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Monday, April 30, 2007

Legally Blonde: The Musical

This morning the online version of the NYT has a great audio/slide show narrated by director extraordinaire Jerry Mitchell on how to tell the story through dance (with images from the Legally Blonde Broadway production which opened last night) and on what inspires him as a choreographer (answer: giving people hope for a better day...).

A NYT review of the musical analogizes the experience of watching it to "eating a jumbo box of Gummi Bears in one sitting," warning that "unless you’re used to such a diet, you wind up feeling jittery, glazed and determined to swear off sweets for at least a month."

Posted by Orly Lobel on April 30, 2007 at 12:43 PM | Permalink | Comments (0) | TrackBack

Oral Advocacy Tips for the Democratic Presidential Candidates

I caught the rebroadcast of the first democratic presidential debate yesterday on MSNBC. (I missed the original broadcast on Thursday night because I was out fulfilling my public interest auction responsibilities ― karaoke with a fellow Climenko and four very talented second year students.)  Watching the candidates answer questions, I was struck by how nonresponsive most of their answers seemed.  Many of the questions required a yes or no answer, yet those two words were rarely spoken.

Watching the debate, it reminded me of a common mistake that law students make in moot court.  (We just finished our first year moot court program, so this is particularly fresh in my mind.)  As the experts tell us, and as I emphasized to my students, you ordinarily want to respond to a judge’s question with a yes or a no and then elaborate on that answer.  If the question concerns a weak point in your case, give the best answer you can and then emphasize the arguments and facts that favor your position.

Of course, it is nothing new to say that politicians don’t answer questions. Candidates want to emphasize their talking points and may want to avoid hostile or negative questions, and so it makes sense that not all questions would be greeted with a “yes” or a “no.”  But several times during the debate, the candidates didn’t seem to be ducking a question, rather they seemed to be giving an unnecessarily complex answer ― that is, an answer that didn’t immediately tell the audience whether the candidate was saying yes or no.  People watching the debates are actually interested in the answers to these questions. And one of the most talked about moments of the night was Joe Biden’s simple “yes” to the question whether he could reassure voters that he has the discipline necessary for the world stage.  So it seems to me that the candidates should take a page from the moot court handbook, and try answering the questions next time around.

Posted by Carissa Hessick on April 30, 2007 at 12:36 AM in Law and Politics | Permalink | Comments (2) | TrackBack

Sunday, April 29, 2007

Another Information Request: Prawfs in Shanghai

Ethan's call for some help in moving along his research reminded me that I need your help finding potential collaborators in China. My collaborator, experimental psychologist and law prof Yuval Feldman (Bar-Ilan) and I have launched an empirical study testing the behavior of individuals within complex organizations, looking at how different factors such as agency enforcement, organizational structure and invidual ranks affect the likelihood that an employee will report illegality when witnessed at the workplace. The study is now running in the United States and in Israel and we wish to expand it to several other countries.

I will be in Shanghai, China (and possibly Beijing) in August and I am looking to get in touch with legal scholars there who might be interested in collaboration. I would also just generally love to meet Chinese law professors in the fields of employment, administrative, torts and contract law, and learn more about their system.

Posted by Orly Lobel on April 29, 2007 at 08:42 PM | Permalink | Comments (2) | TrackBack

Information Request: Juries in the Czech Republic and Greece

I'm doing a little piece on world (criminal) jury systems and have hit a bit of a brick wall on the Czech Republic and Greece.  Does anyone know anything about whether the Czech Republic and/or Greece have jury systems -- and if so, what kind of systems they are?  Any leads or sources would be most appreciated.

Posted by Ethan Leib on April 29, 2007 at 03:27 PM in Law and Politics | Permalink | Comments (0) | TrackBack

More on the DOJ and Snobbery

On the Volokh Conspiracy, Todd Zywicki writes to pooh-pooh the latest story about politicization in the Justice Department -- this one a Washington Post story noting that the DOJ will be returning to its old policy of having career attorneys rather than political appointees vetting applicants to the DOJ's honors and intern programs, and giving some back-story.  He does a reasonable enough job of pointing out the weaknesses of some of the evidence offered by career attorneys that the program was unduly politicized, although it seems to me he cherry-picks his examples and leaves aside a couple of the more egregious examples.  He makes much of the silly example given of a lawyer who kept a bust of Madison on his desk, for instance, and very little of the decision to give a cash award to the only attorney on a four-lawyer team in the civil rights division who sided with a Georgia voter-identification law, which was later struck down by the courts.  (As a commenter says on VC, why give a prize to the only lawyer who got it wrong?)  More generally, I agree with Zywicki that we should not by any means simply assume the complete political neutrality of career attorneys as compared to political appointees -- although surely there is a difference between failing to be impartial and aiming to be partial, which is what was surely intended when the DOJ switched the selection process over to the political side in the first place.

But Zywicki also writes of the "thinly-veiled elite snobbery" of the article's authors in their references to a couple of non-elite law schools that fielded some of the young lawyers selected for the honors program by the political appointees.  He might have mentioned the Justice Department's own spokesman's comment in the article, which defends the political appointees' handling of the honors program by "point[ing] to statistics showing that Harvard, Stanford, Yale and other elite universities continue to dominate hiring for the honors program." 

Of course, the spokesman's comment was in no way actually responsive to the questions raised by the article: one can cherry-pick lawyers on the basis of ideology just as easily from the elite law schools as from the others.  But it is telling in and of itself.  I have criticized this sort of snobbery myself.  But if Zywicki is going to accuse anyone of thinly-veiled elite snobbery, he might add the Justice Department's own spokesman to the list. 

Posted by Paul Horwitz on April 29, 2007 at 11:42 AM in Current Affairs | Permalink | Comments (4) | TrackBack

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! With this week’s three 5-4 decisions messing with Texas (or at least tinkering with its machinery of death), the Court’s capital-punishment jurisprudence continues, somewhat surprisingly, the slow pro-defendant drift of the late SOC years. Overall, after Wednesday’s decisions, AMK has now been in the majority in 31 out of 32 of this Term’s signed cases. But the more telling stat is DHS’s second-place standing. He’s been in the majority in 84% of the cases. I’ll leave it up to you to determine whether this is the radically conservative Court so feared by our friends at the ACLU and PFAW during the recent nomination battles. In other news, the Court has returned to the positively glacial pace of grants seen earlier this Term, with only 1 grant from the last few conferences. Let’s recap the action.

Smith v. Texas, 05-11304

Smith is the least important of the week’s capital cases. Being a narrowly factbound smackdown of the Texas Court of Criminal Appeals, it seems unlikely to have much impact beyond giving LaRoyce Lathair Smith another chance to convince a jury that a difficult childhood and low IQ mitigate the brutal murder of his co-worker at a Dallas Taco Bell.

A brief Texas Death Penalty 101 tutorial is necessary to understand all of this week’s cases. Back in the 1980s, Texas juries were instructed to answer two “special issues” to determine whether a capital defendant received a death sentence: (1) Whether the defendant committed murder deliberately; and (2) whether he is likely to commit violent acts in the future (aka “future dangerousness”). If the jury answered both questions “yes,” the defendant was on his way to Huntsville (home of Texas’s execution chamber and the Texas Prison Museum (no joke), in case you’re interested in visiting). In Penry v. Lynaugh (1989) (Penry I), the Court held the special issues violated the 8th Amendment because they did not give the jury an adequate opportunity to consider mitigating evidence that was not covered by the special issues. Texas courts responded to Penry I by giving juries a nullification instruction, telling a jury to answer “no” to 1 of the 2 special issues if it found mitigating evidence that warranted sparing the defendant’s life. In Penry v. Johnson (2001) (Penry II), the Court found this confusing approach constitutionally no better than the old way.

Smith was sentenced between Penry I and Penry II. He objected to the special issues before trial, but failed to raise an additional objection when the judge issued the nullification charge. On state habeas, the Texas CCA attempted to distinguish the Penry twins on the merits, holding that Smith’s mitigating evidence was of the type adequately covered by the special issues—that is, there was no Penry I error—and that the nullification instruction was better than the one given in Penry II, so there was no Penry II error. The Supreme Court summarily reversed both holdings in 2004. On remand, the Texas CCA thought the Supreme Court had decided that the nullification instruction itself caused Smith’s constitutional harm, as opposed to merely failing to cure the harm caused by the special issues. The CCA then held for the first time that Smith had procedurally defaulted his Penry II objection to the nullification instruction; applied a Texas-sized “egregious harm” standard to the defaulted claim; and held that Smith could not meet it.

The 4 pages of analysis in AMK’s opinion for the Court (joined by the 4 less radically conservative Justices), explained that the Court’s earlier holding was based primarily on Penry I error—the special issues were inadequate and the nullification charge merely failed to cure that error. The Court then held that Smith’s pretrial objections adequately preserved his Penry I claim.  In short, the Texas CCA “misunderstood the interplay of Penry I and Penry II.” After reading my description of the procedural and legal background of this case, I’m sure you’re shocked (shocked!) that anyone could misunderstand it. Due to the Court’s holding that it had already decided the merits of the case, the Court did not need to reach the validity of Texas’s harmless-error rule.

DHS concurred, noting that the Court may have to decide at some later date whether a harmless-error rule is ever appropriate for Penry error.

Justice Alito and his 3 fellow radicals dissented: “This case is less complicated than the opinion of the Court suggests.” To him, Smith made a strategic decision not to object to the jury instructions, including the nullification instruction, and the Texas CCA quite properly held that this procedurally defaulted his claim. SAA did not read the Court’s Smith I opinion as foreclosing this holding. He concluded that Texas’s egregious-harm rule is a perfectly valid standard for reviewing defaulted claims—much like the federal plain-error standard. And it is an adequate and independent state ground for the CCA’s judgment, meaning that the Court may not review the egregious-harm determination on the merits.

Brewer v. Quarterman, 05-11287/ Abdul-Kabir v. Quarterman, 05-11284

JPS wrote separate 5-4 majority opinions in these two consolidated cases, but a common legal holding underpins both: The Supreme Court’s caselaw in the years after Penry I on the type of mitigating evidence not adequately covered by the Texas special issues was sufficiently clear to grant habeas relief to these petitioners, even under AEDPA’s restrictive standard.

Abdul-Kabir introduced evidence of a tough childhood at the sentencing phase, was sentenced to death, and ultimately had his federal habeas petition denied by the 5th Circuit. Brewer’s story is the same except his evidence dealt primarily with mental illness. At the outset of both cases, JPS stated the clearly established law at a high level of generality. The Court’s cases require that a jury be allowed to give full effect to all mitigating evidence a defendant might present. Measured against that standard, the special issues were constitutionally insufficient to give effect to petitioners’ mitigating evidence. The mitigating evidence simply wasn’t relevant to the two questions the jury was asked to answer. In Abdul-Kabir, the Court rejected the CA5’s reliance on post-Penry precedent that had held that the special issues were sufficient for considering certain types of mitigating evidence (e.g., youth). JPS read that as a narrow exception to the broader rule that the special issues were pretty much good for nothing. In Brewer, the Court repudiated the CA5’s holding that evidence of mental illness must be chronic before it is even eligible for consideration as Penry error as a vestige of the illegitimate “constitutionally significant” test the CA5 employed before it was reversed in Tennard v. Dretke (2004).

JGR (+3) penned an already-much-quoted dissent. He described the Court’s post-Penry cases as “a dog’s breakfast of divided, conflicting, and ever-changing analyses” that could not serve as a basis for habeas relief. He also chided JPS for citing 2 of his own dissenting opinions as evidence that the law was clearly established. However, looking at the bright side, he concluded that “there is hope yet for the views expressed in this dissent . . . . Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”

AS (+CT, SAA) narrowly read the post-Penry precedents as clearly establishing an 8th Amendment violation only when a jury cannot give any effect to the mitigating evidence at issue. In a portion joined only by CT, Justice Scalia restated his view that the 8th Amendment has nothing to do with whether states allow mitigating evidence at sentencing.

Grant: The Court granted cert in United States v. Santos (06-1005), which will interpret the money-laundering statute, 18 U.S.C. 1956(a)(1). That law criminalizes laundering the “proceeds” of unlawful activities. The question presented by the SG is whether “proceeds” means the gross receipts from the unlawful activities or only the profits. The CA7 vacated a conviction where the defendants laundered the overhead expenses of an illegal gambling operation, but not the profits. The SG says the CA7 is on the short end of a circuit split and that its decision wrongly prevents the government from adding a money-laundering charge to every single federal indictment interprets the statute.

Until next time, possibly Monday opinions, 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. Driver does not carry more than $20 in cash.  If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on April 29, 2007 at 09:36 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Saturday, April 28, 2007

Signing Statements and Nonenforcement of Unconstitutional Laws Revisited

In July of last year, there was much buzz in the blogosphere about presidential signing statements and executive nonenforcement of unconstitutional laws in the wake of the release of the ABA Task Force Report on the subject.  I have revisited this topic in connection with a course I have been teaching and I continue to adhere to my view that a president should not sign a bill with a provision he thinks is facially unconstitutional.  Consistent with the ABA Report (and contrary to the statement by the former OLCers and Larry Tribe), I continue to maintain that a president should veto such a bill; if he doesn't and merely resorts to his right of nonenforcement, he violates Clinton and the Constitution itself.  More complicated -- and perhaps more relevant to the Bush II signing statements -- are statements of "as applied" unconstitutionality.  In those cases, where the president indicates an intention to abide by the law in most applications but reserves the right of nonenforcement in cases that he believes will create a collision course with the Constitution, I concede that a president need not feel bound to veto.  He should, however, issue a signing statement to explain just when he thinks those unconstitutional applications will arise.

That's a review of my position from a year ago; here I wanted to highlight a different part of the debate.  I want to go back to the 1994 Dellinger memo on the subject of executive nonenforcement.  Here's what Dellinger wrote then:

The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

My provisional view is that Dellinger is wrong about this.  If giving the political branches the right to interpret the Constitution is sound -- and I think it is -- I don't think we can limit the political branches by telling them that they can only act on an interpretation that has been vindicated or could be vindicated at the Supreme Court.  Perhaps we can agree that if the Supreme Court has clearly held something to be unconstitutional, it makes especial good sense for the president to decline to enforce such a statute.  But if executive review is to be an independent voice on the meaning of the Constitution, it seems inadvisable to limit executive non-enforcement only to those laws that could be found unconstitutional by the Supreme Court.

