood, an Islamist social and political movement that represents about 20% of the Egyptian population, and which is widely feared by the Mubarak regime. It is no accident that Mubarak’s government has been especially careful to quash protests outside the Egyptian Lawyers Syndicate building.
Also not coincidental is the fact that Mohammed ElBaradei, the Nobel Laureate trying to unite the Egyptian opposition, is the son of a former president of the Egyptian Bar Association who was known for his clashes with former Egyptian President Gamal Abdel Nasser. Ayman Nour, the leader of the opposition El-Ghad party who was jailed after winning 7% of the vote in the 2005 presidential elections, first gained prominence as a lawyer. Legal NGOs have also been at the forefront of the Egyptian protests.
For example, the Egyptian Initiative for Personal Rights , a non-profit human rights organization founded in 2002, has been active in ensuring rights for those arrested in the recent protests.
Will the involvement of lawyers in the Egyptian revolt lead to the emergence of the democratic rule of law? Time will tell. In the meantime, I’m glued to my television, eating hummus in solidarity and watching history unfold.
A Small-Town, Social-Media Parable
My co-author Daniel Friedel and I just finished a book chapter for a book called Social Media: Usage and Impact (Hana Noor Al-Deen & John Allen Hendricks, eds., Lexington Books, 2011). In the course of writing the chapter, I came across Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. App. 2009), a case I had somehow missed when it came out. The Moreno case is a cautionary tale about the dangers of engaging in undue self-revelation online, but that is not the only reason I find it fascinating. I find it fascinating because I grew up in a small, remote town, and I am acutely aware of the social dynamics that underlie the case.
Here are the facts. While Cynthia Moreno was a college student at Berkeley, she visited her hometown of Coalinga, California. Moreno subsequently published on her MySpace page a very negative “Ode to Coalinga,” in which she stated, among other things, that “the older I get, the more I reliaze that I despise Coalinga.” (1128) The principal of Coalinga High School obtained the Ode and forwarded it to a local reporter. After publication of the Ode in the local newspaper, Cynthia Moreno’s family received death threats, and a shot was fired at their home. They were forced to move away from Coalinga, abandoning a 20-year-old business. (1129). They sued the principal and the local newspaper for invasion of privacy and intentional infliction of emotional distress. The trial court dismissed the case against the newspaper under a California's antil-slapp statute. The Moreno family did not appeal the ruling regarding the newspaper, but they did appeal the trial court’s dismissal of their claims against the principal for invasion of privacy and for intentional infliction of emotional distress. (1129).
With regard to the privacy claim, the California appellate court held that the revelations concerning the Ode simply were not "private" once Cynthia Moreno posted them on MySpace, “a hugely popular internet site.” (1130). The Court found, in essence, that Cynthia had waived any reasonable expectation of privacy through her "affirmative act." (1130). It was immaterial to the court that few viewers actually accessed Moreno’s MySpace page. By posting it, she opened her thoughts to “the public at large,” and “[h]er potential audience was vast” regardless of the size of the actual one. As Cynthia learned to her sorrow, there is no privacy invasion when information shared with a seemingly “friendly” audience is repeated to a hostile one. (1130). [Query, however, whether this could lead to a false light claim in the right circumstances.] Although the court dismissed Cynthia's privacy claim, the court held open the possibility that a claim for intentional infliction of emotional distress could succeed. (1128).
The Moreno case sends a mixed message about legitimate use of information shared in "public" social media. On one hand, the information is not private. On the other, republication can still lead to liability if done for the purpose of inflicting emotional distress on another in a manner that jurors might subsequently deem “outrageous.” At first blush and maybe at second, too, this latter holding regarding intentional infliction (the court left its reasoning unpublished) seems inadequately protective of speech. After all, the principal was merely republishing lawfully obtained truthful and non-private information, arguably about a matter of local significance. The principal had no "special relationship" (protective, custodial, etc.) with Cynthia Moreno that might have imposed on him a duty to give special regard to her interests or emotional well-being. It seems from the facts, however,that Cynthia's younger (minor) sister might have been attending the high school of which the defendant was principal, which perhaps could make his actions more "outrageous." Moreover, how much solicitude should be given to a defendant such as the principal if his intent in publishing the statement was to ensure the ostracization of Cynthia and her family, or even if he acted with reckless disregard that those consequence would result? Of course, the statement need not have been published in a newspaper in order to produce a similar result. In a town of fewer than 20,000 residents, the gossip mill very well might have ensured that the information got to those most likely to be interested in it. Moreover, if the principal could foresee harm to Cynthia through the gossip mill, arguably so could Cynthia (even if the scope and exact manner in which those harms would occur were unforeseeable). After all, she did grow up there and should have known, even at 18 years old or especially at 18 years old, how vicious the repercussions might be if her Ode got out. I feel great empathy for Cynthia, but I do worry about the free speech implications of giving a tort remedy based on the repetition of lawfully obtained, truthful, non-private information, even when done with bad motives.
A philosopher and a psychoanalyst walk into a classroom, redux.
The thoughtful comments left in response to my last post have prompted me to reflect more on the question of controversial sentiments in the classroom. I’ve received a few emails inquiring whether I personally fall in with Freud or Sartre, I realize that my answer is “Neither – I’m with Kant.” That is, my primary focus is on the structure of arguments, not on their substance. I may find many views or ideas expressed in class material or by students to be personally offensive or alarming, but for the purposes of the classroom, ideas are only bad insofar as they are irrelevant, non-informative, or logically flawed. I take Freud and Sartre to stand for two important supplements to this approach. From Freud we can take the concept of symptomatic reading: the very articulation of irrelevant, non-informative, or poorly reasoned ideas are often responses to concepts perceived as threatening. If these ideas are allowed to emerge without censure, they can then be confronted and resolved, ideally resulting in greater self-awareness and knowledge. From Sartre we can take the lesson that there is no such thing as neutrality; to speak is to take a side, not only normatively, but also descriptively. The idea that anyone - professor or student - can completely avoid "injecting" his or her views into a discussion is a fiction, as Patrick notes. There is no genuinely objective position, and much mischief can flow from that delusion. What professors and students can do is strive to be conscious of their subjective investments, to calibrate their claims closely to their evidence, and to defend their propositions according to universalist principles.
This is a complex endeavor, to be sure, and context surely matters, as Orin's query implies. Let us imagine an example - a criminal law class covering the topic of rape. The professor begins with statistics on sexual assault from the National Crime Victimization Survey (NCVS). A student raises his hand and expresses the view that women often lie about rape, and so we cannot take the numbers seriously. Would engaging this view advance the goals of the class, or derail the discussion? I can imagine a series of questions to the student, some interrogating the claim's relevance and informational value, and some analyzing its reasoning, e.g., On what do you base this claim? Do you believe the methodology of the NCVS is fundamentally flawed? If so, do you also take issue with the NCVS statistics on, say, robbery? If the answers to these questions are vague, anecdotal, or inconsistent, e.g. "I just think it's really easy for women to lie," "This girl in my high school lied about being raped by someone," "No, I don't think people lie about robbery," then the Freudian question might be an important one: why are you invested in this claim, despite having little or no evidence to support it? This question could be the departure point for a larger discussion of the social and cultural perceptions of rape and the effects these perceptions have on the reporting and prosecution of sexual assault. To ignore or set aside the comment would, I think, foreclose an important pedagogical opportunity, even if to address it might be time-consuming and frustrating. Perhaps even more importantly, there would be nothing neutral about letting the comment go unchallenged. The claims we pass over in silence receive through that silence some form of legitimacy that they often do not deserve.
I've had a terrific time guest blogging here at Prawfs - thanks to Dan Markel and to all the Prawfs folks for the experience!
February is nigh and so it is time to extend thanks to our January visitors, most of whom deserve special thanks for filling in for us in a pinch. Some of them will linger as they get some last posts off their collective chest, but it is also time now for us to welcome our new and returning voices for the month of February.
Making their Prawfs debut are Jill Goldenziel (a Climenko at HLS) and Shima Baradaran from Brigham Young University. And returning back to the fold are a number of friendly and familiar faces: Bruce Boyden and Michael O'Hear, both from Marquette; Marc DeGirolami, from St. John's; Jeff Lipshaw from Suffolk; Brian Galle from Boston College (sniffle, sniffle); and Tung Yin from Lewis & Clark. Welcome all. We look forward to your visit!
Saturday, January 29, 2011
Jurisdictional defect in the PPACA litigation?
Yes, according to Kevin Walsh (Richmond), whose new essay argues that there is no statutory subject matter jurisdiction over the two state-initiated actions challenging the individual mandate--one brought by Virginia in the Eastern District of Virginia, the other by about twenty states (led by Florida) in the Northern District of Florida. Walsh makes three basic arguments: 1) Under Franchise Tax Board and Skelly Oil, there is no jurisdiction over a claim by a state for a declaration of the validity of its own laws as against possible preemption; 2) Under Skelly Oil, there could be no jurisdiction over a claim by a state (or any other party) for equitable relief against a provision of federal law that does not regulate its conduct, because the state never could have brought a coercive action; and 3) Parties cannot use the inseverability doctrine to invalidiate an entire statute unless they first show the unconstitutionality of a provision that applies to them. He then goes on to explain why the unavailability of federal judicial review here is a good thing--it keeps the federal courts out of a political mess between the federal government and the states, particularly where the state officials bringing the actions are, wholly or partially, politically motivated.
This is a great, quick-hitter, get-in-get-out paper. And I think his reading of the relevant cases is correct--and so (presumably perhaps, although you never know for sure) do a bunch of top-notch fed courts people listed in the author's footnote, including Jim Pfander, Richard Fallon, Jack Preis, Caleb Nelson, Joseph Blocher, and Abbe Gluck.
So the question is why no one--particularly not the U.S.--has raised this issue before. My guess is the explanation is political. The Administration does not want to win on jurisdictional grounds (and thus does not want to argue jurisdictional grounds) because that would be seen publicly and politically as a defeat. It needs to win on the merits--and it needs to win on the merits overwhelmingly. Walsh discusses the media coverage of the Virginia district court decision striking down the mandate as calling that one case a defeat for the President, even though two other district courts upheld it (including in the one case that, under Walsh's argument, actually belongs in federal court). The impact of the "defeat" overwhelmed the numerically greater "victories." A jurisdictional win would play (at least outside of the fed-courts-prof community, important as we are) as winning on a "technicality"--and thus really losing by being unwilling or unable to take on and defeat the arguments of Virginia AG Ken Cuccinelli.
