PrawfsBlawg

Why McCain was right about health care reform: Tax subsidies for employer-provided health benefits & corporate feudalism

It is a familiar point that the keystone of America's corporate welfare state is the absurdity of employer-provided health care. The arrangement is absurd, because it ties health care to one's job, impeding the mobility of labor, forcing employers to delve into social controversies over (for instance) whether to provide same-sex health benefits, and leaving the unemployed, the under-employed, and those employed by small firms uninsured. We long ago got rid of most company towns on the theory that one's boss ought not to be one's landlord. Employers do not arrange meal plans for their workers. Employers do not buy our clothes for us or choose our kids' schools. Why, then, should they choose our insurance plan?

Like many absurdities that are difficult to eliminate, employer-provided health care is a product of pure accident: In 1943, the War Labor Board tried to assuage union demands for wage increases beyond the 15% hikes allowed by the Board's "Little Steel" formula by exempting fringe benefits of health insurance from wartime wage controls. The Board's theory at the time was that this concession would avoid wildcat strikes during wartime while keeping down inflation. But, along with the 1942 Revenue Act's provision exempting funds for employer-provided insurance from the excess profits tax, the WLB's decision created enormous incentives for employers to get into the health care business. No one at the time gave a thought to the idea that employers' controlling medical care might be a sort of corporate feudalism, tying workers' rights to social services to their jobs like a serf is tied to the lord's land. The corporate financing of health care had virtually no support from unions: Both the AFL and the CIO wanted health care to be funded by the feds. But the CIO's ability to win concessions on health benefits from big employers during the 1945-46 wave of strikes lulled unions into the complacent belief that they need not lobby hard for national health insurance because they could get the private version through collective bargaining.

With the flush '50s far behind us, this naivete now seems as quaint as flannel suits and fedoras. So when McCain campaigned on a platform of eliminating the tax exemption for employer-provided health benefits, I applauded the guy for courage and candor. And when Obama played the anti-tax card, denouncing taxation of health care benefits as "the largest middle-class tax increase in history," I cringed at his demagoguery. Of course, he had to back-pedal after he won, but the rhetoric haunts the debate: Unions are aggressively defending the tax exemption against the Senate's effort to kill the beast.

Is there any serious case for exempting employer-provided health benefits from taxation any more than any other in-kind benefit -- housing, food, clothing, transportation, etc? Or is this simply another instance of the immortality of every mistake that has lasted long enough to acquire a constituency?

Stupak Amendment and the Constitution

Marci Hamilton argues today that the Stupak Amendment is unconstitutional on three grounds: 1) It violates the Establishment Clause by imposing a minority religious worldview onto secular policy; 2) It violates Equal Protection, by imposing limits on one female-centered medical procedure, but not on male-centered ones, such as Viagra prescriptions or prostate surgery; and 3) It violates Substantive Due Process and Privacy, imposing an undue burden on reproductive choice that is unconnected to government funds (as with the Hyde Amendment).

I don't buy the Establishment argument, for many of the reasons implicit in Rick's "simmer down" post. But the other two strike me as potentially meritorious arguments.

Lots of birther action

A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen.

First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit. She filed a Notice of Appeal (which is ordinarily a one-page document) that contains the same provocative language ("pervasively extreme and outrageous (extrajudicial) prejudice and bias;" "political lynching") that got her in trouble in the district court. I really don't see her still having a law license when this is all over.

Second, and more significantly, Judge Carter in the Central District of California dismissed (Download 21808122-Judge-Carter-Ruling-on-MTD), largely on justiciability grounds, the most comprehensive birther lawsuit. There were 44 plaintiffs in various positions--state legislators, active military, inactive military, 2008 presidential candidates, and (my favorite) a man who claims to be related to Obama and to need to know where Obama was born to better understand the family medical history.

Some thoughts after the break.

The court's analysis is pretty straight-forward, interrupted by some efforts to take shots at the plaintiffs and at Taitz, who represented all but two of the plaintiffs. The court wove political-question doctrine concerns into the redressability prong of standing, which was analytically interesting (i.e., the plaintiffs lack standing because their claims are not judicially redressable because they raise political questions). I was surprised and a bit disappointed that the court did not make more of the House, having accepted the Electoral College votes for Obama pursuant to its constitutional authority under the Twelfth Amendment, having made the textually committed determination as to Obama's eligibility. The court talked about this, but ultimately focused on the Senate having exclusive control over presidential removal.

Interestingly, the court criticized plaintiffs' counsel for waiting until January 20 (after the Inauguration) to file the lawsuit, when the only remedy would be a politically impossible injunction removing Obama from office and ordering a new election. But this creates an interesting wrinkle, at least for the small-party candidates. The court held that they did have a unique injury-in-fact, but lost on the redressability prong. But if the redressability problem is absent in a pre-election action simply to order the California Secretary of State to remove Obama from the ballot, will the court have to find them to have standing? Stay tuned to summer 2012.

Finally, the court (not sure if this is surprising or not) did not raise the issue of sanctions. But it leveled several criticisms at Taitz--including a suggestion that she urged political supporters to call and e-mail the court to tell him to decide the case a certain way and a suggestion (based on affidavits) that Taitz suborned perjury. So could some Rule 11 activity be far behind? Maybe we should start a pool on when Taitz loses that law license.

An Open Memo to President Obama: Get a Flu Shot

To: POTUS
From: Taxpayers
Re: Your Decision Not to Get Vaccinated for H1N1

We understand that your daughters have just received H1N1 immunizations, but that you have decided not to get one yourself. As many children and pregnant women are still waiting for shots, you have chosen not to use the power of your office to ensure that you receive special treatment.

Brilliant.

What else are you going to do to avoid special treatment? Live in a two-bedroom apartment and protect yourself with a can of pepper spray? 

As the president of the United States of America, your time is at a premium. We, the taxpayers, realize that. If we were going to get jealous of you getting a flu shot, we probably would have gotten upset about the fact that you have your own personal 747. And then there’s the helicopter that lifts off from your lawn. 

Look, we elected you. We want you at your best. The last thing you need while you are trying to navigate Afghanistan and Iraq is a virus that will give you, according to the federal government, "fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills, fatigue, and possibly vomiting or diarrhea." 

And then there's health-care reform. That’s pretty complicated. You’ll need to be able to focus. Is it a good idea to reform health care while you’re rolling around in a comforter on the bathroom floor moaning in agony? You’ll end up sacrificing everything to get America full coverage for lotion-infused facial tissue. 

Now, we understand your concerns. Millions of voters can’t get access to the vaccine, and you’re a politician who’s going to be up for re-election before you know it. You want votes. Okay, that’s fine. Kiss babies for votes. Trade favors for votes. Grovel for votes. But don’t have vomiting or diarrhea for votes. That’s just gross.

Get vaccinated, stay healthy, and get a good night’s sleep.

That way you’ll be ready, tomorrow morning, when we ask you what you’re doing to get more vaccine made.

Masterpieces of the Universe

In my Art Law class, we cover a variety of issues related to fine art, including ownership and public access. Museums are the largest holders of collections that are accessible to the public, and they are publicly funded. Many also consider some of our largest banks to now fall into that category. Since many bailed-out banks own precious works of art, does the public have the right to see them? The New York Times outlines the issue in great detail. If they don’t display the works, should the public have a say in how they are stored? Are we partial owners of fine art? What should happen to bank-owned art?

MCA 2009: (Accidentally) Opening the Collateral Review Floodgates?

Any moment now, the National Defense Authorization Act for Fiscal Year 2010 is going to become law, and with it, Title X, Subtitle D thereof, better known as the Military Commissions Act of 2009. (I'll try to post authoritative text once I see it). [Update: I'm reliably informed that this is the language that passed the Senate Thursday night.]

There is a lot to say about the new Military Commissions Act, and both how it differs from and how it is distressingly comparable to the Military Commissions Act of 2006.  In particular, I am disappointed that the 2009 MCA doesn't make much more than a token effort to harmonize either the personal or subject-matter jurisdiction authorized by Congress in 2006 with that which is recognized under international humanitarian law, even though my own view is that Congress lacks the constitutional authority to subject to military jurisdiction (1) individuals who are not belligerents under IHL; for (2) offenses that are not violations of the laws of war.

To be sure, folks may disagree with me on these points, but I think it's at least an open question whether Congress may confer jurisdiction over military commissions that is at least arguably inconsistent with IHL.

And yet, as I've written about previously, one of the most distressing features of the 2006 MCA is the extent to which it precludes "collateral" challenges to the jurisdiction of military commissions, through the provision that was codified at 10 U.S.C. § 950j(b):

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

There is fairly compelling pre-MCA precedent that individuals may use habeas corpus collaterally to attack the jurisdiction of a military tribunal before trial (precedent that arguably calls the constitutionality of this provision into question). Nonetheless, two different district court judges threw out such challenges to post-MCA commissions (in Hamdan and Khadr, respectively), holding that any such claims had to be brought on post-conviction appeal.

Well, here's the punchline: The MCA 2009 rewrites 10 U.S.C. § 950, and leaves what was 10 U.S.C. § 950j(b) out altogether. Not only that, but the MCA 2009 reincorporates what had been 10 U.S.C. § 950j(a) word-for-word as new 10 U.S.C. 950i, suggesting that Congress did not simply forget this provision altogether.

Why does this matter? Because as a result, there is no longer a statutory bar to a Guantanamo detainee mounting a pre-trial challenge to the jurisdiction of a military commission. As a result, any defendant with such a claim may now go directly to the D.C. district court (or, as in bin al Shibh, pursue mandamus relief in the D.C. Circuit), rather than waiting for proceedings in the military commission to run their (slow and unpredictable) course.

I, for one, am glad that the serious jurisdictional questions raised by the MCA might finally receive a full airing, whatever their ultimate answer turns out to be.  That being said, it's hard to believe Congress actually intended this.. Floodgates, consider yourselves opened.

The Social Costs of Juries

Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box.  Some excerpts and reactions after the jump.

As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year.  Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee.  "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now."

... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.

I confess I am always a bit surprised that more states haven't retreated from the provision of the jury trial. What do you think explains the persistence of the jury institution outside the constitutional realms when it appears that so few people enjoy the prospect of service on it, and so few voters, ex ante, suspect they'll be desirous of a jury of their peers someday? Indeed, why wouldn't there be more constitutional fomentation to reduce jury service incidence? Though I have expressed normative concerns with juries in other contexts, this post is purely motivated by a desire for an explanatory theory. Is there, for example, a public choice account that explains the persistence of juries?

When Ricci Met Iqbal

Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit. The Court went on to say that, in that case, the City of New Haven did not have a strong basis in evidence to believe it would lose that lawsuit. Last week, an African-American firefighter who took the lieutenant's exam and was not promoted filed suit, alleging that the use of the exam violated Title VII.

So how does Ricci affect this lawsuit? As my colleague Kerri Stone pointed out, the Court's insistence of the lack of merit of this (at the time hypothetical) lawsuit was essential to SCOTUS's conclusion that the Ricci plaintiffs' rights had been violated. Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case. It could be persuasive authority on the legal issue and the court must analyze the suit in light of Ricci. I would be troubled if it were binding authority on this point, since the lawsuit was entirely hypothetical and abstract at the time.

Here is where I think Iqbal and the new two-step pleading might come in. There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason. So does the underlying conclusion in Ricci suggest this disparate-impact claim is implausible and thus insufficient under FRCP 8(a)(2)?

Missing in Action: Innovation

America used technological innovation to attain victory in World War II and the Cold War.  Why haven't we done the same with the wars in Iraq and Afghanistan?

Jet engines, nuclear weapons, satellites and stealth planes all were born of an innovative frenzy unleashed in our drive to beat the Axis and the Soviet Union. You might think a similar technological surge might have occurred following the attacks of September 11, 2001. 

It didn't happen.

Since 9/11, we have seen the debut of the iPod; we have sent unmanned rovers to explore Mars, and we have perfected vitamin-sized capsules with tiny cameras and lights that we can swallow to investigate our intestines. Toyota has even started selling cars that parallel park themselves. 

The SWORDS robot made by Foster-Miller for the U.S. Army.

Yet we have invented almost nothing to fight Islamist extremists. I find that utterly mystifying.

For the duration of the Iraq War, the U.S. Army has been tinkering with small robots capable of heading into combat with a machine gun or a sniper rifle while remotely operated from a mile away. That sounds like something that should be a game changer. But sadly, the only significant use of these machines has been for IED disposal. The combat-ready versions have languished in a seemingly endless process of evaluation. 

A deployment of three of the combat-ready SWORD robots in 2008 ended with the Army withdrawing funding. The contractor is now trying to win back the Army with an enhanced version that can carry more payload and can do double duty with a manipulator arm for bomb disposal.

By now, we should have been sending whole armies of remote-controlled machines into insurgent-filled neighborhoods. What's our excuse? It cannot be that the technology is not feasible. That is just question begging. In a country rife with genius and research money, why haven't we made it feasible?

The paltry wartime innovation that has actually occurred since 2001 speaks more to opportunities lost than accomplishments achieved.

For instance, the most prominent technological advance employed in the wars in Afghanistan and Iraq is, without a doubt, the Predator drone aircraft. Indeed, the Predator would be a laudable example of wartime cleverness but for one thing: It started flying in 1995. 

Can you imagine what we could have made by now if we had kicked it into high gear after 9/11?

Perhaps the best example of a real wartime innovation in recent years is the MRAP – the Mine Resistant Ambush Protected utility vehicle. But ultimately, the MRAP is better example of sloth than success. Built with a v-shaped hull to deflect the blast of buried explosives, the MRAP showed a clear capacity to save soldiers' lives. Yet after years of ignoring pleas from commanders in the field, the Pentagon only made large-scale manufacture of the MRAP a priority in 2007. In 2008, in part thanks to the MRAPs, casualties from roadside bombs have dropped 88 percent. 

During World War II, the U.S. rushed newly designed bombers into the sky and manufactured them at the rate of a squadron a day. If we had put forth even a fraction of that effort with projects like the MRAP, we could have saved hundreds if not thousands of lives in Iraq. What is more, the increased effectiveness of our troops over those years in Iraq would have meant greater security for Iraqi civilians and consequently far less bloodshed among noncombatant Iraqi citizens. 