Notice that my view here doesn't preclude the recommendation that the president and the political branches should act in such a way as to facilitate ultimate judicial review of the constitutional question.  In this way, we can still pay respect to the idea of the Court being the ultimate interpreter of the Constitution.  But that doesn't require the political branches to always be thinking about what Kennedy would do, say.

Posted by Ethan Leib on April 28, 2007 at 09:47 PM in Blogging | Permalink | Comments (0) | TrackBack

Friday, April 27, 2007

More on the "Faith-Based Justices"

I have finally been moved to write on the debate over "Faith-Based Justices" by Geoffrey Stone's latest post.  For those who need a recap:  In a post last week on the Chicago Law Faculty blog, Prof. Stone wrote in the wake of Gonzales v. Carhart that, in his view, the majority had reversed an earlier decision overturning a "virtually identical state law," and had done so with no rational basis.  He explained this in part by observing that the five Justices in the majority were Catholic, and asserting that they had relied on a moral argument that the law could be prohibited.  He added: "By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.  To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental."  Our co-blogger Rick Garnett wrote in response that the distinction "is, indeed, 'elusive,'" that it is not clear why moral claims made about the status of fetuses are necessarily religious ones, and that even if they were, it is not necessarily violative of church-state separation to accept such moral arguments as a basis for upholding a law.

Prof. Stone now writes in response to those commenters (not Rick!) who have accused him of anti-Catholic bigotry.  He says it is not illegitimate per se to ask questions about the ways in which Justices vote, and the relevant "personal values and beliefs" that might affect their votes.  He says he is particularly intrigued by this question in the context of religion "because I'm trying to understand whether the principle of separation of church and state should create a special responsibility on citizens, legislators, and judges not to impose their religious beliefs on other citizens."

I agree with Prof. Stone that the question is not itself illegitimate.  Many thoughtful and quite religious individuals write and think at length about the question of the duties of the religious judge, legislator, or citizen.  More generally, we think and write all the time about how judges' backgrounds, beliefs, and preferences may or may not influence their decisions.  It is not the case that we can ask such questions about judges' class backgrounds, race, education, or gender, but not about their religion.  Treating religion as a forbidden topic, as I have argued in closely related contexts, is the opposite of genuine respect for religion; it is far better that religion be fully accepted as one among many grounds of motivation and topics of public discussion than that it be disabled in any way from being a part of the mix in our public square, even if that fact may lead religion to be the subject of criticism as well as praise.  (Of course, that's precisely why I differ from Prof. Stone, who seems to believe that not only judges but legislators are in some way disabled from relying on religious reasons in passing a law -- so that, if I read him right, the Civil Rights Act would be illegitimate if it were passed by a legislative majority that relied on expressly religious grounds for non-discrimination.)

But if that discussion is to be at all useful, surely it requires a genuinely thoughtful and nuanced effort to think carefully and respectfully about how religion does or does not influence public decision-making, and when that might or might not be problematic. 

[more below]

For one thing, we should not lightly run together "citizens, legislators, and judges" as if their roles and obligations are identical; they certainly are not.  Prof. Stone does not say otherwise.  But is there not a hint of his having done just that in the fact that he assumes that the Justices in this case were making moral (and, in his view, perforce religious) judgments on their own, as opposed to concluding that those moral arguments made in the law itself were, at least in the absence of an absolute restriction on access to abortion the presence of medical dissensus, relevant factors in upholding the law?  Whatever the merits of either the Court's decision or the act of Congress itself, surely there is a difference between legislators making moral judgments, religious or otherwise, and judges making the same judgments.  Similarly, surely there is a difference between a judge making a first-order moral judgment, and a judge deferring in appropriate circumstances to moral judgments made by legislators.  Prof. Stone might think that legislators are barred from enacting their moral preferences into law in a way that infringes fundamental constitutional rights.  But is he saying that legislators are barred on church-state grounds from making such moral judgments, and that judges are barred from accepting any such judgments when they are enacted into law?  Much more could be said here, of course.  Suffice it to say that any serious consideration of these issues at the very least requires some careful thought about the different roles and functions played by different players in the system.

Beyond this, as Prof. Stone notes in his latest post, there are a host of other reasons why the majority in this case might have ruled as it did.  If we are to productively talk about religion and judicial decision-making, without stereotyping or anathametizing religion and thus poisoning public discourse, we ought to readily consider those other factors.  Perhaps the relevant factor here is the fact that four of the Justices in the majority share a very different methodology from the other five members of the Court, and that the fifth, Justice Kennedy, had already made clear his view that the relevant earlier precedent was wrongly decided.  Perhaps the political conservativism of these Justices was more relevant than their religious faith.  Perhaps the appointing President was the most relevant factor here.  We should not lightly assume that religion was the only possible explanatory factor here.  Indeed, for all we know, the religion of the five-member majority was utterly irrelevant to their decision-making process, and deeply relevant to the views of some or all of the dissenting Justices last week. 

Prof. Stone now says that the point of his earlier post was to "pose the question and to invite people to think about it."  I read his earlier post differently: it seemed to me to suggest that in his view nothing could explain the decision save for religion, particularly because he seemed to conclude that any moral reasons presented by Congress and/or the majority were necessarily religious.  Thus, it did not simply pose the question; it purported to answer it.  In any event, as I have said, it is not illegitimate to raise the question of religion and its relation to voters, legislators, and judges.  Poisoning the well of public discourse can happen in two directions, and we should not lightly assume that someone who raises such issues is bigoted.  But if we're to productively discuss these questions, we will have to find ways of having far more informed and nuanced conversations than simply pointing to the religion of a particular public actor as if it is conclusive, or even persuasive, proof of anything.                

Posted by Paul Horwitz on April 27, 2007 at 02:55 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

YLJ "Unsubscribe" Notice

Did you get this last night?

Yale Law Journal eTOC
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Maybe three times?

I've spoken with the folks at YLJ and they're on top of the problem.  There should be no need to resubscribe.  I'll post if I hear any further developments.

Posted by Matt Bodie on April 27, 2007 at 11:33 AM | Permalink | Comments (2) | TrackBack

Why not Enforce "Penalty" Liquidated Damages Clauses?

Thanks to the whole Prawfs gang for the opportunity to guest blog. Here is a thought I had after teaching contract remedies last year:

Along with most of the law and economics crew, I've always been confused by the common law's hostility to liquidated damages that function as penalties. (For those unfamiliar with what this means: if a contract specifies a specific amount of damages in the event of a breach and the contract is breached, courts will refuse to award the specified amount of damages if the specified amount is necessarily higher than the actual damages in all cases. See Lake River v. Carborundum, 769 F.2d 1284 (1985).)

The argument against non-enforcement of penalty liquidated damages is relatively straightforward-- why should a court insert its judgment about actual damages when knowledgeable parties have settled on an explicit measure for damages? Instead, the court should just enforce the liquidated damages the parties specified. When teaching liquidated damages to my contracts class, I was short on arguments defending the common law practice of non-enforcement.

Recently, however, I've come to think that the issue is not all that different from the debate about specific performance. The case for specific performance sounds a lot like the case against penalty damages. If a promisor agreed to do something and nothing has changed, then why not make the promisor perform as promised rather than attempting to guess at the appropriate level of damages.   

This is a good argument for specific performance, but there is also a case against specific performance. The concern is that promisees will request specific performance even when the value of performance is less than its cost, hoping to extract some extra money from the promisor. In turn, the promisor may take excess precautions to avoid being placed in a position where the promisee can obtain supercompensatory damages. In total, this leads to overperformance of contracts.

As with specific performance, so too with liquidated damages. If courts always enforced liquidated damages clauses, then liquidated damages clauses would have an added element of risk-- that the promisee would spot a trivial breach and sue for liquidated damages greatly in excess of actual damages, leading to overprecuations by the promisor and overperformance.  Anticipating this, parties to a transaction might stop using liquidated damages clauses in the first place.

Alternatively, the parties could draft more complex graduated liquidated damages clauses, with small breaches receiving correspondingly small damages. This would have the benefit of reducing the probability of overperformance, but it would also undermine part of the purpose of liquidated damages clauses-- to make life simple.

I'm not sure that this concern about potentially penal liquidated damages outweighs the argument for enforcement of all liquidated damages clauses-- just as I'm not sure that the argument against specific performance outweighs the argument for specific performance. (Indeed, I've previously written in favor of specific performance.) Nontheless, this strikes me as an argument worth considering when thinking about enforcement of penalty damages.  I'm willing to bet that this has been said before, but it strikes me as an argument worth noting because it is not fleshed out in the casebooks to the same degree as it is in the specific performance context.

Posted by Yair Listokin on April 27, 2007 at 11:14 AM in Teaching Law | Permalink | Comments (3) | TrackBack

The Book Review Submission Process

Although law bloggers have written a fair amount about the article submission process, there is much less about the submission process for book reviews.  How does this process compare to the article submission process?  Not all reviews publish book reviews, and those that do usually have fewer slots for them.  Additionally, some (many?) book reviews are solicited, cutting down the number of available slots.  On the other hand, fewer book reviews are submitted, so the pool is smaller.

In addition, I have heard contradictory advice on the wisdom of taking on a book review project as a junior prof or prof-to-be.  I have heard of junior faculty members being warned away from book reviews because they don't "count" as much for tenure.  On the other hand, I have heard junior folks encouraged to write reviews because of the odds of a more prestigious placement and the opportunity to engage with another scholar's work. 

So here are some questions:

  • What is the market for book reviews?
  • How many journals publish book reviews?
  • Looking at the submissions-to-slots ratio, are the odds better of publishing a book review?
  • How many book reviews are solicited?
  • How do journals choose solicited reviewers?
  • What "credit" do you get for a book review?  Does your school have an explicit measure for comparing articles with book reviews?  (E.g., a book review is worth half of an article for tenure purposes.)

Thoughts from senior profs, junior profs, profs-to-be, and law review editors would be much appreciated.

Posted by Matt Bodie on April 27, 2007 at 10:51 AM in Article Spotlight | Permalink | Comments (5) | TrackBack

Update on Scholarship Roundup

As discussed on Wednesday, I'm  collecting news about articles selected for publication during this spring cycle.  If you are interested in participating in our community roundup, please send an email to this address with the author(s), title, journal, volume and/or date (if available), and a link to the article on SSRN, Bepress, or institutional site (if available).  I'll be posting the list on Monday, with updates to follow as further entries come in.

I would also be happy to do a roundup of book reviews and essays.  Please let me know if you'd be interested.

Posted by Matt Bodie on April 27, 2007 at 10:30 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

How Tenable Are Tenet's New Claims?

This morning's NYT reports on the juicy parts of George Tenet's new, and self-serving, account of his time "At the Center of the Storm."  While POTUS is described in glowing terms as determined and "in-charge," Tenet rips into Cheney for having twisted his words and the national intelligence to rush the US into Iraq without any "serious debate" about the imminence of the Iraq threat or measures to contain Iraq's hegemonic instincts aside from war.  Depressing.

There was never a serious debate that I know of within the administration about the imminence of the Iraqi threat,” Mr. Tenet writes in a devastating judgment that is likely to be debated for many years. Nor, he adds, “was there ever a significant discussion” about the possibility of containing Iraq without an invasion.  Mr. Tenet admits that he made his famous “slam dunk” remark about the evidence that Iraq had weapons of mass destruction. But he argues that the quote was taken out of context and that it had little impact on President Bush’s decision to go to war. He also makes clear his bitter view that the administration made him a scapegoat for the Iraq war. A copy of the book was purchased at retail price in advance of publication by a reporter for The New York Times. Mr. Tenet described with sarcasm watching an episode of “Meet the Press” last September in which Mr. Cheney twice referred to Mr. Tenet’s “slam dunk” remark as the basis for the decision to go to war.  “I remember watching and thinking, ‘As if you needed me  to say ‘slam dunk’ to convince you to go to war with Iraq,’ ” Mr. Tenet writes. As violence in Iraq spiraled beginning in late 2003, Mr. Tenet writes, “rather than acknowledge responsibility, the administration’s message was: Don’t blame us. George Tenet and the C.I.A. got us into this mess.”

Tenet's take on the emergence of the "slam dunk" case is also notable.  He writes that he wouldn't otherwise be writing this book but for Cheney's gross distortions.  Specifically, he recounts the time at the White House in December 2002, as the gov't was "preparing to make public its case for war against Iraq."

During the meeting, the deputy C.I.A. director, John McLaughlin, unveiled a draft of a proposed public presentation that left the group unimpressed. Mr. Tenet recalls that Mr. Bush suggested that they could “add punch” by bringing in lawyers trained to argue cases before a jury.  “I told the president that strengthening the public presentation was a ‘slam dunk,’ a phrase that was later taken completely out of context,” Mr. Tenet writes. “If I had simply said, ‘I’m sure we can do better,’ I wouldn’t be writing this chapter — or maybe even this book.”

If I understand Tenet's claim correctly, he thinks there's a world of difference between a) the quality of the intelligence indicating the wisdom of military action and b) the need to better present the case for the wisdom of military action.  Normally, I'd be inclined to agree with him if and only if the person making the assessment were a critical outsider to the conversation. 

But Tenet was the inside intelligence man and he doesn't give much indication (at least given the NYT report) that he felt at the time that the quality of the intelligence indicating the wisdom of military action was poor or misleading. On the contrary: Tenet believedthat Iraq had unconventional weapons. “In retrospect, we got it wrong partly because the truth was so implausible.” 

So for him to say effectively: "I probably wouldn't write this book but for my anger at Cheney, who repeatedly said I thought the intelligence was a slam dunk reason to go to war" strikes me as itself overstretched.  Sure it changes the context in which that remark came up, but does it much change the characterization of Tenet as someone who was "at the center of the storm" and who failed to argue effectively for the need for critical discussion about entry into war? I doubt it.

One last chilling note from the article best left in Tenet's own words, his reflections on Al Qaeda in America and the aftermath of 9/11:

“I thought about all the people who had died and what we had been through in the months since,” he writes. “What am I doing here? Why me?” Mr. Tenet gives a vigorous defense of the C.I.A.’s program to hold captured Qaeda members in secret overseas jails and to question them with harsh techniques, which he does not explicitly describe. Mr. Tenet expresses puzzlement that, since 2001, Al Qaeda has not sent “suicide bombers to cause chaos in a half-dozen American shopping malls on any given day.”  “I do know one thing in my gut,” he writes. “Al Qaeda is here and waiting.”

