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Saturday, December 31, 2005

"In and Out of the Mainstream"

The Washington Post provides an analysis of Judge Alito's opinions here, in an article called "Alito:  In and Out of the Mainstream."  The piece strikes me as fair, though -- I admit -- I am not wild about journalists' (and political scientists') practice of categorizing judges on the basis of which side wins in particular kinds of cases.   (As the authors note:  "The idea of trying to gauge a judge's ideology from his voting patterns on different types of cases is unpopular among law professors who prefer to study legal reasoning case by case.  But the method used by The Post is well accepted among political scientists -- many of whom clump together votes on types of cases to determine whether a judge is liberal or conservative, a step The Post did not take.").

Two quick thoughts:  First, how helpful is the idea of the "mainstream" -- defined here, apparently, by the behavior of the "average" judge -- in this context?  Put differently, is it reasonable to be surprised, or even troubled, if it turns out to be the case that a Supreme Court nominee is a few notches left or right of the "average"?

Second, I am not sure I agree with Professor Chip Lupu (who has forgotten more about church-state law than I know), who is quoted in this passage about Judge Alito's religion-related cases:

Alito's views differ from those of most appellate judges and all the current members of the Supreme Court, Lupu said, because "he is on the side of whoever is trying to include or advance a religious message." Alito has taken a narrow view of the First Amendment's establishment clause, which forbids the government to sponsor any religion, and an expansive view of its free-exercise clause, which protects people's rights to worship as they want.

In an establishment-clause case in the analysis, American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote a 1999 majority opinion upholding the constitutionality of a holiday display in front of City Hall in Jersey City. A lower court had banned the display a few years earlier, when it featured a Hanukkah menorah and a Christmas tree. Two weeks later, the city put it back up with changes, adding a large plastic Santa Claus, Frosty the Snowman, a red sled and Kwanzaa symbols.

Alito said the secular additions "demystified" the religious symbols and made the display legal. In a dissent, Judge Richard Lowell Nygaard, a Reagan appointee, wrote that the "addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."

In a free-exercise case, Alito sided with a boy named Zachary Hood in Medford, N.J., who, as a kindergartner, made a poster on which he had drawn a picture of Jesus as an example of something he was thankful for. In first grade, when allowed to bring a book to read to class, he brought "The Beginner's Bible: Timeless Children's Stories."

The court's majority ruled in favor of the school system and teachers, who removed the boy's poster from a wall and forbade him to read the Bible stories to his class. Alito dissented, writing that "discriminatory treatment of the poster because of its 'religious theme' would violate the First Amendment." He reasoned that "public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment."

It seems to me that Judge Alito's vote in Zachary Hood's case does not put him at odds with those Justices who (like Justice O'Connor, whom Judge Alito will replace) believe that government may allow -- and, in some circumstances, even sponsor -- religious symbols without running afoul of the Establishment Clause.  Hood's case seems more like Lukumi -- a 9-0 case -- than Smith, doesn't it?

Posted by Rick Garnett on December 31, 2005 at 09:41 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Taking Stock of 2005...

And so, 2005 comes to a close, capped off by the Graham Amendment (for the final version, see pages 341-44 of this PDF), the McCain Amendment (see page 340 of the same PDF), Snoopgate, and Snoopgategate.

Last night, some friends of mine and I were discussing over dinner two widely disparate questions: What was the best movie of 2005, and what was the most important legal development of 2005? (This is the problem with hanging out with friends who are lawyers -- we lose all sense of perspective.)

Anyway, I have to confess that I was hard-pressed to answer either question. Whether or not it's been a down year for movies, those movies that have succeeded have generally been rather dark (e.g., Syriana, Revenge of the Sith, Harry Potter). Even Charlie & the Chocolate Factory was a darker version of the Gene Wilder original.

The parallels between Hollywood and the year of legal developments were, at least to us, striking. Kelo and the Ten Commandment cases [Van Orden and McCreary County] notwithstanding, this was not the same kind of show-stopping year in the Supreme Court as 2004 was... Maybe the nominations of Chief Justice Roberts and Judge Alito will prove to be the most lasting legal developments, but short of that, lots of wrangling over torture, spying, and secret prisons -- along with painful questions about governmental responsibility in emergencies -- have been the dominant legal stories of at least the second half of 2005. And I had to stop and think to remember what the dominant legal story of the first half was, although Terri Schiavo has to be the runaway favorite (with Booker and its accompanying mess a close second).

And so, with 2006 already in full force on the other side of the world, what was (1) the best movie of 2005; and (2) the most important legal development?

My votes, for what very little they're worth, are for Batman Begins (the movie) and, probably controversially, a pair of due process decisions by the Supreme Court that have flown at least somewhat beneath the radar -- Castle Rock v. Gonzales and Wilkinson v. Austin.

Plenty of other developments were far more newsworthy, and arguably more important to a narrower class of cases. But both Castle Rock and Austin exemplify two separate, but equally important points: In general, contemporary due process analysis tilts heavily in the government's favor, especially where law enforcement or prison conditions are concerned (as in these two cases); and it is only an increasing misnomer to cast Justices Stevens, Souter, Ginsburg, and Breyer as the Court's "liberals." After all, Castle Rock was 7-2, and Austin was unanimous.

But, I'm equally sure that I'm in the minority in viewing Castle Rock and Austin as such important developments. So, let the disagreements begin!!

(And Happy New Year to one and all -- even Yankees fans).

Posted by Steve Vladeck on December 31, 2005 at 06:54 PM in Culture, Film, Steve Vladeck | Permalink | Comments (2) | TrackBack

Levity in the Court

Saturday's NYT contains another good Liptak article on the funniest justices on the Supreme Court.  It summarizes the research of Prof. Jay Wexler from Boston University forthcoming in the new Green Bag issue.  The funniest Justices are Scalia and then Breyer, with Thomas and Ginsburg the least funny.  John Roberts is making a good show for himself so far though; looking at the stats for this Term, he's third.

Professor Wexler said the new data could be refined further, given that some justices ask more questions and thus give themselves more opportunities to provoke laughter. As with baseball batters, the true test is not in the absolute number of hits but in success divided by opportunity. But Professor Wexler said he had decided not to pursue laughter-per-question research.  "That's not going to happen," he said. "Unless I get a grant."

Posted by Administrators on December 31, 2005 at 05:38 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Friday, December 30, 2005

It's official: Snoopgate is now a DOJ file

Update:  I wasn't careful enough when I initially read the story in this post. This post has been updated. Thanks to Orin for the catch.

DOJ is now, according to unnamed officials, opening an investigation into the leak that gave way to the Snoopgate scandal.  Here's the AP report from the NYT.  Why am I not surprised that the story unfolds on a Friday afternoon before a sleepy winter holiday weekend? 

What I find odd about this is that the NSA requests the DOJ probe into the leak and yet the DOJ officials claim that they need anonymity to leak news of this probe into the leak due to the "sensitivity of the probe." Why exactly is the probe into the leak so sensitive that the DOJ officials won't make a public announcement on the record?

Posted by Administrators on December 30, 2005 at 02:14 PM in Constitutional thoughts, Current Affairs, Dan Markel, Law and Politics | Permalink | Comments (0) | TrackBack

Drinks at Cloud on Wed the 4th in DC

In conjunction with Concurring Opinions and friends at other blawgs, we're hosting (though not paying for!) a drinks event at Cloud, on Wednesday, January 4th at 9:30 PM.  Cloud is at 1 Dupont Circle NW, which is on New Hampshire Avenue just south of Dupont Circle. Click here for directions. Readers and writers (and friends thereof) are welcome.  If you can rsvp to me, it would be appreciated -- though it's  not required.  We look forward to seeing you there!

Posted by Administrators on December 30, 2005 at 01:59 PM in Blogging | Permalink | Comments (0) | TrackBack

Mitt Romney, Observant Jews, and Abortion Politics

We can all safely assume that Mitt Romney is running for president.  We can also safely assume that his positions on abortion are going to raise many eyebrows in conservative circles.

To break it down, Romney is basically personally opposed to abortion but favors its legality.  To be sure, to some audiences he has come across as somewhat more conservative, but this seems to be the gist of it.

Naturally, some conservative voters, particularly religiously conservative Christians, are aghast at this position.  They see him as wishy-washy and flip-floppy on a position that is central to their agenda, and they believe that he has taken this position for political purposes.  (It wouldn't do, after all, to run for governor of Massachusetts on a "pro-life" platform.)

I think, however, that there is more here than his naked political tightrope walking.  Abortion politics seem to revolve around two extremes.  On the one hand you have people who believe that abortion should be freely available in all circumstances.  On the other hand some believe that it should never be available.  Pro-life has taken on the definition of "opposition to abortion in all cases," and pro-choice has basically taken on the opposite definition.  Of course, there are a great number of us in the middle, but the most energetic and committed activists (and thus those most likely to participate in the primaries) on both sides are, predictably, those at the poles.

But, of course, Romney is a practicing Mormon.  And Mormon teaching on abortion seems to be more gray than black-or-white.  For this reason, Romney can't fully identify with either group of activists in the abortion debate.  The same is true of many Orthodox Jews.  Many (most? all?  I make no claims) Orthodox Rabbis take the position that abortion is permitted in narrow circumstances.  Some may even hold that abortion is required in limited circumstances.  At the same time, most Orthodox Rabbis would be repulsed by the idea of freely available abortions.  Indeed, there is a debate among some Orthodox Rabbis concerning which option would be preferable given a choice between the current liberal abortion laws or a total ban on abortion.  But exceedingly few would prefer either of those options.  And so it could be said that many (most? all? I have no idea and make no claims) Orthodox Jews similarly feel uncomfortable with either side of the abortion debate, which seems to have been taken over mainly by conservative Christians and more-or-less non-religious liberals.

This is not simply wishy-washiness (though it may be that); it is a limitation of language and political discourse.  Many Mormons and Orthodox Jews simply don't fit comfortably on either side of this debate. 