Despite the opportunities lost, it is not too late for military innovation to win, end, and prevent wars in the Middle East. The war in Iraq, though it has receded from recent headlines, is far from over. The situation for NATO troops in Afghanistan is, of course, growing worse. And Mahmoud Ahmadinejad is pushing Iran to be able to threaten Israel and other countries with nuclear weapons. 

Whatever leadership failure or bureaucratic tangle is responsible for our current torpor, we should not tolerate it. To win wars and keep the peace, we must come back to doing what America has long done best: Invent. 

A Nobel Prize that Federalism Lovers Can Applaud

Lost in the media flurry over Obama's Nobel Prize is another Nobel award that is more unprecedented and (to federalism fans) more exciting: Elinor Ostrom's winning the Nobel for Economics. The award is unprecedented, not just because Professor Ostrom is the first woman to win the prize but also because she is not an economist but a political scientist. (She is not even an especially mathematical political scientist in, say, the Positive Political Theory mold: She is actually more of an institutional political scientist whose methods -- the detailed case study of a specific government or community -- harken back to those old German-influenced institutional economists of the late 19th century like Richard Ely and John Commons).

But why should we lovers of federalism feel excited by this award? Because Ostrom and her students have been a rare source of intellectual and empirical support in a cold, cold world. Supporting federalism in a law school is generally a lonely business, as I can attest: The average law prawf is instinctively a centralizer, both because prawfs as a general matter have an intellectuals' pernicious distrust of lay judgment and, more specifically, because law prawfs' knowledge of decentralization generally is limited to a handful of dysfunctional cases like Jim Crow in the South. The law prawfs' Bible on decentralization -- indeed, often the only political science that they have ever read on the topic -- is Madison's Federalist #10. Sure, there are plenty of pseudo-federalism fans among law prawfs. But many of these are simply libertarians in federalism camouflage -- folks like Ilya Somin, Richard Epstein, and other heirs of the Buchanan-Weingast theory that federalism constrains Leviathan through residential powers of exit. They like subnational government more than national government the way a boxer prefers a featherweight to Mike Tyson -- because the former is easier to knock down.

So the Nobel for Professor Ostrom, a leading proponent of political decentralization including federalism, comes as a welcome relief to us lovers of federalism. Ostrom and her students (Roger Parks, Ronald Oakerson, David Bromley, among others) have produced a myriad of studies of common-pool resources ranging from policing in metropolitan areas to ground water in California to show that such resources can best be managed through forms of limited-access government intermediate between pure privatization and Leviathan. The Ostromites provided a counter-narrative suggesting that subnational institutions help protect private individuals not only from Leviathan but also from free riding, apathy, and other common-pool tragedies. The Ostromites also contradicted the old Federalist #10 bromide that minorities always do worse in smaller jurisdictions by providing solid empirical evidence that minorities actually benefit enormously from decentralized political power. (One of Ostrom's classic studies, co-authored with Gordon Whittaker, shows that Black residents in the St. Louis Metro area trust cops in small villages more than in large cities, even when the latter is governed by Black politicians).

So true friends of federalism should raise their glass and toast the wisdom of those Norwegians. Maybe Obama did not need the Nobel boost, but we few, we happy few, we band of federalism brothers and sisters, sure did.

Columbus Day Quiz

Columbus Day means many things – federal holiday, no postal mail, closed banks, etc. – but, in many law schools, it’s business as usual. According to one site, “Colorado was the first state to observe Columbus Day in 1905. Over 30 more years elapsed before President Roosevelt deemed that ‘Columbus Day’ would be a federal holiday held on the twelfth of October. It was during President Nixon’s presidency in 1971 that the celebration was changed to be observed on the second Monday in October.” Admittedly, I know the basics about Christopher Columbus and his travels, but even the “easy” version of this quiz had me stumped. I would be very impressed if someone on Prawfs took this quiz and aced it.

Jumping the Shark with Obama's Nobel Prize?

It seems that Obama's supporters are determined to humiliate themselves and him with their dog-like devotion. The decision to award Obama with what seems to be an unearned unearned Nobel Peace Prize seems to confirm either that (a) the Nobel Peace Prize has been an empty political gesture ever since it was given to Arafat or (b) Obama's supporters are really just as gaga over his sheer charisma as their conservative critics have been saying.

I write this as an avid supporter of Obama's (and Clinton's) foreign policy. But it is normally the custom to award prizes for accomplishments, not good intentions, right?

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.

Oligarchy in a one-party town

Yesterday, New York City held the only election that really matters for the only two city-wide offices that were genuinely up for grabs -- the comptroller and the public advocate. (I am assuming that Bloomberg will face little danger from his under-funded and mostly unknown Democratic opponent in the general election). As a practical matter, virtually no one showed up to vote, because the election was a Democratic primary runoff for offices that few city residents understand and for candidates that, because they were all Democrats, could not be distinguished on the basis of party labels. (Of course, one could rely on campaign literature to learn about the candidates. Guess what? All of them said that they were going to stand up against special interests). 227,000 people voted in the run-off, meaning that the second-most important officers of a jurisdiction that governs over seven million people were chosen by, say, 2% of the population.

It is not that these officials do not matter. The Comptroller, for instance, has a significant role to play in managing the city's pension funds and reviewing city contracts. In an era when the city's collective bargaining agreements may come close to bankrupting the city, one would hope that the voters knew something about the candidates' stand on, say, "20 years and out" retirement packages. This is not to say that they should share my conservative skepticism about the sustainability of such deals: They simply ought to be aware of what is actually at stake in the vote. But the low turnout and desultory sources of information suggest that the tiny number of voters mostly voted blind, with the election turning on the informed self-interest of public employees. If one were especially well-informed, then one might know that John Liu, one of the two candidates for Comptroller, received the endorsements of the Working Families Party and the Central Labor Council, the latter by a vote of 22-0, meaning that Liu was the choice of the public employee unions. One could safely infer that his opponent, David Yassky, had as much chance of beating him as the Orioles had of winning a three-game series against the Yankees.

Predictably, Yassky lost. Whatever one thinks of this outcome (I supported Yassky), the process is preposterous. A tiny handful of voters vote blindly for two proper nouns that signify virtually nothing, and a much tinier handful of self-interested voters actually determine the outcome. But this is the process dictated by elections in a one-party town where the absence of competitive parties insures that voters will know nothing about the issues actually at stake in an election. David Schleicher has a good paper explaining how to reform this mess with rules encouraging competitive local political parties. But what are the odds that the power brokers in New York City would ever accept such reforms?

GOP lawsuit to stop Senate appointment

The Massachusetts GOP has filed suit in state court, seeking an injunction against Gov. Deval Patrick's appointment of a replacement for the late Sen. Ted Kennedy, arguing that Patrick lacked the authority to declare the emergency that constitutionally allows him to make the appointment now, rather than having to wait 90 days. A hearing is set for 8 a.m. tomorrow; Patrick's appointee, Paul Kirk, is scheduled to be sworn in tomorrow afternoon.

This is a suit that pretty clearly would fail in federal court on both Article III standing (the state party is not injured by this appointment, other than having lost in the political arena, and certainly not differently injured than anyone else in Massachusetts) and political question doctrine (this seems like a decision vested in the governor's discretion, with which a court will not interfere).

But is anyone out there familiar with the law of Massachusetts and whether its standing rules are so much broader than Article III as to permit the party to bring this lawsuit?

Update, Friday evening:

The court denied the injunction and Kirk was sworn in this afternoon. No mention of standing; the four-page opinion focuses mainly on a state law question of when the governor can declare an emergency.

Obama's Chinese Tire Decision and the Importance of Not Being Earnest About Campaign Promises

I read with a sinking heart Gregory Bowman's post about the Obama Administration's September 11th decision to impose section 421 "safeguard" tariffs on Chinese tire imports. Gregory Bowman thought that the decision indicated that the Obama Administration has an interest in "regulation that achieves outcomes that are perceived of as 'fair' from some normative perspective other than efficiency."

This characterization of the decision is, I think, naive. In my own view, the tire decision is merely a concession to raw political realities rather than fairness: The United Steel Workers wanted some sort of restriction on trade, Obama had promised such restrictions during the Presidential campaign, and so he felt he had to deliver on these campaign promises. This leads to my vexed question: Was I too cynical in thinking that Obama was insincere when he indulged in nationalistic demagoguery on trade during the Presidential race? The terrible truth might be that Obama actually meant what he said: He now might really intend to wreck the international trading system during a recession in order to keep his campaign promises to the unions. And here I was thinking -- indeed, praying -- that he was a cynical Chicago pol who would trim his sails once the election was won. Darn: Never have I been so convinced of the Importance of Not Being Earnest about campaign promises

Others have already eviscerated the tire decision's policy-making merits. (See, for instance, the Economist's leader). (Has any neutral academic observer actually praised the decision?) After the jump, however, I will highlight three aspects of the decision that suggest that a regard "fairness" cannot be regarded as either its motivation or likely effect: (A) The decision was dishonestly defended by the Administration as a remedy for illegal actions by China; (B) The decision was a breach of the United States’ specific promises not to impose new restrictions on trade in goods at last November’s and April’s G-20 Conference; and (C) the decision will probably not save any jobs.

1. The Administration dishonestly defended the decision as retaliation for unfair trade practices. Initially, the Administration described its action as an effort to provide a remedy for Chinese trade violations. According to the Wall Street Journal’s story, “administration officials said the president couldn't ignore findings that they said were violations of China's obligations under the rules of the World Trade Organization."

This White House statement was an egregious misrepresentation. The section 421 safeguard is not predicated on any violation of WTO rules: Instead, the “safeguard” is a special remedy applicable only to China that applies whenever imports from China “cause or threaten to cause market disruption to the domestic producers of like or directly competitive products,” even if that disruption is produced by perfectly legal trading practices. The Administration’s implicit suggestion to the contrary is, at best, a slippery prevarication.

2. The Administration’s decision broke this country’s promise to the world. At the November 2008 G-20 Conference, the United States agreed to a joint communiqué that “underscore[d]the critical importance of rejecting protectionism and not turning inward in times of financial uncertainty.” The leaders specifically agreed that, [i]n this regard, within the next 12 months, we will refrain from raising new barriers to investment or to trade in goods and services, imposing new export restrictions, or implementing World Trade Organization (WTO) inconsistent measures to stimulate exports.” The United States signed on to an identical statement at the April 2nd G-20 meeting
(paragraph 22).

The section 421 sanction is undoubtedly “a new barrier[] to … trade in goods and services” and is thus a flagrant violation of our nation’s word twice given. We face another G-20 conference in a few weeks: What credibility will we bring to the table after these breaches of our word?

3. In return for breaking its promises and lying about its reasons, the Administration either did not save any jobs or saved such jobs at an absurdly exorbitant cost to the consumer.

Jobs in low-end tire production are offset by the jobs in tire retailing. If an increase in low-end tire tariffs causes the price of Chinese tires to rise enough to affect the buying patterns of low-end consumers away from Chinese tires, then marginal consumers may simply delay tire purchases rather than switch to more expensive American-made brands, putting the tire retailers’ jobs at risk. Of course, it is likely that the lost Chinese imports will instead be replaced by cheap tires imported from Brazil. This is, at least, the claim of Obama’s own Trade Representative, Ron Kirk. In either case, no jobs will be saved by this action.

On the off-chance that some low-end tire makers refrain from laying off their workers as a result of this tariff (an unlikely result, given that tire makers mostly opposed this tariff), the cost to the consumer will be exorbitant. The ITC’s own
estimate is that the decision will impose“a first-year impact on consumers of $459 million to $534 million.” (page 37, note 209). Assuming that the tariff will bring back every single one of the 5,000 jobs that have been allegedly lost as a result of cheap Chinese tires and that the tariff will not sacrifice any other retail jobs – i.e., assuming that demand for low-end tires is price-inelastic beyond the wildest dreams of the tire makers -- this amounts to paying $100,000 per job.

Would it not make more sense to take the recommendation of the dissenting ITC commissioners, Daniel R. Pearson and Deanna Tanner Okun? They sensibly stated that “the best remedy would be to provide economic adjustment assistance to tire workers who lose their jobs, and that implementing a trade restriction would be far more likely to cause market disruption than to alleviate it.”

Pearson's and Okun's statement highlight a question that is begged by Gregory Bowman's post: The issue raised by the Obama Administration's tire decision is not whether to regulate the market but how: Choosing transition relief over tariffs protects fairness for the losers in international trade, but it does not penalize working-class consumers, Chinese tire workers, or tire retailers, and it does not violate our international commitments.

Transition relief, however, would not satisfy the United Steelworkers, and Obama had promises to keep. It is that political reality, I submit, and not any commitment to fairness over market efficiency, that explains the Obama Administration's decision.

The Moment of Truth for Military Commissions, and the Jurisdictional Bar that Might Get in the Way...

How Appealing and SCOTUSblog have both already noted the petition for a writ of mandamus filed yesterday in the D.C. Circuit by military lawyers for Ramzi Bin Al-Shibh, seeking to have some of the central provisions of the Military Commissions Act of 2006 invalidated -- and seeking, in effect, to bring the military commission process to a screeching halt.  As the petition argues,

Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” -- in the military judge’s own words -- “in which uncertainty is the norm and where the rules appear random and indiscriminate.”

I happen to think there is substantial merit to many of the substantive arguments advanced in the petition, for reasons I hope to write more about next week.  In the interim, though, I wanted to flag what I suspect the government's response will harp upon -- the argument that the D.C. Circuit lacks jurisdiction to even consider the petition's claims.

Although the Military Commissions Act confers jurisdiction upon the D.C. Circuit to review final judgments of military commissions, it constrains both the scope and timing of that jurisdiction (see 10 U.S.C. 950g). Mandamus might lie in any event under the All Writs Act (if the underlying claims have merit), since there is a solid argument that it would be appropriate to protect the appellate jurisdiction that the MCA already gives the D.C. Circuit after the fact. 

The problem is a separate provision of the MCA -- 10 U.S.C. 950j(b):

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever . . . relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Bin Al-Shibh's petition offers several arguments for why 950j(b) may not apply to his case.  If it does, though, it may well be unconstitutional. I have argued elsewhere that part of what the Suspension Clause protects is a right to collaterally attack one's amenability to military jurisdiction--and to do so before trial, to vindicate one's right not to be tried. If that's true (the Supreme Court has often hinted at this, but never explicitly so held), then 950j(b) would be unconstitutional to the extent that it precludes pre-trial challenges that go to the commission's jurisdiction.