Posted by Administrators on April 27, 2007 at 09:37 AM in Law and Politics | Permalink | Comments (0) | TrackBack

Thursday, April 26, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans. The Court finally began drawing down its backlog with 5 opinions last week, all but one with bare 5-Justice majorities, including the “partial-birth abortion” battle royale. Please accept this extremely belated (and lengthy) dispatch with my apologies; I’ve tried to make it worth your while. To paraphrase our esteemed Attorney General, “I don’t recall what I was doing last week when I was supposed to be writing SCt Today, but I can assure you a process was in place and the right decision was made.”

Gonzales v. Carhart, 05-380/ Gonzales v. Planned Parenthood, 05-1382

As tout le monde knows by now, the Court upheld the Partial Birth Abortion Ban Act against a facial challenge. The decision sparked an immediate controversy, but it remained far more popular than its namesake Alberto Gonzales, since it was only condemned by half the country. But was it a narrow or broad decision, and what does it tell us about the Roberts Court’s likely approach to abortion? What does it mean for stare decisis? (Latin for “stand by decisions I agree with”). And what does it all mean for Rosie’s tenure on The View? Read on for a fair and balanced assessment.

AMK (+ the Gang of Four) spent 7 of the opening pages of his majority opinion graphically describing the various late-term abortion procedures, including the banned procedure—intact dilation and extraction—and the main alternative procedure—regular dilation and extraction. Intact D&E is extremely rare; regular D&E is used in most late-term abortions. Readers who need to test their ability to wince may consult the opinion directly.

AMK began his analysis by “assuming for purposes of this decision” certain principles from Casey v. Planned Parenthood (1992).  Thus, the Court made perfectly clear that some members of the majority do not accept Casey as binding precedent. To no one’s great surprise, this at least includes AS & CT, if not JGR and SAA (more below). The Court first rejected a vagueness and overbreadth challenge to the statute. This was the least controversial part of the opinion (apparently not contested by the dissenters), but was essential to distinguishing Stenberg v. Carhart (2000), which held that Nebraska’s partial-birth ban was so loosely worded as to cover regular D&E and thereby place an undue burden on abortion. By contrast, the Court found the federal Act to be clearly restricted to intact D&E because it criminalizes only the intentional delivery of an intact, living fetus to a defined point, followed by an additional, intentional act that kills the fetus.

AMK turned next to the “money” issue: whether, under Casey, the Act places an undue burden on women seeking previability abortions. Kennedy began by reaffirming that Casey recognizes the government’s important interest in “showing its profound respect for the life within the woman.” In a key passage summarizing the Casey standard as he sees it, AMK wrote: “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory authority to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” The Act furthers those interests in various ways, he explained.

First, echoing AMK’s impassioned Stenberg dissent, the majority wrote that the Act reflects the State’s legitimate interest in drawing a bright line between abortion and infanticide. Second, in Kennedy-ese, the Act recognizes that “respect for human life finds its ultimate expression in the bond of love the mother has for her child.” Attempting to translate into English, Kennedy wrote that some women may “come to regret their choice to abort the infant life they once created and sustained.” Here, the Court cited an amicus brief by Sandra Cano (the plaintiff in Roe’s companion case, Doe v. Bolton).  In one of the opinion’s most striking passages, AMK further posited that some women might have a partial-birth abortion without knowing how one is performed, resulting in a woman’s even greater regret that “she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child fast assuming the human form.” By bringing to light the method of partial-birth abortion, the Act may result in greater information for pregnant women, and ultimately, fewer abortions. The Court thus concluded that the legitimate purpose of the Act is promoting respect for fetal life, not placing a substantial obstacle in the way of women seeking an abortion. Normally, when Kennedy’s “sweet mystery of life” rhetoric makes an appearance, it is in the service of causes establishment media types approve, and accordingly, they are impelled to purr about its wisdom; but commentators (Dahlia Lithwick and the fairly staid Cokie Roberts, among others) have singled out this passage to condemn the Sacramento Justice for patronizing women.

AMK next explained that “under precedents we here assume to be controlling,” the Act would be unconstitutional if it subjects women to significant medical risks. The Court declined to rely on Congress’s finding that intact D&E is never medically necessary, reasoning that the Court has an independent duty to assess constitutionally significant facts. Assessing the factual record before the district courts and Congress, AMK concluded that there was significant medical disagreement over whether intact D&E is ever the safest abortion option available. Stenberg had held that the existence of this medical uncertainty doomed the Nebraska ban because it, like the federal Act, lacked an exception to protect the health of the mother. But AMK held the opposite, citing numerous pre-Stenberg precedents, which held that legislatures have “wide discretion” to act in areas of medical and scientific uncertainty. On this point, then, the Court appeared to overrule Stenberg, albeit without saying so: Stenberg’s “zero tolerance policy” disrespects Congress’s authority to regulate the medical profession, which includes the authority to balance medical risks, so long as the legislation is “rational and in pursuit of legitimate ends.” The Court further reasoned that the availability of usually safe alternatives, such as regular D&E, shows that the Act does not impose an undue burden on the abortion right.

Finally, the Court held that a facial challenge to the statute should not have been allowed at all. The lenient standard for First Amendment facial challenges does not apply in the abortion context. AMK declined to decide, however, whether a facial-challenge plaintiff must show that an Act is unconstitutional in every application (the Salerno standard) or only in a large fraction of relevant cases, as Casey suggested. Either way, the plaintiffs failed to show that the Act poses an undue burden in a large fraction of relevant cases, for the reasons explained earlier. AMK reasoned that the “relevant cases” include all partial-birth abortions, not only those done for health reasons. This, too, rejected Stenberg’s view that “relevant cases” included only health-justified abortions, which had made it much easier to demonstrate that the lack of a health exception posed an undue burden. In closing, AMK left the door open to an as-applied challenge to the Act, if a party can show that “in discrete and well-defined instances a particular condition has or is likely to occur” in which intact D&E must be used to preserve a woman’s health.

Justice Thomas briefly concurred, joined by AS, “to reiterate [his] view that the Court’s abortion jurisprudence has no basis in the Constitution.” He also noted that the Act’s validity under the Commerce Clause was not before the Court. JGR and SAA did not join CT’s concurrence, so we still don’t know their views on the validity of Roe and Casey, and thus the sincerity of their confirmation-hearing statements to Snarlin’ Arlen about super-double-dog-duper precedents. Given that the opinion merely “assumed” the application of Casey, JGR’s and SAA’s joinder of the majority (but not the concurrence) does not indicate that they support Casey. It more likely means that they did not see any need to show their cards yet, nor did they wish to leave AMK as the only Justice supporting his opinion as the best explanation for the Court’s decision.

Ginsburg (+3) angrily dissented, with a venom usually reserved for a Scalian attack on a SOC opinion (e.g., majority is “irrational”; “I respectfully dissent”).  But first, RBG made a very interesting move: She asserted that the abortion right is not based on “some generalized notion of privacy,” but on “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship status.” RBG has long held this view that abortion rights are best supported by the Equal Protection clause rather than the penumbras and mysteries of life emanating from the Due Process clause, as divined by Roe and Casey. But this is the first time that 4 Justices have signed onto such a statement. If RBG gets one more ally on the Court, we can expect this view to become Court doctrine in short order.

Turning to the case at hand, RBG’s dissent is a catalog of ways she believes the majority “refused to take Casey and Stenberg seriously.” The Court upheld the Act “in undisguised conflict” with Stenberg’s requirement of a health exception and in the face of trial-court findings that most doctors consider intact D&E safest in certain circumstances. Nor does the Act further respect for fetal life because “it saves not a single fetus from destruction.” The Court really bases its decision on “moral concerns,” which is an insufficient basis for “overriding fundamental rights” under Casey and AMK’s opinion in Lawrence v. Texas. RBG harshly attacked the Court for invoking “an antiabortion shibboleth”—that women sometimes regret their abortions—as a ground for denying women the right to an intact D&E. “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited,” she inveighed.  Moreover, the Court showed its “hostility” to abortion by referring to fetuses as “unborn children” and ob-gyns as “abortion doctors” (without noting that they’d been upgraded from “abortionists” since AMK’s Stenberg dissent). And it ignored the importance of viability as a dividing line by blithely upholding the ban even in previability cases. Finally, RBG accused the Court of gutting plaintiffs’ traditional ability to bring facial challenges to abortion laws by changing the “large fraction” test as it was applied in Stenberg. The Court’s decision is the result of a “differently composed” Court rather than “the rule of law,” and is nothing more than “an effort to chip away at a right declared again and again by this Court.”

The bottom line here is that with SOC on the rubber-chicken circuit, Kennedy’s interpretation of Casey is now the law. While the technical legal result of this decision is relatively narrow—laws must still have a health exception except when there is medical uncertainty as to whether one is necessary—AMK’s rhetoric indicates that he would uphold far more abortion restrictions than SOC in the name of promoting respect for fetal life. The Court’s use of rational-basis language confirms this likelihood. Perhaps the most important direct legal result of the opinion is its restrictive view on facial challenges to abortion statutes. This eliminates the favored position previously given to abortion litigants vis a vis other constitutional plaintiffs. Moreover, AMK’s discussion of the importance of informing women about abortion virtually invites a raft of new, more restrictive informed-consent laws in state legislatures. The real mystery is what motivated Kennedy to rely on the theory that the State may protect women from having abortions they may later regret. That controversial idea has never apppeared in any majority or dissenting opinion of the Court. I wonder if this approach was suggested to AMK by the Chief. You may recall from the confirmation process that JGR’s wife is a member of Feminists for Life. FFL, like many pro-life groups today, emphasizes the argument that abortion harms women, as well as unborn children. It is anybody’s guess how the Court’s new majority will deploy this concept in the coming years, but like many ideas that appear in AMK majority opinions, it may be cited principally in . . . future opinions of Justice Kennedy.

Carhart was a divisive decision. As a unifying gesture, before we move on, let me say something we can all agree with: the rest of the week’s cases make the Federal Register look like beach reading.

Global Crossing Telecommunications, Inc. v. Metrophones Communications, Inc., 05-705

The Court finally decided the last case from its October sitting, handing the 9th Circuit its first affirmance of the Term (sorry, ’76 Bucs). Now that it’s out, the only question is: How did such a boring case take so long to decide?

If you took Mr. T’s advice and used a dial-around number to make a coinless, long-distance call on a payphone and, despite your commitment to live by all his teachings, deep down inside you felt guilty for ripping off the payphone operator, then you’ll like this decision. Justice Breyer wrote for a 7-2 majority. Section 201(b) of the 1934 Communications Act makes it unlawful to engage in “unjust or unreasonable” practices and gives the FCC authority to define those practices. Section 207 authorizes a federal right of action by any person damaged by a violation of § 201(b). The 1996 Telecom Act, § 276, ordered the FCC to figure out a plan for compensating payphone operators. FCC regulations then placed the onus on the long-distance provider to compensate the payphone operator (you’re off the hook!) with a set fee each time a customer makes a dial-around, long-distance call. In 2003, another FCC regulation declared it unreasonable under § 201(b) (and therefore unlawful) for the long-distance carrier to refuse to pay this compensation. The FCC believed a payphone operator could therefore bring a federal-court lawsuit under § 207 to recoup any unpaid fees.

The Court agreed, holding that § 207 permits a federal-court lawsuit to recover damages resulting from any practice that the FCC has validly declared unreasonable under § 201(b). In other words, “to violate a regulation that lawfully implements § 201(b)’s requirements is to violate the statute.” That distinguishes cases like Alexander v. Sandoval (2001) and Adams Fruit v. Barrett (1990), where an agency tried to create a private cause of action through regulations untethered to statutory authorization.  The Court then held that the FCC’s payphone regulation is a reasonable implementation of § 201(b) under the Chevron test because it fits within the statutory language banning a “practice . . . in connection with [furnishing a] communication service . . . that is . . . unreasonable.” Moreover, the regulated activity—dividing the cost of a long-distance call between the carrier and payphone operator—resembles the type of ratesetting regulations traditionally promulgated under the 1934 Act.  It doesn’t matter that the FCC simply declared it unreasonable to violate its earlier regulations, so long as that unreasonableness determination is a valid implementation of § 201(b).

Justice Scalia dissented. He would accept a private right of action under § 207 only if the violation was “unreasonable or unjust” in its own right—that is, apart from the fact that an FCC “substantive regulation” declared it to be so. That was not the case here because, in his view, it makes at least as much sense to charge the caller (not the long-distance carrier) for the cost of using the payphone.

CT also dissented, arguing that failure to compensate a payphone operator is not an “unreasonable practice” under § 201. To him, the broader statutory context shows that “practices” cover only what telecom firms do as providers of telecom services to their customers, not whether they compensate their suppliers.

Watters v. Wachovia Bank, 05-1342

Someday, advanced computer software will automatically delete any e-mail that mentions the federal Office of the Comptroller of the Currency (OCC). Until that happy day, every person must look deep into his conscience and decide whether to devote precious seconds of his existence to read about cases like Watters. The National Bank Act gives the OCC the primary authority to regulate national banks and preempt any conflicting state regulations. But does a state have authority to regulate a national bank’s state-licensed subsidiary? Michigan thought so and tried to impose registration and inspection requirements on Wachovia’s real-estate-lending subsidiary.

The Court, speaking through RBG (+AMK, DHS, SGB, SAA (CT recused)), found Michigan’s regulatory adventurism preempted by the National Bank Act. The Court held that the Act gives national banks the right to carry out the “business of banking” either directly or through an “operating subsidiary,” which has authority to do only what the bank could do directly. Longstanding OCC regulations supported this view. And the Act’s policy against duplicative regulation supports preempting state regulation of operating subsidiaries as well as parent banks. The Court declined to consider the deference due to an OCC regulation that expressly provides for preemption of conflicting state law because the regulation plainly reflects the text and policy of the Act. The Court’s decision should gladden the banking community, which greatly prefers the OCC’s bank-friendly regulators to pesky state overseers who try to restrict unsavory-sounding practices like “predatory lending.”

Justice Stevens (+JGR, AS), the Court’s newest member of the Federalist Society, defended the right of “a sovereign State” to regulate bank subsidiaries. JPS criticized the Court for relying primarily on agency regulations, thereby forsaking the presumption against preemption, which can only be overcome by the “manifest purpose of Congress” and which should be particularly strong in the traditionally state-occupied field of consumer protection. The Chief’s joinder in Stevens’s dissent recalls the Old Chief’s frequent votes in favor of state power to the detriment of economic efficiency. Justice Alito’s agreement with the majority may mark him as more of an economic nationalist (a la AMK) on such issues.