There also is an interesting interplay at work among several constitutional and jurisdictional issues. First, Virginia lacks standing (as a jurisdictional or prudential matter, is not clear) to bring a parens patriae action asserting the rights of its citizens. Thus, the state had to create standing by enacting a piece of legislation declaring that citizens of Virginia are not required to purchase health insurance, then seeking a declaration that the state law is not preempted by PPACA because PPACA (or at least the individual mandate) is unconstitutional--this is what Walsh says is not subject to district court jurisdiction. And the third issue is the power of a state to enact purely declaratory, non-obligating legislation. As Walsh notes, all Franchise Tax Board really does is delay resolution of the preemption question--rather than seeking a declaratory judgment that state law is not preempted, the state must bring an enforcement action and deal with the preemption defense in that action. But that option is unavailable to Virginia here, because the law it enacted is not enforceable against anyone, since it imposes no obligations on anyone. But this suggests, perhaps, that state nullification, if it is to occur, must be done through more than symbolic declarations that federal law does not apply in its geographic borders.
To borrow a phrase, Download it while it's hot!
Thursday, January 27, 2011
A philosopher and a psychoanalyst walk into a classroom...
The other night, I attended a dinner party where most of the guests were fellow law professors. The conversation turned to the best way to handle offensive ideas in the classroom. What role should one's own views play in the response to homophobic, sexist, or racist sentiments, expressed either by students or in the class material itself? It quickly became clear that the guests had several differing views on the matter. The main divide seemed to be between those who felt a professor should never reveal her own personal views on contentious social or political issues, and those who thought it was not only acceptable to do so, but that not doing so would be dishonest and might even jeopardize the pedagogical project. Those who held the former view seemed to believe that a professor's personal views had no place in the classroom, as they would only serve to distract students from the substance of the material and unhelpfully focus them on the individual character of the professor instead. Those who held the latter view indicated that they believed law professors have unique opportunities - and obligations - to model ethical behavior.
The first view made me think of the way Freud described the approach of the detached analyst: "The doctor should be opaque to his patients and, like a mirror, should show them nothing but what is shown to him." The analyst should never judge what is presented to him by the analysand, nor allow his individual personality to influence the direction or assessment of the analysand's speech. Rather, the analyst should limit himself to evoking and reflecting the analysand's memories, desires, and dreams. To do otherwise would be to inhibit the free flow of the analysand's thoughts, and thus undermine the psychoanalytic project of self-confrontation.
By contrast, the second view put me in mind of Sartre's endorsement of the engaged author: "The 'engaged' writer knows that words are action [,] ... that to reveal is to change and that one can reveal only by planning to change. He has given up the impossible dream of giving an impartial picture of Society and the human condition. ... the writer has chosen to reveal the world and particularly to reveal man to other men so that the latter may assume full responsibility before the the object that has thus been laid bare." Sartre decried the conception of l'art pour l'art; for him, to write was to intervene in the conflicts of politics and society - to take sides, unapologetically.
So when it comes to controversial ideas, which should law professors be, the detached analyst or the engaged author? Obviously our students are neither our patients nor our readers, but they are our audience in a conversation demanding constant analysis and interpretation. Should we let hateful sentiments simply play out without personal comment, in the hope that the revelations themselves will bring about enlightenment? Or should we reveal our own personal commitments as a way of signifying and respecting the values at stake?
The Law of Baby Names
My new article on parental naming rights is now up on SSRN:
This Article provides the first comprehensive legal analysis of parents’ rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like “Adolf Hitler,” the name recently given to a New Jersey boy.
This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child Lucía or José, they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law.
Along the way, readers will encounter heavy metal bands with unusual umlauts, boys named Sue, the history of birth certificates, false implications of paternity, and dozens of truly awful, but very real, names given by parents to their children.
Law review editors: This article is currently on the adoption market and is seeking a loving home. It has all its papers and shots and promises to be friendly and well-behaved.
More on Parenting: It's the genes, uh, silly.
In the midst of all this talk of Tiger Moms and Lion Dads, this recent study mentioned in the Wall Street Journal may provide some additional food for thought. It suggests that for poorer parents, environment is the most important factor in determining a child's "mental ability," whereas genetics is by far the most important factor for children in wealthier families.
Not having sought out the original study myself, I have no idea what exactly they mean by "mental ability" or how rigorous the methodology was. Still, perhaps Amy Chua might want to take a look before she pats herself on the back again.
Wednesday, January 26, 2011
Statutory standing and merits confusion
One aspect of merits/jurisdiction confusion that I have not explored in detail (yet) is "statutory standing"--how Article III standing relates to whether a plaintiff has rights under a statute and whether he can sue to enforce those rights. Is this a question of standing (which, unfortunately, is treated as a preliminary question of Article III jurisdiction) or the substantive merits of a statutory claim?
In Thompson v. North American Stainless, the plaintiff filed a retaliation claim when he was fired by NAS after his fiancee, who also worked for NAS, had filed a sex discrimination charge with the EEOC. Yesterday, the Court unanimously held that Title VII was violated by such a firing and that the man was a "person claiming to be aggrieved" within the meaning of Title VII; the latter issue was the major focus of the opinion. The Court considered the link between the statutory requirement of a "person claiming to be aggrieved" and the injury-in-fact requirements of Article III. It concluded that the statutory language means more than minimal Article III standing (which was easily satisfied in this case). Instead, the Court imported the "zone of interests" test from the Administrative Procedures Act and judicial review of agency decisions into straight judicial statutory causes of action. Person aggrieved means that, in addition to suffering an injury-in-fact for Article III purposes, the plaintiff holds an interest "arguably [sought] to be protected" by Title VII. It concluded that he did, since the purpose of Title VII is to protect employees from deliberate unlawful acts.
For my purposes, the important point is that the Court handled this as a merits issue and not a justiciability issue. The district court had granted summary judgment in favor of the defendant and the en banc Sixth Circuit had affirmed on that basis. And the Supreme Court spoke entirely in merits terms. That seems exactly right. Since merits go to "who can sue whom for what conduct and what remedy" under controlling law, then that is precisely what Thompson was about--whether Thompson could sue NAS for firing him in these circumstances under Title VII. Thompson appears to set up an Article III benchmark for statutory causes of action, but now outside the administrative context--when Congress creates a statutory right to sue in a person, the new cause of action must be understood and measured against the limits of Article III justiciability. Nothing new there--that is the point of Lujan, among other cases. But that question can be resolved as one of substantive merits under the statute, not as a preliminary Article III issue. Since I am not going to be able to get rid of justiciability altogether, I think I can live with this solution.
Tuesday, January 25, 2011
Undergraduate Majors and Law School
A new book about inadequate undergraduate education has been receiving widespread attention. I particularly noted the following conclusion:
The study also found significant differences by field of study. Students majoring in the humanities, social sciences, hard sciences, and math—again, controlling for their background—did relatively well. Students majoring in business, education, and social work did not.
Prospective law students should keep these findings in mind. Undergraduate degrees in business, education, and social work do not have a strong track record in instilling the critical reading, writing, and thinking skills that law school requires. These fields are highly important, but, for whatever reason, they do not lend themselves well to rigorous undergraduate education.
Robert George on Obama on Roe v. Wade
I am always sorry that Robert George does not allow comments on his posts on Mirror of Justice, since I often find them worthy of commentary, but not necessarily worthy of a great deal of commentary. Still, I thought I'd link to something of his. Here, first, is President Obama's statement on the anniversary of Roe v. Wade:
Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women’s health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters. I am committed to protecting this constitutional right. I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption. And on this anniversary, I hope that we will recommit ourselves more broadly to ensuring that our daughters have the same rights, the same freedoms, and the same opportunities as our sons to fulfill their dreams.
And here is George's response:
It is hard to say what was worst about President Obama's statement on the 38th anniversary of Roe v. Wade. Was it his silence on the plight of the tiny victim whose limbs are torn off, or whose skin is burned off, or the base of whose skull is pierced and whose brain is suctioned out, with the precise objective of ending his or her life? Was it his reliance on tired (and increasingly futile) euphemisms such as "reproductive choice" to shuffle the victim out of view? Was it his glaring unwillingness even to say the word "abortion" -- a word not mentioned at all in his encomium to the Supreme Court decision that manufactured a constitutional right to it? Or was it--taking these things all together--President Obama's betrayal of his own call, at Notre Dame, for "open hearts, open minds, and fair-minded words" in the debate about abortion?
I actually agree with some of what George says. I expect little from any presidential statement, especially one of this length, but it is true that the President relies on tired euphemisms and does not mention abortion by name. He should have: if he cannot describe what he's defending, he has little business defending it.
But "frank" is not always synonymous with "graphic." Being graphic, like being euphemistic, can be a rhetorical device that conceals as much as it presents. So it is with George's post and his description of abortion. I am reminded of Richard Posner's statement in Planned Parenthood of Wisconsin v. Doyle: "Partial birth abortion is a gruesome procedure. But all abortion procedures, and indeed a vast number of surgical procedures unrelated to the reproductive process, including forms of cosmetic surgery that strike many people as frivolous, are bloody and horrible." I would hate to have been awake for the bloody carnage of my hip replacement surgery, in which my surgeons treated me (thank God) like a ragged piece of meat. And I could describe the ways I dismembered last night's chicken dinner in ways that would make George's language seem like an ode.
My point is not to weigh in on the morality of abortion or abortion rights. It is that George does not object to the nature of the violence done to the fetus, any more than he objects to the bloody assault on a human body that all surgery involves: he objects to any violence being done intentionally to a fetus. If abortions were performed as gently as the death scene in Soylent Green, he would still object. What is morally salient in his post, and all that is morally salient, is the language "with the precise objective of ending his or her life." That stately language is not upsetting to most people. Perhaps it should be. (Again, I'm not entering that thicket here.) But George, perhaps knowing it is not, resorts instead to "description" as invective: description that does not enlighten so much as it attempts to use emotion (specifically disgust) to persuade rather than reason.
I suppose he has every right to do so. Indeed, he is not so different from some animal-rights activists, who would use emotionally loaded descriptive language to argue that what I did to my chicken last night is as bad or worse than what doctors to do fetuses. But what counts is whether the act is morally salient, not whether it is gruesome. In that sense, his words are accurate, but I'm not sure they're "fair-minded."
Posner (Again) on the Bluebook (Again)
While I'm on the subject of light reading, Richard Posner has a new piece in the current issue of the Yale Law Journal. Once again, he takes the Bluebook to task. His points are valid enough, although I question the utility of his having spent more time discussing the Bluebook. As he observes, it has its decent points. As for the rest of it, my view as a writer has always been that those rules -- gramatical, citation-wise, and otherwise -- not worth taking seriously are worth ignoring altogether. Still, there are two nice bits in the piece. The first is his statement, at footnote 9, that even in law school, "when [the Bluebook] was a quarter of its present size[,] I was unable to master it." He reminisces about being "called on the carpet" in "savage" terms by the Law Review's managing editor, shortly before Posner was to stand for election to the presidency of the Law Review, for "having performed a deficient 'technical citecheck'" on a piece. (He adds later, in terms that are none too complimentary in context, that Justice Blackmun "is reputed to have been a positively awesome bluebooker.")