So, this may be the moment of truth for military commissions--or, at the very least, for whether those who are protected by the Suspension Clause have a concomitant right to contest the jurisdiction of a military tribunal before being subjected thereto...

Pleading and al-Kidd

Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal.

The majority tried to apply a nuanced, but ultimately more-forgiving approach to pleading. It rejected as conclusory and insufficient the allegations as to Ashcroft's involvement with al-Kidd's conditions of confinement, for all the reasons discussed in Iqbal itself.

But otherwise, the court does not spend much time analyzing the Fourth Amendment allegations under Iqbal. The court merely says the following in finding the allegations sufficient:

al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation.

The real detailed Iqbal analysis was over the § 3144 claim--that Ashcroft enacted and supported a policy of violating the material-witness statute. The court emphasized how much more particular detail--specific, widely publicized statements by Ashcroft, FBI Director Mueller, and others about the pretextual and expansive use of § 3144--there was in al-Kidd's complaint as compared with the complaint in Iqbal. And clearly detail is demanded. From that detail, the court was willing to draw a number of favorable inferences as plausible and thus consistent with Iqbal and Twombly. For example, the court read the complaint to plausibly allege that Ashcroft knew of and did not stop misuse of the statute by underlings, based on the public nature of that misuse and statements explaining it. The court also read the complaint to plausibly allege that Ashcroft purposely instructed his underlings to do so, based on his public statements about the import of aggressive use of § 3144 in the War on Terror.

One lesson of this case is that specific, detailed examples of conduct and events are necessary to allege (inferentially) things such as knowledge, purpose, intent, agreement, and other state of mind. The allegation that someone "knew" X or did something "because of" Y almost certainly is not going to be sufficient. This is consistent with the Ninth Circuit's decision a few weeks ago in which allegations that Secret Service agents did something for viewpoint-discriminatory reasons were disregarded as conclusory.

I believe this undercuts arguments made by Adam Steinman in a CoOp post and in a great new article. He argues, for example, that in Iqbal, the following would be sufficient, without the need for greater detail (when they ordered it, the form it took, how they know):

Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.

But after reading the Ninth Circuit's analysis here (and in Moss), I am not so sure.

Another lesson is that plaintiffs are going to have much less success with a claim involving conduct that received less publicity and media coverage than this one. Al-Kidd could point to specific statements in the public record allowing the inference of an intentional policy or high-level knowledge. Unlike many (most?) civil rights claims, he did not need discovery to learn about specific instances or acts that support his claim. But many plaintiffs will not be so fortunate. Indeed, that divide between classes of cases seems inconsistent with the use of Bivens and civil rights damages litigation as a supplemental tool for investigating government misconduct; discovery (and the opportunity for it) is supposed to be part of that.

Finally, this opinion demonstrates the tremendous, and seemingly inconsistent, discretion courts wield in deciding 12(b)(6) motions, especially when considered in conjunction with recent Ninth Circuit decisions in Moss (granting dismissal under Iqbal) and Padilla v. Yoo (denying dismissal).

Will the Senate Parliamentarian decide how to reform health care?

I sort of hope so, just because it might persuade my students that I have not been wasting their time for the last three years: Since I joined the NYU faculty, I have included a couple of classes on the House and Senate procedural rules in my course on the Administrative & Regulatory State, including arcana like the "amendment tree," "Calendar Wednesdays," sequential referral to committees, etc. Moreover, if Alan Frumin, the Senate Parliamentarian, is forced to rule on whether Obama's health care reforms are sufficiently germane to deficit reduction to be passed through the reconciliation process (a process that requires only 51 votes), then we will have a good opportunity to see if the Congress will be able to resist compromising the Parliamentarian's famous political neutrality.

One could argue that the congressional Parliamentarians are the best counter-example to the Legal Realists' claim that law is always just politics: As David King has persuasively argued in Turf Wars: How Congressional Committees Claim Jurisdiction (at pp 28-29), the Parliamentarian's decisions on committee jurisdiction, using dry formalistic tests and party-neutral analysis of house precedents, has won the trust of both sides of the aisle in Congress. Political switches in Congress' leadership have not resulted in changes of the Parliamentarian: Newt Gingrich actually retained Charles Johnson, the Democrats' Parliamentarian in 1995. Could one imagine the Senate treating nominees to the Supreme Court with such non-ideological delicacy? Yet the stakes raised by the Parliamentarian's rulings are much higher than the stakes of SCOTUS decisions: Billions of dollars turn on the arcana of committee jurisdiction and legislative procedure.

So Congress watchers will be curious to see whether the Senate Democrats will respect head Senate Parliamentarian Alan Frumin's ruling on whether the Democrats can use the budget reconciliation process to pass health care reform with 51 votes. The issue turns on a mushy legal test that we would normally think would be politically manipulated for the benefit of the dominant party -- i.e., whether health care is sufficiently germane to deficit reduction. But we have also gradually come to trust that Congress will exercise bipartisan restraint by permitting the Parliamentarian to interpret these pliable rules in a non-partisan, boring, doctrinal manner. Lately partisan intemperance has flared, and even the Olympian neutrality of the Parliamentarian has not been sacrosanct: Senate Parliamentarian Robert Dove got the sack in 2001 from Trent Lott when he ruled against the Senate Republicans too frequently.

Will Frumin also fall victim to the rising tide of political passion if he rules against Obama and the Senate Democrats? Those of us who still believe in the rule of law, despite Realist derision, are watching with anxious anticipation.

Official liability for abuse of material witness warrants

Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities.

The plaintiff, a natural-born U.S. citizen who converted to Islam, was arrested on a material-witness warrant in March 2003, allegedly because of contact he had with Sami Omar Al-Hussayen and an Islamic charity, the Islamic Assembly of North America, that purportedly gave financial and other support to radical Islamist activities. Al-Kidd was held (in custody or supervised release) for 15 months, although never called as a witness in Al-Hussayen's trial (Al-Hussayen was acquitted). The warrant was obtained on false, incomplete, or omitted information and al-Kidd alleges that the purpose in seeking the arrest was to question and gather more information on al-Kidd.

Coming as it does on the heels of Ashcroft v. Iqbal, where the Supreme Court created a difficult road for victims of unconstitutional War-on-Terror tactics to seek damages against Ashcroft and other high-level executive-branch officials from the Bush Administration, the fact that this case was allowed to go forward has drawn some media attention.

There is a lot of interesting stuff going on here, that I will hit here and in a couple of later posts.

Absolute Prosecutorial Immunity

The court held that, in establishing and overseeing a policy of using material-witness warrants to investigate or simply detain the target of the warrant, Ashcroft was acting as an investigator rather than a prosecutor (as were his underlings). The court recognized that the ordinary, appropriate use of material-witness detention in the wake of an indictment and in preparation for a forthcoming trial would be prosecutorial. Here, however, the court added a limited purpose element to the immunity analysis; while a prosecutorial function committed with an improper purpose does not strip a prosecutor of immunity, the "immediate purpose" behind an act helps define whether it is investigative or prosecutorial and an act done with an immediate investigatory purpose is investigative.

This is a fine, but important line. The court looked at largely objective facts in making this determination--the temporal distance between the warrant and the trial; the government's investigative history with the target of the warrant; what the government questioned the witness about while in custody (who they asked about and what conduct they asked about); and whether he was called to testify at the eventual trial. The complaint also contained public statements by DOJ officials (including Ashcroft) about the expanded use of material-witness warrants for largely investigative purposes. On these facts, at least at the 12(b)(6) stage, Ashcroft was functioning as an investigator (or the supervisor/policymaker over investigators).

Interestingly, the majority also responded to concerns about unadorned allegations of non-prosecutorial motive by plaintiffs by emphasizing the amount of detail in the Complaint. This is an Iqbal-triggered concern, obviously. And I will talk about this more next post.

But here, it reflects an unfortunate pleading confusion. Prosecutorial immunity is supposed to be an affirmative defense, with the burden of proof (as the court seems to acknowledge) on the defendants. But the burden of pleading also should be on the defendant. Thus, the plaintiff should not have to plead that the challenged acts were non-prosecutorial and why, consistent with Iqbal or otherwise. It should be on the defendant to plead that the acts were prosecutorial. The language of the decision seems to convert anticipation and rejection of the defense into an element of the plaintiff's claim. This confusion was sort of an underlying issue in Iqbal; it is now explicit here.

Qualified Immunity

The court next held that Ashcroft was not entitled to qualified immunity. True, it was not clearly established in 2003 that misuse of the material-witness procedures violated the Fourth Amendment. But, the court said, dicta in Ninth Circuit law at the time suggested that material-witness detentions must be linked to a primary need to obtain testimony. Further, the definition and history of probable cause under the Fourth Amendment were clearly established, which should put government officials on notice that arresting someone on mere suspicion of criminal activity runs afoul of the Fourth Amendment. Finally, the court pointed to a 2002 district court case that rejected this use of material-witness detention as an investigative tool, calling out Ashcroft by name.

There is a tone to the opinion that this use of detention was akin to a government policy of selling babies who are in foster care. This is Judge Posner's classic example of something that is so glaringly, obviously unconstitutional that the law is clearly established on general principle regardless of case law, because a case on all fours never will arise.

Supervisory Liability

There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.

Damages for violating § 3144

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

In the next post, I will discuss the issues in the case relating to Iqbal and pleading under Rule 8(a).

Why does not Obama promulgate new "don't ask, don't tell" regulations?

President Obama has angered gay and lesbian supporters by delaying efforts to repeal Section 571 of the 1993 National Defense Authorization Act, 10 U.S.C. section 654, which codified the infamous "don't ask, don't tell" policy, requiring the discharge of service members from the armed forces who engaged in homosexual conduct or states that they are gay. The official White House line is that it is up to Congress to repeal the statute.

This is disingenuous passing of the buck, no? For it is up to the President to execute the statute, and, to my knowledge, the Obama Administration has done nothing to change the old Defense Department directive defining "don't ask, don't tell" procedures for initiating investigations and proving violations. The statute itself says almost nothing significant about initiation and proof of charges, delegating the whole task to "regulations prescribed by the Secretary of Defense" (10 U.S.C. section 654(b)). As commander in chief, Obama surely has an implied power to supervise how Secretary Gates carries out this statutory task (or at least Obama's SG, Elena Kagan, has so argued when she was an academic). Obama's implementing executive order would surely get extraordinary deference. So the ball is squarely in the President's court, right?

Some very small changes to the existing DoD implementation policy (DOD Instruction 1332.14) might effectively end virtually all discharges of service members on account of their discovered sexual orientation. The President, for instance, could simply require that (a) initiation of investigations must be initiated not by the service member's commanding officer but by the Secretary of Defense's Office of General Counsel; (b) no investigation could be initiated absent a sworn affidavit from a member of the service member's own unit; (c) no investigation could be initiated absent a showing of damage to unit cohesion or unit morale, based on a sworn statement by the unit's C.O.; and (d) no presumption would exist that abstract statements of sexual orientation indicated conduct, attempted conduct, or propensity, as required by the statute.

Given the super-super Chevron deference that the President would receive on defense-related matters, I would think that all of these regulations would be easily upheld, assuming that anyone had standing to challenge them. (Suggestion (b) above simply borrows from the statute's own statement of policy). Moreover, such changes could be made with the stroke of a pen, without the fanfare of notice-and-comment rule-making, in the bowels of the Pentagon, as a mere change in "instructions." So is it just cowardice above and beyond the call of political necessity that causes President Obama to adhere to Bush's old implementation policy?

An Unusual (and Uncomfortable) Appointments Question

One of the many joys of serving on a hiring committee (which I've been privileged enough to do three of my five years in the academy, including this year) is the chance to see familiar names (and, eventually, faces) among the massive stacks of resumes. It's always a treat to see the interesting work that old comrades have been doing -- only the more so when that work also catches the eye of other members of your committee.

Knowing lots of people in the pool, though, raises a potential problem that I hadn't encountered (or even anticipated) until recently: What should you do when you come across representations in a candidate's FAR form (or resume) that you know for a fact are either incorrect or at the very least seriously misleading? Some are easy enough to check (e.g., whether an article was co-authored; whether it was a student note; etc.). For others, though (e.g., employment information), what's obvious to me (e.g., that the candidate misrepresented the nature of their position, or the reason for termination, etc.) might be very difficult for those unfamiliar with the candidate to check, especially if that employer isn't one of their references.

So what's my responsibility in that instance? If other members of my committee want to consider that candidate, do I have a responsibility to tell them that I think the candidate is misrepresenting something? If the candidate doesn't grab our attention, do I just snicker to myself and move on? Has anyone encountered a similar problem before?

The Libel Tourist is dead

Khalid bin Mahfouz, a Saudi citizen who brought several defamation lawsuits in Great Britain against United States writers and publishers who accused him of supporting and funding terrorism, has died at 60. (H/T: Greg Wallach of FIU College of Law).

Most recently (and famously), bin Mahfouz won a $200,000 default judgment against American journalist Rachel Ehrenfeld for her book Funding Evil: How Terrorism Is Financed — and How to Stop It. Ehrenfeld fought back by trying to get a federal injunction against U.S. enforcement of that judgment, which failed for jurisdictional reasons. Ehrenfeld then became a vocal advocate for Libel Tourism (or Libel Terrorism) laws at the state and federal levels. These bills would at a minimum make unenforceable in the United States any foreign defamation judgment against speech that is protected by the First Amendment. They would, at a maximum, establish special jurisdictional rules for domestic actions enjoining enforcement, and providing for "clawback" of the amount of any foreign judgment. I have written previously about the many problems with the more-expansive bills and was part of a panel on the subject at SEALS earlier this month.

I wonder what this news will do to either push the legislation or further dampen it as an issue.

Predicting Fraud

Here's an interesting tidbit from this weekend's New York Times magazine profile of Bruce Bueno de Mesquita, a political scientist who uses game theory to predict political and corporate outcomes.  The Times reports that Bueno de Mesquita offered to use his predictive software for Arthur Andersen 

"to predict which of Arthur Andersen's clients - including, at the time, Enron - were likely to engage in financial fraud.  But the firm's lawyers, Bueno de Mesquita says, didn't want to use the tool for fear it would put them in awkward legal positions."  