James v. United States, 05-9264

The most interesting thing about this case is the unusual voting lineup, which split Alito and Roberts, in the 5-4 majority, from Scalia and Thomas, dissenting. The newly constituted Court, it seems, has been less likely than the old Court to fall into a predictable 5-4 voting pattern across a broad range of cases.

SAA (+JGR, AMK, DHS, SGB) wrote the opinion, holding that attempted burglary in Florida is a “violent felony” under the federal Armed Career Criminal Act. The ACCA provides a mandatory 15-year sentence for a federal felon-in-possession conviction if the defendant has three prior “violent felony” convictions. The question was whether attempted burglary falls within ACCA’s definition covering crimes that are “burglary, arson, extortion, involve use of explosives, or otherwise involve conduct that presents a serious potential risk of physical injury to another.” Attempted burglary is not “burglary” because that refers only to completed burglaries. The Court next employed the “categorical approach” first stated in Taylor v. U.S. (1990), asking whether the elements of the Florida attempted burglary offense fit the residual portion of the definition. Per the Supreme Court of Florida (affectionately known as SCOFLAw), attempted burglary requires an overt act toward entering a building with “felonious intent,” the improvisational jazz player who is a founder of bebop. Reading the residual part of the definition in conjunction with the listed offenses, the Court then asked whether attempted burglary presents a serious risk of physical injury comparable to the closest analog among the listed offenses, here burglary. SAA answered yes. The physical danger of burglary comes from the possibility that the burglar will encounter a third party on the burgled premises (burglee, cop, etc.). A comparable danger arises when the burglar makes an unsuccessful attempt to enter a building; in fact, attempts may be more risky than completed crimes since attempts are often thwarted by others.

Justice Scalia (+JPS, RBG), showing the tact that helped him transform SOC into a reliable conservative vote, ripped into the Court’s “uninformative opinion.” Sounding ominously like a steroid-enhanced, bulging-mandibled Shriver in-law, he criticized Justice Alito’s closest-analog test as a “puny solution” that gives insufficient guidance to lower courts in cases where there is no analog to the attempted crime in question. Justice Scalia’s non-puny test would ask whether the attempt offense presents a risk of physical harm at least as great as the least dangerous of the enumerated crimes.

Justice Thomas tore a page off his pad of “I dissent to reiterate my longstanding view” forms and wrote “that Almendarez-Torres v. U.S. (1998) was wrongly decided,” in the blank.  He argued that allowing judges (not juries) to find facts about prior convictions that result in sentence enhancements is unconstitutional.  In fact, the most noteworthy thing about this lackluster decision was the fact that the majority—including Almendarez-Torres dissenter, David Souter—spoke of the much-maligned decision, which has been on life support for years, without disparaging it. See slip op. 20 n.8.

Zuni Public School District No. 89 v. Department of Education, 05-1508

Although the least interesting case of the week in its subject matter (which is saying something), Zuni nonetheless deserves note for its strange voting lineup and some rhetorical fireworks from the usual suspect. You’ll forgive me if I focus on the latter. The Court interpreted the Impact Aid Act, which instructs the Secretary of Education, when making certain school-aid-equalization calculations to “disregard [school districts] with per-pupil expenditures above the 95th percentile or below the 5th percentile of such expenditures.” The Secretary made these calculations by excluding the top and bottom 5% of districts based on the number of students, instead of per-pupil expenditures.

Justice Breyer, joined by a motley crew of JPS, AMK, RBG, and SAA, wrote the majority opinion deferring to the Secretary’s approach under Chevron. While conceding that Zuni’s strongest argument “rests upon the literal language of the statute,” SGB took a page out of Active Liberty and turned first to the “basic purposes” of the statute. SGB essentially went on to hold that the Secretary had been given Chevron leeway to define “equalization” and that she had done so reasonably in accord with the history and purpose of the statute. Then, in a move apparently calculated to test the efficacy of Nino’s blood-pressure medication, SGB wrote that Zuni’s interpretation was unreasonable in light of the statutory purpose, even though it was seemingly compelled by the statutory language. In a highly technical mathematical discussion that will be lost on those who do not routinely joke about prime numbers, SBG apparently explained that the Secretary’s view did not necessarily contradict the statutory language.

JPS concurred and candidly admitted that the Court was ignoring the statutory text in favor of Congressional purpose. But that was no skin off his nose because, in his view, the role of the Court is to implement the clear legislative purpose, the text be damned if it gets in the way.

AMK (+SAA) concurred, meaning that Alito joined Kennedy’s opinion (and not Scalia’s) in every case this week. So much for “Scalito,” but Kennito just doesn’t have the same ring to it. AMK tried to shoehorn the Court’s analysis into the traditional Chevron framework by arguing that the statute was ambiguous. He would have preferred that the Court arrange the opinion in the correct order—text, then history and purpose—but, interestingly, he “gave deference to the author of the opinion in matters of exposition.”

A dissenting Justice Scalia (+JGR, CT, DHS (in part)) was apoplectic. The plain language of the Act clearly and unambiguously forecloses the Secretary’s approach, and the Court’s decision “is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.” “This case is not a scary math problem.” The Court need only have enrolled in Professor Nino’s “Statutory Interpretation 101” in order to properly decide it. Instead, the Court’s attempt at statutory interpretation is “sheer applesauce” (?) that makes no sense “at first blush, second blush, or twenty-second blush.” This dissent sets a new record for rhetorical excess even by Justice Scalia’s vaunted standards. Welcome to the Court, Justice Alito.


The Court CVSG’d in 3 cases last week. Metlife v. Glenn (06-923) addresses when an ERISA plan manager has an unlawful conflict of interest. Qanta Computer v. LG Electronic (06-937) concerns the Federal Circuit’s “first sale” doctrine for patent licenses. And U.S. Chamber of Commerce v. Brown (06-939), asks whether the National Labor Relations Act preempts a California law restricting employer speech about unionization.

Until next time, that’s today’s baseball. Look for another roundup tomorrow recapping this week’s Texas death-penalty decisions and cert action.

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. Notice to California Residents: Per Proposition 60, this product contains trace amounts of lead. And humor. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on April 26, 2007 at 12:59 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Dodge on Sosa

I'm delighted to highlight a recent essay on the Harvard Law Review Forum by my colleague Bill Dodge.  Here's an abstract:

In 1997, Professors Curtis Bradley and Jack Goldsmith shook the international law academy by arguing that the Supreme Court's decision in Erie Railroad Co. v. Tompkins made it illegitimate for federal courts to continue to apply customary international law (which they called CIL) without further authorization from Congress. The Supreme Court's 2004 decision in Sosa v. Alvarez-Machain seemed to reject this argument, holding that federal courts could apply customary international law under the Alien Tort Statute (ATS) without any authorization beyond the jurisdictional grant. Undaunted, Professors Bradley and Goldsmith (joined now by Professor David Moore) have returned to claim that Sosa in fact supports their argument and that courts can domesticate CIL only in accordance with the requirements and limitations of post-Erie federal common law.  In my view, their latest article not only misinterprets Sosa but also raises fundamental questions concerning both the legitimacy of customary international law itself and the legitimacy of requiring its express incorporation into the U.S. legal system, a requirement that is contrary to the understanding of the founding generation.

Let us know what you think.

Posted by Ethan Leib on April 26, 2007 at 12:09 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Wednesday, April 25, 2007

Manny Being Manny...

Disclaimer: I am not a Red Sox fan (except when they're playing the Yankees). And I must confess that I often find the sportswriting in the New Yorker to be a tad... umm... priggish. Finally, I don't usually like to post solely to flag something that someone else wrote.  All of that being said, Ben McGrath's April 23 article on Manny Ramirez ("Waiting for Manny") is absolutely priceless, and a must-read for anyone who finds baseball or Manny (or both) remotely interesting. I laughed about fourteen times.

One tease: "When I asked his teammate David Ortiz, himself a borderline folk hero, how he would describe Ramirez, he replied, 'As a crazy motherfucker.' Then he pointed at my notebook and said, 'You can write it down just like that: David Ortiz says Manny is a crazy motherfucker.'"

A must read.

Posted by Steve Vladeck on April 25, 2007 at 10:24 PM in Culture, Steve Vladeck | Permalink | Comments (2) | TrackBack

1L Curriculum Reform

Many law schools have been rethinking their first year curriculum.  Certainly, Harvard and Stanford have adopted, perhaps, the most visible changes -- but many schools are struggling with what to do with the old school 1L year.  So here's a question for the readership about curricular design.

Suppose you had to pick two out of three of these courses for 1Ls: Constitutional Law I (Structure & Federalism); Legislation, Statutory Interpretation, and the Administrative State; or International Law.  Which do you require of first years?  My provisional preference is the Legislation course and International Law.  Largely, my selection is based on the simple thought that everyone will take Con Law I anyway (and perhaps not the others) -- and one gets little advantage by front-loading it.  More, many people come into law school with a feel for Con Law and what it will be like -- but many fewer get exposure to the other courses, courses which are central to practice and thinking about the law in the modern age.  This early exposure may help shape careers in a way a Con Law course probably won't.  Obviously, this is the choice Harvard made -- and I'm curious what others think. 

[Of course, one could imagine ways to squeeze all three into the 1L year by doing away with more "old school" course units in the first year or leaving some subjects for later years (Property and Criminal Law are the standard candidates).  But assume for the sake of argument that you can only choose 2 of the listed options.]

Posted by Ethan Leib on April 25, 2007 at 03:10 PM in Life of Law Schools | Permalink | Comments (18) | TrackBack

Arizona State’s Sentencing Workshop

Greetings from sunny Phoenix, where, in addition to a whirlwind house-hunting tour, I had the great fortune to sit in on a weekend session of a fantastic sentencing workshop taught by Arizona State Professor Gary Lowenthal.  In addition to teaching students about the practical aspects of criminal sentencing, the class has a unique component that involves local judges.  Students and participating judges are given the background materials for several criminal cases in which the defendant has been recently sentenced, and the participants are asked to assign a sentence to each defendant.  Then, during the course of the weekend, the students and judges gather with a local defense attorney and prosecutor to discuss each case.  The judge who originally sentenced the defendant is also present to answer questions and, at the end of the discussion, state what sentence he or she imposed and why.

As a soon to be member of the ASU faculty, I was very pleased to have the opportunity to sit in on a judge/student session this weekend.  And as a young law prof, I appreciated the opportunity to hear the judges’ takes on these particular cases and on sentencing issues more broadly.  I also couldn’t help thinking that this program (which I understand has appeared at a couple of law schools over the past several years) would be a fantastic addition to many law schools’ criminal law curriculum.  As I see it, there are several advantages to such a program.  First, it gives students an opportunity to see exactly how difficult a sentencing judge’s task is.  Second, it allows participants to view the sometimes abstract theories of punishment in a very real setting.  Third, it allows the judges themselves to articulate and share their sentencing decisions with one another --- an exercise that I imagine promotes judicial self-reflection and may help minimize sentencing disparity.  Fourth, it allows students to meet judges and prosecutors, thus developing professional contacts.

Finally, I was personally struck by two very interesting aspects of the sentencing workshop.  The first was that many of the sentencing considerations that judicial and student participants identified as driving their sentencing decisions have been deemed “not ordinarily relevant” under the federal sentencing guidelines.  As state judges, the workshop participants were obviously not bound by those rules; but I thought it remarkable that a sizable group of experienced and thoughtful sentencing judges seemed to have such a different view of appropriate sentencing factors than the U.S. Sentencing Commission.  The second was that many times judges who gave different hypothetical sentences based on the background materials revised their sentences based on a piece of information that was not contained within the sentencing materials, but that the actual sentencing judge was able to provide during the discussion.  That is not to say that there were no instances where judges continued to disagree about the appropriate sentence for a particular defendant even after hearing all of the information.  But it did make me wonder how much we can trust the pre-Guideline sentencing data about sentencing judge disparity. Perhaps more information might have made some pre-Guideline studies about judicial disparity, where judges were asked to assign hypothetical sentences based on a written record, seem less dramatic.

Posted by Carissa Hessick on April 25, 2007 at 01:43 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Current Scholarship Round-Up for the 2007 Spring Submission Cycle

This post inaugurates what will hopefully be a continuing feature here at PrawfsBlawg: a round-up of current legal scholarship that has been placed during each submission cycle.  Although this may be changing, law reviews generally accept articles for submission during two time periods: a spring cycle beginning in February and a fall cycle beginning in August. Although the articles have been submitted and accepted during the cycle, they may not come out for six months to a year from when they have been placed. SSRN and Bepress have filled in this gap to some extent, but at present there is no community forum for getting out the news of your new article and its (forthcoming) home.

In order to provide a community-wide source about placement news, I'll be compiling a list of articles that have been chosen for publication during this spring's submission cycle. If you wish to be included in this spring’s round-up, please send an email to this address with the following information:

  • Author[s ]
  • Title
  • Law review or other journal placement
  • Volume and year of publication (if available)
  • Link to your article at SSRN, Bepress, or institutional web site (if available)

I’ll collect the information and post it in about a week, with updates to follow as further submissions come in.

UPDATE: Just to clarify, I am looking only for articles, rather than essays, symposia pieces, or book reviews.  If there is interest, we could also do round-ups for these separate categories.  Let me know your thoughts.  And thanks to all of you who have already submitted news of your placements.

Posted by Matt Bodie on April 25, 2007 at 11:34 AM in Article Spotlight | Permalink | Comments (0) | TrackBack


Just a quick heads up: over the next few weeks, we'll have a panoply of new and familiar voices added to the Prawfs chorus, er, cacophany.  Joining in the fun for the first time:  William Birdthistle (wrapping up his first year in corporate law at Chi-Kent), Rob Kar (Loyola LA, jurisprudence), and Adam Gershowitz (South Texas, criminal law).  Returning later this week is Yair Listokin (Yale, L/E), and soon Adil Haque and Bill Araiza (LLS) will be joining us again too.

Posted by Administrators on April 25, 2007 at 08:31 AM in Blogging | Permalink | Comments (0) | TrackBack

Tuesday, April 24, 2007

NEPOC wants you!

