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Wednesday, February 28, 2007

China's bishops and church-state separation

(Re-posted from the University of Chicago Law Faculty Blog):

Although its government likes to claim otherwise, and hopes we won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the United States Commission on Religious Freedom stated, in its 2006 Annual Report, “The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief." And so, it was probably more disappointing than surprising when the government-controlled puppet-church, the "Chinese Patriotic Catholic Association," last November purported to ordain a new bishop for Catholics in the Xuzhou Diocese, about 400 miles south of Beijing.

Why should we care? Is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries  - the Holy See and the People's Republic - picks Chinese bishops?

Yes, there is.

First, the Catholic Church's resistance to China's efforts to control the flock by picking the shepherds is a reminder that free and independent non-state institutions - for example, political parties, labor unions, social clubs, and churches - are essential to the development and survival of civil society and political freedom. It might not be easy to appreciate, given how used we've become to thinking of "the Vatican" as hide-bound and authoritarian, but the Holy See is waging a crucial fight for freedom. What's more, China's heavy-handed hostility to independent institutions highlights the importance, and real meaning, of the "separation of church and state."

Thomas Jefferson's famous image of a "wall of separation" between church and state does not appear in the text of our Constitution. Still, the idea of church-state "separation" is at the heart of how we Americans think about religious freedom. Indeed, as Columbia University’s Professor Philip Hamburger has observed, the "wall of separation" metaphor is, for most of us, "more familiar than the words of the First Amendment itself."

And so, while we probably cringed, we probably also nodded, when former president George H.W. Bush recalled being shot down over the South Pacific in World War II and spoke of the "fundamental values" that sustained him during the ordeal: "Mother and Dad and the strength I got from them, and God and faith - and the separation of church and state."

Unfortunately, the "separation of church and state" is widely misunderstood, by critics and defenders alike. Activists and litigants deploy the idea as a slogan, as a mantra or mandate for a faith-free public square. In some quarters, "separation" serves as a rallying cry, not for the distinctiveness and freedom of religious institutions, but for the marginalization and privatization of religious faith. And, of course, such distortions can trigger misguided overreactions, as when former congresswoman Katherine Harris of Florida announced last August that the separation of church and state is a "lie we have been told" to keep religious believers out of politics and public life.

But here is where we can learn from the persecution of the churches in China. It is precisely by failing to respect the "separation of church and state," and by trying to co-opt and domesticate what the government regards as a dangerous rival, that China is trampling on religious freedom. In a way, China and the Holy See are replaying one of the oldest and most fundamental religious-liberty scripts. Today, many regard church-state "separation" as a reaction to church control of government. In fact, though, it was for a millennium the ambition of kings to expand their power, and keep down their rivals, by controlling the church and its affairs. And, by resisting, the medieval church affirmed the foundational and still-fundamental principle that the state and its power are limited.

It should not have raised eyebrows, then, when Pope Benedict XVI recently emphasized a point that he has made often and forcefully in his writings: The "distinction between what belongs to Caesar and what belongs to God" - in other words, "the distinction between Church and State" - is not anti-religious, but is, in fact, "fundamental to Christianity." As the famous American Jesuit, John Courtney Murray, once wrote, separation is not secularism but is instead a "means, a technique, (and) a policy to implement the principle of religious freedom."

The struggle for the churches' freedom in China reminds us that what the "separation of church and state" calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not so much to prevent religious believers from addressing political questions, to block laws that reflect moral commitments, or to tear down Ten Commandments monuments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing - neither controlling nor controlled by the state. This freedom limits the state and so safeguards the freedom and consciences of all -  believers and non-believers alike.

Posted by Rick Garnett on February 28, 2007 at 06:28 PM in Religion | Permalink | Comments (1) | TrackBack

Tuesday, February 27, 2007

Union elections and the Employee Free Choice Act

You may have noticed the full-page ad on the back of the N.Y. Times Week in Review section about the Employee Free Choice Act.  The ad has a photo of two women and asks, "What happened to RNs Peg and Laura when they decided to form a union?"  A discussion follows of the employer's campaign against the union and the delay in negotiations for a contract.  The ad ends with a plea for the Employee Free Choice Act "[s]o workers can make a free choice to bargain for better treatment at work and a better life for their families."  Readers are directed to an AFL-CIO website, EmployeeFreeChoiceAct.org, for more information.

Although I know of no polling data, I would guess that the majority, if not the overwhelming majority, of labor law professors would support the Employee Free Choice Act, particularly the card-check authorization portion.  I would support card-check as well.  But at the same time, I think the N.Y.Times ad gives the reader an unrealistic impression of union organizing.  And as I detail further in a recent paper, we need to reconceptualize our notions of union representation to better accord with the reality of the unionization process.

Harvard labor law professor Paul Weiler first championed the "card-check" system of union certification in the 1980s.  In essence, the system allows for a group of employees to choose union representation by filling out a card, rather than voting in a secret ballot election.  Under the NLRA (as amended by Taft-Hartley), employees must vote through such an election if the employer does not agree to recognize the union.  The primary effect of a card-check system would be to get rid of the pre-election campaign, in which the union and the employer are allowed to lobby for employee votes.  Unions have long argued that the campaign period allows employers to intimidate and coerce employees, using lawful and unlawful means.  Such tactics are described in the NYT ad: anti-unions mailings "three times a week," forced attendance at anti-union meetings, allegations that unions are violent and dangerous.

Research by academics such as Paul Weiler and Kate Bronfenbrenner has demonstrated the deleterious effects of such anti-union campaigns.  And that's why most labor law professors, I believe, would support a way to eliminate the campaign.  Card-check certification would remove the time period when employers can most intimidate employees into voting against the union.

At the same time, however, I think the end of the campaign causes a problem: there would no longer be any period of time for employees to publicly consider their unionization decision.  This public time is useful for employees to get information about the union, discuss what the union would mean, and weigh the costs and benefits collectively.  And that is what I think is somewhat unrealistic about the NYT ad.  The ad's narrative implies that the decision by Peg, Laura, and their coworkers arose spontaneously among these workers as a group.  For example, the ad says that the RNs signed cards "to form a union."  Well, my guess is that they didn't actually "form a union," in the sense of creating their own organization.  Instead, they probably chose to join an existing union.  And I would guess that the union was an AFL-CIO affiliate.  Workers can form their own independent union, but that's not what happens during a union organizing drive.  During a drive, union organizers try to get employees to sign up with an exisiting union, so they can enjoy the benefits that that union provides.

Similarly, the ad states that the employer showed videos "saying unions are violent and would slash their tires.  Laura says she looked around the room and couldn't believe any of her co-workers would slash her tires."  But it's not her co-workers that the ad is talking about -- it's union organizers.  In fact, nowhere does the ad mention the name of the union, or the fact that the cards they signed were provided by an existing union.

Now, you might say that this doesn't matter that much -- it's just rhetorical spin.  But I think it helps to confuse the nature of what's going on when folks join a union.  Unionization is generally not a spontaneous, internal blossoming of a desire to participate in the workplace.  It is instead an effort by a organization to get other folks to join that organization.  Indeed, in many ways it is like a purchase of services: a group of workers are collectively deciding to buy representation services from a non-profit service provider.

This reconceptualization has ramifications for the union certification process, as I detail in my paper Information and the Market for Union Representation. Essentially, the paper argues that the market is not equipped to provide employees with the proper information about their representation choice.  Unions have an incentive to "sell" employees on the benefits of unionization; they have no incentive to highlight the costs.  Since unions generally don't compete with one another, there are no competitive forces to create comparative advertising and information.  Employers may generally have incentives to provide information about the costs of unionization, but those incentives are not aligned well with employees' interests.  In fact, the incentives are completely reversed: an employer has the most incentive to dissuade employees when it has the most the lose from unionization.  That often means that an employer will fight the union the hardest when employees have the most to gain from it.

I presented the paper at the Stanford/Yale Junior Faculty Forum last summer, and I will also be presenting it at the ALEA annual meeting this spring.  I will be posting the paper soon.  And I also plan to develop the further ramifications of the purchase-of-service paradigm in future research.  Your thoughts on the endeavor would be greatly appreciated.

Posted by Matt Bodie on February 27, 2007 at 11:00 PM in Corporate | Permalink | Comments (23) | TrackBack

The legal rules of fiscal federalism

My apologies to the prawfs crew for light blogging during my guest stint -- I've been busily polishing the rough edges of a new draft, "Federal Grants, State Decisions".  Since it's fresh on my mind, and Dan has assured me that there is no clear blawg norm against self-promotion, I'd like to say a few words about it in the hopes that I will pique your collective interest. 

The focus of the paper is on "conditional spending" -- federal grants with strings attached.  Pretty much everyone who's written about conditional grants thinks that they're problematic, and that either they should be outright unconstitutional (a small group of largely conservative scholars) or that courts should interpret the conditions strictly against the federal government (the Supreme Court, along with a medium-sized group of mostly leftish scholars). 

I argue that there's a good chance they're all wrong.    Why?  Read on...

In essence, my claim is that arguments about the dangers of conditional spending all assume that state officials will fail to account for those dangers in their decisions to accept the grant.  Now, it's almost certainly right that state officials don't internalize harms to the rest of the country, don't care that much about long-term effects, and want lots of money.  But my claim is that they have plenty of other self-interested reasons for turning down just those grants that we think would undermine federalism values.  For instance, officials probably prefer a diverse set of rules to a uniform federal rule, so that they can choose the rule that allows them to extract the highest local rents, export costs onto other jurisdictions, and claim maximum credit for any good outcomes. 

The other key claim of the paper is that officials don't really need federal money.  I offer a model showing that, in many cases, it will be politically cheaper to raise money through local taxes than by accepting conditional grants.  And I dig into lots of empirical data on how states respond to grants for evidence on their actual fiscal need (an indirect approach I'm obliged to take because of the scarcity of useful data on actual U.S. fiscal need). 

So, at bottom, I say that the burden should be on advocates of restricted federal grants to explain why they want to ignore freely-chosen political outcomes.  And the data don't seem to be there to support any claim that those choices are inconsistent with the aims of federalism.

I'm hoping the paper will fit relatively seemlessly into my larger project, which is to think about public finance within the framework of law: the legal rules governing our use of tax and spending policy implements.  Comments are welcome.

Posted by BDG on February 27, 2007 at 08:34 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Can Law Change Much of Anything?

This old question is nicely raised in different ways in a couple pieces worthy of your attention.

The first is close to home. Thanks to Brian Quiqley at the UT Law Library, I noticed that Orly Lobel's piece in the Harvard Law Review was just released. Here's the SSRN link and the snazzy pdf up on the HLR website. Orly's piece works in the crit theory vein of scholarship, taking a view that seems to suggest there is hope for the project of law, at least as compared to the alternatives... Congrats to Orly!

Also on its way out of the printers is a piece in the Connecticut Law Review by Tim Lytton, entitled Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law. By focusing on the ways that tort law can frame various issues for public consumption, with a specific examination of the clergy sex scandals, this article by Tim, is a response to those scholars (like Gerry Rosenberg) who have advanced skeptical views of the ways in which (tort law) courts can advance various policy objectives. There's a lot of interesting background and research in Tim's article, and it's not surprising that this piece is serving as the anchor of a book being published later this year by Harvard University Press.

Posted by Administrators on February 27, 2007 at 02:46 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Sebok on Stevens on Punitives

Check out Tony Sebok's subtle analysis of Philip Morris at Findlaw.  My favorite part is his interesting observation about Stevens' vote: he dissented rather than concurred in the judgment on other grounds, suggesting, perhaps, that not only did JPS think the jury instructions were fine but also that the award did not violate the State Farm opinion he signed in 2003.  As Sebok explains, State Farm "suggested that a greater than 'single digit' ratio of punitive damages to compensatory damages would probably violate due process, especially where compensatory damages were large.  (That is, a 9:1 ratio could pass muster, but a 10:1 ratio probably would not.)  However, State Farm had involved a financial tort that led to emotional distress. How would the Court treat a wrongful death case like Jesse Williams's? "  Here's what he writes:

Yet we may already have a good sense of how Justice Stevens feels about the "hard cap" issue. If one reads Stevens' dissent literally, he voted to uphold the Oregon Supreme Court's decision not to apply the single-digit ratio to the punitive damages awarded to Jesse Williams. This would indicate that at least one of the five Justices voting in the majority in State Farm would not have extended the hard cap to a case involving wrongful death.

Posted by Ethan Leib on February 27, 2007 at 02:03 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Overruling Roe v. Wade: A Post in Three Parts. Part I: Who’s Afraid of John Roberts?

In some liberal and/or feminist (though not necessarily legal) circles, there seems to be an abiding fear that Roe v. Wade is in imminent peril. What’s more, some in not-so-liberal circles, like the South Dakota and Mississippi legislatures, must agree, since they keep trying to mount a full frontal challenge to Roe through legislation intended to form the basis for a test case before the Supreme Court. Does anyone think this is going to work?

Of course, anyone can count the votes and conclude that Roe is most likely not currently in danger. But Justice Stevens is no spring chicken, and it is not inconceivable that a fifth anti-Roe vote will join Scalia’s, Thomas’s, Roberts’s, and Alito’s sometime very soon. Even if that happens, is the Supreme Court really ready to go there?

My guess is that the conservative wing of the Court would like to see Roe overruled but is not likely to put itself in a position to vote that way anytime soon. I think the most basic reason for this intuition is that it’s just psychologically difficult to vote to take away a constitutional right previously recognized. After all, conservatives also love to hate Miranda v. Arizona, but when push came to shove, only two Justices voted in Dickerson v. U.S. to overrule it. Moreover, although it’s very hard to know quite what to make of it, the Supreme Court did issue a surprisingly unanimous opinion in Ayotte v. Planned Parenthood, a case dealing with the constitutionality of New Hampshire’s parental notification law for minors seeking abortions, just after Justice Roberts joined the crew. Without wanting to make too much of it, I’d wager that this unanimity signals at least an unwillingness to make waves in this area right away, if not actual agreement with the substance of the opinion of the Court, which upheld the lower courts’ holding that the law was unconstitutional without a health exception (while remanding to the district court for a more carefully crafted injunctive remedy). I'd therefore expect the Court to consistently deny cert in any cases that might pose a direct challenge to Roe.

In the two remaining posts on “Overruling Roe,” I will consider what would happen if Roe were overturned, both in pragmatic terms (what would the state of the law be) and in more abstract legal terms (what would remain of the doctrine in this area). In the meantime, though, I would be genuinely interested to hear others’ takes on this. Is Roe in danger?

Posted by Jessie Hill on February 27, 2007 at 10:49 AM in Constitutional thoughts | Permalink | Comments (9) | TrackBack


Just a quick note to let you know that we'll have some familiar faces in the next few weeks here as well as some new ones. Making her debut today is B. Jessie Hill, who teaches at Case Western. You can learn more about her at her website.

Posted by Administrators on February 27, 2007 at 10:35 AM in Blogging | Permalink | Comments (0) | TrackBack

Monday, February 26, 2007

Re-Uncovering Identity

My review of Kenji Yoshino's book Covering will be the newsstands (OK, on the law library shelves) this spring.  Titled Uncovering Identity, it discusses, among other things, the ways in which identity traits are not simply eruptions of a "true" self, but can be used and manipulated by their possessors; in turn, we may come to internalize various useful or conventional identity scripts, even if we did not set out to do so.  All of this came to mind as I read this weekend's NYT review of Caille Millner's memoir, The Golden Road: Notes on My Gentrification.  Millner writes about being African-American and getting into and attending Harvard.  Some excerpts seem especially pertinent in light of the discussion in my forthcoming paper:

At 16, Millner wrote an essay for The San Jose Mercury News drawing attention to the racism she perceived at her school. Getting published may have been just the thing for her C.V., but after the article appeared, fellow students signed a petition in protest of her complaint, which they claimed was unfounded. . . . Later, she learned that some of her peers had resented the supposed edge she had gained with her exposé — endowing herself with a marketable claim to oppression and making them look bad.

Millner graduated in “a shower of scholarships and awards.” Shrewd student of the system that she was, and still is, she imagined that the college admissions committee saw itself as the shaper of “a classic underdog story with a Hollywood ending,” in which she was the plucky heroine....

Today Millner . . . describes her youthful essay and its fallout as one of the “identity narratives” members of her generation spew out to gain an advantage in the meritocracy. “Now I have come clean,” she tells us, “and ruined a story that formed a critical part of who I once presented myself to be.” As terrifying to Millner as the backlash she wrought in high school was her accidental discovery of her own skill at image manipulation. Her ambivalence about identity is at the heart of “The Golden Road.” . . . . In Almaden Valley, she encountered “contemporary racism with a smile,” and while repelled by smug children of privilege at Harvard, she also grew numb listening to African-Americans’ tales of subtle exclusion. She was drawn to activist students, but was crushed when they turned out to be cynical résumé-stackers, adopting causes to impress corporate recruiters. “What I learned at Harvard,” she reveals, “was how to behave as though I had gone to Harvard.”

Interesting, and I think the last line might resonate broadly with our readers.  Of course, managing to ride an identity narrative into Harvard, and then write with seeming retrospective wisdom about one's doubts about that identity narrative, while still foregrounding that very identity, and while managing to compare oneself positively to everyone else who did the same thing, and getting a book contract to do the whole thing for money, is the kind of intricate, self-promoting dance one seems to learn best at. . . the Ivies.  In the Department of Irony Department, a search for Millner's name on Amazon also comes up with this book.