The other is the last sentence of the piece: "A grim capitalist logic thus drives the malignant growth of The Bluebook."
It's Jay Wexler's World; We're Just Living in It
Kudos to Jay Wexler of Boston University for his quote in today's New York Times story on a new study on humor by the justices in Supreme Court oral argument. Not for being quoted in the Times, but for the quote itself: "Asked about the [new] study, Professor Wexler said, 'I’m not sure what to think about it, but I’m pretty sure it makes me want to die.'” Many law professors have a gravitas problem: they have entirely too much of it. If they can be quoted saying something sage in the Times, and then report gravely (and, usually, smugly) to their friends that they have been quoted saying something sage in the Times, all the better. Jay, God bless him, recognizes that there is something more important than gravitas -- a good joke. (That is especially true, I think, for those of us who work in constitutional law, which is not a terribly serious field.) Granted that the story itself wasn't that serious, but Jay deserves credit for honoring a fundamental truth: given a choice between sounding serious and taking the opportunity for a good joke, the joke ought to win every time.
The Gosnell Grand Jury Report
As I'm sure we all know, several days ago, an investigating grand jury in Philadelphia made public its report regarding, among other things, the murder charges against Kermit Gosnell, M.D., for causing the death of women and -- as the Grand Jury put it -- "live, viable babies." (The report is here. HT: Mollie Wilson O'Reilly, at Commonweal). The case, no surprise, has prompted both spin and thoughtful commentary in various quarters, and many of these reflections and reactions are worth reading, and thinking and arguing about. And, I think, so is the Report itself.
Catholic Bishops and Health Care Repeal
As Howard Friedman notes over at Religion Clause, the national conference of Catholic Bishops has issued a press release summarizing the Church’s public policy goals for the new legislature. The release reasserts the Church’s commitment to both “the life and dignity of all” and to the support of “vulnerable and poor persons” during the economic crisis. Perhaps the most interesting legislative place where these goals intersect (or perhaps conflict?) is in the debate over health care reform. As the newly Republican House took up a repeal bill last week (which passed on last Thursday), the Bishops faced a seemingly difficult question: Though they actively opposed the health care bill (on abortion grounds) when it came up for a final Senate vote last Christmas, it is clear that the bill, as passed, goes a long way to help poor people. So which interest would win out when it came time to take a position on repeal?
Well, perhaps not surprisingly, the Church split the difference and pressed for amendment, but not repeal: “Rather than joining efforts to support or oppose the repeal of the recently enacted health care law,” wrote Cardinal Daniel DiNardo, “we will continue to devote our efforts to correcting serious moral problems in the current law, so health care reform can truly be life-affirming for all.” The enduring issue for Catholics is whether or not insurance providers that receive federal funding can cover abortion procedures. Apparently, the compromise brokered by Senator Ben Nelson of Nebraska—which (1) requires people who want abortion coverage from a private insurer to pay for it themselves separately, and (2) prohibits the use of any federal subsidy to pay for abortions—isn’t enough. The problem, as best I can discern it, is that separately purchased abortion coverage will still be part of a comprehensive insurance package, which does get federal subsidy. The Bishops want any abortion coverage to be part of separate rider, so that there is no unholy commingling of funds.
At the time, Senator Nelson trivialized this disagreement as being “about a staple”—ie, whether the abortion coverage was in the original policy or stapled to the back—but, in actuality, it is a quarrel that goes back to our earliest debates about disestablishment and religious freedom. Here I’m thinking of the various schemes to exempt Baptists and others from taxation to support established Congregationalist churches and schools, and also of Madison’s arguments about the tyranny of forcing an individual to support (through taxation) an alien faith. With that said, one wonders whether such formalist minutiae (principled though it may be) should stand in the way of the Church giving its full support to a bill that seems to further other very important missions. It is at least somewhat refreshing, though, to see the Bishops add a reasoned and principled voice to the repeal movement, rather than the reactionary “socialist operatives did it, repeal it before it destroys our way of life” that seems so prevalent. They are to be applauded, too, for identifying a specific problem with the law, and offering an alternative—the kind of authentic political discourse that also seems lacking at present. I can’t help but wonder, though, if this is really the appropriate place to fight the abortion battle; especially given the pressing need for health care among our most vulnerable communities.
Monday, January 24, 2011
The Most Inexplicable One-Year Delay in Appellate History?
With a tip of the hat to Dwight Sullivan at CAAFlog and to Bobby Chesney at Lawfare, let me be at least the third person to note today's decisions by several judges of the Court of Military Commission Review to recuse from deciding the pending appeals in Hamdan and al-Bahlul, both of which were argued to that court a year ago this Friday.
I don't have any quibble with the reasons given by Chief Judge O'Toole for recusing. If anything, his is an admirable view of the need for these proceedings to be as hallowed and conflict-free as possible. Rather, my exasperation, like Bobby's, is with why it has taken so long for things to progress to this point. There are currently no other cases pending before the CMCR. There is no question that the party that loses in the CMCR will appeal (as of right) to the D.C. Circuit. And, under 10 U.S.C. 950g(d), the D.C. Circuit "may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the [CMCR], and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict." In other words, the CMCR's decisions in these cases, whatever they are, won't have much of an effect on the D.C. Circuit, which would review legal issues de novo in any event. The only thing that matters is some decision from which the losing party can properly take an appeal.
As I wrote last year in an article surveying the merits of the jurisdictional issues, "It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders." Last week's news that the Administration is considering re-commencing the commissions adds only further urgency to the timely resolution of these questions. And yet, until and unless the CMCR decides these questions in Hamdan and al-Bahlul, and appeals are taken to the D.C. Circuit (and, perhaps, to the Supreme Court), those questions will remain unanswered.
Suffice it to say, the time has long since passed for the CMCR, however constituted, to do its job--and get out of the way.
Please don't think of the children, or, what we talk about when we talk about bullying
The media frenzy over Tyler Clementi's suicide. The proliferation of the "It Gets Better" videos, featuring everyone from Perez Hilton to the President. The storm of anti-bullying legislation, including the "Anti-Bullying Bill of Rights" (called "the nation's toughest law against bullying and harassment in schools") signed by Gov. Christie in New Jersey just a few weeks ago. Bullying has achieved prominent status in the nation's consciousness and discourse, and we should all have a problem with that.
With the term, that is. The term "bullying" has been applied in so many diverse contexts, to describe so many different kinds of behavior, and with such variations of inflection that it is now essentially meaningless. The term's popularity as shorthand for name-calling and playground mockery, as well as for various forms of abuse, harassment, or physical assault, means that it is always either too serious or not serious enough. Surely it is not the case that every comment made by a child to another child about hair color calls for a legislative response; nor does referring to sexual harassment or physical assault (of either a child or an adult) as "bullying" do anything but trivialize those experiences.
The term "bullying," with its connotation of children facing off in a schoolyard, is profoundly unhelpful. It is the kind of term that is all too revealing of how adults often relate to children, veering between sentimental over-protection and infantilizing dismissal. Of course children are more vulnerable than adults, and so we should be sensitive to the greater impact that harmful acts may have on them. But that very vulnerability in some ways makes children more resilient than adults. When an eight-year-old uses a racial slur against another eight-year old, chances are neither of them actually understands the import of what is said; the situation is arguably quite different when it occurs between two adults. Moreover, the harms we rightfully decry when they occur to children are more often than not still harms when they occur to adults. In fact, one reason to be justifiably more anxious about harassment today than twenty years ago is (as I have argued elsewhere) because of the way technology has exploded its temporal and social boundaries. One could, in the past, be thankful for the fact that the hateful slurs written on the bathroom wall would only ever be seen by a small group of people, and that those people and that wall would fade away after graduation. Not so any longer, when the Internet makes it possible to broadcast every crude comment and vicious invasion of privacy for the world to see forever.
In the face of truly awful acts committed against both children and adults, we need precision, not vague sentiment. What most anti-bullying advocates are (rightfully) really worried about are harms for which we already have names: harassment, intimidation, threats, assault, invasions of privacy. There is no particular need for recourse to the vocabulary of childhood, especially when that very vocabulary is so often deployed to minimize and dismiss harms against both children and adults.
"Christianity and Human Rights" now available for purchase
And now, a report from the shamelessness department: As I mentioned a few months ago, I have a chapter (as do some really good scholars) in the Witte-and-Alexander-edited collection, "Christianity and Human Rights: An Introduction" (Cambridge). I'm sure it would make an appropriately overpriced Valentine's Day present.
Constitutional protection for recording police encounters
In the final part to my article on the important new role of video in civil rights enforcement, I considered what I called the "front-end" question of whether government can prohibit or limit surreptitious recording (audio and/or video) of public encounters with public officials, particularly law enforcement. I argued that there should be a First Amendment liberty to record such encounters (which a handful of lower federal courts have recognized), grounded in either a vision of the Free Press Clause as protecting the gathering of information for dissemination or in the Petition Clause as protecting a right to gather potential evidence for litigation.
Of course, the constitutional issue does not arise in most states, because wiretap laws require that the person recorded have a legitimate expectation of privacy in the conversation, which typically excludes law-enforcement officials in the course of performing their duties. So people are rarely arrested or prosecuted for surreptitious recording of police encounters, whether their own or those that they witness.
But several states have broader wiretap/eavesdropping laws, which prohibit all unconsented-to recordings involving any person in any circumstance (unless the person doing the recording is from law enforcement). One of these state is Massachusetts, whose law was upheld in 2001 in Comm v. Hyde, a decision I take apart in the article (and which Eugene Vol0kh has critiqued). Illinois has a similarly broad statute that requires the consent of all parties to a conversation for an electronic recording. The Illinois statute is in the news with stories that the Cook County State's Attorney is prosecuting two people for recording non-violent encounters with police. One of the two is an artists who sought to get arrested so he could challenge a permit law; the other is a woman who presented the recording as evidence in support of a complaint she made to Internal Affairs about the recorded officer's misconduct during the encounter (the same basic thing got the accused in trouble with Hyde). (H/T: Mark Kleiman, who argues that the problem here really is one of prosecutorial discretion).
