PrawfsBlawg

More on The Right Coast on Supreme Court Term Limits

Gail Heriot, at the Right Coast, has another interesting perspective on Supreme Court Term Limits here.

In short, she worries about how term limited Supreme Court justice may have their eyes on their next move (to Harvard president, Chair of the NYSE, Baseball Commissioner); and how those ambitions might distort the process of judging. 

AmosAnon1 on Schiavo and Legal Realism

In recent weeks, conservative politicians (like this one and this one) and commentators have been blasting the judges involved in the Schiavo case for applying their own philosophical principles, politics, and preferences rather than simply assessing the law and the facts.   In other words, they have once again adopted the Legal Realist critique.  This post considers the realist critique in general and assesses its applicability to, and implications for, the Schiavo case. 

I will argue that the default rule in interpreting ambiguous statutes should be that judges seek to do the opposite of what Congress may have intended.  In other words, if a court were to conclude from its review of legislative history (etc.) that Congress meant to do X had it spoken directly to the matter, then the Court should do not-X, assuming the choice is binary; that way if Congress doesn't like the result, it will fix it with more clarity. 

Realists also argue about whether Legal Realism is better understood as a critique or as a description: is the fact that judges go beyond doctrine a problem that must be fixed, or a truism that must be accepted?

Regarding the first question, I believe that Realism usually applies only in the most difficult cases.  I refer to "difficult cases" in two senses: (1) where doctrine offers no obvious solution, so that judges are not only unconstrained, but also required to move beyond the doctrine or text; and (2) where the underlying issue is itself politically charged, such that judges are likely to already hold strong opinions.   The more ambiguous the text or doctrine, and the more contentious the issue, the more likely a judge's own affiliations and preferences are to come into play.   These cases are in the minority at the Circuit level, but they may be the most important and highest profile.  Thus, the application of the critique may be overstated, but its significance is not.

As to the second question, I think the answer is "both."  If we are committed to judicial interpretive supremacy (a commitment increasingly under attack from both the left and right), then we must accept that fixed texts and doctrine cannot resolve every case.   Realism is a fact of life.  However, we can and should seek to minimize the application of Realism where possible, because it can lead to dangerously anti-democratic results.

However, Congress has developed a culture in which statutes are drafted poorly and ambiguously, necessarily leaving them open to multiple interpretations.   

There are two reasons for this.  First, enacting legislation in the face of competing interests and a closely divided legislature and electorate is no easy task. 

Sometimes there is no way to get the necessary majority or supermajority if contested issues must be hashed out at the beginning.  Legislators are all too happy to duck the most difficult issues and avoid the political fallout and allow courts to interpret away" any ambiguities.   

Second, courts encourage this behavior by making themselves available to step in to "save the day" and interpret away ambiguities.   As much as legislators denounce "activist judges" who "make law by interpreting it," the lawmakers wouldn't have it any other way.

In short, there is a symbiotic relationship in which legislators have incentives to leave ambiguities in texts, and courts accommodate them. The key, of course, is to make Congress write better laws.

Generally speaking, when texts are ambiguous, individual judges apply interpretive techniques to figure out what Congress "meant," or how it "would have ruled" on the issue at hand.   

In a nutshell, this is what happened in the Schiavo case.  Congress enacted emergency legislation to allow federal courts to review the Florida courts' decisions (under what I call the "emerging 'Florida Exception' to principles of Federalism).  Knowing full well that federal courts would immediately be faced with the question of whether to reinsert Terri Schiavo's feeding tube while the litigation was pending, Congress nevertheless chose not to address that issue in the text of the statute, possibly because it would have failed to get a majority had it explicitly taken sides on the question.

That left it for courts to muddle through the congressional record to determine whether Congress meant for the tube to be reinserted.   An epic battle ensued between a three-judge panel of the 11th Circuit.  Two Republican appointees found evidence that Congress intended for existing doctrine on temporary restraining orders to apply.   This meant that Terri's parents had to show a likelihood of success on the merits in order to have the tube reinserted pending litigation, a showing they could not make.   The dissenting judge, a Clinton appointee, argued that Congress obviously intended for the tube to be reinserted, for if it were not, Terri would die and the federal case would be moot.   

(Orin Kerr debated this issue with Hugh Hewitt here, here, here, and here.)

Notice that odd lineup: the Republican appointees vote not to reinsert the tube, and the Democrat appointee strongly advocates reinsertion.   Essentially, the judges were acting apolitically, as they should have.  They did the best they could, the most anyone could ask.  But they never should have been put in this position.   Congress made the Schiavo case a major and divisive political issue.  The legislators should have taken the heat.   Instead, the legislators get to sit back and say, "We did the best we could.  Blame it on the unelected judges."

For the future, let's do everything we can to make Congress write better laws and stop passing the buck to courts.