No kidding.  The Times then quotes a former Arthur Andersen partner: "'Had I been able to convince the firm' to use the model... I think that Andersen would be alive today."

Shall we ever rid ourselves of bogus "town" meetings on national policies?

The spectacle of President Obama's town meetings on healthcare reform inspires my question. President Obama did not invent this device -- it really hit its stride in the 1990s, when the Clintons discovered its potency as a stage for an empathetic politico -- but I wish that Obama would forego its use. The problem is that town meetings (as the name implies) require town residents' dealing with town policies. When this essentially local procedure is dragooned into the task of discussing, say, national health care policy, the result is necessarily fake, an exercise in PR rather than democracy.

As William Fischel, the Dartmouth economist, has argued in his Homevoter Hypothesis (Harvard University Press 2001), local residents have both the incentive and capacity to gather information spontaneously about local politics -- zoning, local services, taxes, schools, etc. -- because these affect their property values in intense and immediate way and because the sources of information are close at hand. But the participants in "town" meetings about national policies have no such incentives. As Adam Ferguson observed a decade ago when the national "town" meeting was still a fresh campaign technique, the town meeting on national policy is "Ye Olde Town Gimmick" -- a Potemkin Village of policy ignorance, partisan high jinks, or (where a politician can screen the audience) soporific mutual admiration ("That's an excellent question! And this Administration cares about working families....")

The really repulsive aspect of national "town" meetings is that, by providing the simulacrum of participatory democracy, they crowd out consideration of the real thing. There are interesting proposals out there to create lay assemblies that, like juries, would be exposed to an array of expert and political testimony and forced to deliberate for an extended period before making a recommendation. Ethan Leib, my co-prawf, is a vigorous defender of one such type of institution, and citizens' assemblies have been tried in British Columbia to push electoral reform with mixed success. Of course, there is always our home-grown version -- the real town meetings that deals with real town policies: I recommend Frank M. Brayan, Real Democracy: The New England Town Meeting and How It Works (U. of Chicago Press 2004) for a detailed study.

By contrast with these institutional solutions to collective action problem of information acquisition in a democracy, the national "town" meeting feeds the myth that participatory democracy is can be acquired on the cheap without the hard work of actually studying the issues being discussed. So call them "talk shows," "focus groups," "photo ops" -- anything but what they are decidedly not: viz, a town meeting of citizens actually engaged in self-government.

Recouping Bonuses From Innocent Executives

This post, the second in a series about recouping executive compensation, looks at the SEC's recent action to recoup bonuses from an executive who was not charged with misconduct.  This SEC action is the first to use the SOX 304 clawback provision this freestanding way.  The story has started to make the rounds of the blogs and op eds and many (Ribstein, WSJ) but not all (Conglomerate) criticize the move for penalizing innocent executives.  I explore two slightly different questions after the jump: How much does the same debate apply to the legislation implementing TARP, which also has a clawback provision? and How does agency law fit in?

So, first, how much do concerns about "innocent executives" apply to the legislation implementing TARP, which also has a clawback provision?  The TARP-related provision also does not seem to require that the executive be responsible for the materially inaccurate earnings statements, etc., that trigger the clawback power - the aspect that seems to have triggered the most outrage in the blogs and op eds about SOX 304.  To that extent, the debate may be relevant.  

But the implementation strikes me as quite different.  The TARP-related clawback provision includes this language:

"The Secretary shall require that the financial institution meet appropriate standards for executive compensation and corporate governance" including "a provision for the recovery by the financial institution of any bonus or incentive compensation paid to a senior executive officer based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate." EESA 111

"A provision for the recovery" is a bit of an awkward construction, but I read it as pushing TARP recipients to include clawback provisions in employment policies or individual employment contracts and enforce it that way.  (Those of you deep in the weeds of EESA can correct me.)  So the enforcement might include arguments about whether the company had provisions in place or the employee's contractual rights, as much as statutory interpretation and institutional powers.

Another question I have is how much holding the CEO or CFO responsible is already reached by agency law?  After all, respondeat superior already reaches "innocent executives" because it doesn't require personal involvement in the conduct.  Maybe the simple answer is that the CEO isn't the employer, so that there is no agency relationship.  But at the very least, we should be used to mechanisms that penalize because of a person's position or relationship.  The question in the SEC case is then whether it is good policy to enforce this way or, as Usha Rodrigues points out on the Glom, whether the SEC can/should change interpretation midstream.

Recouping Executive Bonuses

Executive bonuses are in the news again, with the SEC complaint against Bank of America for allowing Merrill Lynch to pay up to $5.8 billion in discretionary bonuses, despite proxy statements suggesting that no bonuses would be paid.  Bank of America and the SEC agreed to a settlement, but these settlements are subject to judicial approval for being "fair, reasonable and adequate."  Judge Rakoff of the SDNY refused to approve it without a hearing, held yesterday, in which he called for more information.  A few thoughts:

First, the coverage seems to focus on whether TARP money was used to pay the bonuses, and outrage because $33 million seems small in comparison to the billions paid out.  But we should also be asking the usual question about corporate penalties: Where is that $33 million coming from and where is it going?  Is the penalty being paid with TARP funds?  (Is there any way to distinguish the source of money?)  Who gets the money?  In other words, maybe the cash is going from taxpayers to the Treasury, minus administrative costs.  Or the penalty could be distributed to injured shareholders through a Fair Fund.  It complicates the "bigger is better" account.   

Second, the NY Times reported that "Judge Rakoff said that he might hold another hearing to consider evidence of whether the bonuses were needed" and that "he might want to know if Merrill's management studied how many of the roughly 39,000 bonus recipients would have left had they not received their payouts."  This case may very well be part of an SEC bid to be relevant in the debates over executive pay and TARP, but this case is still about disclosure and it's not clear to me that the need for these bonuses is relevant to that.

Finally, we shouldn't be so surprised at Judge Rakoff's active role here.  He is no stranger to reviewing/shaping high profile SEC settlements - see WorldCom - and is also the co-author of a book on corporate sentencing guidelines, which raise some of the same issues as SEC corporate penalties.

Sotomayor Confirmed

The vote was 68-31; nine Republicans joined 59 Democrats (Sen. Kennedy did not vote).

Health-care protests and free-speech models

Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense. The answer depends on two competing models of how free speech should operate.

On one hand, Congresspersons are trying to recreate some version of Alexander Meiklejohn's Town Hall Meeting, in which democratic governance occurs via a form of the New England Town Hall meeting and the freedom of speech is designed to ensure that the meeting functions towards that end. (Actually, this is more of a republican adaptation--no governance is occurring at the meeting, but the meeting is designed to enable communication between representative and constituents, which in turn enables the representative to directly participate in the governance process). But the point about the rules of the meeting remains the same: They must be designed to ensure that the meeting can function for its governance purpose; there is no right in every person present to speak; speech can be restricted if it interrupts the ordinary course of the meeting, prevents others from being heard, or otherwise interferes with the meeting; rules can be used to maintain order to the meeting process (Meiklejohn anticipating what has become known as time, place, manner restrictions).

On this conception, the tea folks are acting wrongfully. The meeting should be open to the protesters and those protesters must be permitted to speak, ask hostile questions, and express (even in loud terms) their opposition to health-care reform (none of these Bush-Era faux town hall meetings stocked with handpicked supporters). What they cannot do is interrupt the meetings by booing and jeering, shout down the Congressperson or other attendees and speakers, or otherwise try to prevent the meeting from occurring or functioning as a public conversation.

On the other hand, a competing free-speech model is the person speaking on the public street corner. This ordinarily assumes the lone, powerless speaker alone on a soapbox, railing against authority and government corruption. But I think it is a flexible enough concept to capture a Congressperson out in public, meeting and talking with his constituents or even giving a public statement. This model of speech and the public speaker also carries with it counter-speech and the counter-speaker--someone standing on an adjacent soapbox, countering the first speaker's words, symbols, and ideas, trying to convince the listening audience that she is right and the first speaker wrong, and perhaps trying to get the first speaker to give up and shut up. One speaker attempting to shout-down another--while rude, not conducive to civil or meaningful discussion that can accomplish anyway, and perhaps counter-productive--is consistent with this model of speech.

The tea folks thus are behaving consistent with this model, particularly in less-formal settings (show-ups at restaurants, picnics in the park and other public spaces, etc.). Freedom of speech includes freedom to heckle and shout-down competing speakers; the public space is not the place for the organization Meiklejohn assumes. This idea of the extreme of counter-speech is captured in this scene from Casablanca--what's the difference?

Two final caveats on this. First, I do not suggest that the tea people are behaving in a way consistent with republicanism and democratic governance. Preventing a public conversation about an important issue of public policy is hardly conducive to effective governance. But sometimes there is a divide between speech and governance. Second, Meiklejohn's model, even if appropriate here, does not speak to remedies for those who refuse to play by the rules of the town-hall meeting. Because the reality is there are none. Having even harassing and uncooperative protesters removed from the meeting is not going to play well on TV or the Internet.

Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?

By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme Court review.

The last time the Supreme Court accepted a certified question from a court of appeals was in 1981, in the immediate aftermath of Dames & Moore v. Regan (a case that came to the Court in one big hurry).  In a related (but distinct) case arising out of the Second Circuit (Iran National Airlines Corp. v. Marschalk Co.), the Court answered three questions, two with one word ("yes"), and with cursory citations to Dames & Moore, and a third with a short explanation and a cite. Three Justices (led by Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefiit of additional briefing and argument).

To me, at least, Powell had it exactly right. Indeed, the Court's far-more-common practice is (as it was in 1981) to send cases back down for full reconsideration (and new briefing in light of the intervening decision) on the assumption that the issues might differ, if ever so slightly (in my view, at least, this was true in Marschalk).  One might justify what the Court did in Marschalk as stemming from the same pressures that led to the quick and decisive resolution of the Iranian claims isssue that prompted Dames & Moore itself, but in the typical case, a "GVR" in light of the new decision seems right on.

Same, too, with the most recent well-known effort by a court of appeals to have the Supreme Court answer a certified question -- the en banc Second Circuit's 2005 certificate in United States v. Penaranda, asking the post-Blakely sentencing question that the Court would soon answer in Booker. There, it was only a matter of time before the question presented would arise on the merits of a properly presented cert. petition, and so the Court knew it could wait, however briefly, for the issue to ripen.

In marked contrast, here we have a pure, discrete, stand-alone legal question wholly unrelated to any other cases currently pending before the Court, and one that would, for obvious reasons, materially advance (and perhaps pretermit) the litigation in the lower courts (the original Fifth Circuit panel would have acquitted Seale). 

To be sure, it would be better if the Fifth Circuit was not evenly divided and was capable of resolving this question on the merits. But where the court of appeals can't act, where the defendant has already been convicted under the arguably time-barred claim, and where the issue may not properly come to the Court in a cert. petition before the defendant is potentially harmed by such a result, it strikes me that we might have the perfect facts for certification.

Put another way, if certification is ever going to be used again, isn't this the case for it?

Elmendorf and Leib on Citizens' Budgets

We had a false alarm at the hospital last night, which explains why I'm only now getting to share my "other" excitement for the day: Ethan Leib and Chris Elmendorf (UC Davis Prawf) have a thoughtful op-ed on deliberative decisionmaking in the budgeting process; it is in today's NYTimes. Here's the link. I've reproduced it after the jump. Congrats to both Ethan and Chris!

Budgets by the People, for the People

By CHRIS ELMENDORF and ETHAN J. LEIB

NEARLY a month after the June 30 deadline, California’s Legislature and governor have finally agreed on a budget for the new fiscal year. The embarrassing debacle of paying the state’s bills with i.o.u.’s will come to an end — at least for a while. Though Gov. Arnold Schwarzenegger had pledged not to “kick the can down the road,” the budget he intends to sign today relies on $8 billion in accounting and revenue gimmickry, virtually guaranteeing another fiscal crisis next year.

For states as well as families, hard economic times require difficult choices. But some states find themselves in budget battles even when they don’t have the bad economy to use as an excuse. California is the prime recidivist, but since 2002, Connecticut, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Virginia and Wisconsin have also failed to close the deal on a budget on time. Government shutdowns resulted on five occasions.

Budget breakdowns most often occur under conditions of divided government — when Democratic and Republican lawmakers must compromise with one another to get a budget passed. Yet many voters like divided government, and for good reason. Distrusting of the extremes in both parties, these voters want their states to follow middle-of-the-road fiscal policies.

California’s Constitution has long required the Legislature to adopt a budget with a two-thirds vote; eight other states now necessitate supermajorities for some budget items. Such rules effectively force the majority party to negotiate with the minority on the budget since it is rare for one party to win two-thirds of the seats in a state legislature.

In California and elsewhere, politicians and analysts have called for constitutional conventions to revise the basic charter of state government. Believing that fed-up voters will reject any reforms on which political insiders have left their prints, some have suggested that delegates to the convention consist of ordinary citizens selected at random in a process akin to being called for jury duty.

But jurors are given a pretty limited task. They decide one case at a time and their basic choice is binary: guilty or not guilty, victory for the plaintiff or for the defendant. It is probably wishful thinking to expect random citizens to redesign state government from top to bottom.

We suggest a more modest role for an assembly of ordinary citizens: breaking budget stalemates. Here’s how it would work. If the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens — one from each legislative district — would be convened to resolve the stalemate. Three competing budgets would be drawn up: one by the governor, one by the Democratic caucuses in the legislative branch and one by the Republican caucuses. (These proposed budgets would have to be finalized before the citizens were selected.)

For two weeks, the citizens’ assembly would hear from and question government leaders, policy experts, interest groups and other supporters and critics of the proposed budgets. The citizens would then deliberate among themselves and vote by secret ballot on which of the budgets to adopt. The vote would take place on the budgets as originally submitted; neither the citizens nor lawmakers would be able to make amendments. The winning budget would become law.

This arrangement would have a number of virtues. First, it would ensure that states adopt budgets in a timely fashion, protecting bond ratings and freeing lawmakers to attend to other important business.