The problem with wiretap laws as in Illinois and Massachusetts (Oregon is the third state to with such a restrictive law) is that they allow government to eliminate the check on misconduct that comes from the public being able to watch/listen to Big Brother and use the recording to document and help prove misconduct. There is no privacy-based rationale for such a broad prohibition. A surreptitious recording does not burden or disrupt police in doing their jobs; in fact, police are generally strong advocates for enhanced recording of encounters, as through dash-mounted cameras. If recording of such encounters is a good thing, the source of the video should not make a difference. Ironically, The Times story on the Illinois prosecutions quotes the head of the Fraternal Order of Police as arguing that allowing surreptitious record "can affect how an officer does his job on the street.” Exactly.
The ACLU of Illinois last year started a program of audio-recording police officers performing public duties in public places where officers are speaking at a volume audible to the unassisted ear. They had planned to record several planned encounters--suspicionless container searches on Chicago's lakefront, a political protest outside a government buidling, and an annual antiwar rally this spring--but did not do so out of fear of prosecution. The ACLU then filed suit on its own behalf, arguing that the state law violates the First Amendment. The district court dismissed the case without prejudice for lack of standing. The ACLU then sought to reopen the final judgment and amend the complaint. The district court denied the motion. Although the amended complaint sufficiently alleged an injury caused by fear of an imminent threat of prosecution, the court held that any such injury is not cognizable under the First Amendment, because no binding authority recognizes a right to audio record. Apparently Judge Conlon has not read Part V of my article (which I may need to revisit in fuller, stand-alone form).
Sunday, January 23, 2011
NASA v. Nelson: OK, I'll Bite.
The blogosphere is not exactly abuzz in the wake of the Supreme Court's unanimous decision last week in NASA v. Nelson, holding that the questions posed to federal contractors concerning (inter alia) past treatment or counseling for drug abuse do not violate those contract employees' informational privacy rights.
Now, I am probably no more surprised by the result in this case than those resoundingly silent commentators out there. But still, not a single dissenter? Not a word in favor of the challengers' arguments? Though Justice Alito's opinion for the Court was thankfully narrow enough to avoid saying that there is no such thing as a constitutional right to informational privacy (instead, the Court assumed it without deciding), Justice Alito also apparently did not think enough of the plaintiffs' claims to spend much time rationalizing the decision that those claims were meritless. And Justice Scalia's concurrence, characterizing those claims as "[r]idiculous," was even less charitable.
On balance, I'd have to agree that, for the most part, the outcome makes perfect sense - especially with respect to the other challenged questions, such as whether an applicant has ever used illegal drugs, and certain open-ended questions for the applicant' references. Moreover, certain moves made by the Court - such as emphasizing that the Government is acting here in a "managerial" (quasi-private, if you will) capacity, and suggesting that the facial challenge posture of the case gives good reason for ignoring the plaintiffs' arguments about future harm that may arise from the government's policy - will come as no surprise to anyone who has been following the Roberts Court's methodology of late. But really, what possible interest could the government have in knowing not only whether a potential contractor has used illegal drugs, but whether he has sought counseling or treatment? I, like the Justices, am not exactly a member of the Facebook and Twitter generation, and this question has always struck me as rather invasive, if not, well, downright icky.
The Government's asserted rationale for the mandatory question is that they use it as a mitigating factor. Really? Even assuming the fact drug treatment or counseling has ever gotten someone a job who would have otherwise been rejected, I didn't think the Court was inclined to hold these days that a benign motive justified otherwise unconstitutional behavior. At most, this is the sort of rationale that could justify an optional, not mandatory, disclosure of drug treatment or counseling.
So, there. I've made the case. Would anyone like to present a more convincing argument than Justice Alito has made?
Saturday, January 22, 2011
Awesome Civil Recourse Conference at FSU
My apologies for the brief delay in getting notice of this exciting conference up to you all, but FSU is hosting yet another all-star conference this spring, this one organized by the FSU Law Review and my colleague, the inimitable Curtis Bridgeman. The information appears below and after the jump. I plan on being there and may have a small role in trying to keep Jason Solomon in line during his panel.
Come to the 'Hassee in February. It'll likely be warmer then than wherever you're reading this now, and more importantly, this will be a stellar set of conversations, all slated to appear in the FSU law review.
Symposium on Civil Recourse Theory
February 11-12 , 2011
at the Florida State University College of Law
Presented by the Florida State University Law Review.
Civil recourse theory is an account of private law (property, contract and especially
tort) according to which the primary purpose of private law is to empower victims to
confront publicly those who have wronged them and enlist the state’s help in addressing those wrongs. This event brings together some of the world’s top scholars in private law to discuss this emerging area of legal philosophy.
Friday, February 11
9-9:10 a.m. – Welcome
Dean Don Weidner, Florida State University College of Law
9:10-10:40 a.m. – Civil Recourse vs. Corrective Justice
Jules Coleman, Yale Law School
Arthur Ripstein, University of Toronto Faculty of Law
Ernest Weinrib, University of Toronto Faculty of Law
11 a.m.-12:30 p.m. – Political Theory of Recourse
John Goldberg, Harvard Law School
Heidi Hurd, University of Illinois College of Law
Jason Solomon, William & Mary Law School
12:30-1:50 p.m. – Lunch
1:50-3:10 p.m. – Contracts and Civil Recourse
Jody Kraus, University of Virginia School of Law
Andrew Gold, DePaul University College of Law
Curtis Bridgeman, Florida State University College of Law
3:30-5 p.m. – Relational Duties
Ben Zipursky, Fordham University School of Law
Stephen and Julian Darwall, Yale University Law School and New York University
Nate Oman, William & Mary Law School
7 p.m. – Dinner
Saturday, February 12
9-10:30 a.m. – Recourse, Revenge, Redress, Remedy
Emily Sherwin, Cornell University Law School
Tony Sebok, Cardozo School of Law
Gabe Mendlow, Yale University Law School
11 a.m.-12:30 p.m. – Recourse and Justice
John Gardner, Oxford University
Stephen Perry, University of Pennsylvania Law School
Scott Hershovitz, University of Michigan Law School
An informal lunch will be provided after the last panel.
Wednesday, January 19, 2011
Daniel Martinez HoSang's Racial Propositions
I am about to publish a book review of Daniel Martinez HoSang's Racial Propositions: Ballot Initiatives and the Making of Postwar California (UC Press 2010) in the journal CALIFORNIA LEGAL HISTORY, a publication of the California Supreme Court Historical Society. You can download the review here: Download CLH10-Leib. I will upload it to SSRN in due course. I struggled with tone here a little -- not my forte, alas -- but I think I was able to praise the book for its substantial accomplishments and furnish useful criticism and analysis still.
Once you are already at Amazon looking at HoSang's volume, you should, of course, get your copy of Friend v. Friend, my latest book from OUP, which came out earlier this month. It is, at least, much cheaper than Paul's book!
The Law of Facebook Polarization?
I wrote the other day about varying responses of my Facebook "friends" to the Tucson shootings. It gives me cause to reflect on something I notice every time I turn to my friend recommendations on Facebook. Outside of my immediate network of actual friends who happen to be on Facebook, my friend recommendations tend to be, or seem to be, radically split politically. On a given day, Facebook is telling me I ought to "friend" John Yoo and Lee Liberman Otis on the right, and someone equally prominent on the left, with many fewer people in between. (I apologize for using "left" and "right" as placeholders here, given my earlier discussion!)
I wonder whether others have experienced the same thing. I may just have a diverse group of contacts; perhaps there are others who get all-left recommendations, all-right recommendations, neither, or mostly affinity-based recommendations (say, all-fantasy-book-enthusiasts). Or it may be that the legal academy -- the source of many of my "friends" and friend recommendations -- has a lot of people with strong political views, which creates a network of outlying people with even stronger and more polarized political views. Perhaps others can suggest further reasons for this skewing effect, assuming it is real and not a figment of my selective perception.
On the whole, I find the phenomenon entertaining, if for no other reasons than that my recommendation page tends to involve some very odd bedfellows. And it is interesting to see which issues are salient to which of my friends, and how little the same issues or perceptions seem pertinent to all of my Facebook friends--except for status updates about Mad Men, of course. That show seems to be the only cultural vehicle that unites most of the chattering class despite internal ideological rifts. Maybe a bipartisan congressional caucus on 60s advertising agencies and their sexual practices is what this country really needs to bring us all together.
Francis Fukuyama-Wrong Again!
No matter how he changes his mind, I always end up disagreeing with Francis Fukuyama. His triumphalism about American-style democracy and capitalism in “The End of History” struck me as hopelessly crude (as well as self-serving); Fukuyama had put the ideas of the great left-wing Hegelian thinker Alexander Kojeve through a neocon sausage machine. At first glance, Fukuyama’s praise of China in yesterday’s Financial Times oped is more in the spirit of Kojeve. After all, Kojeve had sometimes defended Stalin: if you wanted to rush a feudal society and economy into the industrial age, you couldn’t behave like a perfect gentleman. Along similar lines, Fukuyama now suggests that American democracy is no system to imitate if you need to get big results in a hurry. China’s virtue, says Fukuyama, is that the political system can make “large, complex decisions” quickly and well.
Being in a hurry is an age-old reason why intellectuals sometimes have a soft spot for autocrats, as Leo Strauss pointed out (consider his debate with Kojeve about tyranny).
Fukuyama fudges the real issue by suggesting equivalence between democracy and the sensitivity of the Chinese leadership to some quarters of “public opinion”. Without endorsing a lie, can one speak of “public opinion” in a country where dissent is ruthlessly suppressed and no expense or effort is made to filter the Internet?
Machiavelli himself admitted that even tyrants need friends and supporters. But the political ideal of democracy is different. It’s not just about enough backing to shove the right answer down people’s throats; it’s about the sense of freedom and equality we feel when we debate and negotiate with each other over what needs to be done, the process of public justification.
Nowhere is Fukuyama more wrong than in his suggestion that the American system with its checks and balances is less equipped to deal with the long term than China. China’s leaders have the tools, in the short run, to suppress ethnic and class conflict (the latter’s existence acknowledged by Fukuyama). But in the long haul, the governing elite is trapped by their own commitment to one-party rule. They have no plausible mechanisms for mediating potentially explosive social and cultural differences. They can only hope to keep the lid on as long as possible. Fukuyama describes the American system as “polarized”. He has been reading too many Chinese Communist Party tracts if he really doesn’t see the seriousness of the fault lines in China. And they are exponentially more frightening than America’s divisions, since so far there is no ability to imagine alternatives other than repression or collapse.
Don’t get me wrong. I admire the success of the Chinese leadership in bringing millions of people out of dire poverty, creating a dynamic middle class. Some of the initiatives on green energy are impressive, too; this has to be weighed against the general refusal to cooperate on climate change as a global commons problem. I agree with Fukuyama about the correctness of the Chinese response to the financial crisis-and contrary to many American critics, I also think that the currency policy is broadly justified. But is Fukuyama right that shortcomings in the US response to the crisis can be blamed on the American system of democratic government? Until recently at least the Obama Administration may have been listening to the wrong economists. The framers seem to have given the Executive branch some pretty powerful tools of macroeconomic policy. Failure to use them aggressively can’t be explained by the difficulties of negotiating with Congress.
