PrawfsBlawg

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."

Court of appeals reverses injunction on pharmacist regs

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.

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.

Osborne and due process

Two weeks late to the party, but a few thoughts on District Attorney's Office v. Osborne, in which the Court declined to recognize a right under due process (procedural or substantive) to have DNA testing performed on evidence held by the state.

First, in answer to Dan's question: Going into the argument, I thought that any right should be asserted through § 1983, not habeas. The right to test DNA did not necessarily go to the validity of the conviction or sentence or suggest that the claimant was being held in violation of the Constitution and laws. It was a stand-alone right to gather information from the state, information that might (depending on the result of testing) form the basis for a state post-conviction challenge or trial-court motion to vacate conviction; it was not Heck-barred (and forced into the habeas framework) because simply obtaining access to DNA did not necessarily imply the invalidity of the conviction. That depended on the next step of testing the DNA and what the tests revealed.

The majority assumed § 1983 was a proper vehicle and jumped ahead to reject the underlying constitutional right. Justice Alito addressed the § 1983 issue in a concurring opinion for himself and Justice Kennedy (Justice Thomas did not join this portion). Alito (apparently quoting from the plaintiff's allegations in this case) framed this as a Brady claim--an argument that the state had failed to turn over exculpatory evidence. By definition, the failure to turn over exculpatory evidence necessarily implies the invalidity of the conviction and Brady is a classic and common habeas issue. And it did not matter whether that failure occurred prior to trial (the paradigm) or after conviction.

It was a strong opinion. But ultimately I think Alito was wrong to treat this as a basic Brady case. Osborne did not know if the evidence he wanted access to was exculpatory; he believed it might be, but much depended on the outcome of testing he then wanted to perform. This is not typical Brady material, which usually is evidence that on its face tends to exculpate--the names and statements of witnesses who corroborate the defendant's alibi, information showing bias of key witnesses, misidentification in a line-up, or (to keep it in the DNA realm) the results of DNA testing suggesting the defendant did not commit the crime. In fact, there is no constitutional duty on a prosecutor to turn over information unless it appeared to have a tendency to exculpate.

Whether DNA is potentially exculpatory cannot be known until after testing and the whole basis for the claim was to get the opportunity to perform the test. This was more like typical discovery, the hunt for information to analyze and then decide the next step. And, it seems to me, that extra step before the DNA evidence could be used to challenge the underlying conviction makes a difference as to the appropriate litigation vehicle. Unlike Alito, I believe the Court's 2007 decision in Wilkinson v. Dotson (holding that a challenge to the procedures used in parole-eligibility determinations were cognizable under § 1983 because the finding of a violation only meant a new parole hearing, not earlier release from custody) controlled. Where the asserted right was merely a first step towards a possible future argument against the validity of conviction or sentence, § 1983 was the appropriate choice.

Second, the Court's refusal to recognize a due process right shows how far we have come (for better or for worse, I would suggest for worse) from the Warren Court. Several year ago, Corinna Lain argued that the Warren Court was not as counter-majoritarian in the criminal procedure realm as the myth suggests; instead, by the time the Court got around to recognizing certain constitutional rights, most states already had done so. Walter Dellinger makes a similar point yesterday on Slate's annual Supreme Court Breakfast Table (read the whole multi-part exchange) in talking about when the Court will expand substantive due process: the Court was willing to invalidate sodomy laws on due process grounds because by 2003 3/4 of the states had eliminated such prohibitions, while the Court was unwilling to invalidate prohibitions on physician-assisted suicide in 1997 because zero states allowed the practice. A similar story can be told about Loving v. Virginia, where by 1967 Virginia was one of only a few retrograde states that still had such laws on the books. All reflect the same basic point: The Court constitutionalizes due process protections only after similar, sub-constitutional protections have been widely (but not unanimously) popularly established, the basic function to pull stragglers along and imposing some national floor of rights.

Forty-six states, the District of Columbia, and the United States all provide some form of DNA testing. This is precisely the situation in which the Court might use due process to bring the four recalcitrant states in line and set the floor. Instead, Chief Justice Roberts emphasized that most states had taken steps and the stragglers, including Alaska, were taking the issue under consideration. There was no need, in other words, for the Court or the Constitution to step into the matter. Justice Stevens somewhat picked up on this point in his dissent, emphasizing that the state of Alaska had not explained its refusal to turn over evidence for testing here (Osborne had agreed to pay for it himself, so cost was not the issue) and suggesting that substantive due process would, at a minimum, force the state to explain its refusal.

Ricci, politics, and the appellate process

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event. [Update: Or not so much].

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.

Jurisdiction in the Court

While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits.

The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue. In other words, whether relief should be granted is distinct from whether the court has the authority to hear the case. At several points, in explaining why the NMCMA had jurisdiction, Justice Kennedy dismissed government arguments by insisting they went not to jurisdiction, but to the substantive question of whether the petitioner was entitled to a remedy. The Court did not discuss the distinctions or announce principles for separating them, but it was good to see it acknowledging they are different concerns and treating them as such.

The second was Republic of Iraq v. Beaty, which dealt with questions of the waiver of Iraq's sovereign immunity from suit under U.S. law in federal court. The Court treated immunity as a jurisdictional question and held that the withdrawal (after the fall of Saddam) of the waiver (for being a state-sponsor of terrorism) of Iraq's immunity deprived the district court of jurisdiction over claims by victims of torture under Saddam's regime. This is unfortunate, because I continue to believe that sovereign immunity is better understood as a substantive limitation than a jurisdictional one. The point of sovereign immunity is that a foreign nation is not subject to any duties under U.S. law (at least not through a private lawsuit) and injured individuals have no rights under U.S. law as against foreign sovereigns; Iraq cannot be liable under U.S. law for its conduct, regardless of where the claims are brought. Those are purely questions of substantive merits. I will continue to push this as a normative point in several upcoming articles (particularly as to religious organizations), but the argument just became harder to make descriptively.

Discovery, burdens, risks, and Iqbal

The defense-attorney-bloggers at Drug and Device Law have a detailed post in favor of the Court's new approach to pleading in Twombly and Iqbal (H/T: Civil Procedure Prof Blog) (see my discussion of Iqbal here, here, and here) (see other criticisms here and here).

The point of departure between D&DL and critics of the new pleading regime (including me) ultimately comes down to placement of litigation burdens and risks.

Looser pleading recognizes that plaintiffs often lack critical information at the outset of litigation and need discovery to learn key information that shows the merit (or lack thereof) of their claim. But it burdens the defendant with costly and wide-ranging discovery. D&DL argue that Conley ceased to be workable with the broad changes to the discovery rules that began in 1966 and 1970 (the procedural flipside to my argument about the expansion of substantive federal law post-1938). Looser pleading produces so-called Type I errors--morecases get past pleading into discovery, at cost to the defendant, only to be found to lack merit.

Stricter pleading relieves defendants of the burden and expense of discovery in cases in which there likely is no there there, as indicated by the complaint. But this burdens (unfairly, in my view) the plaintiff with 1) the often-impossible task of framing a detailed complaint when she only can get the necessary evidence through discovery and 2) the risk of dismissal when she is unable to provide the necessary detail in the pleading (this is what was going on in Twombly and, potentially, Iqbal). Stricter pleading produces so-called Type II errors--potentially meritorious cases are deterred or dismissed with the plaintiff never having had a chance to fully explore the evidence in support of the claim.

So the point of departure is at the policy level. Do we prefer Type II errors imposing burdens on plaintiffs or Type I errors imposing burdens on defendants? And the answer will not be value-neutral. But the presence of a non-neutral policy question highlights two final points.

The first goes to a different aspect of the evolution of law, and thus procedure, since 1938. Seventy years ago, parties were largely interchangeable. A person or business entity was as likely to be a defendant as a plaintiff. So big business saw less of a need to push a defense-favorable view of the procedural rules, because a business might find itself as a plaintiff enjoying the benefits of notice pleading. There is far less interchangeability today--corporations and government are almost always defendants (and repeat defendants at that) who know they will almost exclusively enjoy benefits from a defense-favorable pleading regime.

The second goes to a procedural criticism of Iqbal and Twombly. To the extent the choice between the old Conley system and the new Iqbal/Twombly system is a policy determination, it should not come about through a decision in a case, but should be established through the notice-and-comment, increasingly democratized and political, Rules Enabling Act process.

Trial experience, pleading, and the Supreme Court

One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.

On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.

Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.

How Smart Do You Really Have To Be?

Note: I have edited the title of the post to better reflect its intent and content. --HYL

Okay, so I was a little off.  Stunningly wrong, actually.  This is why they don't pay me the big bucks.  Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks.

I want to ask the prawfs community a question. 

We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more.  (As I argued in my previous post, I think she obviously does.)

Lurking in the background of this debate is an unstated assumption that being a Supreme Court Justice is an extremely difficult job that requires intellectual capabilities that only a few of even those most obviously qualified possess.

My question is simple: how smart do you really have to be to be a good Supreme Court Justice?  And, as a follow-up, exactly what is it about Supreme Court judging that requires this level of brilliance?

After 15 Years of Excellence, Sonia Sotomayor Suddenly Became a DUMB BULLY--But Only Just Before the Last Election!

Scandal!  Scandal!  I smell a possible scandal in the air!

After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court.  It turns out that in every year that Judge Sotomayor has been reviewed, lawyers have literally raved (and I am using their words, not mine) about her legal skills (and have been very respectful, if also a bit fearful, of her judicial temperament).

Until suddenly, in 2007, and shortly before Obama was elected, everything changed on a dime, and she suddently became a "Dumb Bully."  (The most recent Almanac is 2008, so she only became dumb during the last election season, when--as a number of people are starting to think--it looks like some people who haven't wanted her on the Supreme Court may have been doing something scandalous... 

Until I can figure out how to upload scans to this blog, let me just type out the 2006 reviews, which are typical of the other years:

2006 Lawyer's Evaluations (Full Set). 

Lawyers raved about Judge Sotomayor's skills. 

"For a still young woman, she is truly incredible.  She is just a very, very smart, capable jurist."

"She's brilliant."

"She is a Supreme-Court caliber jurist."

"She is truly brilliant."

"I don't think we have anyone better."

"She really believes in the judicial system and tries her absolute best to make sure that it works for litigants.

She is hard working, tireless, brilliant, and just the absolute best."

"She deserves straight As across the board."

"She's very impressive."

"She is very, very smart.  She really picks up on issues."

"She has an excellent legal mind, but she also has a lot of street smarts."

"She has a fast mind and she is capable of making very intellectual arguments.  At the same time, she recognizes the need for the practical side of the law."

"She is outstanding."

"She is very good."

"I like her. I have been very impressed."

        Lawyer's Described Sotomayor as being businesslike in judicial temperament.

"She does not put up with any guff."

"She works hard, and she expects lawyers to be as prepared and hard working as she is.  She can lose patience if they aren't performing up to her standards."

"She is very exacting."

"She's not a good old boy, but she is decent enough to lawyers."

"She has my respect."

"Her demeanor is fine."

"She is judicious."

"She lets you know who the judge is.  She does expect lawyers to defer to her."

"She is very courteous, judicial and businesslike."

"She is impatient with lawyers who are not prepared."

         Lawyers said that Sotomayor is fairly active at oral argument.

"She is very active and well-prepared."

"You have to be on your toes with her, because she will ask very pointed questions."

"She is another one of those judges who will start questioning you about things that were never raised in the case before."

"You can practically see the wheels in her mind turning."

"She asks very well thought out questions."

"She's pretty engaging."

"She is very deferential to Judge Walker."

"She is very quick."

        Lawyers said that Sotomayor is impartial in civil matters.

"Truly, I don't see her tilting one way or the other."

"She doesn't seem to favor either side inappropriately."

"I've found her to be very fair."

"She has always treated both sides fairly."

"I really have no idea what her politics are."

"She is not predisposed toward either side."

"I think she is fairly neutral"

        Lawyer's praised Sotomayor's written opinions.

"I got a good opinion from her, so I think her writing skills are fine."

"Her legal ability is excellent."

"She is very bright.  She is very competent.  She gets to the meat of the case quickly."

"Her opinions are excellent.  They are well-written and reasoned.  They are easy to read and understand."

 

 

 

Justice Souter to Retire

So says AP, NPR, and Bashman.

So who is his replacement going to be? I call Sonia Sotomayor of the Second Circuit--Latina woman, 55 years old--or Diane Wood of the Seventh Circuit. Comments open, as always.

In-Class Exercise: Guess My Politics

A while back I posted about the question of whether law professors ought to disclose their political convictions in class. There was a good discussion in the comments. As I wrote then, my personal preference has been to be plain about my beliefs rather than dance around them. 