Second, it would give the three institutional actors in the budgetary process — the governor and the Democratic and Republican caucuses — strong incentives to devise budgets that appeal to middle-of-the-road voters, not political ideologues or special-interest favor seekers. Citizens who participate in the two-week assembly would also learn an awful lot about their state’s fiscal situation and competing legislative priorities. These citizen participants would not be as susceptible to sound-bite misinformation as in more traditional exercises of direct democracy.

Our scheme would also do wonders for accountability. When budgets are adopted under divided government (or supermajority requirements), it is hard for voters to figure out exactly who is responsible for the shape of the compromises. If the upside of divided government is centrist compromise, the downside is weakened retrospective accountability at the polls. Our approach to budgeting promotes accountability because the enacted budget would unequivocally belong to “the governor,” “the Republicans” or “the Democrats.” Dissatisfied voters would know exactly whom to reward or fault when they go to the polls at the next election.

Finally, our proposal honors Americans’ insistence on a strong popular voice in government, without demanding too much of citizen participants. It would require them to perform only a fairly simple task: rank your preferences among three proposed budgets, after hearing out the proponents and opponents of each.

Elsewhere, citizens have already proven themselves able to make measured, well-reasoned decisions about budgetary issues in small-group deliberative settings. The Brazilian city of Porto Alegre has been doing participatory budgeting since 1989, which has helped to equalize severe disparities in the standards of living among its residents. In Zeguo Township, China, citizens have been convened through statistically random sampling to establish spending priorities for road, building and construction projects.

Here at home, our participatory budgeting procedure would not be a panacea. But it should result in timely budgets, tailored to the concerns of average voters, for which elected officials can be held to account. That’s definitely better than the mess we have now.

Chris Elmendorf is a professor of law at the University of California, Davis. Ethan J. Leib is a professor at the University of California Hastings College of the Law.

Baseball, punishment, and Pete Rose

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from election and induction any person on MLB's Permanently Ineligible List.

Two sort-of law-related queries after the jump.

First, I would like to hear what crim-law and punishment scholars think about this as a matter of punishment theory and practice. Rose accepted permanent ineligibility from the game as part of a settlement, likely to avoid a formal finding that he had bet on games in which his own team was involved (the evidence against him is pretty strong). He later admitted to that conduct which, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility ("shall be declared permanently ineligible"). But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals and theories of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted, if a few years late? And what do we do with the arguments (which always have seemed counter-intuitive to me) that if Rose had admitted to gambling in 1989 or any time within the past two decades, he already would (and should) have been reinstated.

Second, what about the Black Sox, the eight members of the Chicago White Sox, who were permanently banned for their various roles in taking money from gamblers to throw the 1919 World Series. Reinstating Rose would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty?

After all, some of them were suspended for arguably less-serious infractions than Rose. Shoeless Joe Jackson (the one Black Sox player whose reinstatement likely carries with it a debate about the Hall of Fame) took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixed games, and general cheating were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans from 1917-19. The hiring of Kenesaw Mountain Landis as commissioner reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And is Selig aware of the box he is opening?

More on the Gates Arrest

Paul and Dave have both written very interesting posts on the Gates incident, and they have me wondering about policing and class. In particular, I'm interested in how police interact with middle and upper class citizens (and vice versa). My own interactions with police officers have sometimes been quite unpleasant --- not because the officers were wrong to stop me or because I had been subject to any sort of profiling --- but rather because the officers treated me with such a lack of respect that I felt angry and humiliated. As someone who ordinarily encounters, if not respect, than at least politeness, these experiences with police officers have been quite difficult to forget.

I know that police officers have difficult and dangerous jobs, and I'm sure that they have to deal with plenty of rude citizens whoay have engaged in some (not always minor) wrong-doing. But it is easy to conclude that the behavior of some officers is designed as an overt show of authority, thus a citizen's response of "do you know who I am" seems to me a response to the show of that authority -- especially once the officer's authority is no longer necessary for law enforcement reasons.

I don't pretend to know how to solve policing tensions --- sadly, I don't think even Gates and this officer having a beer with Obama will accomplish anything. But I do think it is important to remember that the law in this area -- the "consentual stop" doctrine, permitting officers to demand citizens to show ID, the low reasonable suspicion standard, and even defining "disoderly conduct" as a crime -- exacerbates these tensions and has probably led to countless other unfortunate incidents like the Gates arrest.

[Ed. note by DM: I have taken the liberty of deleting the anon comments here (not Carissa). I did so on Jeff's Cambridge Police post too.)

Trying Terrorism Suspects in Article III Courts

In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere.

One of the fruits of that workshop -- the workshop report -- was released today, and is available here. [The ABA release is here.] As the report notes,

While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention.

As Larry Solum would say, highly recommended!

Welcome to the World, Military Commission Reporter

Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction).

In the interim, though, I'm very pleased to note the publication of a new (unofficial) reporter of every military commission decision rendered under the MCA, put together by the folks at the National Institute for Military Justice.  For more on the reporter (including a PDF of Volume 1 in its entirety), see here. This is a fantastic resource for those who write about these decisions, none of which have been previously compiled in such a readily accessible form (indeed, many of the decisions in the Reporter were not previously available in any electronic forum).

I leave it to y'all, though, to figure out its proper Bluebook citation form. :-)

"You have no idea who you're messing with": Another view

I began to write a comment in response to Paul’s really interesting post about the Henry Louis Gates arrest, but it ended up growing a bit long, so I decided to develop it as a separate post. To begin, I share Paul’s general reaction to the phrase "You have no idea who you're messing with" (which Gates may or may not have said; the reports appear conflicting). Coming from a fat-cat businessman or a snarky socialite, it’s a pretty vulgar invocation of social privilege. But I'm pretty sympathetic to Gates’ (or anyone's) having used this language under these circumstances.

The reason is that being arrested—or having police force used against you generally—is a distinctively and powerfully upsetting experience. On about three occasions in my life (each when I was quite a bit younger), I have been on the receiving end of what I felt to be excessive policing for relatively innocuous behavior (not merely traffic stops for speeding, though I’ve had my share of those as well--all of them well justified). And while I attempted on each occasion to remain calm and reasonable, having the state’s power brought to bear on me for what I felt were trivial and unjustified reasons made me feel as frustrated and angry as anything I’ve experienced.  After the first such incident, I was quite surprised; I would not have imagined beforehand that it would have been as upsetting as it actually felt.

The foregoing is all true even though I’m not a member of a group that has historically suffered discrimination, so I can only imagine how much more upsetting the experience would be if you added race to the mix. I write all this because I’m not sure it’s possible to fully appreciate how distressing the experience of police harassment (or simply mistaken enforcement) can be unless you’ve had that experience first hand (which I think most lawprofs have not). I continue to think that scholarship about racial profiling consistently downplays the psychological impact of police maltreatment on both individuals who suffer it and communities that are over-policed, likely because most of the people writing in the field cannot personally relate to the experience.

So while I concur that in general the phrase “you don’t know who you’re dealing with” is objectionable, under the psychological stress of a wrongful (as in mistaken) use of state force, Gates’ use of the phrase in this instance seems to me an understandable and limited expression of justified anger.

That said, I'm not sure the early stages of this incident evince racism or racial profiling. The initial complaint was based on seeing a man trying to force the front door of a house open; I'm pretty sure it's reasonable to call the police under these circumstances, regardless of the man's race. And while the subsequent facts are murky, it seems that the policeman was initially satisfied by Gates' proof that he was the house's owner and a professor at Harvard.

What does seem problematic to me, though, is that the police responded by arresting Gates rather than simply trying to calm him down. I feel skeptical that the police would have gone to these lengths if, for example, the exact same thing had happened to one of Gates' senior white colleagues. Obviously when there is any low-level domestic disturbance, police have to use their discretion to calibrate the use of force to a level they find appropriate, and sometimes this may mean restraint and arrest. But while I wasn’t present, it’s hard for me to understand the necessity of handcuffing and arresting a sixty-year old college professor.

None of this is meant as a knock on the police generally. One of the great things about teaching at Southwestern is that I have students from all walks of life, and that includes current and ex-law enforcement officers. I find their stories and experiences invariably interesting, and each one of them has struck me as a decent and thoughtful person. Efforts to paint the police with a broad brush as “racist” seem to me short-sighted and wrongful for the same reason that attributing to a profession the qualities of its worst members invariably are.

That’s what’s so very difficult about this case. The police are trained to take and keep control of any situation, and in the clear majority of cases they are dealing with punks and criminals who need to be suppressed using that strategy. But sometimes the police get it wrong, and when they do it’s enormously upsetting for the wrongfully accused (imagine having agents of the state force you to convince them that your house is actually yours—do you have to produce a deed, or a certificate of title?). I’m not sure if police are trained to apologize or admit their mistake for these kinds of incidents (thought it bears reminding here that the police were asked to investigate a potential burglary, so the initial mistake wasn’t theirs), but if they were it might go a long way toward defusing these kinds of situations.

For those interested in checking out the primary evidence, here is the text of the police report, and here is Gates’ statement through Charles Ogletree. There’s also a really astute comment in a thread at Concurring Opinions about the differences between the two accounts and how they might be reconciled.

Final thoughts on the Sotomayor hearings

In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

So what congressional check remains on these runaway activist judges? Impeachment. And, of course, the House member will not argue for impeachment because of Justice Sotomayor’s decisions (the line no one dare cross, post-Samuel Chase). Rather, it is because her actions on the Court are contrary to what she swore under oath to the committee. She cited foreign law when she told the Committee there was no constitutional warrant for doing so (although I explained yesterday why her answer studiously avoids this charge); she upheld affirmative action, which shows her letting her personal feelings as a "wise Latina" interfere with her decisionmaking. Obviously, the effort will not go anywhere. But it is a bad rhetorical road to even start down.

Second, have we bottomed out? Have the hearings devolved to such a low-level of discourse that the public will demand more—from both the nominee and the committee members from both parties—the next time? After all, if there is a consistent theme to all the coverage, it has been how inane and meaningless it all has been.

I keep relating this to the issue of past drug use by public officials. In 1987, marijuana use derailed Judge Douglas Ginsburg’s nomination to the Supreme Court (granted, the problem was that he was doing it with students while a law faculty member) and I seem to recall some controversy around members of Congress for past use. And I remember arguing at the time in a college course on the news media that, with the Baby Boomers (most of whom used pot in college, if not into young-adulthood as the only way to survive Disco) coming to political power and beginning to constitute an electoral force, this would be the last time that marijuana use could derail political ambitions. I was wrong as to timing. In 1992, Bill Clinton had to resort to a ridiculous lie to avoid the (believed politically damaging) admission that, duh, he smoked pot while going to college in the late 1960s. But by 2000, George W. Bush’s adult drug use was off-limits for the media and by 2008, no one blinked about Barack Obama’s admission in print of his youthful drug use.

So could this hearing be the judicial-confirmation equivalent of “I never inhaled,” the moment that pushes the public over the edge into demanding an honest and coherent discussion of judging, the courts, and the law? Into defined, non-buzzword questions and substantive answers? I am not sure. It might have been if the Democrats this time had pushed back on the Republican narrative about courts and judging, so that Judge Sotomayor had cover and the controlling theme was not “judging is passive mechanistic application of precedent”. As Dahlia Lithwick put it:

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.

If Dahlia is right, that means the hearings on Obama’s next two nominees will be just as hard to watch as this one. Unless the Democrats finally find a judicial vision that they can voice for the public (which Dahlia doubts).

Third, President Obama could get three appointments this term (putting aside whether he is re-elected in 2012). So who’s next? I am guessing Elena Kagan (now having had a couple years as SG) and Diane Wood (believed to have been runner-up this time). Both likely will be less controversial (no "Wise Latina" albatross, no potential for race-baiting, and having Richard Posner and Frank Easterbrook or Jack Goldsmith, respectively, for support). Although, ironically, both may be more judicially liberal than Sotomayor. Thoughts?

[Cross-Posted at ACSBlog]

Misunderstanding Judging: Foreign Law

There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange Wednesday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to “cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country.”

The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the “judicial power” in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don’t need permission to do the ordinary work of judging.

When Judge Sotomayor agreed that the Constitution was silent as to foreign and international law (without pointing out that it is silent as to all interpretive methodology), Coburn responded “so you stand by this statement that there is no authority to utilize foreign law in making decisions under the Constitution.”

Sotomayor then said “Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution.” Absolutely true. And this is the issue that most of the no-foreign-law politicians miss—no one is talking about being controlled by what French courts or the ICC do as binding authority.

But Coburn then asked her about a speech she made to the ACLU in which she said that “to suggest that you can outlaw the use of foreign law is based on a fundamental misunderstanding, and is “asking judges to close mind to ideas,” and demanded that she reconcile those ideas.

Sotomayor told the committee “What I pointed out in that speech is that there was a public misunderstanding of the word “use” in that discussion. What judges do is educate themselves, they build up a store of knowledge that one might consider. That’s just thinking.” And the key portion of her ACLU was as follows:

How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think. And to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas. …. Ideas are ideas. Whatever their source. Whether they come from foreign law or international law or a trial judge in Alabama or a circuit court in California or any other place, if the idea has validity, if it persuades you, then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it.

And here is where, from the standpoint of wanting this hearing to be a somehow meaningful, or at least coherent, discussion of law and the judicial process, her answer falls flat. She insists that what she described in her speech does not constitute “using” foreign law, that looking to foreign law and other sources for ideas is not using it to make decisions under the Constitution.

Of course it is. Judges are using these “ideas” to figure out what some ambiguous legal concept (“due process,” “equal protection,” “cruel and unusual punishment,” “the freedom of speech”) means—to figure out what the law is—so they can apply that law to a set of facts. This is the essence of judging—interpreting vague or ambiguous text by resort to a range of sources and ideas and using those ideas to reach a conclusion as to legal meaning that can be applied in this and future cases. Foreign and international law is one source of ideas to use in that process; legal scholarship, social science, and the canons of constructions are other sources to use in that process. But the notion that this is not legal "use" is nonsense.

At some level, this is another example of what has been going on all week: The Republican/conservative minority (on the committee and talking in the press) has defined the boundaries of appropriate judicial behavior—here, that utilizing foreign and international law is inappropriate. And Judge Sotomayor answered the question by accepting and agreeing to that premise (“utilizing” international law is verboten), rather than pushing back on it and being able to define and explain what goes into judging, including resort to all sorts of persuasive sources. We teach first-year law students about the differences between binding and persuasive authority as a key concept of horizontal stare decisis, but no one ever suggests that persuasive precedent is not precedent that is being used in the legal analysis.