We need a reality check about China’s economic success. China’s investment in industrial espionage is a powerful testament to its dependence on the kind of innovation that is produced by free societies; much of China’s growth has derived from competitive wages but that’s not a sustainable basis for prosperity since there are other low and lower-wage economies that are open to investment and technology, and they are rapidly catching up (I’ve talked to managers of multinational firms who are already moving out of China to more attractive sites of production). I’m by no means a Sinophobe and I think that China’s leaders have made some good calls. But the challenges and dilemmas they face into the future make me all the more impressed with the accomplishments that freedom and democracy have brought to America and to other societies that have taken the wager of pluralism and ordered liberty.
Tuesday, January 18, 2011
Some not-so-random updates on the scholarship front; or, what I like to tell my deans I did on winter "vacation."
I'm excited to say I've just begun my first semester of teaching leave. While I am excited to tackle some new projects now, I am also clearing some other ones off the decks. (And yes, I hope the leave facilitates some more substantive blogging too.) In any event, for the benefit of my mom and a handful of other folks looking for something to read besides Amy Chua or Ethan Leib or Paul Horwitz's new books, I thought I'd let you know that there are new (and nearly final) versions of a couple pieces of mine up on SSRN and I just added a draft of a new piece.
The first new version is of my chapter, What Might Retributive Justice Be?, for the Retributivism volume edited by Mark D. White. (I am hopeful that this volume gets the same publicity Mark was able to generate for his edited volume on procrastination--a review in the New Yorker!). As I alluded to when I put the draft up first, it is a relatively short overview of contemporary retributive justice theory (more specifically, the conception of that punishment theory that I favor). Thus, for those of you prawfs teaching criminal law to first year students this semester, and punishment theory this week or next, please feel free to circulate the draft or the link to your students who are still puzzled by the accounts of retributive justice offered up in their casebooks.
The second piece I have revised, which is now up on SSRN, is entitled Overcoming Tradeoffs in the Taxation of Punitive Damages. This piece should be coming out in the next couple months and is a companion to a piece Gregg Polsky and I did last year entitled Taxing Punitive Damages. Btw, Larry Zelenak of Duke wrote a super interesting reply to that piece, which you can see here; I suspect Gregg and I will write up a short reply in the near future. Anyhow, whereas the piece with Polsky made its recommendations regarding the taxation of punitive damages largely in response to the practice of punitive damages law currently governing in most American jurisdictions, the new companion piece is designed to advance the discussion of the normatively desirable tax treatment of punitive damages once punitive damages are properly disaggregated to serve the separate functions of cost internalization, victim vindication, and retributive justice. In developing the normative policy recommendations, the new piece builds on the earlier work I've done regarding the reformation of punitive damages law.
Finally, and somewhat more exciting, Chad Flanders (SLU), David Gray (U. Maryland), and I have just uploaded a draft of a new piece of ours, coming out in April, which is entitled Beyond Experience: Getting Retributive Justice Right. It's an essay that continues and, for now, concludes our part in the conversation about the relevance of subjective experience, and in particular, hedonic adaptation, to retributive punishment. Although interest in subjective experience for purposes of punishment goes back at least as far as Bentham, this was a topic whose salience for retributive justice theory was most recently revivified in 2009 and 2010 by Adam Kolber; John Bronsteen, Chris Buccafusco, and Jonathan Masur (BBM); and, to some extent, my colleague Shawn Bayern. Chad and I wrote up an article (entitled Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice) trying to explain the wrong turns associated with such arguments. Separately, and roughly around the same time, David Gray wrote up his trenchant critique of Kolber and BBM (entitled Punishment as Suffering). BBM responded to our sallies in their recently published essay, Retribution and the Experience of Punishment. The piece I've just uploaded to SSRN, Beyond Experience: Getting Retributive Justice Right, is our attempt to deal with some of the new (and old) arguments and formulations advanced by BBM. Doubtless, you're tempted to wade into this stunningly important debate yourself :-), but if you've been overcome by other obligations, here's the punchline of our piece: we're still not persuaded that hedonic adaptation is of any substantial significance to punishment theory or policy guided by retributive principles worthy of adhering to.
Not Brothers and Sisters--Fine. But What, Then?
In Alabama--and elsewhere, too, it seems--there has been a fair of amount of reporting about a speech our new Governor, Robert Bentley (AKA "Dr. Robert Bentley"), gave yesterday at the famous Dexter Avenue King Memorial Baptist Church, where he said that anyone who has not accepted Jesus Christ as his or her savior is not Bentley's "brother" or "sister." (His communications director later added that Bentley is "the governor of all the people, Christians [and] non-Christians alike.") Of course, the news of his non-familiar relations with many Alabamians did not sit well with everyone, Christians and non-Christians alike. The incident reminds me of then-governor George Bush saying, in response to a question, that only those who have accepted Christ are saved, implying that other Americans will spend eternity in torment. That remark didn't go over well with everyone either, although I had no problem with it.
As a non-Christian and therefore non-gubernatorial-fraternal Alabamian, I might be expected to be a little upset myself. I'm not sure I am. It's not that I think my friends who are upset are over-reacting. It's that I expect the governor to govern as if all men and women are his brothers and sisters, not to believe in religious terms that they are. Governor Bentley was stating, however well or clumsily, a basic article of faith for many Christians, in a speech directed primarily at a religious audience (points to the Alabama news story above, as opposed to the TPM story, for putting it in religious terms by saying Bentley's words sounded like an "altar call"). The belief that he shares a unique relationship with his Christian brothers and sisters does not preclude the governor's acting well on everyone's behalf, and many Christians would argue that he is in fact obliged to do so. Nor does his having taken office, in my view, preclude him from continuing to bear religious witness. We should hesitate before assuming that the language of religious relationships implies anything about the governor's political relationship to the people.
That said, I think there is room for the governor to reflect, both prayerfully and politically, about his language. To say that Christians, as Christians (perhaps more precisely, saved Christians as Christians), are his brothers and sisters is not to say anything about the the sense of connection or relation the governor feels toward his fellow citizens, Christian or otherwise, as citizens--and as neighbors, friends, and so on. If he revisits the issue, perhaps he will find more powerful language to characterize that relationship--words like "community," "service," "stewardship," and so on. I don't begrudge Bentley his eloquence in describing his relationship with those who share his religious beliefs. But I do think there is room for him to devote the same amount of reflection to the nature of his political relationship with and obligations to all citizens.
The Demise of "Drive By Jurisdictional Rulings"
My latest foray into the jurisdiction/merits divide is now available at the Northwestern Law Review Colloquy.
Are there still two "tracks" of professorship?
I have a friend who has been on the market this fall. He's certainly well qualified and credentialed, and has had a number of callbacks, but he hasn't gotten the offer he's hoping for yet. He's now wondering if it would be a good or bad career move to seek out a VAP-type position as a writing/process professor for a year or two and then go through the meat market again.
He has gotten a lot of different advice. More traditional folks have told him that accepting a writing position is a bad move--that it will slot him in the "writing" track--and won't help (and may actually hurt) his chances of eventually getting the doctrinal position he wants. I, perhaps naively, suggested that I didn't think those two "tracks" existed to the extent that they may once have, and told him I thought a writing position would give him teaching experience, and, more importantly, time to keep writing the good doctrinal stuff he's already started to produce. In the end, I said, it will be your writing that makes or breaks you.
But I'm young(ish), or at least very junior, and maybe I'm too optimistic about things like this. So I thought I'd poll the broader prawfs world on the issue. If I were savvy enough I'd put one of those cool "polls" in here--but I have absolutely no idea how to do that. So, if you have thoughts, please post them the old-fashioned way.
Permanent Link to The Agnostic Age
I have already posted a link to my new book, The Agnostic Age: Law, Religion, and the Constitution. On the off chance that someone, somewhere, hasn't already ordered the book despite my overheated efforts at promotion, however, let me note that the team of tech wizards at Prawfsblawg has put a permanent link to the book's Amazon page under my name on the right side of our page. Remember, I'm watching you. Smith! 6079 Smith W! Yes, you -- stop slouching and purchase the book!
Paging Dr. Bowdler
Consider three conficts. 1) Narrative and dramatic themes and ideas do not change much over time, which is why so much old literature remains relevant today. 2) Lasting literature/threatre/movies/music/art all work by honestly capturing and portraying the moment, including accurate depictions of how people feel, think, and speak--however ugly it might be. 3) Words change over time, not only in meaning, but in what words cease to be acceptable in mainstream society. But what happens when #3 threatens to trump #1 and # 2? That is, what happens when society changes to the point that # 3 requires us simply to avoid a particular work, no matter how much it meets what we want from # 1 and # 2?
Two new controversies have sprung up recently surrounding objections to a single word and the future relevancy of the work containing that word.
Two weeks ago came an announcement that NewSouth Books would publish a joint edition of The Adventures of Tom Sawyer and The Adventures of Huckleberry Finn with the word "nigger" (which appears more than 200 times in Huck Finn) replaced with the word "slave." ("Injun" is also removed). The edition is created by Alan Gribben a Twain scholar and professor at Auburn University; he was moved to this project by encounters with many public school teachers in Alabama, who said they would love to teach both books, but simply could not do it in the modern classroom. The argument is that society has progressed to the point that we now have only two choices: Remove the word or remove the book (or at least remove it from the public-school classroom and save it for the college curriculum). Context no longer matters, nor does an honest portrayal of the ugly societal and racial attitudes of that time, even if (as with Twain) that was the point of the work. Plus does "slave" even make sense as a replacement word; in one passage, characters now speak about the "free [slave] from Ohio"?
Then last Wednesday, the Canadian Broadcast Standards Council ("CBSC") banned its member stations (more than 700 commercial broadcasters) from playing unedited versions of Dire Straits' 1985 hit Money for Nothing because the song uses the word "faggot" three times (see the great, if now technologically prehistoric, video after the jump).
The CBSC held that the word violates the Canadian Association of Broadcasters' Code of Ethics, which prohibits "abusive or unduly discriminatory material or comment" on various bases, including sexual orientation. Edited versions of the song are available and can be played, including one version that uses "mother" (which makes even less sense than slave, not to mention making a strong gesture at one of Carlin's Seven Words). Last Friday night, K97 Edmonton protested the decision by playing the unedited song nonstop for an hour. Again, in context of the song, the word makes sense. The "speaker" in the song is a working-class man expressing envy for the wealthy pop stars of "the MTV" with earings, make-up, and dyed/feathery who get paid lots of money for doing nothing, while "we've got to move these refrigerators." And the speaker expresses that envy in the language and vernacular you would be expect.