Moving Forward or Moving Backward?:
Criminal Justice and Immigration in the 21st Century
Southern New England School of Law
North Dartmouth, MA
September 14th - 15th, 2007

NEPOC 2007 will include various Works In Progress (WIP) sessions that will
provide the opportunity to submit and present a scholarly WIP and receive
feedback, both from an assigned commentator and from the audience.  This is
an excellent opportunity to develop and refine a scholarly project in a
supportive environment.  WIP submissions from junior faculty and faculty of
color are particularly welcome.  WIP can address any subject matter and need
not be limited to the conference themes.  Those interested in submitting a
WIP, or in serving as a commentator, please contact:
Fabio Arcila, Jr., [email protected] <mailto:[email protected]> , or
Alafair Burke, [email protected] <mailto:[email protected]>

This year's conference will focus upon the dramatic transformations occurring
in criminal justice and immigration law.  Powerful forces such as the
stresses of globalization and the ever-increasing diversity of the American
population demand change.  This conference will explore the hope and the
dangers of these legal evolutions with panels on community criminal justice,
law enforcement and the risks of discretion, immigration controversies on the
local and global levels, and the increasing intersections of criminal law and
immigration law.  In addition, we will be conferring various awards, holding
mentorship sessions, and are particularly excited that Charles Ogletree will
be our keynote speaker.  For more details, please visit the conference
website:  www.snesl.edu/conferences/NEPOC

Posted by Administrators on April 24, 2007 at 04:33 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

"Evaluate Me!"

The Connecticut Law Review will shortly be launching its own entry into the ranks of online law review supplements.  Here is a draft of my contribution to the opening issue, which will also feature contributions from other Prawfsblawg contributors.  The paper is titled "'Evaluate Me!': Conflicted Thoughts on Gatekeeping in Legal Scholarship's New Age."  And here's the abstract:

This short contribution to the Connecticut Law Review's new online supplement, CONNtemplations, offers some thoughts on status and gatekeeping in the online age of legal scholarship. Bloggers, SSRN, and online law review supplements like this one have increasingly routed around and weakened, if not undermined, the traditional gatekeepers who certified legal scholars and their scholarship. Is this a good thing?

The paper proceeds by examining this question in light of a pair of opposing views and values. The first is Julius Getman's discussion of the eternal tension between elitism and egalitarianism in the life of the scholar. The second is a pair of comments on the role of blogs and other online media in legal scholarship -- a positive and optimistic comment by Larry Solum, and a more pessimistic and critical view presented by Brian Leiter. Ultimately, I tend to agree with Solum's optimistic view: the online age has provided new thinkers and writers with multiple routes around the old gatekeepers, and this development should be welcomed.

At the same time, I suggest candidly that many legal scholars who have benefited from blogs and other online media (including myself) have used those new media to seek certification and enhanced status from the same traditional gatekeepers that we have criticized. In Getman's terms, we have "talked" egalitarianism and "done" elitism. The old tension continues. I link this tension to a variety of broader phenomena: the insecurity of the legal academic, the legal academy's increasing fixation with rankings, and the "economy of prestige."

Comments are welcome, as always.  Enjoy.   

Posted by Paul Horwitz on April 24, 2007 at 12:23 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Monday, April 23, 2007

Selecting a Research Profile as a Scholar

Last week I participated in a symposium and roundtable discussion on "Finding Your Voice as an Emerging Legal Scholar" at Yale Law School. Together with a few other recent YLS graduates - now colleagues at American law schools - we debated the (many) virtues and (few) vices of life as a junior law school professor.

One of the questions raised was how to limit one’s intellectual hunger and set aside possible research projects that do not fit within a single, integrated research agenda. The discussion led me to think about my own scholarly examples and mentors. I identify two types of scholar. On the one side there is the eclectic/renaissance scholar who is likely to publish new ideas in very different fields of law or to apply various interdisciplinary approaches to legal issues. On the other end of the spectrum, there are those extremely focused, highly specialized scholars that stick to a narrowly defined issue and become true experts on a topic or in a specific area of law.

To some extent, this presents any young scholar with a strategic decision. How much should one limit her or his research to one topic or area of law? Traditional wisdom, at least from what I garnered, states that it is better to specialize and work to become an expert in one field.  I’ve been told that, unless you exude the type of smarts that cannot be contained, you are better off sticking to a restricted amount of topics in one (perhaps two) fields of law. Allegedly, if none of your individual publications attracts wide attention, your “scholarly profile” (tenure-speak) will be neither here nor there. On the other hand, if you have many articles on one topic/one area of law (even of none was a “big hit”), you are more likely to be recognized as a “nationally recognized” scholar (tenure-speak again).

My own intuition is that one should research and write on whatever happens to inspire his or her academic mind. Genuine interest fosters the highest amount of productivity.  For aren’t we all inherently limited;  can we really be so eclectic that no common thread can be discover in our scholarship at the conclusion of the tenure review process? Aside from these considerations, what is the most successful avenue for a young scholar? How many truly successful scholars can be placed in the renaissance/eclectic category? How many successful scholars are there that routinely cover different areas of the law or tread within different even law-and disciplines during one career?I can think of contemporary scholars that I regard as personal examples of such scholarship. 

Robert Cooter and Ian Ayres immediately come to mind. But my intuition is that such scholarship is becoming more rare. Because the various areas of the law are expanding, the costs of eclecticism have increased. At the same time, the increased complexity of the law (more statutes, cases) increases the benefits of specialization. Is the blogosphere last or the ultimate resort for the renaissance scholar?

Posted by Ben Depoorter on April 23, 2007 at 12:01 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Sunday, April 22, 2007

Mankiw & Pasquale in the NYT

In case you missed it, the Sunday New York Times highlights the online debate between Greg Mankiw and Frank Pasquale.  The debate centers on Mankiw's paper with Matthew Weinzierl entitled "The Optimal Taxation of Height."  In the NYT's "What's Online" section, Dan Mitchell discusses the paper as well as the response from Pasquale at Concurring Opinions.  The Times coverage has prompted Mankiw to respond here.  An interesting example of the interaction between scholarship, traditional media, and blogs.

Posted by Matt Bodie on April 22, 2007 at 05:55 PM in Blogging, Corporate | Permalink | Comments (0) | TrackBack

Friday, April 20, 2007

Vermont Senate Calls for Bush-Cheney Impeachment

Readers might be interested in this story, recounting the Vermont Senate's effort to trigger impeachment proceedings against GWB.

I previously explored citizen efforts to get their representatives to impeach here.

Posted by Ethan Leib on April 20, 2007 at 06:04 PM in Blogging | Permalink | Comments (0) | TrackBack

Fun Chevron Facts

Given that it seems to be John Paul Stevens's 87th birthday, it seems like destiny that I got to teach Chevron today.  Although at the time JPS probably didn't see the case as the landmark and legacy it would become, I, for one, will always remember him fondly for that opinion.  (That, and his questionable decision not to offer me a clerkship after our very stimulating interview).

To refresh your memory, here's one thing Stevens had to say in Chevron:

[T]he Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is "inappropriate" in the general context of a program designed to improve air quality, but whether the Administrator's view that it is appropriate in the context of this particular program is a reasonable one.

Have you ever wondered who wrote that Court of Appeals decision at the DC Circuit?  The answer is below the fold.

None other than then-Circuit Judge Ruth Bader GinsburgSee 685 F.2d 718 (D.C. Cir. 1982).

Posted by Ethan Leib on April 20, 2007 at 05:51 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Fried's "Modern Liberty"

Here's my review, in Commonweal, of Charles Fried's recent book, "Modern Liberty and the Limits of Government."  A bit:

“Liberty,” Fried argues, “is individuality made normative.” It is the triumph of individuality “as much over authority that would govern by despotism, as over the masses that would subordinate the minority to the majority.” He concedes that there are social realities-cultures, religions, languages-in which persons are situated and by which they are shaped. “But all these things,” Fried contends, “are the products of individual persons.” Individuals, he insists, “come first. Whoever says otherwise is trading in metaphors.”  . . .

It is often, and rightly, observed that the libertarian moral anthropology, for all its Promethean trappings, is pretty thin, assigning greater moral import to our “separateness from each other” than to our dependence on one another. . . .  And while there is surely something to Fried’s claim that “a life without choice, a life consisting of unchosen goods, is an inhuman existence,” it is also inescapably true that many human goods are given, not claimed, and that to be independent and alone is more “inhuman” than to depend on others.

That said, Fried provides an important warning about the temptations to confuse the preferences of the majority with the common good and to slight, as merely selfish, the objections of those who resent the majority’s imposition. Certainly, it is possible to overstate or misuse the claim that “individuals come first.” And yet, as C. S. Lewis once wrote, in a little essay called “The Weight of Glory,” we “have never talked to a mere mortal. Nations, cultures, arts, civilization-these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit-immortal horrors or everlasting splendors.”

Posted by Rick Garnett on April 20, 2007 at 11:26 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

"A chill wind from Rome . . ."

. . . is what a number of bloggers and commentators perceive in the partial-birth-abortion decision.  I suppose I should not be surprised by this line, but -- I admit -- I'm disappointed.  And then there's this, from the Philadelphia Inquirer (which characterizes as "activist" a decision that declines to invalidate a measure which has always enjoyed broad and bipartisan support or to read broadly a precedent which invalidated an earlier law which also enjoyed broad and bipartisan support):


My point here is not to vent about the "last acceptable prejudice" .  What's irritating, to me, as a lawyer, about the cartoon is the claim that it is as Catholics -- i.e., because they are Catholics, and not because they think, as intelligent and engaged lawyers, that the Constitution does not disable legislatures entirely from regulating what most people (not just Catholics, fideists, and sexists) regard as a particularly gruesome abortion procedure  -- that the five Justices who voted to uphold the ban.

Not only that . . .

More striking, and sad, for me, is what the cartoon suggests, and reveals, about the state and future of debate about moral questions.  Look at the faces of the dissenting Justices -- quizzical, sad, bewildered, as if to say, "what are these guys talking about?" -- while the majority are smug and complacent.  And why shouldn't they be?  They didn't have to think or reason; only to put on their mitres!

It is, increasingly, thought to be enough to discredit an argument or position -- any argument or position -- merely to note that the person who makes it is a religious believer, and to write off any moral argument with which one disagrees as "religious."  (This practice, of course, does not run both ways:  arguments against torture, the death penalty, race discrimination, and income inequality are "secular"; arguments against partial-birth abortion or the creation of embryos for research are "religious.")  It appears, increasingly, that arguments whose trajectory is not in line with the standard liberal / autonomy / choice line are not only rejected, but declared not to be permissible arguments

And now, apparently, even words whose use suggests the embrace of certain premises are out of bounds.  In Justice Ginsburg's dissent, she took the time to complain that there was something improper, and threatening, about the majority's use of words like "abortion doctor" and "unborn child"; but, of course, the use of these words represents an argument.  To rule out the words is to rule out, as illegitimate, the argument they reflect.

I have long understood that many (most, probably) of my friends -- decent, intelligent, thoughtful people -- disagree with me about abortion (and constitutional law).  This is true, I understand, of many of my co-bloggers and Prawfsblawg readers.   I don't think, though -- at least, I try hard not to think -- that their disagreement is merely a product of their funny-hat choice.

Posted by Rick Garnett on April 20, 2007 at 10:26 AM in Constitutional thoughts | Permalink | Comments (35) | TrackBack

Kelo, Norms and Winning by Losing

In a new and interesting working paper, Ilya Somin (George Mason) examines the political backlash against the Supreme Court decision in Kelo v. City of New London.

In Kelo, the Supreme Court held that private redevelopments that confer economic benefits on communities qualify as “public use”, thereby allowing local governments to expropriate private property under the Takings Clause of the Fifth Amendment. In the wake of Kelo, to date, over forty states have adopted legislative measures to curtail economic development takings. What first seemed a resounding loss in the Supreme Court, turned into a resounding victory for the opposition against takings of private land for commercial purposes.

However, from Somin’s extensive research it appears that many of the countermeasures enacted by states provide only very limited, often ineffective protection against economic development takings. In many cases, the provisions (for example, minor consequences on government funding) are unlikely to deter local governments from engaging in Kelo-like takings.

Somin attributes such ineffective post-Kelo legislation to voter ignorance. Accordingly, the government can get away with passing ineffective legislation because lip service can be sufficient to counter public backlash if the median voter does not pay close attention to the real effects of legislation.

Somin’s findings casts some doubt on the common perception that the Supreme Court decision in Kelo was a true victory for opponents of economic development takings. Personally, I remain convinced that the Kelo case was a triumph for opponents of economic development takings. Of course, a win in court would have been the most solid measure of success. Yet, because the long standing precedent was so unfavorable to the plaintiff’s cause, there was no real hope for a victory to begin with (don’t be fooled by the close margin, the disagreement originates in some language in Kelo that strengthens pro-government precedent). Perhaps the best hope for the Kelo plaintiffs was always to garner public attention to the underlying cause and to incite public disapproval over commercial development takings. Given the tremendous public backlash, the litigation was a success. And losing badly in the Supreme Court? Sometimes there is no better way to win the public’s sympathy. Is any of this new or does it merely fit within a long standing tradition of Supreme Court decisions that further polarize social issues?

Posted by Ben Depoorter on April 20, 2007 at 09:00 AM | Permalink | Comments (1) | TrackBack

Thursday, April 19, 2007

Larry Ribstein on the VT Tragedy

Here.  If you say this:

I have refrained from visiting the painful topic of the VT killings because they're basically off-topic and well covered elsewhere. Moreover, I generally resist the urge to try to draw public policy "lessons" from incomprehensible horror. I particularly don't like the tendency to trivialize an event like this by borrowing its weight for our particular issue.

Then why would you say this?

Thankfully SOX will (probably) not have the dreadful consequences we witnessed at Virginia Tech.

Posted by Matt Bodie on April 19, 2007 at 02:51 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Per Leiter

Since Brian does us all a service, we're happy to oblige:

I post to ask a favor.  I've heard from many readers that when you search Brian Leiter you don't in fact get my law school ranking site as one of the top results, even though you get my blogs, my homepages, and my philosophy ranking site.  So, dear reader with a blog, please post a link to Brian Leiter with the hyper-link to www.leiterrankings.com, for the benefit of all those souls in Cyberspace in search of my law school ranking site.  Indeed, you can simply copy this post and repost it at your site.

Many thanks!

I was also going to tell you about having been evacuted from my office yesterday because of a threat against Hastings from Autoadmit -- but you can read all about it at Leiter's blog.

Posted by Ethan Leib on April 19, 2007 at 12:40 PM in Blogging | Permalink | Comments (0) | TrackBack

Gonzales Hearing....Live Blogging!