On the other hand, I understand why she gave this answer. And as a rhetorical move, it was brilliant. By defining “use” (or “utilize,” as Coburn said) narrowly to mean only having foreign law dictate the outcome as binding authority (which no one believes is proper outside of treaty cases), she left herself perfectly free to cite foreign and international law as persuasive authority for her next 20-30 years on the Supreme Court, without being in any way inconsistent with her committee testimony. This, of course, once again shows why the intellectual battle between nominee (this nominee and pretty much anyone put up for the High Court) and almost all committee members is such a mismatch.

I just wish we could have a meaningful discussion rather than a politically charged battle of wits.

[Cross-Posted at ACSBlog, where I am guesting during the hearings]

Bork, Sotomayor, and the Double-Edged Sword of Empathy

My official position toward the Sotomayor confirmation hearings (and all judicial confirmation hearings) is annoyed indifference. When family or friends ask my opinion of how they’re going, I tell them I’ve got no interest in listening to a bunch of senators bloviate self-importantly while a nominee recites painstakingly rehearsed catch phrases designed to communicate as little substance as possible. The truth, though, is that this process fascinates me as much as it annoys me. Now that Supreme Court nominations have the potential to be ideological battlegrounds, I'm a reluctant (if understated) observer of the spectacle, devoid of real legal content though it may be. The Supreme Court nomination process is like a train wreck; it's awful, but you can't help yourself from watching it.

How hypocritical is my profession of indifference toward judicial nominations? Very: in the past year I read (voluntarily and with no apparent connection to my work) tomes about both the Thomas and Bork nomination processes. The latter was particularly illuminating, since I was too young to appreciate what was going on at the time, and my take on it was informed mostly by the standard popular narrative: Dems pulled a dirty smear campaign, and it worked to sink Bork.

But in Battle for Justice, Ethan Bronner suggests that the story of Bork’s bork-ing is a bit more complicated. Bronner argues that Bork did himself in more than the standard narrative lets on, and (more interestingly) what did Bork in was his obvious lack of empathy during the confirmation hearings. If this sounds bizarro-familiar to anyone in light of the tenor of the Sotomayor hearings, that’s because it should. I explore the very different roles that empathy played in the Bork and Sotomayor nomination processes in more detail after the fold.

Just as opponents of Sotomayor combed through her past opinions in an effort to substantiate their claims that she’s nothing more than a weepy, agenda-driven loony lefty, anti-Bork forces examined his judicial record to find any case that might make him seem like an unfeeling ogre, coldly indifferent to human suffering (it should be pretty clear by this point that I think both characterizations of the nominees are inaccurate political caricatures).

And the anti-Bork faction found just such a case: American Cyanamid, a West Virginia chemical company, determined that it could not lower the presence of lead in its facility to a level that would be safe for fetuses. American Cyanamid thus restricted women from employment on its premises, though it offered them the option of working there if they underwent voluntary sterilization, an option that was chosen by five women. OSHA fined American Cyanamid for the policy, arguing that offering sterilization to workers violated the prohibition against “recognized hazards” in the OSH Act. The matter eventually came before the DC Circuit, which held that a policy of offering voluntary sterilization did not amount to a “recognized hazard” within the meaning of the OSH Act.

I haven’t read the statute or the interpretation of the "recognized hazard" language in any cases, but at first blush the DC Circuit’s holding seems very plausible. And while the sterilization policy sounds pretty awful, if OSHA doesn’t have jurisdiction to fine the company for it, that has to be the result (plus, it’s not like American Cyanamid got off scot-free; in fact, the women who chose the sterilization option sued the company under Title VII and won). This happened a lot when I was clerking on the D.C. Circuit: a result below seemed pretty unappealing, but courts owe lots of deference to agencies, so on more than one occasion I found myself writing a bench memo suggesting that my judge uphold agency action that I didn’t like very much.

Of course, none of these points about the law’s substance mattered in the context of the political Kabuki that is the nomination process. As Bronner argues, American Cyanamid lent plausibility to the most extreme caricatures of Bork. It allowed his opponents to portray him as the kind of guy who was indifferent to women’s rights and worker’s suffering—after all, he willingly upheld a company policy forcing women to choose between their ovaries and their jobs. As one of the other judges on the (unanimous three-judge) panel said, “They made Bob look like some kind of Nazi scientist in that case. It was inexcusable.” Bronner further suggests that in the actual confirmation hearings, Bork’s responses to questions American Cyanamid epitomized the reason that he was unable to rally any public support. Talking about that and other issues, he evinced indifference to the actual human consequences of his decisions, instead coming off cold and (god forbid) professorial. Bork’s downfall, in other words, was that he lacked empathy.

I don’t need to say much to illustrate why this seems particularly strange looking back from today’s perspective. Since Obama’s unfortunate turn of phrase in introducing her, Sotomayor has been afflicted by the (consummately unfair) suggestion that her sympathies will somehow overwhelm her capacity to reason with any objectivity about the law. For her, empathy is seen as a threat to her judicial capacities—just the opposite of Bork.

What do the very different roles played by empathy mean about the judicial confirmation process? Assuming Bronner’s account is right (and I know that historians of the Bork nomination may disagree; in the interest of full disclosure, Bronner’s is the only book-length account I’ve read other than Bork’s own narrative in The Tempting of America), there are two possible explanations for the divergence.

First: a gender story. The judicial nomination process, at its worst, relies on awful stereotypes to demonize nominees in order to drum up enough opposition to defeat them. For Bork (or any man), this meant portraying him as a soulless authoritarian who was completely indifferent to the plights of any person or group; on this extreme account, his downfall was his lack of empathy. For Sotomayor (or any woman), this means portraying her as dominated by her emotions and unable to apply logic or see objective truth; on this extreme account, her downfall would be her surfeit of empathy. Empathy plays different roles depending on which simplistic gender stereotype a Senator or interest group seeks to exploit.

Second: a changing political landscape story. The judicial nomination process operates against a very different background today than it did in the mid-80s. Then, the impact of the Federalist Society, Reagan/Bush/Bush II judicial appointments, and the rise of Republican neo-populism generally had not yet hit the American judicial and political landscape. We were still at the tail end of the era defined by the Warren Court (even if it had been attenuated by the Burger Court), so there was still room for a jurisprudence that acknowledged a role for sympathy for individual litigants (after all, Justice Blackmun of “Poor Joshua!” fame was still on the Court at that time). The intervening years have seen a sharp right turn in American jurisprudence, and so currently judicial nominees have to present themselves more in line with a conservative conception of ideal judicial philosophy (strict adherence to text, and possibly also history, regardless of whether this is simply a proxy for different substantive precommitments).

Each of the foregoing are simplified narratives meant to give different possible explanations for the puzzlingly different role empathy played in the Bork and Sotomayor nominations. There may be better explanations, and I’d be interested to hear them. Regardless of the explanation, though, it’s interesting to see how empathy has come full circle--from an essential quality whose absence helped sink a nominee to a problematic quality whose presence could sink a nominee--in our Supreme Court nomination process.

On recusal

One of the sillier exchanges in yesterday's hearing came when Senator Kyl argued that Judge Sotomayor, if confirmed, should have to recuse herself from hearing any of the three ongoing cases involving the question of incorporation of the Second Amendment--not only Maloney v. Cuomo, on which she sat on the panel in the Second Circuit, but also the unrelated cases decided in the Seventh Circuit (which agreed with the Second that controlling nineteenth-century precedent says the Second Amendment is not incorporated) and the Ninth Circuit (which held the precedent no longer controlling in light of Heller). Since Judge Sotomayor cannot, under the ground rules that are in play in this farce, actually give a definitive, informed answer to any question, she was unable to explain the law of recusal and expose the inanity of the question. Of course she must recuse from Maloney, but nothing in the recusal statute or in our common understanding of judicial ethics requires a judge to recuse simply because she previously decided a similar (or even identical) legal issue in a factually unrelated case while sitting. She also might have explained that, in order to be avoid being tagged (by Kyl and his colleagues) as a judicial activist, judges consider cases only in a particular factual context; this means there is no connection between the factually distinct cases in the different circuits and therefore no conflict. Otherwise, as Mark Tushnet argues, a circuit judge who interpreted a statute five years ago would have to recuse herself now when a different circuit created a split that the Supreme Court was called on to resolve.

I would use a different example. During the 1996-97 Term, while Glucksberg (the physician-assisted suicide case) was either pending or on its way up to the Court, Justice Scalia gave a speech in which he said something to the effect of "Of course there is no constitutional right to commit suicide." Scalia did not recuse (if he was not asked, there certainly was noise about why he should recuse), a decision I believed then was correct. Can it really be that it is OK for Scalia to state a legal view in a speech but not recuse, but that Sotomayor must recuse when she states a legal view (actually,the Second Circuit did not give a normative view on the incorporation question, but held that it was bound by precedent to conclude that the right was not incorporated) in a judicial opinion on the lower court?

An honest and thoughtful legal discussion might genuinely grapple with whether and when recusal is appropriate on purely legal questions, but that is not what we have here. Kyl was only interested in signaling that Sotomayor was biased against all gun owners, so she should feel pressure to recuse herself from hearing that cause; Sotomayor was only interested in not offending or angering Kyl, so she gave an answer hinting that she might take his suggestion of recusal seriously.

Well, maybe we are making progress. At least no one has suggested (directly) that she might recuse herself in any discrimination case involving women or Latinas.

Update: Sen. Sessions pursued the recusal question again this afternoon, arguing that Sotomayor had prejudged the issue by concluding that the right was not fundamental so as to be incorporated, at least under binding precedent. This seems to be a big talking point for gun-rights advocates--and a disturbing one, if we hope to be able to appoint experienced lower-court judges to the Supreme Court. Did anyone ask Judge Alito if he must recuse from every case involving abortion waiting periods?

Value in hearings after all?

Leave it to Jack Balkin to find some legitimate benefit in the silly showmanship of the confirmation hearings. They are, he argues, not about the nominee, but about the Senators and their efforts to articulate a popular constitutional vision and a sense of what all "reasonable" or "mainstream" judges should believe and to signal that to the judiciary as a whole.

And in truth we have heard some of that (ironically, from a Democrat, I believ Sen. Schumer)--government should win most of the time in criminal cases, government should win most of the time in immigration cases, and most race-discrimination claims should be rejected.

Something else I wish I had written

Dahlia Lithwick perfectly captures everything I think and believe about the Kabuki theatre that is the upcoming Sotomayor hearings before the Senate Judiciary Committee.

Of course, I have agreed to be a guest commentator at ACSBlog this coming week, so I need to find something to say other than "this is a ridiculous charade."

Wargaming Iran

My friend Peter Berkowitz has a fascinating piece in the July 13th issue of the Weekly Standard about the internal deliberations within Israel regarding a strike against Iran's nuclear facilities. Peter was just there for a few weeks schmoozing with a variety of high-level analysts and security officials; the report he offers of these conversations is quite interesting. After the jump I've reprinted a long excerpt regarding the possible military and political costs of a strike, and how they might be mitigated.

Even on the heroic assumption that the attack went exactly as planned, Israelis evaded Iranian air defenses and kept their losses to a minimum, and Iran's nuclear program was set back substantially, Israel would face considerable costs, both military and political.
The military costs might be serious but would be manageable, Israeli experts believe. They envisage six possible responses to an Israeli attack.
First, Iran, lacking a capable air force, might launch Shahab-3 long range ballistic missiles at Israeli cities and probably at Dimona, Israel's nuclear facility in the Negev. Israeli experts are confident that their Arrow anti-ballistic missile defense system, which has performed superbly in tests, would destroy most incoming Iranian missiles. Those that got through would have no more explosive power than Iraq's 1991 Scud missiles, which killed only one Israeli and did little damage to infrastructure. Missiles tipped with biological or chemical weapons are a different story and would provoke a massive and remorseless Israeli response.
At the same time, it is by no means certain that Iran would launch a retaliatory missile strike. Some Israeli experts believe that Israel's capacity to attack decisively nonnuclear Iranian targets, including the power grid and oil refineries, might deter Iran.
Second, Iran might order Hezbollah into action. Since the 2006 Lebanon war, in which Israel killed one third of Hezbollah's fighters, that group has rearmed and upgraded. It has enlarged its arsenal of rockets and missiles from about 12,000 at the outset of hostilities in July 2006 (4,000 of which Hezbollah fired at Israel that summer) to roughly 40,000. In sufficient quantities, these can cause suffering in Israel. But in determining whether to attack, Hezbollah might take into account that Israel learned lessons from 2006 and that, in anticipation of another round of fighting, it has prepared to deliver a knockout blow.
Third, Iran might demand that Syria attack Israel. But given that Syria's conventional forces are no match for Israel's and that it did not respond militarily when Israel destroyed its partly constructed nuclear facility at Deir al-Zour in 2007, there is a good chance that Syria will decline to get involved.
Fourth, Iran might order terrorist cells around the world to attack synagogues, Israeli embassies, and similar targets. This would have the disadvantage for Iran of shifting the focus of international attention from Israel's preemptive air strike to Iran's criminality.
Fifth, Iran might attack American targets in Iraq and foment unrest among Iraqi Shia. This too might backfire, both because it would bring America into the fight and because the community of interests between Arab Iraqi Shia and Persian Iranian Shia is limited.
Sixth, Iran might attack Persian Gulf shipping. But the fragile Iranian economy is at least as reliant as that of any Gulf country on the free flow of oil. And American firepower would end Iran's ability to threaten shipping within days.

The political costs could prove greater for Israel. Whether an Israeli military attack failed or succeeded, and particularly if it succeeded, Iran and the forces of radical Islam around the world would vehemently argue that Israel's unprovoked aggression provided irrefutable proof that nuclear weapons are critical for Iran and for radical Islam, if only for purely defensive purposes. Europeans, moreover, would ramp up their condemnatory rhetoric, proclaiming Israel the paramount threat to international order and demanding that Israel, which took it upon itself to disarm Iran, itself submit to international inspections of its nuclear facilities.