Posted by Paul Horwitz on February 26, 2007 at 08:52 AM in Books | Permalink | Comments (9) | TrackBack

Sunday, February 25, 2007

Are there no real Jews at the NYT?

Yesterday, the New York Times's David Carr published the following two paragraphs about Oscar pools:

This year there are quite a few categories that bring all of the challenge of the wading pool. Best director, best actress, best actor — Martin ScorseseHelen MirrenForest Whitaker — all seem like done deals. Don’t expect to be treated as a savant, or take home any loot, just for getting these no-brainers right.

Oddly enough, it is the big megillah, best picture, that could put even the most sophisticated Oscar guesser back out in the deep end. Almost any one of the five nominees — “The Departed,” “Babel,” “Little Miss Sunshine,” “The Queen” or “Letters From Iwo Jima” — could end up in the money at the end of the night. If you want to end up the same way, you are going to have to get best picture right.

No one who knows what a megillah is would use the term this way.  Even the colloquial phrase "the whole megillah" has a totally different valence.  Oy!

Posted by Ethan Leib on February 25, 2007 at 12:22 PM in Article Spotlight | Permalink | Comments (11) | TrackBack

Microchipping babies?

So when we got our dog, we didn't hesitate to microchip him.  Indeed, we'd have been considered negligent dog parents not to implant him with an identifier in case of loss (or theft -- he's an extremely attractive man).  Now that we've acquired a daughter, I concede that I fear her getting lost or stolen much more extremely.  Why shouldn't we microchip her?  Does she have some moral right to bodily privacy that I'm forgetting?  If so, what justifies my bathing her, giving her shots, squeezing her fat tuchas just for fun?  Thoughts?

Posted by Ethan Leib on February 25, 2007 at 12:09 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Friday, February 23, 2007

Highlights of "The [email protected]," and a Scalia Contest

Thank you so much to one of my commenters for referring me to this Globe & Mail story discussing the dialogue between Canadian Supreme Court Justice Ian Binnie and U.S. Justice Antonin Scalia at the conference marking the 25th anniversary of the Canadian Charter of Rights & Freedoms.  Neither Justice disappointed, with what would seem like interesting and newsworthy comments by both.  The usual caution that this is a newspaper story and not gospel applies.

Binnie, says the story, "extolled the virtues of measured judicial activism over an archaic notion of 'frozen rights' that do not evolve with the times."  He added: "'The ability of the courts to move with the times has served this country very well. . . . I say that if you erect a silo over our court system based on a theory of originalism, it is a very good reason to throw it out.'"  Finally, he said, "'[J]udges are as much a part of society as anyone else, and they can recognize a dead letter when they see one.'"

Scalia, for his part, derided the notion of living constitutionalism, saying, "'It is blindingly clear that judges have no greater moral capacity than the rest of us to decide what is right.'"  Scalia suggested that living constitutionalism, in the story's words, "simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts."  Scalia ridiculed Roe v. Wade for failing to decide when a fetus becomes human life.  Finally, responding to a discussion of a Canadian Supreme Court decision involving criminal justice, he said, "'I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence.'"

My own thoughts about the Justices' remarks are after the jump.  First, though, a question and challenge for Prawfsblawg readers about Scalia's quote in bold above.  I can't judge his subjective views, and I don't have the criminal law chops to evaluate this statement.  Many of you do, however, so I ask:  On a reasonably objective view, do you think he's right?  Can any Prawfsblawg readers supply the names of cases either argued before the Court or in which cert. was sought in the past 20 years in which, in your view, any reasonable person would harbor more than "the slightest doubt about the person's innocence?"  I look forward to your responses.  Again, click through for more.          

Some of my views on the story:

First, whatever the virtues of "mov[ing] with the times," Justice Binnie is surely too simple in suggesting that the vehicle for doing so must be the courts.  The Charter itself provides an amendment procedure, and of course its scope might be read narrowly to allow for legislative developments that the courts would then enforce, so there are lots of ways to move with the times that don't involve aggressive Charter interpretation.  His "dead letter" remark raises the disturbing specter of judges not only aggressively interpreting the Charter, but also selectively underenforcing a binding legal document on grounds of social progress.  And Binnie offers no metric to assess his claim that the Canadian courts have served the country well in the post-Charter era; at the least, he would have to weigh not only the direct effects of rulings, but also any damage to full and vigorous citizen participation in the political process caused by the judicialization of central issues of Canadian life.  I might add one point in mitigation of Binnie's remarks, however: Canada's Charter also provides an override mechanism, so we might see courts there as having greater warrant to interpret the Charter in a more aggressive manner than they would in the U.S., since the Canadian system provides a mechanism for political intervention in court rulings that falls short of the demanding requirements for constitutional amendment.

Given those failings in Binnie's remarks, you might say Scalia takes the debate on points.  And that would be true if "Good Scalia" -- the Justice who preaches a narrow judicial role for methodological and democratic reasons -- had shown up.  But it looks as if "Bad Scalia" attended the Montreal conference.  I don't mean that as a comment on his political views.  Rather, I mean it in the sense of a Scalia who undermines his own view of the ideal judge as one who simply interprets the original understanding of the Constitution without injecting his own political views, by making arguments that appeal directly to those political views.  Under Scalia's ideal vision of constitutional interpretation as I understand it, we ought not give a damn what the Justice thinks of "questionable groups such as bigamists and pederasts."  (And, I'm sure Scalia would add sotto voce, "homosexuals.")  The Constitution protects their rights or does not; and if it does not, the political process can decide whether to protect them or not.  But he has little or no business selling his vision of the Constitution based on his own substantive views about who the "questionable groups" in our society are or what the Constitution ought to say about them.  Every time he opens his mouth to make such statements, he lends ammunition to those who argue that his supposedly loyal interpretation of the Constitution happens to favor views he doubtless holds personally.  I'm not saying his interpretive method is therefore a ruse, nor am I critiquing his personal political views.  But his arguments about the narrow judicial role would be much stronger if he could resist the temptation to share his own presumably irrelevant political views and use them as support for his substantive views on the Constitution, as he seems regularly to do at such conferences.

Posted by Paul Horwitz on February 23, 2007 at 08:55 AM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Scholarship going global?

I need some advice. In the last couple weeks, I've been approached via email from persons in India and Croatia inquiring about whether I would let them reproduce some of my past work either as is or in translation for books to be published there. On the one hand, I'm flattered. Maybe I'll do a road show in Banares and Zagreb. On the other hand, my work is generally available at least in English for free on the web and I'm a bit nervous about what might be entailed by agreeing to this. Are the Indians who would read this piece of mine better off having free access to it on the web instead of having these pieces reproduced in plausibly affordable textbooks in India? And with Croatia, I have no reason to doubt the good faith of the proposed translation, but I can't say I have any peeps with good translation skills in Croatian who could make sure it was done faithfully subsequently. To be sure, I am sympathetic with open access scholarship, especially in developing nations, but I'm also leery just because I'm quite unfamiliar with this process. Perhaps Frank Pasquale and others with more reflections and/or experience (or pure speculation too) could weigh in.

Posted by Administrators on February 23, 2007 at 08:24 AM in Life of Law Schools | Permalink | Comments (7) | TrackBack

Supreme Court Wrap-Up by Aaron Streett

Greetings, sportsfans! Apologies for the delay in reporting, but I’ve been busy responding to irrational, screamed demands at all hours of the day and night. It’s no commentary on law-firm practice—I’ve just been helping to care for my newly arrived daughter. So if you think my presence at work here today is an indication that writing a semi-humorous and largely factual Supreme Court newsletter beats changing dirty diapers, you’re right. Barely.

The Court roared back from its monthlong opinion-writing recess with 5 merits decisions, 2 cert grants, and 1 CVSG. People bent on trumpeting the unity of the Roberts Court should avert their gaze now: three of the decisions split 5-4, with AMK joining the cons on 1 and the libs on 1. The third 5-4 case—a landmark punitive damages decision—features a lineup and holding that simply boggle the mind. Oh yeah, and one unanimous reversal, too, but no points for guessing which Circuit that was. Let’s dive right in!

Philip Morris USA v. Williams, 05-1256

The Court’s decision in Philip Morris accomplished more tort reform in one day (and in a breezy 10 pages) than the Republican Congress did in 12 years, and left a dissenting Justice Stevens pleading (without intended irony) for “judicial restraint.” Justice Breyer’s majority opinion (joined by a motley crew of JGR, AMK, DHS, and SAA) squarely held that the Due Process Clause does not permit a jury to award punitive damages for harm caused to individuals other than the plaintiff. Without this rule, the Court held, defendants would be subjected to a “standardless” damages determination, without fair notice of the punishment to be imposed, and without the opportunity to fully refute the alleged harm to nonparties. To reach this result, the Court had to back away from language in BMW v. Gore (1996) that seemed to allow punishment for harm to others. Clouding the issue, however, the Court held that a jury could consider harm to others in determining the “reprehensibility” of the defendants’ conduct, which is a factor in setting the appropriate relationship between punitive damages and actual damages. The Court drew a hazy distinction between using nonparty harm in assessing reprehensibility (allowed) and “punish(ing) a defendant directly on account of harms it is alleged to have visited on nonparties” (not allowed). The Due Process Clause “requires States to provide assurance that juries are not asking the wrong question, i.e., seeking not simply to determine reprehensibility, but also to punish for harm caused strangers.” The type of procedures the Court has in mind are also less than pellucid: “State courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring.” While reading his bench statement, Justice Breyer did his best to clarify the holding through interpretive dance, but some thought his hasty resort to “jazz hands” only muddled the doctrine further.

It sounds like courts will have to grant a jury instruction on this issue and, at the very least, avoid giving instructions that allow punishment for nonparty harm. That holding alone will likely invalidate dozens of state statutes and standard jury instructions. While the Court cast this as a procedural due process decision, the Court’s opinion makes clear that a jury may not impose punishment for nonparty harms regardless of the procedures in place, so the holding smells quite substantive to me (and the dissenters). Perhaps SGB had to draft the opinion this way to hold the votes of the Chief and Justice Alito, who might have been reluctant to sign onto something bearing the substantive-due-process label. In any event, we can look forward to years of litigation and circuit splits trying to sort out what the Court hath wrought.

RBG dissented, joined by her Apprendi soulmates, Justices Scalia and Thomas. She would have held that the Oregon Supreme Court had faithfully applied Gore and State Farm v. Campbell (2003), and properly allowed the jury to consider nonparty harm only in assessing reprehensibility. RBG also noted that Philip Morris failed to preserve any objection to the jury instructions they now complained of.

Justice Stevens dissented, accusing the Court of fouling up his fine opinion in Gore. He now knows how Justice Kennedy feels about City of Boerne. Stevens sees no problem with punishment for harm to others; after all, the purpose of punitives is deterrence and retribution, not compensation. JPS also found the reprehensibility/direct punishment distinction to be specious. Either way, the jury gets to consider nonparty harm in setting punitive damages, and JPS would simply be more upfront in allowing it.

Finally, Justice Thomas dissented, to reiterate his view that “the Constitution does not constrain the size of punitive damages awards.” Confounding the shrinking pool of people (rhymes with Neddie Lazarus) who think that the Court’s no-middle-initial Justices share a brain, Justice Scalia did not join CT in inveighing against substantive due process, suggesting that AS may have finally accepted Gore and State Farm as binding precedent. Confounding those who think of the Court’s conservatives as a monolithic bloc, the Chief and Justice Alito did not join Justice Thomas’s originalist viewpoint and instead wholeheartedly endorsed the majority opinion (thus perfectly duplicating the votes of their predecessors in State Farm). Confounding the easily confounded, this suggests that JGR and SAA are not hardcore originalists a la Scalia and Thomas, at least when the relevant precedent is well-established at the time they joined the Court. Whether this approach holds true as to Roe v. Wade is a different question, one into which we may gain some insight when the Court decides the partial-birth-abortion cases later this Term.

Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co., 05-381

Justice Thomas wrote the unanimous, scholarly opinion reversing the CA9’s latest misadventure into antitrust law. The case involved a “predatory bidding” claim under § 2 of the Sherman Act. Predatory bidding is the mirror image of its more glamorous cousin, predatory pricing. Predatory pricing is Wal-Mart driving those poor mom-and-pops out of business by offering “Always Low Prices!”, and then supposedly jacking up prices to supracompetitive levels once the competition is decimated. Predatory bidding involves a manufacturer allegedly bidding up the price for raw materials (here, Weyerhauser bidding up lumber prices) until its competitors are forced out of the raw-materials market, and then paying sub-competitive prices because the suppliers have no one else to sell to. In Brooke Group v. Brown & Williamson (1993), the Court observed that successful predatory pricing was almost impossible to pull off in a free market and was virtually impossible to distinguish from pro-competitive price-cutting behavior. This led the Court to establish a very high two-part test for a predatory-pricing claim under the Sherman Act. In Weyerhauser, the Court held that those same principles dictate a similarly high bar for predatory-bidding claims, and rejected the 9th Circuit’s attempt to make it easier to get those claims to a jury. Predatory bidding—like predatory pricing—involves conduct that is often indistinguishable from pro-competititive behavior: There are any number of reasons a manufacturer may bid up the price of raw materials, many of which may benefit consumers (e.g., expanding a factory). Thus, much as in Brooke Group, a predatory-bidding plaintiff must prove that: (1) the predatory bidding resulted in below-cost pricing of the predator’s outputs (i.e., the manufacturer was temporarily taking a loss due to high input costs); and (2) the predator has a dangerous probability of recouping the losses incurred through the exercise of market power in the raw-materials market. The Court seemed quite skeptical that this standard will frequently be met.

Lawrence v. Florida, 05-8820

While Lawrence v. Texas was a contentious case raising fundamental constitutional issues, this Lawrence v. [Red State] is yet another mind-numbing installment in the ongoing saga over AEDPA’s one-year statute of limitations for federal habeas petitions. The general rule for these cases under the Rehnquist Court was that habeas petitioners lose 5-4 and the Court adopts a restrictive reading of the limitations period. Lawrence tells us that the rule continues to hold true under the Roberts Court. The specific question presented by this case was whether the statute of limitations is tolled while a prisoner files a Supreme Court cert petition after the denial of state-court postconviction relief. AEDPA says that the limitations period is tolled while “an application for State postconviction review” is “pending.” 28 U.S.C. § 2244(d)(2). Justice Thomas (if you need to be told who joined his opinion, you need a new hobby) held that a cert petition is a separate federal proceeding, not part of the “state postconviction review” process, and therefore does not toll the timeclock. Justice Ginsburg (joined by JPS, DHS, SGB) penned a persuasive dissent. She contended that the state postconviction review process is still pending while the cert petition is under consideration, just as the Court has held that a state criminal conviction is not final until the Supreme Court denies cert.

Wallace v. Kato, 05-1240

All the good Kato jokes have already been taken. The plaintiff brought a § 1983 claim against local police officers for false arrest in violation of the Fourth Amendment. He had been convicted and sentenced pursuant to the unlawful arrest, but his conviction was overturned on appeal. The question was when his § 1983 cause of action accrued. Analogizing to the common law tort of false arrest, Justice Scalia (joined by JGR, AMK, CT, SAA) held that plaintiff’s claim accrued when he was detained pursuant to legal process (i.e., when he was bound over to the magistrate before trial), and was therefore untimely. Justice Scalia rejected plaintiff’s argument that Heck v. Humphrey (1994) meant that the claim did not accrue until the conviction was overturned on appeal. (Heck holds that a § 1983 claim that would imply the invalidity of a criminal conviction does not accrue until the conviction is reversed or vitiated through habeas.) AS reasoned that at the time the § 1983 claim accrued, there was no extant criminal conviction, so Heck did not apply. Thus, the clock starts ticking when a false-arrest plaintiff is detained pursuant to criminal process and the plaintiff must file his § 1983 suit within the statute of limitations. If the plaintiff is later criminally tried, the court should stay the civil suit until the resolution of the criminal case, in order to determine whether Heck applies.

Justice Stevens (+ DHS) concurred in the judgment. He would have simply held that Heck does not apply to Fourth Amendment claims because such claims are not cognizable in habeas under Stone v. Powell (1976), and therefore the § 1983 claim accrued as soon as plaintiff was falsely arrested.

Justice Breyer (+ RBG) dissented. He would have held that equitable tolling applied during the pendency of plaintiff’s criminal proceedings, so that plaintiff would have an opportunity to learn, before filing, whether Heck would bar his § 1983 claim.

Marrama v. Citizens Bank of Massachusetts, 05-996

Justice Stevens won “the battle for the soul of Justice Kennedy” on this one (apologies to Jan Crawford Greenburg). The issue was whether a debtor has an absolute right to convert a Chapter 7 bankruptcy proceeding into a Chapter 13 proceeding. Justice Stevens (+AMK, DHS, RBG, SGB) held that the bankruptcy court may deny a conversion attempt if the debtor has acted in bad faith, for example, by concealing assets. Justice Stevens had to ignore some pretty clear statutory language and legislative history to reach that result, however. Section 706(a) of the Bankruptcy Code states that a debtor “may convert” a Chapter 7 proceeding to a proceeding under Chapter 13, unless he is ineligible to be a debtor under Chapter 13. Seizing on the exception, JPS noted that a court may re-convert a Chapter 13 proceeding under § 1307(c) if the debtor acted in bad faith, and held that this means a bad faith debtor is ineligible to convert in the first place. He also relied on some heartwarming dicta to the effect that the Bankruptcy Code is supposed to protect only the “honest but unfortunate debtor.”