In other words, it honestly captures the mood. But, as with Huck Finn, the presence of the offensive word overwhelms its accuracy or the message the song is sending.
This is not to suggest, by the way, that Money for Nothing is the musical equivalent of Huck Finn. But, as Tom Scocca argues, the song contains one of the great guitar riffs of all time. And it captures (and satirizes) well the early days of MTV (back when people actually did play the guitar on the MTV, rather than talking about becoming pregnant at 16).
One commentator for the National Post argues that the Dire Straits case is true censorship, while the Huck Finn case is not. The difference? The latter involves a decision by a private publisher, while the former involves government telling private speakers what they can say. The CBSC is a non-governmental agency, created by the CAB, with authority only over member stations. But the Canadian Radio-television and Telecommunications Commission ("CRTC"), a governmental body, exercises licensing authority and is highly unlikely to license a commercial station that is not a CBSC member. Thus, the CBSC is exercising some form of joint or de facto government authority. And the CBSC decision ultimately may affect who receives a license from the government, thus giving broadcasters an overwhelming incentive to comply with CBSC orders.
I agree that the MFN case is problematic because of that government link. But I would not want to overstate those differences. The reason a U.S. publisher saw the need to publish a bowdlerized Huck Finn is that government-run schools refused to teach the book in its original form. No First Amendment problem there, since the school curriculum is a clear example of government speech. But there remains a free speech problem, in the sense of what sort of free-speech marketplace we want to have. Both cases thus are equally problematic at the level of governmental or other powerful interests pushing for the elimination of certain words.
More broadly, both cases present the conflict with which I began this post--when does sensitivity to particular words (which may be justified) overwhelm the broader message and the ability to accurately capture reality, particularly the reality of our past. And what do we do about it?
Monday, January 17, 2011
When I was a graduate student in comparative literature, I had the good fortune of having a popular, older professor in his last semester of teaching. The course was a seminar on Renaissance poetry. In the decade or so before my studies began there, the comp lit department had undergone intense internal strife over methods of interpretation, and particularly the pervasive influence of deconstructionism at that time.
This particular professor, himself no deconstructionist, took a moment at the end of his last class of his last semester of teaching, after a long and accomplished career, to urge us to do one thing as we went forward in our careers: read generously. We are taught from a very young age to read critically, of course, and he insisted that there is nothing wrong with this. But, he mourned, there is such a spirit of skepticism toward the text that now dominates our discourse. We are encouraged to take it to task, tear it apart, read it against the grain at every possible turn. There is a place for this, no doubt, he said, but don’t forget how to read with a spirit of generosity toward the text. Try to see what it is saying to you; accept it on its own terms, if only to strengthen your own critique. It is nearly impossible to learn anything from a text if you are not willing to read it in this spirit.
This has always stuck with me. Despite my considerable sympathy with the school of interpretation that this particular professor was critiquing, I have returned to these sentiments at many points in my career – a career which obviously strayed (at least somewhat) from a predominant occupation with the interpretation of literary texts – and I have always found that they hold up. I have tried to apply them to cases, scholarship – everything. I think it not only makes us better critics and scholars to read generously – I would even venture to say that we owe it, almost as an ethical responsibility, to our colleagues and our readers. Is it possible not only to read critically but also, at the same time, to read generously?
More on Boycotts and the Commerce Clause
At the Volokh Conspiracy, Ilya Somin, a tenacious opponent of the individual mandate, contends that boycotts are distinguishable from the individual mandate because boycotts are a form of economic activity, and thus subject to regulation under the Commerce Clause:
Similarly, consumer boycotts also involve a concerted effort to pressure some firm or government into changing its policies. That differentiates them from an individual consumer’s decision not to purchase a particular product. Participating in a strike or a boycott surely counts as “activity” in both ordinary language and legal terminology.
Count me unpersuaded by this distinction. Suppose someone forwards me an e-mail urging me not to buy the products of Widget Co. because the company engages in child labor overseas. I then decide not to buy that company’s product. Under Professor Somin’s view, both the e-mail and my decision not to buy the particular product are a form of economic activity.
If this is true, it is very hard to see why the individual mandate is any different. Aren’t people who refuse to buy health care simply boycotting health insurance companies? Why would it make any constitutional difference if they did so in concert with other people or what their particular reason is for doing so? Indeed, one would think that a boycott of a company for political reasons, given the First Amendment, would receive more, not less, constitutional protection. If Somin is correct that such boycotts can be prohibited (a surprising admission by a prominent libertarian constitutional theorist), then the individual mandate really is an easy case.
Rethinking Proportional Force
In a scene from the 2010 Egyptian film 678, a woman groped by a stranger on a crowded bus responds by stabbing the man in the groin with a switchblade. The film is an examination of sexual harassment in Egypt as experienced by three women of different social classes. While the film has won awards and accolades, it has also generated much controversy. The head of the complaints department of the "Association for Human Rights and Social Justice" has demanded that the film be banned because it encourages women to use violent force against men, especially against their "sensitive places."
The controversy has got me thinking about proportional force. A knife to the groin would strike many of my criminal law students as a disproportionate response to a grope. But is it? What would a proportional response be? What is the appropriate way for a woman to respond to unwanted sexual advances from a man, especially if he is bigger or stronger than she is? Or consider this real-life video of a diminutive shop owner in India who chases a groper (an armed soldier) out of her store and proceeds to hit him repeatedly with stones. Is this a disproportionate response? An exactly appropriate response?
When I discuss proportional force with my criminal law students, we usually focus on the obvious: if someone comes at you with his fists, it is generally not proportional to shoot him in the head; it is generally not proportional to respond to mere words with physical violence. The criminal law, with good reason, places great value on minimizing physical harm and deterring violence in general. The emphasis on proportionality makes sense, so long as one thinks of confrontations as personal, discrete encounters between similarly-situated individuals, and of force as a primarily physical concept. In such a conception, there is an equilibrium of sorts between the parties before one party chooses to use physical force, so any moves away from that equilibrium should be made proportionally.
But what about situations that are not characterized by equilibrium, but are already marked by disproportion? What about situations such as street harassment, which express and reinforce a culture of widespread inequality? Targets of street harassment are overwhelmingly female, and harassers are overwhelmingly male. A recent study of harassment in Egypt indicated that 98% of foreign-born women and 83% of Egyptian women have been exposed to sexual harassment. In India, the phenomenon of so-called "Eve-teasing" is so prevalent that women-only trains have been introduced in major cities so that women can travel to work free of catcalls and groping hands. In the US, street harassment is also alarmingly frequent, with studies showing prevalence rates of 80% or more. While the negative effects of harassment are widespread and serious, women often find themselves "putting up with it" because they don't know what else to do. Many women fear repercussions if they respond; many don't know what kind of response might be effective; and many simply do not have the energy to respond to frequent instances of harassment. Thus, what is already an imbalanced context is made even more so by the under-response of most women.
Women's tendency to under-respond is likely one reason that harassment is so prevalent. If harassers can get away with leering at and groping women on a regular basis with little or no response, there is no incentive for them not to do so. If a society wanted to reduce the prevalence of sexual harassment, then, one way to do so might be to encourage - or at least not penalize - the occasional over-response. In this light, a woman stabbing the man in the groin for groping her may still seem like an extreme response, but perhaps an efficiently extreme one. In confrontations already marked by a lack of proportion, perhaps the only appropriate response, from the perspective of social equality, is to be disproportionate.
Over at the liberal New Republic website, Jonathan Chait has a brief but enjoyable post (with a great graphic) observing that he is not a leftist, arguing that the left has minimal impact in current American politics and is therefore, for him, not worth discussing much, and noting that he gets criticized by the left when he disagrees with it and criticized when he ignores it. Nothing especially dramatic or non-obvious, but it provides a nice window for thinking about arguments over the state of political rhetoric in the past week.
Some liberals, without doubt, reacted instinctively to the Tucson shootings by pinning them, directly or indirectly, on the rhetoric of some (but not all) voices on the right. My Facebook friends' updates bore witness to this. But many didn't, and few who did as an initial matter seriously pressed the point. A larger percentage of people on "the left" may have done so. But Chait is correct: the left is a minor class in American politics. (Perhaps not in the blogosphere, but if you rely on the blogosphere to take soundings of American politics, you're already lost.) Many like to say that the academy itself is leftist, although given the apparent contempt with which those critics view academics and their repeated assertions that the academy doesn't represent America, I'm not sure how much we should care about this. It doesn't happen to be true of the legal academy, in any event, which skews liberal but definitely not left. (There are exceptions, of course; but with all due respect to SALT members and the like, not all of whom are genuine leftists, they have minimal numbers in the legal academy and even less influence.)
Yet my Facebook friends' updates (my "friends" tend to range fairly widely on an ideological axis) were also full of accusations that "the Left," usually capitalized, had taken advantage (or, immediately and anticipatorily, that "the Left" would take advantage) of the shootings for their own ends. What are we to make of this? One possibility is that they were wrong, but that's an overstatement; some leftists did accuse the right or far right of being responsible for the shootings. A better possibility is that they were correct but didn't really have "the Left" in mind; they had "liberals" or "Democrats" in mind, in which case they were basically wrong. Finally, perhaps they did have only "the Left" in mind. If so, however, they were speaking about a minor subset of the American social and political scene. That's fine, as long as they realize they were speaking about a trivial number of people (both in terms of numbers and influence). I have nothing against conservatives fulminating against "the Left," any more than I have anything against liberals fulminating against, say, the Birchers. Everyone is entitled to a relatively trivial hobby.
None of this is meant to make light of those conservatives and right-wingers--bloggers, politicians, and such--who have received death threats from their opponents at different times (as have some liberals and leftists at different times), and whose view of events was likely to be skewed by the unrepresentative sample they confronted. It is worth noting, however, that, on their logic as I understand it, we can draw no conclusions about "the Left" from those who make death threats: they're just lone nuts and say little about the influence of leftist rhetoric--which, in any event, is vanishingly small in American politics.
Home-field advantage and the umpire analogy
An article by Tobias Moskowitz and L. Jon Wertheim in the new Sports Illustrated (I cannot find it on-line for some reason) examines the cause of home-field advantage in sports. If the study is empirically sound (and I want to down with some empiricists to help me figure out if it is), the results are groundbreaking. Moskowitz and Wertheim argue that home-field advantage is mostly explained by official bias, influenced by a combination of the closeness of the game and the game situation; the home crowd (size, loudness, proximity, and intensity); and limited attention to, or accountabiltiy for, particular decisions. Read the whole thing if you can get it (or it eventually comes on-line).