Toukan and Cordesman stumble in asserting that Israel would pay a heavy cost among Arab states. It's true, as they write, that Arab states "will not condone any attack on Iran." Indeed, the Gulf Arabs would probably condemn Israel harshly. Egypt might mobilize troops and send some into the Sinai. And all Arab states would join the rest of the world in calling for the imposition of international sanctions. But that would be for popular consumption. Israeli experts are as convinced as they are of anything that behind closed doors, Sunni Arab rulers would breathe a huge sigh of relief at the destruction of what they regard as the principal strategic threat to their security, a nuclear armed Shiite Iran seeking hegemony in the Gulf and exporting Shiite-style Islamic revolution around the world.

Still, after the costs and benefits are weighed and the enigmas and imponderables are given their due, the Israeli experts come back to where they begin: Only after every other option has been exhausted should a military strike be launched. No one else went as far as former Mossad head Efraim Halevy, who warned that an Israeli attack would "change the whole configuration of the Middle East," producing "a chasm between Israel and the rest of the region" that would have "effects that would last 100 years." By far the dominant view in Israel is the view espoused by John McCain: The only thing worse than the consequences of an attack on Iranian nuclear facilities would be the consequences of a nuclear Iran.

Short of a full-scale military strike, Israel also has a clandestine option involving the use of unmanned aerial vehicles, sabotage of Iranian facilities, and targeted killings. Nor would this represent a new policy. As Ben-Israel, choosing his words carefully, pointed out, Israeli national security experts have been warning that Iran was 5 years away from producing a nuclear weapon for the last 20. Why do you suppose, he asked, it has taken Iran so long? After all, he observed, 60 years ago in the middle of World War II, it took the United States only a few years to produce the first atomic bomb, and no country that has set its mind to it has taken more than 5 to 10 years. Leaving me to draw the proper inference, Ben-Israel emphasized that clandestine operations can delay but will not destroy Iran's nuclear program. And the experts agree that time is running out: Absent dramatic action--by the United States, the international community, Israel, or some combination--Iran is on track to join the nuclear club sometime between 2011 and 2014.

For a variety of reasons--President Obama's attempt to engage Iran may prove futile, the international community may be unable to maintain effective sanctions, the mullahs may hang on to power, an Israeli attack might fail, Israel might elect not to attack Iran--Israelis are compelled to contemplate the structure of an effective containment regime. The challenges are immense. Realists argue that containment based upon the doctrine of mutual assured destruction worked for the 40-year Cold War and will work in the Middle East. But they overlook that in the Cuban missile crisis in 1962 it almost failed.

The realists also rely on a facile analogy. The distinctive variables that Iran and the Middle East add to the mix cast grave doubts on any easy application of Cold War logic. Iran speaks explicitly about wiping out Israel; the Soviet Union never so spoke about the United States. Iran is inspired by a religious faith that celebrates martyrdom and contemplates apocalypse; the Soviet Union was driven by a secular ideology that sought satisfaction in this world. And Iran has no dialogue with Israel; the Soviet Union maintained constant communication with the United States.

These complicating factors make it all the more imperative for Israel, if it wants to construct a successful containment regime, to convey to Iran that it has a devastating second strike capability and is prepared to use it. In addition, it would be useful from the Israeli point of view if the United States were to make Iran understand that America would treat an attack on Israel as an attack on it. And it would provide greater assurance still if Russia were to deliver a similar message.

But because, as Ben-Israel observed, "a guarantee from another nation is not a reliable deterrence policy," the critical element in a successful containment regime would be Israel's own unambiguous and compelling promise of swift and devastating retaliation. The mullahs may reasonably think that if they detonate a bomb over Tel Aviv while possessing nuclear-tipped missiles that can reach London, the Americans might hesitate to attack Iran on Israel's behalf. Therefore, should Iran obtain the bomb, an effective Israeli deterrent, according to Ben-Israel, would require Israel to demonstrate publicly its ability to inflict catastrophic damage on Iran and at the same time remove any doubt about Israel's willingness, in the event of a first strike by Iran, to do so.

But deterring an attack by nuclear-tipped Iranian missiles is only the beginning of the challenges that a containment regime would face. What would be a proportional response if the Iranians or their Hezbollah fighters slipped a small boat within a mile of Haifa and detonated a small nuclear device killing 10,000 Israelis?

And how ought Israel respond to--and containment work against--the myriad other dangers spawned by a nuclear Iran? The moment that Iran announces its possession of nuclear weapons, Saudi Arabia, the United Arab Emirates, and perhaps Kuwait, taking to heart Iran's declared hostility to Sunni Islam and determination to obtain hegemony in the Gulf, will go shopping for their own. Egypt and Turkey will not be far behind. As if a nuclear-armed Pakistan were not worry enough, the vulnerability of these regimes to overthrow by the forces of radical Islam heightens the possibility of the world's most dangerous weapons falling into the hands of many of the world's most dangerous actors.

Furthermore, once the Middle East went poly-nuclear, it would be only a matter of time until a suitcase nuclear bomb fell, leaked, or was placed into terrorists' hands. Even before that, radical Islamists throughout the Middle East--particularly Hezbollah and Hamas--would receive a tremendous psychological boost from a nuclear Iran and be emboldened by their patron's nuclear umbrella. A nuclear Iran would further undermine the chance for peace between Israel and the Palestinians and Israel and Syria by tempting waverers in the region, those who had begun to abandon the idea that Israel might someday disappear, to once again contemplate an Israel-free Middle East.

In sum, containment is a grim option. So is a military strike on Iran's nuclear facilities. And relying on prayer for Mousavi and the Iranian people to overthrow the mullahs is no option at all, at least not for the state of Israel, the front line in Islamic radicalism's war against the West. Thus, in the short time left before Israel is compelled by an Iran fast closing in on a nuclear capability to choose between two grim options, Israel's highest priority will be to persuade an equivocating United States, a dithering Europe, and an obstructionist Russia that a nuclear Iran is not just an Israeli problem or a Middle Eastern problem but a problem for the United States and the world.

Options, but not yet freedom: Happy 4th of July!

As someone who received his green card in the mail literally yesterday, I just wanted to take a moment to note that auspicious arrival and wish all our readers a Happy Fourth of July. In three years or so, I should finally be well en route to citizenship (after almost 20 years of living in the US disenfranchised). Of course, that still means I can be easily deported if I misbehave too much in the interim. But now that my status is no longer tethered to my job, I can finally take on that second gig as a Starbucks barista and learn the difference between the latte and cappucino. Enjoy the fireworks tonight and travel safely.

Quick thought on Sarah Palin

This post is explicitly partisan-political, so I know it may be violating our motto.

Last August, I wrote a couple of posts arguing that The West Wing had broadly predicted the rough political, personal, and ideological outlines of both halves of the presidential tickets for both major parties, including Republican VP candidate (social conservative small-state governor included to appeal to an unenthusiastic conservative base and balance a distrusted moderate at the top of the ticket). But I also suggested that "had the show's writers written Sarah Palin as the GOP nominee for vice president they would have been ripped apart by commentators as liberals stacking the narrative deck and making Republicans look unrealistically unserious."

That statement looked pretty good as the election played out in the following two months. After this weekend's events, that last statement is looking even more true.

Haberman et al on Madoff

Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)

The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...

July 3, 2009
NYC
Is 150 Years Appropriate, or Just Silly?
By CLYDE HABERMAN

Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.

In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss’s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.

So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?

For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.

James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. “It prompts in some people a lack of respect for the system,” Professor Cohen said. “Somebody has to be asking, ‘What is that about? What are we really thinking?’ ”

“It’s putting out something that is obviously false and fake to everybody,” he added, “and why are we doing that?”

Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims’ comments and in the “boil him in oil” tone of much of the news coverage.

But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.

Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.

With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?

The dollar value is “a dangerous factor to focus on in many cases,” said Dan Markel, a law professor at Florida State University. “It introduces a variable that is highly contingent on luck and fortuity to drive sentences,” he said, and it may steer the courts away from “considered assessments” of blame and punishment.

RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.

As for the victims’ desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about “a tone and culture that says, ‘Hey, if the victims are really ticked, let’s give them their due.’ ”

That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. “This is a blood lust,” he said, “but it’s a setting in which if ever a blood lust was justified, this was it.” He added, “This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.”

Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.

To Professor Gillers, it’s no longer about Bernard Madoff, or even concepts like retribution and deterrence. “We’re making a statement to ourselves about the kind of people we are,” he said, “and what we will not accept.”

Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View

At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis.  Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i.e., more choice, or more complex choice, doesn't necessarily make consumers happier), and Joe Grundfest gave a luncheon keynote.  One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  To keep the analogy going, there's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

More on the hedgehog below the fold.

One of my most treasured Suffolk colleagues has suggested that I am a hedgehog, in the sense of the Greek saying (appropriated by Isaiah Berlin) that the fox has many clever ideas, but the hedgehog has one big one.  My big one (such as it is) is placing the canard "thinking like a lawyer" into the broader category of how people make sense of the world.  (This comes, I think, from spending so much of my professional life as a lawyer not surrounded by other lawyers.)  Nothing provokes this kind of reflection like great calamities, whether they are oceanic or financial tsunamis.  In a nutshell, the question is how we assess what happened against two very different kinds of "oughts":  (a) the normative "ought" of our sense of the way a just world should work, and (b) the descriptive "ought" that a scientist imagines when she comes up with a hypothesis of explanation that has yet to be borne out by experiment.  My working thesis is that thinking like a lawyer - somewhere between advocacy and truth-seeking - gets this all jumbled up.  What lawyers do mostly is look backwards and assess cause-and-effect in a particular way, and make implicit (and not necessary correct) assumptions about predicting the future from what happened in the past.  To put it otherwise, my hedgehog concern deals with difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty. 

The result (how I spent my summer vacation) is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, in which I've argued this is mostly an epistemological crisis - a crisis of faith in science and algorithm as against the ongoing irreducibility of judgment, whether our own or those to whom we delegate it.  In short, it's scary when we thought we had it nailed, and it turns out we don't know what we don't know.  (I apologize for the use of the word "epistemology" but I like it, despite the warning of a good friend that it's a signal of a high "crap factor.")  There's a little something for theorists of all kinds in there, including a critique of Michael Moore's new book Causation and Responsibility (the first extended treatment of causation in the law since Hart and Honore), Adrian Vermeule's Judging Under Uncertainty, and Richard Posner's A Failure of Capitalism. 

A Real Thriller

NB. Back to the front...

I can’t think of any law school who could pull this off singlehandedly, but a group at the College of William and Mary managed quite a feat on April 19 – a world-record number of people completed the infamous dance sequence en masse from Michael Jackson’s Thriller. I still think that’s one of the coolest videos ever created. Hearing Vincent Price say, “Ya’ll,” is, well, priceless, and John Landis, director of the video, also directed some of the best films of the eighties. What are some of the other best music videos of all time?

 

 

 

Voices from Iran

My fellow Dorot alum, Bari Weiss, from the WSJ oped page was able to elicit some very interesting and powerful reflections from a panoply of voices inside Iran this week. These are on the WSJ oped page today. I should note parenthetically that while my sympathy lies with the challengers to Khamenei and Ahmadinejad, it's not entirely clear to me that Mousavi is a much better option. Thank goodness for the "pesky Zionists"...

'The Fear Is Gone'

  Voices from Iran.

Editor's note: The following are firsthand accounts that were solicited by Journal assistant editorial features editor Bari Weiss. Some were translated from Farsi. Surnames have been omitted to protect the writers.

Don't Accept This Coup

By Kaveh from Tabriz

Ahmadinejad has taken revenge on the students of Iran during these violent days. The regime's aim is to damage universities, since they are the first base of change, movement and protest.  I live in the dorms at Tehran University. I was asleep when Basij militiamen entered my room early Monday morning, demolished everything and started beating us. A man with a long beard broke my notebook and said: "It is destroyed, this book that you were using against Islam and Ahmadinejad."

They beat students more when they saw posters of Mousavi in their rooms. And they carried big knives and guns. They also attacked the women's dormitory next door. The Supreme Leader calls us rioters, but I want to ask him: How can sleeping women in their beds be rioters? Is this the Islamic justice he believes in? President Obama's speech was good; he says that he will support us. He also said that nations must decide the fate of their countries by themselves. I agree with him, but now we don't have any power to change the situation, so we need help and attention. We ask the president not to accept this coup d'etat.

Marching to Freedom Square

By Alireza in Tehran

There is something in the air in Tehran these days. We remain afraid, but we also dare to speak.

I left my home in Tajrish along with my family at 3 p.m. to head to the protest on Monday. We knew that people were supposed to gather in Enghelab [Revolution] Square at 4 p.m. and march toward Azadi [Freedom] Square. From Gisha Bridge onwards, we saw people walking. Cars were blowing their horns and people were flashing the victory sign. I also saw a group of about 20 militiamen with long beards and batons on motorbikes.

My hand was hanging out of the taxi window with a little green ribbon -- the color of the reformists -- tied around my finger. One of the militiamen told me to "throw that ribbon away!" When I refused, 15 people attacked me inside the car. They beat me with their batons and tried to pull me out.

My wife and my daughter who were sitting in the back seat cried and held me tight. I also held myself tight to the chair. As they tried to shatter the car windows the driver went out and explained that he is just a taxi driver, we are just his passengers, and he hadn't done anything wrong. After about five minutes they left us alone.

Soon we joined the crowd at Enghelab Street. What I saw there was the most magnificent scene I have ever witnessed in my life. The huge numbers of people were marching hand-in-hand peacefully. There were no slogans being shouted. Hands were held up in victory signs with green ribbons. People carried placards which read: silence. Young and old, men and women, rich and poor were marching cheerfully. It was an amazing show of solidarity. I was so proud.

Enghelab Street, the widest avenue in Tehran, was full of people. Some estimated that there were one to two million people there. As we marched, we passed a police department and a Basij base. In both places, we could see fully-armed riot police and militiamen watching us from behind fences. Near Sharif University of Technology, where the students had chased away Mahmoud Ahmadinejad a few days before, Mir Hossein Mousavi (the reformist president-elect) and Mehdi Karrubi, the other reformist candidate, spoke to the people and were received with cries of praise and applause.

My family and I had put stickers on our mouths to represent the suppression of the regime. Other people carried signs. One quoted the national poet Ahmad Shamlu: "To slaughter us/why did you need to invite us/to such an elegant party." Another made fun of the government's claim that Ahmadinejad won 24 million votes: "The Miracle of the Third Millennium: 2 x 2 = 24 million." Others just read: "Where is my vote?"