Justice Alito (+ JGR, AS, CT) called Justice Stevens on his statutory legerdemain. Just because a bad-faith debtor is subject to discretionary re-conversion by the court does not mean he is ineligible to be a debtor under Chapter 13 in the first place. Therefore, the court should simply have read the statute as it was written. A fraudulent debtor would not ultimately benefit because the Code expressly permits a court to deny the discharge of debts on the basis of bad faith.

Grants, CVSG, and Notable Denial

The Court granted cert in Logan v. United States, 06-6911, which concerns what type of state-law misdemeanors count as predicate crimes under the Armed Career Criminal Act. And the Court granted New York Board of Elections v. Torres, in which the Second Circuit held that New York’s system for electing trial judges violated the First Amendment rights of voters and candidates by greatly restricting the field of candidates. These cases are the first grants that will be heard in OT 2007. The Court CVSG’d in Selig v. Pediatric Specialty Care Inc., 06-415, a potentially important case about whether the Medicaid Act confers private rights of action on recipients and medical providers. Finally, the Court denied cert in Skoros v. New York, 06-271, after relisting it for several months. This was the nativity-scene case I have discussed in these pages. It’s a mystery what caused the Court to relist it 8 times only to deny it without comment.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Not liable for harm to third parties, no matter how reprehensible.

If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on February 23, 2007 at 12:47 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Thursday, February 22, 2007

The Tyranny of the Minority

My former lawyer Dan Markel represented me and other prawfs in  an amicus brief to the Ninth Circuit.    After giving me tens of thousands of dollars in free legal services,  his invitation to guest blog is almost too generous, so Dan, thanks.   I'm blogging here about a paper that I co-authored with a former student, Randy Wagner, called The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty.  The piece proposes that it is wrong to think of the problem of African Americans as flowing from the fact that they were a minority, discriminated against by a white majority.  When Jim Crow happened, blacks were indeed a  minority nationally, but they were not dispersed randomly throughout the country.  80% lived in the former confederacy; in those states--and remember, all elections take place at the state level or below--they were an absolute majority in three states and had more than 40% of the population in four others.  So, the article proposes, the cause of their problems was not the tyranny of the majority, but the tyranny of the minority.   This remains amazing to me, but the minoritarian character of some Southern governments was frankly acknowledged at the time.  For example, in Ratliff v. Beale, 20 So. 865 (Miss. 1896), a unanimous Mississippi Supreme Court explained the origins of the constitutional system which is in effect in Mississippi today: Reconstruction was followed by a "semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power.  The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise." 

My personal belief is that all, or almost all, of present day African American disadvantage is traceable to imposition of conservative minority rule in this era.   Here are  the arguments, many or all, admittedly, contestable.

First, in the absence of violent or unconstitutional disenfranchisement African Americans would have been able to be part of majority coalitions in several--5 to 8--Southern states, that is, a 40% or greater population would often have translated into effective control.   This is based on the fact that even after elimination of blacks as a factor in Southern politics, a largely white electorate still gave Republicans 20-40% of the vote in many Presidential elections; if blacks were added back in to those results, the black-supported candidates win.

Second, black-backed governments would have implemented policies that worked to their benefit.  During Reconstruction, when blacks voted in large numbers, states like Louisiana, Mississippi and South Carolina passed strong civil rights laws and created systems of public education.  These kinds of measures would have allowed them to follow in the path of immigrants of the era, who had similar disadvantages, including a social belief that they were racially inferior, but without the legal lock-in.

Third, the intensity of Jim Crow in the South, and its expansion to the federal government and nationwide, was a product in part of the suspension of democracy in the South.  Just as the 3/5ths compromise gave additional electoral power to the slave interests, under Jim Crow, conservative southerners had greater political influence because blacks were counted in apportioning Congress and electoral votes, but did not vote.   If blacks had been  an insignificant minority,  it would have been much less important that they  be controlled; if blacks had been an insignificant minority, then conservative southern influence would have been much reduced.   The expansion of Jim Crow to the federal government, with the educative effect that had on the rest of the country, was necessitated by, and facilitated by, the disenfranchisement of a black population so large that it would have controlled a number of southern states.

Randy and I are eager to hear why we are wrong.

Posted by Marc Miller on February 22, 2007 at 12:25 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Congratulations, Charter of Rights: You Can Now Rent a Car!

One more Canuckish post: The Canadian Charter of Rights and Freedoms turns 25 this year, a nice anniversary for those of us who grew up under and have studied Canada's basic document of individual and other central constitutional rights, and a good occasion for those who haven't studied Canadian constitutional law to kindle an interest in the field.

Here are a couple of recent anniversary events.  First, the Institute for Research on Public Policy, a center-right Canadian think tank, has devoted much of an issue of its excellent magazine, Policy Options, to a set of short articles on the Charter at 25.  One article, by Roderick Macdonald, asks a question that ought to translate well to American law schools as well, which often operate under the looming shadow of constitutional law: "Post-Charter Legal Education: Does Anyone Teach Law Anymore?"  He asks, "[i]s the teaching of law increasingly driven by the rights culture of the Charter?"  Another quote: "That there is a current professorial tendency to pass directly to questions of high political theory without careful consideration of the specific issue to be decided and the intermediate level questions of political, economic and social policy is hardly surprising.  For many law teachers today, the judicial decision serves simply as a pretext for armchair philosophizing."

Second, McGill Law School recently held a symposium called The [email protected], with an all-star list of speakers.  For instance, not one, but two graduates of UTS!  (Don't ask.)  Oh, also Justice Scalia.  I hope the proceedings are published somewhere soon.

I've written several times, although not recently, on issues of Canadian constitutional law and on comparative US-Canadian constitutional law.  For those interested in comparative free speech issues, there's this piece; for law and religion, try this (abstract only).  For those interested more generally in thinking about the relationship between substance and style in the writing of judicial opinions in constitutional law, drawing on Sunstein's minimalism but also considering whether opinion-writing is or should be different in the context of young constitutional documents, there's this piece; I think some of its discussions should be of equal interest to Americans as well as Canadians.  (Which is not to answer the question, equal to what?)

Posted by Paul Horwitz on February 22, 2007 at 10:04 AM | Permalink | Comments (2) | TrackBack

Worthwhile Canadian Law Blog

The law blogosphere, like the rest of it, is link crazy, even for defunct sites; how many of us still have Orin on the blogroll?  So I thought I'd expand the rolls a bit, and perform a vital service to my friends and neighbors to the north, by pointing out two Canadian law blogs I've come across relatively recently.  First, The Court is a blog run out of the Osgoode Hall Law School, a superb institution just a couple of hours north of Toronto, "where scholars, practitioners and other interested citizens can discuss the recent work of the Supreme Court of Canada."  Don't worry: if you're American and want to comment, I'm sure they won't enforce the "citizen" requirement too forcefully.

The other is another in the growing number of school-centered law blogs: the University of Toronto Faculty of Law Faculty Blog.  Toronto, my alma mater, is a superb law school and a lot of interesting writers can be found on this site (and Sujit Choudhry is listed twice, confirming my suspicion that he does so much there must be two of him).  It's not a content-rich environment: only ten posts since the summer.  Here's hoping this tiny added attention, if it comes to the Toronto faculty's attention, will encourage them to post early and often, and perhaps draw a few more faculty members into the blog's orbit.

The title of the post is, of course, modeled affectionately after the old New Republic contest in which readers were invited to submit a newspaper headline more boring than "Worthwhile Canadian Initiative."

Posted by Paul Horwitz on February 22, 2007 at 09:23 AM in Blogging | Permalink | Comments (0) | TrackBack

Gerhardt on the Catholic-Majority Court

Courtesy of Mirror of Justice comes a link to a paper by Michael Gerhardt of UNC, titled Why the Catholic Majority on the Supreme Court May Be Unconstitutional.  Here are some relevant snippets from the introduction:

In this Essay, I examine two ways in which our national leaders may have damaged the rule of law in the ways in which they appointed the current Catholic majority on the Roberts Court.  First, [in] their zeal to control the Court through their appointments to the Court our national political leaders demonstrated (perhaps unintentionally) a regrettable faith in the rule of law. . . . The problem with insisting that the maintenance of a government of laws depends on appointing people with the right kinds of ideological commitments is that it sacrifices another principle on which our faith in our system of government of laws in turn depends.  I call this other principle the golden rule of constitutional law: On the Supreme Court, justices recognize that they must treat others' precedents as they would like their precedents -- the ones with which they approve -- to be treated.

A second, serious problem with the current Catholic majority on the Court is that the appointments which made it possible may have been unconstitutional.  The selections of some if not all of these justices may have violated several constitutional prohibitions -- Article VI's express prohibition of religious tests for federal office, the Fifth Amendment's Due Process Clause, and perhaps the First Amendment's prohibition against the establishment of religion -- especially as these prohibitions would likely be construed by the current Catholic majority of the Court. 

A short but interesting and provocative paper.  I'm especially interested in the second argument, given that I have an article on similar themes, but which comes to very different conclusions, coming out shortly in the William & Mary Bill of Rights Journal, in a symposium convened by our own Rick Garnett.  My own view is that the Religious Test Clause does not prohibit the kinds of activities Gerhardt talks aboout -- essentially, Presidents or others using religion as a proxy for or indicator of a particular kind of character, jurisprudential or otherwise, when selecting and approving Justices.  I won't elaborate on that argument here.  Suffice it to say for now that Gerhardt's argument here relies substantially on the view that the current majority would rely on a plain meaning reading of the Religious Test Clause, and that this clause unambiguously forbids the kind of conduct he is discussing here.  I disagree that the clause is unambiguous in a plain-meaning sense.  Like many constitutional provisions, it is a term of art, whose meaning must be filled in at least partially by a sense of the historical understanding of the phrase.  And that history, along with a variety of policy arguments, counsel a narrower reading of the clause, and certainly don't suggest that Presidents or Congresses are forbidden to consider the moral and personal character of judicial nominees, for which religion is one valid indicator. 

[a little more after the jump]

Those who are more sympathetic to his argument might consider that he generally appears to believe that Presidents and Congresses engaging in the fully discretionary selection and approval of Justices (and other government officials) are bound by not just the Test Clause, but by Fifth Amendment Equal Protection, at least in a Constitution-outside-the-courts way.  So are Thurgood Marshall, Clarence Thomas, and Sandra Day O'Connor also potentially unconstitutional?  Not to mention all the white male Justices throughout history who were chosen in the context of a broader unwillingness to consider members of certain races or genders as potential Justices?  Or the Clinton cabinet, which its designers said should "look like America?"  Or the Bush 43 cabinet, which actually does look like America?

I have less to say about his rule of law argument.  To the extent that he wants to make a strong-form argument here, I'm not sure I find it wholly persuasive; to the extent he wants to make a weaker argument, I find it somewhat unexceptional.  And once one acknowledges that a President can and perhaps must select a nominee in line with a particular vision of what the rule of law requires, and that Justices who adhere to the golden rule of precedent are in turn allowed at least some room to consider which precedents they approve of, a lot of the bite is taken out of the argument.  Still, the argument is much stronger and less extreme than Gerhardt's introduction leads one to anticipate. 

In both cases -- both the rule of law argument and the religious test argument -- Gerhardt has much that is wise to say about what how politicians and lawyers should conduct themselves -- by abandoning "coded rhetoric in public discourse" and speaking plainly, by being plain about the extent to which ideology or character play a role in their selections, and by encouraging "academics interested in speaking truth to power" (a phrase I'm decidedly uncrazy about) to adopt a similar candor in speaking about judicial nominations and the rule of law.  These are commendable and important arguments even if you don't buy all of Gerhardt's central arguments; I might add that I've spoken about some of these ideas in arguing in my William & Mary paper for a set of rules of "constitutional etiquette" for the use and discussion of religion in the context of judicial nominations.

Read the whole thing!  As they say.  And take a look at my piece as well; baby needs a new pair of shoes.

Posted by Paul Horwitz on February 22, 2007 at 08:57 AM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Wednesday, February 21, 2007

Punitives and Policy-think

Put to one side your views about whether the Philip Morris v. Williams majority misrepresents precedent or takes another misguided step into the land of substantive due process.  Instead, I think it is worth asking whether Breyer's distinction between (1) allowing a jury to consider the potential harm to other parties as probative of reprehensibility and (2) allowing a jury to consider actual harm to others directly makes any sense.  Indeed, the very distinction "eludes" the very bright John Paul Stevens.  I think -- from a pure policy perspective -- there is something to recommend Breyer's approach (though my views here are only provisional). 

To be sure, punitive damage awards are meant to punish -- and the distinction Breyer forces onto jury instructions may be more subtle than a jury could realistically follow.  Still, the distinction does not elude me: It is reasonable to believe that the degree of punishment (and magnitude of damages award) that a given action warrants should be tied somehow to how many others the given conduct puts in harm's way; but there remains a difference between awarding a plaintiff punitives for the very fact of a defendant's action harming others and awarding a plaintiff punitives for the reprehensibility of an action that had the potential to cause harm to many others. 

Take Stevens' own example: the murderer who throws a bomb and kills dozens of bystanders -- who we all agree should be punished more severely than the murderer who kills only his intended victim.  Stevens too quickly draws his conclusion from the analogy to the criminal justice system.  Suppose we were considering not punishment by the criminal law but wrongful death civil lawsuits.  There, I don't think the distinction should "elude" Stevens.  Suppose the "intended" victim's family initiates a civil suit in the case where there are dozens of other dead bystanders.  It seems perfectly plausible to imagine that we'd want to limit punitives somehow -- and not enable the first plaintiff to file or the first plainiff to judgment to get the benefit of all of the murder's assets.  Perhaps the best way to accomplish this is never to allow punitives to go directly to the plaintiff and force a state administrator to compensate all victims proportionately.  But assuming a second-best world of punitives paid out to individual plaintiffs, trying to find some instruction to disallow the first plaintiff to collect for all the other harm caused to third parties is reasonable.   This may be why Stevens spends some time in his dissent focusing on the reality that some of the award was going to the State rather than to Williams directly -- to help convince us that Williams isn't getting a huge windfall that is being taken away from other harmed parties, the very fear that animates the majority's newfound test.

Is Breyer's instruction perfect?  Of course not.  It still seems to allow a jury to consider the act of bombing a crowded street to assess reprehensibility.  But it at least minimizes the opportunity for Williams to collect for all dead Oregonian smokers, some of whom may wish to litigate their own claims while there is still money to collect.

One final point:  Breyer's distinction might enable the punitive damage system to avoid some of the effects of luck associated with tortfeasor conduct.  By focusing a jury's inquiry on the potential effects of conduct upon third parties rather than on actual harm caused, the tortfeasor becomes responsible for all its egregiously negligent and reprehensible conduct, not merely the conduct that causes harm.  The gap between conduct and injury is often a matter of luck -- and Breyer's distinction helps juries, in assessing punitives, to focus only on conduct and not whether the conduct itself led to harm.  This could be a good thing, since the tort system all-too-often has no choice but to demand payment from negligent AND unlucky defendants, whose negligence actually led to injury, rather than merely the negligent.  Of course, to some extent, this point undermines my other observation about the desirability of Breyer's distinction because, in practice, it may lead to higher awards than a focus only on actual harm caused.  In any case, both of these thoughts suggests that there is, after all, something to Breyer's distinction.

UPDATE:  Dedalus (in the comments) is right. What I have called "Breyer's distinction" is not really the distinction Stevens is criticizing. Indeed, upon another reading of the opinion, I am no longer convinced that the distinction is attributable to Breyer, for he suggests elsewhere that punitives may be awarded only for potential harm to the plaintiff. That isn't quite what his quote from BMW suggests, but I explicitly wanted to leave precedent out of it. Worse, Breyer does make clear that actual harm seems to be allowed before the jury to assess reprehensibility. So much for that. I guess the distinction eluded me after all!


Posted by Ethan Leib on February 21, 2007 at 02:10 PM in Current Affairs | Permalink | Comments (4) | TrackBack

Abigail Alliance and the Future of Drug Regulation in America

On Thursday, March 1, the D.C. Circuit will rehear en banc, the case of Abigail Alliance v. Eschenbach.   If the panel decision is upheld (and further S. Ct review is not sought or is denied), this case has the potential to radically reconfigure the way FDA regulates drugs (and as Eugene Volokh has argued in a forthcoming publication, might represent a significant change in constitutional law more generally).  The case has drawn a lot of attention from all quarters, including an article in the New Yorker and in JAMA (subscription required).  I think it is fair to say it is the most significant food and drug law decision in the past 10 years

[Disclosure: I was one of the lawyers who drafted the government's rehearing petition in this case while at the Justice Department; Disclaimer: Any views expressed herein are my own, and do not represent those of FDA, the Justice Department, or any entity of the federal government].

In the rest of this post, I'll describe the litigation and its implications.

For those who have not read the (now-vacated pending rehearing) original panel opinion, here is a summary of it (drawn from a longer summary I did for the American Society for Bioethics and Humanities, available at page 5 of this publication)): 

The D.C. Circuit (Judge Rogers authoring, joined by Chief Judge Ginsburg. over a dissent by Judge Griffith) announced that the the due process clause of the federal constitution provides a fundamental right that prevents the Food and Drug Administration (FDA) from blocking competent, terminally ill patients from having access to potentially lifesaving drugs that have cleared Phase 1 clinical testing but have gone no further in the drug approval process, when usage is based on the advice of doctors.