It turns out that if disclosure is my goal, I'm doing a lousy job.

Some weeks ago in my Media & Entertainment Law class – in conjunction with a unit on political side-taking by the press – I decided to do a different sort of feedback exercise. I asked students to scratch down on a blank sheet of paper what they figured my politics were, and to hand it back anonymously. When students were done, I wanted to discuss the results right away. But since I didn't want to stop class to read all the papers, and since couldn't ask for a show of hands and preserve anonymity, I asked a volunteer to survey the class opinion while I was out of earshot.

I walked out of class, and then I came back about a minute later. When I opened the door, I had never seen my students having so much fun. They told me to go away – they were still discussing it.

When the verdict came back, I was told that students were all over the map. There was a weak consensus that I am socially liberal but fiscally conservative. A very animated class discussion then ensued.

After class, going through the written responses, I found that a few students thought I was conservative, a few thought I was liberal, many thought I was somewhere in the middle, and one thought I was a narcissist for undertaking the exercise.

I think that last student had a point. In doing something like this, there is a real danger of veering off into self-aggrandizing irrelevance. On the other hand, I think there is something healthy about students being invited to try to deconstruct, criticize, and even pigeon-hole their teacher's viewpoint. Especially since I do roughly that to many of the authors of our assigned reading.

But the real benefit to doing the exercise was what I learned about my own teaching. Like watching yourself on videotape, there's an opportunity through this kind of feedback to learn some surprising things.

The most shocking comment I received was from a student who wrote, "I think [you are] conservative (more or less) on family values in re: marriage and children, i.e. one man, one woman ... I think you're rather neutral on the subject of homosexual/lesbian marriage, i.e., you wouldn't go advocating for or against it, but maybe you rather would prefer it not happen."

I was floored by this. I am a strong advocate of marriage equality. And it concerns me greatly that students might see me as privately squeamish about gay relationships or marriage. It has inspired me to post a GLBT "safe space" sign in my office.

At any rate, I think it was a worthwhile undertaking. Given the imposition on the class and the attenuated relation it has to the subject matter, however, I think I'll hold off on doing it again for at least a few years.

Stimulus Blogging II: Can Legislatures "End Run" Governors?

Some recent news reports have mentioned that governors who earlier said they would reject stimulus money now have "backed off" and certified that they will take federal money.  But, as I described in my first post, "certification" is only one of two steps states must take to receive much of their stimulus money.  For most of the important grants, including education and unemployment, the states also have to apply.   Gov. Sanford (SC), for instance, maintains that he won't apply for education dollars, and several other governors say they won't apply for unemployment (and possibly TANF) money.  Reports are that the state legislatures are going to try to "make end runs around their governors and accept the money."  Can they do that?

Whether they can turns on the question I flagged in my first post: we know that state legislatures can "certify," but can they also "apply" in place of the governor?  South Carolina's attorney general has opined that the answer is no (and Prawfs guest Tommy Crocker agreed).  I think that the AG is about half right on educational dollars, and not at all right about unemployment.  Here's why.

First, let's recall that ARRA (i.e., the stimlus legislation) requires governors to certify that they'll take federal money, but also allows state legislature to certify if the governor doesn't.  The SC AG argues that this certification power is insufficient to empower the legislature, acting alone, to obtain federal money. For instance, the education provisions of ARRA state that "the Governor" has to submit certain information to the federal Dep't of Education before federal money can flow.  SCAG argues that this application language would be meaningless if the SC legislature could trigger federal money simply by certifying.

But SCAG simply assumes that the South Carolina legislature can't apply as well as certify.  True, the statute says "the Governor" must provide the required information.  But if the certification clause allows a legislature to stand in the governor's shoes for certification purposes, why can't it also fill his/her role for application, too?  That seems to me at least a plausible way to synthesize the two clauses; otherwise, the clause permitting the legislature to certify doesn't accomplish much, other than to obtain some small pots of money for which no application is needed.  So, at a minimum, I think a federal agency authorized to implement the statute could opine that legislative application would be sufficient, and stand a good chance of obtaining some kind of judicial deference to that view. 

For other provisions, such as the unemployment money, the argument that legislatures can apply is even stronger, because the statute does not mention "the Governor."  Instead, the section simply requires an agreement between the Secretary of Labor and "any State," ARRA section 2002, or for other provisions the "option of a State," ARRA Section 2005(b), or the "request" of "each State," ARRA section 2101(a)(3)(A).  Since ARRA specifically uses the term "governor" elsewhere, there is a strong implication that where that word is not used, action by the governor is not required.  So the legislature or its designee would be able to apply for unemployment and TANF benefits.

There might be an argument, though, that these readings empowering the state legislature to act should be set aside because of constitutional concerns.  That is the interpretive move made by the Congressional Research Service memo I mentioned last time (as well as by a second memo that I think hasn't been made widely available, but which I have, if anyone is interested).  CRS, following some earlier suggestions by Jack Balkin, thinks that empowering the legislature might violate the anti-commandeering aspects of the 10th Amendment.  I've already said a bit about that point on Jack's blog, but I'll follow up on the avoidance point here a little later this week. 

TRO issued in Pennsylvania case

Order here. (H/T: Jeff Spangler, commenting on an earlier post).

Nothing surprising or detailed. The DA argued Younger abstention, which the court rejected for the obvious reason that there is no pending prosecution. The court was admittedly cursory in the merits analysis, emphasizing that this was just a motion for a TRO and the only issue is a reasonable likelihood of success on the merits. The court did not seem to recognize that the "retaliation" would come only if the prosecutor actually filed charges, not from the mere threat.

I wonder how long before the DA makes this go away quietly--this cannot be good for him.

On moral panics and the definition of sexting

I do not plan to be the "sexting blogger" here at Prawfs. But John Parry of Lewis & Clark points me to this story from Oregon. A 17-year-old took a cell-phone video of another girl (then 16), who was drunk at a party, engaging in a sexual act with a dog owned by a 30-year-old man in the room; the filmer showed the video (which lasts for a bit less than one minute) to a male friend, who sent it to his phone. It is not clear whether that person disseminated the video. Arrest warrants were issued for all three of them and the girl and her male friend both have been charged with child pornography, which carries stiff mandatory minimums in Oregon.

I seriously doubt this case qualifies as "sexting." True, the word is a largely meaningless media-created one. But the paradigm that has been established (as described in the Oregonian story) is girls taking pictures/videos of themselves and sending/posting them between one another or to boyfriends. This story seems quite different, because it appears the subject of the video was drunk and the story does not make clear the connection between filmer and subject. But simply referring to this as sexting solely because it involves minors and a cell-phone video fails to capture how this departs the core definition. The word sexting is intended to describe something that is different than child porn (because it is self-depicting, consensual, non-exploitative, and, arguably, harmless). If so, the word cannot be used too broadly or to try to cover situations that do not share the elements or core characteristics of the paradigm.

The Oregonian story engages in this error, probably in an attempt to spice the story up by placing it in the sexy national obsession du jour. The piece cites statistics of teens and twenty-somethings who say they have sent or posted nude/partially nude photos of themselves. And it cites critics who insist "sex-crime laws were never meant to apply to teenage girls sending naughty photos of themselves to boyfriends, for example." (emphasis mine). What the author ignores, of course, is that those statistics and criticisms have absolutely nothing to do with this case, because the filmer was not posting a video/photo of herself or sending it to her boyfriend.

Actually, this is how moral panics pick up steam. We define some objectionable category of conduct broadly (often overly and inappropriately so). In doing so, we make the conduct appear far more pervasive than it really is and potentially more dangerous than the core really is. Policymakers might use the Oregon case as grounds to go after everything they can label as "sexting," even if the cases really are dramatically different.

All that said, we should be more thoughtful about legal categories. This may not be "harmless" sexting, but I am not sure it qualifies as child pornography, either. There must be other options. We can say the filmer did something wrong, without calling it child pornography and subjecting her to the mandatory minimums and sex-offender-registration requirements that come with it. But that may be less a problem of sexting and more a problem of a different moral panic over child pornography and child abuse.

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

Sexting, Prosecutors, and § 1983

Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school.

In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts. The pictures then were being traded phone to phone among male students in the school district, many of whose phones were confiscated by the school and turned over to the DA. The DA threatened to bring felony child pornography charges against twenty teens (the three girls who had been photographer and 17 who had the pictures on their phones--although not the boy(s) who initially mass-disseminated the photos) unless they agreed to probation and to attend a "re-education" program, in which they would do homework and try to “[g]ain an understanding of how [their] actions were wrong,” “[t]o gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “[i]dentify non-traditional societal and job roles.”

The 17 possessors took the deal; the three girls brought a § 1983 action against the DA, alleging that he retaliated against them by knowingly threatening to bring frivolous felony charges against them for exercising their First Amendment rights in posing for the photos and in refusing to engage in compelled expression by participating in the re-education program. (H/T: Josie Brown at First Amendment Blog, via Bashman). The ACLU of Pennsylvania and Seth Kreimer of Penn Law are representing the plaintiffs.

Some interesting things.

1) At one point, the Complaint alleges that the DA told one of the plaintiffs' parents that "the girls were accomplices to the production of child pornography." If true, this is one of the most incoherent legal assertions ever. The reason for child porn laws--and for child pornography as an unprotected First Amendment category--is the conclusive presumption that the children photographed are being exploited, which conclusively presumes that they are too young to consent. So if they could not consent to their actions, how can they be accomplices to that act, since accomplice liability typically requires intent (I believe)? Is this really what the county's chief prosecutor came up with?

2) There is a lurking Younger problem (isn't there always?). The prosecutor could halt the federal lawsuit tomorrow by filing charges against the girls (the Complaint alleges that the DA has "temporarily deferred" prosecution to allow the girls more time to research and decide on their strategy). The complaint was filed on Wednesday; there have not yet been any "proceedings of substance on the merits" in federal court, so a quickly filed state criminal action would trigger abstention. The plaintiffs make a preemptive move, alleging several times that the threatened charges are blatantly meritless, thus any prosecution is brought in bad faith, a recognized (although extremely narrow) exception to Younger. It raises the question of how weak a charge must be qualify as brought in bad faith. Interestingly, the conduct challenged as unconstitutional is the threat to prosecute First Amendment protected activity, although the relief sought is an injunction prohibiting the DA from initiating prosecution. So that probably defeats the argument that the injunction would not interfere with state proceedings.

3) On the other hand, I wonder how strong the claim is on the merits. This case looks different than the typical anticipatory First Amendment action, which says "There is a risk that this state law will be used against me and such an application of the law would be unconstitutional." Here, the argument seems to be that the plaintiffs' conduct does not violate Pennsylvania child porn laws--as a statutory matter, not necessarily because such application would be unconstitutional--and that the threat of such a statutorily invalid prosecution violates the First Amendment. But are there recognized First Amendment (or any other) limits on threatening to bring charges under a facially constitutional statute? And can a federal court enjoin a prosecution not because the law (or its application) is unconstitutional, but simply because the state statute would not be violated on the facts?

4) There is no claim for damages, presumably because the DA enjoys prosecutorial immunity (a fact emphasized to show no adequate remedy at law). We could question whether the threat to charge and pre-charge negotiations are prosecutorial acts or more part of the pre-charging investigative process to which prosecutorial immunity does not attach. But the conduct described in the complaint sounds like plea bargaining, which is core prosecutorial. On the other hand, the plaintiff's real constitutional objections are to the meritless harassment from the threat of prosecution--which is better remedied by damages for the harassment than by an injunction halting future actual prosecution.

Keep an eye on this one.

Justice Jackson on Umpires and Judges

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List (Link: http://new.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett/JacksonList.stj) and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.” When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century. “Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”

Jurisdiction, Connecticut, and Freedom of the Church

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.

On eyewitness testimony

Tonight's 60 Minutes featured a two-part story on the weakness of eyewitness memory and witness testimony, including demonstrations of some of the ways that memory can be wrong.

It also presented two good, paradoxical thoughts on how trials (and the law of evidence) operate. On one hand, the legal system is designed to (and perhaps does a decent job at) sorting those who tell the truth from those who lie (in the sense of deliberately misrepresenting) and who have motive to lie; it does not do as good a job of exposing honest mistakes or errors. On the other hand, the system could not function without eyewitness testimony.