Briefly, officials conform their calls to social pressure created by the home crowd. Officials use crowd noise to help them resolve uncertainty in making a call, resulting in more calls going the way the home crowd wants them to go. Studies done for or discussed in the the story showed a range of calls in a range of sports that systematically favor home teams--extra time, fouls, and yellow and red cards in soccer; called (non-swinging) balls and strikes in baseball; close plays on the bases in baseball; traveling in basketball; and penalties and fumbles in football. The psychological effect is more pronounced in well-attended games (according to the story, in 2007, the Italian government ordered teams with deficient security to play games without spectators; 21 games were played in empty stadiums and a study by two economists found dramatic decreases in home-team benefits in fouls, yellow cards, and red cards).The bias is revealed, in part, by the rise of technology, particularly in football. Visiting teams are more successful in overturning calls favoring the home team, especially where the home team is trailing. In other words officials make mistakes in the home teams' favor more often than they do in visiting teams' favor (although the difference is small). Replay thus has resulted in the narrowing or elimination of the home-team advantage, at least as to turnovers, because some of those erroneous calls are corrected (so maybe I need to rethink my opposition to replay in football). Technology also reveals that officials get it right most of the time (about 85 % on balls and strikes). But the mistakes they make are not random--they tend to favor the home teams. And, of course, most mistakes are not discoverable or reversible--thus the home-field advantage continues.
I am not sure what to do with the story, which I find fascinating. For starters, I wonder what this tells us about the much-despised umpire analogy. One of my objections has been that the analogy, as used, misrepresents what umpires do. This study supports that thought. Umpires clearly do not just call balls and strikes as a simple, clear, robotic exercise--umpires (and other officials) are human and they and their decisions are subject to outside pressures and influences, such as, essentially, public opinion.
Similarly, critics of the umpire analogy have focused on the outside influences that (everyone who is being honest recognizes) affect judicial decisionmaking--life experience, ideology, politics, empathy, public opinion and pressure--just as outside influences affect umpires. But is there a still more-precise comparison between judicial decisionmaking and officiating, given what this new study shows? Is there a litigation "home team" that systematically gets the benefit of judicial decisions? Perhaps the government (especially in criminal cases) or any other repeat player in litigation? Are judges affected by the (unconscious) need/desire to make the populace happy, just as umpires are similarly affected, and does that affect decisions?
What else can this study tell us about judicial decisionmaking?
Sunday, January 16, 2011
The Jean-Jacques of New Haven: Amy Chua’s Battle Hymn of the Tiger Mother
In the middle of the 18th century, a cranky Swiss intellectual published a manual for child-rearing that became the talk of Europe. As the childless bachelor Immanuel Kant figured out, Rousseau’s Emile was not really a parenting guide at all-it was a complex and subtle work of political and social theory. Rousseau wanted to reach a more popular audience and have a wider influence than earlier political thinkers; to present the teaching of the Social Contract in the form of a self-help book for nannies and moms was a stroke of genius.
If you bought Amy Chua’s Battle Hymn of the Tiger Mother to help solve your own parenting challenges with her Chinese mothering recipe, consider Rousseau’s apparent response to a reader who used Emile to raise his own kids: “so much the worse for you, and so much the worse for them.”
Amy Chua is not a child psychologist or social worker but a Yale Law professor and the author of one of the best books about globalization, World on Fire. A suitable antidote to Francis Fukuyama’s ‘End of History’ triumphalism, World on Fire documents how rapidly-introduced capitalism and commerce can exacerbate social, cultural and political tensions in developing and transitional countries. Chua’s analysis is driven by a fine appreciation of the interaction of politics, economics and culture; something rare among law professors and largely non-existent at the time among economists (exceptions: Dani Rodrik and Joe Stiglitz).
World on Fire is reminiscent of Jean-Jacques Rousseau’s early counter-current writings about the corruption, decadence, alienation and social divisiveness wrought by modern commerce and modern morals. Read carefully, Rousseau wasn’t really preaching a return to traditional, closed societies; but rather a correction and extension of modernity based upon the integration and synthesis of modern values and practices with older traditions re-interpreted in light of new pathologies. Along similar lines, in World on Fire, Chua doesn’t advocate the reversal of globalization, much less a return to command or corporatist economics in transitional countries, but instead sensitivity to social and cultural particulars. World on Fire gives some useful clues to understanding the deeper truth in Chua’s new book.
The obvious and well-worn message of the Battle Hymn of the Tiger Mother is “spare the rod, spoil the child.” The novelty is that the message isn’t coming from the obvious sources, not from a neo-con or a Tea Partier or the Christian Right, but from a sophisticated well-turned out Ivy League academic. And Chua plays the China Card. The educated classes in America are fascinated by the rise of China, and Asia in general. Strict child-rearing is not an Asian monopoly; but presenting it that way makes it a lot more palatable (or at least interesting) to today’s Sinophile elites. But the more subtle and significant theme of Battle Hymn of the Tiger Mother is one that is worthy of serious reflection: the clash of cultures makes America stronger rather than weaker. We shouldn’t be afraid of it or suppress it.
Chua's point is that through immigration America has been renewed and revitalized as the values of older cultures have confronted American freedom and openness. Immigrants and the children of immigrants should be proud not ashamed of the traditions in which they were raised, even if those traditions clash with the predominant atmosphere of permissiveness and choice in America-and even while they themselves take advantage of the opportunities that the new world has to offer.
At the same time, Chua offers a lesson that will most certainly be lost on those who are charmed by the book’s more sensationalist claims on behalf of “Chinese” discipline. Chua displays how a failure to compromise with and even embrace elements of Western permissiveness and choice can put the traditional family at risk, threatening that which one most wants to preserve. The story of her coming to terms with the resistance and rebellion of one of her two daughters is as important and perhaps more important than Chua’s pitch for strictness. In a (massive) concession to liberalism’s concern with individuality, Chua admits that traditional discipline just won’t work with some children, including members of her own family.
Many of the most touching-and funny- scenes in Battle Hymn of the Tiger Mother make it clear that the Chua home is far from a household modeled on simple despotism. There are endless debates about the value and justification of Chinese mothering; Chua, husband and children alike argue like law professors. The Chua version of Chinese mothering embraces freedom of speech.
Like the great Rousseau, Chua sometimes argues tendentiously. As with Rousseau’s praise for ‘noble savages” and virtuous Swiss villagers, Chua’s ode to the Chinese mother can descend into crude cultural stereotyping, junk social science or both (as with Rousseau, one needs to notice the subtle self-parody and self-doubt that accompany the posturing). Chua implies that all successful Chinese or Chinese-American children are the product of strict traditional parenting, which refuses to spoil the child. Growing up in Toronto, one of the great sites of the Chinese diaspora, the Chinese-Canadian kids I knew, especially in law school, were indeed very successful. Contrary to Chua’s formula, they were often spoiled beyond my wildest adolescent dreams. European sports cars, designer clothes, a frenetic social and dating life apparently weren’t at odds with academic and professional achievement.
Chua can be as complex and paradoxical as Rousseau. At the very center of her book is an admiring recollection of her mother-in-law, a fervent believer in the American way of independence, freedom and spontaneity. That was the way that her husband Jed was raised, the fellow Yale Law professor husband and secular Jew that she adores: namely, in almost total opposition to the “tiger mother” philosophy. But the paradox contains a vital truth. One of the very untraditional teachings of Battle Hymn of the Tiger Mother is the richness and possibility of cross-cultural families. In the home, disagreement and conflict-but also respect and mutual adjustment-between cultures and between generations provide the best education for a strong multicultural America.
Thursday, January 13, 2011
"This is writing ... that restores one’s faith in the legal academy; this is what legal scholarship can be."
The quote in the title of this post comes from this remarkable review by Robin West at Jotwell of an article by my OSU colleague Marc Spindelman. The article being reviewed is Marc's forthcoming piece in the Columbia Journal of Gender and Law entitled "Sexuality’s Law." Here are excerpts from the start and end pf Robin's review:
Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.
Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them? The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected. Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently. Why? Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex?...
Spindelman takes on hundreds of cultural sources and a library of legal scholarship in mounting his argument. The arguments are also, quite simply, brave: he has bucked the ascendant trend in legal cultural studies and queer theory both that has tilted drastically and, quite possibly catastrophically, toward the praise, valorization, and protection of empowered sex of all forms, together with a contemptuous denial of the injuries and harms that sex has carried for its victims, including girls, women, gay men, and boys, and plenty of straight men and boys as well. He does so, furthermore, with writing that is as impassioned and literary and beautiful as some of the texts he’s attacking, but in Spindelman’s writing, the argument, the passion, the turns of phrase, the thousands of footnotes, are put toward the ends of truth, of community of purpose, autonomy, and a celebration of individual dignity, all values, he argues, threatened by sexuality’s ideology. This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.
That's quite a review, especially for someone like me who has come to be (too?) cynical about what traditional legal scholarship has become and can now be. For that reason (and because I have long been a big fan of my colleague Marc's work), I highly recommend both Robin's review and the work she is reviewing .
Judicial Impeachment vs. Non-retention votes
To follow up on my post last week about the judicial retention elections in Iowa, I thought it was worth pointing out that Bob Vander Plaats (the self-appointed leader of the anti-justice movement) has now initiated a movement to impeach the remaining justices on the state supreme court. When it became apparent that the justices would not heed Vander Plaat’s call to resign, he decided to up the ante.
Jesse Choper and Herma Hill Kay have begun circulating a letter protesting this movement (which I will certainly sign), in which they appear to reluctantly concede that the non-retention vote was a legitimate response to the same-sex marriage decision—but insist that impeachment clearly is not. As I wrote earlier, I’m not so sure about the virtues of the retention vote in this context, either.
I’m wondering if people think there is a meaningful distinction between retention elections (in states that have them) and impeachment efforts. If, as Choper and Kay point out, Iowa law prohibits judges from deciding cases in a manner “swayed by public clamor or fear of criticism”, does it really matter whether that clamor or criticism comes in the form of a retention vote or an impeachment proceeding? Probably not. But does that mean that neither method is appropriate for removing a sitting justice based on a constitutional decision? Are retention votes different from impeachment?
Wednesday, January 12, 2011
On Counting to Five (Without Justice Kagan) in the Guantanamo Cases
Throughout Justice Kagan's confirmation process, a lot of virtual ink was spilled on the recusal issue, and the extent to which her prior service as Solicitor General would preclude her from participating in a not-insignificant percentage of the Court's docket. The consensus that seemed to emerge was that (1) these concerns were overblown; and (2) even if they weren't, recusal would be at most a short-term issue, and would not generally interfere with either the Court's workload or its ability to continue to play its assigned role within our legal system.