The Federal Food, Drug, and Cosmetic Act (FDCA), prohibits the distribution and marketing of new drugs before a new drug application has been submitted and the FDA has determined that the drug is both safe and effective for each intended use. The statute and accompanying regulations require drug manufacturers to undergo a three-phase testing process. Phase 1 involves a small initial study, usually with less than 100 subjects, and focuses on toxicity. Phase 2 involves a well-controlled, closely monitored evaluation of thedrug in a larger (but still small) group of patients, usually no more than several hundred, and focuses on effectiveness. Phase 3 involves the evaluation of the drug in a large clinical trial ortrials, usually with several hundred to several thousand subjects, and focuses on dosage. Although safety issues are most obvious at Phase 1, according to FDA (backed up by data on safety-related non-approval of drugs that have cleared Phase 1), safety is at issue in all the testing phases (although this is a point of dispute between the litigants and panel majority and dissent.

Abigail Alliance for Better Access to Developmental Drugs (“Alliance”), a nonprofit association representing several terminally ill patients who would like to have access to Phase 1 drugs, sued to enjoin FDA from enforcing its ban on on unapproved drugs insofar as it prohibits terminally ill patients with no other treatment options from purchasing investigational drugs.  The Alliance claims a fundamental right under the due process clause to obtain access to potentially beneficial investigational new drugs that have completed Phase 1 trials.

The D.C. Circuit panel majority held that the due process clause creates a fundamental “right of a mentally competent, terminally ill adult patient to access potentially life-saving post–PhaseI investigational new drugs, upon a doctor’s advice, even where that medication carries risks for the patient.” The majority found this right to be “deeply rooted in this Nation’s history and tradition," as reflected in various common law doctrines (the defense of necessity, the freedom from battery, the tort of intentional interference with a rescue).

The Court also found the right to be “implicit in the concept of ordered liberty” such that it satisfied the the two-part substantive due process analysis described inWashington v. Glucksberg, 521 U.S. 702 (1997) (the assisted suicide decision). The majority also relied on what it perceived to be an absence of federal regulation for drug effectiveness until 1962 and drew an analogy between the right it recognized and the Supreme Court’s decision in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), that suggested a right to refuse life-sustaining medical treatment. The panel remanded the case for the district court to determine whether the FDA’s restrictions on the treatment use of investigational drugs are “narrowly tailored to serve a compelling governmental interest.”

Judge Griffith wrote a lengthy dissent, in which he explained that “[b]alancing the risks and benefits found at the forefront of uncertain scienceand medicine has been, for goodreason, the historical province of the democratic branches[,] [and] I can find no basis in the Constitution or judicial precedents to remove that function from the elected branches.” He noted that claims of constitutional entitlement to the use of unapproved drugs have been repeatedly rejected by other courts. After reviewing the common law precedents invoked by the majority and the history of federal and state drug regulation, he concluded that the majority had “provide[d] no evidence of a right, deeply rooted in our Nation’s history and traditions, to procure and use experimental drugs.” He also took issue with the majority’s conclusion that the right of access to unapproved drugs is analogous to other rights deemed “implicit in the concept of ordered liberty.” Finally, he identified a series of legal and practical problemsthat will confront the parties and the district court on remand by virtue of the majority’s holding.

As I have told students who have asked me about this case, it actually presents two separate questions.

The first is the question at the root of the litigation, does the Constitution compel Congress and FDA to adopt a certain policy as to the regulation and approval of drugs as applied to terminally ill patients? My own (admittedly biased) view is that the original panel opinion, while quite inventive, does not withstand a close examination. I don't want to join the matter here, given the pending nature of the case. But the one thing I will say is that although the majority took great pains to repeatedly limit the right at issue in a way that would make its holding seem more plausible, it is hard to see why on the decision's own constitutional logic, the stopping point should be terminally ill patients rather than preventing FDA from regulating any drug for any individual who thinks an unapproved drug will, on balance, help him or her.

The second, and to me more difficult, question is the policy one. Even if we assume Congress and FDA have the power to regulate drugs for the terminally ill in the way they are already doing, should they switch to a system with increased access? In this regard, the amazing John Robertson (who always manages to be right there with thoughtful analysis when a major bioethics issue emerges) has a recent article in the Hastings Center Report, that lays out the major policy issues.

As I see it, to return to a theme in some of my earlier posts, the issue consists of a large share of pure paternalism vs. antipaternalism arguments, and a harder to quantify share of externality-based reasoning (the fear that increased access may make it harder to recruit subjects for clinical trials thereby hampering  the drug development process).  There is also a further question that even if FDA lifted its prohibition on the sale of these drugs to terminally ill patients under specified conditions, whether drug manufacturers would be willing to sell the drugs to these patients?

It is sometimes suggested that the paternalism argument is weak here because the patients in question are already terminally ill.  But having a terminal illness is not the same as being on death's door, and in any event particular drug being sought for its as yet unsubstantiated claims of cure may actually hasten death. 

How often does the gamble pay off?  According to a study done earlier in this decade, for new chemical entities that entered Phase 2 FDA testing between 1987 and 1992, only 30.8% made it to the next stage of clinical testing.  As Peter Jacobson and Wendy Parmet note in their JAMA article , the success rate is similar for cancer drugs in particular (a focus of the Abigail case): only 5% of all cancer drugs that enter clinical testing are ultimately approved for cancer use, and of those that make it to phase 2 trials, only 30% proceed to phase 3 (citing Kola I, Landis J, Can the pharmaceutical industry reduce attrition rates? 3 Nat. Rev. Drug Discov. 711-716 (2004)).

Something that is somewhat obscured by a lot of the dicussions of the case is that FDA already has programs in place to make drugs available to the terminally ill patients, which FDA calls Treatment Uses.   Moreover, as the AP has reported, in December FDA put a notice of a proposed rulemaking regarding expanded access to investigational drugs for treatment uses in the federal register, 71 Fed. Reg. 75147 (Dec. 14, 2006), which largely seeks to clarify and codify the agency's existing practices.  Thus the relevant policy question is whether the current system strikes the right balance, or whether we should favor a still more expanded access program.

One deeper question this entire controversy raises is whether FDA should be in the business of requiring the demonstration of effectiveness at all?  One gets the impression that there are some out there who think the cost of the current regulatory system (in dollars and delays in going to market) is not worth it.  While I think there are useful discussions to be had at the margins of how FDA conducts effectiveness review, I am among those who shudder at the idea of a return to a wild west where anyone can peddle medicine without showing it works.

However the case comes out, it is bound to be interesting.  If you find yourself in DC next thursday, I'd highly recommending trying to get a seat at this en banc argument.

Posted by Glenn Cohen on February 21, 2007 at 10:30 AM | Permalink | Comments (3) | TrackBack

AHA -- the American "Huh?" Association

Courtesy, shockingly enough, of the New York Review of Books, comes news of this petition from a group of members of the American Historical Association.  It has not been ratified by the group as a whole, so don't take this as the occasion for blanket condemnation (or praise) of the group.  The petitioners write that the AHA favors the importance of open inquiry in historical work, including "reaffirming the principles of free speech, open debate of foreign policy, and open access to government records in furthering the work of the historical profession."  They write that the current Administration has violated these standards in the following ways:

  • excluding well-recognized foreign scholars;
  • condemning as "revisionism" the search for truth about pre-war intelligence;
  • reclassifying previously unclassified government documents;
  • suspending in certain cases the centuries-old writ of habeas corpus and substituting indefinite administrative detention without specified criminal charges or access to a court of law;
  • using interrogation techniques at Guantánamo, Abu Ghraib, Bagram, and other locations incompatible with respect for the dignity of all persons required by a civilized society;

Like the title of the post says: "Huh?"  I freely grant them item numbers 1 and 3.  Item 2 I can see as well, although I should think revisionist is not necessarily a pejorative term (even if it might have been intended to be pejorative by the members of the Administration who are alleged to have used the term), and, in any event, how gravely does it violate the relevant principles listed above to have an administration defend itself and disagree with its critics in strong terms?  Surely historians should be at least strong-minded enough to withstand that. 

But items 4 and 5?  In a stretch you could argue that any detention system or interrogation techniques that are designed to keep people in seclusion, or that are not designed to bring out the truth, violate the AHA principles.  But "stretch" is the operative word here -- especially item 4, which appears to argue that setting up an alternative administrative form of detention, one that does not preclude access to a non-court tribunal trial process, somehow violates the interests of historians.  Really, what do items 4 or 5 have to do with "the free pursuit of historical knowledge?"

Because these practices are "inextricably linked to the war in which the United States is presently engaged in Iraq," the petition goes on to urge AHA members "to do whatever they can to bring the Iraq war to a speedy conclusion."  Again I ask, what does this have to do with "the free pursuit of historical knowledge?"  I understand that the AHA might want to urge the administration to cease practices related to the current conflict -- such as preventing reputable scholars from visiting these shores, or reclassifying information -- that are harmful to those values.  But shouldn't the AHA's position be that, assuming those practices do end, the war in Iraq can be as bloody and protracted as the administration and Congress wish, at least as far as they are concerned as professional historians?  Is it possible the petitioners intended to allow some space for signatories who believe the U.S. should do whatever it can to bring the war in Iraq only to a speedy and victorious conclusion, no matter how much time and death that may take?  Or is this really just a way of saying, bring the troops home now?  And if so, why should the AHA have anything to say about that in its professional capacity?   

Posted by Paul Horwitz on February 21, 2007 at 10:15 AM in Current Affairs | Permalink | Comments (6) | TrackBack

Tuesday, February 20, 2007

Philip Morris: Up in Smoke?

I'm off to teach my seminar on punitive damages in a few minutes but I wanted to invite y'all to weigh in on today's SCT decision in Philip Morris v. Williams, which is available here. The Court decided by a 5-4 majority to vacate the Oregon SCT's decision and remand the case. Specifically, the Court held that the Due Process Clause does not permit a jury to base a punitive damages award even in part upon its desire to punish the defendant for harming persons who are strangers to the litigation at hand.

I hope to have a few more developed reactions later on but here is just one. The majority (Breyer, Roberts, Kennedy, Souter, and Alito) obscure the relevant precedent. The majority writes that in the past the Court has stated "that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff." In fact the truth of what the Court has said is much more murky in terms of what X the punitive damages amount must relate to.

In some places, the Court has stated that the amount of “compensatory damages” should be the anchor that determines the award of punitive damages. State Farm at 425 (“Our jurisprudence and the principles it has now established demonstrate . . . that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages to a significant degree, will satisfy due process.”). In other places, the Court states that the relevant focus is on the disparity between the punitive damages award and the “harm, or potential harm, to the plaintiff.” (This is what the Court in Philip Morris today acknowledged.) Clearly, this second formulation is broader than a restriction to only “compensatory damages” because compensatory damages typically award only actual harms, not potential harms. Here's the kicker, I think.

In some places, the Court appears to have recognized that potential harm caused by the defendant’s conduct is an appropriate factor to weigh. This is important because it might include potential harm to other people aside from the plaintiff in the instant case. In its TXO decision, the court's plurality wrote “[i]t is appropriate to consider the magnitude of the potential harm that the defendant's conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred.” TXO, 509 U.S. 443, 460. Quite clearly, potential harm logically includes both potential harm to the particular plaintiff and potential harm to similarly situated victims. The Court also today alluded to its BMW decision, but it downplayed the fact that the Court blessed a determination that it was ok to punish BMW for its actions that affected other similarly situated victims in Alabama. BMW at n. 11 (the "award should have been based on Alabama conduct[;] respect for the error free portion of the jury verdict would seem to produce an award of $56,000 ($4,000 multiplied by 14, the number of repainted vehicles sold in Alabama)".

Here's what's important. The Court today invokes TXO and BMW as support or silence for its position that harm to non-parties may not be considered other than to determine reprehensibility. This is only possible by ignoring the language quoted above from TXO. Even Tom Colby, whose article in Minn LR expressed the view that the total harm approach to punitive damages is historically/constitutionally misguided, acknowledged that there were places where the Court suggested otherwise.

Until today, the Supreme Court failed to expressly overrule this part of TXO—and various lower courts have indicated or held expressly that the punitive damages award should take into account the harm or potential harm from the conduct “as a whole.” Those cases today are no longer good law, it appears. The Court today says that it now "explicitly" holds that a jury "may not punish for the harm caused others," even if it did not hold that in prior cases. Actually, though, the Court is apparently moving away from a position a plurality opinion did hold earlier. Whether that should control is another thing, but today's decision was not written on a blank slate, appearances in the majority's opinion notwithstanding.

But as Breyer would say: Now tell me why I'm wrong...

Here's a teaser for my next post on this case: today's decision should push the Court to reconsider its decision in Williams v. NY, where it effectively blessed indeterminate sentencing...

Posted by Administrators on February 20, 2007 at 04:40 PM in Constitutional thoughts, Corporate, Criminal Law, Dan Markel | Permalink | Comments (5) | TrackBack

The Newest Outpost in the Caron(ian) Empire

A big "welcome to the (blog)world" to the brand new "Civil Procedure Prof Blog," part of Paul Caron's ever-expanding blogpire (it's like "truthiness"), brought to you by Baylor prawfs Jeremy Counseller and Rory Ryan.  For Civil Procedure prawfs like me, the new blog should be a great resource on developments in the field, including a forthcoming series of interviews with authors of important and interesting new articles.

Break a leg!

Posted by Steve Vladeck on February 20, 2007 at 01:27 PM in Blogging, Steve Vladeck, Teaching Law | Permalink | Comments (0) | TrackBack

Fed Soc symposium, and diversity

The Federalist Society's annual Student Symposium -- on the theme, "Law & Morality" -- is this week (Feb. 23-24), at Northwestern University School of Law in Chicago.  Here's the web page, with program and registration information.  (I'm moderating, and am very much looking forward to, a panel discussion, "What Is Morality?", in which Michael Perry, Randy Barnett, Robert Baker, and John Burns are participating.)

Looking over the program, I'm struck by how "diverse" the program is.  That is -- putting aside the keynote speakers -- each of the four panels seems scrupulously "balanced."  Views that are contrary to, or in tension with, or that challenge, those positions typically associated with the Federalist Society are not just represented, in a token-type way, but powerfully and fairly represented.

Here, by way of comparison, is a link to the line-up of the American Constitution Society's last conference.  (Of course, there might be an "apples and oranges" problem comparing the large ACS national conference to the smaller Federalist Society Student Symposium.  Here is the program for the Federalist Society's national conference.)  And, I doubt a link is necessary to support the claim that both the ACS and the Fed. Soc. put on events that are more balanced and diverse than the typical AALS program. 

In any event, all this raises, for me, a question:  Is this "balance" a good thing?  For law students' education and development?  For the public conversation about law and the Constitution?  For the political movements that one might associate with the Federalist Society (or the American Constitution Society)?  I am inclined to think the answer is "yes," but I wonder if I'm being too quick?  Are there downsides and dangers?

Posted by Rick Garnett on February 20, 2007 at 12:21 PM in Life of Law Schools | Permalink | Comments (12) | TrackBack

"Death Plucks My Ears"

No, that isn't just an awesome heavy metal lyric, although it certainly is that too (I'm thinking it would sound about right as a lyric for the excellent band Opeth).  It is, of course, the beginning of the peroration to Justice Oliver Wendell Holmes's famous radio address on the occasion of his ninetieth birthday.  I've long loved his address, and wanted to hear it, but didn't realize it was (natch) available online.  Here it is, and it's a joy to hear it at long last.  His accent is fascinating: that mid-Atlantic, English-meets-American accent that seems to have dropped out of existence in the past half-century, although it may still be heard among certain shadowy inbred tribes living in small, isolated communities in the New England region, and among slavish imitators of Cary Grant movies.  And the speech, of course, is lovely.  I'd given some thought to saving this post for Holmes's birthday, March 8.  But, as the man says, "Live, I am coming."

Posted by Paul Horwitz on February 20, 2007 at 11:15 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Boumediene Out: MCA Bars Jurisdiction over Guantanamo Detainees

The long-awaited decision by the D.C. Circuit in the consolidated Guantanamo appeals is finally out today.

In a divided 59-page opinion, the court, unsurprisingly, holds that (1) the MCA applies to the Guantanamo detainees; and (2) the detainees are not protected by the Suspension Clause.

There will be much more to say later. For now, let me just say this: Next stop, Supreme Court.

Posted by Steve Vladeck on February 20, 2007 at 10:38 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, February 19, 2007

Our Millionth Visitor and some of our favorite posts

Sometime over the weekend, we passed the milestone of 1 million visitors to this website. Prawfs, like blogging generally, has had its share of ups and downs, achievements and mistakes, and probably most of all, instructive lessons. I can't say this for everyone else, but for me it certainly feels like I'm getting educated in public on many issues, and that can be both thrilling at times as well as dispiriting (as in yikes, I should never have said *that*!).

In any event, I've linked to a few of my favorite posts over the last while by some of the other permaprawfs here as a way to mark the milestone. Some of these selections are chosen because the comments are just as illuminating or remarkable as the post itself. Other selections are just 'cuz. Feel free to weigh in with your own faves or reactions. What should Prawfs be thinking about doing on the blog in the next year or for the next 1 million visitors??

Ethan Leib: DC and Law Professor Types Are Not a Lethal Combo

Steve Vladeck: Too Cool for School? When Students Strike-Some Reactions

Orly Lobel: High Culture, Low Culture, and the Academy

Rick Garnett: Why Do Universities Exist?

Matt Bodie: Is Larry Ribstein a Conservative? On Eschewing Labels in Corporate Law

Paul Horwitz: Representing Guantanamo Detainees

P.S. Let me just make a quick shout out to our friends at the Conglomerate, who also just passed this million-visitor milestone, as well as to Gordon Smith, who just accepted a post at BYU.