Boy, AG AG sure didn't start off well in answering questions from Leahy and Specter. He clearly annoyed Leahy. Then he made Specter just plain angry by ducking questions and getting cute. Specter took a shot at him for the extent of his preparations for today's hearing. Gonzales responded by saying "I prepare for all my hearings." Boy, Specter didn't appreciate that. He got visibly--even for him--agitated and demanded to know "Do you prepare for your press conferences?" He wouldn't let go of that one for at least a couple questions, making Gonzales look silly for insisting on his habit of preparation just minutes after he himself had conceded mistakes in his press conference a few weeks ago. Specter finished up by telling AG that he was going to have to "win this debate", together with a disappointed look and the statement that he, Specter, wanted AG to win. AG looked chastened and said simply "I apologize, Senator."

Kennedy is now asking AG how he can be so sure that the firings of the USAs were justified when he claims to have known so little about the process leading up to it.

Should be an interesting day.

(You can watch the Senate Judiciary hearing here.)

Update: If I heard him correctly, Gonzales just decribed agonizing (possibly my word, but I think it's an accurate paraphrasing) over whether to dismiss Daniel Bogden (fired USA for Las Vegas). How can you be tormented by whether to fire someone and also not be much involved in the process of whether to fire him?

Posted by Jonah Gelbach on April 19, 2007 at 10:32 AM | Permalink | Comments (3) | TrackBack

Dan's Favorite Belgian Says Hello


Thanks for the introduction, Dan. As a long time reader, I am delighted to join the ranks of guest blogger the next couple of weeks. As Dan mentioned earlier in his post, I started teaching at the University of Miami last Fall (IPL, L&E and Property next year).

Expect me to post mostly on issues related to my research on(reader beware: shameless plug starts here) social norms and the counterproductive effects of copyright enforcement, the role of political externalities in the Katrina tragedy, anticommons property regimes, the vice & virtues of secret settlements and many more issues that I will probably never get 'round to actually write or publish on.

I will also share some comparative thoughts on the academic market – given my background as a European JD/Yale LLM.

Posted by Ben Depoorter on April 19, 2007 at 12:13 AM in Blogging | Permalink | Comments (0) | TrackBack

Wednesday, April 18, 2007

Stare Decisis

Mike Paulsen has a provocative post on Balkinization explaining why adherence to constitutional precedent is squalid.   It seems like a radical idea at first -- especially when he claims that adhering to constitutional precedent is unconstitutional.  The argument, however, seems sensible enough:

Stare decisis is a charade. The doctrine, taken seriously, suggests that judges should deliberately decide cases in ways they otherwise are fully persuaded are wrong, on what they otherwise would regard as the proper interpretive criteria -- sometimes. (When that "sometimes" is is itself a disputed aspect of the doctrine.) Taken seriously, the doctrine is unconstitutional: it suggests that a court should prefer the (by hypothesis) faithless earlier departure from the Constitution to the correct understanding of the Constitution, in situations where they conflict. This is directly contrary to the reasoning of Marbury v. Madison -- a sound precedent if ever there were one. (Marbury is right in its argument for judicial review not because it is Marbury, but because it is right.)

It turns out that not all originalists have this view.  For example, McGinnis & Rappaport (both originalists who embrace stare decisis) furnish this argument in a forthcoming article in Constitutional Commentary:

While [some] assume[] 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. 

Posted by Ethan Leib on April 18, 2007 at 06:06 PM | Permalink | Comments (0) | TrackBack

Gonzales v. Carhart & 2008 Politics

Several months ago, my wife and I were discussing the politics of the looming (or, arguably, ongoing) 2008 campaign. We each thought that unless things change radically in some way, the now-unknown Democrat is a strong favorite to win the WH. Neither of us thought that the situation in Iraq is very likely to greatly improve by then (continued deterioration seemed and seems much more likely). Both of us thought there were basically two major wildcards: a major, successful terrorist attack on the US and a Supreme Court ruling that would considerably change the abortion landscape.

And today, the latter may have occurred in Gonzales v. Carhart. I'll leave others to discuss
the decision itself. The key result, though, is that the SCOTUS rejected a facial challenge to the Partial-Birth Abortion Ban Act of 2003 (PBAA) outlawing the use of the procedure known medically as intact dilation and extraction, or, sometimes, DNX. The law has an exception for cases in which a pregnant woman's life is in danger, but it has no exception for her health.

I want to discuss the political fallout of this decision. One view that's held by some serious thinkers is that any serious threat to abortion rights will transform American politics by shaking loose a considerable number of Republican/Republican-leaning voters who (a) support the party on its economic or war policies and (b) do not support its position on abortion rights, but (c) do not think that abortion rights are seriously threatened.

It's no surprise to anyone who followed the confirmation process during the period after Roberts's and Alito's nominations that neither would find any problem with the PBAA. And it shouldn't be a surprise to anyone familiar with Kennedy's dissent in Stenberg v. Carhart , concerning a Nebraska law that (if I remember correctly) lacked both a life and health exception.

But it might be a surprise to those folks described above. As Jack Balkin stated at the end of this NPR interview from a year or two ago,

The Republican coalition consists of business conservatives, suburbanites, women who are in suburbs and rural areas, libertarians who believe that the government should stay out of people's private lives, and religious and social conservatives. As long as the right to abortion is more or less protected in the United States, a lot of those people can happily stay in the Republican coalition. Libertarians can stay. Business conservatives can stay. Suburban women and rural women can stay, because they figure, basically, you can get an abortion if you need to; if you can scrape the money together, you can get an abortion.

Balkin continues:

On the other hand, if Roe v. Wade is overturned, then everything is on the table, including criminalization of abortion. And at that point, libertarians, business conservatives and lots of suburban and rural women and women in urban areas, too, will say to themselves, "I'm not sure I want to be in a party that supports criminalizing abortion." At that point, they will find the Democratic Party more attractive. And not all that many people have to bolt the Republican Party for them to lose control of Congress and the presidency, just a relatively small number. And the Republicans understand that. That's why the Republican strategy is to narrow Roe, cut back at it, weed away at it, but never officially overrule it. …

The interesting thing about today's situation is that generally speaking, there's broad political support for outlawing DNX. So here we have a rare case in which anti-choice folks have found a law that is both popular and limits abortion rights. There are two key points. First, there would seem to be few additional opportunities for the anti-choice side--this was the lowest-hanging of the political fruit available to them.

Second, and more politically critical: will people who both support the PBAA but also support relatively broad pre-viability abortion rights conclude that the current Supreme Court--say, with one more Justice in the mold of Alito or Roberts--is on the edge of proving Balkin wrong and scrapping Casey, taking Roe with it? On the other hand, will they simply conclude that the court is where they are?

If pro-choice Republican supporters do perceive a serious threat to abortion rights, then Supreme Court nominations may play an extremely important role in the 2008 campaign. And if that happens, I think the Republicans will be in big trouble. It's hard to imagine a GOP nominee allowing the religious right to perceive any daylight between him and it, unless the nominee decides to reject outright Karl Rove's base-turnout approach to presidential campaigning. And unlike Bush, who indulged the political luxury of using coded references to Dred Scott, the next GOP nominee will have a hard time avoiding taking a clear stand on this issue. After all, the next Presidential term could see as many as 4 new openings on the SC bench.

And in a funny sort of way, the Court's decision today may actually work greatly to the Democrats'--and thus pro-choice groups'--advantage in 2008. Imagine that Kennedy had switched sides and the Court had struck down the PBAA. Presumably we would be hearing about activist judges defying the will of large Congressional majorities in support of a barbaric technique to murder innocent babies, and so on. That's not a climate that's super-friendly to pro-choice candidates, Balkin's (and my) views notwithstanding. But instead, the Democrat will get to focus on the imminent threat to abortion rights created by the possibility of a Stevens, Ginsburg, or Kennedy retirement--and use this case and the confirmations of Alito and Roberts to emphasize that constitutional understandings of abortion rights are more in flux than at any time since Casey.

It would certainly be ironic if enactment of the PBAA helped cement a pro-choice majority for the next several decades.

Posted by Jonah Gelbach on April 18, 2007 at 02:16 PM | Permalink | Comments (29) | TrackBack

The VT Massacre, Gun Control & Terrorism

Gun control is an obvious topic of discussion in the wake of this week's horrible tragedy at Virginia Tech. Predictably, it's easy to find supporters of gun control arguing that the shootings show that more gun control laws are needed (see yesterday's NYT editorial, for instance). Just as predictably, gun control opponents have argued that more laws would make no difference. For instance, Eugene Volokh writes

Note that I'm not asking what controls would have prohibited him from doing something. Murder law, and for that matter the gun control law that banned firearms from campus, already prohibited him from committing mass murder. That didn't seem to help. I'm curious what "stronger controls" would likely have stopped a would-be mass murderer from killing, or at least killing as many.

Some have suggested that more guns would have mitigated this incident--e.g., Josh C. Manheimer, President of the Handgun Club of America, wrote in a letter to the NYT that

My first reaction was, “I wish there were more kids in that school who had a concealed carry license and a firearm to protect themselves.”

I used to be a very strong believer in gun control. These days, I am more circumspect, on the grounds that there are 280 million or so people in the US and 280 million or so (if memory serves) privately owned guns out there. It seems to me that a lot of the horses therefore are out of their barns.

I don't know all the facts (not even all the facts that currently are known) about the shooter, his guns, his ammos, and so on. But it seems to me that the right question to Volokh's question, if there is one, is that there might have been some controls that would have prevented someone from so easily supplying Cho with the guns and ammunition needed to cause this much carnage. As I said at the beginning of this graf, I don't know enough to know whether there was such a way, but I'm guessing that there might have been. For instance, suppose that the assault weapons ban would have either prevented easy acquisition of the semiautomatic gun he used or reduced clip size. If so, it's certainly possible that this event would have been less horrible--fewer shots fired, fewer deaths and injuries. Maybe not--but it certainly seems to me that it would have been possible. The key question is whether Cho would easily have been able to find similar or close-substitute weapons and ammunition on the black market. Maybe. But maybe not. It seems to me that cases like this--as rare as they are--are different from cases in which only one or two acquaintances are shot. To effect this sort of massacre, a single person needs some serious firepower--a bunch of knives wouldn't be enough (I believe Cho was carrying knives but didn't wind up actually using them), and maybe a run-of-the-mill handgun wouldn't have been either. Again, I'm speculating rather than concluding, but these propositions seem plausible to me.

Which brings me to two other issues.

First, I want to address Mr. Manheimer's suggestion that a bunch of concealed-weapon carrying coeds would have mitigated this disaster. Maybe they would have. But that's where discussion of his subsequent contention that "Making firearms accessible to lawful citizens actually decreases violence" starts, not ends. I say that because, as anyone with the most basic of economic understanding can tell you, what matters isn't the gross benefits of a policy, but rather its net benefits--benefits less costs. I can think of few less compelling ideas than arming a bunch of college kids with guns. I've taught thousands of undergraduates over the years, and while I'll spare you the platitudes, by and large I've really enjoyed it. But college campuses are full of people trying to find their way as adults in the world in a largely undisciplined social environment (which is a key distinction from, say, the military), and the college experience brings with it all sorts of emotional challenges, resentments, and anger-causing events. Not to mention drugs and alcohol, of course. So while Mr. Manheimer may well be right that fewer people would have died at Cho's hands Monday at VT, I have little doubt that many, many more people--students, staff and faculty--would die if we turned college campuses into shall-issue zones.

Second, I want to discuss the issue of efficacy that Volokh raises in the context of the Bush administration's post-9/11 policies. The administration has trampled all over all sorts of civil liberties at home, campaigned for the dictatorial power to jail people indefinitely with no evidence, kidnapped foreigners alleged to be members of or otherwise associated with al Qaeda, set up secret prisons, and, it seems quite clear, tortured people in US custody as a matter of policy.

What does all this have to do with Monday? Well, gun control opponents often argue at times like these that one shouldn't enact policies limiting the liberties of law-abiding citizens in the vain hope of stopping undeterrable people with psychological problems or criminal intent. They have a point.

Which makes me wonder why more conservatives--many of whom are anti-gun control--are so shockingly unquestioning of this administration's post-9/11 anti-terror policies. The costs of these policies in terms of civil liberties have been well documented in many places. How is it consistent to tell people that massacres by people like Cho are unstoppable--the threat to gun liberties is just too great--but that terrorist attacks can be ended if only we are willing to realize that 9/11 changed everything? If you doubt the connection, just recall then-AG John Ashcroft's insistence, contrary to both existing practice and his own staff's legal opinions, that the National Instant Check System couldn't be used in investigations of terrorism suspects (according to this article, DOJ even threatened criminal prosecution of California state officials who used a federal database of illegal gun users to implement California's gun laws).

Balance isn't the only issue--efficacy matters, too. Volokh may be right that it's not possible to stop crazy killers like Cho with government policies. And that should be a factor in drawing policy conclusions. But does anyone who has followed the news seriously think this administration's war and civil liberties policies have had net benefits? By all accounts, al Qaeda has metastasized and is at least as big a threat as it was pre-9/11. Millions of people in Iraq appear to support killing American soldiers, even as at best limited real progress has occurred in democratizing that country. And we seem to have blown our chance to put the Taliban out of business in Afghanistan? Yes, the administration claims all sorts of secret successes resulting from its draconia, but on this one I won't be trusting without some verification.

I would like to hear more outspokenness about these issues from gun control opponents trumpeting balance and efficacy.

Posted by Jonah Gelbach on April 18, 2007 at 12:40 PM | Permalink | Comments (9) | TrackBack

More on the Hearth

I previously discussed Ellickson's article on the hearth here.  You can now read a short version of the article at The Pocket Part -- along with substantive and thought-provoking replies.

Posted by Ethan Leib on April 18, 2007 at 11:33 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

"Why'd They Put THAT in the Story?"

Over at Slate, Jack Shafer offers a gentle defense of reporters who have been accused of going overboard in covering the VT story.  I generally agree with much of what he has to say -- reporters themselves often dislike doing so; the story is profoundly sorrowful and that creates an interest in a variety of details that reporters will naturally cover; there is a thin line between responsible and outrageous journalism, but "if the story came to a close tonight" because reporters stopped covering it, "viewers would riot," and reporters should err on the side of overcoverage rather than overcoverage.  The defense is gentle, as I said: Shafer doesn't defend every coverage choice, and neither would I.  (That goes triple for network news and the cable news networks, but I only qualify most of those as "journalism" under protest.)