In at least one area, though, it seems that Justice Kagan's recusals may well be of massive, long-term significance: the continuing habeas litigation arising out of Guantanamo. At last count, there are currently eight different petitions for certiorari before the Court in Guantanamo cases, which between them raise a battery of issues going to (1) the power of the federal courts to effectuate the release of detainees who have prevailed in their habeas cases; (2) the power of the federal courts to provide notice and a hearing before a detainee is involuntarily transferred to their home country or somewhere else; and (3) the proper procedural, evidentiary, and substantive standards to govern disposition of the merits of these cases. And in light of yesterday's denial of rehearing en banc by the D.C. Circuit in Abdah v. Obama (over three dissents), it seems increasingly clear that there is no majority of active D.C. Circuit judges who wish to revisit what their court has already done in these areas.
The underlying question is whether, in its jurisprudence, the D.C. Circuit has actively subverted or otherwise undermined the Supreme Court's 2008 decision in Boumediene. My own view, as I've suggested before, is that it has, but I accept that I may be in the minority. What cannot be gainsaid, though, is that this is an important question, and one on which the Supreme Court's views might be rather helpful. So assume, for the sake of argument, that the D.C. Circuit has in fact misapplied or otherwise misread Boumediene. Then what?
Enter, Justice Kagan. So far as I understand, in each of the eight Guantanamo cases where any action by the Court has been necessary, such action has included a notation that she is recused. On the (potentially incorrect) assumption that she is recused from all matters Guantanamo, that creates a difficult math problem: Four of the current Justices clearly think that Boumediene was wrongly decided, given that they dissented in that case (and rather sharply, at that). As such, to whatever extent the D.C. Circuit is undermining Boumediene, they may well not object. There are at most four Justices on the other side, who both (1) think Boumediene was rightly decided; and (2) might conclude that a number of these D.C. Circuit decisions are misapplications thereof. And there would be no reason for those four to vote to grant certiorari if it were clear that there was no fifth vote on the merits.
What this means for practical purposes, is that until and unless one of the Boumediene dissenters is willing to even consider chastising the D.C. Circuit for refusing to follow a decision from which they themselves dissented, the D.C. Circuit will necessarily get to have the last word(s) in the Guantanamo habeas litigation. Perhaps Chief Justice Roberts will have his own Dickerson moment?
Inactivity and the Commerce Clause
Opponents of the individual mandate assert that under the Commerce Clause, the federal government can regulate only activity, not inactivity.
Yet the federal government regulates inactivity under the Commerce Clause all the time. Consider federal labor legislation that, under certain situations, prohibits employees from striking. The employees aren’t doing anything – they’re doing nothing, and it’s precisely this inactivity that Congress prohibits. The employees are compelled to engage in economic activity with another private party. True, this power rests on direct regulation of interstate commerce, and not the substantial effects test, but it does suggest that the activity/non-activity distinction is not fundamental to Commerce Clause jurisprudence writ large.
Moreover, consider the case of “economic boycotts,” when people refuse to do business with other parties. They are literally doing nothing, yet our widespread terminology explicitly describes this inactivity as “economic” and assumes that the boycott will have an economic effect. The Supreme Court itself recognized this when it rejected Massachusetts’ refusal to do business with companies that did business in Burma. Massachusetts was simply refusing to engage in certain economic transactions, yet the Court uananimously held that this inactivity conflicted with federal statutes enacted under the Foreign Commerce Clause. If states can be ordered to engage in economic transactions under the Commerce Clause, it is not much of a stretch to conclude that the same power applies to individuals.
Law School Hiring Thread, 2010-11, Thread Three
NB: This thread will be moved to the front every ten days or so.
This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding:
a) whether they have received a callback from a law school and/or accepted it and
b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc. Please note that a school listed as "offer accepted" may have made more than one offer, and may still have some of those slots open. The aggregator will try to keep track of these (to the extent people let the aggregator know) in the spreadsheet below.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market. Bear in mind: if you don't want your contact information displayed, please just enter in [email protected] or something like that as an email address.
We will continue our spreadsheet approach: All information should come in through the comments. Our aggregator will to use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded version below.
Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.
What's the ideological "lesson" of the Arizona Massacre?
After every deranged shooting, opinion elites engage in a game of Derive-Ideological-Lessons-From-A-Deranged-Shooting Game. The Arizona Massacre was no exception from the DILFADS ritual, and the usual gambits -- more gun control, less political polarization -- were played. If I were inclined to play DILFADs, I'd offer two other plays for the DILFADS playbook -- namely, that the "lesson" of the shooting is that (a) it should be easier to civilly commit apparently deranged people (catering to my Red State readers) or (b) we need more spending on social services for the mentally disturbed (taking care of those Blue State lurkers out there). As I happen to believe both of these propositions, the Arizona massacre would be a great opportunity for me to press my personal agenda.
But here's a third option: Why do we not just stop playing DILFADS? Is not DILFADS an obvious example of the Fallacy of Identity -- the assumption that a salient effect must have a big cause? (See David Hackett Fisher, Historians' Fallacies at 177-78 for a nice summary). Thus, in the Arizona case, lots of commentators assumed that a well-documented contemporary condition -- widespread political polarization -- was somehow related to the shooting. But it turns out that Jared Loughner's possible schizophrenia does not seem to have been "primed" by political rhetoric as opposed to, say, Drowning Pool's music. Had he lived in Alaska, he might have gunned down Sarah Palin: There is no evidence that he had ever been exposed to Tea Party (or any other) political rhetoric, let alone Palin's now-famous cross-hairs.
The problem with DILFADS and, more generally, the Fallacy of Identity, is not so much that they lead to embarrassing op-ed pop sociology. Rather, the problem is that the Fallacy of Identity corrupts our agenda-setting process by causing us obsessively to focus on statistically unimportant problems with excessively costly solutions. The more the reform is tailored to the particulars of the tragedy, the more likely it is that the reform will misfire, because the particulars of the salient tragedy were actually not major causes of the evil that we seek to avert.
After Columbine, for instance, we got horse doctors' doses of state laws mandating Zero Tolerance for weapons in schools, even though weapons in school are not, in fact, a major cause of school injury. This host of badly drafted laws wreaked havoc as kids were thrown out of school for bringing tweezers to school, and toy soldiers were banned from classrooms. After Megan Kanka's murder, we got waves of ever-tougher >sex registration laws, even though inability to identify the address of sex offenders is not, in fact, a major cause of children's sexual abuse. These laws now impose extraordinary costs to little apparent effect in reducing the evil to which they were addressed.
Perhaps the Arizona incident will energize the movement to ban high-capacity magazines like that used by Loughner. Such a prohibition would, on the whole be a decent legal reform -- but, compared to other goals to which the Left could devote its energy, not an urgently needed one: The body count from deranged gun-wielding shooters using high-capacity magazines is pretty low, compared to, say, fires caused by carelessly used space heaters. It is irrational that our policy-making apparatus should be distorted into addressing such a statistical anomaly at the expense of more important goals. We academics pride ourselves on being able to arise above irrationality. So I suggest we academics make a special effort to fight both DILFADS and Fallacy of Identity, by embracing the sadly nihilistic reality of mass shootings: They are random events unrelated to any Big Cause that, even if preventable, might not be worth the costs of preventing them.
Tuesday, January 11, 2011
After the grades are posted . . .
In courses with anonymous grading, there are usually a few surprises (for me, anyway) when the students' grades are posted. That there are such surprises makes me, I admit, a bit nervous: If student X does a lot better than I would have predicted (based on conversations, participation, past performance, etc.), I worry that maybe, in other ways I didn't even notice or other contexts I didn't recognize, I might have somehow shortchanged X. If student Y does less well than I would have expected, I worry that the student might be struggling through some tough times . . . or that I made a mistake. On a happier note: I very much enjoy writing notes to the students who earned "A" grades. Back to worrying: I also try -- though I can't pretend to enjoy it as much -- to reach out to students who did less well, and to see what benefits can be extracted from the disappointment. And, I try to remember that whatever turmoil, doubts, let-downs, and happiness I experience at exams-and-grades time is nothing like what the students are experiencing.
Degree of difficulty for seminar papers?
OK, so, call me behind the times, but even with a new semester of classes upon us, I am still reflecting on my recent bout of grading. Last semester, I taught a seminar in which students were expected to write substantial papers, which formed most of the basis for their final grades. As I graded, I found myself struggling with a problem I often think about - how to grade a student who takes a simple, straightforward, doctrinal topic (such a question over which there is a clear circuit split) and executes the paper very well, as compared to the student who takes on a difficult, multifaceted, unwieldy but much more interesting and creative topic, and stumbles (without actually falling).
It is not so hard to work a "degree of difficulty" into exam grading - we can weight certain complex issues more heavily than those that require relatively straightforward answers. We can give points based on the depth of analysis when deeper analysis is called for. But do you, or should you, figure in the complexity of the paper topic when grading a seminar?
The student who takes on the straightforward topic should not necessarily be penalized as a result. In many ways, this is the smart thing to do - it allows the student to show her strengths but stay in her comfort zone. She practices the sort of skills that she might use in practice. She can still write something useful, novel, and nonobvious, to crib from Eugene Volokh's advice to law students. But as an academic, I admire the student who is willing to take the chance on something a little bit "out there," and to reach beyond her bailiwick. Should she get points for doing so, even if she ends up with an ultimately less successful result?
Harvard Law Review Misspells the Name of Harvard Law Dean Griswold
Erwin Nathaniel Griswold was one of the giants of American law, rising to become Dean of the Harvard Law School and Solicitor General of the United States. Griswold Hall, at Harvard Law School, is named for him. He was a notorious stickler for detail. As David Remnick writes in The Bridge, "Every year until his death in 1994, Griswold ... sent frequent letters to the President [of the Harvard Law Review]-'Grizzer-grams,' they were called - lauding a good article, or, far more often, pointing out flaws of prose, reasoning, editing or timeliness."
Imagine Dean Griswold's reaction to the December 2010 issue of the Harvard Law Review, which refers to "Irwin Griswold, Dean of the Law School for twenty-one years." (p. 432) This error appears in, of all places, Justice David Souter's 2010 Harvard Commencement Address. Souter was a student at Harvard Law School during Griswold's deanship.
I am stunned that none of the very bright Harvard Law Review editors, who fly-speck every comma, noticed this glaring misspelling. (Was this error in Souter's original manuscript and never verified?) I point this out not just to make fun of a former rival (this would never have happened at the Yale Law Journal!), but also as a sober reflection on how little even the greatest legal academics are remembered after they are gone. Sic transit gloria mundi, indeed.
The error has been fixed on the e-version of the commencement speech on the HLR website. But "Irwin Griswold" is out there permanently in the hard copies, to the everlasting infamy of the Volume 124 editors.