Posted by Administrators on February 19, 2007 at 05:22 PM in Blogging | Permalink | Comments (3) | TrackBack

Postings for Visiting Professorships for 2007-08

A comment on a previous post asked about centralized information repositories regarding which law schools are looking for visitors to teach classes for the upcoming 2007-08 year. I haven't seen any such repositories of this information yet, so please post comments with what your school's name is, who the relevant contact person is, and what courses you are looking to get covered by outside visitors. You may also want to share other details pertinent to visitors in the comments (ie, we pay moving costs, etc.). Thanks.

Posted by Administrators on February 19, 2007 at 04:28 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

But What Does Ken Starr Think?

As a former federal prosecutor, and one who had the pleasure of interacting a bit with Bud Cummins, recently deposed U.S. Attorney for the Eastern District of Arkansas, I noted with interest the rationale the Justice Department now apparently is floating in defense of their position on removing & replacing U.S.A.'s.  For those new to this story, the backdrop is that a provision of the Patriot Act, inserted by (then-majority) judiciary committee staffers during conference on the Patriot Act renewal last year, permits the administration to fill vacant U.S. Attorney slots with "interim" appointments who may serve, without confirmation, until the end of the President's term in office.  The administration appears to have taken advantage of this power by forcing out somewhere in the vicinity of 7 U.S. Attorneys, some of whom (like Bud) were replaced by individuals notable mostly for their political connections. 

After this story started getting some traction, Chuck Schumer and others introduced a bill to repeal the Patriot Act provision in question.  Justice now evidently takes the position that Schumer's alternative (the status quo ante, in which federal judges of the relevant district select the interim U.S. Attorney) is unconstitutional.  I guess the argument is something like, "Hey, these are executive officials, and therefore Article III judges can't choose them." 

I don't see how that position is consistent with Morrison v. Olson.  Recall that Olson held that the independent counsel statute, in which a panel of federal judges selected the Special Prosecutor, was constitutional.  Is there an argument that Olson is distinguishable on the ground that Alexia Morrison was an "independent" official, rather than one removable at the discretion of the President?  Hard to see why, unless perhaps one buys some broad version of  the "unitary executive" argument (such that the President alone would have to be able to control the tenure of all his officers). 

On the other hand, maybe with time Scalia's pragmatic dissent in Olson looks a lot more persuasive.  But the practicalities of the Patriot Act approach are kind of ridiculous, too.  U.S. Attorneys are always relatively political selections, but the new rule invites gamesmanship of the kind we are seeing now.   

Posted by BDG on February 19, 2007 at 11:13 AM in Law and Politics | Permalink | Comments (1) | TrackBack

Faculty Self-Government and the Problem Colleague

A friend who wishes to remain anonymous has sent along the following query, and it seems to dovetail nicely with my recent post on the life of the university, so here goes:

Here at [a state law school], we have a professor who has become an embarrassment.  Students complain not just about his/her teaching style, but that s/he usually shows up for classes late or not at all.  Several recent exam have had to be thrown out (and students assigned a “Pass”) because of various exam-procedure and grading irregularities.  The faculty member has a long history of unpleasant behavior directed at all constituents of the law school, so few have complained about his/her various other failures to participate in faculty life.

I do not know what action, if any the law school administration has taken.  Regardless, I’d like to solicit the opinion of Prawfsblawg readers:  Is there a role for faculty to play when one of their own gets way out of line?  On the one hand, I believe this is usually handled administratively.  On the other hand, however, it seems to me that if faculty self-governance means anything, it should extend to the faculty policing itself.  Any thoughts?

Let me emphasize that this anecdote doesn't come from the schools I'm currently or imminently affiliated with.  Let me also say that I wouldn't post this for the sake of gossip, but such circumstances are not unknown at most schools, and the questioner raises a perfectly valid question about the role of other faculty members in such situations.  Finally, although most people in the academy know and can point to members of this type, at their own or other institutions, let me urge a touch of compassion and humility, and point out that we cannot always know the reason such events occur.  In some cases, a dramatic departure from useful participation in teaching and faculty life may be the result of serious illness, family losses, substance abuse problems, and other personal factors, or simply part of diminution that often accompanies aging.  Of course, students and faculty are entitled to expect all faculty to retain at least a minimal adherence to common standards of professionalism, and faculty certainly ought not let students bear the weight of such situations.  But we still ought to seek the most compassionate resolution of such dilemmas, keeping in mind that there but for the grace of God may go each of us one day.

Please send in any comments or reactions you have; I'm sure the questioner, who I believe poses the question in good faith and without malicious intent, will be very grateful.  I've offered my thoughts after the jump.

Here's my own take.  First, and the questioner does not suggest otherwise, such matters are in the first instance matters for resolution by the law school/university administration, and I think that's appropriate and necessary.  So I don't take this to be a question about formal processes, which in any event should hardly mark the full compass of responses to such a situation. 

Second, if, as I have suggested, we think (or ought to think) of a university faculty as a largely self-governing institution entitled to some degree of autonomy from outside regulatory forces, then it is incumbent upon those of us who reside within these institutions to assume a great share of the burden in making sure those institutions function well and properly.  That burden not only involves taking care of matters related to research, scholarship, and big-picture institutional obligations, but also some degree of stewardship of the interests of students -- who, far more than other faculty, bear the burden of the teacher who departs dramatically from the standards of the institution.  Our care and concern for the welfare and autonomy of the teacher, our desire to avoid conflict or controversy, or our ability as faculty to get on with our own lives without being much interrupted by the problem faculty member, ought not tempt us to ignore the issue altogether and leave the students to bear the full costs of such situations.   

For the faculty, shouldering that burden might include, in this case, informal contacts with the faculty member him- or herself, especially when that colleague has real friends and peers on faculty, though the questioner suggests this won't be much of an option here.  It might include informal contacts with the administration itself, both because the administration can't begin any formal or informal processes until it knows there's a problem and because the other faculty members should take some of the burden of complaining off of students, who may well worry about approaching the administration with complaints about a longtime faculty member.  It might also gently include finding ways of offering alternatives for students within the subject matter taught by the "difficult" faculty member; that might be seen as undercutting the problem faculty member in a way that does raise academic freedom concerns, but it seems to me that our obligation to our students does demand some response here, especially where the teacher is teaching an important or required course.

Let me emphasize a couple of things.  First, the informal responses I've suggested are not just a way of saying that faculty should be out there saying, "Get rid of so-and-so."  As I said, there may be a host of reasons why a faculty member runs into difficulty, and as friends and colleagues we should be as concerned about addressing the underlying causes as we are with solving the problem.  Second, my advice would be incomplete without acknowledging that it is often difficult to engage in purely "informal" responses within a system that already has formal procedures in place; the two have a way of intertwining, and today's informal and gentle interlocutor ("Say, Prof. X, is everything OK with class Y?") may have a way of becoming tomorrow's formal process ("Petitioner further alleges that Prof. C attempted to coerce him/her into retirement, and repeated slanderous allegations to other faculty and students").  Third, I might point out that one advantage of having the administration address this issue rather than the faculty is the too-many-cooks problem, and the prospect that, once faculty start getting involved in every such issue, the faculty itself will become a hotbed of gossip, recrimination, etc.  That doesn't mean faculty shouldn't get involved -- again, especially because they have a duty to consider the students in this person's classroom -- but they should tread cautiously, eschew publicity or water-cooler talk, and generally funnel these issues through the administration, even if they play a key role in alerting the administration to the issues in the first place.

With that in mind, and keeping in mind also that formal processes have a way of either doing too little (for example, because they take a high level of conduct before they are triggered, and because everyone goes to great lengths not to trigger them) or too much (because they are then too Draconian and consuming once invoked), I conclude that (1) faculty have some kind of obligation to both their students and the faculty as a whole in such circumstances; (2) there are some informal steps they might take to respond to such situations, although they should be wary and circumspect in doing so; and (3) we should recognize that "problem faculty" are sometimes also "faculty with problems," and should therefore approach such situations with humility, compassion, and gentleness.

Again, I welcome others' thoughts.


Posted by Paul Horwitz on February 19, 2007 at 09:05 AM in Life of Law Schools | Permalink | Comments (14) | TrackBack

Saturday, February 17, 2007

Two Law Profs on the Anna Nicole Smith litigation

Looking for your law-related Anna Nicole Smith fix?  Here are the views of two law profs.

  • Joanna Grossman has an excellent FindLaw column on the whole Smith legal aftermath.  She carefully breaks down the myriad of possibilities as to who gets the Marshall estate, who Dannielynn's father might be -- you may want make your own flow chart.
  • Lee-ford Tritt gives his views on Smith's will to the N.Y. Times.  An intriguing possibility: "She intentionally disinherited somebody. I wonder if she’s had other children."

If this were the Co-Op, I'd have a picture.

Posted by Matt Bodie on February 17, 2007 at 02:48 PM in Culture | Permalink | Comments (4) | TrackBack

"A New American Book Review?"

TNR Online has a fascinating discussion from various contributors sparked by Jeffrey Herf's call for a new American review of books.  Herf argues that "most of our major book reviews are failing to inform a non-specialist but sophisticated audience about American scholarship."  The Times doesn't have the space or time or, often, inclination.  TNR does a good job but lacks the space to do very much of it.  The New York Review of Books is by now "known for its leftish and left-liberal politics as much as for its serious book reviewing" -- or, to add to the NYRB pileup from another contributor to the dialogue, it "locked in an ideology from the early 1970s and gave a pulpit to a clique of alpha males from which they could impose their idiosyncratic theories and beat back new ideas they didn't like."  So Herf argues that there is room, and need, for a new book review that does a serious job of translating serious books for a serious but non-specialist audience.  I'm all in favor of this one; sign me up!  The discussion is good and interesting and worth reading.

A couple of additional thoughts.  First, one might have expected the blogosphere to fill some of this gap, since it makes low-cost publishing available rather than have to depend on a dwindling subscriber base of "sophisticated non-experts."  Maybe it has filled the gap, even if I'm not aware that it has; it's a big Net out there.  In the legal realm, though, I'm not sure this has taken place.  Of course Larry Solum does yeoman work every Saturday picking a book of the week, but these are generally notices and descriptions, not reviews.  And many of the standard lawprofblogs I read, including this one, don't do much by way of book reviewing, and then often are more likely to discuss popular press books.  When we do, the discussion often isn't that in-depth, and often is somewhat embarrassingly positive; witness the general and short-lived excitement online about Jan Crawford Greenburg's merely serviceable book.  Not to be indelicate, but I can't help but wonder whether both the tendency to focus on books published by popular presses, and the generally positive spin, have something to do with the fact that we bloggers sometimes get advance copies for free, and that the presses that are most active in sending us these copies tend to be the popular presses.  I admit that I would like to see the university presses, which generally send out fewer review copies, be more active in sending forthcoming academic books to lawblogs like this one, where these books might be previewed and discussed for a generally relevant, interested, and select audience.  Of course, given what I've said, we should then assume a corresponding obligation to actually provide a good read and thoughtful discussion of these books, rather than sticking them on our shelves and providing a cursory ten-word blurb on the blog.  One may also hope that we could then draw the authors into the discussion.  Of course, there are examples of this; witness the discussion of Covering by various folks, including the author, on this blog last year.  (But note that Covering itself was a popular press book.)  Let's see some more of it.

Second, if you're looking for thoughtful discussions of academic books that are at least somewhat translated to reach a sophisticated but sometimes non-expert audience, let me stick up for that battered old institution: the law review.  It can be no secret that the back-of-the-book writing in law reviews is often sharper, more direct and less bloated than the extended tenure pieces at the front of the book, and we have book reviews in large measure to thank for this.  (Along with the slowly growing rise of the "essay.")  They are not a substitute for the book itself (are they?), but they are often an excellent and economical presentation of the views of the reviewer, and are often the best sheer reading in the issue.    

Posted by Paul Horwitz on February 17, 2007 at 10:39 AM in Books | Permalink | Comments (6) | TrackBack

What is the "university?"

Rick's post discussing Prof. Stone's discussion of the Kalven Report is eloquent and thoughtful.  I doubt I can contribute much beyond gilding the lily.  But let me add some thoughts, most of which echo what Rick has already said.

First, Prof. Stone's argument ultimately sets much store in defining "the university."  A university, in his view, has a broad but ultimately static function: to create a forum for fearless speech and inquiry, and not "to proclaim the truth."  Thus, "once a university takes sides, it is no longer a university."  I have been thinking a good deal about universities and the First Amendment these days, and it seems to me that there is a tension between basing First Amendment rights inhering in and around the university on academic freedom, and the non-legal concept of academic freedom itself, which is hardly as fixed and uncontested as the courts' depiction of it might suggest.  One way to resolve this is to just come up with a definition of what "the university" is for constitutional purposes, or of what "academic freedom" is for constitutional purposes, and stick with it.  But I am not convinced the courts should simply draw a line around what they think the university is, or what they think academic freedom constitutes, and argue that anything beyond that definitional boundary is irrelevant.  Rather, they -- and we -- ought to understand that within the broad grouping of institutions that we understand, family-resemblance-style, to constitute "universities," there will inevitably be different views on what the university mission entails, and how it ought to be carried out.  An institution whose understanding of that mission, or of academic freedom, that falls sufficiently outside of that family may eventually lose the support of adherence of academics, students, and others.  But within the fairly broad scope of our intuitive of what constitutes a university, there is surely room for universities to vary in their understanding of their mission.  To say of such institutions that they are "no longer [ ] universit[ies]" seems to me to be unhelpful, and to settle by fiat what should be a productive discussion about the potentially plural nature of universities, and about whether there are core principles that unite the university or the concept of academic freedom.  So I cannot agree with Prof. Stone that a university that opted to make a statement about Darfur through divestment would cease to have earned the title of "university"; rather, such a university would demonstrate that there is room in the academy for varied and conflicting understandings about what any individual university's academic mission entails. 

I should add that I have conflated here, to some degree, questions about what courts should do about the university, and questions about how we, and Prof. Stone, should think about the university outside the courts.  But the two are related and shed light on each other, I think: for if we are willing as academics to acknowledge that there is no fixed definition of "the university" and its mission, we might urge courts to proceed less on the basis that they are protecting some fixed definition of "academic freedom," and more on the basis that they ought to defer to the actions of universities as largely autonomous institutions, allowing them to proceed to determine for themselves what their academic missions require of them.

Second, I am guessing (though I might be wrong!) that lurking behind Rick's examination of Prof. Stone is a question that has been much discussed in certain academic precincts lately: the nature of the religious university (often the Catholic university, although such debates have also taken place at Baylor and elsewhere).  Such institutions are, I would guess, used to the slings and arrows of comments from without suggesting that a university that has a religious mission in some sense is "no longer a university"; and those schools have also engaged in vigorous good-faith internal debate about what it means to be a religious university, and also what it means to be a religious university.  Speaking from within the snowy and sunless grounds of Notre Dame, I can attest to the value and power of such discussions -- and I can attest with equal confidence that this is a university, albeit one whose mission may (and perhaps must) ultimately differ from that of the University of Chicago.  So, like Rick (I think), I would hesitate to engage in line-drawing that says that particular recognizably academic institutions are not "universities."  As he says, we may each argue about when, and whether, a university should take a stand, what its academic mission is, what academic freedom entails, and so on.  But we should have that discussion rather than engage in a somewhat artificial act of boundary-drawing.

More after the jump, on the Stone/Solomon Amendment connection.

Of course, Rick also rightly points to Prof. Stone's argument that universities may "take a stand" on particular issues in "exceptional circumstances," including action where the university's "own conduct would otherwise directly and materially cause serious injustice."  Prof. Stone's example of this is that universities "may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation."  Rick sees this as an argument jury-rigged to clear a space for the position taken by many law schools in the FAIR case, arguing against the Solomon Amendment.  I am no fan of the Draconian nature of the Solomon Amendment, and I think the Court ought to have given far more serious consideration to the arguments raised by the FAIR plaintiffs than it ultimately did.  But I also see Prof. Stone's effort to draw a distinction between Darfur divestment and the exclusion of military recruiters as unpersuasive.  First, I am not sure that the direct/indirect distinction Prof. Stone draws is really present here.  Second, I am not sure which way it cuts; after all, universities do not offer any choice to their students whether or not to participate in sending investment monies flowing to a region of the world in which genocide is taking place, but students to have every freedom not to participate in on-campus recruiting, by the military or any employer.  Moreover, it is certainly arguable that the injustice involved in genocide, albeit it is a more indirect consequence of investment, is far more "serious" than the wrong involved in the military recruitment case.  Third, as Rick has already suggested, it won't do to distinguish the two cases because the divestment crowd was urging the Univeristy "to make a statement about what is morally, politically, and socially 'right,'" as Prof. Stone writes.  This sort of "message" argument was precisely what most of the plaintiffs in FAIR were arguing was at stake in the military recruitment context; if a university can make a "statement" in that context without losing the right to be called a university, it is not clear to me why it cannot make a similar statement in the Darfur context.  Moreover, as many of the commenters to Prof. Stone's post suggested, there are other ways in which universities can send "messages" of this type which do not closely resemble what the law schools and universities did; most prominently, they could continue their policies of exclusion and accept the financial penalties.