When we finally arrived at Azadi Square, which can accommodate around 500,000 people, it was full. We saw smoke coming from Jenah Freeway and heard the gunshots. People were scared but continued walking forward.

Later, my sister told me that she saw four militiamen come out from a house and shoot a girl. Then they shot a young boy in his eye and the bullet came out of his ear. She said that four people were shot.

On my way home at around 2 a.m. I saw about 10 buses full of armed riot police parked on the side of the road. There were scattered militiamen in civilian clothes carrying clubs patrolling the empty streets. And in Tajrish Square I saw a boy around 16 holding a club, looking for something to attack.

At Ahmadinejad's "victory" ceremony, government buses transported all his supporters from nearby cities. There was full TV coverage of that ceremony, where fruit juice and cake were plentiful. At most, 100,000 gathered to hear his speech, including all the militiamen and soldiers.

We reformists have no radio, no newspaper, and no television. All our Internet sites are filtered, as well as social networks such as Facebook. Text messaging and mobile communication were also cut off during the demonstrations. And yet we had hundreds of thousands, if not millions.

The state-run TV station has announced that riot police will severely punish anybody that demonstrates. Ahmadinejad called the opposition a bunch of insignificant dirt who try to make the taste of victory bitter to the nation. But his remark was answered by the largest demonstrations ever.

Older people compared Monday's gathering to the demonstrations of 1979 which marked the downfall of the Shah's regime. They even said that this event was larger.

Democracy is a long way ahead. I may not be alive to see that day. With eyes full of tears in these early hours of June 16, I glorify the courage of those who have already been killed. I hope that the blood of these martyrs will make every one of us more committed to freedom, to democracy and to human rights.

Women on the Front Lines

By Negin in Tehran

Friends from all over the world call my cellphone nonstop to make sure we're safe. The connection is either cut or so bad that we have to guess what the other person is saying. But the other day one call was very clear: My mother was wondering if I could help her with her computer. She recently joined Facebook and can't stand the fact that her favorite site is filtered.

She's stopped complaining that my father follows the news day and night. If they're not outside in the middle of the city, my parents are both glued to the television.

Until a few days ago most people believed that this protest was just the voice of suppressed students and youngsters. But now we know this isn't true. "No fear, no fear: We are together." This is what we heard today from millions of people from different generations in Tehran.

The number of people that participated in the demonstration surprised everyone, but what has fascinated me is their variety. At the beginning I thought this was going to be a fight between the lower class and the middle class. What I saw on Monday changed my mind completely. I saw many women, young and old, covered head-to-toe in black chadors shouting and chanting among the demonstrators and joining the young girls who were sitting on the ground in the middle of the street to stop the Basij militia from walking inside the crowd.

That image will never be wiped away from my mind. The women on the front line with their loose colorful scarves had opened their arms, ready to be killed, while others were beaten by the Basij on the side of the road.

People want to be heard and supported by the rest of the world. They were sending messages to the West with their cameras. They were calling on Obama and Sarkozy to demand that the Free World not recognize this government. I saw a few women shouting: "Now it's your turn to support democracy and human rights."

"The fear is gone. Nothing seems to be an obstacle anymore. They can filter all the Web sites and shut down the Internet, SMS service, and mobile phones, but they cannot shut our mouths." This is what I hear all the time.

Late at night everyone wants to share their experience with others. Telephones don't stop ringing. Sara, my girlfriend, called me half an hour ago. She had heard gunfire near her house and had seen bloodied people. Although she was panicked and needed to talk to someone, she hung up the phone to go onto her roof and shout. Within a few minutes I heard my neighbors shouting "Allahu Akbar" (God is great) from their balconies as well.

I remember how sometimes I used to be irritated by the loud prayer call which starts with the same phrase, Allahu Akbar. Now this phrase has turned out to be the most beautiful one.

After a while I called back my mother to help her with her computer problem. She didn't answer. Perhaps she is on the roof too.

This Government Is a Lie

By Soudeh in Tehran

I have never seen such a huge number of diverse people protesting in Iran. People are really angry and refuse to be patient. Ahmadinejad's government challenged our honor. How can we trust anything when the government perpetrates such a big lie?

They don't have pity on anyone. Some of the police cannot speak Farsi. I saw one of them beating a man as he cursed in Arabic. People say they are from Hezbollah.

These men barge into homes and threaten people by calling their families. And they are savage against peaceful demonstrators.

Hospitals are full of people injured by the Military Guard, yet the Supreme Leader of Iran called us seditious. We just want the right to a real vote.

This is the first time an American president did not interfere with Iran's situation -- and it's a good thing. In the past, U.S. support for the protestors led the Iranian government to punish the people more, accusing them of being spies for or taking money from the U.S.

But I think Obama must hear the message of the protests: Ahmadinejad's government is a lie.

A Grenade Exploded At Our Door

By Shahin in Tehran

It was about 1:30 a.m. when I heard windows and doors on our street being smashed one after another. My parents had gone to sleep an hour earlier and I was surfing the Internet to see the latest reactions to Monday's demonstration of Mousavi supporters.

The people from our neighborhood who protested in the streets had already gone back home, so I was scared for them.

The smashing sound came closer and I could hear that my family's apartment door was being attacked. I was really frightened because I had heard that the people who were breaking into houses at night were the plainclothes police who support Ahmadinejad.

I was pacing around my apartment when I heard a massive explosion that woke up everybody in our apartment complex.

I rushed downstairs in the dark with my neighbors as our complex was being attacked. One of them said "Man! They exploded a grenade just few feet from me. Can you see the blood dropping from my fingers? I can barely hear anything." An old woman on the first floor said the plainclothes forces broke the front porch, knocked on some doors and left.

We learned that the sounds of windows being broken were coming from three neighboring apartment complexes and garages. My injured neighbor had gone to check the source of the sound just when the grenade exploded.

In the morning, I checked out the damage myself and took pictures of smashed cars, windows and doors. I also found some bullet casings left in front of our house. I quickly posted them on Facebook where I received lots of comments from others who had the same experience. One of them commented "Yours was just 23 cars. How about our four-story parking garage that now looks like a junkyard?!"

Mousavi's supporters wanted the crowd to stay calm and stage a peaceful demonstration, so as not to give Ahmadinejad's supporters a reason to resort to violence.

State-run TV asked everybody to gather in Vali-asr Square to protest against Mousavi's supporters who the government accused of rioting late into the night. Mousavi's supporters planned on having their second peaceful demonstration in Vali-asr square on Tuesday but cancelled it right after this TV announcement. But despite the announcement, I saw a huge crowd protesting either on foot or in their cars all the way up Vali-asr Street, Tehran's longest street. People are enraged by the lies.

As an optimistic young Iranian who voted in all the presidential elections since 1997, I feel strongly that all those who voted for anyone but Ahmadinejad were insulted badly. I believe some in the ruling elite have come to realize that supporting Ahmadinejad was not worth an uprising in every city.

I hope that the Guardian Council can fix this through a recount or void the whole rigged election.

It's Like an Invasion

By Setareh in Tehran

In the past few days, I've participated in several rallies. During all of the protests, plainclothes militiamen would enter the crowds and manipulate people into dispersing by telling them that if they stayed the security forces would shoot them.

All satellite signals have been jammed, SMS texting has been cut off since election day, and land lines have been disrupted. Though it takes about 20 minutes to download Yahoo's Web site in Tehran, in other cities the Internet has been completely shut down.

The regime is also using psychological warfare to keep people in their homes, calling protestors "hooligans" and constantly warning parents to keep their sons and daughters inside so they don't get killed.

But we are nonviolent. It is the Basij who attack protestors and set cars on fire. They do this so that the security forces have a pretext for using harsher tactics on the demonstrators. The security forces have knives, body armor, tasers and mace. It's as though Iran is under invasion by a foreign government. They have killed many university students in the past few days.

Some Thoughts on the Book-Writing Sentence

As promised earlier in the week, I thought I'd share some reflections on the unusual sentence Judge Urbina imposed on an offender convicted of lying to the feds: namely, that he must, among other things, write a book about what he's done.  I did an interview with Ashby Jones over at the Wall Street Journal Law Blog, the substance of which is posted here, and which I'll reproduce after the jump.

If you’ll indulge us, we’d like to circle back to a story that broke earlier in the week that we touched on briefly here. In short, on Monday, a federal judge in Washington, D.C., Ricardo Urbina, sentenced a former senior pharmaceutical executive to write a book.

According to the NYT story on the sentence:

Earlier this year the executive, Dr. Andrew G. Bodnar (pictured), a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine.

The NYT story notes that it’s not the first time Judge Urbina has issued an unconventional sentence. In 1998, he sentenced a Washington lobbyist who had pleaded guilty to illegal campaign contributions to write a monograph and distribute it to 2,000 other lobbyists.

But we got to wondering about Urbina’s sentence — whether it has broader historical precedent, whether the punishment is likely to serve its purpose, and whether it’d be a good thing to see more of these creative sanctions. With that in mind, we checked in with Dan Markel, a law professor at Florida State University and one of the people behind Prawfsblawg, which has long been part of our daily reading. Markel has written extensively on the topic of punishment and is the author of a new book, along with Jennifer M. Collins and Ethan J. Leib: Privilege or Punish: Criminal Justice and the Challenge of Family Ties.

Hi Dan, thanks for taking the time. Judge Urbina’s sentence on Monday struck us as strange and provocative. Are there historical precedents for sentences like this?

Certainly there have long been alternatives to incarceration, some of which have been creative and designed to induce guilt or moral education; others that are simply meant to publicly shame and humiliate.

However, even with shaming punishments, when they were used in the colonial or post-colonial era, there were often points at which a community would hold a sort of reintegration ceremony, in which the person held in public scorn would be welcomed back into the community and told, in so many words ‘Go, and sin no more.’ I think that aspect of reintegration has been lost, though, in most modern shaming punishments.

And are these types of punishments coming into favor — or has their day passed?

I think they have had a bit of a resurgence since the early 1990s, but the evidence is largely anecdotal. Back then, some academics like Yale’s Dan Kahan became proponents of shaming punishments because they — rightly, in my opinion — thought judges should find alternatives to incarceration for many nonviolent offenders. Shaming got a quite a lot of exposure more recently in 2004, when the Ninth Circuit, in a case called Gementera, upheld, despite a strong dissent by Judge Hawkins, a trial judge’s imposition of a supervised release condition in which a mail theft offender was ordered to stand outside a post office with a sandwich board sign that read ‘I Stole Mail; this is my punishment.’ That case is now in a lot of criminal law casebooks.

Since then, at least in the academy, there seems to be a bit less support for shaming sanctions.

Okay. So what exactly is “shaming” about Judge Urbina’s sentence?

Actually I see this sentence less as a “shaming” sentence and more as what I’ve referred to as a “guilting” punishment. A guilting punishment is morally educative and is focused on having the defendant realize what he or she did wrong and why it was wrong, rather than exposing him to public ridicule or humiliation, which is a signal feature of shaming punishments. Writing a book can basically happen in private and there’s no risk that a lynch mob will form to threaten the state’s monopoly on punishment here.

Judge Urbina doesn’t seem to be requiring that the book be circulated widely — it seems to just be a long essay written to the judge, the point of which seems to be to make the defendant think about what he did and why it was wrong and why this type of act — lying to the government about something that could affect public health — shouldn’t be tolerated.

It seems like there’s a continuum between “shaming” and “guilting” punishments, right?

Sort of; I think there’s a continuum of how severe shaming can be, but I think guilting is different. Certainly the wide exposure associated with the imposition of a guilt punishment can incidentally shame someone, but that’s not really the point of the sanction imposed here.

Judge Urbina’s sanction here strikes me as more “guilting” than “shaming.” After all, there’s no state authorized attempt to hold the defendant out for humiliation and no invitation of the public to participate in that scorn the way there was in the Gementera case. In my scholarship, I’ve taken a strong stance against shaming punishments, largely because often they strike me as having to do more with vengeance than with impartial retribution. Judge Urbina’s punishment doesn’t strike me as particularly vengeful.

So you’d be okay with seeing more of these types of “creative” punishments?

I would, but with some caveats. First, I’d have some systematic concerns. I wouldn’t want to see the benefits of these types of sentences conferred only on people of a certain race or class who seem especially able to the court to be able to engage in book writing while poor folks are presumed not to have anything interesting to write or say. In other words, I wouldn’t want to see the “book-writing” sentence given only to those defendants who own a certain level of literacy or certain gifts of language.

Second, remember that there’s an important rationale behind the initial passage of the federal sentencing guidelines: namely, to try to reduce unwarranted disparity such that people who commit similar crimes are treated roughly similarly. I think if you see a proliferation of these types of creatives sentences, you run the risk of imposing sentences that vary too much across cases. That concerns me a little too.

But here, it doesn’t strike me as that much of a problem, partly because [Dr. Bodnar] was charged with a misdemeanor. I think it makes more sense to allow more discretion to judges when it’s a non-severe offense and the punishment imposed is relatively modest too.

And what about the punishment itself — having to write a book? Does it strike you as an effective punishment?

Standing alone, no, I don’t think it’s particularly persuasive. My concern with it, standing alone, is that the punishment might not be sufficiently condemnatory. Punishments for wrongdoing need to condemn, and to condemn, sentences need to register as setbacks to both the defendant and the public.

However, I think the sanction, once it’s coupled with the other measures Judge Urbina imposed [two years' probation and a $5,000 fine], that could be sufficiently condemning. And that could be useful. My concern is that you could undermine the very point of a punishment by just allowing someone to write a book, from both deterrence and retributive standpoints.

So you’d generally be okay with these types of punishments, so long as they’re applied fairly and consistently and achieve the goals associated with sentences?

Right. I’m supportive of guilting punishments when used smartly and fairly. We definitely use incarceration too much and for periods of time that are too long, especially for people who don’t pose physical harm to the community.

That said, if these are going to pick up, they need to be calibrated. The sentencing commission needs to weigh in on this, at least to ensure there’s a check on what judges are doing. Congress, too. Both need to be working in concert with the federal judiciary.

Very interesting stuff, Dan. Thanks for taking the time.

My pleasure.