***Note that I have completely ignored the normative and legal questions concerning whether, how, and when religious belief and commitment should and may dictate policy preferences.  I take it as a given in this post that religious beliefs and commitments do influence policy preferences to varying degrees.

Posted by Hillel Levin on December 30, 2005 at 12:19 PM in Hillel Levin | Permalink | Comments (14) | TrackBack

Kevorkian biopic?

Bioethicist Wesley Smith writes, over at National Review Online, that a laudatory biopic is in the works about Jack "Dr. Death" Kevorkian.  In do doing, Smith reminds us why even those who support (and I do not) a legal or moral right to assisted suicide should regard Kevorkian as a ghoul.

Posted by Rick Garnett on December 30, 2005 at 12:30 AM in Film | Permalink | Comments (2) | TrackBack

Thursday, December 29, 2005

Church-State Law "Top Ten List"

Here, courtesy of Professor Friedman's invaluable Religion Clause blog, are the "top ten" church-state / free exercise developments:

1. Supreme Court rules on 10 Commandments displays.
2. Intelligent Design is at center of public controversy.
3. Supreme Court nominees are scrutinized over their 1st Amendment religion views.
4. The "Christmas wars" heat up-- "holiday" vs. "Christmas".
5. Government funding of faith-based organizations remains controversial.
6. Proselytization at the Air force Academy creates controversy.
7. RLUIPA is upheld as constitutional by Supreme Court and lower courts.
8. Courts strike down sectarian legislative prayers.
9. Christian student groups demand university recognition: non-discrimination vs. free exercise.
10. Accommodation of Muslim religious beliefs and practices increases.

I might add, "Catholic clergy-sex-abuse scandal prompts various interferences, or proposed interferences, with the Church's independence."

Thoughts?

Posted by Rick Garnett on December 29, 2005 at 11:52 PM | Permalink | Comments (5) | TrackBack

Evening in the Palace of Reason

I've just started (what I think will be) a fascinating book:  "Evening in the Palace of Reason:  Bach Meets Frederick the Great in the Age of Enlightenment," by former Time managing editor, James Gaines.   (Here is a review -- one of the few I've been able to find -- in the Guardian; and here is a discussion on the radio program, "On Point.")  I am not far enough in to provide a good review, but here is a "taste" from the publisher:

One Sunday evening in the spring of his seventh year as king, as his musicians were gathering for the evening concert, a courtier brought Frederick the Great his usual list of arrivals at the town gate. As he looked down the list of names, he gave a start.

"Gentlemen," he said, "old Bach is here." Those who heard him said there was "a kind of agitation" in his voice.

So begins James R. Gaines's Evening in the Palace of Reason, setting up what seems to be the ultimate mismatch: a young, glamorously triumphant warrior-king, heralded by Voltaire as the very It Boy of the Enlightenment, pitted against a devout, bad-tempered composer of "outdated" music, a scorned genius in his last years, symbol of a bygone world. The sparks from their brief conflict illuminate a pivotal moment in history.

Behind the pomp and flash, Prussia's Frederick the Great was a tormented man. His father, Frederick William I, was most likely mad; he had been known to chase frightened subjects down the street, brandishing a cane and roaring, "Love me, scum!" Frederick adored playing his flute as much as his father despised him for it, and he was beaten mercilessly for this and other perceived flaws. After an unsuccessful attempt to escape, Frederick was forced to watch as his best friend and coconspirator was brutally executed.

Twenty years later, Frederick's personality having congealed into a love of war and a taste for manhandling the great and near-great, he worked hard and long to draw "old Bach" into his celebrity menagerie. He was aided by the composer's own son, C. P. E. Bach, chief keyboardist in the king's private chamber music group. The king had prepared a cruel practical joke for his honored guest, asking him to improvise a six-part fugue on a theme so fiendishly difficult some believe only Bach's son could have devised it. Bach left the court fuming. In a fever of composition, he used the coded, alchemical language of counterpoint to write A Musical Offering in response. A stirring declaration of everything Bach had stood for all his life, it represented "as stark a rebuke of his beliefs and worldview as an absolute monarch has ever received." It is also one of the great works of art in the history of music.

Set at the tipping point between the ancient and the modern world, the triumphant story of Bach's victory expands to take in the tumult of the eighteenth century: the legacy of the Reformation, wars and conquest, and the birth of the Enlightenment. Most important, it tells the story of that historic moment when Belief -- the quintessentially human conviction that behind mundane appearances lies something mysterious and awesome -- came face to face with the cold certainty of Reason. Brimming with originality and wit, Evening in the Palace of Reason is history of the best kind, intimate in scale and broad in its vision.

I wonder . . . if there were going to be a book like this written about another (asserted) dramatic shift from one epoch to another, what pair's meeting would provide the hook?  Exam-grading fun . . .

Posted by Rick Garnett on December 29, 2005 at 11:43 PM in Books | Permalink | Comments (1) | TrackBack

No, I Don't Like to Think

It turns out that psychologists think we'll all have healthier relationships if we would just stop thinking about them so much.  Of course, there is a surface plausibility to this idea: if we take the pulse of our relationships minute-to-minute, we will lose the proverbial forest for the trees. 

I tell my students a similar thing about my courses.  Don't try to assess if you're learning day-by-day.  If you take the long view, you are likely to see that you are in fact absorbing much more than you think.  Not a perfect analogy, but still.

The problem with the prescription the psychologists recommend is that it can't be a thinking person's solution.  One doesn't will the analytic mind exactly.  And just how are we to distinguish that elusive "happiness" brought about by simply cutting off the neurotic parts of our brain from false consciousness?  Mightn't we end up in "happy" relationships that are actually fundamentally bad for us.  A central problem that can't be resolved by a New York Times op-ed, of course.  And irrelevant to the law.  But aren't most of us on break?

Posted by Ethan Leib on December 29, 2005 at 02:07 PM in Article Spotlight | Permalink | Comments (3) | TrackBack

Wednesday, December 28, 2005

Remember Endo, the Redux

Two years ago, my friend and UM colleague, Patrick Gudridge, published a fascinating essay in the Harvard Law Review titled "Remember Endo," all about the forgotten companion case to Korematsu, Ex parte Endo, in which the Supreme Court granted a habeas petition filed by a Japanese-American internee on the ground that the government (through the War Relocation Authority) lacked the authority to hold her. [I couldn't find a free version; the cite to the Essay is 116 Harv. L. Rev. 1933 (2003).]

Pat's essay focused on the relationship between Endo and Korematsu, but there was a second holding in Endo as well -- that, so long as the district court has jurisdiction over the custodian at the time the habeas petition is filed, subsequent transfer of the petitioner outside the territorial jurisdiction of that court has no bearing on the federal courts' jurisdiction over the petition.

It is this holding that I'm reminded of today in reading SCOTUSBlog's summary of the government's latest filing in Padilla -- an unusual letter signed only by the Solicitor General, and asking the Court (presumably through Chief Justice Roberts as Circuit Justice for the Fourth Circuit) to grant the government's application to transfer Padilla to Miami. Here's the letter itself:

Download padilla_s. Ct. Application to Transfer.pdf

Anyway, what's bugging me is as follows: Given Endo, why does this matter??  Endo, on my reading, squarely rejects the argument that the transfer of a petitioner can, of itself, moot a habeas petition. But if that's true, then the real issue is whether the indictment itself moots the habeas petition, and not Padilla's actual physical location.

If that's true, though, then why is the government so concerned with Padilla's physical location? Why not wait for the Supreme Court's decision to either grant or deny certiorari, which should come sometime in the next three weeks?

Why, that is, unless we've once again failed to listen to Pat...

Posted by Steve Vladeck on December 28, 2005 at 05:04 PM in Current Affairs, Steve Vladeck | Permalink | Comments (10) | TrackBack

The Weekly Standard on Snoopgate

Is its position that the President should have the authority to bypass FISA or that he does have the authority to bypass FISA?  That's a world of difference.

Posted by Hillel Levin on December 28, 2005 at 09:25 AM in Hillel Levin | Permalink | Comments (1) | TrackBack

Tuesday, December 27, 2005

All Padilla, All The Time

Over at SCOTUSBlog, Lyle Denniston thoroughly recaps the fascinating Reply Brief filed today by Jose Padilla's lawyers in the Supreme Court. Lyle thoroughly recounts the significant amount of ground that the brief covers, along with the formal introduction of Snoopgate to the Justices. [It really is a worthwhile read.] As Lyle writes:

Ordinarily, a reply brief in a pending Supreme Court case is little more than a move to claim the final say on the issues at stake, perhaps cleaning up some loose ends of argument. But so much has happened in the 11 days since the government urged the Court to deny review of Padilla's case that the atmospherics -- and perhaps the very substance -- of the case may have changed markedly.

Specifically, the two most prominent intervening events are the various Snoopgate revelations and the Fourth Circuit's order last Wednesday denying the government's motion to transfer Padilla and its suggestion that the case is moot.

At the same time comes news from tomorrow's New York Times that defense lawyers in various pending criminal cases -- including United States v. Hassoun, the Miami indictment to which Padilla was added in November -- are trying to ascertain whether any evidence used in these various cases was obtained as a result of the domestic NSA surveillance. Perhaps the link between Padilla and Snoopgate isn't as attenuated as it might otherwise seem?

It's surely a while yet before any Snoopgate issue might directly come before the Court, but I agree wholeheartedly with what I take to be Lyle's point -- that as the Justices discuss whether to grant cert. in Padilla come mid-January, the NSA allegations may reverberate fairly loudly... At the very least, since the government's op. cert. was filed on December 16, it does seem that the likelihood of the Court granting cert. has only increased, perhaps markedly so.