Prof. Stone's position is also dangerous, or at least one might consider it so.  Note that in his view, a university may curtail the use of facilities where they are used to discriminate against students on a variety of bases, including race, religion, gender, ethnicity, or sexual orientation.  Prof. Stone may believe that "may" is the right word here, while others may believe that the university must do so.  But what, then, of the student Christian group that restricts itself, or at least officership in the group, to those who agree with the core tenets of the group, and of the faith?  What of other groups that wish to include or exclude participation on such bases?  What of the student group that wishes to use a public space to share a message or urge a point of view that could be seen as hostile to others based on one or more of the categories Prof. Stone singles out?  May the university intervene in all of these cases, consistent with Prof. Stone's exception?  And, to broaden the principle somewhat, what of the so-called Academic Bill of Rights?

Now, we can argue, lawyer-like, about nice distinctions here.  But it seems to me that Prof. Stone's argument is inconsistent with his Solomon Amendment position on a still deeper level, and that this inconsistency afflicts many of the people who argued in favor of the law schools' position against on-campus military recruitment (which, I should point out, is a different question from the issue of whether the government can impose such a requirement on the universities ).  Prof. Stone, like many academics, takes the view that the university's central role is to remain neutral while creating an open space in which everyone may take place in debate, and in which "even the most controversial and despised views may be aired, confronted, and considered."  It is, in other words, a particular conception of academic freedom and of the university, and a fairly conventional one.  I think that conception sits very uneasily with a policy of absolute exclusion of military recruiters -- not protest, or disagreement, but absolute exclusion, which was the policy some schools wished to pursue.  There is no doubt that distinctions can be drawn between the two.  But I think there is still a deeper tension between a conception of the neutral, truth-seeking university in which a variety of actors, with a variety of views, are to be allowed on campus, and one in which the university makes a "statement" by utterly excluding one of those actors in the recruitment context. 

Does that mean that I think Prof. Stone is wrong to say universities should be able to exclude military recruiters?  It does not.  I think they should be able to do so.  Rather, I am suggesting that Prof. Stone cannot reasonably have both a narrow view of what constitutues "the university," one based on varied and vigorous speech on campus under the protection of a neutral university, and a view that such institutions ought to be able to exclude military recruiters (or others).  Precisely because I think that there is room for a variety of different understandings of what the university mission requires, and because I think that courts ought to defer to these universities' sense of their own mission, I think the Court ought to have been far more receptive in FAIR to the law schools' arguments that they should have the right to exclude military recruiters.  But I think those schools ought to have thought far more closely about what their own academic missions required, and whether excluding the military recruiters was genuinely consistent with their own perception of their academic mission.  Some of them might have concluded that it was not consistent, and therefore allowed the military on campus voluntarily, while allowing individual faculty members and students to engage with and protest the recruiters.  Others, at some cost to the sort of self-image that Prof. Stone presents, might have concluded that they are not, and should not be, "neutral" institutions; and that might provoke some interesting discussion about what kinds of institutions they are, and what they should do about it.  In short, I am suggesting that the primary responsibility for deciding "what is a university" lies with each university itself -- but that this autonomy imposes an obligation on those universities to have that discussion, and to take seriously the question whether particular actions they want to take, such as excluding military recruiters, are really consistent with their own sense of mission.  I fear that, in the FAIR case, too little of this discussion took place.

So, in short, I part ways with Prof. Stone's fairly narrow conception of what the university "is," and would allow for a considerable diversity in the broader family of universites about what their mission entails.  And I find unpersuasive his effort to maintain his conception of what the university is in a way that allows the exclusion of military recruiters while barring Darfur divestment.  I do think universities ought to be able to formulate a sense of their own mission that would allow them to do one or both of these things, and that courts should defer substantially when they do.  But those decisions should be conscious ones, which involve the university engaging in a meaningful public discussion about what its mission is, and what actions it must take consistent with that mission.  My complaint about the FAIR case is that I think too many law schools assumed that they could or should exclude military recruiters without really engaging in that kind of discussion about what their academic mission required.  I think the law schools perhaps ought to have won FAIR, but not before asking themselves whether they could really exclude military recruiters and remain "universities" in Prof. Stone's sense of the word.

Posted by Paul Horwitz on February 17, 2007 at 10:02 AM in Culture | Permalink | Comments (2) | TrackBack

Friday, February 16, 2007

Why do universities exist?

A few days ago, Prof. Geoff Stone put up a long, personal post on the University of Chicago Law Faculty Blog, "Darfur and the Kalven Report:  A Personal Journey."  In that post, he discussed and reflected on the University of Chicago's recent decision -- based on the Kalven Report -- not to divest from Darfur.  Prof. Stone describes the evolution of his own views regarding the University of Chicago's decision not to "take a stand" against the Vietnam war, and of his reasons for thinking that the University got it right, then and now. 

The post includes (as did the Kalven Report) claims about the nature, function, and role of the university, that struck me as worth reflecting upon.  Here's a (fairly long) excerpt, and then some thoughts about it . . .

Prof. Stone writes:

. . .  Universities – most especially this university – exist for a very special reason. They exist to create a forum in which students, professors, and researchers may explore every issue from every side without fear of official condemnation or judgment.  They exist to enable talented and committed individuals to seek the truth. They exist to serve as a safe haven in which even the most controversial and despised views may be aired, confronted, and considered. They do not exist so students, faculty, researchers, and administrators can vote to determine the truth. They do not exist to proclaim the truth. For a university, it takes much more courage to stand silent, then to yield to the pressure and temptation to take sides. But once a university takes sides, it is no longer a university.

It is not as clear to me that "once a university takes sides, it is no longer a university."  Couldn't a university "take sides" on a question, even a contestible moral or policy question, without compromising the ability of faculty to continue exploring that and other questions, and to offer positions at odds with the "side" taken by the University?  Couldn't we come up with a number of questions where "taking sides" seems fairly non-threatening to academic values and the mission of a university, properly understood?  Back to Prof. Stone:

. . .  Well-meaning and admirable students demand that the University divest itself of any investments it may have in corporations that do business in Darfur. Certainly, their concern with the tragic events in Darfur is warranted – indeed, compelling. But the University is right not to take a political, social, or moral position.  It is for the students, faculty, trustees, alumni, staff, and friends of the University to take their own positions. It is not for the University to do so for them.

Perhaps not "for them", but what about for itself?  Is it really the case that a University is the kind of enterprise / project / community that must, by definition, not "take . . . positions" on "political, social, or moral" questions?  Back to Stone:

The Kalven Report recognizes that there may be exceptional circumstances in which it is appropriate for the University to take positions on public issues. It may do so in order to protect the fundamental interests of the University itself. For example, the University may legitimately oppose government efforts to curtail freedom of inquiry within the University or to dictate who may or may not be a student or professor here.  The University may also legitimately act on the basis of political, moral, or social judgments if its own conduct would otherwise directly and materially cause serious injustice. For example, the University may appropriately refuse to allow employers to use its placement facilities if they would use those facilities to discriminate against students on the basis of race, religion, gender, ethnicity, or sexual orientation.

What the Kalven Report forbids, however, are decisions of the University designed expressly or symbolically to proclaim “right” moral, political, or social positions. That is the issue presented by those who insist that the University should divest from Darfur. The University’s investments in corporations that may do business in Darfur cannot in any meaningful sense be said directly and materially to have caused the tragedy in Darfur. Those who demand divestment want the University to make a statement about what is morally, politically, and socially “right.” And that is precisely what the University should not do.

Now, this seems a bit jury-rigged to me, to leave room for supporting the position taken by many leading law schools in the recent Rumsfeld case.  Couldn't it be said that, by not -- say -- divesting from Darfur, a university is no less complicit in injustice than would be a law school that permitted the military to interview on campus (surrounded by disapproving signs)?  Sure, the University's investments did not cause the tragedy in Darfur.  But, letting the JAG interview at Yale Law School is not causing anti-gay discrimination, either.  And, doesn't the identification of those "serious injustices" that trigger this exception involve making, and acting on, moral and other claims and arguments that are no less debatable than those that would, presumably, be offered in support of the pro-divestment arguments?  Wasn't the law schools' position in the Rumsfeld case precisely that they had a First Amendment right to "make a statement" opposing the military's position?

Lawyers know all about slippery slopes. If the University divests from Darfur, then others will surely insist that the University must then divest from corporations that manufacture cigarettes, perform abortions, sell arms to Israel, and pollute the environment. Of course, there are degrees of right and wrong and degrees of evil. But it is not the role of the University to take positions on such questions. Indeed, the University should no more divest on the basis of these sorts of issues than it should prohibit students and faculty from speaking freely on campus in support of tobacco subsidies, the moral legitimacy of murdering abortionists, the right of Palestinians to destroy Israel, or even the morality of genocide. The role of the University is not to "decide" such questions, but to create and nurture an environment in which we may freely and openly debate them, without fearing that the University has already resolved them on our behalf.

As I've suggested above, it strikes me that the force of the "University should not resolve difficult questions on our behalf" is undercut somewhat by the "but it is fine for the University to exclude military employers because of the military's immoral policy" caveat.  But putting that aside, I guess I am resisting the proposed first principle that a university, as such, cannot -- without ceasing to be a university -- "take positions" on things.  (Whether it should do so, or should do so promiscuously, is another matter, of course.) 

What do others think?

Posted by Rick Garnett on February 16, 2007 at 05:25 PM in Rick Garnett | Permalink | Comments (1) | TrackBack

Podcasts from 2007 AALS Conference

. . . now available here

Posted by Matt Bodie on February 16, 2007 at 01:40 PM in Information and Technology | Permalink | Comments (0) | TrackBack

Thursday, February 15, 2007


Via Brian Quigley at UTexas Law Library, I saw that UConn L. Review's latest issue has come out and it has what appears to be a very interesting set of studies of law review scholarship from Ronen Perry (Haifa) and Al Brophy (Alabama). We had an exchange here at Prawfs about this not long ago, which you might also be keen to check out.





Posted by Administrators on February 15, 2007 at 05:10 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

The Symposium

Yet another contribution to the Constitutional Commentary symposium on Jack Balkin's "Abortion and Original Meaning" is now available on-line.  McGinnis & Rappaport's contribution is up at SSRN.  Here are the papers:

Jack Balkin:  Abortion and Original Meaning

Randy Barnett: Underlying Principles

Ethan J Leib: The Perpetual Anxiety of Living Constitutionalism

Mitchell Berman: Originalism and Its Discontents

John McGinnis & Michael Rappaport: Original Interpretive Principles as the Core of Originalism.

McGinnis & Rappaport build off of their previous essay, "A Pragmatic Defense of Originalism," a paper I critiqued quickly here.  My more refined criticism will be published as a short essay on Northwestern's Colloquy and in the Northwestern Law Review in a few weeks.

In the meantime, though, there is a nice paragraph in their Balkin reply that I think is an important reminder for those who think a commitment to originalism disallows any deference to precedent:

Balkin’s claim questioning the legitimacy of relying on constitutional precedents [for certain kinds of originalists], however, misunderstands the Constitution and its original meaning.  While Balkin assumes that originalism and precedent conflict, that will not be true to the extent that the Constitution incorporates or allows for precedent, which it appears to do in two ways.  First, the concept of “judicial power” in Article III may be best understood as requiring the judiciary to decide cases in accordance with some notion of precedent.  Second, the Constitution may treat precedent as a matter of federal common law that is modifiable by federal statute – thereby allowing for precedent without compelling it.  Both of these interpretations are supported in different ways by the fact, which we do not have the space to show, that there was a general acceptance of some aspects of precedent when the Constitution was adopted.  These interpretations might be combined in a variety of ways. For example, the Constitution might incorporate a thin or minimal theory of precedent and then leave the remainder to be determined by federal common law and federal statute.

This line of argument might helpfully provide a way for Scalia's "faint-hearted originalism" to embrace precedent without turning red -- and a way to combat Thomas's more extreme form of originalism that often does not seem to allow any room for precedent.

Posted by Ethan Leib on February 15, 2007 at 12:55 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

UVA, Big Tobacco, Complicity, and Narratives of Responsibility

So this story has gone largely unnoticed, but this week the University of Virginia accepted a 25 Million dollar gift from Phillip Morris.

As the article reports,

Philip Morris USA, the nation's No. 1 cigarette maker, has donated $25 million to the University of Virginia for research on addiction and youth smoking.

The donation represents the largest corporate gift in U.Va.'s $3 billion fundraising campaign, launched in September.

Approximately $20 million of the funding will go to the School of Medicine to support projects that seek to develop a better understanding of the causes of addiction. The remaining $5 million will supplement programs that include development of an anti-smoking marketing campaign aimed at young people.

The University's President justified the gift as "support[ing] research that may ultimately prevent or cure addictions and serious diseases, such as lung cancer, heart disease and emphysema."  And the Medical School dean apparently described one of the goals of the research to be "a vaccine to prevent cigarette dependency."

Others were more skeptical, and the article quotes on individual as saying: "It seems strange for them to give money for research when they remain producing a product without letup that kills people."

What I want to suggest is that it is not "strange" at all, but very very smart, on Phillip Morris' part. 

I had the great pleasure of sitting in on a lunch conversation discussing this issue with Dan Wikler , a Public Health Ethicist, and Allan Brandt , medical historian (and an expert witness on the Tobacco companies in the government's recent RICO action).  Both of them were of the opinion that this gift was another clever move by Big Tobacco to attempt to at the same time re-habilitate their credibility and to institute a narrative of responsibility that is an attempt to avoid regulation.

Other parts of this strategy include Phillip Morris' quit assist program that encourages and helps people to quit, and its Youth Smoking Prevention program.

Both programs appeal to a deeply ingrained American dislike for paternalism and strong belief in individual responsibility.  Big Tobacco lost its credibility in the 80s and 90s for its claims that cigarettes weren't harmful, and a number of pieces of legislation (most notably bans on smoking in workplaces, restaurants, and bars) were justified by appeal to the Millian harm principle -- a restriction on liberty to prevent harm to others.  This is a typical strategy in getting public health regulation passed.

It is when public health regulation begins to target harm by an individual to that individual, it founders on opposition from libertarians and other conservatives who want to allow individuals to be "responsible" for their own choices.  But legal academic, familiar with bounded rationality and behavioral economics know that the set up of choices drives a lot of those choices, and that narratives of responsibility may be overly simplistic. (See, e.g.,Cass R. Sunstein and Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 Univ. Chicago L. Rev. 1159 (2003); Jon Hanson & Doug Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 Harvard Law Review 1420 (1999)).

This latest move by Big Tobacco can be seen as a push back to reclaim the narrative of responsibility.  If we are helping people to quit, then those who don't are choosing to smoke, and that choice should be respected.

Which brings us to UVa and the 25 million dollar gift (and here I am not trying to single out UVa, or casting the first stone, a number of universities have ties to Tobacco, I've been told there are Harvard affiliated psychiatrists who are listed in the brochures relating to Phillip Morris' quit assist program, for example).

The question I am interested in is whether UVa, especially its med school, did something wrong by accepting the gift.  This lead to a raucous division of opinion over lunch.  Some thought that if the gift was largely unrestricted (not clear from the news reports), and it might lead to development of addiction research that helped fewer people get addicted, then it was  appropriate. 

Others thought that it was a deal with a devil, that Big Tobacco knows what it is doing and that it would not embark on a partnership like this unless it believed that the net result would benefit the company, in image rehabilitation if nothing else.   That seeing "Phillip Morris" and "UVa Med" in the same letterhead or edifice was bound to stymie public health attempts to discourage smoking.

Still others thought that the issue was a more metaphysical one of complicity or scandal as it is sometimes called in Catholic ethics.  This is quite interesting to me since similar arguments are marshalled in the debate over harvesting of fetal stem cells by Catholic theologians, that while the harvesting of fetal stem cells from dead fetuses is not itself the problem, it makes one complicit in abortion.

Should we be applying a (secular) version of this standard to universities in particular?  Did UVa do wrong by accepting the gift?

One more thought, that echoes an earlier discussion on this Blawg, and then I'll shut up.  When people were considering firms to work for in law school, a number of firms highly touted the fact that they did no Tobacco work.  Assume firm X does that kind of work, and assume further that you are opposed to what the tobacco industry does, and perhaps even think it is breaking the law.  Should you feel complicit if you work for firm X , even if you yourself can completely avoid such work?

To put the point more generally, how much should lawyers view their choices of where to work as morally constitutive.   Is it desirable to inculcate a norm in individuals that sharply differentiates between their commitments as a professional from their commitments as a person, or is that schism ultimately self-defeating?

To be aut0-biographical for a moment, when I went to work for the Justice Department's Civil Division, Appellate Staff, I did so knowing it handled a lot of the marquee defensive litigation in the Circuit Courts and (together with the SG's office) in the Supreme Court.  In my tenure this turned out to include things like Guantanamo and partial birth abortion.  Our non-political appointee head, Director Kopp, and our political appointed "front office" (Assitant Attorney General Keisler and then-Deputy Assistant Attorney General Katsas, two of the finest lawyers and people I have ever met, though I am sure there is much we disagree about politically) were wonderful about making sure that no one ever worked on any case they were not comfortable with.  And it seemed to work, since by my guess the office was at least 50% moderate democrats, and the median number of years of service was about 15 years, so most had seen administrations of each stripe come and go.

Yet, a number of my more liberal friends expressed surprise (disappointment?) that I would choose to work in an office that defended adminsitration policies that they found repulsive.  At the time I explained to them my view that my job was not to decide whether the administration's policy was good or bad, but just whether it was lawful, or at least whether we had a persuasive case that it was, and make that case.