Here is one thought on how to incentivize Congress to pass clearer laws.  Rather than interpret ambiguous legislation to effect Congress's apparent will, courts should instead develop a doctrine that ambiguous statutes will be interpreted precisely to the opposite result of Congress's apparent preference.

This is the equivalent of slapping Congress on the wrist.   Judges would address Congress explicitly and state: "You left this ambiguous, even though you knew full well that it would be a contentious issue.   You didn't want to deal with the political pressures, so you left it for us, unelected judges, to sort out.  It is not our job to clean up your mess and allow you to duck your responsibility to the electorate.   You may not shirk your duty and pass the buck to us. From our review of legislative history (etc.), we think you would have done X had you thought the issue through and spoken directly to it.   We are going to rule Y, exactly the opposite of X.  If you don't like it, fix it."

In other words, courts should punish legislators for passing the buck. If Congress is unhappy with the result, it may write new legislation clarifying the ambiguity; and eventually, Congress could develop a culture in which it crafts better statutes.   (Note that everything I have said applies equally, and perhaps even more, to regulations crafted by administrative agencies.)

To be sure, this is a radical approach that would not be easy to implement.  It also must be implemented carefully, for it does not apply in all cases.

I'm very interested in your thoughts.

AA1

--

DM: Setting the default rule to be a penalty in public law is a very interesting idea. FSU's Law School held a successful conference on the very subject of Default Rules just a few weeks ago.  Details here.  The proceedings of the symposium will be published in the FSU Law Review; drafts of the papers and more information on the conference can be obtained from Associate Dean Jim Rossi (jrossi at law.fsu.edu).

Broadly stated, Legal Realism can be defined as the theory that judges decide cases based on political obligations, policy preferences, and personal philosophies rather than on fixed and neutral doctrines, rules, and texts.   (Some may quibble with this definition, but it suffices here.)

Realists (and everyone is a realist to some degree) disagree amongst themselves as to the applicability of Realism: does it apply to all cases, most cases, some cases, or a few cases?   

Suggestion boxes and Continuous Quality Improvement

Somehow I stumbled upon this page at Stetson's law school that purports to permit students to anonymize emails that they want to send to their professors.  It appears that the tool is used by a few professors who want to encourage feedback that would be more open and honest than they would otherwise receive.  Prawfs, have you used these before? Do they work? Students, what's your sense?

The prevailing norm in law schools is to do an end of the semester evaluation of the prof, which the prof gets to see later.  Some schools circulate the results for future students to see. Some schools only let the professors see the evaluations.  When I used to teach, I would try to have at least one mid-term evaluation of teaching to see what is effective and what is not.  I suspect I will do that again, perhaps after every third of the semester.  I'm interested in putting together a "best practices" on student-faculty feedback.  Comments are open. Let me know what works there or via email.

AA1 on Picking Judges According to the Metamucil Principle

Over at The Right Coast, Mike Rappaport endorses the Lindgren/Calabresi proposal for eighteen year judicial term limits, which Ethan and I have already addressed.

Rappaport offers a benefit I didn't address:

"[Term limits] would promote a more regular appointment process, in which each President can has some influence on the Court."

I didn't realize that the "Metamucil Principle" was a goal of ours: Let All Presidents Appoint Justices Regularly and Equally. 

Even before Supreme Court justices lasted for decades on end, there was no regularity or equality in appointments.  Had Madison and the Framing Crew wanted to provide for quotas, they surely could have.  But they chose not to, apparently under the theory that Justices should be more removed from the political process, rather than an "explicit spoil" of presidential elections, as Ward Farnsworth has said. 

Farnsworth took on the "regularity" argument directly in an excellent debate he had with Norman Ornstein over at the Legal Affairs Debate Club.  Read the debate in its entirety, but here's a quick link to Farnsworth's "regularity" point.  The Framers were right.  (Does that make Rappaport a member of The Left Coast?  Or does it just make him wrong?  Just asking.)

Vigilance, Not Paranoia

Not long ago, Alan Wolfe published a book celebrating American values entitled, One Nation, After All.  Colbert King, who is reason enough to buy the WaPo, shows the limits of Wolfe's optimism here, relying especially on the the ADL's recent survey of antisemitism in America. 

Somewhat heartening is that overall antisemitism appears to be declining in the US, but the numbers of African-Americans and Hispanics who harbor antisemitic beliefs is strikingly high.  And while antisemitic beliefs may be declining in the aggregate, the number of antisemitic incidents in the US was the highest in nine years.  Not good for the Jews.  Not reason for panic, but not reason for complacency either.