Posted by Steve Vladeck on December 27, 2005 at 11:23 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Team of Rivals, Except Bates

Thanks to the solitude of the holiday break, and to my procrastination from grading exams, I've been flying through my "to-read" list. The latest casualty is Doris Kearns Goodwin's much-anticipated 944-page addition to the mountain of literature on Abraham Lincoln's political life, Team of Rivals: The Political Genius of Abraham Lincoln.

Like most who have reviewed the book, I found it wonderfully entertaining and elegantly narrated. But I couldn't help thinking, as I read it, that a big, currently-relevant chunk was missing.

Goodwin styles the book as being about Lincoln's relationship with his Cabinet, which he filled with some of his most bitter political rivals -- William H. Seward, the Secretary of State who was still bitter about losing the 1860 Republican nomination to Lincoln; Salmon Chase, the Secretary of the Treasury who never shied away from promoting his political career (and whom Lincoln would eventually nominate to succeed Roger B. Taney as Chief Justice); etc.  Goodwin's work also focuses on two other "rivals" -- Edwin Stanton, tapped by Lincoln to take over the War Department, and Missourian Edward Bates, who Lincoln named as his Attorney General. [Even my high school's namesake, Montgomery Blair, Lincoln's Postmaster General, receives significant attention in Goodwin's story.]

Yet, of the four principal rivals, Bates's interactions with Lincoln, especially during the Civil War, receive far less treatment than that of the other three. Indeed, Chase's energetic daughter Kate, the dominant social figure in wartime D.C., receives more attention in Goodwin's masterwork than does Lincoln's erstwhile Attorney General, at least once the war begins.

What makes the comparative neglect of Bates so unsettling is the undeniable role Bates played in formulating arguments about presidential power during wartime that are at the heart of contemporary debates over everything from military tribunals to secret prisons and domestic spying. It was Bates, in a famous 1861 Attorney General opinion, who provided the legal justification for Lincoln's unilateral suspension of the writ of habeas corpus, relying largely on the Commander-in-Chief Clause. It was Bates who provided the legal basis for relying on the war powers as the constitutional basis for the Emancipation Proclamation. It was Bates, despite his misgivings, who first powerfully argued from inside the Cabinet for the kind of executive power claimed by the Bush Administration today.

And yet, Bates's famous 1861 opinion receives barely a mention, and only as part of Goodwin's introduction to Ex parte Merryman. And, aside from Merryman, Bates's broader role in shaping the Administration's novel legal arguments vis-a-vis presidential power is entirely neglected.

I loved the book, as much for once again reminding us of just how unique Lincoln was as for reiterating the type of leadership he exemplified has likely not been seen before or since from any American political figure. But to give such a cold shoulder to Bates, if only because his conflicts with Lincoln were far less public and controversial as Seward's and Chase's, neglects an important part of the history that, although not essential to the narrative, is at least as important for contemporary purposes, and probably more so.

Then again, I'm only a little biased.

Posted by Steve Vladeck on December 27, 2005 at 06:25 PM in Books, Steve Vladeck | Permalink | Comments (4) | TrackBack

Ah, so that's why it matters

Last week I asked why (putting aside the substantial problem with the President breaking the law) the secret wiretapping matters if the FISA court is a rubber stamp.

It turns out that the FISA court wasn't just a rubber stamp. 

Carry on about your business.

UPDATE:  The link should work now.  Thanks to Pooh for the tip on the broken link.

Posted by Hillel Levin on December 27, 2005 at 04:14 PM in Hillel Levin | Permalink | Comments (3) | TrackBack

Sucker "Fathers"

In Findlaw today, Joanna Grossman tries to defend a Florida court that is forcing an ex-husband to pay child support for a child conceived by his wife's extra-marital affair.  Here are the facts of the Parker case:

Richard and Margaret Parker married in 1996, and Margaret bore a child in 1998. When the couple divorced in 2001, the court awarded custody of the child to Margaret and ordered Richard to pay $1200 per month in child support.

When Margaret sued two years later for unpaid child support, Richard subjected the child to DNA testing and discovered that he was not the child's biological father. He thus filed an independent suit to disprove paternity, and to seek damages for what he claimed was his ex-wife's false representation that he was the child's father.

In that suit, he alleged that Margaret had known all along he was not the child's father and had purposefully concealed that fact from him. He asked a Florida court to force her to pay him damages to compensate for his past and future child support obligations.

The trial court dismissed Richard's petition, and, this month, as noted above, a Florida appellate court affirmed. As a result, Richard remains the child's legal father, with an obligation of support - and will not receive damages from Margaret for the value of his past and future child support payments.

Here's a quick taste of the reasoning:

The approach in Parker is consistent with the modern trend. That trend gives the father some time to disestablish paternity -- influenced by technology's greater ability to prove parentage. Yet, without disproof of paternity presented within the legally-set time period, the modern trend remains faithful to the traditional interests in presuming marital fidelity, protecting the relationship (both emotional and financial) between parents and the children they have treated as their own, and honoring the finality of judgments.

Here's Professor Grossman's conclusion:

While it is easy to see Richard's side of the story here, let's not forget another party's side: As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger "the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known."

I'm underwhelmed.  Maybe I'm not nuanced enough in my thinking but I think we owe it to Richard to allow him to stop supporting some other guy's child, a product of his former wife's infidelity.  Unless he knew the child wasn't his and agreeed to support it anyway, I have little sympathy for the former wife and her child; I take it she knows the real father -- and can get support payments from him.

Posted by Ethan Leib on December 27, 2005 at 02:31 PM in Article Spotlight | Permalink | Comments (16) | TrackBack

Monday, December 26, 2005

"Munich" Assessed in the NYT

Online critiques of the political bias of the "MSM" are prevalent -- far too prevalent -- in the blogosphere, as everyone knows, and the New York Times is usually at the top of that list.  I tend to think these criticisms are both a little ridiculous, given the utter dependence of most blogs on reporting by the mainstream media, and especially reporting in the Times; that they tend to simple aggressive reporting for actual bias; and that, even where bias is evident, they tend to mistake for pure ideological bias what is more often something akin to class prejudice.  But my biggest complaint has always been that critics of media bias in the Times focus on the news pages, which are far less biased and subject to many more constraints, and not on the arts pages (including the Book Review), which regularly are the site of unapologetic and opportunistic political bias.  (Is there really any excuse any more for giving Michiko Kakutani books to review that have anything to do with politics?  Or, for that matter, anything else?)

So it is with pleasure and humility that I strongly recommend today's column by arts columnist Edward Rothstein, whose critique of "Munich" -- which I freely confess I have not seen -- rings far truer and sharper than anything else I have read about that film.  (Yes, including the column by Leon Wieseltier, who I suspect is quite familiar to readers and writers of this blog and who misses at least as often as he hits.)  I hope my friends at The Right Coast, for many of whom the Times can do not right, get a look at it.    

Posted by Paul Horwitz on December 26, 2005 at 04:00 PM in Culture | Permalink | Comments (1) | TrackBack

Immigration Woes

Today's NYT features an article by Adam Liptak entitled "Courts Criticize Judges' Handling of Asylum Cases."  This article follows up on a topic covered in a post by Steve Vladeck, and looks at incidents of egregious immigration judge behavior that warranted sharp rebuke in the 3d and 9th Circuits as well.  Here's some of the key language.

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."  Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions." ...

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar.

Incidentally, Liptak's piece refers to a forthcoming law review article in the Georgetown Immigration Law Journal, but the NYT mysteriously left out the name of the article's author.   The best part of the article is the ending, which quotes Judge Rovner's reaction to a DOJ lawyer who argued before her in the 7th Circuit:

"It is so cruel to send a lovely human being like you in here to be a messenger of such madness, such nonsense," Judge Rovner said.

Posted by Administrators on December 26, 2005 at 11:17 AM in Law and Politics | Permalink | Comments (5) | TrackBack

Saturday, December 24, 2005

Constitutional Law: Request for help

As I mentioned a few days ago, I gave my first-year Criminal Law students the option of writing (in addition to the final examination) a "critical review" of Jeffrie Murphy's "Getting Even:  Forgiveness and Its Limits."  (For those students who exercised this option, the critical review was "worth" about 1/3 of their final grade).

This worked pretty well, and I'm mulling over doing the same thing in Constitutional Law this Spring.  At Notre Dame, at present, our required first-year course focuses on "structure," not "rights."  So, I'm looking for a relatively accessible, non-polemical, provocative-but-reasonable, and succinct monograph that could play the same role in Con Law that Murphy's book did in Crim Law:  Provide the basis for critical and engaged reflection on one or more primary themes or questions that run through the course. 

One idea I had was David Shapiro's "Federalism:  A Dialogue."  I also thought of Akhil Amar's recent "Biography" of the Constitution, but am inclined to think that, given the attention given to the Bill of Rights and Reconstruction Amendments, it might not work.  Justice Scalia's "A Matter of Interpretation" -- with, of course, the essays in response -- perhaps?  Judge Noonan's "Narrowing the Nation's Power"?  The latest from Professors Sunstein and Tushnet, and Justice Breyer might be too current?  Is Robert Nagel's "Implosion of American Federalism" a bit too bracing?  Suggestions, please!

Posted by Rick Garnett on December 24, 2005 at 10:23 AM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Friday, December 23, 2005

Suing the Pope

Some time ago, Christine Hurt pointed out a lawsuit against Cardinal Ratzinger/Pope Benedict in Texas, accusing him of complicity in covering up some of the sex abuse scandals. District Court Judge Lee Rosenthal has now ruled that Pope Benedict enjoys immunity as a foreign head of state from lawsuits, even if they are against him in his personal capacity for activities committed before he was a head of state.
I confess that I find this result a little bit puzzling. If our own head of state can be hauled into court for personal lawsuits, why should foreign princes and potentates enjoy greater protection? I have not yet been able to find a copy of the opinion online, so am I missing something obvious?

Posted by Will Baude on December 23, 2005 at 04:55 PM in Religion | Permalink | Comments (11) | TrackBack

Who Cares if You're Not an Enemy Combatant?

The increasingly famous Judge Robertson (who resigned from the FISA Court this week in protest) issued a fascinating opinion yesterday in a case in which (1) Combatant Status Review Tribunals (CSRTs) at Guantanamo had determined that two Chinese nationals (Muslim Uighurs) are not "enemy combatants"; but (2) the government had declined to release them anyway, arguing that even non-enemy combatants can be held until the end of hostilities. [Hat Tip: Obsidian Wings].

Makes you wonder what the point of the CSRTs is...

What's even more interesting about Robertson's opinion is that he ultimately concludes that he has no power to order the petitioners' release, for reasons I find difficult to dispute, given the current state of immigration law.  Talk about legal limbo.  It reminds me of the famous quote at the end of Chief Justice Taney's opinion in Ex parte Merryman, the case in which he rejected, in chambers, President Lincoln's unilateral suspension of habeas corpus:

I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

Here's hoping someone's listening.

Posted by Steve Vladeck on December 23, 2005 at 10:49 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Racial Repercussions of Transit Strike

Poll results from local cable channel NY1:

Percentage who agree that union was more to blame for the strike:

  • 35% of white respondents
  • 12% of African-American respondents
  • 17% of Latino respondents

Percentage who agree that the union's demands were fair:

  • 38% of white respondents
  • 75% of African-American respondents
  • 75% of Latino respondents

See also this article from the N.Y. Times.

Posted by Matt Bodie on December 23, 2005 at 10:43 AM in Corporate, Current Affairs | Permalink | Comments (2) | TrackBack

AALS Planning and Stuff

Congrats to Steve Vladeck, whose post made it onto the WashingtonPost.com's site at Dan Froomkin's increasingly talked-about column. (Tinkers to Evers to Chance?) 

Related to DC: Prawfs is planning another get-together for friends devoted readers of this and other blawgs in the hood.  Please rsvp to me if you're interested.  Right now we're thinking Wednesday of AALS week at 930pm in Dupont Circle (confirmation on location pending--I'll have another announcement soon).  If people know of other off-program AALS events that week in DC, please leave them in the comments. 

Thanks to Trevor Morrison for his posts the last couple weeks.  See you again soon, I hope.

Finally, I recently received an announcement about an amazing event that might interest readers:  Justice Breyer and Leon Wieseltier will be meeting to chat about religion and law in DC on January 15th at my old shul, Kesher Israel. Details below the fold.

On Sunday January 15, 2006, the Kesher Israel Dialogue Series is proud
to present Supreme Court Justice Stephen Breyer as he engages Leon Wieseltier in a wide-ranging discussion on religion and law in America.

There are 2 great ways to get in on this special event:

1) Become an event patron or sponsor.

Patrons and sponsors receive:
* An invitation to a cocktail reception with Justice Breyer at the
home of Barry and Gayle Schochet prior to the event.
* A complimentary copy of Justice Breyer's new book, "Active Liberty:
Interpreting Our Democratic Constitution."
* Valet parking service.
* Admission to the dialogue with reserved seating.
* A listing in the event program, in appreciation.

Tickets are $200 per person at the patron level and $500 per person at
the sponsor level. The reception will be begin at 6:30pm. Attendance at
the reception will be limited, so please reserve early.

2) Attend the dialogue at Kesher Israel at 8pm.

Tickets for the dialogue are $15/Kesher Israel members or
$30/non-members. Light refreshments will be served following the event.
Babysitting is available upon request.

To reserve your tickets, you can:

1)  Use https://www.paypal.com to send money to [email protected]. Please
indicate in the memo field indicating that the payment is for the
dialogue event;

2)  Mail a check, with a note in the memo line indicating that the
payment is for the dialogue event, to:

Kesher Israel Congregation
2801 N Street, NW
Washington, DC 20007

Posted by Administrators on December 23, 2005 at 06:34 AM in Blogging | Permalink | Comments (0) | TrackBack

Thursday, December 22, 2005

Not Alone!

Below, Steve rhapsodizes about the release fo the 4th volume of David Currie's Constitution in Congress series. He wonders:

What I wonder, though, as I read Currie's latest, is how widely each of these books has been received. Is it just uber-law-dorks like me, who find pieces like Currie's Virginia Law Review article on the Confederate Constitution fascinating, who are captivated by these historical studies?

Now maybe I am also an "uber-law-dork", but I too am absolutely elated about the new release. Unfortunately, a long0time family tradition precludes me from purchasing it myself until after Christmas Morning. My Increasingly-slavering thoughts on the first three volumes of the series are here, here, and here.

Posted by Will Baude on December 22, 2005 at 10:48 PM in Books | Permalink | Comments (0) | TrackBack

Labor Law by Contempt

The New York City transit workers strike is now over.  Local 100's board voted 38 to 5 (with two abstentions) to end the strike while continuing with state-sponsored mediation.  The mediators created a framework for further negotiations which both sides have accepted.  Although an agreement is not imminent, both sides have made concessions to return to the table.  More details here and here.

In an earlier post I talked about the ramifications of the strike, and I suggested that the Taylor Law penalities might not be sufficient for New Yorkers enraged with the strike's consequences.  While the law's stated penalties are stiff -- employees are fined two days' pay for each day on strike -- they are not so draconian that they would deter workers from striking.  However, by making the strike illegal, the Taylor Law sets up the possibility of an injunction with contempt penalities for violating the injunction.  And that's exactly what happened here.  Before the strike, the transit authority secured an injunction against the strike.  And once the strike began, Justice Theodore T. Jones of the New York State Supreme Court imposed a $1 million a day penalty on the union for contempt.  The justice had ordered a hearing for this past morning in which the union leaders faced jail time for criminal contempt.  (The New York Post had their say about the hearing here.)

The labor injuction has a storied and infamous history in the development of American workplace regulation.  Frankfurter and Greene's famous book was part of a broader movement against the use of  injunctions in labor disputes -- a movement that culminated (as to federal injunctions) in the Norris-LaGuardia Act.  Injunctions are notoriously flexible, with their penalities depending entirely on the individual judge.  Contempt can lead to massive fines and jail time for a union and its leaders.  In 1999 a federal judge enjoined a sickout by American Airline pilots and levied $45.5 million in damages against their union.

As I noted in the previous post, strikes have lost their effectiveness for most groups of workers.  Globalization, decreased unionization, and permanent replacements have weakened the market power of the strike.  Transportation workers were among the rare groups who could strike with significant consequences.  But if judges levy severe penalities against illegal strikes by these groups, they too will lose this economic leverage.  Perhaps, in cases like this one, the power of the strike is too strong.  But going on strike was once the most effective tool in the union arsenal.  Chalk up this strike and its aftermath as yet another example of the declining fortunes of labor.

Posted by Matt Bodie on December 22, 2005 at 06:28 PM in Corporate | Permalink | Comments (3) | TrackBack

The Constitution in Congress -- Volume IV

I just finished the hot-of-the-presses fourth volume in David Currie's wonderful series, The Constitution in Congress. The present volume, subtitled "Descent into the Maelstrom: 1829-1861," chronicles the evolution of constitutional interpretation in Congress with regard to slavery, secession, and the territories. [The third volume, "Democrats and Whigs," covered the same time period, but from a somewhat different perspective.]

Anyway, the entire series provides a fascinating (and welcome) insight into how congressional leaders of the times viewed the constitutional issues of the day, and, unsurprisingly, the study gets increasingly interesting the closer one gets to the Civil War (at least to those who find the constitutionality of the Maysville Road a little less interesting than the constitutionality of the Mexican War, or of the Missouri Compromise).

What I wonder, though, as I read Currie's latest, is how widely each of these books has been received. Is it just uber-law-dorks like me, who find pieces like Currie's Virginia Law Review article on the Confederate Constitution fascinating, who are captivated by these historical studies? Is there a broader audience, especially given the renewed focus on Congress as an interpreter of the Constitution?

I guess it just seems odd that Currie's massive project hasn't received (or at least hasn't appeared to receive) more attention, especially from those who base their arguments on the "original understanding," or even on early congressional intent. [For example, the current volume provides an exhaustive recounting of the 1840 Alexander McLeod affair, which gave rise to what remains today 28 U.S.C. [sec.] 2241(c)(4).]

My dorkiness notwithstanding, three cheers for Volume IV, the somewhat-cheesy Poe allusion notwithstanding. I can't wait for Volume V, even if I'm almost alone in that regard.

Posted by Steve Vladeck on December 22, 2005 at 02:51 PM in Books, Constitutional thoughts, Steve Vladeck | Permalink | Comments (0) | TrackBack

The Dover case

As everyone now knows, Judge John E. Jones III has invalidated, on Establishment Clause grounds, the Dover Area School District’s Intelligent Design policy.  (Here, thanks to Howard Bashman, is the opinion.)

I suppose I should be, but I really am not, particularly interested in Judge Jones’s identification and application-to-the-facts of the governing doctrinal standards.  (That said, I cannot resist:  It seems strange to me that courts treat separately – i.e., as two distinct Establishment Clause “tests” – the questions (i) whether state action is inconsistent with Lemon’s “purpose” and “effects” components and (ii) whether state action is inconsistent with Justice O’Connor’s no-endorsement rule.  It seems to me that it would be more straightforward simply to regard a purpose-to-endorse as an invalid purpose, and an effect-of-endorsement as an invalid effect, under Lemon.  Anyway . . ..)

The opinion did raise for me, though, (at least) these two thoughts:  In his conclusion, Judge Jones characterized – indignantly, it is fair to say – as “utterly false” the “assumption” that “evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general.”  He added, “[r]epeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.”

I wonder if Judge Jones is as obviously correct as he seems to believe he is?  The “scientific experts” to which he refers include John Haught, a Georgetown theologian and author of many well regarded books on science and religion, including “God After Darwin:  A Theology of Evolution.”  As Haught discussed a few years ago, in a helpful essay in Commonweal magazine (“The Darwinian Universe:  Isn’t There Room for God?”), many top-tier evolutionary scientists and philosophers – e.g., Daniel Dennett, Frederick Crews, Richard Dawkins -- do insist that “evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general” and that – in Haught’s words – “beneath life, consciousness, and culture there lies only a mindless, meaningless swirl of purely physical stuff.”

Now, I think – and, I admit, I hope – that Judge Jones is right in his characterization as “utterly false” the evolution-necessarily-entails-atheistic-materialism “assumption.”  But is he on solid ground when he (in effect) takes judicial notice of the assumption’s baselessness?

A second thought:  It seemed to me that, running through Judge Jones's analysis, was a view not simply that “science” entails “methodological naturalism” (a view that strikes me as sound), but also that premises that are not (reductively?) materialistic or naturalistic are therefore “religious” and (presumably) inadmissible in the curriculum of a public school.  (I would welcome correction from those who have read the opinion and do not detect this theme.)  If my sense is accurate, does Kitzmiller suggest that the Constitution requires that public schools teach “materialism” and prohibits teaching or endorsing views – for example, the view that the wealthy have a moral obligation to help the poor, or that the powerful are morally constrained in how they treat the weak – that depend, at some point, on non-materialistic premises?

The suggestion here is not that “intelligent design” is “science” or that Judge Jones was wrong to invalidate the program.  My question, instead, is whether it is plausible to think that the moral, ethical, normative, and prescriptive components of public-school education are any more consistent with thoroughgoing materialism than is “intelligent design”?  And this question makes me suspect that we would be better off if our debates about the content of science classes (and history classes, government classes, literature classes) were not framed in terms of what the Constitution permits.

Posted by Rick Garnett on December 22, 2005 at 02:22 PM | Permalink | Comments (7) | TrackBack

Hedge Hogging

Further evidence that the crash is coming.

Posted by Matt Bodie on December 22, 2005 at 11:56 AM in Corporate | Permalink | Comments (1) | TrackBack

Wednesday, December 21, 2005

Inconsistency, Legal Argument, and the War on Terror

Steve notes below Judge Luttig's scathing opinion for the court in response to the government's procedural shenanigans in the Padilla case. After explaining why the government should not be allowed to evade Supreme Court scrutiny by expeditiously deciding that Padilla can be put through the criminal justice system after all, Luttig notes that the government's refusal to come clean with the court and its inconsistent stance on Padilla end up implying that either Padilla has been detained for years on a mistake, or that the pressing importance of being able to detain American citizens is not such a big deal after all. As Luttig puts it:

(T)hese impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Meanwhile, over at my home blog, I've been joining Marty Lederman in criticizing the administration's alleged interpretation of the Authorization for the Use of Military Force, and in particular suggesting that there is a tension between the administation claims about the breadth of AUMF, and the administration claims that unless we renews the Patriot Act ASAP, Al Qaeda will strike again. (See my posts here and here). The smartest response is from Anthony Rickey, who argues that it is unfair to hold a political speech to the standards of a legal brief.

But it is not as if the government's legal briefs are much more consistent (when it bothers to brief the court at all), which is Judge Luttig's point. One of Anthony's commenters thinks this is nothing to complain about-- lawyers press every argument they've got, that's their job. But of course, it's not exactly the job of government lawyers and the solicitor general's office, and it's really not the job of the President, or whoever makes the ultimate decision about executive branch interpretation of the law and the constitution. If they executive interpretations of the law to be respected as co-equal to the Supreme Court's, they are supposed to be good faith legal decisionmakers. And while I think much, much, of the criticism of the government's legal arguments during the war on terror is overblown, I think recent events make it increasingly less likely that the President takes his constitutional obligations seriously. Others yawn and say that this is life in post-TV politics, but I have hold the President's legal machinery to higher standards. He is not a 2-bit Manhattan lawyer suing Wal-Mart.
If the President thinks, with Justice Thomas, that courts should stay out of the war on terror almost entirely, he should simply stop sending his lawyers to show up in court. We could then argue about the extent of inherent executive power, departmentalism, and so on. But that does not appear to be the President's theory. Indeed, it is not clear that there is any theory here at all. To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to "take care . . . be faithfully executed."

Posted by Will Baude on December 21, 2005 at 05:57 PM in Law and Politics | Permalink | Comments (2) | TrackBack

Hastings' New Dean

Leiter has picked up our press release about our new dean, Nell Newton.  We're all very excited about getting a new, fresh administration.  Leiter's analysis is dead on:

Dean Newton succeeds Mary Kay Kane, a leading authority on civil procedure, who was Dean for 13 years.  During that time, Hastings recruited some leading "doctrinalists" (broadly construed), including Roger Park (evidence) from the University of Minnesota and, most recently, Geoffrey Hazard (legal ethics, civil procedure) from the University of Pennsylvania; the Hastings group in the civil procedure and evidence areas (Kane, Park, Hazard, Marcus, Faigman, among others) is now probably one of the two or three best in the country. 

Like many large, state law schools, Hastings has been treated badly by U.S. News; probably only Wisconsin has fared as badly at the hands of the U.S. News criteria that reward a school for being small and privateU.S. News to the side, I've often heard folks remark that Hastings is an underperforming law school; when you consider that it's part of the prestigious University of California system, and located in one of the three great American cities (the other two being, of course, New York and Chicago), surely it should be unambiguously top 20 or better?  In particular, Hastings has been remarkably indifferent to interdisciplinary legal scholarship, having no substantial presence in law and economics, or law and philosophy, or legal history, or empirical legal studies (though some of their distinguished evidence faculty have done important work related to psychology and the rules of evidence).  The recent recruitment of the leading feminist legal theorist Joan Williams from American University suggests that, perhaps, this will change, though Hastings does face the obstacle of being a free-standing law school, without a university and its departments on which to draw. 

Could Hastings accomplish what NYU did in the 1990s, i.e., exploit its location to recruit a first-rate interdisciplinary faculty?  That must surely be one of the challenges facing Dean Newton as she takes the helm.  As Dean Newton remarked:  "I am excited about the opportunity to lead Hastings as it secures its place as one of the best law schools in the country."  Many in the legal academy will watch with interest.

NYU?  Thanks, Brian, for the vote of confidence.

Posted by Ethan Leib on December 21, 2005 at 04:54 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Fourth Circuit Rules Against Government in Padilla

To what must be the government's surprise, the Fourth Circuit has ruled against it on two important points in Padilla, denying the government's motion to transfer Padilla to civilian custody, and rejecting the government's suggestion that its original opinion is now moot.

Three passages from Judge Luttig's opinion, available here, stand out:

[A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Second:

Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.

And third:

[W]e would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.

So, what does all of this actually mean?

Well, I think it means two things:

1) Not even the Fourth Circuit is willing to put up with such transparent attempts to manipulate the judicial system.

2) At the very least, the Fourth Circuit is loath to take a hand at resolving the mootness issue before the Supreme Court does.

But, as I noted the other day, leaving its original opinion intact, while not affecting the legal analysis of whether the case is now moot, probably does go a long way to justifying the Supreme Court's review. Had the Fourth Circuit vacated its opinion, Padilla's "it's not moot" argument would have been, at least practically, a lot harder. If, as a judge, your interest is in both publicly criticizing the government's litigation strategy and making Supreme Court review as likely as possible, the Fourth Circuit succeeded here in spades.

Bottom line, I read this as Judge Luttig being very, very smart.

Posted by Steve Vladeck on December 21, 2005 at 03:14 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Hot Group Sex Action

Comes the news from Canada that the Supreme Court has issued two interesting opinions dealing with the criminal offense of indecency.  The Court set aside the conviction of a defendant for "keeping a common bawdy-house for the practice of acts of indecency" -- to wit, operating a private club in which members were free to participate in acts of group sex.  The Court, acknowledging the difficulties in doing so, attempts to craft a test for crimes of indecency that is based on "objective" concepts of "harm" rather than one of morality or community standards.  From the headnotes in the principal case, R. v. Labaye:

In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met.  The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti‑social behaviour, or (c) physically or psychologically harming persons involved in the conduct.  The categories of harm capable of satisfying the first branch of the inquiry are not closed.  The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.  This two‑branch test must be applied objectively and on the basis of evidence.

I've just peeked through the opinions and think they should be interesting to criminal law scholars interested in harm-based theories of criminal law, con law scholars interested in obscenity/pornography law, and legal philosophers.  I find it hard to imagine a genuinely objective description of harm that is truly disaggregated from public morality and that reaches as far as the Court's test would; and I find it hard to reconcile the Court's test here with the outcome in the Court's famous opinion in Butler; but these are just initial impressions.  In any event, you may find these cases interesting. 

(Was my interest in these cases at all based on the knowledge that a post titled "Hot Group Sex Action" is sure to increase our readership numbers?  Nope.  Just good disinterested scholarship here, folks.)

Posted by Paul Horwitz on December 21, 2005 at 02:39 PM in Criminal Law | Permalink | Comments (3) | TrackBack

"The Supreme Court as Anti-Magisterium"

This new paper, "The Supreme Court as Anti-Magisterium," by Steve Smith, looks (as one would expect, given the author) interesting and provocative.  Here is the SSRN abstract:

Scholars have resorted to various comparisons in attempting to understand the role and function of the United States Supreme Court: they have compared the Justices to third-branch legislators, scholars, Platonic guardians, prophets, princes, "robed masters," and aristocrats. This essay proposes a different and hopefully illuminating comparison: the Court can profitably be regarded as an (anti-)magisterium. A "magisterium" - a term usually used in Catholic contexts - is the teaching authority in a hierarchical church. This essay describes the Supreme Court as an "(anti-)magisterium" in two senses. First, the Court is a species of magisterium, except that it is an inverted one - a sort of upside-down magisterium; it is thus a particular if peculiar type of magisterium, much in the way that an anti-hero is a type of hero and anti-matter is a type of matter. Second, the Court casts itself as an institution that is opposed to and that protects citizens against magisteria - against institutions that impose orthodoxies.

This comparison is developed in three sections. The first section discusses the ways in which the United States can be thought of as, in Chesterton's description, "a nation with the soul of a church." The second section discusses the historic Catholic/Protestant division over the necessity of a magisterium in a church - a division growing out of the painful choice between an imposed (and sometimes resented) unity and a more freely-arrived at fragmentation; and it shows how this same division arises in the American political community and provides perhaps the most influential justification for judicial review. The third section examines the famous Joint Opinion in Planned Parenthood v. Casey, showing how the opinion comes down squarely on both sides of the Catholic/Protestant divide: the Casey Joint Opinion both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. Casey thus nicely exemplifies the Court's effort to serve as an (anti-)magisterium.

Check it out.

Posted by Rick Garnett on December 21, 2005 at 02:35 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

"Excessively lenient" sentences and justice

Howard Bashman blogged a few days ago about this case, United States v. Menyweather, in which a panel of the Ninth Circuit affirmed a sentence that involved an "eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinaryfamily circumstances[.]"  Bashman quoted this passage, from Judge Kleinfeld's dissent:

Does drawing a district judge whose sentencing philosophy is idiosyncratic make so idiosyncratic a sentence 'just'?  An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment. Injustice is corrosive. . . .

I wonder if any Prawfsblawggers or readers -- Dan? -- have had a chance to read and reflect on this sentence.  I'm not so interested in whether or not the district court's sentence should have rejected as "unreasonable", or as an abuse of discretion, by the Court of Appeals.  Instead, I'm curious whether people agree with Judge Kleinfeld that "[a] sentence like the one in this case is just the sort of
red flag that makes legislators wonder whether the courts need mandatory minimum sentences to assure protection of the public."

Posted by Rick Garnett on December 21, 2005 at 02:23 PM in Criminal Law | Permalink | Comments (3) | TrackBack

Ding the King

My osita had a friend who rented out a movie theatre last night for a holiday party so we went to watch the Peter Jackson remake of King Kong.  (This, btw, seems like a good way to host a party for the holidays--no drunks, no misplaced lampshades, and sno-caps for all!) 

I haven't seen the original, but I do have a few unlearned reactions.  First: don't bother. It's horribly long and terribly difficult to suspend disbelief for much of the movie.  Second, Jack Black was miscast.  He's best off playing a funny goof, not a dull though dedicated and deceitful movie producer.  At times, Naomi Watts looks indistinguishable from Nicole Kidman; no real complaints about her performance.  The real stars of the movie are the visual effects:  so King Kong plays in Jurassic Park, all the while performing a few Jackie Chan-like fight scenes with sharp-toothed dinosaurs, under the watchful eye of scary aboriginals.

Most disturbing to me were the lurking cultural semiotics of the film, canvassed in this piece by Joshua Bearman in LA Weekly.  Nice blonde and large hairy beast=primate porn? Althouse has some contrasting reactions. 

Posted by Administrators on December 21, 2005 at 02:02 PM in Film | Permalink | Comments (0) | TrackBack

Draft Paper: "Or of the [Blog]"

I have just posted a draft paper titled "'Or of the [Blog]'" on SSRN: a link to the paper, which is still under review by SSRN, is provided here.  The title is, of course, a reference to Justice Stewart's famous address, published in the Hastings Law Journal in 1975, titled "Or of the Press."  This is a rough draft, although I am on a somewhat short deadline, and I would very much welcome comments.  I mean, come on, the thing's about blogs and the law -- surely there might be a couple of interested readers around.  At 30 or so pages, it's short enough to be a nice snack between grading exams.  Here's the abstract:

This paper, a contribution to a symposium on blogs and the law, examines the legal and constitutional status of blogs. Specifically, it offers three ways of looking at the relationship between blogs and the Press Clause -- and, not incidentally, of looking at the Press Clause itself.

First, drawing on recent historical work, I suggest that we might view the Press Clause through either the free press or open press models that historically have applied to that provision. Viewing the Press Clause through the open press model makes a home for blogs in the Press Clause, but dilutes the content of the rights that might be available, for blogs or anyone else, under the Press Clause. Second, I suggest that we might view the Press Clause from a functional perspective, protecting those activities that are at the heart of what we consider to be the social value of journalism. This approach does manage to give some content to the press right, and to extend it to journalists working in the old and new media alike; but it fails to fully capture the qualities that we value in either the established press or the blogosphere.

Finally, I argue that we might view the Press Clause specifically, and the First Amendment generally, in institutional terms, identifying those speech institutions that contribute in unique and important ways to public discourse and granting them considerable autonomy to act according to the norms and practices that define and give value to each First Amendment institution. Under this approach, both the established news media and the blogosphere may find substantial protection under the Press Clause, although the content of the rights available to each institution will be different, based on the distinct nature of each institution. I argue that this approach, although in some ways it may appear to be the most radical of the three visions of the Press Clause I offer, is both normatively attractive and closer to current First Amendment doctrine than one might assume. Ultimately, although my conclusions differ significantly from his, I suggest that there may yet be life in the arguments made by Justice Stewart in his famous article on the Press Clause.

Comments, as I said, are welcome.  Be  the first on your block to make it into the asterisk footnote.

Posted by Paul Horwitz on December 21, 2005 at 12:50 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

The CA for CA

Lest you think all the talk here at PrawfsBlawg about Citizen Assemblies from me, Chris Elmendorf, and Heather Gerken was just pie-in-the-sky reform proposals, take note that the Sacremento Bee is reporting that two California legislators -- a Republican and a Democract -- are proposing legislation to get a Citizens' Assembly convened for electoral reform in California.  Stay tuned.

Posted by Ethan Leib on December 21, 2005 at 12:17 PM in Current Affairs | Permalink | Comments (0) | TrackBack

The "Alito Project" at Yale

Has anyone had a chance to read, and think about, the recently released "Report of the Alito Project of the Yale Law School" (available here; mentioned by the Post here; criticized here and here)?  I have reviewed it -- quickly, and not especially carefully -- and am not sure what to think.  Now, I regard the question whether Judge Alito should be confirmed as a (very) easy one, and I'm inclined to suspect that the contributors to the "Report" are quite convinced (and were convinced, before they produced the report) that he should not.  One quick thing:  First, it struck me as strange that the authors seem to regard it as both noteworthy, and troubling, that Judge Alito "is willing to limit congressional power" and has "imposed limits on congressional authority."  But surely no one disputes that congressional power is limited, right?  So, is the (implicit) objection that (a) Judge Alito (and other judges) should not enforce these limits?  Or, is the precise claim that Judge Alito has "imposed" extra-constitutional limits on congressional power, and not enforced constitutionally imposed ones?

Posted by Rick Garnett on December 21, 2005 at 11:58 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Are you certain about that, Mister President?

Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

—President Bush, at a Q and A in Buffalo, N.Y., April 20, 2004.

Hat tip: Tim Noah at Slate.

Posted by Hillel Levin on December 21, 2005 at 10:06 AM in Hillel Levin | Permalink | Comments (0) | TrackBack

Tuesday, December 20, 2005

The FISA Rubber Stamp(?)

Last night on CNN Jeff Toobin opined that the FISA court is basically a rubber stamp, and not an effective check on executive authority.  He reported that out of more than 19,000 warrant applications in the court's history only 5 have been refused.  He further explained that the FISA court could even grant warrants retroactively.  For these reasons, he expressed some confusion as to why Bush would bother circumventing the FISA court with secret warrantless wiretapping.

It strikes me, though, that this question cuts both ways.  If Bush could have accomplished exactly what he wanted through FISA, then why is there an uproar over the fact that he bypassed it?  Granted, if he broke the law, that's worth getting upset about; but I gather that the concern here isn't over the mere technicalities of the law, but something far more substantive.  So what is it?

Posted by Hillel Levin on December 20, 2005 at 04:13 PM in Hillel Levin | Permalink | Comments (12) | TrackBack

Does Anyone Else Find This Ironic?

The timing for this couldn't be better.

Iraq Searches, American Style

American-style search warrants are coming to Iraq, a victory for locals who don't like random searches but a defeat for some troops who think surprise searches are useful. While still under review, the new policy requiring search warrants is expected to go into force next month. "That is fine," Lt. Col. Alan Kelly tells our Julian E. Barnes in Mosul. Kelly, commander of the 172nd Stryker Brigade's 1-17 infantry battalion, explains that most bad guys operate from roving cars, not houses, anyway. But other officers aren't happy, believing the new policy will lead insurgents to simply shift strategies. "It will be just like the mosques," one tells Barnes. "They will start hiding weapons in their homes."

Posted by Hillel Levin on December 20, 2005 at 01:27 PM in Hillel Levin | Permalink | Comments (0) | TrackBack

Why the Democrats Won't Win on Snoopgate

The questions raised by snoopgate are compelling.  But don't believe for a moment that liberals can use it to their (our) political advantage.  I expect that this will play out politically much as the crime issue did.  Conservatives will be tough and portray liberals as weak.  Eventually, Democrats will figure out that the only way to win is to be tough.

Put differently, "We Won't Snoop On Terrorists" isn't a winning campaign slogan.

Proof that the Democrats can't turn this into a political win: If Orin (and everyone else that I've seen) is right that the President's actions violate the law, then we have a real life impeachable offense here.  Yet I haven't heard a single Democrat mention the word.  All I've seen are weak statements from some Democrats that they didn't sign on to the President's program or that they expressed reservations.

UPDATE:  It turns out I spoke too soon.  In fact, some Democrats have raised the impeachment question.  That notwithstanding, I still maintain that this is a political loser for the Democrats.

Posted by Hillel Levin on December 20, 2005 at 01:07 PM in Hillel Levin | Permalink | Comments (7) | TrackBack

The Inherent Power "Debate"

And so, as Lyle writes over at SCOTUSBlog, the jig is up. We've finally come to the heart of the Bush Adminstration's legal position in the war on terrorism -- that it doesn't even matter whether Congress has authorized the President's actions; he has "inherent" constitutional authority, by virtue of the Commander-in-Chief Clause, to do whatever he deems necessary. I agree wholeheartedly with both Dan's and Hillel's posts about "Snoopgate," but wanted to separately add some thoughts of my own.

Although I've elsewhere written about the extent to which contemporary arguments for inherent domestic presidential emergency powers are not easily reconciled with the original understanding, what's really fascinating here to me is the extent to which the Administration has completely forgotten (or tried to obliterate, through silence) Youngstown. Here's the famous passage from Jackson's concurrence:

    There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. . . .

   
That military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * *." Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

Consider also this quote of Hamilton's (the well-known opponent to presidential power that he was), from The Federalist No. 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

What we've come to then, is a debate about first principles.  Did September 11 really alter fundamental structural imperatives in American constitutional law, to the extent that the President may today resort to inherent powers domestically in a manner that has never been sanctioned otherwise? Even when Congress affirmatively disavows presidential authority, has 9/11 so irrevocably rewritten American jurisprudence that the President remains unchecked, domestically, by the other two branches?

Unfortunately, the two present cases even remotely raising these questions -- Hamdan and Padilla -- will likely not require the Court to answer them. [Although, interestingly enough, this was the government's initial position in Padilla -- that the President has all the authority he needs under the Commander-in-Chief Clause, and no congressional authorization is necessary.]

But somewhere along the way, this gets VERY dangerous, very quickly, and I'm increasingly starting to think that we're past that point. Early in the Padilla litigation, District Judge Mukasey objected to the argument of one of the amici in support of Padilla that, if the government's position were sustained, "
a dictatorship will be upon us, the tanks will have rolled." As Mukasey wrote:

Those to whom images of catastrophe come that easily might take comfort in recalling that it is a year and a half since September 11, 2001, and Padilla's is not only the first, but also the only case of its kind. There is every reason not only to hope, but also to expect that this case will be just another of the isolated cases, like Quirin, that deal with isolated events and have limited application.

I wonder if he could still be so sanguine today.

Here's what's basically bothering me: It's one thing for Congress and the President, acting together, to so decisively alter the traditional constitutional framework (which, of course, is not to assume the constitutionality of such action). But it's something else altogether for the President to take the position that it was up to him, by himself, and that Congress had (and has) nothing to say about it. Whether that understanding of constitutional law prevails in the field of foreign affairs is an important and worthwhile debate. But it has long-since been decisively rejected, as a necessary part of the constitutional dynamic, that the President has such unchecked unilateral authority at home. Not even Lincoln took such a bold view, and that was during the Civil War.

Two quotes from at or near the Founding are particularly poignant here -- the first is Madison, writing in The Federalist No. 47:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

The second is Chief Judge William Cranch, writing for the old D.C. Circuit Court in a case arising out of the Burr Conspiracy [there's no free link out there; the cite is United States v. Bollman, 24 F. Cas. 1189 (C.C.D.D.C. 1807) (No. 14,622)]:

In times like these, when the public mind is agitated, when wars, and rumors of wars, plots, conspiracies and treasons excite alarm, it is the duty of a court to be peculiarly watchful lest the public feeling should reach the seat of justice, and thereby precedents be established which may become the ready tools of faction in times more disastrous. The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which an hundred innocent persons may suffer. The constitution was made for times of commotion. In the calm of peace and prosperity there is seldom great injustice. Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude. 

There is something more than a little bit scary about the argument that the President has the inherent constitutional authority to act domestically in whatever fashion he sees fit to "defend" the nation from terrorists. At least, finally, it's out in the open.

But that doesn't make it any less discomfitting.

Posted by Steve Vladeck on December 20, 2005 at 12:40 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack

If They Knew This Is What They Were Doing, They Wouldn't Have Done It

If you've been following Snoopgate, then you know that Bush and his team argue that the congressional authorization for military force overrides any FISA-related obstacle to the wiretapping in question.  (If you have no idea what I'm talking about, I refer you to Orin's excellent analysis.)

Well, here's another wrinkle.  According to AG Gonzalez (via Kos), the administration considered trying to get a bill passed amending FISA to expressly permit this warrantless monitoring; it ultimately chose not to pursue the law because it became clear that Congress wouldn't pass it.

This can mean only one of two things:

  1. When Congress passed the use of military force authorization, it did not intend to give the President this monitoring power, and if it had so realized, it would have more narrowly tailored the resolution.
  2. Congress may have wanted to give the President very broad powers, including the power to wiretap without a warrant, when it passed the military authorization; but it would not expressly give the President wiretapping power in a separate bill, perhaps because it would be too politically controversial.

Posted by Hillel Levin on December 20, 2005 at 12:11 PM in Hillel Levin | Permalink | Comments (0) | TrackBack

Law, Justice, and the NYC Transit Strike

Pc201291_2 Local 100 of the Transit Workers Union of America has called a strike for its workers at the New York Metropolitan Transportation Authority.  With the subways and buses shut down, New Yorkers are forced to walk, car pool, or taxi to work, or skip it for the day.  It is unclear how long the strike will last, but Local 100 and the MTA seem fairly far apart in their negotiations.  This strike is the first one in 25 years; New Yorkers had gotten accustomed to last minute negotations that inevitably were resolved.  But not this time.

Pc201295_1Outside of our apartment in Manhattan, the streets are crowded, but there is no gridlock.  Much of the traffic is being stopped at checkpoints before it gets into the city; there is a four-person occupancy requirement for all non-commercial vehicles.  Lanes for emergency vehicles have been established on the major thoroughfares.  And it is cold.  The Red Cross has reportedly set up an emergency hot beverage station at the Brooklyn Bridge.  (For continuing strike coverage, the cable channel NY1 has an excellent website with ongoing developments.)

Roger Toussaint, the head of Local 100, said that the strike is "a fight over dignity and respect on the job" and that "[t]ransit workers are tired of being underappreciated and disrespected."  The mayor responded: "This is not only an affront to the concept of public service, it is a cowardly attempt by Roger Toussaint and the TWU to bring the city to its knees to create leverage for their own bargaining position."  The strike is illegal under New York's Taylor Law, which imposes penalities on employees such as deductions of two days' pay for each day of work missed.  Local 100 could also lose its rights to represent transit employees and to receive employees' dues through a payroll deduction.  The MTA has already obtained an injunction against the strike.

The strike raises thorny issues of workplace fairness.  For supporters of labor rights, the right to strike is one of the only sticks in the labor arsenal.  And the diminishment of labor power is in part related to the diminishment of the power to strike.  Strikes have become much less effective over time as employers have grown willing to replace strikers permanently, and as globalization and decreased unionization have weakened the strike's market power.  President Reagan's firing of the air traffic controllers for their illegal strike stands as a watershed moment in labor history -- a sea change in workers' ability to strike for negotiating leverage.

Pc201294_1However, it must be recognized that in all cases, a strike is a blunt instrument -- an inefficient stoppage in commerce that hurts worker and employer alike.  Strikes hurt innocent third parties and do not generally engender sympathy for the cause.  Moreover, the power of a strike depends primarily on the workers' position within the economy, not on the justice of their cause.  Transportation workers are uniquely situated to screw everything else up with a strike.  That is why private transportation employees are covered by the Railway Labor Act, which curtails the right to strike and instead diverts conflicts to a mediation process.

I have sympathy for the claims of Local 100 that its workers are striking to prevent their pension and benefits from being cut.  But if allowed to exercise the right to strike unimpeded, these workers would have incredible negotiating power over the rest of the citizenry.  The strike is akin to a man-made natural disaster.  If it lasts much longer,  a new, stricter version of the Taylor Law may not be far behind.

Posted by Matt Bodie on December 20, 2005 at 09:16 AM in Corporate, Current Affairs | Permalink | Comments (1) | TrackBack

Larger matters than Kiwi

Like Steve, I too was surprised about the revelation that the NYT sat on the Snoopgate story for a year.  Some interesting developments.  First, Orin Kerr's got a thorough post up analyzing the various legal questions about the President's claim that the NSA snooping on domestic persons was legally permissible. Orin's basic thesis, I think, is that the snooping likely violated Congressional statutes but not necessarily (though possibly) the relevant constitutional provisions.  Dan Solove largely concurs

The suggestion that if Congress hadn't blocked the spying, the POTUS would be able to do it pursuant to his authority brings to mind an odd situation, noted by, among others, Justice Jackson:  "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

Bush in the meantime has been on the offensive.  On the NYT's decision to sit on the story for a year before releasing it, Jonathan Alter reports that Publisher Pinch and Editor Keller were summoned to Bush's office last week, so Bush could try to persuade them to kill the story (finally).  No dice.  And there's poor Albert Gonzales, whose credibility once again is undermined.  Pinned in questioning by Senator Feingold, Gonzales said "it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."  As Marty explains over at Balkinization, the Administration's posturing (under Gonzales' shilling) is English for chutzpah.

Update: the LA Times reports that the NYT had the story on Snoopgate prior to the 2004 election.

Posted by Administrators on December 20, 2005 at 12:52 AM in Criminal Law | Permalink | Comments (0) | TrackBack

A storm brewin'

I've been tipped off by a couple readers about the storm developing in New Haven regarding the Yale Law Journal's decision to publish a symposium contribution -- entitled Control Mechanisms for Quasipublic Executives:  The Intersection of Corporate and Constitutional Law -- by Kiwi Camara and a frequent (and valued) commentator on this blog, Paul Gowder, who was a classmate of mine in law school.  I'm not sure how Paul got to know and co-write with Kiwi -- though perhaps they overlapped in law school and were introduced as among the youngest graduates of HLS in history -- but I'm pretty sure he wasn't responding to this unusual invitation by Kiwi.

The background story, in brief, is that a few years ago Camara used an offensive term in an outline that he posted on the HLS internet outline bank. As a result, Camara was at the center of controversy at HLS; I think there was even a New Yorker story about the tempest that his comment and subsequent response caused.   Now, post-clerkship with Harris Hartz on the 10th Circuit, Camara is at Stanford as an Olin Fellow.  He has written the above-mentioned piece with Paul, which they submitted to the YLJ for a symposium, and which was accepted on its merits.  (In this respect, kudos to Paul, who doesn't have an academic posting yet.) 

After the YLJ's acceptance of the piece, the YLJ's editors discovered Camara's earlier statements and  considered rescinding their offer to publish the piece and the invitation to speak at the symposium.  In the end, they decided not to rescind the offer.  And sure enough, there's now a blog that hosts discussion about the incident, mostly by Yale Law students.  Many of the comments on the blog are anonymous, which itself raises interesting questions.  Importantly, Paul denies that Camara is a racist, and recently forwarded an apology from Camara, which is pending publication on the blog.  (Update: I have received a copy of the apology which you can download here.)

Ultimately, much as I think Camara's comment was mean-spirited and bone-headed, I think the YLJ's decision to not rescind the offer to publish the piece is correct.  Camara hasn't commited a crime, and even if he had, I don't think the YLJ should be in the business of googling or ferreting out the bad actions of every person they decide to publish.  Many law profs have spots on their moral pasts and it would be surpassingly odd (and unfortunate) if good moral character had to be proved before publication in a law review could eventuate.  It's true that the YLJ is not a public forum and the editors have broad editorial discretion; such discretion may lawfully be used to publish only fellow travelers or non-offensive speakers.  But the question here is about moral judgment.  And it's a tough one. 

As one comment noted, Heidegger was a Nazi--does that mean we shouldn't assess the arguments he made?  No.  Would it mean the YLJ (or some comparable journal in philosophy and social thought) should publish Heidegger simply because of the work's contributions? Not necessarily.  But to the extent that the YLJ shouldn't publish scholarship by Nazis, it's worth noting that Camara's comment doesn't make him the moral equivalent of a Nazi.  Paul, whom I know somewhat, engages the topic at length in the comments to the blog and vouches for Camara as a non-racist; Paul is, as readers of this blog know from his comments, a left-wing civil rights lawyer, and half-Black.  His endorsement carries some weight with me, especially since he has offered to pull his name from the piece if any other evidence of Camara's racism comes to the fore.   Along with the other comments, the discussion at the blog provides a worthwhile read.

No doubt this event is frustrating for Paul--though I doubt it will have any long-term effect on him.  Camara is another story.  Notwithstanding his evident work habits, Camara will have to make a convincing mea culpa before the academy welcomes him in it on a full-time basis and  I suspect some law firms and/or law schools will be or have been hesitant to interview Camara because of this entire incident. 

Update: Camara has issued his apology (I received a copy of it from Paul, so I assume it's authentic).  I'm quite certain that it won't mollify everyone, but it might persuade some.

Posted by Administrators on December 20, 2005 at 12:36 AM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Monday, December 19, 2005

The Economic Death Penalty: Show me the Model!

Posner and Becker's blog posts on the economics of the death penalty provide an occasion for a few reflections.
Both Posner and Becker place a great deal of weight behind the empirical evidence that the death penalty deters crimes for which it is a punishment. (Becker explicitly disavows any other justification for the death penalty, Posner acknowledges that lots of other factors play into the calculus, but considers many of them a wash.) They don't go as far as the famous/infamous Vermeule/Sunstein line that capital punishment may be morally required, but the commitment to this sort of utilitarian line may lead them there.
Now, I happen to support the death penalty for certain serious crimes entirely independently of its deterrent effect. But if the argument for killing murderers is to rest entirely on the econometrics, I will have to be colored skeptical.

The problem is not, I think, with some platonic form of capital punishment. I do believe that even those with a criminal or murderous bent respond to some incentives, and that even if many murderers are addled, ignorant and very short-sighted, there might be enough of an effect on the margin for some death penalty regimes to deter serious crimes.

But of course our death penalty regime isn't that, and isn't even close. As Steven Levitt pointed out when I took his Economics of Crime , the death penalty is 1, very rare, even for murders, and 2, very slow.
So even if we posit a rational Beckerian potential murderer who sits down and weighs the expected costs and benefits, it seems unlikely that our death penalty regime should have much place in his calculus. In a state with no death penalty and life-without-parole, he faces, if caught and convicted, being locked in a box for the rest of his natural life. In a state with the death penalty and current safeguards, he faces the likelihood, if caught and convicted, of being locked in a box for the rest of his natural life, and a very small probability of being locked in a box for many years, very probably dying of natural causes, but possibly eventually being prematurely killed by the state.
Posner briefly adverts to this problem in his post, but suggests two counterarguments:
First, that the usual estimates for how rare the death penalty is miss the fact that many murders aren't eligible for the death penalty. He is responding to this argument by Steven Levitt and others, and his point seems fair, although he doesn't provide his own data, so it is hard to know how far it goes.

Second Posner suggests that option 2 (being locked in jail for ten years and then humanely killed) is so much worse than option 1 (being locked in jail for forty years and then dying on one's own or as a result of abuse or violence) that even a small probability of the former makes a big difference. (He says "most people would pay a substantial amount of money to eliminate" a .01 to .005 probability of death.)
This strikes me as rather improbable. First off, there are a number of life prisoners who would in fact prefer to die than to continue to live in what they consider to be unbearable and abusive captivity. That is why some prisoners have to be kept on suicide-watch. Second, even those who think that life in a box is better than no life at all should project this choice several years into the future, given the length of criminal trials, appeals, habeas, collateral habeas, and so on. Given that criminals tend to have disproportionately high discount rates, this further attenuates the possibility that a lethal injection several years down the line is going to make much difference. Third, owing to the current politics of the death penalty, there are quite a few very very smart lawyers and students willing to devote a lot of pro bono time to proving the innocence of anybody who looks likely to be executed, and there are a lot of extra protections that attach to a death penalty trial. Because the quality of one's representation and hearing depend at least somewhat on the proposed penalty, this is an additional reason that the threat of having to enter our Eighth Amendment death-is-different jurisprudence may not be the awfullest of awful fates.

Now, of course dying is bad, and most people most of the time would rather live than die. But given how rarely the death penalty is imposed, even for serious crimes, indeed given how rarely the death penalty is imposed, even for those on death row, it certainly doesn't seem common-sensical to think that our current death penalty system scares your marginal wrongdoer into doing anything differently at all. It is possible that some brilliant economist or behavior economist could design a rational-choice or boundedly-rational-choice model to explain given the current facts why we should think it is even conceivable that the death penalty deters crime, but until I see it, I am rather inclined to be skeptical of the very mixed empirical evidence. Has anybody seen a real-world model of how our death penalty might conceivably deter?

Posted by Will Baude on December 19, 2005 at 07:50 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Obscenity after Lawrence

This news story reports that (to the surprise of few, I imagine) the U.S. Court of Appeals for the Third Circuit has reversed a district-court decision invalidating several federal obscenity laws, "saying that those laws violate the Constitution.  [The trial judge] specifically cited a recent Supreme Court case, Lawrence v. Texas, in which the court ruled that laws prohibiting same-sex sodomy are unconstitutional.  He ruled that the Lawrence decision undermined obscenity statutes, as well as earlier Supreme Court decisions that upheld them."  (Here is a link to the Court of Appeals decision in Extreme Associates; here is the district-court opinion).

The trial judge had reasoned, in a nutshell, that "[a]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone compelling, state interest." He had also noted that "upholding the public sense of morality is not even a legitimate state interest that can justify infringing one’s liberty interest to engage in consensual sexual conduct in private[.]"

So . . . why (putting aside the whole "district-court judges should not announce the implicit overruling of Supreme Court decisions" thing) was the district-court judge in Extreme Associates wrong?

Posted by Rick Garnett on December 19, 2005 at 02:24 PM in Rick Garnett | Permalink | Comments (4) | TrackBack

Murphy's "Getting Even" and Criminal Law

This semester (and last year), I gave my first-year Criminal Law students the option of writing (in addition to the final examination) a "critical review" of Jeffrie Murphy's "Getting Even:  Forgiveness and Its Limits."  (For those students who exercised this option, the critical review was "worth" about 1/3 of their final grade).  I highly recommend the book.  I've now read it three times, and continue to find it both enlightening and unsettling.  (I'm also a big fan of Murphy's essay, "Law Like Love."  This piece asks, "what would law -- particularly criminal law [and punishment theory] -- be like if we regarded love (agape) as the first virtue of social and legal institutions?")  Here is a blurb from the SSRN abstract for "Getting Even":

This book - drawing from the resources of philosophy, law, psychology, religion, and literature - argues that vindictive emotions (anger, resentment, and the desire for revenge) deserve a more legitimate place in our moral, emotional, legal and even religious lives than we currently recognize and that forgiveness, though often a great virtue, deserves to be more cautiously and selectively granted.

And, here is a review, published a few years ago in First Things.

I cannot say with any confidence -- at least, not yet -- how my "critical review" option is perceived by my students, but I'd welcome reactions from Prawfsblawggers and readers.  The idea, I guess, has been to provide students with a way -- if they want to -- to explore "punishment theory" questions in more depth than an essay question on a three-hour exam permits, and also to give those students who are (or who think they are, or who fear they might be) not-so-good at showing what they've learned on exams another, separate chance to do so.  The option has resulted in considerably more pre-Christmas exam reading than I would otherwise have, but I think I'm happy with it.

Posted by Rick Garnett on December 19, 2005 at 02:01 PM | Permalink | Comments (3) | TrackBack