I would add four things to Shafer's piece.  First, he is right to say that "[t]here may be no tougher assignment in journalism than knocking on the door of a mother who has lost her young daughter to a killer and asking, "How do you feel?"  With a few changed details, I've done it, and it is extraordinarily unpleasant, although the family member is often far less put out and upset by such questions than one might think.  Second, I have met as many shy reporters as bold and extroverted ones; some people get into the business precisely because they are looking for a job that forces them to meet people and ask difficult questions although they would be more comfortable aone in front of a keyboard.  I usually spent as much time agonizing about picking up the phone and calling complete strangers to ask them questions as I did actually dialing. 

Third, while I can understand an image of reporters as callous, the ones I actually would be the most leery of are the ones who are wells of sympathy.  Shafer writes that one way "journalists numb themselves is to slip the veil of compassion over their newsgathering practices."  That seems not quite accurate to me.  Compassionate reporters are more like most politicians I have met: there is a genuinely sympathetic and friendly and warm side to them, but at the same time the other half of their brain is coldly ticking with thoughts of how you can be useful to them.  Their friendly and sympathetic behaviors are not lies or calcuations; rather, these individuals seemingly have two separate personalities operating on parallel tracks.  Similarly, these reporters are not slipping a veil of compassion over their newsgathering practices; it's not a ruse.  They are genuinely sympathetic, and the second they are done sincerely draining a source of every heartbreaking aspect of a story, they will turn to their computer and chortle at what excellent quotes they've gotten.  They're Janet Malcolm without mens rea.  If you ever encounter such a sympathetic reporter, rest assured that the sympathy is genuine, but under no circumstances should you trust him or her.

Finally, Shafer doesn't note one source of overcoverage in news stories.  I reflected on this yesterday as I saw some wrap-up package story on VT which quoted an Asian student there saying her parents were afraid there would now be an anti-Asian backlash.  I suppose it's possible, and certainly the reporter found someone who actually said it.  But it felt a little forced, as if the reporter were trying to force a narrative detail out of the story that was either out of place altogether or at least premature.  Don't assume this is all about the calculating and exploitative reporter on the ground.  Remember the editor!  From experience, I can imagine many a reporter covering the details he or she thought relevant and important and stopping there, and then phoning or mailing in the story, only to face some editor two hours before deadline asking: "What about anti-Asian bias?  Get something on that.  And what about [detail x]?  Did anyone say anything about that?  Go get me something.  And you're missing the following details."  And so on.  At least some set of the overkill details that end up in stories aren't becuse of the reporter, who might well make sound judgments as to what is appropriately part of the story and what isn't.  They're there because someone at a desk in the newsroom sent the reporter back out to answer every question they could dream up.  You can often spot such details because their placement in the story seems both forced and half-hearted.  You may say these reporters have thus abdicated their responsiblity.  On the other hand, don't law professors do it all the time?  How many "To be sure" paragraphs or half-hearted footnotes crammed into law review articles are the obvious result of some editor telling an author, "we need x, y, and z," until the author surrenders on some or all of the editor's demands?  The dynamic is a common one, in short, but it may often be invisible to outsiders.  If you're displeased at overcoverage of this tragic story this week, or at the inclusion of unnecessary and intrusive details, it might help explain the phenomenon somewhat if you're aware of the internal mechanics that contribute to it.    

Posted by Paul Horwitz on April 18, 2007 at 09:40 AM | Permalink | Comments (3) | TrackBack

Watters: The Court Sidesteps the Chevron Elephant in the Room

Way back last June, I wrote about the significance of the Supreme Court's grant of certiorari in Watters v. Wachovia Bank, the decision in which was handed down today. As I wrote ten months ago with regard to the central issue in the case -- the scope of agency preemption --

Given the absence of a conflict below, one can only assume that someone (or at least four someones, to be exact) sees something very, very wrong with where the law has gone here. After all, would the Court really grant on an administrative law/preemption issue on which the three circuits to reach the question are in unison just to affirm?

In a word, yes. Writing for a 5-3 majority (Justice Thomas recused), Justice Ginsburg agreed with the Second, Fourth, Sixth, and Ninth Circuits that the statutory regime under the National Bank Act clearly contemplates that the Office of the Comptroller of the Currency could preempt state regulation of national banks, and could therefore also preempt state regulation of those banks' "operating subsidiaries."

There are three aspects of the (surprisingly lengthy) decision, to me, worthy of mention:

First, and most importantly, the Court completely side-stepped the lurking Chevron question, ignoring entirely the extent to which the Sixth Circuit's analysis had relied upon Chevron, and opting instead for the Ninth Circuit's Chevron-free view of the preemption question. Indeed, Chevron appears only once in the majority opinion, and there, it is in Justice Ginsburg's description of the Sixth Circuit's decision.

I don't mean to get into too many messy details, but it strikes me as potentially very significant that the majority chose the anti-Chevron route. An easy way out of this case, as the Sixth Circuit held, would be simply to defer to the agency's "reasonable" interpretation of the National Bank Act. But as I noted in a separate earlier post, the Court's jurisprudence on agency preemption is hardly clear that Chevron deference is warranted in situations like this, where the agency is interpreting statutes possibly in excess of their regulatory authority. I therefore suggested that the Court might have granted cert. to get  its Chevron/agency preemption jurisprudence into order, but perhaps instead the grant was merely to reject, albeit sub slilentio, the Sixth Circuit's reliance upon Chevron -- that the Court wanted to affirm, but without relying upon deference to agency preemption.

For points two and three, see below the fold.

Which brings me to my second point: The vindication of the Ninth Circuit's decision in Boutris.  For all of the grief that the Ninth Circuit takes, especially vis-a-vis reversal statistics, cases like this are proof positive that those statistics are incomplete, for there are lots of times when the Court, in modifying decisions of other circuits, is actually adopting the Ninth Circuit's version of the rule. (And vice-versa.)  That's not to say that the Ninth doesn't overreach sometimes, in both directions.  Of course it does.  But on the same day that the Court heard argument in Defenders of Wildlife, there is too much of a tendency, methinks, to belittle anything that comes out of the Ninth, a court that easily claims a representative (if not disproportionate) share of the brightest federal appellate judges in the country (again, in both directions).

Finally, a word is in order concerning Justice Stevens's dissent (joined by the Chief Justice and Justice Scalia): Ultimately, I actually think Stevens is exactly right on the Chevron point, and his dissent is a very worthwhile read.  The issue here, as I explained in more detail previously, is the attenuation. The statute authorizes preemption of state laws with respect to national banks; the OCC is preempting state laws as applied to "operating subsidiaries," entities that are most pointedly _not_ national banks. There is absolutely zero evidence of congressional intent to allow OCC to broadly preempt state laws as applied to entities other than national banks, and, without Chevron, the OCC can't just make it up itself.

And so, inasmuch as the majority sidesteps the Chevron issue (and leaves for another day the messy question of when agencies are entitled to Chevron deference vis-a-vis their authority to preempt state laws), Justice Stevens nails the problem with Chevron deference in this context on the head, especially at pages 20-21 of the dissent.  In his words:

To be sure, expert agency opinions as to which state laws conflict with a federal statute may be entitled to “some weight,” especially when “the subject matter is technical” and “the relevant history and background are complex and extensive.” Geier v. American Honda Motor Co., 529

U. S.

861, 883 (2000). But “[u]nlike Congress, administrative agencies are clearly not designed to represent the interests of States, yet with relative ease they can promulgate comprehensive and detailed regulations that have broad pre-emption ramifications for state law.”


, at 908 (Stevens, J., dissenting). For that reason, when an agency purports to decide the scope of federal preemption, a healthy respect for state sovereignty calls for something less than Chevron deference. See 529

U. S.

, at 911–912; see also Medtronic, 518

U. S.

, at 512 (O’Connor, J., concurring in part and dissenting in part) (“It is not certain that an agency regulation determining the pre-emptive effect of any federal statute is entitled to deference”).

The (ultimately fatal) problem for the dissent, however, is that the majority resolves the case based on the statute itself, and not the OCC's interpretation thereof.  That analysis may not ultimately be convincing (I think it's pretty close), but the Chevron issue lives on to be resolved another day.

Posted by Steve Vladeck on April 18, 2007 at 12:30 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

What's in store for the Future of Entry-Level Hiring?

Tuesday was the last day of classes here at FSU, so you would think that hiring of entry level prawfs at most schools would be over at this point.  Indeed, if you cruise over to Larry's List-o-Prawfs, you discover that over 140 people have been hired at around 93 schools. 

But here's what you may have missed: out of the top 24 schools (based on recent USN), only 7 have so far posted a hire (UVA, Vandy, Columbia, Georgetown, Minn, GWU, and Wash U), while eighteen have not yet posted a hire (harvard, yale, chicago, stanford, nyu, penn, michigan, boalt, duke, northwestern, cornell, ucla, usc, texas, bu, emory, iowa).   Now, I've heard that at least one more candidate out there has offers at a few of the top 10, but only one school will land that person. I'm guessing there are probably a few more like that, but I don't know. Does it seemodd that the wealthiest and "best" law schools have in such large measure refrained from (successfully) hiring this year?

As one friend put it in an email to me earlier, the explanation might be "(1) no hires at all, (2) no hires yet because they all gave really late deadlines for deciding, (3) hires but no announcements.  If it's (3), would this just be indifference on the part of top 20 schools and hires, or is there some new policy in effect?"

Another thought: if the answer is basically (1) no (or fewer hires generally), it might suggest that more schools are trying to go the so-called Yale route of chiefly hiring junior or senior laterals.  (Of course, Yoshino, Listokin, Markovits are exceptions in recent years.)  But the last couple years, it definitely seemed like the top 20 hired a bunch of juniors, so it's probably unlikely that this year's pattern would have suddenly emerged.  But maybe my memory is faulty, and maybe it is still early (relatively speaking) in the hiring season for the decisions at the top 20 to have shaken out.  If it turns out this year marks a greater reluctance to hire entry-levels, what do you think the significance might be, if any, for the broader profession of prawfs?

Posted by Administrators on April 18, 2007 at 12:17 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Tuesday, April 17, 2007

Bernard Harcourt on Aggregated Institutionalization

With a free two hours this morning, I decided to pull an article off the pile of things that I have been intending to read. (I don’t know if anyone else has such a pile, but mine has grown at an alarming rate during the academic year, because of articles and reports mentioned on line or recommended by colleagues that, although I find them very interesting, do not happen to tie into whatever project that I am working on at the moment.)

Sitting near the top of the pile, was Bernard Harcourt’s From the Asylum to the Prison: Rethinking the Incarceration Revolution, which the Texas Law Review published last year. I’m happy to report that the article itself is as groundbreaking and interesting to read as the abstract suggests. Though I can’t possibly do the paper justice here, let me simply say that the paper provides important insight into the conventional wisdom that incarceration was relatively stable until the mid-1970s, while the latter part of the twentieth century saw an “incarceration revolution” — that is a sharp increase in the rate of incarceration. 

Harcourt suggests that incarceration rates don’t tell the full story of confinement in the United States. According to him, up until the mid-twentieth century, large numbers of individuals were confined in mental hospitals. But in the 1960s, the deinstitutionalization of mental hospitals resulted in a sharp decline of the number of individuals confined in those institutions. If viewed together with mental hospital confinement rates, the “incarceration revolution” of the late twentieth century returned overall confinement rates to their pre-mid-1960s level. Using this overall confinement rate data, the article raises important questions about a number of empirical crime control studies.

It also raises important questions about the assumptions that many of us make about modern sentencing and incarceration policy. Many groups and individuals who advocate sentencing reform cite the dramatic upward trend in incarceration at the end of the twentieth century as troubling evidence that reduced sentences are needed.  (I myself have often heard or even participated in conversations to the same effect.) Harcourt’s article and his data suggest that the story of modern incarceration is much more complex, and that we need to better understand our country’s historic willingness to use confinement as the solution to social deviance before answering the modern questions of sentencing reform.

Posted by Carissa Hessick on April 17, 2007 at 02:15 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Posner on Barak

Richard Posner has a review in this week's New Republic of The Judge in a Democracy, by former Israeli Supreme Court Chief Justice Aharon Barak.  It is a typical example of the Posnerian art of the takedown.  Although Barak "supposes himself to be in some sort of sync with liberal American judges," Posner writes, "he actually inhabits a completely different -- and, to an American, a weirdly different -- juristic universe.  I have my differences with Robert Bork, but when he remarked, in a review of The Judge in a Democracy, that Barak 'establishes a world record for judicial hubris,' he came very near the truth."  And more: "What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.  He puts Marshall, who did less with more, in the shade."  And more: "Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words."  His concept of democracy "is not a justification for a hyperactive judiciary, it is merely a redefinition of it."  Barak "purports to derive his judicial approach" from various abstractions, "but they cannot be the real source of his jurisprudence, because they are as empty as they are lofty."

Posner attempts to use Barak as an example of why American judges shouldn't cite foreign cases as authority.  By "authority," he means treating foreign decisions as having some weight in and of themselves rather than because of the rightness of their arguments, which he would permit.  I think this argument is a red herring.  Few American judges even purport to cite foreign cases as "authority" in the sense in which Posner means it.  On those occasions when they have, I doubt they were really doing so as all; they were actually convinced by the rightness of those opinions.  And even when they seem most clearly to be treating foreign decisions as "one more twig to place in the pans of the scales of justice," they generally only do so after having mustered an array of purely domestic arguments in favor of their opinions; even then, they still only use the "twig model" to suggest the extent to which a variety of judges, foreign and domestic, have given the same shape to abstract words contained in our Constitution itself.  Posner's argument on this point is overstated and based on a questionable description of the actual American practice of citing to foreign law; his critique of Barak adds nothing to the scales on that argument.

But it is still a useful critique.  American lawyers and legal academics, insular as they are, may not fully appreciate Barak's influence, both in Israeli law and in constitutional law in a variety of other countries, including Canada.  (He seems to be plugged in somewhat at Yale, but I am not sure that institution meets the definition of "American law school.")  In many respects he is a model of the constitutional judge in a variety of legal systems with 20th-Century constitutions.  And like Posner, I think his is a dangerous model.  Canadian judges have been writing for several years now about phrases like "human dignity," also used by Barak.  They are no closer to a meaningful and predictable definition of that phrase, nor are they closer to justifying it as a useful and constraining constitutional principle that does all they would have it do; they can never get closer.  Posner writes that Barak "was a judicial buccaneer, and maybe that was what Israel needed."  But a legal system can only stand so many buccaneers, let alone a whole judiciary that attempts to sail under the privateer's flag.  Barak may have been a great judge, in other words, but it is far from clear that he was a good one, and other constitutional courts should be leery of taking him as their beau ideal.  Read the whole thing, as they say. 