Part I (focusing on one case of mistaken eyewitness testimony):

Watch CBS Videos Online

Part II (focusing on recent psychological studies showing the many problems with memory and eyewitness testimony):

Watch CBS Videos Online

They found a plaintiff and it still didn't work

During election season, I wrote about the various attempts to get a federal court to declare Barack Obama ineligible for the presidency because he is not a natural-born citizen, all of which were speedily rejected on standing and/or political question grounds. Heading the charge was a lawyer in Pennsylvania named Philip Berg, who was the named plaintiff in an unsuccessful action in the Eastern District of Pennsylvania that drew a lengthy, careful opinion denying standing. It seems that Berg, along with an Arizona attorney named Lawrence Joyce, have been behind the scenes for other, similarly unsuccessful claims.

One question at the time was how anyone could have standing, given the undifferentiated interests at stake--my argument was no one would have standing. Guess I was wrong.

In a decision last week, Judge Robertson of the District of the District of Columbia held that Gregory Hollister did have standing. Hollister is a former Air Force officer who claims that, because he could be called back to active duty and because he owes a duty of fealty to the Commander-in-Chief, he needs to be certain that Obama is a properly eligible President whose orders must be obeyed. Hollister asked the court to treat this as an interpleader action (an action in which a stakeholder facing multiple competing claims deposits the stake with the court for resolution of the competing claims). The argument was that Hollister's potential military duties to obey orders were a valuable res that could be "deposited" with the court for a determination as to where (or with whom) those duties lay.

The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.

Three things I liked about the decision. First, although the court found the claim frivolous, it nonetheless found jurisdiction and rejected the claim on the merits, rather than (as too many courts do) holding that frivolousness deprived the court of jurisdiction.

Second, the court issued an order requiring attorney-of-record John D. Hemenway to show cause why he should not be sanctioned under Rule 11 for filing a claim for an improper purpose and for filing a claim not warranted by existing law. Although I generally am not a big fan of Rule 11 sanctioning activity, especially against civil rights and constitutional plaintiffs, at some point courts need to try to deter politically-motivated-but-obviously-legally-defective lawsuits such as this one. I was surprised not to see a move for sanctions against Berg in his initial suit, given that the lack of standing should have been obvious to anyone who has taken Fed Courts. Maybe this will put an end to this nonsense (at least until 2012).

Third, it is notable that the court aimed its sanctions at the Hemenway (a member of the D.D.C. bar), but not at Berg or Joyce. Although both are lawyers and both signed filings in the case, neither was admitted pro hac vice. The court said that "[t]hey are agents provocateurs –- and any attempt to sanction them for misuse of the public and private resources that have had to be devoted to this case would only give them a forum to continue their provocation." In contrast, the court went after the attorney they needed to get into court, thus (hopefully) deterring members of the Bar who would like to keep their reputations from taking on cases such as this. We only can hope.

More video looking bad for the police

Update: Because a commenter asked, shameless promotion of my article is permitted.

I unfortunately came across this one too late to include it in my paper on video evidence. This is a video of King County (WA) Deputy Paul Schene in November 2008: slamming a young female arrestee against the wall, flinging her to the ground by her hair, sitting on top of her, and taking two swings at what appears to be the area of her head. The apparent trigger was the girl flipping her shoe off her foot and out the cell door, where it allegedly hit Schene (the video does not show).

Schene is being prosecuted for misdemeanor assault. The video was released following a request from the Seattle Post-Intelligencer under the state open records law and over the objection of Schene's counsel, who insisted that the video "does not tell the whole story" and will inflame public opinion, making it difficult for Schene to receive a fair trial.

A few things about video evidence and civil rights to consider:

1) In my article on video and civil rights, in arguing for a First Amendment liberty to record events in public, I did not account for a different First Amendment issue--the extent to which police-recorded video will become an increasing focus of open-records and FOIA requests. My guess is that the dramatic nature of video evidence attracts more public attention in cases where it is present, which will make the media even more likely to seek access in more cases under state laws and/or the First Amendment.

2) This is another good example of video that is graphic and looks horrific to most people who see it. It likely will prompt a settlement in the certain-to-follow § 1983 action against the officer and the County. And it will play well with the jury in the criminal trial, so I would expect Schene to be convicted. But the video has enough gaps in it that a slow, careful analysis, in light of other testimony, might expose some holes--we do not see where the shoe goes when it flies out the door, we cannot see the girl when Schene has her on the ground, and we cannot hear what is being said.

I am not suggesting that anything that might have been said or done justified his use of force, which seems excessive in any event (especially tossing her to the ground by her hair); my viewing of the video leads me to conclude the force was excessive. But the video does not give the complete context and therefore cannot tell the entire story of the events in there. It should not be used as the sole source of evidence to the exclusion of all else. The mistake that is made is to treat video as if it does tell the whole story, ignoring surrounding contextual evidence to the contrary, and often ignoring ordinary procedure.

3) Ask this question: Should the girl get summary judgment on her excessive force claim? If the answer is no, it must be because some other evidence comes into play that counters the apparent force of the video. And if so, it should work in the other direction, with a video arguably favoring a defendant on a defense motion for summary judgment.

4) Dave Hoffman posts about the unique link among cultural cognition, summary judgment, and video and makes a great point that I just added to my paper: The unique problem of cultural dissensus in video cases is that more people will have seen (and, I would add, drawn conclusions about) video, meaning more people will be offended by a summary-judgment grant labeling their culturally grounded views unreasonable.

5) This case is unique because the officer was caught acting (arguably) unconstitutionally by the department's own station-house camera of which he at least should have been aware. This seems different from the (increasingly common) situation in which an officer acted wrongfully, only to be caught unexpectedly because a bystander happened to have a camera. I am reminded of Ocean's Eleven (the George Clooney version). A recurring theme is that in the casino "someone is always watching" because there are cameras everywhere, except in the room they take a guy for a beating. Apparently Deputy Schene has not seen the movie--or did not heed its lessons.

USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)

USA Today’s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many “excesses” of the Bush team.  We’re reminded that such decisions are ultimately political, not legal.  Let’s look at the hodgepodge of points USA Today’s editors made, as these points represent conventional political wisdom. (Unfortunately, Rep. Conyers’ own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats’ calling Bush Administration misdeeds “excesses.”  That’s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It’s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a “commission” to look at my “excesses,” rather than a jury.

USA Today said investigating the alleged abominations would pose “a divisive distraction” from “rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.” Echoing President Obama, the editors said we should look forward, not backward.  I’m reminded of the workaholic who toils long and late to avoid introspection.

If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ….

Where’s the principle here - would balmier times change the editors’ minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq’s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, “Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush’s post-9/11 decisions were simply his best judgment about how to keep the nation safe.” That’s reassuring, but it begs the question: Can we know motive without even a “justice lite” investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government’s (proclaimed) ends justify the means. 

If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, “The fact is the Bush administration’s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.”  I don’t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless “excesses.”

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what’s the point?

The USA Today concluded, “Congress’s attention is better devoted to solving problems than to exacting retribution.”

If I am ever accused of a crime, I will say that government’s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn’t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn’t have so many crises in the U.S.A. today.

The USA Today’s political arguments are unconvincing. The editors' tentative support for only a limited investigation into “one or two key unresolved questions, such as whether torture actually produced information that saved lives,” seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let’s rise above partisanship and investigate.

Bring back the filibuster

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

• Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

Empty bi-partisanship

Paul Krugman captures why, at least as to the stimulus debate, the talk of bipartisanship is vacuous. Responding to David Broder's insistence that the bill needs "the best ideas from both parties," Krugman said:

You see, this isn’t a brainstorming session — it’s a collision of fundamentally incompatible world views. If one thing is clear from the stimulus debate, it’s that the two parties have utterly different economic doctrines. Democrats believe in something more or less like standard textbook macroeconomics; Republicans believe in a doctrine under which tax cuts are the universal elixir, and government spending is almost always bad. Obama may be able to get a few Republican Senators to go along with his plan; or he can get a lot of Republican votes by, in effect, becoming a Republican. There is no middle ground.

Absolutely right, at least if we are talking about substantive, as opposed to procedural, bipartisanship. If the GOP believes the bill has too much spending and not enough tax cuts (because that is what their economic principles suggest) and Obama believes the balance is about right (because that is what his economic principles suggest), there is no where to go--no way to create a bill with the best ideas of both parties.

Note that none of this blames Republicans over Democrats. While I share the Democratic economic views, others do not and maybe they are right and we are wrong. However we got here, there is an impasse. And my point is there is nothing wrong with this state of affairs. It is why we had an election three months ago in which the public put one side in power. It is why we will have another election in 21 months that will serve as a mini-referendum on this whole debate. I am not trying to argue that substantive bipartisanship is bad. I am trying to suggest that it may not be possible in some situations and to blithely insist that it is the inherent absolute good, in a situation of fundamental disagreement, misunderstands the situation and focuses on the wrong debate.

I think I am turning into a parliamentarian supporter of a parliamentary system.

Quick Update:

In one of his series of sit-downs yesterday, Obama told Charles Gibson that he is not interested in "bipartisanship for bipartisanship's sake." I think too many people, especially in the media, are.

Misunderstood legal quotations

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?

Against bipartisanship II: Procedure or Substance?

As predicted in my anti-bipartisan screed, media and GOP sources are blaming Obama and the Democrats for the failure of bipartisanship that simply left House GOP no alternative but to vote unanimously against the stimulus bill and that, looking at Sen. Kyl's comments, may leave Senate GOPers no choice but to do the same next week. The substance of the comments is the same: Obama and congressional Dems are not acting in a bipartisan manner because all they do is listen to GOP ideas, allow votes on them, and accept some of them (but not all, because Dems fundamentally disagree with Republican economic theories), but they do not implement all (or even most) of what the GOP wants and instead go with the proposals that the Dems like. These criticisms of Obama fit very well with my earlier statement that bipartisanship is what happens when the other side agrees with everything I want to do.

On further thought, though, I believe we actually might be able to resurrect some notion of bipartisanship by tracking this issue onto the ancient divide between procedure and substance. What renders the debate over bipartisanship incoherent is the failure to distinguish procedural bipartisanship from substantive bipartisanship--betwen bipartisanship in the process of lawmaking and bipartisanship in policy outcomes. Procedural bipartisanship means both parties participated in an open process, had an opportunity to be heard, exchanged ideas, perhaps made some compromises on provisions, had good-faith discussions, allowed the minority to be heard, and allowed minority ideas to be raised and considered in the legislative process. I think we often do and should have procedural bipartisanship--and from everything I have read, we are having it on the stimulus package.

Substantive bipartisanship means the outcome is one that both parties support. We rarely have true substantive bipartisanship, at least outside of divided government. At some point there must be a vote and a decision. And if the majority is unwilling to adopt all of the minority's governing principles and ideas and vice versa, a "bipartisan" result is impossible or at least unlikely. Of course, if everyone agreed on the appropriate principles to apply and the appropriate policy measures to enact, they would not be members of different parties. So when I argued earlier that we should not care about bipartisanship, should stop talking about, and should stop trying to attain it, I had substantive bipartisanship in mind.

Unfortunately, we as a culture do not care about or speak in terms of process, only substance, so the yammering about bipartisanship will always be about substantive bipartisanship. Regardless of how open the process was and how willing Obama was to listen, in the end, because he pushed for and got a bill that adhered mostly to his Democratic principles and not to Republican principles (that, by definition, he does not accept), he did not act in a bipartisan fashion. But the expectation that he essentially should have governed like a Republican when he is a Democrat is precisely what makes substantive bipartisanship so ridiculous, meaningless, and ultimately distracting from the broader goal of enacting the best public policy.

It is this talk that must stop.

Against bipartisanship

A modest proposal that is going to sound like a bit of a screed:

We need to stop, once and for all, talking about "bipartisanship." Drop the word and the concept from the political vocabulary. Stop treating it as something desirable or essential. And especially stop talking about it as intrinsically valuable as an end in itself (often more so than substantive governing). Like too many other terms used in modern politics ("judicial activism," any one?) bipartisanship has no substantive meaning, functioning instead as a pointless and distracting sound bite that the media likes to throw around, but that does nothing but confuse the conversation. Actually, the analogy works: If judicial activism is nothing more than a decision with which you disagree, then bipartisanship is what happens when the other party agrees and goes along with what you want to do.

For starters, the term effectively tags all policy disputes with the pejorative "partisan," suggesting petty disagreements. But the parties diverge on policy issues because each party is built around some governing philosophy; there is a reason someone becomes a member of one party or the other. When Democrats and Republicans disagree, it is not simply due to party affiliation simpliciter; it is because their beliefs and approaches to governing are different.

Giving everyone the benefit of the doubt, the entire House GOP caucus did not vote against the stimulus package simply because they are Republicans and the President and House majority are Democrats. They voted against it because they adhere to a set of economic principles and policies that are different than those of the President and the majority (in simplest terms, business and corporate tax cuts v. government deficit spending). The House GOP wanted to enact a stimulus package to revive the economy, but they wanted to enact one they believed would work--that is, one that followed their economic principles. Why should they be expected to vote for a policy that does not adhere to their principles?