Benefit for Darfur in DC on Sunday Afternoon

	DC Benefit for DARFUR
	The Front Page 1333 New Hampshire Avenue NW,Washington,DC
	Sunday, April 10, 4:00pm to 8:00pm

Darfur (pronounced “Dar-four”) is a region in western Sudan made up of Arab and African people. The Arab dominated Sudanese government is “hiring” Arab militiamen known as Janjaweed to initiate an ethnic cleansing—the widespread killing of three African tribes (Fur, Massaliet, and Zaghawa). Approximately 100,000 Africans have been killed and 1.2 million have been displaced after the Janjaweed burned the African villages and raped the women (200,000 Africans migrated to Chad where they risk their lives just to get water from the river). These refugee camps lack sufficient medical aid, food, and clean water. The World Health Organization estimates that 10,000 people are dying in Darfur each month. This easily qualifies at genocide under Article 2 in the 1948 Convention and the participatory governments are required to take action, but truthfully, the efforts have been pathetic.

We have a responsibility to help the victims of Darfur and every bit counts. On Sunday, April 10th please join us at The Front Page from 4pm-8pm for a benefit fundraiser (1333 New Hampshire Avenue NW—across the street from the Dupont Circle metro). Anyone making a donation will receive the following discounts from the venue as well as chances to win raffle prizes (including an unlimited month-long pass to Bikram Yoga Dupont):
· ½ price appetizers
· $2.75 rail liquors
· $2.75 Bud, Bud Light, Miller Lite, and Front Page Ale drafts
· $2.75 house wines

100% of our proceeds will be donated to help the situation in Darfur--most likely to the Save Darfur Coalition (1000 Connecticut Avenue NW, Suite 802, Washington D.C. 20036). Checks can be made payable to: CFNCR/Save Darfur Fund and mailed to the above address or contact us for alternative arrangements. If you have any questions, would like to contribute, or help organize, please contact Steven Krieger at: stevenakrieger at yahoo.com. You are more than welcome to circulate this invitation to anyone and everyone—and please, please, please do. The more the merrier.

A Mandate for Man Dates

Jenny 8. Lee is rightly famous for her name, and in DC and among young Harvard alumni for her consummate social hosting, networking, and her funny articles in the NYT.  But the social ethnography she self-consciously performs in today's story, which details the do's and don'ts of "man dates" (two straight guys hanging out with each other over dinner or in some other non-sportswatching venue), is too much.  For the straight busy guy who's insulted by the stereotype that we're all just sports-watching lugnuts, the article's caricature seems a distortion rather than a reflection of social reality.  But maybe I'm just extra sensitive because, after a long social hiatus, I have four "man dates" scheduled for this week with other prawf friends.  And of course, I live in Dupont Circle, where the prospect of two men eating dinner together doesn't raise an eyebrow.

The Why of Blogging

Lately, I've been asked a lot about why blog and why read them.  Not much point in reinventing the wheel. Over at TVC, Eugene Volokh posts a short collection of thoughts on why people blog and why people read them. Over at SLP, Doug B. also links to a bad article about an interesting subject: the origins of the Becker-Posner Blog. 

An exhilarating first two days!

Thousands of visitors!! Come, hang around, drink scotch and bubble tea with us.

A few personal reactions. First, comments have been much better than I expected: none of the crap, or little of it at least, that I had been warned about.  So I’m glad I was proved wrong.  There's some concern that we might end up with spam in the comments; I understand that's happened to my man Kaimi at www.tutissima.com, which is why they closed comments down. It appears that K, N and Chad took a break but they're back now. Perhaps they'll end up throwing some bones in this blog too, if our imperial ambitious are eventually realized. They would provide some more balance to the center-left mush Leib and I sometimes push.

Second, blogging is incredibly rewarding, but we have to pace ourselves for the long haul.  I think it gets faster as we get better.  There seems to be a risk of blogger burnout to consider.

Third, it’s clear that on the tech side, we’re screwing all sorts of things up so far, or at least not optimizing our form and format, but I’m optimistic that we’ll address some of the issues soon. 

Fourth, blawging about things that students care about (grades, jobs, admissions, hiring) is popular because students are surfing the web in their classes too much!

What am I missing??  Reactions generally?

Please note blogging may be slow to non-existent over the weekends.  Or more thoughtful!  But no promises.

Bon weekend.

DM

AA1: Crazy talk about gerontocracy?

AmosAnon1 on Lifetime Tenure for Judges

People such as TVC's Lindgren, et al., tout the basic idea of eighteen year judicial term limits for four basic reasons.  Supposedly, it would:

(1)   stop judges from retiring based upon political considerations;

(2)   open nominations to distinguished older lawyers and judges, who are now shut out as a result of every president's interest in shaping the Court for decades;

(3)   ensure that bad justices can't haunt us for more than eighteen years;

(4)   limit the partisan rancor that currently pervades the nomination process by reducing the stakes of a nomination.

As Ethan says below, the first benefit is undeniable. 

But ...

couldn't it just as easily be accomplished by a mandatory retirement age of, say, 70?  65?

As for the second supposed benefit, I wasn't aware that underqualified young people were getting Supreme Court jobs because older, better qualified people couldn't be considered.  This must be the only field in which a 45 or 50 year old is considered "untested" and "young."  If you are high profile enough to be in line for a nomination at age 45, then you are a star.  Maybe you went to a top law school, maybe you clerked or published. In other words, you are qualified; and if you aren't qualified, it isn't because only the old people were qualified.

With respect to the prospect of "bad judges" haunting us for 20+ years, just flip it on its head: implementing 18 year term limits would deprive us of the best judges after 18 years of service.

The fourth supposed benefit is really what mystifies me.  First, I don't see Ted Kennedy standing up and saying, "Well, since it is only for eighteen years, we should confirm Mr. Bork."  But let's assume that Ted would. The result would be more ideologues—from the right and the left—sitting on the Court. And it would make every presidential election revolve around the Court to an even greater degree than it already does.  I don't view these as positive effects. 

Put differently, how does increasing the number of times politicians get to debate judicial nominations depoliticize of the process?  That's just crazy talk. 

Finally, this would destabilize the Court.  Every issue would be up for reconsideration every few years.  Whatever you think about the Court's stances on abortion, affirmative action, enemy combatants, sentencing guidelines, and whatever else, do you really want the Supreme Court re-debating it every four years?  Bad decisions should be overturned, of course, but we'd end up with a situation in which Congress, agencies, businesses, and individuals couldn't act, because the law would be in a constant state of flux.

One of the only things the Court has going for it is its stability and mystique.  The moment it becomes just another political branch, reconsidering every foundational position every few years, is the moment the people will rebel against it.

So mandatory retirement age?  Sure.    Term limits?  No way.

--

What do you think we are, sissies?

Duty to Retreat: A Problem for Conservatives?

Brooks Holland, currently a NYC Public Defender, and about to be a CrimPrawf at Gonzaga Law, writes to us about this interesting criminal law development in Florida about duties to retreat.

Gov. Jeb Bush appears ready to sign a bill that would eliminate any duty to retreat before one may use deadly force in self defense. The NRA apparently pushed for the bill. According to CNN “[t]he bill says a person has ‘the right to stand his or her ground and meet force with force.’” So, self defense in Florida no longer will focus on the necessity of taking one life to protect another in light of the defendant’s inability to retreat safely from deadly force, but instead on the victim’s forfeiture of his right to life due to his own violent misconduct? Perhaps sort of like the old Texas cliché, “He needed a killin’.”

Does this change transform self defense from a justification defense into an excuse defense? Contrast the more traditional approach illustrated in the NY Court of Appeals’ recent decision in People v. Aiken, 2005 NY Slip Op 02562 (Mar. 31, 2005). Interestingly, while this Florida bill would appear to reflect a “conservative” political view toward criminal justice, the Court of Appeals’ decision in Aiken imposing a pretty strict duty to retreat is rooted in the “protection of life.”

DM: I haven't given tons of thought to the duty to retreat rule, but I know Dan Kahan (Yale Prawf) has written about this in various articles. It seems this is another example of the challenges of expressive politics: how law both constitutes and reflects our competing values and senses of social responsibility.  I'd be interested if people had more thoughts on this, especially with empirical evidence, in the comments.  Should I be learning target shooting in T-town? Or practicing my sprints?

Gerontocracy

Over at the Volokh Conspiracy, Jim Lindgren is further pitching his new idea (with Steven Calabresi) to limit Supreme Court Justice terms to 18 years.  Given that the average stay on the Court is now 25.6 years, will 18 years really solve the problem of "mental or physical decrepitude"?  Stevens remains sharp as whip as far as I can tell; and O'Connor surely remains perfectly competent.  Rehnquist is ailing, no doubt, but he was perfectly fine until this term -- everyone expects his resignation in June (for real this time!).

I suppose the idea has one thing to recommend it: Justices would stop being able to choose to step down during a Presidency with which they are in political sympathy.  That would surely be good so Justices' political leanings can be further swept under the rug.  But I'm not really sure I'm eager to see more fights over filling judicial vacancies...

Senator Cornyn

So Senator Cornyn has been asking us to consider whether there may be some "cause-and-effect" relationship between "judicial activism"-- judges making "political" decisions -- and violence against judges.  Here's one recent story.  And some commentary.

Here's another cause-and-effect to consider: Conservative activist judges struck down an act of Congress called the Violence Against Women Act in 2000 (See U.S. v. Morrison). Do you think women, frustrated by their inability to sue men civilly for their abuse, now fight back with violence?

A similar conversation is going on at Dissemination.

Law School Teaching

So it seems from the emails we've been getting that there's quite a demand for discussion about law school hiring.  Where's the demand for discussion about how best to end the Darfur genocide? Fine. We plan on blogging about all those in the near future.

In the interim, we invite those who actually went on the market this past year or the last two years to share some of the funniest and/or frustrating experiences you had.  Feel free to email us in confidence if you don't want us to share particulars about names or places.  Just let us know how to treat it.  Comments are also open. 

Our Broken World

I think the only thing that can fairly be said about this story: Yikes.

DeLay's Strategy: Divert, Divert!

It seems that Tom Delay's new strategy to deflect attention from his scandal-besotted tenure is to excoriate judges for their judicial restraint in light of Schiavo.  Bravo, Tom!

There's not too much to cry over in the downfall of DeLay's henchman Jack Abramoff, but let it be said that Abramoff is no longer bankrolling the jobs program that was once Stacks Kosher Deli here in DC.  During its brief life, Stacks was teeming with employees milling about, but none seemed too interested in waiting tables effectively.  Not to mention that the food was bad (gefilte fish out of a jar! Yuck!), and the portions weren't big enough either :)

DM

More on the Right to Choose

Oy.  I really hope I've been clear that Rivki is misreading me.  Indeed, I feel she may be willfully misrepresenting the argument.  Three out of four of the proposed solutions in the article she should have no quarrel with.  In the article, my most important claim is that a woman should not jump to her legal right to choose before hearing out the semen provider's positions.  Is that really controversial?  I can't see how.  But it still manages to raise people's ire.

I further proposed that a man and woman jointly could contract out of forcing support payments.  That is an option not apparently available under current law (that I know of) and could enable women to say: I agree with you, semen-provider, that we had agreed--explicity or implicitly--not to reproduce and that I now am choosing to carry that child to term against your wishes.  Accordingly, I am enabling you to sign a document that will prevent me from trying to collect money from you to support this child for the next many years.  While the support rights might belong to the child, I have the right to make decisions for the fetus now and am doing so, terminating your rights and responsibilities.  The man still has to pay the cost of having a child in the world, an emotional cost that cannot be ignored.  Is this actually deeply controversial?  I'm not convinced it is.

Under a second potential legal implementation, the man can sue for intentional infliction of emotional distress.  Obviously, there are evidentiary problems.  Are they insuperable?  I doubt it.  If the woman was on the pill and the man concededly wore a condom and a medical miracle happened anyway, it isn't clear to me that it would be inappropriate to relieve the father of support payments.  I acknowledge this assumes that both parties were pro-choice when they had intercourse.  There is a complexity if the man knows ahead of time that the woman would keep the child.  If he is on notice, the equities may change.  But I still hope having the discussion ahead of time might lead to contractual arrangements, as unromantic as they seem.  Hey, so are marriage contracts and pre-nups.  But many people get over it to protect themselves and reap the benefits thereof.

I know there are hard questions--both evidentiary and moral--about the garden variety case, where the man just wants an abortion and the woman doesn't.  I probably would cede some territory here down the road.  But for now I'm content to expose a weakness of the rhetoric of "procreative choice" and think through ways to be more egalitarian about it.  Nothing rides on Irons and Philips--it was always an ad absurdum to begin thinking through the limits of the right to choose.

The Economics of Admissions

I don't get it.

My buddy Orin is miffed by anecdotes that Bob Brian Leiter (poor Brian! he was misnamed in the WSJ earlier) has shared regarding the "strategery" going on at law schools and colleges, through which lower ranked schools are apparently turning down candidates who are expected to end up at higher places, or at least are placing extra obstacles before conferring admission. 

Doesn't this make sense though, even if it instrumentally helps schools out for US News purposes?  Is it really that bad? What it does is moderate the tendencies of the superstar (winner-takes-all) economy (as Robert Frank has called it), where people at the top vacuum up all the goodies (or offers of spots). 

When I was applying for college, I got rejected at Princeton, waitlisted at Brown, and accepted at Harvard.  I always suspected there was some collusion: Harvard happened to be my first choice by far (even though I may have received a better education at Princeton or Columbia).  So if Princeton had given me a slot, it would have diminished (though not eliminated) its ability to take someone who would have gone there in the first instance.  Of course, Princeton probably knew what they were doing in rejecting me, but the point stands: there's nothing wrong with seeking out extra signals of commitment.

The clerkship market and law school faculty hiring should play this game even more.  (Sort of like the match system in medical residencies, I suppose.)  To be sure, some schools "lower" down in the food chain don't bother pitching themselves to certain candidates because they seem out of reach and it would a waste of faculty time and money to go after them.  But many schools hiring practices seem positively bizarre, where schools ranked far down in the second tier are actively bidding on people chased by Harvard, Yale, and Stanford.  There are so many quirks and pathologies associated with faculty hiring (and we will blog on that too eventually), but surely this is one of the stranger ones.  It has the effect of keeping out perfectly wonderful candidates from schools that would benefit from their presence.

So, Orin, Brian, why shouldn't schools make educated guesses about where people want to go, and give them opportunities (such as the "please write us to confirm that you want to be on the wait list" letters) to send the correct signals?

What moral dimension am I missing here? That top people DESERVE all the slots they can get to exclude others? That can't be the case, especially in the markets we're discussing.  Is the scandal here merely ex post whining?

UPDATE: A wise comment below reminds me that I had forgotten something crucial, so crucial that I am almost prepared to recant my critique, though here too, I invite more comments.  Students, unlike clerks and entry-level hiring, pay a fee to the schools for consideration.  Does the payment of that fee morally entitle applicants to be treated differently than they are now?  I guess it's unclear whether students are bargaining for fair and full consideration, or merely a lottery ticket as it were.  Ex post, we might think the fee should allow top candidates to "buy" more admission spots.  Ex ante, we might think the fees are simply admission tickets to this horse-trading scheme, in which schools reasonably divvy up scarce slots to schools.

DM

Dan Markel on the Death Penalty (I)

The Retributivist Case Against the Death Penalty

The blogosphere has been abuzz about Sunstein and Vermeule's paper arguing that capital punishment may be morally required.  I have a long blog on that, which I will post later.  In the meantime, let me get the shameless self-promotion out of the way first.  A draft of my forthcoming piece on the death penalty is now available at SSRN.  Its full title is State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution, and it is coming out soon in the Summer 2005 issue of the Harvard Civil Rights-Civil Liberties Law Review.  (Note that the version on SSRN is still a draft and pagination, format, etc. will change.)

Basically the piece explains how best to understand retributive justice, how it differs from revenge, and why that distinction can justify both former Illinois Governor Ryan’s blanket commutation of death row and a general abolition of capital punishment.  The goal of the piece is to deliver a (figurative) punch in the stomach to those who justify the death penalty (e.g., various members of the Supreme Court and an array of commentators) in terms of retributive justice.

           I will be grateful, of course, for any comments.  If the comments come in the next few weeks, there’s a decent chance I’ll be able to revise the piece in light of them.  Please send comments of any sort to our email account at prawfsblawg at gmail.com, and substantive comments below.

Contracts Theory

Over at The Conglomerate, there is an interesting discussion about the theory of contract law.  Nate Oman has written two fascinating articles on the subject here and here.  At the core of his most recent article is the claim that autonomy theories of contract should not be precluded merely because corporations must be seen as central to the practice of contract law.  I whole-heartedly agree with this thesis and hope it gets the attention it deserves.

My own foray into contracts theory emphasizes that a general theory of contract will need to address three different sorts of contracts, all of which have a rightful place in contract law:  contracts between individuals (Type I), between firms (Type III), and contracts between individuals and firms (Type II).  No doubt, autonomy theories may have a proper place in all three Types.  But surely the general theory of contract will need to be able to explain and provide guidance on the differences between the three Types.  As the literature stands now, most theorists try to cabin one Type as the core of contract and proceed from there in theory-construction.  In this forthcoming piece, (Download types_of_contracts_and_their_relevance.doc), I argue that this strategy must be abandoned.  I'll be fixing the draft over the summer and welcome comments.

AmosAnon1: On Avoiding Schiavo Redux

Now that the Schiavo controversy has quieted down a bit, I think it is worth looking towards the future: How can we make certain that this sad story does not repeat itself?

I should state up front that I, along with most other self-styled liberals and not just a few conservatives, felt that Schiavo's feeding tube was properly removed.

However, the case was a troubling one.  The real bottom-line question was "What did Terri want?"  In the absence of direct evidence of her wishes, the court was required to rely on hearsay, and different witnesses testified differently.  Ultimately, Judge Greer chose to rely on husband Michael Schiavo and one of Michael's siblings, and having read his opinion, I think properly so. 

But I'm not sure

that any of us can be truly confident that this is what she wanted.  Further, in future cases, it is likely that different judges will assess similar evidence differently, and so everyone involved in these cases will face uncertainty.

Let's ask the question this way: Would we rather (1) err in favor of keeping people alive on machines or with tubes against their wills, or (2) err in favor of allowing them to die them against their wills?

To me, the answer is blatantly obvious: we'd rather keep a few too many people alive than allow too many to die.  The presumption should favor life, and I think most people, liberal or conservative, agree with me.

For the future, states should require a living will and/or a durable power of attorney in order to defeat the presumption favoring life.

This would carry three benefits:

1.  It would affirm our commitment to life and end-of-life care;

2.  It would promote certainty; and

3.  Most importantly, it would create incentives for people to do what we really want: draw up living wills and power of attorneys.  (These documents are available online and relatively simple to execute.) 

A living will in Terri's case would have avoided the entire spectacle.

Update: Here's a link to a living will that is consonant with Halakha.

AmosAnon1 On Religion and Same Sex Marriage

AmosAnon1 is a regular contributor.  AmosAnon2 is a composite figure.  All comments should be emailed to the blawg and the relevant writer may respond.

              I agree with the piece Dan linked to by Hillel Levin.  However, even assuming that religiously observant Jews will agree with him, I think it is highly unlikely that Protestants and Catholics who oppose same-sex marriage on religious grounds would follow Levin's logic.

              Jews, including religious Jews, grow up knowing full well that ours is not the dominant culture in society.  Stores frequently close on Sunday, but rarely on Saturday (the Jewish Sabbath).  Christmas is a national holiday, but Yom Kippur (not to mention the many other Jewish holidays) is not.  For the most part, we accept this without any problem.  We recognize that we are a minority, and we are generally (though not always) content to keep our religious practices and beliefs to ourselves.  I suppose that having been oppressed in country after country for the past few hundreds of years has caused us to learn to separate our personal lifestyles from secular law.

             Religious Christians in this country do not necessarily have the same framework.  Theirs is the dominant culture, and Christianity has shaped this country from its birth.  I think it would be difficult to convince such people that they can separate their religious beliefs from what they believe is right for the country.

Should Observant Jews Oppose Gay Marriage?

Even those who might have religious arguments against the practice of homosexuality should consider this article before making their mind up.  It's quite good.  I wonder whether those from other faiths might reach a similar conclusion as Mr. Levin, the author of the shrewd piece in the Jewish Week.

Notwithstanding the argument there, this story from last week about the unification of religious figures in Jerusalem against the presence of gays does not lend hope.  Indeed one would hope that there would be other issues the clergy could unite on: feeding the hungry, giving care to the sick.

I think it's important to recognize that, even according to the NYT article, there are religious leaders from a variety of faiths who have denounced this spectacle of bigotry, and they are not without their minions and minyans. Thus to state, as some might be tempted to, that religion is bound up with bigotry, I think misses the palette of views available. The real (Jewish) question, to my mind, is whether there will be Orthodox rabbis willing to expend some moral capital to criticize the tenor of the comments and vitriol spewed by some of these other "leaders."  Please email me if you know any: their courage and decency requires light.  The schisms in the NYT article are not only across denominational lines, but also within them, and there should be some reflection of the heterodoxy on homosexuality.

From Ethan on A Man's Right to Choose

I appreciate the responses of readers to my recent “A Man’s Right to Choose.”  It isn’t a definitive statement on the subject (how could I fit that into an op-ed?), but is meant to provoke more discussion.  And I’m happy to engage in this idea further.

Let me say at the outset that I am far more interested in the moral story of a couple’s deciding to abort a fetus than I am in the legal one.  If the publication had allowed me to, I’d have foregrounded my real point—and leave the “legal applications” for another day.  That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body.  The legal “right to choose” has confused the moral terrain—and has blinded us, I think, to how these decisions should be made in the first instance.  Although the crazy case of the (alleged) sperm-stealing I mention in the article is obviously the outlier, I do think many reasonable and educated women assume that if they want to carry a baby to term, the man will just simply have to put up with it with no recourse even though the couple took every reasonable precaution to avoid a pregnancy.  I think that default rule is troublesome.  And I wanted to use the occasion to think through the issue.

I don’t ignore that support payments are there to help children any more than Rivki ignores that the support payments have the effect of helping the mother and incentivizing her to go through with carrying babies to term she might otherwise decide to abort, realizing that she doesn’t have resources to pay for the child’s upbringing.  Moreover, I think it is insufficient to say, as Rivki does, that men just have to live with it.  I think clever institutional design can help the problem and I’m only first taking a pass at what those new institutions might look like.  Why shouldn’t men be able to contract out of paternity?

I do not mean to pooh-pooh the problems with dead-beat dads.  These people are usually criminals—and should be treated as such.  But we can’t deny that there are a class of cases where it makes sense to relieve the father.  And I think that class is somewhat broader than the sort of outrageous conduct described in the Philips case.

To be sure, the deep place inside me that is making this argument is doing so from a radically pro-abortion perspective.  People are too consumed with wanting and having biological children when the world is populated by too many children that do not have proper homes.  Those children should be our priorities; we should not be bringing new ones into the world without caring for them.  Accordingly, more incentives to abort seem perfectly justifiable.  I realize, of course, that many people do not share this view.

I’m happy to continue this conversation; I hope to write a longer and more careful piece on the issue in due course and would love feedback.

Raw Law Prof Blogging=PrawfsBlawg

My gmail account (dan.markel) has been funny the last few hours.  I can't seem to send any (more?) messages than the ones I sent out earlier to most of my contacts in my address book.   I wonder if Gmail thinks you're a spammer if you send out too many emails in a day. 

In any event, many thanks to Instapundit, Althouse, Volokh, and Crimprof for linking here and/or blogrolling us (Ideoblog).  If there's any I've missed out, please drop a line. 

A few folks have already written back with appreciation that there will be a center-left voice in the group blog world.  It looks like we'll have some good visitors and permanent contributors lined up.  Althouse has the most insightful interpretation of our innate nature here.

I'm hoping to figure out some more of Typepad's quirks over the next few days too.

Thanks for the warm welcome everyone.

A New Collaborator

I'm thrilled to say that my friend Ethan J. Leib will be joining PrawfsBlawg.  Ethan, who begins teaching con law and contracts at Hastings this coming fall, has done a bit of blogging already at dissemination.org.  It's great to have him aboard here.  Welcome Ethan!

By the way, Ethan had a very interesting piece in the Legal Times the other day about what voice, if any, a man should have on the topic of abortion decisions and deliberations.  There's a link here.

Shaming, Redux

From the I-told-you-so files.

Last August, the Ninth Circuit (the federal appeals court out West) released its Gementera decision.  That case upheld, over a dissent by my former boss (Judge Hawkins), the lower court's imposition of a scarlet letter punishment.  The defendant was required to wear a sign outside a post office that said "I stole mail. This is my punishment."

Shortly thereafter, I had a brief piece in the New Republic, commenting on the case and making the wild and crazy prediction that the imprimatur of the federal appeals court would embolden other government officials around the country to engage in similar tactics of branding and stigmatization. 

Well, according to this very recent story, Assistant U.S. Attorney William Welch sought to have a  convict wear a sandwich board that said: "I STOLE $10,000 FROM THE SCHOOL DEPARTMENT. THIS IS A SERIOUS CRIME. THIS IS PART OF MY PUNISHMENT."  Surprised?  The prosecutor acknowledged the Ninth Circuit decision as his inspiration for this punitive condition. 

Importantly, the district court denied the imposition of this condition, but left open the possibility that it could be imposed in the future.  District Court Judge Ponsor said, "I don't think it's out of the question in an appropriate case."

As it turns out, the Ninth Circuit has not yet put this question to rest.  After the Gementera decision was issued, the defendant filed a petition for rehearing and rehearing en banc.  Additionally, I represented a group of law professors seeking, in an amici curiae brief, grant of the petition for rehearing, on the grounds that the shaming condition violated various provisions of the Sentencing Reform Act and the Constitution.  As of a month ago, the court had ordered the government to respond to the briefs, which is a sign that the briefs (including the amici brief available here) may yet have some traction.   Stay tuned for developments.   

(Hat tip to CrimProfBlog.)

Problems in Expressive Politics: The Challenge of Pink Deodorant Blocks in Urinals

The other week, I noticed that the janitorial services people had placed little pink triangles in the urinals in my office building's bathrooms.  Hmmm.  Why, I wondered, is it necessary to use this charged symbol of gay oppression (see here for the history) and gay pride to disinfect men's modern day chamber pots?  Surely, in the sport of comparative victimology, Jews would be upset by the use of yellow stars or blue magen davids in such a place.  Was this too hasty a reaction to such a semiotically rich conundrum? 

What if, after all, the people who invented these pink triangle disinfectants had developed their design before the signs became synonomous with Nazi oppression?  What if the company started manufacturing these disinfectant blocks after WWII, but prior to the re-appropriation of the symbol of the pink triangle by gay political groups like ACT-UP/Queer Nation? Or, what if these fierce fighters of germs were created after the pink triangle became, like the rainbow flag, a sign of pride?  Perhaps we would think the creators are expressing solidarity then, rather than scorn, for gay rights.   

It turns out there are abundant suppliers of urinal deodorant blocks, and they come in all shapes and sizes, according to Google.   But for some reason, I can't track down who makes the triangles.  I suppose I could do some investigations at the office building, though that might get awkward.  Perhaps Boston Properties, which runs the joint, has an answer to this.  The kicker: the building next door is the home for the Human Rights Campaign, the pre-eminent gay rights organization.    :)

Aloha!

Welcome to PrawfsBlawg! 

The long-term mission here is to mimic the format and the success of the Volokh Conspiracy. But with at least one twist: first, there will probably be more (or only) center-left commentary.  Doesn't that make it seem like Crooked Timber or Balkinization or Left2Right? Sort of, but this blawg will mostly be by law people, and mostly quite junior, including some who might not even be prawfs yet.

Let me say something briefly about myself, as blogger-ab-initio. I am currently a lawyer in DC, about to start teaching in a couple months at Florida State University College of Law, which is located in Sweet Sassy Tallahassee, aka Funky T-town.  I write mostly in the area of criminal law and the philosophy of punishment, but I have opinions on myriad issues, though not too many in a Cliff Claven kind of way.  Others who may join this blog are legal academic "types" though they may choose to write under pseudonyms too. 

Please see the policies section on the About page if you have questions about comments or emails, etc.

So here it is. Bookmark it.  Come back regularly.  Things will be exciting here.