Posted by Paul Horwitz on April 17, 2007 at 09:16 AM in Article Spotlight | Permalink | Comments (10) | TrackBack

Some Reactions to "The Lives of Others"

Though I missed the chance to see The Lives of Others with Ethan when he saw it on his recent trip here, I did get a chance to see it this past weekend, and I can't recommend it highly enough.  (This follows on the heels of seeing Mira Nair's The Namesake a couple weeks back, which is simply gorgeous and outstanding.) 

Here's a quick capsule summary from Slate's Dana Stevens:

The film opens in 1984 in East Berlin, where we see Gerd Wiesler (Ulrich Mühe) a captain of the East German secret police, teaching a class in extreme interrogation techniques. These include sleep deprivation, the spouting of Orwellian paradoxes (if the prisoner believes the state capable of detaining him for no reason, that belief alone is enough to justify his arrest), and, in a creepy detail, the collection of the prisoner's seat cushion after the interview to be preserved as an odor sample for police dogs. The real intrigue begins when Wiesler is assigned to bug and monitor the apartment of a successful writer, Georg Dreyman (Sebastian Koch), and his girlfriend, a famous stage actress named Christa-Maria Sieland (Martina Gedeck). Georg is neither a subversive nor a party loyalist: He's a go-along-to-get-along guy, too comfortable with his success to question the regime closely, even as it closes in on his scruffier and more outspoken fellow artists. But Wiesler's superior, Col. Grubitz (Ulrich Tukur), wants to further his career by impressing the party bigwig Bruno Hempf (Thomas Thieme), who is looking to get his swinish mitts on Christa-Maria by any means necessary. And Wiesler himself is a rigid ideologue, a socialist automaton who mistrusts all artists on principle—even if the meticulous care with which he runs his own surveillance operation hints at a thwarted creative desire.

The Lives of Others is a more politically charged movie than the Namesake, and one that raises fascinating questions about tensions among law, criminality, artistic purity and personal loyalty--thus I have a few more comments to add than I normally do in my genre of microscopic film reviews.  But these might only be of limited interest to those who have seen the movie, so I'll put them below the fold and invite others to weigh in on this with their own reactions in the comments.

The first half of the movie struck me initially as useful anti-communist cinematic propaganda, detailing and dramatizing the dangers of a surveillance state where the Stasi rules, where apparatchiks abuse state machinery for venal personal goals of lust and social currency.  Of course, that pro-Western vibe starts to deteriorate pretty rapidly the more one reflects upon the Bush Administration's penchant for sloppy or malfeasant surveillance operations of its own.  In this sense, the movie's early message -- Boo surveillance! -- is capable of appealing to liberal democrats' best instincts while also raising severe questions about the ways in which we have slipped (or leapt!) from those noble ambitions in our own efforts against terrorism.  Sure enough, the movie will hit home for those prawfs who readily admit that the Bush Administration has served to radicalize them, moving them from generic neoliberalism or moderate conservatism to full-throated skeptics of state power, verging on shades of crypto-anarchism.

As Wiesler's character -- a profile first in the banality of evil and then in courage -- develops through the arc of the film, the movie is transformed.  Wiesler's character microcosmically reflects a struggle of humans against "humanisms," the overfed archetypes that permeate the GDR's administration.  Ideological abstractions and commitments become wellsprings of cruelty.  Basic decency is the most subversive rebellion. 

When Wiesler's eroico resistance is made out, his career suffers, and he's relegated to steaming envelopes open until he walks off the job on the day the Berlin Wall falls down.  Wiesler only finds his own serenity after the surveilled writer, Georg Dreyman (played by Koch, a German Pierce Brosnan double,) discovers Wiesler's action in the course of post-unification Germany's open-file policy, and issues a subtle but no less monumental acknowledgement of gratitude.  The movie, which at first struck me as essentially political, stands, in the end, not for East or West, each of which is capable of its own (though differing) cruelties, but for a retrenchment from politics.  In this respect, it reflected what I take to be the ethos of literature generally: to paraphrase Irving Howe, "the notion that abstract ideas invariably contaminate [life] and should be kept at a safe distance from it." Am I mistaken with this reaction? I'm curious to hear your thoughts if you've seen the movie.

Posted by Administrators on April 17, 2007 at 12:01 AM in Film | Permalink | Comments (3) | TrackBack

Monday, April 16, 2007

Oral Argument in Coke

The oral argument transcripts in Coke are now available here.

A few little thoughts based on oral argument:

1.  Scalia looks like he's interested in legislative history.  Of course, he says, "I usually ignore [legislative history]," but he seems to think it relevant in this case.  He also seems unwilling to play the textualist game with Coke's lawyer.  Coke gives Scalia a number of perfectly plausible textual canons to play with to reach his conclusion -- but Scalia doesn't want to use small word differences to infer meaning.  Not his usual course, to say the least.  He is willing, however, to see 552.5 and 552.109(a) as inconsistent, a very important point for Coke, for reasons I explain in 4.  Still, his colloquy with Coke's lawyer does seem to make clear that he thinks that the agency gets to decide which of its 2 conflicting regs gets to be effective and which gets to be ignored.  This is unsurprising, since Scalia essentially believes there is only one kind of deference -- and agencies get it or don't.  He refuses to follow Mead  and recognize that 2 regs can stand on different footing (something Alito seems to allow for in his colloquy with Coke's lawyer).  In fact, Scalia still can't give up his theory that Chevron killed Skidmore.  That he wastes his breath saying it out loud when there is no evidence that anyone on the Court agrees with him is notable.  I suppose Roberts or Alito could come around to his view -- but I wouldn't bet on it.

2.  Ginsburg seems inclined to vote for Coke and is underwhelmed by the DOL's and SG's arguments.

3.  Stevens is focused on the practical reality that the defendants are protected from damages liability if 502.101(a) is held unenforceable.  He thinks the case is really only about the prospective effect of the reg at issue.  If this is right (something the SG doesn't fully concede), he may be more inclined to vote with Coke and ignore all the doomsday predictions the defendants and their amici have offered.

4.  Roberts is, at first, convinced that 552.3 and 552.101(a) conflict.  This is very important: the defendants agree that a lot hinges on whether the DOL regs are internally inconsistent.  This is even more so because everyone agrees that 552.3 deserves Chevron deference: if 552.3 gets Chevron deference, it is much more likely that 552.101 would be held to be unenforceable.  However, later in the argument Roberts seems to think that 552.3 is inconsistent with the statute and so would itself be unenforceable.  This last claim strikes me as quite weird.  Then even later in the argument, he thinks he can find a way to render them consistent after all.  Roberts is clearly still on the fence in this case.

5.  Breyer is not convinced that 552.3 and 552.101(a) conflict at all.  He may be an important vote against Coke here.  Breyer also furnishes a pragmatic reason for wanting to uphold the reg: he claims that if Coke wins, many more people will end up in institutions because sons and daughters who do not live in the household with their elder parents will have to pay minimum wages because they will be third-party employers.  He finds this very "worrisome."  More, he assumes that this can't be what Congress intended.  [I have to say that I think there is a lot wrong with this reasoning, something I will try to address in a separate post someday.]  Finally, Breyer at first refuses to see that the DOL was rather specific about which parts of 552 were promulgated pursuant to its rulemaking authority -- and 552.109(a) was not part of that exercise of authority.  Then he backs off, realizing he missed something rather clear.  More generally, though, it shows where his heart is -- and it isn't with Coke.

6. Souter didn't say a word.  Weird, given that Mead was his baby; Mead gave the Second Circuit so much of a basis for its holding -- and this case could be a good opportunity to help clarify some of the problems Mead has created in the lower courts.  For a helpful discussion, check out Vermeule's "Mead in the Trenches" article in the GW Law Rev.

Posted by Ethan Leib on April 16, 2007 at 04:26 PM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

The Duke Lacrosse Case on 60 Minutes

I don't ordinarily watch 60 Minutes, but the lead story last night was about the now-exonerated Duke lacrosse players and so I decided to tune in.  Although I haven't been closely following the case, I was interested to see the interview with the players because I had been impressed by some clips that I had seen of the three young men speaking after the charges against them were dropped last week.  Specifically, I had been impressed by the players' statements about structural problems with criminal prosecutions in North Carolina and their observations that their families' wealth likely helped them to avoid conviction on false charges.  For example, according to the New York Times, Reade Seligmann stated:

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed . . .. If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves. So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it."

Unfortunately, 60 Minutes failed to pick up on this theme.  Instead the players were asked about how they felt while under indictment and when the charges were dropped.  They were also asked whether they wanted to see the accuser or the Durham DA punished.

The news magazine spent a great deal of time discussing reasons why this specific prosecution should not have gone forward, such as the accuser's inconsistent accounts of the attack and the availability of evidence which tended to exonerate the players.  And maybe this very fact-specific account of the case --- rather than a broader look at prosecutorial discretion or how political pressure may affect the use of that discretion --- is the angle that 60 Minutes thought was most newsworthy.  But in choosing that angle, the news magazine failed to highlight the important larger truths that the players themselves were mature enough to articulate after they were exonerated.

Posted by Carissa Hessick on April 16, 2007 at 09:17 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Cultural Devastation

I've just finished Charles Taylor's NYRB essay on Jonathan Lear's new book about hope and cultural devastation.  It is an interesting essay and I highly recommend it.  I'm not sure Taylor picked the best example of cultural devastation to use for his meditation -- the loss of a form of courage that depends on war-making does not strike a chord with me as something I should be depressed has been lost -- but the message is powerful and well-explained in Taylor's essay.  There is, perhaps, an undercurrent of culturalism pervading the essay -- but the ultimate conclusion is one even the skeptical about "culture" ought to embrace.

UPDATE: I have made it clearer that it is Taylor's example of cultural devastation which had little resonance for me; I haven't read the underlying the book, which (as a commenter below suggests) might have other examples.  Obviously, the loss of certain aspects of Native American culture might be worth lamenting.  Scalping and warmongering (even if it is in service of identity-formation -- see, e.g., Carl Schmitt) don't seem like good candidates. 

We discussed culture and normativity previously here.

Posted by Ethan Leib on April 16, 2007 at 12:53 AM in Article Spotlight | Permalink | Comments (2) | TrackBack

Sunday, April 15, 2007

CBC Radio

If you missed my appearance on CBC Radio (and why would you be listening to the CBC unless you are boycotting both NPR and the BBC?), you can get a podcast of highlights from this link.   My interview starts somewhere late in minute 18.

Posted by Ethan Leib on April 15, 2007 at 10:15 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Saturday, April 14, 2007


Thanks for the invitation and the introduction, Dan!  I began reading PrawfsBlawg as a law clerk, almost two years ago, and I'm excited to spend a couple weeks here.

As Dan mentioned, I'll be joining the faculty at Arizona State this summer.  Right now I am finishing up a Climenko Fellowship at Harvard Law School, which has been an absolutely fantastic experience.  There is, I'm sure, no way that I would have been prepared to go on the law teaching market without it.  I highly recommend that law grads who are contemplating a career in teaching consider applying for the Climenko or one of the other fellowships designed to help young lawyers make the transition into teaching.

While here, I expect to post a bit about my academic interests (criminal law and sentencing), my time as a fellow, and, assuming my hotel room has an internet connection, I may write a post or two during my upcoming whirlwind househunting trip to Phoenix.

Posted by Carissa Hessick on April 14, 2007 at 06:32 PM in Blogging | Permalink | Comments (0) | TrackBack

Friday, April 13, 2007

"Federalist Society" as Epithet...Enough Already

Not a lot of time lately, and thus not a lot of posts.

I imagine I'll have more to write about the DOJ/WH/USA/RNC (did I miss any relevant 2-or-three-letter-abbreviated organizations?) soon, though I admit it's getting more and more difficult to follow the many avenues of misrepresentation down which those speaking for these organizations have driven. And, of course, it's Friday--which means that today's document dump probably has more damaging stuff in it than what's so far come to light.

That said, I want to go on record against the use of "Federalist Society member (FSM)" as an epithet by certain liberal blogs. For example, in this post and this one as well, the Center for American Progress blog ThinkProgress has made it sound as if being a FSM is itself some sort of terrible thing. They and others have also suggested that it's some sort of big deal to find that the DOJ made it a point to track FSM status of potential USAs.

There are plenty of FSMs with whom I disagree. There are some who I think are dishonorable and hypocritical. But both those statements also apply to plenty of liberals, both lawyers and otherwise.

More generally, so what if the DOJ and the WH in general look for FSMs to fill USA and other posts? Every administration seeks out politically likeminded folks to fill these jobs. That isn't and never has been the issue with fire-them-all-and-lie-about-why-gate.

It's hard for me to imagine that the same bloggers will see something wrong with the choice by President Obama/Edwards/(I-sure-hope-it's-not)Clinton to use, say, ACS membership as a good way to tell whether they've found someone with similar legal views.

Of course, some of this may be driven by the odd unwillingness of the WH to make the argument I just made. (And I can't help but remember John Roberts's strangely uncomfortable relationship to his FS history, whatever said history was, during the time surrounding his confirmation hearings. I do not, btw, think that Roberts's odd behavior can be explained by some fear that the GOP-held Senate would reject him on that basis--particularly given the Senate's history of confirming plenty of FSMs over the years.)

Anyway, I sure wish liberals would stop already with the ad hominem stuff. It's not like there's a shortage of substantively damaging information about this administration's brand of Justice.

Update: And another thing--Kumbaya.

Posted by Jonah Gelbach on April 13, 2007 at 06:52 PM in Current Affairs | Permalink | Comments (5) | TrackBack


Just a quick word of thanks to all our previous bloggers the last six weeks or so: Brian Galle, Jack Chin, Judge Sarokin, Miranda Perry Fleischer, Bruce Boyden, Anthony D'Amato, and Jessie Hill.

Staying on a bit longer is my colleague Jonah Gelbach, and rotating in shortly is rising ASU prawf Carissa Byrne Hessick and UMiami's Ben Depoorter, with a couple players to be named later. 


Posted by Administrators on April 13, 2007 at 06:20 PM in Blogging | Permalink | Comments (0) | TrackBack