But was I right in making this claim, or was this an ultimately self-deceptive strategy?  Like most of the lawyers in the office I could have chosen to work at a lot of different places; should I be able to pass the buck so easily on my having chose to work there and not somewhere else as a moral choice, even if I could avoid the particular pieces of litigation that I felt I could not in good conscience support?

More generally, what norm of complicity should we be inculcating in our students, and how should we advise them when they are making choices about summer jobs and careers?

Posted by Glenn Cohen on February 15, 2007 at 10:48 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Wednesday, February 14, 2007

Staggered Boards and Our Staggered Senate

Guhan Subramanian is arguing the virtues of staggered boards in corporate governance.  He concedes that staggered boards have "anti-takeover" effects that shareholders do not like -- but believes that there is a way to preserve them without the effects shareholders dislike.  In short, he thinks they are worth preserving because they provide "greater stability, improved independence . . . and a longer-term perspective" than unitary boards.

All of this led me to think about why we stagger our Senate elections, electing only about 1/3 of our Senators in a given two-year cycle.   The very  justification of the Senate and its members' six-year terms altogether  involves a similar invocation of stability, independence, and a longer-term perspective.  But why do we stagger?  Why not just consider the body in total every 6 years?  The anti-takeover effects are clear and aren't they as undesireable as they are in the corporate context?  I think there are reasonable answers -- but it is worth taking a moment to consider.

Posted by Ethan Leib on February 14, 2007 at 11:51 AM in Article Spotlight | Permalink | Comments (4) | TrackBack

Am I the Only One (Who's Ever Felt This Way)?

Who had the best album of the year last year?  The best song?  The best record?  The Recording Academy tells us it was the Dixie Chicks.  Or does it?  This story tells us that at least some voters cast their ballots for a Dixie Chicks sweep not because of the music itself, but to strike a blow against country radio's campaign of private censorship in the wake of lead singer Natalie Maines's storied comments about President Bush.  Thus, Jeff Ayeroff, a well-known music executive and academy member, told the Times that the vote represented "the artist community, which was very angry at what radio did, because it was not very American."   The article portrays the awards as vindication for the Dixie Chicks, especially in the wake of their shut-out at the Country Music Association's awards.  And unnamed "analysts" are quoted characterizing the vote as reflecting "the desire of many voters to strike a blow for freedom of expression."

Well, that's all very nice; and doubtless the votes also reflected some fondness for the music itself.  But I would have been rather curious to know what music the Academy actually liked, rather than what message they wanted to send.  After all, the Academy has made some exquisite choices in the past, and I would have appreciated their aesthetic advice this time around too.  Not to sound shocked or anything; one doesn't expect awards to be purely merits-driven, or at least one shouldn't after reading this book, and many others that tell similar stories.  Still, if one casts a vote for an award based on vindication grounds, and therefore not on the merits, isn't one saying that one can't see past the politics of the occasion, and thus negating the artist's vindication as an artist?  (And vice versa, of course; the CMA awards were likely no better indication of the merits of the work in the eyes of the country music community.)

Incidentally -- how's the music, you ask?  OK, in my view, but far from their best.  Leaving aside private individual decisions not to support the band, which may or may not have been wrong but was far from censorship, and leaving aside the trickier question of the actions taken during l'aiffaire Dixie by country radio and other corporate actors, I can't imagine what it's like to face heaps of death threats and vile messages, and I don't doubt I would be fixated by such an experience if it did befall me.  But it's too bad the whole album is built around it.  The righteousness and angry defiance, however justified by the band's personal experiences, wear thin pretty quickly over the course of the album.  Good production values, though!  And there's always the hope they'll introduce more people to Patty Griffin.  And at least they beat James Blunt!

Hat tip for the title goes to Maria McKee, by way of the D.C.   

Posted by Paul Horwitz on February 14, 2007 at 11:29 AM in Culture | Permalink | Comments (10) | TrackBack

Why Not/Do A Fellowship?

In this post I discuss the major reasons to do (and not do) a fellowship, and along the way tell you a little bit more of what the life of a fellow (at least in my fellowship) is like.  Why do a fellowship?  There are a few major reasons:

(1) To be Competitive For Hiring:  Larry Solum is doing his usual yeoman's service by collecting entry level hiring data for this year, but if past data is any indication the market (especially in the top tier, however that is defined) is increasingly dominated by PhD-JDs.  In the 2006 data only, of the 161 candidates who were reported to have received a first tenure-track teaching job, only 40 had only a JD (that is, no advanced degree or fellowship/VAP).  Solum reports that 43 candidates of these had an advanced doctorate such as a PhD, SJD, or DPhil, and 43 candidates had some other advanced degree, usually a masters, while 88 candidates had done some kind of post-doc/pre-tenure program (including VAPs and fellowships).  This last number is a bit unrepresentative because, as Solum notes, some individuals have both advanced degrees and fellowships/VAPs (hereinafter just "fellowships").  But if you scroll through his listing of schools it reveals that very few candidates without a Supreme Court clerkship, a PhD, or a fellowship are being hired, especially at top tier institutions.

l For those of us not willing to devote another 4-6 years to a doctorate degree, or for whom practice had some allure as well, fellowships appear to be a way of catching up.
This is not to say it is the fellowship is itself doing much of the work (though at the margin it may act as a signal of an independent rater valuing the candidate enough to offer him or her a fellowship). What I have been told by those on the hiring side (and I'd love to hear more from those who are doing hiring in the comments) is that the fellowship mostly gives individuals the opportunity to write a great job talk and gain the other advantages I am about to discuss.

(2) Write: Writing a good job talk is a lot of hard work and time-consuming.  When I was working at the Justice Department's Civil Division, Appellate Staff, after a day of drafting my own Circuit court briefs, drafting initial version of Supreme Court briefs to be altered by the Solicitor General's Office, and preparing for oral argument, the last thing I wanted to do was more legal research and writing.  And (to give a plug to my old office, a place to work so good it gives legal academia a run for its money,) this was working very reasonable hours with a really intellectual group of people who would love to talk about any big idea in the law.  I have no idea how those writing job talks from large law firm life do it.
A fellowship gives you the time to write.  If you budget your time correctly you should be able to get both a good job talk and perhaps another publication ready in the first 12-16 months before the meat market.  I am trying to finish some work on an Article on the "right not to procreate" myself. 
Post-meat market it also gives you time to write 1-2 other pieces (and see Dan's earlier post about holding off on publishing those to get tenure credit).  One of my favorite law profs put it succinctly when we had lunch a couple of months ago -- "so you get to spend as much time as you want writing and you do not have to teach, where can I sign up?" (I equally succinctly reminded him he was getting paid 2-3 times my salary and that I'd trade him if he liked).

(3)  Learn: A fellowship gives you an opportunity to brush up on areas of law (and other disciplines) you'd like to know about but never had the chance, or to immerse yourself more deeply in an area you already know well.  Say empirical work has always interested you but you don't know what the differences within differences methodology is?  It turns out Elizabeth Warren is teaching an empirical methods class you could sit in on at Harvard Law School, or harder core individuals could arrange to sit in on similar classes at the economics department.
To expand my knowledge base about public health law I am sitting in on a class being offered at the law school by Harvard Public Health School Prof. Michelle Mello.  That's not to mention all the informal stuff going on.  So, to give just the example of a typical week.  On Tuesdays I sit in on a weekly reading/discussion group with the Division of Medical Ethics faculty and their post-docs and PhD students at the Med and PublichHealth Schools (the discussion leader rotates every week, including amazing people like Norm Daniels, Dan Brock, Dan Wikler, and Frances Kamm).  On Wednesday, Elizabeth Warren presented work at my center on the effect of medical crises on bankruptcy.  On Thursday, Jennifer Arlen, who was visiting Harvard in the fall, presented work on contracting out of medical malpractice liability.  On Friday, Bernard Lo, who teaches and is a policy adviser as to California's Stem Cell initiative gave a presentation on on the domestic use of stem cell lines and research developed in foreign countries under conditions that do not meet U.S. research ethics standards.  These are only the events I attended, there were many more health law, bioethics, biotechnology ones I just didn't have time for (including a weekly health economics workshop series).  Particularly in my field (something I'll talk about in a further post) where there is so many disciplines at work, the opportunity to immerse yourself in the methods and research of other disciplines is really essential.

(4)  Backers/Advisers: Some of us had close relationships with certain members of the faculty as law students, but particularly at a place like Harvard it is hard to really develop those kinds of relationships in any great number.  A fellowship gives you an opportunity to cement (if returning to your home institution) or develop good relationships with faculty members who can advise you what to work on, comment on and critique your work while it is still in development, and support and advise you while on the job market.  How much you'll be able to do this depends a lot on your personality and the character of the institution.  Just as when I was a student, at Harvard the faculty is quite open to meeting you, talking about ideas, even reading drafts, but they definitely will not seek you out; you have to be a self-starter in this regard, and if the thought of emailing a prof you don't know and asking them if they have time to sit down with you is unappealing, you maye have a problem.

(5) Quack Like A Duck:  Legal academics write, present, and talk about their work in a particular way.  As a student you can get acculturated to some of it, but there really is no substitute to sitting through the presentations done by visiting faculty as lateral job talks to get a sense of how the game really works.  At Harvard, there is also an opportunity for fellows to give mock job talks in the fall they are going on the market, which faculty attend, and that helps a great deal in geting ready for doing the real thing.

(6) Network:  In her more cynical moments my mother likes to say that career success is "not what you know, but who you know."  While I am too much of a believer in merit to fully buy into this, it really does help to know the people who work in your field of law and for them to know you.   A friend who was on the job market last year tells me he was immensely helped by meeting people at conferences from a particular school he was interested in and expressing his interest to them.  They had him in for an early pre-AALS job talk, and he ended up having this school, one of his top choices, extend him an offer very early into the process, which was a great position to be in  (he ended up accepting their offer and is thrilled).

(7) Get Used to Teaching:  If your fellowship offers teaching opportunities, it gives you a good opportunity to get used to the classroom, especially if you've never taught before.  It may also give you a good opportunity to assemble and try out a syllabus, as well as to compile your 'lecture' notes if you get to teach a course that will be part of your teaching duties as a faculty member.  A number of friends who are in their first and second years of law teaching have told me that preppnig a new course is a really time-consuming activity.

Why Not Do It?  If you have a great job talk ready to go and feel ready without a fellowship/VAP.  If you cannot take the  pay cut.  If your partner is not thrilled with the idea of relocating for a one to two year gig, only to have to relocate again.  If you are unsure whether you'll end up with an offer from a place you'll likely accept: going on the market from a stable job is one thing, you can always just stay at the job if you don't get what you want; going on the market from a fellowship necessitates a job interruption, and while most candidates good enough to get fellowships/VAPs will have no trouble finding a legal job to return to if it does not work out, there is obviously costs in time, money, and career to this strategy.

Those are my general thoughts on the matter, but I am happy to answer more specific questions in the comments section, and I'd be thrilled to hear from people on the hiring side, or from those who administer these fellowships.

Posted by Glenn Cohen on February 14, 2007 at 10:20 AM in Life of Law Schools | Permalink | Comments (14) | TrackBack

Tuesday, February 13, 2007

"Hi, I'm Gov. Crist, and I'm here to make your professor a judge."

I meant to blog about this a bit earlier, but it escaped my attention. A couple weeks ago, the newly elected Governor of Florida, Charlie Crist, decided to appoint an adjunct professor at FSU to an appellate judgeship. The story begins here and continues after the jump:

Gov. Charlie Crist brought a lesson on the judicial appointment process to life when he made a surprise visit to a Florida State University law classroom Thursday to appoint a professor to an appellate judgeship.

L. Clayton "Clay" Roberts and FSU President Emeritus Talbot "Sandy" D'Alemberte, who co-teach a class on state constitutional law, were leading a discussion on judicial appointments when Crist and Lt. Gov. Jeff Kottkamp showed up to announce their administration's first judicial appointment - Roberts. Roberts will succeed retired Judge Richard Ervin III on the 1st District Court of Appeal.

"It was wonderful that it happened in the law school that I went to and where I now teach," said Roberts, a 1998 graduate of the FSU College of Law and an adjunct professor. Roberts, 41, said he was stunned to see the classroom door open and his wife, Trelles, walk in with Crist, Kottkamp and other members of Crist's team. "He said, 'Hi, I'm Gov. Crist, and I'm here to make your professor a judge.' "

Crist apparently had first gone to Roberts' office in the Capitol, where Roberts serves as executive deputy attorney general, but quickly decided to head to the law school to deliver the news upon learning that Roberts was teaching.

"Our students were really thrilled," D'Alemberte said. "That Gov. Crist would take his time to tell Clay in person is a great tribute to Clay and shows that the governor and Lt. Gov. Kottkamp are really comfortable here at FSU and that they really care about people. It also sends a signal that Crist cares a lot about judicial appointments, and not all governors do. He will pay attention to who he appoints to the judiciary."

Richard Alton, a third-year FSU law student, said the surprise appearance could not have been more on point given the day's discussion of Article 5 of the Florida Constitution.

"The governor called him Judge Roberts and handed him a piece of paper," Alton said. "We all just started clapping. This is one of the great things about going to law school at FSU - we have so much access to the government and the judicial branch. We have four courts within a three-block radius of the law school."

The judicial appointment may be the first for Crist, who took office on Jan. 2, but he did not have to look far to fill the appellate vacancy. As executive deputy attorney general, Roberts served under Crist, who was attorney general until he became governor. And like Roberts, both Crist and Kottkamp are FSU alumni.

Roberts earned his FSU law degree after graduating from the U.S. Military Academy at West Point, N.Y. Before serving as executive deputy attorney general, Roberts was general counsel to the Florida Department of State and director of the state Division of Elections.

"I'm excited to be able to continue my public service and will work hard to uphold the confidence of the governor and my friends who have supported me," Roberts said.

Posted by Administrators on February 13, 2007 at 01:13 PM in Funky FSU | Permalink | Comments (1) | TrackBack

Dorf on Textualism & Originalism

Over at the slightly misnamed "Dorf on Law" (which is neither entirely Dorf nor entirely on law...discuss),  Mike has a couple of posts up on popular preferences for textualism or other putatively inflexible judicial interpretive methods, such as originalism.  His basic take, which I think is mostly right, is that when non-lawyers react to a case, they are responding to the results, not the jurisprudential method that produced them.

While popular views about results may swamp popular opinion of process in any given case, in the abstract it seems to me that there is some preference for law that is highly rule-like (i.e., textualist or otherwise inflexible).   In part that must be based on how the public feels about judges -- if someone shares our values, we're certainly more likely to be willing to delegate more authority to them.  So some of the preference for textualism is manufactured -- "elitist" judes become a good foil for politicians who want to present themselves as someone who shares the voter's values.  Somewhat ironically, that tactic may actually make it easier for judges to use open-ended interpretive methods, rather than tying their own hands with textualism and originalism, because it may make psychological constraints on interpretation more powerful.  I make a version of that argument elsewhere.

The point I want to make here, though, is that the demand for textualism could reflect a rough popular judgment about what, on average, will be the best rule for society.  For example, calling for textualism could be a kind of commitment device.  My sense is that people think of "strict" interpretation as, in fact, strict.  That is, they believe that when judges make exceptions or invoke purposive reasoning the result is to allow others to escape from the obligations of the law that appear to bind everyone else.  But no one wants to be the sucker who is obeying when everyone else is getting away with it.  So demanding "strict" interpretation is a way of assuring yourself, and others, that you and they will be held to the law.   

Again, there's any irony here.  Any tax lawyer will tell you that "strict" or rule-like interpretation usually is the method that tax avoiders hope for; it's purposive interpretation (in tax terms, the "business purpose" and "economic substance" doctrines) that catches efforts to shirk the responsibilities that others shoulder.  What about government officials?  Should their compliance with law be viewed strictly (strict scrutiny...?) or loosely (Chevron, qualified immunity...?).  That suggests that a really sensitive rule-utilitarian analysis of the right interpretive method is probably very complicated.

In sum, I think there may be some efficiency-type rationale for why people think they like textualism.  But there's a good chance it turns out to be wrong.             

Posted by BDG on February 13, 2007 at 11:51 AM in Legal Theory | Permalink | Comments (0) | TrackBack

MoJ Turns Four

He wouldn't blow his own horn about it, but let me point out that Mirror of Justice, a blog described as being devoted to "the development of Catholic legal theory," and on which our own Rick Garnett is one of the central posters, has just celebrated its fourth anniversary on the blogosphere.  MoJ is always on my favorites list, both for the depth and energy it brings to its content and for the diversity (along standard political axes; but, as is clear upon reading the blog, those axes do not always make sense in describing discussions that take place from within a unified faith perspective) of views its contributors bring to bear in discussing law and legal theory from the perspective of the Catholic faith, and vice versa.  (Penalver.  Garnett.  Perry.  Shriffrin.  Araujo.  QED.) 

I am sometimes sorry that MoJ eschews a comments field, but that should be an incentive for those of us -- even those of us who are outside the fold, formally speaking -- who would like to participate in the dialogue to link to its discussions and start conversations of our own on other blogs, as I have from time to time.  Congratulations on the anniversary, MoJ!   

Posted by Paul Horwitz on February 13, 2007 at 10:45 AM in Blogging | Permalink | Comments (1) | TrackBack

What are your votes on the Best Legal Writing of 2006?

I just received an email from the Green Bag/GMU Law's communications office with an interesting announcement of the 2006 honorees for Exemplary Legal Writing. "The awards, now in their second year, are selected by the journal’s esteemed board of advisers, which includes members of the state and federal judiciary, the news media, private law firms and academia.  The honored works will be republished in the forthcoming Green Bag Almanac & Reader 2007."