At the same time, Obama did not fail to accept all the GOP requests (e.g., dropping the payroll tax credit for non-income-taxpayers) not because they came from Republicans, but because they ran contrary to the economic ideas he wished to implement. Why should the Democratic President and the Democratic majority draft a proposal that adheres to Republican principles?

Given this genuine divide, negotiations and compromise only go so far and it is foolish to demand otherwise. Obama and House Democrats removed some spending and added some tax cuts to the package during legislative bargaining. But it was not enough to garner any Republican support. Why? Because Republicans fundamentally disagree with the core, more-or-less Keynesian economic principles underlying the bulk of the Obama proposal. They wanted even more tax cuts and even less spending--in other words, they wanted a package that looked more like what would come from a president and House majority that shared GOP economic ideas and principles. Which, it seems to me, is perfectly fine. But this President and this House majority have their own principles, principles that won handily at the ballot box two months ago. They wanted a legislative package that adhered to their economic philosophy At some point, one set of ideas must prevail; typically, at least in a time of unified government, it will be those held by the legislative majority and the President. Which, again, is perfectly fine.

The problem is that we have fetishized bipartisanship into something more important than governing. Obama is going to get the public policy he wants and that he believes will successfully kick-start a sick economy. (And I hope it works, for a variety of reasons). But it is going to be seen (and reported in the media) as a "defeat" because he was not able to achieve the outcome in a "bipartisan" manner. At some level, of course, this is his fault by making it such a public priority to get the minority on board. The result is a game that ignores the really important point--enacting effective policy. All the talk instead focuses on the pointless, unnecessary process of seeking bipartisan approval and of "working together to help the American people." And the story after-the-fact is that Obama failed to do so.

The minority can (and I would suggest did here) take advantage of the bipartisanship fetish by demanding more and more concessions to try to get a bill that looks like what they would create in the majority. Failing that (because they never were going to get that), they can and did vote against the package, on legitimate policy grounds (as well, probably, as some political/electoral calculation). But the bipartisanship fetish means they can go on TV and wave the flag of bipartisanship to say "hey, we were willing to work with the President, but he refused to work with us, so we were forced to vote against it, but it was his fault." Again, of course, "working with us" seems to mean implementing more of our policy preferences and governing the way we want him to, even if it runs against the ideas he wants to pursue and that got him elected. Alternatively, Obama and the Democrats could do the same thing when the minority fails to join the compromise--take to the airwaves and accuse the minority of acting in a partisan way and being "obstructionist" and not working for the "best interest of the American people." Again ignoring that the departure is precisely over differences of views as to what is in the best interests of the American people.

Just stop wasting time and energy. George Bush had it right (a sentiment I rarely utter), at least where a president has strong legislative majorities that want to work with him. Govern the way you believe best and go for what you believe you have the political and popular support to pull off--do what you (and your legislative allies) believe is in the best interests of the public. But now own the policy--if it works you get the credit, if it fails you get the blame. And the other party (with its competing philosophy) eventually gets a crack at governing. Also, stop accusing the minority of being partisan (thus somehow in the wrong) when it disagrees with and does not support your policies. As for the minority party, offer your own proposals, explain why what you offer is better, and see if you can get the public to support you now (public opposition could slow down the President and his legislative majority--e.g.., social security privatization in 2005) and in the next election cycle. But do not complain that the majority failed to "reach out" or that the majority did something wrong by not adopting all your ideas and policies.

What this sounds like, of course, is a parliamentary system. The executive has a legislative majority that can largely do as it pleases until at some point the party wears out its welcome and is replaced in power. The minority, or opposition, party has been operating a "shadow" government and offering its own ideas (and challenging the majority's ideas) all along. And we expect the opposition party to, you know, oppose. There is no expectation, much less demand, for bipartisanship or the appearance of bipartisanship.

This is not to say that negotiation and compromise, including compromise across party lines, never should be part of the political equation. The president may be of a different party than the majority in one or both houses. The legislative majority may be much smaller. The president may have lost the support of even his own party in the legislature (what happened, up to a point, as to S-CHIP during the 110th Congress). And the Senate, with its supermajority requirements, is a different animal. The minority sometimes may decide it is to its benefit to come along.

But consensus across party lines and broad, multi-party legislative (as opposed to popular) support should not be treated or discussed as an end in itself. AWe all would be better off if we stop unthinkingly treating it as if it were.

Harmless error, unconstitutionality, textualism, and the oath kerfuffle

Two (typically) good Balkinization posts on the oath controversy, one from Jack Balkin and one from Mike Paulsen. Paulsen is trying to explain why the misstated oath does not matter. But he makes the argument in the course of distinguishing what the Constitution requires from the consequences of failing to abide by the text.

I and others have noted that no one takes the presidential oath precisely as written, because everyone adds his name and "so help me God" and omits "(or affirm"). And if those additions/omissions do not matter (a point on which everyone agrees), we have to figure out why transposing the word "faithfully" matters. Paulsen argues, and I think I agree, that the question is whether the deviation (whether addition, deletion, or alteration) "matters," whether it "detracts" from the substance of the oath; presumably that question focuses on whether the deviation from text changes the meaning of the oath. Adding a name or "so help me God" does not; neither does omitting "(or affirm)" (which would make the oath incoherent); and neither would inserting random mumbo-jumbo in the middle of the oath. Transposing a word also does not change meaning--"faithfully" still is an adverb modifying "execute." Replacing a word might not matter if it did not change meaning (say a Jewish President said "Hashem" rather than "God"), but it would matter if it did change meaning (Paulsen uses the example of replacing "faithfully execute" with "probably execute").

Here is where Paulsen is doing something different. Most people (myself included) argue that because the transposition did not change meaning, just as adding "so help me God" does not change meaning, the Constitution was not violated by the oath at the Inauguration. But Paulsen argues that it did violate the Constitution (because the focus is purely on the text and the way the oath always is inconsistent with the text); in fact, every President since Washington has, formally, violated the Constitution by adding "SHMG" and their names. But, because meaning has not changed, the unconstitutionality (the "constitutional error," if you will) is harmless; it does not matter and does not require any remedy.

So in asking whether transposing "faithfully" renders the oath invalid, the question is not whether the oath was unconstitutional; it was unconstitutional, as has every other oath since 1789. The question is whether the unconstitutionality matters. Interesting take that matters for the broader Originalism/Textualism debate (which is what Balkin was taking on in his post), although not necessarily for putting the current oath nonsense to rest.

How specific the oath?

A lot of smart, sane people are saying that, purely in an over-abundance of caution, Obama either has or should retake the oath in private. Obama spoke all the words contained in the Clause. The argument seems to be that, because the Oath Clause contains quotation marks, it requires that the President recite the precise words in the precise order. Even if this is just an over-abundance of caution, those recommending the do-over seem to acknowledge, implicitly, there is a colorable argument there that at least could make for genuinely troubling litigation or conflict.

But why is it even is a colorable argument that a do-over could be necessary (even putting standing and political question issues to one side)? The problem with the quotation-marks argument is that Obama (and just about every President before him) added language to the oath, namely "so help me God," which does not appear in the Oath Clause. Can it really be that the President can add extra words if he wishes, so long as the required words are spoken in the correct order? That seems like a very odd reading of the Clause, partially formalist and partially pragmatic. That also leaves open the possibility that Congress could provide by law for an oath that added new language--maybe the "I take this obligation freely, without any mental reservation or purpose of evasion" language that appears in the oath for all other federal officers and employees--so long as the constitutional language remained as it appears in the Constitution.

One way around the "so help me God" add-on language rests on the fact that the President must "swear (or affirm)" and swearing presumes an oath to God. So when a President chooses to swear rather than affirm, as everyone does, "so help me God" is implicit in swearing, so making it express is not really adding new or additional language to what is quoted, which must be recited verbatim.

Maybe. And if the only requirement is that the quoted words be spoken, regardless f order, we could hypothesize the extreme example of a President who utters the words of the oath backwards or in completely random order such that it makes absolutely no grammatical sense--has he truly taken the oath?

Update, 10 p.m. E.S.T:

Obama retook the oath with Roberts at the White House this evening. (H/T: Orin). Of course, as some of the comments to Orin's post show, some people may now try to argue that everything Obama did between noon Tuesday and Wednesday evening is not valid or binding.

Now playing in the non-law-prof blogosphere

A couple of non-law-prof things worth taking a look at.

Noam Scheiber in the New Republic considers the stylistic and pedagogical differences between Harvard Law School and Yale Law School and how their different law school experiences affect the respective governing styles of Barack Obama and Bill Clinton.

[ed: My bad: Paul (as always) beat me to it on the Scheiber piece--and I basically share his take.]

TPMCafe is running a special feature on Barack Obama's America, discussing what this administration must do to bring the nation back from the past eight years in areas of liberty, equality, community, opportunity, and democracy. Several law professors are playing, including our own Steve Vladeck. Some good stuff there.

Who was president while Perlman fiddled?

At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p.m. that Chief Justice Roberts and Barack Obama stood up, Roberts asked "Are you prepared to take the oath, Senator?", Obama answered "I am," and they began (by the way, it was Roberts who read the oath wrong initially).

So who was President between noon and 12:04? The Twentieth Amendment states, referring to the noon end of the current President's term, that "the terms of their successors shall then begin." This seems to suggest that the transition happened at noon and the oath is a formality. And if you look at the blog of the re-designed White House web site, it announced Obama-issued proclamations time-stamped 12:01 p.m. And CNN flashed on the screen that Obama had become President as of noon.

But the oath is prescribed in Article II to be taken "[b]efore he enter on the Execution of his Office." Does this mean the oath is necessary for someone to become President? Or does it mean that Obama was President but could not do anything until he had taken the oath? If so, why did Roberts call him Senator before issuing the oath and not refer to him as "Mr. President" until after the oath was completed? And does all this mean that Joe Biden was acting president for four minutes? And what of Robert Gates?

Finally, what are the odds that someone files a lawsuit arguing that Obama did not properly take the constitutionally prescribed oath of office?

Update, Tuesday, 6:15 p.m.:

Orin Kerr and Mike Dorf weigh in. And the prevailing view seems to be that he became President under the Twentieth Amendment at noon and had to take the oath before he could "enter on the execution" of his office--in other words, before he could wield any executive power. And I think I agree with that, otherwise this all becomes unnecessarily complex.

This reading also has some historical support. As Sonja noted in the comments, there was 90-minute gap between President Kennedy's death and Johnson taking the Oath on Air Force One (with Jackie Kennedy famously standing alongside him, still wearing the bloodied clothes from the assassination). And apparently the first Congress believed George Washington became President on March 4, 1789 (the day the first Congress attempted to convene), although he did not take the Oath until April 30.

Finally, one other interesting tidbit (courtesy of my FIU colleague Tom Baker, the real con law expert here): Presidents Jackson, Lincoln, and (Andrew) Johnson at various points argued that the Oath was not even necessary to exercise presidential power (that came with the job), but that the Oath gave them additional powers, namely in the realm of constitutional interpretation, beyond ordinary executive power they would have absent the Oath.

Oh, one last thing: From what I am reading, it is beginning to sound like whom to blame for the botched oath is a political litmus test. But I give Orin the final word on this.

Exclusionary rule and qualified immunity

I do not know enough about exclusionary-rule doctrine. But a question for those who do: Is the long-term upshot of Herring v. United States that the Court brought the exclusionary rule into line with qualified immunity: An officer's reasonable mistake (of law or fact) about some underlying issues (here, whether the arrest warrant on Herring was still outstanding) that justified an unconstitutional search or seizure does not trigger the exclusionary rule despite the constitutional violation. Tom Goldstein at SCOTUSBlog argues that this is where the language of the decision will lead. But that analysis sounds identical to the qualified immunity analysis, which immunizes an officer from damages if his underlying understanding of the situation that lead to his unconstitutional conduct was nevertheless reasonable.

Personal information as true threat

Richard posts about a map that same-sex-marriage advocates have created showing names, addresses, and locations of people who donated to the Prop 8 campaign, and points to some discussion about whether this somehow constitutes a threat. The purpose of the map presumably is to enable some type of public shaming, or protest, or boycott against those who supported Prop 8.

The obvious comparison is the Nuremberg Files, a web site run by an anti-abortion group that called for Nuremberg-style tribunals for choice advocates. One feature of the site provided names and home addresses of doctors who perform abortions. The en banc Ninth Circuit upheld a massive judgment under the Free Access to Clinic Entrances Act against the American Coalition of Life Advocates, holding that the site constituted an unprotected true threat.

Now first off, Planned Parenthood was among the worst free-speech decisions of the decade. And although SCOTUS denied cert there, I am not sure it would let the Ninth Circuit expand the threats in a web-based, attempted-public-shaming/boycott/protest case a second time, if it used that case against this map. What is interesting, of course, is that the broad political valences are reversed. Pro-choice groups celebrated that decision, so the irony of it being used against a fellow-liberal cause is plain. So this could be another demonstration to the Left of the folly of abandoning broad conceptions of the First Amendment when the speaker is on the other side politically--it frequently comes back to bite you.

The cases are different, however. The Nuremberg Files site did more than give addresses. It also displayed "Wanted" posters with the names of abortion providers and others. And in listing the names on the site, it crossed out those providers and advocates who had been killed and grayed out those who had been wounded. The latter element, considered in the context of anti-abortion violence (that is, so far, absent in the same-sex marriage debate) was the key and may serve to distinguish that web site from this map, which thus far seems to only provide information.

Fun with process: Who is Terrance Gainer?

Want to sound smart and well-informed about legal and political process at your next cocktail party? Then the name to know in the coming weeks is Terrance W. Gainer.

Who is he? And why do we care?

He is the Sergeant at Arms and Doorkeeper of the United States Senate, the law-enforcement and administrative manager for the body. If, as anticipated, the Senate votes to reject Roland Burris's appointment to the Senate and refuses to seat him, it is Gainer (or officers working for him) who enforce that order by keeping Burris off the Senate floor and arresting him, if necessary. (Gainer, a Chicago native, former Chicago police officer, and official in Illinois government, apparently knows Burris and has been in contact with him to try to avoid a confrontation).

More importantly, if, as anticipated, Burris sues, Gainer will be the defendant. And (although I doubt we ever will get that far) if the suit is successful, it is Gainer who would be enjoined and it is Gainer who would be held in contempt for failing to obey the court's order. And (although I am absolutely certain we never will get this far) it might be Gainer who would be taken to jail by U.S. Marshals (the executive-branch body responsible for enforcing judicial orders) to enforce the contempt citation.

Under the Speech or Debate Clause, members of Congress cannot be sued for conduct taken in a legislative capacity and certainly cannot be enjoined to act or not act in some way in their legislative capacities. In other words, a federal court could not order individual members of the Senate to vote to seat Burris. What a federal court can do is order the responsible executive/administrative officer (the sergeant at arms) to stop interfering with Burris's attempts to take his seat; in other words, stop enforcing the Senate vote excluding Burris and instead to follow the court's order that Burris is constitutionally entitled to that seat and should not be prevented from taking that seat. This creates an odd tug-of-war as Mr. (Sergeant?) Gainer is caught between adhering to the Senate orders he is required to carry out as part of his job and adhering to the judicial order that he is required to carry out on pain of contempt and possible jail.

The strangeness of this scenario lends practical ammunition for those who argue that the Senate has unfettered power to exclude Burris based on doubts about his appointment and that the exclusion is non-justiciable under the Political Question Doctrine. Federal courts do not want to exercise power in situations in which their orders are likely to be ignored or in which the enforcement of their orders would create the sorts of separation-of-powers headaches (and, frankly, unfairness to Mr. Gainer) described.

To the extent those arguments fail, however, Gainer will be the legal (if not political) heart of the dispute, not Harry Reid or the Vice President (current or incoming) or the President Pro Tem. Remember the name.

The future of legislative appointments (Updated)

The pathology that is Rod Blagojevich to one side, we are going through a rare period in which federal legislative appointments (i.e., gubernatorial appointments to fill vacant seats in Congress) are in the public eye. Four seats (NY, Illinois, Delaware, and Colorado) have become vacant simultaneously, something that I would guess never has happened since passage of the Seventeenth Amendment (does anyone know for sure?). And to call the current time a circus does not capture the insanity.

The events in Illinois have been well-documented. In New York, we have one potential candidate actively campaigning for the job, with her strongest apparent qualification being her last name. Meanwhile, we have the governor tossing around the idea of seeking out a "caretaker" or "placeholder" appointee (names being tossed around include Bill Clinton and Mario Cuomo)--someone who will accept the appointment on a promise or understanding that he will not run for the position (thus reaping the benefits of incumbency or name recognition) in the special election. In Delaware, the first idea floated was to appoint the son of the current seat holder. And in Colorado, it appears the governor is going to surprise everyone by appointing an unknown local official--the superintendent of Denver schools, who purportedly has earned high marks for his work with the Denver school system, but who otherwise lacks name recognition, experience running for office or raising money, and legislative experience.

The reportage on these appointments reflects a media (and perhaps popular?) discomfort with the idea of appointed legislators, a sense that appointments are undemocratic and thus somehow inappropriate, demanding strict limits on who can be appointed and how the appointment can be made. Sandy Levinson pointed to one example.

I find this attitude towards appointments unfortunate for two reasons.

First, it ignores that the alternative is no (or unequal) representation for some portion of the public for the period of time it takes to organize and hold an election--anywhere from three months to two years. Since it is hard to imagine a large state (such as New York or Illinois) being able to hold a statewide election in less than three months, eliminating appointments means the People of that state are deprived of their constitutionally guaranteed equal representation in the Senate during that time. Which is less democratic--an appointed representative or no representation at all? I would suggest the latter. And if appointments are the more democratic approach, doesn't it make the most sense to give the governor full reign to select the best available person? And that should include someone who might be willing and able to seek election and continue to serve in the seat. Because while a placeholder appointee will be unable to use the advantages of incumbency in the subsequent election, neither will he be able to bring the experience and expertise he has gained while filling the seat (and at least in Illinois, the appointee will serve until the next scheduled congressional election, meaning until late 2010).

Second, this attitude carries consequences for efforts at ensuring the continuity of Congress in the event of a catastrophic event. I have written and testified on this subject before. What happens if a terrorist attack kills a critical mass of Senators and House members--say only 100 House members and 25 Senators remain? Accepting that so many elections cannot possibly be held sooner than 45 days (and it likely would take closer to three or four months or more), a working Congress can be re-created in the meantime only through appointments.

Of course, appointments only are allowed in the Senate, not the House. I have argued, in writing and in legislative testimony (one time at a hearing alongside Professor Levinson), for a constitutional amendment empowering states to provide for appointments to the House, at least in the case of mass vacancies. Proposals have gone nowhere, however, in part because House members such as Rep. Sensenbrenner of Wisconsin (who chaired the House Judiciary Committee prior to the 110th Congress) believed such appointments, even in an absolute emergency, destroyed the essential democratic character of the House. Given the shenanigans surrounding the latest round of Senate appointments and the emerging attitude towards the appointment power generally, the Sensenbrenner view of House appointments is unlikely to change. And the attitude towards Senate appointments is somewhat poisoned.

But again, consider the alternatives: In the mass-vacancy context the generally recognized alternatives are as follows:

1. there is no functioning federal government to respond to the crisis for a matter of months because only the Senate can be quickly brought up to full strength, but the Senate cannot legislate by itself*, meaning there can be no new legislation, no declarations of war, no funding for various efforts, etc.;
2. there is no functioning Congress, so the executive acts on her own, resulting in what Levinson decries as a "constitutional dictatorship of the Executive Branch";
3. the rump House acts as functioning body so long as a quorum of those living members is present (and we could play a "how-low-can-we-go" on this--what about a rump of 50? 20? 10?)**

So now consider again which is least democratic--a few months with appointed House members or a few months of the alternatives of 1) no working federal government, 2) a constitutional dictatorship of the Executive Branch, or 3) legislation enacted by a body that lacks "representation" of more than 3/4 of the people of the United States? I would prefer a few months with an appointed congressmen. But maybe that is just me.

• But Cf. the various works of Seth Barrett Tillman, who argues in a number of articles that a full Congress now could delegate to a post-attack Congress the power to enact legislation through only one house (the Senate, reconstituted via appointments) in the interim.

** There is an open question of constitutional quorums here. For the moment, I am assuming that a house could, as both presently do, define their quorums as majority of members chosen, sworn, and living, such that a majority of the rump could constitutionally act. If I am wrong in that assumption and the Constitution requires a majority of authorized seats, then we are back to situation # 1 or # 2--no House activity, thus no congressional activity and either no government activity or executive unilateralism until elections can be held.

Updated and Moved to Top: Sunday, 3 p.m.:

On a slightly related point, Stuart Benjamin offers some thoughts on Michael Bennett, the Denver Schools superintendent who will be appointed to the vacant Colorado seat and who was Benjamin's law school classmate. Benjamin says that Bennett's personality is very different from that of the typical politician, suggesting that he might not have run for Senate on his own and only would come into office via appointment. This gets into the question of the relative merit and qualifications of elected as opposed to appointed officials.

This ties to my broader point about who governors should appoint under the Seventeenth Amendment: As I said, I do not like the idea of a "placeholder" appointee who is not positioned to run for the seat; governors should try simply to find the "best" person for the position, including someone who might then run, as an incumbent, to keep the office. And to the extent the temporary appointment produces a good office holder who might have fallen through the cracks otherwise, who then might benefit from experience and incumbency, so much the better.

The significance of defining sport

I have written on several occasions about how to define sport and what qualifies as sport, a common game among “sports-and-____” academics. A frequent response to these posts has been “so what, what difference does it make?” And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf. But, courtesy of Matthew Mitten at the Marquette Faculty Blog, it may have practical import after all.

The Wisconsin courts must figure out whether cheerleading is a sport, and a contact sport at that. A high-school cheerleader who fell and suffered severe head injuries while performing a maneuver sued her fellow cheerleader for negligence in failing to spot her properly. The defendant argued that he is immune under a state statute that eliminates liability for negligence (but not reckless or conduct taken with intent to cause injury) for injuries caused "in a recreational activity that includes physical contact between persons in a sport involving amateur teams." The appellate court assumed that cheerleading was a sport and acknowledged the athleticism involved in cheerleading. And, although the court did not mention, there are high-school cheerleading competitions (often seen at midnight on ESPN 8). But the court held that cheerleading was not a contact sport within the meaning of the statute because physical contact between opponents is not an element of the activity, thus the immunity did not apply. The case now is before the Wisconsin Supreme Court, which heard oral argument last fall.

I am troubled by the appellate court's approach (although not the result) because I think it might have unintentionally eliminated from the scope of the immunity activities that plainly are sports that should be covered by the statute but that also do not typically involve physical contact between opponents. The first example is baseball--not much direct physical contact with opponents, only with objects thrown or hit by opponents. So could I sue the opposing pitcher for a negligently thrown beanball? Could I sue a teammate who did not get out of the way when I called for a flyball? Perhaps plays at the plate or on the base paths, involving potential collisions with opposing players, are common enough that baseball would fall within the statute as interpreted.

OK, what about tennis--it is virtually certain that physical contact with my opponent on the other side of the net is in no way part of the game. But would this mean that I could sue my doubles partner if I am injured when I crash into my him (which, frankly, is more likely than crashing into my opponent) because of his negligence? Would this also would mean that I could sue my opponent if I was injured when he negligently hit me with a ball (e.g., serving when I was not ready)? Or track and field--if I am a long-jumper, I expect no physical contact with my opponent. Could I sue him if he jumped before I had a chance to leave the pit and landed on top of me?

The statute was enacted in response to a 1993 Wisconsin Supreme Court decision arising from an injury suffered during a soccer game, so the legislature had true "contact sports" in mind. And the appellate court emphasized that cheerleading is not a contact sport in that way. But baseball, tennis, golf, track, etc., also cannot be classified as contact sports in the same way as soccer. Now maybe this was intentional and the legislature did want to treat contact sports differently from other sports. But if the legislative concern was about not wanting to chill participation in amateur (especially high school) sports (which might come with a standard of care lower than recklessness), liability in any of the situations described above would defeat that purpose. Assuming the legislature did not intend to treat contact and non-contact sports differently, a court might get around this, at least in my baseball and tennis hypos, by reading the statutory term "physical contact" to mean contact with objects propelled by an opponent. And maybe track would fall in because physical contact is at least a possible element of running side-by-side with an opponent. But this is getting somewhat difficult to maintain.

Alternatively, a court might focus on the statutory term "sport" and find a workable definition of that word--exactly what I and others have been doing as a parlor game. My current favorite standard defines sport by four elements:

1) Large motor skills.
2) Simple machines only.
3) Objective scoring or at least the possibility of determining a winner by something other than subjective judging.
4) Competition among contestants.

Cheerleading satisfies ## 1 and 2, but fails # 3 and possibly # 4 (we would need to know more about whether this team participated in competitions). But track, baseball, and tennis--the examples above--satisfy all four criteria. This gets at the result--the cheerleader's claim can go forward--without cutting large swaths of sports out of the statute.

Ashcroft v. Iqbal: When courses come together

I am fortunate enough to have a shmackage (Civ Pro, Fed Courts, Civil Rights, Evidence) that is precisely what I was looking for when I went on the market, coherent (although some contest the presence of Evidence) and overlapping, and tied to at least a portion of my scholarly agenda. The nice thing about such a combination is that you occasionally see a case that brings all these subjects together. Enter Ashcroft v. Iqbal, argued before SCOTUS last week, on whether highest-level federal officials, such as the Attorney General and the Director of the FBI, can be sued for damages for the post-9/11 round-up and detention policies that were carried out in a discriminatory way by lower-level officials.

The oral argument (summary and summary) was a walking Civ Pro/Fed Courts/Civil Rights syllabus.

Civ Pro, Pleading: The primary focus of the argument was on the sufficiency of the complaint. This focused much of the argument on figuring out just what the pleading standards are after Bell Atlantic v. Twombly, whether there is or should be heightened pleading in some types of cases, what "plausibility" means, how detailed allegations must be, and whether the plaintiff must identify the evidentiary basis for facts at the pleading stage. The justices' lack of understanding of, and dislike for, the historical purposes of notice pleading was palpable. There was some discussion of how some allegations were contested by government counsel and how that affects the analysis of the sufficiency of the complaint (correct answer: It doesn't, since facts should be taken as true). At one point, Justice Breyer even admitted not remembering certain things about civ pro that must have been on "day four" of his class, way back when. I have a feeling the Court may do more tinkering with pleading standards, at least in some civil rights cases where busy high-level officials are involved.

Civ Pro, Discovery: Several justices expressed concern for untrammeled discovery and the need to use pleading to limit discovery, which was the main theme of the government's argument. Especially when dealing with highest-level executive-branch officials. This is why there was so much discussion of the president of Coca-Cola, a similarly busy official, implicated in individual wrongdoing. Justice Stevens got in a nice dig and a laugh at the government's too-busy-to-be-deposed argument, noting it was not an issue when he wrote Jones v. Clinton. But clearly the Court, as it did in Bell Atlantic, is on the warpath over discovery and looking to use the pleading rules as a way to limit discovery.

Civ Pro, Judicial Discretion: The bad guys in much of this conversation are the district court judges who oversee and control discovery and who, in the mind of many on SCOTUS, simply cannot be trusted to wisely wield the discretion that the Federal Rules vest in them. There were many comments from the bench about the power of a "single district court judge" over discovery and how the single judge was making a discretionary interlocutory (i.e., effectively unreviewable) order. Some of these comments were reflective of the concerns many 1Ls have that "judging" really gets done only at the appellate and SCOTUS levels and that there is something wrong with vesting the trial judge with discretion and no immediate review. The oft-noted fact that none of the justices had much trial experience, from the bar or the bench, was telling.

Civ Pro, Affirmative Defenses: The government officials' qualified immunity defense was rejected by the district court and not appealed. The officials spent much of the argument trying to squeeze the qualified immunity defense into the pleading requirements--essentially arguing that more was required in the complaint for it to state a claim because of the defense of qualified immunity. This, of course, conflates elements with affirmative defenses, qualified immunity falling in the latter category.

Civil Rights, Qualified Immunity: The immunity defense underlay much of this argument. Most of the Justices seemed to be looking for a way to get high-level officials out of cases, even if qualified immunity was not directly presented here.

Civil Rights/Fed Courts, Bivens: Although not presented directly, one way for the Court to get out of this mess is to find that these Bivens claims against high-level policymakers are not cogizable because the post-9/11 crisis environment out of which the claims arise and these officials' busy schedules constitute "special factors counseling hesitation" to be balanced by a court, common law style, against recognizing the Bivens claim. I am not advocating this position, which I think has some real problems (such as leaving plaintiffs without any remedy against these officials). But I think this path would do less overall damage than the Court rewriting FRCP 8 and 9(b), as it seems inclined to do.

I am thinking of assigning this argument to show the confused current state of pleading law. It would be far more interesting than reading yet another case. I just wonder if it is too bound up with Bivens and § 1983 to be comprehensible to them.

A metric on Truth and Reconciliation?

A few weeks ago, I suggested the need for a metric to determine when we should convene a truth-and-reconciliation or other fact-finding commission as opposed to prosecution (or, I would add although I did not mention originally, civil litigation). This issue arises as the incoming Congress and Obama Administration must figure out whether and how to investigate alleged wrongdoing by the Bush Administration with respect to warrantless surveillance, torture, and detention, as well (potentially) as the politicization of the Department of Justice.

Commenters to the original post offered some good thoughts. And I did not see it until yesterday, but Geoffrey Stone on the U of C Faculty Blog suggested some reasons that, with respect to our current situation, a TRC is preferable. We might be able to isolate a few principles or considerations that push us towards a TRC and away from the judicial system:

Update: Thursday, 3:30 p.m.:

An alert reader sent along this FindLaw essay from Ruti Teitel at New York Law, making similar arguments for an non-bipartisan independent commission.

1) The political and perception problems of an administration of one party investigating and prosecuting an administration of another. It has the potential for partisan manipulation and abuse, or at least the appearance of partisan manipulation and abuse. Stone's thought is consistent with those of one commenter to my initial post, who pointed out that in the notable situations in which criminal prosecutions have been used (Nazi Germany, de-Baathification), the former ruling party no longer remained part of the political system. I think this makes sense as a practical and political matter--it means that the criminal-justice system is reserved for the most extreme abuses of governmental authority, the types of abuses that lead to war and the forceful overthrow of a regime.

2) The uncertainty of the legal landscape, considering the state of the law and the context of events, including the likely good-faith of government officials and the presence of unique emergencies.

3) The weakness and unsuitability of the criminal-justice system as a discovery and fact-finding process, particularly as to large, systemic wrongdoing. In other words, a broad perspective on the overall misconduct of the administration may not be possible solely in a prosecution of, say, Alberto Gonzales.

4) The civil-litigation landscape. Civil litigation arguably is better able to address broad, systemic issues. And with broad discovery, fewer privileges, and a lower standard of proof, might reveal a greater amount of information. But Stone argues that current civil-litigation efforts to expose administration actions thus far have been unsuccessful, partly because courts have been highly receptive to administration arguments about national security, executive privilege, executive immunity, and state-secrets privilege. This suggests that civil litigation might work if the misconduct were less tied to national security (say, Watergate or, going way back, Teapot Dome).

Considering all of these factors, it seems a TRC is the better approach in the present context. I do wonder, however, whether a truly bipartisan commission (a la the 9/11 Commission) is possible, given the political fault lines in play here. The 9/11 Commission was not out to identify "wrongdoing" (i.e., who caused/allowed to happen this tragedy), only to give a narrative of "what happened" and perhaps identify mistakes. Even if such a Commission could be formed and all could agree on what the Bush Administration did (i.e., everyone agrees across party and ideology that the Administration established policies approving waterboarding and warrantless domestic surveillance), I am not sure we could reach bipartisan agreement on the propriety of that conduct. On the other hand, perhaps the point of a TRC is not to reach normative conclusions about right and wrong or guilt or liability, but to find real-world facts and leave the conclusions to the public and to history.

Ideological Polarization among SCOTUS clerks

My colleague, Bill Nelson, has written a fascinating and perhaps troubling history of Supreme Court clerkships since the appointment of Justice Brandeis in 1916. Nelson's troubling finding is that, since 1990, conservative justices increasingly hired clerks from the pool of clerks of conservative circuit judges. According to Nelson, "90.1% of Justice Kennedy's clerks, 79.4% of Chief Justice Rehnquist's, 92.7% of Justice Scalia's, and 100% of Justices Thomas's clerks who served prior clerkships with circuit or district court judges did so with judges appointed by Republican presidents." By contrast, more than half of Burger's, Stewart's, and Powell's clerks were clerks of judges appointed by Kennedy or Johnson. Nelson also finds that clerks from the chambers of four conservative justices (Scalia, Thomas, Rehnquist, and Kennedy) sort themselves ideologically in their career trajectory: Since 1990, they increasingly go to conservative law schools or to law firms with prominent conservative mentors such as Kirkland & Ellis (which became a landing place for conservative justices' clerks after Kenneth Starr joined the firm in 1993). In short, Nelson is finding evidence of an increase in ideological sorting among legal elites since the 1990s, with conservatives joining think tanks, law schools, and law firms that specialize in favoring conservative causes.

As conservative myself -- meaning someone with a preference, ceteris paribus, for deregulation, decentralization, and tradition -- I find this ideological sorting a bit disturbing. Sorting likely leads to ideological polarization for both Left and Right. There is increasing evidence that popular culture is already excessively sorted and polarized on ideological grounds: Consider, in this respect, Bill Bishop's excellent book, The Big Sort, which documents the trend of migrants' sorting themselves into ideologically polarized counties. Must we academics jump on the sorting bandwagon as well? Are law schools such ideologically riven places that each faction must seek refuge in institutions filled with like-minded colleagues? (I have not found a "generalist" law school uncongenial, but my experience may be atypical). Without apportioning blame for this alleged sorting trend, I think that it is undesirable and that we academics ought to think about how to arrest it.

Kmiec on the Obama Administration and Civil Rights

Joseph asked how the incoming Obama Administration, and its change of policies and politics, will affect the courses we teach. Doug Kmiec has a FindLaw column on this week's oral argument in Fitzgerald v. Barnstable School Committee, which considers whether Equal Protection claims under § 1983 are precluded by Title IX. Kmiec frames his discussion around the Solicitor General's failure to get involved in the case, quite unusual in a case involving the interpretation of two major federal statutes. He attributes this to the Bush Justice Department's lack of interest in the "demands of constitutional justice--not to mention the practical importance of assisting the Justices" in favor of ideology, which he suggests will not continue to be a problem under the Obama Justice Department.

This is consistent with my thought, in a comment to Joseph's post, that a major difference will be the expected commitment of the Obama Administration to Equal Protection and discrimination issues. The oral argument final project for my Civil Rights class is this Friday and Fitzgerald is one of the cases we will be arguing.

The hangman's noose and whither R.A.V.

Great, another post where I get to defend egregious expression.

David Hudson has this essay about attempts in several states to prohibit the display of nooses with the intent to intimidate or harass. (H/T: First Amendment Law Prof Blog). Apparently incidents of noose displays are on the rise. A noose display triggered the mess that was the Jena SIX controversy and a noose was hung (hanged?) outside the office of an African-American professor at Columbia University law fall in the weeks following the visit of Iranian President Mahmoud Ahmadinejad. And it could pick up steam if we continue hearing sporadic stories about hanging effigies of Barack Obama.

Nooses are seen, properly, as "a symbol of the racist, segregation-era violence enacted on blacks. … an unmistakable symbol of violence and terror that whites used to demonstrate their hatred for blacks." So the logic of banning noose displays to threaten or intimidate follows the logic of banning the burning of crosses to threaten or intimidate, which the Supreme Court upheld in Virginia v. Black. Black rested on the uniqueness of the burning cross as a symbol of the KKK and racial violence and intimidation; Justice O'Connor's opinion for the Court went into exhaustive detail about the social, legal, and political history of the Klan and the burning cross and how that symbol was particularly threatening and intimidating. The state thus could specially ban burning a cross as a threat (provided the burning cross, in context, could qualify as a "true threat" for First Amendment purposes), rather than simply relying on a general statutory ban on threats and intimidation.

A few problems.

First, my thought after Black was "for what other symbols can the exact same argument be made and the exact same history be invoked"? Swastikas immediately leaped to mind. Many state legislators now believe that the hangman's noose is another. The same for hanging effigies, at least if the effigy is of an African-American. It should not be difficult to think of more symbols that carry unique and uniquely threatening or intimidating meaning to different groups or segments of society and thus should be subject to unique prohibits. And, within enough historical and sociological analysis, that ban would be upheld on the same reasoning as in Black.

Actually, a smart politician looking to pander to the anti-flag-burning crowd might be able to use Black. Imagine a law prohibiting the use of a burning flag as anti-veteran or anti-American (say, pro-Islamic Terroris) fighting words, provided the legislator could throw together some social history about how the burning flag is uniquely insulting to, and thus likely to provoke a violent reaction by, a veteran or someone who lost family on 9/11 or in the War. The underlying logic is the same, relying on something unique about the symbol to permit its unique regulation.

Second, what does all of this do to R.A.V. v. City of St. Paul? The Court there overturned an ordinance that, as construed, uniquely prohibited fighting words that targeted categories such as race, sex, and religion. The Court held that the First Amendment prohibited government from making content- and viewpoint-based distinctions in statutes, even with unprotected categories of speech. Government could prohibit fighting words; it could not prohibit only fighting words that targeted certain characteristics. Under a strict application of R.A.V., the ban on cross-burning should have fallen, as well. The state can ban all threats, it should not have been able to ban racially charged or racially motivated threats. The Black Court got around that because of the particular history of the burning cross. But given that the same arguments are being made about nooses (and could be made about lots of symbols, see above), R.A.V. ceases to have much, if any doctrinal force. Sociology and history gets around the force of the precedent.

Third, note the creative attempts to get around the R.A.V. problem. According to Hudson's essay, Connecticut prohibited the displaying of a noose with the intent of intimidating "on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability." See, Connecticut says, the law is not only prohibiting racist threats, but also threats against women or the blind or the disabled. Of course, there is no unique historical or social connection between the noose and lynchings and women or the blind. Was there some history of lynching the visually impaired such that the display of a noose would threaten a blind person (putting aside how she would know a noose was displayed)? How about as to women? Nice try--but if you are going to ban a particular type of symbolic threat, you are going to have to explain what is unique about that symbol. And the noose is unique only to its racial (and possibly national origin, although this is debatable) context.

Finally, what is the future of the hanging effigy as a political protest? This country was founded on hanging effigies (they were a central feature of anti-colonial protests and against laws such as the Stamp Act). Hanging effigies historically have been viewed as rhetorical excess rather than any sort of true threat. Hell, Dean Smith was hanged in effigy in his early days as basketball coach at UNC. But does that calculus change if the person being protested (i.e., President Obama) is African-American, because the effigy of an African-American carries with it the unique history of lynchings? If so, we have a situation in which I can hang Vice President Biden in effigy but not President Obama or Attorney General Holder. I find the notion that one is a greater threat than the other, and thus more proscribable, because of history to be troubling as a constitutional matter.

Truth and Reconciliation or Prosecution?

Danielle Citron comments on news reports of the apparent decision by the incoming Obama Administration to pursue an independent commission investigation (a la the 9/11 Commission) of the Bush Administration's counterterrorism policies, including the use of torture and domestic spying, rather than to pursue criminal investigations and prosecutions against administration officials who approved and carried out those policies (potentially made impossible anyway by the chance of President Bush issuing a blanket pardon on his way out the door). And this comes as we see various new hurdles preventing the use of civil litigation to shed light on the administration's abuses, including the grant of retroactive immunity to the telecom companies for their role in domestic spying and the Supreme Court's coming decision this term in Iqbal on the use Bivens actions by terror suspects.

I am conflicted on the question. I recognize the political problems inherent in a new executive coming in and investigating and prosecuting members of the ancien regime. Merits aside, it looks too much like show trials and that is not what happens in a functioning democracy. On the other hand, it seems indisputable that, descriptively, the administration did engage in acts that violated the Constitution and laws of the United States, as well as international law. I categorically reject the "it's time to move forward and not look back" meme coming from many circles (often tauntingly linked to Obama's calls to get beyond partisanship--how can someone who claims to be above party disputes prosecute his political predecessor). In a democracy, there must be a public accounting for government misconduct and abuse of power--or an opportunity for legal processes to determine that, in fact, there was no misconduct or that the conduct was legally justified. And only if we know and make public what misconduct was committed can we ensure that it does not happen again. Not to mention that there genuinely were individual victims of many of the allegedly unlawful actions.

The question is one of choice of process--when do we use the sort of fact-finding, Truth-and-Reconciliation process to present a historical factual record and when do we use criminal and/or civil litigation to discover the truth and to punish or provide individual remedies? At least in popular and political discussions, I have yet to see a good explanation for when prosecution and punishment in the courts becomes inappropriate and should yield to investigatory commissions. It made sense as to 9/11, since the question there was whether governing mistakes were made, not whether laws were broken--any "blame" was political, not legal. It would not have made sense as to the Nazi regime. And I do not recall ever seeing a serious suggestion that the Nuremberg Trials were the wrong approach, that we should not have prosecuted and punished Nazi officials, but instead should have used a T&R proceeding (and no, I am not comparing the Bush Administration to the Nazis , other than to the extent both allegedly violated domestic and international legal rules).

So when is prosecution appropriate and when is a T&R Commission the necessary approach?

Hillary Clinton and interbranch rotation

It apparently is a done deal that Hillary Clinton will be Barack Obama's Secretary of State--and that we will be hearing a lot from Doris Kearns Goodwin. One of the discussion points during the last couple weeks has been why Clinton would give up the chance to remain in the Senate for life and to amass institutional seniority and broad policy power (following the primaries, several people compared Clinton to Ted Kennedy after his failed 1980 presidential bid, when he settled in the Senate and emerged as a powerful liberal voice) to spend perhaps as few as 3-4 years as Secretary of State.

The assumption behind this discussion is that, having given up her Senate seat, Clinton will never get it (or the other New York seat) back. And this probably is true. Imagine a best-case scenario of Clinton serving as secretary of state for 1 1/2 Obama administrations, until 2014. Her seat, initially filled by an appointee and then a special election, will be filled for a full term in 2012, probably by a Democrat. Charles Schumer, the other New York Senator, will be up for re-election in 2010 and would serve until 2016. Since Clinton is highly unlikely to challenge a fellow Democrat for the seat (baring truly unforeseen circumstances), her Senate career is over.

This is illustrative of the disappearance of what Vik Amar in a 1996 article in Vanderbilt called "interbranch rotation," individuals moving directly from the Senate into the executive branch, especially cabinet posts, then back into the Senate soon after leaving the cabinet. Amar traces this disappearance to direct election of senators under the Seventeenth Amendment. Statistics from 1989 showed fifty people moving directly from the Senate to the cabinet in the first 200 years of the system, forty-one of them prior to the turn of the twentieth century. More significantly, of those 41, 13 returned to the Senate within three years of leaving the cabinet--all before the advent of direct senatorial election. One senator has made the Senate-Cabinet-Senate move since the Seventeenth Amendment was enacted--Philander Knox. He actually made the Cabinet-Senate-Cabinet-Senate move. He was McKinley's and Teddy Rooselvelt's Attorney General, was chosen for the Senate in 1904, left the Senate in 1909 to be Taft's Secretary of State, then was elected to the Senate in 1916. Notably, however, Knox's first period in the Senate (1904-09) came prior to the establishment of direct election; in other words, he left his AG position to be immediately appointed to a Senate seat and only had to run for popular election once. I cannot recall an instance since 1989, prior to Clinton, of a sitting Senator jumping to the cabinet.

Amar argues that the old scheme of legislative appointment allowed for side deals and bargains that made interbranch rotation possible and attractive as an option. A sitting senator could leave the Senate to serve in the cabinet for some time, with an under-the-table deal in place with the state legislature that, upon leaving the cabinet, he would be reappointed to the next Senate vacancy from the state. Amar then focuses on the implications for federalism and separation of powers, particularly how this affects Senate functions in areas such as treaty making and appointments, where the body works directly with the Executive.

But the loss of interbranch rotation has a different implication in defining who is likely to be a successful presidential candidate and how an individual can position herself for a run. Recall that Obama is the first person since Kennedy elected directly from the Senate with no significant executive experience. Rick Hills has argued that the recent spate of former governors elected (Bush II, Clinton, Reagan, and Carter, and going back farther, FDR) and recent candidates who have run based entirely on gubernatorial success (Huckabee, Romney, Palin in 2012) reflected a rebirth of federalism--experience at the state level seen as a benefit in a federal executive.

I tend to look at it through a separation of powers lens. There is a modern insistence (perhaps in the electorate, clearly in the media) that a presidential candidate have both executive experience and have served in some high elected office. Someone who has served in federal cabinet positions (or like Eisenhower been a military commander in time of war) but never held elective office would be constantly reminded that he never has been elected to anything. Most legislature-only candidates are constantly reminded that they only have been legislators (it did not hurt Obama because he was running against a fellow Senator), but it struck me as being an issue in 2004. The only positions that give a potential presidential candidate both electoral and executive experience are Vice President and Governor.

Historically, the Senate-Cabinet-Senate move might have been another way to get both credentials and set oneself up for a presidential run at the appropriate time (Knox ran for the GOP presidential nomination in 1908). But direct election removes (or makes incredibly risky) the option. Would a sitting Senator make the move to the Cabinet, knowing that the likelihood of returning to the Senate is virtually non-existence, on the remote (statistically and politically speaking) chance to be President? Such a person would have to be willing to gamble, old enough upon leaving the cabinet to be a viable presidential candidate, willing to leave elected public life if the move did not work, and, relatedly, old enough not to need to be in politics at the end.

I am guessing (this obviously is pure speculation) this is Clinton's political calculus for 2016. She ran for Senate to set herself up for the presidency; the direct route did not work, so maybe she tries a more circular path. If Obama is a successful President and the two are perceived as having a good working relationship, she could make herself a front-runner as the "heir" to Obama's presidency (it will not be Biden, who would be too old by that point). Clinton would be 69 in 2016, so old enough that she might, if unsuccessful, be willing to depart elected life. If this is her path, it will be interesting to see whether her now-significant executive experience (Secretary of State and First Lady cum adviser and counsel to the President) will be derogated because she never was elected to an executive position.

The View from the Bottom (of the Alphabet)

Much was made during the presidential election about the potential of a "Bradley effect" in which it was predicted that Barack Obama might suffer anywhere from 3-6 point penalty on election day because of his race. It's questionable whether such an effect occurred in this race or, indeed, whether it actually ever existed at all. But while the Bradley effect got all the attention, Obama was facing another form of discrimination from voters as they pondered their ballots -- the alphabetical kind. In addition to his race, his non-traditional upbringing and his middle name, Obama also had to overcome the burden of having a surname that falls in the last half of the alphabet.

The importance here is, of course, with ballot position. In the states that decide ballot order alphabetically, McCain (who is no alphabetical star himself) managed to secure a higher ballot position than Obama. With some empirical studies suggesting that ballot order can translate into a several percentage point advantage for the higher-placed candidate, the issue of alphabetical discrimination threatened to have as much of an impact on this election as the infamous Bradley effect. As an alphabetically challenged individual myself, I'll admit to taking this all pretty seriously.

In all fairness, recent research by Daniel Ho of Stanford and Kosuke Imai of Princeton concluded that ballot order likely has "no detectable effects on major party candidates" (although it might "significantly affect" minor party candidates.) The big pay-off comes in the primaries where Ho and Imai found "being listed first significantly increases vote shares for all candidates." This means that Obama had to work extra hard to beat out alphabetical-showoff Hillary Clinton.

Some states have recognized the inherent unfairness of alphabetical order. The State of California, for example, has been at the forefront of the fight against alphabetical discrimination. California law requires that each letter of the alphabet be written on a separate piece of paper and put into a "capsule." The capsules are placed into a container which must be "shaken vigorously." Each capsule is then selected one at a time until an entirely new alphabetical order is created that determines ballot order. If more than one candidate's surname starts with the same letter, the order within that letter follows the same randomized alphabet. This ballot order is then rotated among the state's 80 assembly districts. I was living in California during the highly publicized 2003 gubernatorial recall and can attest that on my ballot all 135 candidates for governor appeared in what could only be described as an entirely chaotic order. The extra effort it took to find my candidate was a small price to pay, in my view, for avoiding alphabetical discrimination.

If more states follow suit, perhaps we'll someday live in a land where we can all overcome our alphabetical destiny. That's a change I can believe in.

Civil Rights Legislation in the Obama Administration

One of the many issues the Obama Administration will have to resolve is where to go on civil rights legislation. The campaign website's section on civil rights gives prominent focus to enacting the Fair Pay Act, the Employment Non-Discrimination Act (protecting gays and lesbians and, seemingly, transgendered people) and the Matthew Shepard Act (expanding federal hate crimes law to include gays and lesbians), overturning the Ledbetter decision (which seems to be what the Fair Pay Act does, so maybe they're double-counting), depoliticizing DOJ and reinvigorating civil rights enforcement.  No doubt renewal of the Voting Rights Act will also be part of this agenda.  Presumably the new Congress will support most, if not all, of this agenda, though of course who knows when and whether they will get to it given the other issues on the nation's plate right now.

My question is about the constitutionality of the civil rights legislation that may come out of Congress over the next couple of years.  Aside from the Voting Rights Act renewal (about which a lot of people, including my colleague Rick Hasen, have written and about which I won't comment here), I don't see any serious constitutional issues with any of this legislation, given the commerce power. (Even the Matthew Shepard Act devotes a fair amount of verbiage to bringing itself within the Supreme Court's opinions in Lopez and Morrison, though I certainly wouldn't rule out a Commerce Clause challenge).   The one major caveat is the extent that such legislation applies to states and makes them liable for retrospective relief, such as damages or backpay.  Of course, Seminole Tribe disqualifies the commerce power as the source for such remedies, and thus requires examination of Congress's power to enforce the 14th Amendment -- the so-called "congruence and proportionality" test from City of Boerne v. Flores.

Would ENDA be congruent and proportional to the equal protection problem of state government employment discrimination based on sexual orientation or gender identity?  This does not seem an open and shut question, although I argued in an article published in 2002 that ENDA should be upheld as appropriate enforcement legislation.  The only cases where the Court has upheld Section 5 legislation against this standard have been where the legislation either benefitted a class that gets heightened equal protection scrutiny (Nevada Dept of Human Resources v. Hibbs) or protected a fundamental right (Tennessee v. Lane).  And even those decisions depended on the four liberals peeling off from the conservative bloc Chief Justice Rehnquist and Justice O'Connor (Hibbs) or O'Connor alone (Lane); with those two justices gone it's not clear that even those cases would come out the same way today.

As for ENDA in particular the matter gets difficult because gays and lesbians are not a suspect class, and if cases like Romer v. Evans (and for that matter, City of Cleburne v. Cleburne Living Center) are any indication, the Court does not seem inclined to create any more suspect classes.  Thus, claims of ENDA's Section 5 validity are pinioned between the Court's skepticism of any enforcement legislation that doesn't target a suspect class or fundamental right, and the Court's unwillingness to bestow suspect class status on any new classes.  There's more to the analysis -- in particular, the question how broad the enforcement statute is -- but this presents the gist of the problem. 

Gender identity presents an even trickier question, since it raises a question of definition -- is gender identity "like" gender enough to bring it within the suspect class status accorded gender more generally?  If not, then the relative newness of the issue may cause the Court sufficient discomfort with granting Congress broad enforcement power unless Congress can convincingly demonstrate a severe constitutional problem with employment discrimination against transgendered people.  (Again, I seriously doubt the Court will classify the transgendered as a suspect class, regardless of whether on the merits they should so qualify.)

A different issue arises should Congress choose to impose more stringent regulation benefitting traditional suspect classes such as women and racial minorities.  Recent scholarship has called for employment discrimination law that seeks to change organizational structures in firms that make discrimination possible.   Scholars such as Susan Sturm have suggested regulatory regimes in which courts, managers and professionals such as lawyers and HR specialists interact to change basic structures in the firm in ways that traditional liability rules alone could not do.  (I know this is not clear; read Susan's excellent article to get a better sense of this idea.)

For now what's important is the possibility that such regulation, if adopted to tackle persistent racial and gender discrimination, might be seen as violating the congruence and proportionality standard.  To the extent these laws mandate deep changes in how state government workplaces are organized, they might be seen as imposing more burdensome regulation than current anti-discrimination law, which focuses more on policing discrete violations of equal treatment.  Of course, this theory of regulation is, in some ways, aimed at providing employers with flexibility and discretion in determining how to make these changes; to that extent such regulation might be seen as imposing a lighter federal hand.  But the target of such regulation -- not just the correction and punishment of discrete violations but the restructuring of workplace relationships to prevent violations -- reflects, in a real sense, a more aggressive regulatory approach.  It's an interesting question whether the Court would uphold such regulation under Congress's enforcement power -- not just because the case might arise, but also because it would test the congruence and proportionality test against a fundamentally different regulatory model.

Finally, would an Obama Administration  regulate the workplace to move toward some requirement of comparable worth?  (Here's an old New York Times article that explains the basic idea.)  The campaign website doesn't mention this, but it wouldn't surprise me if continued wage disparities between men and women increased the calls to start down this road.  (During the campaign Senator Obama talked about "equal pay for equal work," but I'm not sure that's necessarily the same concept as "comparable worth" -- am I right about that?)  This is completely speculative, of course.  But if such regulation came to pass the Court would again have to consider the intrusiveness of such regulation on the states against the constitutional problem posed by continued wage disparities based on the gender identification of particular jobs.  Ironically, given Hibbs such regulation might present less of a constitutional problem than more conventional regulation aimed at non-suspect classes like gays.

Tip for Political Junkies: "A Perfect Candidate"

A big story in this past election was the change of Virginia from a red state to a blue state.  If you are a politico coming down off the heady fumes of this year's contests (cf. the chart included in this post), you should check out the documentary "A Perfect Candidate."  The documentary chronicles the 1994 Virginia Senate contest between Chuck Robb and Oliver North (with Doug Wilder in an Oscar-worthy supporting role).   It's an incredible documentary -- it focuses on North's campaign, and the level of access granted by the North folks is unbelievable in retrospect.  Given the fairly raw footage on display, it's unlikely we'll ever see it again.  But you should check it out -- it is a slice of American politics that can rarely be seen so vividly.

Just to sell it a little more:

• There are so many scenes that are really startling -- startling because of their unguardedness.  There's Chuck Robb wandering around a grocery store looking for voters.  There's the elderly DAR member who supports the flying of the Confederate flag.  There's the (not more than) four-year old with a rifle who says he shoots "clay pigeons and Democrats."  And there's the Washington Post writer who calls North a "demogogue" and his supporters "fascists."  No one really escapes unscathed -- but at the same time, everyone retains their humanity.
• You can see former McCain advisor and current MSNBC guru Mike Murphy in a minor role -- shooting around ideas with the other North consultants.
• Two Republican senators express grave doubts about North's candidacy when he wins the nomination -- Bob Dole and John McCain.
• Some folks are warning that President Obama has to rein in his agenda, or he will end up with another Republican revolution like Clinton did in 1994.  This movie immerses you in 1994 -- the issues, the culture wars, the icons, the drama. 
• There's the scene at the end when North campaign manager Mark Goodin tears up at the loss of his candidate.  Goodin comes off as a decidedly mixed figure -- a scrapper, a hard-fighter, someone perhaps willing to skirt the norms in order to succeed.  But at the end, when he stands in the cold and wells up in sadness and anger, he is truly one of the iconic figures in American politics.  It is hard not to be moved.

Scientocracy and the Need for Judicial Process

Top: John Ellis writes equations you can’t understand on the blackboard. Bottom: CERN scientists are warned about Richard Posner.

There is a controversy among scientists as to whether a colossal new particle accelerator outside of Geneva could produce a black hole that might grow to annihilate the Earth. Slated to begin operations in Spring 2009, the Large Hadron Collider is a project of the multinational CERN consortium and is the result of billions of dollars in spending and decades of planning and construction.

Despite the obvious ramifications for everybody on the planet should a black hole be produced, many scientists seem to have the attitude that any controversy about safety should be settled among scientists – engaging one another in argument – and not in the court of public opinion or among lawyers and judges in a court of law.

Part 4 of

Black Holes
& the Law

[Part 1]

[Part 2]

[Part 3]

[Part 4]

[Part 5]

The desire among scientists to keep the controversy from being vetted by laity is an intriguing aspect of the story of the LHC and the controversy about its safety. There is an inclination – both inside and outside of CERN – toward what might be called a limited-form scientocracy, a regime in which the community of scientists alone has the authority to determine what experiments will be run, regardless of alleged public hazards.

Such an attitude is in evidence in a colloquium talk given by decorated physicist John Ellis. The purpose of the August 2008 presentation was, in part, to give fellow scientists “the tools to convince other people that the LHC is safe.”1

In his talk, Ellis expressed in various ways a concern about the potential of the law and judicial process to interfere with particle-physics experimentation. Particularly interesting was hearing him talk about Richard Posner, whose 2004 book, Catastrophe, discussed the possibility of Earth being destroyed by a “stranglet” disaster – a scenario some feared from the now-active Relativistic Heavy Ion Collider on Long Island, New York.

“This guy, I find really worrying,” Ellis said about Posner.2 Using a slide show, Ellis flagged for his audience Posner’s suggestion that high-energy physics experimentation should perhaps be subject to a federal catastrophic-risk-assessment board and Posner’s view that a “scientifically literate legal profession” should be involved in adjudicating science-intensive controversies.

“This, I think, is not a particularly encouraging trend,” Ellis said.3

It is unfortunate that anyone would find the prospect of judicial review discouraging.

Overall, the Ellis colloquium would seem to indicate a pervasive belief among high-energy physicists that lawyers and judges have no proper place in investigating and reviewing their experimental undertakings. If that is true, such a standpoint constitutes a substantial and direct threat to a cherished bedrock concept of modern society, the rule of law.

Throughout history, various groups have tried to exploit imbalances in political or economic power to undermine the rule of law. But the modern experimental-science juggernaut wields a very different sort of power, one that arises from a knowledge gap.

When it comes to a question such as whether the LHC might plausibly create a black hole, particle physicists can easily claim that no one, other than one of their own, has the depth of understanding required to weigh in. Ellis, for his part, does not make this claim explicitly, but he hardly needs to. Indeed, at Ellis’s talk, the phrase “scientifically literate legal profession” was met with a hearty chortle from the crowd.4

The argument that no one but scientists can understand science, so no one but scientists should exercise control over experimentation, is not only an easy argument to make, it is too easy. Acceptance of such a view effectively vitiates the rule of law for a category of human activity which is potentially of ultimate importance. Thus, this ground should not be conceded. While the knowledge gap provides a tremendous challenge to providing meaningful and fair judicial review of leading-edge scientific research, it should not be permitted to bar the involvement of the courts.

But apart from the knowledge gap, John Ellis and his colleagues at CERN have another, blunter instrument for preventing the public and the courts from making up their own minds about the LHC program: They plan to render the debate moot by turning the machine on.

“The way to stop all this argument about whether the LHC is going to destroy the planet is to get the LHC working,” Ellis said.5

A slide from John Ellis's August 2008 talk, "The LHC is Safe."

Perhaps the LHC really is quite harmless. But planning to win a debate about its safety with a fait accompli is bereft of propriety.

It is apropos to mention here a comment I received to my first post in this series. A self-identified scientist wrote to me, “I think you're putting shocking little faith in scientists.”

The word “faith” is ironic in this context. To profess faith in science is to pay it a dubious compliment. Yet, the use of the word is not, I think, misplaced. The commenter, perhaps unintentionally, ends up raising a very good question. Is that what CERN is asking all non-scientists to do? To put faith in them?

There’s a close connection between the biblical definition of faith and the implicit claim being made by CERN. “Now faith is the substance of things hoped for,” Hebrews 11:1 says, “the evidence of things not seen.”

Indeed, the meaning of the arguments and equations of particle physicists are, for nearly all of us, well hidden from sight. They lie behind a veil that would take years of training in mathematics and science to penetrate, at which point, of course, the debate will be moot. So, for all of us standing outside the community of particle physicists, what should be our basis of belief in their claims?

I would submit that if we are to believe the conclusions of the particle-physics community about safety, our belief must be rooted in a favorable appraisal of the soundness of their decision-making, the demonstrated trustworthiness of their dealing with those outside the community, and the impartiality and rigor of their risk-assessment methods. Judicial process can investigate whether these hallmarks of veracity exist in this case. And that is why scientific endeavor, like all other human activity, must be subordinate to the rule of law.

I believe in science. I believe in the scientific method. I even believe in the good intentions of the scientific community. But “faith in scientists” is another matter.

---

Notes
1 John Ellis, colloquium talk, August 14, 2008, at elapsed time 1:57.
2 Id. at 54:35.
3 Id. at 56:16.
4 Id. at 56:00.
5 Id. at 62:31.

Stubborn as a Mule (Elephant)

Whether professors should, er, profess their political views in the school setting has been the subject of some attention, including this recent Prawfs discussion and an earlier one last spring.  Among the issues raised are questions about the propriety of such expression, both pedagogically and as a matter of professionalism; the extent to which state institutions can and should quash political speech on campus; and the influence a largely liberal (and actively so, by one measure) faculty might have upon students of differing viewpoints (a related concern—inhospitality to conservative views on campus—has in recent years resulted in calls for attention to intellectual diversity and a legislative role in ensuring it).

As to the last point--the influence professors might have on the ideologies of their students--the results are in, and it seems that those fears (or hopes, I suppose, depending upon one’s perspective) can be put to rest:  When it comes to substantively influencing the political views of students, professors are among the least effective players, lagging well behind parents, family, the media and peers.  Whether espousing one’s views in the university realm is a good (and productive) idea, and the extent to which it can be curtailed, are issues that are still up for discussion.  But if it’s done, it won’t make nearly the difference that a robot can in changing someone’s mind—or vote.