Chief Justice John G. Roberts was recognized for his opinion in Rumsfeld v. FAIR.  Also honored is Judge Richard Posner, Chief Judge of the New York State Court of Appeals Judith Kaye, former Solicitor General Seth Waxman, and Yale Law School Dean Harold Koh.  In total, 24 works were recognized in six categories: judicial opinions, books, short articles, long articles, briefs and motions, and miscellany.  A list of the honorees is posted after the jump.

Green Bag Exemplary Legal Writing 2006 Honorees

Judicial Opinions

Jay S. Bybee, Amalgamated Transit Union v. Laidlaw Transit Servs., 448 F.3d 1092 (9th Cir. 2006)
Alex Kozinski, Jespersen v. Harrah’s, 444 F.3d 1104 (9th Cir. 2006)
Richard Posner, Cecaj v. Gonzales, 440 F.3d 897 (7th Cir. 2006)
John G. Roberts, Jr., Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006)
Ronald A. White, Green v. Bd. Of Comm’rs, 450 F. Supp.2d 1273 (E.D. Okla. 2006)
William G. Young, U.S. v. Kandirakis, 441 F.Supp.2d 282 (D. Mass. 2006)


Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshal and the Rise of Presidential Democracy (Belknap 2005)

Jack Goldsmith & Tim Wu, Who Controls the Internet: Illusions of a Borderless World (Oxford 2006)

Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (Pantheon 2006; Chatto & Windus 2005)

Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (Rowman & Littlefield 2006)

Short Articles

Adam Liptak, Supreme Court Smackdown!, N.Y. Times, March 12, 2006
Duncan MacDonald, The Story of a Famous Promissory Note, 10 Scribes J.L. Writing 79 (2006)
Jeffrey Rosen, Judicial Exposure, N.Y. Times, Jan. 29, 2006
Jonathan M. Starble, Gimme an ‘S’: The High Court’s Grammatical Divide, Legal Times, Oct. 9, 2006
Stuart Taylor, Jr., Something’s Rotten at Duke, Nat’l. J., May 29, 2006
Diane P. Wood, Original Intent versus Evolution: The Legal-Writing Edition, The Scrivener, Summer 2005

Long Articles

Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 Indiana L.J. 1145 (2006)
Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249 (2006)
J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence, 58 Stan. L. Rev. 1969 (2006)

Briefs and Motions

Aaron M. Panner et al., Amicus Brief in Hamdan v. Rumsfeld
Seth P. Waxman et. al., Amicus Brief in Smith v. Texas

Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure, Restyled Federal Rules of Civil Procedure

Judith S. Kaye, The Best Oral Argument I (N)ever Made, 7 J. App. Prac. & Process 191 (2005)

Mark L. Movsesian, Samuel Williston: Brief Life of a Resilient Legal Scholar, Harv. Mag. (Jan-Feb. 2006)

Initially, I thought this list reflected a predictable GMU center-right bias (e.g., Roberts, Posner, Bybee, Kozinski). Then I saw it also included Judge Young's great Kandirakis opinion, which is a rousing defense of a defendant's constitutional rights -- and which I'm partial to on other grounds. But then I remembered Judge Young is a Reagan appointee also. Scrolling down I was pleased to see the center-left appear in some of the other categories; I was also excited to see a brief in Hamdan by a former boss of mine (the infinitely shrewd Aaron Panner). Anyway, I'll be sure to track down some of these suggestions.

Thanks to the good folks at Green Bag for paying attention to good writing. I suspect next year we'll begin to see some blog posts mentioned, perhaps, under the Miscellany category. In any event, what omissions do you think the Green Bag folks made?

Posted by Administrators on February 13, 2007 at 12:49 AM in Deliberation and voices | Permalink | Comments (3) | TrackBack

Monday, February 12, 2007


So, the new President of Harvard has been selected, and it's not Elena Kagan.  Judging from her successful career as a historian and the Harvard press release, the selection of Drew Gilpin Faust at least warrants the benefit of the doubt.  As a devoted alum and former employee of the school, I wish her lots of luck and courage in taming an occasionally difficult beast of a school.  But I harbor some reasons to be cautious about her appointment and I hope readers will gently disabuse me of these hesitations.

For one thing, the amount of administrative and development experience she brings as Dean of the Radcliffe Institute is not overwhelming.  During my time at Harvard, when the Radcliffe Institute was known as the Bunting Institute, my sense was that it had been a relatively insignificant part of campus life as a whole, and could hardly be considered comparable to running the Law School or even the Divinity School for that matter.  No doubt the Institute and its Fellows have contributed mightily to the mission of advancing the study of gender and society.  But as I understand it, the Institute seems to have become an even "smaller" place during Faust's tenure there, in part because of budget cuts and the continued absorption of the rest of what was Radcliffe into the Harvard infrastructure.  Compared to the prospects of taking someone who has successfully run another university (e.g. Amy Guttman at Penn) or a substantial school (e.g., Elena Kagan at HLS), it just seems a bit odd. 

Additionally, Faust brings no connection to Harvard except for her last six years as a member of its faculty and her administrative role at the Radcliffe Institute.   A lack of substantial connection in itself is not and should not be dispositive, but Faust will be -- I believe -- the first President of the University without a degree from Harvard.  (She went to Bryn Mawr and Penn and comes from a family of long Princeton lineage.)  This "unusual" background is good for the cause of heterogeneity, but I wonder how good it is for development as well as understanding the school's known and unknown quirks.  Time will tell.  (Here's a question: does anyone know of any studies showing a relation between success at fundraising among university presidents and whether they went to the school they are leading?) 

Last, I wonder about Faust's training as a historian and whether that should weigh at all in the determination of who should be president of a university.  There's no question that lawyers, policy wonks, and economists are often presumed (perhaps mistakenly) to have the training and frame of mind that is helpful for running large (academic) institutions.  I am curious: are there advantages that historians bring? Or that this particular historian brings? 

Again, I have no special reason to doubt that Faust will be a distinguished President and I join Al Brophy and others in wishing her all the success in the world.  She seems to be, as Neil Rudenstine is, a fundamentally decent human being, as well as an accomplished scholar.  But I am not the only one who seems a bit concerned about missing possible audacity in leadership.  Mike Dorf has weighed in with cautious optimism too.  Meanwhile, back at HLS, the students are celebrating Elena Kagan's continued reign. I'm not surprised, but I'm not sure I'm heartened by that either.  What do you think?

Posted by Administrators on February 12, 2007 at 05:08 PM in Current Affairs | Permalink | Comments (9) | TrackBack

"The Political Economy of Eminent Domain"

My favorite law professor, Nicole Stelle Garnett -- a former Prawfs guest-blogger -- is now guesting over at the Volokh Conspiracy, where she is planning a series of five posts about her recent article, "The Neglected Political Economy of Eminent Domain."  The comments boxes are already hopping, so check it out.

Posted by Rick Garnett on February 12, 2007 at 04:46 PM in Property | Permalink | Comments (0) | TrackBack

Another TWO guides for law review submissions

Thanks to Danielle Citron, we have another guide for submissions to law reviews that might be helpful to readers contemplating submissions in the next month or so.  You can download the Excel spreadsheet here.  This might contain some information slightly at odds with diverging from the guide from Tony Sebok that we uploaded this past weekend for your use.  Let me know if you have another guide that might be helpful, particularly for journals beyond the top 20 or so.  Thanks.

UPDATE: I've just received a copy of Penn student Anthony Ciolli's comprehensive law review submission guide, which you can download here. It contains lots of information for hundreds of law reviews, including whether students may submit their writing as well. Thanks Anthony!

Posted by Administrators on February 12, 2007 at 03:44 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Sperm Sorting, Divergence, and Intimate Discrimination

I'll go back to talking about fellowships in my next post, but a recent New York Times article provides a good jumping off point to discuss something I have been thinking about recently (and maybe even writing about more formally).

The article discusses the development of sex selection technology in the U.S.  It reports that:

Another method, used before the eggs are fertilized, involves sorting sperm, because it is the sperm and not the egg that determines a baby's sex. Semen normally has equal numbers of male- and female-producing sperm cells, but a technology called MicroSort can shift the ratio to either 88 percent female or 73 percent male. The enriched specimen can then be used for insemination or in vitro fertilization. It can cost $4,000 to $6,000, not including in vitro fertilization.. . .  The technique has been used in more than 1,000 pregnancies, with more than 900 births so far, a spokesman for the clinic said. As of January 2006 (the most recent figures released), the success rate among parents who wanted girls was 91 percent, and for those who wanted boys, it was 76 percent.

I am particularly interested in the question of whether sex selection constitutes discrimination, but before I get to that let me briefly set out some of the other major arguments marshalled against sex selection, after the jump.

One major set of arguments focus on the method for selection used, prenatal testing plus abortion in the United States, infanticide in some other places.  While there is an obvious comprehensive moral disagreement in the United States as to when (if ever) abortion is justified, sperm sorting significantly dampens if not entirely eliminates these method concerns (perhaps there is some religious or moral tradition with weak prohibitions on sperm sorting).

A second set of reasons focuses on the consequentialist fear that the aggregation of individual choices as to sex selection will lead to a gender imbalance of new babies that will (a) imperil our reproductive future, and/or (b) have bad social consequences for the gender that ends up behind. 

This is an empirical question.  Some research shows that only a very small percentage of Americans (8% in one study ) would choose to use sex selection (although some earlier research suggested a higher percentage).  And while there is evidence of a strong bias towards boys in some countries (see this research on Pakistan, for example) , the work I've seen in the US is less clear on whether one sex is preferred in a significant way (although there appears to be good evidence of a stronger American preference for having the firstborn be a boy).   Moreover, even if there was a significant effect, individuals might adjust their preferences based on availability -- if people are favoring boys and there is an over-supply, you might favor a girl so she has more suitors to choose from or disfavor a boy for fear he will never marry.  For all these reasons, this argument has not become decisive for me yet, but if you feel differently consider a parallel case that does not have the same problem: sex selection among adoptive parents.

In both the adoption and prenatal sex selection case, a further claim that is sometimes marshalled is that sex selection is discriminatory and ought to be prohibited for that reason alone.  This is a very interesting claim, and one that forces us to confront a larger question of whether the term discrimination makes sense (as a moral judgment) in the context of intimate relationships. 

Consider a potentially parallel question that I have found to deeply divide my friends -- whether individuals who have racial preferences in dating are behaving immorally or whether it is instead an amoral matter, a preference that is not subject to moral praise or blame.  Those who believe in the practice's amorality usually suggest it is just about "attraction," but all forms of racial preference could potentially be reducible to similar "feelings," and yet we do not tolerate them on that basis.  A more reasoned defense might go as follows: discrimination involves making decisions based on morally irrelevant factors, such as race and sex.  But in the dating race and sex are not morally irrelevant,  they are instead highly relevant to attraction, which is a prerequisite to dating. (I'll note but not explore the further interesting issue of whether the connection between attraction and race (or even sex!) is "constructed", and whether the answer to that question makes a difference from the point of view of morality). 

But how defensible is this intuition and how wide is the space for "intimacy" where race and sex are relevant?  If "attraction" is the 800-pound gorilla (if only because it is difficult for many of us to imagine being attracted to both sexes), consider instead friendship.  Is a person's sex morally relevant to friendship?  If someone preferred having male friends to female, would they be a misogynist, or would that instead be an amoral choice?

To relate the question back to sex selection, is it possible that the decision to have a child of one sex rather than the other is likewise an amoral choice.  I may just "prefer" boys, or may just feel more competent at raising them, or something along those lines (a same-sex couple might very well have such gendered feelings about competency, whether they are legitimate or not.) Is childrearing, like dating, an intimate space where we think ordinary principles of discrimination do not apply?  We could make this space "bigger" to encompass hard moral (if not legal) cases in  hospital administration/employment, such as whether to respect a woman's racial or sex preferences as to which Ob-Gyn delivers her baby, or gender or race preferences as to the nanny one hires to care for one's kids.

One pushback I'd expect from someone like my old boss and mentor Michael Sandel, is that it is a corruption of the notion of parenthood to try and act on such preferences, or as he puts it in a piece on enhancements more generally: "The problem lies in the hubris of the designing parents, in their drive to master the mystery of birth. Even if this disposition does not make parents tyrants to their children, it disfigures the relation of parent and child, and deprives the parent of the humility and enlarged human sympathies that an 'openness to the unbidden' can cultivate."

But if that is true, should we also condemn the parent who chooses by sex in adoption?  If anything, the harm there seems more tangible, since it is harm to a child who already exists and will not get adopted, as opposed to the harm of not coming into existence (there are echoes of Derek Parfit's Non-Identity Problem here).  And what about the dating selection case?  Does it corrupt the practice of romantic love to think that things like race ought to be relevant?

Beyond all this we have the further question of whether we think the law ought to be involved in regulating any or all of these examples of discrimination.  Dating selection seems an area where it is pretty clear we don't want the law to intervene, perhaps because we think it powerless to do so.  But sex selection seems a harder case.  A law criminalizing sex-selection technology would be no harder to enforce than a number of other laws on the books.  Should the law and morality be symetrical here, or  this an area where "divergence" (to use Seanna Shiffrin's term ) between law and morality is justified?

Obviously this post asks more questions than it answers, and wades into some controversial territory (hopefully with sensitivity), but I have been thinking about this issue recently and look forward to getting some input from others.

Posted by Glenn Cohen on February 12, 2007 at 10:52 AM in Information and Technology | Permalink | Comments (9) | TrackBack

Sunday, February 11, 2007

Size and Governance

Gar Alperovitz had a very provocative and thoughtful op-ed in yesterday's NYT.  The central point was that this country is getting too big for centralized government and that it should come as no surprise that big states and regions are getting bolder in efforts at self-governance.  California and its ambitions to address health care, trade, and global warming issues might be seen as exemplary.

There is, however, an interesting equivocation in the article.  Sometimes Alperovitz focuses on the problem of size for "meaningful democracy."  In short, a nation of 300 million simply can't participate in a democracy worth the name.  This helps his underlying normative agenda that local devolution is a strategy supported by democratic principles.  (There is probably another dynamic at work, too, that is underemphasized: States, like California, that are radically underrepresented in the Senate, overpay for the federal government with their taxes, and subsidize small states are much more likely to harbor resentment and pursue their own political agenda outside the federal governmental structures.)

But there is another thesis -- one that is, perhaps, more controversial:  He writes, "Arnold Schwarzenegger seems to have grasped the essential truth that no nation — not even the United States — can be managed successfully from the center once it reaches a certain scale."  The idea here and elsewhere in the article has nothing to do with democracy.  He seems to claim that no nation -- democratic or otherwise -- can sucessfully manage itself through a centralized federal system once the scale of the country grows to a certain point.

This thesis reminded me of my reactions to my trip to China (which I published here), a country four times the size of the US [by population].  I wrote:

First, and most superficially, I was imbued with a deep sense of the ungovernability of such a gigantic country that spans so much territory and includes so many different peoples.  That realization helped me make sense of the fact that we all spent very little time [during a conference about Chinese deliberative democratization] trying to imagine what a national democracy for China could look like, save some final comments by the CCP members.  There was Daniel Bell's vision, but very little of the conversation over the few days gave national democratization its due. We talked a lot of about grassroots activism and ways local communities could get their party leaders to be more responsive and accountable; but large scale institutional design didn't really seem like it was on the agenda.

At the time, I think I was disturbed by the prospect of ungovernability and what that would mean for meaningful democratization.  Upon further reflection, however, maybe, per Alperovitz, radical devolution in China is the road to self-governance -- even if that form of self-governance is not deliberative or democratic.

Posted by Ethan Leib on February 11, 2007 at 01:54 PM in Article Spotlight | Permalink | Comments (6) | TrackBack

Saturday, February 10, 2007

Spring Submission Guide for Law Reviews and Thoughts for Rising Prawfs

Two quick public service announcements from your friends at Prawfs.   First, thanks to Tony Sebok, we have an updated submission guide to publishing in a couple dozen of the top law reviews for Spring 2007.   You can download it here.  The document includes information regarding the law reviews' addresses, preferred lengths for submissions, the turnover of the new boards, and whether they accept electronic submission via email or ExpressO.  Please feel free to add other information in the comments.

The second announcement is for rising prawfs about to enter the legal academy.   Some law schools are known to count towards tenure only those articles that have been sent out once you've been on the tenure-track.  Thus, if you're a VAP or a fellow, with a job already accepted at this point, you may want to consider sitting on the paper you have ready for another six months just so there's a greater likelihood that this piece will count toward your tenure portfolio.  Of course, when it comes time for tenure, you want to make sure there's no question you've exceeded your tenure requirements, and you don't want to have this one article be the tipping point, but all things considered, if you were lucky enough to land a job without already having your job talk accepted for publication, then you may want to consider waiting another six months.

One countervailing consideration, however, is letterhead bias.  To the extent letterhead bias  exists in the selection of articles, then you may prefer to send out an article on Yale letterhead b/c you're a Ribicoff, or from Chicago b/c you're a Bigelow, etc.  But I tend to discount the letterhead point a bit, in part because of Expresso, and in part because law review editors can generally suss out who's actually a prawf at YLS as opposed to who's a fellow there.  But maybe I'm wrong on one or both of these issues.  Others with more experience in the academy may want to weigh in on these various issues. 

Update: Tony Sebok has sent me an amended guide which you can download here.

Posted by Administrators on February 10, 2007 at 05:09 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack